Heydari & Westerberg [2025] FedCFamC1F 396 (17 June 2025)

(a) Motor Vehicle 1 registration number ...;

(b) Motor Vehicle 2 registered in his name or otherwise in his possession or control;

(c) All bank and like accounts in his name;

(d) The partial property settlements paid to him pursuant to the Orders made in September 2022 and November 2023;

(e) His Military Super entitlements and the balance of his Super Fund 1 superannuation entitlements; and

(f) All other personal property, including chattels, owned by him or in his possession or control.

1. The Applicant Husband pay and otherwise be solely liable for and forever indemnify the First Respondent wife with respect to:

(a) Any liability in his name; and

(b) All liabilities encumbering any assets to be retained by him pursuant to these orders.

1. Save as otherwise provided herein, or for the purpose of enforcing any monies due under these or any subsequent Orders, the First Respondent wife be solely entitled, to the exclusion of the Applicant husband, to:

(a) Motor Vehicle 3 registration no. ...;

(b) The ride-on mower registered in her name or otherwise in her possession or control;

(c) All bank and like accounts in her name;

(d) The proceeds of sale of publicly listed shares received by her;

(e) Any balance of the lump-sum payments received by her from the Department of Veterans Affairs;

(f) Her interest in the Town F property;

(g) Her Military and Super Fund 2 superannuation entitlements;

(h) Her Military pension entitlements.

1. The First Respondent wife pay and otherwise be solely liable for and forever indemnify the Applicant husband with respect to:

(a) Any liability in her name; and

(b) All liabilities encumbering any assets to be retained by her pursuant to these orders, together with any taxation liability for capital gains tax in relation to the sale of publicly listed shares by her.

1. Unless otherwise specified in these Orders and save for the purposes of enforcing the terms of these Orders, as between the Applicant husband and the First Respondent wife:

(a) Each of the Applicant husband and the First Respondent wife be solely entitled, to the exclusion of the other, to all other property (including choses-in-action and furniture, furnishings and personal effects) in the name, possession and/or control of such party as at the date of these Orders SAVE AND EXCEPT for all photo albums; the birth certificates (official and commemorative) of their children, Ms H, born 2003, Mr J, born 2005, and X, born 2008; the said children's and maternal health nurse books; the said children's school photographs; and family videos, which the First Respondent wife make available to the Applicant husband (through their respective solicitors) within 21 days of the date of these Orders for the purpose of him copying them at his expense and returning them to her (through their respective solicitors) within 28 days thereafter;

(b) Save as otherwise provided for herein, monies standing to the credit of the Applicant husband and the First Respondent wife in any joint bank account be equally divided between them and such accounts thereafter closed;

(c) Insurance policies remain the sole property of the owner named thereon;

(d) Each of the Applicant husband and the First Respondent wife pay and be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders; and

(e) Any joint tenancy of the Applicant husband and the First Respondent wife in any real or personal estate is hereby expressly severed.

1. All extant unexecuted Orders be discharged.
2. All extant applications for final orders (including as amended), and including in the Statement of Claim of the Second Respondent and the Third Respondent and the Defences of the Applicant husband and the First Respondent wife thereto, be otherwise dismissed and the proceedings removed from the judicial docket of the Honourable Justice Strum.

1. Pursuant to s 81 of the FLA the spouse parties intend that these orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

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

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

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

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

1. These proceedings involve competing applications between the parties to a marriage for alteration of interests in property pursuant to s 79 of the Family Law Act 1975 (Cth) ("FLA"). However, in order to determine those applications, it is necessary to determine the interests, if any, of the second and third respondents in a real property, transferred by them to the parties of the marriage, one of whom is their child, of which those spouse parties are now the registered proprietors.
2. It may be that, when these reasons for judgment are anonymised for publication, they should be reported as Jarndyce & Jarndyce, so reminiscent is this case of Charles Dickens' Bleak House. The applicant husband and the first respondent wife are pitted against each other; together, they are pitted against her parents, who are the second and third respondents; and the fourth respondent is, or was, her de facto partner, from whom she is alleged to have separated. Further, there have been proceedings between the wife and her parents in the Victorian Civil and Administrative Tribunal ("VCAT"). That is the proverbial omelette which the parties seek that the Court unscramble for them.

1. The husband, Mr Heydari, was born in 1977 and is 47 years of age.
2. The wife, Ms Westerberg, was born in 1978 and is 47 years of age.
3. The second and third respondents, Mr Westerberg (born in 1952) and Mrs Westerberg (born in 1951), who are the parents of the wife, were previously the registered joint proprietors of the real property situate at C Street (also previously known as C Street), Town D in the State of Victoria ("Town D property"), of which the husband and the wife are presently the registered joint proprietors.
4. The fourth respondent, Mr Proctor, has previously been in a relationship with the wife. Whether or not they remain so is a matter in dispute. In cross-examination, the wife gave evidence that they separated in July 2024. The wife and the fourth respondent are the registered joint proprietors of the real property situate at E Street, Town F in the State of Victoria ("Town F property"). Orders made by consent on 9 July 2024 provided, inter alia, that the fourth respondent:
   • was not required to file and serve any amended or further amended Response to Initiating Application or affidavits to be relied upon at trial, nor to participate in the proceedings, including but not limited to attendance at trial (Order 5); and
   • consented "to any order the court may make including the sale of the Town F property provided that his interest in the property is not altered at all" (Order 6).
5. Notwithstanding Order 5 made on 9 July 2024, the fourth respondent attended at trial, unrepresented, seated in the body of the Court, in close proximity to the wife, albeit her evidence was that they were no longer in a relationship.
6. The husband and the wife commenced cohabitation in 2000; they were married in 2018; they separated on 28 March 2022; and a Divorce Order was made in May 2023, which took effect in mid-2023.
7. There are three children of the marriage: Ms H, born in 2003 (aged 21 years); Mr J, born in 2005 (aged 19 years); and X, born in 2008 (aged 16 years).
8. On 14 December 2022, final parenting orders were made by consent by Senior Judicial Registrar Conlan which provided, inter alia, for the husband and the wife to have equal shared parental responsibility for Mr J and X; for those children to live with each of the parents on a week-about basis (implicitly, during school terms); and for those children to spend time with each of the parents during school holidays and on special occasions. The child Ms H was, by then, aged over 18 years.

1. At trial, the husband relied upon:
   • his further, further, further, further, further (sic) amended Initiating Application filed 3 June 2024;
   • his Defence to the second and third respondents' Statement of Claim filed 16 January 2024;
   • his trial affidavit filed 3 June 2024;
   • his Financial Statement filed 3 June 2024;
   • his Outline of Case Document filed 16 September 2024;
   • a minute of orders sought by him tendered on 25 September 2024 (being the third day of trial) (Exhibit H-1); and
   • his written closing submissions filed 4 November 2024.
2. The wife relied upon:
   • her further, further, further, further (sic) amended Response to Initiating Application filed 17 June 2024;
   • her Defence to the second and third respondents' Statement of Claim filed 19 January 2024;
   • her trial affidavit filed 17 June 2024;
   • her affidavit filed 19 July 2024 in reply to that of the second respondent;
   • her affidavit filed 19 July 2024 in reply to that of the third respondent;
   • her Financial Statement filed 17 June 2024;
   • her Outline of Case Document filed 18 September 2024; and
   • her written closing submissions filed 21 October 2024.
3. Insofar as the wife impermissibly annexed to her written final submissions documents which were not tendered in the course of the evidence, in her oral address, her counsel said that she did not seek to rely upon them and I have not had any regard to them.
4. Further, during the course of the trial, the husband and the wife jointly sought and, in the circumstances, were granted leave to rely upon an affidavit by a single expert, Ms G, sworn on 23 August 2024, in relation to the capitalised value of the wife's Department of Veterans' Affairs ("DVA") pension entitlements, by reason of her service in the Australian Defence Force ("ADF").
5. The second and third respondents relied upon:
   • their Response to Initiating Application filed 17 October 2023;
   • their Statement of Claim filed 1 July 2024;
   • their trial affidavits respectively filed 8 July 2024 and 1 July 2024;
   • their Outline of Case Document filed 16 September 2024; and
   • their written closing submissions filed 18 November 2024.
6. In addition to the parties' affidavit evidence, a number of exhibits were tendered by them.
7. I do not propose to refer to, or to repeat, all of the evidence in these reasons for judgment. I have read the parties' respective affidavits, I have heard their evidence tested in cross-examination, and I have taken all of the evidence into account (including the exhibits tendered) in reaching my judgment, even if not referred to specifically herein.
8. It is not necessary for a trial judge to refer to every piece of evidence or argument presented during a trial. In Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said:

... A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.

1. In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385-386, Mahoney JA said:

... It is not the duty of the judge to decide every matter which is raised in argument.

...

Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard... Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear...

(Citations omitted)

1. Each of the husband, the wife, and the second and third respondents was cross-examined.
2. Whilst I express, hereunder, concerns in relation to the second and third respondents' trial affidavits, given the circumstances in which the instructions therefor were given and they were drawn and sworn, I found them to be open and honest witnesses in cross-examination. Generally, they, but especially the second respondent, gave evidence directly and answered questions in a forthright manner, even when it did not assist their case. The third respondent was, on occasion, argumentative or reluctant to make appropriate concessions, however, I do not consider same to detract from her creditworthiness. I found both of them to be credible witnesses.
3. Similarly, I also found the husband to be an open and honest witness, who answered questions frankly and without obfuscation, and credibly, even when his evidence did not necessarily assist his case.
4. I have no concerns of any note regarding the credit of the husband and the second and third respondents.
5. The same cannot be said of the wife. She often refused to make concessions, even when they were manifestly required. She sought to avoid directly answering questions, when the answers thereto, if honestly given, would cast her, or her case, in a negative light. Counsel for the husband, in his written closing submissions, submits, and I agree, that her evidence, both in chief and in cross-examination had the character of a story contrived to engineer an outcome that she desires.
6. The wife knowingly swore as true documents she knew, or ought to have known, were false. Clearest of all examples were various Financial Statements which she swore during the course of the proceedings, without reference to compensation monies in 2022/2023 that she knew she was to receive or, in fact, had received, in the order of $447,000 and the proceeds of sale of publicly listed shares, in the order of $104,000. This was most apparent in the fact that she utilised bank accounts of the fourth respondent to "warehouse" those compensation monies. She was unable to provide a reasonable explanation for her failure to honestly complete her Financial Statements; to explain her nondisclosure; and to explain her use of the fourth respondent's bank accounts. I consider this demonstrates her preparedness to be untruthful on oath. Indeed, in cross-examination, when it was put to her that her Financial Statement sworn on 20 September 2023 was a "complete lie" by reason of her failure to disclose the compensation monies totalling $447,000 received by her shortly prior thereto, she conceded that: "It appears that way".
7. The wife sought to draw the husband into her financial dealings with her parents between 2013-2021, when their evidence, like his, was that his involvement was negligible. Although I have ultimately found the second and third respondents to be substantially unsuccessful in their application to the Court, that does not detract from the wife's distasteful treatment of, and attitude towards, them. Whilst the Court does not sit as a court of morals, nevertheless, given my credit findings, there is no explanation for the wife's endeavours to draw the husband into her financial dealings with her parents, other than that it was to deflect, in part, the malodourous scent from her to him too.
8. At paragraph 34 of her trial affidavit, the wife deposes to her receipt of compensation monies from DVA in August 2019, in the sum of $216,327 ("2019 DVA payment"). That was indeed the case. However, she also deposes to having received further sums of $40,000 in August 2019, $40,000 in August 2019 and $10,000 in August 2019. Her bank account statement for that period, which was tendered (Exhibit W-6), makes it manifest that those latter three amounts, totalling $90,000, albeit described by her in that statement as "DVA compensation", were in fact withdrawals made after the sum of $216,327 was deposited. Not only did she not concede those errors but, on the face of that document, to which she referred in that paragraph, and which she annexed, the sum of $216,327 clearly appears (and is identified) as a credit and the sums totalling $90,000 clearly appear (and are identified) as debits. At paragraph 34, she deposes that: "Annexed whereto [sic] ... is a true copy of the NAB Classic Banking Statement ending #...16 reflecting my DVA compensation payments received"; however, that statement discloses only the receipt of the sum of $216,327. If she looked at the statement, as is implicit from that paragraph, it cannot have been an honest mistake on her part. Insofar as she asserts that, soon thereafter, she received further amounts totalling $90,000, that is not true. The fact that untruth is readily ascertainable, by reference to the statement, is not to the point.
9. Nevertheless, generally, I am able to determine the case issue by issue, on my assessment of the evidence of the parties. However, I approach the evidence of the first respondent with considerable circumspection.

1. The husband moved on orders in the minute tendered by him (Exhibit H-1) and the relief claimed in his Defence to the second and third respondents' Statement of Claim. In summary, he sought an alteration of the wife's and his interests in property, including the Town D property, free of any claim thereto by the second and third respondents, in the proportions of 65 per cent to him and 35 per cent to the wife. In orally addressing his written closing submissions, his counsel varied his application downwards to 60 per cent in his favour.
2. The wife moved on the orders in the minute tendered by her (Exhibit W-11) and the relief claimed in her Defence to the second and third respondents' Statement of Claim. In summary, she seeks an alteration of the husband's and her interests in property, including the Town D property, free of any claim thereto by the second and third respondents, in the proportions of 65 per cent to her and 35 per cent to the husband. In orally addressing her written closing submissions, her counsel inexplicably varied her application upwards to 75 per cent in her favour.
3. The second and third respondents moved on orders sought in their Response to Initiating Application and the relief claimed in their Statement of Claim. In summary, they seek a declaration that they are the beneficial owners of the Town D property, subject to an equitable charge in favour of the husband and the wife securing the sum of $110,000, and that the legal title to that property be re-transferred by the husband and the wife to them. It is conceded by the husband and the wife, and, in the circumstances of this case, I agree that, in determining their competing applications, jurisdiction accrues to the Court to determine the claim of the second and third respondents, it forming part of a single justiciable controversy between them. See Warby & Warby [2001] FamCA 1469; (2002) FLC 93-091.

1. Whilst the husband and the wife each seek orders, albeit different orders, pursuant to s 79(1) of the FLA altering their interests in their property, s 79(2) thereof provides that the Court shall not make an order under that section unless it is satisfied, in all the circumstances, that it is just and equitable to do so.
2. In Stanford v Stanford (2012) 247 CLR 108, the plurality of the High Court said at [35] "[i]n every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order". The plurality further said at [39] that "whether it is 'just and equitable' to make the order is not to be answered by assuming that the parties' rights to or interests in marital property are or should be different from those that then exist". Similarly, "whether making a property settlement order is 'just and equitable' is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4)" (at [40]). However, the plurality observed at [42]:

In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).

1. By the spouse parties' competing applications, they each contend, at least implicitly, that it is just and equitable to make an order under s 79 of the FLA, as required by subsection (2) thereof, for the reasons contemplated by the plurality in Stanford v Stanford at [42]. Having regard to those observations, and to the existing legal and equitable interests of the husband and the wife in property, according to ordinary common law and equitable principles, to which the plurality referred at [37], which I consider below, I find that the just and equitable requirement is readily satisfied.

EXISTING LEGAL AND EQUITABLE INTERESTS IN PROPERTY

1. After the conclusion of oral evidence, but before closing submissions, a revised joint balance sheet was tendered by the husband and the wife (Exhibit J-1), which provides as follows:

C Street, Town D (unencumbered) - valued by K Company on 12 December 2023

Funds held in Mirabella Trust Account pursuant to Court Order

Part Property pursuant to Orders of the Court dated 14 September 2022 and 30 November 2023

sale of shares occurred to pay living expenses, including support of children when no child support paid and replacement of property removed by Applicant and to pay council

and water rates, insurances and to satisfy partial property orders in Applicant's favour. Also part legal fees paid for by Mr Proctor

Defence mortgage registered over property at E Street, Town F - Total $685,984 as at June 2024

Financial Resource -DVA. Capitalised Valued of Disability Pension

1. The areas of disagreement relate to:
   • the interests, if any, of the second and third respondents in the Town D property, which is registered in the names of the husband and the wife as joint proprietors; and
   • the dealings by the wife with the proceeds of the various compensation payments received by her, and applied by her, inter alia, towards the acquisition of the Town F property, of which she is a registered proprietor, together with the fourth respondent.

1. The Town D property was acquired by the second and third respondents, and they became the registered joint proprietors thereof, on or about February 2000. The purchase price of the property was $300,000 and was funded by them, inter alia, by a loan of $80,000 from the Commonwealth Bank of Australia, secured by mortgage thereover.
2. There are two separate dwellings on the Town D property, known respectively as "1 C Street Residence" and "2 C Street Residence" (also known as "the second residence").
3. The second and third respondents have at all material times resided in the 2 C Street residence and used the surrounding grounds for the purposes of horse training and growing crops.
4. Between 2004 and 2010, and again from 2012, the second and third respondents permitted the husband and the wife to reside in the 1 C Street residence for minimal or no rental.
5. In January 2013, the second and third respondents, of the one part, and the husband and the wife, of the other part, entered into an agreement under seal, styled a "Deed of Family Arrangement" ("Original Deed") (Exhibit I-1). The Original Deed was drawn by L Law Firm, in Town M, on the instructions of the husband and the wife. Their signatures were witnessed by one Ms N of that firm. The signatures of the second and third respondents were witnessed by their solicitor, Mr O, of P Law Firm. In cross-examination, each of the second and the third respondents said that they received advice from Mr O in relation to the Original Deed (including the drafting thereof) and the related transactions at or about the time of execution. Further, the third respondent said that the Original Deed (and every other relevant document, including each of the subsequent Deeds, discussed below) was executed at Mr O's office.
6. The recitals to the Original Deed provided, by way of "background" as follows:

1. The [Westerberg] own property known as [C Street, Town D] being all the land contained in Certificate of Title Volume [...] Folio [...] ("the Property"). The Property is subject to a mortgage in favour of the Commonwealth Bank of Australia. 2. The [Westerberg] wish to discharge their loan to the Commonwealth Bank, and to purchase a new vehicle.

1. By a Contract of Sale between the [Westerberg] and the [Heydari] dated or about [sic] the date of this deed ("the Contract") the [Westerberg] agree to sell the Property to the [Heydari] for $110,000. The value of the property is about $370,000.00.

1. The [Heydari] agree to lease the [1 C Street] residence and the pastures on the Property to the [Westerberg] for a period of 20 years at a nominal rent. The second residence on the property will not form part of the lease. 2. The [Westerberg] wish to treat their children equally, and therefore have agreed to sell the Property to the [Heydari] subject to a continuing obligation on the [Heydari] to pay to [Ms Q] & [Ms R] ("the siblings") an amount of $100,000.00 each, being their agreed share of the equity in the Property, within 10 years of the settlement of the Contract.
2. The operative provisions of the Original Deed relevantly included:

1.1. On settlement the [Heydari] agree to grant a Lease to the [Westerberg] in the form of the lease attached as Annexure 1. The [Heydari] acknowledge that the [Westerberg] may lodge a caveat to secure their interest under the Lease.

2.1. The [Heydari] unconditionally agree to pay $100,000.00 to each of [Ms Q] & [Ms R] on a date which is the later of:

1. The expiration of ten years from the date of settlement of the Contract; or

2. within 6 months of the death of the survivor of the [Westerberg].

2.2. In the event that on the due date for either [Ms Q] & [Ms R] are deceased, the payment due to each of them must be made instead to their respective residuary beneficiaries or, if they die without leaving a valid Will, then to their residuary beneficiaries pursuant to the Wills and Probate Act 1958 (VIC) or any relevant legislation which replaces it.

2.3. To secure the obligation referred to in clause 2.1 the [Heydari] charge the Property. The [Heydari] acknowledge that the [Westerberg] may secure this charge by lodging a caveat on the title to the property. This is subject to the [Heydari] first mortgage to the Commonwealth Bank ("the Bank") and [Westerberg] agrees not to lodge the caveat at the Titles Office until the Banks mortgage is registered.

1. Notwithstanding their claim in these proceedings, the second respondent said in cross-examination that he considered the Original Deed to be a "fair arrangement": the bank loan to the third respondent and him was repaid; they were able to purchase a motor vehicle, as they sought to do; and their two other daughters would also derive a pecuniary benefit in the fullness of time. Similarly, the third respondent agreed that the Original Deed achieved what they wanted; it ensured they would be able to remain upon the Town D property, at least for a considerable period of time, at a nominal rental, and that the payments provided therein for their two other daughters were a fair arrangement for them.
2. The Contract of Sale between the second and third respondents, as vendors, and the husband and wife, as purchasers, dated January 2013, ("Contract of Sale") referred to in recital C to the Original Deed, was tendered into evidence (Exhibit W-2). The second and third respondents' solicitors were specified to be P Law Firm and those of the husband and wife were specified to be L Law Firm. The second respondent said in cross-examination that the third respondent and he attended upon those solicitors on about six occasions "from when we did the deal", namely, the Original Deed and the related transactions in 2013, until 2021.
3. The Town D property was described in the Contract of Sale as being "Lot ... on Plan of Subdivision No. ... being the whole of the land contained in Certificate of Title Volume ... Folio ..." and including "all improvements and fixtures". The "goods sold with the land" were specified to be:

House 1 & 2 - All fixed floor coverings, light fittings, window furnishings and TV antenna

Farm - [...] pressure pump on rain water tank, [...] pressure pump on dam and [...] pressure pump on channel.

1. The payment was specified to be $370,000, payable at settlement. It is common ground that this was based on the value of the Town D property specified in a rates notice.
2. A Transfer of Land dated February 2013 ("Transfer"), signed by all four parties, was tendered into evidence (Exhibit I-6). The Transfer provided for the transfer by the second and third respondents of all their estate in fee simple to the husband and the wife for consideration in the sum of $370,000, as contemplated by recital C to, and cl 2.1 of, the Original Deed.
3. Notwithstanding the consideration in the sum of $370,000 specified in the Contract of Sale and the Transfer, only the sum of $110,000 was then paid by the husband and the wife, the balance of $200,000 being payable as to $100,000 to each of the wife's sisters (namely, the other daughters of the second and third respondents) and deferred to the later January 2023 or six months after the death of the survivor of the second and third respondents.
4. Of the initial sum of $110,000, the sum of $80,000 was paid by the husband and the wife in discharge of the mortgage secured over the Town D property and the balance, in the sum of $30,000, was applied to the purchase of a motor vehicle for the second and third respondents.
5. A lease, as referred to in recital D to, and cl 1.1 of, the Original Deed, was duly executed and annexed thereto ("Lease"). However, rather than providing for the second and third respondents to lease "the [1 C Street] residence and pastures" on the Town D property in accordance with those provisions of the Original Deed, the Lease provided for the second and third respondents to lease "the house known as the [2 C Street] residence & curtilage", at a rental amount of $1 per annum, between February 2013 -January 2033. Additional terms of the Lease provided that:

1. The Tenant shall have:

(i) The right to agist stock (including horses and cattle) on all of the land contained in Certificate of Title Volume [...] Folio [...] in which the premises are located during the term of this lease.

(ii) The right to train horses on the trotting track located on Certificate of Title Volume [...] Folio [...] during the term of this lease.

1. The Landlord shall be responsible for the payment of all Council and [City S Water] rates levied upon Certificate of Title Volume [...] Folio [...].

1. Notwithstanding that the property the subject of the Lease, namely, the 2 C Street residence, did not accord with recital D and cl 1.1 of the Original Deed, rather than the 1 C Street residence, it is common ground that the second and third respondents, at all material times, have occupied the 2 C Street residence, both prior to and since 2013. Further, it is agreed that, when the Original Deed was negotiated and executed, all the parties thereto intended that be the case, as provided by the Lease.
2. The Lease, on its face, appears to be in a standard form, prepared by Consumer Affairs Victoria. It specifies that it is a "Residential Tenancy Agreement" pursuant to s 26 of the Residential Tenancies Act 1997 (Vic) ("RTA"). The RTA was amended by the Residential Tenancies Amendment Act 2018 (Vic), inter alia, to replace the term "residential tenancy agreement" with the term "residential rental agreement".
3. Section 26 of the RTA (as amended) provides:

(1) If a residential rental agreement for a fixed term not exceeding 5 years is in writing, it must be in the prescribed standard form for a fixed term residential rental agreement of no more than 5 years.

(1A) A residential rental agreement for a fixed term of more than 5 years -

(a) must be in writing; and

(b) must be in the prescribed standard form for a fixed term residential rental agreement of more than 5 years unless it is in the form referred to in subsection (1).

(1B) If a periodic residential rental agreement is in writing it must be in the prescribed standard form for a periodic residential rental agreement.

(2) A residential rental provider or renter must not prepare or authorise the preparation of a residential rental agreement for a fixed term not exceeding 5 years in writing in a form that is not in the prescribed standard form.

Penalty: 25 penalty units.

(2A) A residential rental provider or renter must not prepare or authorise the preparation of a residential rental agreement for a fixed term of more than 5 years if the agreement is not either -

(a) in the standard form for a fixed term not exceeding 5 years; or

(b) in the standard form for a fixed term of more than 5 years.

(3) A failure to comply with this section does not make the residential rental agreement illegal, invalid or unenforceable.

1. Section 11 of the RTA provides:

This Act does not apply to a residential rental agreement if the rented premises are included in or on other premises let to the renter by the residential rental provider that are for the time being used, or are ordinarily used, for the purpose of -

(a) grazing, including agistment; or

(b) farming, including dairy farming, pig farming, poultry farming, fish-farming, tree-farming, bee-keeping, viticulture, horticulture, fruit growing or the growing of crops of any kind.

1. The wife, supported by the husband, therefore contends that the RTA does not apply to the Lease because of cl. 1 of the additional terms thereof, namely, that "the rented premises are included in or on other premises let to the renter by the residential rental provider that are for the time being used, or are ordinarily used, for the purpose of" agistment, contrary to s 11 of the RTA.
2. The evidence on behalf of the second and third respondents was that they had legal advice from their solicitor in relation not only to the Original Deed but also the other related transactions at that time, namely, the Contract of Sale, the Transfer and the Lease.
3. In May 2015, the second and third respondents, of one part, and the husband and the wife, of the other part, entered into a second deed under seal, styled "Amending Deed of Family Arrangement" ("Amending Deed") (Exhibit I-2). The Amending Deed was drawn by P Law Firm, solicitors for the second and third respondents, a solicitor from which firm had witnessed the signatures of the second and third respondents to the Original Deed. The recitals to the Amending Deed referred to the parties thereto having entered into the Original Deed and to their wish to "amend the provisions of Clause 2.1 of the Original Deed of Family Arrangement as provided herein".
4. The Amending Deed contained only two operative clauses:

1.1. Clause 2.1 of the original Deed of Family Arrangement is deleted and replaced with the following Clause 2.1:

"2.1 The [Heydari] unconditionally agree jointly and severally to pay $100,000.00 of each of [Mr Westerberg] and [Mrs Westerberg] on a date which is the later of:

(a) The expiration of ten years from the date of settlement of the Contract; or

(b) Within six months of the death of the survivor of [Mr Westerberg] and [Mrs Westerberg]."

2. Confirmation of Original Deed of Family Arrangement

2.1. In all other respects the parties confirm the terms of the Original Deed of Family Arrangement.

1. Other than that the payments of $100,000 were to be made to the second and third respondents, rather than their two other daughters, still upon the later of the expiration of ten years from the date of settlement of the Contract of Sale (namely, January 2023) or within six months of the death of the survivor of the second and third respondents, there was otherwise no material change to the arrangements effected by the Original Deed and, in particular, no detriment effected by the Amending Deed to the second and third respondents. In cross-examination, the third respondent said that, in relation to the Amending Deed, it was entered into by the second respondent and her because, over a "long period of time", whenever she encountered the wife on the Town D property, where both couples lived, the wife would persistently ask her to vary the arrangement in the Original Deed. However, even so, that is not to the point, in circumstances where the Amending Deed worked no detriment to the second and third respondents.
2. In November 2017, the second and third respondents, of one part, and the husband and the wife, of the other part, entered into a third deed under seal, styled "Further Amending Deed of Family Arrangement" ("Further Amending Deed") (Exhibit I-3). The Further Amending Deed was drawn again by P Law Firm, solicitors for the second and third respondents. The recitals to the Further Amending Deed referred to the parties thereto having entered into the Original Deed and the Amending Deed and to their wish to "amend the provisions of Clause 2.1 of the Original Deed of Family Arrangement as amended as provided herein".
3. The Further Amending Deed again contained only two operative clauses:

1.1. Clause 2.1 of the original Deed of Family Arrangement as amended is deleted and replaced with the following Clause 2.1:

"2.1 the [Heydari] unconditionally agree jointly and severally to pay $70,000.00 to each of [Mr Westerberg] and [Mrs Westerberg] on a date which is the later of:

(a) The expiration of ten years from the date of settlement of the Contract; or

(b) Within six months of the death of the survivor of [Mr Westerberg] and [Mrs Westerberg] ."

2. Confirmation of Original Deed of Family Arrangement

2.1. In all other respects the parties confirm the terms of the Original Deed of Family Arrangement but not the Amending Deed of Family Arrangement which is hereby revoked.

1. Although the Further Amending Deed provided for a reduced payment, the second and third respondents agreed that, by then, the husband and the wife had done "a lot of work" and made "improvements" to the Town D property over the time since the Original Deed and the related documents were executed nearly five years earlier. The second respondent said that, in the circumstances, he considered the reduction was fair.
2. In January 2021, the second and third respondents, of one part, and the husband and the wife, of the other part, entered into a fourth deed under seal, styled "Deed of Release" (Deed of Release") (Exhibit I-4). It is not in dispute that the Deed of Release was executed on that date. However, I note that the opening words of the Deed are: "THIS DEED is made the [blank] day of [blank] 2019". The execution clause states, inter alia, that "the parties have hereinto set their hands and seals this [...] day of Jan[uary] 2019 [sic] 2021". In cross-examination of none of the husband, the wife, the second respondent or the third respondent was there any exploration of whether the negotiations in respect of the Deed of Release commenced in 2019 and continued until early 2021.
3. The Deed of Release was drawn, yet again, by P Law Firm, solicitors for the second and third respondents. In cross-examination, the second respondent said that the third respondent and he attended at the offices of that firm on approximately six occasions from when they "did the deal" in 2013 until the time of the Deed of Release. The recitals to the Deed of Release referred to the parties thereto having entered into the Original Deed and the Amending Deed but, curiously, not to the Further Amending Deed.
4. The Deed of Release yet again contained only two operative clauses:
   1. The parties mutually revoke and cancel the Original Deed of Family Arrangement and the Amended Deed upon signing hereof.
   2. The Releasors hereby release the Releasees from any monies that may have been owed by the Releasees to the Releasors either under the Original Deed of Family Arrangement or the Amending Deed.
5. I do not accept the submissions of the husband and the wife that the Lease was therefore revoked and cancelled, nor do I accept the submissions of the second and third respondents that the Contract of Sale and the Transfer were therefore revoked or cancelled. The obligations of the second and third respondents pursuant to the Contract of Sale were no longer executory; the Transfer had been executed and the Town D property had been transferred to the husband and the wife. Similarly, the husband and the wife had executed the Lease of that property to the second and third respondents. Without more, all the Deed of Release effected was the release of the husband and the wife from their executory obligations to pay "any monies that may have been owed by [them] to the [second and third respondents] either under the Original Deed or the Amending Deed", albeit without mention of the Further Amending Deed. However, no party contends that the omission of that latter Deed from the Deed of Release is in any way material.
6. A Notice to Vacate to Renter of Rented Premises, dated March 2023, ("Notice to Vacate") signed by the wife, but not by the husband, was addressed by her to the second and third respondents and served by her upon them on or about that date (Exhibit I-7). The Notice to Vacate appears to be in a standard form also prepared by Consumer Affairs Victoria and purports to be pursuant to s 91ZZO(a) of the RTA and reg 37 of the Residential Tenancies Regulations 2021 (Vic). The termination date specified in the Notice to Vacate was May 2023. The reasons for notice were specified to be as follows:

Premises to be sold 91ZZB

The premises are to be sold or offered for sale with vacant possession (60 days notice)

Note: Premises is to be sold as part of divorce financial settlement.

Damage to the premises (91ZI)

You or your visitor (by act or omission) intentionally or recklessly cause serious damage to the premises, including any safety equipment, or to any common areas (immediate termination)

Note:

-Intentional damage and theft of temporary fencing that provided you access to your dwelling and curtilages AM [...] March 2023.

-Intentional damage to privacy in common area on [...] March 2023 from 6:52-6:58pm (recorded on security cameras).

-Intentional damage to landlord gates [...] March 2023 7.59am.

Threats and Intimidation (91ZK)

You or another person occupying the premises has seriously threatened or intimidated me, my agent, my contractor or my employee. (14 days notice)

Note:

-Threatened to destroy temporary privacy measures on [...] February 2023 when given verbal notice of its erection

-Threatened to destroy privacy measures and forcibly move landlord vehicles using a tractor [...] March 2023. This included [Mr Westerberg] (resident) unlawfully trying to gain access to a vehicle located on the landlord's private residence (CCTV footage)

-Constant verbal threats and intimidation following verbal notice that the property must be sold due to divorce legal proceedings from December 2022.

Non-payment of rent (91ZM) (14 days notice)

You now owe at least 10 years rent. The amount owing is: $10

At the date of this notice your rent is paid up to: Nil paid from agreement signed [...] Feb 2013 - Rent is 10 years overdue

This is notice number 1

If this is notice 1, 2, 3, or 4 and you pay rent before the termination, then this notice will have no effect.

If this is notice number 5 or you do not pay your rent then you must vacate on or before the termination date or your rental provider may apply to VCAT to evict you.

(As per the original)

1. No issue appears to have been taken by the second and third respondents with the fact that only one of the two registered joint proprietors and landlords of the Town D property, namely, the wife, purported to give them notice to vacate the said property. Similarly, despite the contentions now of the wife, supported by the husband, in this Court, that the RTA does not apply to the Lease by reason of cl 1 of the additional terms of the Lease and s 11 of the RTA, the Notice to Vacate, on its face, purported to have been given by her pursuant to s 91ZZO(a) of the RTA, on the grounds set out in ss 91ZZB, 91ZI, 91ZK and 91ZM of that Act.
2. In April 2023, the second and third respondents filed a General Application ("Application") to the Residential Tenancies List of VCAT (Exhibit I-8). Only the wife was named as the respondent to the Application. The rented premises were described as "Converted Shed, agistment premises and trotting track". Each of the second and third respondents purported to bring the Application in the capacity of "Renter (tenant)" and specified the wife to be a "Private rental provider (landlord)". They sought the following relief:
   1. That the Respondent's Notice to Vacate dated [...] 3/23 be set aside or a declaration of invalidity
   2. That there be an injunction obliging the Respondent to remove the barricades and locks installed by her or her agents.
   3. That there by an injunction obliging the Respondent to cause the removal of the car parked across the driveway and the respondent do all acts and things to allow and ensure the Applicants can use and access the driveway and adjustment.
3. In June 2023, orders were made by VCAT on both the Notice to Vacate (Exhibit I-9) and the Application (Exhibit I-10).
4. In respect of the Notice to Vacate, VCAT found that:
   1. The residential rental provider purported to issue a notice to vacate dated [...] March 2023.
   2. The notice contained four different grounds for seeking possession under the Residential Tenancies Act 1997 (the Act):

(i) s.91ZZB Premises to be sold;

(ii) s.912I Damage to the premises;

(iii) s.91ZK Threats and intimidation; and

(iv) s.91ZM Non-payment of rent

1. There is no provision under the Act enabling a composite notice issued under more than one ground.
2. The notice to vacate dated [...] March 2023 is accordingly not valid, and cannot form the basis of an application for an order possession, given the operation of s.91ZZO of the Act (Form of Notice to Vacate).

1. Accordingly, VCAT ordered (Exhibit I-9) that the proceeding constituted by the Notice to Vacate be struck out for want of jurisdiction. However, such want of jurisdiction does not, on the face of that Order, appear to have been by reason of the operation of s 11of the RTA, as the wife, as well as the husband, now contend. Indeed, implicit in that Order is that VCAT considered that the RTA did apply to the Lease.
2. In respect of the Application, VCAT ordered (Exhibit I-10) the wife and her servants or agents to:
   1. Remove pallets, motor vehicles from the temporarill [sic] fenced areas in the far western sector of the rented premises grounds, and to keep this point accessible to the renters via vehicle and pedestrian access;
   2. Remove padlock from gate in [...] sector of the rented premises grounds;
   3. By [...] June 2023, Provide keys to padlock for entry point on northern boundary of the grounds of the rented premises, by posting to [T Law Firm], for the renters, at [...]
3. Further, VCAT made orders (Exhibit I-10) restraining the wife and her servants or agents from:

obtaining or attempting to obtain possession of the rented premises other than in accordance with the provisions of the Residential Tenancies Act 1997

entering the rented premises other than in accordance with the provisions of sections 85, 86 and 87 of the Residential Tenancies Act 1997

obstructing car access

1. Although stipulated to be "final restraining orders", those orders (Exhibit I-10) were stipulated by VCAT to "remain in effect until further order of VCAT" (emphasis added).
2. Again, implicit in that Order (Exhibit I-10) is that VCAT considered that the RTA did apply to the Lease.
3. Both Orders (Exhibits I-9 and I-10) were made by a member, and not by the President or Vice-President, of VCAT.
4. Section 148(1)-(3) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ("VCAT Act") provides:

(1) A party to a proceeding may appeal on a question of law from an order of the Tribunal in the proceeding -

(a) if the Tribunal was constituted for the purpose of making the order by the President or a Vice President, whether with or without others, to the Court of Appeal with leave of the Court of Appeal; or

(b) in any other case, to the Trial Division of the Supreme Court with leave of the Trial Division.

(2) An application for leave to appeal to the Trial Division of the Supreme Court must be made -

(a) within 28 days after the day of the order of the Tribunal, unless the rules of the Supreme Court otherwise provide; and

(b) in accordance with the rules of the Supreme Court.

(2A) The Trial Division of the Supreme Court may grant an application for leave to appeal under this section only if it is satisfied that the appeal has a real prospect of success.

(3) If leave to appeal to the Trial Division of the Supreme Court is granted, the appeal must be instituted -

(a) no later than 14 days after the day on which leave is granted; and

(b) in accordance with the rules of the Supreme Court.

1. There was no application by the wife for leave to appeal against either of the orders.
2. In circumstances where the orders made by VCAT on the application of the second and third respondents restrained the wife and her servants and agents, "until further order of VCAT", from (inter alia) obtaining or attempting to obtain possession of, and to enter, the rented premises on the Town D property, other than in accordance with the provisions of the RTA, in the absence of any further order, those restraining orders remain operative. I was not referred to, nor does there appear to be, any provision in the VCAT Act or the Victorian Civil and Administrative Tribunal Rules 2018 (Vic) equivalent to r 5.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("Rules").
3. Further, insofar as those proceedings may remain pending in VCAT, they could not be transferred, at least directly, from VCAT to this Court under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic). See Freeway Sports Centre Pty Ltd ATF Freeway Sports Centre Unit Trust v Freeway Fitness Pty Ltd ATF Freeway Fitness Unit Trust [2025] FCA 82 at [21] and [37]. See also Burns & Corbett (2018) 265 CLR 304.
4. In the course of the trial, counsel for the wife very belatedly sought to amend the relief sought by her in these proceedings to include some form of unspecified declaratory relief to the effect that, by reason of s 11 thereof, the RTA does not apply to the Lease, presumably to avoid the operation of the orders made by VCAT against her. I refused her application and reserved my reasons therefor. I did so in circumstances where, as I now explain, VCAT implicitly found that it had jurisdiction to entertain the Application of the second and third respondents; it made orders against the wife on that Application; those orders were expressed to remain in effect until further order of VCAT; there has been no further order of VCAT; by reason of the orders being expressed to be "until further order of VCAT", it would appear that the proceedings instituted by the Application may remain pending; and there has been no application for leave to appeal (and, consequently, no appeal) from those orders. Further, in circumstances where the dispute between the wife and the second and third respondents, in relation to the Lease, has been the subject of orders made by VCAT, semble it does not form part of a single justiciable controversy, such as to attract the Court's accrued jurisdiction: see Moretti & Moretti (No 2) [2024] FedCFamC1F 570.
5. Insofar as the husband and wife contend that, by reason of the Deed of Release "revok[ing] and cancel[ling] the Original Deed of Family Arrangement", the Lease was also "revoke[d] and cancel[led]", I do not accept that to be the case. Although the Lease was purportedly entered into pursuant to the Original Deed, a lease being contemplated thereby, it is a separate legal instrument, with legal effect independent thereof. Further, as explained above, the Deed of Release only released the parties thereto from their executory obligations; there is no suggestion therein that it operated ab initio.
6. Further, the Lease is not the lease contemplated by the terms of the Original Deed, although it is agreed to reflect the parties' intentions. The Original Deed provided for a lease of (inter alia) "the [1 C Street] residence ... the [Town D] Property" and specifically not the "second residence on the property". However, the Lease executed by the parties relevantly provides that the rented premises include "the house known as the [2 C Street] residence" which, it is agreed, is the second residence and is the dwelling that the second and third respondents have occupied at all material times, as well as the curtilage.
7. Moreover, the submission by the wife, as well as the husband, that the Deed of Release, which revoked and cancelled the Original Deed of Family Arrangement, also revoked and cancelled the Lease does not appear to have been argued by her in VCAT. Indeed, it runs contrary to her case there, namely, that there was a valid lease, which constituted a residential rental agreement, to which the RTA applied. Accordingly, at least insofar as the wife is concerned, an issue estoppel may arise: see Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589. However, this point was not argued and I do not need to decide it.
8. Therefore, subject to determination of the claim by the second and third respondents that they are the beneficial owners of the Town D property, albeit with an equitable charge thereover in favour of the husband and the wife securing the sum of $110,000, and that the legal title to that property be re-transferred by the husband and the wife to them, I find that the second and third respondents hold a valid lease of the property until January 2033, at an annual rental of $1.00. It is not necessary for the Court to determine the nature of the Lease; VCAT has accepted and exercised jurisdiction in relation to it pursuant to the RTA. Even if the Lease were not a "residential rental agreement" (formerly, a "residential tenancy agreement") pursuant to that Act, it is nevertheless a valid lease at law. See, for example, Radaich & Smith [1959] HCA 45; (1959) 101 CLR 209; Haslam v Money for Living (Aust) Pty Ltd [2008] FCA 1536; (2008) 172 FCR 301; Rial v Gray [2023] VSC 302.
9. I therefore turn to consider the claim by the second and third respondents against the husband and the wife.
10. By their Response to Initiating Application, the second and third respondents relevantly seek a declaration that they "are the beneficial owners of the [Town D] property" and that the husband and the wife "cause legal ownership [there]of to be transferred to" them.
11. By their subsequent Statement of Claim, the second and third respondents relevantly plead, in summary, that:
    • From 2012, the wife "repeatedly requested and pressured" the second and third respondents, in numerous conversations, to sell the Town D property to the husband and her (paragraph 9).
    • The second and third respondents entered into the Original Deed in January 2013 "in response to the repeated requests and pressuring"; without legal advice; and in circumstances where, by reason of the repeated requests and pressuring, "their will was overborne and they were unable to make a judgment as to whether entering into the [Original] Deed was in their best interests" (paragraph 11).
    • The husband and the wife entered into the Original Deed knowing of these matters and thereby took "unconscientious [sic] advantage" thereof (paragraph 12), particularised as follows:

The Husband and the Wife knew of the requests and the pressuring, because they were the persons who engaged in that conduct. The Husband and Wife knew that the [second and third respondents] did not have independent legal advice because they knew that their own lawyers drafted the 2013 Deed and that there was no input from any lawyers on behalf of the [second and third respondents].

The Husband and the Wife knew that the [second and third respondents'] wills were overborne and that they were unable to make a judgment as to whether entering into the 2013 Deed was in their best interests, because it was obvious that the terms of the 2013 Deed were an unequal bargain, being materially disadvantageous to the [second and third respondents], and correspondingly advantageous to the Husband and the Wife. Further, in the circumstances alleged, it is to be inferred that the purpose of the Husband and the Wife in repeatedly requesting and pressuring the [the second and third respondents] into selling the [Town D] Property to them at a substantial discount to its true value was to obtain the benefit of the unequal bargain.

• Accordingly, the husband and the wife are, in equity, disentitled to retain any benefit conferred upon them by the Original Deed (paragraph 13).

1. After merely referring to the Lease, the Amending Deed, the Further Amending Deed and the Deed of Release (at paragraphs 16-22), but no more, the second and third respondents further plead (at paragraph 23) that, on its proper construction, the effect of the Deed of Release was to revoke the entirety of the Original Deed, as amended by the Amending Deed and the Further Amending Deed, such that:
   • the parties thereto are to be restored to their position prior to the Original Deed;
   • the basis for the Transfer has fallen away;
   • the parties thereto are, accordingly, in equity, respectively entitled and obliged to do all such things and to execute all such documents as may be required to restore the position prior to the Original Deed;
   • the second and third respondents are, accordingly, entitled to be restored to the title of the Town D property, subject to a charge in favour of the husband and the wife reflecting the sum of $110,000 paid by them pursuant to the Original Deed;
   • the husband and the wife are compelled in equity to execute, as transferors, a Transfer of Land reconveying title to the Town D property to the second and third respondents; and
   • pending re-transfer of the Town D property to them, the second and third respondents have an equitable interest therein.
2. Counsel for the second and third respondents was unable to articulate how, "on its proper construction", the effect of the Deed of Release was to revoke the entirety of the Original Deed, as amended by the Amending Deed and the Further Amending Deed, such that the basis for the Transfer has fallen away, the parties are to be restored to their position prior to the Original Deed. As discussed above, the Deed of Release, by its terms, operated in relation to the parties' executory obligations, and not ab initio.
3. In particular, there is no application to set aside the Contract of Sale which provided for the sale of the Town D property by the second and third respondents to the husband and the wife for the sum of $370,000, which was effected by the Transfer. Thus, if the "proper construction" and the "effect" of the Deed of Release were as contended by them, the Contract of Sale and the Transfer would remain unaffected. It may have been open to them to contend that, in the circumstances, the balance of the purchase price specified in the Contract of Sale and the Transfer, namely, $260,000, was therefore payable to them, subject, for example, to the statutory period of limitations; however, they did not so contend.
4. Alternatively, the second and third respondents plead (at paragraphs 24-25) that, if the effect of the Deed of Release is not as contended by them, then, by reason of the matters alleged (at paragraphs 9 and 11-13), they are entitled in equity to avoid the Original Deed and all matters and things done pursuant thereto (including but not limited to the Transfer), and they elect to do so, such that the husband and the wife are required to reconvey title to the Town D property to them, subject to a charge in their favour reflecting the sum of $110,000 paid by them pursuant to the Original Deed. However, as observed above, there is no application to set aside, nor any claim in relation to, the Contract of Sale. Further, if their claim in relation to the Original Deed is unsuccessful, on the pleadings, they do not seek to impugn the Amending Deed, the Further Amending Deed or the Deed of Release, notwithstanding their evidence in relation thereto.
5. Further, and in the alternative, the second and third respondents plead (at paragraph 26) that, if the effect of the Deed of Release was not to revoke the entirety of the Original Deed, then it did not revoke the Lease and, subject to them complying therewith, they are entitled to remain at the Town D property until the expiration thereof, and any sale by the husband and the wife of that property must be subject to their leasehold interest. I have considered above the claim in relation to the Lease and, accordingly, if the second and third respondents are otherwise unsuccessful in their claims, as pleaded, the Town D property will be sold, as the husband and the wife seek, but subject to the Lease. However, insofar as the second and third respondents, in the prayer for relief in their Statement of Claim seek a declaration that the Lease "is on foot" (sic), that issue has been the subject of the VCAT proceedings and such a declaration is unnecessary; a finding thereof suffices.
6. As I observed to counsel for the second and third respondents at trial, their affidavits are concerning. With only a few minor exceptions, the contents of each affidavit are otherwise identical with those of the other, including as to typographical errors. In his oral evidence, the second respondent said that the third respondent and he gave instructions together, sitting next to each other, across the desk from the solicitor who drafted their affidavits. He said that the third respondent "did the talking" (Transcript 23 September 2024, p.29 line 34) and he agreed with her, and the solicitor "filled it all in" (Transcript 23 September 2024, p.24 line 26). He said that he did not read the affidavit before signing it; rather, the solicitor read it aloud to him and he signed it, in the presence of the third respondent. He said that, although he did not have his glasses with him then, in any event, he has difficulty reading, as well as difficulty "understanding words" (Transcript 23 September 2024, p.25 line 18).
7. Rule 25.1 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) ("Solicitors' Conduct Rules") provides:

25 Integrity of evidence - two witnesses together

25.1 A solicitor must not confer with, or condone another solicitor conferring with, more than one lay witness (including a party or client) at the same time -

25.1.1 about any issue which there are reasonable grounds for the solicitor to believe may be contentious at a hearing, and

25.1.2 where such conferral could affect evidence to be given by any of those witnesses,

unless the solicitor believes on reasonable grounds that special circumstances require such a conference.

1. Given the oral evidence of the second and third respondents at trial as to the preparation of their affidavits, I consider their affidavit evidence with circumspection. The solicitor who drew their affidavits should not have done so in the circumstances he did, and in breach of r 25.1 of the Solicitors' Conduct Rules. Counsel for the second and third respondents, in her written closing submissions, submits (at p.12) that:

... The affidavits and documents filed in respect of this proceeding have been prepared with the assistance of Victoria Legal Aid, [Town M]. The [second and third respondents] received 'limited' assistance under a VLA scheme for the preparation of their court material; and that trial representation is funded under a section 102 NA of the Family Law Act 1975 and is also limited [sic].

(Footnote omitted)

1. That is no excuse. If lawyers accept cases legally aided by the State, which may be less remunerative than privately funded cases, whilst they are to be commended therefor, they are in no way relieved from their professional obligations.
2. Nevertheless, as I have set out above, in their oral evidence, I found the second and third respondents to be honest witnesses, who endeavoured to answer forthrightly the questions asked of them. Each of them might fairly be described as "salt of the earth" people, who live on the land. The second respondent's evidence is that he does not even own a mobile telephone and leaves administrative and financial matters, such as banking, to the third respondent. He described her as the decision-maker in their relationship. However, the difficulty which befalls them is that their evidence does not assist their case, insofar as they seek equitable relief.
3. The affidavit evidence of the second and third respondents is relevantly as follows.
4. In 2004, the second and third respondents, first allowed the husband and the wife and their children to live in the 1 C Street residence, which was otherwise vacant. This continued until 2010, when the husband and the wife and their children relocated to Sydney. There was an informal agreement for rent of $50 per week to be paid, which was rarely paid or claimed.
5. In 2012, the mortgage secured over the Town D property remained in the order of $80,000. The second and third respondents wished to replace one of their cars but were unlikely to be able to obtain a personal loan, as they were in receipt of the aged pension. They considered selling the Town D property and down-sizing their accommodation.
6. At or about that time, the husband and the wife and their children returned from Sydney and resumed living in the 1 C Street residence. Rent was not paid. When the third respondent informed the wife of the second respondent's and her intention to sell the Town D property, the wife told her that they liked living at the property and did not want to leave.
7. Each of the second and third respondents baldly deposes (at paragraph 17 of their respective affidavits) that the wife "repeatedly pressured us" to put the Town D property into the names of the husband and her, saying, for example: "Have you changed your mind?" and "We want to do things but we don't have any money". It is further alleged that the wife asked the third respondent whether the second respondent and she would consider selling the property to the husband and her on the understanding that they could remain there for the remainder of their lives, saying to her on at least two occasions: "You can both live here until you die". However, as it transpires, neither the Original Deed, nor the Lease, which were eventually drawn on behalf of, and executed (on legal advice) by, the parties so provided.
8. The second and third respondents depose (each at paragraph 18 of their respective affidavits) that, "[i]n response to the pressure and repeated requests" of the wife, they agreed to sell the Town D property to the husband and her, rather than on the open market, on the understanding that they could remain there for the remainder of their lives and that, accordingly, in January 2013, the Original Deed was executed by the parties. As has been observed above, the signatures of the second and third respondents were witnessed by their solicitor, on advice from him, albeit that this deed was not drawn by him.
9. That is the extent of the second and third respondents' evidence, in their affidavits, in relation to the events preceding, and at the time of, the execution of the Original Deed. Insofar as they depose (at paragraph 22 of their respective affidavits) that the Original Deed (as opposed to the Lease) "provided for the 2 C Street residence to be leased to" them, it did not necessarily do so. Recital D to the Original Deed stated that the husband and the wife agreed to lease the 1 C Street residence to the second and third respondents and that the "second residence" (namely, the 2 C Street residence) would not form part of the Lease. However, cl 1.1 of the Original Deed provided for the husband and the wife to grant a lease to the second and third respondents "in the form of the lease attached as Annexure 1", namely, the Lease, the subject property of which is the 2 C Street residence.
10. As recorded above, the evidence of the second and third respondents in cross-examination was that the Original Deed and the other related transactions in 2013 achieved what they then wanted.
11. Notwithstanding that the Statement of Claim does not seek to impugn the Amending Deed, the affidavit evidence of the second and third respondents (at paragraph 26 of their respective affidavits) is that it came about because the wife "frequently complained" that it was not fair for her sisters to be paid anything (as the Original Deed provided), as the husband and she had done work on the Town D property to improve its value. Further, they depose that the wife "also complained that she put so much money into the Town D property that she and [the husband] were strapped for cash". These allegations are difficult to reconcile, if not irreconcilable, with the provisions of the Amending Deed which merely amended the obligation of the husband and the wife to pay $100,000 to each of the second and third respondents, rather than their other daughters. Although, under both the Original Deed and the Amending Deed, the payments would never fall due during the lifetimes of the second and third respondents, under the latter deed, they would be payable to their estates, rather than to their other daughters. They were certainly no worse off. Further, unlike the Original Deed, this time, the Amending Deed was drawn by their solicitors, who again advised them in relation thereto.
12. In cross-examination, the third respondent said that the wife constantly asked her, over a long period of time, supposedly every time she saw her, to change the payees under the Original Deed from her sisters to the second respondent and her, but that they did not wish to do so and so she tried to avoid the wife. However, eventually the second and third respondents acceded to the wife's repeated requests. Not only did they retain lawyers, who this time drew the Amending Deed, as well as advised in relation to it, but, as I have observed above, there has been no identification of any detriment suffered by them in relation to it. The payments did not decrease and the payees became, effectively, their estates, rather than their other daughters.
13. Notwithstanding that the Statement of Claim does not seek to impugn the Further Amending Deed, the affidavit evidence of the second and third respondents (at paragraph 28 of their respective affidavits) is that it "came about in similar circumstances to that of the [Amending] Deed", namely that the wife "frequently complained" that the husband and she had no money and that she did not agree that the second and third respondents should be paid $100,000 each. The Further Amending Deed reduced those payments to $70,000 each. However, as observed above, the payments, even as reduced, could never fall due during their lifetimes. In any event, the second and third respondents' lawyers again advised in relation to, and drew, the Further Amending Deed.
14. The third respondent, who affirmed her affidavit on 1 July 2024, deposes (at paragraph 28):

... [The wife] kept coming over to our house and every time she saw me (nearly every day for weeks), she said "Have you changed your mind?". I told [the wife] I did not agree on numerous occasions however she kept persisting and pressuring. Ultimately, [the second respondent] and I gave in to [the wife's] pressure as it was too difficult for [the second respondent] and I and started to effect [sic]our health.

(Underlined emphasis added)

1. The second respondent, who affirmed his affidavit on 8 July 2024, deposes (similarly at paragraph 28):

... [The wife] did not agree that [the third respondent] and I ought to be paid $ 100,000 each. [The wife] kept coming over to our house and every time she saw [the third respondent], she said "Have you changed your mind?". [The third respondent] told [the wife] she did not agree on numerous occasions however she kept persisting. Ultimately, [the third respondent] and I gave in to [the wife's] persistent requests as it was too difficult for [the third respondent] and I and it started to effect [sic] our health.

(Underlined emphasis added)

1. The material differences in the evidence of each of the second and third respondents is underlined. No evidence was led by them as to how their health started to be affected and/or to substantiate that allegation.
2. Notwithstanding that the Statement of Claim does not seek to impugn the Deed of Release, the affidavit evidence of the second and third respondents (at paragraph 30 of their respective affidavits) is that the "context" for that last deed "was similar to the circumstances that gave rise to both the" Amending Deed and the Further Amending Deed, namely, that the wife "approached [the third respondent] and complained that she and [the husband] had no money and that it was not fair that she and [the husband] should have to pay [the second and third respondents] any more money".
3. Each of the second and third respondents deposes (at paragraph 31 of their respective affidavits) that they -

... were disappointed when we realised there was not a life interest reflected in the 2021 Deed, however we did not pursue the matter due to our age and the expense of rectifying the issue (and we did not want to make [the wife] and [the husband] angry again). We also did not pursue the matter because [the wife] gave repeated assurances that [we] could remain at the [Town D] property for life, notwithstanding the terms of the 2021 Deed. [The wife] said "I am never going to sell it, we love living here".

1. However, neither the Deed of Release, nor any of the preceding deeds, in respect of which the second and third respondents received legal advice, referred to a life interest in the Town D property in their favour. The only provision in any of the deeds for them to remain upon the property, in any capacity, is contained in the Original Deed and it is for a 20-year lease.
2. They each further depose (at paragraph 32 of their respective affidavits) that they -

... did go back to the solicitor that represented us in relation to the 2021 Deed and he acknowledged that our instructions were to agree to a life interest and not a 20 year lease.

1. In cross-examination, each of the second and third respondents seemed to suggest that they believed and/or were advised that the Original Deed contained, or was intended to contain, provision for a life interest. However, not only did the Original Deed specifically provide for a fixed term lease of 20 years, but so did the Lease itself. The second respondent otherwise said that the Original Deed and the related transactions in 2013 were "a fair arrangement" (Transcript 24 September 2024, p.20 line 39), which achieved what they wanted in 2013.
2. Further, as referred to above, the second and third respondents had legal advice, not only in relation to the Original Deed in 2013, but also in relation to the subsequent Deeds into which they entered, in 2015, 2017 and 2021, the latter three of which were drawn by their lawyers, and all of which were executed at their lawyer's office. Had there been an error in the Original Deed, with the benefit of legal advice over the ensuing eight years, they had at least three opportunities to seek to rectify such error. Indeed, the third respondent said in cross-examination that the second respondent and she knew, or at least realised, at or shortly after the time they executed the Original Deed that it did not provide for a life interest in the Town D property and, notwithstanding that it was discussed with their lawyer, nothing was done to remedy that in the three subsequent Deeds executed over the ensuing eight years (Transcript 25 September 2024, p.49 line 4 - p.50 line 15). The height of the third respondent's evidence in this regard, in cross-examination, was that she was "disappointed" when she realised that the Deed of Release did not confer upon the second respondent and her a life interest in the property. Strangely, in cross-examination, which was not the subject of re-examination, when the third respondent was asked whether the second respondent and she were seeking to live at the Town D property for the remainder of their lives, she responded in the negative and said that they were only seeking to remain there until the expiration of the 20-year term of the Lease (Transcript 25 September 2024, p.58 lines 46-47).
3. More than a year later, the husband and the wife separated and these proceedings were instituted, in which, as the registered proprietors of the Town D property, they seek the sale thereof and the division of the net proceeds of sale between them, which, when the evidence of the second and third respondents is distilled, appears to have been the impetus for their involvement in these proceedings. Insofar, at least, as they seek to retain the benefit of the Lease, which expires in 2033 (subject to any further proceedings in VCAT), I have determined that to be the case.
4. However, insofar as the second and third respondents, by their Response to Initiating Application and their Statement of Claim, seek a declaration that they are the beneficial owners of the Town D property and a consequential order for the transfer of the property to them, at trial, their counsel struggled to identify the basis of their claim. They may have received a bad bargain in fact; however, that does not necessarily amount to a bad bargain at law or in equity.
5. As observed above, notwithstanding the evidence of the second and third respondents in relation to the Amending Deed, the Further Amending Deed and the Deed of Release, their Statement of Claim only seeks to impugn the Original Deed. In the circumstances, on their pleading, their affidavit evidence in relation to their entry into the Amending Deed, the Further Amending Deed and the Deed of Release, is not relevant thereto.
6. In Clifton & Aspen [2023] FedCFamC1F 376 at [111]-[112], in which an application was made on the fourth day of trial to amend Further Amended Points of Claim, Aldridge J said:
   1. Certainly there is the wife's attitude to the litigation itself. As is common in cases commenced by way of application or summons, in any court, complex legal and equitable claims are often required to be the subject of pleading in points of claim and points of defence so as to identify precisely the relief sought and the exact legal and factual basis on which it is contended that such relief is sought. Such a course is common in this court, particularly when such claims are made against third parties to the marriage.
   2. Points of claim and points of defence identify the metes and bounds of the dispute that the applicant seeks to make against other respondents and, as with the statements of claim and defence, parties are bound by their pleadings. The case they seek to run is to be heard and determined by reference to the pleadings. Pleadings are not therefore not a general invitation to dance, but a precise articulation of the allegations made against the respondents. Contrary to the submissions of at least junior counsel for the wife in this matter, there is no right to amend the points of claim at any time the applicant feels fit.
7. In the present case, despite some initial prevarication on the part of counsel for the second and third respondents, ultimately, there was no application to amend the Statement of Claim.
8. However, in Quincey & Quincey [2024] FedCFamC1A 30 at [28], in dismissing an appeal against an order setting aside a binding financial agreement, where the appellant contended that the primary judge was restricted to the sole non-disclosure issue advanced by the respondent in her pleadings, but had made findings based upon matters not pleaded, Tree J referred to Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279 at 296-297, where Dawson J said:

It is, of course, the purpose of pleadings to define the issues between the parties so that they may know the case which they have to meet and in order that the proceedings upon trial may be conducted in an orderly fashion by reference to those issues. The defined issues provide the basis upon which evidence may be ruled admissible or inadmissible upon the ground of relevance. But modern pleadings have never imposed so rigid a framework that if evidence which raises fresh issues is admitted without objection at trial, the case is to be decided upon a basis which does not embrace the real controversy between the parties. Special procedures apart, cases are determined on the evidence, not the pleadings. It is incumbent upon the trial judge to see that the pleadings or particulars are amended so that the record reflects the proceedings as they have been conducted, but his failure to do so will not result in the invalidity of those proceedings: Dare v Pulham (1982) 148 CLR 658 at 664; Water Board v Moustakas (1988) 62 ALJR 209 at 211; 77 ALR 193 at 197; Leotta v Public Transport Commission (NSW) (1976) 50 ALR 666 at 668; 9 ALR 437 at 446; Maloney v Commissioner for Railways (NSW) (1978) ALJR 292 at 295; 18 ALR 147 at 151.

(Emphasis added by Tree J)

Both before and after that decision, many other cases have stated identical principles, of which Prysmian Cavi E Sistemi SRL v Australian Competition and Consumer Commission [2018] FCAFC 30 at [69]-[73] (adopting Betfair Pty Ltd v Racing New South Wales [2010] FCAFC 133 at [50]-[52]) is but one example.

1. Similarly, in Lund & Whittall [2024] FedCFamC1F 271 at [33], albeit dismissing an application to join third parties, Berman J nevertheless said at [33]:

This Court does not rely upon or require pleadings. It is permissible to gain an understanding of the nature and extent of the claim and the particulars of the claim from documents properly identified. In this regard, the substantial affidavit material and written submission documents seeks to set out the parameters of the applicant's claim. It is not for me to determine to finality the orders sought by the applicant against the second respondent unless I am satisfied that they are so lacking in any merit that they would not be able to resist an application for summary dismissal.

1. Justice Berman referred at [31] to Trawl Industries of Australia Pty Ltd v Effem Food Pty Ltd [1992] FCA 272; (1992) 108 ALR 335 at 347, where Gummow J said:

However, as indicated above, for the law of Australia it is most suitable to focus upon the substance of the two proceedings as distinct from their form. This reflects the constitutional basis of federal jurisdiction, to which I have referred earlier in these reasons. Also, it allows for the very many controversies which now come before superior courts, federal and state, without pleadings. And even where pleadings are necessary or are ordered, the effect of the judicature system of pleading, now in general operation in Australia, is as described by Barwick CJ:

[T]here is no necessity to assert or identify a legal category of action ...It is sufficient in matters in the Federal Court to assert the facts on which the plaintiff or applicant party relies and to nominate the remedies which he seeks as a consequence of the occurrence of those facts." Philip Morris Incorp v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 473 ; 33 ALR 465.

1. As Berman J observed at [32], that passage was quoted with approval by the Full Court in Pagliotti & Hartner [2009] FamCAFC 18; (2009) 41 Fam LR 41.
2. In Yong & Weng [2024] FedCFamC1F 440; (2024) 70 Fam LR 1 at [21]-[22], in granting an application to join a third party, it was observed that this Court is not a court of pleadings and that, even where pleadings have been ordered and/or filed, proceedings are determined on applications and responses (and, on occasion, replies) and the evidence in support thereof, not on pleadings. Accordingly, at [28], the Court held, at an interlocutory stage, that -

... especially in this Court, the purpose of pleadings, where ordered and/or filed, is to define the issues between the parties so that they may know the case which they have to meet and in order that the proceedings, at trial, may be conducted in an orderly fashion by reference to those issues. However, they are not determinative of proceedings, which are delineated by the orders sought in applications, responses and/or replies, and the evidence adduced in support thereof.

1. Ultimately, it is a question of degree and the circumstances in the relevant case. However, even in relation to the second and third respondents' complaints in their affidavit evidence, regarding their subsequent entry into the Amending Deed, the Further Amending Deed and the Deed of Release, I have already observed that they were drawn by their solicitors. Further, they concede they had advice from their lawyers prior to their entry into each of those Deeds in 2015, 2017 and 2021, as well as the Original Deed in 2013. In relation to the last of those deeds, namely, the Deed of Release, they contend that the legal advice was wrong. If that be the case, their remedy, if any, may lie elsewhere.
2. The second and third respondents, in their written closing submissions, refer inter alia to Donis v Donis [2007] VSCA 89; (2007) 19 VR 577 at [61]. The Victorian Court of Appeal there said:

In my view, that contention should also be rejected. It is true that there never was an application to amend the statement of claim to include the unpleaded elements of detriment. With respect, the judge should have insisted that the matter be attended to. As Priestley JA said in Wong v Mura, "if issues not apparent from the pleadings are allowed to be litigated at a trial, the terms on which this is permitted should include an order that the pleadings be amended accordingly". Nevertheless, authority is clear that failure to amend does not necessarily preclude a judgment upon the facts as have emerged. It is necessary to look at the actual conduct of the case to see whether the point was taken at trial. And in this case it is plain that from the first day of the trial to the last the matters now complained of were squarely in issue.

(Footnotes omitted)

1. In the present case, counsel for the second and third respondents ultimately expressly disavowed any application, prior to the close of evidence, to amend the pleadings. However, in her written closing submissions, she presented to the Court a pastiche of submissions that, in large part, were entirely unrelated to the evidence as it fell, rather than as she and they may have wished it fell, out at trial. In her oral address, counsel disavowed reliance upon duress but maintained reliance upon undue influence and unconscionability. Ultimately, as to the observations of the Court of Appeal upon which counsel relied, it is a question of degree; proceedings in this Court, especially financial proceedings under Pt VIII of the FLA, are adversarial and responsibility therefor must lie with those who present the case. In any event, on the evidence and my finding in relation thereto, I do not find the second and third respondents' complaints about the various transactions made out, so as to impugn them.
2. Further, in relation to the Amending Deed, it merely amended the obligation of the husband and the wife so as to pay the sum $100,000 to each of the second and third respondents, rather than their other daughters, as provided under the Original Deed. As I have observed above, under both Deeds, the payments would never fall due during the lifetimes of the second and third respondents. However, under the Amending Deed, the payments would, at least, be made to their estates, rather than their other daughters. They were certainly no worse off, even if they entered into that Deed by reason of the wife's frequent complaints, as they each allege at paragraph 26 of their respective affidavits.
3. In relation to the Further Amending Deed, which reduced the amount of the husband and wife's payment obligations from the sum of $100,000 to the sum of $70,000 to each of the second and third respondents, again, the payments would never fall due during their lifetimes. Accordingly, they were similarly no worse off, even if they entered into that Deed by reason of the wife's persistent pressure, as they each allege at paragraph 28 of their respective affidavits. Further, the second respondent conceded that he considered the reduction to be fair because of the conservation of, and improvement to, the Town D property by the husband and the wife.
4. It was difficult to understand the legal basis for the claims of the second and third respondents, which seemed to vary over the course of the trial. Their claims were not even elucidated by the time their written closing submissions were filed and subsequently orally addressed by counsel on their behalf. Indeed, not only were they not elucidated but, in fact, they were further clouded thereby, including by claims that had hitherto never been raised at any time before the close of evidence, such as claims of promissory estoppel.
5. In summary, it is asserted on behalf of the second and third respondents, in their written closing submissions, that the wife exercised undue influence upon them between 2012-2021; that the wife "engaged in a course of conduct of repeated demands which was so overwhelming that the [second and third respondents] were no longer able to exercise sound judgement as to the consequences of entering into the various deeds and the transfer of land which were to their clear detriment"; and that, by reason thereof, the husband and the wife engaged in unconscionable conduct, commencing with the Original Deed (at p.3). However, neither on the evidence, as analysed above, nor on the application of legal principles, considered below, do I find this to be the case.
6. Insofar as it is asserted in the second and third respondents' written closing submissions (at p.11) that the wife "took advantage of her parents' vulnerability knowing full well that they wanted to live peacefully and without conflict", it was not explained how any such desire gave (or gives) rise to a vulnerability on their part. Further, insofar as reference is made to paragraph 28 of each of their affidavits, wherein they depose that the wife's persistent requests (on the evidence of the second respondent) and/or pressure (on the evidence of the third respondent) "started to effect [sic]" their health, not only is that conclusionary evidence not supported by evidence of any acts, facts, matters or things giving rise thereto, but no corroborative medical evidence was adduced by them. Further, notwithstanding the assertion in their written closing submissions, I do not find it to be the case, on their evidence, that the repeated requests or demands of the wife were "overwhelming" and that, by reason thereof, the second and third respondents were not able to exercise sound judgment as to the consequences of entering into the various Deeds and the Transfer.
7. As to the legal advice received by the second and third respondents in relation to each of the four Deeds they executed between 2013-2021, it is conceded by them (at p.4 of their written closing submissions) that "an issue waiver applies" to what would otherwise be legal professional privilege pertaining thereto. However, no evidence was adduced by them from the lawyer who acted on their behalf during this protracted period and, given that concession, I infer that any such evidence would not have assisted their case: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.
8. In Thorne & Kennedy [2017] HCA 49; (2017) 263 CLR 85, the High Court considered the concepts of duress, undue influence and unconscionable conduct and the inter-relationship between.
9. In relation to duress, the plurality (Kiefel CJ, Bell, Gaegler, Keane and Edelman JJ) said at [26]-[27]:
   1. The vitiating factor of duress focuses upon the effect of a particular type of pressure on the person seeking to set aside the transaction. It does not require that the person's will be overborne. Nor does it require that the pressure be such as to deprive the person of any free agency or ability to decide. The person subjected to duress is usually able to assess alternatives and to make a choice. The person submits to the demand knowing "only too well" what he or she is doing. As Holmes J said in U_nion Pacific Railroad Co v Public Service Commission of Missouri_:

"It always is for the interest of a party under duress to choose the lesser of two evils. But the fact that a choice was made according to interest does not exclude duress. It is the characteristic of duress properly so called."

1. Historically, the primary constraint upon an action based on duress was the threats that were recognised as sufficient for an action. The early common law rule was that the duress which was necessary to set aside an agreement required an unlawful threat or conduct in relation to the person's body, such as loss of life or limb. Even duress in relation to a person's goods was not a basis upon which an agreement could be avoided at common law, although it was a basis for restitution of a payment of money. The abandonment of this common law restriction introduced a difficult question. This question is whether duress should be based on any unlawful threat or conduct or, alternatively, whether other illegitimate or improper, yet lawful, threats or conduct might suffice. In 1947, Dawson described that question as one "which has chiefly arrested the modern development of the law of duress".

1. In relation to A_ustralia & New Zealand Banking Group Ltd v Karam_ [2005] NSWCA 344; (2005) 64 NSWLR 149, where New South Wales Court of Appeal held at [66], consistently with the older common law cases, that duress at common law requires proof of threatened or actual unlawful conduct, the plurality in Thorne & Kennedy said at [29]:

... it is not necessary to address the arguments in favour of or against the conclusion of the New South Wales Court of Appeal that duress at common law requires proof of threatened or actual unlawful conduct. Nor is it necessary to consider whether the recognition of lawful act duress adds anything to the doctrine concerned with unconscionable conduct.

1. Even though ultimately disavowed, in no way does the evidence of the second and third respondents give rise to a case of duress in respect of any of the four Deeds. There was, on the part of the husband and wife, no "unlawful threat or conduct or ... other illegitimate or improper, yet lawful, threats or conduct" (Thorne & Kennedy at [27]).
2. In relation to undue influence, the plurality referred at [30] to the decision of Lindley LJ in Allcard v Skinner [1887] UKLawRpCh 151; (1887) 36 Ch D 145 at 183 and said:

In Allcard v Skinner, Lindley LJ said that "no Court has ever attempted to define undue influence". One reason for the difficulty of defining undue influence is that the label "undue influence" has been used to mean different things. It has been used to include abuse of confidence, misrepresentation, and the pressure which amounts to common law duress. Each of those concepts is better seen as distinct. Nevertheless, the boundaries, particularly between undue influence and duress, are blurred. One reason why there is no clear distinction is that undue influence can arise from widely different sources, one of which is excessive pressure. Importantly, however, since pressure is only one of the many sources for the influence that one person can have over another, it is not necessary that the pressure which contributes to a conclusion of undue influence be characterised as illegitimate or improper.

(Footnotes omitted)

1. At [31], the plurality in Thorne & Kennedy referred to a number of cases where, by reason of the effect of factors such as pressure, a person "has no free will, but stands in vinculis [in chain]" and is not "a free agent, and is not equal to protecting himself" and where, the deliberate contrivance of another, "which naturally includes pressure", gives rise to "such influence over the mind of the other that the act of the other is not a 'free act'". This is to be contrasted with the absence of undue influence, characterised as a "free and well-understood act" and "the free exercise of ... will".
2. At [32], the plurality said:

The question whether a person's act is "free" requires consideration of the extent to which the person was constrained in assessing alternatives and deciding between them. Pressure can deprive a person of free choice in this sense where it causes the person substantially to subordinate his or her will to that of the other party. It is not necessary for a conclusion that a person's free will has been substantially subordinated to find that the party seeking relief was reduced entirely to an automaton or that the person became a "mere channel through which the will of the defendant operated". Questions of degree are involved. But, at the very least, the judgmental capacity of the party seeking relief must be "markedly sub-standard" as a result of the effect upon the person's mind of the will of another.

(Footnotes omitted)

There are different ways to prove the existence of undue influence. One method of proof is by direct evidence of the circumstances of the particular transaction. That was the approach relied upon by the primary judge in this case. Another way in which undue influence can be proved is by presumption. This presumption was relied upon by Ms Thorne in this Court as an alternative. A presumption, in the sense used here, arises where common experience is that the existence of one fact means that another fact also exists. Common experience gives rise to a presumption that a transaction was not the exercise of a person's free will if (i) the person is proved to be in a particular relationship, and (ii) the transaction is one, commonly involving a "substantial benefit" to another, which cannot be explained by "ordinary motives", or "is not readily explicable by the relationship of the parties". Although the classes are not closed, in Johnson v Buttress Latham CJ described the relationships that could give rise to the presumption as including parent and child, guardian and ward, trustee and beneficiary, solicitor and client, physician and patient, and cases of religious influence. Outside recognised categories, the presumption can also be raised by proof that the history of the particular relationship involved one party occupying a similar position of ascendency or influence, and the other a corresponding position of dependency or trust. In either case, the presumption is rebuttable by the other party proving that the particular transaction or transfer, in its particular circumstances, was nevertheless the result of the weaker party's free will.

(Footnotes omitted)

1. Again, in no way does the evidence of the second and third respondents give rise to a case of undue influence in respect of any of the four Deeds. The pressure alleged against the husband and the wife, does not amount to constraint on the part of the second and third respondents in assessing alternatives and deciding between them, or the substantial subordination of the will of the latter to that of the former.
2. In relation to unconscionable conduct, the plurality said at [38]-[40]:
   1. A conclusion of unconscionable conduct requires the innocent party to be subject to a special disadvantage "which seriously affects the ability of the innocent party to make a judgment as to [the innocent party's] own best interests". The other party must also unconscientiously take advantage of that special disadvantage. This has been variously described as requiring "victimisation", "unconscientious conduct", or "exploitation". Before there can be a finding of unconscientious taking of advantage, it is also generally necessary that the other party knew or ought to have known of the existence and effect of the special disadvantage.
   2. In Commercial Bank of Australia Ltd v Amadio, Deane J said that the equitable principles concerning relief against unconscionable conduct are closely related to those concerned with undue influence. The same circumstances can result in the conclusion that the person seeking relief (i) has been subject to undue influence, and (ii) is in a position of special disadvantage for the purposes of the doctrine concerned with unconscionable conduct. For instance, in Diprose v Louth [No 1], the trial judge, King CJ, observed that both doctrines were satisfied where the defendant "was in a position of emotional dominance which gave her an influence over the [plaintiff] which she exercised unconscientiously to procure the gift of the house". Before the High Court in that case, Mr Diprose relied only upon the ground of unconscionable conduct.
   3. Although undue influence and unconscionable conduct will overlap, they have distinct spheres of operation. One difference is that although one way in which the element of special disadvantage for a finding of unconscionable conduct can be established is by a finding of undue influence, there are many other circumstances that can amount to a special disadvantage which would not establish undue influence. A further difference between the doctrines is that although undue influence cases will often arise from the assertion of pressure by the other party which might amount to victimisation or exploitation, this is not always required. In Commercial Bank of Australia Ltd v Amadio, Mason J emphasised the difference between unconscionable conduct and undue influence as follows:

"In the latter the will of the innocent party is not independent and voluntary because it is overborne. In the former the will of the innocent party, even if independent and voluntary, is the result of the disadvantageous position in which he is placed and of the other party unconscientiously taking advantage of that position."

1. Again, in no way does the evidence of the second and third respondents establish that they were subject to a special disadvantage, which seriously affected their ability to make a judgment as to their own best interests, and of which the husband and the wife were aware and unconscientiously took advantage.
2. Referring to its decision in Kakavas v Crown Melbourne Ltd [2013] HCA 25; (2013) 250 CLR 392 at [14], shortly prior thereto, the High Court relevantly concluded in Thorne & Kennedy at [41]:

In any case where a transaction is sought to be impugned by the operation of vitiating factors such as duress, undue influence, or unconscionable conduct, it is necessary for a trial judge to conduct a "close consideration of the facts ... in order to determine whether a claim to relief has been established". ...

1. I have endeavoured to undertake such consideration of the facts; however, having done so, I have determined that the second and third respondents' claim to equitable relief has not been established. In particular, I am not satisfied that there was any undue influence by the wife (and/or the husband) upon the second or third respondents or that they engaged in unconscionable conduct towards them in respect of any or all of the multitude of transactions entered into by them between 2013-2021. The second and third respondents were, at all material times, legally represented and advised in relation thereto. They concede that legal professional privilege in relation to the transactions is the subject of issue waiver but have failed to call their solicitors, leading me, in the circumstances, to infer that such evidence would not assist their case. Even if the Original Deed and the other transactions in 2013 related thereto arose out of undue influence and/or unconscionable conduct (which I do not find to have been the case), the Amending Deed and the Further Amending Deed, which were drawn by the second and third respondents' lawyers, and with their advice, each provide that "[i]n all other respects the parties confirm the terms of the Original Deed of Family Arrangement".
2. It has not been demonstrated how the Amending Deed in 2015 was to the detriment of the second and third respondents. As for the Further Amending Deed in 2017, whilst it decreased the amounts payable by the husband and the wife by $60,000 in total, this was in circumstances where the second and third respondents conceded that, by 2017, improvements had been made to the Town D property. Further, that latter Deed was similarly not to their detriment, as the payments, even as reduced, would never be received by them during their lifetimes. Insofar as the Deed of Release was concerned, even if it did not achieve the purpose the second and third respondents allegedly desired, they concede that they again had legal advice in relation thereto and their remedies, if any, lie elsewhere. However, in cross-examination, the third respondent said that she had no complaint regarding the second respondent's and her solicitor, Mr O, and that they have not sued him to date.
3. In the circumstances, I am not satisfied that the second and third respondents have made out their claim in respect of an asserted equitable interest in the Town D property. Conversely, whilst I find that the property is owned, at law and in equity, by the husband and the wife, they hold it subject to the Lease to the second and third respondents, the term of which expires in 2033.
4. The Town D property has been valued by a jointly appointed single expert in the sum of $800,000, with vacant possession, and in the sum of $406,000, subject to the Lease. However, the husband and the wife agree and seek that the property be sold and, whilst I shall order that it be sold subject to the Lease, in the circumstances, no value need be attributed to it. I cannot discount the possibility that there may be further proceedings between the husband and the wife and the second and third respondents in VCAT. Rather, the net proceeds of sale, whatever they may be, will be divided in accordance with their proportionate shares, as hereinafter determined.

1. The husband contends for a number of add-backs against the wife.
2. In Trevi & Trevi [2018] FamCAFC 173; (2018) FLC 93-858 Murphy J, with whom Alstergren DCJ and Kent J agreed, set out guidelines for adding back to the property available at trial. At [27]-[30], in relation to dissipation of property and expenditure other than on legal fees, his Honour said:
   1. The Full Court held in Omacini and Omacini that addbacks fall into "three clear categories": where the parties have expended money on legal fees; where there has been a premature distribution of matrimonial assets; and "waste" or wanton, negligent, or reckless dissipation of assets.
   2. However, the Full Court also made it clear that an addback does not necessarily occur whenever "a party has expended money realised from the disposition of assets that existed as at the date of separation", the Full Court describing such a proposition as "unduly simplistic". An earlier Full Court made the same point, saying that adding back is "the exception rather than the rule".
   3. The fundamental precept that addbacks are exceptional, reflected in the decisions just referred to, also mirrors what has been said in earlier decisions of the Full Court that, for example, "the Family Court must take the property of a party to the marriage as it finds it" at trial. An important parallel proposition is that the parties do not "go into a state of suspended economic animation" after separation. Thus, reasonably incurred expenditure does not usually come within accepted categories of addback.
   4. Two fundamental premises emerge from Omacini and the authorities preceding it. First, "adding back" is a discretionary exercise. When the discretion is exercised in favour of adding back, it reflects a decision that, exceptionally, in the particular circumstances of a case, justice and equity requires it. The second premise is its corollary: in cases that are not "exceptional" justice and equity can be achieved, not by adding back, but by the exercise of a different discretion - usually by taking up the same as a relevant s 75(2) factor. Indeed, it has been said that the latter is "a course which is, perhaps, technically more correct" than adding back to the list of existing interests in property.

1. In relation to expenditure on legal fees, Murphy J held same to be "a category of addback ... imbued with considerations specific to that expenditure" (at [31]). His Honour referred with approval to the earlier decision of the Full Court in NHC & RCH [2004] FamCA 633; (2004) FLC 93-204 at [56]-[58], where the Full Court said:
   1. In summary, we consider that the above mentioned decisions of the Full Court establish that, while the treatment of funds used to pay legal costs remains ultimately a matter for the discretion of the trial Judge, in determining how to exercise that discretion, regard should be had to the source of the funds.
   2. If the funds used existed at separation, and are such that both parties can be seen as having an interest in them (on account, for example, of contributions), then such funds should be added back as a notional asset of the party, who has had the benefit of them.
   3. If funds used to pay legal fees have been generated by a party post-separation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance), they would generally not be added back as a notional asset; nor would any borrowing undertaken by a party post- separation to pay legal fees be taken into account as a liability in the calculation of the net property of the parties. Funds generated from assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement may need to be looked at differently from other post-separation income or acquisitions.
2. Justice Murphy in Trevi said at [36]-[42]:
   1. Paid legal fees occupy a particular position in the consideration of addbacks by reason of s 117(1) of the Act; a matter not relevant to any other form of expenditure or dissipation of property the subject of an addback claim.
   2. An order failing to addback legal costs is a pre-emptive decision about one party paying the other's legal costs. The statutorily prescribed default position is that neither party pays all or some of the other party's costs.
   3. If, contrary to the demands of that section, there is to be a payment of costs, the award is dependent upon a finding of justifying circumstances which, in turn, is dependent upon (non-exhaustive) considerations all of which are informed by antecedent events - for example, whether one party has been "wholly unsuccessful" and "the conduct of the parties to the proceedings". An award of the costs of trial, if any, is in the usual run of events made after the respective entitlements of the parties to a settlement of property have been assessed and, importantly, any awarded costs are paid from the assessed entitlement to property received by the paying party.
   4. As has been said, legitimate guidelines "guide the exercise of a discretion"; they do not replace it. Guidelines, must "[preserve], so far as it is possible to do so, the capacity ... to do justice according to the needs of the individual case". The decision to addback or not addback paid legal fees remains a matter of discretion. But, a finding that it is just and equitable to not addback an amount of legal fees so paid is a finding that it is just and equitable for the other party to contribute to the costs of the first party in that proportion as part of an overall assessment of the justice and equity governing their property division.
   5. The considerations just referred to are plainly always important and central to the exercise of that discretion in respect of paid legal fees.
   6. The passages from NHC & RCH, quoted above, draw a distinction between legal costs met from property that would otherwise be available at trial and legal costs met from funds "generated by a party post-separation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance)". The proposition there advanced, that such expenditure "would generally not be added back", also needs to be seen as a guideline informing the relevant discretion rather than determining it. A further distinction is suggested in NHC & RCH between funds generated in that manner and "[f]unds generated from assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement".

1. The addbacks against the wife for which the husband contends is reflected in their revised joint balance sheet (Exhibit J-1). They have their genesis in two sums of money received by the wife after separation.
2. First, in September 2023, the wife was paid the total sum of $447,906.51 from DVA ("2023 DVA payment"). The payment was directly deposited by DVA that day into a Westpac Bank account no. ...10 in the joint names of the wife and the fourth respondent ("Westpac Bank account").
3. Of this amount, the sum of $223,682.54 was described as "a one time lump sum payment" by way of compensation (Exhibit H-11, dated July 2023). Further, the sum of $208,583.22 was paid pursuant to a Permanent Impairment determination dated July 2023 under the Military Rehabilitation and Compensation Act 2004 (Cth) for "each eligible young person who [was] dependent on [her] for economic support on the relevant date", being February 2022, namely, the children X and Mr J (Exhibit H-10, dated September 2023). These two amounts total $432,265.76; the difference of $15,640.75 between that total and the sum of $447,906.51 deposited into the Westpac account is unexplained.
4. Upon receipt, the 2023 DVA payment was immediately transferred that day by the wife into a bank account in the sole name of the fourth respondent. Immediately prior to and following the said deposit and withdrawal, the balance of the Westpac Bank account was in the sum of $3,946.82 (Exhibit H-4).
5. Nearly a month later, the sum of $445,000 was re-transferred into the Westpac Bank account (Exhibit H-5).
6. Steps to obtain the 2023 DVA payment had been underway for over a year prior to the wife's receipt thereof. On 21 September 2022, Mr U, who described his role as an "advocate" sent an email to DVA, in which he relevantly stated as follows:

... With regards to [the wife's] assessments, is it possible to obtain an extension to have them returned.

I only asked as [the wife] has been dragged into a bitter divorce by her ex husband and she has been pre-occupied recently and has not been able to book a time to see her Psych and GP. On top of that she has had a recent impatient [sic] stay for her mental health as a result of the divorce. The current concern is around her ex and him trying gain half or [sic] permanent impairment compensation including any potential future compensation.

I don't want to withdraw the claim at this stage as I don't want her to miss out any extra lump sum compensation that she may be entitled to with it to be slightly less if she was to withdraw the claim and submit a new PI claim in the future.

All I ask if it's possible to gain another month or two to allow the divorce proceedings to be finalised and [the wife] to then attend her appointments after that.

(Exhibit H-2)

1. On 28 November 2022, Mr U sent a further email to DVA, in which he relevantly stated as follows:

... Could [Ms Westerberg] please obtain another extension to at least mid Jan if that is possible.

Still some issues with her divorce proceedings at this stage. ...

(Exhibit H-3)

1. Notwithstanding that the date of entitlement to the payment of $208,583.22 was 25 February 2022 (being shortly prior to separation) and that, on 21 September 2022, after separation, the wife, through Mr U, sought an extension of time by reason being "dragged into a bitter divorce by her ex husband", who was "trying to gain half or [sic] permanent impairment compensation including any potential future compensation", on 15 August 2022, the wife affirmed, and the following day filed, a Financial Statement prepared by her lawyer (Exhibit H-7). Nowhere in that Financial Statement was any reference made to the application for the 2023 DVA payment or either of the component payments. This was notwithstanding that, in that Financial Statement, she affirmed that:

(a) I have read Rule 6.06 and I am aware that by law I have an obligation to make a full and frank disclosure of my financial circumstances to the Court and each other party. In particular, I have disclosed in this document or in an affidavit filed by me or on my behalf under Rule 6.06(6), all matters I am required to disclose under Rule 6.06.

(b) The information in the financial statement and any attachments to it which are within my personal knowledge are true. Where I have given an estimate in this financial statement, it is based on my knowledge and is given in good faith. All other information given in this financial statement and any attachments is true to the best of my knowledge, information and belief.

(c) I have no income, property or financial resources other than as set out in this document or any affidavit filed by me under Rule 6.06(6).

1. Even if, at that stage, it did not constitute property to be disclosed within Part J, albeit that it may well have been a chose in action, it was likely a Financial Resource to be disclosed within Part L or it was otherwise to be disclosed within Part O, as "additional information".
2. Rules 6.01(1) and 6.01(2) of the Rules provide:

(1) Subject to subrule (4), each party to a proceeding has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the proceeding, in a timely manner.

Note: The proceedings to which the duty of disclosure applies include both parenting proceedings and financial proceedings. Failure to comply with the duty may result in the court excluding evidence that is not disclosed or imposing a consequence, including punishment for contempt of court.

(2) The duty of disclosure applies from the start of the proceeding and continues until the proceeding is finalised.

Note: Parties are also expected to comply with the duty of disclosure when complying with the pre‑action procedures.

1. Rule 6.06, which the wife affirmed she had read, provides by sub-rule (1) thereof that the duty of disclosure applies to a "financial proceeding", which is defined in r 1.05 to include "an application ... relating to the property of the parties to a marriage ... or of either of them". Rule 6.06(3) provides that, without limiting sub-rule (1), a party to a financial proceeding must make full and frank disclosure of that party's financial circumstances, including the matters specified in paragraphs (a)-(h) thereof. The sub-rule is, by its terms, inclusive and not exclusive. Further, r 6.06(6) provides:

If a party is aware that the completion of a Financial Statement will not fully discharge the duty to make full and frank disclosure, the party must also file an affidavit giving further particulars.

If a party's financial circumstances have changed significantly from the information set out in the Financial Statement or an affidavit filed under subrule (6), the party must, within 21 days after the change of circumstances, file:

(a) a new Financial Statement; or

(b) if the changes can be set out clearly in 300 words or less - an affidavit containing details about the party's changed financial circumstances.

1. Even if there were some doubt in relation to the wife's honesty in her Financial Statement affirmed on 15 August 2022, there could be none in relation to the Financial Statement affirmed or sworn by her (it is unclear which), and filed on her behalf, on 20 September 2023 (Exhibit H-9). That Financial Statement was similarly prepared by her lawyer. Fifteen days earlier, she had received the 2023 DVA Payment and transferred it to an account in the sole name of the fourth respondent. Notwithstanding that she again affirmed (or swore to) the prescribed matters in paragraphs (a)-(c) on the first page thereof, nowhere in that Financial Statement was there any disclosure of the 2023 DVA Payment. It was not disclosed in Part I as property held on her behalf by the fourth respondent, nor in Part M as property disposed of by her since separation. Further, in Part I, in respect of "[f]unds in banks, building societies, credit unions or other financial institutions" at item no. 37, she specified a sum totalling $5,445 and stated: "REFER TO ANNEXURE A", in which she listed two V Bank accounts in her sole name and a joint account with the fourth respondent with Westpac Bank, with a balance of $1,994.
2. When it was put to the wife, in cross-examination, that her Financial Statement sworn on 20 September 2023 was a "complete lie", by reason of her non-disclosure, she responded: "It appears that way". She was not re-examined in relation to that concession and, accordingly, I comfortably infer that she conceded she had lied.
3. I am therefore satisfied that the wife failed, by commission, to make full and frank financial disclosure of the 2023 DVA payments prior to and upon receipt thereof. Her dishonesty was not in regard to a matter ancillary or unrelated to these proceedings; rather, it went to the heart of these proceedings, which are financial proceedings.
4. The second sum of money received by the wife after separation was comprised of the proceeds of the sale of shares by her prior to September 2022, in the order of $104,000.
5. The first addback (item no. 3) relates to the Town F property, of which the wife and the fourth respondent are the registered joint proprietors. The fourth respondent consents to any order the Court may make in relation to that property, including the sale thereof, provided that his interest therein is not altered at all.
6. The Town F property was purchased by the wife and the fourth respondent for the sum of $1,050,000, with a loan to them of $700,000 from W Bank ("W Bank loan"), secured by mortgage thereover. It is common ground that the deposit, in the sum of $105,000, was paid by the fourth respondent. Upon settlement, in October 2023, the property was registered in their joint names. For the purposes of these proceedings, it was agreed to adopt the purchase price as the value of the Town F property. The balance of the W Bank loan was agreed to be $685,984. Accordingly, the wife's equity is in the order of $182,008. However, she asserts that she contributed $245,000 to the purchase, including related acquisition costs, from the DVA payment, which she concedes ought to be added back, rather than the lesser amount of her equity. The husband asserts that the greater sum of $308,661.90 should, instead, be added back - a difference of $63,661.90.
7. The settlement statement for the Town F property was tendered by the husband and marked Exhibit H-6. It is apparent, on the face of that document, that, at settlement, the total sum of $1,008,661.90 was required to complete the purchase (including stamp duty and other related payments), which was funded, as to $700,000, by the W Bank loan and, as to $308,661.90, by "members contribution". Despite the wife's protestations to the contrary, she was unable to explain satisfactorily from where the difference between the contribution conceded to have been made by her ($245,000) and the contribution required to be made, and duly made, by the fourth respondent and her ($308,661.90) was sourced. She could have adduced evidence from the fourth respondent in relation to the shortfall but did not do so. Whilst she asserted that, by the time of trial, they were no longer in a relationship and cohabiting, the fourth respondent attended at trial, seated in the body of the Court, in close proximity to her. This was notwithstanding that, by the orders made on 9 July 2024, he had been excused from participating in the proceedings, including attendance at trial. This was in circumstances where, by those orders, he consented "to any order the court may make including the sale of the Town F property provided that his interest in the property is not altered at all" (Order 6). Accordingly, where she was on notice, at least from the husband's trial affidavit filed on 3 June 2024, that he sought an add-back in relation to her contribution to the Town F property greater than that conceded by her, she could have adduced evidence from the fourth respondent in relation to any further contribution by him to the acquisition of that property, in excess of the deposit paid by him. However, inexplicably in the circumstances, she did not do so and I infer, as I am entitled to do, that any evidence of the fourth respondent in this regard would not have assisted her case: Jones v Dunkel. Accordingly, I shall add-back the sum of $308,661.90, rounded-up to $308,662, and I shall exclude the agreed value of the Town F property and the amount secured by the mortgage thereover. Whilst such liability might be relevant hereafter, pursuant to s 79(4)(e) / s 75(2)(b) of the FLA, the wife makes no such submission.
8. Next, I shall consider the third add-back contended by the husband (item no. 11(b)), in the sum of $126,973, as it is said by him to have its genesis in the 2023 DVA payment. Of the total 2023 DVA payment, rounded-down to $447,906, the following sums have been accounted for:
   • $308,662 - Town F property (to be added back in item no. 3).
   • $50,000 - Partial property settlement paid by the wife to the husband pursuant to orders made on 22 November 2023, which is included in the sum of $85,000 (agreed item no. 10), being the total of his partial property settlements, of which he has paid disbursements of $34,770 and the sum of $44,500 is held upon trust for him by his lawyers (a total of $79,320). See husband's Costs Notice filed 20 September 2024.
   • $100,409 - Balance of the DVA payment, held upon trust by the wife's solicitors (agreed item no. 2).
9. These amounts total $459,071, which, in fact, exceeds the 2023 DVA payment by approximately $11,000. Neither in the course of counsel's cross-examination of the wife, nor in his closing submissions (written or oral), was this discrepancy satisfactorily explained. It is incomprehensible how an add-back in the sum of $126,973 could be maintained and, in circumstances where the 2023 DVA payment has been accounted for, there can be no further add-back in relation thereto.
10. The second add-back contended by the husband (item no. 11(a)), in the sum of $70,000, derives from the proceeds of the sale of publicly listed shares by the wife prior to September 2022, in the order of approximately $104,000. Those shares were acquired utilising part of the 2019 DVA payment. Indeed, it would appear that the withdrawals totalling $90,000, referred to at paragraph [27] above, were, in fact, applied to the acquisition of those shares. It is submitted on behalf of the wife that she sold the shares to pay living expenses of the children and herself; to replace chattels removed by the husband upon separation; to pay outgoings of the former matrimonial home (council and water rates and insurance premiums); to satisfy partial property settlements paid by her to the husband (noting that the sum of $50,000, pursuant to the orders made on 22 November 2023, was sourced from the DVA payment, leaving only the sum of $35,000, pursuant to the orders made on 14 September 2022). However, the wife's Costs Notice filed on 20 September 2024, discloses that she has paid costs and disbursements to her previous and current lawyers totalling $123,049. Although she asserts a debt to the fourth respondent of $25,000, there is no corroborative evidence thereof, either by him or documentary. Given my findings in relation to her credit and my inference from her failure to adduce evidence from him, as well as the fact that the alleged debt is, in any event, said by her to relate to the payment of legal fees, I shall disregard that debt. However, in circumstances where the wife has paid costs and disbursements totalling $123,049 and the husband seeks to add-back only the sum of $70,000, albeit that both her evidence, as well as the written closing submissions of each of them, in this regard are far from clear, I consider it appropriate to add-back this lesser sum and shall do so.

1. Albeit de minimis, the spouse parties have included in the agreed asset pool (Exhibit J-1) an unregistered motor vehicle, with a value of $1,000, which is agreed to be in the husband's possession but owned by their adult son, Mr J. The vehicle was not the subject of any cross-examination. In circumstances where it is owned by Mr J, I shall accordingly exclude the value thereof.
2. In the circumstances, I find the assets, including the superannuation, of the husband and the wife, available for division between them, as well as the wife's agreed financial resource, to be as follows:

C Street, Town D (unencumbered) - valued by K Company on 12 December 2023

Funds held in Mirabella Trust Account pursuant to Court Order

Part Property pursuant to Orders of the Court dated 14 September 2022 and 22 November 2023

Addbacks: balance of sale of shares / legal costs

Military Super and Super Fund 2 as at 30 June 2023

Financial Resource - capitalised valued of wife's disability pension from Department of Veterans' Affairs

1. Section 79(1) of the FLA relevantly provides that, in property settlement proceedings, the Court may make such order as it considers appropriate, in the case of proceedings with respect to the property of the parties to the marriage or either of them, altering the interests of the parties to the marriage in the property.
2. Section 79(2) of the FLA provides that the Court shall not make an order under s 79 unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. In Stanford v Stanford (2012) 247 CLR 108 at [35], the plurality of the High Court held that, in every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the Court that, in all the circumstances, it is just and equitable to make the order. However, the plurality said at [42]:

In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).

1. The husband and the wife agree, and I concur, that it is just and equitable to make an order under s 79 of the FLA.
2. Section 79(4) of the FLA provides that, in considering what order, if any, should be made under s 79, the Court shall take into account the matters specified in paragraphs (a) to (g) of that subsection. These matters relevantly include, for present purposes:
   • the financial and non-financial contributions made directly or indirectly by or on behalf of a party to the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them (whether or not such property has, since the making of the contributions, ceased to be the property of the parties to the marriage or either of them) (s 79(4)(a)-(b));
   • the contributions made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contributions made in the capacity of homemaker or parent (s 79(4)(c)); and
   • the matters referred to in s 75(2) of the FLA, so far as they are relevant (s 79(4)(e).

1. The husband and the wife commenced cohabitation in mid-2000. Although the wife deposes (at paragraph 9 of her trial affidavit), without particularisation, to "numerous periods of separation in varying duration" over the course of their relationship, during which she asserts the husband and she "lived under the same roof but slept in separate rooms", and to having slept in separate beds from early 2012, the relevance thereof is not made at all apparent by her, in her evidence, or by her counsel, in her written closing submissions. They separated finally in early 2022.
2. Each of the husband and the wife was in paid employment at the commencement of, and at various times during, cohabitation. In the case of the wife, her employment, understandably, was subject to her pregnancies with, and the births of, their three children and her later health difficulties, to which I refer below. There is no credible suggestion that the personal exertion income they earned was applied, throughout the relationship, other than to the acquisition, conservation and improvement of property and to the welfare of the family constituted by their children and them. Notwithstanding the endeavours of each party to elevate their respective income and s 79(4)(c) contributions over, and to denigrate, those of the other, viewed holistically, there is little, if anything, to differentiate them. At least the husband, to his credit, conceded in cross-examination that the wife and he "help each other" throughout the relationship. However, that is but part of a much broader picture.
3. Insofar as the wife sought to denigrate or deny the husband's financial contribution of his income from personal exertion, it was put to her in cross-examination, and she did not deny, that his income in the financial year of, and those immediately preceding, separation, was as follows:
   • 2019 - $63,000;
   • 2020 - $67,000;
   • 2021 - $50,000;
   • 2022 - $45,000 - $50,000.
4. As will become apparent hereafter, this was in the period after the wife became very unwell, which was finally correctly diagnosed in 2017. I consider this to be yet another of the wife's preparedness not to tell the truth or, at least, the whole truth in these proceedings.
5. At the commencement of cohabitation, the husband moved into a property owned by the wife and her brother, Mr Y, at Z Street, Suburb AA in the State of Victoria ("Suburb AA property"). The Suburb AA property had been purchased less than a year earlier, for the sum of $115,000. It was encumbered by a mortgage, securing a loan of $126,000 to the wife and her brother for the acquisition of the property and the payment of related acquisition costs and expenses ("Suburb AA mortgage"), apparently guaranteed by the second and third respondents. Therefore, upon acquisition, there was no equity in the Suburb AA property. In or about late 2000 / early 2001, the wife's brother transferred his interest in the Suburb AA property to the husband for no payment. Rather, the Suburb AA mortgage was refinanced into the names of the husband and the wife, and her brother was released from all liability in relation thereto. There is no evidence of the balance of the loan at the time of the transfer of the wife's brother's interest in the property to the husband about one and a half years later or of the value of the property at that time. In the circumstances, I find that they had no net assets of any value of significance at the commencement of cohabitation.
6. The husband deposes, and the wife does not deny, that between mid-2000 and mid-2003, when the Suburb AA property was sold, he undertook work, on occasion with the assistance of tradespeople, to renovate and improve the property. He estimates that between $25,000-$30,000 was spent on the renovations, in payment both for materials and the occasional tradespeople. The wife speculates that "[t]he total amount that may have been spent would have been no more than $15,000" and that it was paid by the husband and her equally (at paragraph 124 of her trial affidavit). The Suburb AA property was sold in mid-2003 for $187,000. Again, there is no evidence of the balance of the loan secured by the Suburb AA mortgage at the time of settlement of the sale, in late 2003, or the quantum of the net proceeds of sale received by the husband and the wife. In all the circumstances, little, if anything, turns upon the Suburb AA property.
7. As discussed above, in relation to the claim of the second and third respondents, by agreement with them, at or about the time of the sale of the Suburb AA property, the husband, the wife and Ms H, who was newly born, began residing in the 1 C Street residence at the Town D property, which was otherwise vacant. Whilst rent of $50 per week was agreed to be paid, it was rarely paid by the husband and wife or claimed by the second and third respondents. The 1 C Street residence was dilapidated and required significant repairs, which were undertaken by the husband and the wife.
8. Whilst living at the Town D property, the husband and the wife purchased three real properties, regarding which neither of them adduced much evidence. Between 2005-2008, they purchased and sold blocks of vacant land in Town BB and Town CC in the State of Victoria. In 2009, they purchased, for investment, the real property at DD Street, Town M in the State of Victoria ("Town M property"), for the sum of $295,000, plus associated acquisition costs. It was let to tenants and was subsequently sold in or about 2015 for $336,000. There is no evidence as to whether funds were borrowed for the acquisition of the Town M property and, if so, the amount borrowed and the amount owing upon the sale thereof some six years thereafter. Similarly, there is no evidence as to the amount of the net proceeds of sale or the application by the spouse parties thereof.
9. In 2010, the husband and the wife, together with their three children, then aged approximately seven, five and two years, relocated to Sydney, for the wife to join the ADF. Prior to their relocation, the husband was employed by EE Company as a supervisor. In Sydney, he obtained part-time employment as a tradesperson and otherwise assisted in the care of the children.
10. In 2012, the wife transferred her employment with the ADF to Victoria and the family resumed living in the 1 C Street residence at the Town D property, again, for little or no rent.
11. In 2013, the husband and the wife entered into the Contract of Sale of the Town D property, and the related Original Deed and Lease, with the second and third respondents. Of the purchase price of $370,000 specified in the Contract of Sale, the husband and the wife duly paid the first payment of $110,000 to, or on behalf of, the second and third respondents pursuant to the Original Deed, in the circumstances outlined above. However, that was the only payment ever made by the husband and the wife for the transfer to them of the Town D property, which had an agreed value of $370,000 (albeit based upon the rateable value of the property). Even if they had subsequently made the payments totalling $200,000 due under the Original Deed and the Amending Deed or $140,000 under the Further Amending Deed, they would still have acquired the Town D property at a discount of between $60,000-$100,000. However, in the result, they acquired it for a discount of $260,000 or approximately 70 per cent of its agreed value.
12. A mortgage was registered over the Town D property ("Town D mortgage") to secure the spouse parties' bank borrowings, including for the $110,000 payment by them to, or on behalf of, the second and third respondents. Over time, the quantum of the borrowings secured by the Town D mortgage fluctuated.
13. From 2013, further work was undertaken to the 1 C Street residence, as well as to the Town D property generally, by, or paid for by, the spouse parties.
14. In or about 2015, the wife received a compensation payment of $26,392, by reason of an injury sustained whilst working in the ADF. She applied those funds to establish a business trading as FF Business, which she conducted until in or about 2017.
15. In 2016, between September and December, the husband and the wife separated briefly. However, they reconciled and they proceeded to marry in 2018.
16. In or about 2017/2018, the spouse parties received an insurance payment in the order of $50,000, by reason of the destruction of a shed on the Town D property, which was applied in reduction of the Town D mortgage and toward the costs of their wedding and holidays.
17. In or about 2017, the wife was diagnosed with an illness, having been misdiagnosed in 2011, whilst in the ADF. She was discharged from the ADF on medical grounds in 2018. Over the ensuing few years, she underwent a series of surgeries and various periods of hospitalisation. In cross-examination, the husband said that he undertook most of the transport of the wife to and from her medical appointments and hospitalisations. However, the wife's complaint is more in the nature that he did not provide her with the level of support she sought or considered that she required. I accept the husband's evidence and find that he did the best he could in the circumstances.
18. As a result of her misdiagnosis, she has received significant lump sum and periodic compensation from DVA, including 2019 DVA payment and the 2023 DVA payment.
19. In respect of the 2019 DVA payment, in the sum of $216,327, received more than two years prior to separation, the monies were applied, inter alia, to reduce or discharge the Town D mortgage, as well as to acquire the publicly listed shares referred to above.
20. In respect of the 2023 DVA payment, in the total sum of $447,906, I have already found that it was applied principally to the acquisition of the Town F property ($308,662) and in payment to the husband of his partial property settlement pursuant to the orders made on 22 November 2023 ($50,000), the balance being held upon trust by the wife's solicitors ($100,409 as at the time of trial). Whilst those three sums exceed, without any explanatory evidence, the amount of the DVA payment by approximately $11,000, it may be - but I cannot find - that the discrepancy is due to interest accrued upon the funds held in trust.
21. At the time of separation, in early 2022, the parties' three children were aged 18, 16 and 13 years respectively. Their eldest child, Ms H, commenced university at or about that time and she has resided on campus during the academic year. By reason of the wife's medical misdiagnosis whilst a member of the ADF, Ms H is in receipt of a fortnightly allowance from the DVA, which assists her with university related expenses, including accommodation. Mr J is in full-time employment and, at the time of trial, X was in Year 10.
22. On 14 December 2022, final parenting orders were made by consent which provided for the children to spend equal time with the parents, week-about. That arrangement was of very short duration. Since in or about late December 2022, Mr J has lived with the husband. Since in or about late March 2023, X has similarly lived with the husband and spent minimal time with the wife.

1. Unfortunately, but unsurprisingly, each of the spouse parties, but particularly the wife, sought to over-emphasise their contributions and minimise those of the other. Unhelpfully, and largely irrelevantly in this long relationship of over two decades in duration, their affidavits descended into the minutiae of, for example, who undertook what work to the conservation and improvement of the Town D property; who paid for such work; who worked in paid employment and when; and who made what homemaker and parent contributions and the purported quality or lack of quality thereof. That misunderstands the role of the Court in applications under s 79 of the FLA and the assessment of contributions pursuant to s 79(4)(a)-(c).
2. As Nygh J said at first instance, albeit in relation to the assessment of contributions under s 79(4)(a)-(c), rather than s 79(2), without disapproval on appeal in Shewring & Shewring [1987] FamCA 51; (1987) 12 Fam LR 139 at 141:

What was an issue in this case was the question of quality of contribution. I am aware very much of the remarks made by Wilson J in Mallet v Mallet [1984] HCA 21; (1984) 9 Fam LR 449 at 470 , and, in fact, on the basis of that remark it has been suggested from time to time that the court must assess in some way or another the quality of contribution made by a party, for instance as breadwinner on the one hand and as homemaker on the other, on a scale which presumably ranks from the perfect to a total failure. I myself cannot accept that anything like that was ever in Sir Ronald's mind. It is not, I think, the function of this court. It has never done so and I trust will never do so in the future, to assess the quality of each party on a scoring board which, so far as breadwinners are concerned, would give top marks to the Holmes a Court's of this world and bottom mark to the unemployed roustabout and, I suppose, in the homemaker and parenting stakes would give top marks to those ladies who in the age of the great dictators would have received the glorious motherhood medal, and bottom marks to those ladies, who it is alleged spend most of their time in the tennis club and the coffee klatsch and waste their precious time in idle pleasure. I take the view based upon the traditional marriage vows that the parties take one another for better and for worse.

The assessment of the quality of the contribution should be based on the principle that each party should make such contribution as can be reasonably expected having regard to the nature of the parties' capacity, the ability of each of the parties and expectations of the spouses.

1. In Jabour & Jabour [2019] FamCAFC 78; (2019) FLC 93-898 at [43], the Full Court cautioned against overstating the importance of a particular contribution (in that case, an initial contribution) at the expense of "the myriad of other contributions that each of the parties has made during the course of the relationship", referring to Williams & Williams [2007] FamCA 313 at [26]. Similarly, at [55] the Full Court said that the weight to be attached to a particular contribution "must be assessed against the rubric of all of the contributions, both financial and non-financial, made by the parties over the course of their relationship".
2. At [73], the Full Court said:

As can be seen the primary judge weighed the myriad of contributions made by the parties against the contribution made by the husband by bringing in Property A rather than treating Property A as one of the myriad of the contributions made.

1. In respect of one party's contributions being effectively overlooked by the primary judge, the Full Court said at [83]:

Importantly, it also had the effect of minimising the myriad of other contributions that were made in the course of a long marriage during which both parties worked very hard and raised a family. In this case, those contributions were made over a very long period and the parties regarded them as being equal.

Further, we consider that by quarantining Property A from the "myriad of other contributions made by both parties throughout the course of the relationship" (Williams at [26]) her Honour fell into the difficulty set out in Hurst, as described earlier. This is because those contributions were isolated from and weighed against the contribution of that property, rather than it being one of the myriad of contributions taken into account. The evidence established that, throughout the relationship, the parties' contributions to Property A "were of precisely the same nature and extent that each made in their respective agreed roles and spheres" (Hurst at [25]).

1. In Roverati & Roverati [2021] FamCAFC 89; (2021) FLC 94-027 at [33] (citing Dickons & Dickons (2012) 50 Fam LR 244 at [23]-[26]), the Full Court restated that:

... the assessment of contributions is not a mathematical or accounting exercise, and even more importantly, it is an holistic undertaking with all of the contributions of the parties of whatsoever nature being taken into account.

(Citation omitted)

1. I am acutely conscious of the need to undertake the assessment of the myriad of the spouse parties' contributions holistically and not to overstate the importance of any one contribution at the expense of any or all of the other contributions by each of them. However, I acknowledge that is sometimes easier said than done. But for the financial contributions made by and on behalf of the wife by reason of:
   • the acquisition by the husband and her, from the second and third respondents, who are her parents, of the Town D property, at a very significant discount; and
   • the receipt by her of the 2019 DVA payment and the 2023 DVA payment, totalling in the order of $665,000, and the application thereof-

there is little to distinguish the myriad of their respective s 79(4)(a)-(b) financial and non-financial contributions and the s 79(4)(c) contributions made by each of them to the welfare of the family, including in the capacity of homemaker or parent.

1. In relation to the Town D property, between 2003-2010 and again between 2012-2013, the husband and the wife lived in the 1 C Street residence thereon, at a negligible amount of rental, which was rarely paid. In relation to the period between 2013-2021, on the husband's own evidence, it was the wife who was primarily responsible for negotiating with her parents the Contract of Sale, the Original Deed, the Amending Deed, the Further Amending Deed and the Deed of Release. The husband and the wife initially acquired the Town D property in 2013, at a discount; of the $370,000 purchase price under the Contract of Sale, only $310,000 was payable over time under the Original Deed, of which $110,000 was paid that year. By reason of the Further Amending Deed in 2017, the balance of the monies payable by the husband and the wife was reduced from a total of $200,000 to a total of $140,000. By reason of the Deed of Release in 2021, no monies were payable any longer by them. Therefore, they acquired the Town D property, at the agreed value of $370,000, for a total payment of $110,000, albeit subject to the Lease to the second and third respondents, for a peppercorn rental until 2033. That property has been valued, for the purposes of these proceedings, in the sum of $406,000, subject to the Lease, which I have found to be the case (or $800,000, with vacant possession).
2. In Kessey & Kessey [1994] FamCA 162; (1994) FLC 92-495 at 81,149-81,150, the Full Court said:

It was argued on behalf of the respondent wife that in the absence of evidence regarding intention on the part of the mother the Court is entitled to assume a contribution on behalf of the wife because of the relationship between the wife and her mother.

The authorities (including Freeman and Freeman [1979] FamCA 31; (1979) FLC 90-697, Antmann and Antmann [1980] FamCA 64; (1980) FLC 90-908, and White and White [1982] FamCA 37; (1982) FLC 91-246) to which we were referred by Counsel for the appellant husband which are relevant to the question of how a gift or benefaction by a relative of one party to one or both of the parties should be treated in proceedings under s.79 of the Family Law Act were comprehensively reviewed by Fogarty J. in Gosper and Gosper [1987] FamCA 43; (1987) FLC 91-818 at 76,163-76,168. There is nothing we would want to add to his Honour's comprehensive review of the authorities, nor to his conclusions that (at 76,168):

"The critical case is where a relative of one of the parties gifts property to both of the parties to that marriage. Dependent upon the circumstances of the case it is, in my view, open to Court in such a case to look at the actuality and treat that as a `financial contribution made directly... on behalf of' the spouse relative (see for example Rainbird, Matthews, W., Underwood, Abdullah, Freeman, cf. Cleary, Hogan J. in Freeman, and Antmann).

In many such cases that gift was made only because of that relationship and in reality as a means of benefiting that relative in that marriage. It was made 'because she was a daughter of that family' as was said in W.'s case at p. 75,527.

It is clearly a 'financial contribution' and one 'made directly' to the acquisition, conservation and improvement of property. In such cases it is open to the Court to conclude, if the facts justify it, that it was made 'on behalf of' one spouse.

In other cases the evidence, including evidence that the donor intended to benefit both spouses, may not justify that conclusion. If so, the application by the parties of that property to the marriage would, at least at that point, be an equal contribution by them."

It was submitted by Counsel for the appellant husband that Gosper is distinguishable from the present case because Gosper was concerned with the matter of gifts and in the present case there is no evidence of a gift. In our opinion the application of the principles enunciated in Gosper should not be so limited. Rather, those principles should be regarded as being applicable in all cases where there has been an advance of money or property by a parent (or perhaps even by some other relative) of one of the parties, to one or both of the parties (or to their property), and the circumstances of the advance cannot be categorized as a loan, or as any other recognized commercial transaction.

In the present case the trial Judge found (as earlier quoted) that the evidence did "not clearly establish the intention of the deceased mother" and that it would not be open to him to infer what probably her intention was. We would say at this point that we were not taken to any evidence that would challenge his Honour's finding that the evidence did not establish the intention of the deceased mother. We also agree that the trial Judge was correct in concluding that it was not open to him to infer intention on the part of the mother.

1. The Full Court concluded, in this regard, at 81,150:

... where there is no evidence of any intention by a parent-donor as to whether he or she wished to benefit only his or her child or also to benefit the spouse of the child as well as the child, then the fact of the parent-child relationship, especially in circumstances where that has been a relationship of support on the part of the child, will be sufficient to establish a contribution of the donation by or on behalf of the child of the parent. In other words, a contribution by a parent of a party to a marriage to the property of the marriage will be taken to be a contribution made by or on behalf of the party who is the child of the parent unless there is evidence which establishes it was not the intention of the parent to benefit only his or her child.

(Emphasis in original)

1. In Pellegrino & Pellegrino [1997] FamCA 52; (1997) FLC 92-789 at 84,727, Chisholm J, in determining the intention of the wife's parents in providing a benefit to the parties, namely, rent-free accommodation for 17 years, considered the decisions of the Full Court in Gosper & Gosper [1987] FamCA 43; (1987) FLC 91-818 and Kessey, and then rhetorically asked (and answered) as follows:

... In what sort of circumstances does the evidence not justify the conclusion that the contribution was made on behalf of the spouse? This is an important issue, because parents often provide financial assistance to their married children. Often, perhaps usually, they do this in a way that benefits their child and their son or daughter in law. Often there is no specific evidence of their intention at the time. I think I can take judicial notice of the fact that frequently parents make such provision in a way that does not involve them formulating or specifically considering whether they intend to benefit their own child or both parties. They are happy to benefit both parties. The gift, as vividly illustrated by the provision of a home in this case, might inherently benefit both. Also, they will realise that their own child's happiness is bound up with that of their son or daughter in law, so that benefiting one will benefit the other indirectly. They may also have in mind other benefits associated with an extended family, being involved with grandchildren, and enriching the complex web of obligations and attachments that characterise extended families.

(Footnote omitted)

1. There is no evidence of any intention by the second and third respondents as to whether they wished to benefit only the wife or also to benefit the husband, as well as her. There is no evidence which establishes it was not the intention of the second and third respondents to benefit only the wife. This is so, both in relation to the period when the 1 C Street residence was let to the spouse parties for minimal rental, which was rarely paid, as well as, more importantly, the acquisition by them of the Town D property, albeit subject to the Lease to the second and third respondents. In cross-examination, it was not put to the second and third respondents, on behalf of the husband, that they also intended to benefit him, and not only the wife. Accordingly, I find that the use of the 1 C Street residence by the spouse parties between 2003-2010 and 2012-2013 and, far more importantly, the acquisition by them of the Town D property from the second and third respondents, at what transpired between 2013-2021 to be a substantial discount, is a significant contribution by or on her behalf. However, I also must (and do) take into account the fact that the 1 C Street residence and the Town D property were in a poor state of repair and that the husband and the wife have made financial and non-financial contributions to the conservation and improvement thereof which were, in part, conceded by the second and third respondents. Further, I also take into account that the Town D property was acquired by the spouse parties, as I have concluded, subject to the Lease, which is ongoing until 2033 and which has a substantial effect on the value thereof ($406,000, subject to the Lease, rather than $800,000, with vacant possession). I am cognisant of the possibility that there may be further litigation in VCAT between the spouse parties and the second and third respondents which may affect the value of the Town D property; however, I cannot speculate in relation thereto.
2. In relation to the 2019 DVA payment and the 2023 DVA payment received by the wife, respectively shortly prior to and shortly after separation, totalling in the order of $665,000, the only admissible evidence in relation to the basis therefor is comprised of the documents addressed from that Government department to her.
3. The first document, dated 11 July 2023, is a single page, headed "Payment Options" (Exhibit H-11), which merely states:

1. That document, by which the wife elected to convert ongoing weekly payments of $186.34 into a one-time lump sum payment of $223,682.54, was signed by her in August 2023. That document appears, on its face, to be page seven of an eight-page document. There are no particulars, on that page, of the basis of the "compensation" referred to. The balance of that document was not tendered.
2. The second document, dated September 2023, (Exhibit H-10) in respect of the payment of $208,583.22 states:

1. Notwithstanding that the letter advises that more information on the eligibility criteria could be obtained from the specified link, none was tendered in evidence.
2. It is clear, on the face of this latter document, that the wife was determined to have a permanent impairment, for which she was entitled to payments, referable to the children X and Mr J, who were considered to be dependent on her for economic support as at 25 February 2022. At that date, X was aged 13 and Mr J was aged 16. The parties separated a month later, on 28 March 2022.
3. Section 80 of the Military Rehabilitation and Compensation Act 2004 (Cth), to which reference is made in the document, provides:

(1) The Commonwealth is liable to pay compensation for the cost of financial advice obtained by a person if:

(a) the Commonwealth is liable to pay compensation to the person under section 68, 71 or 75; and

(b) the Commission determines that the impairment suffered by the person as a result of one or more service injuries or diseases constitutes at least 50 impairment points; and

(c) the financial advice was obtained from a suitably qualified financial adviser after the Commission had made the determination; and

(ca) the financial advice was obtained in respect of the choice the person may make under subsection 78(1); and

(d) a claim for compensation in respect of the person has been made under section 319.

(2) The Commonwealth is liable to pay compensation for the cost of legal advice obtained by a person if:

(a) the Commonwealth is liable to pay compensation to the person under section 68, 71 or 75; and

(b) the Commission determines that the impairment suffered by the person as a result of one or more service injuries or diseases constitutes at least 50 impairment points; and

(c) the legal advice was obtained from a practising lawyer after the Commission had made the determination; and

(d) the legal advice was obtained in respect of the choice the person may make under subsection 78(1); and

(e) a claim for compensation in respect of the person has been made under section 319.

1. An "eligible young person" is defined in s 5(1) of that Act to mean:

(a) a person under 16; or

(b) a person who:

(i) is 16 or more but under 25; and

(ii) is receiving full time education at a school, college, university or other educational institution; and

(iii) is not in full time employment or engaged in work full time on his or her own account.

1. As at the day of entitlement, namely, 25 February 2022, each of X and Mr J was an eligible young person: X, by virtue of being a person under 16 years of age; and Mr J, by virtue of being a person who was over 16 but under 25 years of age and who, I infer, met the other conjunctive requirements of paragraph (b) of the definition.
2. In this regard, in the wife's written closing submissions, I was merely referred to paragraphs 34 and 35 of the wife's trial affidavit. Paragraph 34 merely addresses the 2019 DVA payment of $216,327 received by the wife in August 2019 and not that part of the 2023 DVA payment in the sum of $208,583 referrable to X and Mr J. At paragraph 35, the wife deposes:

There were options on how I could receive my compensation. I told [Mr Heydari] the option I wanted to choose which was 50/50 take half as a lump sum pay the mortgage down and receive the rest as an indexed small fortnightly payment for the rest of my life. [Mr Heydari] said to me "you would be taking that money away from the kids if you die tomorrow" which was very upsetting and hurtful to me. I felt I was being financially manipulated throughout the relationship with [Mr Heydari]. I was manipulated into taking the compensation as a full lump sum payment.

1. However, at paragraph 37, to which I was not referred by counsel for the wife, the wife deposes in this regard:

I was approved for additional compensation payments for my Permanent Impairment (PI) from the Military which is classified as total degree of impairment suffer by me of at least 80 impairment points. This payment was made (as part of my pain and suffering) to compensate me for the loss of quality time I had with my children as a result of my incapacitation which was a total payment of $208,583.22.

1. This assertion is difficult to reconcile with the provisions of s 80 of the Military Rehabilitation and Compensation Act 2004 and the contents of the letter from DVA to the wife dated September 2023. In particular, from s 80 and the definition of "eligible young person" referred to therein, I consider that the payments totalling $208,583, received by the wife in September 2003, were on account of the future financial support of X and Mr J to which the wife, by reason of her permanent impairment, was not otherwise able to contribute. However, it is trite to observe that they are children of the relationship and, without the husband, who fathered them, the wife would not have been eligible for those payments.
2. I have considered above, under the rubric of add-backs, how the 2023 DVA payment received by the wife, post-separation, was applied by her and, to date, at least, it has not been for future financial support of X and Mr J. However, I acknowledge that, of those monies, the sum of $100,409, is held upon trust by her solicitors and it is agreed that, if necessary, the Town F property, the acquisition of which I have found she contributed $308,662, be sold and she receive one half of the net proceeds of sale, with the fourth respondent to receive the balance thereof. Even if it not be necessary to order the sale of the Town F property to effect a property settlement as between the husband and the wife, in circumstances where she asserts that the fourth respondent and she have separated and he does not oppose the sale thereof, that is something that should be able to be effected consensually between them.
3. In Aleksovski v Aleksovski [1996] FamCAFC 111; (1996) FLC 92-705 at 83,437, Baker and Rowlands JJ said:

In our opinion, in most cases, a damages verdict arising from a personal injury claim, whenever received, is a contribution by the party who suffered the injury. It should not be considered in isolation, for the reason that each and every contribution, which each of the parties makes to the relationship, must be weighed and considered at the same time.

In our opinion, the manner in which the trial Judge, in effect, quarantined the Thomastown unit as a contribution made solely by the wife because of her compensation award, has resulted in the wife receiving substantial credit for all her contributions, with the husband receiving minimal credit for his.

What his Honour had to assess by way of contribution was 18 years where each party provided their labours towards the acquisition, conservation and improvement of assets, and towards the welfare of the marriage generally. Additionally, late in the marriage, the wife received a large capital sum arising out of a motor car accident. In my view whether the capital sum was acquired early in the marriage, in the midst of the marriage or late in the marriage, the same principles apply to it. The Judge must weigh up various areas of contribution. In a short marriage, significant weight might be given to a large capital contribution. In a long marriage, other factors often assume great significance and ought not be left almost unseen by eyes dazzled by the magnitude of recently acquired capital. A party may enter a marriage with a gold bar which sits in a bank vault for the entirety of the marriage. For 20 years the parties each strive for their mutual support and at the end of the 20 year marriage, they have the gold bar. In another scenario they enter the marriage with nothing, they strive for 20 years and on the last day the wife inherits a gold bar. In my view it matters little when the gold bar entered the relationship. What is important is to somehow give a reasonable value to all of the elements that go to making up the entirety of the marriage relationship. Just as early capital contribution is diminished by subsequent events during the marriage, late capital contribution which leads to an accelerated improvement in the value of the assets of the parties may also be given something less than directly proportional weight because of those other elements.

It was submitted by counsel for the wife and conceded by counsel for the husband that there was a peculiarly personal element to the wife's contribution because much of her money was compensation for her pain and suffering. This was an important matter for his Honour to consider but it had to be properly weighed together with the other significant factors in this case and ought not have been overwhelmingly decisive. As the High Court said in Williams v Williams [1985] HCA 52; (1985) FLC 91-628 at 80,093

"... when the property available for division between the parties represents an award of damages for pain, suffering and loss of amenity, it may be relevant in some situations, to have regard to the circumstances relating to that award, but there is no general presumption that the award should be left out of account in determining what orders should be made under s 79 of the Family Law Act 1975 (Cth)."

Faulks J took the view that the lateness of the award was more significant than the nature of it. His Honour said at p 16 of the Appeal Book:

"In my opinion in this case, given the way in which the funds were expended, and given the fact that the funds were received very late in the marriage, in fact in the year before the parties separated, they must be regarded as essentially a contribution made by Mrs Aleksovski to the family finances.

It is analogous in my opinion to an inheritance received late in the marriage or, indeed, to a lottery win or some other windfall that may be acquired by one of the parties outside of the joint `contract' between them and I use contract in an analogous sense, not as a factual one, as to their division of labour within the marriage."

I am not entirely convinced that the analogies used by his Honour are all apposite. The moneys are peculiarly personal to the recipient. This is almost always true of inheritances although often the parties both change their spending and saving habits in anticipation of an inheritance. The parties may both work a farm property or in a business owned by the parent of one spouse in anticipation of eventually inheriting it and in so doing may forgo entitlements such as wages (see James and James [1978] FamCA 10; (1978) FLC 90-487). A lottery win is of a different dimension. Its acquisition may have involved risking the assets of both parties or it may be as a result of a birthday gift or other fortuitous circumstance. With a lottery windfall, the issue of other contributions is easier to emphasise. With damages for pain and suffering or with an inheritance, the other s 79 considerations required to alter the ownership of that fund need to be all the more powerful before it could be said to be just and equitable and proper to make such an order.

1. In Falcken & Weule [2019] FamCAFC 140, the appellant submitted that the primary judge erred by treating the receipt of a disability insurance payment as a significant contribution by the wife, instead of it being a joint contribution by both of them, because the premiums of the policy had been paid from joint funds. He also complained that the primary judge erred when he described the payment as having been received "quite late in the marriage" and over-emphasised the weight to be given to it.
2. In that case, the parties had married in 1997 and separated in 2015. In 2006, the wife suffered a severe stroke which left her with a serious permanent disability. She had not been able to work since. In 2007, she received $235,153 as lump sum compensation for total and permanent disability pursuant to an income protection policy. She also received, and continued to receive, a pension from the insurer. The parties' contributions to their property and the welfare of the family were found to favour the wife as to 53 per cent and 47 per cent to the husband.
3. It will be apparent that, unlike in the present case, the funds the wife received in Falcken & Weule were by way of total and permanent disability and income insurance.
4. The Full Court said at [13]-[25]:
   1. The husband correctly points out that the primary judge did not expressly refer to any contribution made by him to the premiums for the income protection policy pursuant to which the wife received her payment. He submitted that this was an error and that his Honour should have found that the receipt and use of the capital disability insurance payment was an equal contribution by both of them and not one that favoured the wife.
   2. The evidence relied on by the husband demonstrates that at some stage during the marriage the parties agreed that they should each obtain income protection insurance. Thereafter, the wife paid the premiums, seemingly from her income. Nonetheless, it was a joint decision to use family funds to obtain income protection.
   3. We accept that this can be a relevant consideration but we do not accept the husband's contention that it follows from the facts relied on by him that there has been an equal contribution to the receipt and use of the benefits of the policy.
   4. In Yates & Yates [2012] FamCAFC 138 the Full Court (Finn, Strickland & Johnston JJ) discussed the issue of contributions in similar circumstances and said:
      1. In any event, it is... a matter of determining whose contribution it is, and there may be many permutations of that. In other words, it may be a sole contribution by the party whose insurance policy it is, it may be an equal contribution by both parties, or it may be that it is a joint contribution but with one party making a greater contribution than the other...
   5. In Raine & Creed [2015] FamCAFC 133 ("Raine") the Full Court considered the wife's indirect contributions to the entitlement of the husband to receive disability insurance payments and found that the contribution was significant because the disability insurance payments were the husband's only income. The Court (Finn, Thackray & Strickland JJ) said:
      1. Turning to the relevant s 75(2) factors, given our findings in relation to the grounds of appeal, a specific issue to be addressed is the effect (if any) of the wife making an indirect contribution to the entitlement of the husband to receive the disability insurance payments (s 75(2)(j)). It was a joint decision by the parties to take out such insurance and for the premiums to be met from joint funds.
   6. As these authorities make clear, the issue is one of weight. In Raine the Full Court found that the wife's indirect contributions, overall but including the contribution to the disability insurance payments, should be recognised by an adjustment of five per cent in her favour.
   7. However, the agreement to obtain such insurance and the source of payments of the premiums are not the only considerations.
   8. As Thackray CJ said in Yeates and Yeates [2013] FCWA 117 at [208] and [209] the payment of insurance premiums cannot be compared with contributing to a superannuation fund and that "[t]he sad reality is that the money became available only because the husband was diagnosed with a terminal illness and then died".
   9. Finally, we are content to adopt the following statement made by Strickland J in Miller & Miller [2009] FamCAFC 121 :
      1. ...This payment was not a windfall. It was a payment received by the husband because he suffered a heart attack. It matters not that it was a minor attack from which he recovered. Despite the husband's good fortune in this regard, his health into the future is "significantly compromised" as a result according to the evidence of his cardiologist. Thus, although the fact that it was a joint decision to take out the insurance and the fact that the premiums were maintained out of the parties' joint funds can be treated as contributions by each of the parties, there still needed to be a life-threatening event before a payment could be made. It is simply not open to the wife to argue that the parties have contributed equally to this payout. It is the husband's money to which the wife has made an indirect contribution of a relatively minor nature...

(Original emphasis)

1. The upshot of these authorities is that a joint decision to take out insurance is a contribution by both parties. It is worth recording that in none of these cases was that contribution regarded as being anywhere close to equal.
2. The primary judge recognised the disability insurance payment was received by the wife for being totally and permanently disabled. It was compensation for her not being in a position to receive income for what would otherwise have been the rest of her working life.
3. It was, however, not used by the wife to support her over those years, but was entirely spent on supporting the family prior to separation.
4. Consistent with the above authorities, the primary judge found that this was a significant contribution by the wife.

1. Whilst Falcken & Weule is distinguishable, the distinction favours the wife in this case. Here, the funds she received were not by way of total and permanent disability and income insurance; there was no "joint decision to use family funds to obtain income protection" (at [14]). Not dissimilar to that which Thackray CJ said in Yeates & Yeates [2013] FCWA 117, to which the Full Court referred with approval (at [20]), the sad reality in this case is that the 2019 DVA payment and the 2023 DVA payment became available only because the wife was misdiagnosed or, rather, incorrectly not diagnosed with Endometrial Sarcoma, from which she is now in remission. Similarly, as Strickland J said in Miller & Miller [2009] FamCAFC 121, to which the Full Court in Falcken & Weule also referred with approval (at [21]), the DVA payments were not a windfall; they were payments received by the wife because she was misdiagnosed. It matters not that she is in remission; despite her good fortune in this regard, the husband does not dispute that her health into the future is compromised.
2. In the circumstances, I find the 2019 DVA payment and the 2023 DVA payment received by the wife, totalling in the order of $665,000, by reason of her misdiagnosis whilst in the ADF in 2011, to be financial contributions made by her, which are accounted for in the asset pool as determined by me, namely: the discharge of the Town D mortgage; the balance of the share sale proceeds; the husband's partial property settlements; the monies applied by the wife to the acquisition of the Town F property; and the funds. Together with the Town D property, acquired from the wife's parents at a substantial discount, the proceeds of the 2019 DVA payment and the 2023 DVA payment comprise almost the entirety of the non-superannuation property available for division between the spouse parties.
3. The 2019 DVA payment was received late in the relationship; the 2023 DVA payment was received after separation, albeit apparently underway in 2022. In Bonnici & Bonnici (1991) FLC 92-272, the Full Court said at 79,020:

A property does not fall into a protected category merely because it is an inheritance. On the other hand, if there are ample funds from which an appropriate property settlement can be made and a just result arrived at, then the fact of a recently acquired inheritance would normally be treated as an entitlement of the party in question.

The other party cannot be regarded as contributing significantly to an inheritance received very late in the relationship and certainly not after it has terminated, except in very unusual circumstances. ...

1. See also: Bishop & Bishop [2013] FamCAFC 138; (2013) FLC 93-553 at [25]-[36]; Calvin & McTier [2017] FamCAFC 125; (2017) 57 Fam LR 1 at [48]-[51]; and Holland & Holland [2017] FamCAFC 166; (2017) 57 Fam LR 84 at [34]-[36].
2. Albeit that the late contribution, in that case, was an inheritance, it is a distinction without a difference in this case. Like an inheritance, both the 2019 DVA payment and the 2023 DVA payment received by the wife were personal to her. However, the weight to be accorded thereto must be considered in the context of, and against, "all of the parties' respective contributions, in a holistic way across the course of the relationship and in the post separation period to the point of assessment": Horrigan & Horrigan [2020] FamCAFC 25 at [35]. In this regard, I note that, after the wife's misdiagnosis came to light in 2017, she was hospitalised on several occasions, for several weeks at a time, during which time the husband solely cared for the children and the home; there was no-one else to do so. Further, in respect of the component of the 2023 DVA payment in the sum of $208,583, referable to the children of the relationship, as I have observed above, without the husband, who fathered them, the wife would not have been eligible for those payments. These are matters to be taken, and which I take, into account in assessing the spouse parties' contributions overall.
3. The wife contends that her contributions were undertaken in the course of, and made more arduous by, domestic violence perpetrated by the husband, in reliance upon the decision of the Full Court in Kennon & Kennon [1997] FamCA 27; (1997) FLC 92-757.
4. In that case, nearly 30 years ago, Fogarty and Lindenmayer JJ said at 84,290-84,291:

It is only in more recent times that the pervasiveness and destructiveness of domestic violence have been at least partly acknowledged in Australia. Whilst there is no reason to suggest that domestic violence is more prevalent in society now than it was in previous generations, until recently both the law and society generally cast a veil of silence over it, preferring to proceed on the basis that either it did not exist or that it was inappropriate for society or the law to intervene in disputes within the ``private'' sphere of the home.

There has in more recent times been a marked and long overdue change in those attitudes and a greater social and legal awareness of and disapproval of domestic violence and past attitudes to it. The law, and society more generally, have begun to explore legal remedies which may be appropriate to prevent such behaviour or address its consequences.

1. In the intervening period of nearly three decades, the pervasiveness and destructiveness of domestic violence to which the Full Court referred has been increasingly acknowledged in Australia, and the social and legal awareness of, and disapproval of domestic violence and past attitudes to, have continued to progress. In particular, in the case of family law, this is manifest, not only in the jurisprudence of the Court since Kennon, but also in the many amendments to the FLA since then, most recently the Family Law Amendment Act 2024 (Cth), which commenced operation on 10 June 2025. However, these proceedings, the trial of which commenced and concluded prior to that date, are to be determined in accordance with the provisions of the FLA prior to those latest amendments.
2. In Kennon, at issue was "whether domestic violence can be legitimately included within the scope of s 79 without at the same time reintroducing conduct generally as a component of that section", which the Full Court considered "would ... be inconsistent with s 79 and its history" (at 84,291).
3. Fogarty and Lindenmayer JJ said at 84,294 that:

... where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions within s 79. ...

However, it is important to consider the ``floodgates'' argument. That is, these principles, which should only apply to exceptional cases, may become common coinage in property cases and be used inappropriately as tactical weapons or for personal attacks and so return this Court to fault and misconduct in property matters - a circumstance which proved so debilitating in the past. In addition, there is the risk of substantial additional time and cost.

1. Their Honours stressed at 84,294-84,295 that "s 79 should encompass the exceptional cases which [they] described above" and that it was "essential to bear in mind the relatively narrow band of cases to which these considerations apply". Their Honours continued at 84,295:

... To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect ...

1. Their Honours said at 84,303 that "in considering the impact of violence under s 79 the Court is entitled to take into account evidence which may be less precise regarding dates and times and more general in its effect than is required for common law claims".
2. Not dissimilarly, Baker J said at 84,329 -

... The incidence of domestic violence in a marriage would generally be a relevant factor when the Court comes to assess contributions pursuant to the provisions of s 79 for the reason that the contributions made by a party who has suffered domestic violence at the hands of the other party may be all the more onerous because of that violence and therefore attract additional weight.

1. More recently, in Dajani & Dajani [2025] FedCFamC1A 28, the Full Court considered Kennon. At [36], the Full Court referred to Martell v Martell [2023] FedCFamC1A 71; (2023) 66 Fam LR 650, in which Aldridge J, in a single judge appeal, (at [24]-[28]) "explained the principle in a more modern context" and said:
   1. For the reasons given, the words "significantly" and "more arduous" are not to be read as coterminous with "exceptional". Rather, they arise from the basis of the principle itself which focuses on contributions. If the nature and extent of a person's contributions are made more difficult or harder so that they should be accorded greater weight, such that they should be taken into account in the determining of the outcome, they have therefore been "significantly impacted" or made "more arduous". The focus is not on the conduct per se, but on its effects on contributions.
   2. The threshold for recognition is therefore met by conduct which has a discernible effect on the contributions of the other party such that it should be recognised in determining the respective contributions of the parties.
   3. That, in my view, should be the focus and terms such as "exceptional" or "narrow", or indeed, "onerous" add an unnecessary and unacceptable gloss suggesting that a rare and high level of impact is required and that the violence or its impact must be exceptional. That is not however, what their Honours said. All that was required was a "significant adverse impact" upon a party's contributions. The word "significant" was used, in my opinion, as describing that the effect must be sufficient to warrant recognition but not imparting some artificial threshold. The effect of the conduct must be such that a greater weight should be given to the contributions.
   4. More recent cases have softened some of the harshness of the original application of the principles identified in Kennon. For example, it is now the position that the adverse effect of the violence on the contributions of a party can be inferred from the lay evidence of the parties and that there is no need to call evidence to "quantify" that effect.
   5. It seems to me that regarding Kennon claims as "special" or "exceptional" is apt to mislead. In reality, all the majority said in that case was that a person's contributions are to be assessed in the light of all of the circumstances and where those circumstances have the effect of making the contributions more difficult, onerous or arduous, that should be recognised in the assessment of contributions. That, of course, takes place in a holistic manner.

... the focus is on the contributions made by a party and the nature of them. The circumstances in which family violence could make that contribution more arduous and deserving of greater weight can easily be envisaged. The point is, however, the recognition of the true nature and extent of the contributions and not punishment of the perpetrator.

1. Notwithstanding the explanation of the Kennon principle, in a modern context, by the Full Court in Dajani, the basis of the principle remains focussed on contributions. Although the words "significantly" and "more arduous", used by the Full Court in Kennon, are not to be read as coterminous with "exceptional", the threshold for recognition nevertheless remains: conduct which has a discernible effect on the contributions of the other party, such that it should be recognised in determining the respective contributions of the parties. As a party's contributions are to be assessed in the light of all of the circumstances, where those circumstances have the effect of making the contributions more difficult, onerous or arduous, that should be recognised in the assessment of contributions, albeit in a holistic manner.
2. In the wife's written closing submissions, it is submitted at [39] that:

... The Applicant cannot escape the conclusion which must be reached that the Respondent was the victim of family violence perpetrated by the Applicant. This flows from the fact that the police made application for an Intervention Order on behalf of the Respondent against the Applicant to which he consented for a period of two years in 2022. He was also charged with unlawful assault by the police and pleaded guilty to this [in late] 2022. The incident which gave rise to the charges occurred after the parties separated and were living under one roof. The Respondent required hospitalisation as a result of the assault, even though she was not admitted immediately, she was admitted shortly afterwards. These actions clearly had a n [sic] adverse effect or impact on the Respondent in her already frail state and whilst the assault occurred after separation it made her contributions as a home maker and carer for the children more arduous. ...

1. Those submissions are an endeavour to perform a feat of alchemy; however, as with all such endeavours, it is doomed to fail.
2. Even putting aside, momentarily, my findings regarding her credit and my consequent reservations regarding her evidence, her evidence, taken at its highest, is confined to a single specified incident, in April 2022, at or about the time of separation, to which she refers at paragraphs 25, 62-68 and 150 of her trial affidavit, to which I shall return. Otherwise:
   • she baldly refers at paragraph 21 to the "family violence perpetrated by [the husband] prior to and post-separation", without condescending to any particulars thereof whatsoever;
   • she baldly refers at paragraph 35 to feeling that she "was being financially manipulated throughout the relationship";
   • she asserts at paragraph 116 that her unparticularised "increased hospitalisation has been a result of the family violence [she] had to endure as a result of [the husband's] actions during the relationship and post-separation", again without condescending to any particulars thereof whatsoever.
3. Otherwise, the single incident which the wife in any way particularises (at paragraphs 62-68 of her trial affidavit), was an altercation in April 2022, having commenced cohabitation more than two decades earlier and having separated on 28 March 2022, albeit only under the one roof at that time. She deposes that, at that time she weighed approximately 49 kg and was very weak after a period of hospitalisation. She deposes that, in the morning, the husband demanded that she show him a message that had appeared on the screen of her mobile telephone. There was an altercation, in the course of which, she alleges that he pushed a door closed, while she was in the doorway, thereby jamming her. As a result, she alleges that she was very shaken, physically shaking, scared, traumatised, very sore and could hardly breathe. She deposes that he was instantly apologetic.
4. The husband concedes that there was an altercation, for which he was very apologetic, but denies that he deliberately jammed the wife in the door. Rather, his evidence is that she became jammed in the doorway whilst she was trying to close the door. It is difficult to understand how this could have physically occurred and I accept the wife's account of the altercation. However, that is not the end of the matter.
5. The wife deposes at paragraph 66:

As I was not well and in pain I was admitted into hospital and when released from hospital [in] May 2022 in the afternoon and [sic] went to the police and reported the incident that occurred [in] April 2022. ...

1. On the face of that paragraph, it could readily be inferred that she was hospitalised between April 2022 and May 2022. However, in oral evidence at trial, it transpired that she did not go to hospital until over a week later and, even then, according to the husband, it was apparently related to her mental health, rather than any injuries sustained in the course of the altercation. No medical records were tendered by the wife in relation to her dates of hospitalisation or the reason therefor.
2. The wife reported the incident to Victoria Police in May 2022. An interim ex parte Intervention Order was made, which was returnable in June 2022 and again in August 2022. The wife deposes at paragraph 68 that the husband "agreed to a 2-year order"; whilst that may be the truth, it is not the whole truth. In cross-examination by counsel for the wife, the husband said that he did so "without admissions". He was not challenged in this regard, nor was the Intervention Order made in August 2022 tendered. Therefore, insofar as it is submitted on behalf of the wife (at paragraph 39 of her written closing submissions) that an inference can be drawn from his consent to the Intervention Order, I do not accept that to be the case, in circumstances where such consent was expressly without admissions. However, in late 2022, the husband pleaded guilty to a charge of unlawful assault in relation to the incident which occurred in April 2022 and he was ordered to pay a fine of $500, without conviction.
3. Whilst I accept that, as between the husband and the wife, in relation to the altercation in April 2022, it is the husband who was at fault, and that he committed family violence on that occasion, there is no evidence which would permit any findings of other incidents of family violence by him. In the circumstances, there was no proper basis for the Kennon submission made on behalf of the wife and it should not responsibly have been made.
4. Domestic violence, even a single instance thereof, is a very grave matter, as are allegations thereof. However, as the Full Court made clear in Kennon and in Dajani, the relevance thereof, in proceedings under s 79 of the FLA, is to contributions. It is impossible to find, in this case, that the single instance of domestic violence by the husband, at or about the time of separation, no matter how reprehensible, had any effect upon, and therefore any relevance to, the wife's contributions. As the Full Court cautioned in Kennon at 84,294, otherwise there is a risk that allegations of domestic violence -

... may become common coinage in property cases and be used inappropriately as tactical weapons or for personal attacks and so return this Court to fault and misconduct in property matters - a circumstance which proved so debilitating in the past. ...

1. By reason of this incident, and the consequent intervention order, the husband was, understandably, excluded from the former matrimonial home in the 1 C Street residence on the Town D property. However, in or about mid-2023, the wife too ceased living there but, notwithstanding the fact that Mr J and X were (and continued to be) living with the husband, in rented accommodation, she has refused to consent to any variation of the intervention order to enable them to live in the 1 C Street residence again, leaving it vacant instead.
2. How then to assess all of the spouse parties' various and differing contributions pursuant to s 79(4)(a)-(c) of the FLA, to which I have referred above, in quantitative terms? In an oft-cited passage from Steinbrenner & Steinbrenner [2008] FamCAFC 193 at [234], Coleman J said:

Given that the evaluation of contribution based entitlements inevitably moves from qualitative evaluation of contributions to a quantitative reflection of such evaluation, there will inevitably be a "leap" from words to figures. That is the nature of the exercise of discretion, whether it be in the assessment of contributions in the matrimonial cause, assessment of damages in a personal injuries case, or determination of compensation in a land resumption case. ...

1. Accordingly, I now take the proverbial "leap" from words to figures.
2. The husband contends that the wife's and his contributions during the marriage, with the exception of the 2019 DVA payment and the 2023 DVA payment received by her, should be assessed as being equal; that he made the greater post-separation contributions, by reason of his care of Mr J and X; but that, by reason of those payments, their overall contributions should be assessed at 55 per cent in favour of the wife and 45 per cent in his favour (see husband's written closing submissions at paragraphs 124, 129 and 136). This is notwithstanding that, in his Outline of Case Document, it was submitted that contributions should be assessed overall at 55 per cent in his favour and 45 per cent in the wife's favour. That is an appropriate but, I consider, insufficient concession by him in the circumstances of all of the spouse parties' contributions, viewed holistically.
3. The wife, in her written closing submissions, as best they can be understood (not having been illuminated by her counsel's oral address), appears to contend (at paragraph 42) that the husband's and her contributions overall should be assessed at 75 per cent (at least) in her favour and 25 per cent in the husband's favour. This is notwithstanding that, in her Outline of Case Document, it was submitted that contributions should be assessed overall at 65 per cent in her favour and 35 per cent in the husband's favour. In her oral address, counsel for the wife confusedly and confusingly seemed to suggest that, notwithstanding the outcome sought in her written closing submissions, the wife's contributions should be assessed at 57.5 per cent, with (for the first time) a further adjustment of 12 per cent in her favour pursuant to s 79(4)(e), on account of s 75(2) factors.
4. I have found that, but for the Town D property and the 2019 DVA payment and the 2023 DVA payment, there is little to distinguish the myriad of the spouse parties' respective s 79(4)(a)-(b) financial and non-financial contributions, and the s 79(4)(c) contributions made by each of them to the welfare of the family, including in the capacity of homemaker or parent, over the course of their relationship, spanning over two decades and which produced three children, and until trial. In this regard, I take into account the husband's primary care of the two younger children of the marriage since separation.
5. However, the use of the 1 C Street residence on the Town D property between 2003-2010 and 2012-2013 for minimal rental, which was rarely paid, and, more importantly, the acquisition of the Town D property, at a considerable discount, and the 2019 and 2023 DVA payments, and the application of the proceeds thereof as found by me, including to the discharge of the Town D mortgage, were very significant financial contributions by her and, in the case of the DVA payments, uniquely personal to her, which assets are substantially reflected in those available for division between the spouse parties.
6. Nevertheless, I have also found, in relation to the Town D property and DVA payments, that the husband made some financial and non-financial contributions, directly or indirectly, thereto, albeit considerably less than those of the wife. These include, in the case of the Town D property, his contributions to the conservation and improvement thereof between 2003-2010 and again between 2012 until separation, and, in the case of the DVA payments, the fact that the payments totalling $208,583 were referable to the children of the relationship, without whom the wife would not have been eligible for those payments. Further, in relation to the wife's contribution by reason of the acquisition of the Town D property, it was acquired by the spouse parties subject to the Lease to the second and third respondents until 2033, which has a material effect on the value of that property.
7. Taking all of the financial and non-financial contributions made directly and indirectly by or on behalf of the husband and the wife, pursuant to s 79(4)(a)-(b) of the FLA, as well as the contributions made by each of them to the welfare of the family, including in the capacity of homemaker and parent, pursuant to s 79(4)(c), I consider that, in respect of their non-superannuation assets, their contributions should be assessed at 65 per cent on the part of the wife and 35 per cent on the part of the husband. That approximates a division of two-thirds to her and one-third to him. Given the wife's considerably greater contributions, I am satisfied that they should be assessed as being approximately double those of the husband. Such an assessment gives due recognition to the overall contributions of each of them.
8. In respect of the spouse parties' superannuation, their entitlements are agreed to total $300,284. In the minute of orders tendered by the wife at trial (Exhibit W-11), she seeks a splitting order in her favour, from the husband's member entitlement in Super Fund 1, in the sum of $83,000. However, in the letter to her solicitors from the trustee thereof acknowledging procedural fairness has been afforded to it (Exhibit J-2), the trustee advised that it "accepts the terms of the orders" provided to it under cover of the letter from the wife's solicitors, in which a base amount of $60,000 was sought. No evidence was tendered at trial of any notice to the trustee that a greater base amount was sought. The sum of $60,000, together with the wife's existing superannuation entitlements of $88,042, total $148,048, which approximates an equal division of the spouse parties' total superannuation entitlements. Given my finding that, but for the Town D property and the DVA payments, the spouse parties' s 79(4)(a)-(c) contributions would otherwise be assessed as being equal, I would, in any event, not alter their superannuation entitlements otherwise than to reflect that equality of contributions.

1. The wife does not seek or propose any further adjustment pursuant to s 79(4)(e) of the FLA, on account of s 75(2) factors, either in her Outline of Case Document or in her written closing submissions. Given the confused and confusing apparent submission, for the first time, by her counsel in her oral address, that, seemingly and inexplicably, there should be a further adjustment of 12 per cent in her favour, pursuant to s 79(4)(e), on account of s 75(2) factors, I do not take this afterthought into account. Notwithstanding her ill-health, she will receive or retain, by reason of, inter alia, the contribution of her DVA payments, more of the property than the husband, as well as her DVA pension, which I consider further below.
2. The husband, in his Outline of Case Document, sought a further adjustment in his favour of 10 per cent. In his written closing submissions, he now inexplicably seeks an adjustment of 15 per cent. If that merely be because he originally sought a contribution-based assessment of 55 per cent in his favour but now concedes that his contributions ought to be assessed at 45 per cent, that might be said to seek "palm tree justice" pursuant to s 79(4)(e) and s 75(2), against which Nygh J cautioned in W & W [1980] FamCA 63; (1980) FLC 90-872 at 75,528.
3. As to paragraph (a), namely, the age and state of health of each of the spouse parties, they are both 47 years of age.
4. Although no medical evidence was adduced, it cannot be gainsaid (and the husband does not seek to do so) that the wife has suffered and continues to suffer a number of health conditions, including an illness (from which she is in remission), as well as post-traumatic stress disorder, anxiety and depression, panic disorder and chronic pain.
5. Similarly, again although no medical evidence was adduced, but apparently considerably less seriously, the wife concedes the husband suffers from asthma and a respiratory disease. He also deposes that he further suffers from a number of medical conditions and he was not cross-examined in relation thereto.
6. As to paragraph (b), the husband is employed by GG Pty Ltd, as a professional. His salary is in the order of $80,000 per annum.
7. As with Ms H, who lives independently, a fortnightly allowance is paid by DVA for Mr J ($336.80) and X ($31.85) who both live with the husband, although it would appear that only X's allowance is received by the husband, as he is still under the age of 18 years. The husband, in his most recent Financial Statement filed on 3 June 2024, discloses an average weekly income of Mr J in the sum of $915 and X in the sum of $81.
8. The wife is not in paid employment, due to her poor health. However, as noted above, she is in receipt of a disability pension from DVA, by reason of her service in the ADF, in the sum of $1,268 per week, the capitalised value of which is agreed to be $1,080,000. Although in her written closing submissions, at paragraph 51, it is submitted that such payments "are only guaranteed until 2026 and then subject to re-assessment based on her medical condition/incapacity at that time", in purported reliance upon the evidence of Ms G, that is not the wife's evidence. Her evidence, at paragraph 30 of her trial affidavit, is that "[t]hese payments will continue to retirement age". At no time did the wife seek to correct that evidence. Further, Ms G's evidence is equivocal in this regard. In annexure "D" to her affidavit, she opined, as at 13 December 2022, that "the lump sum equivalent value of [the wife's] net fortnightly incapacity payments of $1,833.86 ... is $1.08m", inter alia on the assumption that "the payments will continue to age 65". However, later that day, in another document contained within that annexure, Ms G opined that "the payments are only 'guaranteed' until 2026 and are then subject to re-assessment based on her medical condition/incapacity at that time". Ms G was not required for cross-examination and, notwithstanding the apparent contradiction in her evidence, the only evidence of the wife is that the payments will continue until retirement age. Further, notwithstanding the apparent contradiction in Ms G's evidence, at no stage has the wife resiled from the agreed capitalised value of her pension, which I have accordingly accepted to be $1.08 million. I therefore find that the pension is, in fact, payable until the wife attains the age of retirement. The husband submits that the capitalised value of the DVA pension is a financial resource and the evidence of Ms G, in annexure "D" to her affidavit, is that no document with which she was briefed "indicates that [the wife] has an option to take these payments as a lump sum rather than as income". Therefore, the capitalised value of the DVA pension is only relevant as to the considerable value of the income stream to be received by the wife over time, until she attains the age of retirement. Unlike the husband, who is an employee and whose continued employment is at the will of his employer, she has the security of that income stream for approximately the next two decades.
9. As to paragraph (c), the husband effectively has the sole care and control of the child X, who is 16 years of age, and who has spent minimal time with the wife of late.
10. As to paragraph (e), although Mr J, who is 19 years of age, also lives with the husband, he is in paid employment and, in addition, directly receives a DVA allowance.
11. As to paragraph (f), the wife's DVA pension, whilst a pension under a law of the Commonwealth, has been considered above, under the rubric of paragraph (b).
12. As to paragraph (m), the wife asserts that she is no longer cohabiting with the fourth respondent. Although, for the reasons hereinabove, I do not necessarily accept that assertion, there is no evidence of his financial circumstances, other than his one-half interest in the Town F property.
13. As to paragraph (na), the wife has been assessed to pay child support to the husband for X. Although the husband deposes to historic difficulties obtaining payment of child support from the wife, that has, in part, been the subject of proceedings in the Administrative Appeals Tribunal, as is her right at law. In any event, in his most recent Financial Statement, he deposes that child support, in the sum of $150 per week, is "actually received" by him from her.
14. Taking all of these matters into account but, in particular, the husband's ongoing care of X, as well as of Mr J, and the wife's security of income, by way of her DVA pension, for approximately the next two decades, I consider that a further alteration of 7.5 per cent in favour of the husband is appropriate in all the circumstances.
15. Accordingly, the spouse parties' interests in non-superannuation property will be divided in the proportions of 42.5 per cent to the husband and 57.5 per cent to the wife.

1. In order to effect the alteration of interests in non-superannuation property between the spouse parties, it is agreed between them that the Town D property be sold. I have determined that the only interest of the second and third respondents therein is pursuant to the Lease and the property will be sold subject thereto. Although the fourth respondent agrees that the Town F property be sold, provided that his interest therein is not affected, for the reasons hereinafter, that will not be necessary. Neither the wife nor he seeks orders for the sale thereof and the husband only seeks an order for the sale thereof "to make such payment to [him] as determined just and equitable by this Honourable Court including in relation to any default provisions that may be necessary".
2. Save as may be required to effect the overall 57.5/42.5 per cent division between the parties, they will each receive their proportionate percentage shares of the net proceeds of sale of the Town D property and the wife will retain her interest in the Town F property, in circumstances where her initial contribution thereto has already been added back and is included in the total net non-superannuation asset pool.
3. Excluding the Town D property, of the value of the net non-superannuation asset pool, found to total $608,671, the husband is to receive or retain $258,685, representing his 42.5 per cent share, and the wife is to receive or retain $349,986, representing her 57.5 per cent share.
4. The husband presently has assets totalling $112,100 (comprised of items no. 4, 5, 6 and 9); therefore, the sum of $146,585 is payable to him. The wife presently has assets totalling $396,162 (comprised of items no. 3, 7, 8 and 10). Additionally, there is the balance of the 2023 DVA payment held upon trust by the wife's solicitor, in the sum of $100,409 (item no. 2).
5. Of the sum of $146,585 payable to the husband, if the balance of the 2023 DVA payment held upon trust by the wife's solicitor, in the sum of $100,409, is paid to him, the sum of $46,176 will remain owing to him by the wife. That relatively modest amount can be paid out of the wife's proportionate share of the net proceeds of sale of the Town D property, subject to the Lease.
6. Otherwise, the husband will retain items no. 4, 5, 6 and 9 and the wife will retain items no. 3, 7, 8 and 10 of the items in the asset pool, as found by me. They will receive their proportionate shares of the net proceeds of sale of the Town D property, subject to the Lease, less the sum of $46,176, in the case of the wife, which is to be paid to the husband. There will be a superannuation splitting order in favour of the wife, in the sum of $60,000, out of the husband's member entitlement in Super Fund 1, which will effectively equalise their respective superannuation entitlements.
7. The husband and the wife are, at least, substantially in agreement in relation to the orders to be made for the sale of the Town D property (albeit, as I have determined, subject to the Lease) and for the retention by each of them of the assets in their possession or control and any related liabilities.
8. In relation to any costs incurred in the preparation of the Town D property for sale, the wife seeks that they be paid by the husband and her in equal shares and the husband seeks that they be borne solely by her. In circumstances where they are the joint registered proprietors thereof and they will both benefit from the net proceeds of sale thereof, there is no reason, on the evidence, why such costs should be borne solely by her. However, nor is there any reason, on the evidence, why such costs should be borne equally by them, in circumstances where the net proceeds of sale will not be divided equally between them. I consider it appropriate that such costs be borne by the spouse parties in accordance with their proportionate shares of the net proceeds of sale of the Town D property, namely, 57.5 per cent by the wife and 42.5 per cent by the husband, and I shall order accordingly.
9. However, in circumstances where the husband has been excluded from the Town D property since at or about the time of separation and it is agreed that, pending sale, the wife shall have the sole use and occupation thereof, I consider it appropriate that, as between them, during that time, she be solely liable for, and pay, all outgoings, including but not limited to building insurance premiums and council and water rates. Although he seeks an order permitting him to return to reside in the 1 C Street residence, with Mr J and X, pending the sale of the Town D property, I do not consider such an order to be appropriate given the breakdown in relations between the second and third respondents and the husband and wife.
10. Consequential orders will be made to give effect to these reasons for judgment, including for the removal of caveats; the discharge of all extant unexecuted orders; and the dismissal of all extant applications.
11. The husband also seeks an order that the wife make available to him (through their respective solicitors), within 21 days: all photo albums; the birth certificates (official and commemorative) of their children; the children's and maternal health nurse books; the children's school photographs; and family videos, for the purpose of him copying them at his expense, and that he return them to her (again through their respective solicitors) within 28 days thereafter. In the absence of submissions on behalf of the wife to the contrary, such order will be made.

I certify that the preceding three hundred and six (306) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum.