Kian & Kian [2025] FedCFamC1F 766 (31 October 2025)

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

1. The applicant wife, Ms Kian, commenced proceedings in the Sydney Registry of the Federal Circuit Court (as it was then known) in December 2018, seeking final orders for property settlement. In May 2020, that Court transferred the proceedings to the Sydney Registry of the Family Court of Australia.
2. In May 2023, the proceedings were allocated to my docket.
3. On 13 February 2024, I made trial directions and listed the matter for final hearing to commence on 19 August 2024. Ultimately, the hearing commenced on 20 August 2024 and was heard over five days, concluding on 11 October 2024.
4. At no stage has the husband participated or appeared in the proceedings.
5. As a result of the husband's failure to engage in the proceedings, the wife sought leave to proceed with her application for final orders on an undefended basis. I acceded to that application and the hearing proceeded in the husband's absence.
6. These are my Reasons for Judgment with respect to both the application to proceed on an undefended basis and the wife's application for final orders.

1. The wife, Ms Kian, was born in 1962 and is aged 63 years. Her occupation is homemaker and she lives in City B, Country C. The wife is an Australian citizen.
2. The husband, Mr Kian, was born in 1956 and is aged 69 years. The husband is an Australian citizen. The wife deposes that the husband is retired and lives in Country C.
3. The parties married in 1982 and separated in March 2018, their relationship spanning a period of approximately 36 years.
4. There are two adult children of the relationship, both of whom live independently.

1. The applicant relied upon the following material:-
   • Amended Initiating Application filed 22 January 2024;
   • Affidavits of service filed 24 January 2024, 21 March 2024, and 6 August 2024;
   • Affidavit of the wife filed 7 June 2024;
   • Affidavit of Mr D filed 7 June 2024;
   • Amended Financial Statement of the wife filed 7 June 2024;
   • Notice to Admit filed 1 August 2024;
   • Outline of Case document filed 12 August 2024;
   • Affidavit of the wife filed 13 September 2024; and
   • Exhibits W-1 to W-5 inclusive, being documents tendered during the course of the hearing.

1. The wife seeks final orders in the terms set out in her Outline of Case document filed 12 August 2024. The orders sought are contained at Part F of that document and provide as follows:-
   1. Pursuant to s 79 of the Family Law Act 1975 (Cth) (the Act), the parties' property pool including but not limited to, superannuation, shares, options and all other real and personal property be divided so that the wife receive 60% and the husband 40% of the parties' legal and equitable interests in property including, but not limited to, those interests the husband has or had in Australia, [Country C], the United States of America, [Country E], [Country F], [Country G] or any part of the world, whether owned or held solely or jointly with any other person or which are owned or held in the name of an entity in which he has a direct or indirect interest and also including, but not limited to, interests in any trusts, investment accounts, offshore accounts, term deposits and all other accounts.
   2. To give effect to order 1 herein, and within (14) days of the date of this order, the husband must pay, or cause to be paid, the sum of AUD $16,874,260 to the wife.
   3. The parties must do all such acts and things, and sign all such documents as may be required, to give effect to, and implement, this order.
   4. If the husband fails to comply with paragraph 1 herein, then the wife has liberty to apply on seven (7) days' notice in the event of any issues arising concerning the enforcement or implementation of these orders.

Spousal maintenance

1. Pursuant to s 74 of the Family Law Act 1975 (Cth), the husband must pay spousal maintenance to the wife of $13,550 per calendar month, with such sum to be paid into the wife's nominated bank account on the 1st day of each calendar month, commencing the first month after the date of this order.

2. In implementing paragraph 5 herein, and pursuant to s 114 of the Family Law Act 1975 (Cth), the husband be and is hereby restrained, by injunction, from causing any payment referred to in such a manner as to cause the wife to personally incur a taxation liability as a result of those payments being made and, if such a liability arises, he must pay and indemnify the wife with respect to same.

Costs

1. Pursuant to s 117 of the Family Law Act 1975 (Cth), husband must pay the wife's costs of and incidental to this Application in a Proceeding on an indemnity basis, or such other basis as this Honourable Court deems just.

SHOULD THE WIFE HAVE LEAVE TO PROCEED ON AN UNDEFENDED BASIS

1. The wife commenced these proceedings in December 2018. Since that time, there have been various interlocutory proceedings heard in the Federal Circuit Court of Australia in Sydney, and in the Sydney and Melbourne Registries of this Court.
2. The husband has not participated in the proceedings and indeed has never appeared before the Court in relation to the wife's application for final orders. During the proceedings, orders have been made requiring the husband to file documents, to make disclosure and to appear at Court events. The proceedings have been marked by the husband's non-compliance with Court orders.
3. On 13 February 2024, I made orders listing the matter for final hearing, the matter originally being listed for a two-day hearing to commence on 19 August 2024. The orders made by me included orders that the husband file documents as follows:
   1. That by 4.00pm on 5 July 2024 the respondent file and serve upon all other parties:

(a) an amended response setting out with precision what orders are being sought;

(b) the affidavits of evidence in chief of all witnesses including the respondent relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief);

(c) a financial statement that complies with Chapter 6 of the Federal Circuit and Family Law Rules.

...

1. That the practitioners for the parties file and serve electronically to [...@fcfcoa.gov.au] by 4.00pm on 12 August 2024 the following:

(a) a concise set of orders to be sought if different from those already filed;

(b) a list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;

(c) a list of assets and liabilities;

(d) a list of objections to evidence upon which rulings are required; and

(e) a bullet-point summary of argument in relation to the issues in dispute.

1. In circumstances where the husband did not attend that hearing I made further orders as follows:-
   1. That within 7 days the applicant wife cause a sealed copy of these orders to be served upon the respondent husband by email at [...] and file an affidavit proving such service.
   2. That the respondent husband personally attend the final hearing listed to commence on 19 August 2024.

18. That in the event that he respondent husband:-

(a) Fails to appear at the final hearing on 19 August 2024; or

(b) Fails to comply with any part of these orders that he file trial documents (including but not limited to order 4 hereof)

the applicant wife be at liberty to seek to proceed with her application for final property orders on an undefended basis.

AND THE COURT NOTES that in the event that such leave is granted to the applicant wife, final property orders may be made in the husband's absence.

1. At the first day of hearing on 20 August 2024, it was confirmed that notwithstanding the orders made on 13 February 2024, the husband had filed no documents in compliance with those orders.
2. The wife confirmed through her counsel that the husband had notice of the orders made 13 February 2024 and of the documents filed by the wife in compliance with those orders. The wife relied upon the Affidavit of Service filed 21 March 2024 which confirmed that the trial orders dated 13 February 2024 together with a covering email dated 19 February 2024 had been served on the husband electronically at his email address, that document having been served on him by email dated 19 February 2024.
3. In addition, the wife caused her trial documents, being her affidavit and Financial Statement, both filed 7 June 2024, and the affidavit of the single expert witness, Mr D filed 7 June 2024 to be served by email upon the husband at his email address on 7 June 2024. This was confirmed by the wife in the Affidavit of Service affirmed by her and filed 6 August 2024.
4. Further, the wife confirmed in the Affidavit of Service affirmed by her and filed 24 January 2024 that she caused the sealed Amended Initiating Application filed 22 January 2024 to be served upon the husband at his email address on 24 January 2024.
5. I am also satisfied that the wife caused her affidavit filed 13 September 2024 to be served upon the husband to his email address by email dated 13 September 2024 (Exhibit W-4).
6. Notwithstanding service of those documents upon him, the husband has not engaged in these proceedings. He has not appeared at Court either personally or though his lawyers at any stage in the proceedings, nor has he filed documents in the proceedings. Having regard to those circumstances, the wife seeks leave to proceed with her application for final orders on an undefended basis.
7. Order 16 of my trial directions provided that the wife be required to cause a sealed copy of orders to be served on the husband at his nominated email address. I am satisfied that she has complied with that order and that the husband has had notice of these proceedings, and more particularly of the final hearing. Further, I am satisfied that the wife has effected service of the trial documents relied upon by her in support of her application for final relief. Accordingly, I am satisfied that the husband has had notice of the final hearing, the orders sought by the wife and the evidence relied upon by her in support of her claim.
8. The husband was called by my Court Officer in the Court precincts prior to the commencement of each day of the hearing. On each occasion, the husband failed to answer the call.
9. Rule 10.26(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") identifies the circumstances in which a respondent is in default. Those circumstances include where a respondent fails to:-

(a) give an address for service before the time for the respondent to give an address has expired; or

(b) file a response before the time for the respondent to file a response has expired; or

(c) comply with an order of the court in the proceeding; or

(d) file and serve a document required under these Rules; or

(e) produce a document as required by Division 6.2.2; or

(f) do any act required to be done by these Rules or the Family Law Regulations; or

(g) defend the proceeding with due diligence; or

(h) prosecute with due diligence any application the respondent has made in the proceeding.

1. In light of my findings above, I am satisfied that the husband, who is the respondent in the proceedings, is in default, having failed to file an address for service and a response or to comply with orders of the Court, including orders that he appear before the Court.
2. Rule 10.27 of the Rules sets out the possible consequences of default. Pursuant to rule 10.27(1), in the event that a party is in default, the Court may:-

(a) order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the party;

(b) set aside a step taken or an order made;

(c) order that a step in the proceeding be taken within the time limited in the order;

(d order costs;

(e) prohibit the party from taking a further step in the proceeding until the occurrence of a specified event;

(f) make any order that is to take effect if the party does not take a step ordered by the court in the proceeding in the time limited in the order;

(g) proceed on the non‑defaulting party's evidence together with:

(i) if considered appropriate by the court - such evidence as the defaulting party has filed; and

(ii) such evidence as tendered during cross‑examination by the defaulting party; and

(iii) submissions by either party limited to the matters that are the subject of evidence;

(h) in exceptional circumstances - proceed on the non‑defaulting party's evidence without hearing from the defaulting party.

1. In Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, the High Court recognised that a party may not participate in proceedings and that such party cannot generally be forced to do so. Their Honours confirmed at [40] that the Court is not:-

...obliged to delay proceedings indefinitely because one party, although proved to be on notice of the proceedings, refuses or fails to appear in person or to be represented by a lawyer or some other individual permitted to speak for them who could explain the need for an adjournment. The rights of other parties are commonly involved...additionally (as this Court has itself accepted), the rights of the public in the efficient discharge by courts of their functions must be weighed against unreasonable delay in concluding litigation.

1. I am cognisant of the serious nature of the consequences to the husband and his entitlements if the matter proceeds in his absence. However, those consequences must be balanced against the interests of the wife in having the proceedings brought to a conclusion justly, efficiently and economically. The wife's claim has now been on foot for a number of years; she has attended numerous court events in the prosecution of her claim and is entitled to have her claim heard and finalised.
2. In light of the above findings and having regard to the husband's failure to appear at the final hearing, to engage legal representation, or to file any documents in the proceedings, I am satisfied that the wife should have leave to proceed with her application for final orders on an undefended basis.

1. The wife relied upon the material referred to above, the submissions of her counsel and those submissions made by her upon assuming the conduct of the case part-way through the hearing.
2. Initially, the wife was represented by counsel. On the first day of hearing, the wife gave brief oral evidence in relation to action taken by her to effect service of her Amended Initiating Application upon the husband. Otherwise, the matter proceeded by way of submissions.
3. During submissions on the first day of hearing, being 20 August 2024, I raised concerns with the wife's counsel as to whether items asserted to be included in the parties' pool of assets were able to be proven. Ultimately, the wife sought an adjournment of the proceedings to enable those aspects of her case to be addressed. I acceded to that application and made orders for the filing and service of an updated balance sheet and otherwise for the matter to resume part-heard later that week.
4. The hearing resumed before me on 23 August 2024. The wife sought additional time to file evidence, particularly with respect to her claims as to the parties' pool of assets. I acceded to that request and made further orders adjourning the matter part-heard to 7 October 2024 and granting leave to the wife to file and serve additional trial affidavit material.
5. The hearing resumed before me on 7 October 2024. That day, I granted leave to the wife's counsel to withdraw, and thereafter the wife represented herself in the proceedings. The matter proceeded by way of submissions and concluded on 11 October 2024.

1. The wife's unchallenged evidence as to the parties' background is as follows.
2. The parties married in 1982. The wife deposes that at the time of the marriage, neither the husband nor she had any assets of significance.[1]
3. At the time of the parties' marriage, the wife was employed in the transport industry. In 1995, the parties relocated to City H for the husband's employment. At that time, the wife ceased her employment and assumed the role of full-time homemaker and carer to the parties' children, who were than aged approximately 11 and four years respectively.
4. The parties purchased and sold numerous investment properties during the marriage, including properties in Country E, Melbourne and City B. The wife's unchallenged evidence is that she assisted in the maintenance of those properties, securing and managing tenant relationships, and also attending to interior design, sale processes and other activities as required to ensure that the properties were well maintained. In particular, the wife deposes that she managed tenancy arrangements in relation to the City B properties at J Street Suburb K, L Street Suburb M and the N Street Suburb O.[2]
5. The wife deposes that she was also responsible for the purchase and upkeep of the properties acquired by the parties in Australia. She deposes that she sourced and purchased the properties, arranged tenants and attended to the management of the properties.
6. The husband was required to travel extensively for his employment. The wife deposes that she travelled frequently with the husband to support his role at work. The wife deposes that she also attended social events to support the husband's executive roles and that she regularly hosted dinner parties for the husband's colleagues and business acquaintances.
7. The wife deposes that the husband held the following senior executive roles within the finance industry during the parties' marriage:-
   • 1982 to 1986 - P Company City Q;
   • 1986 to 1988 - R Company in the United States of America;
   • 1988 to 1995 - P Company City Q, Country E;
   • 1997 to 1998 - P Company, Country S;
   • 1998 to 1999 - P Company, Country T;
   • 2002 to 2004 - V Company; and
   • 2004 to 2018 - U Company based in Country C.
8. The wife deposes that she has supported the husband throughout his career progression including by relocating the family's place of residence various times to support the husband in his executive roles. For example, in 1998, the husband relocated to Country T for his employment. The wife and the children followed the husband to Country T in late-1998. Similarly, in 2001 the husband secured employment with V Company and relocated to Melbourne. The wife and the children relocated to Melbourne at the end of the 2001 school year.
9. Upon their arrival in Melbourne, the family lived in rental accommodation. In 2003, the parties purchased a property at W Street, Suburb X ("the Suburb X property") where they lived until 2004.
10. The husband was made redundant from his position with V Company in 2003. In 2004 he secured a position in Country C in a managerial role in U Company, based in City B. As a result of that appointment the husband and the wife relocated to City B.
11. The parties leased the Suburb X property between 2004 and 2010. That property was sold in December 2010 for the sum of AUD $3,120,000. The net proceeds of sale after discharge of the mortgage secured against the title to the property were approximately $3,065,878 million[3]. A proportion of those sale proceeds were applied to the purchase of the property at AA Street, Suburb BB ("the AA Street property"), and the balance was retained by the husband.
12. In addition to her contributions in supporting the husband's career, and in the maintenance and upkeep of the properties acquired by them during the relationship, the wife deposes that she was primary caregiver to the parties' two children; she was responsible for attending to the children's educational needs as well as their day-to-day needs in the operation of the family's household.[4]
13. The wife deposes that during the marriage she was wholly reliant upon the husband for financial support. The wife deposes that the husband controlled the family finances and would deposit funds into her account each month for the operation of the household.[5] The wife deposes that the husband ceased making monthly deposits into her account upon the commencement of these proceedings.[6]
14. Until April 2019, the husband paid the wife's household expenses in the sum of approximately AUD $8,137 per month. In addition, the husband met utility expenses including electricity and water, funded the wife's motor vehicle maintenance and also paid a live-in maid, gardener and driver for the wife in City B.[7] The husband also met the wife's credit card expenses of approximately AUD $2,500 per month.[8]
15. Since April 2019, the wife has drawn upon her accumulated savings and sold her motor vehicle in order to meet her day-to-day expenses, as well as her costs associated with these proceedings.
16. The wife deposes that the parties enjoyed a high standard of living throughout the marriage. When living in Country E and City H, the parties employed housekeepers, a driver, cleaners and a gardener. In City H, the parties lived in a five-bedroom penthouse which had two living rooms and a swimming pool.[9] Similarly, when living in Australia, the parties had a housekeeper who attended the home four days per week and a gardener who attended once per week.
17. In addition, the parties travelled internationally on average three times per year, and the wife deposes that all flights were business class. She also deposes that the parties stayed in five-star hotels during their international travel.[10]
18. The wife deposes that the husband earned significant income in his executive roles; in his final role at U Company, his salary was approximately $48,000 per month and his benefits included annual bonuses and stock options.[11]
19. In June 2017, the wife learned of the husband's plans to retire. It is the wife's evidence that the husband informed her that he would receive a "golden handshake" payment upon retirement of approximately US $4,500,000.[12] The husband also reassured the wife that the parties' lifestyle would not alter upon his planned retirement as they held four investment properties that generated income, as well as a portfolio of U Company shares.[13]
20. The wife deposes that the husband's high standard of living has not altered in the period since the parties' separation. She deposes that he has undertaken significant international travel in the post-separation period, including to the United States of America in January 2022, Europe in September 2022 and Country E in December 2022. Further, she deposes that the husband continues to maintain memberships at prestigious golf clubs in City B and City Q.[14]
21. The wife maintains that the husband has significant wealth which he has not disclosed to the Court during the proceedings.
22. The wife deposes that husband informed her of his desire to separate in March 2018. At that time, he made a settlement proposal to the wife but gave her only 24 hours to accept. The wife deposes that the husband refused to permit her to obtain legal advice in relation to that proposal and that he also refused to provide financial disclosure.
23. The husband vacated the former matrimonial home in City B on 25 March 2018. The wife deposes that the husband returned to that home on 29 April 2018 and removed financial records.[15]
24. In early 2018, the husband commenced proceedings for divorce in City B. The wife opposed that application, which was dismissed in late 2018.
25. The wife commenced proceedings in the Federal Circuit Court of Australia, as it then was, in December 2018. Those proceedings were served on the husband on 12 March 2019.
26. Since that time, a raft of orders have been made requiring the husband to make disclosure in relation to his interests. For example, on 11 June 2019, orders were made in the Federal Circuit Court that required the following:-

1. That within fourteen (14) days of the date of the making of these orders the husband provide to the wife's solicitors the following documents and information by way of financial disclosure pursuant to his obligations under Rule 13.01 of the Family Law Act 1975 including but not limited to:-

1. originals and/or copies of his bank statements in relation to all accounts wherever held around the world including but not limited Australia, USA, [Country C], [Country E] in which he has or had an interest in, whether solely or jointly with any other person or in the name of an entity associated with him and whether such accounts are in debit or credit, investment accounts, Term Deposits and all other accounts for the period from I January 2015 to date; 2. originals and/or copies of the husband's Income Tax Returns and Income Tax Assessments for the last five (5) financial years in any jurisdiction where he is or was required to file tax returns including Australia, USA, [Country C] and/or [Country E]; 3. in relation to any company or business, including any sole trader business or partnership in which the husband has or had an interest in, as well as in relation to any Trust that he has or had an interest in (whether as an appointer, co-appointer, trustee or co-trustee, beneficiary) and wherever such company or business or trust is or was established, including but not limited Australia, [Country C], USA, [Country E] or anywhere around the world:-

1. in relation to any company, a copy of the Memorandum & Articles of Association; 2. in relation to any trust, a copy of the Trust Deed and any amendments to the Trust Deed; 3. a copy of all Financial Statements (being Balance Sheet, Profit & Loss, Notice to Accounts) and Income Tax Returns in relation to each entity in which the husband has or had an interest in for the last five (5) financial years; 4. in the event the FY2018 financials have not yet been prepared, then the husband is required to provide Management Reports - Balance Sheet and Profit and Loss Statements for FY2018 and the period I July 2018 to date of the making of these orders;

v. BAS for the last twelve (12) months, and

1. originals and/or copies of all bank statements in relation to all accounts that any business, company, trust, partnership or sole trader or any other entity in which the husband has or had an interest in for the period from I January 2015 to date.

2. in relation to a self managed super fund, if the husband has an interest in a self-managed superannuation fund:-

i. a copy of the Trust Deed for the self-superannuation fund;

1. Financial Statements and Income Tax Returns for the self-managed superannuation fund for the last three (3) financial years, and

iii. a copy of BAS for the last twelve (12) months.

1. if the husband has an interest in any retail super fund, an up-to-date Statement;

f. a copy of the husband's last three (3) payslips;

1. in relation to any shares in which the husband has or had an interest in:-

i. a copy of the Sell Contract;

ii. a copy of Buy Contracts, and

1. a copy of the last dividend statement in relation to all shares in relation to which the husband has or had an interest.

2. if the husband has sold or disposed of any property (be it real estate, shares, cars, and any other property) for the last five (5) years:-

3. all Contracts, agreements, writings and all other documents evidencing the purchase or sale of any such property, and

4. all bank statements showing the source of funds to by the property and all bank statements showing the funds deposited in relation to any sale or disposal of property together with all source documents evidencing how the proceeds of sale were dealt with, and

5. in the event that the husband has gifted any cash, funds or property to any third party, including charity for the last three (3) years we require full and frank disclosure by way of information and documents including name, address, amount and date when each gift was made.

1. In addition to the order for disclosure, Judge Smith made the following notation:-
   1. The respondent has not filed an address for service and given that I am satisfied he has had proper notice of these proceedings in future I will allow service to be effected by way of the email address ([...]) through which he has been corresponding with the applicant which I am satisfied would be sufficient service given that he is on notice of the proceedings and so far has elected not to take part.
2. The wife's evidence is that no documents have been produced by the husband in compliance with those orders.
3. By orders dated 10 September 2019, the wife was granted sole use and occupation of the AA Street property. On that occasion, a notation was made to the effect that the husband had not filed a Notice of Address for Service, confirming that the husband had had proper notice of the proceedings, and further noting that in future the wife would be permitted to effect service on the husband at his email address and that in the event the husband did not appear at the next court event and the wife was ready to proceed, the matter would be allocated an undefended hearing.
4. In May 2020, the proceedings were transferred to the Sydney Registry of the Family Court of Australia.
5. On 21 August 2020, orders were made by the Honourable Justice Henderson requesting that the City B Court issue orders for disclosure, documents and information from the husband. Further orders were made to that effect by Justice Henderson on 19 January 2021.
6. On 29 May 2023, following a hearing before Senior Judicial Registrar Hoult, which proceeded on an undefended basis, orders were made for the transfer of the AA Street property to the wife, and for the wife to be at liberty to effect a sale of that property and to retain the net proceeds of sale.
7. In June 2024, the wife effected a sale of the AA Street property for the sum of $1,645,000. The net proceeds of that sale, which were retained by her, were approximately $1,386,303 .

1. The hearing of the wife's application for final property orders was concluded prior to the commencement of the Family Law Amendment Act 2024 (Cth) ("the Amendment Act"), which came into force on 10 June 2025. Accordingly, the amendments instituted by the Amendment Act do not apply to these proceedings; the matter will be determined pursuant to the Family Law Act 1975 (Cth) ("the Act") as it was at the time of the final hearing.
2. Applications for property division are to be determined in accordance with Part VIII of the Act. In property settlement proceedings, the Court may make such orders as it considers appropriate (s 79(1) of the Act). The Court cannot, however, make an order unless it is satisfied that, in all of the circumstances, it is just and equitable to do so (s 79(2) of the Act).
3. In considering what, if any, order should be made in property settlement proceedings, pursuant to s 79(4) of the Act the Court must take into account the following:-

(1) The financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, whether or not that property still exists;

(2) The contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the acquisition, conservation or improvement of any of the property of the parties whether or not that property still exists;

(3) The contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent;

(4) The effect of any proposed order upon the earning capacity of either party to the marriage;

(5) The matters referred to in s 75(2) of the Act so far as they are relevant;

(6) Any other order made under the Act affecting a party to the marriage or a child of the marriage; and

(7) Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

1. The High Court in Stanford & Stanford [2012] FamCAFC 1; (2012) 247 CLR 108 ("Stanford") considered the approach to be adopted in the determination of proceedings pursuant to s 79 of the Act. The plurality at page 121 adopted the view of Barwick CJ, Gibbs, Stephen and Mason JJ in R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248 that whilst the Court holds a broad discretion, such is not an unfettered discretion and must be exercised "in accordance with legal principles, including the principles which the Act itself lays down".
2. The High Court's decision in Stanford was considered by the Full Court in the cases of Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545 ("Bevan") and Chapman & Chapman [2014] FamCAFC 91; (2014) FLC 93-592.
3. In Bevan, the Full Court identified three "fundamental propositions" laid down by the High Court in Stanford, which they considered should guide a trial judge's approach to the task under s 79. Those propositions were summarised by the Full Court at [73] as follows:-
   1. Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity);
   2. The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties' interests in the property are or should be different from those determined by common law and equity;
   3. A determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.
4. Accordingly, in determining the parties' competing applications pursuant to s 79 of the Act, the Court is required to:-
   • Identify the parties' respective legal and equitable interests in property;
   • Determine whether, in accordance with s 79(2), it is just and equitable to make a property settlement order having regard to the parties' existing interests;
   • Determine all relevant contributions of each of the parties;
   • Identify and weigh against each other the matters set out in s 79(4)(a) to (c) inclusive of the Act; and
   • Consider the matters contained in s 79(4)(d) to (g) inclusive of the Act and make a determination as to what, if any, alteration should be made to the entitlements of the parties earlier assessed on account of their contributions, particularly having regard to the provisions of s 75(2) of the Act.
5. The Act does not prescribe a particular order in which the matters contained within s 79(4) are to be considered. Instead, their consideration will be dependent upon the particular circumstances of the marriage, with the manner in which the parties have organised and lived within the marriage deemed to be factors which may be relevant in the exercise of the s 79(2) discretion.

1. In determining the matter, the relevant standard of proof is the balance of probabilities. Section 140(2) of the Evidence Act 1995 (Cth) provides that, without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:-
   • The nature of the cause of action or defence;
   • The nature of the subject-matter of the proceeding; and
   • The gravity of the matters alleged.
2. The wife, in her trial affidavits sets out her account as to the history of the parties' relationship, including their initial contributions and contributions made by each during the course of the relationship. The wife also deposes as to the difficulties she has had in obtaining full and frank disclosure from the husband in relation to the parties' interests.
3. In circumstances where the husband has not participated in the proceedings and has filed no material in response to that of the wife, her evidence is unchallenged. Accordingly, I accept her evidence on that basis. In determining the matter, I have had regard to all the evidence. In making my findings, I have carefully considered all of the evidence, the nature of the proceedings, the seriousness of the allegations and the consequences that flow from my findings.

1. Due to the husband's failure to participate in the proceedings, the wife has had significant difficulties in identifying and valuing the parties' property interests. During the final hearing, the wife relied upon an amended balance sheet,[16] in which she asserts the parties' interests to be as follows:-

Prepared pursuant to the Order dated 17 August 2024

Balance of sale proceeds of W Street Suburb X, Victoria

Net sale proceeds of Suburb BB Property AA Street, Melbourne, Australia

Documents can be tendered to this Honourable Court.

Paragraphs [62(c)] and [100(a)] of the Affidavit.

Paragraphs [50], [51], [62(a)] and [100(c)] of the Affidavit.

Annexures MSK-3, MSK-10, 22-24 and MSK-27 to the Affidavit.

Paragraphs [2], [9(a) and (b)) and [11(j) and (l)] of the Notice.

Proceeds of sale of the Suburb GG property (Country C)

Proceeds of sale of HH Street, Suburb JJ (Country C)

Paragraphs [2] and [16(o) and (u)] of the Notice.

Paragraphs [9], [39] and [109] of the Affidavit.

Annexures MSK-2, MSK-16 and MSK-42 to the Affidavit.

Annexures MSK-13, MSK-20 and MSK-41 to the Affidavit.

Annexures MSK-2, MSK-13, and MSK-25 to the Affidavit.

Paragraphs [55], [90], [91] and [113] of the Affidavit.

Annexures MSK-14, MSK-15 and MSK-25 to the Affidavit.

Paragraphs [55], [93] an [113] of the Affidavit.

1.For the purposes of this balance sheet 'Affidavit' means the affidavit of the Applicant Wife filed on 7 June 2024, the 'Financial Statement' means the Amended Financial Statement filed by the Applicant wife on 7 June 2024, the Notice means the 'Notice' to Admit, and accompanying documents served on the Respondent Husband on 1 August 2024, and the 'Valuer's Affidavit' means the affidavit of AD Company filed on 29 May 2024.

Further, and with respect to the Notice, r 8.02(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2023 (Cth) provide that if "...a party does not serve a Notice Disputing the Fact or Document in accordance with subrule (1), the party is taken to admit, for the purposes o the proceeding only, that the fact is true of the document is genuine."

2 Exchange rates of 1 x $AUD = 1 x Country C currency 2.44, 1 x $AUD = 1 x USD $.66, and 1 x $AUD = €.61 are applied throughout where necessary. It is submitted that the Court can take 'Judicial Notice' of formal exchange rates pursuant to, inter alia, s 144 of the Evidence Act 1995 (Cth).

1. In support of her contentions as to the value of the parties' interests, the wife relies upon the Notice to Admit dated 25 July 2024 and filed 1 August 2024.
2. Rule 8.01(1) of the Federal Circuit and Family Court of Australia (Family law) Rules 2021 provides as follows:-

A party may, by serving a Notice to Admit on another party, ask the other party to admit, for the purposes of the proceeding only, that a fact is true or that a document is genuine.

1. The Notice to Admit must include a note to the effect that under subrule 8.02(2) failure to serve a Notice Disputing a Fact of Document will result in the party being taken to have admitted that the fact is true or the document is genuine (r 8.01(2)). Further, if the Notice to Admit relates to a document, the party serving the Notice must attach a copy of the document, subject to specified exceptions (r 8.01(3)).
2. Rule 8.02 sets out the procedure for disputing a fact or document as provided in a Notice to Admit. It provides as follows:-

(1) If a party who is served with a Notice to Admit seeks to dispute a fact or document specified in the Notice, the party must serve on the party who served the Notice, within 14 days after it was served, a Notice Disputing the Fact or Document.

(2) If a party does not serve a Notice Disputing the Fact or Document in accordance with subrule (1), the party is taken to admit, for the purposes of the proceeding only, that the fact is true or the document is genuine.

(3) If:

(a) a party serves a Notice Disputing a Fact or Document; and

(b) the fact or the genuineness of the document is later proved in the proceeding;

the party who served the Notice may be ordered to pay the costs of the proof.

1. At Part C of the wife's Notice to Admit the husband is given notice of the consequences of the failure to serve a Notice Disputing Fact or Document in accordance with rule 8.01(2). In addition, the wife has attached to the Notice the documents she asserts are genuine in accordance with rule 8.01(3) of the Rules.
2. The wife's evidence is that she effected service of the Notice to Admit on the husband by email to his email address on 25 July 2024 (Exhibit W-2). Having regard to that email, I accept that the husband has been served with the Notice to Admit.
3. It was submitted by the wife that, in circumstances where the husband has not filed a Notice Disputing Fact or Document, the facts and documents contained in the Notice to Admit ought be accepted by the Court.
4. The difficulty with the wife's contention is that the matters contained in the Notice to Admit are not limited to facts asserted by her. Rather, the Notice contains a blend of statements of fact, argument and conclusion. Further, it includes a series of allegations or contentions which, on their face, have no relevance to the issues before the Court. Those issues are compounded in circumstances where the Notice to Admit is of some 227 pages in length and where the 56 paragraphs which constitute the Notice of Facts, contain a mixture of facts, conclusions and argument. For example, at paragraph 7 of the Notice, the wife states;-
   1. That all of the real properties purchased by the parties (whether held in sole or joint names) were sourced and managed by the Applicant including sourcing the real estate agents, leasing the properties, arranging viewing, undertaking renovations, engaging and organising maintenance on an ongoing basis with our tenants, including the following properties:

a. [W Street, Suburb X], Melbourne Australia; and

b. [AA Street, Suburb BB], Melbourne, Austraila [sic].

1. Similarly, at paragraph 8(b) of the Notice, the wife alleges that the husband:-
   1. Misled [her] by telling [her], words to the effect "I am not including the losses that I will make on [the Suburb FF property] which will be written off".
2. Paragraph 10 of the Notice asserts that the wife "sourced and managed" identified properties; that paragraph makes broad and generalised assertions as to the wife's role in managing properties, as opposed to stating facts to be admitted or denied, such as dates or periods as to when tasks were undertaken or detailing facts as to what contributions she made to each of the identified properties. The task of responding to assertions framed in that manner is in my view unduly onerous and oppressive. That style of assertion is repeated throughout the Notice.
3. Having reviewed the Notice, and the documents attached to it, I am satisfied that it would be unreasonable to expect the husband to respond to it in circumstances where it is not confined to propositions of fact as required by the Rules of Court. In my view, having regard to the identified flaws in the Notice, it would be oppressive to require the husband to sift through the allegations contained therein to ascertain which of those paragraphs are confined to assertions of fact to which he can respond, as opposed to conclusion, argument and opinion. As a result, I treat that Notice with caution and look to the wife's evidence as contained in her trial affidavits and Financial Statement, which is unchallenged evidence, to determine her claim for final property orders.
4. That view is bolstered in circumstances where the Notice predates the balance sheet ultimately relied upon by the wife for the purposes of the proceedings; even were the husband deemed to have admitted the balance sheet contained in the Notice, that is not the balance sheet relied upon by the wife.

1. The difficulty with the wife's contentions as to the parties' interests is that she has adduced little evidence to support many of the items included in the balance sheet. Further, although it is well established that the relevant date for the identification and valuation of the parties' interests is at the time of trial, the wife's balance sheet includes assets she concedes were sold by the husband, or the parties, long before their separation.
2. My concerns as to the mix of historic as well as current values of assets in the wife's balance sheet was raised with the wife early in the trial. The proceedings were adjourned to enable the wife to address those issues, with little effect.
3. What follows are my findings with respect to the wife's balance sheet.

1. The sale proceeds of the property at W Street Suburb X relate to a property sold by the husband in 2011. The wife asserts that the net proceeds of sale from that property retained by the husband was approximately $3,065,878. The wife acknowledges the husband applied part of the sale proceeds towards the purchase of other properties in the intervening period and concedes that at least part of the sale proceeds were applied to the purchase of the property at AA Street, Suburb BB. The wife adduces no evidence as to whether the balance of the sale proceeds continue to be retained by the husband, noting that the trial commenced approximately thirteen years after that sale. Simply put, there is no evidence before the Court to establish the existence of the sale proceeds at the time of trial. Accordingly, that item will be excluded from the parties' balance sheet.

1. The property at AA Street, Suburb BB ("the AA Street property") was sold pursuant to orders made by Senior Judicial Registrar Hoult on 29 May 2023. Settlement of the sale of AA Street was effected in June 2024. The wife has produced her interim statement of account for ANZ Bank account number #...24 which discloses that the sum of $1,250,868.87 was deposited to that account on 6 June 2024 and that a further $135,434 was deposited into that account on 11 June 2024. Both deposits are identified as relating to settlement funds in respect of AA Street.[17] Having regard to that evidence, I am satisfied on the balance of probabilities that those funds are the proceeds of sale of the AA Street property and that they ought be included in the parties' balance sheet.

1. The wife deposes that the husband purchased the Suburb O property in July 2007 and that since that time she has been responsible for managing the tenancy arrangements with respect to that property.
2. In support of that position, `the wife annexed to her trial affidavit a residential tenancy agreement with respect to the Suburb O property dated 30 November 2016. That document discloses that the owner of the property is the husband.
3. The wife has engaged a single expert valuer to assess the value of the Suburb O property. The valuation of that property is Annexure 2 to the affidavit of Mr D filed 7 June 2024. That valuation was prepared on the basis of a drive-by inspection only as the valuer was not given access to the property. The single expert valuer assessed the value of that property to be Country C currency 14,075,000, which as at May 2024 converts to $5,768,443.
4. In circumstances where the husband is on notice as to the wife's contentions with respect to the Suburb O property and has not sought to challenge that evidence, I am satisfied that the property should be included in the parties' balance sheet.

1. The wife deposes that the husband purchased a property at J Street Suburb K in 2013 for approximately $483,600.[18] The wife deposes that she was also responsible for tenancy arrangements with respect to that property.[19] In support of that contention the wife relies upon Annexure MSK-10 to her trial affidavit, which is a letter sent by her former lawyer to the husband regarding proposed property settlement arrangements. That correspondence seeks specific information from the husband with respect to the Suburb K property, which apparently the husband proposed ought be transferred to the wife.
2. In addition to that evidence, the wife relies upon the valuation of the Suburb K property prepared by Mr D, which is annexed to his affidavit filed 7 June 2024.[20] The valuer conducted a drive-by inspection of the property and assessed its value to be Country C currency 2,175,000, which as at May 2024 converted to $891,393.
3. Again, the husband was on notice as to the wife's contentions, as contained in her trial affidavit and in the affidavit of the single expert valuer. He has elected not to respond to those contentions. Having regard to the unchallenged evidence adduced by the wife, I am satisfied on the balance of probabilities that the Suburb K property ought be included in the parties' balance sheet at $891,393.00.

1. The wife's evidence is that the property at L Street Suburb M was purchased by the husband in 2009 for approximately Country C currency 2,900,000. The wife deposes that she managed the tenancy arrangements for that property until approximately 2017.[21]
2. The wife engaged Mr D as the single expert valuer to prepare a valuation of the Suburb M property. The valuation of the property, annexed to Mr D's affidavit,[22] confirmed that on the basis of the drive-by inspection conducted by the valuer, the property has a market value of Country C currency 14,400,000, which as at May 2024 converts to AUD$5,901,639.
3. Again, the husband was on notice as to the wife's contentions with respect to both his ownership and the value of that property and has not responded to those allegations. Having regard to the unchallenged evidence of the wife and Mr D with respect to that property, I am satisfied that it should be included in the balance sheet at $5,901,639.00.

1. The wife deposes in her trial affidavit that the husband holds an interest in a property at CC Street Suburb DD ("the Suburb DD property"), but that its development has been delayed due to a City B property market crash. She deposes that she has recently been informed that the developer has resumed construction on the property and asserts a value in relation to it. Other than those assertions, the wife has adduced no evidence as to the identity of the registered proprietor of that property, whether the property's construction is completed and there is no expert evidence as to its value. In light of the absence of admissible evidence in relation to those issues, I will exclude that item from the balance sheet.

Item 7 - Proceeds of sale of the Suburb FF property

1. The wife contends that the husband owned the property at EE Street, Suburb FF, City B ("the Suburb FF property"), that it was sold by him and that he retained the sale proceeds. During the course of oral submissions, it was conceded by the wife that the Suburb FF property was sold by the husband in 2010. That this is so was confirmed by the single expert valuer in his affidavit; the property was sold in November 2010 for Country C currency 3,025,000.[23]
2. However, the wife has adduced no evidence as to the net proceeds of sale received by the husband from that sale, or evidence as to how the sale proceeds have been applied in the almost 14-year period between the sale date and the commencement of the trial.
3. In circumstances where the wife has adduced no evidence as to the husband's receipt of the sale proceeds, nor the amount allegedly received by him, nor indeed evidence as to how those funds have been applied since the date of sale, I am not satisfied that the amount asserted ought be included in the parties' balance sheet. Accordingly, I will exclude Item 7 from the balance sheet.

Item 8 - Proceeds of sale of the Suburb GG property

1. During the course of submissions, it was conceded by the wife that the Suburb GG property was sold by the husband in 2016. Again, there is no evidence as to the sale, the sale price, the quantum of sale proceeds received by the husband or how they have been applied in the eight years since the date of sale and the commencement of the trial. Given the absence of evidence in respect of those matters, I will exclude Item 8 from the balance sheet.

Item 9 - Proceeds of sale of the Suburb JJ property

1. The wife contends that the husband sold the Suburb JJ property and retained the proceeds of sale. She does not disclose when that property was sold, the sale price, the amount of the sale proceeds or indeed how they were applied. During submissions, the wife conceded that that property had been sold in 2010. Again, there is no evidence before the Court that the proceeds of sale continue to be held by the husband. Absent evidence in relation to those matters, I am satisfied that Item 9 ought be excluded from the balance sheet.

Item 10 - Sale proceeds of the Suburb LL property

1. During the course of her submissions, the wife conceded that the property at KK Street, Suburb LL, Country E ("The Suburb LL property ") had been sold in 2016.
2. The documents relied upon by the wife to establish that the husband retains the sale proceeds do not in fact establish those matters. Annexure MSK-14 to the wife's trial affidavit appears to be a transfer authorisation by the husband to Ms AE effected in December 2014. The document does not assist in proving the amount received by the husband from the sale or that he retains the sale proceeds of the identified property.
3. Other than the wife's assertion, there is no admissible evidence establishing that the husband continues to retain the sale proceeds of the Suburb LL property. In those circumstances, that item will be excluded from the balance sheet.

1. The wife alleges that in 2018, the husband established a company in Country F which she asserts has a value of €750,000.[24] In support of that contention, she relies upon Annexure MSK-19 to her trial affidavit. That document is in Country F language. No translated version of the document has been produced.
2. In circumstances where I have no evidence as to the nature of the alleged investment or its value other than the wife's bare assertions, I am not satisfied that that item ought be included in the parties' balance sheet. Accordingly, I will exclude Item 11 from the balance sheet.

1. The wife contends that the husband received a severance package from his former employer, U Company, in the sum of USD$4,500,000. To support that contention she annexes to her affidavit a MM Bank statement in the name of the husband for the period 1 December 2014 to 31 December 2014 which evidences salary from U Company paid into that account.[25] That document does not establish that the husband received a severance package as contended by the wife.
2. The wife also relies upon a text message exchange between she and the husband in which she contends that the husband assured her that the parties would be financially comfortable. That exchange which appears to have occurred on 15 October 2016 makes no reference to a severance package or any lump sum payment to the husband from U Company.[26] Again, that document does not confirm the matters asserted by the wife.
3. Further, I note that at [108] of her trial affidavit, the wife deposes that she learned of the husband's retirement plans by chance in June 2017. The document relied upon in apparent support of her contentions as to the severance package pre-dates the wife learning of the husband's retirement. Accordingly, that text exchange could not evidence the matters asserted by her.
4. The wife also relies upon a text exchange between she and the husband that occurred on 20 June 2017.[27] Again, that text message exchange makes no reference to the payment of a severance package to the husband. It does not support the wife's contentions.
5. In circumstances where there are no documents that evidence a severance package from U Company to the husband nor any documents which confirm payment to the husband of the amounts alleged by the wife, I am not satisfied that Item 12 ought be included in the parties' balance sheet. Accordingly, it will be removed from the balance sheet.

1. The wife alleged that the husband holds U Company shares valued at $7,450,000. It was conceded by the wife during submissions that she has no evidence to support her claim.
2. Given that concession, I will exclude Item 13 from the balance sheet.

1. The wife contends that the husband holds V Company shares valued at $100,000.
2. The wife deposes at [44] of her trial affidavit that the husband had an interest in Super Fund 1 which was transferred to his MM Bank Country C account and that he continues to retain this interest. In support of that contention the wife relies upon a letter from Super Fund 1 to the husband dated 17 September 2018 in which the Trustee of Super Fund 1 informed the husband that it was providing a termination statement in relation to the husband's membership and that the amount of $99,398.11 had been telegraphically transferred to his nominated overseas bank account.[28] I am satisfied, having regard to the letter from Super Fund 1 to the husband, that he has received the payment referred to in that correspondence. Accordingly, I am satisfied that that amount should be included in the parties' balance sheet.

1. The wife makes a broad assertion at paragraph 55 of her trial affidavit that the husband has multiple bank accounts held in different jurisdictions. In support of that contention, she annexes to her affidavit at MSK-25 a handwritten document which she alleges is a summary of the husband's bank accounts. The maker of that handwritten summary is not identified, nor is the document ascribed a date.
2. During oral submissions, the wife did not press her claim with respect to Item 15. Accordingly, that item will be excluded from the balance sheet.

1. The wife also alleges that the husband holds an account with PP Bank in City B. Again, however, there are no documents produced to establish the existence of those accounts other than the handwritten document referred to above. The wife made no submission in support of the claim. Accordingly, that item will be excluded from the parties' balance sheet.

1. With respect to Item 17, again the wife produces no documents to support her claim as to the existence of accounts held by the husband with that bank. The wife made no submissions with respect to Item 17 during the hearing. Accordingly, I am not persuaded that the item ought be included in the parties' balance sheet; it will be excluded from the balance sheet.

Item 18 - MM Bank Country C currency accounts (x 3)

1. The wife contends that the husband holds the sum of $267,915 in three accounts with MM Bank. In support of that contention, she relies upon Annexure MSK-2 to her trial affidavit, which is a MM Bank statement in the name of the husband for account numbers #...38 and #...56 for the period 1 December 2014 to 31 December 2014. Other than establishing that the husband held those accounts in 2014, that document does not prove the savings alleged by the wife at the time of trial.
2. The wife also relies on Annexure MSK-13 to her trial affidavit which is the letter from Super Fund 1 to the husband dated 17 September 2018 regarding the termination payment made to him from his accumulated superannuation fund. Included in that annexure is a letter from MM Bank to the husband dated 4 September 2018 providing account details with respect to a funds transfer. If anything, those documents confirm the transfer of funds from the Super Fund 1 account, as identified at Item 14. I am not satisfied that the husband has additional funds to those identified at Item 14.
3. The wife also relies upon Annexure MSK-25 in support of her contention, being the handwritten document referred to earlier. Again, I am not satisfied that that document establishes the interest alleged in Item 18.
4. On the final day of hearing the wife conceded she had no documents to support her allegations as to the existence of the savings alleged to be held with MM Bank. Having regard, to that concession and the above, I will exclude Item 18 from the balance sheet.

1. The wife alleges that the husband has savings accounts with Checking Plus. She does not quantify the amount held by the husband. She again relies upon the handwritten documents annexed to her trial affidavit at MSK-25. The wife made no submission with respect to that item. In the absence of any evidence which establishes the existence of such account, I will exclude that item from the balance sheet.

1. The wife further contends that the husband holds an account with MM Bank, State SS in the United States of America. She states that she does not know what sums are held in that account. In support of that contention the wife relies upon the handwritten document being Annexure MSK-25 to which I have earlier referred. The wife made no submission in relation to that item during the hearing. In the absence of evidence to support the wife's contention as to the existence of that account, I am not persuaded that it ought be included in the parties' balance sheet. It will be removed.

Items 21 to 22 inclusive - MM Bank, Country TT and MM Bank, City UU, USA accounts

1. The wife contends that the husband holds MM Bank accounts in both Country TT and City UU in USA. She does not identify the amounts said to be held by the husband in either account, nor does she produce any documents evidencing the existence of those accounts. Again, she relies upon the handwritten document being Annexure MSK-25 to her affidavit. I am not satisfied on the balance of probabilities as to the existence of that account, and there is no evidence as to what funds if any are held in such account, if it does exist. In those circumstances, I will exclude those items from the balance sheet.

1. The wife alleges that the husband holds three MM Bank accounts in Country E. She does not know the value of those accounts, nor does she produce any evidence as to their existence. For the reasons articulated in relation to the above MM Bank accounts, I will exclude that item from the balance sheet.

1. The wife alleges that the husband holds an account with VV Bank in City Q, Country E. As to the balance of that account the wife states that it is not known. As to the existence of that account, the wife relies upon Annexure MSK-14 to her trial affidavit. That document appears to be an authorisation for a transfer of funds to a named beneficiary, Ms AE and the beneficiary's bank account is identified as VV Bank in City Q. Having regard to that document, it appears to establish that the named beneficiary is the holder of that VV Bank account and not the husband.
2. The wife also relies upon Annexure MSK-15 to her trial affidavit. That document is a customer receipt in respect of a payment by Mr AF to the husband on 26 January 2015, the transfer being the amount of Country C currency 733,860. The document discloses that the funds were drawn on an AC Bank account and were payable at an AC Bank branch. There is no reference in that document to any account held by the husband with VV Bank of City Q. Having regard to those documents, I am not satisfied on the balance of probabilities that the wife has established that the husband holds an account with VV Bank of City Q. In those circumstances I will exclude Item 24 from the balance sheet.

1. The wife contends that the husband holds an account with the WW Bank. She does not know the amount held by the husband in that account. Again, the wife adduces no documents evidencing the existence of such account. Further, the wife made no submissions in support of the contention contained in her balance sheet. Accordingly, I will exclude that item from the balance sheet.

Items 26 & 27 - MM Bank Country T accounts (x 2) and XX Bank Account

1. The wife contends that the husband holds accounts with MM Bank in Country T (two) and XX Bank. The wife does not know the balance held by the husband in those accounts. The wife produces no documents evidencing the existence of those accounts. Accordingly, I cannot be satisfied as to their existence and even if found to exist, I have no evidence as to the balance, if any, held by the husband in those accounts. Having regard to those matters, I will exclude Items 26 and 27 from the balance sheet.

1. The wife alleges that the husband earns income from a financial portfolio with AB Company, which was an investment fund established in 2005. The wife produces no documents that confirm the existence of that fund. Further, the wife made no submissions in support of her contentions during the trial. In those circumstances, I cannot be satisfied as to the existence of that interest. Accordingly, it will be excluded from the parties' balance sheet.

1. The wife alleges that the husband holds two accounts with AC Bank and in support of that contention relies upon Annexure MSK-25 to her trial affidavit, being the handwritten document. The wife produced no documents confirming the existence of those accounts, not did she make any submissions during the trial to support her contention.

Items 30 & 31 - ANZ Bank accounts (x 2) and MM Bank City B accounts (x 2)

1. The wife deposes that she has two accounts with ANZ Bank, Melbourne and two accounts with MM Bank, City B and that she has no funds in any of those accounts. Given that position and in the absence of any challenge to that evidence by the husband, I will exclude those items from the balance sheet.

1. The wife asserts that the husband has $99,398 by way of superannuation with Super Fund 1. That fund is the funds identified earlier at Item 14 of the wife's balance sheet. As I have already included that amount at Item 14, I will exclude Item 32 from the balance sheet. To do otherwise would be to double-count.

1. The wife contends that in 2018 the husband established a Trust with his sister Ms AE her husband, Mr AG, and their daughters, Ms AH and Ms AJ.[29] In support of that allegation the wife relies upon Annexure MSK-17 to the trial affidavit, being excerpts from a document the wife states she found upon undertaking an internet search. The first page of the document contains a graphic, with the husband's name identified in connection with arrows labelled "beneficiary" and "settlor." Those arrows point towards the name of the entity. The second page of the document identifies the entity, and states that its jurisdiction is Country AK. The third page of the document lists a number of people and companies. The husband's name is contained in that list. The fourth page of the document is incomplete and provides no helpful information as to the AA Trust entity. Having regard to those matters, I cannot be satisfied as to the existence of AA Trust, and, if it does exist, the husband's role or interest in that Trust.
2. The wife contends in her balance sheet that the value of the husband's interest in that entity is not known. Having regard to all of those matters, I am not satisfied on the balance of probabilities that the husband has an interest in the entity and will therefore exclude it from the parties' balance sheet.

1. The wife discloses at Item 51 of her Financial Statement filed 7 June 2024 a MM Bank Visa credit card liability of $29,665. There is no challenge to that evidence. Accordingly, that liability will be included in the balance sheet at the amount recorded at Item 35 in the balance sheet relied upon by the wife, being $29,645.
2. Further, the wife contends at Items 36 and 37 of her balance sheet that she has other liabilities amounting to $227,239 and owes accountant fees in the sum of $7,700. At Item 53 of her Financial Statement the wife deposes to liabilities totalling $280,319, being legal costs, loan for living expenses, liabilities with respect to the sale of the Suburb BB property, medical expenses and rent. There is no challenge to the wife's evidence with respect to those liabilities. Seemingly, the quantum of those liabilities have reduced since the filing of her Financial Statement and are now as contended in the Balance Sheet. Accordingly, I will allow the wife's claim as contained at Items 36 and 37 in the balance sheet.

1. Based on my findings, the parties' legal and equitable interests for the purposes of the orders I am asked to make, are as follows:-

Net sale proceeds of Suburb BB Property AA Street, Melbourne, Australia

SECTION 79(2) FACTORS

1. The wife seeks orders for the adjustment of property pursuant to s 79 of the Act. The parties have shared a marriage of some 36 years which has produced two now-adult children. Save for the sale proceeds of the Suburb BB property the majority of the parties' interests are held in the name of the husband. I am satisfied that in circumstances where the parties have shared a long marriage, where the interests held by them have been acquired during the marriage and they will no longer have joint use and enjoyment of their interests, it is just and equitable to make orders for adjustment of their interests.

1. The wife's unchallenged evidence, which I accept, is that neither party had any assets of significance at the commencement of the marriage.
2. It is her evidence that both parties worked until approximately 1995, the husband in his role in executive positions within the finance industry and the wife in the transport industry.
3. Upon the parties' relocation to Country S, the wife ceased paid employment and assumed the role of full-time homemaker and carer to the parties' children.
4. The wife's unchallenged evidence is that the husband worked long hours and travelled frequently in his employment. It is also her evidence that the wife supported the husband in his executive roles, at times travelling with him, and also supporting him by hosting his business colleagues at their home.
5. As detailed earlier, during the course of the marriage the parties acquired a number of investment properties. The wife's unchallenged evidence is that she was responsible for the management of those properties, liaising with real estate agents and tenants and otherwise attending to the upkeep and maintenance of those properties.
6. Since the parties' separation, the wife has been evicted from her accommodation in City B and the financial support previously provided to her by the husband, including monthly payments and provision of accommodation and payment of utilities has been withdrawn.
7. As a result of that conduct, the wife has borrowed funds in order to meet her living expenses as well as the costs associated with these proceedings.
8. Having regard to the wife's evidence, which I accept, I am satisfied that the parties each worked to the best of their abilities in the context of their long marriage. I accept that the husband was the primary breadwinner during the marriage and that the wife supported him in that role, initially working in paid employment, and upon the cessation of that employment as a homemaker and parent, as well as supporting him in his executive roles. Having regard to all of those matters, I assess the parties' contributions during the marriage as equal.

Section 75(2) factors

1. I have no evidence as to the husband's financial circumstances. He has not filed a financial statement. There is no evidence as to his income, expenses, property or liabilities.
2. The husband is aged 69 years and is retired.
3. In her Financial Statement filed 7 June 2024, the wife discloses an income of $790 per week, being rental income. That payment relates to the now-sold property at Suburb BB. As a result of the sale of that property, the wife no longer has the benefit of that income.
4. The wife deposes that she has weekly expenses of $4,113 per week.
5. The wife is aged 63 years and has not been engaged in paid employment since 1995. Having regard to the wife's age as well as her employment history, it would be unreasonable to expect her to resume paid employment.
6. The wife submits that as a result of the husband's failure to engage in these proceedings and to make disclosure of his interests, there ought be a further adjustment in her favour pursuant to s 75(2)(o) of the Act.
7. There is an obligation on all parties in property proceedings to make full and frank disclosure of their financial position (per Oriolo and Oriolo [1985] FamCA 54; (1985) FLC 91-653; Weir and Weir [1992] FamCA 69; (1993) FLC 92-338). That obligation is confirmed in Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The duty to make disclosure is absolute and one that continues throughout proceedings in this Court. As I observed during the course of the hearing, this is a Court of "show and tell" rather than "hide and seek".
8. The Full Court in Chang & Su [2002] FamCA 156; (2002) FLC 93-117 helpfully summarised the relevant authorities in relation to non-disclosure and confirmed that it is open to a Court to take a more robust view to the adjustment of parties' interests in circumstances where there has been non-disclosure, the effect of which has been to hamper the identification and value of the parties' assets.
9. Having regard to the long history of proceedings in this Court, the husband's failure to engage in the proceedings, to file a Response or Financial Statement and his failure to make disclosure with respect to his interests, I am satisfied that the wife's attempts to identify and value the parties' interests has been frustrated by that conduct.
10. The wife has engaged in a time consuming and costly process through the courts in City B in her endeavours to obtain disclosure from the husband, with little success. The documents annexed to her affidavit provide historical snapshots of the parties' interests at various points in time during the marriage. They do not helpfully assist the Court in the identification and valuation of all assets in existence at the time of trial.
11. As observed earlier in this judgment, I am satisfied that the husband has been on notice as to the wife's application and as to these proceedings since orders were initially made by me on 13 February 2024 listing the matter for final hearing.
12. In the decision of Stone & Stone [2015] FamCAFC 18, the Full Court affirmed the approach of the trial judge to take into account non-disclosure as a matter relevant to s 75(2). It confirmed that such non-disclosure was relevant to the determination of future income and earnings and also as to whether the husband had other assets undisclosed and undiscovered. Further, the Full Court confirmed that the trial judge's approach in providing a "hedge" against the husband having successfully concealed further assets or income was one open to him in the determination of the adjustment pursuant to s 75(2).
13. I am satisfied that the husband's failure to engage in these proceedings, and his failure to make disclosure of his interests has frustrated the wife's endeavours to identify and value the parties' interests. As a result, the wife has incurred additional legal costs and suffered significant delay in the conclusion of the matter. As noted earlier, the wife has been able to adduce sufficient evidence to support some of her contentions with respect to the parties' interests.
14. On any view, there are many unanswered questions as to the nature and extent of the husband's interests in property, particularly in relation to his employment entitlements and other investment properties. The evidence adduced by the wife satisfies me on the balance of probabilities that the husband has received a significant retirement payment, albeit that that payment is not able to be quantified. Similarly, I am satisfied on the balance of probabilities, having regard to the nature and extent of the parties' investments during the marriage that the husband continues to hold assets not disclosed and have the benefit of income from those investments.
15. I am satisfied that the failure of the husband to make disclosure of his assets, liabilities, income and expenditure, including particulars of any redundancy or retirement payments received by him and how he has applied funds retained by him from the sale of the parties' investment properties are matters relevant to s 75(2)(o).
16. Having regard to all of those matters, I am satisfied that there ought be an adjustment in favour of the wife to take into account those matters.

1. The wife seeks a 60/40 division of the parties' asset pool in her favour, which allowing for an assessment of equality with respect to their contributions allows for a 10 per cent adjustment for s 75(2) factors. Having regard to my findings pursuant to s.75(2)(o), I am satisfied that an adjustment in those terms is just and equitable.
2. An adjustment in those terms results in the wife retaining assets valued at $8,269,555 of the identified asset pool, which is valued at $13,782,592. The husband will retain 40 per cent of that pool, being the sum of $5,513,037.
3. The wife will retain assets valued at $1,386,303, being the sale proceeds of the Suburb BB property. She will also retain her liabilities totalling $264,584. Hence, she will retain net assets valued at $1,121,719. As a result, the husband will be required to pay to the wife the sum of $7,147,836. I will make orders to that effect.
4. Having regard to the circumstances of the case, I consider that orders in those terms will provide for a just and equitable outcome as between the husband and the wife.

1. The wife also sought orders pursuant to s 74 of the Act that the husband pay to her periodic spousal maintenance in the sum of $13,550 per calendar month.
2. Section 72(1) of the Act provides that:

A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:

(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or

(c) for any other adequate reason;

having regard to any relevant matter referred to in subsection 75(2).

1. The threshold issue in considering a claim for spousal maintenance is whether the applicant, in this case the wife, is able unable to support herself adequately. The Full Court in Brown & Brown [2007] FamCA 151; (2007) FLC 93-316 at [161], adopting propositions set out by the trial judge, said as follows:-
   • The word "adequately" is not to be determined according to any fixed or absolute standard.
   • The idea that "adequate" means a subsistence level has been firmly rejected.
   • Where possible both spouses should continue to live after separation at the level which they previously enjoyed if this is reasonable, although the parties' standard of living may have to be lower if financial resources are insufficient to maintain that standard.
   • In some circumstances it may be reasonable for the parties to live at a higher standard than previously enjoyed.
   • It is not necessary for an applicant for maintenance to use up all capital in order to satisfy the requirement that he/she is unable to support himself/herself adequately.
   • However, an applicant is not entitled to live at a level of considerable luxury or comfort merely because the other party is very wealthy.
2. If the wife is able to demonstrate an inability to adequately support herself, the capacity of the husband to meet a spousal maintenance order must then be considered.
3. Section 74 of the Act provides for the court to make such order as it considers proper for the provision of maintenance; in exercising jurisdiction under s 74 the court shall only take into account the matters referred to in s 75(2).
4. In circumstances where the wife does not work and is unlikely to resume employment, in light of her age and lack of recent experience in paid employment, and has sold the investment property which was her primary income source. The wife has no income other than interest on savings. In her Financial Statement she deposes that she has weekly expenses of $4,113.00. The periodic amount sought by her is $13,550 per calendar month, being $3,127 per week.
5. The adjustment of property as provided by these Orders will provide the wife with a substantial payment from which she will have the ability to derive investment income, albeit there is no evidence as to the quantum of income to be derived from that source.
6. The wife faces significant difficulty in establishing the husband's capacity to meet her claim. Simply put, there is no evidence as to the husband's current financial circumstances, particularly his income. On the face of the wife's evidence the husband is retired and meeting living expenses with investment income.
7. However. absent evidence as to his current circumstances, I am not in a position to make any assessment as to the husband's capacity to pay spousal maintenance.
8. In circumstances where there is scant evidence as to the husband's current income, and therefore an inability to assess his capacity to pay, coupled with uncertainty as to the quantum of the wife's needs given the absence of evidence as to her income from investment of her property entitlements I am satisfied that the wife's application for periodic spousal maintenance should be dismissed.

1. As to the wife's application for costs pursuant to s 117 of the Act, I will make directions for the filing of submissions with respect to that claim, such submissions to be filed within 21 days.

I certify that the preceding one hundred and ninety-two (192) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns.

[1] Trial affidavit of the wife filed 7 June 2024, paragraph 57.

[3] Wife's trial affidavit, [Annexure MSK-21].

[13] Trial affidavit of the wife filed 7 June 2024, paragraph 109.

[16] Affidavit of the wife filed 13 September 2024, Annexure 1, page 7.

[17] Affidavit of the wife filed 13 September 2024, Annexure 2, page 15.

[18] Trial affidavit of the wife filed 7 June 2024, paragraph 100(c).

[20] Affidavit of Mr D filed 7 June 2024, Annexure 3.

[22] Affidavit of Mr D filed 7 June 2024, Annexure 1.

[23] Affidavit of Mr D filed 7 June 2024, page 133.

[24] Trial affidavit of the wife filed 7 June 2024, paragraph 43.

[25] Ibid, paragraph 9 and [Annexure MSK-2].

[26] Ibid, paragraph 109 and [Annexure MSK-16].