Hamdan & Alzahrani (No 2) [2025] FedCFamC1F 650 | Case summary

Hamdan & Alzahrani (No 2) [2025] FedCFamC1F 650 | Case summary | Zoe

[37]

This is an application for orders adjusting the property interests of the husband and wife following the breakdown of their marriage. The parties also ask the Court to make final parenting orders.
The wife is the applicant and the husband is the first respondent. In these reasons I will refer to them as the husband and wife when I am considering the property applications and the mother and father when I am considering the parenting applications.
There are a significant number of third parties who were joined to the proceedings because the first respondent, Mr Alzahrani, borrowed millions of dollars in his own name and that of companies with which he was associated, the majority of which will, for reasons discussed below, likely never be recovered. The financial proceedings are primarily concerned with adjudication of whether various debts are real (or shams), enforceable (or not), secured or unsecured.
In the week prior to the trial the second respondent, a company, sought and was granted leave to withdraw. In that regard I note that the second respondent (by way of their offer to file a submitting notice) indicated that they had had an opportunity to participate in these proceedings but had decided not to with the effect that they constructively understood that they could not later seek to challenge the orders which may be made in their absence.
The third and fifth respondents have not participated in the litigation in recent times. The matter will be determined against them on an undefended basis.
The seventh and eighth respondents are the husband's parents.
The fourth respondent is Mr Hadeel a person who advanced funds to D1 Pty Ltd ("D1 Pty Ltd").
The sixth respondent is Mr Gurutze - a person who advanced funds to D1 Pty Ltd. Mr Gurutze's proceedings in the Supreme Court of New South Wales ("the Supreme Court") were transferred to this Court. Mr Gurutze sought return of funds advanced or in the alternative, in reliance upon the same facts, and in exercise of the accrued jurisdiction of the Court, relief for misleading and deceptive conduct.
The ninth and eleventh respondents are the trustees of self-managed superannuation funds who advanced funds to D1.
The tenth respondent is Ms Ursila, a person who is a Trustee of the eleventh respondent and who, in her own capacity, advanced funds to D1.
Proceedings between the husband and the 9-11th respondents in the Supreme Court were transferred to this Court.
D1 was deregistered in late 2024. Prior to deregistration the husband was the sole director and shareholder of this company.

[48]

In a similar vein, the fourth and sixth respondents sought to amend their relief during the trial to seek relief under s 37A of the Conveyancing Act 1919 (NSW). That was opposed by the wife and seventh and eighth respondents.
The fourth respondent filed Points of Claim on 7 November 2024. That document stated that the husband and wife had entered into a Deed of Loan with the fourth respondent. The fourth respondent conceded at trial that the wife was not a party to any Deed of Loan. The Points of Claim did not raise s 37A relief.
On 26 May 2025 the fourth respondent filed a Case Outline. In that document Mr Hadeel raised, for the first time, relief under s 37A of the Conveyancing Act 1919 (NSW) on the basis that the transfer to the wife by the husband was voidable. This was echoed in the Case Outline of the sixth respondent filed 26 May 2025. I declined to permit this amendment.
When a third party brings a claim in the context of an application to adjust the interests of the parties to a marriage in the assets of those parties, it is important that all parties are aware of the claim and its factual and legal foundation as soon as practicable.
The timetable for filing of evidence occurred after the parties had identified their respective claims. The discovery was focused on the competing claims.
In considering an application for late amendment of a claim by a third party I must consider questions of procedural fairness and the interests of justice. The situation is subtly different in proceedings which only relate to spouse parties, since I must also consider what property adjustment orders (if any) are just and equitable as between them. That consideration does not apply when being asked to grant leave to a non-spouse party to amend the relief which they seek at the trial. The seventh and eighth respondents did not seek an adjournment or offer to pay the costs thrown away by late amendment.
The principles in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [111-112] have application to the request to amend the relief in this case:
1. An application for leave to amend a pleading should not be approached on the basis that a party is entitled to raise an arguable claim, subject to payment of costs by way of compensation. There is no such entitlement. All matters relevant to the exercise of the power to permit amendment should be weighed. The fact of substantial delay and wasted costs, the concerns of case management, will assume importance on an application for leave to amend.
2. A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.

[65]

In each case the husband, inexplicably, attributed 50 per cent of the indebtedness to the wife.
At no time in Exhibit 10 did the husband represent to the Court that he owed his parents any money in his personal name, nor did he represent that he owed money to the 9-11th respondents in his personal name. The financial statement did not address indebtedness of the husband to Mr Hadeel or Mr Gurutze.
The fact that the husband did not set out any personal indebtedness to the persons listed above is consistent with the wife's case - namely that the husband has, in retrospect, sought to secure some of the funds which were advanced to D1 Pty Ltd to give priority to those persons for repayment of monies which they advanced to a corporate entity.
A number of caveats were placed on the title of the Suburb LL property by persons who (as described above) say that they have provided funds to the husband or an entity associated with the husband.
In July 2020 the husband borrowed a further $200,000 from the mortgagee.
At the same time, the husband transferred an interest in the Suburb LL property to the wife so that from that time they were joint tenants. At that time the wife became a joint mortgagor.
There is some controversy about when the parties separated. The wife says the parties separated on 17 November 2019 (and hence the transfer occurred after the parties' separation). The husband says the parties separated in June 2021 (and accordingly the transfer occurred during the parties' relationship). The wife says that the transfer occurred in circumstances where the parties were endeavouring to reconcile their differences.
The transfer took place at a time when the parties were living in different countries. The husband was in Australia and the wife in Country MM.
The parties are at issue about why the husband transferred the property into joint names. I accept that the intention of the husband may be relevant to my assessment of the claims of third parties. The wife says the transfer occurred as part of the husband endeavouring to persuade her to continue the relationship. This is consistent with the husband's evidence that the relationship had not ended at the date of transfer. It is also consistent with the husband's evidence on oath in September 2021 (Exhibit 8):

[78]

In August 2021 the husband sent the fourth respondent a WhatsApp message which attached a title search for a property at PP Street, Suburb QQ. The title search listed the husband as the registered proprietor of that property. I accept that the husband provided that title search as a representation to the fourth respondent that he was the beneficial owner of the property and able to offer it as security for borrowings.
The husband says to this Court he was holding this property on trust for the AR Association to enable them to obtain a loan. As I understand the wife's case, she says she did not have knowledge of the circumstances surrounding the Suburb QQ property but she accepts that the husband held it on trust. The property was subject to a mortgage to AS Bank. The bank exercised power of sale under a mortgage on 13 June 2023 and the surplus after the discharge of mortgage and costs was paid into the Supreme Court. The husband declined to provide the wife with any information about the sale notwithstanding a request dated 18 July 2024.
In so far as I am aware no party placed the AR Association on notice of the existence of proceedings before this Court.
The husband estimated the amount paid into the Supreme Court as $230,000.
The fourth respondent sought an order that $200,000 of the funds paid into the Supreme Court be paid to him. No party actively opposed that order but I must be satisfied that it is an appropriate order having regard to the evidence before me. I accept that to the extent that the husband asserted (contrary to the title prior to sale) that he held the property as bare trustee, then he bore the onus of demonstrating same.
The husband's representation to the fourth respondent (that the property was available as security) and his evidence to this Court are inconsistent.
Mr Hadeel has been on notice throughout the proceedings that the AR Association is asserted to have an interest in the funds paid into the Supreme Court of NSW upon sale of the Suburb QQ property. It is not for me, absent evidence, to evaluate whether they in fact have an interest. The issue is squarely raised by the husband's evidence and the wife's tacit concession. The more fundamental issue is that raised by the High Court in John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1 at [131], where the High Court stated that where a court, as here is asked to make, orders which directly affect the rights or liabilities of a non-party, that non-party is a necessary party and ought to be joined. If the husband and wife are correct, then the relief sought by Mr Hadeel would directly affect the AR Association. No application for joinder was made and I do not propose to make orders in respect of the proceeds of sale of the Suburb QQ property.
In reliance upon the First and Second Deeds, Mr Hadeel lodged caveats on the titles to the Suburb LL property and the Suburb QQ property which remained on title until the properties were sold and the proceeds paid into the Supreme Court.
When the loans were not repaid on the due date, a third Deed of Loan dated 29 August 2021 was entered into between Mr Hadeel and the husband. This Deed of Loan was not in identical terms to the earlier documents. It was purported to be a Deed between Mr Hadeel and the husband and wife. The document was executed by the husband and Mr Hadeel and witnessed by Mr Gurutze. The document was not executed by the Wife. The Third Deed of Loan gave Mr Hadeel a right to register a mortgage on title of the Suburb LL property and the Suburb QQ property to secure the advance ($800,000) and the fixed interest ($200,000). It is this document which gave Mr Hadeel a secured right, at least in so far as the interest of the husband was concerned.
The document describes the "Borrower(s)" as "[Mr Alzahrani] and [Ms Hamdan]". There is no evidence that the wife had any knowledge of the existence of the agreement.
Mr Hadeel lodged further caveats in reliance upon the Third Deed of Loan.
As indicated above, I did not permit the late amendment to the relief sought by the fourth respondent and, in the absence of any evidence satisfying me that the wife had knowledge of the documents which created the security, I consider that his security only attaches to the husband's interest in the Suburb LL property.
The husband acknowledges the existence of a Deed of Loan but says (in his Defence to Mr Hadeel' Points of Claim) its terms were not agreed. The husband appears to have executed the document - albeit some of the clauses were amended and I find that the husband agreed to the terms of the document he executed.
The consequence of this finding is that Mr Hadeel's claim as a secured creditor must take precedence over unsecured creditors or persons whose security postdates 29 August 2021. The husband's interest in the proceeds paid into the Supreme Court from the sale of the Suburb LL property is not sufficient to discharge his obligation to Mr Hadeel but I will order that half of the funds paid into the Supreme Court from the sale of the Suburb LL property are paid to Mr Hadeel.
Notwithstanding cross-examination directed to the topic of the wife's knowledge of the husband's business dealings, I conclude that the wife's involvement in the husband's business was negligible - limited to attending at and assisting with decorations for opening events. Similarly, the wife was not demonstrated to have had any significant knowledge of the husband's financial affairs over and above receipt of a monthly amount which she applied to household expenses.
On behalf of Mr Hadeel it was submitted that since the wife had had the benefit of funds advanced to the husband, or an entity with which he was associated, then she should likewise share in any resulting debts.
I accept that the wife had the benefit of living in and housing the parties' children in a home which was registered in the names of both parties from the time of its purchase until she moved out in or about February 2022, save for the period she spent in Country MM. I am not satisfied that the wife's use and enjoyment of the Suburb LL property give rise to entitlements for third parties to claim against her interest to satisfy a debt owed to them by the husband.
In reaching the above conclusion I am satisfied that there is no evidence to support the conclusion that the funds which were advanced by Mr Hadeel were applied to the Suburb LL property. I am also required to have regard to the wife's substantial non-financial contributions over a significant period in reaching a conclusion about whether that part of the secured debt which cannot be satisfied by the husband's interests should be borne by the wife.

[93]

In order to establish a secured interest, Mr Gurutze needs to demonstrate that there was an authority to him to lodge a caveat giving rise to a charge or that another unequivocal representation created a secured interest. The first message which mentions security is dated 22 July and offers 25 per cent return payable 1 December 2021 and reads: "This investment is secured by property." This is not the opportunity that Mr Gurutze says he took up. The second representation in respect of security is on 12 August 2021. It refers to 25 per cent return and a 7-day term and offers the husband's parents' home as security and says "Can also offer [KK Street, Suburb LL] as security." That representation was repeated on 13 August 2021.
On 15 August 2021 Mr Gurutze sent the question mark response in response to the husband's message: "To make the investment more accessible to everyone I will allow you to invest 20k and receive 25k in 7 days." This message did not mention security.
On 19 August 2025 the husband sent a message which read in part "Anyway I have been able to tweak the investment. It is now 100% return. Payable Wednesday and you can take a caveat over my property. Just like a fellow investor did."
On 21 August 2021 the message from the husband represented that the investment ended at 3pm that day and involved selling the investor a "[RETAIL BUSINESS] share" and buying it back at twice the amount - "Happy to give you a caveat over my house as security."
On 24 August 2021 the husband sent a further message seeking additional funds with a return of 150% to be paid the following day. That message read "Security can be provided in the form of caveats on residential property."
The messages from the husband were received by Mr Gurutze but were plainly also directed to a larger group of people who the husband was seeking to persuade to send him funds.
There are no messages from Mr Gurutze which in any way engaged with the question of security. By not engaging with any of the messages, no specific property is identified as charged.
I am not satisfied that any representation in writing or orally created security in favour of Mr Gurutze. I reach that conclusion because both Mr Gurutze and Mr Hadeel were dealing with the husband at the same time arising out of the same entreaties by the husband to invest. The husband certainly said he could provide security and Mr Hadeel, in reliance upon that representation ensured that his advance was in fact secured while Mr Gurutze did not. On each occasion when Mr Hadeel signed documents in this period purporting to grant security, Mr Gurutze witnessed the documents. Mr Gurutze could not have been left with the impression that he had secured his own advances.

[103]

The husband's parents advanced $502,751.05 to D1 Pty Ltd at the time of the sale of their property at AV Street Suburb AX (late 2013).
The husband's parents' case at trial was that they had invested $500,000 in 2013 in a business operated by the husband and that they would receive profit. Neither the husband or his parents produced any documents which supported the contention that they had, in any formal sense, invested funds and received (or accumulated) profit.
They gave evidence that in 2018 when the husband acquired the Suburb LL property, the original investment was applied to the purchase price. Further, they claim that they paid monthly interest payments on the husband's behalf.
Both the husband and his parents say that these transactions occurred by D1 Pty Ltd paying monies from its accounts towards the acquisition and mortgage payments.
Annexed to the affidavit of the seventh respondent was a document dated 1 December 2013 and headed "Deed of Loan". Neither the husband nor his parents described the advance as a loan in their affidavits, so the document is inconsistent with their stated purpose (an investment). The wife (and other parties to these proceedings) challenged the authenticity of the purported loan document - contending that it had been created after the husband and wife separated.
The deed was between D1 Pty Ltd and the husband's parents. D1 Pty Ltd is not a party to these proceedings. The deed purported to grant a right to caveat property owned by the borrower. It is not suggested D1 Pty Ltd owned any real property.
The document cited an interest rate of 6 per cent. No documentation was produced to demonstrate that interest was ever calculated.
The husband referred to having kept "Excel spreadsheets" which tracked the investments of people (including his parents) in D1 Pty Ltd. No Excel spreadsheets were tendered.
The husband's mother indicated that she was aware that her "profits" were accumulating in the entity but neither she nor the husband ever indicated any figure referrable to these funds.
There was no evidence to suggest the husband's parents reported any income (whether paid or notional) from this source at any time between 2013 and 2018 (or after 2018).
I find that the husband's parents directed their solicitors to deposit the sum of $502,751.05 into the account of D1 Pty Ltd.
In the affidavit of the seventh respondent, the husband's mother's evidence says that the amount invested in the "[retail] business" was $500,000 but the deposit was $502,751.05. The $2,751.05 "was charged as associated fees" according to the affidavit. That evidence is difficult to understand, as on its face that would mean her son charged her $2,571.05 to receive the $500,000.
In addition, although not the subject of affidavit evidence, it appears as though the deposit which the purchaser of the Suburb AX property paid to the real estate agent on exchange was released to the husband (as opposed to his parents) and deposited into the account of D1 Pty Ltd on 22 November 2013. That much appears plain from the annexed bank statements.
The fact that the documentation refers to $500,000 when it is more likely that the amount advanced by the seventh and eighth respondents to D1 Pty Ltd was greater than $500,000 also casts significant doubt on the authenticity of the purported loan documents.
The husband and his parents say that in late 2018, the $500,000 which was said to have been withdrawn from a bank account of D1 Pty Ltd and applied to purchase of the Suburb LL property were the funds they had loaned to D1 Pty Ltd in 2013 and that they entered into a loan agreement creating security over the Suburb LL property.
Further the husband and his parents say they agreed that mortgage repayments to the mortgagee would be made from the funds of D1 Pty Ltd which the husband's parents say represented their retained profits in that company from the time of the original advance.
These agreements are said to have been embodied in a document entitled "Settlement Instructions and Further Loan Agreement". The document is drafted in retrospect. The money for the purchase having been transferred by D1 Pty Ltd prior to the execution of the document.
Curiously, the settlement instructions and further loan agreement document refers to the husband's parents funding the Suburb LL mortgage payments from "their Loan Account". The husband's parents gave no evidence about having a loan account in D1 Pty Ltd. The husband gave no evidence that his parents had a loan account in D1 Pty Ltd.
In addition, I reject the evidence of the husband and his parents that his parents paid the mortgage over the Suburb LL property. This evidence is inconsistent with the evidence which the husband gave in September 2021 (Exhibit 8): "I paid all the mortgage repayments, even after I transferred 50% of the title to her."
Apart from a document titled "Secured Loan Agreement" there is no evidence from 2018 consistent with the claim by the husband and his parents that the husband's parents' funds formed part of the deposit monies for the purchase of the Suburb LL property.
I am satisfied that the husband's parents provided funds to the husband's company D1 Pty Ltd in 2013. I am not satisfied for the reasons discussed above that they simultaneously entered into any written agreement.
Further, while the husband and his parents may have executed a document purporting to create security, for the reasons which follow I do not accept that it was signed at or about the time of the purchase of the Suburb LL property.
The husband said he and his parents entered into an agreement in late 2018, contemporaneously with the husband's purchase of the Suburb LL property. In reliance upon those documents, in late 2023 proceedings were commenced in the Supreme Court of NSW. The plaintiffs were the husband's parents and the defendant was the husband.
Ahead of those proceedings, the husband's parents lodged a caveat on title with the assistance of the husband and in August 2021, the husband's parents served a default notice on the husband which asserted failure to comply with the terms of the late 2018 loan agreement.
Neither the husband's mother or father had any explanation for why the default notice was not served until after the spouses had separated. It is dated 1 August 2021. Its first complaint is that the original advance was not repaid on 30 November 2019 (almost 2 years prior). Its second complaint is that the husband had transferred the property into the joint names of he and his wife (more than a year prior).
In early 2024 a consent judgment was entered in those proceedings in the following terms:

[107]

The husband's parents submitted that the order of the Supreme Court determines the issue in a manner which binds this Court.
There are a number of matters which persuade me that I am not bound by the consent order. Counsel who appeared on behalf of the seventh and eighth respondents contended that the consent judgment was a decision in rem and accordingly binding on the world at large.
The difficulty with that argument is two-fold. The first difficulty is that the order that the husband's parents be paid a sum of money is an order in personam.
The second issue arises from the manner in which the consent judgment was obtained. The consent judgment is reliant upon a loan agreement said to have been entered into between the husband and his parents. The validity and enforceability of that document was in question in these proceedings.
The husband's father accepted in cross-examination that he was unaware of the purchase of the Suburb LL property until some time after it had occurred. This is inconsistent with his having been requested to and having provided funds for its acquisition. The inconsistency is not addressed in the husband's case.
The parties to the Supreme Court proceedings are not the same as the parties to these proceedings.
The seventh and eighth respondents were joined to these proceedings because they are necessary parties. The wife's relief implicitly sought that this Court exercise state power to set aside that part of the Supreme Court consent order which gave the seventh and eighth respondents security. I accept that the wife's application is intrinsic to the disposition of the federal claim before me and accordingly, I have jurisdiction to consider the validity and enforceability of that consent order: Rizeq v Western Australia [2017] HCA 23; (2017) 262 CLR 1 at [14], [16], [21], [32], [63], [81] and [87]; ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at [55] and [68]; Valceski v Valceski [2007] NSWSC 440; (2007) 70 NSWLR 36 at [37]-[41] and [52].
On 2 June 2021 the husband and his parents attended at the Suburb LL property. There was an argument. The wife set out this event in her affidavit. After being served with the affidavits of the husband's parents the wife says she hunted for a recording she had made on her mobile telephone of the argument which took place that day. She found the recording and produced it at Court. The parties are speaking WW Language in the recording. I accepted the recording into evidence together with an agreed transcript in English of what was said by the parties. It is relevant to both the financial and parenting proceedings.
The content of the recording is consistent with, although not identical to, the account which the wife gave in her affidavit.
Of relevance to the claim of the husband's parents are the following excerpts:

[109]

