Moser & Zajac [2025] FedCFamC1F 619 (5 September 2025)

Blandford & Esmore [2022] FedCFamC1A 67

Harris & Dewell and Anor [2018] FamCAFC 94

Harris and Harris [1991] FamCA 124; (1991) FLC 92-254

Horrigan & Horrigan [2020] FamCAFC 25

JEL v DDF [2000] FamCA 1353; (2001) FLC 93-075

Kowalski and Kowalski [1992] FamCA 54; (1993) FLC 92-342

Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605

Norman & Norman [2010] FamCAFC 66

Stanford v Stanford [2012] FamCAFC 1; (2012) 247 CLR 108

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

1. Within 90 days of these Orders (the date), the wife pay to the husband the sum of $2,264,760.40 ("the Payment").
2. Contemporaneously with the Payment, the wife do all acts and things and sign all documents as may be required to refinance into her name solely and otherwise have discharged the loan secured by way of mortgage against the title of the property situate at and known as H Street, Suburb J more particularly described in Certificate of Title as [...] ("[H Street]") in favour of Westpac Banking Corporation (the mortgage).
3. If the wife fails to make the Payment to the husband in full or fails to comply with Order 2 hereof, and unless otherwise agreed between the parties in writing:

(a) Interest shall become due and payable on the unpaid amount, from the date the Payment is due pursuant to these Orders until the Payment is made in full, at the rate prescribed from time to time pursuant to Rule 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021; and

(b) Within 14 days of the wife's default, the parties each sign all documents and do all acts and things to place H Street on the market for sale ("default sale").

1. For the purposes of the default sale, the terms and conditions be as agreed between the husband and wife in writing and in the absence of agreement:

(a) The husband and wife have joint conduct of the default sale including but not limited to the acceptance or otherwise of offers;

(b) An agreed selling agent be appointed within 14 days of the default and in the absence of agreement the husband propose three agents within 7 days from which the wife will nominate one within a further 7 days;

(c) An agreed conveyancer be appointed within 14 days of default and in the absence of agreement the wife propose 3 conveyancers within 7 days from which the husband will nominate one within a further 7 days;

(d) The jointly instructed selling agent and conveyancer be permitted to receive a copy of these orders;

(e) There be a 60- or 90-day settlement as agreed and failing agreement a 60-day settlement; and

(f) The reserve price and mode of sale be as agreed between the husband and wife and in the absence of agreement between them as recommended by the appointed selling agent.

1. The proceeds of the default sale be distributed at settlement of the sale as follows:

(a) First, to pay the costs, commissions and expense of the default sale;

(b) Second, to discharge the mortgage;

(c) Third, to pay any capital gains tax as assessed;

(d) Fourth, so much of the payments as is then outstanding to the husband together with interest calculated in accordance with Rule 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 adjusted monthly from the date of the default to the husband; and

(e) Fifth, the balance then remaining, if any, to the wife.

1. If the net proceeds from the default sale are insufficient to rectify the wife's default of the Payment, the wife and the second respondent forthwith do all act and things necessary to cause the sale ("further default sale") of the property situate at and known as K Street, Suburb L ("[K Street]").
2. For the purposes of the further default sale of K Street, the terms and conditions be as agreed between the wife and the second respondent and there is liberty to apply in respect of this order.
3. The proceeds of the further default sale of K Street be distributed at settlement of the sale as follows:

(a) First, to pay the costs, commissions and expense of the default sale;

(b) Second, to discharge any encumbrance over the property;

(c) Third, so much of the Payment as is then outstanding to the husband, together with interest calculated in accordance with Rule 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rule 2021 adjusted monthly from the date of the default, to be distributed or paid by the second respondent to the wife and contemporaneously with that distribution or payment the wife pay the husband such sum; and

(d) Fourth, the balance then remaining to the second respondent.

1. Pending the Payment or completion of the default sale or completion of the further default sale:

(a) The wife be restrained by injunction from making or issuing any instrument or declaration that would relinquish herself as sole Guardian of the C Family Trust;

(b) The wife and the second respondent be restrained by injunction from causing or taking any step which might cause the second respondent to be removed as sole trustee of the C Family Trust;

(c) The wife have sole use and occupation of H Street, including any rental income received;

(d) The wife shall meet all instalments of the mortgage, rates, taxes and like apportionable outgoings of H Street as they fall due;

(e) The husband and wife hold their respective interests in H Street upon trust pursuant to these orders.

(f) The second respondent have sole use and occupation of K Street, including any rental income received; and

(g) The second respondent shall meet all payments of rates, taxes and like apportionable outgoings of K Street as they fall due.

1. The wife and second respondent indemnify the husband and pay and keep him indemnified in relation to any capital gains tax arising from any sale of K Street.
2. The wife and second respondent indemnify the husband and pay and keep him indemnified in relation to all costs, debts, liabilities, taxes or outgoings of whatsoever kind arising from the further default sale of K Street including but not limited to any distribution or payment necessary to make funds available to him from the sale proceeds of the further default sale.
3. Notwithstanding any other orders to the contrary in these orders the wife is at liberty to sell, if necessary to meet the Payment, K Street, at a time of her choosing including prior to the default sale as described in Order 3(b) hereof.
4. The husband otherwise retain to the exclusion of the wife, all his right, title and interest in the following:

(a) The real property situate at M Street, Suburb N and its associated mortgage;

(b) Motor Vehicle 1;

(c) Motor Vehicle 2;

(d) Motor Vehicle 3;

(e) His superannuation entitlements with Superannuation Fund 1;

(f) The proceeds of his bank accounts; and

(g) The furniture, household contents and personal property in his possession.

1. The wife otherwise retain to the exclusion of the husband, her right, title and interest in the following:

(a) The real property situate at H1 Street, Suburb J;

(b) The real property situate at H Street, Suburb J and its associated mortgage if such property has not been the subject of a default sale in accordance with the terms of Orders 3, 4 and 5 hereof;

(c) Motor Vehicle 5;

(d) Her superannuation entitlement with Superannuation Fund 2;

(e) The proceeds of her bank accounts.

(f) The furniture, household contents and personal property in her possession;

(g) Her interest in:

(i) B Pty Ltd; and

(ii) The C Family Trust, comprising:

1. The real property situate at O1 Street, Suburb P;

2. The property situate at O2 Street, Suburb P;

   1. The property situate at Q1 Street, Suburb R;

   2. The property situate at S1 and S2 Street, Suburb T; and

   3. The property situate at K Street, Suburb L.

1. Within 60 days of these orders, the parties do all acts and things necessary to split the husband's and the wife's member entitlements in Superannuation Fund 3 so as to achieve an equalisation of their overall respective superannuation entitlements, having regard also to the quantum of the husband's superannuation entitlements with Superannuation Fund 1, and the quantum of the wife's superannuation entitlements with Superannuation Fund 2.
2. Within 60 days of these orders, the husband and wife in their personal capacity and in their capacity as directors and shareholders of V Pty Ltd as trustee for Superannuation Fund 3 (the Fund), do all acts and things and sign all documents necessary to implement a superannuation split pursuant to Order 15 hereof.
3. The husband and wife jointly submit a minute of proposed machinery orders in respect of the splitting of the husband and wife's member entitlements in Superannuation Fund 3 consequent upon the making of Orders 15 and 16 hereof, within 14 days hereof.
4. The husband, wife and the second respondent do all acts and sign all documents as required to give effect to these orders.
5. Unless otherwise specified in these orders and save the purposes of enforcing any monies due under these orders:

(a) Each party be solely entitled to the exclusion of the other to all other property (including choses in action) in the possession of that party as at the date of these orders.

(b) Each party hereby foregoes any claims they may have to any long service leave, redundancy, retirement or retrenchment and like benefits belonging to or earned by the other.

(c) Insurance policies remain the sole property of the named owner.

(d) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

(e) Any joint tenancy of the parties in any real or personal property is hereby expressly severed.

1. Otherwise all extant applications are dismissed save for the questions of costs any party wishes to advocate upon application to chambers within 14 days hereof for a listing date and the making of superannuation splitting orders as envisaged by Order 17 hereof.

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

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

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

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

1. This proceeding commenced in the Federal Circuit and Family Court of Australia (Division 2) on 6 February 2024 upon the Applicant Husband ("the husband") filing an Initiating Application for Final Orders in which he sought property orders.
2. The husband filed an Amended Initiating Application for Final Orders on 27 March 2024, seeking that B Pty Ltd, as trustee for the C Family Trust, be joined to the proceeding as a second respondent, and thereafter the husband sought property orders as against the company. Orders were made on 10 April 2024 effecting that joinder.
3. The wife filed an Amended Response to Final Orders on 1 November 2024. She too sought property orders.
4. The second respondent filed an Amended Response to Final Orders on 24 January 2025. The second respondent sought the proceeding against it be dismissed.
5. The matter was transferred to the Federal Circuit and Family Court of Australia (Division 1) on 6 November 2024 pursuant to orders made by Judge Bender.

1. The husband sought final property orders, essentially, that: the wife pay to the husband a lump sum of $3,819,013 and contemporaneously with the lump sum payment, the wife procure a discharge of the mortgage secured over the property situate at and known as H Street, Suburb J. Further, that the wife retain to the exclusion of the husband: her right, title and interest in the company B Pty Ltd and the C Family Trust; the real property situate at H1 Street, Suburb J ("[H1 Street]"); her Motor Vehicle 5; any cash in bank accounts in her sole name; and furniture and household contents in her possession. The husband also sought that he retain those assets in his possession and ownership. The effect of the orders as sought by the husband would result in a division to him of approximately $5 million being a claimed 47.5 per cent of the asset pool to include the assets of the Family Trust.
2. In default of the wife making the lump sum payment and procuring a discharge of the mortgage secured over H Street, Suburb J, the husband sought orders that H Street be sold with the proceeds of sale going: first, to payment of all outgoings in relation to the sale; secondly, to discharge the mortgage secured against H Street; thirdly, to payment of any amount outstanding to the husband; and fourthly any residue to the wife. In the event that the default sale resulted in insufficient funds to make the lump sum payment due to the husband, the husband also sought that the real property situate at K Street, Suburb L be sold, and further, that the real property situate at S2 Street, Suburb T be sold if the sale of K Street did not raise sufficient proceeds to make the lump sum payment to the husband, with the residue of proceeds going to the second respondent.
3. The husband sought that the self-managed superannuation fund entitlements of the wife and he be shared equally, and that otherwise each of them retain their own superannuation entitlements.
4. The husband sought that the wife pay his costs of and incidental to the proceeding.
5. The wife sought final property orders, essentially, that: she pay to the husband a sum of $200,000; the husband retain ownership of the real property situate at M Street Suburb N subject to its encumbering mortgage; and the husband otherwise retain ownership of each of Motor Vehicle 2 and Motor Vehicle 1; the 2020 caravan; and his superannuation entitlements with Superannuation Fund 1, albeit she sought that the totality of the parties' superannuation entitlements be divided equally between the husband and wife.
6. The wife sought that she retain her ownership of: H1 Street Suburb J and H Street Suburb J (subject to their respective encumbering mortgages); Motor Vehicle 5; and her superannuation entitlements with Superannuation Fund 2.
7. The wife sought not to include the assets of the Family Trust as property of the wife in the net assets available for distribution between the husband and wife and for there to be an adjustment to her of approximately 55 per cent of the net asset pool.
8. The wife sought that the husband pay the wife's costs of and incidental to the proceeding.
9. The second respondent sought that the husband's Application for orders against B Pty Ltd, as trustee for the C Family Trust be dismissed, and that the husband pay the costs of the company of and incidental to the proceeding.

(1) Financial Statement filed 30 December 2024;

(2) Further Further Amended Application for Final Orders filed 30 December 2024;

(3) his affidavits filed 24 December 2024, 30 December 2024

(4) his affidavit in reply filed 12 February 2025;

(5) Outline of Case filed 15 February 2025; and

(6) Balance Sheet tendered on 20 February 2025.

(1) Amended Response to Initiating Application filed 1 November 2024;

(2) her affidavit filed 12 January 2025;

(3) Financial Statement filed 12 January 2025;

(4) Outline of Case filed 17 February 2025; and

(5) Balance Sheet tendered on 20 February 2025.

(1) the affidavit of Mr E filed 24 January 2025;

(2) the affidavit of Mr D filed 24 January 2025;

(3) Amended Response to Final Orders filed 24 January 2025;

(4) Financial Statement filed 24 January 2025; and

(5) Outline of Case filed 14 February 2025.

1. In 1936, the maternal grandfather was born in Country W. He was a construction worker. His name is Mr E. In 1938, the maternal grandmother was born in Country W. Her name was Mrs F. At the time of trial, Mrs F was deceased, and Mr E was aged 88 years.
2. In 1967, the wife's only sibling, Mr D, was born in Country W.
3. In 1969, the wife's parents and their son arrived in Australia, from Country W. Shortly thereafter, and in 1970, they purchased the real property situate at and known as K Street, Suburb L ("the [K Street] property"). The wife's parents and their son (and the wife upon her birth) lived in the property as their family home until 1976.
4. In 1970, the husband was born in Australia. He was 55 years of age at the commencement of trial. The husband, for some of the duration of the parties' relationship, worked in a self-employed capacity running his own business known as '[Company Z]'. He was, otherwise, prior thereto and from 2015, employed full-time as a tradesman. He is currently in receipt of income of approximately $135,000 per annum gross.
5. In 1972, the wife was born in Australia. She was 52 years of age at the commencement of trial. She is employed part-time (working approximately 25 to 30 hours per week) as a healthcare worker and is in receipt of income of approximately $40,000 per annum gross.
6. In 1976, the wife, her brother and her parents, moved from the K Street property to AA Street, Suburb T. This latter property was land upon which the wife's father built the family home. The K Street Property was then tenanted by the wife's parents. The K Street property, at trial, had been tenanted for approximately 40 years. The rental receipts are received by B Pty Ltd ("the trustee company") and are applied in such manner as determined by the wife.
7. In 1994, the Family Trust known as the C Family Trust ("the Family Trust") was established by way of Deed of Settlement. Mr E and Mrs F, the wife's parents, were appointed as directors of the trustee company C Pty Ltd (now known as B Pty Ltd) and they were joint guardians of the Family Trust. They and their two children, the wife and her elder brother Mr D, were the primary beneficiaries of the Family Trust. The secondary beneficiaries were the spouse of the wife and her brother, and the children of the wife and her brother. The intention of the maternal grandparents, in establishing the Family Trust, was to make provision for their son and daughter and, as secondary beneficiaries, their spouses and children.
8. In about 1994, the wife's parents purchased the real property situate at and known as Q Street, Suburb R. The wife's father subdivided the land and built two units on the land. The wife's parents sold Q2 Street, Suburb R in about 1994 or 1995. They kept the ownership of Q1 Street, Suburb R ("the [Suburb R] property") for the family to use as a beach house, untenanted.
9. In about 1995, the wife's father renovated the K Street property.
10. In mid-1996, Mr E and Mrs F, the wife's parents, resigned as directors of the trustee company. The wife was appointed as the sole director and secretary of the company. She became the sole shareholder, holding the shares beneficially on behalf of the Family Trust.
11. In mid-1996, or at a time probably within the next twelve months, and pursuant to a Deed or Deeds of Variation, unable to be located or not produced in the proceeding by the respondents or either of them, the maternal grandparents ceased to be joint guardians of the Family Trust, and the wife became the sole guardian of the Family Trust.
12. In early 1997, the husband and the wife commenced their relationship.
13. On or about 4 February 1997, the unencumbered ownership of the Suburb R property was transferred from the wife's parents to the trustee company as trustee for the Family Trust. The property has never been tenanted and is used by all of the family members.
14. In mid-1997, the unencumbered ownership of the K Street property was transferred from the wife's parents to the trustee company as trustee for the Family Trust.
15. In late 1997, the trustee company had a change of name from C Pty Ltd to B Pty Ltd.
16. In mid-1998, the real property situate at and known as O3 Street, Suburb P ("the [O Street] property") was purchased by the trustee company as trustee for the Family Trust for a purchase price of $132,000. Whilst it was purchased in 1998, the property was not developed by the wife's father, brother and the wife by way of subdivision and development until some years after settlement of the purchase.
17. In or around May 1999, the husband and the wife commenced cohabitation.
18. In mid-1999, the purchase of the real property situate at and known as U1 Street, Suburb P ("the [U Street] property") settled. The purchase price was $147,500 and the property was registered in the name of the trustee company as trustee for the Family Trust. Whilst legally owned by the trustee company, it was ultimately the evidence of the wife, and was the evidence of the husband, that this property belonged beneficially to them. At the time however, they were unable to obtain mortgage finance of their own. The trustee company and the Family Trust were the vehicle through which they were able to buy a home. The wife applied $15,000 of her personal savings toward the deposit. The trustee company was the registered proprietor. The trustee company obtained a Westpac banking loan as dated mid-1999. The mortgage was in the sum of approximately $150,000, including stamp duty. The husband and wife made payment of all mortgage instalments as they fell due. The U Street property was held beneficially by the trustee company for the husband and wife.
19. In late 1999 or early 2000, the U Street property was subdivided by the husband and wife as organised by the wife and her father, and a unit commenced to be built by the wife's father, as the registered builder. The unit was at the rear of the original dwelling, which was situated at the front of the property. That original building was subsequently renovated by the wife's father, as builder, and as assisted by the husband, and became known as U2 Street, Suburb P ("[U2 Street] property") with the new three-bedroom unit dwelling at the rear becoming known as U3 Street, Suburb P ("[U3 Street] property"). The U2 Street property was tenanted.
20. The construction of the rear unit was funded by an overdraft in the sum of approximately $80,000 as obtained in the name of the trustee company. The construction of the rear unit and renovation of the existing house took approximately 12 months. The wife's father was extensively involved in the building of the unit, including funding the purchase of materials with a line of credit from his construction business, and managing the project. The husband also worked on the building site when his full-time work as a tradesman permitted. The husband performed trades work on the properties as did another tradesman as engaged by the wife's father to perform the trades work on the unit and the front dwelling. The husband performed tasks of landscaping and painting, as did the wife. The wife conceded the husband's other significant contribution in the form of manual labour, conceding when cross-examined that the husband "most definitely contributed to building".[1] The wife's father also agreed that the husband performed manual labour in respect of the unit construction, but he disputed the extent of the contributions as alleged by the husband in his evidence. I accept the husband's evidence, however, and find the husband did make the contributions that he claimed, many of them after the wife's father had left the site for the day. It was the husband and the wife's first home and investment property, and they were excited and motivated. During the building of the unit and renovation of the existing home, the wife's father could not undertake any other projects. He did not earn an income during that time as he was not paid by the parties for his labour or expertise. He was willing to make this considerable contribution for his daughter's benefit.
21. In late 2000, the husband and wife commenced residing at the newly completed U3 Street property.
22. During their occupation of the U3 Street property, each of the husband and wife applied their income toward the mortgage repayments in respect of both the $150,000 borrowing, and the $80,000 overdraft as obtained by the trustee company. They were assisted in making these repayments by the rental receipts from the U2 Street property which were paid by the parties into the second respondent's account for the trustee company to meet the payments owing in respect of the loans as taken out by it. That rental continued until 2007.
23. In late 2001, the real property situate at and known as S1 Street, Suburb T ("the [S1 Street] property") and S2 Street, Suburb T ("the [S2 Street] property") was purchased by the trustee company as trustee for the Family Trust. The purchase price was $312,000. These separate units remain on the one title, there being no subdivision ever undertaken. The wife's nephew, Mr G, resides in the S1 Street property and maintains the property. At trial, Mr G had lived there for more than 10 years and remains in occupation. He pays no rent. The S2 Street property was rented out following renovations being completed by the wife's father as construction worker and project manager, with some assistance from the wife's nephew, and the husband. The wife's father was again not paid for any work performed by him. The S1 Street property was also renovated in the same fashion prior to the occupancy of the unit by Mr G.
24. The husband's contribution to the S Street properties was, on the wife's father's evidence, limited to assisting by helping to replace a hot water system together with a licenced plumber, the wife's father and Mr G. The husband's evidence as to his involvement and contribution towards the renovation and maintenance of the two units was that his contribution was extensive and included: demolishing walls (as agreed by the wife); installing structural supports; painting and tiling; installing ducted heating; and replacing all power points, switches and light fittings (as conceded by the wife). It is probable that the husband contributed less than as claimed by him, given that he was paid for the trades work he performed and given the wife's father's evidence which is unchallenged and the wife's evidence, which I prefer in this instance.
25. The trustee company receives the rental receipts from the rental of the S2 Street property, and the wife has been solely responsible for managing that property and the income receipts.
26. In 2002, the parties married.
27. In around 2003, the old dwelling on the O Street property was purchased and removed from the property. The wife's father had arranged for a real estate agent to secure these purchasers. The O Street property was redeveloped and subdivided into two separate properties, being O1 Street, Suburb P ("[O1 Street] property") and, at the rear of the property, O2 Street, Suburb P ("[O2 Street] property"). The wife's father and the wife secured the necessary finance through the NAB. In mid-2003, the trustee company refinanced the mortgage loans as secured by the S Street property, and the properties of U2 and U3 Street, in the sum of $550,000. Around this time, the wife, as director of the trustee company, discharged the remainder of the $150,000 Westpac loan as secured over units U2 and U3 Street. Of the refinanced funds, approximately $400,000 was applied to the development of the O Street property.
28. The subdivision (which was registered in 2011) and redevelopment of the O Street property was a project undertaken by the wife and the wife's father, in consultation with the wife's brother, and with some assistance from the husband. The maternal grandfather deposed that, at the trustee company's request, the maternal grandfather provided his time and labour to manage the development with the assistance of the wife's brother. The wife's brother received no payment for his labouring and work on the properties. The wife's father received no payment for his work and expertise. The ultimate intention of the project was to provide the wife's brother with a place in which to reside, with a secondary property providing income as the wife's father had done for the husband and the wife. The wife's father accordingly made the significant contribution to this property that he did. The building of two units was undertaken by the wife's father as the registered construction worker, and project manager, and by the wife's brother, who made significant labour contributions to the building of the units, together with the husband and various tradesmen as engaged by the wife's father and as all paid for their labour and expertise.
29. It was the husband's evidence that his involvement in the subdivision of the O Street property was extensive - 10 hours per week for 12 months - and that he undertook much of the manual labour including framing and trades work. It was also the husband's evidence that he installed heating and cooling systems at the property with the assistance of his colleague, Mr CC. The wife's father and the wife conceded that the husband provided all the trades work including in relation to lighting, the air conditioning and heating, with their evidence being further that Mr CC and the husband were paid for their work. Otherwise, the evidence of the wife's father, the wife and her brother was that the husband provided some "limited" physical or manual labour, free of charge and that otherwise, the husband, in full-time employment, grossly exaggerated the assistance provided by him. That is probable. The husband was aware of the intention that the wife's brother would reside in one unit, and that the other would be rented out in the same way that the wife's father had assisted the husband and wife.
30. The husband gave evidence, which I accept, that, following the construction of both units at the O Street property being completed, he maintained and improved both units by checking smoke detectors and installing a new rangehood (in Mr G's property). I do not find that his contributions extended significantly beyond that. The wife's brother, upon the redevelopment of the O Street property being completed, moved into the property, and he has lived there continuously since around late 2003 in the O1 Street property. He has maintained the property. O2 Street is tenanted. The tenancy is managed by a real estate agency and the rental receipts are paid to the trustee company bank account. Some of those monies have from time to time been paid to the wife's brother for his necessary living expenses. The funds have otherwise been applied for the benefit of the trustee company and Family Trust.
31. In about 2004, the husband purchased Motor Vehicle 1 second-hand for approximately $2,200.
32. In mid-2005, H1 Street, Suburb J ("the [H1 Street] property") was purchased by the husband and the wife for $457,500 and was registered in the wife's name. The husband and the wife were joint mortgagors of the property. Save for the deposit, the balance of funds was derived from mortgage advance. The property was leased for approximately 12 months before, in 2006, renovations were commenced by the husband and the wife as funded by the husband and wife who engaged directly in the renovations, particularly the husband, with assistance provided by the wife's father free of charge. The parties moved into the property in 2007. This property became the parties' matrimonial home.
33. In 2006, the parties' son Mr X was born. Mr X was 18 years of age at the time of trial. The wife took a small period of maternity leave and then returned to work.
34. In July 2007, the U2 Street property was sold for $290,000. The proceeds of sale were applied to paying down the parties' mortgage in relation to their purchase of the H1 Street property, together with paying the costs of the garage as set out below.
35. In 2008, the husband coordinated and provided labour and his trades skills in the building of a double brick garage at the H1 Street property. Tradesmen were engaged which included a plumber, a bricklayer, and a concreter. The wife's father also assisted in the build for which he was not paid. The cost of the garage was approximately $80,000. Those monies derived from the sale of the U2 Street property.
36. In 2009, the husband and wife's daughter Y (collectively with Mr X, "the children") was born. Y was 15 years of age at the time of trial. The wife took a small period of maternity leave and then returned to work. Y lives with the husband and wife in a shared care arrangement, as does Mr X.
37. In October 2011, the husband's mother gifted the husband 50 per cent of the real property situate at and known as M Street, Suburb N ("the [M Street] property"), valued at $325,000. The remaining 50 per cent was gifted to the husband's sister. The husband then purchased his sister's 50 per cent share for $325,000 which was funded through a mortgage taken out by him with Westpac Banking Corporation ("Westpac"). The husband then rented out the property which, at trial, had been rented continuously for approximately 13 years. The husband applied the rental receipts to the mortgage repayments. It was the wife's evidence that there was no shortfall between the rental receipts and the outgoings of the property. It was the husband's evidence that there was a shortfall, and that the shortfall was in the sum of $1,139 per month. I accept the evidence of the husband. Since the parties' separation, the husband has continued to have the benefit of those rental receipts which he applies toward the expenses of the property in his annual taxation returns.
38. In early 2013, the husband's mother gifted him a caravan with a value of approximately $16,500.
39. In 2013, the husband's mother died. The husband inherited $25,000 cash from his mother's estate. The husband applied this inheritance to the living expenses of the family.
40. In 2014, the husband's father died. The husband inherited $320,000 from his father's estate. The husband applied this inheritance to paying down the mortgage on the H1 Street property; to buying Motor Vehicle 2 for $35,000; and to upgrading the wife's motor vehicle to Motor Vehicle 5 for a cost of approximately $38,000. He otherwise applied the remainder of the funds to the living expenses of the family.
41. In 2015, the husband commenced to be employed full-time on a wage.
42. In or around 2015, the real property situate at and known as BB Street, Suburb DD ("the [BB Street] property") was purchased for $400,000 by EE Pty Ltd as trustee for the GG Trust. The GG Trust was a bare trust for V Pty Ltd with that company being a trustee company for Superannuation Fund 3 (self-managed superannuation fund of the parties). The husband gave evidence that that entity held the BB Street property in a bare trust for the benefit of V Pty Ltd as trustee for Superannuation Fund 3, and that therefore the BB Street property was held by the husband and wife's self-managed superannuation fund.
43. In early 2015, the wife entered a Deed of Appointment between herself as director of the trustee company and in her capacity as guardian of the Family Trust.
44. On 19 May 2018, the parties purchased the property known as and situate at H Street, Suburb J ("the [H Street] property") for the sum of $750,000. The property was registered in the wife's sole name. The deposit of $75,000, as paid on the purchase, was advanced by the trustee company by way of loan. The property was rented out and the mortgage repayments and other outgoings associated with the property were met by application of that rental income, and otherwise by application of the husband and wife's income, and probably some part of the distributions of the Family Trust to the wife until at least the separation of the parties. By order of the Court made 10 April 2024, the wife was responsible for the repayment of the mortgage and all rates, taxes and other outgoings in respect of the property.
45. In October 2018, the U3 Street property was sold by V1 Pty Ltd (the trustee company had transferred the property to this related company) for $724,000. The net proceeds of sale were used to pay out a business loan obtained by V1 Pty Ltd, and as secured over the property in the amount of $150,000; and to reimburse the trustee company the sum of $50,000 of the $75,000 deposit loaned to the parties from the trustee company. It is not probably that some part was applied to pay down the Westpac mortgage secured by the H Street property as claimed by the wife. The parties retained approximately $125,000 in savings. From these savings, the parties purchased the Motor Vehicle 7 for $60,000.
46. In 2022, the wife's mother died. The wife had been caring for her mother for many months and was depressed over her mother's death.
47. In January, February and April 2022, the wife continued to sign documents on behalf of the trustee company.
48. On 29 March 2022, the parties separated. They had cohabitated for approximately 23 years.
49. On 7 April 2022, the husband caused his solicitors to send a letter to the wife confirming their separation and that the husband had moved out of the former matrimonial home into rental accommodation. That rental accommodation was a unit in Suburb FF. The husband removed $20,000 from the parties' joint bank account and applied those funds to the payment of his bond and an advance rental payment, together with his general set-up costs to establish a second home.
50. On 30 May 2022, the wife resigned as director and secretary of the trustee company. The wife's brother, Mr D, was contemporaneously appointed as sole director and secretary of the trustee company. The wife transferred her shareholding to her brother. Under cross-examination, the wife conceded that she had intended to get rid of her ownership and control of the Family Trust, but that her attempt had failed.
51. In October 2022, the husband sold Motor Vehicle 7 to a third-party purchaser for $64,000.
52. In May 2023, the BB Street property was sold for $625,000, with the proceeds of sale held in an account in the name of Superannuation Fund 3 being the parties self-managed superannuation fund.
53. In mid-2023, the husband and the wife divorced.
54. On 10 April 2024, the Court made orders as referred to at [108] hereof.
55. On 17 July 2024, the Court made orders by consent for the provision of disclosure by the wife and second respondent in circumstances where they had failed to respond to the husband's earlier requests and to earlier orders for complete disclosure.
56. On 6 November 2024, orders were made transferring these proceedings from the Federal Circuit and Family Court of Australia (Division 2) to the Federal Circuit and Family Court of Australia (Division 1).

1. The final hearing in this matter commenced after the enactment of some of provisions of the Family Law Amendment Act 2024 (Cth) ("the 2024 Amendment Act"), which came into effect on 11 December 2024, but before the enactment of the provisions of the 2024 Amendment Act which came into effect on 10 June 2025. The legislative changes which apply to this matter include the amendments to: Schedule 3 Part 3 'Commonwealth information orders'; Schedule 3 Part 4 'Operation of s 69GA'; Schedule 4 Parts 2 'Court rule making power for Family Court of a State', 3 'Review of approved methods and factors for valuing superannuation interests', and 4 ' Separation declaration requirements'; and Schedule 5 'Review of amendments'. The other provisions of the 2024 Amendment Act did not come into effect until 10 June 2025 and therefore do not apply to this matter.
2. Section 79(1) of the Family Law Act 1975 (Cth) ("the Act") provides that the Court may make such orders as it considers appropriate altering the interests of the parties in property. Section 79(2) of the Act provides as follows:

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.

1. If the Court is so satisfied that it is just and equitable to make an order altering the interests of the parties in property, s 79(4) of the Act sets out the matters which the Court must take into account when considering what order (if any) should be made.
2. The High Court of Australia (the "High Court") in Stanford v Stanford [2012] FamCAFC 1; (2012) 247 CLR 108 ("Stanford") revisited the process for trial judges in altering property interests of parties pursuant to s 79 of the Act. The High Court emphasised the requirement for the Court to establish firstly, that it be just and equitable in the particular circumstances of the case to make any alteration of property interests. In this process, the question presented by s 79(2) of the Act, namely, "whether, having regard to those existing interests, the Court is satisfied that it is just and equitable to make a property settlement order,"[2] must not be merged with, or supplanted by the inquiries under s 79(4) of the Act.[3] In determining whether it is just and equitable to make an order, the matters which can be taken into account do "not admit of exhaustive definition."[4] However, there must be a "principled reason for interfering with the existing legal and equitable interests of the parties to the marriage."[5]
3. The High Court further held that:
   1. In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice 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 wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship.
4. Whilst I have considered as a precondition to making an order for property settlement whether it is just and equitable in all the circumstances of the particular case to make such an order, the Full Court of the then Family Court of Australia, now Federal Circuit and Family Court of Australia (Division 1) in Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545 at [86] made clear that the just and equitable consideration is one that "permeat[es] the entire process".
5. It has been determined that, in undertaking the task of considering the totality of the parties' contributions in a holistic manner, it is inappropriate for a trial judge to adopt an 'accounting' or 'scoring' approach to each separate contribution. As explained by the Full Court in Blandford & Esmore [2022] FedCFamC1A 67 at [14], adopting such an approach is flawed because it "would not only require detailed actuarial calculations with respect to financial contributions (which would rarely be possible on the evidence generally available in property settlement cases), but it would still leave the significant problem of how to convert the qualitative factors in s 90SM(4)(b) [s 79(4)(b)] and s 90SM(4)(c) [s 79(4)(c)] of the [Act]".
6. I am satisfied that in all the circumstances of this case it is just and equitable to make orders adjusting the parties' property interests. Indeed, the parties ask the Court to do so.

1. Statements of fact in these reasons are findings of fact on the balance of probabilities unless the context indicates otherwise.[6]
2. It is not necessary in these reasons for judgment to comment upon the entirety of the evidence including the evidence of each witness, nor to comment on every exhibit tendered. Nor have done so. However, every piece of evidence relied upon by the parties has been read and carefully considered by me.

1. The husband was generally a reliable witness, giving his evidence in a direct and responsive manner. He deferred to the wife's knowledge of many factual matters about which he had no knowledge. I find, however, that he exaggerated his contributions to the trust assets and prefer the evidence of the wife's father, the wife and the wife's brother in respect of some of those matters.

1. The wife was generally a reliable witness, though had difficulty making concessions at times, and was evasive at others. She stated "my memory is not the best" when being asked about matters going to her effective control of the Family Trust; she could not recall signing or sighting a Deed of Variation whereby she became the sole guardian of the Family Trust, as I find she did.

1. The wife's brother was, in the giving of his oral evidence, at times an unreliable witness, and he answered many questions asked of him in cross-examination saying, "my memory is not good" or "my memory is not the best - that's the honest truth". He had no understanding of his obligations as a director of a company, nor did he have knowledge of, or capacity to perform, the functions to be performed by a director. He knew only that he could "sell the properties" (of the Family Trust). His evidence disclosed that he was clearly not in effective control of the Family Trust which was still being controlled by the wife despite her transfer of her directorship and shareholding to him, as a deliberate act, following separation - and in response to it. The evidence disclosed that the wife remained in effective control of the trustee company and the Family Trust, making decisions on the part of the trustee company and the Family Trust.
2. The evidence of the wife's father was unchallenged and is generally accepted by the Court.

1. The net asset pool of the husband and wife is as follows:

Unpaid present entitlements in the C Family Trust owed to the wife

Westpac Rocket Investment mortgage secured against H Street, Suburb J

Westpac Business Loan #...36 mortgage secured against M Street, Suburb N

V Pty Ltd as trustee for Superannuation Fund 3 (inclusive of EE Pty Ltd as trustee for the GG Trust) as at 30 June 2022

MATTERS GOING TO THE NET ASSET POOL OF THE HUSBAND AND WIFE

1. In respect of the husband's Motor Vehicle 1 and Motor Vehicle 2, the wife attributed a value to the 1968 vehicle of $55,125 and a value of $56,283 to the 1973 vehicle. The Court had before it no single expert valuations and the valuation which had been included in the assets above are values as admitted by the husband in whose ownership and possession the vehicles remain. In [59] of the husband's reply affidavit filed 12 February 2025, the husband described Motor Vehicle 1 as being in poor condition and the value ascribed was a Redbook value. In [59] of his affidavit, the husband also described Motor Vehicle 2 as being in poor condition with a Redbook value as ascribed by him. In the circumstances of there being no expert valuation, the Court has determined to accept the values of the husband because of the evidence as provided by him. The wife's proposed insurance values are more likely and probable to be inflated.

1. The husband purchased Motor Vehicle 8 as owned by him with funds advanced by way of loan from his sister. That vehicle has a value of approximately $15,000 but it is included in the asset pool as a value of nil because it is encumbered by way of loan the husband owes to his sister in respect of its purchase.

1. The husband valued the trailer as having nominal value and the wife ascribed a value of $5,000 to the trailer. Again, the parties did not put before the Court any expert valuation, in this instance, or other evidence before the Court that would allow the Court to fix a value. In the circumstances, I consider it just and equitable that the valuation be a midpoint of the values as ascribed by the parties. What is clear is that it has little value.

1. At the time of trial, the parties each had cash at bank, the husband claiming he had an amount of $16,766 and the wife had an amount of $3,029. By the time of trial, the parties had been separated since 2022. They had each earnt income in that time and expended funds as they chose and the sum standing to each party's credit in their bank accounts was monies derived by each of them post-separation. In these circumstances, it is just and equitable that these cash assets personal to the parties be not divided between them.

1. The wife included as a liability the sum of $22.77 as owed by V1 Pty Ltd. That Westpac Business One Plus account is an account held by the parties' self-managed superannuation fund.

1. The husband borrowed, in total, the sum of $145,000 from his sister post the parties' separation. This is a loan personal to the husband and the monies were applied by the husband to purchase Motor Vehicle 8 and otherwise in the payment of his legal fees. That loan does not appear in the liabilities above, as conceded by the husband.

1. The wife sought to include as a liability school fees owed to the children's school by her in the sum of $12,000. The Court determined to not include that liability in circumstances where each of the husband and wife have been liable for, and met payment of, one half of the children's school fees since separation and there is no intention by either of them to discontinue that practice.

1. The land tax as owed by the wife is in respect of her beneficial entitlement referable to the Family Trust assets and being land tax as assessed for the 2022 and 2023 financial years in relation to the H1 and H Street properties, the S1 and S2 Street properties, the O4 Street and O5 Street properties, the Suburb R property and the K Street property. The land tax assessments as made against the wife have continued to include the Family Trust assets in the financial years ending 30 June 2024 and 2025.

Monies as taken out of the parties' joint account

1. At separation, the husband took out of the parties' joint account an amount of $20,000, and the wife subsequently took out an amount of $40,000. There shall be no adjustment in respect of those monies or any inclusion in the asset pool, as each of the parties took such funds to expend on their necessary living expenses at a time when the husband needed to rehouse himself and the wife needed to meet the outgoings of the parties in respect of their property, and support herself in circumstances where she was then without income. That is a matter of justice and equity being achieved between the parties.

1. The wife proposed that two motor vehicles which the husband sold should be included in the asset pool as addbacks. In 2020, the husband purchased Motor Vehicle 7 for $60,000, which he sold in October 2022, for $65,000. These funds were applied toward the purchase of Motor Vehicle 6 for approximately $39,000 and otherwise toward his living expenses and his legal fees. In February 2024, he sold Motor Vehicle 6 to a third-party purchaser for $32,500. The husband's evidence was that these funds were applied to his living expenses and his legal fees. These funds shall not be added back to the pool. The husband's retention of the vehicle and receipt of $64,000 from its sale, and the subsequent application of those funds is a matter the Court considers pursuant to the s 75(2)(o) of the Act matters.

1. The net asset pool of the Family Trust, which the Court shall treat as property of the wife for the purposes of s 79 of the Act, is as follows:

The trustee company as trustee for the Family Trust

The trustee company as trustee for the Family Trust

The trustee company as trustee for the Family Trust

S1 Street, Suburb T

The trustee company as trustee for the Family Trust

S2 Street, Suburb T

The trustee company as trustee for the Family Trust

The trustee company as trustee for the Family Trust

Unpaid present entitlements in the C Family Trust owed to the wife

The trustee company as trustee for the Family Trust

NET TOTAL OF BOTH ASSET POOLS (excl. superannuation)

1. As was said in Harris & Dewell and Anor [2018] FamCAFC 94, control over the assets in a trust is not sufficient of itself to permit the assets of the trust to be treated as the property of the party who has that control. What is required is control over a person or entity who, by reason of the powers contained in the trust deed can obtain, or effect the obtaining of, a beneficial interest in the property of the trust.[7]
2. In Ashton & Aston [1986] FamCA 20; (1986) FLC 91-777, the Full Court determined that the assets of the trust should be treated as property of the husband for s 79 of the Act purposes, because the husband, via the powers vested in him by the trust deed, was able to effect the distribution of trust assets to himself should he so choose. The Full Court said, relevantly, as follows:[8]

...having regard to the powers and discretion which the husband has and having regard to what has in fact taken place, for the purposes of sec. 79, the husband's power of appointment, and all the attributes it carries with it, amounts to de facto ownership of the property of the trust...

1. In Harris and Harris [1991] FamCA 124; (1991) FLC 92-254, the Full Court found that the assets of a family trust were property of the parties for s 79 of the Act purposes, because the husband had the capacity to obtain the benefit of trust property by reference to the powers given to him by the trust structure. The Full Court said, relevantly, as follows:[9]

In our opinion, the husband's interest as a beneficiary under the trust in combination with his rights and powers as appointor and guardian place him, for the purposes of section 79 of the Family Law Act 1975, into the position of an owner of property which property is constituted by his interest and his rights and powers under the trust. This property is properly evaluated as equivalent to the value of the assets of the trust.

1. The C Family Trust was established by way of a Deed of Settlement dated 28 January 1994.
2. At some time around 1996, or shortly thereafter, I find that the wife became the sole guardian of the Family Trust, replacing her mother and father. None of the parties produced the Deed(s) of Variation with respect to the wife's appointment, and the resignation of the wife's parents as guardians of the Family Trust. The wife and her brother, it is fair to say, were not focussed on the search for the relevant documents as had been requested of them, by orders of the Court, and by the husband's solicitors. It is open to the Court, on the evidence, to find that this lack of disclosure, or interest in complying with disclosure obligations in litigation by making the necessary and timely enquiries to locate the relevant Deed or Deeds, if not simply unable to locate same, occurred in the context of the overwhelming evidence before the Court of the wife assuming ownership and control of the trustee company and Family Trust as around the time that the wife's parents unencumbered properties were transferred to the trustee company, and the wife's parents became probable Centrelink recipients. The below matters also go to the Court's satisfaction that the wife is and remains the guardian of the Family Trust.
3. Commencing in 1996, the wife was responsible for the completion of all financial documents of the trustee company and the Family Trust. In her provision of instructions to the Family Trust's accountant, Mr KK, the wife was also responsible for liaising with the various real estate agents responsible for the rental of the Family Trust properties. She otherwise dealt regularly with the Family Trust's accountant in respect of all matters pertaining to the Family Trust and in respect of all her activities, she explained them to her father, and kept him informed as to her decision-making and management. Although, at trial, the wife was no longer the director of the trustee company, the wife continued to have, as I find it, effective control of the trustee company and control of the Family Trust, performing all those tasks she had performed in the past, including banking tasks, and providing input to the accountant as she had always done since 1996.
4. Following the wife becoming the sole shareholder and director of the trustee company, and the guardian of the Family Trust, the wife made a genuine representation to the State Revenue Office that she was the ultimate beneficiary of the Family Trust. Accordingly, land tax assessments in respect of the trustee company and Family Trust real estate assets have issued to her personally, and continue to so issue including to the 2025 financial year. The quantum of land tax due and payable by the wife ongoing is, in large part, referable to the wife's ongoing beneficial interest in the trust properties.
5. On 2 February 2015, the wife, in her capacity as sole director of the trustee company, and in her capacity as guardian of the Family Trust, executed a Deed of Appointment as she and the husband were travelling overseas and they were concerned about the possibility of their death, or the death of either of them. Contrary to the submissions of the wife and the second respondent, the Deed of Appointment is, I find, revocable in nature. The terms of the Family Trust deed make that clear.
6. The orders made the 10 April 2024 had, as a consent order, and as a notation ('A'), the following:

Injunction

2. ...

...

(c) the Wife be and is hereby restrained from making or issuing any further instrument or declaration that would relinquish herself as appointor and/or guardian of the [C Family Trust] ("the Family Trust").

...

A. The wife continues to be the guardian of the [C Family Trust].

(As per the original)

1. The wife, and the wife alone, received distributions from the Family Trust in the financial years ending 30 June 2019, 30 June 2020, and 30 June 2021 as disclosed. The wife did not provide any earlier taxation returns with respect to the Family Trust. It is probable that the wife received distributions from the Family Trust in prior financial years, commencing in 1996 until after May 2022.
2. The wife gave evidence when cross-examined about decision-making in respect of the assets of the Family Trust and the running of the Family Trust, and responded "I had the final say, yes".[10]
3. The Family Trust (and/or the trustee company) paid the deposit for the purchase of the H Street property in the name of the husband and the wife.
4. The legal ownership (until 2022) and control of the trustee company and Family trust vested in the wife, as is reflected in the relevant ASIC statements.
5. The wife's evidence that it was her father who had effective control of the trustee company and the Family Trust, was directly contradicted by the sworn unchallenged evidence of her father.
6. Mr E deposed as follows:[11]

In the following years [post 1997], [Ms Zajac] consulted me about the affairs of the Trust and its assets, and she sought my advice and my counsel in relation to decision-making. However, I left the ultimate determination in relation to all matters associated with the Trust in her hands. She kept me informed in relation to all matters and activities of the Trust. Accordingly, I am aware from conversations with [Ms Zajac], of all property acquisitions by the Trust, the development of properties and the sale of properties. In or about 1998, I located a property that was for sale at [O3 Street, Suburb P] ([O Street Property]). I spoke to [Ms Zajac] about the [O Street Property], and she decided that [B Pty Ltd] should proceed to acquire it. [Mrs F] and I offered to sell the [LL Street] Property to finance the acquisition of the [O Street Property].

In or about 1998, [Ms Zajac] said to me that she and [Mr Moser] wanted to purchase a property to live in. [Ms Zajac] said that she and [Mr Moser] were struggling to obtain finance. She said to me that the Trust owned properties which could be used as security to finance the acquisition of their home. I am informed by [Ms Zajac] that she and [Mr Moser] acquired the property at [U1 Street, Suburb T] ([U Street] Property). I was also kept informed in relation to the use of the Trust to facilitate the acquisition. In or about 2000, the [U Street Property] was subdivided, and a unit was constructed at the back. In or about 2001, the [O Street Property] was also subdivided, and two units were constructed. The Trust also acquired [S1 and S2 Street, Suburb T] in or about 2001 and [Q Street, Suburb R] ([Suburb R] Property) in or about 1997.

1. In mid-2022, the wife unilaterally and without notice to the husband resigned as director of the trustee company and appointed her brother, Mr D, in her place. She transferred her shareholding to her brother. I observe that such actions occurred in the context of the separation, and the wife receiving correspondence from the husband's solicitor. It is probable that the motivation behind the wife's actions was to attempt to move the assets of the Family Trust beyond the reach of the husband. The wife engaged in no consultation with the wife's father about her actions or decision-making, precisely because as I find it, he was not the guardian of the Family Trust, and nor did he have any interest in, or control over the trustee company.
2. Despite her resigning as director and shareholder of the trustee company, the trustee company has continued to pay various amounts to the wife, including for the purpose of funding this legal proceeding.
3. During the trial, there was evidence tendered by the husband's counsel, being an email of 15 November 2023 from Mr KK, the accountant for the trustee company and Family Trust, as sent to the wife's brother. It stated, relevantly,

...

We refer to the recent communication received from TLM Law in respect to the abovementioned matter...

After conducting a review of our files on hand and in particular both the trustee company's ([B Pty Ltd]) register and the trust's ([C Family Trust]) register we were not able to locate any copies of any amendment or variation deeds of the trust that would have been prepared on or about the [mid] 1996 when both [Mr E] and your later mother resigned as both officeholders, shareholders of the trustee company and guardians of the trust when they would have relinquished any rights and any claim of entitlements against the trust. Such documents were required to be prepared and produced especially when applying to ensure eligibility to receive the Age pension entitlements from Centrelink. It appears the previous solicitor, [Mr MM of NN Law Firm] attended to these matters from old file notes.

Can you please speak to both [Mr E] and the previous officeholder [Ms Zajac] to see if they have kept any copies of these documents.

...

1. Thereafter, on 15 November 2023, Mr KK sent the following email, relevantly, to the wife:

We refer to recent correspondence received from TLM Law ... regarding the application to make a distribution of property in specie form [sic] the trust.

To assist with the request made by TLM Law we have sent today the attached email to [Mr D] with instructions to hopefully locate copies of the old deeds that would have been prepared when [Mr E] resigned from the trustee in order to be eligible for any future pension entitlements from Centrelink, back in May of 1996.

Can you also see if copies of these documents are still in [Mr E]'s possession, we will also call him to discuss the request made by TLM Law to assist [Mr D].

...

1. I am satisfied that the wife is the sole guardian of the Family Trust and that, throughout the parties' cohabitation, as sole director and shareholder of the trustee company, she had an absolute discretion to apply the net income and the capital of the Family Trust for the benefit of its beneficiaries. She continues to have effective control of the trustee company and Family trust to obtain for herself, as a primary beneficiary, a beneficial interest in the assets of the Family Trust. She continues to have the capacity to remove her brother as trustee using her power as the appointor and guardian of the Family Trust, and to appoint a further trustee.
2. All of the above leads the Court to conclude that the assets of the Family Trust should be included in the asset pool for division between the parties, being property of the wife.

1. The husband contended that each of the wife and second respondent had failed to make full and frank financial disclosure, particularly in relation to the trustee company and the Family Trust. The wife and the second respondent denied this contention.
2. Whilst there was some lack of disclosure, and delayed disclosure, I do not find there was material non-disclosure if I accept that the Deed(s) of Variation, which I infer exist(s), pertaining to the resignation of the wife's parents as guardians of the Family Trust, and appointment of the wife as sole guardian, cannot be located by the respondents and/or those professionals (accountants and lawyers) who have acted for the trustee company and the Family Trust over many years. I accept that the wife and her brother did not engage in an extensive personal search for relevant documents, but that they relied upon those professionals who had acted for them.
3. As it is, the evidence produced by way of discovery corroborated the husband's position that the wife, and the wife alone, provided instructions to the accountants with respect to the trustee company and the Family Trust.

1. The Court must consider the contributions of the parties in an overall sense (Norman & Norman [2010] FamCAFC 66; Kowalski and Kowalski [1992] FamCA 54; (1993) FLC 92-342; G v G (2000) FLC 93-043). A broad approach is preferred, rather than reference to precise mathematical calculations (Burke and Burke [1981] FamCA 44; (1981) FLC 91-055), although an evaluation of each party's respective contributions is necessary (JEL v DDF [2000] FamCA 1353; (2001) FLC 93-075). Assumptions about equality of contributions should not be made, and there is no assumption that equal division is the starting point for any exercise of the Court's discretion.
2. As the Full Court said in Horrigan & Horrigan [2020] FamCAFC 25 at [35], the proper approach to the assessment of contributions "is not a mathematical exercise but rather involves the identification and assessment of all of the parties' respective contributions, in a holistic way across the course of the relationship and in the post separation period to the point of assessment".

1. In May 1999, the wife was the sole director, secretary and shareholder of the trustee company as trustee for the Family Trust. She was the guardian of the Family Trust. She was a primary beneficiary. At that time, the Family Trust had acquired the unencumbered K Street property; the Suburb R property; and the encumbered O Street property. The husband made no contribution to the acquisition of these properties. Throughout the marriage, the wife used the Family Trust as a vehicle to assist in the acquisition of assets by the husband and the wife, and as a vehicle through which the trustee company purchased, developed and sold various real properties and took out borrowings.
2. In around May 1999, the wife applied $15,000 of her savings toward the purchase of the parties first property in the circumstances of its acquisition as described in paragraph [35] above.
3. In May 1999, the husband had assets of little value. He had approximately $15,000 of superannuation entitlements.

1. Throughout the marriage, the wife undertook the role of primary home maker and primary carer to the parties' children, though the husband was always involved in aspects of the children's care, welfare and development.
2. The husband undertook the role of main income-earner during the marriage, although the wife worked over many years. She worked full-time for approximately seven years before the birth of the parties first child. She thereafter became involved in the administration of the husband's business in which she worked for some years. Later, she became employed between August 2019 and November 2022, as a Practice Manager.
3. The wife was responsible for managing the financial affairs of the parties, and the Family Trust. She received distributions from the Family Trust, probably in the period between 1996 and 30 June 2022. Those funds were applied for the benefit of the family.
4. Each of the parties contributed by application of their income, and that of the trustee company, to the land tax payments as assessed against the wife personally throughout the course of their cohabitation. It is probable that the wife obtained contributions in whole or part to these payments from the trustee company by way of trust distributions over the years, as made to her.
5. Throughout the marriage, the husband conducted regular maintenance to the K Street property, including but not limited to:

(1) Trades works;

(2) Installing smoke detectors;

(3) Repairing the rangehood, fly screens and exhaust fans;

(4) Bathroom repairs; and

(5) Patching, plastering and painting.

1. The K Street property was tenanted throughout the marriage. The wife was solely responsible for managing the rental property, and income as paid to the trustee company.
2. Throughout the marriage, the husband and wife, and the wife's brother and his family, maintained the garden at the Suburb R property. That was not surprising given their ability to use this property for each of their families, without payment. The husband also undertook general maintenance works. For example, the husband installed solar panels at the property, replaced the shower screen and installed lighting at the rear and side of the property. These maintenance works were not significant in terms of the approximately 23 years that he and the wife had the use of this property.
3. The husband's contribution to the O Street property, and the S Street property, and that of the wife, is set out above, as is their contribution to the U2 Street property and the U3 Street property, as well as the significant contribution of the wife's father, on behalf of the wife, to the development and subdivision (in respect of two) of those properties.
4. The husband and the wife contributed equally to their acquisition of the properties situate at H1 and H Street Suburb J, and to their improvement and maintenance of those properties. They contributed equally to the acquisition and development of the U2 Street and U3 Street properties, save for additional and significant contributions on behalf of the wife by the wife's father.
5. The husband contributed a significant approximately $686,500 in inheritance funds received by him to the benefit of the family as described above including the paying down of the husband and wife's mortgage on their former matrimonial home, and the contribution of the husband and the wife to the purchase of the M Street property.

1. Following separation, the children have lived with the wife and spent time with the husband for six nights each fortnight, as well as for special occasions and holidays.
2. The husband is paying child support in relation to Y, in accordance with a child support assessment, and one half of school fees and some extracurricular activities. Until Mr X turned 18, the husband was paying child support in respect of Mr X. The wife continues to provide physical and emotional and financial support to the parties' children.

1. The husband contended that, considering all the above matters and given the length of the relationship (spanning 25 years), contributions ought to be assessed as to 52.5 per cent to the wife and 47.5 per cent to the husband when considering the assets of the husband and the wife and of the Family trust as property of the wife, and therefore the parties. The wife made no contention when considering an asset pool that included the Family Trust assets. It was her contention that those assets should not be available for division between the husband and the wife.
2. I am satisfied that there should be a contribution adjustment in respect of the assets of the husband and the wife (excluding the trust assets for present purposes) as to notionally 52 per cent of $3,861,208 to the husband being a sum of $2,007,828.16. A further contribution adjustment, when looking to the Family Trust assets as property of the wife, and hence property of the husband and wife for the purposes of s 79 of the Act, of notionally 34 per cent of $5,836,832 is $1,984,522.88. On this basis, the total sum payable by the wife to the husband would be $3,992,351.04. I discount this, however, when looking to all of the husband and wife's contributions in the exercise of my discretion and in the following circumstances. The husband's approach to this litigation was that he should receive a lump sum payment from the wife without any regard to the costs of the wife in making that payment. The wife will incur selling and other related costs, including probably capital gains tax. Certainly, any capital gains tax in respect of the H Street property should be shared between the parties as a matter of justice and equity. I observe whilst there was no addressing of this issue by the parties that, in the context of any capital gains tax liability, it is probable that the wife will not incur same in respect of the K Street property in circumstances where that property was purchased in or about 1970 prior to the advent of capital gains tax in 1985. Whilst none of these expenses were addressed in the evidence or in submissions, I am mindful that the wife will need to sell property in order to meet the payment to the husband. There will be no necessity for the husband to sell the M Street property. These are matters I take additionally into account.
3. Looking at the assets of the husband and wife holistically, I conclude that there should be an adjustment of the total net asset pool of $9,698,040 in favour of the wife as to 64 per cent to the wife and 36 per cent to the husband. That is $6,206,745.60 to the wife and $3,491,294.40 to the husband.

Relevant s 75(2) of the Act matters

1. The husband is in relatively good health. He suffers from back and joint pain. He has a diagnosis of inflammatory osteoarthritis which is managed with medication. He deposed to suffering a prolapsed spinal disc in 2001 for which he experiences recurring symptoms on occasion, resulting, at times, in him being placed on light duties at work when those symptoms recur. Given the nature of his work, being physical work, he is likely to have ongoing issues in the future.
2. The husband earns an income of $135,000 gross per annum as a qualified tradesman although I observe that in the previous two financial years, he earnt a gross income of $146,934 (financial year ended 30 June 2024) and $153,392 (financial year ended 30 June 2023). He has probably a capacity to earn more than he currently does.
3. The wife is in relatively good health. She works on a part-time basis, approximately 25 to 30 hours per week. In her trial affidavit, filed 12 January 2025, the wife describes her ongoing commitments which require her regular availability. These include supporting her 88-year-old father to attend medical appointments and maintain household duties, as well as supporting the parties' children in their ongoing health concerns. The wife has in the future also a probable capacity to earn a greater income, in particular given her administration skills.
4. The wife earns an income of $40,000 gross per annum as a carer on a part-time basis. Throughout the marriage, the wife, as a primary beneficiary, received distributions from the Family Trust to supplement her income from her employment.
5. The wife's income and earning capacity are less than that of the husband.
6. The children live with the wife and spend six nights per fortnight with the husband. The children spend holiday time and special occasion days generally equally between their parents. Mr X is now 18 years of age. The husband pays child support to the wife pursuant to an administrative assessment, in addition to one half of school fees, some extra-curricular fees, and other child related expenses. The wife pays and/or has paid solely the children's private health insurance, Y's sporting expenses, the children's phone and internet subscriptions, and the child Mr X's psychiatrist expenses. The husband has from time to time fallen into arrears in the payment of his child support such that a garnishee notice issued and the payments are deducted from the husband's salary.
7. The husband took with him, at separation, Motor Vehicle 7 as described in [62] above. He sold that vehicle for $64,000 and replaced it with Motor Vehicle 6. Otherwise, he expended the remaining funds for his own benefit which included the payment of living expenses and legal fees. I take this matter into account pursuant to s 75(2)(o) of the Act.
8. The wife will retain her Superannuation Fund 2 entitlements in the sum of $9,149 and the husband will retain his Superannuation Fund 1 entitlements in the sum of $185,683. Those sums will be, however, effectively equalised in the adjustment of the husband and wife's member entitlements in their self-managed superannuation fund to take account of this disparity. It is appropriate in the circumstances of this case, and just and equitable, that the husband and wife's superannuation entitlements in their entirety be shared between them such that the entitlements the parties hold in their self-managed superannuation fund, in the sum of approximately $522,383 be divided to effect a net equalisation of the parties' superannuation entitlements.
9. Otherwise, the wife will continue to have actual and effective control of the Family Trust, and its assets that remain.
10. In the exercise of my discretion, I consider that there should be no s 75(2) of the Act adjustment in favour of either the husband or the wife.

1. I consider that a division of the net assets of the husband and the wife, inclusive of the Family Trust assets, as to 64 per cent to the wife and 36 per cent to the husband to be appropriate, just and equitable. The husband will retain the M Street property in Suburb N (and its associated mortgage), the caravan, both Motor Vehicle 1 and Motor Vehicle 2, Motor Vehicle 8, and the trailer. To effect a 64/36 per cent division of the net assets, the husband will receive $3,491,294.40 and the wife, the sum of $6,206,745.60. A differential of $2,715,451.20. In dollar terms, the husband will retain property with a net value of $1,226,534. Accordingly, the wife must make a cash payment to the husband in the sum of $2,264,760.40.
2. In the exercise of my discretion, I consider that orders giving effect to the above adjustment of property as between the husband and the wife are appropriate, just and equitable.
3. Each of the parties sought an order for costs. Ordinarily, each party would bear their own costs in the circumstances of this case. I have, however, made provision for any application to be made in the event a costs order is sought.

I certify that the preceding one hundred and fifty-six (156) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett.

[1] Transcript 18 February 2025, p.96 line 44.

[2] Stanford v Stanford [2012] FamCAFC 1; (2012) 247 CLR 108 at [37] ("Stanford").

[4] Stanford at [36] referring to Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 608 per Gibbs CJ.

[6] Evidence Act 1995 (Cth) s 140.

[7] Harris & Dewell and Anor [2018] FamCAFC 94

[8] Ashton & Aston [1986] FamCA 20; (1986) FLC 91-777 at 75,653.

[9] Harris and Harris [1991] FamCA 124; (1991) FLC 92-254 at 78,708.

[10] Transcript 18 February 2025, p.133 line 41.

[11] Affidavit of Mr E filed 24 January 2025, p.3 to p.4.