Hendrix & Haroldson [2025] FedCFamC1F 269 | Case summary

Hendrix & Haroldson [2025] FedCFamC1F 269 | Case summary | Zoe

[56]

Each of the parties had been represented at various times since proceedings had commenced in 2021. However, by the time of the trial both parties were unrepresented. It is not intended as a criticism of either party, but it should be observed that for each party English is their second language and while both endeavoured to navigate the relevant statutory considerations in presenting their evidence, there were deficits in the evidence each presented in support of their respective cases.
The evidence was at times piecemeal and inadequate. The evidence was presented in a haphazard and, at times, chaotic way. At one point the father sought to discontinue his application in the mistaken belief that the mother's case would cease as a consequence of this action. The consequence of his oral application was explained to him, and he was asked to see the duty lawyer. He subsequently withdrew the application.
There were significant allegations and counter allegations of failures to comply with the obligation of disclosure. The husband sought to tender 2,200 pages of disclosure documents served late on the wife. The tender was refused and the husband was directed several times during the trial to prepare a bundle of relevant documents to tender. He failed to compile the documents as directed. On a number of occasions, he repeated his attempt to tender the whole bundle without identifying the documents, how they were relevant, or when they were disclosed to the wife.
Interpreters were offered to the parties. The husband declined the assistance. The wife had the assistance of an interpreter during the trial to interpret for her if she required particular evidence to be interpreted.
At the commencement of the trial the parties indicated agreement in respect of a number of items on the competing balance sheets. During the trial the parties appeared to resile from that position necessitating the re-opening of evidence to permit the tender of documents in support of purported values.
These are just several of the difficulties the parties and the Court faced in hearing and determining the matter. Both parties were employed at the time of the trial, but each failed to engage the services of lawyers to assist them, despite having some capacity to fund representation.
The matter had been listed as ready to proceed and had been in the Court list for some years thereby requiring it to be finally determined. No party sought to adjourn the final trial despite these difficulties.
For the reasons set out herein and doing the best that could be done based on the evidence, I find that the property orders made are just and equitable and that the parenting orders are in best interests of the child.

[63]

Parental responsibility is defined at s 61B of the Act. According to s 61C of the Act, each parent has parental responsibility for the child and the parents are encouraged, where it is safe to do so, to consult each other about major long-term issues in relation to the child having regard to the child's best interests pursuant to s 61CA.
The Court has the power to make parenting orders that allocate the responsibility for decision-making to the parties jointly or solely in relation to all or specified major long-term issues under s 61D(3). The term "major long-term issues" is defined at s 4(1) of the Act to mean issues about the care, welfare and development of the child, including the child's education and health.
As referred to above, and to their credit, the parties were able to reach agreement about orders for parental responsibility. The orders sought by the father and the mother regarding parental responsibility for the child are ostensibly seeking the same outcome; the father to have decision-making responsibility for the child's education and the mother to have decision-making responsibility for the child's health.
It was opined by the Court Child Expert ("CCE"), and I accept on the evidence, that the parents have a dysfunctional and hostile attitude towards each other. Even in Court it was difficult for them to contain the contempt with which each view the other.
Despite this observation, the CCE recommended the father to have sole decision-making responsibility for decisions relating to the child's education and the mother to have sole decision-making responsibility for decisions relating to the child's health, as being in the child's best interest. This included both parents being at liberty to seek information from either health and/or education providers. The CCE recommended that the parties should hold shared decision-making responsibility for the outstanding decision-making areas. I accept the opinion of the CCE and note the consent of the parties for such orders.
Despite the hostility toward each other, given the agreement reached and the age of the child, I am satisfied that the orders as agreed in respect of decision-making are in the child's best interest and I make the orders as sought by consent.

[69]

The main aspect of the dispute between the parties is the time the child should spend with his parents during school terms and school holidays. There were issues in dispute in respect of ancillary orders regarding special days, communication, non-denigration and other orders that were not agreed.
For the reasons that follow the child will spend equal time with his parents both during school term and during the school holidays and I make specific orders in respect of the balance of the orders sought. In determining these parenting arrangements, the relevant s 60CC factors have been considered.
The child currently spends time each Friday afternoon until Monday morning and each Wednesday and Thursday afternoon after school until 8.00pm with the father. The rest of the time is spent with the mother, in accordance with Orders made on 18 September 2023.
The father sought orders that the child spend time with the mother during the week, and the mother's orders contemplate a more equally split allocation of time including that the child spend alternate weekends with each parent.
The father sought orders for the child to stay with the mother from Monday morning to Wednesday afternoon each week and spend time with the mother every third weekend during the school term. He contended this was a nine-day/five-day split of the time. He sought the same arrangement during the school holidays.
The mother sought orders that the child live with both parents on a shared care fortnightly basis, involving the child spending time from Monday after school until Wednesday before school with the mother, from Wednesday after school until Friday before school with the father, and alternating weekends with each parent.
The mother sought for these spend time arrangements to change to a week about arrangement upon the child commencing Year 9 in 2027.
The mother sought orders for school holidays, special occasions, communications changeovers, extra-curricular activities, information sharing, authorisation, non-denigration, passports and overseas travel.

[71]

There were a number of reports each party made to the Department of Communities and Justice ("the Department"). Both parents had complained that the child had been exposed to physical abuse due to excessive discipline and neglect, inadequate supervision, and that the child had been exposed to violence in the care of the other parent.
In 2019 there was an incident where the father kicked the child in the leg during an argument with the mother when the child had said "don't talk to mummy like that." He was charged by the police and served with an ADVO.
In 2023 there was an incident when the child failed to meet his mother after school as planned. He had gone to the father's home and was using a computer there. The father was overseas at the time. The mother became worried and contacted friends as the child was not replying to her calls and texts. When she located him it was dark. The mother said that she hit him with a water bottle and damaged a computer screen. She agreed she had reacted in this way and accepted that it was not child focussed.
The father was in Country N at the time of this incident and upon his return he took the child to the police to report the incident, after which the mother was charged.
Both incidents illustrate that the child has been directly exposed to family violence by each of his parents.
As expressed at [77] of the Family Report, the CCE was of the view that "neither of the parents holds a genuine fear of the other, and that family violence is not a significant risk factor for consideration in this matter."
The reality is that many of the risk issues arising from the child being left home alone and unsupervised are now less significant as he is reaching adolescence. Each parent seeks that the child spends time with the other parent. It follows that neither can be contending the child is at physical risk in spending time with the other parent.
The mother complains that the father lacks balance in his parenting of the child. She gave an example of the father's decision to withhold the child from school for several weeks to study long hours in the lead up to a selective exam for entry to the Y School program.
The father rejected the criticism and maintained that he was appropriately assisting the child with study in the lead up to testing for entry to Y School, where he has been offered a place. He explained that the child missed three out of six weeks of school and in that time he was studying 10 hours a day. He did not agree that missing school, including the social elements of the school, in conjunction with the intensity of such a study routine for a child aged 11, may not be in the child's best interests.
There was a history of late arrivals to school when the child was in the care of both parents as noted by the CCE. The child commenced high school at the beginning of 2025. As he is now more independent by reason of his age and that he is attending high school, school attendance and arrival time is more likely to be within his control. I do not consider the history of late arrivals at school as a significant matter in the determination of orders that are in the child's best interests.
The CCE identified a risk to the child of his exposure to the hostility between the parents and their poor attitude toward each other and the deleterious impact of this exposure on him. The parents present as intelligent and hard-working individuals, however both parents' lack of insight as to the impact on their child of their hostility toward each other is striking and concerning. I give weight to the CCE's opinion of the risk to the child's psychological health.
The CCE opined that the father has serious parenting deficits in his attitude toward the mother. Her concern was that the father may drive a wedge between the mother and the child to the extent that the child may reject his mother in years to come. The CCE opined that this would be a poor outcome for the child and could result in him having an increased risk of mental health problems, underachievement in school, and create difficulties in forming and maintaining healthy intimate relationships in his adult life. I accept her evidence as to the risks that this exposure may have upon the child.
The CCE stated at [53] "[the father] was highly dismissive of [the mother's] academic abilities and her views on education" and reported at [43] that "[the father] acknowledged that he has set a poor example for [the child] about how relationships should be conducted."
The father's oral evidence highlighted the poor attitude he held toward the mother. He said that her academics were "so bad" that the mother cannot assist the child in education. In submissions, the father said that it would be in the child's best interests to not believe Country AA culture. He spoke about the political climate in Country AA and commented that he doubted the "whole nation" were honest people. These comments, in circumstances where the child's mother is of Country AA heritage, illustrate the concern identified by the CCE. The father struggled to identify any positive attributes of the mother, and he accepted that the child would be aware of how the father viewed the mother.
The mother was less overt in her attitude toward the father but also displayed disdain to the father during the trial in some comments she made.
An example of the high conflict between the parties occurred only two weeks prior to the trial when the mother attended the house to deliver a parcel for the child in late 2024. She attended with a friend while the father was out shopping. While she was at the home, she took photos of the house in the presence of the child knowing that the child was aware of the imminent Court proceedings. The father's response to discovering the mother's conduct was to text the mother and tell her she was being reported to the police for trespass.
These events occurred well after the parents had the benefit of the Family Report and the benefit of knowing that the child had reported that he would like it if they could be "more peaceful." The child's express wish has fallen on deaf ears as neither parent has shown the capacity to modify their negative behaviour toward the other or behave in a manner that is "more peaceful." They both choose to escalate incidents of conflict and threaten to involve the police.
Each of the parents, by their conduct, have displayed a lack of insight as to the potential detriment to the child of such a highly conflictual relationship. The continuance of such high conflict reflects poorly on each of the parents insofar as showing any insight or capacity to change their behaviour.
I accept the opinion of the CCE that the father's negative attitude toward the mother may serve to damage the relationship between the child and his mother, as the child is at risk of rejecting the mother in years to come if he is overexposed to the poor opinions. The mother's attitude to the father is also poor. I also find, on the evidence, that each parent has a poor attitude toward the other and each has, in the past, exposed the child to that attitude.
Equal time orders have the benefit of ameliorating the identified risk by providing the child with a balance of time with his parents and not overly and disproportionately exposing the child to the negative views held by one parent which may influence him.

[74]

The father was very firm in the arrangements being nine nights with him and five with the mother in both school term and holiday time, as he interpreted that this was what the child had expressed to the CCE. Although it was reported that the child had expressed a desire for "more time" and that the nine nights with the father "would be desirable", it was not clear that this expression was intended to include school holiday time.
The father was steadfast and rigid in his position that the child should spend time with him every weekend and should spend time with the mother five nights a fortnight but not during the weekends. Although the child had told the CCE he wanted some weekend time with his mother, the father sought that if weekend time was to be ordered, it should be only one weekend in three. He could not explain why this was in the child's best interests other than that he contended his proposed orders sought would give the child "a voice."
The difficulty with the father's attitude to the child's wishes is that the father presented as rigid in his view and motivated to give the child a voice when it aligned with his own views, but not necessarily otherwise. For example, the father said he was aware that the child would prefer to attend Y School as many of his primary school friends including his best friend will be attending that school. The father explained that he told the child that only children whose parents do not care and do not pay fees go to that school. The father was firm in his view that the father's preferred school of Z School's would be best for the child.
Another example of the father's rigidity was illustrated by his response to the minute of orders sought by the ICL. The father said the orders sought by the ICL of equal time was not what the child wanted despite counsel for the ICL advising the court that the orders sought were consistent with the child's express wishes when the ICL spoke to the child shortly before the hearing.
The father said he had discussed the ICL's proposed orders with the child when he received them and gave evidence that he asked him if what was proposed was "his real voice." The father showed no appreciation of the pressure that his questions about what the child had expressed to the ICL would place on the child.
The views expressed by the child to the CCE and to the ICL are something I take into consideration and give some weight to, given his age. No one factor, however, is determinative.

[76]

I have addressed the issue of the developmental and psychological needs of the child above in the context of the concerns identified by the CCE, which I accept. However, I am satisfied on the evidence that both parents have the capacity to provide for the child and will provide for his cultural, developmental, psychological and emotional needs.
Both parents presented as very hard-working and wanting the best for the child. I have no doubt that each parent loves their son and that he has a close and loving relationship with both his parents.
As observed by the CCE, each parent has the capacity to provide for the developmental, psychological, emotional and cultural needs of the child. However, each also lacks insight into the impact of some of their negative behaviours and hostility toward each other on the child.
The father is from Country N and has strong ties to his father and sister there. He wishes to take the child to visit the paternal grandfather without delay as his grandfather is in his nineties. The child has travelled to Country N with his parents. Such travel is not opposed by the mother.
The mother was born in Country AA and teaches the child Country AA cooking and language. She is now a health professional working in Australia but also wishes to travel internationally so that the child can experience international travel and have a connection to her culture.
There can be no doubt each parent will assist the child to have an understanding and appreciation of their own cultural background. The father will promote and encourage him to understand his Country N background and the mother will promote and encourage him to understand his Country AA background.
The mother's international travel was not opposed, although the father maintained that if the mother were permitted to travel with the child for two weeks he should spend four weeks of holiday time with the father.
The father could not explain why it was in the child's best interests to spend more holiday time with him than with his mother. As referred to above, the evidence supports a finding that the father's attitude toward the mother, in both his conduct and in his evidence, was dismissive and critical of her and I accept the opinion that if the child is exposed more to this attitude, which it appears cannot be curtailed, it may impact his relationship with his mother.
The CCE's concern that the father may drive a wedge between the mother and the child due to his poor attitude toward her is equally relevant to school holiday time as it is to term time.
There is no evidence that supports a difference in time during the school holidays and accordingly no basis for the child to spend more holiday time with one parent than the other.
I accept and am persuaded by the observations of the CCE. I take the risk as to the child's psychological health into account in the determination of the time with orders that are in the best interests of the child, both during school term and school holidays.
The CCE was of the view that it would be in the best interests of the child to spend equal time with both parents, inclusive of one full weekend each fortnight with each parent. The CCE suggested the spend time arrangements could be so that the child spends Monday to Wednesday and alternate weekends from Friday to Monday with the mother, and each Wednesday to Friday and alternate weekends from Friday to Monday with the father.
That recommendation is supported by the evidence as it ensures the child is able to spend regular time with each parent and ameliorates the risk of the child being overly exposed to a poor attitude towards the other parent. Consequently, this reduces the impact on the child's relationships with either parent, thereby reducing the identified risks to the child's psychological wellbeing as identified by the CCE. Although such orders are not entirely in accordance with the views expressed by the child in January 2024, they accord with the views more recently expressed to the ICL.

[77]

In addition to the consent orders reached with respect to Mother's Day and Father's Day, I make orders for the child to spend special occasion time and other ancillary orders. There were no submissions in support or opposition of these orders. However, I have adopted the recommendations of the CCE because I accept that the child will derive benefit from spending time with each of his parents on special days. I am satisfied that the orders proposed will remove any potential conflict as to times and days, thereby reducing the child's potential exposure to the conflict between the parents.
I am also satisfied that orders permitting the child autonomy in respect of communication with each parent and in respect of his extra-curricular activities are appropriate because of his age and the poor communication between the parents.
No party made submissions in respect of who should hold the child's passport. I have ordered that the mother does so because I accept her evidence that she is supportive of the father travelling with the child overseas and I accept she will comply with the obligations of these orders to provide the passport to the father at times of overseas travel. It is otherwise appropriate for the parties to share in the costs of passport renewals as they each earn a similar income.
I decline to make the mother's proposed order for family dispute resolution. On the evidence before me the parties had no capacity to reach agreement on matters in which they held a firm view and to impose such a process in the circumstances is futile.
There was no evidence as to the parties means of communication. The mother sought that the parties communicate through an app called the "Divvito" app. The father told the CCE they have minimal communication and that the parents are like strangers. To have a consistent means of communication will be in the child's best interest and the CCE recommended a separate parenting App to be used for all essential communication regarding activities and other matters involving the child. Accordingly, I make the order sought by the mother.
The parties have reached consent with respect to the decision-making orders for the child, including consent around ancillary orders for each party to access and receive any information with respect to the child's education and health. In the interests of providing sufficient clarity to the parties I also make the mother's orders sought for each parent to be listed as the emergency contact on any school, medical or extra-curricular forms.

[80]

The husband made submissions arising from the decision of Stanford v Stanford (2012) 247 CLR 108 that it was not just and equitable to alter the parties' property interest. He adopted an alternate position seeking orders adjusting their property 85 per cent to him and 15 per cent to the wife, while maintaining that the E Street property should not be included in the pool. The wife seeks orders adjusting the property interests of the parties and seeks an equal division of her contended property pool.
The starting point in any financial case is to identify the legal and equitable title to the parties' assets and make a finding as to whether it is just and equitable to make an order within the terms of s 79(2) of the Act before determining what the final order should be.
As set out by the Full Court in Bevan & Bevan [2013] FamCAFC 116; (2013) 279 FLR 1 at [85] "there will be a range of cases ... where determining whether it is just and equitable to make any order altering property interests will not be so clear cut and will therefore require not only separate but very careful deliberation."
The parties' financial interests were entangled during their relatively short relationship, and as set out below, they each made contributions, both financial and non-financial, during this time. There is a child of the relationship who pursuant to these orders will spend equal time with both of his parents.
In the circumstances of this case summarised above and set out in more detail below, the justice and equity requirement is readily met. Making an order altering the property interests of the parties is a necessity for a just and equitable outcome of the competing claims.
The approach then to be adopted in a financial adjustment case pursuant to s 79 of the Act is to follow the four-step process.
It is necessary to first identify the legal and equitable interests of the husband and the wife, consider what (if any) liabilities each of them has, and consider any superannuation and financial resources in the names of the husband, the wife, or either of them, at the date of the hearing.
It is then necessary to assess the contributions of the parties and determine a contributions-based entitlement having regard to the matters set out in s 79(4) of the Act insofar as they are relevant to the facts in this case. The assessment of contributions is usually approached in a holistic fashion.
The third step is to identify and consider relevant matters under s 75(2) of the Act to determine such adjustment as is necessary to the contributions-based entitlement.
The final step requires the Court to consider the effect of the findings and determine whether the orders are just and equitable in all of the circumstances.

[84]

The wife contended that there were numerous instances of non-disclosure, late disclosure, a failure to provide the records necessary to have the entities valued (being a further breach of his obligations for disclosure) and a general failure in his duty of disclosure.
The wife alleged the husband's failure to disclose was of substantial significance and created injustice and prejudice to her as he had control of the relevant assets, bank accounts and the company records such that the failure in his duty to disclose meant she had no understanding of the history or management of any asset since separation. She contended that she was consequently unable to obtain valuation evidence and could not understand the value of the assets of the parties.
The wife agreed the husband had complied with aspects of the single expert appointment orders but that the state of the records provided, and the incomplete disclosure, left the proposed expert unable to complete the valuation. She then abandoned her attempts to have the disputed assets valued.
Orders were made on 17 October 2024 listing the matter for final trial for four days commencing on 28 November 2024 in respect of both parenting and property. At this time, the parties were ordered to file a single consolidated trial affidavit containing their evidence and any affidavits of witnesses they relied on together with their financial statements by 18 November 2024.
The husband filed his affidavit on 18 November 2024. The affidavit was 13 pages with four pages annexed attaching an ATO notice of assessment from 2022, and a three-page document titled "[Exhibit MRH - 1]-1 list". The three-page document was an index referencing approximately 2,200 pages of documents. The documents were not referred to in the body of the husband's trial affidavit and were not annexed because the husband said he was unable to upload the documents at time of filing.
The husband sought to tender and rely on the 2,200 pages of documents, many of which the wife said were emailed to her for the first time on 22 November 2024, being less than one week prior to the commencement of the final trial.
Given the husband was an unrepresented litigant I requested on several occasions during the trial that the husband identify the relevant evidence on which he sought to rely on from the 2,200 pages of documents. He was requested to produce a refined bundle of documents. Given the wife's contention that she had not previously seen the vast majority of the documents, I directed that he also identify when the documents had been disclosed to the wife. It was explained that he should then individually tender any relevant documents on which he sought to rely.
The wife objected to the husband relying on many of the documents due to the late disclosure and the prejudice it created for her. A number of bank records of the husband and of some of the entities the husband controlled, were produced for the first time in October 2024 and others were produced during the trial, but after cross-examination had concluded. Many of these records were bank records that the wife's previous lawyers had sought disclosure of in mid-2023.
The husband contended that he had sent the wife many emails attaching disclosure documents in the weeks prior to the trial. It remained unclear precisely what had been disclosed by the husband and at what time.
A number of bank statements addressed to The Director of B Pty Ltd t/as BB Pty Ltd became Exhibit 63. These were statements between October 2022 and October 2024 for an ANZ account ...15 and statements between December 2022 and November 2024 for an ANZ account ...07.
Bank statements for the period between 25 February 2016 and 16 February 2023 addressed to X with the account details recorded as "[X]", BSB ... account ...69 (...69) became Exhibit 64. The wife contended that she had not seen these accounts prior to the trial. The husband did not produce statements from this account after February 2023. The non-disclosure in respect of account ...69 relates to a period of almost two years. This account is where the rental income derived from the E Street property was deposited.
In submissions, the wife identified that Exhibit 64 recorded regular transfers of funds from account ...69 to an account identified as "[CC Pty Ltd]". There was no evidence before the Court and no disclosure of the relevance or purpose of the transfers to "[CC Pty Ltd]." The husband had given no sworn evidence nor provided disclosure of where the rental income received was being dispersed. The wife stated that she was confused and did not know who CC Pty Ltd were and was previously unaware of any such entity.
In June and July 2023 there was correspondence between DD Lawyers, for the wife, and EE Lawyers for the husband, where the wife requested disclosure of relevant documents including several identified bank accounts "from 12 months prior to separation until June 2023." Those accounts were NAB ...69; ANZ ...15, ANZ ...07; NAB ...06; NAB ...85; CBA ...34; CBA ...34; Westpac ...56; Westpac ...59; Westpac ...86 and J Pty Ltd ...53.
In responding to that request EE Lawyers provided limited disclosure. In respect of the account NAB ...69, disclosure was provided from 5 February 2023 until 5 June 2023. In respect of the ANZ business account ...07, disclosure was provided from 17 January 2023 until 17 May 2023. In respect of the ANZ account ...15, disclosure was provided from 17 July 2013 until 17 April 2023. In respect of CBA account ...34, disclosure was provided from April 2013 until January 2015 and from 25 January 2023 until 2 June 2023. The husband's solicitor advised additional disclosure "would be provided." There is no evidence that any additional disclosure was provided and the wife deposed that it was not. His solicitors also advised that the sale and purchase of assets were "done through [B Pty Ltd]."
In a further letter dated 28 July 2023, the wife's solicitor again requested disclosure. The request specifically identified the banks, the account details, and the periods requested and sought disclosure of documents relevant to the company B Pty Ltd and in respect of Hendrix's Family Trust.
Each party became unrepresented in August 2023. The husband's lawyers filed a notice of withdrawal as lawyer on 30 August 2023 and the wife's lawyers filed a notice of withdrawal as lawyer on 29 August 2023. The wife was later represented for short periods of time but was unrepresented at the trial.
Despite the husband's assertion that he had provided disclosure, he failed to provide any evidence of further disclosure having been made between the July 2023 request and the documents sent to the wife by email in the period shortly prior to, and over the course of the trial.
The index annexed to the husband's trial affidavit referred to various financial records in general terms such as "Wife CBA A/C" and "Accounting NAB A/C statement." The index also refers to "trust fund trace" accounts from 2002-2008. The index did not include any apparent reference to the bank accounts that were subject to the requests by the solicitor for disclosure. The wife accepted that she had received some emails with partial disclosure of some accounts such as the company bank records that were emailed to her on 28 October 2024 but denied she had received full and frank disclosure as required.
Given the history of requests made and lack of evidence of full disclosure of historical documents and bank accounts as sought, together with the concession made by the husband as to the failure to make disclosure from mid-2023, I find that the husband failed to provide full and frank disclosure and failed to make timely disclosure of relevant documents and records. He failed to produce many of the documents identified in the request from the wife's solicitor and he failed to produce documents relevant to the financial activity of the trust, the company, or personally through the requested bank statements. He failed to meet his ongoing obligation to make full and frank disclosure as required by the Rules.
The husband offered no explanation for this failure other than that the matter was listed quickly and his concern as to the risk of the mother's "improper use." At the time of listing both parties confirmed the matter was ready for hearing and raised no issue with the timetable for filing the trial material. Both parties had been reminded of their duty of full and frank disclosure at a number of the directions hearings prior to the matter being listed. The husband has not convincingly explained why he failed to make disclosure and failed to make timely disclosure of the relevant records. I do not accept the explanation given for not disclosing due to a concern the records would be used for an improper purpose as contended. There was no evidence to support such a concern nor was any alleged improper purpose identified.
The extent of and sheer volume of the documents that were disclosed very late, together with the piecemeal and partial disclosure provided, prejudiced the wife in her capacity to understand and respond to the financial circumstances of the parties. She simply had no understanding of the operation of the company or of the financial matters relevant to the alleged trust including the use made or amount of rental income received. Each party is entitled to a fair trial and should not be subjected to a trial by ambush.
The effect of the husband's non-disclosure and late disclosure as set out above has been that his income, the history of transactions from the bank accounts and the use of the funds in the sole control of the husband remains opaque. Consequently, I can make no finding as to the value of the interests of the husband in assets including the entities he controls nor in bank accounts.

[114]

The husband asserted the property is held on trust. He bears the onus of proof. I am not satisfied on the evidence that the property was held on trust as contended by the husband, nor can I be satisfied as to the terms of the trust. The property is therefore included as an asset and will be included in the property pool for the reasons that follow.
The husband, as I best understood his position, contended that he had gifted the property to the Hendrix's Family Trust ("the Trust") in 2008 for the benefit of his father and son, and as such it should not be included in the pool of assets. The husband contended that although the Court does have the power to include the properties being held on trust in the pool of assets in accordance with the principles of Kennon & Spry [2008] HCA 56; (2008) 238 CLR 366, the Court should not do so in the circumstances of this relationship.
The wife, as I best understood her position, contended that the property was not part of the Hendrix's Family Trust. I understood her contention to be that the property was purchased by the husband, the property remained held in his name, he had treated the property as his own until separation, he had the benefit of the rental income generated from the property, he was in control of the property and received the income it generated. She also contended that she had made contributions to the mortgage and to renovations and maintenance of the property during the relationship.
The husband gave detailed evidence as to the purchase of the property in 2002, including the borrowings made and payments of mortgages and loans and gave detailed evidence of his role as an owner-builder of the property, including details of renovation works he carried out.
The husband gave no evidence at all in respect of the circumstances of the alleged transfer of the property to the trust in support of his claim that the property had been gifted by him and had, since 2008, been held on trust nor did he give evidence as to the income received and treatment of it.
The only direct evidence from the husband in respect of his claim that the property is held on trust was at [82] of his affidavit where he deposed "I defend the trust's income in court or tribunal, for the [Hendrix's Family Trust], according to the trust deed and variation of trust deed." He deposed at [85] "From 2008 to 2024 I manage the trust's property, carry repair and maintenance work, those work reflect the trust's tax return from 2008 to present." He deposed at [91] "I hold trust asset for fixed income and capital beneficiary, obligation to distribute income and capital, I AM EXCLUSIVE person of the trust." He deposed at [92] "I did not gain benefit for the trust, my contribution will reward much better elsewhere. The trustee duty is a burden to me rather than benefit, I hold the position for the beneficiary who I love most and willing to donate myself for their future."
Despite the absence of direct evidence, the husband sought to rely on certain records in seeking a finding that the property was Trust property and that it should not be included as an asset of the parties.
The husband relied on two trust deeds. The Hendrix's Family Trust dated 13 April 2002 ("the first deed") and the "[Hendrix's Family Trust] Deed Variation 2008" dated 28 July 2008 ("the second deed"). The wife objected to the husband tendering the deeds into evidence.

[116]

The wife contended that the trust deeds had never been disclosed to her and said, when objecting to the admission of the trust documents, that she had been served with a Country N version of the document but not a translation.
Conversely, the husband contended that the details of both deeds, including the translations (although not certified translations), had previously been provided to the wife. The husband agreed that he had only provided certified translations on 18 November 2024. The husband contended that the translation attached to the earlier affidavit was, in all respects, the same as the certified translation provided on 18 November 2024.
Eventually, during the trial the wife agreed that she had seen the deeds and uncertified translations as they were annexed to an affidavit the husband filed on 1 September 2023. They accordingly became Exhibit 32. The wife however maintained that there had never been provided disclosure of the records relevant to the trust, including bank statements.
The correspondence from the wife's legal representatives (DD Lawyers) dated 1 June 2023 and 28 July 2023 included requests for disclosure. DD Lawyers identified documents that were missing and requested that the documents be disclosed. This request included balance sheets and profit and loss statements regarding Hendrix's Family Trust, together with a copy of the trust deed (including any amendments). In response, EE Lawyers sent Trust Tax returns but did not reference the Trust Deed and, importantly, did not reference any amendment or variation to the Trust Deed.
There can be no doubt that the existence of the 2002 Hendrix's Family Trust was known to the wife and her legal representatives. Her lawyers had sought particulars relevant to the trust, including a copy of the Trust Deed. It appears from the correspondence that the purported variation in 2008 was not disclosed to the wife's lawyers.
In these circumstances, the wife cannot make a claim of ambush or lack of procedural fairness in not knowing of the existence of the 2002 Trust. She was eventually provided with the 2008 Deed when that document was annexed to the husband's September 2023 affidavit.
In determining whether to exclude the evidence of the trust deed and purported variation, given the late disclosure with the certified translations, it is necessary to balance any potential prejudice to the wife with the unfairness to the husband in excluding evidence of a significant matter in issue.
I am not satisfied that the evidence of the deed and variation translations should be excluded where the wife had been on notice of the claim since September 2023 and had been provided with an earlier (albeit uncertified) translation.
Accordingly, the certified translations of the Hendrix's Family Trust Deed 2002 and the Hendrix's Family Trust Deed Variation 2008 were admitted into evidence.

[117]

In early 2002, the first deed was executed by the husband as settlor on behalf of BB Pty Ltd as the trustee. The husband was director and secretary of BB Pty Ltd.
The trust property subject of the Hendrix's Family Trust was recorded at Schedule A as "Cash Note of $20, [...] Computer Notebook 1." The trust beneficiaries were the husband's parents, Mr FF and Ms OO, the husband's spouse and future son and daughter.
Clause 2 of the Deed of Trust set out that "The trustee is also expressly authorised to receive further property from any other person and to add this new property to the Trust Fund."
In accordance with clause 2 of the Trust Deed, the husband contended that the second deed from 2008, transferred the E Street property to the trust, and "entrusts" the assets listed to the husband and his father, Mr FF, as "named co-trustees."
The husband gave no evidence in respect of his claim that the property was transferred and was since then held on trust. There was no evidence of a change of trustee or appointment of additional trustees; of the timing or circumstances of the further property being received by the trust and most significantly, the husband called no evidence from his father who he contended in submissions was a co-trustee and a capital beneficiary.
The husband contended that the second deed document itself is sufficient evidence for a finding that in 2008 he gifted the property to the Trust and that the property is trust property and should not be included in the asset pool.
The wife doubted the authenticity of the second deed. I do not accept that the second deed in and of itself is sufficient evidence that the property is held on trust as contended for the reasons that follow.
The husband's post 2008 conduct in respect of the property as identified below, is inconsistent with the property having been gifted and then held on trust as he contends. These records together with the lack of evidence of the alleged 2008 gift and lack of corroboration from his father or other witnesses, does not support the finding on the balance of probabilities that the property was held on trust as claimed by the husband.

[145]

The wife gave evidence that she cannot realise this asset as it is owned in shares with family members. She contended, without any corroborative evidence, that her family do not wish to sell the property or buy her share from her. She says she has no wish to travel to Country P to attempt to negotiate or to seek to have the property sold. There was no corroborative evidence from the family members supporting a finding that she is unable to sell her interest in the property to her family or otherwise.
The wife's interest in the two overseas properties were included in the BFA, together with details of her savings from Country PP. I give weight to the contemporaneous record including the agreed values of the Country P and Property GG properties as recorded at that time.
The husband contended that the wife also retained her one third interest in real estate at Property GG. The wife's interest in and the value of that property had been included in the BFA with a value of $67,000.
The wife was cross examined as to her interest in the property. She explained that the property had been forfeited to the Country AA government due to unpaid land tax eight years ago. She said this information was given to her by her brother.
Inexplicably the wife had not deposed in her trial affidavit as to the disposal of this land in circumstances when she was on notice that he considered that it was one of two properties that she had retained as her property. There was no reason that was apparent as to why the wife had failed to give the evidence and had not called any evidence to support her claim as to the disposal of this property such as calling her brother as a witness of the alleged forfeiture of the land.
The wife's failure to call evidence from her family as to her claims about the two properties is a significant deficit in the wife's evidence. I draw the Jones v Dunkel inference that the evidence from the wife's family would not have assisted her case.
I am not satisfied on the evidence that the Property GG property has been disposed of and accordingly include the Property GG property with the value of $67,000 as an asset of the wife. I am not satisfied on the evidence that the wife is unable to sell her interest in the Country P property such that it should be treated as a financial resource. I find that it is an asset and it is included accordingly at the agreed figure of $24,000.

[166]

On 22 January 2024 orders were again made for disclosure to occur, and it was noted the husband intended to call seven witnesses for the trial.
On 10 May 2024 directions were made that within 14 days the wife was to provide to the husband the names of two further Forensic Accountants who consent to being appointed as an Expert Witness, the fee each Expert Witness will accept for preparing a report, and a letter of instruction to the Expert Witness including a list of documents necessary for the Expert Witness. The directions further ordered that within seven days thereafter, the husband was to select such Expert Witness from the list provided by the wife and he was to pay the costs of the valuations in the first instance.
On 24 May 2024 the wife advised that the selected Expert Witness was unable to complete the task but it was noted that the parties were hoping to reach agreement in relation to the valuation issues by way of the husband providing his estimate of the value of the business to the wife within three weeks, and for her to respond as to whether any agreement could be reached within two weeks of receipt of the husband's estimate. There was no agreement ultimately reached as to the value of the entities.
At the next directions hearing on 17 October 2024, the wife advised she no longer pursued valuation evidence of the business entities because she alleged that the husband was "hiding the assets" and the financial documents provided were incomplete. On that occasion, each party was reminded specifically of their duty of full and frank disclosure and the potential consequences in the event of non-compliance.
Ultimately, no valuation evidence was obtained. The wife contends that this was due to the husband not providing the relevant records, his partial compliance with orders and his non-disclosure and late disclosure of the records and bank statements. She contended the incomplete disclosure impacted the capacity to obtain valuation evidence. There was, however, no evidence from the proposed valuer as to the issue with providing the valuation evidence. Ultimately the wife ceased pursuing the valuation evidence that had been ordered.
The husband sought to rely on a valuation report he had prepared himself. That evidence was not permitted to be relied on.