The conversation is consistent with the husband having made a proposition to his parents at about this time that they could recoup the money they had advanced to D1 Pty Ltd by making a claim against the house. The difference in the figures quoted as owing support the conclusion that the agreement was not in place until after the parties' separation.
The submissions of the seventh and eighth respondents contend that the fruits of the Supreme Court judgment are a chose in action and hence property of the seventh and eighth respondents. I accept that a monetary sum ordered by a court has this character. However, the seventh and eighth respondents further submit this Court may not make an order contrary to s 90AK of the Family Law Act 1975 (Cth) that would result in the acquisition such property other than on just terms. The difficulty with that submission is that no party is seeking to extinguish the order which creates the monetary obligation. The relief which the wife seeks merely requires me to treat any liability to the husband's parents as being a liability of the husband, to the exclusion of the wife and to recognise (contrary to the assumption contained in the consent order) that no security was created.
In written submissions filed in advance of the hearing of the evidence, the seventh and eighth respondents argued that if the court were to find that the wife had actual or constructive knowledge of the equitable interest of the seventh and eighth respondents, then she took her interest subject to their interest. The evidence did not establish actual or constructive knowledge of any equitable entitlement.
I will return to the document "Secured Loan Agreement". The Agreement purports to have been entered into on 30 November 2018. As at this date the husband had not yet acquired his interest in the Suburb LL property, yet the Suburb LL address is given as his address. The agreement refers to interest payable by the borrower to the lender. The husband's confirmed in evidence that his religious beliefs precluded charging or receiving interest. The fact that the agreement provided for interest (notwithstanding his religious beliefs) was not addressed in the husband's evidence.
The "Secured Loan Agreement" was said to have offered a mortgage (Clause 7.2) and a charge over the property (Clauses 7.1-7.2).
The Secured Loan Agreement prohibited the husband from disposing of his interest and obliged him to notify his parents if he did. The transfer of the property into joint names would have been in breach of that clause - neither the evidence of the husband or his parents directly addressed this, except by the default notice issued significantly after the purported default.
When the husband parents lodged their caveat ([...]) it claimed a caveatable interest by virtue of:

[117]

The amounts set out above total $369,580. It is not plain from the evidence whether or not the Super Fund 1 had received a return on these funds from D1 Pty Ltd between 2 May 2016 and late November 2018. Mr S said in oral evidence no return was received from about mid 2018.
Mr S told the court that the Super Fund 1 entered a new agreement on 3 December 2018.
The wife submitted that although the document entitled "Secured Loan Agreement" was dated 3 December 2018 it was not actually executed on that day. On the balance of probabilities, for the reasons which follow, I agree.
The agreement describes the husband as the borrower and gives his address as the Suburb LL property when he was not resident at the property on 3 December 2018.
The Secured Loan Agreement refers to an advance on 30 November 2018 in the sum of $300,000. There is no transaction in that sum on 30 November 2018 in evidence. That is to say there is nothing to demonstrate that funds in that sum were paid by D1 Pty Ltd to the benefit of the husband personally or on his behalf on that day nor is there any document of the company to demonstrate that the funds which had previously been advanced by the Super Fund 1 were returned by the Company so that they could be loaned to the husband personally.
The Secured Loan Agreement made the funds repayable on 3 December 2019. There is no evidence of a request at that time or a deferral. In fact, the "default notice" upon which the fund relies is dated 1 December 2021. This is consistent with the underlying agreement being signed considerably after 3 December 2018.
Oral evidence of Mr S and Ms Ursila about execution of the deeds is not consistent. In cross-examination Mr S said he probably signed the December 2018 deed at his warehouse on 3 December 2018 and Ms Ursila was present. Ms Ursila said Mr S was not present when she signed the December 2018 Deed which was probably signed at her work or home and definitely not at Mr S's work.
Mr S gave evidence he did not always read all the documents the husband asked him to sign. This is consistent with the possibility that documents were signed by him, but he paid little attention to the date on which they were signed. Mr S said in cross-examination he served a default notice in 2019. He was reminded that the only default notice in evidence was dated 2021. He said he is bad with dates.
There was no evidence from the person who witnessed the agreement. Mr S was cross-examined about the circumstances in which he said the agreement was executed.
I accept that Mr S did in fact sign an agreement but I am not satisfied it was signed prior to, or proximate to, the time of the acquisition of the Suburb LL property. In reaching this conclusion I have had regard to the lack of any contemporaneous (primary or secondary) documents to support the withdrawal of the funds from D1 Pty Ltd and their payment to the husband in his personal capacity. I am prepared to conclude that Mr S believes in hindsight that the agreement was signed as it is dated, but all other evidence points to it having been signed significantly later - and I so find.
It follows that I do not accept that the agreement created security and while I accept the monies were advanced by the superannuation fund to the company, I do not accept that they were in fact subsequently withdrawn and reloaned - nor do accept that the funds became secured against real property.
It follows that I do not propose to disturb the orders of the Supreme Court, but I am unable to find in the circumstances of the case that the amounts which have been ordered are secured.

[118]

As indicated above, in respect of the indebtedness of the husband to the Super Fund 1, I accept that the amounts which were the subject of the Supreme Court order dated 29 July 2024 remain outstanding by the husband to Ms Ursila and the Super Fund 2. By consenting to the order, I accept that the husband accepted personally responsibility for amounts previously advanced to D1 Pty Ltd.
It remains in contention whether those amounts are secured.
Ms Ursila first provided funds to D1 Pty Ltd on 1 February 2015 in the sum of $250,000. The Deed of Loan governing this advance is in evidence. It is between Ms Ursila and D1 Pty Ltd. D1 Pty Ltd was to pay Ms Ursila a "monthly dividend" of 6%. The evidence does not establish whether this occurred. The agreement purported to be for a period of twelve months unless there was a new agreement. There was no new agreement in evidence.
A second deed of loan dated 1 November 2015 was in evidence. This referred to an advance by Ms Ursila to D1 Pty Ltd in the sum of $25,000. The term of the loan was 12 months unless a new loan agreement was concluded. There is no new agreement in evidence. The interest rate for the "monthly dividend" was given at 6 per cent.
A third deed of loan was in evidence. It was dated 1 September 2016. It was also between Ms Ursila and D1 Pty Ltd. The amount lent was said to be $50,000 and the interest rate 6 per cent. The term of the loan was twelve months unless a new agreement was concluded. There is no evidence of a new agreement.
Ms Ursila said, and the husband agreed, that a Secured Loan Agreement dated 15 November 2018 was signed by them. The wife challenges the authenticity of the Secured Loan Agreement in so far as she contends it was not signed at or about the time of the acquisition of the Suburb LL property.
The agreement refers to a sum of $150,000 which it contends the lender provided to the borrower on 15 November 2018. There is no evidence before the Court about a $150,000 transaction on 15 November 2018. The bank statements of D1 Pty Ltd do not reflect a transaction of this nature. The husband's bank statements do not reflect a transaction of this nature. There is no internal financial paperwork from D1 Pty Ltd to reflect this purported transaction.
The agreement indicates that the loan is for a term of 12 months.
At clause 7.1 of the agreement it reads:

[123]

The total advanced by the fund to D1 Pty Ltd was $224,846.84. Super Fund 2 entered into deeds of loan on each occasion. Each agreement specified it was for a period of twelve months unless the parties entered a new agreement and the interest rate was specified as 6 per cent. There is no evidence of the parties entering into subsequent agreements.
Ms Ursila gave evidence that the husband asked her if she could enter into a new agreement, the effect of which would be to take $200,000 from the funds provided by Super Fund 2 to D1 Pty Ltd and loan them to the husband in his personal capacity - secured over a property which he intended to buy in Suburb LL.
Ms Ursila says that she (as trustee of Super Fund 2) entered into a secured Loan Agreement on 30 November 2018. The agreement was in evidence. The wife challenges that the agreement was in place at the time of the purchase of the property, contending that it was signed later in an effort to create security.
There is no evidence of a transaction of $200,000 on 30 November 2018 in the bank statements of D1 Pty Ltd or any financial records of the company.
The agreement purports to provide security over a property that was not yet owned by the husband on the date the agreement was said to be concluded. The default notice was not served at the conclusion of the purported term of the loan - consistently with the wife's contention that the agreement was signed after the fact.
As discussed above, the evidence of Ms Ursila and Mr S about the signing of the agreement was not consistent.
I accept that Ms Ursila did in fact sign an agreement, but I am not satisfied it was signed prior to or proximate to the time of the acquisition of the Suburb LL property. In reaching this conclusion I have had regard to the lack of any contemporaneous (primary of secondary) documents to support the withdrawal of the funds from D1 Pty Ltd and their payment to the husband in his personal capacity. I am prepared to conclude that Ms Ursila believes in hindsight that the agreement was signed as it is dated, but all other evidence points to it having been signed significantly later - and I so find.
It follows that I do not accept that the agreement created security and while I accept the monies were advanced by the superannuation fund to the company, I do not accept that they were in fact subsequently withdrawn and reloaned - nor do accept that the funds became secured against real property.

[125]

At the conclusion of the hearing, I was informed by counsel who appeared on behalf of the wife that the Centrelink debt in her name could be deleted from the balance sheet.
The wife listed two debts to her brothers, $30,000 owing to Mr DD and $20,000 owing to Mr EE. In the wife's financial statement she claims loans totalling $35,000 to her brothers. The evidence does not address the timing, purpose or terms of any loan. While I have no basis to reject the wife's evidence about the existence and quantum of the amounts advanced I do not propose to have regard to it when I consider the net assets of the parties available for adjustment, just as I have excluded liabilities of the husband which appear to post-date the relationship of the parties, on the basis that it would not be just and equitable for the parties to share in these post-separation liabilities.
The husband listed an income tax debt for financial years prior to 2021 in the sum of $2,401,308.90. The husband said the debt had arisen because of irregularities in his recording of "investments" by third parties. I was not provided with any evidence of current personal indebtedness of the husband to the ATO. I accept that he may have a liability. On inquiry I was told that the husband has two current proceedings involving taxation. A proceeding in the Supreme Court of NSW brought by the Deputy Commissioner of Taxation and a proceeding in the Federal Court (in bankruptcy) with the Australian Taxation Office listed as defendant. I was not provided with any documents by the husband about either proceeding notwithstanding the duty of disclosure which the Rules prescribe. It would not be just and equitable to include the husband's estimate in the balance sheet for the purpose of considering the adjustment of the parties' assets. I accept that the husband's personal indebtedness may well significantly exceed his assets.
The husband listed as a liability the sum of $12,180,811 owing to "[YY Investors] (prior to 2021)." The basis on which the husband reached the conclusion about his indebtedness is not plain. I am aware that the husband sought "investors" who deposited money into the account of D1 Pty Ltd. There is no evidence about the terms and conditions of investment and no admissible evidence about the manner in which the company treated funds received by it. I accept that many individuals deposited money into a company of which the husband was the sole director and shareholder. The evidence does not establish personal indebtedness of the husband in that sum or otherwise. I do not propose to include that sum as part of my consideration of the net assets of the parties available for division. I am not, by that conclusion, finding that third parties did not, in good faith, entrust their savings to an entity associated with the husband - I am comfortably satisfied that occurred. However, the evidence has not established the husband is personally liable and I would be inclined in any event to assign any responsibility for that debt to the husband alone consistent with the principles in Biltoft & Biltoft [1995] FamCAFC 45; (1995) FLC 92-614 and Af Petersens and Af Petersens [1981] FamCA 50; (1981) FLC 91-095.
The husband included in the joint balance sheet the sum of $5,003,101 described as "Liability owed to Cryptocurrency Investors (after 2021)". Again, it is not plain from the evidence how the husband has reached the conclusion about indebtedness. It is plain from the evidence of Mr Gurutze that the money which the husband was collecting from third parties at this time was being placed in bank accounts of D1 Pty Ltd, another company "[ZZ Pty Ltd]" and bank accounts in the husband's own name. Again, I accept that the husband is likely to have received significant funds from third parties either personally or through a company, but it would not be just and equitable for any liability in this regard to be visited on the wife.
The husband included a Centrelink debt as a liability on the joint balance sheet. This debt appears in the husband's financial statement. There is no basis upon which it would be proper to include this debt, the origin of which is not established by the evidence, in the joint balance sheet and I propose to exclude it.
The husband lists a child support debt in the balance sheet. While it is important that the Court have information about what child support (if any) is outstanding, it is appropriately excluded from the list of the assets and liabilities of the parties for the purpose of considering adjustment because its inclusion in the balance sheet creates the very real possibility that a wife would in effect share in the liability in respect of funds owed to her by the husband - an outcome which would run contrary to the requirement that the resulting orders are just and equitable. It will be excluded.
The husband lists a debt to American Express in the balance sheet. The annotation says that the debt is from before 2021. Liabilities which existed at the time of separation and are referrable to the parties' joint expenditure or where funds have been applied to the parties or the children would ordinarily be included in the determination of the net pool of assets available for adjustment as between the parties. I accept that the husband had an indebtedness to American Express. I cannot be satisfied that the funds were applied to any expenses of the wife or the family on the evidence. The husband provided no evidence to suggest that this debt had been sought to be enforced by American Express. I am not persuaded that the above circumstances support its inclusion in the balance sheet.
The husband lists "various business loans (prior to 2021)." No further information is provided. I cannot be confident whether the husband has any personal obligation in respect of the debts for which he contends nor can I be satisfied that they are being actively pursued. I do not propose to include them in the balance sheet,
The husband lists an indebtedness to the AB Company in the sum of $28,478.11. There was no evidence before the Court about this sum except exhibit 34 which is a copy of reasons for judgment and orders in [citation redacted] - which included an order: "The respondent is to pay the Commission's costs as agreed or assessed." It would not be just and equitable for the wife to in effect share in the obligation to meet a personal costs order against the husband in unrelated proceedings and I propose to exclude this amount from the balance sheet.

[127]

The husband and wife do not agree about the value of either Motor Vehicle 2 (in the wife's possession) or Motor Vehicle 3 (in the husband's possession, albeit registered in Ms JJ's name). Neither seeks to disturb the ownership of those vehicles and I propose to delete them from the balance sheet.
The wife used the proceeds of sale from Motor Vehicle 5 ($5,000) which the parties owned prior to separation towards the acquisition of the car in her possession. The acquisition was otherwise funded by borrowings (which I have excluded). In those circumstances I do not propose to include the wife's car in the "joint balance sheet".
Having regard to the above findings, the only assets available for adjustment is the money paid into the Supreme Court (approximately $1,234,433.18) from the sale of the Suburb LL property. The husband does not seek any property adjustment, albeit he seeks that various liabilities be paid, the effect of which would be to ensure that neither the husband nor the wife received any funds from the net proceeds of the Suburb LL property.
I have found that the husband's liability to Mr Hadeel should be satisfied from half of the Suburb LL property proceeds. Any further amount owing to Mr Hadeel by the husband will remain a debt of the husband.
I have found that any liability of the husband to his parents will remain a debt of the husband.
I have found that any debt of the husband to Mr Gurutze will remain a debt of the husband.
I have found that any debt of the husband (or an entity with which he is associated) to Ms Ursila, Super Fund 2 and the Super Fund 1 will remain the debt of the husband.
There is simply insufficient money to meet the liabilities of the husband and the entities he has controlled.
I have had regard to the contributions of the wife over the length of the parties' relationship and post separation, a period now spanning in excess of twenty years, in particular her care of six (6) children in challenging circumstances.
I must also have regard to the husband's contributions. I accept that, from time to time during the parties' relationship, the husband was able to make financial contributions from his skill as a healthcare professional. The husband has otherwise engaged in a broad range of commercial activities which have resulted in significant indebtedness. I am satisfied that the husband's conduct, with which the wife had no involvement, but which has resulted in indebtedness, meets the definition of reckless wanton and negligent. I recognise that the husband will have significant debt including that created by my orders, but the circumstances do not warrant the debt being shared with the wife.
When I view the contributions of the parties holistically, I am satisfied the wife's contributions were significantly greater than those of the husband.
I must also consider the matters which are raised by s75(2) of the Act. The wife is responsible for the care of the parties' five children, although I accept Mr V has just turned eighteen. The parties' youngest child is only six and so the wife's obligations to provide care will continue for at least the next twelve years.
The wife has not been in receipt of any significant child support and there are arrears. On the available evidence it would not be anticipated this will change in the near future.
The husband also has financial responsibilities to his children with Ms JJ. I accept the husband's current income earning capacity is impacted by the conditions which attach to his ability to work as a healthcare professional. If he obtains work, he will have a higher income. I find his earning capacity is greater than that of the wife. The husband has repartnered and his partner has employment.
I have found the husband is liable for damages. I am aware he owes child support, may owe tax, has an outstanding costs order against him and has a large number of liabilities which third parties may or may not choose to enforce. He is not in a strong financial position.
On balance, a consideration of all matters in s79 and those relevant matters in s75(2) persuade me that the only order which would be just and equitable as between the husband and wife is an order which provides the wife with half the amount paid into the Supreme Court. It follows that no order will be made in favour of the husband (as he sought) but nor will any of the funds be allocated to payment of his debts save and except the secured debt to Mr Hadeel. I accept the husband will have significant other debts including that which arises from my findings about Mr Gurutze's claim.
This will leave many of the husband's creditors significantly out of pocket. Nothing in my judgment has the impact of extinguishing existing orders, as outlined above, it has been predominantly concerned with determining whether or not the liabilities were secured.

[132]

The children expressed their views to the family report writer. Mr V, who was 16 years and 5 months at the time of interview, explained a deterioration in his relationship with the father and paternal family referable to his having witnessed the father's treatment of his mother.
Mr V described attending time with his father as a de facto supervisor to ensure the safety of his younger siblings.
The children's mother has obtained psychological assistance for the older children. The notes of their treating psychologist are in evidence. The notes record views which are similar to those expressed to the family report writer.
Mr V has spent most sessions of counselling discussing his frustration and disappointment with his father. Mr V has told his counsellor he experiences his father as manipulative. He asked his father to return $4,000 which Mr V said his father had taken so that Mr V could apply those funds to surgery for an injury. Mr V was frustrated to learn that the father had travelled to Country AC when he indicated he did not have funds to return to Mr V.
X is consistent in her report to her counsellor that her father speaks poorly about her mother, that she witnessed violence inflicted on her mother by her father, that she suffers nightmares, that her father has a temper and has hit her. Her counsellor recorded in May 2025 "[i]t seems that the visits with her father are of no emotional benefit to her as she is building resentment towards him."
W's counsellor recorded: "...every Sunday from 1:30 to 4:30 pm they have to go and see their Dad which she doesn't like and doesn't want to see him and they are forced to by Law."
I am persuaded that the older children's views should be given significant weight and this is recognised by both parents. The older children will be at liberty to spend time with the father should they elect to do so. I do not propose to make any order requiring time but nor do I propose to make any order restricting time.
Both Y and Z spoke to the Court Child Expert who recorded [84] - [85]:

[136]

The mother's evidence is that on 3 April 2021 the father grabbed her by the arm and threw her on the couch. The father's affidavit contains a general denial that he was ever violent towards the mother (save in respect of an incident which the father says involved him grabbing the mother's mobile phone).
The mother says that on 26 April 2021 the parties argued. The wife says the topics of the argument were "his new wife" and the way in which the husband had "treated me throughout the marriage." She says that during the argument he justified his conduct by telling the wife that she was a "woman of faith" who could handle trials and hardships. The mother said she pushed the printer which fell to the floor which precipitated the husband yelling and pushing her to the floor repeatedly. She said this escalated and he hit her while on the ground and "cuss[ed]" at her. The mother said the children who were present began to cry and scream at the father to stop. The father said he did not push or touch the mother. The father said the mother lost her temper because the father had told family members about his marriage to Ms JJ.
The mother also gave evidence that the father's current partner reported to her that the father had hit her while she was pregnant with their first child.
By way of relevant background - the father met his current partner in about 2019 when he was 49 years of age and she was 17 years of age. The father employed Ms JJ in one of his businesses. Ms JJ had been (or was) in out-of-homecare. Ms JJ told the Court that during this period the father procured and shared drugs with her.
During cross-examination, the father's partner accepted that the father's conduct (in particular while they were in Country AE in 2021) scared her. It is unclear whether the father was acutely unwell or suffering from drug-induced symptoms, but he accepts his conduct was erratic.
I am conscious that police charged the mother in respect of an altercation between the father's partner, Ms JJ, and the mother which occurred at the Suburb LL property in early 2022. The mother was charged with 2 counts of common assault and 2 counts of contravening an apprehended violence order. Those charges were dismissed in reliance upon the provisions of s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The police records (Exhibit 5) acknowledge that the video footage demonstrated the mother being pushed by the father and Ms JJ. The footage did not depict the mother being injured when Ms JJ grabbed her - causing a wound to the mother's neck. I consider that I have had the benefit of considerably more evidence than was available to the police when the mother was charged. While I accept that the mother did engage with the father and Ms JJ, I do not accept that she was the aggressor. She was seriously injured during this incident.
The father was charged with an assault on the mother arising out of events in late 2021. The amended fact sheet records that the father grabbed the mother's phone out of her hands. The fact sheet says (in part):

Hamdan & Alzahrani (No 2) [2025] FedCFamC1F 650 (18 September 2025)

At a glance

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Judgment (161 paragraphs)

Legislation Cited (5)

Cases Cited (7)