Millet & Millet [2025] FedCFamC1F 681 (25 September 2025)

1. That the husband shall advise the wife's solicitor by no later than 4.00pm on 9 October 2025 as to whether he elects to pay out the wife the sum of money as particularised in the Reasons for Judgment delivered 25 September 2025 or as to which real property he elects to sell.
2. That within by 4.00pm on 16 October 2025, the wife's solicitor shall provide to the husband's solicitors a proposed minute of final order consistent with the Reasons for Judgment delivered 25 September 2025.
3. That these proceedings otherwise be listed for pronouncement of orders at 9.30am on 23 October 2025 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.

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

1. These property proceedings relate to the Applicant wife, Ms Millet ("the wife") currently aged 46 years and the Respondent husband, Mr Millet ("the husband") who is currently aged 49 years. The parties, who married in 2007, share two children, X and Y who are now aged 16 and 12 years respectively.
2. On 22 October 2024, I made final parenting Orders by consent of the parties. In short, those Orders provide for the parents to have joint decision-making responsibility and for the girls to live with their parents on a shared care, week about basis.
3. The following Reasons demonstrate how the Orders I propose to pronounce achieve justice and equity to both parties.

1. Shortly stated, but more concisely and elaborately described in the Full Court decision in Hickey & Hickey [2003] FamCA 395; (2003) FLC 93-143, in a property settlement case, the Court must adopt a well-known four-step process, essentially:

(a) to identify the pool of assets and liabilities generally, and usually at the time of hearing;

(b) to assess the relative contributions of both the financial, non-financial, direct and indirect nature as specified by s 79(4);

(c) to consider the factors as are relevant contained in s 75(2) of the Act; and

(d) finally, consider the ultimate analysis to determine whether the order the Court proposes to make is just and equitable to both parties.

1. From 10 June 2025, the Family Law Act 1975 (Cth) ("the Act") was amended (subject to the Family Law Amendment Act 2024 (Cth) ("the Amendment Act") to include changes as to how the courts determine a property settlement. As the final hearing in these proceedings commenced prior to 10 June 2025, I need make no further comment as to why those particular provisions will not apply to these proceedings.
2. I find it is just and equitable, within the meaning of s 75(2) of the Act, to make a property alteration order.

1. Before I commence a contextual summary of the relationship between the husband and wife, I observed, which the transcript will reveal, that the material filed by both of the parties, but perhaps more so by the husband, places an emphasis on issues of perceived morality. The husband in both his trial affidavit and case outline makes a point of naming several men of which he alleges the wife had casual "flings" with in the early 2000's - some 20 years ago. The parties, or their solicitors drafting material on their client's instruction, have sadly chosen to paint the other party in an unfavourable light. As two people who will remain active co‑parents, I expressed my disappointment at such approach.
2. Statements of fact hereinafter should be construed as findings of fact.
3. It does not appear to be disputed that the parties had commenced some form of relationship (whether it be some casually and non-exclusive dating on the husband's evidence or monogamous dating on the wife's evidence) by at least early 2000, when the wife was approximately 21 years of age, and the husband 24 years. All the husband was prepared to concede is that by the end of 2004 the couple were "seriously dating".
4. By January 2000, the husband had owned in his sole name:

(a) the property situated at C Street, in Suburb D, New South Wales ("the Suburb D property"), which was purchased in 1998 for approximately $96,000. The husband says this property was rented to a friend, Mr B. Mr B has also filed an affidavit (on 21 January 2025) in these proceedings in support of the husband's case; and

(b) the property situated at E Street, Suburb F, New South Wales ("the Suburb F property"), which was purchased in 1999 for $269,000 and also rented out.

1. In 2002, the husband purchased a further property situated at G Street, Suburb H, New South Wales ("the Suburb H property") for approximately $265,000.
2. In 2004, the husband purchased another property situated at J Street, Suburb K, New South Wales ("the Suburb K property") for approximately $338,000, with the parties occupying the property from around April 2009.
3. In late 2005, the husband established his business "L Company".
4. The husband, confusingly, asserted some "separation" in early 2005 before he concedes cohabitation in late 2006. I do not accept the husband's version of the relationship.
5. In 2007, the parties married.
6. In October 2008, the wife received an inheritance of $20,000 from the estate of her late father, of which she says $10,000 was transferred to the husband's bank account.
7. In 2009, the property situated at E Street, Suburb F, New South Wales was sold for $515,000 - with the wife giving birth to the couple's first daughter, X, in 2009. The following year, in 2010, the husband purchased the property situated at M Street, Suburb N, Queensland ("the M Street property") for approximately $732,000 - where the family resided, including Y who was born in 2013, until the wife and the children left the home in July 2022. The wife says that it was her understanding the property had been purchased in the names of both of the parties, but that was not the case.
8. In mid-2016, the husband asserts the parties separated on a final basis, however continued to live under one roof in the Suburb N property. The wife, at paragraph 29 of her trial affidavit, asserts that while the parties may have had arguments during this period, she did not consider herself separated from the husband. Certainly, I accept the husband's evidence that from the end of 2018, the parties slept separately and the relationship was strained.
9. In early 2019, the Region O Council issued its first Enforcement Notice in relation to the Suburb N property - with the Council not finalising their investigation until mid-2024.
10. The wife asserts that on 18 July 2022, the parties separated on a final basis, with the wife and the parties' two daughters leaving the matrimonial home and living temporarily with the wife's mother before then, in 2023, securing her own rental accommodation.

1. The wife commenced proceedings in Division 2 of this Court on 30 August 2023, seeking property adjustment orders only. On 13 October 2023, the wife filed an amended Initiating Application introducing parenting matters. The husband filed his first Response in these proceedings on 23 October 2023.
2. The proceedings progressed through the case management pathway, with the parties reaching interim parenting orders by consent at a Court facilitated dispute resolution conference held by a Judicial Registrar on 26 October 2023. The wife filed an Application for Divorce in November 2023.
3. Following the making of the interim parenting Orders on 26 October 2023, more focused attention was directed to the property aspect of the proceedings, with the wife amending her Initiating Application on 29 November 2023 to particularise interim orders seeking spousal maintenance, litigation funding and for the husband to provide the wife with a suitable motor vehicle. That interim application was resolved by consent Orders made by a Senior Judicial Registrar on 30 November 2023. Relevantly, Order 1 of those consent Orders provided:

1. That no later than 21 days from the date of these orders the Husband cause the sum of $100,000 ("the transferred funds") to be paid into the trust account of the Wife's solicitors or as directed by the Wife's solicitors and in relation to that transfer:

(a) It is noted that the parties have agreed that any funds expended by the Wife on legal fees in these proceedings from the transferred funds, from the previous transfer to the Wife in January 2023, and from the parties' children's bank accounts, are to be regarded as add-backs within these proceedings; > > (b) It is noted that the Wife intends to pay her rent in advance from those transferred funds; > > (c) It is noted that the source of the transferred funds is to be a further redraw on the bank loans in the Husband's name.

4. Further orders were made on this occasion restraining the wife from drawing any further funds from the bank accounts held in the names of the parties' children and for the wife to disclose documents pertaining to the mechanical state of her motor vehicle and the bank statements of the bank accounts held in the names of the children, X and Y. The parties also agreed to engage in a parenting and property mediation, facilitated by experienced mediator, Ms P.
5. Several months later, following a fresh Application in Proceeding filed by the wife on 6 March 2024, a Judicial Registrar made interim consent Orders on 21 May 2024 for further funds to be paid to the wife, being:
   1. Within thirty (30) days, the Husband shall pay to the Wife the further sum of $120,000.00 to an account of Toomey Family Law (to be nominated) for anticipated legal costs and outlays in these proceedings, which funds shall be regarded as an addback in the property pool for division between the parties in these proceedings.

Along with further orders for disclosure:

1. Within fourteen (14) days:
   1. The Wife will disclose all bank statements pertaining to her superannuation drawdowns and the deposits of same;
   2. The Wife will disclose evidence from [PP Company] that the Husband's phone number is not linked to her account; and
   3. The Husband will disclose his superannuation statements in the 2020‑2021 financial

1. On this occasion, Orders were also made in relation to an issue (which remained live at the final hearing) being secondary dwellings and fixtures constructed on the Suburb N property and a Show Cause Notice issued on 16 October 2019 by the Region O Council (which is mentioned in correspondence from the Council, such correspondence being marked as Exhibit 8). Q Company was appointed as a single expert "to value the demolition and removal of all building structures and foundations at the former matrimonial property". No report from this expert has been relied upon by the parties.
2. When the matter came before a Judge in Division 2 for a Compliance and Readiness Hearing on 15 July 2024, it was transferred to Division 1 and referred to me as the Case Management Judge of Division 1 at that time. Some notations in the Order of 15 July 2024 indicated that:

(a) the parties intended calling 23 witnesses at the final hearing for both the parenting and property aspects;

(b) the length of the parties' relationship appeared to be disputed with the wife asserting the relationship was between 1999 and 2022 and the husband asserting the relationship was between 2006 and 2016;

(c) the wife asserted two properties were purchased in 2002 and 2004 respectively, when the parties were in a relationship, whereas the husband asserted that such properties were purchased prior to the commencement of the relationship;

(d) the wife contended that the husband has made negative contributions towards the property; and

(e) the husband was asserting the wife had wasted the majority of the interim property settlement paid to her.

1. On 22 October 2024, I made final parenting Orders by consent, essentially in a week about regime. The property proceedings were listed for final hearing to commence on 26 February 2025.
2. Issues surrounding the real properties continued to consume the parties' time in the months before the final hearing commenced, with a further Application in a Proceeding being filed by the husband seeking retrospective valuations be prepared in addition to current properties; and that the main house on the property subject to the demolition notice (the former matrimonial home), be included within such report. I made further orders in the terms sought in such Application to ensure the efficient running of the final hearing, scheduled to commence in less than a month's time.

1. On 26 February 2025, the final hearing commenced with Mr Alexander of Counsel appearing on behalf of the wife, and Mr Mould of Counsel appearing on behalf of the husband. Significant delays presented on the first morning of the trial due to valuations being filed late, balance sheets being updated and objections to evidence being delayed due to incorrect filing of such material on the Commonwealth Courts Portal.
2. Following my preliminary rulings on the objections to evidence and other housekeeping discussions, the wife's cross-examination commenced at 2.45pm on the first day of the trial.

1. At the commencement of the trial, the wife sought orders in terms of her amended Initiating Application filed 24 January 2025. The effect of the orders sought is that the wife seeks she retains a 50% share of the overall property available for division. To facilitate such orders, the wife seeks, inter alia, that:

(a) the four properties held by the parties be listed for sale; and

(b) the husband transfer $70,692 of his superannuation interest to the wife's superannuation.

1. The husband filed a further amended Response on 25 February 2025, being the day prior to the trial commencing. As particularised in that Response, the husband seeks a division of overall property as 25% to the wife, and with the husband to retain 75%. To achieve such division, the husband broadly seeks orders where:

(a) the husband will transfer $85,500 of his superannuation interest to the wife's superannuation; and

(b) the husband will pay to the wife a cash sum that equates to her receiving 25% of the overall position.

1. Where the husband is unable to pay to the wife a cash sum, the husband proposes one or more of the three properties located in New South Wales be sold.
2. The husband also seeks orders that he shall arrange for the demolition of all structures on the M Street property, which are subject to an Enforcement Notice issued by the Region O Council on 12 October 2022, within 60 days of the Council requesting the husband do so.
3. Lasty, the husband seeks orders that the wife open separate bank accounts for their daughters X and Y and transfer any monies gifted by the paternal grandparents to the girls into their respective bank accounts, with the wife being restrained from drawing from that account without further agreement.
4. It is appropriate to record that at the conclusion of the trial on 28 February 2025, Counsel for the wife made some brief oral submissions but essentially relied on fulsome written submissions dated 28 February 2025. Counsel for the husband sought to prepare and deliver written submissions in Response, which he did dated 3 March 2025. The wife was given leave to file any submissions in reply, which she did dated 4 March 2025, from which date the judgment was reserved.
5. The Court regrets the delay in publishing these Reasons.

1. As Ordered on 22 October 2024, the parties were each required to file a case outline by no later than 19 February 2025. While such Order was complied with, both the wife and husband filed amended case outlines after such date, with the wife's being filed on the afternoon of 24 February 2025 and the husband's being filed on the afternoon of on 25 February 2025 - with the final hearing commencing at 10.00am on 26 February 2025.
2. The wife's updating case outline provided amendments in relation to the balance sheet only.
3. The husband's updating case outline sought to rely on further affidavits of witnesses and affidavits annexing reports and/or valuations.
4. After establishing with Counsel what expert reports were yet to be received by the parties, I proceeded to make preliminary rulings on the parties' objections to the evidence, which was marked as Exhibit 3.

1. As particularised in her amended case outline filed 24 February 2025 filed by leave, the wife relied upon the following material which I have considered:

(a) Amended Initiating Application filed 24 January 2025;

(b) Affidavits of herself filed 24 January 2025 and 14 February 2025;

(c) Financial Statement filed 24 January 2025;

(d) Affidavit of Mr R filed 6 February 2025;

(e) Balance sheet filed 13 February 2025;

(f) Affidavit of Ms S filed 24 January 2025;

(g) Affidavit of Ms T filed 24 January 2025;

(h) Affidavit of Ms U filed 24 January 2025; and

(i) Affidavit of Ms V filed 24 January 2025.

1. The wife also sought to rely upon further valuations from the single joint expert which were yet to be filed.
2. The wife, Ms T, Ms V and Ms S were subject to cross-examination by the husband's Counsel.
3. I have not considered the affidavit of Ms W filed 31 January 2025, which the wife sought to rely upon in her case outline. As Ms W was not available to appear before the Court for cross‑examination, the wife no longer sought to rely on her affidavit.

1. As particularised in his amended case outline filed 25 February 2025, the husband sought to rely upon the following:

(a) Further amended Response filed 25 February 2025;

(b) Affidavits of himself filed 24 and; 27 January 2025 and 7 February 2025;

(c) Affidavit of Mr Z filed 1 October 2024;

(d) Affidavit of Mrs AA filed 24 January 2025;

(e) Affidavit of Mr BB filed 21 January 2025;

(f) Affidavit of Mr CC filed 24 January 2025;

(g) Affidavit of Mr DD filed 1 October 2024;

(h) Affidavit of Mr B filed 21 January 2025;

(i) Affidavit of Mr EE filed 21 January 2025;

(j) Affidavit of Mr FF filed 24 January 2025;

(k) Affidavit of Dr GG filed 23 January 2025;

(l) Affidavit of Mr HH filed 11 February 2025;

(m) Affidavit of Ms JJ filed 20 September 2023;

(n) Affidavit of Ms KK filed 17 July 2024;

(o) Affidavit of Mr LL filed 24 January 2025;

(p) Affidavit of Mr R filed 6 February 2025; and

(q) Affidavit of Mr NN filed 30 January 2025.

1. Throughout the course of the hearing, I made rulings on material upon which the husband could ultimately rely upon. In short, I did not permit the husband to rely upon the following material:

(a) The husband's affidavit filed 24 January 2024 (being late);

(b) The affidavit of Ms JJ filed 20 September 2023 (being unrelated to the property proceedings); and

(c) The affidavit of Mr NN filed 30 January 2025.

1. The husband was the only witness subject to cross-examination in his case.
2. While omitted from both parties' case outlines, the husband and wife also sought to rely upon an affidavit of Mr MM filed 27 February 2025. Mr MM is an accountant and was jointly instructed by the parties to prepare a report in relation to Capital Gains Tax (CGT) issues.

1. Exhibit 2 tendered 27 February 2024 was an attempt at a joint balance sheet where, and as the final submissions demonstrated, most items were identified and agreed as to value. The single expert valuers for the four real properties were not required for cross-examination although, as discussed, how the value of the M Street property should be assessed in light of evidence of non-compliance with local authority requirements and the husband's assertion of costs to demolish, is an issue.
2. Various disputes as to liabilities to be included in the balance sheet also exist and require determination.

1. In 2010, the husband purchased the Suburb N Road property for $732,000. As his evidence (at paragraph 49) makes clear, at the time of purchase he "bought it for land value because it contained six (6) structures that were not Council approved, termite damage, asbestos and a heavily rusted roof on the home". Yet the husband and the wife and their children lived in the property for over 11 and a half years until July 2022. The photographs attached to the single expert valuation speak volumes.
2. As early as September 2019, the husband was aware that the defects and non-compliance had come to the attention of the local council, the Region O Council. The husband says that he has, with limited funds available, sought to remedy the defects. Curiously, the husband was able to negotiate with the local authority to remove the dwelling from the Enforcement Notice, by obtaining a development application.
3. The husband's evidence is that he will continue to reside on the property - which, even in its present state, is the home the children spend half of their time living in.
4. Exhibit 1 is a letter dated 5 June 2024, where the local authority advised the husband, inter alia, that:

(a) compliance action is closed;

(b) a notation has been placed against the property advising of the unapproved structures and which note will only be removed if structures are removed or building approval is obtained; and

(c) the only approved habitable structure is the main dwelling. No other structure on the property is to be used for habitable purposes.

1. On the balance of probabilities, I am not satisfied the husband has any intention to demolish the home he lives in with the children. He has chosen to occupy this dwelling, as defective as it may be, for over 15 years. I am not satisfied he intends to demolish other structures, some of which he constructed. It does not seem now that the Council is likely to make him do so in the foreseeable future.
2. Whilst I accept that if he wished to sell the property, any potential purchaser would become aware of the notation on Council records, the husband has made it clear he would only sell the property as a last resort.
3. The evidence of demolition expert Mr HH was based on instructions that his quotation only related to the gazebo, sheds and second dwelling (not the main dwelling), yet his quotation dated 29 January 2025 relates to "all Structures, including slab/footings and visible Non-Friable Asbestos" [sic]. Doing the best I can on this evidence, it includes demolition of the main dwelling. As a result, the non-particularised assessment of demolition costs totalling $216,700, cannot be accepted.
4. The best evidence available to the Court on the market value of the property is the unchallenged evidence of Mr R who opines, as instructed, the market value of the property on a vacant land basis is $1,050,000. If there was to be demolition or removal of debris, then Mr R opined an allowance of $50,000. I do not regard that estimate as more than an "observation" where Mr R says "I recommend formal quotations be sourced".
5. I intend to include in the balance sheet a figure for land value only of $1,050,000 where:

(a) that is the unchallenged evidence;

(b) the main dwelling is used, as it has been for 15 years, and the husband has provided no evidence as to what it will cost to obtain the required building approval; and

(c) I am not satisfied the husband will demolish anything - especially where it seems the Council, having closed the case, will not be asking him to do so.

1. There is no doubt that a sale of real estate by the husband of the properties at Suburb D, Suburb H and Suburb K are likely to incur a capital gains tax. The parties jointly engaged accountant Mr MM to provide a report - which he did on 26 February 2025. Mr MM was not required for cross-examination, but apart from setting out the asserted costs base for each property, the total estimate of tax of $437,218 (excluding anything for the Suburb N Road property), seems to:

(a) not take into account any allowance for an increase in the cost base, from "legal fees, stamp duty, improvement costs and other associated expenses" since the date of acquisition. All that appears to have been used is the original purchase price; and

(b) adopt a marginal tax rate of 47% - whether the taxation returns of the husband for the year ended 30 June 2024 (for example) show a very modest taxable income of $31,703 - much less than the top marginal rate.

1. The husband submits that a claim for CGT of $437,218 should be "factored in the asset pool" because the husband will have to sell at least one property in New South Wales. In his evidence, the husband suggested he would sell the Suburb D property first, and then would sell the Suburb K property.
2. The wife properly concedes that if a property must be sold, then a CGT allowance should be made (see Rosati & Rosati [1998] FamCA 38). I agree. Where it seems the husband will try to retain as much of his property portfolio (additional to the Suburb N Road property) as he can, it would not be appropriate to incorporate CGT in the pool of interests - but rather, as the wife proposes, make allowance for a liability from the proceeds of any sale on a particular property.

Furniture etc. purchased by the wife post January 2025

1. The wife obtained the benefit of a voluntary payment and two Orders of the Court requiring the husband to pay sums of money to the wife, being:

(a) on or about 5 January 2023 - $100,000;

(b) 30 November 2023 - $100,000; and

(c) 6 March 2024 - $120,000.

1. Considering some part of those payments related to reasonable living expenses and support in the form of spouse maintenance, Exhibit 2 reveals an agreed "add back" of $250,000 in the wife's favour. On this basis, it seems it would be "double counting" to include monies used from these sums towards the purchase of furniture etc. after 5 January 2023.

1. The husband seeks that a liability of $425,262.46 be included in the balance sheet, which he says he owes to his father, Mr FF and which is repayable by him.
2. Mr FF swore an affidavit filed on 24 January 2025, and after objections were taken and ruled upon by me, Counsel for the wife indicated Mr FF was not required for evidence. In respect of the admissible evidence that remained, the evidence before me was:

(a) annexure "A" was ruled inadmissible through lack of compliance with s 50 of the Evidence Act 1995 (Cth). I also noted at the time when dealing with the objection, that almost the entirety of the funds said to have been paid since physical separation in July 2022, represented payments to the husband for his living expenses; legal fees and the interim property distributions to the wife;

(b) the husband said he would repay the funds and no formal written agreements "regarding the debt" were ever entered into; and

(c) additionally, Mr FF made payments to support his grandchildren (paragraphs 8 and 9) with expenses such as tutoring and extra-curricular activities for the girls. The wife acknowledges that Mr FF was generous in this respect. He also deposited funds to bank accounts of the children from 2000 which he hoped would be available to the children when they turned 21 years of age.

1. The wife contends that the lack of any admissible evidence as to any loans; the failure to "breakdown" the loan; the lack of anything in writing and where a significant proportion of the funds, on the husband's evidence allowed him to meet living expenses, legal expenses and even the partial property payments, all combine to support a submission that the benefits the husband received are not a "loan" and should not be included in the balance sheet (see Biltoft & Biltoft [1995] FamCAFC 45; (1995) FLC 92-614). I agree.
2. For completeness, I will disregard Motor Vehicle 1 in the husband's possession, of which I have no reliable evidence of value. Where the husband says, from his perspective, the parties have been separated since 2016, any current credit card liability he has relates to how he expends his post separation income. There is no evidence that justifies the inclusion of the debt as a joint debt in the balance sheet.
3. Any business debts or other income arising from the husband's personal activities post 2022 are the husband's responsibility. If he had sufficient income to incur a Business Activity Statement (BAS) debt of $12,834 and a personal income tax liability of $8,560 - he should have made allowances to meet his obligations from his income.
4. The existence of Centrelink debts in the name of each party appears to be disputed. The wife in her Financial Statement sworn 24 January 2025 discloses no such liability. The husband did not comply with trial directions by filing a Financial Statement. However, Annexure F to his affidavit was a "screenshot" of a communication said to be from Centrelink. Exhibit 2 asserts the husband's Centrelink debt ($16,352.19) and the wife's Centrelink debt ($21,958). In the absence of reliable evidence (or no evidence at all) and accepting that any debt will remain a personal liability of that individual party, I will ignore the debts - if they exist at all. I do not perceive any injustice to either party by not including them in the balance sheet.
5. As to the alleged debt owed by the husband to Mr CC, when paragraph 4 of Mr CC's affidavit sworn 24 January 2025 was struck out, there was no evidence before the Court to sustain a finding that such a debt exists. Mr CC had never given the husband an invoice; when he did any work is entirely uncertain and what work he did is vague. The husband has not discharged his evidentiary onus to establish the existence of any claimable debt against him.
6. Based on these findings, I find the pool of interests (constituted as one pool because of the modest superannuation interests) to be as follows:

RELEAVNCE AS TO DATE OF COHABITATION AND DATE OF SEPARATION

1. Both parties adduced evidence from various witnesses which was designed to corroborate their evidence, being:

(a) the husband's assertion that cohabitation did not commence until late 2006 and that separation occurred under the one roof in late 2016 - a relationship of 10 years; and

(b) the wife's assertion that cohabitation commenced in early 2000 (or at least by late 2003 when she moved into the shed on the Suburb D property) and that separation occurred when she left the family home in July 2022 - a relationship of 18 years.

1. The husband's clear contention about the date of cohabitation, I find, is shaped by his contention that the Suburb D, Suburb H and Suburb K properties were all acquired before cohabitation. As I explain when dealing with the findings on contributions, little really turns on this distinction. Whether they represent an "initial contribution" by the husband or not, does not lead to those interests being in some way quarantined and protected from any claims by the wife.
2. Similarly, the date of separation, where both parties accepted they continued to live under one roof until July 2022 - and continued to share responsibilities of parenting the two girls - is not a significantly material fact in this matter.
3. Counsel for the husband, in his submissions at paragraph 30 to 40, draws on the evidence of the parties and their witnesses:

(a) For the wife, Ms V and Ms S; and

(b) For the husband, Mr CC; the husband's parents Mrs AA and Mr FF; Mr EE; Mr BB and Mr B.

1. Counsel for the wife, at paragraph 27, submits that the "strength or otherwise of their relationship in the period 1999 to 2005 is unmaterial" and that with their marriage in 2007 and the birth of the children, the Court would be satisfied a relationship had commenced before late 2006. Reply submissions at paragraphs 6 to 11 refer to the vagueness - based on each parties' perceptions - about their relationship. There was no doubt in my mind that the parties' adult relationship was fluid; involved periods when the relationship "cooled" (for example, for four months in 2003); where they lived together in various properties and sometimes for work reasons, did not live together or were living with parents.
2. I have formed the view that from their first meeting in 1999 (when the wife was 20 years of age and the husband was 23 years of age), the development and commitment to their relationship grew over time. I agree with the submissions that there is no need to make a determination pinpointing a critical date of cohabitation. Rather, as with the nature of their final separation, attention is to be directed to the contributions made by each party to the time of the hearing. This is the issue I now turn to in these Reasons.

1. Before I record the nature of contributions made in this matter by both parties, it is important to give some context to the assessment of contributions; namely, this is not a mathematical exercise - akin to giving direct financial contributions, which can more easily be calculated, more weight than non-financial contributions either to the improvement, preservation and maintenance of assets or as a homemaker and parent. In this case, the tenor of the husband's evidence was that, basically, the wife did very little, other than care for the children - but even that concession by the husband was qualified by his somewhat offensive remarks, when invited to accept the contribution of the wife (including breast feeding), that "she had the assets".
2. It is a holistic assessment - not segmented into periods or sought to attach contributions to particular assets - that is to be adopted (see Dickons & Dickons (2012) 50 Fam LR 244 and Jabour & Jabour [2019] FamCAFC 78).
3. The initial contributions must be weighed against the myriad of other contributions made during the relationship, although where, as this case demonstrates, some of those assets have been retained, some weight can be applied to the concept of those assets being a "springboard" to the creation of the existing property interests (see Pierce & Pierce (1998) FLC 92-844).
4. Where some of the assets available in the pool of interests now have been held for a long time, for example:

(i) Suburb D - purchased in 1998 for $96,000;

(ii) Suburb H - purchased in 2002 for $265,000; and

(iii) Suburb K - purchased by 2004 for $338,000,

it is proper to recognise that the capital gain that their current values reflect, is more a feature of market forces rather than any significant additional contribution factor. As was noted by the Full Court in Jabour (supra) observed at [84]:

...in relation to a sudden increase in the value of an asset unrelated to the efforts of the parties, such as rezoning by the council or a lottery win, the authorities point to that increase being a contribution by both parties (or neither - it matters not which it is) (Zappacosta v Zappacosta [1976] FamCA 56; (1976) FLC 90-089 at 75,421; Wells & Wells [1977] FamCA 62; (1977) FLC 90-285 at 76,529-76,530; Zyk & Zyk [1995] FamCA 135; (1995) FLC 92-644 at 82,515-82,516; and Hurst & Hurst [2018] FamCAFC 146; (2018) FLC 93-851 at [26]).

1. I regard this last principle as apposite to the circumstances of this case, which reveal that essentially the three properties referred to above have been held generally as rental properties. with the rental used to meet mortgage and other expenses. This is not to say that some number of improvements, maintenance and repairs were not carried out from time to time, but on the evidence, the escalation of market value of these properties was significantly attributable to holding the properties for a long time. I do not ignore that the purchase by the husband in 1999 of a property at Suburb F for $269,000 resulted in a profit when it was sold 10 years later for $515,000 - with the nett proceeds used towards the purchase of the Suburb N Road property.
2. There is another curious feature of this case - and that is the relatively modest income available to the parties. Exhibit 5 was some income tax returns filed by the parties. In summary, those returns reveal:

(a) The wife accepted her capacity to make a direct financial contribution after she ceased employment, I infer, some months before X was born in 2009, was limited. The wife, according to tendered tax returns, resumed employment in around 2018/19 tax year. Her income as an employee of the husband's business never exceeded $5,400 per annum;

(b) The husband tendered income tax returns for the tax years 2015/16 to 2022/23. The husband, as a sole legal owner of the rental properties, was entitled to claim expenses (including interest on mortgage payments) offset against the rental income. The income he generated prior to the 2015/16 tax return disclosure is somewhat opaque, although he asserts at paragraphs 105 to 107 that:

(i) his business "L Company" was "well underway" by November 2006;

(ii) until 2009, he was earning "at least $105,000 nett before tax per annum" from his business; working 60 hours a week, including most weekends and his business employed six people;

(iii) after 2009, he said he "scaled down the business to help care for my children and sometimes to maintain my investment properties after tenants quit their leases". His taxable income was as follows (based on tax returns he could find):

The tendered taxation returns reveal the following levels of taxable income:

$64,634

(seemingly reduced to an amended taxable income of $60,203)

The 2022 amended return (B8 of Exhibit 5) reveals:

• (A) $11,649 from non-primary production; and
• (B) $48,554 from nett rent.

This is to be compared to the 2021 year (B6 of Exhibit 8) which reveals:

• (A) a loss in his business of $14,626; and
• (B) $45,998 from nett rent.

(c) Interestingly, despite the husband claiming separation occurred in 2016, for the tax returns tendered and for the 2018/19; 2019/20 and 2020/21 tax years, he discloses his "spouses" income as he was required as a taxpayer to do, if he had a spouse.

1. I summarise the contributions made by the parties as follows:

(a) At the commencement of the relationship the wife had cash savings, a motor vehicle and some superannuation. Although at trial her superannuation was around $15,000, she had accessed $20,000 of superannuation during COVID protocols as she was permitted to do so. Her savings, I find, included the inheritance received in 2008 - part of which she says, and I accept, she contributed to the husband's business;

(b) The wife contributed her income until she ceased full time work when pregnant with X. Her work included a variety of roles. She worked in a childcare centre from 2004. The fluid nature of the relationship, I find, meant that the likely modest income of the wife was spent on living expenses with little left to create assets;

(c) The wife says, and I accept, that the husband was a hard worker which meant she was the primary carer and homemaker after the birth of X. This is not to say the husband made no contribution, because I find he did - especially after he decided to scale down his business from around 2009. I find, however, with the husband spending more time on maintaining the rental properties some distance away in New South Wales, the wife was required to spend more time caring for the young children and the home;

(d) I find the wife did, as she asserts, make a non-financial contribution to renovations, landscaping, gardening and other similar works to the home where the family were living and, at times, to the investment properties. However, such non-financial contributions in this way were significantly less than those performed by the husband; and

(e) The ordered equal time regime in respect of the children demonstrates that both parties are making contributions to the children's welfare and that, I find, has been the case since final physical separation.

(a) The Suburb D, Suburb F, Suburb H and Suburb K properties were all owned by the husband by early 2004. Although the purchase price for each property (as earlier set out in these Reasons) is not disputed - what level of borrowings existed over the properties is not clear. The best evidence given by the husband is at paragraph 31 of his affidavit in reply filed 7 February 2025 where he deposes to a mortgage of approximately $50-60,000 in 2000 over the Suburb D property and having a mortgage for $215-230,000 over Suburb F property in 2000;

(b) The husband gives limited evidence about how he funded the two investment properties at Suburb H and Suburb K. Considering his modest income, it seems more likely than not that the husband acquired and built his property portfolio by using equity in other properties and cross collateralising his borrowings. Had he contributed more than a required deposit at the time of purchase, he should have told the Court;

(c) Clearly however, without calculating an exact figure, on the evidence available, by 2005 the husband had significantly superior assets in his name, with some equity;

(d) I am satisfied that the husband did, not only because of his trade skills, but also with the assistance of friends and family, perform services on the investment properties which did at least maintain and preserve them, and may have improved them. Whilst the valuations at the time of trial (save for the Suburb N property above) were agreed, the husband sought to emphasise at paragraphs 57 and 60 defects he says exist in respect of the Suburb K and Suburb H properties;

(e) The husband, whilst pointing to these repairs, seeks a finding, based on his evidence at paragraphs 112 to 114, that he maintained and improved the properties - without contribution by the wife - by spending he says "thousands of hours" on the properties. On the evidence overall, including works he says he performed on the former matrimonial home, I have come to the conclusion that whilst he did most of the maintenance and limited improvements to the investment properties, he only did as much as he might be required (with as little external cost as possible), to ensure a rental income was achievable;

(f) As to the Suburb N Road property, the husband conceded some non-financial contributions by the wife (paragraph 113), but considering the state of the structures, whilst both parties have performed tasks best described as making the property liveable, the property being valued at land value only reflects that little weight can be attributed to the husband's structural work; and

(g) I have already made findings that the husband did make a contribution as homemaker and parent, but overall, I viewed his contribution less than that of the wife. He would ask me to accept that: not only was he performing thousands of hours of work in maintenance and improvements (noting that the parties lived in Queensland since 2010 and all the investment properties are in New South Wales requiring travel to perform tasks), but that he was also doing more, if not an equal share of "domestic contributions" (see paragraph 116 and 117), as a homemaker and parent. I do not accept that was the case.

1. In final submissions, the wife says that contributions should be assessed as equal, whilst the husband says contributions should be assessed as 70% to the husband and 30% to the wife.
2. In my assessment, the husband's initial contributions through his ownership of the four properties and notwithstanding that the wife should be seen as making an indirect contribution to the investment mortgages whilst the rental income was diverted through the relationship to meet interest payments and some improvements/maintenance, it is just and equitable for the husband's greater initial contributions to be given weight.
3. I assess contribution-based entitlements to the pool of interests to the date of the hearing as 59% to the husband and 41% to the wife - which is a differential of 18% on a sum of the nett pool found to exist of approximately $586,000.

SECTION 75(2) FACTORS

1. Although the wife, in her submissions at the conclusion of the trial assumed the husband sought no adjustment for "future needs" (paragraph 49 and 50), the husband contends in his written submissions (at paragraph 107) that he seeks a "small swing" of 2-3% to the husband due to his health and unpredictable future earning capacity. This adjustment, the husband says, should increase if the CGT, parental loans and demolition costs "are not taken into account" (paragraph 108).
2. The wife's submission in reply rejects such a submission, contending it is not available on the evidence.
3. I find a small adjustment to the husband - of 2% or a differential of 4% is appropriate, for the following reasons:

(a) The husband's capacity to earn an income from past skills-based activities is limited according to the unchallenged medical evidence, being:

(i) Dr GG (specialist) mostly arising from the husband's accident in 2022 where he opines the husband would be only suited to light duties or sedentary type work in the future;

(ii) from allied health professional Ms QQ when she concludes the husband would be limited to 20 hours per week work (four hours per day); and

(iii) from the husband who spoke of his need to retrain and gain new skills in other fields.

(b) The wife does not have any real health concerns, but her skills are limited and a modest income is all she could reasonably expect to earn;

(c) Part of the husband's property division will include superannuation which he cannot access for some years. Otherwise, as a result of the husband's understandable desire to try and retain, if he can, his property portfolio, he will have a significant debt to service (increased by the required payment to the wife) although he will of course be entitled to rental income on three investment properties;

(d) Although all the investment properties will likely incur a CGT impost on a sale, it is uncertain when they may be sold and what level of tax might be payable at that time - at least due to the sale price and the husband's tax bracket at that time;

(e) I assess on the evidence that as the husband wishes to keep the M Street property, he is more likely to do (or pay to be done) the improvements to the home than demolish it. The other structures are not an issue for the local Council at this time;

(f) I have not included a figure of $250,000 for the husband's legal costs as an add back in the pool one, nor, for reasons given, have I included the monies the husband says he owes his parents - most of which was spent on legal expenses. They were in effect, balance sheet neutral. I accept the husband may, as he expressed, feel some moral duty to repay some funds to his parents; and

(g) The care arrangements of the two children are likely to continue until they finish school - X in around 2027 and Y in around 2031. I have no evidence before me whether any child support administrative assessment is in force but draw comfort that these dedicated parents will support the girls equitably.

1. Of course, it is the form of orders that must be considered to determine whether justice and equity to both parties is achieved, not the mere percentages.
2. I am conscious of the position set out in the parties' material being:

(a) the wife sought an equal division of the pool of interest, on the basis she is paid a cash sum with the husband to retain all the real properties. She was prepared to accept a superannuation splitting order of $70,692 of the husband's superannuation. This amount represents approximately 40% of the husband's superannuation; and

(b) the husband's further amended Response filed 26 February 2025 seeks a division as to 75% to the husband and 25% to the wife and a superannuation splitting order of $85,500.

1. Where both parties seem to accept it would be just and equitable for the final orders to include a superannuation splitting order, if the combined superannuation of $188,133 is distributed as to 61% to the husband and 39% to the wife, this would require a superannuation splitting order in favour of the wife of $58,246 - which I would round up to $58,250.
2. The husband, if he wishes to try and retain all four properties, would need to pay the wife the sum of approximately $917,836, which as set out below and with the superannuation splitting benefit, comprises 39% of the total combined pool of $3,257,111 or $1,270,273 as follows:

1. With the husband having, in anticipation, borrowed additional funds such that he has $560,000 in a bank account (after extra borrowings) to retain his portfolio. he would be required to either sell a property or two and/or obtain additional finance of around $360,000.
2. His 61% of the nett pool of $3,257,111 amounts to $1,986,838 made up as follows:

Plus remaining superannuation ($173,008 - $58,250)

1. If the husband had to borrow an additional $360,000 (to retain all his current properties valued at $3,610,000), then his total borrowings of about $1,779,000 would be a debt to equity ratio of less than 50%.
2. I am no satisfied that the husband's superannuation trustee has been offered procedural fairness as required by law, and before I make an order, I need to receive evidence of procedural fairness.
3. Furthermore, now that the findings have been made, the husband can decide whether he wishes to seek to borrow the additional funds to pay the wife (with the assistance perhaps from his father or brother), or whether he would elect to sell one or more properties.
4. If the husband elects to sell, I agree with the submissions of the wife that the nett proceeds of the sale should be reduced by selling expenses and a component for CGT as flows from the sale of that or those properties.
5. I will direct that the husband shall advise the wife within 14 days, whether he elects to pay out the wife the sum I have found is due to her, or if not, which property or properties the husband seeks to sell. Once that is known, the solicitors for the wife will prepare an order that meets the requirements of these Reasons (included a sale process) and submit same to the husband's lawyers within 21 days.
6. I will otherwise list the proceedings for pronouncement of orders at 9.30am on 23 October 2025.

I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann.