Ieri & Byquist (No 2) [2025] FedCFamC1F 590 (29 August 2025)

(a) the husband shall refinance the mortgage presently secured over the Suburb E property into his sole name; and

(b) in exchange for the wife transferring all of her right, title and interest in and to the Suburb E property, the husband shall pay the wife the sum of $72,600.

1. That the outgoings for the Suburb E property will be paid by the husband from the date of these Orders.
2. That:

(a) If the husband is unable, unwilling or fails to pay the sum in Order 2(b) hereof, then the Suburb E property shall be sold and the nett proceeds distributed so as to effect a division of the pool of assets to reflect an 85% share of the total pool to the husband and a 15% share of the total pool to the wife.

(b) In the event of a sale under Order 4(a) hereof, the entitlement of the wife as calculated under Order 4(a) shall be reduced by $7,740.22, being the orders made by the Full Court on 20 November 2024.

(c) The parties shall have leave to seek machinery orders relating to the process of sale of the Suburb E property.

1. That within fourteen (14) from the date of these Orders, the parties shall each do all such acts and things and sign any documents necessary for the wife to transfer her shares in the company, L Pty Ltd to the husband or his nominee and resign from any and all office holdings.
2. That the husband shall be responsible for the preparation of all documents and be solely liable for any and all costs associated with the transfer of the wife's shares in L Pty Ltd to the husband or his nominee and the resignation of any office holdings, and shall indemnify the wife and keep the wife indemnified in respect thereto.

1. That save as otherwise provided for in these Orders, the wife shall be entitled, to the exclusion of the husband, to all other property, chattels and resources of whatsoever nature and kind in her possession or in respect of which the wife has an actual beneficial and/or contingent interest as at the date of the Orders, including but not limited to:

(a) all household contents in her possession;

(b) funds held to her credit in any bank, credit union or savings account;

(c) any motor vehicle in her possession including the unregistered Motor Vehicle 1; and

(d) any and all superannuation entitlements held by the wife.

1. That save as otherwise provided for in these Orders, the husband shall be entitled, to the exclusion of the wife, to all other property, chattels and resources of whatsoever nature and kind in his possession or in respect of which the husband has an actual beneficial and/or contingent interest as at the date of the Orders including, but not limited to:

(a) the business, L Pty Ltd;

(b) all household contents in his possession including the unregistered Motor Vehicle 1;

(c) any motor vehicle in his possession;

(d) funds held to his credit in any bank, credit union or savings account; and

(e) any and all superannuation entitlements held by the husband.

1. That the wife shall indemnify the husband and hold him indemnified in relation to liabilities of the wife from the date of these Orders, including but not limited to any credit cards and the mortgage on any property, any personal liability, tax liability, capital gains tax and credit card debts existing at the date of these Orders and in the future.
2. That the husband shall indemnify the wife and hold her indemnified in relation to any and all liabilities of the husband from the date of these Orders including but not limited to his credit cards and the mortgage on any property, any personal liability, tax liability, capital gains tax and credit card debts existing at the date of these Orders and in the future.

1. That noting the wife resides overseas, to facilitate the performance of the wife's obligations under Order 2 hereof:

(a) a Registrar of the Federal Circuit and Family Court of Australia (Division 1) is authorised pursuant to s 106A of the Family Law Act 1975 (Cth) to sign on behalf of the wife such documents necessary to perfect the transfer of the wife's interest in the Suburb E property, and without affecting the generality of this Order, a Registrar shall execute on behalf of the wife:

(i) a transfer of her interest in the Suburb E property to the husband; and

(ii) all documents and authorities necessary to discharge the mortgage currently secured over the Suburb E property.

(b) the husband shall be responsible for preparing, at his cost, the documents under Order 11(a) hereof and he shall hold such documents, once signed by the Registrar, on escrow pending payment to the wife of the sum of $72,600 to a bank account nominated by the wife; and

(c) once payment of clear funds has been made, and simultaneously, the condition of escrow imposed by Order 11(b) hereof shall be discharged, with the husband, at his cost, at liberty to facilitate registration of any Transfer and Discharge of mortgage.

1. That unless otherwise specified in these Orders and except for the purposes of enforcing any payments due under these Orders or any subsequent agreement or order required to give effect to these Orders:

(a) money standing to the credit of the parties in any joint bank account must be distributed equally between the parties and the account closed;

(b) each party is solely responsible for and indemnifies the other party against any liability to a third party existing at the date of these Orders, which was incurred in their name, whether before or after the date of these Orders;

(c) neither party may pledge the credit of the other after the date of these Orders;

(d) insurance policies become and remain the sole property of the owner named in the policy;

(e) each party is solely liable for, and indemnifies the other against, any liability encumbering any item of property (including choses in action) to which that party is entitled pursuant to these Orders;

(f) any joint tenancy of the parties in any real or personal estate is expressly severed; and

(g) where an asset is to be transferred to a party pursuant to these Orders, the transferee is responsible for the preparation of all documents necessary to effect the transfer, and any costs, including stamp duty, associated with the transfer.

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

1. The Applicant husband Mr Ieri ("the husband") and the Respondent wife Ms Byquist ("the wife") commenced cohabitation in Australia in 2016 and separation occurred in January 2021, when the wife removed the parties' only child X born in 2019 ("the child") from Australia.
2. Since January 2021, the wife and the child have not returned to Australia, despite efforts of the husband and in contravention of Orders made by both this Court and previously by Hungarian Courts under the Hague Convention. A full history of the parenting proceedings is set out in my Reasons for Judgment published 28 June 2024 (see Ieri & Byquist [2024] FedCFamC1F 436).
3. An appeal by the wife against Orders made by me for the child to live with the father in Australia was dismissed (see Byquist & Ieri (No 2) [2024] FedCFamC1A 217).
4. It was completely understandable that the husband's focus was on the parenting issues, but in circumstances where the wife has refused to return to Australia with the child, the husband's desire to move on to some degree meant attention was ultimately given to the property dispute, which was listed for final hearing and proceeded to trial on 19 June 2025.

1. Although proceedings were commenced by the husband on 19 October 2022, as the trial on property proceedings occurred after 10 June 2025, the amendments to s 79 of the Family Law Act 1975 (Cth) ("the Act") apply.
2. Furthermore, as a result of the Full Court decision in Shinohara & Shinohara [2025] FedCFamC1A 126 where the Full Court said that:
   1. So that it is clear, s 79 now directs that the categories identified in Omacini pre-amendment that were notionally added back are to be considered in ensuring a just and equitable outcome, either by way of historical contributions, or by way of their relationship to and impact upon the current and future circumstances at the s 79(5) stage...
   2. As notional property does not exist, it cannot be identified to form part of the balance sheet recording the current items of the parties' property. Items 7 to 10 inclusive will be removed from the balance sheet and considered in the contribution findings or the adjustments thereto.
3. I will be required to apply these principles when discussing the pool of interests - particularly in respect of the claim by the husband that the wife holds jewellery to the value of $75,000.
4. For completeness, I am satisfied that it is just and equitable within the meaning of s 79(2) to make an order, as both parties so contend.

1. Although Exhibit 2 was tendered as a "balance sheet", and some items were agreed, the major dispute related to the existence of jewellery which the husband asserts - but the wife denies - the wife has in her possession. I deal with this dispute now.
2. The husband says at paragraphs 34 to 45 of his trial affidavit that:

(a) his parents, brothers and extended family gave the wife "a lot of gold jewellery as gifts for our wedding. This is in addition to the gold jewellery that our family friends gifted to her when we got married". Annexure "MI-04" are copies of the photographs showing the jewellery worn by the wife;

(b) he believes "the total weight of the gold gifted to [the wife] was about 475 grams";

(c) he relies on invoices attached to his affidavit and marked "MI-05" to establish the purchase price of some items; and

(d) a few days after he found the wife had left Australia, he realised that the wife's jewellery was missing, and he had his family search the usual places and could find no jewellery. The husband says that in June 2021 he obtained an invoice which reveals the wife sent five boxes of items to her mother in Hungary described as "used personal effects of return resident" [sic] with a value of AUD$800. The husband says in addition to her personal things, he believes the wife took the gold jewellery of around 475 grams "gifted to her by my family to Hungary".

1. The husband tendered as Exhibit 2 a printed document from P Company (a company that buys and sells gold and coins), from which the submission is made that at least the jewellery of 475 grams has a spot price value of $140 per gram - a total value of $66,500.
2. The wife, in her affidavit (at paragraphs 17 and 18), says that:

(a) when getting married in 2017, the couple received some jewellery as a wedding gift from the father's family. The value of that jewellery is unknown as it was never valued or insured; and

(b) when she left Australia in January 2021 she only retained "personal items, and items that I had purchased from my own money prior to the marriage, all with nominal value".

1. Both parties deny they have the jewellery - from which the Court is asked to find, evidentially on a credit basis, the other party still has the jewellery. Neither party deposes to having jewellery in their possession, in their filed Financial Statements. I acknowledge that the husband's brother Mr Q deposes that he "believes" the wife took all of her jewellery when she went to Hungary and confirms he searched for the jewellery but could not find it in the home. No basis for his "belief" is disposed to by this witness.
2. I am satisfied gifts were made to the wife and/or the couple at the time of marriage - of gold and gold jewellery. I am satisfied from the numerous photographs that the wife did wear gold jewellery - and she admits to such.
3. However, I am unable to be satisfied on the evidence and on the balance of probabilities that the wife removed all jewellery she had received during the relationship and as to some items I find she may have retained, what were those items and how much they could be worth.
4. To the extent the Court may have been asked to include in the balance sheet a value for the gold and jewellery, either as an undisclosed asset or on the basis that the wife has sold or disposed of the gifts, I am not prepared to do so.
5. I will find it more likely than not that the wife did retain when she left Australia some items (which would have included some jewellery) because simply when she left, she had no intention of returning. However, such items and their value cannot be established on the evidence.
6. On the basis of these findings, I formally find the pool of interests to be as follows:

1. The husband estimates his household goods at $5,000 and concedes his bank accounts should be included. In circumstances where the wife in her Financial Statement discloses no bank accounts and "nominal" value for household goods, I am satisfied it is just and equitable to include the husband's estimate of his household goods, as a statement against interest.
2. As to the wife's Motor Vehicle 1, she deposed in cross-examination she had reported it stolen. The husband claims to have the vehicle which is unregistered. No allowance will be included for this car, where there is no evidence in its current state that it has any value at all.
3. In view of the modest superannuation interests, I agreed with the parties' position that only one pool of interests be created for the purpose of analysis.

CONTRIBUTIONS UNDER S 79(4)

1. The brief affidavit evidence of the parties reveals little difference in what they say were their contributions, which I record to be as follows in respect of the s 79(4) factors:

(a) At the time of cohabitation in 2016, the wife was approximately 34 years of age and the husband was 29 years of age. Both were employed, although the wife did receive approximately $15,000 from a pervious marriage. I am satisfied the parties utilised any balance remaining and other savings from employment (save for approximately $125,000 that the husband had retained towards the purchase of a home) towards travel and wedding expenses;

(b) The wife (at paragraph 11) conceded that the husband contributed from his funds (and money from this brother) a total of $125,000 towards the purchase of the home which is consistent with the husband's evidence at paragraph 26. The purchase price was $627,000, with a nett advance from the Commonwealth Bank of Australia of $502,000. Although the husband does not indicate whether he paid back his brother, it is noted that the husband's Financial Statement discloses no outstanding liability to his brother. I infer on this basis it was repaid by the husband, and that it is fair to regard this as an initial contribution by the husband to the only major joint purchase by the parties, the home, in 2018;

(c) With the birth of X, less than a month after the settlement of the family home, I accept that from her birth the mother was the primary homemaker and parent. The husband adopted, by agreement, a traditional role as "bread winner" - with the wife saying, and I accept, that because of her "severe pregnancy condition" she was unable to remain in employment and was "bed bound" for several months;

(d) I am not satisfied that the wife had available funds to make any real financial contributions to the ongoing home mortgage, rates and expenses or the living costs of the household after X's birth;

(e) Although the wife says the husband did little by way of his role as a parent, I am satisfied he made some - albeit modest non-financial contributions - towards the care of X and outside the home;

(f) As earlier noted however, the wife's unilateral decision to leave Australia in January 2021 - when X was only two years of age - meant from that date, at least:

(i) the wife made no financial contributions to the maintenance or improvement to the Suburb E home or to the mortgage or rates of the jointly owned home. I accept the husband had the continued use of the home - which has seen a substantial capital gain; and

(ii) the husband, despite his desire to do so, has made no contribution to the care of X. The mother's insistence that she will not return at all and ever to Australia - the country of X's birth - means that the husband was required to expend funds on legal expenses in both Australia and overseas. I accept he has not paid child support for his daughter - nor does it appear the wife has made any claims.

CONSIDERATIONS RELATING TO CURRENT AND FUTURE ENTITLEMENTS UNDER S 79(5)

1. In circumstances where the pre-amendment considerations under s 75(2) - often referred to as the future needs factors - are now, although expanded, included as s 79(5) - the brief following findings. largely not controversial, are made:

(a) The wife deposes, and I accept that, she is currently 42 years of age and in good health overall. The wife holds a degree and says she is financially self-sufficient. The wife's Financial Statement affirmed 27 May 2025 discloses she is contracted to provide services in Hungary and Serbia as an "educator" earning AUD$280 per week. She refuses to disclose more about her income "due to protection of personal safety" - whatever that is meant to mean;

(b) The husband is 38 years of age, and he says he enjoys "overall good health". He works for himself as a "[professional]" and says his gross income is $1,719 per week. His major weekly expense is a mortgage payment of approximately $750 per week and his car loan. In respect of the car he currently owns, at Item 59 of his Financial Statement he disclosed he traded in, at a value of $18,928, Motor Vehicle 3, when he decided in 2024 to purchase Motor Vehicle 2. As the earlier balance sheet reflects, the equity in Motor Vehicle 2 is approximately $5,000 more than the trade in amount received;

(c) The wife says she has no way of accessing her superannuation entitlement ($39,638) at her age - even though she is no longer a resident of Australia and has no intention of returning. Under cross-examination, the wife conceded she had made no enquiries about whether she can access her superannuation. The husband has made it clear that he does not wish to take some of the wife's superannuation, in circumstances where he would not be able to access the increased benefits for nearly 20 years; and

(d) One of the unusual features of this case is that although clearly the wife will have the responsibility both financially and emotionally for the care of X - for a further 12 years until she reaches adulthood - the wife's actions in refusing to return to Australia has in effect prevented the husband from playing any role at all. I accept that the husband is not relieved under Australian law from being liable for child support, but the mother has not sought to enforce any liability - even, for example, by securing a foreign country assessment and then seeking to enforce in Australia. In my view, the wife's obligations of care for X are a factor to be considered under s 79(5)(f) and s 79(5)(g);

(e) Mr Cameron of Counsel for the husband submitted that the weight to be applied in the wife's favour for her continuing care responsibilities to X should be reduced, because of the wife's decision to act contrary to the clear Orders of the Hungarian Courts and this Court. I agree and apply s 79(5)(v) - namely any other fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account - but I would not find that this means no weight should be applied to the future care responsibilities as a factor in favour of the wife.

1. In considering what order (if any) should be made under s 79 of the Act (see s 79(3)), and having already identified the existing legal and equitable rights and interests of the parties, the Court is required to consider those matters which are relevant and prescribed by s 79(4) and s 79(5) of the Act - which I have done above.
2. This is not a case where the analysis compels, as is the process I usually apply, a determination of percentages in respect of the s 79(4) considerations and then any adjustment in respect of the s 79(5) considerations.
3. The wife's Response filed 11 January 2023 sought a division of those interests as to 60% to the husband and 40% to the wife, but with the husband taking 100% of the wife's superannuation entitlement however by her case outline filed 11 June 2025, the wife sought 85% to the husband and 15% to herself. This would, on the pool of interests identified, require the husband to pay the wife a sum of approximately $120,000 in cash, as well as refinancing the current joint mortgage.
4. The husband's case outline filed 12 June 2025, for the reasons asserted, sought a 90%/10% contribution finding, and no adjustment for future needs. Of course, the husband's case was partly founded on a conclusion the husband says the Court would reach, namely that the wife does have jewellery and it is worth $75,000 (reduced to a figure of $66,500 in final submissions).
5. As authority has consistently found and directed, it is the form of orders which must be considered to ensure justice and equity is achieved for both parties - not mere percentages.
6. Currently, it is not in dispute that the husband shall retain the home at Suburb E; refinance the mortgage and retain the other items in his possession and control, including his superannuation interests.
7. The wife would seek the husband take her superannuation and in effect "convert" that future entitlement to "cash now". Where the wife's actions have created the difficulty she will have in assessing her superannuation from overseas, I do not regard it as just and equitable to split the wife's superannuation in part or wholly to the husband.
8. Based on the pool of interests already identified having a nett combined value of $799,882, I find orders which have the following effect would be just and equitable for both parties:

1. Considering the Order made by the Full Court on 20 November 2024 that the wife pay the husband's costs fixed in the sum of $7,740.22 from any entitlement arising from any final orders made for property adjustment (incorrectly indicated by the Full Court as pursuant to s 90SM of the Act), the sum the husband will be required to pay the wife will be $72,603.78, being $80,344 minus $7,740.22, which will round down to the figure of $72,600.
2. The division that creates the payment takes into account:

(a) the initial contribution of the husband of $125,000;

(b) the respective financial and non-financial contributions during the period from 2016 to January 2021 - less than five years;

(c) the direct financial contributions made to the maintenance and preservation of the primary asset since the wife left Australia; and

(d) the contributions made by the wife as the sole carer of X since January 2021 reduced by the effect of the wife's conduct.

1. It is not appropriate for the wife's claim to be diminished entirely to only retaining inaccessible superannuation in Australia because of her conduct, as the husband may regard as fair. I cannot take into account the legal and other costs he has included in seeking to enforce in Hungary the Orders made in that jurisdiction. It is not appropriate, although the Court accepts the husband might feel this way, to penalise the wife in a monetary sense for her wilful conduct.
2. I am satisfied that if the husband needs to borrow the whole of the payment, even if refinancing is in circumstances where his total mortgage might be around $520,000 - this represents a debt-to-equity position of less than 50%.
3. For these reasons, the orders which appear at the commencement of these Reasons are just and equitable. The requirement for documents to be signed by the wife (for example requests to discharge the current mortgage and title transfers) under s 106A of the Act by a Registrar is incorporated to avoid the difficulties likely to be encountered by having the wife sign documents overseas. It is incorporated in the orders, not because I have formed the view that she will not comply with orders now made (despite her failure to comply with parenting Orders), but to effectively make orders that bring these proceedings to finality.
4. The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provide a timeline if a party seeks to pursue any costs application, which, if filed, will likely be the subject of orders made in chambers for the filing of written submissions.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann.