Family Law Act 1975 (Cth) ss 79, 114(1)(e)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 8.16

McKay v Dick (1881) 6 App Cas 251

Redmond & Redmond [2014] FamCAFC 155

Secured Income Real Estate (Aust) Pty Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596

Smethurst v Commissioner of Australian Federal Police [2020] HCA 14; (2020) 272 CLR 177

SS & AH [2010] FamCAFC 13

Dr I.C.F. Spry, The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages (Law Book Company, 4th ed, 1990)

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

1. Forthwith the husband whether by himself or by companies owned or controlled by him must vacate the whole of the land known and described as B Street, Suburb C, Northern Territory being the whole of the land described as lot [...] town of City D from plan [...] certificate of title volume [...] folio [...].
2. On or before noon on 26 February 2026 the husband must remove from the premises referred to in paragraph one of these orders all plant, equipment and personal property of all and every description owned by the husband or by any company owned or controlled by him presently at the premises referred to in paragraph one of these orders, it being the intendment of these orders that the husband and all the companies owned or controlled by him must vacate the premises referred to in paragraph one of these orders leaving the said premises free of all or any item of property owned by the husband or by any company owned or controlled by him.
3. Forthwith the husband must deliver to Mr E of F Real Estate the keys to the premises referred to in paragraph one of these orders.
4. The wife's application in a proceeding filed on 5 February 2026 is otherwise dismissed.
5. The husband's response to an application in a proceeding filed on 11 February 2026 is dismissed.
6. All parties' costs of and incidentals to this application are reserved.
7. The further hearing of this proceeding is adjourned for mention to 2 March 2026 at 9.30am. All parties are granted leave to appear by webex.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym Melek & Melek has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

(a) the applications in the wife's application in a proceeding filed 5 February 2026; and

(b) the applications in the husband's response dated 11 February 2026.

1. Today, I heard further submissions.
2. These reasons concern each application.
3. The trial of this proceeding is presently fixed before me on 22, 23, 24 and 25 June 2026 in Darwin.
4. Debate on all issues was conducted with considerable skill by Ms Farmer for the applicant and by Mr Hughes of counsel for the respondent. Their submissions were most helpful and aided substantially in the disposition of the applications before the court.
5. For the reasons that now follow, I am of the view that -

(a) the husband's current occupation of the premises located at and known as B Street, Suburb C in the Northern Territory being the whole of the land more particularly described as lot [...] town of City D from plan [...] certificate of title volume [...] folio [...] ("the [B Street] property") is contrary to the consent orders made 11 August 2025;

(b) the husband must vacate the B Street property forthwith; and

(c) I refuse to make the orders sought in paragraph 3 of the respondent's response to the applicant's application in a proceeding filed 11 February 2025.

1. This proceeding was transferred from Division 2 where it commenced, to Division 1 and allocated to my docket. In broad terms, the trial is four months hence. The trial will involve property issues only.
2. Several formal particulars are relevant. They include the following -

(a) the parties commenced a relationship in 2004 or thereabouts, they married in 2005 and separated in April 2022, although they have not yet divorced;

(b) they have three children, one born in 2008, one born in 2012 and one born in 2013;

(c) real and personal property falls for the making of orders under s 79 of the Family Law Act;

(d) at all relevant times the husband has been the sole director of G Pty Ltd;

(e) the wife asserted in her affidavit made 5 February 2026 that G Trust is the sole shareholder in G Pty Ltd and that the wife and the husband are trustees;[1]

(f) at all relevant times, H Pty Ltd was the trustee of the Melek Family Trust;

(g) the husband is the sole director of H Pty Ltd and the sole shareholder in it, although his shareholding is in a representative capacity as trustee for the Melek Family Trust; and

(h) H Pty Ltd carries on business which, according to the wife, is in direct competition with G Pty Ltd.

1. The B Street property is and has at all material times been registered in the name of the husband. According to the wife, it is a commercial property with a warehouse. The wife deposed to an encumbrance burdening the title to the B Street property in relation to the sum of $188,000 secured by mortgage in favour of J Bank. She said the entity meeting loan repayments was K Pty Ltd.
2. The circumstance of the current occupation of the B Street property was the subject of disputation on this application. It is well established that on the hearing of a contested interlocutory application, a judge in my shoes should be highly circumspect about making factual findings because those contested facts have not been tested by cross-examination. Accordingly, I have proceeded on the basis that contested facts must be proved at trial. On that basis, certain matters were not put in issue, namely -

(a) the B Street property was previously let to L Company at an annual rental of a little over $101,000 with expenses being reimbursed;

(b) rental paid by and on behalf of L Company was paid into the husband's ANZ account;

(c) after the parties separated, the husband approved L Company subletting the B Street property in or about June 2023 at an annual rental of $95,000, the difference between that amount and the rental payable under the headlease being met by L Company;

(d) by February 2024 the wife ceased performing bookkeeping work associated with G Pty Ltd; and

(e) at that time (February 2024) L Company was in arrears of rental in the sum of more than $23,881.

1. Subsequent to February 2024, the wife contended that the husband engaged in conduct which adversely affected hers and the husband's financial interests. That conduct included the failure to pay the B Street mortgage or outgoings.
2. The wife asserted in paragraph 14 of her 5 February 2026 affidavit that in October 2025 the subtenant fell into arrears and L Company sought to terminate the lease.
3. While chronologically out of sequence, the wife deposed to L Company vacating the B Street property on 1 August 2025. The wife deposed to L Company agreeing to pay arrears of $40,000 and to forfeit the security deposit of $24,750. She said those sums were not paid by the date she swore her affidavit.
4. After the commencement of this proceeding, consent orders were made for the sale of various parcels of land, none of which concerned the B Street property.
5. The proceeding returned before the court on 11 August 2025. Those orders consumed a great deal of debate on 13 February 2025. Paragraphs 9 and 10 were the relevant provisions, the operation of which I detail in the passages which follow. Paragraph 9 required the husband and wife to do all acts and execute all documents required to appoint Mr E of F Real Estate as their joint agent "to secure a tenant" for the B Street property. Paragraph 10 of the 11 August 2025 orders required the husband and wife to cooperate in every way with the property agent in relation to the marketing of the B Street property, making keys readily available and allowing inspections at all reasonable times.
6. The wife deposed to executing an agency agreement with F Real Estate, although she did not exhibit the document to her affidavit. She said the agency so created expired on 12 November 2025. She said that beyond that time (12 November 2025, I infer) "the agency agreement continued to apply unless terminated" and that as far as she was aware, the agreement had not been terminated.
7. The wife deposed to the B Street property being advertised at an annual rental of $115,000. She said no offers were received. She said the agent, Mr E, reported that rental interest had been expressed from prospective tenants at between $70,000 to $80,000 per annum. The wife deposed to her acquiescence in instructing Mr E to convey to a potential tenant, M Company, that the B Street property might be available for rental upon payment of an annual rental of $105,000. The wife did not depose to any response to that proposal.
8. Instead, the wife deposed to the husband collecting the keys for the B Street property in December 2025, which keys, she said, are the only keys to the B Street property. She said the husband did not notify her or the agent that he intended to collect the keys nor that he had done so.
9. The wife had deposed to three relevant events that occurred on 22 January 2026. In the first, the wife deposed to Mr E emailing her and the husband with a proposal by M Company to let the B Street property with a three plus two-year lease and an annual rental of $95,000, the estimated commencement date being March or April 2026. In the second, the wife deposed to her consent to that proposal. In the third, the husband informed Mr E that he (the husband) had secured a tenant, the commencement date for which tenancy was 1 February 2026.
10. The husband did not provide details of the so-called tenant, the terms of the so-called tenancy, the rental allegedly payable and the terms and the conditions allegedly secured. His evidence on those issues was extremely imprecise.
11. The wife complained about the absence of that information and that she communicated with the husband's solicitors to that effect by email dated 27 January 2026. She said the following day, on 28 February 2026, the husband's solicitors wrote to her solicitors stating that the husband would be the tenant. Pausing there, he was the registered proprietor. Precisely how he could at law concurrently be the tenant went unexplained. Apparently, the husband indicated that he needed the available space which the B Street property offered so that the operations of H Pty Ltd as well as G Pty Ltd could be accommodated. The communication continued stating that rental of $80,000 per annum would be paid and that such rental would be paid into the husband's own bank account.
12. Pausing again, under that proposal the husband as registered proprietor would simultaneously be the tenant and that as tenant he would pay himself rental of $80,000 per annum in circumstances where an independent third party, M Company, was proposing an annual rental of $105,000, an amount the wife was willing to accept. A difference in rental existed between the sum under discussion with M Company and $80,000. Further, no terms and conditions of any proposed "tenancy" had been volunteered by the husband's solicitors. But even if it had been so volunteered, the husband was to be both landlord and tenant at the same time. The proposal defied logic.
13. The wife has indicated that she wishes the B Street property to be let to a solvent, reputable and commercially sound tenant.
14. She said that on 28 January 2026 Mr E sent M Company a tenancy proposal in respect of its occupation on and from 1 March 2026. She said the husband has in his possession the only set of keys to the B Street property which she says the husband refuses to hand back. She said the husband insists on occupying the B Street property.
15. The wife said she fears that the husband lacks the financial capacity to pay rent as she says G Pty Ltd is operating at a loss and that the husband has previously stated that he is unable to meet outgoings under existing loan facilities. By way of particulars, she deposed to -

(a) an outstanding water rates invoice applicable to the B Street property of $485; and

(b) outstanding council rates of $5,605.

1. She said the husband has requested those sums to be paid from joint funds, even though she says those debts are due in relation to an asset owned solely by the husband who should meet those expenses himself. She said the husband is in default in relation to a sum of $188,000 allegedly owing under a mortgage encumbering title to the B Street property. She said J Bank is the mortgagee, although no title documents were exhibited to her affidavit by way of verification of that fact.
2. The wife further deposed to the provisions of paragraphs 11 and 12 of the consent orders made on 17 December 2024 pursuant to which the husband was required at all times to pay as and when due certain liabilities. Those included all loan repayments and arrears, insurance premiums, registrations and required plant and equipment maintenance held by the parties, by the Melek Group and by the N Group as well as loans owing on such plant and equipment. The wife deposed to the husband defaulting in payments for -

(a) a tipper resulting in the lender serving a notice of default; and

(b) a utility van resulting in the lender also serving a notice of default.

1. She said those defaults represented breaches of the obligations imposed on the husband pursuant to paragraphs 11 and 12 of the 17 December 2024 consent orders.
2. The wife deposed to her willingness to be appointed as a trustee for the letting of the B Street property.
3. The husband made an affidavit on 11 February 2026. In it the husband deposed to his registered proprietorship of the B Street property, that it is zoned "service commercial" and that he intends to run two or three activities from that property. He said he wishes to retain that property as does the wife. He deposed to his entry into a lease of the B Street property in 2021 with H Pty Ltd and that H Pty Ltd entered into a sub-lease of the B Street property with O Company in May 2023. He said O Company fell into arrears owing nearly $95,000 leading to H Pty Ltd retaking possession. He deposed to H Pty Ltd owing him over $104,000 by August 2025. He said that the wife, as the holder of a power of attorney from him in her favour, agreed to a compromise with H Pty Ltd of amounts due upon payment of $40,000. The husband said he was not aware he had not revoked the power of attorney conferred in the wife's favour with the consequence that he was unable to compel H Pty Ltd to pay the outstanding sum of more than $104,219.73. He said that phenomenon led to "financial detriment" to "us" (whosoever "us" was). The husband agreed to his consenting to the 11 August 2025 orders. Of those orders he deposed to the following in paragraph 32 of his affidavit made 11 February 2026 -

On 11 August 2025, (the wife) and I entered into Orders by consent to appoint [Mr E] of [F Real Estate] to find a tenant for the property. That tenancy agreement was for a period of three (3) months and only expired on 12 November 2025. I now understand that there is a clause in the agreement that provides that the Agreement will continue unless formal termination is received.

1. He did not exhibit the tenancy agreement.
2. He did not give the basis of his belief that a clause existed in the tenancy agreement to the effect alleged. Even accepting that the Full Court cautions against making factual findings on the hearing of a contested interlocutory application,[2] a deponent's belief will be admissible on the hearing of a contested interlocutory application so long as the basis of the deponent's belief is stated. The husband did not give that evidence about the basis of his belief.
3. In paragraph 35 of the husband's affidavit he asserted that no reason existed why funds sitting in a law firm's trust account could not be used to meet joint debts. That sentence was not easy to follow beyond it being a submission that in the opinion of the husband, an amount now held in trust could be applied to pay certain debts. Submissions in affidavits are not permitted as they do not meet the requirements of rule 8.16 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. That rule requires deponents to confine their affidavit evidence to matters of fact. Submissions are not matters of fact. The source of funds for the payment of outgoings is stipulated in paragraphs 11 and 12 of the 17 December 2024 consent orders. It was not trust funds.

1. On behalf of the wife, Ms Farmer advanced a collection of submissions in support of the wife's application in the proceeding. They included the following -

(a) the parties consented to the procedure to be applied in the appointment of a tenant pursuant to paragraphs 9 and 10 of the orders made 11 August 2025;

(b) the arrangements for the appointment of Mr E as agent to effect the entry into a lease between the husband and a tenant did not have a time limitation to it;

(c) in order to procure the removal of the husband from the premises, a mandatory injunction is required;

(d) when the orders of 11 August 2025 were made the B Street property was vacant;

(e) the engagement of Mr E was dated 20 August 2025, very shortly after the consent orders dated 11 August 2025 were entered into;

(f) the husband took physical possession of the B Street property after executing the exclusive agency in favour of Mr E by which Mr E was appointed to secure a tenant;

(g) a tenant has been found which is ready, willing and able to enter into a tenancy in respect of the B Street property paying commercial rental thereby providing the parties with a return on the asset;

(h) the husband is unable to pay the rent which the arm's length tenant is willing to pay;

(i) the husband is hiding money;[3] and

(j) as to the husband paying the outgoings he seeks to pay from funds held in trust, Ms Farmer submitted that existing orders made by consent on 17 December 2024, provide for the husband to pay those expenses personally and not out of joint funds or out of funds held in trust.

1. Ms Farmer made no submissions on paragraph 5 of her client's application in a proceeding, that is to say, the application for orders for the wife to be appointed as a statutory trustee to let the B Street property.
2. On behalf of the husband, Mr Hughes advanced a collection of contentions. May I acknowledge with gratitude that Mr Hughes properly conceded propositions which were not arguable and he only pressed arguments that had merit, thereby promoting the best interests of his client as well as efficiency on the hearing of this application. In précis form, he submitted as follows -

(a) no evidence exists that the proposal for a tenancy dated 22 January 2026 has actually been executed;

(b) the husband accepted that all communications in respect of the letting of the B Street property since August 2025 were required to be orchestrated on a joint basis;

(c) the husband moved into the B Street property by reason of there being no other tenant in circumstances where the property continues to incur liabilities;

(d) Mr Hughes accepted that the husband unilaterally moved into the B Street property;

(e) prior to the husband moving into the B Street property, the husband gave no notice of his intention so to do;

(f) paragraph 9 of the consent orders required the husband to behave jointly with the wife in securing a tenant;

(g) Mr Hughes submitted that his client's status as an occupier of the B Street property was as owner;[4]

(h) the husband has paid no rent;

(i) seemingly inconsistently with Mr Hughes' earlier submissions that the husband occupied the B Street property as owner, Mr Hughes later submitted[5] that the husband's company occupied the B Street property (although Mr Hughes did not identify which of the husband's companies occupied the B Street property); and

(j) Mr Hughes conceded that if on the proper construction of events, the husband did not occupy the B Street property, there being no formal written notice of re-entry, then his company as occupant of the B Street property was as a squatter.[6]

1. In an exchange with Mr Hughes, he made submissions as follows[7] -

HIS HONOUR: Well, okay. So tell me what colour of right does your client enjoy to have a squatter in occupation of a property where clause 9 of the consent orders intended for the premises to be rented to derive benefit for husband and wife?

MR HUGHES: There really isn't, your Honour, only on basis that the - - -

HIS HONOUR: Yes. That's the way I was looking at it at a preliminary level, anyway. But persuade me out of that view, please.

MR HUGHES: No. I can't argue with your Honour in relation to that position, only that the effect, if the lease is executed in favour of the husband, means that if it's the same amount as the proposed business, it effectively starts producing money - - -

HIS HONOUR: Well, that's great if he does what he says, but he hasn't done it.

MR HUGHES: Correct.

1. That last mentioned concession was important, it seemed to me. Quite properly, Mr Hughes conceded that the husband had not paid rent for the occupation of the B Street property. In circumstances where the very objective in procuring a tenant to occupy the B Street property was to generate income on valuable real estate, then the purpose of paragraph 9 of the consent orders had been wholly lost upon the husband unilaterally occupying the property, whether personally or through a corporate entity owned and controlled by him, and he was stymying some proper arm's length tenancy from generating income as was the intendment of paragraph 9 of the consent orders.
2. So far as the husband's application for payment of amounts out of trust funds was concerned, Mr Hughes submitted that about $1.6 million is held in trust derived from the sale of real property. Mr Hughes said both parties wish to retain the B Street property. He submitted that it is in the wife's interest to ensure that all debts are removed as soon as possible so as to avoid further erosion of the property pool. Relevantly paraphrased, Mr Hughes agreed that his contentions amounted to the proposition that it is in everyone's interest to pay all the debts specified by the husband from whatever source of funds may be available because, if the debts are not paid, external events might take place having a bearing on the outcome of this case.[8]

1. The two matters most forcefully agitated before me were -

(a) the husband's continued occupation of the B Street property; and

(b) payment of the amounts the husband wanted paid from funds presently held in trust.

1. No debate was directed by either party to the wife's application for her appointment as a statutory trustee to effect a lease of the B Street property.
2. It is appropriate to address first the wife's applications in paragraphs 2, 3 and 4 of her application in a proceeding. In paragraph 2 she sought a restraint against the husband from taking possession of the B Street property, occupying it, causing or permitting any entity in which the husband is a shareholder or officeholder to occupy the B Street property and entering into a lease agreement for the B Street property.
3. At a factual level, the husband physically took occupation of the B Street property in January 2026, that is to say, prior to the application dated 5 February 2026. The restraints sought in paragraph 2 of the wife's application in a proceeding were otiose as the husband had already done the acts which the restraints were intended to stop. No useful purpose would be served in making the order sought in paragraph 2. It is generally acknowledged that a quia timet injunction will not be ordered if the acts alleged as constituting the apprehended harm have in fact occurred, as Dr I.C.F. Spry QC wrote in his seminal publication The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages (Law Book Company, 4th ed, 1990) at pages 369-373.
4. On the other hand, if by paragraph 2 the wife was endeavouring to restrain the husband from any future attempt to let the B Street property, a quia timet injunction may be available so long as the evidence of apprehended fear of that conduct supported such an order, despite the husband already being in possession. In my view, the evidence did not travel that far.
5. In my view relief in the terms sought in paragraph 2 of the wife's application in a proceeding was not available.
6. As the husband, in some capacity or other, has taken possession of the B Street property, the application raised in paragraph 3 of the wife's application in a proceeding was enlivened. In that application, the wife sought an order that the husband vacate forthwith the B Street property.
7. There seemed to be no dispute that the husband took physical possession of the B Street property on some date in late January 2026, although the precise date was not ascertainable on the evidence. By 22 January 2026 he had written to the agent informing Mr E that a tenant had been sourced, the husband indicating that the effective date of which tenancy was 1 February 2026.
8. In debate with Mr Hughes, he submitted first that the husband took occupation of the B Street property then Mr Hughes submitted that one of the husband's companies took occupation. Mr Hughes did not identify which company he submitted actually physically took possession. As has already been observed, no notice of re-entry was adduced in evidence to illuminate the contention about the identity of the company which allegedly took occupation. For that matter, next to no evidence was adduced about the acts constituting the taking of possession. Be that as it may, it was plain enough that the husband, whether by himself or by companies owned and controlled by him, physically entered the B Street property on a date in late January 2026.
9. The next issue was whether the conduct of the husband in entering into possession of the B Street property was consistent with the obligations which bound him under paragraphs 9 and 10 of the consent orders made 11 August 2025.
10. In my judgment, it was not.
11. When properly analysed, paragraph 9 of the consent orders required the husband to do a collection of acts. They were -

(a) to appoint Mr E as the agent for the husband and wife;

(b) the task of appointing Mr E had to be undertaken "forthwith", importing an obligation of immediacy; and

(c) in appointing Mr E, the husband was required to "do all acts and execute all documents" to achieve the appointment of Mr E.

1. Whether those obligations equated with the implied term of cooperation in a contract was not argued. Such an implied term is to the effect that both parties to a contract will do all things so as to give the benefit of the contract to the other party, as was held in McKay v Dick[9] and more recently by the High Court in Secured Income Real Estate (Aust) Pty Ltd v St Martins Investments Pty Ltd.[10]
2. At all events, pursuant to paragraph 9 the husband and wife were required to do the things canvassed above "to secure a tenant". No time was prescribed in paragraph 9 for the attainment of the task of securing a tenant.
3. The exclusive agency for the appointment of Mr E was not exhibited to any affidavit filed in support of the applications returnable on 13 February 2026, as has already been observed. Nonetheless, on behalf of the wife Ms Farmer provided what she called a "tender bundle" of documents. They consisted of documents which were not proved in any way. They were not admissible on this application, absent consent. The documents making up the so-called tender bundle had no evidentiary status. There was no reason why they could not have been properly proved by a witness capable of attesting to them if they were important in some way. It was by sheer chance that I uncovered the tender bundle in an email sent to my chambers and when I enquired about its status, Ms Farmer obtained her opponent's consent to relying on them. The most significant document from the wife's so-called tender bundle was the leasing agency agreement made on 20 August 2025 between the husband and Mr E's company, F Real Estate. It is necessary to go to that agreement in precise terms.
4. While this was not the subject of evidence from either the husband or the wife, it seemed that chronologically the consent orders were made on 11 August 2025 and on 20 August 2025 (nine days later) Mr E had prepared the leasing agency agreement. The principal was not identified in the document. For that matter, item 1 of the recitals was as follows -

The party named in Item 1 Error! Reference Source not found of the schedule (as hereinafter defined) (the Principal); and...

1. That error, while significant for certain purposes, may not matter because item 1 of the schedule identified the husband by name along with his mobile number and email address. F Real Estate was the agent described in item 2 of the schedule. Recitals A, B and C provided in substance that the principal owned the property (defined by title particulars and street address applicable to the B Street property), that the principal warranted his authority to enter into the agreement and that the principal wished to appoint the agent as the sole and exclusive agent during the defined term to lease the property in accordance with the terms and conditions of the leasing agency agreement.
2. F Real Estate became entitled to payment of its fee upon it effecting a binding agreement (as defined).
3. The duration of the exclusive agency was defined to run from commencement until 12 November 2025. However, clause 3(b) of the leasing agency agreement provided that the agreement would continue to remain in force unless terminated in accordance with clause 11. Pursuant to clause 11(c) of the agreement, even after the expiration of the term of the agreement, the exclusive agency continued until delivery of a written notice.
4. In this case, the affidavit evidence disclosed that the husband appointed F Real Estate in compliance with the 11 August 2025 order. No evidence was given about the actual date when the husband executed the leasing agency agreement yet it is dated 20 August 2025 which seems to be the best evidence of its actual date. The term of the agreement was stated to expire on 12 November 2025. However, even after the expiration of that date, the agreement continued in accordance with clause 11. No evidence was adduced that the husband served a notice on F Real Estate as required by clause 11(c). Accordingly, during the currency of the agreement, the husband wrote to Mr E on 22 January 2026 stating that he (the husband) had secured a tenant.
5. The husband took up occupation of the B Street property. He did not enter into possession as a tenant. He was the owner. He did not inform Mr E that he took up occupation under a lease nor, for that matter, was there any correspondence involving the husband about the terms of any such lease involving the B Street property. No correspondence involving Mr E was adduced in evidence involving a prospective tenant. For that matter, no "tenant" was involved at all because on one construction of the evidence the husband simply retook possession in his capacity as owner.
6. The consent orders made 11 August 2025 required the husband to appoint Mr E so as to "secure a tenant". The husband did not do that. He entered into possession of the property instead in his capacity as owner, not as a tenant. One wonders how in fact and in law he could occupy the B Street property as a tenant while he was at all relevant times the owner of the same parcel of land. No evidence existed that he paid rent in respect of his occupation. His occupation of the B Street property prevents a lease to an arm's length commercial tenant willing to pay proper market rates being entered into.
7. The husband's conduct in taking possession in the circumstances narrated above will call for cross-examination at the trial of this proceeding.
8. However, unless orders are made for the removal of the husband from his occupation of the B Street property, the parties will be denied the opportunity of letting that property on proper commercial terms at current market rates. The property is currently valued at $1,500,000.
9. Paragraph 3 of the wife's application in a proceeding is the source of her claim for an order for the husband to forthwith vacate the B Street property.
10. Little in the way of submissions was directed to the application in that paragraph. It is in reality an application of mandatory injunction of the sort canvassed by the High Court in Smethurst v Commissioner of Australian Federal Police.[11] The power to make the relevant order is found in s 114(1)(e) of the Family Law Act, being an order in relation to property of the parties to the marriage. The "property" to which the application relates is the B Street property. In my view, it is appropriate in all the circumstances to make the order sought in paragraph 3 of the wife's application in a proceeding. I say that for several reasons. First, while the husband is the registered proprietor of the B Street property and prima facie entitled to exercise rights of ownership including occupation, consent orders were made on 11 August 2025 by which the husband agreed to do all things for the securing of a tenant for that parcel of real property. The consent orders contained no stipulation, express or implied, allowing the "tenant" so secured to be one and the same as the registered proprietor.
11. Second, the consent orders of 11 August 2025 were made with a view to generating rental income to be aggregated to the value of other assets to be addressed in the s 79 application. Rental income has not been generated during the time the husband has occupied the B Street property. That has defeated the purpose of the consent orders for the renting of the B Street property. One way a prospective tenant can meaningfully consider taking on the tenancy of the B Street property is with vacant possession. To do that, the B Street property must be vacated. The husband has chosen to store heavy machinery at the B Street property. He should have a reasonable time within which to remove that heavy machinery. Three days will suffice for that. I make the order sought in paragraph 3 of the wife's application in a proceeding.
12. The wife also seeks (paragraph 4 of her application in a proceeding) orders for the delivery up by the husband of keys to the B Street property, such delivery up to Mr E. The evidence revealed that one set of keys exists. The agent will need the keys to enable him to let the B Street property. The return of the keys should coincide with the giving of vacant possession. Accordingly, I make an order in terms of paragraph 4 of the wife's application in a proceeding, the date being forthwith for the return of the keys.
13. Paragraph 5 of the wife's application in a proceeding is her pursuit for orders appointing the wife as statutory trustee to let the B Street property. As has been set out above, no submissions at all were directed to orders in those terms. No evidence has been adduced to the effect that the husband has or will refuse to execute a lease approved by Mr E, the tenant being M Company. In those circumstances a valid basis does not yet exist to appoint the wife as the statutory trustee to execute a lease in respect of the B Street property in favour of M Company as tenant. However, if -

(a) Mr E presents a draft lease to the husband naming M Company as tenant and the terms of it are no less favourable as are the terms under consideration immediately prior to the husband taking possession of the B Street property in January 2026; and

(b) the husband fails, refuses or neglects to execute such lease within 72 hours of being presented with it for the husband's execution,

then I will entertain a renewal of the wife's application for her to be appointed as statutory trustee to execute that instrument of lease as owner. Any such application must be made on proper material, however.

1. Aside from his costs application, in his response dated 11 February 2026 to the wife's application in a proceeding, the husband sought orders dismissing the wife's application, and he sought orders -

(a) permitting him to take up possession of the B Street property and as a director of H Pty Ltd to have permission to enter into a lease of the B Street property paying rent into a CBA account; and

(b) permitting funds presently held in trust by AFL Withnalls to be used to pay seven amounts due to parties set out in paragraph 3 of the response. Each calls for a separate consideration.

1. I have made various orders on the applications made by the wife so the husband's application for orders dismissing her application in a proceeding is itself dismissed. In other words, I refuse paragraph 1 of his response filed 11 February 2026.
2. Paragraph 2 of the husband's response is expressed in the alternative. In paragraph 2(a) of his response, the husband sought orders permitting him to take up possession of the B Street property. Alternatively, in paragraph 2(b) the husband sought an order permitting him, for H Pty Ltd, to enter into a lease for the B Street property from himself.
3. Many of the legal complications associated with the application set out in paragraph 2 of the husband's response have already been canvassed above. In respect of the application in paragraph 2(a), the owner of the property is the husband, and he asks for permission to take up possession as tenant of the land of which he is already registered proprietor. It was not explained to me how one could both be landlord and tenant of the same land at the same time. He offered no proposal to pay rent. He gave no insight into the terms under which his possession would proceed. Having regard to the fact that one of the reasons underpinning the consent orders made on 11 August 2025 was the need to make the B Street property income producing by an arm's length tenant occupying that property on commercial terms paying market appropriate rent, proposal 2(a) did not achieve that outcome. It was contrary to the intendment of paragraph 9 of the 11 August 2025 orders. It offered no benefit to the wife but it solved the storage problem for the husband. I refuse to adopt that course.
4. The proposal in paragraph 2(b) of the husband's response was both imprecise and uncommercial. The proposal was wholly silent as to main terms which any such lease would incorporate. It made no provision about the amount of rent payable, the duration of the lease, it was silent about renewals of terms and events of breach. The proposal in paragraph 2(b) of the response was not an arm's length commercial transaction. Instead it was a proposal for land owned by the husband to be rented by a company owned and controlled by the husband. There would be no objectivity whatsoever in any such arrangement. If rent were to be unpaid, it was most unlikely that the husband would serve a notice of default on the tenant which he owned and controlled. It must not be overlooked that the B Street property is valuable real property, capable of generating income and which should generate income. The rationale underpinning paragraph 9 of the consent orders of 11 August 2025 was the generating of income from rental derived by letting valuable commercial property. No amount of rent is specified in paragraph 2(b) nor are the terms of any lease given. It resembles an agreement to agree. But the proposal in paragraph 2(b) suffers from the incurable defect that the proposed arrangement is between the husband as owner and landlord with the husband as the controlling mind of the tenant. It is inescapably an arrangement which is uncommercial as well as not one at arm's length. I refuse to grant either proposal, that is to say paragraphs 2(a) and 2(b).
5. The specific amounts in paragraph 3 of the husband's response require separate consideration. The wife opposed the application of trust funds to pay any of the items enumerated in paragraph 3(a) to 3(g).
6. Several of the items relate to the B Street property. For example -

(a) the sum of $188,000 mentioned in item 3(c) relates to the B Street property;

(b) the amount of $5,664.47 mentioned in item 3(e) as being due to City D Council relates to rates due to the B Street property;

(c) the sum of $1,541.13 mentioned in item 3(f) relates to an account for water and sewerage rates due for the B Street property; and

(d) the sum of $1,241.59 due to P Company mentioned in item 3(g) relates to electricity supplied to the B Street property.

1. The amount in item 3(a), namely $44,476.91 is said to be an amount which should be applied to pay out equipment refinancing on Motor Vehicle 1.
2. The amount in item 3(b), namely $20,875.83 is said to be an amount which should be applied to pay out equipment refinancing for Motor Vehicle 2.
3. The amount in item 3(c), namely $188,000 is said to be loan arrears under the mortgage on the B Street property.
4. The amount in item 3(d), namely $12,000 is said to be owing under an overdraft.
5. Mr Hughes for the husband agreed that each amount in paragraph 3(a) to 3(g) of the response should be paid from trust because if those amounts are not paid, external creditors are likely to enforce their remedies.
6. Ms Farmer for the wife argued that paragraphs 11 and 12 of the consent orders made on 17 December made provision for the husband to pay all loan repayments, insurance, registrations and maintenance for all plant and equipment. She said paragraph 12 provided that the husband was required to pay all plant and equipment loans.
7. The husband's position seems to amount to little more than his identifying that a large sum is presently held in trust which could be applied to meet the amounts he claims. That is not the correct way to look at the situation, absent consent. The husband has already consented to orders in the terms provided for in paragraphs 11 and 12 of the 17 December 2024 orders. No orders have been made qualifying those orders. The consent orders should be adhered to. The items in paragraphs 3(a) and 3(b) fall within the terms of paragraphs 11 and 12 of the 17 December 2024 consent orders. The husband must pay those items himself and not from funds in trust. Accordingly, I dismiss the applications in paragraphs 3(a) and 3(b) of the husband's response.
8. As the owner of the B Street property, the husband is liable to pay outgoings associated with that parcel of real property. Accordingly, he must meet from his own resources and not from funds in trust the sums in paragraphs 3(c), 3(e), 3(f) and 3(g).
9. The overdrawn sum of $12,000 mentioned in item 3(d) of the husband's response is not caught by paragraphs 11 and 12 of the 17 December 2024 orders. No provision in any of the paragraphs of the consent orders made on 17 December 2024 or 11 August 2025 address bringing the overdraft up to date. The amount at issue is $12,000, a relatively modest sum. No evidence existed to the effect that enforcement steps had been initiated to recover the $12,000. By the same token, no evidence supported the submission that the sum of $12,000 should be distributed from trust. I decline to make the order sought by the husband in paragraph 3(d) of his response. I refuse the whole of the subparagraphs in paragraph 3 of the husband's response.
10. It is inappropriate to address costs as no party made submissions about them.

1. Cases transferred to my docket seldom, if ever, incorporate trial directions of the sort I routinely make for trials conducted by me. My associates have supplied the legal representative of the parties with my proforma standard trial directions. I invite the parties to incorporate as additional trial directions any from the proforma set not already incorporated. Any such directions must be the subject of consent, and they are to be returned to me by Monday, 2 March 2026, that is to say one week from today.
2. The husband must address the proposal submitted by M Company immediately. However, it is premature to appoint the wife as trustee unless and until the husband refuses to execute the lease to M Company.

I certify that the preceding eighty-seven (87) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson.

[1] That was obviously an error because a trust is not a legal entity so the shareholders in G Pty Ltd was not the trust. She earlier deposed to K Pty Ltd being the trustee of the Melek Family Trust.

[2] Redmond & Redmond [2014] FamCAFC 155 and SS & AH [2010] FamCAFC 13.

[3] Transcript 13 February 2026 page 12 line 45.

[4] Transcript 13 February 2026 page 22 line 10.

[5] Transcript 13 February 2026 page 22 line 42.

[6] Transcript 13 February 2026 page 23 lines 1 to 17.

[7] Transcript 13 February 2026 page 23 lines 19 to 34.

[8] Transcript 13 February 2026 page 25 line 90.

[9] (1881) 6 App Cas 251, 263.

[10] [1979] HCA 51; (1979) 144 CLR 596.

[11] [2020] HCA 14; (2020) 272 CLR 177.