Miratos & Miratos [2025] FedCFamC2F 821 (17 June 2025)

1. Although, I am satisfied, the parties should not be regarded as "living together" or "co-habiting" until they lived together in the same house in late 2004, the Wife ceased her previous employment in August 2003 and commenced working full-time, and more, in the Businesses then conducted by the Husband at that time. She was paid a wage that was applied to her own bank account. But in May 2004, the Wife was appointed as the sole shareholder and director of H Pty Ltd, the new entity that did not trade, but was (within a few days) the trustee of the fixed trust where the Husband was the sole beneficiary, and that trustee held the FMH block from when the Husband's mother and brother, Mr P, later transferred that property to that trust. And it is not disputed that from late 2004, the Wife was significantly involved, in many roles, in the Businesses previously conducted by the Husband and it was conceded she took on a serious role/s in those businesses during the relationship.
2. The Husband asserts that he continued to conduct the Businesses and in many serious roles at all material times had the major role in the Businesses. The Husband had worked on his parents' farm, or farms, then owned by his parents or entities owned or controlled by his patents, from his teenage years. Hence for the purposes of this case I regard the parties' contributions, relevant to the orders I must make, as commencing in May 2004 when the parties were already engaged to be married and spending substantial time at each other's homes, and the Wife was working in the Businesses.
3. Those important, but not burdensome, appointments demonstrated the parties' commitment to future lives together and the Wife's significant role in the Husband's affairs. For those reasons, I am satisfied that the parties' contributions should be had regard to from that date. That is, not "late 2004" as asserted by the Husband or "2022" as asserted by the Wife, but from May 2004,[7] until separation under the one roof, 14 years later, and also since then.

1. The roles the parties played in the companies and trusts that own the Farm and the Businesses are said to be significant. On legal advice, the business and corporate affairs of the Husband and his family (his mother Ms O and brother Mr P) were reorganised over 2003 and 2004.

1. The majority of the value of the asset pool is contained in the land and improvements registered in the name of a company, and in these proceeding common ground, as trustee of the Farm Unit Trust.

1. Back in 1985, that is about five years after the Husband commenced to work on the Farm, then effectively owned by his parents, as it then was, a company (for the purposes of these reasons referred to as 'J Pty Ltd'[8]) was incorporated. J Pty Ltd was, and is, the trustee of a unit trust (for the purposes of these reasons referred to as 'the 'Farm Unit Trust'). J Pty Ltd was, since long before the relationship between the Husband the Wife, the registered proprietor of the Farm land.
2. At all material times from before the relevant relationship of the Husband and Wife the Husband was one of three directors of J Pty Ltd[9] and, I infer, one of three equal shareholders, with his brother Mr P and Mother Ms O. And from November 2009[10] the Husband has been the sole director and shareholder of J Pty Ltd.

1. In these proceedings it was uncontroversial that J Pty Ltd held the land as trustee of the Farm Unit Trust and that unit trust was settled many years before the relationship of the Husband and Wife.[11] The Farm Unit Trust had five units. At some point prior, the Husband, his brother Mr P, his sister Ms Q and sister Ms R and their Mother, Ms O, held one unit each. At some point, between June 2002 and November 2009, the unit that was held by Ms R was transferred to Ms O.[12]
2. The inference I draw from the evidence and the manner in which the unit holders dealt with their units, is that for some time since prior to when the Husband and Wife commenced to live together, the Husband's sisters, Ms Q and Ms R, had not played any significant role in J Pty Ltd or the Farm Unit Trust or the Farm, nor did they receive any benefits therefrom.
3. For some time prior to the parties' relationship, and thereafter, the Husband held one of the units, or 20% of the units in that unit trust. J Pty Ltd holds, as trustee of the Farm Unit Trust, and has held from many years before the relationship of the Husband and Wife, the bulk of the land, in area and value, upon which the Businesses operate. From 2009 the Husband held four of the five units in the Farm Unit Trust in his name. That is, the unit he had previously held and the units previously held by Ms R, Ms O and Mr P. It is clear Ms R's unit was transferred to Ms O at some stage and prior to November. However, nothing turned on just when Ms O obtained Ms Q's unit. She never claimed or received any benefit at any time material to this case.
4. In 2013, as discussed later, the fifth unit was transferred to him by Ms Q, but the gist of the Husband's case is that from some years earlier, and November 2009 at the latest, he had effectively inherited and was entitled to that fifth unit.

Trouble with Ms Q, the Supreme Court litigation & the fifth Unit

1. It is apparent from the order of the Supreme Court made in late 2011[13] and the "Settlement Agreement" settling those proceedings dated early 2013,[14] that in 2010[15] Ms Q (as Plaintiff) issued a writ (seeking that she have the benefit or fruits of the registration in her name of 20% of the units[16] of the Farm Unit Trust) against the Defendants, J Pty Ltd (the trustee of the Farm Unit Trust), and Ms O, Mr P and the Husband. I infer[17] that Ms R had already transferred her unit to Ms O by this stage, and I infer by at least November 2009. It is also apparent and clear enough that the Defendants counterclaimed against Ms Q to the effect that she did not have any beneficial interest in the Farm Unit Trust and/or the Farm, being the land registered in the name of J Pty Ltd, whether or not the Farm Unit Trust owned the land and/or whether or not the trustee J Pty Ltd owned the land in its own right.
2. From that litigation and the manner in which the fifth unit was transferred to the Husband, and what I was told uncontroversially from the bar table, I infer that as between her siblings and Ms O on the one hand and Ms Q on the other, it was disputed between those parties whether Ms Q held her unit beneficially for herself or whether (it being alleged she had received substantial funds from Ms O and her father years ago) she had no remaining beneficial interest in that unit and/or the assets of the Farm Unit Trust.

1. There are three events in that litigation of relevance in this case. Firstly, the issue of the writ by Ms Q in 2010. Secondly, the hearing and decision,[18] in late 2011, of the dismissal of Ms Q's summons seeking summary judgment on a significant legal and factual issue in those proceedings. Thirdly, the settlement contained in the "Settlement Agreement" concluding those proceedings, executed in early 2013, that provided for Ms Q's unit to be transferred to the Husband and for Ms Q to abandon all and any claim to that unit and/or the land and/or assets of J Pty Ltd and/or the Farm Unit Trust without further consideration. Those events are not controversial in these proceedings. It is common ground that the Wife utilised her skills and energy, including the skills honed in her previous working life in a professional's office, in assisting the Defendants in the litigation, including appearing and making submissions on the hearing of that summons on behalf of the Defendants.
2. The importance of the Wife's role in those court proceedings brought by the Husband's sister, Ms Q, that were settled with the "Settlement Agreement" is a significant dispute in this case.
3. As at the start of the relationship between the Husband and the Wife, the Farm Unit Trust was not encumbered by bank or external debt, but the Unit Trust was substantially indebted to the Husband's parents who had purchased the land many years earlier and, I infer, effectively lent the purchase price of the land to the unit trust. That land, including substantial improvements, makes up about 82% of the pool of assets now available to the parties. But the business of the Husband was substantially in debt to a bank and that debt was secured over one of the three blocks, or titles, of the farmland owned by the Farm Unit Trust.
4. As at the start of the relationship, the Husband owned one unit, or 20% of the units, in the Farm Unit Trust. By the end of 2009, four of the five remaining units had been transferred to the Husband or agreed to be so transferred.[19] In February 2013, the remaining fifth was agreed to be transferred to the Husband and along the way the substantial debt due to the Husband's parents from the trustee and the unit trust was forgiven or abandoned. Along the way, in late 2009 (but funds received in January 2020), the trustee, effectively the Husband, borrowed $600,000, and $500,000 of that was paid to a creditor of the Husband's brother, Mr P (his ex-wife).

1. In September 2004,[20] a company (for the purposes of these reasons referred to as 'E Pty Ltd') was registered with the Husband as sole director and he and the Wife were each 50% shareholders.[21] From about then until about October 2021 (that is about a year after the Husband was removed from the FMH), E Pty Ltd conducted part of the substantial businesses on the Farm. The Wife's role as a shareholder of E Pty Ltd began only 4 months after she commenced to work full time in the Businesses.
2. Prior to that business being incorporated, the Husband traded and conducted business on his own account, in the same type of business as E Pty Ltd and continued to do so thereafter.

1. In May of 2004, as part of that reorganisation, a fixed trust (for the purposes of these reasons referred to as 'the FMH Fixed Trust') was established with the Husband as the sole beneficiary and with a company (for the purposes of these reasons referred to as 'H Pty Ltd') the trustee of that Trust. The Wife accepted appointment as the sole director and sole shareholder of H Pty Ltd on incorporation in May 2004. So, from May 2004, the Wife was the sole director and sole shareholder of the company that was the trustee of a fixed trust, where the Husband was, and is, the sole beneficiary. The FMH Fixed Trust holds, and has held since May 2004, the small in area, but valuable, part of the Farm where the newer house (also the FMH from 2005) is situated.
2. At the time of the settlement of the FMH Fixed Trust, the land of that trust was unencumbered (and remains unencumbered) and the roles of sole director and sole shareholder did not involve the Wife taking on the risk of any personal indebtedness.
3. The Wife continues to live in the FMH. She seeks orders that it be sold, along with the other real properties in the pool of assets, and that she be entitled to live in the FMH until the property settlement is effected.

1. From about October 2021, that is in the financial year end 2022, the Husband conducted the major part of the Businesses on the Farm through another company (for the purposes of these reasons referred to as 'Post-Separation E Pty Ltd'), where he was the sole director and shareholder.
2. The single expert business valuer, Ms S, valued the parties' interests in those two companies, E Pty Ltd and Post-Separation E Pty Ltd, together, that is on a consolidated basis.[22] That much was not controversial.

1. Related to the parties' corporate roles are the three November 2009 formal agreements. Annexed to the Wife's affidavit[23] are an agreement, dated November 2009, and an associated deed document. The November 2009 agreement sets out the sale of all of the units[24] held by the Husband's mother, Ms O, in the Farm Unit Trust to the Husband and/or nominee. Per that agreement, consideration paid for the sale was $1.00 as well as the purchaser entering into the Deed as annexed to that agreement. That Deed includes the following:

...

[Ms O]'s Needs

4.5 The parties acknowledge that the predominate reason that [Ms O] has agreed to transfer the units in the Trust to [Mr Miratos] and the Interest in the Partnership to [Mr P] is the assurance provided by [Mr Miratos] and [Mr P] that they will look after her wellbeing including but not limited to the following subject to [Ms O] requesting the same and at no cost to [Ms O] whatsoever:

(a) preparation of all meals (including dietary requirements advised by a qualified medical practitioner);

(b) regular weekly cleaning of the house on the property including the surrounding gardens;

(c) providing transport to and from medical appointments as needed;

(d) providing transport to and from any place requested by [Ms O] for the purpose of shopping, visiting friends and family and any other reasonable purpose;

(e) provision of daily laundering service;

(f) assistance with dressing, showering and/or bathing and personal hygiene;

(g) assistance with medication as directed by a qualified medical practitioner;

(h) assistance with any banking, payment of accounts and any other personal affairs;

(i) any other assistance requested by [Ms O] for her general advancement of life and wellbeing.

1. The Deed further provides for equal responsibility between the Husband and Mr P for outgoings, structural repairs, extension and renovation for Ms O's home, at Ms O's request.
2. The agreement/s, said to be dated November 2009, include a deed of dissolution of the partnership between Ms O and the Husband (as the partners retiring from the partnership) and Mr P (as the continuing partner). This document gives effect to the sale of Ms O's shares by transferring all interest in the partnership to Mr P as the sole continuing partner.
3. It is common ground that despite the Husband and Ms O retiring as partners, Mr P's creditors continued to make demands, and the Husband and/or the Businesses paid substantial sums, more than another $500,000 over some years to Mr P's, or the partnership's, creditors.

1. In outline of case, the Wife asserted that the net of debt non-superannuation property pool is valued at approximately $7,526,000, and in outline of case the Husband claimed that the net of debt non-superannuation pool is valued at approximately $6,725,000.

1. By the end of the case, it was accepted[25] and common ground that the non-superannuation pool of assets should be regarded as set out at Annexure B to the Husband's outline of case: that is to the value of $6,725,000 net of debt. This also avoided apparent double counting in the Wife's schedule of asset and liabilities. It is common ground that between them, the parties have about $154,000 of superannuation.

1. Until separation, the parties conducted a farm, a retail business and accommodation business on land that, for the purpose of these reasons I will describe as 'the Improvements Block'. The Farm land can also be described as three proximate to each other pieces of land with different activities and improvements on each. From separation until trial, the Wife lived on the land that I will describe for the purpose of these reasons as 'the FMH Block' which includes the FMH and some farm sheds. Following separation, the Husband lived in a caravan on the Improvements Block, but at a time prior to the trial, the Husband had moved to the Cottage on the Improvements Block where the Husband's mother had lived from 2005 until about 2018 (after the under one roof separation).
2. The Husband's case is that the total non-superannuation pool is around $6,725,000 with superannuation of $154,000, and that much was common ground by the end of the final hearing. He seeks to be assessed as contributing, in the section 79(4) of the Act sense, 85% and the Wife 15% to that pool of assets. He seeks a further 5% adjustment for section 75(2) factors in the Wife's favour, on account of the substantial asset disparity between the parties at the end of the section 79(4) contribution assessment, with an overall adjustment of 80/20 between the parties of the non-superannuation assets. To effect such a split, the Husband seeks that he pay the Wife a cash sum of $1,345,138. Taking into account the $200,000 already paid to the Wife by way of part property settlement, the Husband says he should be required to pay the Wife $1,145,138 and retain the Businesses and the Farm, if he is able to do so.
3. The Husband's case in opening was put as follows:

MR PUCKEY: He seeks an opportunity to raise a settlement to pay out the wife. The wife joins issue with the percentage appropriately and that will be an issue for your Honour. But what the wife seeks to do is to have your Honour simply bypass giving my client any opportunity to raise her settlement. It's not in dispute that she doesn't want to retain the farming assets or the business assets. She just wants a cash settlement. My client agrees with that. He wants an opportunity to raise it. He will do so by a combination of borrowing from the NAB and, in all likelihood, sacrificing or selling farming assets.

1. The Husband's case was that the Farm had all come to the parties from his parents and so should be regarded as a significant and overwhelming contribution[26] by him. His case asserted that each of them had also contributed, or brought into the relationship, a home in a suburb nearby to the Farm.

1. The Husband places considerable weight on section 79(4)(d) of the Act to the effect that, while conceding his desire to retain the Farm should not reduce the Wife's property settlement, as the Farm has been his income all his working life, the orders should be structured so as to give him a reasonable opportunity to retain it. Hence, he submits, he should have up to a year to pay the settlement to the Wife and that in the meantime she should leave the FMH on the Farm as this would help him obtain the borrowing that would fund the property settlement and best advance the prospect of him retaining the Farm.
2. The Husband's case is that at the start of his relationship with the Wife, or soon after, he owned his 20% unit holding in the Farm Unit Trust, and his share of a farming partnership with Mr P and his mother, Ms O, and soon after in 2004 he inherited or was given his beneficial interest in all of the FMH Fixed Trust. Further, as at June 2002, the land of the Farm Unit Trust was only encumbered by the substantial debt, of $1,249,907 to the Husband's parents.[27] And the land, including the substantial dwelling, of the FMH Fixed Trust (where he was the only beneficiary) was entirely unencumbered when he was given or inherited his interest in 2004. Further, he was already conducting the farm and retailing business. Plus, he says, he then owned his house in a nearby town ('the Husband's Town Property'), as did the Wife ('the Wife's Town Property'). Further, by the end of 2009, he had transferred to him Ms O's two units in that trust, in return for an agreement to provide modest support and obtained the transfer of Mr P's unit when he paid the $500,000 property settlement to Mr P's wife that Mr P was unable to pay. Then, although Ms Q had not played any role in the Farm Unit Trust or received any income from it during the relationship of the Husband and Wife, the fifth unit from Ms Q was formally transferred to the Husband in 2013.
3. But the Wife presses for acknowledgement of two liabilities or obligations of the Husband as well as assets brought in or inherited by the Husband. The Husband acknowledges these, they being his debt to a bank (being the mortgage debt secured on his house in the nearby town) and the debt necessary to fund the property settlement with his former spouse resolved by court orders in February 2003. Because the Wife regards mutual section 79(4) of the Act contributions as commencing in 2002, she pressed that I regard the Husband's property settlement as a pending liability at the start of the relevant relationship. The extent of the Husband's debt to the bank mortgagee of his house (in town) when sold and settled in 2005 is controversial.
4. In May 2004, Ms O and Mr P transferred the land and dwelling of the FMH property, where Ms O then lived, to the trustee of the FMH Fixed Trust, effectively to the Husband.[28] The Husband asserts this was him effectively inheriting the land and dwelling of the FMH Fixed Trust at that time.
5. In addition, in 2009, the Husband and Mr P entered into the agreement with their mother, Ms O, who then already lived in the renovated cottage situated on the land of the Farm Unit Trust, whereby Ms O was to be cared for by the Husband and Mr P. As between the Husband and Wife it is common ground that the care of Ms O was largely undertaken by the Husband and the Wife.[29] The Husband asserts there was not that much to do because of Ms O's independence and self-sufficiency, until about 2016 when she needed more care, and she then moved away altogether in 2018. And, he says, 'we both looked after [Ms O]'.

1. It is common ground that the Husband's brother, Mr P, got into financial strife on two different but perhaps related fronts at the time, or soon after, the Husband and Wife commenced to live together in 2004. He had substantial personal and/or business debts that became problematic for him. He and his wife separated, and he entered into consent orders for a property settlement with his ex-wife in the sum of $500,000 in 2009. Apparently by family arrangement, Mr P operated his farming or business activities on land next to what became the FMH of the Husband and Wife and this was known, or can be for the purposes of this case, as '[Mr P]'s land'. Mr P, at least later on, lived in the big old house on the Farm owned by the Farm Fixed Trust.
2. The end result of these twin financial pressures on Mr P was that he could not fund the $500,000 he was obligated to pay his wife, and he could not meet his other creditors' demands. Motivated by both legal and moral or family reasons, the Husband, but actually the Trustee of the Farm Fixed Trust, in late 2009,[30] borrowed $600,000 secured on the Farm land, and $500,000 (or thereabouts) was applied to fund the property settlement to Mr P's former spouse and the balance to business purposes. At about the same time, the land previously owned by the Husband's parents (and next to the FMH) was sold to pay Mr P's creditors. That land was, I infer, treated as Mr P's share of the Farm. And in early 2011,[31] Mr P was declared bankrupt.
3. Also, at some point proximate to the 2009 agreements, Mr P transferred his unit, or 20% of the units in the Farm Unit Trust, to the Husband. The Wife sought to characterise those events, and the $500,000 to Mr P's spouse, and the more than $500,000 payments to Mr P's creditors as consideration for that unit. The Husband did not accept that characterisation.
4. In addition, the Husband seeks that the Wife immediately vacate the big house on the Farm and that he have 12 months from my decision to make the necessary payment to the Wife. He also seeks a default of payment clause that would trigger a sale of at least part of the Farm and take into account the price achieved, sale costs and any taxation arising from sale. The Wife simply seeks a fixed payment to her in 60 days and, in default of payment, an immediate sale of the whole of the Farm without taking into account any sale costs or income tax arising from sale.
5. After separation, the Wife continued to work in the Businesses until April 2019, and from some time thereafter worked as a community worker before she was required to step away from her work to attend to her sick father. The Wife's father passed away in 2023 and that loss weighs heavily on her.

1. The Husband's evidence also included affidavits of two of his children, Ms T and Mr U, as well as an affidavit of his previous wife, Ms V (the mother of Ms T and Mr U ). By sensible and efficient agreement between counsel, it had been decided early in the trial that the criticisms and/or negative evidence put forth by either side in this case would not be relied upon. Consequently, the Husband's 'other witnesses' as I will call them, Ms V, Ms T and Mr U, were not called for cross-examination, and none of the 'negative or inflammatory assertions' in their evidence were relied upon. As such, the evidence of the Husband's other witnesses contends as follows.

1. Ms V's affidavit included evidence of the Husband's personal nature and character, describing him as "an old-fashioned farmer" whose "major loves are his family, the land and his farm."[32] Ms V's evidence also emphasizes the Husband's close relationship with his children, and commitment to helping to bring up the Wife's daughter, Ms W.

1. Evidence adduced in Ms T's affidavit purports to describe the family environment in the Husband and the Wife's house. Ms T's evidence included:
   1. [Mr U], my other brother [Mr X] ([Mr X]) all worked part time from a young age. I had two jobs working at the [Town Y supermarket] from the age of 15 and then also took on shifts at a local cafe in [Town Y] when I was 18, working between both jobs.

...

1. [...] the [FMH] property was not difficult to run. It had oil heaters in bedrooms and a fire that my father would light every night. Once my brothers grew older, they took over this job. [...]The hot water would sometimes go out on really windy days. This was not hard to light and once we were all of age, we all learnt how to do this. However, if it did go out, we would call my father and he would come over and light it and then it would be an hour (at most) before we could use the water again. I never went without showering, being able to wash my clothes or have my basic needs met in this house while growing up.
2. [...] We all made our own lunches and organised our own breakfasts. My father would usually help me with my homework and afterwards he would sit down and watch television with us. [...]

1. Ms T also deposes to all of the family members helping with caring for the sheep on the farm, and states that she did cleaning work for the accommodation business for a period of time, as well as working weddings and functions in the farm business along with her brothers, Mr X and Mr U, and the Wife's daughter, Ms W.[33]

1. Mr U similarly describes the family environment, deposing that:
   1. [...] Everyone in the home had jobs to do at home and it was very much a collective contribution even when my siblings and I were young children which kept the household running. As soon as we were old enough, we had a strict list of chores including cutting wood, cooking, mopping, dishes, maintaining the garden and doing our own washing.
2. Mr U also deposes to himself, his brother and sister, and the Wife's daughter, Ms W, obtaining their Responsible Service of Alcohol ('RSA') qualification to work functions for the family business.[34]
3. I am satisfied everyone worked well and hard when they could.

1. Until final address the Husband sought to retain a substantial number of items from the FMH, and this was contested by the Wife. In final address the Husband sought a much-reduced number of items from the FMH, occupied by the Wife since 2020. He sought:[35]

MR PUCKEY: ... There's a dining table and chairs, which I'm instructed is so heavy that no one could ever move it. There's a king bed suite, and then there are two outdoor pieces of furniture. Custom-made outdoor three-seater and an old wooden bench seat that I'm told my client's sister gave him. He would like those items to stay in the house when the wife vacates, and she can take the rest.

1. While the Wife did not agree with this much reduced list of chattels to be retained, she did not speak against this reduced list or assert the items no longer existed. I am satisfied that just and equitable orders require those few items from the FMH to be made available to the Husband by them being left in the FMH when the Wife departs.

1. In Outline of Case filed days before the hearing, the Wife relied on her Amended Response filed 29 January 2024 as to the orders she sought. But a substantial change occurred in the running.

1. The Wife then sought orders for a sale of two of the three blocks of the Farm[36] and a sale of the land and dwelling of the FMH block, with that sale process to commence in 45 days, and that from the sale proceeds she receive a property settlement, a fixed payment, equal to 50% of the to-be-calculated non-superannuation property pool, less the assets she will keep, at settlement of those sales. The Wife said she should have sole conduct of the sales, and the sale process, by execution of documents relating to water licences, commence three days after the orders and that the Husband have 30 days from the orders to remove what he wants from the farming sheds on the FMH Block and she then be at liberty to sell the remaining contents, if any.
2. The orders sought appear to contemplate the sale of the FMH Block settling first in time and then at that settlement the following is to occur:
   1. At settlement of [the FMH Block] property Sale, the proceeds of sale be applied in the following manner and priority:

(a) First, to pay all costs, commissions and expenses of the sale;

(b) Secondly, to discharge in full any mortgage owing to [the Mortgagee];

(c) Thirdly, to reimburse the Wife any costs of disposal incurred by her [...];

(d) Finally, the balance to the Wife, noting that such payment is made by the Husband (as sole beneficiary of the [FMH Fixed Trust]) to the Wife.

1. The orders sought also contemplate that the Wife's property settlement will be greater than the net proceeds of sale of the FMH Block.
2. When both sales pressed, sale of the FMH Block and the sale of two of the three blocks of the larger part of the Farm, have settled, after sales costs and discharge of mortgages, the net proceeds are to be applied as follows:

13. [...]

(c) Fourthly, to pay the Wife any such sum that may be required so as to achieve an overall division of the non-superannuation assets (net of tax) 50% to the Wife (and 50% to the Husband) taking into account the terms of these Orders and the value of the asset pool as determined by this Honourable Court, noting that such payment is made by the Husband (as sole unit holder of the [Farm Unit Trust]) to the Wife; and

(d) The balance to the Husband (if any).

1. The clear inference from the orders she then sought in that Amended Response is that tax due from the sales would be borne by the parties, as would sales expenses and the potential rise or fall of the sales (compared to the agreed property valuations) be shared between, or borne equally, by the parties.
2. In the event the proceeds of sale of those sales did not provide enough to satisfy the Wife's 50% of non-superannuation property settlement then the Husband was to make an adjusting payment and, in default of that payment, then the remaining block of the Farm, that for the purpose of these reasons is called the "Improvements Block', was to be sold with the payment taken from the proceeds with the balance to the Husband.

1. In Outline of Case the Wife continued to rely on the Amended Response with salient parts recited above. But the Outline of Case at page 16 of 17 pressed a significant difference. Now, the Wife pressed for the sale, and I infer on the same terms as her Amended Response, of the whole of the Farm including the Improvements Block and the FMH Block as follows:

Due to the interlocking nature of the real properties, it is commercially unrealistic to treat the real properties separately, final orders ought to include the sale of the totality of the real properties to achieve an equal division.[37]

1. This change was clarified and justified in final address in the following discussion with counsel for the Wife in regard to default provisions:[38]

DR INGLEBY: We say that there isn't any evidence, even, of being able to raise a million; he says give me the chance. But there is absolutely no evidence of him being able to raise two million, or two and a half million, or three million. Those figures are just totally fanciful. And we say, that if [Mr Miratos] chooses to put his case this way, to - we would say, stick his head in the sand, then that is at his peril as to realisation costs and the like, because he can't have it both ways. He can't say, give me the chance to pay out; but, if I've got to sell up, you share in the costs. That's my submission.

HIS HONOUR: And, including on the default, just say I did go down - because there's always that issue, even if I did go down Mr Puckey's case line, and just pick a figure, for six months, rather than 12 ... and he doesn't for whatever reason he doesn't, or he can't borrow the money - then a default provision kicks in, and you would say the default provision should then have a fixed sum determined by the pool, rather than the rise and fall of the proceeds of sale, including taking into account capital gains tax.

DR INGLEBY: Correct. In relation to which there is no evidence before the court.

HIS HONOUR: There's no evidence as to the quantum.

DR INGLEBY: No.

HIS HONOUR: There's no evidence that there will be none.

DR INGLEBY: And there's no evidence there will be.

HIS HONOUR: Isn't there an overwhelming inference that there's going to be?

DR INGLEBY: .... But [Mr Miratos] has chosen - for example, what he could have said is, "Look, the [business], that's the core activity. I'm a [farmer]. I've always been a [farmer], that is where I've made my name. That is my professional love, so to speak. Let me keep the [farm]. Finally, we know there are residential properties on the [Improvements] block, let me keep the [farm]. My second priority is to keep it." But he hasn't come to court and said that. He has come to court and said, "I want the court to fashion a settlement that reflects my desire to effectively keep everything, and I'm going to justify that on the basis that the wife doesn't need more than a mil, because that's more than she has ever had, and it cost me a fortune to borrow it."

...

HIS HONOUR: ... Mr Puckey says it's just [and] equitable that this man gets an opportunity to keep all this. You say it's unrealistic, head in the sand. Their parameters. There's nothing in the Family Law Act or in the rules or anywhere else, that says following a relationship breakdown, whether it's five years or 30 or 40 or 10, that the division of the property, or the property alteration or the property settlement, whatever term you want to use, under section 79, it must happen within X months. Now, it's invariably done, you know, pay X in default of the payment and argue 30 days, 60 days, 90, 120; there's a sale and so on and the default interest runs from the date the payment was due: easy. But where one party says it's just and equitable that I get a chance to keep what I've been working on since I was 16, you say he has blown it, because he has stuck his head in the sand and hasn't done enough.

DR INGLEBY: No, I'm not saying that. What I'm saying is that he might have worked on it all. Two things....I'm going to submit... there are two legal principles...Firstly, is the duty to end financial relations in section 81. And secondly, is the need to make sure that your Honour's decision is based on current valuations. The longer you leave it, the more value the "retainer" gets. That's the answer to that.

1. The Wife asserts the Husband has had plenty of time to work out how he would meet the property settlement to the Wife and that section 79(4)(d) has no work to do in this case as the Farm and the Businesses should be regarded as a "hobby" farm, not as the source of the Husband's income.
2. The Wife's case included references to the authorities or precedents set out in Appendix 4.
3. Her case emphasised the considerable extent of Wife's involvement in the Businesses and cohabitation from 2002. The Wife's case emphasised the extent of the Wife's involvement in the process by which some of the currently held assets were acquired or preserved, including her role in preparing for the litigation and addressing the Supreme Court of Victoria in late 2011.

1. The Wife's counsel invoked the concept of the Wife working "a double shift" by her role as homemaker and in caring for the Husband's mother Ms O who lived nearby on the Farm and her role in working in, managing and promoting the Businesses. In addition, the Wife brought in the substantial funds in 2010 of about $400,000 from the sale of the home she owned prior to the relationship.

1. The Wife's case disputed the characterisation of the Farm and the FMH as coming from the generosity of the Husband's parents and/or family and hence being regarded as contributions by him in the sense of Gosper& Gosper [1987] FamCA 43; [1987] FLC 91-818 and Kessey and Kessey [1994] FamCA 162; (1994) FLC 92-495. In Outline of Case, the Wife asserted:
   1. The parties contributed equally during the relationship and in the course of the relationship and marriage they acquired by:

3.1 The transfer of the [FMH Block] from [Ms O] and [Mr P] to [H Pty Ltd] ATF The [FMH Fixed Trust] at an estimated value of $350,000 to $380,000 [in] May 2004 (wife's first paragraphs 28 and 29).

3.2 The transfer of unit holdings from [the Farm Unit Trust] being [Ms O] (2/5th interest) and [Mr P] (1/5th interest) to the husband in 2009 and [Ms Q] (1/5th interest) to the husband in 2013 (wife's first affidavit paragraphs 55 to 59 and wife's second affidavit paragraphs 25 to 29 and 38).

3.3 The transfers were for value because:

3.3.1 The transfer of the [FMH Block] was "paid for" by the renovation costs for [Ms O]'s house of $142,144 (when [Ms O] moved from the [FMH Block] into Ms O's house), the financial contribution of weekly payments of $500 per week to [Ms O] (wife' s first affidavit at paragraph 28 and 29) until the time [Ms O] obtained a pension after [Mr P]'s bankruptcy in 2012 (wife's second affidavit at paragraph 36) (approximately 7.5 years, being approximately $195,000).

3.3.2 The transfer of unit holdings were "paid for'' by:

3.3.2.1 The $500,000 borrowed from [Z Bank] by the business to payout [Mr P]'s family law settlement to former wife [Ms BB] in circumstances where the properties would have been sold (wife's first affidavit at paragraphs 55 and 58 and wife's second affidavit at paragraph 28 and 29), to ensure the orchard parcel of land on the [Farm] properties was not sold in the default sale under his family law orders;

3.3.2.2 $680,000 was paid out as a result of [Mr P]'s bankruptcy by the husband as he had guaranteed the liabilities being a total of the following matters (wife's first affidavit at paragraph 59):

3.3.2.3 in excess of $500,000 to creditors:

3.3.2.4 in excess of $150,000 to accountants, including $92,000 for the settlement payment funded by [Z Bank] secured over the [D Street] property to be repaid in 12 months;

3.2.5.5 $30,000 in legal fees, from VCAT proceedings;

The business debt had increased due to [Mr P]'s 's bankruptcy from $450,000 to $2,000,000 post 2009 (wife first affidavit at paragraph 62).

3.3.2.3 Defending the Supreme Court proceedings issued by [Ms Q], following her lodgement of caveats against the titles of the [B Street] properties (wife's first affidavit paragraphs 57 and 58) including approximately $130,000 paid to [AA Law Firm] (wife's second affidavit at paragraph 31) and the non-financial work of the wife once the Husband and his mother were legally unrepresented.

3.3.2.4 The non-financial work of the wife in performance of the obligations to care for [Ms O] under the agreement for her care between the husband, [Mr P] and [Ms O] (wife's first affidavit at paragraph 76, 82 and 88 and wife's second affidavit paragraph 26).

1. She pointed to the role of the November 2009 'Care of Ms O and Mr P's agreement where Ms O transferred her units (and I infer 2 of 5 units) in the Farm Unit Trust in consideration of $1 and the obligations of her sons to care for her. Then, on her case, she undertook the burden of most of the time, work, care and effort of caring for Ms O.
2. The Wife says although the funds to pay to Mr P by payment to his former wife and creditors were effectively borrowed, and not by her, the Wife points to the acquired debt being serviced from the Businesses conducted with her substantial effort and "double shift".
3. Hence, apart from contributing the funds from the sale of her home in 2010, the Wife's case asserts that she was effectively a direct and indirect contributor to the acquisition of all but one of the units of the Farm Unit Trust.
4. The Wife says the Husband has painted himself into a corner as there is little to no evidence that he can raise the substantial funds necessary to pay her and therefore, selling of the Farm and the FMH property is necessary and should be sooner rather than later.
5. The following exchange occurred during closing submissions of counsel for the Wife:

HIS HONOUR: Do I do anything with the fact that [Ms Miratos] was not ever personally liable for any of the borrowed debt?

DR INGLEBY: Where did the money to pay the interest on the borrowings come from, is my answer and - - -

HIS HONOUR: Yes, from their joint contribution. Their joint - - -

DR INGLEBY: Yes.

HIS HONOUR: Sorry, I shouldn't say joint. Their different, but considerable contributions over time.

DR INGLEBY: Yes.

1. I am satisfied that the Wife did not undertake any debt associated with the business, although she was a director and, as far back as 2004, the parties received accounting advice that referred to the benefit of limiting the liability of the Wife in the business structures.[39]

1. In submissions the Wife's counsel referred me to the case of Jabour & Jabour [2019] FamCAFC 78, and asserted that:

DR INGLEBY: Remembering that the full court said 34 per cent for Ms Jabour was not a proper exercise of discretion. 47. Ms [Miratos] has done far more than [Ms] Jabour. In less years, I agree. Okay, it's in less years. Ms Jabour was in the - was 30, from memory - late, late 20s.

HIS HONOUR: Ms Jabour had three children.

DR INGLEBY: Yes, and three children. But these two didn't have children together, in the sense of being the genetic parents of them, but there was the care of children in difficult circumstances. So this idea of 15 per cent on contributions, and bump it up to 5 per cent because of the disparity, is, frankly, insulting. And it's just nowhere near what is the range in a - either short-long or long-median marriage with this myriad of contributions.

1. It was clear that the thrust of the Wife's case was that the quality and intensity of her contribution over many years outweighed the, she says, exaggerated, direct and indirect financial contribution made by the Husband. This position includes:
   • the alleged "double shift" indirect financial and non-financial contributions of the Wife of working in various roles in the Businesses; and
   • her role as homemaker to the household of herself and the Husband, her daughter and the Husband's children; and
   • the "consideration" point.

1. The Wife's criticisms of the Husband's case included the following.

The "no serious attempt to fund a settlement to the Wife" criticism

1. In the Wife's case outline, the Husband was criticised for an alleged failure to disclose a "serious" attempt to fund a settlement to the Wife.[40]
2. During cross-examination, the Husband was asked about his proposal to be granted a period of 12 months to make a settlement payment to the Wife. The questions put to the Husband espoused a criticism of him, that he had not provided any evidence of his ability to fund a settlement payment to the Wife.[41]

DR INGLEBY: See, these proceedings have been on foot for about four years, give or take, haven't they?

THE HUSBAND: Yes.

DR INGLEBY: Yes. You've had plenty of opportunity to have discussions with the bank, haven't you?

THE HUSBAND: Yes.

DR INGLEBY: Yes. And in fact, you have had many discussions with the bank, haven't you?

THE HUSBAND: Yes.

DR INGLEBY: But you can't produce a single document relating to any of those discussions, can you?

THE HUSBAND: The bank wouldn't give you a document just on a word, it wouldn't mean anything.

DR INGLEBY: You, for example, haven't prepared any formal application to the bank, a feasibility proposal, "This is how I can do it." You haven't made any formal proposal to the bank for any figure at all, have you?

THE HUSBAND: Like I said, I can't put money when you don't know what I'm meant to be paying.

...

DR INGLEBY: You know that it's going to be between one and three and a half million dollars, don't you?

THE HUSBAND: Looking on what both sides - yes.

DR INGLEBY: Yes. So, you could have made an application with, for the sake of argument, half million dollar increments. "What about one?" "What about one and a half?" "What about two?" "Two and a half?" "Three?" "Three and a half?" and asked for their response in relation to that range, couldn't you?

THE HUSBAND: I thought - me talking verbally, I didn't know I had to produce a piece of paper to say that for the court.

DR INGLEBY: No, no, I'm just - I'm talking about going to the bank? [...] You could have asked them, "Will you lend me one?" "Will you lend me one and a half?" "Will you lend me two?" "Two and a half?" "Three?" "Three and a half?" You could have put those as alternatives, couldn't you?

THE HUSBAND: Yes. Looking at it now, yes I could.

...

DR INGLEBY: [....] I'm putting to you, [Mr Miratos], if you were serious, if you were serious about borrowing an amount of money, you would have had those sorts of discussions with the bank?

THE HUSBAND: I did have discussions with the bank.

DR INGLEBY: But you didn't have any specific discussions about any specific figures, did you?

THE HUSBAND: Like I said, I had discussions at the lower end with the bank. I never went to the higher end with the bank.

...

The "didn't seriously consider selling the Orchard Block" criticism

1. Included in, or ancillary to the "no serious attempt to fund a property settlement" criticism, was a criticism of the Husband, put to him under cross-examination, that he had not seriously considered selling the Orchard Block to fund a settlement, as he had not "properly" informed himself of the water rights attaching to the Orchard Block property, nor made enquiries about selling the property. It was put that the Husband's suggestion that he could sell the Orchard Block property to fund a settlement to the Wife was not serious given that he mistakenly indicated under cross-examination that the Orchard Block property did not include water rights. Counsel for the Wife put it to the Husband as follows:[42]

DR INGLEBY: Would it be fair to say, [Mr Miratos], that you haven't looked at this question carefully until it arose in the last 10 to 15 minutes?

THE HUSBAND: I haven't studied this, no.

DR INGLEBY: No. But this, whether there are water rights or not for Orchard Block, would be an important point for any purchaser, wouldn't it?

THE HUSBAND: Yes, I'm just confused.

DR INGLEBY: Yes, and I'm suggesting to you that if you were serious about this, "I can sell the Orchard Block" idea, you would have thought about it a bit more carefully in terms of what you were actually selling?

THE HUSBAND: We're selling 40 acres of land.

DR INGLEBY: With water or without water?

THE HUSBAND: Without water.

DR INGLEBY: Right. But you didn't know that there was a licence allowing you to use the land - use the water from the [Improvements] Block, did you?

THE HUSBAND: That licence wouldn't give you the right to use it once the land is sold, because that's on another property. So, that licence can't overrule saying you can take water out of someone else's dam.

...

1. Further questions were put to the Husband regarding his "seriousness" in suggesting the sale of the Orchard Block in order to fund a settlement:[43]

DR INGLEBY: What inquiries have you made about marketing that particular block?

THE HUSBAND: I've talked to a couple of real estate agents.

DR INGLEBY: Name them?

THE HUSBAND: It was [CC Real Estate], but that has now been taken over by [DD Real Estate], I think. He did tell me.

DR INGLEBY: When did you talk to [CC Real Estate]?

THE HUSBAND: Earlier in - what month is it now? Earlier this year, I can't recall which month.

DR INGLEBY: Yes, and what did [CC Real Estate] say about what you might expect to get for that block?

THE HUSBAND: He said you would need to clear it to be able to sell it. And he didn't put a price on it because he said, "Once you've cleared it", he will look. But he expected a price over a million, but he didn't say a price. Because he said at the moment it looks run down, and it's - not many people would be interested.

...

DR INGLEBY: Did you talk to [CC Real Estate] about water rights?

THE HUSBAND: No.

DR INGLEBY: [CC Real Estate] told you that you needed to basically clean it up?

THE HUSBAND: Correct.

DR INGLEBY: Why haven't you?

THE HUSBAND: Well, there hasn't been - I thought we were going to court earlier and then I was waiting for this court to be over so I can clear my mind and then I will pursue everything I can at 100 per cent once I've got this court case done. [...] There has [been] a lot of stress. So, that's why once the court case is over, I don't have to think about this, and then I get on to my normal work.

DR INGLEBY: So, I'm just going to suggest to you, if you were serious about marketing the orchard block, you've had four years to clear it, haven't you?

THE HUSBAND: I don't know how to answer that.

DR INGLEBY: Well, could you, at any stage in the last four years, have started clearing the orchard block?

THE HUSBAND: I haven't done anything to the farm because when I started to clear some vines to stop [weeds] I had someone taking a lot of pictures. So, I just haven't done anything until this case is done, then we start.

DR INGLEBY: Have you spoken to anybody other than [CC Real Estate] about selling the orchard block?

THE HUSBAND: No.

DR INGLEBY: Have you spoken to [CC Real Estate] about selling any of the other blocks or [the FMH]?

THE HUSBAND: No.

DR INGLEBY: Why not?

THE HUSBAND: Because that's the block I had deemed would go first.

DR INGLEBY: Okay. You deemed that it would go first, and you knew it needed clearing up; correct?

THE HUSBAND: Correct.

DR INGLEBY: But you've done nothing to clear it up; correct?

THE HUSBAND: Correct.

1. The Husband had deposed as follows:[44]
   1. I further seek the opportunity over a period of not less than 12 months to make such payment to [Ms Miratos] as is required to settle all financial issues between us in accordance with the terms of the final orders sought my Application. As is plain from [Ms S]'s report, there is significant value in the assets of the [Businesses] but the income from [the Farm] operations over the years has been at such low levels that there been difficulties in obtaining access to borrowings. The problem has not been the question of security but rather the serviceability of those borrowings.
   2. In the course of these proceedings, I have had many discussions with the NAB, which has been supportive over many years. In my recent discussions, I have made it known that I will require funds to meet my settlement obligations to [Ms Miratos]. A 'chicken and egg' issue has arisen in that NAB is unable to give any advance indication to me as to how much it may be prepared to advance (in addition to the existing secured borrowings and other facilities) and would need a clear indication of the total payment obligation before considering any further application for loan approval.
   3. In the event NAB is not in a position to advance sufficient additional funds with which I can fund the proposed payment to [Ms Miratos], I will need to sell some of the land presently held by [J Pty Ltd] and [Post Separation [E] Pty Ltd. The most commercially viable land to sell if required is the parcels upon which the now non-operative orchard is sited. Without removing the trees and returning the orchard site to a more viable and usable 'parcel', I will be unlikely to realise the best price for that land as purchasers would be confronted by the expense and difficulty of the orchard removal.
   4. In the circumstances, I seek a period of not less than 12 months within which to make any necessary payment to [Ms Miratos] so that I can explore all available options and implement them. In the further circumstances in which [Ms Miratos] and members of her immediate family have lived at the [FMH] property for over 5 years since our separation, I contend that such an order is in all the circumstances fair and reasonable.
2. The parties had obtained expert evidence of the cost of "clearing up" to ready for sale the part of the Farm identified by the Husband as being his intended first option to sell.
3. While there was a lack of precision to those paragraphs deposed to in January 2024, the cross-examination of the Husband, including his demeanour in the witness box, did not cause me to doubt the truth and accuracy of what he deposed, and I accept that evidence of what he has done at [48]-[50]. Whether his opinion of 12 months being just and equitable is just and equitable is another matter.

The "diversion of income to a new business" criticism

1. In the Wife's case outline, it was also alleged that post-separation the Husband continued to contribute to the business on the Farm properties as a farmer, but diverted income to new businesses, established after separation.[45] This criticism or complaint was not pursued in cross-examination or address. Sensibly so, as there were more obvious and bigger fish to fry.

1. Although I am satisfied that the sheep run on the property (really about 100 or so ewes and, until they are sold,[46] the lambs from the ewes, and the usual much smaller number of necessary rams) were only a small part of the Farm operation, I am not satisfied the Farm (and the Businesses and all its parts) can be regarded as a "hobby" farm. This is now alleged by the Wife and said to be relevant to the Guthrie & Guthrie [1995] FamCA 134; (1995) FLC 92-647 ('Guthrie') type consideration of section 79(4)(d). The income is said to be minimal and hence not warranting consideration under section 79(4)(d) and hence not a matter to take into account of permitting the Husband to retain the Farm, or some or it, if he can.
2. At the consideration of the section 79(4) contribution stage, the Wife asserted that she had a major role in a very substantial and busy operating farming, retail and accommodation enterprise. At that stage of consideration, her case is not that she was helping or contributing to a "hobby farm" enterprise. To regard the farm and the Businesses as a "hobby farm", in my view would be to seriously undervalue the extent of the Wife's contributions and roles in the Businesses.
3. I do not accept the Wife's "hobby farm" submission. The Farm and the Businesses are, together, a significant operation and the sole source of the Husband's income and that was the case for years prior to the relationship between the Husband and the Wife and since then.

1. As detailed above in regard to the Husband's "other witnesses", it had been decided early in the trial that the criticisms and/or negative evidence put forth by either side in this case would not be relied upon. As such, the Wife's "other witnesses" were also not called for cross-examination, and none of the 'negative or inflammatory assertions' in their evidence were relied upon. Their evidence, save for any negative or critical aspects, contends as follows.

1. In her affidavit, filed 19 July 2024, the Wife's daughter, Ms W, deposes to getting along well with the Husband's daughter, Ms T, and to her opinion of the fond relationship between the Wife and the Husband's mother, Ms O. She also gives evidence that her opinion was that the Wife worked seven days a week in the family business, and that herself, Mr X and Ms T obtained their RSA certification to work functions from time to time.[47]
2. I accept that is her opinion and I accept herself, Mr X and Ms T had RSA qualifications and worked in functions from time to time when their commitments permitted.

1. The Wife's sister, Ms EE, also filed an affidavit on 19 July 2024. In that affidavit, Ms EE states that she understood, really her opinion, that the Wife worked hard on a daily basis and made significant contributions to the "makeover" of the Farm property at the beginning of the relationship between the Husband and the Wife.[48] I accept Ms EE holds those opinions.

1. Mr FF, a former employee of the Businesses, also filed an affidavit in support of the Wife. He deposed as follows:[49]
   1. [Ms Miratos]'s role was a partner in the business, events and marketing manager, sales and [...] manager and bookkeeping/payroll.
   2. From my discussions with [Ms Miratos], she had a vision for the business and seemed to be involved in many parts of its operation, including: staffing [...] and [the accommodation]; sales, marketing and bookings for [...] events and tours; [...] accommodation bookings, cleaning and maintenance; and payroll and bookkeeping.

...

1. [Mr Miratos] displayed [...] skill and assisted [Ms Miratos] with some events, at which I also worked, [...]

...

1. While working in the family run business , I met [Ms Miratos] and [Mr Miratos]'s children and worked with some of them [...]

1. That evidence of the other witnesses was not significantly in dispute. The evidence was largely of their own opinions and does not advance evidence of the contributions of the parties beyond the significant concessions of senior counsel for the Husband. Both parties were busy and worked long and hard. But the Wife's case did not come to grips with how long and hard the Husband worked as well as her.

1. The Husband commenced proceedings in this Court about a month after he was removed from the FMH by an intervention order in late 2020. These proceedings have a long and extensive history, where there have been many Court appearances for the parties and a total of 18 court orders made throughout the proceedings. How the interests of the parties were to be identified and valued vexed the parties and the orderly conduct of the proceedings to a significant extent. The matter was listed for Final Hearing on numerous occasions, only for the listing to be vacated while the parties attempted to organise single expert valuations.
2. Part of the Businesses includes some sheep. I infer yarding the sheep for shearing proved to be much easier than corralling the parties and experts to produce valuation evidence. Ultimately that task was successful and the single expert valuations were in evidence and not disputed.

1. The Final Hearing eventually commenced on 29 July 2024 and ran for 4 days. I reserved reasons on 1 August 2024. The delivery of this judgment is well outside the three-month guideline for delivery of judgments of this Court. I apologise to the parties and their lawyers for the delay. The delay is not because six months was needed to work out what were just and equitable orders but because available time was taken with other hearings and reasons in cases heard earlier.
2. This 4-day trial was 4 days of cross-examination and submissions. Evidence in chief was by affidavit. Of the eight lay witnesses and two expert witnesses on affidavit and relied upon, only the Husband and Wife were cross-examined. The parties were expected to compress over 18 years of financial and other events into a navigable narrative to be agitated over four days to assist the Court determine a just and equitable outcome. With the assistance of experienced solicitors and counsel, the parties did so. Most events were not controversial, but the consequence of those events was.

1. The Husband and Wife relied on the documents set out in Appendix 1 to these reasons. Documents tendered in evidence are as described in Appendix 2. In addition the hearing proceeded on the basis that annexures to affidavits had been tendered in evidence and used the annexure description within the affidavit.

Agreement: profound criticisms in party and witness affidavits not relied on

1. In affidavit material each party made many, and serious, allegations against the other, including alcohol abuse, allegations of very poor step-parenting of the other's children and of family violence to each other and the children. By agreement on the first day of the hearing, I was told of an arrangement between the parties, brokered by their counsel, that the negative and highly critical allegations each party, and his or her witnesses, made against the other in affidavits of evidence in chief ('the allegations') were not relied upon and should not be determined by the Court. I accepted that agreement. I expect that had the allegations been pursued, the matter would have likely taken some 3 or 4 days more to hear.

1. Only the parties were cross-examined. The Husband was cross-examined during day 1 and 2 of the final hearing. The Wife was cross-examined briefly in the afternoon of day 2 and her cross-examination continued followed into the morning of day 3. During the Wife's cross-examination on day three, I observed the Wife had a very different and strained affect compared to the day before. The Wife agreed she had taken significant medication overnight. I insisted on a break and that the Wife's lawyers take instructions as to her wellbeing. After coming back from that break, counsel advised that they would move to closing submissions without further cross-examination of the Wife, and I infer, due to the issue of the witness' mental health. I raised the option to come back the following day, however counsel spoke against it:

MR PUCKEY: [Ms Miratos], can you just stop. Have you taken medication overnight or this morning that is affecting you?---

[MS MIRATOS]: Yes.

MR PUCKEY: Right. I notice - - -?---

[MS MIRATOS]: I'm not very well today.

MR PUCKEY: No, well, that's what I was wanting to ask?---

[MS MIRATOS]: Because I have depression, and after you raised my father last night, I've had a really bad night.

MR PUCKEY: Okay. All right. Well, I'm very sorry about that, but they're matters that unfortunately we have to traverse?---

[MS MIRATOS]: I'm very sorry that I have depression.

MR PUCKEY: Okay?---

[MS MIRATOS]: And I'm not coping, and I told the court that.

1. I decided a short break was needed with the Wife's counsel permitted to converse with her notwithstanding she was being cross-examined. After that short break counsel agreed and suggested the solution to the conundrum was that the court proceed with the matter without the Wife being further cross-examined. Both counsel submitted that this solution would not prejudice either party, and I accepted that. I was assured the Wife remained capable of conducting the litigation.

1. In these reasons, statements of fact are findings of fact. I apply section 140 of the Evidence Act 1995 (Cth) ('the Evidence Act') which states as follows:

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence; and

(b) the nature of the subject-matter of the proceeding; and

(c) the gravity of the matters alleged.

Reliability of evidence & credit of the parties

1. In Fox v Percy (2003) 214 CLR 118 ('Fox v Percy'), at first instance, the rider of a horse was found to be a more reliable witness than the driver of the Kombi van that had collided with oncoming horses and riders. The issue was upon which side of the road the collision occurred. The High Court confirmed the NSW Court of Appeal's interference with the first instance decision where it had been incorrectly determined, by reason of the apparent reliability of the witnesses, that the collision occurred on the horses' side of the road. The High Court confirmed that the first instance decision was erroneous because the proven skid marks of the Kombi van demonstrated incontrovertibly that at all material times the Kombi van had been on its correct side of the road.
2. When discussing the drawing of conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses, the plurality of Fox & Percy observed:

[31] ...in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events...

(Citations omitted)

1. I have endeavoured to rely on objectively established facts and the apparent logic of events in this case as well as the evidence and demeanour in the witness box of the parties.
2. That I have not accepted a witnesses evidence on a point does not mean I regard the witness as dishonest or lying on that point. The same applies where I have found one witnesses evidence is less reliable than another witness. In a case where in substance one party alleges the other is lying, I bear in mind the guidance of the Full Court in Blass & Blass [2022] FedCFamC1A 63; (2022) FLC 94-085 at [39] and [40] which is as follows:

[39] The grave allegation of untruthfulness and its concomitant finding of abuse of child X as essential aspects of the determination of the case constituted, in accordance with s 140 of the Evidence Act 1995 (Cth), a factual conclusion that required persuasion, itself, on the balance of probabilities. It was not established on the mere failure by the appellant to prove that the behaviours had in fact occurred to that same standard.

[40] While the failure to accept a witness's evidence is a necessary component of a finding of untruthfulness or fabrication, such mere failure is less than a finding of untruthfulness; untruthfulness is a further fact that is required to be found.

1. From my observation of the Husband in the witness box and examination of contemporary materials, objectively established facts and the apparent logic of events, I am satisfied that by and large the Husband's evidence, on material matters,[50] was reliable.
2. I was not so satisfied that the Wife's evidence on affidavit was entirely reliable. And that is so notwithstanding the limited opportunity for her cross-examination. I found the Wife's evidence less reliable than the Husband's because of the following matters.
3. One controversy was the cost of the renovations to the Cottage that Ms O moved into that facilitated the Husband and Wife being able to occupy the FMH on the FMH Block, now valued at $2,100,000. The thrust of the Wife's case included that the apparent generosity of Ms O agreeing to move from what had been her matrimonial home, and what became the FMH, was mitigated by a number of things, including the expense of the renovations to the Cottage on the Farm land that she moved into.
4. The Wife had asserted in her trial affidavit that those renovations cost $142,144.[51] The Husband had asserted that the cost was much less than that, and about $83,000.[52] In correspondence, the Husband had pressed for any evidence that would corroborate or demonstrate the Wife's claim of the cost. The Wife produced the list of MSM9,[53] together with the large bundle of receipts. Those receipts were dated from October 2004[54] to August 2005. That bundle of receipts, along with the MSM9 list, was tendered in evidence as exhibit H5. Those receipts are a contemporaneous record of the work actually undertaken. The Wife purported that all of the receipts for the work described therein related to renovations of the Cottage. As asserted in final address by senior counsel for the Husband, those records were, self-evidently, partly for work undertaken on the Cottage and partly for Farm maintenance and work undertaken on other buildings of the Farm. When those items that self-evidently do not relate to the renovation of the Cottage, but rather improvements and maintenance of the Farm, are taken into account, the cost as asserted by the Husband is more plausible.
5. But it is clear that the Wife put together that bundle of receipts from records available to her to arrive at her initial $142,144 figure, and did not take account of whether or not the receipt or record of the payment related to the renovation of the Cottage, or not. In the scheme of things, this is not a major issue. But the issue of the amount and date of the renovations relates to the controversy about when each party asserted cohabitation, or living together, should be regarded as commencing.
6. The records contained in H5 demonstrate that the renovations must have commenced on or after October 2004. In November 2004, an email was sent discussing, "quotation for alterations to the caretakers residence of the property @ $59,000 roof & new room plus $6,000 new bathroom ... also required will be driveway, carpets ... etc." Tax invoices included in the Wife's H5 list of work said to be done for the renovation of the Cottage, for example:
   • April 2005 - miscellaneous work at [the Businesses] $2,505.91, page 90 of bundle
   • May 2005 - earthworks and drainage to lower dam and back of cool store number 2 $8,393, page 91 of bundle
   • June 2005 - for drainage and concrete work at [...] cool store $5,500, page 92 of bundle
7. Those are some of the matters claimed to be renovations to the cottage but were not. Also in the bundle, at page 86, is the tax invoice for electrical works carried out on renovations of cottage $4,450. The contemporaneous records show that the renovations to the Cottage were not completed until March of 2005. These records corroborate the Husband's assertion that the parties should be regarded as living together from when they commenced to reside in the one house in his town property and that the parties had moved into the FMH in early 2005.
8. I do not accept the submission of senior counsel for the Husband that the Wife must have knowingly attempted to mislead as to the cost of the renovations. However, I do not accept the Wife's evidence as to that figure of the cost. Further, the nature of the records self-evidently demonstrating what did, and did not, relate to the renovation of the Cottage and the Wife's apparent refusal to engage with the reality of the detail, but to take a very broad sweep of work that was done, is one of the matters that causes me to regard her evidence as less reliable than the Husband's.
9. In affidavit the Wife purported to have a detailed knowledge of her position in the various corporate structures. The Wife had managed an office for many years before the relationship. She relied upon her skill and knowledge in matters as significantly assisting the family in the Supreme Court litigation with Ms Q, discussed herein. The Wife's evidence included, annexed to her affidavit, her application for the intervention order[55] that she obtained that resulted in the Husband being excluded from the FMH Block in 2020. As agreed between the parties, I do not take into account the negative aspects each party had alleged, which would include the allegations of negative behaviour of the Husband in that application and the allegations he makes in rebutting those allegations. But the Wife alleged as a matter of fact in that application that, "the house property belongs to me and is registered in my name".
10. I take into account the stress of such a situation and the difficulty, or lack of precision, that can arise when attempting to have the relevant court officer prepare the application from the information provided by the applicant for an intervention order. But the Wife did not at that time, or any other material time, own the FMH. At that time, the FMH was owned by the FMH Fixed Trust of which there was a company that was a trustee, and the Wife was the director and shareholder of the trustee. Again, I do not regard the Wife as being dishonest in this assertion, but such an assertion, I infer, may have been important in the intervention order application and the disparity between the Wife's assertion of ownership and the reality, in all of the circumstances, is a matter that causes me to regard the Wife's evidence as less reliable than the Husband's.
11. The Wife's Outline of Case asserted that she became a 50% shareholder of E Pty Ltd in December 2003. The Wife's counsel repeated that assertion in oral submissions, and I infer, by reliance upon the date in the Outline of Case. The Wife's trial affidavit[56] asserted that it was in September 2004 that she was so appointed. This would not be a material matter, save that the manner in which the allegation was made in Outline of case tended to support the Wife's position of cohabitation, or the earlier start of contribution date, as being in 2002. The Wife's assertion in affidavit (September 2004) was correct. Although only a minor matter in the scheme of things, it was another matter that required me to look very carefully at the whole of the evidence rather than accept the written assertion in the Outline of Case and counsel's submission to me. This is clearly not a matter where there was any attempt by the Wife to mislead the Court or the Husband, but it is a matter that contributes to my finding that the Wife's evidence was less reliable than the Husband's.
12. The Wife had, in affidavit, asserted that the Husband's Town Property had a significant equity. But in her reply affidavit filed shortly before the trial, the Wife no longer alleged a significant equity, and relied upon a document, a business record of the bank, that was the bank's instructions at settlement of the sale of that property. The Wife relied upon the bank's instructions to settle as demonstrating that the Husband had only had very little equity (about $39,000) in that property. However, in the circumstances of the Husband having long dealt with that bank and having long been supported by that bank in his business affairs, the record of what the bank was to take at settlement does not necessarily demonstrate the equity. The manner in which the Wife changed her position as to the equity that the Husband had in his Town Property by reliance on a document that did not necessarily demonstrate what she asserted, is another matter that causes me to regard her evidence as less reliable than the Husband's.
13. The Wife's reply affidavit, at paragraphs 15 through to 36, set out the Wife's account in regard to the Farm Unit Trust. This involved the Wife's opinion about the consequences of the financial statements of the Farm Unit Trust represented in a manner intended to demonstrate that the Husband did not really bring in significant wealth via the Farm Unit Trust to the matrimonial pool of assets. In this case, little turns on whether the Husband already owned and controlled the whole of the Farm Unit Trust from May 2004, compared with the Husband controlling and having the benefit of the whole of the Farm Unit Trust by the end of 2009 (although with the trouble with Ms Q still to come). But in the Wife's account, she relies on statements that are simply wrong including, at paragraph 20, that the debt recorded as due to the Husband's parents in the Farm Unit Trust accounts (exhibited at MSM3 of the Wife's reply affidavit) of $1,221,210 was due to Mr P. This had nothing to do with Mr P but was a debt due to the Husband's parents that was later forgiven or abandoned. This is a further matter that reduces my confidence in the accuracy of the Wife's recollection of events and the reliability of her evidence and her opinions contained within that evidence.
14. Further, the circumstance that each of these incorrect matters as asserted contended in favour of the Wife's overall position causes me to have less confidence in her evidence overall than the Husband's evidence.

1. The property orders dispute falls to be determined by application of Part VIII of the Act and in particular the provisions of sections 79, 75(2) and 80 of the Act.

1. Relevant parts of section 79 are as follows:

Section 79 Alteration of property interests

(1) In property settlement proceedings, the court may make such order as it considers appropriate:

(a) in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or

...

including:

(c) an order for a settlement of property in substitution for any interest in the property; and

(d) an order requiring:

(i) either or both of the parties to the marriage; or

to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.

(2) The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:

(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

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

(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and

(e) the matters referred to in subsection 75(2) so far as they are relevant; and

(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and

(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

1. By section 79(4)(e), the shopping list of largely prospective factors of section 75(2), that are the same factors to be considered when considering spousal maintenance, must be had regard to and the provision is as follows:

Section 75 Matters to be taken into consideration in relation to spousal maintenance

(2) The matters to be so taken into account are:

(a) the age and state of health of each of the parties; and

(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and

(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and

(d) commitments of each of the parties that are necessary to enable the party to support:

(i) himself or herself; and

(ii) child or another person that the party has a duty to maintain; and

(e) the responsibilities of either party to support any other person; and

(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

(i) any law of the Commonwealth, of a State or Territory or of another country; or

(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

and the rate of any such pension, allowance or benefit being paid to either party; and

(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and

(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and

(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and

(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and

(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

(l) the need to protect a party who wishes to continue that party's role as a parent; and

(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and

(n) the terms of any order made or proposed to be made under section 79 in relation to:

(i) the property of the parties; or

(ii) vested bankruptcy property in relation to a bankrupt party; and

...

(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and

(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

...

(3) In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.

"party" means a party to the marriage concerned.

1. The Court has wide powers as set out as section 80 of the Act:

Section 80 General Powers of Court

(1) The court, in exercising its powers under this Part, may do any or all of the following:

(a) order payment of a lump sum, whether in one amount or by instalments;

(b) order payment of a weekly, monthly, yearly or other periodic sum;

(ba) order that a specified transfer or settlement of property be made by way of maintenance for a party to a marriage;

(c) order that payment of any sum ordered to be paid be wholly or partly secured in such manner as the court directs;

(d) order that any necessary deed or instrument be executed and that such documents of title be produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;

(e) appoint or remove trustees;

(f) order that payments be made direct to a party to the marriage, to a trustee to be appointed or into court or to a public authority for the benefit of a party to the marriage;

(h) make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order;

(i) impose terms and conditions;

(j) make an order by consent;

(k) make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this section), which it thinks it is necessary to make to do justice; and

(l) subject to this Act and the applicable Rules of Court, make an order under this Part at any time before or after the making of a decree under another Part.

(2) The making of an order of a kind referred to in paragraph (1)(ba), or of any other order under this Part, in relation to the maintenance of a party to a marriage does not prevent a court from making a subsequent order in relation to the maintenance of the party.

Stanford & section 79(2)

1. In the High Court of Australia case of Stanford v Stanford [2012] HCA 52;  (2012) FLC 93-518 ('Stanford') the majority stated some fundamental propositions about section 79 proceedings. In Stanford the essential issue was whether it was just and equitable to make any property order at all, in circumstances where the consortium vitae or marriage relationship had not broken down by way of a separation and the Wife's needs were otherwise provided for. The parties had become physically separated due to the ill health of one of them with that party being in residential care and the other remaining in the matrimonial home.
2. The High Court varied the order of the Full Court and found that in the circumstances it was not just and equitable that a property settlement or property alteration order be made at all. This was so despite 37 years of marriage and contribution by the wife. Hence section 79(4) contribution, even 37 years of it, was not to be conflated with the section 79(2) "just and equitable" requirement but should be considered separately.
3. Apart from the general observations about section 79, the High Court observed that it should not be concluded that the making of an order is just and equitable only because of, or by reference to, the matters in section 79 without a separate consideration of section 79(2).
4. The majority observed at [39-42]:

[39] Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is "just and equitable" to make the order is not to be answered by assuming that the parties' rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that "[c]ommunity of ownership arising from marriage has no place in the common law"....

[40] ... whether making a property settlement order is "just and equitable" is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised "in accordance with legal principles, including the principles which the Act itself lays down". To conclude that making an order is "just and equitable" only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.

[41] ...The fundamental propositions that have been identified require a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interest during the continuance of the marriage.

[42] In many cases where an application is made for property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice by made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and the wife.... What order, if any, should then be made is determined by applying s 79(4) (and/or section 90SM(3)).

1. In Stanford, the High Court did not go on to comment upon how section 79(4) should be applied where it was just and equitable that a property alteration or settlement order be made.  Stanford was not concerned with the nuts and bolts of how section 79(4) was to be applied in the ordinary run of cases, to the extent there is such a thing.
2. In this case it is common ground the parties will no longer have the common use of their property as they did during the intact relationship and here each party contends that it is just and equitable that I make section 79(4) property alteration orders. Hence, I am satisfied that it is just and equitable to make property alteration orders in this case. But it is clear that the orders I make by application of section 79(4), must be just and equitable in the particular circumstances of the case.

1. In Keskin & Keskin and Anor [2019] FamCAFC 236; (2019) FLC 93-932 ('Keskin') the Full Court, Strickland, Kent & Austin JJ, at [44] approved what was the age old and pre-Stanford "preferred approach" as to the how the nuts and bolts of section 79(4) fitted together as set out in _Hickey and Hickey and the AG for the C'lth of Australi_a [2003] FamCA 395; (2003) FLC 93-143 ('Hickey') at [39] where it is just and equitable to make a section 79 of the Act order. Hickey set out the preferred approach as follows:

[39] The case law reveals that there is a preferred approach to the determination of an application pursuant to the provisions of section 79. That approach involves four interrelated steps. Firstly, the court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of hearing. Secondly the court should identify and assess the contributions of the parties within the meaning of section 79(4)(a), (b) & (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly the court should identify and assess the relevant matters referred to in section 79(4) (d), (e), (f) & (g) ("the other factors") including, because of section 79(4), the matters referred to in section 75(2) so far as they are relevant and determine the adjustment study (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case.

(Citations omitted and emphasis added)

1. In case to the extent there may be a conflict between the High Court's rejection of "entitlement" to a section 79 order by mere separation and/or even years long section 79(4) contribution on the one hand, and the use of the word "entitlements" in the Hickey passage cited above on the other, I regard the use of "entitlement" in the above passage as intended to be synonymous with "assessment". I will have regard to what I find to be the contribution-based assessment rather than entitlement.
2. The preferred approach assists me in making a principled and orderly determination of the parties' property dispute.
3. I am assisted by Phillips & Phillips (2002) FamCA 350, (2002) FLC 93-104:
   1. The obligation of a trial Judge in dealing with an application pursuant to s.79 of the Act is to make an order that is just and equitable in all the circumstances having regard to the matters of contribution and the other factors, including the matters in s.75(2) of the Act. A trial Judge must identify and value the assets of the parties, identify and assess the matters of contribution and identify and assess the relevant other factors. It is also necessary, having undertaken these tasks, to be satisfied that the proposed outcome is just and equitable.

67. In JEL and DDF [2000] FamCA 1353; (2001) FLC 93-075 Holden and Guest JJ said at 88,332:

1. This is why the ''fourth step'', namely whether the result is just and equitable, becomes important. In Clauson and Clauson [1995] FamCA 10; (1995) FLC 92-595 the Full Court (Barblett DCJ, Fogarty and Mushin JJ) recognised, albeit in a discussion of the s 75(2) factors, that the application of percentages does not necessarily result in a just and equitable result, when it said at 81,911:

"There is, we think, at times a tendency to assess s 75(2) factors in percentage terms without considering its real impact, and we think there is legitimacy in the views expressed in more recent times that the Court has tended to operate in this area within artificially delineated boundaries. That is, it appears almost to be inevitable that the s 75(2) factors will be assessed in a range between 10% and 20%. A number of cases will justify an assessment outside those parameters and in any event it is the real impact in money terms which is ultimately the critical issue."

1. More recently, in Russell v Russell [1999] FamCA 1875; (1999) FLC 92-877 , the Full Court said at 86,439:

"[I] must be remembered ... that under s 79(2) of the Act, the Court is required to be satisfied that it is the order to be made which is just and equitable, not just the underlying percentage division of the net value of the parties' assets."

1. The Full Court took the opportunity to emphasise that in the consideration of whether the result is just and equitable, it is the justice and equity of the actual orders not of the percentage distribution which must be considered.

2. In our view, in this case, if his Honour had considered the effect of his findings as to the entitlements of the parties, whatever the value of the Buderim property, it would have been apparent, having regard to the narrowness of the issues, and in particular the valuation issue, that it would have been within his discretion to order a transfer of the Buderim property to the wife. The land value difference was only $20,000 and is further reduced if allowance is made for costs of sale. The overall difference in value was only $30,000. In our view, this is a case where what was a just and equitable outcome had to be considered not in percentage terms, but rather in terms of the assets that the parties would ultimately hold, even though there was a dispute as to the value of the principal asset and the valuations were not very dissimilar. If his Honour had considered the real impact of the orders he proposed, and in particular the order for a sale of the Buderim property, it would have been apparent that the result was not just and equitable.

1. Senior counsel for the Husband took me to Teal & Teal [2010] FamCAFC 120 in support of his client's case:
   1. By implication however s 79(2) requires if the Court is to make an order under s 79(1) altering the interests of the parties to the marriage in property, such an order must be just and equitable. [...] That requirement requires consideration of the actual assets to be retained by each party, and may include consideration of the effect when one party is to retain the greater proportion of his or her entitlement in superannuation of the nature, form and characteristics of the superannuation. It is also relevant when assets included for division are "notional" assets or "add backs", including paid legal fees, or when a business which requires retention of business premises or re-financing is to be retained as part of one party's entitlement.
   2. It will often require consideration of whether the percentage adjustment arrived at after assessment of contributions under s 79(4)(a)-(c), and adjustment for relevant factors under s 79(4)(d)-(g) when applied to the actual assets and liabilities requires the making of an order slightly outside the precise percentage arrived at [...]

...

1. ... It might perhaps be said that there has been an undue focus in the jurisdiction on the percentage outcome of property proceedings rather than on the actual property to be received or retained by each party.

1. I was also assisted by observations in the matter of Holland & Holland (2017) FamCAFC 166; (2017) FLC 93-798 where at paragraph [77] it was found:
   1. The assessed disparity between the parties (again noting that an unassessed and unspecified post-separation assessment is included within it) is 24 per cent. But, it is a figure arrived at in respect of property with a value of $373,000. We think what was said by the Full Court in Clauson earlier referred to can have particular importance in cases such as the present where the value of property to which an assessment pertains is modest and bears repeating:

There is, we think, at times a tendency to assess s. 75(2) factors in percentage terms without considering its real impact, and we think there is legitimacy in the views expressed in more recent times that the Court has tended to operate in this area within artificially delineated boundaries. That is, it appears almost to be inevitable that the s. 75(2) factors will be assessed in a range between 10% and 20%. A number of cases will justify an assessment outside those parameters and in any event it is the real impact in money terms which is ultimately the critical issue.

Step one: identify the property and liabilities

1. I turn now to step one of the preferred approach. The hearing proceeded on the common ground basis that the companies and trusts, including the assets and liabilities thereof, described as the 'Miratos Group', should be regarded as the property of the Husband. The list of assets and liabilities as put by the Husband, and by the end of the case not disputed by the Wife, with names of entities and properties as adopted in these reasons, is as follows:

The Miratos Group, including[58]

(a) Land and improvements of J Pty Ltd & the Farm Unit Trust;

(b) H Pty Ltd ATF the FMH Fixed Trust including the FMH Block;

(c) E Pty Ltd (trading until October 2021) and Post Separation E Pty Ltd consolidated net assets, adjusted for the correction in stock;

(d) Mr Miratos Sole Trader (incl NAB mortgage loans) net assets,

less additional NAB mortgage post valuation date

$5,750,000

$2,100,000

($117,014)

($17,250)

($1,240,123)

($100,000)

Part property settlements received by the Husband

Expert Reports of $33,358.60 paid for by the Husband[59] attributed equally to the parties, $16,679 to each of the Husband and Wife.

1. Hence, re-ordered into assets of the Husband's 'keep' and the Wife's 'keep', the assets and liabilities of the parties are as follows:

Part property settlements received by the Husband

1. For the purpose of identifying the legal and equitable interests of the parties as both the first step of the orthodox 4-step analysis and the first step of the Stanford just and equitable analysis, it can be readily seen that despite the Wife being the sole director and shareholder of H Pty Ltd, the entire equitable interest in the FMH Block is held by the Husband as he is the sole beneficiary of the FMH Fixed Trust. Likewise, as to J Pty Ltd and the Farm Unit Trust, the Husband formally holds all of the units of the Farm Unit Trust, and is the sole director and one of two shareholders, with the Wife, of the trustee company, J Pty Ltd.
2. A summary of the asset pool is as that the Husband has, or will retain, subject to default provisions, entities and assets, net of debt, to the value of $6,572,624 and the Wife has, or will retain, assets to the value of $307,925 and the total asset pool net of debt is $6,880,550.

Step two: section 79(4)(a), (b) & (c) contributions

1. In assessing the parties' disparate contributions, I must have regard to all contributions that fit within section 79(4) of the Act, including contributions made early in the relationship as well as recent contributions. Financial and non-financial contributions are to be given weight.
2. Further, regardless of the length of the relationship or marriage, even in a long marriage, there cannot be (however convenient it may be to the Court or the parties' lawyers) a "starting point" or "presumption" of equality of contribution in a section 79 of the Act property settlement case. Rather, the nature and quality of the respective contributions must be assessed or evaluated in each case. And that is so notwithstanding that in many cases the facts of the case not infrequently compel a conclusion or finding of equality of contribution. So much was determined by the High Court in Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, (1984) FLC 91-507 ('Mallet') back in 1984[61] and has been applied by the Full Court many times since.
3. That is so notwithstanding the forensic challenge, for family lawyers and the parties to such disputes, of compressing the relevant multiple events and controversies of decade after decade, within the confines of either agreed or admissible evidence, to fit within litigation of manageable length and expense. Skilled lawyers are usually able to do so, and they did so in this case.
4. Although not cohabiting, the parties were in a serious committed intimate relationship from 2002.
5. I am satisfied, for the reasons set out later, that the parties cohabited from 2004, when they lived together in the Husband's home in a town nearby to the Farm for a short time before they moved into the house on the Farm, the FMH. The Husband's parents had lived in the FMH until the Husband's father died in 2001 and thereafter his mother, 'Ms O', had lived in the FMH until early 2005.
6. As at 2002, the Wife then cared for her child (from a previous relationship and aged about 10 years). In 2002, the Husband then cared for his three children (from a previous relationship and aged about 9, 8 and 6 years in 2002) on a shared care arrangement with those children's mother, his former partner. From 2002 each had obligations to care for a child, or children, from a previous relationship when their relationship started and, prior to cohabitation, each spent time at the other's home when obligations to care for his children, or her child, and their respective work lives permitted.

1. This issue goes to the length of the relationship but does not necessarily determine from when respective contribution assessment should commence.
2. The Wife characterises the relevant relationship for the purposes of section 79 as a relationship of 16 years, from 2002 until separation under the one roof in 2018. The Husband characterises the relevant relationship as of only 14 years, from 2004 until separation under one roof in 2018.

1. It is common ground that the Wife was appointed the sole director and shareholder of H Pty Ltd in May 2004 and that at the same time, Ms O and Mr P transferred the whole of the unencumbered title of the FMH Block to H Pty Ltd. In the circumstances where this company was the trustee of the FMH Fixed Trust, owning the FMH and some farming land, and where the Husband was the sole beneficiary and the property was unencumbered by debt and the trust or the trustee did not trade, these positions were not onerous, nor did they entail the assumption of personal financial risk. But they were important, required annual returns to be filed, and indicate a significant trust by the Husband, his mother and Mr P in the Wife at that time. As stated earlier, I regard the parties direct and indirect section 79(4)(a), (b) and (c) contributions as commencing from this date.
2. The Wife's Outline of Case, and her counsel in submissions, asserted that the Wife commenced a role in the corporate affairs of the Businesses from December 2003 when she asserts that E Pty Ltd was incorporated and she became a 50% shareholder with the Husband and the Husband was appointed director and secretary.
3. The Husband's evidence did not touch this E Pty Ltd shareholder issue. But the Wife alleged at [33] of her trial affidavit:

33. [In] September 2004, I became a 50% shareholder in [E Pty Ltd].

1. The Husband filed an affidavit in reply. He addressed paragraphs before [33] and after [33] but did not address, or quarrel with, the Wife's September 2004 observation. Further, the Wife annexed at MSM10 the letter of accounting advice that contained legal advice dated August 2004. That letter, addressed to the Husband and E Pty Ltd[62] included the following passages:

Firstly, and to reiterate [Mr Miratos]'s previous position, we have seen [Mr Miratos] move from a partnership to being a sole trader, which left [Mr Miratos] significantly exposed under commercial law should successful litigation occur and now with the advent of [Ms Miratos] into his life, including his business life, the need to look at an appropriate business structure has become paramount so as to protect assets from possible litigation and to protect the business and personal assets that the two of you bring to this new relationship.

...

There are a number of advantages to bringing [Ms Miratos] into the company, not the least being her administration and marketing skills obtained when working with a sizeable [corporation] in those capacities. Obtaining shareholding in the company also gives [Ms Miratos] the motivation and incentive to perform, as it does for [Mr Miratos] who will contribute his [farming] skills to other growers.

...

[Ms Miratos]'s private assets are protected because she is not a director of the new company. [Mr Miratos]'s private assets should only be at risk if, in his capacity as director, he was found to have neglected his fiduciary duties and/or the company became insolvent. ...

Another reason for setting up this business structure is to have both [Mr Miratos] and [Ms Miratos] as equal shareholders in a company that provides management services. Having equal shareholders means that those shareholders are accountable to one another for their contributions, whereas, if [Mr Miratos] remained a sole trader and simply employed [Ms Miratos], there would not be enough incentive for [Ms Miratos] to ply the marketing skills that the company needs and that she brings to the business.

...

1. I am satisfied that the Wife's significant contributions within the meaning of section 79(4) should be regarded as commencing from May 2004, when she was appointed sole shareholder and director of the company, the trustee of the fixed trust that owned the property that was to become the FMH of the parties and where the Husband's mother then lived and had lived for many years. I infer it had been the last matrimonial home of the Husband's parents. I am satisfied of this notwithstanding that the parties still maintained separate residences but stayed in each other's homes frequently as they had done since 2002. As at May 2004 the parties had been in a committed intimate relationship and had been engaged to marry since 2002, and the Wife had commenced full-time paid employment in the Businesses in the previous August 2003 when he had ceased her long held permanent employment and commenced to work full-time in the Businesses. From May 2004 on, she worked hard in the Businesses and applied her skill and effort to improving the Businesses.
2. The accounting advice recited above implies that the Wife needed "incentive" and "motivation" to work hard in the relationship. I am not satisfied that that is so. The Wife was already committed to the relationship and the Businesses and had been since being appointed sole director and shareholder to H Pty Ltd as recited earlier.
3. In addition, and particularly from when the parties cohabited in the one home (the Husband's Town Property) from late 2004, the Wife contributed as a homemaker to the home of the Husband and his children and her child. In addition, she contributed to the care of the Husband's mother who lived on the Farm until 2018, and significantly from 2016 until 2018.
4. She worked hard in many different roles, and often over long hours and frequently for at least some of the time over 7 days a week, until 2018 when she suffered a mental health episode and spent time away from the Farm. To some degree, she shared decision making about the Businesses with the Husband. She returned to the Farm and separation under the one roof happened soon thereafter.
5. At times she felt overwhelmed. In addition, at times, she generously assisted her relatives, at a time of a mental health crisis.
6. The Husband planned, implemented and ran the agricultural side of things and was the farmer and overall major decision maker in the Businesses. He also contributed within the home and with domestic duties. As the children got older, they all assisted the Husband and Wife in the Businesses when they could. The Husband had always worked long and hard on the Farm and continued to after the Wife joined in doing what she could from May 2004 until early 2019. He has continued to work long and hard running the Farm and the Businesses, in all his different roles, since separation under the one roof and since the Wife ceased, or was stopped, from working in the Businesses in early 2019. When the Wife ceased working in the Businesses, the Husband kept on working and running things more or less as before.
7. But the Wife's contributions did not cease when she stopped working in the business. She continued to live in and maintain and within the meaning of section 79(4) of the Act, "conserve" the FMH. That continues to this time. From soon after separation the Wife obtained employment outside the Farm and the Businesses and earned an income and applied that to her own needs.
8. Both parties made these contributions while dealing with the vagaries and uncertainty of farming life including the impact of nearby bushfires in 2009 and the years long stress of the litigation of the trouble with Ms Q and the years longer trouble with Mr P. They dealt with the stress and difficulty of the employee being injured on the farm and the consequent investigation. I infer that both parties were very involved in and stressed by that addition work and stressful decisions that had to be made in those circumstances.
9. I accept that it was the Wife, not the Husband, who addressed the Supreme Court in late 2011, but I infer he was there attending and providing his input. It was the Wife who attended the Magistrates Court about the workplace injury. But, both parties were involved in those matters, and the fact that the Wife's previous long employment as an administrative assistant gave her skills and a confidence that meant she collated information and spoke to the courts, and apparently successfully, does not mean her contributions day in day out should be regarded as superior to the Husband's.
10. Both parties were involved in the care of Ms O. I accept the Husband's evidence, and the inference from the text message between the Wife and Ms R over 2017 and 2018, that the period when Ms O required substantial assistance was over that mid-2016 to about mid-2018 period. I am satisfied the Wife did more care at that time than the Husband, but not all of the care required. Further, what the Wife did she did very well. Those contemporaneously recorded communications show the real love and care the Wife showed to Ms O. They also showed the heavy workload of the Husband. At one point the clear inference is that it is oppressively hot, and the Husband is heavily engaged in the farm.
11. The inferences I draw from those text messages, although only a snapshot in time, is that both parties were very busy working hard in one thing or another and can only be in one place at a time.
12. The parties disagree about exactly who did what and which of them worked the hardest and who was the most significant or important. Each of the Husband and Wife asserts that he or she was more important to the operation of the farm, of the Businesses and the home than the other. Each is telling the truth, as they see it: they each really do think they were more important to the operation of the Farm and the Businesses than the other. And section 79(4) contribution does not accord some special, or premium, weight to be given to the more financially successful contributor or to a management type role. A contribution does not have to have a financial profit to be regarded.
13. In the end I am satisfied that each of them could only be in one place at one time. Each of them worked long and hard in different roles. Living on the farm meant that both parties were available for whatever needed to be done 7 days a week even if they did not "work" outside of the home or social activities on all those days or all of the day.
14. The thrust of the authorities of the Full Court, which I endeavour to apply, is that all direct and indirect contributions, financial and non-financial, made long ago or made recently must be considered and had regard to in a holistic manner. I am assisted by statements of the Full Court, including in Hoffman & Hoffman [2014] FamCAFC 92; (2014) FLC 93-591 at [52], where the Full Court observed:

[52] In each case, we consider that the point being made is that there is no principle or guideline (or, indeed, anything else emerging from s 79), that renders the direct contribution of income or capital more important - or "special" - when compared against indirect contributions and, in particular, contributions to the home or the welfare of the family.

1. I also follow the observations of the Full Court in Fields & Smith [2015] FamCAFC 57; (2015) FLC 93-638 where at [43], they observed:

[42] If it is necessary to make the point again, and to highlight it for the purpose of this appeal, we add our endorsement to what has been made clear in the authorities referred and to the Full Court's comments in [52] of Hoffman, that the words of s 79 do not provide endorsement for any category of contribution related to any class of property (for example, high wealth) being, by virtue of that category or class, more valuable or important that another. In each case the contributions made by the parties must be evaluated in the context of the facts particular to that case.

1. In assessing section 79(4) contributions, I apply Dickons & Dickons [2012] FamCAFC 154 ('Dickons') including at [24], Hurst & Hurst [2018] FamCAFC 146; (2018) FLC 93-851 ('Hurst') including at [23], Lovine & Connor and Anor (2012) FLC 93-515, [2012] FamCAFC 168 ('Lovine & Connor') including at [40] - [42], and Horrigan & Horrigan [2020] FamCAFC 25 at [31] - [33], [47] - [48] ('Horrigan'). It is unnecessary to recite those passages here.
2. I am mindful of the Full Court's observations in Dickons as recently restated in Benson & Drury [2020] FamCAFC 303, and although a case dealing with a "Kennon" type claim, the observations of the Court are apposite. Those observations include the following:

[35] ... all contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder.

[36] That principle has a counterpart in the application factors prescribed in section 75(2) or section 90SM(3) of the Act. Any adjustment to the parties contribution-based- entitlements should be determined inclusively after considering all relevant factors; not by aggregating incremental adjustment in respect of each relevant factor.

[Citations omitted]

1. Hence, I must avoid, "the error of segmentation and the comparative of analysis of one feature of the evidence against all others". I must assess all contributions holistically.
2. It is clear that the terms of section 79(4) require that I take into account all contributions within the terms of section 79(4)(a),(b) and (c) whenever they were made, and that it is an error to give greater or lesser weight to any particular type of contribution. However, a contribution is not to be disregarded merely because it was made long ago. Further, as stated in Wallis & Manning [2017] FamCAFC 14; (2017) FLC 93-759 ('Wallis & Manning') at [105]:

The length of the marriage can be seen to be of considerable importance in the assessment of contributions.

1. Counsel for the Wife placed much emphasis the Full Court authority of Jabour cited earlier. I refer to the passage recited earlier where counsel for the Wife emphasised the importance of all contributions and made comparison of this case to Jabour.
2. I am assisted by Jabour and the following passages bear repetition:
   1. Finally, in Pierce, after quoting Fogarty J's remarks in Money, the Full Court said:
      1. In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.
   2. Again, consistent with the authorities set out above and those which we discuss below, the import of Pierce is that the weight to be attached to an initial contribution must be assessed against the rubric of all of the contributions, both financial and non-financial, made by the parties over the course of their relationship.
   3. The final authority the primary judge referred to was Wallis & Manning [2017] FamCAFC 14; (2017) FLC 93-759 which was a case involving a long marriage. The family farm had been given to the parties by the husband's father early in the marriage.

...

1. To like effect, in Singerson & Joans [2014] FamCAFC 238 the Full Court also said:

   1. Section 79(4) of the Act is clear. There is nothing to suggest that any category of contributions needs to be quarantined and applied solely to particular assets. The court is mandated to look at the totality of what the parties have contributed in a financial and non-financial sense, including contributions to the welfare of the family and to the acquisition, conservation and improvement of assets. The court is required to evaluate the significance of all the various contributions to the property, notwithstanding there may be different categories of that property.

...

1. As can be seen the primary judge weighed the myriad of contributions made by the parties against the contribution made by the husband by bringing in Property A rather than treating Property A as one of the myriad of the contributions made.

1. However, the facts of Jabour are quite different to the facts of this case. The authorities repeat over and over that the facts and circumstances of each case must be considered.[63]
2. In Jabour, the underlying circumstances were conveniently stated by the Full Court at [133] - [138]:
   1. It is necessary to record here that, at the commencement of the relationship the husband owned a property which he purchased for $135,000 shortly before the parties commenced living together. He owed his father $65,000, resulting in a net contribution of $70,000. This property was used as the matrimonial home for many years until it was transferred to the husband as part of a partial property settlement.

134. We take into account the following:

• apart from Property A and the former matrimonial home neither party had any assets of significance at the commencement of the relationship;

• the parties' contributions to their property and to the welfare of the family during the marriage were equal;

• the relationship was a long one, of 27 years, and involved raising three children; and

• the primary judge did not record that any adjustments were sought under s 75(2) of the Act and did not consider that section. No challenge was made to that approach and we shall proceed on the basis that this section requires no consideration by us. In any event, given the amount of property to be retained by each party, it is not at all obvious why any further adjustment would be required (even accepting that the husband has had some difficulties with his health recently).

What then is the effect of Property A?

1. This property was brought into the relationship by the husband. There is no evidence as to its value at the time. In [late] 2001, some thirteen years into the relationship, the 30 acre block was sold for $215,000. The other half interest in the 44 acre block was acquired for $105,000, which indicates that it was then worth $210,000.
2. Whatever was the value of the property at the commencement of the relationship its significance has been largely lost given the myriad of the contributions by each of the parties to their various business ventures, through their employment and care of the family over a long relationship, including the contributions made to the retention of the property which we have discussed above. There is no doubt that they both worked hard and over many years they both contributed to the full extent of their capacity within the roles each took within the marriage. As was said in Wallis at [20] it is important that this miscellany of other s 79(4) factors is not accorded a subsidiary role in the assessment of contributions.
3. The reason that there is significant property to be divided is that Property A was fortuitously rezoned which caused its value to skyrocket. As we have explained, this increase in value does not favour one party over the other. Thus although the property was introduced by the husband it was merely the springboard for the events which followed and relevantly the revaluation.
4. Throughout the relationship the parties' contributions to this property were no different to their other contributions.

1. There is no evidence or even suggestion in this case of windfall gain or increase in the value of any of the assets in the asset pool.
2. The statements of law in Jabour are entirely applicable but the facts of Jabour are significantly different to this case and the outcome of the Full Court's re-exercise of discretion in that case, which, with respect I observe is readily understandable, cannot be used as some sort of comparator for assessments of respective contribution in this case.
3. Because of the intense dispute as to what were the parties' direct contributions and then they were made, the weight to be given to those contributions, it is necessary to dwell in detail on the circumstances. In doing so, I must not lose sight of the myriad of other contributions.
4. In regard to direct contributions at the commencement of the determined joint contribution time, in May 2004, the parties are in dispute. It is common ground that the Husband formally owned, in his own right, 1 of 5 or 20% of the units in the Farm Unit Trust (Trustee J Pty Ltd), that owned the bulk, in area, utility and value, of the land and improvements that make up the farm. In addition, he had an interest in a partnership that conducted a business or businesses with his bother Mr P and his mother. He owned or conducted another business that he conducted in his own right. He owned a home in a suburb nearby to the Farm, albeit that was encumbered to some extent by debt to the bank and he had the liability of the inchoate right of the mother of his children to a property settlement (for which consent orders were filed with the Court in February 2003) arising from that relationship.
5. The Wife owned her own home, encumbered by debt, also in a nearby town.
6. The Wife sets out within paragraphs 16 and 17 of her trial affidavit her understanding and/or allegations, at the time of filing her affidavit, of the initial contributions of the parties. She says she bought in assets to the value of $325,878 in 2002 and there is no evidence of any material difference in May 2004, the relevant start of contribution date.
   1. At the commencement of our relationship[64], I owned a real property at an estimated value of $280,000 (in equity), plus a car and superannuation, as follows:

16.1 The real property at [HH Street, Town JJ] (the [Town JJ] property), which was valued at approximately $390,000 and subject to a mortgage of approximately $110,000, equity of approximately $280,000. [In late] 2010, I sold the [Town JJ] property for $470,000 and the net sale proceeds were $443,344, after payment of water and council rates... Most of the net sale proceeds were contributed to [the businesses] and were deposited into the [Businesses'] bank account......

16.2 [Motor Vehicle 2] valued with an estimated value of $30,000.

16.3 [Motor Vehicle 3] with purchase value of $5,500 .

16.4 Superannuation entitlements with [Super Fund 2] of $10,378...

Total : $325,878 (equity)

1. [In] January 2003, [Mr Miratos] swore an affidavit in an Application for Consent Orders filed in the Family Court of Australia [in] February 2003. Pursuant to the settlement with his former wife, [Mr Miratos] was required to pay her $212,000. [Mr Miratos] obtained these funds by borrowing with NAB against the real property at ...[the Husband's Town Property] .... When that property sold [in] 2005, it realised about $178,000 after the discharge of the mortgage which [Mr Miratos] had taken out to pay the settlement to his former wife.

2. In addition to this sum of $178,000, the only other assets [Mr Miratos] owned at the commencement of our relationship according to his sworn evidence were:

18.1 Shares with [KK Company], [M Company] and [LL Company] of $13,777.

18.2 [Motor Vehicle 4] of $12 ,000.

18.3 Funds in banks and cash of nominal value.

18.4 Furniture of estimated value of $15,000 .

18.5 50% interest in [a] partnership ([Ms Miratos] hand his former wife)... $93,000 (net), of which he retained 100% interest in the settlement with his former wife, being $186,000.

18.6 20% interest in [another] Partnership of estimated NIL value.

18.7 [The Farm] Unit Trust of estimated value of $1,000[65]....

At the time, [J Pty Ltd ] was Trustee of [the Farm] Unit Trust and [Ms Miratos] was one of three Directors with his mother...([Ms O]) and his brother... ([Mr P]). [J] Pty Ltd held three of the four Titles of the [Farm] properties...[Mr Miratos] held one fifth interest in the [Farm] Unit Trust, [Ms O] held two fifths, [Mr P] held one fifth and his sister...([Ms Q]) held the other one fifth.

18.8 [MM Pty Ltd] of estimated NIL value.

18.9 Superannuation entitlements with [N Company] and [LL Company] of estimated valuer of $30,938.

Total: $436,715 (equity)

1. Hence the Wife in affidavit alleges initial contributions of property each brought into the relationship to the value of $325,000 by her and $436,000 by the Husband. By the time of filing her Outline of Case the Wife alleged that the Husband's equity in his town property was not $178,000 as she alleged earlier but only $39,021 and hence his initial contribution, she said, should be regarded as only $297,736, that is less than her initial contribution. Over a 14 year relationship, even though without children of both of them, the care of 4 children at times, and in an asset pool of $6,880,550, whether the Husband brought in a little more or the Wife did, within those parameters, and all other things being equal, would command only a very modest assessment, if any, of one party having a greater contribution than the other in the section 79(4) exercise.
2. During opening submissions, it was submitted by counsel for the Husband that it was not in dispute that the Wife had, in fact, made significant contributions to the marriage in her capacity of homemaker and parent, and contributed to the care and support of the Husband's mother, Ms O. [66] It was also conceded that the Wife made contributions to the Businesses in the form of operating accounts, bookkeeping, marketing, and general duties involved in the day-to-day running of the cellar door and accommodation.[67]
3. The Wife's description of having assets of an equity of $328,000 at a time about two years prior to when I regard joint contributions as having commenced was unchallenged. I accept that assertion. Some five or six years later, the Wife sold her home and that brought in the sum of some approximate $400,000, as was conceded by the Husband in affidavit.

1. In final address, senior counsel for the Husband made submissions regarding the allocation of funds from the equity in his town property to paying for the renovations, including the following:[68]

MR PUCKEY: Now, just before I take you to the invoices to make it plain to your Honour, you will recall my client's evidence was, it was he couldn't remember, but less than $100,000. And that that came from draw downs on the mortgage, probably, on [Suburb NN]. If your Honour then takes that 83,000 and adds it to the 212 to pay out [Ms V], you're pretty close to the $311,000 dollars, which appears to have been - likely to have been the mortgage payout on settlement. So what is happening there, your Honour, is that the 212 goes out to [Ms V]. My client can't suggest that he has contributed that equity to the property, or to the family. But the balance of about $83,000 and the net proceeds of the 390 minus the 311; around about $80,000 has been received by the parties. Now, in one - - -

HIS HONOUR: Sorry. Just repeat that. I want to make sure I have got a note of - - -

MR PUCKEY: Yes. Sorry. So assuming the wife is right, and there is no controversy about it at 74 of her affidavit - the second affidavit, the property was sold for 390. And assuming that the ambiguous settlement instructions are, in fact, referring to a payout figure of 311, there was 80-odd - or just under $80,000 in net proceeds.

...

MR PUCKEY: And on the other side of the 311 that goes to the bank, 212 goes out of the pool to [Ms V]. And a balance of 99 has been applied via the mortgage draw downs to the benefit of the parties, and renovations at [Ms O]'s house. Now you will recall, your Honour, that marries up exactly with the letter that my friend put to my client, about his request to the NAB to borrow $100,000 at the time. So the factual finding, your Honour is that $100,000, by way of a mortgage drawdown, and a balance of 79, minus selling costs, in respect of the balance of proceeds of sale. Again, it is close enough to the 178 that the wife recalled, and close enough to the 200 that my client recalled.

And your Honour doesn't have to be precise. Neither of us are suggesting you do. But the other point about the husband's contribution is that it comes in at the very beginning, as opposed to the wife's, which comes in five years after his in 2010.

1. I accept those submissions of the Husband's senior counsel. Hence, I am satisfied that the cost of the renovations to the Cottage was in the order of $80,000 - $90,000 and that it was funded directly, or indirectly, from the Husband's equity in his town property. However, five or so years later, the Wife brought in something in the order of $400,000 from the sale of her property. Even allowing for the time value of money, the Wife brought in a greater amount in equity from her town property in 2010 than the Husband did from his town property in 2005. It is important that the contribution of the Husband's equity in his town property be counted once, not twice. That is, whatever the cost of the renovations to the Cottage, it was directly or indirectly paid for from the Husband's equity in his town property.

1. Save for the large home on part of the Farm that Mr P used until 2013 and the renovated cottage after that Ms O occupied from 2005 until 2018, the Husband had the use of the Farm land, the FMH block and water rights from before the relevant relationship with the Wife commenced. There is no evidence of any rent being paid, and I infer none was paid or demanded, for the exclusive use of all that valuable property between 2004 and the Husband and the entities being legally entitled to all of that property, either in 2009 or 2013. The 2013 date arises because Mr P occupied the big house until 2013, and Ms Q formally transferred the fifth unit in the Farm Unit Trust in 2013.
2. That no rent was paid or demanded corroborates the position that as between Husband and the rest of his family the Farm was always intended to be his, or going to be his, by inheritance or gift. That the other family members supported the Husband against Ms Q in the Supreme Court proceedings and then the fifth unit of the Farm Unit Trust being formally transferred to the Husband by Ms Q, without further consideration, also supports that same proposition.
3. If the Husband only, in substance, owned 20% of the Farm via his 20% unit holding in the Farm Unit Trust until the 2009 agreements, then the absence of rent paid while exclusively using those assets would be a further generous contribution by Ms O, holding 2 units or 40% and Mr P holding one unit.
4. For the purposes of section 79(4) contribution there is no difference of substance between the weight to be given to the Husband bring in those assets at the start of the relationship on the one hand and bringing in part of those assets at the start and being given the benefit of rent free use between 2004 and 2009 or 2013 and then on those later dates being provided with the balance of the legal title and control of all those assets. And the work of the Wife and the Husband and the myriad of their different contribution would be the same in either case.

Substantial debt due to the Husband's parents forgiven

1. It was significant to the Wife's case that the Husband had, in his settlement with his previous partner (his ex-wife and mother of his children and a witness for him in this case), had asserted a value of his 20% interest in the Farm Unit Trust as $1,000. The Wife exhibited the 2001 and 2002 balance sheet of the Farm Unit Trust. It is clear enough that the assets of the Farm Unit Trust were likely recorded at cost. Whether or not that is so, the extent of the recorded value of the Farm land was recorded as $1,234,045 with other very minor assets of $20,872. There was no debt recorded as due to external financiers or banks. But the debt due to the Husband's father was recorded as $1,221,210 (and $1,218,420 at FYE 2021) and to Ms O as $28,697 as at FYE 2022. That left balance sheet equity of only $5,010 and divided amongst 5 unit holders provided the figure of only $1,000 per unit. There was no adjustment on that debt for interest recorded. But the holders of that debt had substantial influence on the Farm Unit Trust.
2. But the Husband was substantially indebted to the bank and annexure MSM2 shows the Husband's then business was indebted to the bank in the substantial sum of $496,850 and this debt was secured over part of the Farm land of the Farm Unit Trust.
3. The Husband's father died in 2001 (almost the end of FYE 2001) and at exhibit H6, the grant of probate on his estate showed that debt FYE 2001 debt of $1,218,420 as due to his estate by the affidavit of his executrix, Ms O. By clause 3 of the Husband's father's will made in 2000, the whole of his estate passed to his wife, the Husband's mother, Ms O, hence the asset of that substantial debt due from the Farm Unit Trust passed to Ms O.
4. It is clear that Ms O either abandoned or forgave that debt $1.2 million debt and her own smaller debt at some point between the grant of probate in 2003 and the time of the three agreements of November 2009. The course of the transfer of those units to the Husband meant that he was, in substance, the beneficiary of that forgiveness or abandonment.
5. Counsel for the Wife had submitted that the Husband's 15% for contribution and overall 20% case was derisory and plainly insufficient. In defence of that position, senior counsel for the Husband referred to Horrigan as follows:
   • This was a farming case involving a pool of $3.6m divided in proportions of 85/15 on contributions with a 7% s.75(2) adjustment where the relationship spanned 8 years but included a child born of the relationship who lived primarily with the wife. The wife unsuccessfully argued her contributions were given insufficient weight.
   • For the purposes of overcoming the bald assertion that 20% is derisory and plainly insufficient and defending the proposition that the husband's request for time to pay is unjust, consistent with the warnings in the cases above as to the dangers of focussing upon percentages rather than the monetary value and practical effect of the order in assessing what is just and equitable in the circumstances of the case.

1. In the first instance decision of Fogarty J in Gosper,[69] after considering the authorities as they were at that time, dealing with inherited or property provided by gift in a section 79 case, his Honour observed as follows:[70]

Where there has been a gift or advance by a relative to one or both of the parties to the marriage the first step is to determine the ownership of that benefaction. [...]

However, where the evidence enables the Court to determine that it is a gift to one or other or both of the parties, that is an important finding. [76,168] Normally where title to a property is transferred to one or both of the parties that would be the strongest indicator of intention of the donor. [...]

The next step is to consider the application of sec. 79 to all of the property of the parties, including property received by one or both of them by way of benefaction from a third party. [...]

Where a gift is made solely to the donor's relative (for example a gift by parents to their married daughter) and that spouse applies that property to the marriage, that is a direct financial contribution solely by that party and will be assessed in the ordinary way alongside other contributions by each party to the marriage. [...][71]

The critical case is where a relative of one of the parties gifts property to both of the parties to that marriage. Dependent on the circumstances of the case it is, in my view open to Court in such a case to look at the actuality and treat that as a "financial contribution made directly ... on behalf of" the spouse relative [...].

In many such cases that gift was made only because of that relationship and in reality as a means of benefiting that relative in that marriage. It was made "because she was a daughter of that family" as was said in W.'s case at p. 75,527.

It is clearly a "financial contribution" and one "made directly" to the acquisition, conservation and improvement of property. In such cases it is open to the Court to conclude, if the facts justify it, that it was made "on behalf of" one spouse.

In other cases the evidence, including evidence that the donor intended to benefit both spouses, may not justify that conclusion. If so, the application by the parties of that property to the marriage would, at least at that point, be an equal contribution by them.

[...]

Here the gift of the McCrae land was to the parties jointly. However, in my view it is clear that the motivating circumstance was the relationship between the wife's parents and the wife and it was transferred to benefit her and because she was a daughter of the Mr and Mrs T.

1. It is convenient to adopt and recite the observations of the learned authors of the CCH Commentary on the Family Law Act 1975 (Cth) at 37-035 as follows:

In Pellegrino,[72] Chisholm J considered that there may be evidence that the donor intended to benefit both spouses where, for instance, the parents' gift is in recognition for some service made to them jointly by the parties (at p 84,728). In that case, as in the marriage of Rickaby & Rickaby (1995) FLC 92-642, the rent free accommodation provided by the wife's parents for a period of years was regarded as significant contribution on behalf of the wife.

In Kessey & Kessey [1994] FamCA 162; (1994) FLC 92-495, the Full Court of the Family Court comprising Baker, Finn and McCall JJ, dealt with a case where the wife's mother contributed considerable moneys towards the cost of improvements to the matrimonial home. The Full Court at (p 81,150) indicated that its remarks may well go further than what was said by Fogarty J in Gosper (above):

"In other words, a contribution by a parent of a party to a marriage to the property of the marriage will be taken to be a contribution made by or on behalf of the party who is the child of the parent unless there is evidence which establishes it was not the intention of the parent to benefit only his or her child."

In Lorriman & Lorriman [2004] FamCA 1010 (unreported but referred to in Coad & Coad [2011] FamCA 622), there was express evidence from the donor parent that their intention was to benefit both parties, not just their child. This case was also referred to by Benjamin J in Essex & Essex (No 2) [2007] FamCA 639 where the following passage was quoted from Lorriman & Lorriman (at p 148) of Essex:

"The correct approach to gifts coming from the family of one of the parties is a matter of settled law. That approach requires that the gift be treated as a contribution on behalf of the parties from whose family the gift originated: Gosper & Gosper [1987] FamCA 43; (1987) FLC 91-818 referred to. While an exception is sometimes made where the gift is bestowed for the benefit of both parties, that exception ought not to apply in the circumstances of this case."

In Essex, Benjamin J rejected the wife's argument that the exception in Lorriman should apply. He said (at [149]):

"It is clear to me that the gift would not have been made to the parties but for the relationship between the husband and his family, and the exception referred to in L & L [Lorriman] would likewise not apply in this case. I find that the gifts were made for the benefit of the husband."

1. In this case, I am satisfied that the gift of title from Mr P and Ms O of the FMH Block to the FMH Fixed Trust, albeit in contemplation that the Husband and Wife and their family would live there, was a gift bestowed for the benefit of the Husband and should be recognised as a direct financial contribution by him. That property now represents 30% of the pool available at this time. Further, for almost the whole of the relationship that property provided the home for the Husband and Wife and their families.
2. It is clear in this case that at least during the relationship of the parties, until Mr P's bankruptcy, and notwithstanding that the Husband and Mr P were at times in an active partnership and at times in an inactive partnership, that Mr P operated on the substantial acreage that adjoined the FMH Block and the Husband operated on the Farm land which in total was much smaller than Mr P's adjoining block, but had substantial improvements on it. I am satisfied that the reality of the family arrangements between the five surviving members after the Husband's father's death was that Ms R and Ms Q had received other benefits from Ms O and her husband and that, in reality, those with an interest of substance, as opposed to form, in the Farm and/or the Farm Unit Trust was actually the Husband, Mr P and Ms O.
3. Hence, in substance and practice, although the Husband only held one of five units in the Farm Unit Trust, he held and used as his own (no rent was paid to Ms O or Mr P) the whole of the Farm and hence the whole of the Farm Unit Trust. Although, he did not formally obtain the registration and legal ownership of the further three units until November 2009. At that time, he undertook the formality of a written agreement to care and provide for Ms O but that process was underway from when Ms O moved out of what was her matrimonial home to the more modest, but renovated, Cottage on the Farm. Mr P operated on the larger acreage adjoining the FMH Block that had been owned by Ms O and her husband.
4. Hence, although the Husband was the legal owner of one unit, that is 20%, of the Farm Unit Trust, in substance by the implicit agreement, whether stated or unstated, of Ms O, Mr P and the Husband, for practical purposes also brought in the whole of the Farm land, subject to Mr P's right to occupy the big house on the Farm (as he did until 2013) and Ms O's right to occupy the renovated Cottage on the Farm (which she did until 2018) and the express obligation to care for Ms O, which he did with the Wife's active assistance, including at times, and particularly in 2017 and 2018, when Ms O was in need of and was provided with much care and attention by the Wife. The Cottage was renovated at the Husband's expense. That expense was modest compared to the value of the Farm and all its parts.
5. It is correct that the Husband entered a deed of agreement whereby he is recited as purchasing Mr P's unit in the Farm Unit Trust for $500,000 and Mr P retaining all of the Husband's interest in the, by then, inactive partnership that had previously been conducted by Ms O, her husband, Mr P and the Husband. The $500,000 payment was not calculated by reference to any monetary value of the unit, but rather as the sum needed to satisfy the court orders for the property settlement to Mr P's wife. Unless that was paid, all hell would break loose with Mr P's ex-wife enforcing her property order where it was understood she had security over part of the Farm and that action would have likely triggered the Businesses' borrowings, secured over the Farm, to be called in with likely foreclosure by the mortgagee. The end result would have been, despite her once significant wealth and generosity to her children, Ms O would have been homeless.
6. That need to provide the funds to Mr P's ex-wife was the cause and motivation of that $500,000 borrowing and payment. Likewise, the further borrowing and payments to Mr P's creditors, that was in excess of a further $500,000 in various payments over some period, was caused and motivated by the same desire to keep the Farm and Ms O's home safe from creditors. The Businesses, assisted with the Husband's guarantee or indemnity, borrowed those funds that were secured over the Farm. It is undisputed that those borrowed funds all remain outstanding. But the hard work of the Husband and the Wife and the use of all of the Farm land and the improvements provided the income that serviced that borrowing. In that sense, the Wife contributed to keeping the Farm safe from creditors. Whether or not there is any link between the Wife's work or roles and the acquisition of those units, the Wife's hard work in her roles in the Businesses and as homemaker within the home is a contribution as contemplated by section 79(4)(a), (b) and (c). There does not have to be a direct financial benefit or profit from any activity, work or role, of either the Husband or the Wife, for that work or role to be regarded as a contribution as contemplated by section 79 of the Act.
7. Hence, when considering the weight to be given as a contribution to the pool of assets via the Farm Unit Trust, the circumstance that Mr P operated on the adjoining larger property, which was ultimately lost to his creditors, must be taken into account and contends for the proposition that the Farm Unit Trust and the Farm were always intended to be, or within the family were regarded as being, the Husband's notwithstanding the formality of the Farm Unit Trust arrangements. That no rent was ever paid or even requested, let alone demanded, for the Husband's use of the Farm land strongly supports that contention. If that is so, the "rent free" use of the Farm is not a further contribution by the Husband in the Pellegrino or Rickaby sense.
8. If the Husband should not be regarded as having the benefit of the whole of the Farm and the Farm Unit Trust until the agreements and transfers of November 2009, then the rent free accommodation is a further significant contribution by the Husband's family, but in reality, by Ms O. In substance, there is no practical difference to the weighing of the Husband's contribution by either circumstance.
9. The weight to be given to that contribution must take into account the reality of the borrowings to make the payment to Mr P's ex-wife and the borrowings necessary to fund the payments to his creditors and the necessary application of funds that would have otherwise been available to the Husband and Wife to service that debt.

1. I am satisfied that the 2004 settlement of the FMH and the farming land of that title, now valued at $2,200,000 should be regarded as a gift or inheritance of the Husband's and be regarded as a direct or initial contribution by him. That gift came with the obligation to renovate the cottage on the Farm Unit Trust and that cost in the region of less than $100,000 and not $142,144 as incorrectly asserted by the Wife, and I refer to the discussion of evidence about the cost of that earlier in these reasons.
2. The trouble with Ms Q had a substantial cost in stress and legal expenses. Both parties contributed to that. The trouble with Mr P cost much stress to both parties and the Businesses borrowed substantial money, $500,000, to pay out Mr P's property settlement with his ex-wife and then paid further sums, in dribs and drabs, another more than $500,000, over some years. Those borrowings are still in place. They have not been repaid. They were secured on the land of the Farm Unit Trust and, I infer, by the personal guarantee of the Husband.
3. But the Wife did not undertake any borrowings or guarantee personally any of that debt. But the hard work and myriad contributions of both parties enabled that debt to be serviced.
4. The Husband's case of a contribution assessment of 85/15 in his favour would not be just and equitable. The Wife's case of contribution assessment of equality would not be just and equitable. I am satisfied, taking all of the parties' contributions into account, that contribution should regarded as 72.5/27.5. That is equivalent to about $1,892,000 (rounded) by the Wife. That means I assess the Husband as having contributed 72.5% of the pool and a bit less than $5,000,000 of the $6,880,550 pool. Hence, in the exercise of moving from where the property of the parties came from and what they have done over this relationship, I assess the Husband as contributing about 72.5% and about $4,988,000 (rounded) of this pool of $6,880,550. Taking those percentages as proportions I regard the Wife's overall contribution as being just over one third as large as the Husband's.

Step three: section 75(2) factors

1. I refer to and repeat the shopping list of section 75(2) factors or provisions recited earlier.
2. I refer to the observations of the Full Court on section 75(2) adjustments in Hobson v Hobson (2020) 61 Fam LR 557, [2020] FamCAFC 251 ('Hobson'). In that matter, the trial judge made an adjustment of 4% on account of section 75(2) factors. The Full Court found that adjustment to be inadequate and upheld the Wife's appeal and remitted the matter for another hearing. I am assisted by the general principles of Hobson but the underlying facts, both extent of income disparity and the size of the asset pool, are very different and not comparable and so that case does not provide guidance as to the particular percentage adjustment in this case.
3. The observations of the Full Court in the well known Clauson & Clauson [1995] FamCA 10; (1995) FLC 92-595 ('Clauson') have guided judges and practitioners since 1995. In Clauson the Full Court did not interfere with a contribution assessment of 75/25 in the husband's favour. But on a re-exercise of discretion, the Full Court made a section 75(2) adjustment of 25% and included the observation (at 81,911) about consideration of section 75(2) factors that:

...in any event it is the real impact in money terms which is ultimately the critical issue.

1. Also, in Rosati v Rosati [1998] FamCA 38; (1998) FLC 92-804 ('Rosati') the Full Court had reason to re-exercise the discretion in the division of the parties' assets in a $1,500,000 pool of assets back in 1998. It is significant how the Full Court addressed the disparity on account of section 75(2), way back in 1998, and it was addressed as follows at 85,046:

On our adjusted figure for the value of the parties net assets ($1,503,863), adjustment of 10% in the wife's favour results in an increase in her entitlement of $150,386, and a corresponding reduction in the husband's entitlement, producing a differential movement between them of $300,772 ...

1. Decisions where the Full Court finds error and re-exercises the discretion or decision are of particular assistance to Judges and practitioners where the facts are similar enough to be roughly and actually comparable. That principal was approved by the Full Court in Wallis & Manning [2017] FamCAFC 14; (2017) FLC 93-759.
2. In Wayne & Wayne [2010] FamCAFC 33 ('Wayne'), the Full Court dealt with an appeal where the total asset pool was $937,000 (in 2010 dollars), the parties had 4 children aged 18, 16, 10 and 8. Contribution was found to be 48/52 in the Wife's favour and that was not interfered with on appeal.
3. In Wayne, in those circumstances, the Learned Trial Judge made a section 75(2) or third step adjustment of 10%. The Full Court found the extent of that adjustment to be an error of law and decided the adjustment should be only 4% in the circumstances. The rationale of that decision can be discerned from the following paragraphs of the appeal decision:

[107] It is also important to recall what was said in Phipson & Phipson [2009] FamCAFC 28 when the Full Court was dealing with another appeal from the trial Judge in the present proceedings:

[39] It is always important to keep in mind that an adjustment of X% for s 75(2) factors leads to a disparity in the value of property received by the parties representing 2 x X%. It is that disparity, measured in "money terms", that requires consideration in determining whether the result is just and equitable: see Campbell v Kuskey [1998] FamCA 10; (1998) FLC 92-795 at 84,928.

[108] The 10% adjustment his Honour made on account of s 75(2) factors has led to a disparity in favour of the wife equivalent in value to 20% of the assets. In money terms this represents $187,733 out of a total asset pool of $938,665...

1. In Lovine & Connor another Full Court approved the observations in Wayne and demonstrated that the percentage, the actual dollar amount of the adjustment and the disparity the adjustment creates should be taken into account when considering a section 75(2) adjustment.
2. In Wallis & Manning [2017] FamCAFC 14; (2017) FLC 93-759 the Full Court, after a discussion of the section 75(2) factors applicable to that case, concluded:

[169] In our view, s 79(4)(e) requires those matters to be taken into account in arriving at orders that are just and equitable as between the parties. In arriving at an appropriate assessment for those factors, a dollar value of it should be uppermost in our minds [79] and, of course, the ultimate disparity in entitlements which it might produce. That dollar value is, in turn, dependent upon the value of the interests in property of the parties.

1. In Varnham & Moses (2021) FLC 94-007 the Full Court again approved the "real money" approach of Wayne, and of Phipson & Phipson [2009] FamCAFC 28 (cited in Wayne), and of Lovine & Connor.
2. Taking those authorities into account there can be no doubt that settled law requires, when considering all relevant section 75(2) factors that the "real money" as well as the "percentage" must be considered, as well as the disparity between the parties, that any adjustment creates.
3. The Wife seeks a that there be no adjustment on account of section 75(2) matters but from the position of an assessment of overall equality of contribution. The Husband seeks that there be a 5% adjustment on account of section 75(2) matters but from the position of an assessment of contribution as being 85/15, in his favour.

1. The following headings, for convenience, paraphrase clauses of section 75(2), but I take into account the whole of the relevant cause.

1. The Wife is 57 years old and says that she has suffered some mental health issues following the passing of her Father in 2023 and the stress regarding this litigation. She suffered what she calls a "breakdown" in 2018 and was diagnosed with anxiety and depression in 2020. She otherwise states she is in good physical health.
2. The Husband is 61 years old. He submits, and I accept, that he is in good health. The Husband is a farmer and business operator, and I infer that means he is likely to continue working on the Farm, if he is able to retain it, until he is physically unable to, or until he dies.

Income, property, financial resources and capacity for employment

1. At the end of the second step or contribution analysis, the Wife will have an assessment of her contribution as being 27.5% and about $1,892,000. The Husband will have an assessment of his contribution as being about 72.5% and about $4,988,000. That is a significant disparity of assets as at that stage. That is, the Husband will have almost $3,100,000 more than the Wife. That disparity, in a relationship of the length of this one and with the age and station in life of each of the parties, calls for an adjustment. However, that adjustment should be less than the 5% adjustment asserted by the Husband when he was contending for a contribution assessment of 85/15 in his favour.

1. Neither party has the obligation to support children under the age of 18 years.

Commitments of each of the parties to support themselves or a child

1. Both parties will have commitments of ensuring accommodation for themselves.

Responsibilities of either party to support any other person

1. Neither party has the responsibility to support any other person apart from themselves.

1. Neither party has an entitlement to any means tested pension or benefit.

1. In the circumstances of the Wife's contribution assessment as being in the order of $1,892,000, and the Husband having a contribution assessment of a little under $5,000,000 of assets, both parties will have a reasonable standard of living in the future.

Would maintenance assist education or training

1. Neither party seeks maintenance after receipt of property settlements of the orders that will be made.

1. Neither party submitted there would be any effect on creditors of the orders either party seeks.

Effect party contributed to the earning capacity and property of the other

1. Neither party submitted that this factor was material to this case.

1. There is no evidence of either party cohabitating with another person.

Any fact or circumstances required to take into account

1. In her Outline of Case document, the Wife pressed for a section 75(2) factor adjustment, in the event that the assessment of her contribution was regarded as less than 50%, of whatever was necessary to bring her share of the property pool up to 50%. I do not accept that as an appropriate basis for a section 75(2) factor adjustment, as it appears predicated upon an assumption or entitlement to 50%.

Conclusion as to section 75(2) adjustment

1. The principal matter pressed when a significant section 75(2) factor adjustment was sought by the Husband was the disparity of assets at the end of the section 79(4) (a),(b) & (c) analysis.
2. Because of the Wife's appearance in the witness box, the question arises as to whether there may be some fragility to her mental health. It is not disputed that the Wife suffered what she described as a "breakdown" in 2018 where she took some time away from the Farm. The part of the Wife's medical records annexed as MSM25 show that at the time after separation and before the Husband was excluded from the FMH, on 11 March 2020, and I infer a time of great stress, the Wife was diagnosed as suffering "anxiety and depression", was prescribed to continue medication and diagnosed as "needs to have counselling" and referred to a psychologist. However, no other medical evidence was before me and the Wife did not press for any adjustment on account of her health or her mental health.
3. The substance of the Wife's case asserts, and I accept, that the Wife is a capable, skilled and hard-working person who can competently turn her hand to a variety of roles and occupations.
4. In those circumstances I do not regard her as suffering poor mental health such as, without the stress of litigation and or the witness box, would impede her ability to support herself in employment and so I do not make any section 75(2) adjustment on account of poor mental health. However, her presentation in the Witness when combined with her past history of, at times, needing assistance with her mental health lead me to consider that, at times of stress, there is some degree of fragility to her mental health, and I take that into account and place some small weight on that when considering section 75(2)(a).
5. The Wife is a little younger than the Husband, but he is a farmer and will likely continue to work hard long after the usual retirement age whether profitable or not. Hence nothing turns on that aspect.
6. After a long relationship where the parties did not have children, but each cared for the children of the other, each of the parties will have themselves to support. Both parties need capital to house themselves.
7. I am satisfied that the section 75(2) adjustment should take into account the percentage and dollar amount of the adjustment and also the disparity between the parties the percentage and dollar adjustment makes.
8. A 5% section 75(2) adjustment may have been appropriate if contribution was assessed at 85/15. I am satisfied, taking into account relevant section 75(2) factors, principally the asset disparity after a relationship of this length, that an adjustment of 3% is appropriate. With a net pool of assets of $6,880,550 a 3% adjustment is equivalent to $206,416 and creates a disparity between the parties on account of section 75(2) factors of 6% and $412,833. That adjustment takes 3% from one party and provides that to the other.
9. After separation, the Wife's skills and hard work enabled her to earn an income of up to $60,000 (before tax) per annum[73] when she was working and, although not in itself the measure of a section 75(2) adjustment, the disparity is equivalent to about 6 ½ times that gross income and about 6% of the total pool of assets. The end result of the adjustment is that the Wife ends up with assets of about $2,098,568 (rounded).

1. As set out earlier, the Husband has now, or will retain, subject to default provisions, entities and assets, to the value of about $6,572,624 and the Wife has or will retain assets to the value of about $307,925 and the total asset pool, net of debt, is $6,880,550.
2. The Wife will end up with 30.5% of that pool of $6,880, 550. So, 30.5% of $6,880,550 is $2,098,568 and less the Wife's 'keep' of $307,925 to be retained by her, leaves a payment due to her of $1,790,643 (rounded).

1. Standing back and looking at the overall effect of a division of 30.5/69.5 of the net of debt all assets pool and a property settlement to the Wife of a total of $2,098,568, that includes assets she has received or will retain of $307,925, with a further payment of a total of $1,790,643 (rounded), is just and equitable.

1. So, I will order that the Husband should pay to the Wife the further sum of $1,790,643 by way of property settlement. But how long should she have to wait or how long should he have to organise the payment before default provisions with penalty interest kick in?
2. The Husband's counsel referred me to the matter of Guthrie & Guthrie [1995] FamCA 134; (1995) FLC 92-647 where the majority, Kay and Purvis JJ, building on the principals of the Full Court in Lee Steere & Lee Steere [1985] FamCA 57; (1985) FLC 91-626 observed at 82,554:

The law is not to the effect that whatever order it makes "it should not be made in such a way as will cause a farmer to lose his or her [82555] property'". In looking overall at the effect of orders that might be made by the Court, it is proper to look at the consequences of those orders, and one such consequence may well be the need to sell a farming property. It may be if this can be avoided that such a course would be preferable, thereby maintaining an income earning asset....

This approach is not unique to farms but applies to any business venture. However, if an entitlement is found in favour of a wife or a husband, and the only way in which that entitlement can be funded is by the sale of a farming property, then as with any other property, the farm will need to be sold. A farming property is not sacrosanct and is to be considered as is any other asset of parties in the resolution of a financial dispute between husband and wife.

1. Whatever the time until payment, I am satisfied the Wife should be able to continue to reside in the FMH if she chooses to, as she has since separation and without the Husband since 2020, until the property settlement or payment has been paid, but subject to the obligation to keep the property in good order as she has since separation and subject to the obligation to facilitate any reasonable bank or financier or prospective sale inspection. She occupies, and has occupied since 2020, to the exclusion of the Husband, almost 35% of the net pool of assets (the FMH Block at $2,100,000 and her 'keep' at $307,925), that is a larger proportion than she will receive by the orders I will make, that is 30.5%.
2. Save as to the "diversion of income" criticism, there is some substance to the criticisms of the skilled cross examiner. But this case is marked by an extreme disparity (in percentages and money) between the cases pressed by the parties and pressed while represented by experienced and competent family lawyers. The litigation has been on foot for years, but it was only in early 2024 that the process, that seemed like herding cats not sheep, of arriving at joint instructions to the range of single expert valuers necessary in the case, was achieved.
3. The parties were engaged in Intervention Order proceedings as well as the process of obtaining final property orders. The interlocutory proceedings were numerous, complex and I infer time consuming. The parties continued to live close by on the farm and I am satisfied that circumstance and the irritation each found in the others conduct of the interlocutory proceedings and the positions the other took as to the proportions of property division and the multitude of criticisms of the conduct of each other and of children in the proceedings must have seemed, and I infer was, overwhelming.
4. This controversy goes to the issue of how long the Husband should have to make whatever payment is determined as proper by the application the facts to the section 79 process. But while there is some substance in the criticisms there is also substance in the Husband's plea that he needed to know what he had to fund. The disclosure and single expert choice and instruction matters were such that on one of the occasions when it was necessary to vacate a long listed final hearing before me, I kept the first day of the final hearing listed to these parties, to deal with, what seemed like inevitable, further disputes that would impede trial readiness. From a lay person's view, the Husband's, his position in all the circumstances of this case, is not unreasonable and I am not satisfied it is or was unreasonable.
5. In terms of what the settlement or payment would be and the Husband's claim of uncertainty about that a number of things must be noted. It must be recalled that as at the filing of Outline of case stage the Wife overestimated the pool of assets by about $803,000 by double counting the value of plant and equipment, trading stock, sheep and a bank account before agreement was reached at the first day of trial. The sensible agreement about disregarding the negative allegations of each was reached at or just before the first day of trial. Until then, I infer, the parties' children were lined up to be cross-examined. In the Wife's Outline of Case the later agreed values of land was "subject to cross-examination of expert".
6. In all of the circumstances I am not satisfied that the Husband's conduct and failure to have already worked out how he can or cannot fund the payment that is determined in the bitterly contested proceedings means that section 79(4)(d) and the principle of Guthrie should have little or no weight. Apart from his children, the Farm is the Husband's life's work and work of many years, from long before the start of this relationship and for some time after it ended. His life's work is leveraged from the generosity and work of his parents and mother Ms O in particular. Those circumstances inform my conclusion that the very common order of "60 days" or "90 days" to make the property settlement would not be just and equitable in this case.

Six months to pay before default provisions operate

1. In all those circumstances I am satisfied the Husband should have six months from the date of these orders and reasons to work out how to fund the payment, not 12 months as he seeks and not two months as the Wife seeks. I take into account the inconvenience to the Wife of being held out of her property settlement for about 4 months longer than she seeks.

1. As can be seen from the discussion with the Wife's counsel recited under the heading 'The Wife's case in Outline of Case,' the Wife's position in final address as to default provisions was a further significant change in her case. Her Amended Response, as can be seen from the parts recited above, at least arguably, contemplated the burden of selling expenses and taxation due to sale of assets would be borne by both parties. That position survived the change in the Outline of Case days before the trial. The final address position, recited above, recanted that usual or orthodox position of the costs of sale and any taxation being borne by the parties and had only the Husband bear those expenses. Hence on the Wife's case the need for default provisions did not arise.
2. The Husband seeks default provisions that merely contemplate the Wife not giving effect to any of the necessary resignations of corporate position and not what will have to be done if he doesn't or can't raise the funds necessary for the Wife's property settlement. The agreed valuation of the farmland covers the three separate titles or blocks of the farm, including the block with improvements on it. The blocks were not separately valued. I discussed with counsel the advantage of the parties experienced and competent lawyers attempting to work out the potential complexities of necessary default provisions when the dimension of the payment had been determined. Counsel agreed or acquiesced in that concept if default provisions were necessary.
3. One option, sometimes seen in consent orders, is merely liberty to apply in the event of default of payment. Neither party here presses that.
4. In this case, subject to further persuasion or agreement, I regard the fixing of default provisions as a necessary part of the quelling of the controversy between the parties as to a just and equitable property settlement.
5. The authorities referred to by senior counsel for the Husband in final address were extracted and provided to the court in exhibit 'H8' in submissions received on 1 August 2024. Relevant to the default orders controversy are senior counsel's reference to Trask & Westlake (2015) FLC 93-662; [2015] FamCAFC 160 ('Trask & Westlake') and submissions as follows:
   • At [33]-[48] the Full Court explains the appellable error which arises if default sale orders are framed by reference to fixed dollar amouts - the orders will not reflect the judgment.
   • At [4.2.2] and [4.2.3] of her report [Ms S] points out the impost of taxation in the event of the sales proposed by the wife (and, in the event of default, by the husband). Consistent with the principles expressed in Rosati and Rosati [1998] FamCA 38, in circumstances where the husband seeks to retain the properties these liabilities aren't sought to be taken into account, but in the event of a default sale, they must be captured by the framing of the relevant orders to avoid those orders failing to achieve the division of property determined by the court to be just and equitable.
6. I accept those submissions.
7. Further, I am satisfied that it is the interests of justice and necessary to ensure only just and equitable orders are made, in this case, that after I have determined the payment, that the parties should then have the opportunity to work out, or make submissions about, the default provisions.
8. In this case, on the Wife's 50/50 case, a sale of all or much of the land will be necessary. On the Husband's 80/20 case some land may not need to be sold at all. My decision is in between those two positions. It is realistic to contemplate that sale of some or all of the Farm and/or the FMH Block will be necessary to accommodate the payment I have determined. Where it is certain or likely that a sale or sales of assets will occur in the ordinary course of business or as a consequence of orders, the cost of sale, the taxes that will arise and the rise or fall of the asset sold compared to the agreed or determined valuation would ordinarily be taken into account rather than left for one party only to bear or have the advantage of. See for example Trask & Westlake.
9. In this case, if the Husband defaults on making the payment and a sale or sales is necessary, I do not accept that the usual taking account of sale costs, inevitable taxation or the usual rise and/or fall of price actually achieved on sale should be left to one party. Hence, unless agreed to the contrary, I am not satisfied that those matters should not be taken account of on a default sale.
10. I acknowledge that the Husband, the most likely party to be disadvantaged by such matters being disregarded, has not put forward evidence of likely tax consequence that he likely will seek to take account of in default provisions. He could have. On his case, a sale may not be necessary or happen. On the Wife's 50/50 case a sale of all or much of the assets was at least likely, if not certain. The Wife, while pressing that case, did not put forward evidence of the likely tax consequences of a sale or sales. She could have.
11. In those circumstances the obligation to put forward evidence, and if disputed by single expert, of likely tax consequences fell on both parties. Hence in this case the failure to provide evidence of likely tax consequence of a sale is a deficiency of neutral consequence at this stage of consideration of just and equitable orders.
12. I do not accept the "head in the sand" argument as justifying a departure from the usual course. There are aspects of "head in the sand" that can be attributed to both parties. The Husband's planning for the inevitable property settlement appears sketchy. The Wife's case, at first brush a not realistic 50/50 case, was actually a more than 50% to her because she sought 50/50 of the non-superannuation assets only, and she has 1 ½ times the Husband's superannuation.

Different orders within the parameters of the dispute

1. I am satisfied that it is just and equitable that the form of the orders be largely, but not entirely, as sought by the Husband. I am satisfied that it is just and equitable in all of the circumstances and within the parameters of the parties' dispute to make orders that are different to the orders that either party seeks. I am not satisfied that it is just and equitable to order the immediate sale of all or part of the FMH Block and/or the Farm. I am satisfied that it is just and equitable and appropriate that the Wife should, as soon as practical, resign all of the formal positions she holds in the companies. I am satisfied that should be no later than 28 days from this day. That will assist the Husband in a small way attempt to raise finance and plan for the future.
2. However, I am not satisfied that it is appropriate to order the Wife to remove the caveats she has lodged over the FMH Block and/or the Farm. I am satisfied that until the total payment has been made, in this highly contentious and bitter property proceeding, it is not unreasonable that the Wife maintains those caveats. However, that finding is on the basis that the Wife would cooperate with any necessary withdrawal and re-lodging of caveats as would assist the Husband operate the Farm and organise the total payment. Hence, there should be liberty to apply in regard to any difficulty as to the maintenance of the caveats to give effect to these orders.

1. Senior counsel for the Husband raised the provisions of section 114AB of the Act in regard to the circumstance of the ordinary provision of a section 79 order having a property settlement or payment being made contemporaneously with the transfer of an interest in property or the vacating of a property. Section 114AB of the Act provides as follows:

Section 114AB Operation of State and Territory laws

(1) Sections 68B, 68C, 114 and 114AA are not intended to exclude or limit the operation of a prescribed law of a State or Territory that is capable of operating concurrently with those sections.

(2) Where a person has instituted a proceeding or taken any other action under a prescribed law of a State or Territory in respect of a matter in respect of which the person would, but for this subsection, have been entitled to institute a proceeding under section 68B or 114, the person is not entitled to institute a proceeding under section 68B or 114 in respect of that matter, unless:

(a) where the person instituted a proceeding:

(i) the proceeding has lapsed, been discontinued, or been dismissed; or

(ii) the orders (if any) made as a result of the institution of the proceeding have been set aside or are no longer in force; and

(b) where the person took other action--neither that person nor any other person is required, at the time that the person institutes a proceeding under section 68B or 114, to do an act, or to refrain from doing an act.

1. Although sometimes described as the first in best dressed rule, the legal and practical effect of this provision is that where a proceeding has been instituted in the State Court for a matter that could entitle a person to an injunction under section 68B or section 114, then the section prohibits another application under the Act dealing with that matter. This not infrequently arises where an intervention order for the personal protection of a party or child or property has been made under State legislation and then, in reliance on section 68B or 114 of the Family Law Act, similar relief is sought. Such an application is prohibited by the section. But if the section 68B or 114 injunction or order is made first, a party is not prohibited, at least by legislation, from seeking similar relief by State legislation relating to family violence or intervention orders.
2. The purpose of these orders requires the Husband to make a payment of $100,000 roughly a month prior to the second payment, to facilitate the Wife being able to organise moving out of the FMH Block. But she is not required to remain there, and she may choose to move out earlier than the date of the final payment. However, the obligation upon the Husband to make the final payment arises contemporaneously with the later of the Wife vacating the FMH Block and/or 17 December 2025.
3. In this case and the acrimonious proceedings, intervention order applications, and generally troublesome litigation, I am satisfied that the usual commonsense provision of a party sensibly moving out or transferring an interest in a property to obtain the property settlement he or she seeks may not lead to the property settlement payment being organised and paid in trouble-free circumstances and the Wife having vacated the property in trouble-free circumstances. In this case, I am satisfied that there should be a legal obligation on the Wife to vacate the FMH Block on or before 17 December 2025, provided the property settlement payment has been made.
4. That obligation in these orders arises from sections 79 and 80, including sections 80(1)(i) (impose terms and conditions) and 80(1)(k) (make any other order... necessary to do justice). Hence that obligation does not engage section 114 or section 68B and is not prohibited by section 114AB.
5. These observations should not be regarded as determining that either the Husband or the Wife will make unnecessary trouble in regard to these orders but rather, reflect the capacity of the parties together, to experience much trouble and strife.

1. The Wife sought interim orders compelling the Husband to ensure the Wife could have a litigation funder immediately pay her lawyers and secure that loan over the farm assets. The Husband opposes that application. The interim application was brought at the last minute while the parties were, or should have been, preparing for trial.
2. I am not satisfied that I should make those further orders interim sought by the Wife. Although not the test, I do not consider it necessary to do so. I also do not consider it just and equitable in the circumstances to do so. I also take into account the generosity of the Wife's solicitors to her throughout these proceedings and acknowledge their acting on her behalf and incurring costs which remain unpaid. However, I also acknowledge the relative security of their position, and I am not persuaded to make those orders.
3. Further, I would not have been able to both determine the further interim application and give reasons before this judgment.

I certify that the preceding two hundred and eighty-eight (288) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

• Outline of case filed 25 July 2024;
• Amended Initiating application filed 17 January 2024;
• Affidavit of the Husband filed 17 January 2024 ('the Husband's trial affidavit');
• Financial statement filed 17 January 2024;
• Affidavit of the Husband filed 26 June 2024 ('the Husband's reply affidavit');
• Affidavit of Mr U (the Husband's son) filed 26 June 2024;
• Affidavit of Ms T (the Husband's daughter) filed 26 June 2024;
• Affidavit of Ms V (the Husband's first wife) filed 26 June 2024;
• Affidavit of Ms S (business valuer) filed 2 May 2024; and
• Affidavit of Mr K (agricultural land valuer) filed 2 May 2024;

• Outline of case filed 25 July 2024;
• Amended Response to initiating application filed 29 January 2024;
• Affidavit of the Wife filed 29 January 2024 ('the Wife's trial affidavit');
• Affidavit of the Wife filed 22 July 2024 ('the Wife's reply affidavit');
• Financial statement filed 22 July 2024;
• Affidavit of Ms W (the Wife's daughter) filed 19 July 2024;
• Affidavit of Ms EE (the Wife's sister) filed 19 July 2024;
• Affidavit of Mr FF (a former employee of the Businesses) filed 19 July 2024;
• Affidavit of Ms S (business valuer) filed 2 May 2024; and
• Affidavit of Mr K (agricultural land valuer) filed 2 May 2024.

Exhibits are identified by the witness through whom the exhibit was tendered or, if tendered in submission, by the party tendering the document. All annexures to affidavits relied upon were tendered in evidence and are identified by the annexure description each contains. Other exhibits tendered are listed in the below chart:

Property advertised sales information including map

Table of names applied for the purpose of these reasons and the names of entities

Authorities or precedents relied upon by counsel for the Wife during submissions included the following:

• Figgins & Figgins (2022) FLC 93-122; [2022] FamCA 688, at [205] of Ellis J
• Pittman v Pittman (2010) FLC 93-430. [2010] FamCAFC 30
• Lee Steere & Le Steere [1985] FamCA 57, (1985) FLC 91-626
• Leeming & Estrada [2023] FedCFamC2F 729 at [234]
• In the Marriage of Bonnici [1991] FamCA 86; (1991) 15 Fam LR 138
• Calvin & McTier [2017] FamCAFC 125
• Hill & Hill (2005) FLC 93-209; [2005] FamCA 42 at [65]
• Dickons v Dickons [2012] FamCAFC 154 at [21]
• Jabour & Jabour [2019] FamCAFC 78 at [55], [99] & [133], [71],[73], [86]
• Genesalio & Genesalio [2020] FamCAFC 113

[1] The Wife asserts a marriage-like relationship of 17 years, and the Husband asserts that relationship was 14 years.

[2] The Wife asserts separation under one roof on 28 September 2018 and the Husband asserts that happened on 29 October 2018 and nothing turns on that dispute.

[3] And the land and dwelling of the FMH is referred to herein as the 'FMH Block'.

[4] Ms O had lived in the big house (that became the FMH) for many years until in early 2005 moving to live in the much more modest dwelling on the Farm ('the Cottage') after it had been renovated. When Ms O moved to the cottage it meant the FMH was available to the Husband and the Wife and their children.

[5] Ms O had lived in the big house (that became the FMH) for many years until in early 2005 moving to live in the much more modest dwelling on the Farm ('the cottage') after it has been renovated. When Ms O moved to the cottage it meant the FMH was available to the Husband and the Wife and their children.

[6] The Wife seeks the sale of all of the Farm and the FMH.

[7] See Kowalski & Kowalski [1992] FamCA 54; (1993) FLC 92-342 as authority for a statement of the settled law that all contributions by a party, before and during and after a marriage relationship are regarded as referable to the marriage and to be taken into account pursuant to section 79(4).

[8] The names of the companies, trust and partnerships as referred to in these reasons referenced to the actual names are as set out in Appendix 3 to these reasons.

[9] See the uncontroversial assertion in the Wife's trial affidavit at [18.7].

[10] As uncontroversially advised by senior counsel for the Husband at Transcript p 21 line 10 and the historical search of that company at MSM-6, page 101 of 235.

[11] The "Settlement Agreement" dated 4 February 2013, and in evidence as MSM-14 to the Wife's reply affidavit, that resolved the Supreme Court of Victoria proceedings brought against J Pty Ltd as trustee of the Farm Unit Trust and others, recites that the Farm Unit Trust was established on 13 May 1985. This was not controversial.

[12] The Wife alleges, at [18.7] of her trial affidavit that at the start of the relationship as she saw it, in 2002, Ms O had 2 units. The Wife did not describe Ms R as holding any, and this was not disputed. The balance sheet of the Farm Unit Trust for FYE 2022 describes one unit each being held by Ms O, and each of the Husband, Mr P, Ms R and Ms Q. However, nothing turned on just when Ms O obtained Ms Q's unit. She never claimed or received any benefit at any time material to this case.

[13] Annexure MSM-13 to the Wife's affidavit.

[14] Annexure MSM-07 to the Wife's affidavit.

[15] And the Wife's Outline of Case uncontroversially asserted September 2010.

[16] The Wife's Outline of Case uncontroversially asserts the proceedings were to "remove and replace" the Trustee of the Farm Unit Trust.

[17] The deed to care for Ms O and Mr P dated November 2009 and in evidence as MSM-07 to the Wife's reply affidavit describes Ms O as transferring her "units", not unit, to the Husband. And the 2010 Supreme Court proceedings, MSM-13, did not include Ms R as a Defendant, only the trustee J Pty Ltd, the Husband, Mr P and Ms O.

[18] The Order of late 2011 being in evidence as MSM-13 to the Wife's affidavit.

[19] The agreement between J Pty Ltd, the Husband, Ms O and Mr P is regarded by the parties in these proceedings as being executed in November 2009 and uncontroversially the Wife alleges at [56] of her trial affidavit that Ms O and Mr P formally transferred the units they held soon after in January 2010.

[20] See [33] of the Wife's trial affidavit.

[21] They each held one "ordinary" share, the Husband held an "A class" share and the Wife held a "B class" share but in these proceedings the parties did not differentiate between the A class and B class shares and treated the parties as each having a 50% shareholding.

[22] See Appendix 1 & 2 and [4.3] of Ms S's report.

[23] MSM-7 beginning at page 74 of the Wife's reply affidavit.

[25] Counsel for the Wife sensibly urged the putting aside of de minimus items and pithily agreed to an approach of, "concentrate on the steak, not the peas".

[26] Where these reasons use the term "contribution" that means contribution within section 79(4)(a), (b) & (c).

[27] See MSM-3 of the Wife's reply affidavit at p 51 of 235.

[28] The deed of transfer and settlement dated 11 May 2004 included the recital "D The transfer is solely as a result of the appointment of the Trustee as the Trustee of the Asset for the sole benefit of the beneficiary (the Husband)" and the operative provision, "4. The trustee must exercise all rights attaching to the asset in such manner as the Beneficiary (the Husband) shall direct and not otherwise."

[29] The November 2009 "Look after Ms O" agreement discussed above.

[30] The Wife's Outline of Case puts it at early January 2010, but nothing turns on that.

[31] See annexure MSM-3 and the recital 'A' to the order of the Supreme Court of Victoria made in late 2011.

[32] Affidavit of Ms V filed 26 June 2024 [7].

[33] Affidavit of Ms T filed 26 June 2024 [11], [14], [15].

[34] Affidavit of Mr U filed 26 June 2024.

[36] See order 10 sought in the Amended Response filed 29 January 2024 and note the sale sought is of "part" of the Farm and although the land of three titles are pressed to be sold, one block is contained in two titles.

[37] Wife's outline of case filed 25 July 2024 p 16.

[39] See annexure MSM-10 to the Wife's trial affidavit.

[40] Wife's outline of case at [5] of page 14.

[45] Wife's outline of case at [5] of page 15.

[47] Affidavit of Ms W filed 19 July 2024 [36], [40].

[48] Affidavit of Ms EE filed 19 July 2024 [9], [14].

[49] Affidavit of Mr FF filed 19 July 2024.

[50] The agreement of counsel not to rely on the many negative observations and opinions of the parties and their witness meant that much of the parties' evidence was not material.

[51] At [29], and asserted the cost was $150,000 at [74] of her reply affidavit.

[52] As was submitted by the Husband's senior counsel in final address.

[53] At page 59 of her trial affidavit.

[54] Page 73 of H5, being tax invoice for demolition and brick cleaning at caretakers house.

[55] See annexure MSM-20, page 183 of the Wife's trial affidavit.

[58] Reports of Mr K of L Company dated 17 December 2023, noting that Mr K corrected the value of the business stock in correspondence of 28 January 2024 by a reduction of $17,250 and Ms S of GG Company dated 19 December 2023 adjusted for the correcting in business stock value.

[59] Ownership of this item was described as "joint" in an attempt to deal with payment by the Husband from funds that would otherwise have been regarded as a part property settlement to him but, in accordance with the presumptive starting position of the rules, it is more convenient in these reasons to attribute the benefit equally to the Husband and Wife.

[61] In Mallet the parties had been married for 29 years and had three children together and the "no starting point" was agreed upon in the five separate judgments.

[62] At page 62 of 269 of the Wife's trial affidavit.

[63] See, for example, Bonnici & Bonnici [1991] FamCA 86; (1992) FLC 92-272; Bishop & Bishop [2013] FamCAFC 138; (2013) FLC 93-553.

[64] Note that the Wife asserts that is, for section 79(4) purposes, in 2002, and I regard the start of the contributions of the parties as at 5 May 2004.

[65] This assertion is taken from the FYE 2002 financial statements of the Farm Unit Trust in annexure MSM-3 to the Wife's reply affidavit, and those statements are discussed later.

[67] The accommodation business was conducted by the letting of the big old house situated on the land of the Farm Unit Trust from about 2013 after Mr P moved out. Until then Mr P lived in that dwelling.

[69] Gosper & Gosper [1987] FamCA 43; (1987) FLC 91-818.

[71] The passage relating to keeping an asset separate that follows this passage may not correctly state the law as it was developed on this point in later authorities and that observation can be confined to the particular facts of that case, but nothing turns on that in this case.

[72] [1997] FamCA 52; (1997) FLC 92-789.

[74] Should not be included in any anonymised version of these reasons.