FAMILY LAW - PROPERTY - modest pool of net assets divided as to 55% to the wife and 45% to the husband.

Family Law Act 1975 (Cth) ss 75, 79, 79(A)

Jabour v Jabour [2019] FamCAFC 78; (2019) 59 FamLR 475

Shinohara & Shinohara [2025] FedCFamC1A 126

Todorov & Levitt [2025] FedCFamC1F 383

18, 19, 20, 21, 22, 25, 26, 27, 28 November 2024 10, 11, 12, 13, 14 February, 3, 4, 6, 7, 31 March, 1, 15 April and 14 August 2025

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

1. The former matrimonial home situated and known as C Street, Suburb D in the State of Victoria being the whole of the land more particularly described in certificate of title ... volume ... folio ... ("the real property") be sold in accordance with these orders.
2. The parties must do all acts and things and sign all documents necessary to transfer the husband the real property to be held on trust by him to effect a sale of the property by public auction.
3. Pending the completion of the sale of the real property -

(a) the husband has the sole right to occupy at the real property, and during such right of occupation, he must pay all rates taxes and heating, lighting, insurance and other expenses of and incidental to the real property as and when same fall due;

(b) the parties hold their respective interests in the real property upon trust pursuant to these orders; and

(c) neither party may encumber the real property without the consent in writing of the other party first being had and obtained.

1. The husband shall have sole carriage of the sale of the real property in all respects including but not limited to the selection of the selling agent and conveyancer and the reasonable costs to be incurred in making the real property ready for sale.
2. On completion of sale of the real property, the proceeds shall be paid in the following manner and priority -

(a) first, in payment of all costs, commissions and expenses of sale;

(b) second, to the wife, an amount calculated in accordance with the following formula -

(WK + HK + N) x 55% = WE

WK = wife's keep

HK = husband's keep

N = net proceeds of sale

WE = wife's entitlement

(c) finally, to the husband, the balance of the net proceeds of sale.

(a) her cash at bank (PP Bank Account No...40);

(b) her share portfolio;

(c) her Motor Vehicle 1;

(d) the caravan;

(e) the bullion;

(f) the ATO Foreign Resident Capital Gains Withholding Amount from the sale of QQ Street, Suburb RR, New South Wales;

(g) the CGT for the wife (from sale of NSW property); and

(h) her Superannuation Fund 1.

(a) the net proceeds of sale of QQ Street, Suburb RR, New South Wales;

(b) the net proceeds of sale of SS Street, Suburb TT, Victoria;

(c) his cash at bank (UU Bank Account No...18);

(d) his cash at bank (PP Bank Account No...41); and

(e) his Superannuation Fund 2.

1. All other applications in this s 79 application are dismissed.

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

1. My reasons for judgment in Todorov & Levitt[1] were handed down in circumstances of urgency in respect of which the parties agreed to the bifurcation of urgent parenting orders from less urgent property orders.
2. On 14 August 2025 I heard counsel for the husband and wife[2] who made submissions on the proper s 79 adjustments to be made. The submissions (such as they were) as had been advanced on behalf of both parties on property matters prior to judgment being handed down in the parenting decision reasons changed and the parties advanced different submissions on 14 August 2025.
3. During the hearing on 14 August 2025 both parties sought a week within which to obtain instructions and to file further written submissions on what were s 75(2) matters, which request I granted, the husband having until 28 August 2025 to file his.

1. The parties' agreed balance sheet was dated 14 August 2025. It was as follows -

Net proceeds of sale of QQ Street, Suburb RR, New South Wales - Husband's solicitor's trust account (H CGT debt $155,242.54 paid in 2025)

Net proceeds of sale of SS Street, Suburb TT, Victoria held in the Husband's solicitor's trust account

(Shares in XX Company - 1,000 - Shares in YY Company - 487)

ATO Foreign Resident Capital Gains Withholding Amount from the sale of QQ Street, Suburb RR, New South Wales

Partial property settlement received to date by the Husband

Partial property settlement received to date by the Wife

CGT for Husband (from sale of NSW property) paid from Item 2 above $155,242.54 in 2025 (actual CGT assessed $161,531 reduced by H refund entitlement

K Counselling Program invoice 2024 Court attendance balance due after payment of $6,600 by Husband 2025

1. Set out below are my findings of fact in relation to the parties' existing legal and equitable interests in property for the purposes of Stanford v Stanford.[3]

THE WAY PROPERTY ORDERS WERE ADDRESSED PRIOR TO THE PARENTING DECISION

1. In written submissions advanced immediately prior to my decision being reserved ahead of the parenting decision, the wife advocated for a division of net assets in her favour on the basis that 70% was to go to her and 30% was to go to the husband. That submission was premised on an equal division on a contributions-based assessment to which the wife sought a loading founded on what were s 75(2) factors. Those s 75(2) factors included -

(a) the duration of a 29-year relationship;

(b) the fact that the wife suffered from certain chronic health conditions;

(c) the wife had not worked since 2010 whereas the husband had been employed as a professional earning $140,000 per annum prior to losing his job;

(d) the wife receives a disability pension; and

(e) if the wife was successful in the litigation in respect of parenting, she was likely to have the care of the children with her attendant costs.

1. On behalf of the husband, he propounded a division of assets on the basis that 45% went to the wife and 55% went to the husband with no adjustment on account of s 75(2) matters.[4] He argued that on a contributions-based assessment, he provided gifts totalling $195,000 in the period 2010 to 2018 in addition to providing financial and non-financial contributions that the parties agreed aggregated 50%.
2. A number of issues had not been addressed about the property aspect of this litigation during the running of the trial which was consumed almost in totality with aspects of parenting. As a result, in written submissions following the parenting trial, the attention devoted to property issues was sparce and, in certain respects, extremely difficult to follow. As a result, I requested the parties to appear before me to assist in unravelling the balance sheet that was attached to the mother's written submissions.
3. In the passages that follow, I have set out matters arising from the submissions advanced on 14 August 2025.

1. It was conceded that both the wife and husband were the registered propertiers of the land and improvements known as C Street, Suburb D, Victoria. Title to the property was unencumbered, as Mr Werner informed me. Its agreed value was $2,250,000. No further debate was required in respect of item 1 on the balance sheet.
2. Item 2 had altered from $544,157.82 to represent the sum presently held in trust, now $388,915.28. That was not an agreed amount. The difference between the higher amount of $544,157.82 and the present amount of $388,915.28 was the payment made by the husband by way of capital gains tax. Both parties agreed that it was proper to apply payment of capital gains tax from the larger sum of $544,157.82 thereby deriving the sum of $388,915.28.
3. So far as item 3 was concerned, the net proceeds of sale of SS Street, Suburb TT standing at $160,924.64 did not require any amount to be deducted on account of sums due to a mortgagee.
4. Mr Werner agreed that despite there being essentially no evidence in respect of item 4 (UU Bank account no...18 with a zero balance), item 5 (husband's cash-at-bank of $3626), item 6 (wife's cash-at-bank of $4,389), item 7 (wife's share portfolio of $4,300), item 8 (there was no item 8) item 9 (Motor Vehicle 1 valued at $4,000) and item 10 (a caravan the agreed value of which was $10,000), all of those sums were agreed thereby not requiring proof of amount or ownership, so said Mr Werner.
5. The item described as bullion in the agreed amount of $11,000 had been purchased using joint funds, according to Mr Werner. Mr Potter agreed. However, he added that the wife wishes to retain the bullion in specie.
6. The factual scenario against which the amount of $107,186 (described as "withholding amount') was set was explained by Mr Werner. He conceded no evidence existed on point yet the sum was agreed as to the amount. Mr Werner said the sum was a tax credit being an amount retained from the proceeds of sale of one of the party's rental property, the payee (or entity properly entitled to that amount) being the Australian Taxation Office. Mr Werner said that amount was a credit in the wife's favour to be applied to offset other tax liabilities.
7. The amount of $15,000 in item 14 described as "car insurance" related to the proceeds paid upon a car being written off. Mr Werner said his client made an insurance claim, which was paid, and the wife retained that amount subsequent to separation. Mr Werner said the amount, while small, must be brought to account in recognition of the sum received.
8. Both parties agreed that the property being the former matrimonial home must be sold.
9. So far as liabilities were concerned Mr Werner said that the sum of $149,560.55 was a capital gains liability which had been assessed and the assessed sum corresponded with the amount identified, namely $149,560.55. It was not a joint liability but rather one due by the wife alone for the simple reason that the ATO is unable to pursue that sum against the husband.
10. Both parties urged me to adopt a global approach toward the consideration of assets and liabilities, rather than an asset-by-asset approach. Mr Werner said that the devil was in the detail of the percentage by which net assets were divided.
11. Once the orders in the parenting proceeding were made, the percentages sought by the wife altered to some extent. That was because, at least in part, the children have been ordered to live with the husband rather than with the wife. Mr Werner sought a short time to reflect on the percentage his client sought in the division of assets.
12. On behalf of the husband, Mr Potter of counsel submitted that the overall total of assets to be divided (on the husband's version without superannuation)[5] was $3,263,180.92. He said agreement had been reached on the value of all assets. He said the husband will incur financial responsibility for professional supervision and for therapy for the children, a likely extensive outgoing.
13. Mr Potter said the evidence revealed that the husband had received, whether by gifts or in inheritance, the sum of $50,000 in 2010, the sum of $25,000 in 2014 and the sum of $120,000 in 2018 (a total of $195,000), such sum representing contributions by the husband which were applied in discharging debts and the like, all of which would still be owing had the sum of $195,000 not been so applied. Some of those amounts, Mr Potter said (although he did not identify which) would attract the operation of what was s 75(2)(o). He said the father will have the care of the children for a time then later for the majority of the time. His income is about $80,000 per annum and it is presently unknown whether that amount of his income will increase.
14. Mr Potter agreed (he had no choice) that according to Jabour v Jabour[6] the Full Court held that all myriad of contributions must be taken into account. Mr Potter agreed that the task does not involve a mathematical exercise nor is it a dollar-for-dollar analysis.
15. Mr Potter submitted that the appropriate range in the percentage division of assets was between 55% and 60% in the husband's favour. He said that once it was recognised that a 50/50 adjustment applied having regard to the length of the relationship, to that must be added a further percentage of between 5% and 10% making, he said, a percentage division in the husband's favour of between 55% and 60%.
16. Arithmetically, Mr Potter submitted that the starting figure was (in round terms) $3.2m providing $1.6m to each party on an equality of contributions basis. Cash must be generated to provide that amount to the parties, derived from selling the former matrimonial home.
17. After taking instructions, Mr Werner submitted that the appropriate loading applicable to his client under s 75(2) was 5% in addition to equality of contributions he urged as a commencement premise.

1. In the latest iteration of her amended initiating application the wife sought property orders. They were in the following terms -

"1. That within sixty (60) days from the date of these Orders, the Husband do all acts and things and sign all documents necessary to transfer all his right, title and interest in the real property at [C Street, Suburb D] VIC [...] being the real property more fully described in the Certificate of Title (Volume [...], Folio [...]) to the Wife ("the transfer of the [Suburb D] property").

1. That within seven (7) days of the making of the orders, the Husband shall vacate the [C Street, Suburb D] VIC [...] ("the [Suburb D] Property") to enable the Wife and the children to reside at that property. Upon the Husband vacating the property, he is to ensure all necessary paperwork relating to the [Suburb D] property, the children, mother, the motor vehicles, and caravan are left at the said property to remain in the possession of the Wife.

2. That the monies held on behalf of the parties in the trust account of M.K.Steel & Giammario be retained by the Husband to the exclusion of the Wife.

3. That within sixty (60) days of the date of these Order, the Wife do all acts and things and sign all documents to transfer [Motor Vehicle 1] to the Husband at the expense of the Husband.

5. There be equalisation of the parties' Superannuation entitlements.

1. That the Wife and Husband do all such acts and things and give consent and sign all such documents as necessary to give effect to these orders.
2. The furniture and chattels as currently existing in the [Suburb D] property be divided between the parties as agreed.
3. Unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any monies due under these or subsequent Orders:
   1. Each party be solely entitled to the exclusion of the other to all property (including choses-in- action) owned by or in the possession of such party as at the date of these Orders.
   2. Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears.
   3. Insurance policies remain the sole property of the owner named thereon.
   4. Each party foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other save as provided for in these Orders
   5. Each party 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.
   6. Each party foregoes any claim they may have to any inheritances or compensation payments to which the other party is entitled to either presently or in the future.
   7. Any joint tenancy of the parties in any real or personal estate is hereby expressly severed."

1. The husband's latest version of the property orders he sought were as set out in the latest iteration of his response. They were as follows -
   1. That so much of the proceeds of sale of the parties' property at [QQ Street, Suburb RR] ("[Suburb RR]") held in trust by the husband's solicitor be applied as necessary to discharge the mortgage to [VV Bank] ("the mortgage") encumbering the real property situate at and known at [C Street, Suburb D] in the State of Victoria being the whole of the land more particularly described in Certificate of Title [...] Folio [...] ("the real property").
   2. The parties sign all documents to effect the discharge of the mortgage including the discharge authority to [VV Bank].
   3. That the parties do all acts and things and sign all documents necessary to transfer the husband the real property to be held on trust by him to effect a sale of the property by public auction as soon as practicable and proceeds of the sale be applied at follows ("the sale"):

a. Firstly to pay the costs and expenses of the sale;

1. Secondly to pay all costs reasonably necessary for the removal all chattels not sold with the property;
2. Thirdly the balance be divided equally between the husband and the wife.

4. Pending the completion of the sale:-

1. the husband have the sole right to occupy at the real property, and during such right of occupation, pay all rates taxes and heating, lighting, insurance and other expenses of and incidental to the real property as and when same fall due;

2. the parties hold their respective interests in the real property upon trust pursuant to these orders;

3. neither party encumber the real property without the consent in writing of the other party first being had or obtained.

4. The husband shall have sole carriage of the sale in all respects including but not limited to selection of the selling agent and conveyancer and the reasonable costs to be incurred to making the real property ready for sale.

5. The balance of the proceeds of the sale of [SS Street, Suburb TT] in the State of Victoria and [Suburb RR] be divided as follows:

a. Firstly the sum of $107,186 be paid to the husband;

1. The sum of $17,462 be paid to the husband in satisfaction of the Orders of 21 March 2024 and 20 May 2024 and single expert expenses paid solely by him;

c. The balance to be divide equally between the husband and the wife.

7. That for the purposes of paragraphs 12 to 22 of these orders:

1. The Superannuation Fund is [WW Pty Ltd] ABN [...], AFSL No. [...] as the trustee of [Superannuation Fund 2] ABN [...] ("the Fund");

b. "The Husband" is the member spouse, member number [...];

c. "The Wife" is the non-member spouse; and

1. "The Trustee" means [WW Pty Ltd] ABN [...], AFSL No. [...] as the trustee of [Superannuation Fund 2] ABN [...] ("the Fund") or such trustee(s), person(s), or corporation(s) as may be responsible from time to time for the management or investment of the Superannuation Fund.

8. That paragraphs 14 to 18 of these Orders are binding on the Trustee.

1. That the base amount to be allocated to the Wife out of the Husband's interest in the Superannuation Fund is $200,000 ("the base amount").

2. That in accordance with Section 90XT(1)(a) of the Family Law Act 1975 whenever the Trustee makes a splittable payment from the interest held by the Husband in the Superannuation Fund the Trustee shall pay to the Wife the amount which is calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount specified in the immediately preceding paragraph of these Orders (provided that such base amount shall not exceed the value of the interest determined under Section 90XT(2)), and there be a corresponding reduction in the entitlement that the Husband would have had but for these Orders.

11. That paragraphs 14 and 15 have effect from the operative time.

1. That the operative time for the purpose of these Orders is the beginning of the fourth business day after the service of the certified copy of these Orders on the Trustee by one of the parties.

2. That the Trustee and the parties in accordance with the obligations set out under the Family Law Act 1975, the Family Law (Superannuation) Regulations 2001 and the Superannuation Industry (Supervision) Act and Regulations 1994, shall do all such acts and things and sign all such documents as may necessary to calculate the entitlement and make the payment in accordance with these Orders.

3. That the Wife shall do all things necessary, including but not limited to, exercising her request pursuant to r.7A.06 or r.7A.07(2) of the Superannuation Industry (Supervision) Regulations 1994, for the payment of the transferable benefits out of the Husband's interest in the Superannuation Fund to the Wife in accordance with r.7A.12 or r.7A.13 of the Superannuation Industry (Supervision) Regulations 1994.

15. That until the happening of any of:

1. The establishment of a separate account in the name of the Wife in the Superannuation Fund; or
2. The transfer or "rolling over" into another superannuation fund or superannuation account of the payment split created by paragraph 14 hereof; or
3. The Wife satisfies a condition of release and is paid the payment split which was created by paragraph 14 hereof; or
4. The Wife executing a waiver of rights within the meaning of Section 90XZA of the Family Law Act 1975 in relation to the payment split created by paragraph 14 hereof;

the Husband be and is hereby restrained by himself, his servants or agents from executing a Death Benefit Nomination in favour of any person or doing any other act or thing which would render any part of his interest in the Superannuation Fund a "non splittable payment" within the meaning of Regulations 12 or 13 of the Family Law (Superannuation) Regulations 2001.

1. That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
   1. each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the real property being deemed to be in the possession of the husband).
   2. each party 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.
   3. any joint tenancy of the parties in any real or personal estate is hereby expressly severed."

1. Aside from determining the parties' existing legal and equitable interests in property, it is necessary for me to assess contributions and then to apply the percentages so assessed against the parties' existing legal and equitable interests in property.
2. No dispute existed that by reason of the length of the relationship and the fact that the parties commenced their relationship with no assets of substantial value, then after a long marriage and their direct and indirect financial and non-financial contributions, those contributions should be assessed as being equal.
3. I agree.
4. To my mind, that addressed Mr Potter's argument about the relevance of the gifts or inheritances aggregating $195,000 in the period 2010 to 2018. Accepting that the sum of $195,000 was in fact received by the husband, that sum was applied towards family purposes for the overall benefit of the husband the wife and their children. As was held in Jabour the court assesses all myriad of contributions. There no longer is a concept of "special contributions" or for that matter "negative contributions". All contributions, of whatsoever nature, are assessed.
5. In conceding that contributions were equal, the husband is to be taken to be conceding that contributions of the sort described by Mr Potter as consisting of gifts and inheritances aggregating $195,000 in value formed part of those contributions. In other words, those gifts of $195,000 were part of the equation in arriving at the contention that contributions were equal. It was not correct, if that is how Mr Potter's submissions were to be understood, for the amount of $195,000 to stand alone in demonstrating other factors for the purpose of what was s 75(2)(o) of the Family Law Act. That sum of $195,000 was to be construed as a direct or indirect financial contribution for the purpose of s 79. It led to equality of contributions.
6. On that analysis, the starting point was an assessment of contributions of 50% each.
7. I agree.
8. The more vexed question was whether, and if so to what extent, either party was entitled to an additional percentage based on future needs.
9. In my view, the wife but not the husband is entitled to an additional loading having regard to her future needs. I say that for several reasons.
10. First, she has not earned an income for several years and is at an age where finding employment is likely to be arduous for her. The same cannot be said of the father. He has recently lost his job. Prior to that he earned income in his chosen profession. No evidence was adduced about the likelihood, or for that matter, the unlikelihood of the father re-entering the work force. He will be committed to raising the children but that does not mean he cannot work, or for that matter, that he can afford not to work.
11. Second, the wife suffers from a collection of conditions requiring ongoing medical attention. They were the subject of attention in the parenting decision. She will be required to meet the expenses associated with her treatment for those conditions into the future. She will need funds to meet those expenses.
12. In my view, those factors tell of greater future needs of the wife than of the husband. In my view, an allowance must be made by way of recognition of the wife's future needs. Mr Werner submitted that a 5% recognition was appropriate.
13. Conversely, Mr Potter submitted that a 5% adjustment on account of the husband's future needs was required. That was, he said, mainly by reason of likely future expenses to be incurred by the father for professional supervision, therapy and expenses which he will incur consequent upon his assumption of care of the children.
14. While I accept that the husband will incur expenses upon the children coming into his full-time care, the duration and magnitude of those expenses is presently unquantified. For that matter, whether the husband incurs the expenses addressed by Mr Potter at all remains to be seen. For example, as to the professional supervision mentioned by Mr Potter, no supervisor was identified, nor was the likely hourly or daily cost or the duration of supervision required given in evidence. Similarly, as to the costs of full-time care of having the children, that too was wholly unquantified in the evidence. In my view, the argument advanced by Mr Potter in favour of a 5% increase by reason of the husband's future needs was unsupported by the evidence. I reject it.
15. Accordingly, in respect of contributions, I assess them at 55% in favour of the wife and 45% in favour of the husband, In his written submissions dated 21 August 2025, Mr Werner of counsel for the wife submitted that under s 79(5)(v) of the Family Law Act (as amended), it was relevant for me to recognise that the husband has enjoyed the occupation of the former matrimonial home since separation whereas the wife for the most part has been required to pay rent while maintaining full time care of the children.
16. To my mind, there is considerable force in that contention.

OBSERVATIONS ABOUT SPECIFIC ITEMS ON THE BALANCE SHEET

1. The parties agreed that the value attributable to the former matrimonial home was $2,250,000. The father proposed the sale of that property and in his proposed orders he set out a regime for its sale. While the parties may have agreed that the value of the property is $2,250,000, that does not mean that they will achieve that price upon sale. Nor does their agreement as to value give rise to an obligation on their part to actually sell the former matrimonial home. The fact that the wife made no provision for its sale may be explained by her proposal in the parenting proceeding for her to have the ongoing care for the children and for the father to transfer his interest in the former matrimonial home to her. That did not come to pass as was disclosed in the parenting reasons. It may transpire that on sale the former matrimonial home generates a sale price of $2,250,000 in conformity with the parties' agreement about its value. On the other hand, it may not, in which case a mechanism must be recorded pursuant to which the net proceeds of sale are to be applied in this s 79 application.
2. Paragraph 1 of the husband's proposed orders set out above postulated the application of the proceeds of sale of QQ Street (now held in trust) in order to discharge a VV Bank mortgage encumbering C Street, Suburb D, being the land more particularly described in certificate of title volume ... folio .... Precisely where the details of that mortgage came from went unexplained because no evidence was adduced about it at any stage of this proceeding and in final addresses on 14 August 2025, both Mr Werner and Mr Potter assured me that title to the formal matrimonial home was unencumbered. Had the point been contentious, it would have been simple enough for a copy of a search to have been obtained in respect of certificate of title volume ... folio ... thereby disclosing encumbrances. No such search was put into evidence. No details were given of a mortgage allegedly conferred by the husband and wife in favour of VV Bank over title to the former matrimonial home. Accordingly, in the absence of such evidence about a mortgage over the former matrimonial home in favour of VV Bank and in the face of the dual assurances of counsel for the parties that the title to the former matrimonial home is presently unencumbered, I have preceded on the basis that title to the former matrimonial home is in fact unencumbered.
3. That is relevant to this s 79 application because the net proceeds of sale, once real estate agent's fees, auction expenses and the like are paid, becomes divisible among the parties to this litigation.
4. For present purposes I have proceeded on the basis that upon sale by public auction, the former matrimonial home derives an amount of slightly less than $2,250,000 once sale costs are paid.

1. The sums presently in trust in respect of the sales of those two parcels of real estate are -

(a) QQ Street $388,915.28

(b) SS Street $160,924.64

1. Modest as they may be, the amounts held in banks account were -

(a) by the husband $3,636

(b) by the wife $4,389

1. Those amounts were straightforward. They were -

(a) shares $4,300

(b) car $4,000

(c) caravan $10,000

1. Aside from the fact that the wife seeks an order for the bullion be retained by her, the value of the bullion was not contested nor was the $107,186 contested as a credit amount in the wife's hands to be applied when she submits a tax return.

1. The parties did not assert the existence of any add back items. Nor could they have having regard to the observations of the Full Court in Shinohara & Shinohara.[7] However, in items 11 and 12 of the most recent balance sheet they recognised that each had been the recipient of sums paid in the nature of part property distributions, each in the sum of $230,000. The parties claimed that those distributions were to be incorporated in the list of the parties' assets.
2. Being concerned about the wisdom of proceeding as if the sum of $460,000 still existed as property of the parties after that sum had been disbursed to them, I called for further submissions on point.
3. It was revealed that orders pronounced on 22 March 2023 by consent provided for the payment of $50,000 to each party from the sale proceeds of SS Street, Suburb TT. Orders pronounced on 14 December 2023 by consent provided for a further $50,000 to each party from the sale proceeds of the Suburb TT property as a partial property settlement. A further $130,000 was paid to each party from the sale proceeds of the Suburb TT property as partial property settlement which was agreed between the parties by their solicitors on 11 July 2024.

1. The relevant amount was $15,000 as claimed by the husband. The wife made no claim in respect of that amount. No details of the accident, the insurer, the claim made or the sum paid were given in evidence. It fell to the husband to demonstrate on the balance of probabilities that the amount of $15,000 was properly characterised as "existing property" of the wife. In my view he failed to do so. I have disregarded that amount from the assets in this case.

1. The sum of $6,600 has been claimed as representing the wife's half share of the conference with the persons carrying on business under the name "[K Counselling Program]" namely Dr G, Dr LL and Ms KK. The husband said he paid his half share and the other half share remains unpaid. The wife refused to pay the amount saying she did not agree to participate in K Counselling Program at all so she cannot understand why she is visited with half of its costs. She said that Dr G, Dr LL and Ms KK were not appointed by court order as single experts so their costs are not provided for in the court rules.
2. This court is not a common law court which deals in debt collection. The retainer of those behind K Counselling Program was not put in evidence. Given that the wife said she did not wish to participate in any aspect of Counselling Program K it is difficult to see how she is to be held liable for the K Counselling Program fees. The party who retained K Counselling Program should be responsible for its fees. As the evidence presently stands, I am not prepared to make a finding that the wife is liable for half of the K Counselling Program fees in the sum of $6,600.

1. The total sum of assets to be divided was $4,228,839.50 which included items 1 to 7 and 9 to 15 on the balance sheet and each party's respective superannuation.

1. Subsequent to 14 August 2025, Mr Werner filed a submission to the effect that the wife should have a 5% uplift. The wife's final position is that the court makes a 5% adjustment in her favour with the consequence that the wife receives 55% of the net assets and the husband 45%.
2. The husband's final position was that the court make a 5% adjustment in his favour with the consequence that the husband receives 60% in his favour and 40% in the wife's. I have found that net assets are to be divided as to 55% to the wife and 45% to the husband.

1. Both parties conceded that certain items required distribution in specie while others required their conversion to cash and the payment based on the assessed percentages.
2. The wife identified her "keep" items. They were -

(a) shares $4300

(b) Motor Vehicle 1 $4000

(c) a caravan $10,000

(d) bullion $11,000

(e) withholding amount $107,186

1. The sum of $149,560.55 was a capital gains liability which had been assessed and the assessed sum corresponded with the amount identified, namely $149,560.55. This liability has been counted as a "keep item" in the name of the wife.
2. The husband identified his "keep" items. None were items that required an in specie distribution.
3. For clarity, I have found that the sum in item 13, car accident insurance claim, was not proved. The sum of $15,000 has been disregarded.
4. Superannuation amounts totalled $674,938, of which $537,668 was the husband's in Superannuation Fund 2 and $137,270 was the wife's in Superannuation Fund 1.
5. Having regard to the parties' joint contentions that a global approach towards assets was to be adopted, it follows that all superannuation is to be included in the assets to be divided as between the parties in accordance with the percentages I have found. I have proceeded on that basis.

1. In order to achieve a division of assets the former matrimonial home must be sold. I order the sale of the former matrimonial home in accordance with the orders pronounced earlier in these reasons.
2. I am of the view that it is just and equitable for net assets to be divided as to 55% to the wife and 45% to the husband.
3. In order for the wife to achieve a 55% division she will retain all of her "keep items" with the remaining amount to be achieved from the proceeds of the sale of the former matrimonial home.
4. For the husband to achieve a 45% division he will retain all of his "keep items" with the remaining amount to be taken from the balance remaining after the wife retains her entitlement to the proceeds of sale of the former matrimonial home. The husband will also retain all of the net proceeds of QQ Street, Suburb RR, New South Wales and the net proceeds from SS Street Suburb, TT, Victoria.

1. I make orders as appearing at the commencement of these reasons.

I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson.

[1] [2025] FedCFamC1F 383.

[2] In that decision ("the parenting reasons") the identification of the parties has changed from "mother" to "wife" and "father" to "husband".

[4] Transcript 12 February 2025, page 899 and the respondent's written submissions paragraphs [27] - [29].

[6] [2019] FamCAFC 78; (2019) 59 FamLR 475.

[7] [2025] FedCFamC1A 126.