Naumov & Geissler (No 2) [2025] FedCFamC1F 612 (3 September 2025)

1. The de facto wife seeks an injunctive order, supported by her undertaking as to damages filed on 21 November 2024, preventing the de facto husband in his capacity as the legal controller of the Geissler Settlement Trust, and Geissler Nominees Pty Ltd as the trustee for the Geissler Properties No 2 Unit Trust, and the second respondent in her role as director of the latter trustee from dealing with the Suburb F property occupied by she and the children, pending determination of her substantive claim, including by encumbering, selling, or adversely affecting it, where she seeks the property in specie on a final basis.
2. The de facto wife must establish both that there is an arguable case with sufficient likelihood of success to justify the relief sought, and that the balance of convenience favours the grant of the injunction, in that there is a danger or risk of dissipation of, or dealings with, assets which will frustrate any judgment in her favour (Tsiang & Wu and Ors [2019] FamCAFC 128; (2019) FLC 93-911).
3. The de facto husband did not "on all fours" oppose the making of an injunctive order as to the preservation of the Suburb F property. He sought a capacity to give 45 days' notice in the event that the registered proprietor trust would sell the property. The second respondent made no submissions as to the injunctive order sought.
4. The construction of the de facto husband's response to the s 90SM claim of the de facto wife is not that there is no warrant by way of justice and equity to adjust property between them, but is based upon his contention that there is a very modest value of property available for adjustment between them. He did not explain how this contention is reconciled with his previous assertion as to the value of his property being in the range of $20 million.
5. Section 90SM(3) of the Act mandates that the Court must identify the existing legal and equitable interests of the parties and only that existing property is to be divided or adjusted (Shinohara & Shinohara [2025] FedCFamC1A 126). For the purposes of Pt VIIIAB litigation, this engages directly with s 90RI of the Act, being the recently amended legislative mandate as to disclosure. Section 90RI records:

90RI Duty of disclosure

Duty of disclosure in proceedings

(1) Each party to a proceeding relating to financial or property matters of a de facto relationship (other than proceedings on appeal) has a duty to the court and to each other party to give full and frank disclosure, in a timely manner, of all information and documents relevant to:

(a) for a party to the relationship - the issues in the proceeding that relate to financial or property matters of the relationship; or

(b) for any other party to the proceeding - so much of the party's financial circumstances as are relevant to the issues in the proceeding that relate to financial or property matters of the relationship.

(2) The duty under subsection (1) applies from the start of the proceeding and continues until the proceeding is finalised.

Note: Courts have a range of powers that may be exercised to impose consequences when a person fails to comply with their duty of disclosure. For example, a court might do any of the following:

(a) take the failure into account when making an order under section 90SM (alteration of property interests);

(b) make any orders with respect to costs or security for costs against the person that the court considers just, having regard to the failure;

(c) make any orders with respect to disclosure that the court considers appropriate;

(d) if an order made by the court is contravened - impose sanctions under section 112AD;

(e) punish the person under section 112AP for contempt;

(f) stay or dismiss all or part of the proceedings.

(3) If a party has a litigation guardian, the duty under subsection (1) is taken to have been complied with if the litigation guardian complies with the duty to the extent they are capable of doing so.

(4) The duty under subsection (1) does not apply to the respondent to an application that alleges a contravention of a court order or a contempt of court in relation to that application....

Financial or property matters of the relationship

(7) Any of the following matters, so far as they relate to a de facto relationship, are financial or property matters of the relationship:

(a) financial matters;

(b) matters that are or might become the subject of proceedings in a de facto financial cause;

(c) matters that are or might become the subject of proceedings under any of the following provisions of this Act:

(i) Division 7 of Part VII (child maintenance orders);

(ii) this Part (orders with respect to the maintenance of a party, or the property of the parties, to the relationship), other than Subdivision C of Division 1 (declarations about existence of de facto relationships);

(iii) section 90UM (orders setting aside a financial agreement or a termination agreement);

(iv) Part VIIIB (orders with respect to allocation of superannuation interests);

(v) section 106B (orders with respect to instruments or dispositions to defeat an existing or anticipated order in proceedings under this Act);

(8) A party's duty to disclose information and documents is a duty to disclose information known to the party and documents that are or have been in the possession or under the control of the party.

(9) A party's duty to disclose information and documents includes any information and documents prescribed by the applicable Rules of Court for the purposes of the duty.

Note: The duty to disclose is not limited to prescribed information and documents. The applicable Rules of Court may also prescribe other matters in relation to the duty of disclosure.

Practitioners' obligation to provide information etc.

(10) A legal practitioner or family dispute resolution practitioner who engages with a separated party to a de facto relationship who is or might be subject to the duty in subsection (1) or (5) must:

(a) provide the party with information about:

(i) the duties of disclosure under this section and explain the circumstances in which they apply; and

(ii) potential consequences of the party not complying with the duties; and

(b) encourage the party to take all necessary steps to comply with the duties.

1. Section 90RI requires parties to disclose both documents and information in a timely manner. The construction of the section also directs disclosure of the context of the documents and information, if relevant, by way of explanation. It directs a party not to merely provide large volumes of material without explanation, or volumes in a haphazard or disordered fashion. By way of example, in this case, the de facto husband is obliged to disclose all relevant documents and information in context as to the agreements reached between, he and the second respondent, with Ms DD, as to the resolution of her claims regarding the W Street property and her interests in their late mother's estate. By way of further example, he is obliged to disclose all relevant documents and information in context as to the conduct of the Geissler Settlement Trust and the Suburb K Properties Trust from a time prior to the death of his father in 2011 to date. Each of these examples directly engage with the issues defined by him in the proceeding. On the evidence, he has failed in these disclosure obligations.
2. Additionally, it is the evidence of the de facto wife that the de facto husband has failed to comply with his disclosure obligations, despite countless requests by her solicitors. The de facto husband's failure to disclose relevant documents frustrates the process of identifying the property and liabilities of the parties.
3. The circumstances and nature of the de facto husband's disclosure failures, including the period of time that has now elapsed since the requests and directions were made, by reference to longstanding authority, promote robust inferences favouring the de facto wife as the innocent party for the purposes of the injunctive relief sought.
4. The value of the conceded property interests of the de facto husband in the Geissler Settlement Trust and the Suburb K Properties Trust made in the notations made on 19 June 2024 (where he contended the property interests of the parties were in the range of $20 million), are supported in part by the objective evidence adduced by the de facto wife (as compared to the de facto husband's later assertions as to value) promoting a conclusion of his property being valued at a not insubstantial sum of multiple millions of dollars.
5. The primary relief of the de facto wife to receive the Suburb F property absent encumbrance, taking into account all types of contributions since 2007 to date, and her current and future needs including the care of the children, is not fanciful and has merit. This, coupled with the de facto husband's disclosure failures, establishes that the de facto wife has an arguable case with sufficient likelihood to justify the relief sought. The balance of convenience in granting the injunction favours the de facto wife having regard to the de facto husband's and the second respondent's attempts during the litigation to dispose of the Suburb F property, knowing that the de facto wife sought it in specie, and his refusal to remove the sale sign. In the event the Suburb F property was sold it would frustrate the de facto wife's final relief as claimed. The de facto husband and the second respondent do not identify any prejudice in the making of the injunction in circumstances where, on the de facto husband's own account, the sale of the Suburb F property is no longer necessary to meet the B Pty Ltd default notice. In the event circumstances change to the requisite degree in the future, he and/or the second respondent can make such application as they are advised to vary the injunction.
6. The de facto wife has established that the balance of convenience favours the making of injunctive orders. Orders will be made in the terms as sought by the de facto wife.

1. There is a long line of authority that provides power to the Court to make a litigation funding order, including on a dollar-for-dollar basis, pursuant to s 114UB of the Act (Charisteas & Charisteas [2022] FedCFamC1A 160; (2022) FLC 94-109 at [75]-[77]).
2. Before an order as to costs can be made, the Court must be satisfied that the order is, in the circumstances, just (s 114UB(2) of the Act). Until that point, there is no power to make an order departing from the general rule that each party pays their own costs (s 114UB(1)). Once enlivened, the discretion to make an order as to costs is governed by the considerations contained in s 114UB(3) of the Act. There is no authority that contends that more than one of the factors in s 114UB(3) need be present. Indeed, any one factor may be determinative.
3. In Salvage & Fosse [2020] FamCAFC 144; (2020) FLC 93-966, the Full Court identified that litigation funding orders have a long history and are made to alleviate the obvious unfairness of a party with control of the assets being able to marshal them to pay lawyers, leaving the other party to attempt to pursue the proceedings without being able to resort to property that might subsequently be transferred to them. That said, each application must be looked at according to its own particular facts and circumstances. The principles relevant to the making of a litigation funding order were identified by the Full Court in Zschokke and Zschokke [1996] FamCA 79; (1996) FLC 92-693, being:

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

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

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

1. Exhibit 13 records that the de facto wife has paid costs of approximately $55,000 and has outstanding costs in the range of $97,000. Her costs notice records that she has borrowed the funds to meet her paid costs to date. Her estimated costs for conclusion of the litigation are in the range of $230,000 with no capacity to pay them. She has placed into evidence the fee agreements entered with her solicitors and the rates charged do not appear to be unreasonable.
2. The de facto husband by way of Exhibit 8 has paid costs up until 28 February 2025 of $48,000. His unpaid costs of that date are approximately $72,000. The de facto husband has not disclosed whether these costs have since been paid. His costs notice states he has accessed his own funds or obtained loans from the various entities or the second respondent to meet the costs to date. His anticipated costs up to the conclusion of the hearing is said to be an additional $170,000. He has not disclosed the source of funds to pay his future costs.
3. I do not accept, for the reasons identified earlier the de facto husband's submission that the de facto wife's case as to the joinder of third parties is "unarticulated" or is "vague" or "simplistic". Nor do I accept his evidence that "in the context of the pool" he does not hold sufficient resources to meet any order or that he has an absence of capacity to meet his own legal fees.
4. I accept, for the reasons identified earlier, that the de facto wife has established for the purposes of the litigation funding order that:

(a) The de facto husband is in a significantly superior financial circumstance compared to her;

(b) The de facto husband has had the capacity to pay his own legal costs from his property and resources should he elect to do so;

(c) She cannot pay her current outstanding and future costs from her own property and resources;

(d) She has an arguable case for the tenor of her substantive relief which deserves to be heard; and

(e) The de facto husband and the other proposed respondents have most, if not all, the documents and information relevant to the primary facts and issues in dispute. The de facto wife has made a multitude of requests to the de facto husband for disclosure. Orders have been made directing that disclosure. The continued requests and obtaining of orders to implement what was codified by the rules and ought to have been disclosed absent order have unnecessarily increased her costs. There is little evidence that this circumstance will change in the future, being likely to generate further costs. Putting it another way, the de facto husband has failed to progress the litigation while the de facto wife has incurred significant costs for very little product to date. The de facto husband's costs have been funded by his own funds and loans from his property or resources and the second respondent.

1. There needs to be at least some levelling of the playing field in this litigation. The de facto husband says he will engage legal representation in the future, giving the dollar-for-dollar order sought prospective utility. The construction of the order sought by the de facto wife protects from any risk of injustice occurring because funds paid to her solicitors pursuant to the order are only applied to meet the expenses for litigation funding.
2. A consideration of all the circumstances justifies the making of an order for litigation funding by way of a dollar-for-dollar methodology. I find the making of such order is just. It will be made.

1. Procedural orders will be made for the de facto husband and the other respondents to file responses and any defences to the de facto wife's Amended Initiating Application and Points of Claim. The matter will be relisted after the relief sought and pleadings of all parties have crystallised, to ensure the progression of the obtaining of ch 7 single expert valuation evidence (if it has not done so by that time) and enable oversight as to compliance by the various parties with their disclosure obligations as codified in s 90RI of the Act.
2. Both the de facto wife and the de facto husband sought costs of the interlocutory determinations. Neither party has had the opportunity to make submission as to that relief. Directions will be made to facilitate any application for costs being determined.
3. For all the above reasons, I make the orders set out herein.

I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton.