Long & Graves (No 2) [2025] FedCFamC2F 1316 (18 September 2025)

1. The respondent relied on the following:[4]

(a) Her amended Response to Initiating Application filed on 9 October 2024;

(b) Her financial statement filed on 9 October 2024;

(c) Her affidavit filed on 9 October 2024 ("trial affidavit");

(d) Her affidavit filed on 9 May 2025 ("updating affidavit");

(e) Affidavit of Mr X ("Mr X") (respondent's brother), filed on 9 October 2024;

(f) Affidavit of Mr Y, Z Valuations (single expert real estate valuer) filed on 4 October 2024;

(g) Her case outline filed on 17 October 2024, ahead of the previous final hearing date;

(h) Minute of orders sought by the respondent, tendered before closing submissions;[5] and

(i) Spreadsheet, setting out the effect of the orders sought by the respondent.[6]

1. The parties also relied on a joint chronology / statement of agreed facts.[7] The parties agreed I could rely on their updated costs notices filed during the course of the final hearing.
2. A small number of documents and an audio recording produced pursuant to subpoena were tendered and identified as exhibits. As made clear to the parties at the commencement of the hearing, annexures to affidavits which were not tendered and marked as exhibits do not form part of the evidence before me.

Standard of proof and consideration of the evidence

1. Section 140 of the Evidence Act 1995 (Cth) ("Evidence Act") sets out that the standard of proof in these proceedings is to a balance of probabilities.
2. I have read and considered all of the evidence adduced by the parties. If I have not mentioned a piece of evidence or an argument presented at the hearing that does not mean I have not considered it. As the High Court said in Whisprun Pty Ltd v Dixon:[8]

A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.

1. I will make some preliminary observations in relation to the evidence of the parties and witnesses before considering their evidence in more detail as relevant to each of the issues for determination and the required statutory considerations.

1. The applicant was a polite and responsive witness who presented with a sound recall of the parties' financial history and property dealings. His affidavit evidence was generally consistent with tendered documents and was not undermined by cross-examination.

1. Mr U is one of the respondent's brothers. He gave evidence in support of the applicant and attended at court to be cross-examined. He was a cooperative and responsive witness, his evidence was not successfully challenged by cross-examination, and I accept his evidence as referenced in my reasons.

1. I found the respondent to be an unreliable witness.
2. When cross-examined, the respondent gave evidence on more than one occasion that she has a poor memory and cannot remember things. At one point she attributed her poor memory to medication. However, she did not adduce expert medical evidence to support that assertion. Notably, the respondent's memory repeatedly failed when asked questions raising doubt about her evidence or her conduct. This was in contrast to other aspects of the respondent's evidence under cross-examination in respect of which she was able to recall details readily. I do not accept the respondent's evidence of poor memory but even if true, the respondent's poor memory would make her evidence unreliable.
3. Under cross-examination, the respondent attributed responsibility for deficiencies in the conduct of her case to her lawyers. She attributed responsibility for information provided to Westpac in her loan application to her broker. She distanced herself from an email that appeared to be sent by her to the applicant's lawyers on 30 October 2024, giving evidence it may have been sent by her brother (Mr X) on her behalf. She said he had been "doing" her correspondence, in consultation with her, and "helping the whole way through". Yet, when asked about this under cross-examination, Mr X denied sending such an email.
4. As explained later in my reasons, I find the respondent did not make full and frank disclosure in respect of her financial dealings after separation.
5. When cross-examined, the respondent refused to make obvious concessions. For example, she did not concede the parties had a common goal of building a wealth together, maintaining they "had separate goals". I do not accept that evidence, finding the parties acquired and developed their property portfolio together. When asked if the name of the trustee company, D Pty Ltd, was a combination of both of their first names, the respondent answered this was only because she could not think of anything else. This impressed me as an effort to avoid any suggestion the creation of the trust was a joint endeavour rather than an honest explanation.
6. Evidence adduced during the final hearing[9] indicated the respondent made a false statement to police on 29 August 2022, when declaring she had nothing to do with the sale or settlement of the parties' former family home at B Street, Town C in Queensland ("B Street") and that she had no contact with the mortgagee other than when the parties initially purchased that property.[10]
7. Unless otherwise stated, where the parties' evidence is at odds I prefer the evidence of the applicant where it is not improbable or inconsistent with other evidence.

1. Mr X is another of the respondent's brothers. He gave evidence in support of the respondent and attended at court for cross-examination. He was a disrespectful and belligerent witness. It was clear from the respondent's evidence Mr X had been actively involved in the conduct of her family law matter. It was quickly apparent from what he said in the witness box that he had discussed aspects of what had transpired during the final hearing with the respondent. I put no weight on his evidence.

1. Mr V of W Valuations undertook a valuation of F Pty Ltd, on a net asset basis. The parties adopted his valuation and he was not required for cross-examination.

1. Mr Y of Z Valuations prepared a single expert valuation of real estate held by the trust at H Street, Suburb K ("H Street") on an "as is" basis. Whilst the value of H Street had previously been a matter in dispute, the parties ultimately adopted Mr Y's valuation and he was not required for cross-examination.

1. None of the other single expert witnesses were relied upon, the parties' adopting agreed values for their real estate based on the single expert valuations.

1. I set out the background to the parties' relationship only briefly. I otherwise rely on the joint chronology.
2. The parties commenced their relationship in March 1999. The applicant was at that time a tradesman, working on a self-employed basis, trading as F Pty Ltd. The respondent was employed as an allied health worker.
3. The applicant contends the parties commenced cohabitation in early 2001, initially living at a property in Suburb AA owned by the applicant's friends, and then moving together into a property purchased in the respondent's name at BB Street, Suburb P ("BB Street"). The respondent asserts that the parties did not commence cohabitation until 2002, when she says they moved into a home constructed on a property they had purchased together at L Street, Suburb M ("L Street"). However, as the parties conceded through their counsel, little turns on the determination of this dispute given the duration of the parties' de facto relationship means no jurisdictional issue arises. It is the analysis of the parties' contributions that is important, rather than the date of cohabitation.[11]
4. The parties' two children were born in 2010 and 2013. The respondent left paid employment to care for the children and has not subsequently returned to paid employment.
5. The parties' relationship broke down in September 2021. They lived separately and apart under the one roof until January 2022, from which time they lived apart.
6. The applicant continues to operate and derive an income from F Pty Ltd. The respondent identifies her occupation in her financial statement as "home maker". The parties each receive income from their investments in real property and shares.
7. This proceeding was commenced by the applicant filing an Initiating Application on 23 February 2023, initially in respect of parenting matters. Property matters were later introduced to the proceeding by the applicant's Amended Initiating Application filed on 29 August 2023.
8. The proceeding has been acrimonious. There were various interlocutory and interim hearings before the matter reached a final hearing. A further application was filed by the applicant and determined after judgment was reserved, in relation to the alleged publication of material online. Written reasons were provided in support of my determination to dismiss that application.[12]

1. The matter was initially listed for final hearing on 21 October 2024 but adjourned to 12 May 2025 when the respondent failed to attend the final hearing and her legal representatives were unable to reach her. The respondent has subsequently cited medical reasons for her non-attendance at court on 21 October 2024 but did not adduce medical evidence at the final hearing in support of that claim.
2. The respondent then filed an Application in a Proceeding on 1 May 2025, seeking to further adjourn the final hearing for medical reasons. That application was listed on 5 May 2025 but adjourned that day to provide an opportunity for the filing of an application for the appointment of a litigation guardian by the respondent or her solicitors. On 6 May 2025 the court was informed neither the respondent nor her solicitors sought the appointment of a litigation guardian for the respondent. Her application for the further adjournment of the final hearing was refused but an extension of time was granted for the respondent to file an updating affidavit pursuant to previous orders. Oral reasons were provided for those determinations.
3. The final hearing ran for two days, on 12 and 13 May 2025. Both parties were represented by counsel, the respondent pursuant to the Commonwealth Family Violence and Cross-examination of Parties Scheme ("the scheme"). The parties attended at court in person and were both cross-examined. Those witnesses required for cross-examination also attended at court in person.
4. The respondent was provided regular breaks to lie down and rest, to accommodate health issues she says she experiences, notwithstanding the absence of expert medical evidence in respect of her health.

1. Significant amendments to Part VIIIAB of the Act, made by the Family Law Amendment Act 2024 (Cth) ("Amendment Act"), commenced operation on 10 June 2025. Those amendments do not apply to the determination of this proceeding, being a proceeding instituted before 10 June 2025 in respect of which a final hearing commenced before 10 June 2025.[13] All references to provisions of Part VIIIAB of the Act are references to those provisions in effect at the time of the final hearing.
2. Before making any order altering the interests of the parties in property, section 90SM(3) of the Act requires that I must be satisfied, in all the circumstances, it is just and equitable to do so.[14] If I am so satisfied, I then have power under the Act to make such order as I consider appropriate, after considering the matters set out in sections 90SM(4) and in section 90SF(3) so far as they are relevant. The Full Court has emphasised the nature of the task required by section 90SM is "in essence, a broad discretionary assessment, which is neither an accounting nor mathematical exercise and which, effectively as a corollary, requires a "broad-brush approach".[15]
3. Before considering if it is just and equitable to make an order altering the parties' interests in property, I must first identify the existing legal and equitable interests of the parties in property according to common law and equitable principles.[16]

Existing legal and equitable interests in property

1. Set out below are those assets (including superannuation) and liabilities the parties agree they had at the time of the final hearing, agreed add backs which I will return to explain, and also those assets, liabilities and proposed add backs in dispute:

Balance of net proceeds from sale of B Street, held in trust

Westpac cash investment account #...87 (linked with share portfolio)

Westpac loan, obtained after separation: ($733,486)

Westpac account #...80, including monies drawn against Westpac loan after separation

Inclusion on balance sheet and account balance disputed

Monies withdrawn by respondent from account #...87 on 17 August 2022: asserted add back of $60,000

Monies withdrawn by respondent from account #...59 in October and November 2022: asserted add back of $110,000

Withdrawal from respondent's superannuation in June 2024: asserted add back of $24,000

Respondent's post-separation loan and bank balance

1. On 1 May 2024, by which time this proceeding had been on foot for over eight months, the respondent unilaterally obtained a loan from Westpac in the amount of $734,486.10, secured against O Street ("the Westpac loan"), without the knowledge of the applicant. She gave evidence the loan was to be secured against L Street but was registered against O Street by Westpac in error. Nothing turns on this in my view. The respondent agreed the applicant only learned of the Westpac loan when updated title searches were obtained for this proceeding.
2. The respondent deposed she applied for the Westpac loan to meet the cost of quoted repairs to L Street, H Street and N Street and to meet her living expenses and legal costs. The applicant disputed the quoted works were required, including (for example) expensive window replacements.
3. The parties agree the Westpac loan has a current balance owing of $733,486. I will include the loan on the balance sheet being an undisputed secured loan.
4. The respondent gave evidence the balance of her Westpac account ending #...80 ("account #...80") is an offset account which holds funds drawn against the Westpac loan not yet expended by her. Orders made by consent on 4 September 2024 recorded the balance of account #...80 at that date to be approximately $600,300. At the time of her trial affidavit, the respondent deposed the account then held $594,045 (rounded). The respondent provided an updated balance for account #...80 at the conclusion of the hearing, in an updated spreadsheet tendered on her behalf, being $507,278.[17] However, she did not adduce evidence to support that updated figure, including in her updating affidavit filed very shortly prior to the final hearing, by her oral evidence, or by tendering a current statement.
5. On 7 August 2024, a number of injunctions were made by consent restraining the respondent's financial dealings, including an order restraining her from:

reducing the balance of the funds standing in credit in the Westpac [account #[...]80] below $379,000 without the written consent of the Applicant or a Court order;

1. On 4 September 2024, that order was varied by consent in the following terms:

The respondent be and is hereby restrained by injunction from reducing the balance of the funds standing in credit in the Westpac account number ending [...]80 below $450,000 without the express written consent of the Applicant or a Court Order.

Noting that the respondent's Westpac account number ending [...]80 contains a balance of approximately $600,300, any expenditure by respondent of the $150,300 difference between that balance and the amount of $450,000 restrained pursuant to order 1 herein shall be categorised as a part property distribution to the respondent.

1. Whilst it is clear the characterisation of sums received by way of partial property settlement can be reconsidered at a final hearing,[18] neither party made submissions I should reconsider the characterisation of those monies even after being prompted for submissions in respect of the effect of those interlocutory orders.
2. If I accept the figure asserted by the respondent representing the current balance of account #...80, at $507,278, the order made on 4 September 2024 provides for $93,022 to be categorised as a part property distribution to the respondent (being $600,300 less $507,278). Where evidence was not adduced in support of that current balance or of how the further monies were expended by the respondent, I prefer to include the balance of account #...80 as reflected in the orders made on 4 September 2024 (being $600,300) on the balance sheet. This approach has the same effect of adding back the sum of $93,022 but allows that the figure provided by the respondent as the current balance of her Westpac account, which was not supported by evidence before me, may not be accurate.
3. In respect of the application of the balance of the sum borrowed by the respondent after separation not already provided for on the balance sheet (being approximately $134,000, rounded), the respondent gave only the following evidence in her trial affidavit:

My intention was to drawdown funds from the loan monies that I needed to meet repair costs and living expenses and legal costs. At the current date the total of $139,431.37 has been drawdown from the loan funds including an additional amount of $4000 which was paid to me by Westpac bank as compensation for errors made by the bank during the settlement process

1. The respondent provided an accounting in respect of some of those monies in her case outline as follows:

The Respondent's bank accounts reveal that the difference of $139,500 is accounted for, in the most:

1. Approximately $179,672 applied towards restorative works for [H Street, N Street], and [L Street] (window repair works), of which $154,539 were refunded to the account, leaving a balance of $25,133;
2. Approximately $48,051.98 applied to everyday living expenses incurred by the Respondent, including land tax payable and shareholding purchases and payment of her Mastercard credit card; and
3. Approximately $66,253 applied to the payment of legal fees and disbursements.

1. However, she did not give evidence to this effect on affidavit or tender bank statements or other documentary evidence to support that accounting. In those circumstances, and where a significant but uncertain proportion of those monies is said to have been expended on legal costs, I will take into account pursuant to section 90SF(3)(r) the respondent's unaccounted use of these funds which form part of the Westpac loan I have determined to include as a liability on the balance sheet.

1. F Pty Ltd was valued by a single expert valuer at $422,351, including a related party loan of $350,000 owed by the trust. The respondent initially opposed the loan of $350,000 being included as a liability on the balance sheet, contending it was a loan "on paper" only. Appropriately, she ultimately conceded it should be included as a liability of the trust on the balance sheet, given it had been included as an asset in the value of F Pty Ltd.[19]

1. The respondent has retained possession of Motor Vehicle 1 owned by and previously registered to F Pty Ltd but which the applicant deposes is now unregistered. The single expert valuation for F Pty Ltd was undertaken adopting a net asset approach, using the values for material assets provided by the applicant, including a value of $30,000 for Motor Vehicle 1.[20] The parties did not adduce expert evidence as to the value of Motor Vehicle 1 or of the costs of having it re-registered. The applicant seeks an order the respondent retain Motor Vehicle 1 "net of any taxation liabilities arising from the transfer of [Motor Vehicle 1] to the Respondent". He did not adduce evidence of what that tax would be. The respondent deposes she does not wish to retain Motor Vehicle 1 and seeks it be returned to the applicant and retained by him. I will therefore make an order requiring the respondent to return Motor Vehicle 1 to the applicant within 14 days of the making of final orders, to a location nominated by the applicant, at the respondent's expense.

1. The respondent seeks to include on the balance sheet, a credit card liability of $2,690. Where counsel for the respondent acknowledged this was a post-separation liability and there was no evidence given by the respondent as to what this debt related to, I do not include it on the balance sheet.

Westpac share portfolio / cash investment account

1. The parties disagree on the value to be attributed to the respondent's Westpac share portfolio. The respondent seeks that it be included on the balance sheet at its value as at the date of the final hearing, which she asserted to be $209,343, relying on a screen shot she said was printed from her online share trading account.[21] The applicant seeks to attribute a value of $379,858 to this share portfolio, being a figure he explains is calculated from a portfolio valuation as at 30 June 2024[22] and subpoenaed records identifying the subsequent purchase and sale of shares in that portfolio.
2. The injunctions imposed on the respondent by order 1 of the orders made on 7 August 2024 restrained the respondent from:

selling, transferring or disposing of any shareholding held in the Respondent's name or in which the Respondent holds an interest other than for the purpose of purchasing and selling shares within the portfolio with any proceeds from the sale of shares to remain within the portfolio, without the written consent of the Applicant or a Court order; and

selling, disposing of or otherwise dealing with any real property or shares held in the Respondent's name or possession, and/or held in the name of the [E Trust], or in which the Respondent holds an interest, without the written consent of the Applicant or a Court order.

1. The orders made on 7 August 2024 also provided:

On the first Friday of each calendar month, the Respondent provide to the Applicant, via the parties' respective lawyers, an accounting of any purchase or sale of any shares within her share portfolio within the preceding month.

1. The applicant asserts subpoenaed documents revealed the respondent had subsequently sold shares and transferred shares so they are held by her outside the Westpac share portfolio. The respondent agreed some shares had been sold pursuant to a sale order she forgot to cancel and the sale proceeds had been paid to her linked Westpac Choice offset account. In response to requests for updated disclosure, the respondent produced only spreadsheets she said were downloaded from Westpac's online share trading platform. When cross-examined, the respondent gave evidence she had bought and sold shares as recently as the week prior to the final hearing, yet transaction statements for the Westpac share portfolio were called for during the final hearing, for November and December 2024 and for 2025 up until the date of the final hearing, and were not produced.
2. Also in dispute is the value to be attributed to the Westpac cash investment account ending #...87. The applicant asserts the respondent has not provided disclosure to identify the current balance of that account. The screenshot purporting to show the current value of the share portfolio does not appear to show the value of the linked account.[23]No value is attributed to the account in the spreadsheet tendered by the respondent in closing.[24]
3. Pursuant to Part 6.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules"), both parties were required to make full and frank disclosure of their financial circumstances. I find the respondent failed to make full and frank disclosure of her dealings with the Westpac share portfolio, both in accordance with her general duty of disclosure and pursuant to the order made on 7 August 2024. The applicant has been left to try to piece together share transactions made by the respondent from subpoenaed records and the spreadsheets provided by the respondent some months before the final hearing. The Full Court has made clear that where there has been a deliberate non-disclosure by a party, the court should not be "unduly cautious" about making findings in favour of the other party[25] and can draw such adverse inferences from the non-disclosure as can be supported by the evidence before the court.[26] The duty of disclosure is absolute and even accidental non-disclosure may warrant the erring of generosity to a party who might be otherwise seen to be disadvantaged by the lack of complete candour.[27]
4. Taking this approach, I adopt the value of the Westpac share portfolio, reflected in the tendered Westpac Portfolio valuation dated 30 June 2024[28] which identifies all shares held by the respondent as at that date and the balance held in the linked Westpac cash investment account #...87, with a total combined value of $387,706, shortly prior to the orders made on 7 August 2024. I prefer this approach to the reconstruction proposed by the applicant, which does not allow for the change in value of shares.

1. The respondent deposed in her updated financial statement filed on 9 October 2024 to holding superannuation with a balance of $806,622. It is not disputed the applicant issued a superannuation information request to the trustee of the respondent's superannuation fund and was provided with information about her interest including balance as at 26 March 2025 of $862,957.[29] By way of submission and the spreadsheet tendered on her behalf, the respondent asserted her superannuation has a current balance of $808,724.[30] However, evidence was not adduced to support that assertion, to contradict the evidence of the applicant that the respondent had not provided a current superannuation statement as at the date of his updating affidavit, or to contradict the value provided by the trustee in response to the applicant's superannuation information request. I therefore adopt the value provided by the trustee for the respondent's superannuation shortly before the final hearing.
2. I will return to consider an add back proposed by the applicant in respect of funds withdrawn by the respondent from her superannuation.

1. The respondent seeks to include land tax of $20,165 as a liability on the balance sheet. Documentary evidence was not adduced confirming the land tax she asserts is owed. Evidence was not adduced as to which property or properties the alleged tax relates to and for what period. I therefore do not include the land tax asserted by the respondent as a liability on the balance sheet.

1. The respondent also seeks to include "rates arrears" of $7,126 as a liability on the balance sheet but her counsel conceded no evidence had been adduced to support that liability. I therefore do not include this item on the balance sheet.

1. The respondent seeks to include on the balance sheet, an asserted liability of $73,691 described as an "ATO tax debt" (identified in her financial statement as a personal liability) along with an asserted liability of $11,507 described as "BAS" (identified in her financial statement as owed by the trust). Her counsel conceded evidence had not been adduced by the respondent in respect of those purported liabilities. In respect of the trust, the applicant agreed he will be responsible for any taxation owed by the trust if he assumes control of the trust as he proposes. Given the lack of evidence in respect of these purported liabilities and noting the applicant's position in respect of the trust, I will not include the asserted ATO tax debt or BAS as liabilities on the balance sheet.

1. The well-established legal position at the time of the final hearing was that "adding back" of funds expended prior to trial is exceptional and falls into three categories: where the parties have expended money on legal fees; where there has been a premature distribution of matrimonial assets; and in the case of waste or wanton, negligent, or reckless dissipation of assets.[31]
2. In Trevi & Trevi[32] a subsequent Full Court endorsed this approach adding (citations omitted):

However, the Full Court also made it clear that an addback does not necessarily occur whenever "a party has expended money realised from the disposition of assets that existed as at the date of separation", the Full Court describing such a proposition as "unduly simplistic". An earlier Full Court made the same point, saying that adding back is "the exception rather than the rule".

The fundamental precept that addbacks are exceptional, reflected in the decisions just referred to, also mirrors what has been said in earlier decisions of the Full Court that, for example, "the Family Court must take the property of a party to the marriage as it finds it" at trial. An important parallel proposition is that the parties do not "go into a state of suspended economic animation" after separation. Thus, reasonably incurred expenditure does not usually come within accepted categories of addback.

Two fundamental premises emerge from Omacini and the authorities preceding it. First, "adding back" is a discretionary exercise. When the discretion is exercised in favour of adding back, it reflects a decision that, exceptionally, in the particular circumstances of a case, justice and equity requires it. The second premise is its corollary: in cases that are not "exceptional" justice and equity can be achieved, not by adding back, but by the exercise of a different discretion - usually by taking up the same as a relevant s 75(2) factor. Indeed, it has been said that the latter is "a course which is, perhaps, technically more correct" than adding back to the list of existing interests in property.

1. More recently, the Full Court in Candle & Falkner[33] considered these and other key authorities in relation to the law relating to adding back "notional property" and confirmed they established four relevant propositions, which continued to apply at the time of this hearing:

... First, adding back property which has been distributed and spent is discretionary, and reflects an exceptional exercise of the discretion as an "accounting" or "balance sheet" exercise for the purposes of ss 79(2) and (4) to achieve justice and equity between the parties. Secondly, the nature of the expenditure reflected in add backs is relevant, and reasonably incurred expenditure does not usually come within accepted categories of addback. Thirdly, the decision in Stanford, followed by Bevan, does not necessarily require the conclusion that adding back notional property is per se an error, but proper consideration must be given to existing interests in property. Fourthly, in cases which are not exceptional, expended interim distributions can be taken up under s 75(2) rather than as part of the balance sheet exercise.

[Emphasis in original]

1. After the hearing of this matter, in a judgment relating to the application of Part VIII after the implementation of the Amendment Act, the Full Court in Shinohara & Shinohara[34] described the use of add backs on a balance sheet, even prior to the Amendment Act taking effect, as a "conceptually dubious practice". Nevertheless, it was a practice that was regularly adopted prior to the Amendment Act taking effect, it was the way in which the parties presented the case before me and it is the approach I have adopted in respect of agreed add backs and the Westpac share portfolio and linked cash management account. Had I not done so, I would have taken up those matters accepted as add backs as matters relevant pursuant to section 90SF(3)(r) to achieve justice and equity in this case.

1. The parties agree they each received $100,000 from the net proceeds from the sale of B Street in September 2022 by way of interim property distribution. It is agreed and appropriate for those sums to be included on the balance sheet and to form part of their respective entitlements when altering their property interests.

1. The respondent admitted she withdrew $24,000 from her superannuation in June 2024 which she intended to apply to the cost of surgery. She gave evidence she has not yet undertaken the surgery and these monies were held in one of her Westpac bank accounts. She agreed funds from those accounts have been used to purchase shares. Where it was not put to the respondent the funds withdrawn from her superannuation are not reflected in other assets on the balance sheet as she asserted (the loan account, offset account or shares purchased with funds from the offset account), I will not add this sum back.
2. I do not add back any differential between earlier superannuation balances provided by the trustee and the respondent as sought by the applicant, where evidence was not adduced of further withdrawals made by the respondent from her superannuation and recognising the value of superannuation fluctuates.

1. The applicant sought the following sums withdrawn by the respondent in cash from her bank accounts in 2022 be added back and considered notionally alongside the parties' other assets, as sums unilaterally and prematurely applied by the respondent that would otherwise have been available to the parties:

(a) $60,000 in cash withdrawn by the respondent from her Westpac cash investment account ending #...87 on 17 August 2022; and

(b) $110,000 in cash withdrawn by the respondent from her Westpac account ending #...59 between 20 October 2022 and 2 November 2022, as follows:

(i) 20 October 2022 - $20,000;

(ii) 27 October 2022 - $50,000; and

(iii) 2 November 2022 - $40,000.

1. The respondent admitted she withdrew $60,000 in cash on 17 August 2022 and deposed she applied those funds to purchase furniture and bedding, change the locks and upgrade security systems at L Street, purchase a new pool robot, fund a holiday with the children to Region Q (at a cost of approximately $15,000), and meet everyday living expenses and costs. I do not accept the respondent's evidence in the absence of any explanation as to why such large sum was withdrawn in cash and why the expenses deposed to were not paid directly from her bank account. Rather than add back this sum to be considered alongside the parties' other assets, I take into account pursuant to section 90SF(3)(r) the respondent had the benefit of $60,000 withdrawn from her Westpac cash investment account after separation, the application of which was not adequately explained by her.
2. The respondent also admitted withdrawing a total of $110,000 in cash as asserted by the applicant. In respect of those withdrawals, applying the required standard of proof to the evidence before me:

(a) I do not accept the evidence of the respondent and her brother, Mr X, that she paid him $50,000 in cash in October 2022 in repayment of a loan he said he extended to her in May 2022, including $43,002 delivered to her by Mr X in cash on 18 May 2022. To be clear, I do not accept their evidence of the purported loan or of the asserted repayment of that loan, finding it implausible the respondent and Mr X each delivered such large sums of cash to one another;

(b) I do not accept the evidence of the respondent she gave $10,000 to each of the children to spend for Christmas (a total of $20,000), who were at that time aged nine and 12 years old. If she did in fact make those gifts, I find they were a reckless dissipation of assets given the age of the children, even taking into account the wealth of the parties;

(c) I do not accept her evidence $29,575 was expended on unspecified repairs to L Street and N Street undertaken by "CC Company". The applicant disputed the invoices purportedly issued by CC Company, produced by the respondent via his solicitor, alleging the purported invoices recorded an invalid ABN and did not include a GST charge. In response to that claim made by the applicant, the respondent did not adduce the invoices or other evidence to support the repair expenses she alleges were paid in cash;

(d) I do not accept her evidence of $3,000 paid to purchase a dog for the children or of an unspecified cash amount spent on a city trip with the children for a week in January 2023, in the absence of details and corroborating evidence to support that assertion; and

(e) I accept $1,975 was used to purchase a laptop for one of the children where that evidence was not challenged by the applicant.

1. Given these findings, I take into account pursuant to section 90SF(3)(r) the respondent had the benefit of approximately $108,000 withdrawn from her savings after separation in late 2022, the application of which was not adequately explained by her as reasonably incurred expenditure. I prefer this approach to adding back these sums to be considered alongside the other party's assets, being the preferred approach in cases which are not "exceptional", as expressed by the Full Court decisions I have referred to. I distinguish this from those add backs I have allowed, which had been the subject of prior agreement by the parties.

1. Neither party sought any component of the parties' legal fees be "added back" and considered notionally alongside the parties' assets, at least not separately from the part property payment of $100,000 they each received and agreed to being added back. As mentioned, I will take into account pursuant to section 90SF(3)(r) the respondent's admission, in her case outline, that a significant proportion of monies drawn down against the Westpac loan have been expended on legal costs.

1. Taking into account the above findings and add backs, the adjusted balance sheet is as follows:

Balance of net proceeds from sale of B Street held in trust

Westpac share portfolio and linked Westpac cash investment account #...87 as reflected in last disclosed portfolio valuation[35]

Account #...80 (including monies withdrawn from that account added back per order made 4 September 2024)

1. Whilst the parties do not hold assets jointly, L Street was previously held in joint names, before being transferred to the respondent. They have taken out joint loans, which were used to fund the purchase and development of real property. They had at least one joint offset account. Real properties registered in each of their names were used as security for borrowings to fund the purchase and development of property held in the name of the other. They enjoyed the common use of L Street and B Street, in which they lived together as a family with their children. They both seek orders be made altering their interests in property. On this basis, I find the requirements of section 90SM(3) are satisfied and it is, in all the circumstances, just and equitable for there to be an alteration of property interests between them.

1. The parties each asked the court to take a global approach to the alteration of their property interests, considering their non-superannuation and superannuation interests in a single "pool". I am satisfied this is appropriate given the value of the parties' superannuation interests in the context of the value of their other assets. I therefore consider the contributions made by both parties and the matters relevant to section 90SF(3) to their non-superannuation and superannuation assets together.

1. In exercising my discretion to make an order that is in all the circumstances just and equitable, sub-section 90SM(4)(a), (b) and (c) of the Act, being the provisions relevant to this case, require me to consider the following matters:

(a) the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:

(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or

(ii) otherwise in relation to any of that last‑mentioned property;

whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and

(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:

(i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or

(ii) otherwise in relation to any of that last‑mentioned property;

whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and

(c) the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent...

1. The classification of contributions by reference to terms such as "initial contributions", "contributions during the relationship", and "post-separation contributions" can be helpful when undertaking this task. However, in determining what orders are to be made, I am required to approach the assessment of contributions holistically, by analysing the nature, form and characteristics of those contributions with reference to the particular circumstances of this particular relationship.[36] This process involves the exercise of a wide discretion, not the performance of a mathematical or accounting exercise[37] and should be undertaken without over-zealous attention to the ascertainment of contributions.[38] All contributions are to be weighed collectively, not compartmentalised with some contributions weighed against others.[39]
2. The applicant contends the parties' initial contributions were "on par". The respondent contends the parties' contributions should be assessed at 53.5% in her favour with weight to be given to the disparity in the parties' initial contributions, the monies she inherited shortly prior to and after separation and her care of the children after separation. I have considered the parties' contributions with these submissions in mind.

1. The parties commenced their relationship in March 1999. At that time:

(a) The applicant owned a property at EE Street, Suburb FF, ("EE Street") which was purchased in 1995 for $75,000. The applicant deposed that in 1999 the loan secured against EE Street had a balance owing of approximately $45,000. EE Street was sold in early 2000 for $142,000. The applicant deposed to net proceeds of sale of $79,973 being applied to the purchase of L Street in early 2000 and I accept that evidence;

(b) The applicant also owned a vehicle, tools, furniture and household items and had superannuation which he said was then valued at "approximately $20,000";

(c) The respondent owned O Street, in which she was living. She had purchased that property for $118,000 in 1998. The parties agree O Street was subject to a loan secured by mortgage. The applicant deposed that to the best of his recollection O Street "paid itself off", from rental income, "five years or so" into the parties' relationship. The respondent deposed the loan was repaid and the mortgage discharged in July 2003, which is broadly consistent with the applicant's evidence. Evidence was not adduced of the value of O Street when the parties commenced their relationship, began acquiring property together or when they began living together. Evidence was not adduced of the amount owing pursuant to the mortgage at those times. I am therefore unable to assess the equity in O Street during that period; and

(d) The respondent also owned a vehicle, furniture and household items and had superannuation entitlements which she estimated at "about $50,000".

1. In December 1999, BB Street was purchased in the respondent's name for $105,000. The applicant deposed the parties each contributed $15,000 to the purchase price and the balance was funded by a loan. This was not conceded by the respondent, who deposed BB Street was purchased using her savings and a loan. She did not quantify the amount of the deposit or identify the source of her savings. The applicant deposed BB Street was leased for a period and then occupied by the respondent's parents, before the parties moved in, in late 2001. He deposed he completed and paid for renovations to BB Street between 2001 and 2002, which evidence was not challenged by the respondent. I prefer the evidence of the applicant in respect of the purchase of BB Street given my findings in respect of the parties' credibility and where the applicant provided detail in respect of the deposit paid and the respondent did not. Even had I not made such a finding, a contribution made by the respondent to the deposit for BB Street more than 25 years ago, which became the parties' home and where the applicant subsequently undertook renovations to the property, is not a matter I would give significant weight.

1. In March 2000, the parties purchased L Street in joint names, for $116,500, at that time a block of land. Settlement of the purchase was effected in June 2000. The applicant deposed he contributed approximately $94,000 to the purchase price, providing details of the payments he made, including from the net proceeds from the sale of EE Street. I accept that evidence where the respondent deposed she cannot recall with detail how the L Street purchase was funded.
2. In 2002, a home was constructed on L Street. The applicant asserts he contributed 75% of the building costs and undertook all work on construction of the house and managing the build site. The respondent agreed the applicant undertook most of the work at L Street but denied he undertook all the works listed in his affidavit, claiming the house construction was overseen by her brother, Mr U. However, this evidence was contradicted by Mr U's evidence. In respect of the L Street build Mr U gave oral evidence, "All I did was a bit of carpentry, tiling, and that's it. And sort of guided [the applicant] on bits and pieces". Mr U did not agree he had supervised the workers on the build. He gave evidence the parties were recorded as owner-builders and he observed the applicant to undertake or organise and manage the majority of construction and works at L Street, although Mr U agreed when cross-examined, he was not always present. I prefer the evidence of the applicant in respect of the work he said he undertook at L Street, which was supported by the evidence of Mr U.
3. The parties moved into the newly constructed home at L Street in 2002.
4. The applicant deposes L Street was incomplete when they moved in. I accept he undertook work to complete construction and improve the property over the next seven years, including landscaping, installing a pool, and construction of a driveway.
5. L Street was transferred to the respondent's sole name in January 2005. I accept the transfer was for the purpose of asset protection.

1. BB Street was renovated and sold in 2003 for $191,000 and the net sale proceeds were applied to purchase a commercial factory at N Street. The applicant deposed the balance of funds to purchase N Street came from joint savings and a loan. He deposed N Street was then tenanted with rental income applied towards the loan, along with money from his business and rental income from O Street, until it became positively geared with rental increases and a reducing mortgage. N Street forms part of the parties' current property portfolio and is now valued at $1,150,000. I accept the applicant's evidence of maintenance work he undertook to N Street, which was not disputed by the respondent save for his estimate of the value of those works which I do not put any weight on.
2. In February 2005, the trust purchased a commercial factory at H Street for $495,000. The applicant recalled the parties paid a 10% deposit and the balance was funded by a loan, likely secured by L Street. The respondent deposed she paid the deposit from cash savings, drew down against the loan secured against N Street and obtained a personal loan from Westpac to fund the purchase. Either way, the parties funded the purchase from assets acquired and funds borrowed during their relationship. H Street remains an asset of the trust. The parties have adopted the value of H Street as the value of the trust, less the loan they now both accept is owed to F Pty Ltd by the trust. It is not in dispute the applicant undertook maintenance work to H Street as needed, although I accept some maintenance work may have been undertaken by paid services.
3. In 2012, the applicant established F Pty Ltd.
4. In April 2014, the parties purchased an apartment and shop at DD Street, Suburb HH ("DD Street") via the trust, for $780,000. The applicant contends the purchase of DD Street was funded via a combination of the parties' savings, a loan of $350,000 from F Pty Ltd to the trust, and a joint Westpac loan secured against L Street. The respondent deposed she paid the deposit from savings in her personal bank account. This does not accord with evidence of the loan from F Pty Ltd to the trust, recorded in the financial reports for F Pty Ltd and taken into account in the valuation of F Pty Ltd. Either way though, I find the purchase was funded from funds generated during the parties' relationship. In mid-2017, the parties sold DD Street for $947,500. They applied the net sale proceeds firstly towards the construction of a rooming house property at O Street and to the purchase of G Street, Town J ("G Street").
5. In 2014, the applicant established the SMSF. Via the SMSF, the parties purchased a property at GG Street, Town J ("GG Street") for $260,000. In 2017 the existing property ("1 GG Street") was subdivided and a new residential unit was constructed on the rear of the block ("2 GG Street"). I accept the applicant undertook significant work on that development. The GG Street properties remain assets of the SMSF along with cash and shares.
6. In 2017, O Street was developed into a modern rooming house, consisting of nine apartments. The development was undertaken by project builders. I accept it was overseen by the applicant who also personally undertook electrical work and other work. I accept the applicant also undertook ongoing maintenance work at O Street, which was acknowledged by the respondent save that she denied the extent of that work.
7. I accept the applicant's evidence that he advanced $60,000 to the respondent's father in 2016 to complete a property purchase, which sum was repaid to him along with a gratuity of $40,000 and $1,000 for the children's bank accounts, being a total of $101,000. I also accept the applicant's evidence the respondent's father loaned the parties $50,000 in November 2017 which was repaid in December 2017. I do so where his evidence was plausible, supported by tendered bank records[40] and not undermined by cross-examination. I prefer his account over the respondent's evidence the payments of $101,000 and $50,000 were gifts to her from her father to put towards the O Street development.
8. G Street was purchased in the applicant's name for $565,000, funded in part from the proceeds from the sale of DD Street, savings of the parties and via a Westpac loan. I accept that loan was the joint rocket loan facility secured against L Street. The property was developed into three units which form part of the parties' current asset holdings and are a source of income for the applicant. I accept he undertook significant work in the planning of the development and construction of those units.
9. In December 2019, the parties purchased B Street for $1,300,000, in the applicant's sole name. They did so with the intention of relocating to Queensland. The applicant deposed both parties contributed funds to the purchase which was completed with a joint loan of approximately $900,000 secured by mortgage ("B Street mortgage"). The respondent acknowledged the joint loan secured by mortgage but said she contributed $50,000 from her savings to the deposit and $40,000 from the proceeds from the sale of DD Street. Again, I note these were funds generated during the parties' relationship. In January 2020, the respondent and the parties' children relocated to Town C. The applicant initially remained in Victoria for the purposes of preparing L Street to be tenanted. He was then unable to join the respondent and children due to COVID-19 travel restrictions until December 2020. The applicant deposed that once leased, the rental income from L Street was applied to the B Street mortgage.
10. The applicant undertook improvements to B Street between December 2020 and November 2021.
11. The respondent's father died in 2019. In early 2020, the respondent received three payments from her late father's estate, totalling $121,300. From those funds, $60,000 was applied towards the B Street mortgage and $61,300 to the purchase of shares held in the respondent's Westpac share portfolio.
12. The parties' relationship broke down finally in September 2021. They initially remained living separately and apart under the one roof in B Street.

1. In January 2022, the applicant returned to Victoria with the children, while the respondent remained in Queensland, to prepare B Street for sale.
2. In 2021, the respondent's mother died. From late 2021 to early 2022, the respondent received payments totalling $174,104 from her late mother's estate. Of those monies, $111,000 was applied to the B Street mortgage and $64,731 was applied to purchase shares via her Westpac share portfolio.
3. The respondent contends she made other contributions to the B Street mortgage from savings, in anticipation of receiving each of her inheritances. To the extent she did so, I note those funds were derived from assets acquired and/or developed and maintained during the parties' relationship.
4. In early 2022, B Street sold for $1,985,000. The proceeds from the sale of B Street along with funds held in an offset account ("B Street offset account") were applied to discharge the B Street mortgage and a loan secured against L Street. After discharging those encumbrances, the parties realised $482,292 from the sale. In September 2022, the parties each received $100,000 from the net sale proceeds, which they agree is to be treated as part of their final property entitlements. More than $60,000 from the net sale proceeds were applied to meet the cost of single expert reports, family therapy and mediation costs. The balance of the sale proceeds ($221,155) is held in trust for the parties pursuant to interim orders. Those funds have not been invested in an interest-bearing account. I accept this is because of the respondent's failure to provide the required signed authority.[41] However, evidence was not adduced of the amount of interest that would have been earned if not for her inaction.
5. The respondent alleged B Street was sold without her agreement and she complained in her trial affidavit that the applicant directed the bank to utilise funds held in the B Street mortgage offset account to discharge the liabilities secured by the B Street mortgage. She felt aggrieved by him doing so as those funds included monies she had paid into that account, including from her inheritances. However, the respondent agreed under cross-examination she was in occupation of B Street when it was sold and cooperated with the real estate agent. She also agreed her evidence, that she had not had contact with the mortgagee since B Street was purchased, was contradicted by a recording of a phone call produced by the lender pursuant to subpoena in which she can be heard requesting the discharge authority be sent by email.[42] Regardless of any dispute as to the instructions provided to the bank in respect of the offset account, those instructions conserved the parties' assets by reducing their indebtedness.
6. In May 2022, the respondent returned to live with the children at L Street in Victoria.
7. The children have lived with the respondent since May 2022, so for more than three years. They do not currently spend time with the applicant. He has paid child support as assessed, since an assessment was issued in June 2022.

1. Whilst I have set out my consideration of the parties' evidence in respect of their contributions in categories for convenience, I have weighed and assessed the contributions of all kinds and from all sources made by each of the parties throughout the period of cohabitation, as the Full Court in Wallis & Manning[43] made clear, is the task of a trial judge. My holistic assessment of the parties' contributions has extended to the period after separation.
2. The respondent submits her equity in O Street and BB Street acted as a "springboard" for the parties' subsequent acquisition of property. In the absence of evidence as to the equity in O Street during this time, I am not persuaded there was a significant disparity in the value of the parties' initial contributions that the respondent's contributions ought be given significant weight over and above the contributions made by the applicant, including his equity in EE Street.
3. I take this approach applying the following principles:

(a) As stated by the Full Court in Pierce v Pierce:[44]

...It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, [...] regard must be had to the use made by the parties of that contribution.

(b) The Full Court in Jabour[45] emphasised with reference to this paragraph of Pierce that the importance of that decision is that the "the weight to be attached to an initial contribution must be assessed against the rubric of all of the contributions, both financial and non-financial, made by the parties over the course of their relationship"; and

(c) As to the weight to be given to initial contributions by reference to the duration of a relationship, the Full Court explained in Wallis & Manning (references omitted):[46]

[...] In our view, talk of "erosion" of the early capital contribution obscures the issue rather than illuminates it. However, it can be taken as well settled that the length of the relationship has a significant impact on how early significant capital contributions should be viewed in assessing the totality of the parties' contributions. For example, the Full Court has said:

The longer the duration of the marriage, depending on the quality and extent of her contribution, the more the proportionality of the original contribution is reduced.

The longer the marriage the more likely it is that there will be later factors of significance, and in the ultimate the exercise is to weigh the original contribution with all other, later, factors and those later factors, whether equal or not, may in the circumstances of the individual case reduce the significance of the original contribution.

1. As required, I have taken into account the use of O Street, which was developed by the parties during their relationship and is now valued at $1,555,000 forming a significant part of their property portfolio. However, that value reflects contributions made by both parties, directly and indirectly, not only by the respondent's ownership of the property at the commencement of their relationship, then subject to mortgage. Likewise, the applicant's initial contribution via the equity in EE Street, realised in 2000, was applied directly to the acquisition of L Street which also forms a significant part of the parties' property pool, valued at $1,375.000 and was used to secure borrowings for subsequent purchases and developments. In this way, both O Street and EE Street supported the parties' subsequent acquisition and development of assets. Even if the wife had greater equity in O Street at the commencement of their relationship than the husband held in EE Street, the contributions made by both parties during their long relationship and after separation reduces the significance of any disparity in their initial contributions.
2. It is not disputed the respondent was primarily responsible for the care of the parties' children. Nor is it in dispute the applicant was the primary income-earner after the parties' children were born and the respondent left paid employment to care for the children.
3. I accept the respondent was the primary homemaker but accept the applicant's evidence he also contributed to housework and other household duties.
4. I accept the applicant undertook significant work on the various property developments undertaken by the parties, overseeing those projects and undertaking work himself physically. The respondent does not dispute those contributions, only the extent of them, and she asserts she was also involved in those endeavours. I find both parties contributed to the acquisition, development, maintenance and improvement of their property portfolio, directly and indirectly, over the course of their long relationship. They did so while maintaining a busy household and family life, the applicant continuing to work in his business and the respondent being primarily responsible for the care of their children. I accept that while the applicant worked for long hours between his business and the parties' property developments, the respondent was likewise working long hours caring for the children.
5. The parties each also made other non-financial contributions in respect of the property development work they engaged in. In relation to their investment properties, they undertook some property management tasks themselves (for example, the respondent initially managing rental of DD Street) but generally utilised the services of managing agents. They also utilised the services of mortgage brokers and conveyancers. The applicant acknowledged the work undertaken by the respondent to arrange those services. I accept the applicant's evidence of repairs and maintenance work he undertook personally to the investment properties.
6. This is not a case where the parties seek to quarantine inherited assets. The monies inherited by the respondent towards the end of the of the parties' relationship (approximately $121,000, rounded) and after separation (approximately $174,000, rounded), were applied in part to reduce the balance of the B Street mortgage and to the acquisition of shares and form part of the pool of assets to be divided between them. When cross-examined, the applicant gave evidence he worked on renovations to properties owned by the respondent's deceased parents during their long relationship and deposed to loans extended to the respondents' father, which were repaid. Aside from that, evidence was not adduced to support a finding the applicant contributed significantly to the inheritances received by the respondent very late in the relationship and after separation and I am not persuaded the respondent's parents intended the applicant benefit from the provisions they each made for the respondent upon their death. In these circumstances, having particular regard to the origins and timing of the respondent's inheritances and the application of a large proportion of those monies to acquire shares and reduce the parties' indebtedness in respect of B Street, I find the respondent's inheritances constitute a contribution made by her to be given significant weight.
7. I also give significant weight to the respondent's care of the children after separation.
8. Having undertaken this assessment, evaluating all contributions made by the parties and particularly the above matters, I find the parties' contributions, assessed in percentage terms, to be 48% to the applicant and 52% to the respondent: a differential of 4%.
9. Where I have found the total net value of the parties' assets including superannuation and add backs to be approximately $10,358,301, applying those percentages would see the applicant receive assets and superannuation, including add backs, with a net value equivalent to approximately $4,971,985 and the respondent approximately $5,386,316. The difference between the value of property to be retained by the parties on this assessment is approximately $414,331.

1. Section 90SM(4)(d) of the Act requires me to consider the effect of any proposed order upon the earning capacity of either party to the de facto relationship.
2. The orders sought by the applicant, that he assume control of D Pty Ltd as trustee for the trust and the respondent relinquish her interest as a beneficiary of the trust, will see him receive the income from rental of the commercial factory at H Street rather than the respondent. The single expert valuation of Mr Y relied upon by the respondent, estimated gross rental income generated by H Street at approximately $54,000 per annum. Accordingly, if the applicant succeeds with his application, his gross income will increase by that amount and the respondent's reduce by the same amount, but noting her evidence H Street has not been tenanted since early 2024 and she has been without that income since that time.
3. However, both parties will receive assets of significant value when property matters are finalised between them. Counsel for the respondent acknowledged she may rent out or sell L Street (given her stated intention to move to Queensland) and she will have sufficient resources to acquire an alternate income generating asset, although she will incur acquisition costs to do so.

1. In considering what order should be made under section 90SM, subsection 90SM(4)(e) requires me to take into account the matters referred to in section 90SF(3) so far as they are relevant.
2. The applicant submits there should be no adjustment pursuant to section 90SF(3) given the value of the property each of the parties are to retain. The respondent advocates for a 4% adjustment in her favour pursuant to section 90SF(3), primarily because she continues to have sole care of the parties' two children.
3. The applicant is 51, the respondent is 53.
4. The applicant is a self-employed tradesman, conducting his business through F Pty Ltd and receiving his income paid as an annual dividend. He deposed his gross weekly income from F Pty Ltd equates to approximately $1,981 (so $103,012 per annum). Accordingly, F Pty Ltd is a source of significant income for him. The parties each propose the applicant retain F Pty Ltd as part of his entitlements when final property orders are made. That income is not taken into account in the valuation of F Pty Ltd, which was valued on a net asset basis.
5. The respondent deposed he also receives gross rental income of $1,676 per week (equivalent to approximately $87,152 per annum). Together with his business income, this puts the respondent's total gross annual income at approximately $190,000. His taxable income for the financial year ended 30 June 2024 was $103,041.
6. The respondent does not work in paid employment. She deposed to taxable income of approximately $150,000 (rounded), for each of the financial years ended 30 June 2023 and 2024, consisting of rental income from property investments and dividends paid on shares held in her name. The respondent's unconditional loan approval from Westpac dated April 2024, recorded her gross income at $242,350, being gross rental income from O Street, H Street and N Street. I accept that figure included rental income from H Street notwithstanding the property was not then tenanted. I find the respondent's tax returns provide a more accurate reflection of her income than her loan application.
7. If the applicant receives the trust (including H Street) as he proposes, his taxable income will increase and the respondent's will decrease, making their taxable income more comparable. I note however, that once property matters are finalised between them, the configuration of their property holdings may change - for example, the applicant may acquire a home and the respondent intends to relocate to Queensland. Either way, they will each retain property of significant value, to provide them with accommodation if they choose and investment income for their support.
8. That the respondent now has a loan to service is a result of her own decisions made after separation. She can liquidate other assets to discharge that loan if she chooses.
9. I take into account the applicant will retain a greater proportion of his entitlements in the form of superannuation (he will have approximately $532,515 more in superannuation than the applicant) and that the parties are both some way off from accessing their superannuation given their ages.
10. Whilst the respondent deposed to various health conditions and had applied for an adjournment of the final hearing on medical grounds (relying on hearsay evidence which section 75 of the Evidence Act permits in support of interlocutory applications), she did not adduce expert medical evidence on affidavit from a treating professional or other expert at the final hearing. In any event, her income is derived from investments rather than employment. She did not adduce evidence of high medical costs associated with diagnosed health conditions. Accordingly, there is no evidence before me to support an adjustment pursuant to section 90SF(3)(a) on the basis of the respondent's health.
11. The respondent has sole care of the parties' two children, now aged 15 and 12. They do not spend any time with the applicant. This is a matter I give weight pursuant to section 90SF(3)(c). I also take into account that the applicant pays child support as assessed. In her updating affidavit, the respondent deposed the applicant pays child support of approximately $1,200 per month, which equates to approximately $14,400 per annum. The respondent gave oral evidence he pays child support of approximately $17,000 per annum. Either way, it is not in dispute the applicant pays child support as assessed and is not in arrears.
12. Neither party has re-partnered. The applicant lives with his parents, in their home.
13. The respondent continues to live in L Street with the children, which is unencumbered.
14. The respondent provided an estimate of the cost of her proposed relocation to Queensland with the children, including rental costs of $50,000 to $60,000. Even had she provided evidence to support that estimate, I would not take those expenses into account pursuant to section 90SF(3). The respondent will have sufficient income and assets from which to meet the cost of her relocation if she chooses to pursue it.
15. As explained earlier in my reasons, I take into account pursuant to section 90SF(3)(r) that the respondent failed to adequately explain and adduce evidence in respect of the application of:

(a) Cash sums withdrawn by her in 2022 amounting to $170,000, save for approximately $2,000 applied to purchase a laptop computer for one of the children; and

(b) Approximately $134,000 drawn against the Westpac loan, and noting her case outline records approximately half of those funds were applied to payment of her legal fees.

1. Balancing these and all other matters relevant pursuant to section 90SF(3), I find an "adjustment" to my contribution-based assessment of 1% in favour of the applicant is required to achieve justice and equity.

1. Pursuant to the above assessment, I consider it just and equitable for the parties' interests in property to be altered such that assets and superannuation are divided providing for the applicant to receive 49% of the net available assets and superannuation, including add backs, and the respondent 51%.
2. To achieve that outcome, the applicant is to receive assets and superannuation with a net value of approximately $5,075,567 and the respondent approximately $5,282,734. The differential between their positions will be approximately $207,167.

1. I have determined it is just and equitable for the applicant to assume control of the trust which owns H Street. This will achieve a clean break between the parties where the trust owes $350,000 to F Pty Ltd, which the parties agree is to be retained by the applicant.
2. The respondent did not make submissions against the term of orders sought by the applicant if I acceded to the applicant's application to take control of the trust. Neither party adduced evidence of any financial consequences of me making orders to that effect.
3. In closing, counsel for the applicant sought an adjustment in respect of any outstanding expenses relating to H Street, in the event any of the land tax, council rates or other expenses alleged by the respondent to be owing related to the trust. I will not make an order to that effect where I do not have evidence of those liabilities. If they are expenses relating to H Street, they will be paid by the trust from the income or assets of the trust. The applicant is on notice of the work the respondent says is required to be undertaken to H Street. The parties have accepted the single expert valuation of H Street "as is" in that knowledge.

1. To make up his entitlement, the applicant will therefore receive/retain:

Balance of net proceeds from sale of B Street, held in trust

Westpac share portfolio and linked Westpac cash investment account #...87

Account #...80 (including monies withdrawn from that account added back per order made 4 September 2024)

1. I consider this to be a just and equitable outcome, in percentage and actual terms, consistent with my holistic assessment and weighing of the parties' respective contributions and those matters relevant pursuant to section 90SF(3). I am satisfied the configuration of the proposed settlement, in terms of the particular assets and superannuation each party is to retain, is appropriate.

1. In the absence of submissions as to the form of order to be preferred, I will make orders in the terms sought by the applicant with some minor changes to ensure the parties' obligations are clear.
2. I will provide for the applicant to meet the cost of him assuming control of the trust given he will benefit from retaining that asset, rather than for those costs to be shared as proposed by him. He will also bear responsibility for any liabilities and taxation of the trust, including the loan owed to F Pty Ltd.
3. In respect of the trust, where neither party seeks the sale of H Street, I will not include the words "or partial sale proceeds" as drafted in the form of order proposed by the applicant.
4. There were also two provisions in the minute of proposed orders relied upon by the applicant,[47] providing for the parties to be responsible for and indemnify the other in respect of liabilities. I will make the order proposed in the "catch all" provision (proposed order 15(d)), amended to provide for the parties to each be solely liable for and indemnify the other against liabilities in their names or encumbering any property they are entitled to retain under the final orders. I will not make proposed order 10 in that minute, where it overlaps with proposed order15(d), the term "associated entities" is not clear and nor is it clear what is meant by "past, present, future or contingent" liabilities.
5. Submissions were not made in respect of the timing of any payment to be made by the respondent. She has sufficient funds available in her bank accounts to readily make the payment to the applicant, so I will require it to be made within 14 days.

1. For the reasons provided, I make the final property order as set out at the commencement of these reasons, considering it to be just and equitable in the circumstances.

1. The applicant seeks orders for costs in relation to the following previous hearings, in respect of which costs were reserved:

(a) A procedural hearing on 19 February 2024, where an order was made reserving costs of the applicant, fixed in the amount of $4,400;

(b) An enforcement hearing on 7 August 2024, where an order was made by consent reserving costs of the applicant, fixed in the amount of $6,000;

(c) A hearing on 4 September 2024 (incorrectly identified in the minute of orders sought by the applicant as a hearing on 8 September 2024), on which date an order was made by consent reserving the costs of the applicant, again fixed in the amount of $6,000;

(d) The final hearing listed for 12 October 2024, which the respondent failed to attend, where an order was made reserving the costs of the applicant of and incidental to that hearing;

(e) An interlocutory hearing on 5 May 2025, being the urgent hearing date listed in respect of the respondent's Application in a Proceeding filed on 1 May 2025, seeking an adjournment of the final hearing, which was adjourned to the following day with costs reserved; and

(f) An interlocutory hearing on 6 May 2025, being the adjourned hearing of the respondent's Application in a Proceeding seeking to adjourn the final hearing, which was dismissed with costs reserved.

1. Submissions were made by both counsel at the conclusion of the final hearing in respect of these costs sought by the applicant.

1. When determining this aspect of the applicant's application, I have applied the provisions of section 117 and related sections of the Act relating to costs as were in effect prior to 10 June 2025, at the time of the previous hearings and the final hearing. I do so noting the transitional provisions in section 15 of Part 4 of the Amendment Act.
2. The general principle as expressed in section 117(1) of the Act is that each party is to bear their own costs of family law proceedings. However, the court retains a discretion pursuant to section 117(2) to make such order as to costs as it considers just, if there are circumstances that justify doing so, having regard to the matters prescribed by subsection 117(2A) of the Act. No one of those factors prevails over any of the other factors. It is a matter of the weight that is accorded to each of the relevant factors in the discretion of the judge in the circumstances of the matter.[48] However, there is "nothing to prevent any factor being the sole foundation for an order for costs".[49] Whilst subsection (2) requires a finding of justifying circumstances for the making of a costs order, beyond this there is no additional or special onus on an applicant who seeks an order for costs.[50]
3. I first consider those matters in section 117(2A) of the Act as apply to all of the hearings in respect of which costs were reserved, before then considering those matters in section 117(2A) that need to be considered in the context of each hearing.
4. The parties are both of significant means. They will each be receiving assets, including add backs and superannuation, with a net value of more than $5 million. Their financial circumstances do not weigh in favour of or against the making of a costs order.
5. The applicant was privately represented. The respondent was privately represented until her former lawyers filed a notice of ceasing to act on 4 November 2024. From 31 January 2025, the respondent was represented pursuant to a grant of legal aid under the scheme given the provisions of section 102NA apply pursuant to an order made on 21 October 2024. Notwithstanding a direction made on the first day of the final hearing requiring the filing of updated costs notices identifying the source of all legal costs and the source of all paid costs, the costs notice filed on behalf of the respondent related only to costs incurred with her current lawyers under the scheme.
6. In Legal Aid ACT & Westwell[51] the Full Court considered the operation of the scheme and determined the reference to "legal aid", in section 117(2A)(b) (and also in that case, section 117(4)) does not include a reference to the provision of funding of a lawyer under section 102NA where that funding is from a legal aid body.[52] The Full Court observed it would be a "bizarre outcome" if a person who receives legal assistance by way of the provision of a lawyer under the scheme brings with it immunity against costs.[53] Accordingly, the respondent's representation under the scheme does not preclude the making of a costs order against her.

1. Via her counsel, the respondent conceded she was wholly unsuccessful on 19 February 2024 but submitted there were no other factors raised to cause the court to depart from the premise in section 117 of the Act, that each party bear their own costs.
2. The hearing on 19 February 2024 was a procedural hearing before a Judicial Registrar. Orders were made that day listing the matter for a compliance and readiness hearing on 30 April 2024. Directions were made providing for the filing of material ahead of the compliance and readiness hearing. Parenting proceedings remained on foot at that time. I was not taken to any evidence the hearing arose because of the respondent's failure to comply with court orders or because of her conduct in the proceeding.
3. I am not persuaded there should be any departure from the general principle that each party should bear their own costs in respect of this hearing given orders were made progressing the matter towards a final hearing.

1. The hearing on 7 August 2024 was conducted by a Senior Judicial Registrar. It is evident from the orders made on that day and from the notations made to those orders, there were several interlocutory applications pending at that time, including Applications in a Proceeding filed on 29 August 2023 and 2 August 2024 and an enforcement application filed by the applicant on 29 July 2024 ("enforcement application"). A series of orders and injunctions made by consent resolved those applications, save for the enforcement application which was returnable on 4 September 2024.
2. The Full Court in Bant & Clayton (Costs)[54] confirmed that paragraph (e) of section 117(2A) "is designed for cases where an application is heard and determined and the applicant is wholly unsuccessful" rather than where orders are made by consent as was the case here.[55]
3. The respondent conceded via her counsel that her conduct was raised as an issue in support of the order made on 7 August 2024 reserving costs. I am satisfied the respondent's conduct (including her failure to make timely full and frank disclosure in respect of the Westpac loan) justifies an order for her to pay the applicant's costs of and incidental to the hearing on 7 August 2024 fixed in the sum of $6,000 as agreed by the parties and recorded in the orders made by consent that day.

1. The enforcement application came before me on 4 September 2024. The application was that day resolved by orders made by consent, including: orders providing for a variation of an injunction made on 7 August 2024 in respect of the respondent's use of funds in account #...80; requiring the respondent's cooperation with single expert valuers; requiring the respondent to comply with previous orders for disclosure; and providing for further disclosure, including in respect of the respondent's Westpac share trading account.
2. From the face of the orders, I find this hearing was required at least in part to address the respondent's failure to make full and frank disclosure and, given the extensions of time granted by the orders, her failure to comply with previous orders for disclosure. I am satisfied the respondent's conduct in the proceeding, in particular her failure to make full and frank disclosure of all relevant matters in a timely manner, justifies an order for the respondent to pay the applicant's costs of and incidental to the hearing on 4 September 2024 fixed in the amount of $6,000 as agreed by the parties and recorded in the orders made by consent on that day.

1. As recounted earlier in my reasons, the final hearing was adjourned on Monday 21 October 2024 when the respondent did not attend at court and her counsel advised neither he nor his instructor had been able to reach the respondent since the Friday preceding the hearing.
2. The respondent deposed she was unable to attend the final hearing scheduled for 21 October 2024, giving evidence in her updating affidavit that:

On Monday, 21 October 2024, this matter was listed for Final Defended Hearing. The day prior, I had felt really dizzy and ended up passing out and collapsing. I was taken to hospital in the emergency department on the same day, and I remained there until later that day.

1. This was exceptionally brief evidence given the respondent's failure to attend the final hearing or to communicate with her legal team. The respondent did not tender the discharge summary referenced in her updating affidavit. She did not adduce medical evidence in respect of her health at this time. When cross-examined at the final hearing, the respondent gave evidence she was taken to hospital by ambulance, yet she had not given that evidence on affidavit. Her counsel submitted it was reasonable to infer from that evidence the respondent was not in a position to answer her phone or to come to court but I am not persuaded that is the case.
2. I find the respondent's failure to adduce evidence adequately explaining her failure to attend the final hearing on 21 October 2024, justifies an order for the costs of that hearing which was unable to proceed in her absence.

1. A notation to the orders made on 21 October 2024, recorded the applicant sought costs thrown away of $20,790, including counsel's fees for eight hours of preparation (at $660 per hour) and a day's appearance fee (at $4,950). The applicant deposed counsel's fees were invoiced for that hearing in the amount to $19,800 (for three days of preparation and one day's appearance), which fees have been paid.
2. In relation to the quantum of costs, counsel for the respondent submitted costs should be fixed at scale if ordered.
3. Part 12.6 of the Rules provides for the calculation of costs if a costs order is made. In particular, rule 12.17(1) provides the court may order that a party is entitled to costs:

(a) Of a specific amount; or

(b) As assessed on a particular basis (for example, party and party, solicitor and client or indemnity); or

(c) To be calculated in accordance with the method stated in the order; or

(d) For part of the proceeding, or part of an amount, assessed in accordance with the scale of costs provided in the Rules.

1. The Full Court has confirmed that the court "should not depart lightly from the ordinary rules relating to costs between party and party and the circumstances justifying the departure should be of an exceptional kind." [56] I am not satisfied there are circumstances justifying an order for indemnity costs as sought by the respondent or "special costs", consisting of counsel's fees as charged pursuant to a private costs agreement (which I note was not tendered).
2. I find it is just in all the circumstances for costs to be paid pursuant to the scale of costs in Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) ("the Division 2 scale") as applied prior to 10 June 2025 as follows:

1. I have taken into account that the applicant was able to brief the same counsel for the adjourned final hearing. However, I accept given the significant delay in the matter coming back before the court, the nature of the matter and where updated material was filed, counsel would have again had to prepare for the adjourned final hearing. I therefore find allowing preparation for a two day matter is reasonable. I also allow the full daily hearing fee given counsel would have been briefed for the day (and indeed the following day although I do not allow for that).

1. I find an order for costs is justified in respect of the hearing on 5 May 2025 where that hearing was adjourned to provide time for the respondent or her lawyers to consider making an application for the appointment of a litigation guardian for the respondent, which application was not made.
2. The applicant seeks costs of that hearing, fixed in the sum of $2,040, being three hours for his counsel charged at $680 per hour. Counsel for the applicant referred generally to the respondent's conduct, including conduct outside of this proceeding (which falls outside the scope of sub-section 117(2A)(c)), in support of the submission for indemnity costs.
3. Again, I am not persuaded exceptional circumstances exist justifying an order for costs on an indemnity basis. I instead find it is just for the respondent to pay costs to the applicant of that hearing, calculated pursuant to the Division 2 scale as follows:

1. At the hearing on 6 May 2025, the respondent's application for the final hearing to be further adjourned was wholly unsuccessful and her Application in a Proceeding filed on 1 May 2025 seeking orders to that effect was dismissed. An order was made reserving her costs.
2. I find the respondent being wholly unsuccessful in her application coupled with her conduct in seeking to further delay the hearing very shortly prior to the final hearing, justifies an order for costs.
3. The applicant seeks costs of that hearing, fixed in the sum of $2,040, calculated on the same basis as the previous day's hearing.
4. I find it is just for the respondent to pay costs of the respondent relating to her Application in a Proceeding filed on 1 May 2025 and the hearing on 6 May 2025, calculated pursuant to the Division 2 scale as follows:

Opposing an application for interlocutory orders (including an interim hearing) that is not otherwise described in item 1 or 2

1. Whilst this is more than the amount sought by the applicant for this particular hearing, I am satisfied it is a reasonable amount when considered with the amount allowed for the hearing on 5 May 2025 and the work that was no doubt required by the applicant's solicitor in relation to those hearings in addition to the costs of counsel.

1. The applicant seeks an order providing for payment of costs within 60 days. Where the respondent has ready access to monies in her bank accounts, I find that more than reasonable.

1. In the tendered minute of orders sought by him, the applicant also sought an order in respect of his costs of the final hearing. I will make orders providing for the filing of material in relation to any extant costs applications, including to allow such applications to be dealt with in chambers "on the papers" if the parties consent to that. I will make directions limiting the material to be filed, to provide for the expeditious and cost-effective resolution of any outstanding costs applications.

1. For the reasons provided I make the order for costs set out at the commencement of these reasons, finding it just in all the circumstances.

I certify that the preceding two hundred (200) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A. Humphreys.

[1] Representing the assets and liabilities available for division between them.

[2] Exhibit B, but noting the respondent's counsel informed the court at the outset of the hearing this no longer reflected the respondent's position.

[4] With no objection being taken to late-filed documents.

[6] Updated during the course of the hearing, the final version tendered during closing submissions and marked Exhibit R-5.

[8][2003] HCA 48; (2003) 77 ALJR 1598 at [62], per Gleeson CJ, McHugh and Gummow JJ.

[11] In the Marriage of Beneke [1996] FamCA 82; (1996) FLC 92-698 at [37], by reference to prior authority; see also Macmillan J in Balken & Vyner [2020] FamCA 955 at [38].

[12] Long & Graves [2025] FedCFamC2F 844.

[14] Stanford v Stanford (2012) 247 CLR 108 ("Stanford"), considering section 79(2) of the Act, being the equivalent provision in the Act relating to married couples.

[15] Babett & Falconer [2015] FamCAFC 124; (2015) FLC 98-067 at [44]; cited with approval in Perrin & Perrin (No 2) [2018] FamCAFC 122 at [57] - [58] referring in turn to Dickons & Dickons (2012) 50 Fam LR 244 regarding section 79, being the comparable provision applying to married couples.

[18] Marchant & Marchant [2012] FamCAFC 181; (2012) FLC 93-520, at [41] to [44].

[20] At paragraphs [4.1.3] and [5.7] of the supplementary single expert valuation report of Mr V.

[25] Weir & Weir [1992] FamCA 69; (1993) FLC 92-338.

[26] Morrison v Morrison (1995) FLC 92-573 at [81,671].

[27] K & K (2003) FLC 93-135 applying Chang v Su [2002] FamCA 156; (2002) FLC 93-117 and Weir & Weir [1992] FamCA 69; (1993) FLC 92-338.

[31] Omacini & Omacini (2005) FLC 932-218 at [30], referring to earlier authorities.

[32] (2018) FLC 93-858 ("Trevi"), per Murphy J, with whom Alstergren DCJ and Kent J agreed, at [28] to [30].

[34] [2025] FedCFamC1A 126, at [101] referring to Trevi.

[36] Dickons & Dickons (2012) 50 Fam LR 244 at [21].

[37] Dickons & Dickons (2012) 50 Fam LR 244 at [25].

[38] Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at [17].

[39] Jabour & Jabour (2019) FLC 93-898 at [73]-[87]; Benson & Drury (2020) FLC 93-998 at [35].

[43] (2017) FLC 93-759; [2017] FamCAFC 14.

[44] (1999) FLC 92-844 ("Pierce") at [28].

[48] Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664 at [24].

[49] Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish [2005] FamCA 158; (2005) 33 Fam LR 123 at [41].

[50] Penfold v Penfold (1980) 114 CLR 311 at [13].

[54] [2016] FamCAFC 35; (2016) 56 Fam LR 31.

[55] [2016] FamCAFC 35; (2016) 56 Fam LR 31 at [22].

[56] Kohan & Kohan [1992] FamCA 116; (1993) FLC 92-340 at [79,614]; Yunghanns v Yunghanns [2000] FamCA 681; (2000) FLC 93-029 at [31], citing Sheppard J in Colgate-Palmolive Company v Cussons Pty Ltd (1993) 119 CLR 118 at [233].