[167]

The wife received an email containing limited bank statements for B Pty Ltd on 28 October 2024, around four weeks prior to the trial commencing. These bank statements became Exhibit 63. The husband accepted that he held those accounts.
The bank statements (Exhibit 63) were addressed to the Director at E Street Suburb F. The accounts were identified as BSB ... account ...15 ("account ending ...15") and BSB ... account ...07 ("account ...07").
In respect of account ending ...15, several statements from 17 October 2022 until 17 October 2024 were produced. Statement 39 recorded deposits of $21,950 and withdrawals of $21,686.59. A number of the withdrawals were recorded as "To [X]". Statement 41 recorded deposits of $10,216 and withdrawals of $10,054.53. There was a deposit of $2,700 from "[Hendrix's Family Trust] Refund" on 3 July 2023. Statement 42 recorded deposits of $12,300 and withdrawals of $13,044. A withdrawal of $4,000 was made to X. Statement 44 recorded deposits of $19,950 and withdrawals of $19,857.25. A total of $14,400 over two payments on 22 January 2024 were deposits from X recorded as "[vehicle] loan" and another deposit of $1,000 from X was recorded as car loan. Statement 46 recorded deposits of $25,845 and withdrawals of $25,845. A number of the withdrawals in this statement were recorded as "[To X]", totalling over $11,000. There were also a number of withdrawals recorded as "To [Mr Hendrix]" totalling over $8,500.
In respect of account ending ...07, statement number 108 to 130 (excluding 116) from 16 December 2022 until 15 November 2024 were produced. The statements recorded deposits and withdrawals of between $9,000 and $12,000 each month in 2023 with regular deposits recorded as "pay/salary" received from QQ Company until May 2023. From 1 March 2023 until 6 July 2023 regular "pay/salary" deposits were recorded as "from [RR Company]." In addition to the salary deposits there were regular deposits from "[SS Company]." From 17 July 2024 until 15 November 2024 there were no deposits from any source. There were deposits and withdrawals to and from X and Hendrix Family Trust. There were deposits and withdrawals from other accounts.
The husband included a note to his balance sheet at item 6 "I often purchase under [B Pty Ltd] name, therefore no personal belong [sic], no car." The husband's financial statement at exhibit 37 referred to his disposal of imported machines and a "continuous business." He also deposed to receiving a refund for the return of a vehicle in the sum of $23,000, although it remained unclear whether this was a company or personal asset. In a letter from the husband's solicitors, EE Lawyers, dated 26 July 2023 the wife was advised "I am instructed that the sale or purchase of any assets were done through [B Pty Ltd] and recorded in the company's tax returns." He did not provide any evidence or disclosure of the assets purchased and sold.
The husband failed in his duty to make full and frank disclosure as required by the Rules. He made partial disclosure of records prior to July 2023 and made piecemeal disclosure of some records by email from 29 October 2024. He made selective, inadequate, and late disclosure and accordingly has not met his obligations of full and frank disclosure.

[186]

The husband contended a liability to Suburb O Council of $43,000 should be included. In his balance sheet he included "Council legal bill unknown, $30,000 in 2012 with accrued interest." The existence of the liability was disputed by the wife in her affidavit but in submissions, if I understood her correctly, she agreed that a liability may have existed but was not aware of the amount.
The husband gave sworn evidence in respect of proceedings with Suburb O Council in 2010 in the Land and Environment Court. His evidence was that as a result of the proceedings there was a consent order permitting him to keep the same occupancy without being required to upgrade the building. He said that the income received from the rental offset the mortgage obligations of the house. He gave no evidence as to the amount outstanding of the liability. The husband said in oral submissions that a consent position reached with the counsel included a costs order, but despite being given the opportunity to do so, he provided no evidence of the alleged liability. He said he had issued a subpoena to the council but was still unsure of the amount.
The wife contended that if there was a liability, that as it arose prior to the relationship, from the husband undertaking unapproved renovations and that he should be held exclusively liable for any penalty imposed or related liability.
The husband has the onus of proof as to the claimed existence of the liability. He produced no evidence. Additionally, there was no explanation as to why the council has not sought to recover a costs order which was apparently made after proceedings in 2010 or 2012, over a decade ago. There was no evidence as to the actual amount owing, despite the husband being given a number of opportunities to produce evidence of the amount of the liability during the proceedings.
In the circumstances I accept the husband may have a liability from the outcome of the 2010 Land and Environment Court action, but I cannot be satisfied as to the amount or that it will be sought to be recovered. If the debt has existed for over a decade and no recovery action or arrangements for payment have been made, it is reasonable to infer that it may not be recovered. It is significant that the husband did not include this alleged liability in his financial statement filed on 18 November 2024 nor in the financial statement he swore on 29 August 2023 (exhibit 37). In the husband's financial statement sworn 18 November 2024 he included other alleged debts but did not include the alleged liability to the council.
I will take into account the possible future liability pursuant to s 75(2)(o) but will not include this liability in the balance sheet given the absence of evidence.

[192]

The wife contended that the loan funds the husband claims are owing to his family were not loans as alleged but were gifts. The husband deposed in his affidavit to the historical borrowings he had received commercially and from his family from 2002 when the land was purchased and for the construction of the E Street property thereafter. His evidence was not disputed.
As stated above the parties signed BFA in June 2011. It was set aside, by consent, on 25 January 2022. The document is not binding on the parties, but it provides evidence that at the time of the preparation of the BFA the husband had disclosed the existence of an existing "loan from family" in the sum of $220,000.
The wife said that the BFA was prepared by the husband and that she did not have an interpreter. I infer that she means she did not have input in respect of the particulars recorded therein. The difficulty with such a contention is that she otherwise accepts that at the commencement of the relationship she had assets in accordance with those detailed in the BFA, both in her recorded property interests in Country P and Property GG, and the amount of her savings in Country PP.
I accept the husband received funds from his family members and from financial institutions as he deposed. In making that finding I rely on the particulars set out in the parties' BFA and give weight to that contemporaneous document together exhibits 56 and 57 which show deposits of funds in 2002 and 2003 at the time he had borrowed funds from VV Financial Services and his parents.
The BFA provides strong evidence of the existence of loans to his family members and is evidence of the balance owed by him in June 2011.
If the funds were gifts, as asserted by the wife, the entry to include a liability to the family of $220,000 which diminishes the net asset position that existed at the commencement of the relationship, would have been against the husband's interests.
Although there was no evidence from the husband's family members corroborating the loans, the bank records showing deposits from 2002 and 2003 and the BFA provides corroboration as to the existence of and amount of this liability at that time. I am satisfied on the balance of probabilities that the funds were loans and not gifts, and as at June 2011, the husband considered he had a liability of $220,000 owing to his family.
The husband gave evidence that previous gifts he had received from his parents became loans due to his breach of a condition of the gift that he married a "foreign woman." He relied on the terms of a signed loan agreement dated 10 July 2011 to corroborate that evidence.
That loan agreement between the husband and his father identifies loans that were made by the husband's father to assist with the construction of the home in May 2007 and funds paid by the husband's father in 2010 and April 2011. The terms of this agreement record a 14-year term and that the husband is to pay the interest at 5 per cent. The husband's evidence that he made interest payments is consistent with this written loan agreement.
The wife's contention that the funds were a gift is against the weight of the evidence. I accept the husband's evidence, as corroborated by the BFA document which recorded the existence of the loan at that time, as to the existence of this liability.
I accept that the total funds provided to the husband by family members that he owed at the time he executed the BFA was $220,000. I infer from the evidence that this was the total of all funds he had borrowed from various family members because if he had greater borrowings at that time there is no reason they would not have been included in the BFA.

[194]

The husband now claims a liability to his father of $553,191.
There was no evidence in the husband's affidavit as to the circumstances of the alleged loan being entered into, the terms of the alleged loan whether oral or written, the interest to be paid or the repayment obligations. There was no document or independent evidence in respect of this loan amount. The husband did not call his father, who allegedly is owed this money, as a witness.
In submissions the husband stated that his father was too unwell to give evidence, although this submission was not supported by any evidence of the husband's father's alleged health issues either from the husband, his father, or from any of the father's medical providers. The husband was aware that evidence from any witness was to have been filed in accordance with the directions made. He had indicated an intention to file a number of witness statements but did not do so. He sought to rely on hearsay evidence from himself due to a claimed incapacity of his father to give evidence but provided no evidence as to his father's alleged incapacity.
The failure of a party bearing an onus of proof to call an available witness or available evidence which that party is plainly in a position to call, gives rise to an inference that the evidence may not have assisted that person's case. This is an inference I make in accordance with the principles in both Jones v Dunkel, particularly as to the husband's failure to call any evidence from his father, and in Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63, in his failure to produce and disclose any loan agreement or evidence as to the terms of the loan_._
Other than the husband's contention, there was no evidence as to the basis upon which the interest was calculated to determine how the sum claimed to be owed was calculated.
I am not satisfied on the evidence that the liability to his father is $553,191 as claimed.
Doing the best I can on the evidence before the Court I accept there is a loan in the sum of $220,000 described as loan from family. I am not satisfied on any evidence that there was an agreement to pay interest on the loan sum or the circumstances in which the loan is repayable. There is no evidence that in the many decades since the funds were provided to the husband that there has ever been a demand made to repay the funds.
If there was evidence as to an interest rate applicable or the term of the loan to be repaid that evidence would have been provided. This is particularly the case as the husband had recorded his obligation to repay his father and the terms of that obligation in the loan agreement entered into on 10 July 2011 that was relevant to the sum borrowed at that time of around AUD$40,000.
I accept the sum of $220,000, the sum identified by the husband in the BFA, is a liability the husband has incurred by borrowings from various family members. There is no basis upon which I can be satisfied on the balance of probabilities that the sum he now claims is due and owing to his father is a liability that exists.
Given the significant time that has passed since the funds were provided to the husband, and that there is no evidence a call has been made to repay the debt recorded, the question of whether the debt amount would even actually be required to be repaid must be considered. The husband said in evidence that he will be required to repay the family loan if the property is sold. I accept the husband's intention is to repay the family loan if the property is sold. It was included in the BFA entered into between the parties and I give that fact weight in including the sum recorded as a repayable debt.
I include the sum of $220,000 owed to his family as a liability of the husband.

[196]

The husband contended that he owes his sister $52,000. In his balance sheet, the husband records this as "$22,000 and compound interest from 2007 for her mortgage plus income tax if any."
The husband gave evidence that a dispute arose between he and his sister and there were proceedings in the Administrative Appeals Tribunal ("AAT") where it was determined that funds from his sister were not a gift but a repayable loan in 2017. However, when asked to provide evidence or documentation of the AAT decision, the husband answered, "Maybe on my email, I maybe can find it." When asked again to produce the AAT decision in respect of the alleged ruling as to the liability to his sister he sought to rely on a decision between himself and the Department of Social Services. When asked again to provide the AAT decision to which he referred, no such decision was presented. Additionally, there was no evidence called from his sister about the alleged debt or any other source of corroboration as to the alleged debt such as the pleadings before the tribunal.
The wife deposed in her affidavit at [38] that "I have no idea what [Mr Hendrix] is referring to with his statement that he took his sister to court, or what the outcome of this purported event was." The wife maintained that she was not aware of the AAT proceedings in her oral evidence. The wife accepted the husband had received approximately $9,000 from his sister but contended that the husband had repaid any debt to his sister from cash he has earned from his business after that time. The husband denied repayment and said he did not have the capacity to repay her. There was no evidence to support the contention made by the wife.
In the absence of any corroborating evidence of the husband's contention that he owed his sister $22,000 plus compound interest from 2007 which he claimed amounted to $52,000, I cannot make a finding that this is a liability owed by the husband. I accept that the sister may have provided funds to the husband but am not satisfied on the evidence of the existence of a debt to the sister as alleged.
The alleged AAT finding was not produced, and it seems improbable that if the husband's sister pursued him and obtained a judgment debt that she would not have taken steps to recover the sum in the almost eight years since that time. If the debt existed from 2007 it is now almost 20 years old. There being no evidence of any judgement sum for the alleged liability any liability would also be statute barred. I am not satisfied on the evidence of the existence of such a liability, and I exclude it from the balance sheet.

[202]

The wife said that her higher education liabilities for her studies should equally be excluded from the pool and liability for her studies retained by her.
The husband said that his liability is $240,000, plus $8,900 in student fees being almost $250,000 in total. He asserted, without evidence, that he repays this liability from his salary every week. The husband swore a financial statement where he included his weekly income and included a liability of his Higher Education Loan of $240,000 but did not detail any weekly payments he claims to make in reduction of the education loan from his salary each week, nor did he provide a payslip evidencing or detailing any such deduction.
The husband stated in submissions that "When you make over $54,000 a year, you've got to pay for the higher education debt", and that he is paying it every week now. I accept the husband's contention that upon earning a certain income repayment of tertiary debts are payable, however there was no evidence as to the relevant threshold upon which the education loans of either the husband or wife becomes repayable. There was no evidence as to how much of the loans, if any, have been repaid. Given the modest incomes received by both parties at the present time both will have to meet their liability from their income, provided that they each reach the relevant threshold. There is no evidence upon which to make a finding as to the breakdown of the liability or as to what portions are a HECS loan, HELP-loan, Student Start up loan or otherwise. There is no evidence that the liabilities are required to be paid in a lump sum, and I find they will continue to be met from the salary of both the husband and the wife while they each remain employed.
As referred to below, the manner in which a particular liability should be treated is, ultimately, dependent upon the nature of the liability, the circumstances surrounding the liability and the dictates of justice and equity. Given the nature of higher education liabilities and the payment being linked to the income of the parties I do not propose to include the liabilities in the balance sheet to calculate the net pool.
In the circumstances of this case, it is more appropriate to take the education liability of both parties into consideration under s 75(2)(o) as a factor against which future income may be adjusted and the liability repaid.
Accordingly, I exclude this liability from the balance sheet. I do not include either party's higher education loan liabilities in the balance sheet due to the uncertainty as to when, on what terms and if it will be required to be repaid in full, but I take both liabilities into account under s 75(2)(o) and note the husband's liability is significantly higher than the wife's.

[206]

The husband claimed a debt owing to Centrelink of $54,054. No documentary or other independent evidence was adduced in respect of the debt. It is simply described in his case outline as "Centrelink Overpayment."
The wife gave evidence that she had been advised that the husband has a Centrelink debt of around $66,000. She said that the husband had sought administrative review of the debt. The wife sought that the husband solely retain responsibility for any liability as she asserted that if it exists it must represent overpayments made to the husband of Austudy, Newstart, student start up loan or parenting payments.
The husband gave no evidence or explanation as to the circumstances in which the liability was incurred nor when the claimed liability arose. He claims the debt should be included in the liabilities of the parties, however, failed to provide evidence of the existence of the debt, the source of the debt, the genesis of the debt, or any evidence as to the circumstances of the debt either directly or through independent evidence from Centrelink.
Like so many of the husband's asserted liabilities the circumstances surrounding the accrual of this alleged debt remain unclear. No evidence and in particular no correspondence from Centrelink that may have indicated when and why the benefits were received and for whose benefit they were directed was adduced.
The husband gave no evidence that the liability arose during the relationship, in which case the parties both arguably may have had the benefit of the funds received. He did not identify the makeup of the alleged overpayment. He did not dispute the wife's evidence that she received no benefit from the funds. The wife contended that the payments were received by him alone and that they represented overpayments of which he received the sole benefit.
With the absence of evidence, I am not satisfied as to the existence or extent of the claimed liability nor that this is a liability incurred during the relationship in which both parties had the benefit of payments (and possibly overpayments). There was no explanation as to how the alleged debt was accrued. If the husband has improperly obtained that money himself, it was primarily his responsibility not to obtain public monies to which he was not entitled.
I exclude the alleged liability from the balance sheet.

[231]

I find the duration of the parties' relationship was from June 2011 until late November 2014, a period of approximately three and a half years.
The immutable nature of relationships is such that perceptions as to when a relationship comes to an end can be different. Relationships are complex and there is no doubt the parties during their relationship and during the period of cohabitation experienced periods of conflict and tension.
I put more weight on the contemporaneous documents than the documents completed by the husband post separation in 2018 where he retrospectively recorded the date that he considered the relationship ended. The parenting payment records detail that the parties were single parents on 29 December 2014. The wife entering into a lease agreement at this time is also consistent with the finding that the parties' relationship was over but that they continued living under the one roof for the benefit of their child. The Centrelink records together with the lease agreement signed by the wife in November 2014 are contemporaneous documents to which I give weight. These documents are contemporaneous and corroborate the unchallenged evidence of Mr S that both parties spoke to him of being separated under the one roof in late 2014. The cumulative effect of this evidence is most persuasive.
The evidence relied on by the wife as supporting a finding that they remained in a relationship until 2018, including the trip to Country N together in 2017 and the observations of her friend, Ms U, highlights the immutable nature of relationships. That the parties shared a travel destination with their young child and stayed together in this period does not outweigh the balance of the evidence as to the declarations made and observations of the nature of their relationship from late 2014. It is also significant that during 2015 regular correspondence was received from Centrelink declaring 50 per cent care of the child and noting the parties' single status.
The wife contended that the parties continued in a relationship during this period and that the husband completed the Centrelink records on her behalf to seek single parenting payments while telling her that the relationship would continue. The husband denied this.
The Centrelink records support the finding, on balance, that the relationship ended in late 2014. These documents record the parties living separately under the one roof from late 2014. This correspondence required them to advise if that status changed at any time. Neither party so advised.
The independent evidence does not support a finding as sought by either party as to the length of the parties' relationship.
The independent evidence on balance does not support a finding that the relationship continued after late 2014. That evidence includes the Centrelink records which declare the child are separated in late 2014 and records confirming the parties have 50 per cent care of X from at least 25 March 2015; the husband's conduct in having the wife execute a lease to rent a room at the E Street property commencing on 12 November 2014; in issuing a default notice when the wife was in breach of the terms of the lease; in commencing legal action to recover the default amount; in his report to Centrelink of the end of the relationship; the reports to the police of conflict between the parties and the report of them living under the one roof albeit separated; the lack of intimacy and the separate sleeping arrangements as also observed by Mr S; and Mr S's evidence that the parties reported to him that they were separated under the one roof from late 2014. This evidence supports the conclusion that the parties were in fact living separately albeit under the same roof from around the end of 2014.
After carefully considering the evidence available from the independent sources being the NSW Police, and Centrelink and the observations of the independent witnesses, I find the parties were separated under the one roof and shared a co-parenting relationship from late November 2014. I find the relationship existed from the date of their marriage until the end of 2014 a period of approximately three and a half years.

[232]

The task of assessing the myriad of contributions of the parties requires a holistic approach.
In Dickons & Dickons (2012) 50 Fam LR 244 the Full Court said:
1. We wish also to refer to the approach of the federal magistrate in attributing percentages to differing periods within the relationship, or types of contribution made. There is in our view little to be gained, and much to be said against, approaching the task of assessing contributions by attaching percentages to components of it. (The same, it might be said, applies to attributing a percentage to each of the relevant s 75(2) factors).
2. There can be little doubt that the classification of contributions by reference to terms such as "initial contributions", "contributions during the relationship", and "post-separation contributions", can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties' respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
3. Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without "...giving over-zealous attention to the ascertainment of the parties' contributions..." (Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 524) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the Court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.
4. The necessarily imprecise "wide discretion" inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.
The Full Court in Singerson & Joans [2014] FamCAFC 238 said:
1. Section 79(4) of the Act is clear. There is nothing to suggest that any category of contributions needs to be quarantined and applied solely to particular assets. The court is mandated to look at the totality of what the parties have contributed in a financial and non-financial sense, including contributions to the welfare of the family and to the acquisition, conservation and improvement of assets. The court is required to evaluate the significance of all the various contributions to the property, notwithstanding there may be different categories of that property.

[234]

The husband's initial contributions were significantly greater that the wife's as set out in the BFA the parties entered into at the time. The wife's evidence at [21] of her affidavit was that "It is not disputed that at the commencement of the relationship, [the husband] owned the property under mortgage, located at E Street, Suburb F, NSW."
The wife did not dispute the husband's evidence that he had purchased the land and built a house. The husband gave detailed and specific evidence as to the source of the funds and the history of financing the land and various construction loans prior to the parties' relationship. This evidence was not in dispute. He gave detailed and particular evidence of the labour and management he undertook in the construction of the property over the years prior to the relationship.
The E Street property and the assets and liabilities were set out in the 2011 BFA. This document provides a contemporaneous record of the assets of the parties at the commencement of the relationship. The wife said that she did not understand the obligations arising from the document, however, the document had been translated into the Country AA language. The wife also provided instructions to include details of the assets she had at the commencement of the relationship, which reflected the evidence given by the wife, as to the assets she possessed at that time.
While I accept the wife's evidence that she did not understand the effect and obligations of the BFA and note it was set aside by consent, I accept the schedule of assets and liabilities prepared contemporaneously and contained in the BFA is a source of reliable evidence as to what the parties instructed that their respective assets and liabilities were at the commencement of the relationship. It is in fact the only contemporaneous record of what the parties had at the commencement of the relationship.
The husband's evidence, which was not in contest and which I accept, was that he originally purchased the land paying $440,000, stamp duty and legal fees in 2002. He borrowed 80 per cent of the purchase price from UU Financial Services by way of mortgage. He alone met the payments on the mortgage. He borrowed $83,000 from his parents between 1997 to 2002 and borrowed a further $8,000 from his sister in 2002.
The husband refinanced with VV Financial Services and borrowed an additional $100,000 for a construction loan in 2003. He alone met the mortgage payments between 2003 and 2010.
The husband obtained a further $47,000 construction loan from relatives via his parents in 2003. In 2005 he borrowed $40,000 from a mortgage broker "[WW Financial Services]" as a second mortgage and borrowed a further $80,000 from WW Financial Services in 2006. The interest rate applicable to the WW Financial Services borrowings was 16.5 per cent.
In 2007 and 2008, the husband borrowed funds from relatives via his parents to discharge the WW Financial Services loans. He met the repayments from 2007 to 2024.
He obtained a loan of $490,000 from J Pty Ltd in 2010 to discharge the VV Financial Services loan and to settle an action in the Supreme Court of NSW in respect of those borrowings.
The husband's evidence as to the borrowings to purchase the property and for construction loans was not challenged. I accept the husband's evidence as to the funds he borrowed to purchase the land and to construct the home from 2002, and that he met the relevant repayments.
The husband gave detailed evidence of the nature of the construction of the home that was undertaken by him from late 2002 as an Owner-Builder. The evidence was not in contest. I accept the husband's evidence in respect of the construction of the property by him as Owner-Builder and that he personally met the repayments as set out in his affidavit.
The wife agreed that the initial contributions weighed in favour of the husband by reason of his significantly superior financial contribution of the equity in the E Street property, albeit subject to the mortgage and noting the liability to his family. From my independent assessment of the evidence, I am satisfied that this was an appropriate concession.
At the commencement of the relationship the wife used some of the funds from her savings to purchase items of furniture. In early 2012 around three months before she permanently moved to Australia, she gave the husband US$26,000 from her savings which he invested in their business.
The husband said he was merely acting as her agent, and this was not a co-mingling of the assets of the parties. The husband gave evidence that he used the funds to purchase two vehicles for the wife to drive and made some purchases of machinery. He agreed that the balance of the funds transferred were in his control. I do not accept his evidence that he was merely an agent. I accept the wife's evidence supported by the receipt that she in effect handed her savings to him to be used for the benefit of the parties.
Although the husband's direct financial contribution was significantly greater than that of the wife, the wife also made direct financial contributions at the commencement of the relationship as deposed by her.
The husband contended that his financial contributions during the relationship were vastly superior to the wife. Each were in receipt of Centrelink benefits during the relationship and earned modest incomes although I infer the rental income received most likely was used to meet the mortgage and interest repayments. The amount of the rental income received from the tenants and the specific use made of the income remained opaque due to the disclosure issues identified in these reasons.
While she was pregnant the wife worked in various roles including as a transport worker and in hospitality. The husband agreed that she had earned a modest income in various roles. Both parties' modest incomes and savings was used to support both of the parties and X after he was born. There is no doubt the wife also made financial contributions during the relationship, and I make that finding.
There is no doubt that the most significant asset is the property at E Street, which was owned by the husband, with a mortgage at the commencement of the relationship and that this was a substantial contribution by the husband during the relationship. The husband made overwhelmingly greater initial financial contributions at the commencement of the parties' relationship and there should be a significant adjustment in his favour accordingly. However, I accept the evidence of the wife that she also made financial contributions, albeit far more modest, that that of the husband.
The wife entered into a rental agreement with the husband and paid $200 each week pursuant to that lease in accordance with the rental agreement she signed as she continued to reside in the property post separation.
The wife accepted that the husband made non-financial contributions during the relationship, and this is supported on the evidence. The husband contended the wife made no non-financial contributions during the relationship.
The wife gave evidence of her financial and non-financial contributions during the relationship. The wife gave evidence that during the relationship "[Mr FF] and I renovated the downstairs area and converted it into a single bedroom and three studio spaces. [Mr FF] then use the lounge room and a granny flat as an office for his business." The property now has six living spaces for tenants. I accepted the wife as a credible witness and found her oral evidence to be frank and direct.
In cross-examination when it was suggested the wife did not make such contributions she said:

[238]

The wife's evidence was that she provided assistance to the husband in the renovations. These renovations were being undertaken during the relationship when the child was a young baby. I find that the maintenance and renovations together with the care of the parties' young child were contributions made by both parties.
The husband's contention that the wife made no non-financial contributions during the relationship is an extraordinary contention and is not supported on the evidence. I accept her evidence of her role as a homemaker and parent. Her evidence was corroborated by both Ms U and Mr S. Both parties made contributions to the care of the child post separation.
The wife gave specific and detailed evidence during her cross-examination of the non-financial contributions she made. She said she was involved in cleaning the apartments as tenants left, including washing curtains. She said that when renovations were being undertaken she drove a utility that had been hired to assist with delivery and collection of building materials and disposal of rubbish. The husband denied these contributions, denying that he had hired a utility and denied that the wife cleaned or assisted in this way at all.
When cross-examined by the husband, the wife clarified that she drove the vehicle hired by the husband for that purpose because the husband had lost his licence. The husband ultimately agreed that he did not have a drivers' licence at the time. I accept the wife's evidence in respect of these contributions.
Mr S gave uncontested evidence that he observed the husband undertake work such as gardening, building repairs, maintenance and painting and that he did not observe the wife participate in such tasks. However, he also gave evidence that he observed the wife perform housekeeping and cleaning duties of the shared spaces in the house. Similarly, Ms U gave evidence that while she attended the home, she observed the wife cooking and cleaning and attending to the child. Her observations at that time were that the wife attended to the preparation of meals, cleaning and childminding. She observed the husband spent most of his time at his desk studying and she never observed the husband undertaking any chores or maintenance or assisting with the house or childcare of the child.
I accepted that both Mr S and Ms U were honest witnesses doing their best to recollect their observations at the time. Mr S observed the husband contributing the maintenance and gardening and Ms U observed the wife contributing the cooking, cleaning and attending to the child. I accept that both the husband and wife did make non-financial contributions as observed.
Indirectly, the wife contributed by joining with the husband in undertaking cleaning and house-keeping tasks and assisting the husband by driving him when he was without a licence. The husband contended that the cleaning would not be considered a contribution and relied on the authority of Fielding & Nichol [2014] FCWA 77. I reject that submission. The arrangements in respect of this particular property was not simply cleaning a family home in which they resided. The evidence of the parties is that the home provided accommodation for multiple tenants with common areas and individual rooms. Renovations were undertaken while the parties lived there with a small baby. Additionally, the management of the property involved showing prospective tenants the accommodation, cleaning and assisting with the rental of the then four studios and a one-bedroom apartment. The wife gave evidence that she undertook some tasks such as gardening and assisting with aspects of maintenance. The wife accepted that the husband undertook more of the renovation and maintenance works.
Given the evidence I have accepted, there is little distinction in the parties' financial and non-financial contributions during the period of the relationship and they are afforded comparatively little weight.
The husband has remained living in the E Street property since the wife obtained independent accommodation and has had that benefit, but I accept he has had the financial obligations associated with mortgage, rates, insurance and maintenance together with the benefit of the rental income derived from the property. Due to the lack of evidence, I cannot make any finding as to the income made or lost by him.
This does not warrant any adjustment.

[240]

None of the orders I will make will affect the earning capacity of either of the parties.
The husband is employed full-time as a transport worker and earns $78,000 per annum. He was on probation and had only been employed for six weeks.
Despite the husband giving evidence that he earns $78,000 per annum, he deposed in his financial statement to earning $1,650 per week. The husband also has access to an undisclosed sum being the rental income from the studio apartments he rents to numerous tenants who live with him at the E Street property. This is balanced with the consideration that he has the obligation of the mortgage, rates, insurance and maintenance of the property. There was no evidence as to whether the rental amounts provide a deficit or an excess over the mortgage and other relevant expenses, again due to the absence of direct evidence and inadequate disclosure made.
Despite the husband's qualifications, there is no evidence that he has been employed as a finance professional or practised as a finance professional other than to use his training to apparently manage the affairs of the corporate entities and businesses he controls. There is no evidence he has derived income from his other qualifications but there has been a failure to disclose the relevant financial records such that any finding can be made.
The husband has an interest in B Pty Ltd, the value of which is unknown. I am unable to make any finding as to any income or benefit derived or financial resources of the husband arising from his interest in B Pty Ltd and its various business ventures due to the lack of evidence from him and due to the inadequate disclosure.
Since coming to Australia, the wife has learned the English language and has recently graduated as a health professional. She is now employed at XX Organisation and gave evidence that she is employed 40 hours per week. Her evidence was that she earns $65,000 per annum. She accepted that she has the capacity to earn penalty rates in her shift work.
Given the relatively similar incomes of the parties and the absence of any evidence as to any other relevant factor that may warrant any adjustment, I do not consider that this factor warrants any adjustment. Pursuant to these orders the parties only child will live with the parties in an equal time arrangement. This is not a factor that warrants any adjustment.
Each party sought an adjustment in relation to the matters under s 75(2) the husband seeking a further adjustment in his favour by reason of the fact he 57 years of age and is 13 years older than the wife.
Each of the parties will retain certain liabilities such as legal costs and possible liabilities as identified earlier in these reasons such as their tertiary education liabilities and I take into account those matters in my overall assessment.
The wife sought an adjustment such as to equalise the pool because of the non-disclosure. I consider that the husband's non-disclosure is of great significance. The conduct of the husband in his flagrant, extensive and deliberate non-disclosure and is a factor that the justice of the case requires to be taken into account.
The evidence suggests that he has had control of the company and business assets with income derived since separation and has had the control and benefit of all of the rental income derived from the E Street property since separation. The ongoing and egregious non-disclosure has been in the face of assurances that disclosure would be provided, orders being made for disclosure to occur, notwithstanding this the non-disclosure continued in the face of warnings as to the consequences.
The wife had endeavoured to obtain expert evidence by appointment of a single expert to determine the value of the entities in the control of the husband. I am satisfied on the balance of probabilities that her endeavours were frustrated by the lack of disclosure and the extremely late disclosure of bank records.
As referred to by His Honour, Justice Schonell at [45] in Piroozi & Piroozi [2023] FedCFamC1F 359 when considering the issue of the obligation of disclosure, Justice Hutley observed in St John v St John (1974) 6 Fam LN N14:

[244]

The effect of my findings as against the known pool of assets is that the husband will receive overall 60 per cent of the identified pool of assets and the wife will receive 40 per cent of the identified pool of assets.
Based on the findings as to the property pool having a total value of $1,053,995, a 60 per cent adjustment to the husband reflecting his superior financial contributions will result in him retaining $632,397 of the total identified pool. The wife will retain $421,598. Overall, 60 per cent to the husband and 40 per cent to the wife.
The adjustment to the husband provides him, in monetary terms, $210,799 more than the wife. The effect of this division is that, after accounting for the known assets, financial resources, superannuation and liabilities of each party the husband is to pay the wife the sum of $307,618.
The wife will otherwise receive assets having a value of $113,980 while the husband will receive assets having a value of $940,015. In order to bring about a 40 per cent overall division to the wife, he will need to pay her the sum of $307,618. The husband will have 45 days to pay such sum. In default of payment the property will be sold and in order to ensure justice and equity the parties will share in any rise and fall of the sale price to affect an overall 60 per cent division to the husband and a 40 per cent division to the wife.
I recognise and have taken into account that each will retain their individual outstanding legal fees and other identified liabilities and possible liabilities, including the burden of meeting their own higher education liabilities in the event that these are recoverable.
The husband will retain any liabilities in his name as well as any liability to his family as outlined above, including the $220,000 and if any such further liability exists.
Neither party made any submission as to the timing of the payment. In the circumstances, I will order that the payment is to be made within 45 days, as it is a reasonable period for the husband to arrange re-finance. Should he fail to pay the sum in that time, the property will be sold.

[246]

Orders in default of payment to facilitate the sale of the E Street property in the event that payment is not made by the husband by the due date are necessary.
The wife sought an amount determined by an independent accountant to be invested for payment of CGT upon sale. There was no evidence of any CGT liability, or any anticipated amount. The parties agree that such a liability is likely in the event of a sale accordingly an assessment by an independent accountant is appropriate and will avoid conflict and delay.
No submissions were advanced by the husband as to the appropriateness or otherwise of the wife's orders for sale of the property. In circumstances where the husband's orders provided no mechanism for sale and in the absence of a submission as to why such orders would not be appropriate, I make orders for sale, including in respect of calculation of CGT liability, should a sale become necessary.
For practical implementation I have ordered default provisions which include orders for the parties to share in any increase or decrease in the sale price of the E Street property in accordance with the principle as adumbrated in Trask & Westlake (2015)55 Fam LR 153, in the event that a sale becomes necessary. This is because in the event that the E Street property is required to be sold, the ultimate sale price cannot be known at present. The appropriate way to ensure each party receives their entitlement is to take the present determined total value of the net assets, excluding the E Street property, and relevant encumbrance and adjust the sum to be paid to the wife, once the net proceeds of sale are known. That figure will then be divided to bring about a 40 per cent adjustment to the wife and a 60 per cent adjustment to the husband.
The husband sought orders that he pay as option A the sum of $50,000 plus a sum of $300 per week which he called "rent assistance" until the child tuns 18 years old. This was a proposed order by way of property adjustment not as child support. The order is not an order that would properly be made pursuant to s 79. He sought in the alternative that he pay 15 per cent of the property pool (option B). He also sought an order that he provide a whole life free tenancy of one room at E Street, Suburb F NSW and "40% of the inherent right of the Applicant." The proposed orders are incompetent, and I decline to make them.

Hendrix & Haroldson [2025] FedCFamC1F 269 (30 April 2025)

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