Minami & Egawa [2025] FedCFamC1F 163 (14 March 2025)

Harman v Secretary of State for the Home Department [1983] 1 AC 280

Marchant & Marchant (2012) FLC 93-520; [2012] FamCAFC 181

Maroney & Maroney [2009] FamCAFC 45

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Mitchell and Mitchell (1995) FLC 92-601; [1995] FamCA 32

Salvage & Fosse (2020) FLC 93-966; [2020] FamCAFC 144

Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52

Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2009] FamCAFC 166

Weir and Weir (1993) FLC 92-338; [1992] FamCA 69

Zschokke and Zschokke (1996) FLC 92-693; [1996] FamCA 79

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

1. The husband pay to the wife, or as she may direct in writing, by way of partial property settlement, the sum of $400,000 within 14 days of the date of these orders.
2. For the purposes of compliance with Order 1, the husband shall do all things as are necessary to liquidate and sell such portion of his B Limited share portfolio to secure the payment to the wife.
3. Pending further order, the husband pay into an account nominated in writing by the wife spouse maintenance in the sum of $1,750 per week, with the first payment to be made within seven (7) days from the date of this order.
4. Within seven (7) days from the date of this order, the husband disclose to the wife all certificates of insurance as to home, building or contents insurance, including the current certificate(s) for insurance, of the property at C Street, Suburb D, together with documents verifying the payment of each annual insurance premium for the period from the date of acquisition of the property to the date of this order.
5. Within 21 days of this the date of this order, each of the husband and the wife are to file and serve an undertaking as to disclosure in compliance with ch 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
6. Save and except as to costs, the Application in a Proceeding of the wife filed on 1 August 2024, her Response to an Application in a Proceeding filed on 1 August 2024, her Amended Application in a Proceeding filed on 20 December 2024, the Application in a Proceeding of the husband filed on 8 May 2024, his Response to an Application in a Proceeding filed on 28 October 2024, his Amended Response to an Application in a Proceeding filed on 2 November 2024, and his Further Amended Response to an Application in a Proceeding filed on 13 January 2025, are dismissed.
7. The proceedings be listed for allocation of trial dates and further case management on Thursday, 20 March 2025 at 2.00 pm (AEDT) 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 the pseudonym Minami & Egawa has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. Ms Minami ("the wife") and Mr Egawa ("the husband") have an appetite to repeatedly litigate ubiquitous issues that are perennial to the breakdown of marriage relationships.
2. The wife is a legal professional and the husband is a health professional. They commenced cohabitation in late 2008, married in 2010, and separated on 30 September 2017. An order for divorce was made in mid- 2022. They have one child, X, who was born in 2012 and is currently 12 years old. Final parenting orders were made on 8 May 2019 providing for the child to live with the wife.
3. On 1 June 2023 the wife filed an Initiating Application in the Federal Circuit and Family Court of Australia (Division 2) seeking orders as to property adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) ("the Act") and spouse maintenance. On 10 July 2023 the husband filed a Response to an Initiating Application seeking different orders as to the adjustment of property.
4. On 9 November 2023 consent orders were made by Judge Parker in the Federal Circuit and Family Court of Australia (Division 2) determining competing applications as to interim or partial property settlement, the mechanics of appointing and funding valuation experts appointed pursuant to ch 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules"), injunctions for the preservation of property including as to the paying mortgage instalments, rates, and insurance premiums for three separate real properties, as to exclusive occupation of properties in favour of one or the other party, and regulating the wife's use of a corporate motor vehicle.
5. As will be seen, some of the interim orders sought in this chapter of the litigation were already regulated by prior orders and were consequently withdrawn. Some were the second or following round of previously determined interlocutory disputes, such as interim property adjustment, or seeking further orders to secure compliance previous orders or with the Rules.
6. Progressing the re-litigation of determined subject matters, on 2 May 2024 the husband amended his substantive relief to also seek a variation of the final parenting orders. The wife responded seeking that the husband's relief to vary be dismissed pursuant to s 65DAAA of the Act. Documents were sought from the Department for Child Protection and from South Australia Police. Orders were made in the Federal Circuit and Family Court of Australia (Division 2) on 15 November 2024 transferring the proceeding to this forum.
7. On 6 February 2025 the husband filed a Notice of Discontinuance of the variation relief. On 14 February 2025 a consent order was made that the husband pay the costs of the wife thrown away in the sum of $11,500.
8. These reasons determine:

(a) An Application in a Proceeding of the wife filed on 1 August 2024 and her Response to an Application in a Proceeding filed on 1 August 2024, consolidated in her Amended Application in a Proceeding filed on 20 December 2024 as amended by way of a further minute of order (Exhibit 10).

(b) An Application in a Proceeding of the husband filed on 8 May 2024, his Response to an Application in a Proceeding filed on 28 October 2024, and his Amended Response to an Application in a Proceeding filed on 2 November 2024, consolidated in his Further Amended Response to an Application in a Proceeding filed on 13 January 2025.

1. During the currency of that plethora of competing interlocutory relief, the wife commenced proceedings in January 2025 in the Fair Work Commission against one corporation that forms part of a group of the husband's property, DD Pty Ltd ("DD Group"). The wife was employed in the group from 2013 until early 2025. The husband, by way of the group, operates three businesses in Town F, in South Australia, Town G in South Australia, and Sydney, New South Wales.
2. The wife filed another Application in a Proceeding on 14 February 2025. On 5 March 2025 the husband filed a Response to an Application in a Proceeding. Each was listed for hearing on 10 March 2025, seeking relief from of any obligation imposed by the undertaking as described in Harman v Secretary of State for the Home Department [1983] 1 AC 280 (the Harman undertaking) to use documents from this proceeding in the Fair Work Commission dispute. In February 2025 the Fair Work Commission proceedings were resolved by way of a deed of release. The wife was paid a gross sum of $77,058 and received $56,084 after tax and other payments. She has paid that sum to her solicitor on account of costs.

1. Prior to the marriage the wife was working as as a legal professional in Sydney. The husband was working as a health professional. It is his case that he was working in three businesses by that time. He says that the DD Group was established in mid-2013 and the Town G business was sourced from his uncle for no consideration in 2013.
2. The husband said that sometime prior to cohabitation his father gifted him a property at H Street, City J. He retains that property. In 1999 the husband acquired a property at K Street, Suburb L, New South Wales ("the Suburb L property") with his prior partner. They separated in 2001 but did not sell the property until 2015.
3. In 2001 the property at M Street, Suburb N, New South Wales ("the M Street property") was purchased for $485,000 from which the husband operated a business. The property was owned by the O Holding Trust, that trust being, absent controversy, the property of the husband. Early in the marriage the control of the O Holding Trust shifted to the P Family Trust. The wife is the sole director and shareholder of the P Family Trust corporate trustee, P Pty Ltd. It appears uncontroversial that the P Family Trust is the property of the parties. The husband has exclusive occupation of the M Street property by way of the orders made on 9 November 2023 and is responsible for the payment of its mortgage, rates, and insurance premiums.
4. In 2015 the parties jointly purchased an apartment at Q Street, Suburb N, New South Wales ("the Q Street property") for $1.9 million, borrowing approximately $1.6 million by way of mortgage to complete the acquisition. The husband says that the balance was funded by his half share of the net proceeds of the Suburb L property. The parties and their child occupied that property until 2016 when they moved to rental premises in Town F, South Australia. The wife contends that the Q Street property is currently available as a source of rental income. The husband says he occupies the property when he is attending the Sydney business. He has exclusive occupation of it pursuant to the orders made on 9 November 2023 and is responsible for the payment of its mortgage, rates, and insurance premiums.
5. In early 2017 a property at 2 S Street, Town F ("the Town F residence") was purchased in the wife's sole name for $278,000, with more than $200,000 being borrowed by way of mortgage. It was located near the Town F based business. The parties occupied the Town F residence until separation. The wife and the child continued to live there until in or around late 2021. It is currently vacant. The wife has exclusive occupation of it pursuant to the orders made 9 November 2023 and is responsible for the payment of its mortgage, rates, and insurance premiums. The wife contends that the husband had previously agreed to provide funds to renovate the bathroom and laundry, the fencing and to paint the property. The wife identified in her affidavit evidence that the parties agreed in writing to renovate the Town F residence on 5 December 2018 and 14 February 2019.
6. A vacant block of land next to the Town F residence at 1 S Street, Town F ("the 1 S Street property") was acquired in 2018 on the husband's case, or late 2019 on the wife's case, for $90,000, in the wife's sole name. The Town F residence and the 1 S Street property will be collectively referred to as "the Town F properties".
7. It is the wife's case that she remained with her employer until 2010 when she commenced to be employed as a consultant in the businesses. She contends her role in the DD Group was integral to its growth from operating one business with two employees in 2010 to currently operating three businesses, an administration trust, and a separate business. It is the husband's case that the wife did not work from 2009 until 2013. He says that since about 2021 the wife's role in the group has diminished considerably such that she worked "the equivalent of only about 3 to 4 hours per week on specific duties". It appears uncontroversial that the wife has been "completely excluded" from the offices of DD Group since early 2024. Notwithstanding, the payment of her wages of $1,000 per week continued until her employment was terminated in early 2025.
8. The wife undertook work at R Business, on a fixed term contract that expired in mid-2023. She was working on 0.6 full-time equivalent basis, being approximately 60 per cent of a full-time role. Her annualised income was $84,000. The wife says that the husband made complaint that this additional employment affected her capacity to care for their child.
9. It is the husband's case that during the marriage he travelled between the three businesses in Sydney, Town F, and Town G, in addition to staying and spending time with his parents and his brother in Adelaide. It appears relatively uncontroversial that, as between the parties during cohabitation, the wife undertook the primary responsibility for homemaking and parenting the child. Since separation the wife has continued to be responsible for parenting the child, the husband having resided geographically proximate to the three businesses until he commenced occupying a rental property in Adelaide with his current partner in early 2024.
10. In late 2017 DD Trust purchased Motor Vehicle 1 for $215,000 subject to finance. The wife had the use of this vehicle. The wife makes complaint as to the husband making the payments for Motor Vehicle 1 when due. The final balloon finance payment was due in April 2023. The husband paid out the finance of $82,774. The vehicle is not currently subject to encumbrance. An order made on 9 November 2023 restrains the husband from the removing Motor Vehicle 1from the possession of the wife or causing it to be removed from her possession.
11. The current property occupied by the wife and the child at C Street, Suburb D ("the Suburb D property") was jointly purchased in mid-2021 for $1.4 million, subject to a mortgage. The husband pays the mortgage, rates, and insurance premiums for that property pursuant to the orders made on 9 November 2023. The wife makes extensive complaint as to the husband's failure to comply with the orders to pay the mortgage and rates on this property when due. She says that the husband will not disclose the insurance documents for the property and does not know if the contents are the subject of insurance.
12. The wife makes extensive complaint as to disclosure failures by the husband throughout the course of the litigation. The husband makes not dissimilar complaints of the wife.
13. Each of the husband and the wife are on notice by way of these reasons that a party to property proceedings is required to make full and frank disclosure of their financial position (Weir and Weir [1992] FamCA 69; (1993) FLC 92-338). This obligation applies to both documents and information and is codified in ch 6 of the Rules. That disclosure obligation continues throughout the litigation. If it is established that there has been deliberate non-disclosure, the Court should not be unduly cautious about making findings in favour of the innocent party. An order will be made that each party file and serve an undertaking as to disclosure pursuant to ch 6 of the Rules within 21 days of the date of these orders.
14. Issue exists between the parties as to the beneficial interest held by the husband's mother and/or father in real properties located in Region T in South Australia and disposed of after separation. These contended beneficial interests and disposals may be matters for trial. They include:

(a) In 1995 a property at 2 U Street, Suburb V ("2 U Street") was acquired. The property was occupied by the husband's family. It was asserted by the husband to be purchased in his sole name as trustee for his mother, and that he has at all times held beneficially for her. In October 2022 orders were made in the Supreme Court of South Australia confirming that the husband holds the 2 U Street property on trust for his mother.

(b) In December 2021 a property at 1 U Street, Suburb V ("1 U Street") was purchased. The husband contends it was purchased on trust for his mother. The husband and his mother executed a Declaration of Trust for the property in late 2021 in favour of his mother. In late 2022 the 1 U Street property was sold. The husband's family occupied the 1 U Street property from the time it was acquired until it was sold.

(c) In early 2023 the husband and his mother sold a property at W Street, City J for $250,000 and applied $239,676 of those proceeds to the reduction of a Y Bank mortgage.

(d) In mid-2023 the husband and his mother sold a property at Z Street/AA Street, City J, applying the proceeds towards the discharge of the Y Bank mortgage, approximately $260,000 to the husband's mother, and the balance towards the husband's personal taxation debts to the ATO.

1. The orders made on 9 November 2023 provided for the husband to pay $250,000 to the wife and for he to receive $250,000, each by way of partial property settlement. He sourced $500,000 from selling shares in his B Limited share portfolio. His evidence is that he applied $209,000 from those monies to meet a taxation liability and approximately $40,000 towards his legal fees. The wife's evidence is that she applied $150,000 to her solicitor's trust account, $78,000 to outstanding council rates, mortgage repayments, and maintenance expenses on the Town F properties, Suburb D property maintenance costs, travel expenses, accounting fees, expenses for the child, car expenses, health insurance, and other general living expenses. She said that $22,000 of the monies were remaining at 1 August 2024.
2. The 9 November 2023 orders required the husband to pay $50,000 into a controlled money account in the name of he and the wife to meet ch 7 expert valuation fees and mediation fees. This payment was also sourced from the sale of shares in his B Limited portfolio. Those controlled funds have been part applied to meet the cost of single real property valuations for the South Australian and New South Wales real properties. A balance of $34,329 remains to be applied to meet the single forensic accountant expert fees.
3. On 14 November 2024 a consent order was made for the husband to pay the wife's tax assessed tax of $88,436, in addition to any penalties or interest that may have accrued thereon. He paid $94,858 in compliance with this order. He did not adduce evidence as to the date of the payment or the source of funds.
4. On 15 November 2024 a consent order was made for the husband to pay to the wife the sum of $50,000 as a partial property settlement. On that day, the matter was transferred to this Court.
5. The wife has now prepared and lodged her taxation returns for the years ending 30 June 2021 to 30 June 2023. Her current ATO liability is $26,770 (Exhibit 11, page 11).
6. The instructions to the appointed single ch 7 forensic accounting expert, Mr BB, commenced with a first draft letter dated 4 March 2024. The parties were in dispute for an extended period as to the terms of instructions to the expert. Those terms have been broadly agreed after 12 months. They remain in dispute as to when the letter of instruction is to be sent. Over 16 months have passed since the orders facilitating the appointment of the ch 7 single forensic accounting expert were made on 9 November 2023. That fatuous circumstance does not reflect well on either party.
7. The wife queries the integrity of the published financial statements of the DD Group, implicitly contending that they are not accurate or reliable. The husband puts this into issue, expressly asserting that the wife has not "identified valid queries or potential problems with the financial documentation, nor reason why the accounts are either inaccurate or unreliable".
8. It emerged during the hearing that Mr BB, in the event he received his letter of instructions, cannot provide an opinion in circumstances where he will be on extended leave from March 2025 to September 2025. Hence, as recorded later in these reasons, orders were made on the date of the hearing requiring the parties to confer as to the identity of an alternate ch 7 single forensic accounting expert and as to the terms of instructions to be initially provided to that expert to include their respective contentions pursuant to r 7.13 of the Rules. In those circumstances, the competing relief of the parties as to the instructions to be provided to Mr BB will be dismissed, and any dispute as to the ch 7 single forensic accounting evidence will be determined on the matter being listed for case management and allocation of trial dates.
9. The latest version of the collaborative joint balance sheet filed on 16 January 2025 became Exhibit 8. During the hearing the wife contended that the non-superannuation property of the parties is valued in the range of $7.3 million. The husband contended that the non-superannuation property of the parties is in the range of $4.8 million. They agree that the superannuation property is $862,913.
10. The wife contends a finding as to equality of contributions up to trial and a 25 per cent adjustment in her favour pursuant to s 75(2) factors, to achieve 75 per cent of the property and for the husband to receive 25 per cent of the property. The husband seeks a contribution finding of 60 per cent in his favour, with a 2.5 per cent adjustment to the wife pursuant to s 75(2) factors, to achieve 57.5 per cent of the property of the parties and for the wife to receive 42.5 per cent.
11. The costs notice of the wife (Exhibit 5) records total paid costs of $159,485 and $49,596 held in trust, a total of $209,081. Those funds were sourced from the interim property distributions, orders made 9 November 2023, orders 14 February 2025, and $47,582 net of tax received from her Fair Work Commission claim. She has unpaid fees in the range of $195,000. If the monies in trust are applied to her outstanding fees, the value of unpaid fees will be in the range of $146,000. Her estimate to complete the litigation is in the range of a further $294,290.
12. The costs notice of the husband (Exhibit 6) records total paid costs of $254,379 sourced from his interim property distribution, realisation of his shares and income. He is currently putting a further $60,000 into the trust account. These total $314,379. His unpaid costs are $46,635. His estimate of costs to complete the litigation is in the range of a further $154,259.
13. Both parties agree that the final hearing will require three days. The husband estimated that the total costs to him to be incurred will amount to $420,000. The wife indicated her total costs may be in the range of $648,775. As advised to the parties during the hearing, after delivery of these reasons, the matter will be listed for case management to allocate trial dates in late 2025 and directions made reverse engineering its preparation.

The evolution of the current tranche of interlocutory relief sought by each party

1. On the day of the hearing, after exchanges and a preliminary evaluation of the orders sought by each party, some of the orders sought by each party were withdrawn and others consensually resolved.
2. The wife withdrew her relief as to:

(a) The husband paying 'the insurance" for the Suburb D property, the M Street property, and the Q Street property. This relief was otiose. The husband already has been ordered to pay such insurance by way of Order 10(b) and Order 13(b) made on 9 November 2023. The wife did not explain why she again sought the same relief. That said, the wife continued to seek an order for the husband to pay the contents insurance for the Suburb D property because was not sure whether the order that was the subject of her and the husband's consent made on 9 November 2023 extended to the husband being required to pay the Suburb D contents insurance. As will be seen, the resolution of this comparatively simple issue by way of the disclosure of documents and information was beyond the capacity of the parties to sensibly progress.

(b) Portions of the orders sought as to the disclosure of documents and information sought in Exhibit 10 paragraph 16, as will be seen later in these reasons. The disclosure of CC Financial Services accountants' professional association memberships, their complaints and dispute resolution policy and procedure, and the username and password for the accounting system used to prepare the final accounts and tax returns for the DD Group were either withdrawn or not pressed at this time because some or all of that sought had been provided.

1. The husband withdrew his relief seeking that he receive $100,000 by way of interim or partial property distribution sourced from the sale of the Town F properties owned by the wife. He agreed for the wife to receive $200,000 from the proceeds of that sale, with the balance being placed into a controlled monies account. The second limb of that relief was somewhat nonsensical, in that he proposed the wife retain the Town F properties by way of his final relief and did not contend that the wife's receipt of the proceeds of sale of her own property would prejudice his s 79 claim. He also withdrew the relief as to the wife applying a tax refund to part meet the fees of the ch 7 single accounting expert, implicitly seeking to vary Order 2(a) made on 9 November 2023 that provides for such funds to be quarantined in trust to meet the single experts' fees. The evidence is that she owes tax for the recently belatedly lodged personal returns.
2. On the day of the hearing the following orders were made:

THE COURT ORDERS THAT:

1. For the purposes of the hearing today, the wife has leave to rely on her affidavit filed on 14 February 2025 and the husband has leave to rely on his affidavit filed 5 March 2025.

2. The Application in a Proceeding of the wife filed on 17 February 2025 and the Response to the Application in a Proceeding of the Husband filed 5 March 2025 otherwise be withdrawn and dismissed.

3. The wife has leave to amend her relief sought today in terms of the minute of order containing 21 paragraphs and 5 pages, being Exhibit 10.

BY CONSENT THE COURT ORDERS THAT:

1. Within 21 days of the date of this order, the husband do pay for the trust account of the wife's solicitors the sum of $13,000 to cover the wife's agreed re-education expenses, as agreed in the letter from the husband's solicitors to the wife's solicitors dated 22 February 2024.

5. The husband do provide to the wife's solicitors within 14 days:

(a) Certificates of currency for all insurance policies for all real estate and other insurances as set out in the letter from the wife's solicitors to the husband's solicitors dated 15 February 2024;

(b) Evidence of payment by the husband of all invoices for school fees and any other associated expenses as set out in the letter from the husband's solicitors to the wife's solicitors dated 16 February 2024 and as requested in the letter from the wife's solicitors to the husband's solicitors dated 4 March 2024;

(c) All statements for all frequent flyer and loyalty programs of which the husband is a member as from 1 January 2020, as set out in the letters from the wife's solicitors to the husband's solicitors dated 15 February 2024 and 4 March 2024; and

(d) The documents referred to in the letter of Howe Jenkin to SWAAB dated 4 March 2025.

1. Pending further order, the husband be restrained from selling, further mortgaging, drawing down any further monies on the security of the existing mortgage, encumbering, or in any other way dealing with the property at [ M Street, Suburb N], New South Wales.

2. Pending further order, the husband be restrained from selling, removing, disposing or in any other way dealing with any of the wife's clothing, footwear, personal effects, photos, books and furniture and/or those of the parties' daughter, [X], presently situated the property at [Q Street, Suburb N].

3. Pending further order, the husband be restrained from asserting or representing that he (or any entity controlled by him) is the trustee of the [P Holdings Trust].

THE COURT FURTHER ORDERS THAT:

1. On or before 21 April 2025 each party disclose to the other their personal income tax returns for the year ended 30 June 2024 together with any notice of assessment if issued and available.

2. On or before 21 April 2025 the wife disclose to the husband the financial statements and income tax returns for the [P Family Trust] and the [P Holding Trust] for the financial years ended 30 June 2021, 30 June 2022, 30 June 2023, and 30 June 2024.

THE COURT NOTES THAT:

1. In circumstances where the parties have been advised today to expect the allocation of final trial dates in October or November 2025 and the appointed single forensic accounting expert [Mr BB], not being available from March to September 2025, it will be necessary to appoint an alternate single forensic accounting expert.

THE COURT FURTHER ORDERS THAT:

11. On or before 13 March 2025 the parties are to confer as to:

(a) The identify of the alternate single forensic accounting expert; and

(b) As to the terms of the instructions to be initially provided to that expert together with their respective contentions pursuant to ch 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

1. The parties are at liberty to submit any consent order to chambers for consideration implementing any agreements reached as to the identity of the alternate single forensic accounting expert and the instructions to be provided to that expert.

13. Judgment is reserved as to the balance of the interlocutory disputes.

1. By way of her consolidated Amended Application in a Proceeding filed on 20 December 2024 and confirmed in her minute of order (Exhibit 10), the wife sought that the husband liquidate his share portfolio, currently valued at $1,105,404 (Exhibit 11, page 34), and that the proceeds of the sale be placed into her solicitor's trust account. In the alternative she sought that the M Street property be sold for not less than $623,000 and for the proceeds of sale to be placed in her solicitor's trust account. Both required the disposal of an item of property to create funds that would remain the property of the husband or a trust. Neither alternative adjusted property.
2. The wife orally amended her relief to seek that the husband pay her $600,000. The source of power relied upon by the wife for this order, and for the husband to pay her current outstanding taxation liability of $26,770, was s 79 and s 80(1)(h) of the Act, each sum to be achieved from the sale of shares in the husband's B Limited share portfolio or the sale of the M Street property. At the hearing, the wife said that her application for litigation funding by way of partial property settlement was by way of alternative relief pursuant to s 117 of the Act in the lump sum of $600,000 payable by the husband.
3. The husband did not oppose the wife receiving the benefit of $200,000 by way of interim property settlement but contended that the wife should sell her own real property at Town F to source it. He agreed that his relief for the wife to sell and to retain part, or all, of the proceeds of sale of her own real property, did not adjust property in her favour. He orally amended his relief to seek a discharge of an injunctive order made 9 November 2023 to permit the wife to sell the Town F residence and use her own funds from that sale at her discretion. His case was that this disposal would obviate her case as to any interim or partial property adjustment to be made in her favour payable by him.
4. The wife proposed to apply the funds sought to pay:

(a) Maintenance work and repairs to the Suburb D property in the range of $30,000 to $55,000, including cabinetry costs, air conditioning replacement and replacement of existing solar panels;

(b) Her outstanding legal fees broadly, less the funds in her solicitor's trust account, totalling the sum of $146,000, and her anticipated legal fees to trial in the range of $294,290;

(c) Accounting fees in the range of $13,578;

(d) Her tax debt of $26,770; and

(e) The renovations and repairs to Town F residence in the vicinity of $30,000 to $40,000;

That total is in the range of $560,638. She did not identify how an exercise of discretion by way of a s 117 order for $600,000 could be achieved if her current outstanding and anticipated future costs were $440,000.

1. Her re-education costs are to be paid by way of Order 4 as made on 10 March 2025.
2. As to the exercise of an interim or partial property power pursuant to s 79 and s 80(1)(h), the Full Court in Strahan & Strahan (Interim Property Orders) [2011] FamCAFC 126; (2011) FLC 93-466 ("Strahan") revisited the principles effectible to interim or partial property orders, and set out effectively two steps being:

(a) First, establishing that s 80(1)(h) is enlivened. The test is not confined to "compelling circumstances_"_. Subject to the interests of justice, the usual approach in respect of s 79 is a once and for all order. More is required than the mere fact that upon a final hearing the party seeking the order would receive the property sought (Marchant & Marchant [2012] FamCAFC 181; (2012) FLC 93-520). The "overarching consideration" as to the appropriateness of the exercise of an interim property power by the Court must be answered in the affirmative in the interests of justice; and

(b) The second step requires "consideration of the factors which are relevant the second step involves the exercise of that to the exercise of power under s 79" (at 85,641). Given it is an imprecise exercise in the making of these orders, any discretion ought be:

(i) Conservative so as to ensure the final property outcome is not compromised; and

(ii) That the remaining property is sufficient to meet the legitimate expectation of both parties at the final hearing; and

(iii) The interim or partial order is capable of being reversed or adjusted if it is subsequently considered necessary to do so.

1. The Full Court in Medlow & Medlow (2016) FLC 93-692 reinforced a cautious approach should be adopted by trial judges in exercising an interim property power that have a real prospect of depleting the property of the parties. That said, as was explained by the Full Court in Strahan, s 80(1)(h) is a wide enabling provision for interim property decisions.
2. In so far as her application for interim or partial property settlement was anchored in seeking litigation funding, the Full Court in Salvage & Fosse [2020] FamCAFC 144; (2020) FLC 93-966 ("Salvage & Fosse") identified that such orders have a long history and are made to alleviate the obvious unfairness of a party with control of the assets being able to marshal them to pay lawyers, leaving the other party to attempt to pursue the proceedings without being able to resort to property that might subsequently be transferred to them. In Zschokke and Zschokke [1996] FamCA 79; (1996) FLC 92-693 the Full Court said three matters were relevant regardless of "whether the matter was determined as an interim property settlement order under s 80(1)(h), or as an interim costs order under s 117(2)", being:

(a) A position of relative strength on the part of the respondent;

(b) A capacity on the part of the respondent to meet his or her own legal costs; and

(c) An inability on the part of the applicant to meet his or her legal costs.

1. Both parties agree it is just and equitable to adjust property between them, as identified by the High Court in Stanford & Stanford (2012) 247 CLR 108.
2. The wife has had access to $300,000 to date by way of interim or partial property adjustments and the husband has had access to $250,000. Neither party suggested that the other has applied those funds unreasonably or recklessly.
3. The husband concedes the wife has established that it is currently in the interests of justice to exercise an interim or partial property power. He concedes that each limb of the second step in Strahan are satisfied by the wife up to the value of the property adjustment being $200,000.
4. The husband's contention that the wife should sell the Town F properties to generate funds has little merit. The wife seeks to retain that property in specie on a final basis. He agrees with that position. If it was sold now, that final relief of the wife would be compromised. Additionally, a long line of well-established authorities makes it clear that a party need not exhaust all their property so as to receive the benefit of an exercise of an interim or partial property power.
5. The wife's current application for an exercise of a property discretion must be considered in the context of the husband's own access to the property of the parties and his control of the income producing assets post separation. The husband has been able to pay his own legal fees, sourced from either income or the sale of shares from his portfolio. Having regard to the joint balance sheet, the husband is in a position of relative strength compared to the wife. The husband seems to encounter little difficulty in paying his own legal fees from his resources. There is a requirement to level the playing field to conduct litigation up to trial. While there is a fundamentally obvious unfairness as between the husband and wife of the kind identified in Salvage & Fosse which requires alleviation, the quantification of the wife's likely costs to complete the litigation are, having regard to the issues in the litigation and the value of the property of the parties, immoderate and excessive.
6. The husband's estimation to conclude the litigation, on the basis that his unpaid costs and costs of the interim hearing are paid from the $60,000 he will place into his solicitor's trust account, is in the range of $120,000.
7. If the wife receives a not dissimilar benefit of fees paid to date, so as to bring her paid fees up to the range of $300,000 with an additional $150,000 to complete the trial, the total costs paid and to be paid by each party will be not significantly dissimilar if some allowance to the wife because the husband holds most documents and information as to the patrimony. This true up produces a value to the wife by way of litigation funding in the range of $250,000.
8. The wife's evidence as to the husband's agreement to renovate the Town F residence is antique, being entered at a time when the residence was occupied by she and the parties child. The Town F residence is currently vacant. The husband did not contend that the renovations were unnecessary or not required. There is merit in the wife's submission that a renovation of the property will promote her capacity to rent the residence and receive income. It is not suggested that the renovation of the property will be averse to its value at trial.
9. The wife contended absent controversy that the tax liabilities of each of the parties have been sourced from their property or business income. Her current tax liability must be paid so as to avoid general interest charges and penalties.
10. Upon broad considerations of the matters identified earlier in these reasons of integer s 79 factors and the husband's concession as to the wife requiring a further partial property adjustment up to the value of $200,000, I accept that the wife has established the matters set out in the second limb identified by the Full Court in Strahan. The making of a partial property order in the sum of $400,000 to the wife, in the context and circumstances of this case, cannot be said to be incapable of being reversed or adjusted if it is subsequently considered necessary to do so. On the husband's own evidence, the interim payment will be capable of being recovered from the wife's conceded property at final hearing, including the unencumbered Suburb D property currently valued at approximately $1.625 million and the Town F properties having a current equity in the range of $357,391.
11. The sourcing of this partial or interim property payment from the husband's share portfolio can be achieved quickly and efficiently, converting the shares selected by the husband for sale into cash and payment. There is a synchronicity in the wife's litigation funding being paid from the share portfolio, being the same source that the husband has access to pay his legal fees. The husband can replace the same species of shares again, if necessary, after the trial. Any capital gains tax impost on the disposal will not accrue on the realised shares until the next financial year, not being payable until April 2026. Trial dates in this matter will be allocated shortly after the delivery of these reasons to be heard in late 2025. I find that an interim property settlement payable by the husband to the wife of $400,000 is in the interests of justice and is equitable in the circumstances of this case.

1. In Hall v Hall [2016] HCA 23; (2016) 257 CLR 490 at 496, the High Court described the "gateway" requirement for the consideration of a spousal maintenance application pursuant to s 74 of the Act. The gateway requirement is set out in s 72(1) of the Act, as follows:

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

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

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

(c) for any other adequate reason

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

1. The wife has the full-time care of the child. The husband does not spend regular time with the child, nor does he spend any overnight time with the child. Implicitly the husband, by way of his conduct, has historically conceded that the wife has satisfied the gateway requirements of s 72 of the Act by continuing to ensure the wife received $1,000 per week by way of wages after the cessation of duties for the DD Group being "completely excluded" from the workplace in early 2024 until early 2025. He opposes any order for periodic maintenance, contending that the wife now has capacity to support herself adequately. He asserts her reasonable periodic expenses are $2,000 each week.
2. During the period of cohabitation and after separation each of the parties enjoyed a high standard of living. The evidence as to the wife's weekly needs, contained in Part N of her Financial Statement filed on 1 August 2024 of $2,025, was not materially challenged. It is not dissimilar to those of the husband at $2,043 per week. The wife also pays $304 each week in mortgage repayments for the Town F residence, $99 each week in rates for the Town F properties, $49 for the Town F residence contents insurance, $120 each week for health insurance and $13 per week for income protection insurance. Her mobile phone and internet expenses that were paid by DD Group and are now paid by her are $55 each week. She does not currently pay income tax.
3. The wife submitted that a finding ought to be made that an adequate amount to meet her reasonable periodic expenses is $3,027 per week. On the evidence I do not accept that submission. It may be that she has included in her contention the costs of maintaining the child. The husband pays periodic child support payment of $385 per week. I find that her reasonable periodic expenses are $2,655 per week. She has no current income. She said the reason she sought an order for $5,000 per week was to have a "buffer".
4. The submission of the husband that the wife has some unexercised capacity to contribute to her own self support has merit.
5. The wife has access to the interim property order of $400,000 to potentially supplement her costs of self-support. It is clearly established that a person seeking spousal maintenance is not necessarily obliged to resort to any capital that they might have before they can receive the benefit of an order for spousal maintenance (Bevan and Bevan [1995] FamCA 95; (1995) FLC 92-600; Mitchell and Mitchell [1995] FamCA 32; (1995) FLC 92-601). The wife ought not be required to expend her all her capital before she would achieve a reasonable quantum of periodic spouse maintenance. The interim property payment made by way of this determination will be broadly taken into account.
6. On completion of renovations the wife will have the capacity to rent the Town F residence. The wife did not adduce any evidence as to the expected rental value of the property. This future capacity will also be broadly taken into account.
7. The wife has capacity to currently obtain employment that is not dissimilar to that undertaken by her in 2023 with R Business. She did not adduce evidence of any efforts to obtain any employment throughout 2024 or this year, or promote any probative reason why she has not sought employment on terms that make allowance for her care obligations as she did during 2023. To some extent, she has been sitting on her hands.
8. It is the wife's case that she will have an increased capacity to work as a legal professional, implicitly for greater income than she has achieved historically, upon completing both a professional course (now to be paid for by the husband by way of Order 4 of 10 March 2025) in or around July this year, and completion of another course. She did not adduce evidence as to the amount she expects to earn in intermediate future upon her courses being completed.
9. In a claim for maintenance under the Act the focus is on what is reasonably necessary to ensure adequate support, applying a broad-brush approach. For the above reasons, I find that the wife has some capacity to contribute to her own reasonable periodic weekly expenses and that this capacity will improve in the not-too-distant future. On balance, I find that after considering her capacity to supplement herself, the shortfall to meet her reasonable expenses is in the range of $1,750 per week.
10. As to the husband's capacity to pay, the wife puts into issue the integrity of his income disclosures. She says that the combined income received by both she and the husband in 2021 was in the range of $650,000. In his Financial Statement filed on 28 October 2024, the husband records that his income is $5,085 per week while his expenses are $12,043 each week. The husband conceded that his capacity to pay spouse maintenance not restricted to income alone (Maroney & Maroney [2009] FamCAFC 45 at [56]). He does not give evidence as to how he funds the shortfall between his income and expenses. Implicitly, I find he has significant property and resources to do so. I find that the husband has sufficient income property and resources to pay $1,750 per week to the wife. and that such order, by way of periodic spousal maintenance, is proper.

1. The parties agree Motor Vehicle is a high-end motor vehicle which was considered appropriate for the parties during the marriage. The wife says that it is no longer is necessary. She wishes to acquire a smaller and "more economical" unspecified vehicle for an unknown value. She relies on the interim property power for an order to be made for the husband in his capacity as the director of DD Pty Ltd to transfer Motor Vehicle 1 to her, and thereafter she proposes sell it, retain the sale proceeds, and apply those monies to purchase an alternate motor vehicle "to be registered in her sole name". The husband said that he did not want the vehicle returned. The husband says the vehicle is valued at $150,000 and the wife says it is valued at $100,000.
2. The wife did not adduce any evidence as to how the corporation that owns the vehicle could distribute it in specie by way of capital or income to her, or as to a tax impost of that process.
3. As a starting point, the wife is implicitly seeking to discharge the injunction made by way of Order 18 on 9 November 2023 as to the use of Motor Vehicle 1 vehicle. It was suggested during the hearing that the wife could identify an amount she might seek to be payable by the husband by way of interim property adjustment to be applied to the acquisition of a new vehicle and return the vehicle to the corporation to sell it. She would not agree with that process. The trial will be completed this year. The evidentiary vacuum in the wife's case as to this relief direct that her application in relation to the sale of the motor vehicle will be refused.

1. The wife sought an order for the husband to pay the house, building and contents insurance of the Suburb D property. By way of Order 7(b) as made on 9 November 2023, the husband has been ordered to pay "any rates, levies and insurance premiums for the [Suburb D] property as and when they fall due". The wife said at the hearing that she did not know whether the husband is paying contents insurance, and that she sought to "expand" Order 7(b) made on 9 November 2023 to ensure that contents insurance was "cover[ed]". The wife said the foundation for the variation of the order was that the husband has failed to disclose whether the has complied with the previous order.
2. It is inane that the husband will not disclose to the wife with such information. This is another example of the propensity of the parties to disproportionately litigate issues and incur unnecessary costs.
3. The wife adduced no evidence as to the proposed value of contents insurance or its cost. A specific order will made for the husband to provide all prior and certificates of insurance for the Suburb D property from the time it was acquired to date to the wife. If the current certificates do not include contents insurance, it will be a matter for the wife to insure her contents in her home.

1. As to the relief sought in paragraph 16 of Exhibit 10, the wife advised that some of the P Pty Ltd entities files had been obtained from CC Financial Services, and that her new accountants had been provided with read only access to the accounting system used to prepare final accounts and tax returns for the corporate entities. It emerged during the hearing that her request for source documents used in the preparation of financial statements and tax returns of the corporations may number in the thousands, absent apparent relevance at this stage. Additionally, the period for which the source documents were sought was not specified. In those circumstances the relief sought by the wife in paragraph 16 of Exhibit 10 will be dismissed at this time. In the event the wife encounters challenges in obtaining documents and information, either from the husband in relation to the corporations, or from CC Financial Services in circumstances where the husband does not authorise the disclosure of documents and information by them, she will no doubt bring a further Application in a Proceeding to secure compliance with the Rules.

1. For all of the above reasons, I shall make the orders as set out at the forefront of this judgment.

I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton.