Humphrey & Humphrey (No 6) [2025] FedCFamC1F 106 (28 March 2025)

1. That these proceedings be adjourned for further submissions in the week commencing 31 March 2025, on a date to be fixed in the Federal Circuit and Family Court of Australia (Division 1) at Adelaide, by telephone.

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 the pseudonym Humphrey & Humphrey has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These Reasons relate to a hotly contested property dispute between the Applicant wife, Ms Humphrey ("the wife") and the Respondent husband, Mr Humphrey ("the husband").
2. The reasons which follow seek to explain the form of orders likely to achieve justice and equity, as well as finality, for both parties.

1. Shortly stated, but more concisely and elaborately described in the Full Court decision in Hickey & Hickey [2003] FamCA 395; (2003) FLC 93-143, in a property settlement case, the Court must adopt a well-known four-step process, essentially:

(a) to identify the pool of assets and liabilities generally, and usually at the time of hearing;

(b) to assess the relative contributions of both the financial, non-financial, direct and indirect nature as specified by s 79(4);

(c) to consider the factors as are relevant contained in s 75(2) of the Family Law Act 1975 (Cth) ("the Act"); and

(d) finally, consider the ultimate analysis to determine whether the order the Court proposes to make is just and equitable to both parties.

1. The cessation of the marital relationship coupled with the competing proposals make it just and equitable to make an order (s 79(2)). Neither Counsel submitted otherwise.

1. The Court provided a history of the parties' relationship, with particular focus on the parenting issues, in its Reasons for Judgment delivered 31 August 2022 (see Humphrey & Humphrey (No 2) [2022] FedCFamC1F 640), which is relied upon but not otherwise repeated now.
2. A shorter contextual history relating to major financial events follows.
3. Statements of fact hereinafter should be constituted as findings of fact.
4. At the time of marriage in 2002, after which cohabitation commenced, neither party owned any assets of significant value. They were both aged 29 years, with the wife employed in a business owned and operated by her parents. The husband was an employed professional.
5. From cohabitation until they purchased the unit at L Street, Suburb M ("the L Street property") for approximately $300,000 in 2003, the parties occupied this property (owned by the wife's parents), the wife says on a discounted rental. The wife says, and I accept her evidence, that the wife's parents accepted a $250,000 payment with the balance "waived" by her parents of approximately $60,000.
6. In 2004, the parties began acquiring various investments properties in the Suburb G area, and they include:

(a) Q Street, Suburb R ("the Q Street property") in 2004 for approximately $135,000;

(b) ZZ Street, Suburb AB in 2005 for $142,500;

(c) T Street, Suburb U ("the T Street property") in early 2006 for $155,000;

(d) S Street, Suburb G in 2006 for $177,000; and

(e) N Street, Suburb P ("the N Street property") in 2007 for $166,000.

1. Relevantly, in late 2004, the parties commenced a partnership and contracted to build two manufactured homes for approximately $140,000 in total. After construction, the "homes" were located on sites 1 and 2 V Street. The wife says the couple received assistance from her family towards the costs of installation. From around 2004, the couple's partnership began receiving income.
2. I accept the husband received a total inheritance of $100,000 (in two instalments) from his grandmother's estate and these funds were introduced into the family finances. Also in August 2006, the husband received $50,000 from his mother (referred to in a Loan Agreement dated 23 August 2006), which was repaid post separation from joint funds.
3. In 2007, X was born and in 2011 Z was born. During these births, the husband in mid-2008 established his business, which he still conducts as a sole practitioner.
4. In early 2012, the property at K Street, Suburb E ("the K Street property") was purchased for $708,000. Also, after Z was born, the wife could not continue her paid employment with her family, and was made redundant in mid-2012, receiving a redundancy payment of $50,000 which was introduced into the family financial resources. The wife resumed casual employment with her family in mid-2014. A self-managed superannuation fund was established in 2012.
5. On 14 December 2017, the parties separated, with the wife and the two children leaving the family home. Since that time the husband has remained in the family home, whilst the wife has lived in rented premises.
6. I do not propose to record the changing parenting arrangements that have occurred from separation to the trial before me completed some six years later in November 2023. I am of course aware of the changes, which will be dealt with later in the discussion on contributions.
7. As set out next, the investment properties have now all been sold, and during their retention until separation, at least joint income (from a range of sources) were meeting any excess expenses (including mortgage payments, rates etc.) over income from tenants. Although the wife, I accept now retains the income from the sites on which the manufactured homes are situated, the husband has since separation managed the investment properties, including some maintenance obligations. In this case, there was minimal material offered to assist the Court in better understanding any benefits of "negative gearing" achieved by either party or entities they control for the whole of the relationship. I also accept that, when one considers the purchase prices of the investment properties and the ultimate sale prices, the profits of a capital nature will be the subject of Capital Gains Tax ("CGT"). No evidence of a probative or reliable character has been adduced to understand the level of CGT payable, and on what person or entity it will fall on for their payment. I deal with this issue later in these Reasons.

1. It is not necessary or helpful to set out in detail the case management pathway in respect of the property proceedings, however for context, the Court notes:

(a) on 10 April 2019, the wife commenced parenting and property proceedings, and relevantly sought 70% of the pool of assets;

(b) by his Response filed 28 May 2019, the husband sought 55% of the pool of assets, and at that early stage identified that he wishes to retain the K Street property and that he would transfer his interest in the L Street property to the wife;

(c) it was apparent during the case management of the matter that the parenting issues were strenuously contested. Despite a trial conducted over four days in June 2020 (with final parenting Orders made 31 August 2022), re-opened parenting proceedings in respect of the children remain alive;

(d) unusually, the cross-examination of the wife on property issues in June 2020 was very brief. The wife's Counsel at that time (Ms Oakley) did not seek to cross-examine the husband at all on property issues;

(e) whilst the judgment was reserved, on 29 April 2022, the wife filed an Application in a Proceeding seeking, inter alia, to re-open the property proceedings to adduce new evidence of valuations of various properties and interests, particularly:

(i) from C Valuations in respect of the K Street and L Street, properties; and

(ii) from D Valuations with respect to the properties at sites 1 and 2 V Street.

(f) on 27 May 2022, the husband responded to the Application in a Proceeding seeking dismissal, or in the alternative that a different valuer be appointed, as a single expert to update valuations of the K Street, Suburb E and L Street properties;

(g) after considering oral and written submissions, Reasons for Judgment were delivered on 28 June 2022, after which on 19 July 2022, the following Orders were pronounced to progress the property proceedings:

1. That the parties shall jointly instruct [X Company] to update their valuation of the real properties located at [K Street, Suburb E] ("K Street property"); [L Street, Suburb M], ("L Street property") and to value the [properties] located at [1 and 2 V Street, Suburb W] [...] and for that purpose:

   1. the parties shall jointly instruct [AC Company] to provide a building and pest report of the [K Street Property] and unless otherwise agreed provide the updated report to [X Company];

   2. in respect of the [Suburb W properties], the valuer shall be instructed to value them on the alternate bases:

      1. that a valid site agreement is in place; and
      2. that no valid site agreement is in place.

   3. the parties shall settle and serve upon the joint valuer a joint letter of instruction within fourteen (14) days of the date of these Orders;

   4. the parties shall stay outside of the property being valued after providing the valuer access to the property;

   5. if the parties are unable to agree or for any reason on the joint letter of instruction within twenty eight (28) days of the date of these Orders then the parties shall each provide to the chambers of the Honourable Justice Baumann by that date a proposed draft letter and short submissions of no more than two (2) pages in support of their proposed letter;

   6. the parties shall comply with any reasonable request by the joint valuer to provide information, documents, or access to the real properties for the purpose of preparing the report; and

   7. the parties shall be equally responsible for the cost of the joint expert.

2. That by 18 August 2022 each party must (if they have not already done so) provide to the other party a copy of any documents to which the duty of disclosure applies in respect of the property proceedings.

3. That by 4.00pm on 5 October 2022 each party file and serve:

   1. a Financial Statement;
   2. an affidavit addressing only matters that have arisen following the conclusion of the hearing on 11 June 2020; and
   3. an affidavit of any further witness on which they rely.

4. That by 4.00pm on 19 October 2022 each party may file and serve an affidavit strictly in reply.

5. That for the purposes of these Orders, "the [Suburb G] properties" refers to the following properties:

   1. The property located at [Q Street, Suburb R], more particularly described as Lot [...] in Registered Plan [...] ("[Q Street] property");
   2. The property located at [N Street, Suburb P], more particularly described as Lot [...] in Registered Plan [...] ("[N Street] property");
   3. The property located at [S Street, Suburb G, more particularly described as Lot [...] in [...] ("[S Street] property"); and
   4. The property located at [T Street, Suburb U], more particularly described as Lot [...] in Registered Plan [...] ("[T Street] property").

6. That the parties do all acts and things and sign all documents necessary (whether in their personal capacities or, in the case of the husband as the sole director of [AD Pty Ltd] as trustee for [AD Trust]) to cause the [Suburb G] properties to be sold on such terms and conditions as may be agreed between the parties but failing agreement as follows:

   1. The parties shall forthwith do all acts and things and sign all documents necessary to cause the tenants of the [S Street] and [N Street] properties to be issued with Notices to Leave such that vacant possession of the properties is achieved as soon as possible;

   2. The parties list the [S Street] and [N Street] properties for sale by private treaty with [Mr AE] of [AF Real Estate], with each property to be listed within thirty (30) days of obtaining vacant possession of the properties;

   3. The parties list the [Q Street] and [T Street] properties for sale by private treaty with the agency of [AG Real Estate Suburb G], with each property to be listed for sale within thirty (30) days of the date of these Orders;

   4. If the parties cannot agree on a conveyancing solicitor within seven (7) days of these Orders, the listing agent is to nominate the conveyancing solicitor;

   5. The marketing campaign will be determined by the listing agent;

   6. The parties shall pay equally the cost of any advertising and other marketing costs reasonably required to be paid by the listing agent in advance within seven (7) days of any request by the agent, and any upfront payment required by the conveyancing solicitor;

   7. The parties are to comply with the listing agent's reasonable requests in relation to the marketing of the property for sale and allowing inspection of the property at all times reasonably requested by the listing agent;

   8. Each property shall be marketed either at a price or an "offers over" price as recommended by the listing agent and agreed between the parties and failing agreement:

      1. If the listing agent recommends a price, that price; or

      2. If the listing agent recommends that no price be put on the property, or an "offers over" price be put on the property, the property shall be marketed according to that recommendation.

   9. In the event that any of the [Suburb G] properties are not under contract or have not been sold by or before a date thirty (30) days from the listing date by way of private treaty, the parties shall do all such acts and sign all such documents and pay all such monies equally necessary to procure a sale by auction of the relevant [Suburb G] properties on the following terms:

      1. The auctioneer shall be as agreed between the parties and if there is no agreement the auctioneer shall be nominated by the agent;

7. That within seven (7) days of the net sale proceeds held in the trust account of Naughton McCarthy Family Lawyers totalling at least $60,000, the parties shall do all acts and things and sign all documents necessary to cause each party to be paid the following sums, the characterisation of which is to be reserved to the trial judge:

   1. To the wife, the sum of $30,000; and
   2. To the husband, the sum of $30,000.

8. That the costs of the parties relating to the appearance on 19 July 2022 be reserved.

(h) other interlocutory applications were filed and dealt with, with Orders made on 26 April 2023 and 28 July 2023, and the trial recommenced on 17 August 2023, but for reasons relating to the late delivery by the husband of approximately 600 pages of documents sought by way of discovery at 6.30pm on 17 August 2023, the trial had to be adjourned to allow the wife time to consider that material. On 18 August 2023, the following procedural orders were made:

THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER:

1. That the parties sign all such documents necessary to cause $20,000 from funds held in trust to be paid to each party by way of further partial property settlement.

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That within fourteen (14) days of the date of this Order, the husband file and serve an affidavit setting out the circumstances in which documents (said to have been produced to the wife's solicitors after 6.30pm on 17 August 2023) were produced, including how long those documents have been in his possession, power and control.

2. That seven (7) days after receipt of the husband's filed affidavit, the wife file and serve written submissions in support of her oral application made today that there be an order made that the husband pay the wife's costs on an indemnity basis for the costs thrown away today.

3. That seven (7) days after receipt of the wife's costs submissions, the husband file and serve written submissions in response.

4. That unless otherwise ordered, the wife's costs application shall be dealt with on the papers in chambers.

5. That the parties and their legal representatives be granted leave to inspect and photocopy the records produced under subpoena from:

   1. the Commonwealth Bank of Australia;

   2. [AH Bank];

   3. Westpac; and

   4. [AJ Pty Ltd] and [AK Pty Ltd].

   5. That other than already directed, neither party shall file any further affidavits without leave of the Court.

   6. That the Final Hearing of these proceedings be adjourned part-heard to 10.00am on 10 November 2023 for not more than one (1) day in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.

(i) On 10 November 2023, the hearing was concluded, with the husband briefly cross-examined, as were the single expert valuers Mr AL and Mr AM. On this occasion, whilst Ms Oakley of Counsel continued to represent the wife, Mr Shoebridge of Counsel (as he then was) appeared for the husband as he had on 18 August 2023 (in lieu of Mr Minnery of Counsel who had appeared in June 2020 and who had authored earlier written submissions);

(j) additional written submissions were filed as follows:

(i) On behalf of the husband, on 1 December 2023 which were supplementary to the written submissions filed 5 August 2020 (particularly paragraphs 216 to 253 relating to the property proceedings); and

(ii) On behalf of the wife, on 20 December 2023, which were supplementary to the written submissions filed 7 July 2020 (particularly paragraphs 178 to 207 relating to the property proceedings) and reply submissions filed 12 August 2020.

(k) Since the property proceedings became reserved for judgment on 20 December 2023 (noting that although the husband had leave to file written submissions in response to those of the wife, but did not do so), no further applications in the property proceedings have been filed. Certainly, the Court accepts, that parenting issues seemed to have consumed the attention of the parents, and after the conclusion of recent Contravention Applications, the future conduct of the parenting proceedings is yet to be resolved.

1. As the earlier Reasons demonstrate, even though the first stage of proceedings concluded in June 2020, with the re-opening and further evidence (including valuation evidence) adduced, the date at which findings are made about the nature of interests of the parties and their value is, of course, at November 2023.
2. Despite directions, and I accept the willingness of the parties' lawyers, the dynamics of conflict that has engulfed this relationship now for the period since separation in December 2017, prevented a joint balance sheet to be formulated.
3. The parties' positions therefore are to be understood from:

(a) the wife's submissions filed 20 December 2023 at paragraph 69 (pages 7 to 11) contending for a value of the net interests of property and superannuation totalling $3,213,864; and

(b) the husband's outline of case document filed with leave on 17 August 2023 at 12 noon (contrary to the trial directions), that unhelpfully does not attempt to "add up" the entries, but which asserts:

1. It is noted that the husband's case outline did not include any allowance for the sale proceeds of the Suburb P and Suburb G properties; did not adopt a value for 1 and 2 V Street; included liabilities not accepted by the wife (in particular alleged loans owed by the husband to his mother of $455,000 and to his father of $42,700) and other discrepancies.
2. Suffice it to say, the failure by the husband, in submissions, to reply to the wife's written submissions has made the Court's obligation, as stage one of the usual four stage analysis, much more difficult.
3. However, in addition to some valuation issues the subject of the supplementary written submissions, the variances in how the parties have chosen to present their pool of interests, identifies a number of significant forensic and legal issues that must be determined.
4. Doing the best I can, particularly when the evidence to assist is not offered to the Court, I am left to regard the ultimate finding of the pool as somewhat "notional". The reasons for this level of ambivalence will become apparent, however I now make findings about various items in the pool of interests, in no particular order of priority.

1. Where the parties have been separated since 2017, adopting any figure for a current bank account or credit card account, fails to properly take into account the type of discretionary decisions people post-separation make with their available income or, as in this case, use of partial property payments.
2. Of course, incorporating bank balances (in a net pool of some hundreds of thousands) as low as $1, is simply a nonsense. I accept the husband operates a professional business, and adopting a balance for one or more of his business accounts does not properly take into account legitimate unpaid business expenses or creditors which the business has incurred in the ordinary course of business.
3. In the circumstances of this case, I do not include any bank account balances (wife's pool - items 1 to 27). Leaving aside the husband's assertion that the bank accounts he asserts (being approximately 30 in number; many closed) total less than $14,000, I see no injustice to either party in excluding bank accounts from the pool of assets.
4. The husband seeks to bring into the balance sheet credit card liabilities totalling approximately $48,000 - but gives no evidence of how these debts have accumulated and what expenses were paid. As I deal with later in these Reasons, the husband seeks "credit" for contributions he has made to expenses or properties and, also particularly, the children. I simply do not know if any of the current credit card liabilities relate specifically to these expenses - but if they did, then including his credit card liability in the balance sheet would have to amount to the wife making an indirect contribution to those expenses - which the husband is forthright in saying she did not. The credit card liabilities are excluded.

1. The wife, at items 28 to 37, identifies some personal items, the value of which appear from the husband's case outline to be agreed. They are, as a result, included in the pool of interests.

1. It is common ground that during the relationship some standalone entities were created to facilitate the acquisition of real estate and entities associated with the husband's business. No attempt was made to establish, by way of evidence from a qualified expert, whether any of these entities have any net value beyond any identified tangible asset. The wife, at items 40 to 47, identifies a number of these entities, but sensibly does not attribute a value to the interest the husband holds in those entities.
2. The husband similarly agrees they have no value.
3. The wife, at items 48, 49 and 50, raises the issue of the husband's business, including outlays owed to the husband and unbilled work in progress. I have no reliable evidence as to the level of these business benefits, and on all the evidence, it seems to me, and I find, his business is profitable, but the level of future earnings is impossible to calculate. The husband could have done much more to clarify this uncertainty. There is no evidence produced that could satisfy me that after a proper allowance for a fair remuneration by a sole professional, the net income is either maintainable or is likely, applying an appropriate capitalisation rate, to have any value. Goodwill is more likely than not totally related to the personal skills and reputation of the husband as a professional. It is, on the evidence, appropriate to attribute no value to the husband's business.

1. When these proceedings commenced, a number of pieces of real estate were held by these parties, through entities mostly controlled by the husband. As I will record below, I am satisfied that the attempt to create a portfolio of investment properties, rented and nearly all negatively geared, was a legitimate joint wealth creation strategy.
2. At one time earlier in the proceedings, Orders were made to value:

(a) the N Street, Suburb P property;

(b) the Q Street, Suburb R property;

(c) the S Street, Suburb G property; and

(d) the T Street, Suburb U property.

1. Progressively however, some properties were sold, and the husband's case outline recorded that after Orders were made on 19 July 2022 for the sale of the four Suburb G investment properties:

(a) the Q Street property was sold for $363,000, with settlement occurring in late 2022;

(b) the T Street property was sold in mid-2023 for $407,000;

(c) a contract to sell the S Street property for $435,000 was entered into in mid-2023, with a settlement due a short time later;

(d) the N Street property was the subject of a second contract to sell for just over $455,000, with a settlement around late 2023.

1. At the trial on 10 November 2023, when the husband was briefly cross-examined, the evidence was that the S Street property had settled and the balance of the proceeds were held in trust, but that settlement of the N Street property had been delayed. The husband's submissions do not assist with any submission as to settlement of the N Street property.
2. The wife's submissions seek to include in the balance sheet:

(a) at item 52, $532,532.81 said to be the "sale proceeds of the [Suburb G] properties"; and

(b) at item 51, $456,300 being the "contract price" for the N Street property.

1. There is no evidence as to the net proceeds of sale after expenses was were taken into account, including the two mortgages secured against N Street (see items 70 and 72) totalling $192,511.
2. As uncertain as this is, the husband, who was controlling any sale, only refers to his case outline to:

(a) $308,773 being held in trust (presumably being the net proceeds of the Q Street and T Street properties);

(b) attributes no value to the S Street and N Street properties because there was a "settlement pending";

(c) but seeks to include in his balance sheet loans secured over the S Street and N Street properties.

1. In the circumstances, I adopt the figures asserted by the wife in her submissions for the funds in trust (post the S Street sale) and the notional return on the N Street property, that might have been received on a sale for $456,300, less a combined mortgage of $192,511. As I indicated, I need this issue to be clarified as I refer to when I discuss the orders that achieve justice and equity.

1. The husband says that an add back of $60,000 for each party from orders or agreement in October 2022 and May 2023 should be included. The Court does not need to enquire into how the funds were used. In this context, the wife says that a sum of $80,000 should be added back against the husband; whilst only $34,367 should be added back against the wife - being her payment of legal fees from the interim distributions of $80,000 each.
2. In respect of partial property distributions, the earlier orders made are noted:

(a) 23 May 2019 - Order 8(c) and (d) providing for $25,000 to be paid to each party's solicitors from the sale of the Suburb U property - which ultimately did not sell until mid-2023;

(b) 19 July 2022 - Order 5 refers to all four Suburb G properties to be sold and at Order 7, each party was to receive $30,000;

(c) 26 April 2023 - Order 5 provided that "if not already done", $30,000 was to be paid to each party from the net proceeds of the Q Street property; and

(d) 18 August 2023 - Order 1 provided for $20,000 to be paid to each party.

1. The Court did not receive into evidence the trust account statement for the solicitors retaining the funds, such that there is a degree of uncertainty as to whether the funds each party received was $60,000 (as the husband contends) or $80,000 (as the wife contends). Notionally, I adopt $80,000 with the ability to correct by agreement.
2. In addition to how the Court should deal with the interim distribution, the wife contends for further "add backs" as follows:

(a) $70,000 being "purported loan repayments to paternal relatives without reference to or comment from the wife (on 7 January 2019; 31 January 2019; 1 February 2019 and 2 February 2019) - item 57;

(b) $45,000 unilaterally withdrawn by the husband from a line of credit account in March 2018 - item 59

(c) $14,703 being receipt of sale proceeds of AN Shares and AH Bank share sales - item 60; and

(d) $21,910 being withdrawal of lump sum capital from the K Street home loan offset account post separation, alleged to be the balance of the wife's redundancy payment - item 61.

1. The principles relating to notional "add backs" are well known and, whilst a matter for the exercise of discretion so as to ensure justice and equity is achieved, adding funds back is the exception to the rule that interests are determined on a pool that exists at the time of the hearing.
2. As I understand the wife's submissions, these benefits are a form of premature disposition in a Townsend & Townsend [1994] FamCA 144; (1994) 18 Fam LR 505 sense (see submissions at paragraph 180(e) filed 7 July 2020).
3. The husband's response is set out at paragraphs 245 to 249 of the written submissions filed 5 August 2020, essentially that:

(a) the husband says he borrowed, post separation in October 2018, $160,000 from his mother Ms AP, of which sum he repaid $70,000 to her - drawing the funds from joint funds;

(b) as to the sum of $45,000, the husband was not asked in cross-examination whether he accessed the funds or how, if he did which he does not admit, he used them; and

(c) as to the alleged use of $14,703 and $21,910, it is submitted, correctly, that no questions were put to the husband in cross-examination.

1. With the chaos that engulfed this family at separation on 14 December 2017 and thereafter, and where frankly monies were being spread amongst a range of bank accounts and entities, I am not satisfied the wife has established the funds she says were unilaterally withdrawn around separation were so withdrawn only for the husband's benefit. The $70,000 repaid to his mother is best considered when discussing the husband's claim to include loans from his parents in the balance sheet. I do not include the wife's add backs at items 57, 59, 60 and 61.
2. As indicated earlier, a sum of $80,000 for each party shall be added back for partial property distributions.

1. The husband relies upon affidavits from his parents, being:

(a) his mother, Ms AP filed on 7 January 2020 and 5 October 2022, affidavits where she deposes to making "loans" to her son, being:

(i) a loan of $50,000 in 2006, reflected in an unstamped agreement dated August 2006, which could be "called in" at any time;

(ii) post separation, after the husband had repaid the loan of $50,000 in February 2018, further loans between June 2018 and August 2019 were made (totalling $350,000 - of which sum $70,000 was repaid as set out above);

(iii) some funds were paid to the husband's lawyers; and

(iv) in the later affidavit of Ms AP, she refers to "loans" paid to the husband between July 2020 and September 2022 totalling $110,000. She deposes to the husband owing her now a total of $390,000.

(b) His father, Mr AQ also filed affidavits on 31 December 2019, 18 May 2020, and 5 October 2022 where he deposes to making "loans" to his son, being:

(i) between September 2018 and April 2020 totalling $160,731.95, of which the majority was for the husband's legal fees save for $10,000 for works on the Suburb G properties and $18,000 for payments directly to the husband; and

(ii) in the last affidavit, he updated the schedule by including further payments made for legal fees from August 2020 to July 2022 totalling an additional $38,545.

1. The husband's parents were not required for cross-examination and on 18 August 2023 there was an intimation made that the husband was likely to procure an updated affidavit from his mother, and one was filed on 2 November 2023 (having been affirmed 19 August 2023). On 10 November 2023, the husband, through his Counsel, advised the Court that he was only relying upon Ms AP's 2022 affidavit, not the 2 November 2023 affidavit.
2. I accept that a loan of $50,000 was made and repaid from the joint funds. As to the balance of loans which the husband seeks to include in the balance sheet, being:

(a) $455,000 to his mother Ms AP, excluding portions "relevant to legal fees"; and

(b) $42,700 to his father Mr AQ, excluding portions relevant to legal fees and labour,

they will not be included because:

(c) I am not satisfied that the husband will be the subject of any actions for recovery (see Biltoft & Biltoft [1995] FamCAFC 45; (1995) FLC 92-614); and

(d) the husband's evidence is quite opaque and vague as to how the majority of funds he says he received were used. I accept the submission of the wife's Counsel (at paragraph 66), when considering the statements in Exhibit 24, that:

It is not possible to reconcile the Respondent's evidence as to the funds he has loaned from his parents, the funds he has applied towards legal fees, the funds he has applied towards the costs of repairs to real property and his stated income. Each of these elements were solely within the gift of the Respondent to give in evidence.

1. Furthermore, when I come to the consideration of contributions, the wife is not in a position to challenge (and did not challenge) the husband's evidence about the costs of renovations and maintenance on the Suburb G properties, and he is entitled to have that recognised. If he used funds from his parents to do so, then he had an evidentiary obligation to reveal clearly that connection. Apart from substantial contributions to his legal fees, there is evidence the husband also used funds from his parents personally - probably towards his business. He operates a business and must carry expenses or fund them. His lack of full and timely disclosure as to his practice income/operation has not assisted him in this case. If funds received by the husband were used for his business, that is a debt of the business and whether it was repaid and how it was reflected in the books of the business is a mystery.
2. The loans will not be included. For completeness, the wife says her parents have assisted her with payment of legal fees, but properly so, she does not seek they be included as a loan in the balance sheet.

1. The wife's parents (now solely her mother as her father has passed away) own and operate a business at Suburb W, where properties are available for use by "tenants" in different circumstances. For these parties, as a way of generating income, two relocatable homes were constructed off site; moved onto the sites described as numbers 1 and 2 V Street, and have been used to attract rental income.
2. Prior to Covid-19 impacts, the location of the business could, it seems, at times attract better rentals during peak periods. Longer term occupancies attract slightly less rentals but have the security of longer occupations.
3. The husband, the wife asserted, was "fixated by the contractual arrangements relating to the structures on the two sites". The husband asserts that the wife is able to obtain a better return from the two sites than the current return of:

(a) $480 per week plus electricity (site 91); and

(b) $595 per week plus electricity (site 190).

1. Although the husband's lack of timely disclosure was apparent and caused the hearing to be adjourned on two occasions, he seemed oblivious to his conduct when appearing frustrated by the wife's failure to meet his demands for better information from the owner of the location - an entity controlled by the wife's mother called AR Company. The wife was aware the husband asserts that AR Company collects more rent from the occupiers of 1 and 2 V Street, than is passed on to her. From the evidence of the wife, which I accept, before she obtains a payment, a contribution to operational expenses of the location must be made.
2. The wife did not accept she can demand more information from that third party. I agree, and I also agree that it is reasonable to accept the rental received includes a component for the actual structure use and also the site use. It is not broken down.
3. I also accept that the wife's income that she has collected form the properties has not increased for some time. No reasonable explanation for why this is the case is offered by the wife.
4. The real issue for determination is what value should be attributed to the structures and the right of those structures to remain on those sites. When seeking to re-open, the wife relied upon evidence of D Valuations to support the application to re-open. As my Reasons for Judgment reflect however, whilst the evidence helped persuade the Court, in the exercise of its discretion, to re-open, the Court ordered a new and independent single expert be appointed. That expert, Mr AL, from a well-known valuation firm, provided a report and was the subject of cross-examination by the husband's Counsel.
5. The evidence given earlier by Mr H was not evidence of a single expert nor was that evidence relied upon in August 2023. He was, as a result, not the subject of cross-examination. I do not consider that evidence as relevant.
6. Mr AL indicated that the "[properties] are unusual" to value and he had difficulties obtaining reliable comparable sales evidence. As an expert valuer however, he indicated the sources of information he relied upon, but conceded those persons were not detailed in his report. I accept Mr AL's oral evidence that:

(c) he spoke to managers of three other similar locations and made general enquiries;

(d) he had previous experience determining rents for a "manufactured" home; and

(e) based on his experience, his assessment of a range between $100,000 (scenario one) and $30,000 (scenario two) was appropriate.

1. I accept Mr AL is a valuer, suitably qualified, who has been in practice since 1987 - over 37 years ago. I comfortably accept his opinion as to the range. In his current report filed 17 August 2023, he referred to his earlier report (as a single expert dated 21 January 2020); referred to a number of questions posed to him; sales for properties could range from a low of $75,000 to a high of $125,000 (scenario one) and assessing as a property for relocation (taking into account a number of factors as he set out, the range of value is from a low of $20,000 to a high of $40,000.
2. Adopting a mid-range estimate, Mr AL comes to the expert opinion of a value being:

(a) scenario one - $100,000; and

(b) scenario two - $30,000.

1. I adopt the submissions of the husband's Counsel at paragraphs 238 to 244 of the first submissions that it is appropriate to adopt the scenario one valuation. I have taken into consideration the wife's submissions in reply filed 12 August 2020 (particularly paragraph 4.1 on this issue). The connection between the wife and the corporate owner does not provide any actual security at law, but the long term usage of the sites; her continued employment with the owner and the returns she has been consistently receiving, persuade me that the likelihood of her continued operation of the site with the manufactured structure (whilst technically relocatable of course) is, on balance, likely to continue. Furthermore, the gross rental she is receiving, for a capital value of $100,000 (which is the figure I will adopt), is an excellent return - over 20%.

1. It is not lost on the Court that the husband has at all times wanted to retain the former family home. The result of the parenting arrangements only intensifies his desire to retain the home - quite understandably.
2. It is to therefore be expected that the husband has an incentive to include the valuation of the property for the lowest price possible. In many ways, the design and intent of the single expert rules, is to avoid this tactical bargaining as to value by the appointment of a single expert. Mr AM was so appointed and his valuation for the property is $1,725,000. Mr AM was the subject of cross-examination by the husband's Counsel, and although some criticisms were made of Mr AM (see the husband's submissions at paragraph 19(a) to (d)), his evidence remains the best evidence available.
3. Whilst the husband complains that the late arrival of Mr AM's report meant he was unable to adduce adversarial evidence, there is no certainty that the adversarial evidence would be different, or even able to be relied upon.
4. In a last grasp attempt to get the valuation down, the husband contends (at paragraph 21) that as it is clear there "are some problems with the opinion of [Mr AM]", the husband invites the Court to consider adopting the value of the land only for the property at $1.6 million.
5. In my view, Mr AM's responses adequately dealt with the asserted "problems" with his report and did not deviate from this ultimate conclusion. In circumstances where the husband has given no evidence that the "defects", as he sees them, necessitate the home to be demolished - and to the contrary intends to continue to live there - there is no basis to adopt a "land only" valuation. The home will be included in the pool at $1,725,000 as its current market value.
6. Based on these findings, I find the pool of interests to be as set out at Appendix One to these Reasons.

1. In respect of the myriad of contributions of both a financial and non-financial character (both direct and indirect), including the contributions to the date of the hearing as homemaker and parent, I rely upon but do not repeat earlier findings made, but by way of summary, find the parties' contributions include:

(a) Initial contributions were minimal, although some support for the young married couple was received from the wife's family with discounted rent initially on the L Street property and in establishing the erection of the manufactured properties on sites 1 and 2 V Street. I accept the parties had the benefit of the $60,000 waived when they purchased L Street;

(b) I find, on balance, that the wife's contributions as homemaker and parent were greater during the early years of the children's infancy, although the husband was involved as best he could, whilst developing his business;

(c) To the extent the husband asserts that the wife retained the income from the two properties at V Street for herself, I am not satisfied that is the case. At least until separation, I find the income from the partnership found its way into meeting the needs of the family unit;

(d) In the post separation period from December 2017 to the end of the property trial in November 2023, the children spent the majority of time with the wife, with little contribution by the husband directly to the wife, by way of child support. As I acknowledge below, I accept the husband has continued to make, however, contributions to the children's private school fees, health insurance and extra-curricular activities;

(e) The wife has made an indirect contribution to the husband's continued occupation of the former family home at K Street;

(f) Initial contributions were minimal, although he brought into the marriage his qualification as a professional, initially as an employee but ultimately in his own business;

(g) I accept the husband introduced the benefit of $100,000 in total inheritance from his grandmother's estate. Although the husband says the initial loan from his mother of $50,000 (used toward investment property acquisition) did not attract interest, I accept it was of assistance at the time and was ultimately fully repaid with joint funds;

(h) There is a dearth of reliable evidence offered as to the income stream created by the husband as a professional, save for what is offered to the Court at paragraphs 341 and 342 dealing only with the financial years between 30 June 2014 and 30 June 2017.

He says his net business income during that period was as low as a loss of $48,789 (2016 year) to as high as $83,880 (2014 year). Examination of Annexure "[MRH31]" (being his taxation returns) reveals, for example, a taxable income (after allowances for property deductions etc) as being:

(i) 2014 year - $20,500

(ii) 2015 year - $19,468

(iii) 2016 year - $10,873

(iv) 2017 year - $23,480

As to the period to 2014, all the husband offers as evidence is that after he commenced his business in 2008, he "was successful in making a good income until the 2013 financial year, when problem files began to hurt the profitability". Frankly, taking each party's evidence at its highest, it is hard to see how they were able to both build and maintain a portfolio of real properties for investment - properties which have over the years appreciated in value to the point of recent sale;

(i) The husband conceded in the original submissions (at paragraph 229) that the wife made a greater non-financial contribution as homemaker and parent when the children were younger. When operating a profitable business, which involves significant time commitment, at least until 2013, I do not accept the husband's assertion that the contributions to the day to day tasks were shared equally;

(j) I accept that it is more likely than not that the husband had both more time to offer the children, as his business profitability reduced, and this is consistent with the Reasons published for the parenting proceedings. As those Reasons reveal, the effect of the parenting Orders made by me on a final basis was for the children at that time to spend slightly more time with the husband than the wife;

(k) I accept that the husband managed the investment properties, although it appears rental agents were involved. At paragraph 87 of his affidavit filed 15 August 2023, the husband sets out what he claims are expenses he has incurred in maintaining mortgages and the various properties since 11 June 2020 - totalling $394,382.11, after allowance for rental income of $92,413.44. It needs to be acknowledged of course, that of the sum of $394,382 estimated - the sum of $116,041 related to the K Street property occupied at all times by the husband, and the sum of $82,795.15 relates to the L Street property where the husband operates his business. It is likely some of the expenses for the four rented properties will be able to reduce the liability for CGT. It is not possible, as earlier noted, to reconcile these assertions as to payment (even though they were not seriously challenged in cross-examination) with his taxable income; funds he says his parents lent him and the like. I do however take into account, without finding an exact figure, that the husband made a financial and non-financial contribution to maintaining the properties and further, as he says at paragraphs 151 to 154, a reduction in the loan principle of $73,612 has been achieved since 11 June 2020, although it is to be accepted that some of that reduction is attributable to rental income as well.

1. In the ultimate analysis, the husband contends (I accept on a very different pool, and where in particular his parents' "loans" are taken into account in the balance sheet) for a contribution based assessment of 55% to the husband and 45% to the wife.
2. The wife contends for a contribution based assessment as to 60% to the wife and 40% to the husband.
3. I make these statements as to the parties' positions because neither party seemed to assert that the relevant s 75(2) factors would cause an adjustment to the contribution based assessment.
4. This was a long relationship with joint but also different contributions made from 2002 to November 2023 - a span of 21 years. I have concluded that the contributions should be assessed as equal.

1. As earlier indicated, I have received little by way of oral or written submissions in respect of these factors, but ultimately have reached a view that no adjustment for these factors, to the contribution based entitlements, should be made for these reasons:

(a) The parties are of a similar age and there is no evidence that, apart from the likely stress of the litigation, health issues impact or will affect their capacity to earn an income;

(b) The wife's Financial Statement filed 25 July 2023, reveals gross income of $2,370 per week (including rent from the properties at V Street) and the husband's Financial Statement filed 17 August 2023 reveals a gross income of $2,000 per week - which in cross-examination he clarified as his estimated business income, after business expenses, but before tax. Although the husband asserts the wife's income is superior and that is a factor to be considered, I do not agree. The father has both qualifications and many years' experience as a professional. The children, now aged almost 18 years and 14 years, do not significantly impede his capacity to earn. In my view, it is his choice to work in his own business rather than as an employed professional. His income earning capacity is superior to that of the wife because of his qualifications;

(c) The future care arrangements of the remaining infant child Z will most likely fall upon the husband, but only for a few more years. I accept any contribution by the wife to child support will likely be minimal;

(d) The ultimate effect of the orders I propose to make, the parameters of which I discuss next, are shaped by:

(i) the husband's desire to retain the former matrimonial home that has a net value of approximately $1,230,000 - by far the most valuable item in the pool of interests. Whether the husband is able to retain that property, with a need to conceivably refinance the home debt to make repayments to his parents, is not the subject of evidence. It may depend on the funds remaining from the sale of the investment properties and discharge of CGT liability;

(ii) the wife, who is still renting (the said Financial Statement refers to a payment of $720 per week - item 21), will have the L Street property with an equity of around $487,000 from which she can earn an income; the two properties and some cash; and

(iii) the parties have modest superannuation benefits, unlikely to increase significantly, and inaccessible under current legislation for some years yet.

(e) I do take into consideration that the husband says he has at least a moral (he would say legal) commitment to his parents for the loans he says he owes them. Clearly most of the loans relate to legal expenses. That is a matter he will have to work through with them, especially in circumstances where his ongoing wealth is captured by the former family home. I do not however ignore the Costs Notice in relation to costs incurred and paid by the wife totalling many hundreds of thousands. The source of these payments are her parents in some form - putting the wife, in many ways, in the same difficult family situation as the husband.

1. Weighing all these factors - some which favour an adjustment to the wife; some which favour an adjustment to the husband, I have reached the conclusion that no adjustment to the contribution based assessment of equality, is justified.

WHAT ORDERS ARE LIKELY TO ACHIEVE JUSTICE AND EQUITY?

1. Whilst the husband's affidavit, at paragraph 110 provided an "estimate" of likely CGT, I do not regard the estimate as necessarily accurate. I accept, although curiously, all funds from the sale of the Suburb G investment properties (including presumably now the N Street property) are likely to be in a solicitor's trust account.
2. However, as the husband correctly identifies, the assessment of CGT is slightly complicated because three of the properties were owned by the parties' entity AD Pty Ltd as Trustee for the AD Trust. The husband (at paragraph 105) indicated a willingness to "update" the net sale proceeds, but that has not occurred. No financial statements for the Trust were provided to the Court (amongst the voluminous array of documents) nor do the final submissions direct me to any recently filed returns which help identify the alleged accumulated losses of $229,078 or the extent to which those losses are available, if at all, to offset a capital gain in the Trust.
3. Since this judgment was reserved, it might have been possible to, by consent, offer some updated evidence of net proceeds and likely CGT, but that has not happened. I accept the parties' attentions have been directed to ongoing parenting proceedings.
4. In the absence of this information, I am not able to calculate, with the degree of certainty that is desirable, the monetary adjustment that needs to be made, but as a guide and adopting the likely incidence of CGT as being $177,731 (which is a very rubbery figure for the reasons explained), an equal division of the pool as identified in Appendix One would see the effect of the orders as follows.
5. The wife's 50% of the net pool of $3,052,750 (reducing the pool for notional CGT of $177,731) equates to approximately $1,526,375, made up as follows:

1. The husband's 50% net pool of $3,052,750 (reducing the pool for notional CGT of $177,731) equates to approximately $1,526,375, made up as follows:

Plus, share of net funds available from the sales of the Suburb G properties

1. From Appendix One, my current estimate of what funds may be available from the completed sales of the Suburb G properties (at the highest), is:

1. I accept that, as already indicated, there are variables to be clarified in this estimation.
2. However, the funds "available" of approximately $618,590 would meet the notional payments to the parties as set out above, being:

(a) $552,134 for the wife; and

(b) $66,457 for the husband.

1. Whilst the actual calculation would require more accurate calculation, the broad parameters of orders that achieve this outcome are likely to achieve justice and equity subject to the following matters important to mention:

(a) It will be necessary for the husband to vacate the L Street property. Subject to any further submissions, I would allow 90 days from the date of the order;

(b) There is no advice or evidence as to how funds in the Trust can be distributed to the wife, if that is what is necessary. Little information and no submissions were made, as to the beneficiaries of the Trust and whether, for example, a distribution from the Trust to the wife (directly or indirectly) has tax consequences; and

(c) It will be necessary to consider in the orders some machinery provisions for enforcement.

1. Finally, and importantly, the Court is aware during the long period of this litigation, orders have been made reserving costs and orders for costs against the husband for at least the two adjournments of the property proceedings, were at least intimated.
2. I direct that steps be taken to reduce to an agreed memorandum from the parties about:

(a) which costs orders that were reserved, a party seeks to pursue;

(b) in respect of any other costs orders, is a party seeking to pursue such order;

(c) what submissions, whether oral or in writing, have been filed or made and when;

(d) are there any costs orders where a party claims they have not yet made a submission (either in support or response) and wish to do so; and

(e) is it the intention of a party to otherwise pursue an application for costs in respect of the substantive property proceedings now that, to a large measure, the outcome of this part of the proceedings has been identified by the Court.

1. For the reasons articulated, and whilst I will appreciate the desire of the parties to achieve finality in these property proceedings, I will require further submissions from the parties before I can hope to pronounce final orders.
2. Without expecting that the parties will be in a position to comply with all the requirements of my current direction immediately, so as to maintain and determine some timetable, I propose to list this matter next week for further hearing so as to allow both parties the opportunity to consider these Reasons properly, with their lawyers, and be in a position next week to make a further submission to me by telephone/video.

I certify that the preceding ninety-four (94) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann.

Furniture and household contents (including the husband's bicycle and storage facility contents)

Sale proceeds of Suburb G properties held on trust by the husband's lawyers

Interim releases of funds to the husband in October 2022 and May 2023

Interim releases of funds to the wife in October 2022 and May 2023 (portion spent on legal costs)

NOTIONAL GROSS ASSETS (BEFORE SUPERANNUATION)

CBA Account of Credit ...02 (secured against the N Street property)

CBA Account ...57 (secured against the L Street property)

CBA Loan ...05 (secured against the N Street property)

CBA Loan...108 (secured against the K Street property)

CBA Loan ...00 (secured against the L Street property)

Husband's interest in the parties' SMSF - AS Holdings Trust, of which AS Pty Ltd is Trustee) (as at 30 June 2022)

Wife's interest in the parties' SMSF - AS Holdings Trust, of which AS Pty Ltd is Trustee) (as at 30 June 2022)