Lee & Lee [2025] FedCFamC2F 1319 (19 September 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This matter initially came before me as an Application by the Husband to review Interim Orders made on 4 March 2025. Those Orders had the effect of freezing some sale proceeds, guiding disclosure and valuation, and then getting the parties to a mediation.
2. The original Application for Review has been amended so that it also now seeks to set aside a costs order, and to join a pair of third parties to the proceedings.
3. Those third parties also seek interim relief in the form of being paid funds that they say the Husband owes to them.

1. The Husband and the Wife married in 1979.
2. They have three adult children. One of their sons, Mr B Lee ("Mr B Lee"), is the Second Respondent in these proceedings.
3. Each of the Husband and Wife had an interest in real property at the commencement of their relationship.
4. The Husband was the beneficiary of a number of inheritances during the marriage. One such inheritance resulted in the Husband receiving in 1995 a property known in these proceedings as the Suburb F property.
5. In 1998, the Husband settled arrangements in relation to his deceased mother's estate, resulting in him acquiring a company called G Pty Ltd. That company owns a property known in these proceedings as "the Suburb H property".
6. The Wife inherited a parcel of shares in 2003. She sold those shares and used the proceeds to purchase a property known in these proceedings as the C Street property in 2010. The C Street property has at all times been held in the name of the parties' son, Mr B Lee. Mr B Lee is the Second Respondent in the proceedings. Mr B Lee accepts that he holds the C Street property for the benefit of his mother and agrees to abide whatever decision is made by the Court in relation to that property.
7. The Husband deposes to a joint debt owed to NAB which was secured against the Suburb F property. The Husband deposes to a period in 2022 when he fell into difficulties servicing that debt. He says that he had to borrow more money to service the debt (Husband's Affidavit filed 3 March 2025, paragraphs 60-65).
8. The Husband refinanced the debt secured against the Suburb F property in 2022 and increased the debt level when doing so (Husband's Affidavit filed 3 March 2025, paragraphs 89-99).
9. The Husband deposes to suffering a stroke in early 2023 (Husband's Affidavit filed 3 March 2025, paragraph 66).
10. The Husband and Wife separated in September 2023 (according to the Husband) or November 2023 (according to the Wife).
11. At the time of separation, it seems clear enough that the Wife held at least the following asset:

(a) the C Street property, noting that the legal owner of the property was in fact the parties' son, Mr B Lee.

1. At that time, it also seems clear enough that the Husband held at least the following assets:

(a) the company called G Pty Ltd which owns the Suburb H property; and

(b) the Suburb F property; and

(c) a company called J Pty Ltd.

1. The Wife says that in 2023 she became aware that the Husband was taking steps to cause G Pty Ltd to sell the Suburb H property.
2. The Husband says that through "his [P law firm] " he arranged to borrow funds from Mr Stevens ("Mr Stevens") (Husband's Affidavit filed 3 March 2025, paragraphs 109-114).
3. The Husband says that Mr Stevens did not want to take a mortgage over property as security. He instead wanted to:

(a) enter into a contract to purchase the Suburb H property; and

(b) pay a deposit; and

(c) release a portion of the deposit, $160,000, to the Husband; and

(d) agree to interest being payable on the funds so released; and

(e) agree to the deposit, and interest, being repaid.

1. It is not clear at this stage why Mr Stevens and the Husband agreed to a transaction like that.
2. The principal of the P law firm is Mr Duncan ("Mr Duncan").

1. The parties both lived in the C Street property until April 2024, when the Wife purchased a property known in these proceedings as "the K Street property" and moved into it. The Husband continued to live in the C Street property.

1. The Wife says that on 17 December 2024 her solicitors were advised by the Husband's solicitors that the Husband was planning to list the Suburb F property for sale.
2. Contracts were exchanged in relation to the Suburb F property in January 2025. The sale was due to settle in March 2025. The Husband negotiated to receive the deposit before settlement.
3. It is not in dispute that the Suburb F property has now been sold. The circumstances leading to its sale are the subject of considerable controversy.
4. The Husband says that the Wife was well aware of his decision, and the reasons why it was necessary, to sell the Suburb F property. He says, for example, that through her legal advisers he had communication with her about capital gains tax exposure. He says that he engaged the agent to sell the Suburb F property in February 2024, and that that was after the communication in relation to capital gains tax (Husband's Affidavit filed 3 March 2025, paragraphs 100-102).
5. The Husband says that the Suburb F property was put to the market by auction in November 2024 but failed to attract any bids as high as $3,000,000.
6. He says that he eventually agreed to sell it in December 2024 for $3,095,000. He says that he insisted on the term that provided for half of the deposit to be released to him. He says that he needed those funds to meet his debts (Husband's Affidavit filed 3 March 2025, paragraphs 106-108).
7. The Wife has suspicions about the transaction, referring to the fact that the purchaser is an employee of the agent engaged to sell the property. For example, she says that the contract price is lower than the market value of the property.

1. The Wife filed an Application for Final Orders on 18 December 2024. Broadly speaking, she contends for an equal division of the pool as between herself and the Husband, and says that she would like to keep the C Street property and the K Street property for herself.
2. The Wife sought interim orders in the Application in a Proceeding filed on 18 December 2024. She sought to have the Husband vacate the C Street property, and the sale proceeds of the Suburb F property be held in a joint account pending further order. The Wife sought to have the sole use of the C Street property.
3. On 10 February 2025, the Wife filed an Affidavit and an Amended Application for Final Orders. There was no change to the Final Orders sought. In relation to the interim orders sought, the Wife abandoned the Application for the Husband to vacate the C Street property and for her to have sole use of it. In relation to the sale proceeds of the Suburb F property, she sought to have those held in her solicitor's trust account.
4. In the Wife's Affidavit filed on 10 February 2025, she deposed to:

(a) what she considered to be a failure on the part of the Husband to make appropriate disclosure or to be transparent about his financial circumstances (Wife's Affidavit filed 10 February 2025, paragraphs 18, 23-25, and 30); and

(b) her concerns about the sale of the Suburb F property which included:

(i) the fact that solicitors were not apparently engaged to act in the sale but rather contracts were to be exchanged through the real estate agent; and

(ii) the purchaser was in fact an employee of the real estate agent; and

(iii) the Husband was to receive the deposit (approximately $150,000) before the contract settled (Wife's Affidavit filed 10 February 2025, paragraphs 11-22); and

(c) in the absence of assurances that she had sought from the Husband, the risk that the Husband might receive and spend the sale proceeds of the Suburb F property (Wife's Affidavit filed 10 February 2025, paragraphs 26-32).

1. The Wife relied upon evidence that she obtained from a valuer (who was not jointly engaged and who was not able to inspect the interior of the property) that the sale price of the Suburb F property at $3,095,000 was less than the market value of $4,050,000.
2. On 3 March 2025 (the day of the interim hearing), the Husband filed a Response to the Application for Final Orders. Broadly speaking, he seeks a 55/45 per cent division of the pool in his favour, and he would like to keep the C Street property. He also filed an Affidavit by himself and a Financial Statement on the same date.

1. Senior Judicial Registrar Turner conducted an interim hearing on 3 March 2025. The relevant Orders made by the Senior Judicial Registrar on 4 March 2025 are summarised as follows:

(a) Orders 1 to 3 directed the parties to mediation; and

(b) Orders 4 to 11 dealt with valuation of various assets; and

(c) Order 13 restrained the Husband's conduct of two companies that he controls; and

(d) Orders 14 and 15 protected the sale proceeds of the Suburb F property; and

(e) Order 16 obliged the parties to make disclosure to each other by 30 April 2025; and

(f) Order 17 obliged the Second Respondent to file material; and

(g) Orders 18 to 20 prescribed the manner by which any costs dispute was to be dealt with.

1. On 11 March 2025, an Application in a Proceeding was filed by Mr Duncan. Mr Duncan is a solicitor and the principal of the P law firm. By the Application in a Proceeding, Mr Duncan sought to set aside those Orders made on 4 March 2025 that protected the sale proceeds of the Suburb F Street property, and instead sought to have those proceeds paid into the trust account of his law firm to "preserve the rights, if any, of creditors" of the Husband.
2. Also filed on 11 March 2025 was a Notice of a Person Entitled to Intervene. That Notice was filed by Mr Stevens. Mr Stevens was at that time represented by Mr Duncan. Mr Stevens says that he advanced money to the Husband, and that there was an agreement that he would be repaid when the Suburb F Property was sold.
3. Mr Duncan filed an Affidavit of himself on 11 March 2025. He says in that Affidavit that:

(a) he is the Husband's solicitor in relation to the sale of the Suburb F property; and

(b) he has knowledge of "representations" said to be made by the Husband to various creditors (including himself and Mr Stevens) that the Husband's debts to those people would be repaid upon the sale of the Suburb F property; and

(c) he considered himself bound to act in a way that is consistent with those representations for fear of becoming personally liable to those creditors; and

(d) in order to protect the interests of those creditors he would prefer to have the sale proceeds paid into the trust account of his own law firm; and

(e) he was going to defer settlement of the sale of Suburb F property until at least March 2025.

1. On 24 March 2025, the Wife filed a Response and effectively a Cross Application for further interim orders. She sought to have Mr Duncan's Application in a Proceeding dismissed, but she also sought an order compelling him to complete the sale of the Suburb F property, with miscellaneous incidental orders.
2. The Application in a Proceeding filed by Mr Duncan was amended on 7 April 2025, to the effect that the Orders made on 4 March 2025 protecting the sale of the Suburb F property would either be stayed, or alternatively, would be used to pay some debts relating to the sale of the Suburb F property, to hold $300,000 in the trust account of Mr Duncan's firm, and the balance held in a controlled monies account for the benefit of the Husband and the Wife.

1. On 18 March 2025, the Wife filed an Application in a Proceeding seeking an order that the Husband pay her costs relating to the hearing on 3 March 2025 before Senior Judicial Registrar Turner.
2. An Order was made on 8 April 2025 that the Husband pay the Wife's costs of that hearing fixed in the amount of $4,033.75.
3. The Husband's Amended Application for Review filed 24 April 2025, which I will address below, seeks to have that costs order set aside.

1. The Husband filed an Application for Review on 24 March 2025. Of the Orders made on 4 March 2025, he initially wanted Orders 14, 15, 18 and 19 reviewed. He sought in their place Orders that $200,000 only from the sale of the Suburb F Property be invested in a joint monies account. The necessary inference being that he would be at liberty to deal with the balance of the sale proceeds at his discretion.
2. He filed an Amended Application for Review on 24 April 2025. By that document, he sought:

(a) to have Orders 13, 14, 15 and 16 of the Orders made on 4 March 2025 vacated; and

(b) to have the Costs Order made against him on 4 April 2025 set aside; and

(c) an order for the sole use of C Street; and

(d) joinder of Mr Duncan and Mr Stevens to the proceedings; and

(e) an order compelling settlement of the sale of the Suburb F property; and

(f) payment of the debts that he says he owes to Mr Stevens, Mr Duncan, Mr L and the selling agent; and

(g) an order relating to the form of joint instructions to the Single Expert valuer.

1. The Husband filed an Application in a Proceeding on 3 April 2025. By that Application, the Husband sought a stay of Order 19 of the Orders made on 4 March 2025 ("the Costs Order"), and alternatively that the time for compliance with Order 18 of the Orders made on 4 March 2025 be expanded. That relates to the Costs Order that was made against him.

1. The contract for the sale of the Suburb F property eventually settled in April 2025. Net sale proceeds of $1,053,636 are now held in a controlled monies account for the benefit of the Husband and the Wife (Wife's Affidavit filed 13 May 2025, paragraph 34). Consequently, any Application for Orders to compel settlement of the sale is now redundant.

1. When the matter came before me for the first time on 29 April 2025, it emerged that the dispute relating to non-disclosure pervaded almost every aspect of the dispute. In oral argument, it was asserted on behalf of the Wife that the Husband had failed to disclose a range of documents. The Husband said that he had in fact disclosed those documents.
2. The issue of non-disclosure is relevant to the extent to which interim injunctions are necessary, and also to the issue of costs. The Wife specifically complains that the Husband has not produced documents that would allow her to satisfy herself in relation to his use of the funds that he received as a "deposit" in relation to the contracts to sell the Suburb H property and the Suburb F property.
3. On 29 April 2025, I ordered the Husband and the Wife to file Affidavits that would identify with specificity what was not disclosed, when those documents were asked for, when it was said that they were provided and what further disclosure was required.
4. I adjourned the issue of joinder of Mr Stevens and Mr Duncan to 23 July 2025. I adjourned that part of the Amended Review Application that related to costs to that date also. I reserved judgment in relation to the balance of the Amended Application for Review filed on 24 April 2025.
5. The Wife filed an Affidavit on 13 May 2025. That Affidavit annexes various items of correspondence that have passed backwards and forwards between the parties. The reader is forced to read those items of correspondence in order to glean the information that was to be provided. At paragraph 32 of the Wife's Affidavit filed 13 May 2025, the reader is referred to four items of correspondence (dated 28 February 2025, 10 March 2025, 19 March 2025 and 26 March 2025) which the Wife says represents the state of non-disclosure by the Husband.
6. The Husband filed an Affidavit on 13 May 2025. That Affidavit repeats some of the narrative already contained in previous Affidavits by the Husband. A lot of that narrative is irrelevant and unhelpful. To repeat it in multiple Affidavits is a waste of the Court's time. Importantly, what is missing from the Husband's Affidavit is the very information that it was supposed to contain, namely, identification of what documents he says he has produced to the Wife in response to her complaint about non-disclosure.

1. The matter came back before me on 14 May 2025.
2. The Wife on that date maintained her complaint that the Husband has not produced bank statements that would allow her to satisfy herself in relation to how he has used the two sums of money - $147,929 and $66,500 that were received by him as an early release of a deposit.
3. The parties could not agree on that date whether or not the relevant bank statements had been produced.
4. On 14 May 2025, I ordered the parties to file Written Submissions addressing the contention by the Wife that she was not provided with bank statements that evidenced how those funds had been applied.
5. The Wife filed Written Submissions on 28 May 2025. They are not all that helpful. At paragraph 5 of those submissions, there is a reference to a request for "details of the following transactions, including but not limited to purpose, tax invoices and receipts, and further information regarding the following from bank account ending #...47". The whole point of my Order to file submissions was to get to the bottom of the submission by the Wife that she had not received bank statements versus the submission by the Husband that she had. The Written Submissions on the face of it seem to make it clear that she had bank statements, but wanted more.
6. The Husband filed Written Submissions on 28 May 2025 which, on the face of it, seem to confirm that bank statements were, in fact provided.

1. Mr Duncan filed a further Affidavit by himself on 18 June 2025. He repeats his inadmissible opinion evidence that the debts payable to himself and Mr Stevens are due and payable, and purports to give hearsay evidence about Mr Stevens needing funds urgently for an operation. I give no weight to the contents of that Affidavit.
2. Mr Stevens filed an Affidavit on 23 June 2025. Mr Stevens gives hearsay evidence about his health. I note that that Affidavit was prepared by Mr Duncan's law firm.
3. Parties are not at liberty to file Affidavits whenever the mood strikes them. I wished to address the filing of documents in this matter and I listed the matter for mention on 27 June 2025.
4. Mr Stevens filed yet another Affidavit on the morning of 27 June 2025. He gives further hearsay evidence about his health. That Affidavit was also prepared by Mr Duncan's law firm.
5. Section 75 of the Evidence Act 1995 (Cth) creates an exception to the rule against hearsay evidence in interlocutory proceedings, provided that the person adducing it also adduces evidence of its source. However, that does not expose interlocutory hearings to a free for all.
6. The Affidavit evidence that I have just referred to is embarrassing. It does not go any way towards evidencing an operation, the costs of that operation or the timing of it. At its highest, it confirms that Mr Stevens does see medical practitioners for a heart related condition. I was not persuaded on that occasion that there was any urgency in relation to dealing with the claims of Mr Duncan or Mr Stevens.
7. The Court was informed on that occasion that:

(a) in relation to the Wife's contention that the Husband sold the Suburb F property for less than market value, it was agreed that it was necessary to get a historical valuation of that property; and

(b) the parties were, however, unable to agree on the wording of the joint instructions to the Single Expert who was to conduct that historical valuation.

1. I published Orders on 3 July 2025 settling the joint instructions. I said on that occasion that I would give Reasons for that decision at the time of delivering these Reasons, which I will do.

1. On 21 July 2025, Mr Duncan's law firm filed a Notice of Ceasing to Act in relation to Mr Stevens. Consequently, on 23 July 2025 Mr Stevens appeared for himself.
2. On 23 July 2025, I heard submissions in relation to the issues of joinder and costs.

(a) the Case Outline filed by her on 24 February 2025 in relation to the initial interim hearing; and

(b) Response to Final Orders filed on 25 March 2025; and

(c) Affidavit of the Wife filed on 24 April 2025; and

(d) Affidavit of the Wife filed on 10 February 2025 and relied upon in the initial interim hearing; and

(e) Affidavit of Mr M filed on 10 February and relied upon in the initial interim hearing; and

(f) Financial Statement of the Wife filed on 18 December 2024 and relied upon in the initial interim hearing; and

(g) Affidavit of the Wife filed on 12 May 2025; and

(h) Written Submissions filed on 28 May 2025; and

(i) documents tendered by the Wife on 29 April 2025.

(a) Amended Application for Review filed on 24 April 2025; and

(b) Affidavit of the Husband filed on 1 April 2025; and

(c) Affidavit of the Husband filed on 23 April 2025; and

(d) Financial Statement of the Husband filed on 20 February 2025; and

(e) Affidavit of the Husband filed on 13 May 2025; and

(f) Written Submissions filed on 28 May 2025; and

(g) documents tendered by the Husband on 29 April 2025.

1. The Second Respondent, Mr Lee, relies upon the following:

(a) Response to Final Orders filed on 25 March 2025; and

(b) Affidavit by Mr B Lee filed on 24 March 2025.

(a) Application in a Proceeding filed on 11 March 2025; and

(b) Affidavit of Mr Duncan filed on 11 March 2025; and

(c) Affidavit of Mr Duncan filed on 10 April 2025; and

(d) Affidavit of Mr Duncan filed on 18 June 2025.

(a) Notice of Intervention by Person Entitled to Intervene filed on 11 March 2025; and

(b) Affidavit of Mr Stevens filed on 10 April 2025; and

(c) Affidavit of Mr Stevens filed on 23 June 2025; and

(d) Affidavit of Mr Stevens filed on 27 June 2025.

1. The following Orders have been made in these proceedings and are relevant to the dispute, the subject of these Reasons:

(a) Orders made on 4 March 2025 - these are the initial Interim Orders that are the subject of the Application for Review; and

(b) Orders made on 8 April 2025 - these include the Costs Order that the Husband now wishes to review; and

(c) Orders in relation to the two third parties who wish to be parties in the proceedings made on 8 April 2025; and

(d) Orders that relate to the conduct of the "substantive proceedings" made on 9 April 2025.

1. Suffice to say that this matter bears very little resemblance to the Interim Application that came before Senior Judicial Registrar Turner on 3 March 2025. Everyone concerned might like to reflect on the sheer volume of material filed, the costs spent to date, and the multitude of ways in which the issues that I have addressed in these Reasons could have been approached in a less adversarial and more cost efficient way.

1. The procedure relating to Applications for Review are set out in Part 14.3 of the Federal Circuit and Family Court Rules (Family Law) 2021 (Cth) ("the Rules").
2. Rule 14.07 of the Rules says that an Application for Review of an exercise of power by a Senior Judicial Registrar is to proceed as an original hearing. That is to say, the Court rehears the whole matter and does not simply review the initial decision.
3. The Court may receive as evidence (amongst other things):

(a) any Affidavit or Exhibit tendered in the first hearing; or

(b) with the leave of the Court, any further Affidavit or Exhibit.

1. There is no general right to file Affidavits if a provision in the rules or an order of the Court has not made it necessary to do so.[1]
2. In this matter the parties have filed Affidavit evidence in addition to the material that was before the Court at the first hearing.
3. Mr Duncan and Mr Stevens have also filed Affidavit material. There are a number of Affidavits that have been filed by each of them that were not made necessary by a rule or an order.
4. Given the way in which the issues unfolded over the course of the various dates when this matter was heard, I have come to the conclusion that the fairest way to deal with the evidence is to give the parties leave to rely upon the Affidavit material that has been identified above.

1. The Husband handed up an amended draft of the orders that he is seeking in relation to his Application to Review when the matter came before me on 29 April 2025. Some of the orders sought were agreed, I have identified the disputed orders below.
2. The issues that fall for determination are as follows:

(a) should Mr Duncan be joined as a party to the proceedings?

(b) should Mr Stevens be joined as a party to these proceedings?

(c) should the Husband be entitled to some funds from the Suburb F sale for personal expenditure on an interim basis?

(d) should the outgoings on the C Street property be paid from the Suburb F sale proceeds?

(e) should the net sale proceeds of the Suburb F property be used to pay the debts owed to Mr Stevens, Mr L, and Mr Duncan on an interim basis?

(f) are the restraints in Orders 13 of the Orders made on 4 March 2025 necessary in relation to the J Pty Ltd group?

(g) are the restraints in Orders 14 and 15 of the Orders made on 4 March 2025 necessary in relation to the Suburb F sale proceeds?

(h) should Order 16 of the Orders made on 4 March 2025 relating to disclosure be set aside?

(i) should the Costs Order against the Husband made on 8 April 2025 be set aside?

1. Rule 3.01 of the Rules provides that a person whose rights might be affected by an issue in a proceeding and whose participation is necessary for the Court to determine all issues in dispute must be included as a party.
2. Once a proceeding has started, r 3.03 of the Rules says that an existing party can join another party by amending the Application and filing an Affidavit setting out the new party's connection to the proceedings.
3. Rule 3.04 of the Rules permits a person to make an application to be joined as a party to proceedings.
4. Rule 3.07 of the Rules provides for a person who is entitled to intervene to do so by filing a Notice of Intervention. Section 79AA(10) of the Family Law Act 1975 (Cth) ("the Act") says that a creditor of a party, who may not be able to recover if an Order is made under s 79 of the Act, is a person who is entitled to intervene.
5. The Husband seeks to have Mr Duncan joined. He says that Mr Duncan is someone whose rights might be affected by the relief sought by the Wife.
6. The Wife does not oppose Mr Duncan being joined, however, for different reasons. She is critical of the role that Mr Duncan has played in relation to the Husband's borrowing of funds, and the sale of the Suburb F property. She says that she may seek relief against Mr Duncan personally. She opposes Mr Duncan being paid from the sale proceeds of the Suburb F property.
7. Mr Duncan says that the Husband is indebted to him for outstanding legal fees. He goes so far as to say that his firm is "suffering loss and damage arising from non-payment" (Affidavit of Mr Duncan filed 18 June 2025, paragraph 5). It was somewhat remarkable that despite that evidence, Mr Duncan was unable to tell me, when asked, exactly how much his firm is owed. After some time, he was eventually able to say that his firm is owed $11,108.
8. Mr Duncan does not oppose being joined to the proceedings, though he candidly admitted that once he is paid, he does not see any need to be a party. For the Reasons that I set out below, he is not going to be paid from the Suburb F sale proceeds in the interim.
9. Mr Duncan's evidence about the transaction between Mr Stevens and the Husband is clearly relevant. It is not necessary for Mr Duncan to be a party in order to test that evidence.
10. His rights to be paid his outstanding fees may be affected by the relief sought by the Wife.
11. The Husband and the Wife both say that Mr Duncan's participation as a party is necessary to address all of the issues before the Court. It is at the very least clear that he has a claimed interest in the sale proceeds of the Suburb F property. I will order that he be a party to the proceedings.

1. The question of Mr Stevens' rights being directly affected is easier to answer. Both the Husband and Mr Stevens say that the Husband owes Mr Stevens over $200,000 (including interest).
2. Mr Stevens, Mr Duncan and the Husband all say that the Husband promised to repay Mr Stevens when the Suburb F property was sold.
3. If the Wife gets the relief that she is seeking in the substantive proceedings, she says that there is not enough cash to pay Mr Stevens without other assets being sold.
4. The Wife says that she may seek relief directly against Mr Stevens also.
5. Mr Stevens has a claimed interest in the sale proceeds of the Suburb F property.
6. Mr Stevens, as a creditor of the Husband, falls within the scope of s 79AA(10) of the Act. He has filed a Notice by a Person Entitled to Intervene. He is arguably entitled to be a party without the need for leave.
7. I am satisfied in any event that his participation as a party is necessary and that it is appropriate for Mr Stevens to be a party to the proceedings.

Should the Husband be Entitled to Some of the Suburb F Sale Proceeds?

1. The parties lived together in the C Street property from 2011 until the Wife moved out of that property on 13 April 2024.
2. The Husband continues to live there. He seeks a sole use order on an interim basis. The Wife does not oppose that.
3. The Husband seeks a sum of $9,020 which he says is $820 per week for 11 weeks. The figure of $820 comes from the weekly expenses figure in his Financial Statement.
4. He does not particularise what power he is asking the Court to exercise in relation to the sum of money that he contends for. I will assume that he is seeking a partial property order. The Court has the power to make partial property Orders pursuant to s 80(1)(h) of the Act.
5. The Wife opposes that.
6. It is inconceivable that the Husband being paid $9,020 would prejudice the final outcome of this matter in any way. It is sadly demonstrative of the state of this matter that such a modest figure is the subject of dispute.
7. I will order that the Husband can receive $9,020 by way of partial property settlement.
8. If the intention of the Husband is that he be paid further funds, whether that be by way of partial property settlement or spousal maintenance, or on some other basis, and assuming that that is not something that the parties are capable of agreeing to, he should file the proper application, properly identifying the source of power, supporting it with some proper Affidavit evidence and ensure that he has made disclosure to the requisite level.

Should the Outgoings on C Street be paid from the Suburb F Sale Proceeds?

(a) there is over a million dollars in trust from the sale of the Suburb F property; and

(b) the outgoings on C Street are not likely to be a great sum of money.

1. There are two problems with the Husband's application as I see it. The first is that he, again, does not identify the source of power that he wants the Court to exercise. The second is the lack of evidence. I have no evidence before me of the quantum of the outgoings.
2. The Husband's Financial Statement filed 3 March 2025 was prepared at a time when he owned the Suburb F property. His sole source of income according to that document was rent from the Suburb F property.
3. The Husband says that he was responsible for payment of all statutory and operating expenses for the C Street property so there is no apparent reason why he could not have given the Court some evidence about those expenses (Husband's Affidavit filed 3 March 2025, paragraph 81).
4. I am not persuaded to make the order that he seeks in that regard.

Should the Suburb F Sale Proceeds be Used to pay Debts Owed by the Husband?

(a) he owes money to each of Mr Duncan, Mr L and Mr Stevens. Exhibit H1, plus oral statements from Mr Duncan at the bar table suggest that the Husband considers himself to owe Mr Duncan $11,018, Mr Stevens $205,488 plus further interest, and Mr L $42,200; and

(b) the Suburb F proceeds are likely to be only 25% of the pool, and that they can safely be applied towards the payment of his debts without causing any prejudice to the Wife's case. He says that after a 45 year marriage, the outcome will likely be close to 50/50; and

(c) protecting all of the Suburb F sale proceeds is more than is necessary to protect the process.

1. Mr Duncan and Mr Stevens have filed Affidavits in relation to the debts owed to them. Mr L has not.
2. The Wife disputes the debts. The necessary inference to be drawn from her complaint is that she questions whether or not there even are debts owed.
3. The Wife raises significant concerns about the role that Mr Duncan has played in the creation of the alleged debts. Mr Duncan acknowledges that he was aware of the family law dispute between the Husband and the Wife as early as February 2024, when the Husband asked him to act for him (Mr Duncan's Affidavit filed 2 April 2025, paragraph 25).
4. The Wife says that:

(a) there is likely to be capital gains tax payable in relation to the Suburb F sale proceeds; and

(b) there is a significant degree of uncertainty surrounding the value of the pool of assets and liabilities in this matter; and

(c) the payment of the debts that the Husband wishes to pay now would quite possibly have the effect of defeating the final orders sought even by the Husband, and quite likely those sought by the Wife.

1. The Wife maintains that the sale price of Suburb F was about $1,000,000 lower than market value. That issue cannot be resolved until the expert evidence of historical value is available, and there has been delay in obtaining that evidence due to the inability of the parties to agree on the wording of instructions to the expert.
2. In relation to capital gains tax:

(a) the Court does not presently know how much capital gains tax, if any, will be on the Suburb F sale; and

(b) Exhibit H6 is a written advice from a firm of accountants to the Husband which, amongst other things, addresses the capital gains tax liability; and

(c) Exhibit H6 appears to offer a strategy relating to the capital gains tax that involves the de-registration of J Pty Ltd; and

(d) that strategy has potential consequences for each of the Husband and the company G Pty Ltd and some of those consequences are dependent upon how debts owed from J Pty Ltd to the Husband and to G Pty Ltd are treated, and the attitude of the Australian Taxation Office towards that treatment.

1. The parties are awaiting valuations in relation to the various remaining parcels of real property and the corporate entities.
2. There are constraints on the ability of the Court to make findings on an interim basis.
3. Each of the parties expresses a wish to keep certain real property. If the debts that the Husband says need to be paid are in fact paid, it makes it very difficult to see how the Husband could possibly retain the real property that he wants to keep, and it makes it virtually impossible to see how the Wife could retain the real property that she wants to keep.
4. It therefore becomes important, in my view, for the Court to make a finding about the conduct that led to the creation of the debts in question. Was it wastage (or worse), as contended for by the Wife? Was it legitimate and unremarkable conduct, as contended for by the Husband? That issue cannot be resolved on an interim basis.
5. There is then the question raised by the Wife about the conduct of Mr Duncan and Mr Stevens. Have they engaged, in collusion with the Husband, in a course of conduct designed to prejudice the Wife? Does the conduct of either of them give rise to a potential claim for relief by the Wife? Again, they are questions that cannot be answered on an interim basis.
6. There is sufficient uncertainty about the pool in this matter that I cannot be satisfied that the payments contended for by the Husband (and by Mr Stevens and Mr Duncan) are sufficiently free of controversy that is safe to cause those payments to be made at this stage.
7. There is no reason, in my view, to interfere with the orders already in place that protect the Suburb F property sale proceeds. The claims of Mr Duncan and Mr Stevens to those funds will be dealt with along with the other trial issues in this matter and the claims of any creditors are not any better protected if those funds are held in the trust account of Mr Duncan's law firm. I will dismiss the Amended Application in a Proceeding filed by him on 7 April 2025.
8. As discussed with the parties when this matter was before me on 29 April 2025, I will make a notation to the effect that it is intended to preserve sufficient funds from the Suburb F sale proceeds in trust to meet the amounts claimed by Mr Duncan and Mr Stevens.

1. Order 13 of the Orders made on 4 March 2025 restrains the Husband from dealing with G Pty Ltd, J Pty Ltd and N Pty Ltd, other than in the ordinary course of business without the written consent of the Wife unless he gives her 14 days written notice together with his reasons for the action that he proposes to take.
2. The Husband says that he wants that restraint removed insofar as it applies to J Pty Ltd and N Pty Ltd. He says that he wants to deregister both companies.
3. In support of his position, he relies upon Exhibit H6, the letter from his accountants giving him advice about the deregistration. That letter was apparently obtained by the Husband's solicitor based upon telephone instructions only. It is somewhat challenging to accept that a solicitor thought that that was an appropriate method to obtain evidence that, on the Husband's case, the Wife should just accept at face value.
4. There are consequences of that deregistration process because the companies owe debts to both the Husband himself and G Pty Ltd. There is also a possibility that if accrued losses are handled in a particular way, that could reduce or even eliminate the capital gains tax payable on the sale of the Suburb F property. They are all matters that the Wife has an interest in.
5. I accept the Wife's submission, and criticism, that she has had nothing to do with the instructions to the author of Exhibit H6. The Husband has been represented throughout this dispute. The Court is entitled to assume that he knew that the Wife should have, at the very least, been made aware of his plans in relation to the subject companies.
6. The Wife says that the restraints are appropriate. They do not prevent the Husband from doing things, they just oblige him to keep the Wife informed, before the event, of what he intends to do.
7. In a case where one of the Wife's complaints is that the Husband has taken steps, including incurring debt, without consulting her, the restraint does no more than is appropriate, in my view, to make sure that the Wife is aware of steps that the Husband may take when those steps could potentially affect her.
8. The Husband expressed some concern about urgency. He is the author of any delay in dealing with deregistration by going about things in the manner that he has.
9. I am not persuaded that it is appropriate to interfere with Order 13.

1. Orders 14 and 15 prescribe how the Suburb F sale proceeds are applied and protected.
2. The parties agreed on the payment of a number of debts relating to the sale of the Suburb F property.
3. In light of what has been said above about the payment of disputed debts, there is no reason to set aside Orders 14 and 15 of the Orders made on 4 March 2025.

1. Order 16 relates to disclosure.
2. It has been overtaken by the effluxion of time, and by subsequent orders made in relation to disclosure. There is no reason to interfere with it.
3. There is a likelihood in this matter that complaints about disclosure will inform, at the very least, arguments about costs.
4. I see no reason to interfere with that Order.

1. In relation to the Costs Order that was made on 4 April 2025 against the Husband:

(a) Order 18 of the Orders made on 4 March 2025 obliged the Wife to file any Application, Affidavit and submissions regarding costs by 4.00 pm on 18 March 2025; and

(b) Order 19 of the same Orders obliged the Husband to file any Response, Affidavit and submissions by 4.00 pm on 1 April 2025; and

(c) Notation D to the Orders made on 8 April 2025 reflect that the Wife filed an Application and an Affidavit regarding costs on 18 March 2025; and

(d) Notation F of the same Orders reflect that the Wife filed submissions regarding costs on 28 March 2025. They were filed outside the time prescribed in the previous Orders and therefore not read; and

(e) Notation G of the same Orders reflects that the Husband did not file any documents regarding costs.

1. The Husband filed an Application in a Proceeding on 3 April 2025 seeking that:

(a) the further operation of Order 19 of the Orders made on 4 March 2025 be stayed pending determination of the Husband's Application for Review; and

(b) in the alternative that the time limits for the filing of material pursuant to Orders 18 and 19 of the Orders made on 4 March 2025 be extended.

1. His solicitor filed an Affidavit on 3 April 2025. That Affidavit sets out a chronology of events. It deposes to receipt of the Wife's submission on 28 March 2025 (Affidavit of Mr O filed 3 April 2025, paragraph 12). What is missing though is any adequate explanation for the failure by the Husband to file any material in relation to costs by the time that he was supposed to.
2. Order 1 of the Orders made on 8 April 2025 requires the Husband to pay the Wife's costs of the interim hearing on 3 March 2025 in the sum of $4,033.75.
3. Order 2 of the same Orders dismisses the Application in a Proceeding filed on 3 April 2025.
4. The Court was entitled to rely upon the unchallenged evidence of the Wife filed on 18 March 2025. There is nothing in the Affidavit of the Husband's solicitor filed on 3 April 2025 that adequately explains the failure of the Husband to comply with Order 19 of the Orders made on 4 March 2025.
5. I am not persuaded that there is any reason why the Costs Order made on 8 April 2025 should be set aside.
6. Given the de novo nature of the Application for Review, I will say, in relation to costs:

(a) in her Affidavit, the Wife points out that she initially learned that the Suburb F property was sold when she checked the listing of that property online (Wife's Affidavit filed 18 March 2025, paragraph 15); and

(b) after request by her lawyers, she was only then informed that the property was sold, that the settlement was due to occur in March 2025, and that the Husband had already received the deposit; and

(c) the Wife deposes to a failure by the Husband to make disclosure, despite request, until the week before the interim hearing. She says that that disclosure promoted requests by her for further disclosure; and

(d) the Husband in his response sought to have a figure of $200,000 from the sale of the Suburb F property quarantined on an interim basis; and

(e) the Wife offered to settle the issue of costs but the Husband failed to respond to that offer.

1. For the Reasons that I have set out above, it should have been clear to the Husband that the disputes relating to his alleged debts, including that which is said to be a loan but which on the face of it is a contract to sell the Suburb H property, and the criticism raised by the Wife about his sale of the Suburb F property without keeping her properly informed, should have led him to the conclusion that the Suburb F proceeds would need to be secured until those disputes could be resolved.
2. His sense of urgency in relation to payment to Mr Duncan and Mr Stevens comes about solely because of what he says were promises made by him without consulting the Wife in any way. He has been represented at all relevant periods of time, and the Court is entitled to, and does, assume that he knew that he should have kept the Wife better informed of the financial transactions that I have referred to.
3. The Husband's conduct consequently made it entirely reasonable for the Wife to seek the interim hearing and to the extent that the Husband wished to pay the disputed debts now, he has been unsuccessful.
4. His explanation, through his solicitor, for his failure to comply with Order 19 of the Orders made on 4 March 2025 is unacceptable.
5. The quantum of the costs order made is calculated in accordance with the Wife's evidence, is relatively modest in the circumstances, and I am not going to disturb it.

1. Orders 4 to 11 of the Orders made on 4 March 2025 set out the process to be followed for obtaining joint valuations.
2. Order 8 of the same Orders obliged the parties to send joint instructions to each Single Expert.
3. The Wife wants to obtain a historical valuation of the Suburb F property as at the date that the Husband entered into the contract for the sale of it. She says that he sold the property for less than its market value.
4. The parties could not agree on the wording of the instructions to the Single Expert.
5. The competing draft largely came down to parties wanting to say things to the expert that supported their case, but which were unnecessary for the purposes of instructions. All I did was remove the unnecessary words.
6. Frankly, the failure of two parties, assisted by solicitors, to be able to settle joint instructions of this type is embarrassing. It speaks to unchecked ego, inflexibility and the absence of any genuine focus on resolving disputes.
7. In any event, it is unnecessary for me to do anything further about that issue.

1. In the Amended Application for Review filed on 24 April 2025, the Husband proposed an order to the effect that he would make "such disclosure about the Suburb H property as the Wife may reasonably require".
2. The Wife did not wish to be heard about that.
3. I am not going to make such an order. Both parties are represented and the Court is entitled to assume that they both understand their obligations in relation to disclosure. It is not necessary in my view to make an order that may leave open to these parties in particular, the capacity to squabble over what is "reasonably" required. The Court does not have to order people to do that which they are already obliged to do.

1. I have expressed during the course of the hearing of this matter, my concern that the quality of the communication between the parties, through their solicitors, is so poor that it has already resulted in an increase in both costs and animosity in this matter. That is the exact opposite of what is expected by the Court, and it is inconsistent with the obligations of parties and legal practitioners as set out in the Central Practice Directions.[2]
2. I was told in submissions that Exhibit H6 was obtained by the Husband's solicitor calling the author of that document on the telephone. I remarked that it was a shame that the Husband's solicitor did not call the Wife's solicitor as well to discuss that step. I was told that communication in this matter "is not great".
3. Solicitors are not excused from their obligations to the Court, or their obligations to be civil to each other pursuant to the Legal Professional Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW)[3], because they find communication to be difficult. Solicitors who refuse to engage in civil, dispute-resolution focused communication with each other in the name of professional representation of their clients are, in my opinion, indulging their own egos, which is quite improper.
4. I would encourage each of the parties, and their solicitors, to focus on what can be done from this point onwards to narrow issues and resolve disputes.
5. I would encourage the parties, and their solicitors, to reflect upon the cost of taking up some of the arguments that have been referred to above.
6. I will make orders in the terms set out at the start of these Reasons.

I certify that the preceding one hundred and seventy-six (176) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Shoebridge.

[1] Federal Circuit and Family Court Rules (Family Law) 2021 (Cth) r 8.13.

[2] Federal Circuit and Family Court of Australia, Central Practice Direction - Family Law Case Management, 1 May 2024, Sch A.

[3] Legal Professional Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) r 3.1 and r 4.1.2.