Pachar & Mahal (No 2) [2025] FedCFamC1F 451 (9 July 2025)

(a) The father have sole parental responsibility for the children;

(b) The children live with the father; and

(c) The children spend time and communicate with the mother in accordance with their wishes.

1. The principal issues with respect to the Part VIII applications are:

(a) An assessment of the parties' respective contributions pursuant to s 79(4)(a), (b) and (c) of the Act in relation to non-superannuation assets;

(b) Whether the husband dissipated the parties' assets in a manner, which was reckless and/or deliberate such that it is appropriate to award the wife the entirety of the net equity in the former matrimonial home and otherwise, a significant proportion of the other assets available for distribution;

(c) Whether an adjustment in favour of the wife pursuant to s 79(4)(e) of the Act is warranted on account of s 75(2) factors; and

(d) Whether pursuant to s 75(2)(o) of the Act, an adjustment in the wife's favour is warranted on account of the husband's non-disclosure of documents relevant to these proceedings.

1. By her Further Amended Initiating Application filed on 17 April 2025, the wife seeks:

(a) An order for the sale of the former matrimonial home located at Suburb C. That application is opposed by the husband;

(b) An order that on the sale of the Suburb C property, the wife receive the net proceeds of sale in their entirety;

(c) An order that the wife receive 100 percent of the parties' superannuation interests;

(d) An order that the husband do pay to the wife a sum of $140,000 in respect of his occupation of the Suburb C property since separation; and

(e) An order that the husband return jewellery to the wife.

1. For his part, the husband seeks a division of the parties' non-superannuation assets and superannuation assets such that he retain sixty-five (65) percent and the wife retains the remining thirty-five (35) percent.
2. In circumstances where each party seeks an order under s 79(1) of the Act for an alteration of interests in property, albeit to different effect, it is implicit that they concede it is just and equitable for the Court to do so, as required by s 79(2) of the Act. I agree that it is just and equitable for the Court to make an order under s 79 of the Act. Particularly, and as will become clear, there is not and will not be the common use of property by the husband and wife in the future. Further, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the severance of the marital relationship.[2] The matters identified by the plurality of the High Court in Stanford v Stanford (2012) 247 CLR 108 at [42] apply in this case.
3. Regrettably, these proceedings became unnecessarily contentious. The Court file identifies that:

(a) Since proceedings commenced on 8 July 2021, 249 documents have been filed;

(b) The competing applications have been the subject of forty-three orders; and

(c) Forty-two subpoenas were filed.

1. In addition to proceedings in this Court, the husband's mother commenced proceedings in the Supreme Court of New South Wales in 2021 making a claim to beneficial entitlement to land registered under the Real Property Act 1900 (NSW). That application was dismissed in December 2023.
2. For the reasons which follow, I shall order a division of the parties' non-superannuation property in the proportions of fifty-eight (58) percent to the husband and the remaining forty-two (42) percent to the wife. I make no order with respect to the parties' respective superannuation assets.

1. The wife is aged forty-eight (48) years.[3] The husband is aged fifty-four (54) years.[4] The husband migrated to Australia in 2000[5] and the wife migrated to Australia in 2004.
2. The parties married in City J in Country B in 2004 and separated on 12 May 2021.[6] They have two children, namely, a female child aged 17 years and a male child aged 12 years.[7] The children have lived with the husband since separation.
3. The wife says that the parties met for the first time by means of what the wife describes as an Country B "matrimonial website".[8] The husband does not agree. He says that the parties' relationship was arranged by the parties' families. In any event, the husband flew from Australia to Country B to meet the wife in early 2004.[9] At the time the parties met, the husband was operating a business, and the wife was working in her family's business.[10] The wife says that during the husband's stay in City J, the maternal family presented the husband with various gifts and paid for his travel expenses and accommodation.[11] This too is denied by the husband who says that his family "strongly opposes dowry".[12] Further, and although the wife places emphasis on her family's generosity by her affidavit filed on 25 March 2025, she does not quantify the quantum of the expenditure and given the effluxion of twenty years, I consider it to be immaterial to the decision to be made by me.
4. Following the parties' marriage in 2004, the wife emigrated to Australia in mid-2004.[13] On arriving in Australia, the wife lived with the husband at a property owned by the husband's brother-in-law at Suburb K in the outer suburbs of Sydney.[14] The wife says that the husband's brother-in-law did not charge them rent and in circumstances where the parties' expenses were nominal, they were able to save monies for a house deposit.[15]
5. At the time the wife migrated to Australia, the husband was working as a company director. His income was modest.[16] Soon after her arrival in Australia, the wife obtained casual employment as a community worker. She then held casual positions as an educator and as a sales assistant.[17] The wife says that her earnings were deposited into an account in the joint names of the parties and describes that fact as being "an early example" of the husband's significant control over her finances.[18] The wife did not give any evidence about the circumstances giving rise to the opening of the joint account or any evidence about pressure placed on her by the husband to place her salary into the account. Further, on the wife's own evidence, she opened a savings account in her own name in October 2005 into which she would transfer funds "every so often" from the parties' joint account so that the monies might earn interest.[19] This being so, I reject an assertion by the wife that the maintenance of the joint account represented a form of control or financial abuse within the meaning of s 4AB of the Act.
6. The wife says that in about 2005, and at the time that she completed TAFE courses in "beauty services", the husband permitted her to open her own account for any funds, which she may derive from her hobby as a beautician and/or sales online.[20] Whilst the wife invites a reader of her affidavit to infer that she required the permission of the husband to open the account, her own evidence is that the husband wanted her to "make sales [online], the funds generated from which would be deposited into this account".[21] The evidence suggests that as a consequence of the husband's urgings, the wife opened a personal bank account in September 2005.[22] The husband's evidence is consistent with the wife's evidence, namely, that the wife accumulated moneys from her earnings in her own bank accounts with L Bank and Commonwealth Bank.[23] The husband further says that he had no access to those accounts.[24] His evidence was not challenged.
7. In 2005, and at the time that she was completing her TAFE courses, the wife obtained employment as an admin officer.[25] Her salary was deposited into an account in the name of G Company. The husband registered that business in 2003 but says that he did not start operating it until 2006.[26]

1. The businesses established by the husband immediately prior to the parties' marriage and the businesses established during the parties' relationship are summarised below:

(a) In 2003, the husband commenced a training company, which for the purposes of this judgment I will refer to as "G Company". The husband says that the company only operated "on a small and nominal basis" save for a period of activity between 2006 and 2010. The husband says that since October 2023, he has "resumed partial activity" and has "handled a few student visa-related applications";[27]

(b) In 2006, the husband and the wife established a business, which provided services to students.[28] The parties were each directors and shareholders of the entity, which for the purposes of this judgment I will describe as "M Pty Ltd".[29] The wife says that she worked on a full-time basis in the business engaged as a professional. The wife says that this involved the provision of "[counselling to international students, recruiting international students and assisting them in enrolling into [Australian] colleges or universities]".[30] The husband disputes the wife's assertions. He says that the wife never worked on a full-time basis at M Pty Ltd. Particularly, he says that the wife only worked as a professional from mid-May 2009 having previously worked an admin officer.[31] The company was deregistered in 2023;[32]

(c) In late 2007, the husband established a registered training organisation, which for the purposes of this judgment I will refer to as "N Pty Ltd". The husband says that he established the business with the financial assistance of his brother-in-law and his sister.[33] The husband says that he held 300 shares in the business whilst his brother-in-law held 100 shares. The husband sold his shares in June 2016.[34] The wife says that between 2011 and 2015, she worked in the business on a casual, part-time basis to support the husband.[35] The wife says that despite working in the business until 2015, she only received one payment and said that she did not receive any superannuation payments.[36] However, the wife again says that she assumed that funds generated by the business would go to support the family;[37]

(d) In 2014, the husband and his brother-in-law established a company, which "initially undertook marketing of education to students on behalf of Registered Training Organisations". Later, the husband says that the company provided "contract training in partnership with other Registered Training Organisations".[38] The husband and his brother-in-law were directors and shareholders in the business, which for the purposes of this judgment I will describe as "O Pty Ltd". The husband's brother-in-law resigned as a director in early 2014[39] and the husband sold his shares in the company in May 2020 as a consequence of "rising debts, COVID-19 lockdown and high holding costs".[40] Again, the wife says that she worked on a casual, part-time basis in the business to support the husband as he developed the business "for the benefit of our family". Despite saying so, the wife complains that she did not receive any payment for work performed by her or receive any superannuation entitlements;[41]

(e) In 2017, the husband established a business, which I will describe as "H Pty Ltd". The business is a registered training organisation and is registered with P Authority. The husband says that he has been unable to "grow the business" due to the legal proceedings in several jurisdictions, which have engulfed the family since May 2021.[42]

1. In June 2006, the parties purchased a property at Suburb Q in the south-western suburbs of Sydney.[43] The circumstances giving rise to the purchase of the property were the subject of contested proceedings in the Supreme Court of New South Wales initiated by the husband's mother. I discuss this in further detail below.
2. Immediately on settlement, the parties and the husband's mother moved into the property and the husband says that his mother devoted herself to the family's needs including tasks such as cooking, shopping, cleaning and gardening. He says that his mother also assisted with the care of the children and made various financial contributions, which I discuss below.[44]
3. By 2015, and as a consequence of altered planning laws, the husband says that developers became interested in the property held by the parties.[45] The wife agrees that this was so, and accordingly, the parties sold the property in late 2017 for $2,300,000.[46]
4. The proceeds of sale of the Suburb Q property were used to purchase a property at Suburb C in November 2017.[47] The husband and the children have lived at that property since separation.

1. In mid-2021, the husband's mother commenced Supreme Court proceedings against the parties.[48] Particularly, the husband's mother claimed a beneficial entitlement (via a trust or equitable charge) to the Suburb C property. The husband supported her claim.
2. The application was dismissed in late 2023. At the same time, the Supreme Court made a direction that the caveat lodged by the husband's mother be withdrawn. The husband's mother has not complied with the order.
3. Notwithstanding the dismissal of the claim for equitable relief, the husband maintains that his mother contributed to the acquisition of the Suburb Q and Suburb C properties and met everyday expenses on behalf of the family.[49] I discuss this topic in further detail below.

1. In May 2021, the parties' daughter (who was then aged almost 14 years) attended at the Suburb C Police Station after school to make a report in relation to assaults, which she says she sustained at the hands of her mother.[50] The husband was not cross-examined about whether he orchestrated the report or about any events, which may have precipitated the actions of the parties' daughter in May 2021. The husband's unchallenged evidence was that he was at work at the time that the parties' daughter attended at the police station. He says that he called his mother at 3.30pm to make sure that the parties' daughter had returned from school and when he discovered that she had not done so, he contacted the parties' daughter to ascertain her whereabouts.[51]
2. Notwithstanding the absence of any evidence in relation to what may have brought about the events of May 2021, it is not controversial that in mid-2021, the wife was charged with the following offences:

(a) Two counts of common assault of the husband in mid-2015 and early 2018;

(b) One count of assault of the husband occasioning actual bodily harm in late 2019;

(c) One count of common assault of the parties' daughter in early 2020; and

(d) One count of assault of the parties' son occasioning actual bodily harm in late 2018.[52]

1. In early 2024, the Local Court of New South Wales found the wife guilty of all alleged offences save for an alleged assault of the husband in early 2018.[53] On appeal to the District Court of New South Wales, all convictions save for the conviction relating to a common assault of the parties' daughter were upheld.[54] As a consequence of her convictions, the wife was sentenced to a Community Correction Order commencing in early 2024 and expiring in early 2027.[55] The husband and the children were also protected by the terms of an Apprehended Domestic Violence Order. That order expires in late 2025.[56]

1. In mid-2021, the wife attended at a police station and made a complaint against the husband. This was two days after the parties' daughter had made a complaint of family violence against the wife.
2. Despite being charged with two counts of assault, stalk/intimidate and intentionally strangling a person without consent, the charges and an Apprehended Domestic Violence Order against the husband were dismissed in early 2023.[57]

1. It was the wife's case that significant sums of money ought to be notionally added back into the parties' pool of marital assets and allocated to the husband. Such was the wife's focus on the topic that at the commencement of trial, the wife sought what she described as addbacks exceeding $4,004,000. The primary addback in a sum in excess of $3,635,121 was described by the wife as follows:

Major transactions made by the respondent through the marriage. Some such transactions may equate to the respondent's interest in other properties.[58]

1. In support of her contentions in respect of addbacks, the wife's legal representatives initially sought to tender in excess of twelve thousand pages of material. Such an outcome could not be countenanced and accordingly, on 16 April 2025, the Honourable Justice Riethmuller made an order in the following terms:
   1. By no later than 10.00am on 17 April 2025, the wife file and serve a schedule of the disputed transactions she relies upon that contains no more than 50 entries in the following columns:
      1. Date of transaction;
      2. Amount of transaction;
      3. Description of transaction;
      4. Account that the transaction emanates from;
      5. Account that the transaction pays or transfers to;
      6. Paragraph number in the body of the relevant affidavit that the transaction relates to.
2. The wife did not comply with the order. Although the wife produced a schedule of fifty transactions[59] only four of them contained any reference to the wife's affidavit filed 25 March 2025 or the husband's affidavit filed 17 April 2025.
3. In the face of complaint by the wife's solicitor advocate, I indicated to him at the commencement of the trial that notwithstanding the orders made on 16 April 2025, I would permit cross-examination on additional transactions provided that those transactions had been referenced in the wife's affidavit filed 25 March 2025. If I permitted any other course, the husband would have been severely prejudiced particularly given that by his affidavit filed on 17 April 2025, he had already turned his mind to and provided explanations for several transactions.
4. Despite the latitude, which I gave to the wife's solicitor advocate, he made constant effort throughout the trial to cross-examine the husband with respect to transactions, which were not:

(a) Identified in the schedule prepared by the wife pursuant to the orders of 16 April 2025; or

(b) The subject of the wife's affidavit filed 25 March 2025 or the husband's response filed 17 April 2025.

1. Further, and despite my exhortations, it was not until the final day of trial that I received a Balance Sheet jointly prepared by the parties.[60] Even then, the addbacks sought by the wife in the sum of $1,852,213 exceeded the equity in the primary asset of the marriage, namely, the Suburb C property.
2. At various stages throughout the trial, the wife's solicitor advocate complained that there had been insufficient time to prepare the matter for trial. He also argued that the proceedings had effectively been stayed on account of the Supreme Court proceedings. Although it is the case that on 15 December 2023 the parties asked for the final hearing initially listed to commence on 19 February 2024 be vacated, it was never the case that the proceedings were stayed pursuant to the terms of s 79(5) of the Act. Further, as early as 22 March 2024, the parties and each of them were on notice that the competing applications would be fixed for trial in March 2025[61] (although as it happened, the matter was not listed until May 2025). By the time that the proceedings were listed for a final hearing before me, the competing financial applications had been on foot for three and half years. This being so, I reject any assertion that either party was prejudiced with respect to his/her preparation for trial.
3. On the penultimate day of trial, I received a schedule prepared by the wife's legal representatives, which identified thirteen transactions, which it was asserted gave rise to addbacks in the order of $2,448,666.37.[62] In addition:

(a) The wife expressed a difference of opinion in respect of the value of furniture and effects located at the Suburb C property. Those items had not been the subject of any valuation;

(b) The wife included as "to be valued" shares held by the parties in G Company, H Pty Ltd and a further company registered in 2017.[63] This is despite the fact that a Judicial Registrar made orders on 28 February 2022, which expressly invited the parties to tender a proposed minute of order with respect to any "outstanding valuation issues" at the next court event. Orders were also made on 13 June 2023 requiring the wife to provide a list of any valuations and/or expert reports, which the wife asserted were required for final hearing. There is no evidence that the wife complied with either order. Further, and at no stage during the litigation, did the wife file any application seeking orders for the valuation of the entities nor did she seek to obtain any expert evidence of her own;

(c) The wife sought to include in the Balance Sheet jewellery in a sum of $250,000. It will not surprise a reader of this judgment to understand that each party inculpated the other for the disappearance of the jewellery. I discuss this topic below;

(d) The wife sought to include the value of Motor Vehicle 1, which the wife says the husband transferred to his mother subsequent to the parties' separation.[64] The wife did so despite producing no evidence as to the value of the motor vehicle.

1. The monetary addbacks sought by the wife can be described by reference to an Aide-Memoire tendered by the wife's solicitor advocate[65] as follows:

(a) Five transactions between 22 December 2015 and July 2016 with a combined value of $497,645. It is asserted by the wife that these monies were withdrawn from a Westpac account in the name of N Pty Ltd;

(b) One transaction dated 24 September 2019 in a sum of $55,000 withdrawn from an account in the name of M Pty Ltd held at Westpac;

(c) Three transactions dated 25 August 2020, 29 January 2021 and 10 May 2021 with a combined value of $204,060. It is asserted by the wife that these monies were withdrawn from a Commonwealth Bank account held in the husband's sole name;

(d) Two transactions dated 11 December 2020 and 5 May 2021 with a combined value of $345,475. It is asserted by the wife that these monies were withdrawn from an account in the name of H Pty Ltd Pty Ltd.

(a) The wife says that on 29 May 2015, the husband transferred monies in a sum of $198,500 to his brother-in-law and sister from an offset account held by the parties at the Commonwealth Bank;[66] and

(b) The wife says that on 26 July 2016, the husband transferred monies in a sum of $113,500 to his sister from an offset account held by the parties at the Commonwealth Bank.[67]

1. Accordingly, and in addition to the question of contributions and the parties' respective needs, I am required to consider the following:

(a) Whether monies expended by N Pty Ltd, M Pty Ltd and H Pty Ltd at the direction of the husband ought to be notionally allocated to the husband and, if so, in what amount?

(b) Whether monies expended by the husband and withdrawn from his personal account and an account in the joint names of the parties ought to be notionally allocated to the husband and, if so, in what amount?

(c) Whether values ought to be included in the Balance Sheet with respect to the following:

(i) Furniture and effects at the Suburb C property;

(ii) Shares held by the parties in G Company, H Pty Ltd and a further company registered in 2017;[68] and

(iii) Jewellery, which was removed from a safety deposit box and cannot otherwise be located.

1. It was an agreed position between the parties that monies held by the wife in various accounts at separation ought to be characterised as an add back.[69] This was a sensible concession by the wife given her oral evidence that the monies had been spent on legal fees.

(a) An Amended Initiating Application filed on 17 April 2025;

(b) An affidavit in the wife's name filed on 25 March 2025;

(c) A Financial Statement dated 22 April 2025;[70]

(d) A summary of transactions prepared pursuant to directions made by the Honourable Justice Riethmuller on 16 April 2025;[71] and

(e) Some tendered documents.[72]

(a) A Response to Initiating Application filed on 20 April 2025;

(b) An affidavit in the husband's name filed on 17 April 2025;

(c) An affidavit in the name of the husband's sister filed on 15 April 2025;

(d) An affidavit in the name of the husband's mother filed on 17 April 2025;

(e) A Financial Statement filed on 20 April 2025; and

(f) Tendered documents.[73]

1. Although the husband filed an affidavit in the name of a former contractor of N Pty Ltd on 15 April 2025, his counsel advised me on the fifth day of trial that the husband did not rely on that evidence.

APPLICATION IN A PROCEEDING FILED 16 APRIL 2025

1. On 16 April 2025 at 8.52pm, the wife's solicitors forwarded to my Chambers an Application in a Proceeding together with an Affidavit in the name of the wife, such documents having been executed on 16 April 2025. The trial was listed to commence on Tuesday 22 April 2025 following the Easter period.
2. By her Application in a Proceeding, the wife sought:

(a) To be relieved of the orders made by the Honourable Justice Riethmuller on the same day;

(b) Leave to join the husband's sister and brother-in-law to the proceedings; and

(c) To dismiss the husband's application pursuant to Rule 10.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

1. I delivered an ex-tempore decision with respect to the application on the second day of trial being 23 April 2025. I dismissed the application on several grounds, namely, that:

(a) The schedule prepared by the wife did not comply with the orders made on 16 April 2025.[74] This being so, I did not have any confidence that if I permitted the wife to cross-examine with respect to additional transactions that I would be assisted in any way with respect to the wife's assertions as to notional property;

(b) The wife's application to join the husband's sister and brother-in-law to the proceedings was in terms similar to the wife's application filed on 20 January 2025 albeit on that occasion, the application related to the proposed joinder of the husband's sister only. I dismissed that application on 13 February 2025. Whatever the scenario, the wife's Further Amended Initiating Application, the transactions the subject of the schedule prepared pursuant to orders made on 16 April 2025 and the wife's failure to plead her case against the proposed third parties with any particularity meant that I was not satisfied that the facts asserted (insofar as I could discern the same), if proved, grounded the application. Particularly, I was cognisant of the decision of Full Court in B Pty Ltd and Ors & K and Anor [2008] FamCAFC 113; (2008) FLC 93-380 wherein the Court said as follows:

We do not accept that it is proper to allow joinder of third parties merely upon the formulation of a paragraph in, or to be added to, an application, on the basis that at trial facts to support the application may be asserted and proved. Sufficient facts must be asserted to demonstrate that, if proved, the law arguably provides the relief sought.[75]

(c) The wife did not persuade me that it was appropriate to make a Hadkinson order[76] or otherwise dismiss the husband's application.

1. Part VIII of the Act deals with financial matters relating to parties who are or have been married to one another. Section 79(1) of the Act authorises the Court to alter the property interests of the parties to a marriage. Part VIIIB of the Act provides specific provisions enabling the splitting of superannuation between spouses.
2. The major provisions relating to marital property division are contained within ss 75(2), 79(1), 79(2), and 79(4) of Part VIII of the Act. Pursuant to s 79(1) the Court is authorised to make such order as it considers appropriate in order to alter the interests of the parties to a marriage in relevant property.
3. Pursuant to s 79(2) the Court is actively prevented from making such an order unless it is satisfied that it is just and equitable to do so in all the circumstances prevailing. This follows from the use of the prohibitive words "shall not" in the relevant section.
4. Section 79(4) provides the mechanics of how a Court is to make an order altering marital property interests. It provides seven matters [in paragraphs (a) - (g)] to be considered, as relevant.
5. Paragraphs (a), (b), and (c) categorise contributions made by marital partners, which are relevant. Paragraph (d) directs the Court to take into account the effect of any order upon the earning capacity of either party to the marriage concerned.
6. Paragraph (e) directs the Court to consider a list of matters contained in s 75(2), which are germane to spousal maintenance, or the prospective positions of the parties concerned by reference to their respective financial resources, means and needs.
7. Finally, paragraphs (f) and (g) apply to child support and previously made parenting orders, as relevant. There is some overlap between these various provisions and not all will be applicable in every case.
8. Until 2012, the position in respect of the process to be applied to the resolution of matrimonial property cases was said to be well settled. The process entailed a four-step process, described by the Full Court as follows:

(a) Identification and valuation of the property of the parties;

(b) Identification and evaluation of contributions to the property (including property no longer owned by the parties) - the contribution phase - s 79(4)(a) to (c);

(c) Identification and assessment of the various matters in s 79(4)(d) to (g) including to the extent they are relevant, the matters in s 75(2) - the prospective needs phase; and

(d) Considerations of justice and equity.[77]

1. The general applicability of this four-step process was recast in light of what was said by the High Court in the decision of Stanford v Stanford delivered in 2012.[78] In that case, the majority stated that:

[35] It will be recalled that s 79(2) provides that '[t]he 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'. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.

[36] The expression 'just and equitable' is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.[79]

1. Accordingly, considerations of what is just and equitable favour all applications pertaining to property settlement. What is fair is impossible to define with certitude and must depend on the prevailing circumstances. However, care must be taken to avoid conflating the stipulation contained in s 79(2) with the discretionary exercise contained in s 79(4).
2. In Bevan & Bevan the Full Court summarised three fundamental propositions relating to the interaction between s 79(2) and s 79(4),[80] which can be summarised as follows:

(a) Determination of what is just and equitable begins with an identification of existing property interests;

(b) The discretion provided by s 79 must not proceed on any assumption that any settlement of property should be different from those existing property interests, as determined by principles of common law and equity;

(c) However, a determination that a person has an entitlement to a division of property by reference only to s 79(4) would be wrong as it would ignore the express statutory requirement of s 79(2) or conflate the two considerations.

1. As discussed by the Full Court in Bevan, whether it is just and equitable to make any particular property order is invariably and inextricably interwoven with questions of contribution arising under s 79(4) and the parties' financial and relationship history with one another.
2. The four-step approach remains a valid approach to matrimonial property cases. In Bevan the majority of the Full Court (Bryant CJ and Thackeray J) said as follows:

[65] Although the High Court did not disapprove the four step process, we accept it was not approved either...However, the High Court's decision serves to refocus attention on the obligation not to make an order adjusting property interests unless it is just and equitable to do so.

...

[71] Stanford will also serve as a reminder that the four step process 'merely illuminates the path to the ultimate result'.[81]

1. In the first step, I must ascertain what are the parties' assets and liabilities available to be divided between them. The normal rule is that those assets are to be determined as at the date of trial.[82]
2. In the second step, I must ascertain the contributions, which each party has made towards the pool of assets. Contributions fall into two broad categories. The first kind is contributions to the property: financial contributions and non-financial contributions, made directly or indirectly, by or on behalf of a party to the marriage to the acquisition, conservation or improvement of any of the property of that relationship. The second kind is contributions to the welfare of the family: in the words of s 79(4)(c):

the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent.[83]

1. It is clear from the authorities that this second kind of contribution must be given appropriate weight and is not to be treated as a token matter or as a contribution which is inherently less valuable or important than a financial contribution to property.
2. In its totality, s 79(4) requires the Court to examine the entirety of contributions, both financial and non-financial, to the welfare of the family, as well as to the acquisition, conservation and improvement of any asset which may be individually identified.
3. The task conferred is to weigh and assess contributions, which are necessarily disparate in nature. Contributions within the framework of a marriage which are different in quality and nature - that of a homemaker and parent, which is not readily quantifiable in dollar terms, and that of a wage earner; - must be compared. It has been referred to as a holistic exercise.[84]
4. As a consequence, contributions are not automatically required to be tied to the acquisition of any particular item and may be taken into account in a total sense. The exercise is not a purely arithmetical or accounting one.

1. On the final day of trial, the parties tendered a Joint Balance Sheet.[85] By reference to that document, I set out below the parties' existing assets available for division:

Property at Suburb C in the State of New South Wales

Westpac Bank account ending ...31

(in the name of G Company)

TOTAL NET NON-SUPERANNUATION AND SUPERANNUATION ASSETS

1. Despite the provision of the Joint Balance Sheet, the wife also provided me with an Aide Memoire, which sought to include the following items in the list of assets available for distribution:

1. The wife's solicitor advocate did not explain why the Joint Balance Sheet provided me with a value for the furniture and effects at the Suburb C property of $10,000 whereas the Aide Memoire ascribed a value of $15,000. Absent any explanation by the wife's solicitor advocate and/or any valuation to support the wife's contention that the furniture and effects have a value of $15,000, I will bring the furniture and effects to account at a sum of $10,000 as referred to in the Joint Balance Sheet. By her Further Amended Initiating Application filed on 17 April 2025, the wife did not seek the retention of any specific items held at the Suburb C property and this being so, I will bring the furniture and effects to account as an asset of the husband.
2. With respect to the value of shares in G Company, H Pty Ltd and the entity referred to by the wife as T Company, I referred above to the failure of the parties to obtain valuations despite orders giving them the opportunity to do so. Given that the wife ran her case in this manner, there is no basis for me to include G Company, H Pty Ltd or T Company in the list of assets available for distribution. Further, neither party made any submission as to the value of these entities.
3. As to the value of the wife's jewellery, the husband says that during the parties' marriage, the wife "accumulated a sizeable jewellery collection which included gold and precious gemstones through gifts from me, my family and purchased by her on her visits to Country B and USA without matrimonial monies".[86] The wife by her written evidence says that the husband removed the jewellery from the parties' "joint locker".[87] I understand this to be a reference to two Safety Deposit Boxes held by the parties at the Commonwealth Bank of Australia, U Street.[88] The wife describes the jewellery as comprising gold and silver bars, coins, precious gemstones, jewellery, glass and silver items.[89]
4. By her oral evidence, the wife asserted that the husband had attended at the safety deposit box in November 2019 and removed the items referred to in the preceding paragraph. She also said that she had opened an alternate safety deposit box at Westpac following that event. It was the wife's contention that the husband removed the jewellery as he considered that by November 2019 the relationship between the parties was concluded. In support of that assertion, the wife refers to an alleged assault perpetrated by the husband in about late 2019.[90] The husband denies that he assaulted the wife[91] and by his oral evidence, the husband said that he "wanted to keep it [the marriage] intact". Indeed, the parties lived together for a further period of eighteen months.
5. On cross-examination, the husband conceded that he attended at the safety deposit box in November 2019 and that the wife gave him the key to enable him to do so. He admits that he removed "three small items of gold ornaments" belonging to his mother. He says that his mother requested that he do so "for the festive and holiday period".[92] Otherwise, the husband denied removing any of the items of jewellery and says that he returned the key to the wife the same day.
6. I am not persuaded that the evidence as presented by the wife enables me to find that the husband withdrew items of jewellery from the safety deposit box in November 2019 as so asserted. When arriving at this conclusion, I am troubled by the fact that:

(a) The husband returned the key for the safety deposit box to the wife on the same day that it was provided to him, namely, November 2019;

(b) The husband's written evidence was that the wife "was the last person to access the safety deposit box at the Commonwealth Bank [in] March 2021 and remained silent until November 2021, when she first disclosed that both Commonwealth Bank lockers were empty".[93] That evidence was not the subject of challenge by the wife's solicitor advocate; and

(c) There is no evidence that either party made a notification to his/her insurer or police in respect of the missing jewellery.

1. For these reasons, I consider it to be equally plausible that the husband or the wife removed the jewellery.
2. Even if I was prepared to make a finding that the husband removed the jewellery and other objects stored in the safety deposit boxes, I have no evidence whatsoever, which would enable me to place a value on those items. Despite the urgings of the wife's solicitor advocate, there is simply no evidence whatsoever, which would enable me to conclude that the jewellery stored in the safety deposit boxes had a value of $250,000. This being so, I will exclude the items from the list of assets available for distribution.
3. The wife also asserts that a value ought to be placed on Motor Vehicle 1, which is now in the possession of the husband's mother. Particularly, the wife says that the husband transferred the motor vehicle to his mother despite her inability to drive.[94] The husband denies the allegation and cross-examination on the topic does not enable me to determine:

(a) Whether the husband's mother is now the registered owner of the motor vehicle; or

(b) The value of the motor vehicle.

1. Accordingly, I will exclude Motor Vehicle 1 from the list of assets available for distribution.

Transactions from a Westpac Account in the name of N Pty Ltd

1. As discussed above, the wife says that monies withdrawn from a Westpac account in the name of the entity now known as N Pty Ltd on five occasions between 22 December 2015 and July 2016 ought to be characterised as addbacks. Whilst the wife makes that assertion, she elected not to comply with Orders made by the Honourable Justice Riethmuller on 16 April 2025 making the task of my determination more difficult.
2. Before addressing the transactions, the husband says as follows with respect to his involvement in N Pty Ltd:

(a) He registered the entity in October 2007 but it "remained dormant until 2010 due to a lack of funds";[95]

(b) In 2011, with the financial assistance of his brother-in-law and sister as well as his own savings, he N Pty Ltd as a registered training organisation such registration having been afforded to the entity by P Authority in mid-2011;[96]

(c) The husband initially held 300 shares whilst his brother-in-law held 100 shares in N Pty Ltd. The husband says that in circumstances where the "business proved too demanding", he "sold...[his] shares and exited [N Pty Ltd] in June 2016".[97] The husband's version of events is supported by a Form 484, "Change to company details" lodged by the company with the Australian Securities and Investments Commission in August 2016. That document indicates that:

(i) The husband ceased being a director and secretary of N Pty Ltd on 15 June 2016; and

(ii) He sold his shares to a third party on 15 June 2016.[98]

1. The wife describes the transactions as follows:

1. The husband was challenged with respect to the first four transactions set out above. The husband's oral evidence was as follows:

Transactions dated 22 December 2015, 24 December 2015, 14 March 2016

1. The husband admits that N Pty Ltd paid to his brother-in-law and shareholder a sum of $88,023 on 22 December 2015. He says that the monies were in repayment of a loan from his brother-in-law to the company and that:

(a) There was no loan agreement; and

(b) The terms of any loan had not been discussed between the husband in his role as a director of N Pty Ltd and his brother-in-law.

1. The husband gave similar evidence with respect to monies advanced by his brother-in-law on 24 December 2015 and 14 March 2016 as well as monies advanced by his sister on 14 March 2016. That is, and prior to the advancing of the monies, neither N Pty Ltd, the husband, his brother-in-law or his sister:

(a) Executed a loan agreement; or

(b) Discussed the terms of any loan.

1. I was not provided with any information from the husband, which would enable me to determine when the monies were advanced. The husband's evidence was simply in the following terms:

I had an in-house accountant who would manage the bookkeeping. I asked him to go back in time and identify the loans from [my brother-in-law]. I repaid the money to him.

1. The husband by his affidavit filed on 17 April 2025 deposes to:

(a) Establishing the registered training organisation with financial assistance from his brother-in-law and sister;[99]

(b) Borrowing funds from family and friends since 2010 "to support the establishment, operation, or expansion of my business, as needed".[100] The husband also says that "[t]hese amounts have been repaid when the business was in a financial position to do so";[101]

(c) At [303] and [304] of his affidavit, the husband deposes to the movement of monies between accounts held by him and his sister and brother-in-law. I accept that the amounts referred to in those paragraphs do not relate to the transactions the subject of the wife's complaint, however, the husband's evidence does support a conclusion that monies flowed regularly and freely between the husband and members of his family;

(d) His brother-in-law placing monies into accounts for the benefit of N Pty Ltd;[102] and

(e) N Pty Ltd being the subject of an audit in March 2013[103] and the transfer of monies from the parties' joint account into an account of N Pty Ltd for this purpose.[104]

1. The husband's evidence is consistent with the evidence of his sister who says that:

(a) As early as mid-2006, she together with her husband lent monies to the parties;[105]

(b) Between May 2015 and January 2017, she borrowed from the husband amounts totalling $312,000 and repaid the same;[106]

(c) Between May 2017 and April 2021, the husband's sister and her husband loaned to the husband monies in the order of $164,972, whilst those monies were largely repaid during the period January 2020 to August 2020;[107] and

(d) As a consequence of the Covid-19 pandemic and its effect on the parties' businesses and the litigation, she has financially supported her brother and the children.[108]

1. With respect to the transactions the subject of the wife's claim for addbacks, the wife's solicitor advocate on several occasions throughout the trial referred to the decision of the Full Court in Boulton & Boulton (No 3) [2024] FedCFamC1F 269 and particularly [38] of that decision wherein the Full Court said as follows:

The primary judge found that the affidavit of evidence of each of the parties was "replete with minutiae" (at [576]), and that every possible allegation was made and refuted. Cast against that background, the husband was requested to disclose an explanation as to the use and application of significant funds in his control. He did not do so. All evidence must be weighed and assessed in light of a party's capacity to produce it. The process of drawing inferences from established facts simply involves logical deduction (G v H [1994] HCA 48; (1994) 181 CLR 387 at [4]; Mead v Mead [2007] HCA 25; (2007) FLC 93-327 at [13]). It was open to the primary judge to find that such lack of explanation permitted an inference that the husband retained the benefit of those funds.

1. Having cited Boulton, the wife's solicitor advocate invited me to draw an inference that with respect to the transactions referred to paragraph 81 above, the husband retained the benefit of those funds. I have difficulty with that submission in circumstances where:

(a) The transactions the subject of the claim for an add back were not referred to in the wife's affidavit material. The schedule prepared by the wife pursuant to the orders made by the Honourable Justice Riethmuller on 16 April 2025 was, for the reasons already discussed, deficient;

(b) Unlike the husband in the litigation the subject of the Full Court's decision, the husband in this litigation gave to the best of his ability, an explanation as to the relevant transactions. When I say, "best of his ability", I note that the transactions the subject of the claim were made nine or ten years ago. They were not the subject of the wife's affidavit filed in preparation for trial, and it was my impression that the husband explained the transactions as best as he could do so given the manner in which the allegations were put to him by the wife's solicitor advocate; and

(c) The husband's evidence when read together with the wife's evidence causes me to conclude that there was a stream of money, which flowed between the husband and his sister and brother-in-law in the form of intrafamily loans. Whilst I accept the criticism made by the wife's solicitor advocate that the loans were not documented, I equally accept the evidence of the husband and his sister that monies were advanced from time to time and then repaid.

1. Simply, I am not persuaded that the monies paid by the husband to his sister and brother-in-law were transactions, which were designed to deplete the assets available for distribution.

1. The oral evidence of the husband and the documentary evidence described above enables me to find that the husband was neither an officeholder nor a shareholder in N Pty Ltd at the time of the fifth transaction on 25 July 2016 in a sum of $159,622. This being so, I consider that it would be inappropriate for the Court to require the husband to account for a payment, which was made absent his authority or control.

Transactions from a Commonwealth Bank Account on 25 August 2020, 29 January 2021 and 10 May 2021

1. As discussed above, the wife invites the court to add back monies with a combined value of $204,060 to the assets available for distribution between the parties. The monies were withdrawn across three transactions on 25 August 2020, 29 January 2021 and 10 May 2021. It is asserted by the wife that these monies were withdrawn from a Commonwealth Bank account held in the husband's sole name as follows:

1. In his defence of the transactions listed above, and at paragraph 303 of his affidavit filed on 17 April 2025, the husband identifies that between 7 May 2017 and 29 April 2021 and across nine transactions, he borrowed monies in the order of $164,972.36 from his sister and brother-in-law. He further says that between 29 January 2020 and 1 May 2020, he repaid his sister a sum of $162,977.36.[109]
2. In respect of the two impugned transactions dated 25 August 2020 and 10 May 2021, the husband says as follows:

(a) On 25 August 2020, he repaid his sister and brother-in-law a sum of $49,015 by way of a bank cheque such sum inclusive of a fee of $15 charged by the Commonwealth Bank for a cheque.[110] By that stage, it appears that the husband had borrowed monies in the order of $108,087 from his sister and brother-in-law but only repaid monies in the order of $61,096;[111]

(b) On 10 May 2021, the husband withdrew a sum of $115,045, which he says he utilised to satisfy:

(i) a debt owing by M Pty Ltd to a trust controlled by a man I shall describe as Mr V. For the purposes of this judgment, I shall refer to the Trust as the W Trust;

(ii) a debt owing by M Pty Ltd to two individuals who had loaned him monies such loans facilitated by Mr V.

1. With respect to the transaction, which occurred on 25 August 2020, the husband's sister explained by her written evidence that it was her practice and the practice of her husband to loan monies to the husband and the wife and vice-a-versa.[112] Her evidence on this topic was not undermined on cross-examination. She presented as an angry witness who was frustrated that she was been questioned in relation to various transactions and as discussed above, brought into the litigation. On balance, I am not persuaded that I ought to include the sum of $49,015 in the list of assets available for distribution between the parties. I say this for the following reasons:

(a) The evidence of the husband and his sister was not undermined by cross-examination. Particularly, cross-examination of the husband's sister did not cause me to doubt her evidence that from time to time she and her husband borrowed monies from the husband and the wife. The explanation given by the husband and his sister as to the fact of borrowings from time to time and the repayment of the monies was both plausible and consistent;

(b) The written evidence of the husband as it appears above can do nothing other than cause a reader to conclude that the husband was simply reimbursing his sister for monies advanced to him. Particularly, and as discussed above, it appears that by the time of the transaction of 25 August 2020, the husband had borrowed monies in the order of $108,087 from his sister and brother-in-law but only repaid monies in the order of $61,096;[113]

(c) Even if I am wrong about this, the evidence of the husband's sister, which was not challenged, was that from time to time the husband would advance sums of monies to his sister and brother-in-law and on occasion, they would advance monies to the husband. Simply, and in respect of the transaction in a sum of $49,015 on 25 August 2020, I am not persuaded that the transaction represents a premature distribution of property, or a course of conduct designed to reduce the value of the matrimonial assets.[114]

1. The husband says that on 10 May 2021, he withdrew a sum of $115,045, which he utilised to satisfy:

(a) A debt owing by M Pty Ltd to a trust controlled by a man I shall describe as Mr V. For the purposes of this judgment, I shall refer to the Trust as the W Trust; and

(b) A debt owing by M Pty Ltd to two individuals who had loaned him monies such loans having been facilitated by Mr V.

1. The husband says that the loans were arranged by Mr V and advanced during the period 2011 and 2013.[115] On cross-examination, the husband says that he and Mr V became friends at university and for a short time, operated a business together. He says that Mr V loaned M Pty Ltd monies in the order of $50,000. He further says that Mr V arranged for two individuals to loan him monies in a sum of $35,000 and $30,000 respectively.
2. On cross-examination, the husband says that the parties were struggling financially. His evidence was to the effect that the male child had been born, and the parties were in his words, "juggling their finances". The wife makes the point that the sum of $115,045 was repaid to the trust and the two individuals in May 2021 being two days prior to separation and two days prior to the making of an Apprehended Domestic Violence Order, which prevented the wife from returning to the Suburb C property.[116] The wife was accordingly suspicious of the transaction although neither party deposes to any event, which occurred in May 2021, which might cause an observer to conclude that the husband had resolved in his mind to separate from the wife. In fact, the catalyst for the parties' separation on the wife's own evidence seems to have been the making of an Apprehended Domestic Violence Order, which identified the husband and the children as protected persons.[117]
3. In any event, and although the husband's explanations with respect to the sum of $115,045 appear logical, I am troubled by the following:

(a) The husband says that the loans were obtained by M Pty Ltd, but he repaid the funds from an account in his sole name.[118] I was not taken to any evidence, which enables me to find that the monies advanced by the husband in repayment of the alleged loans were recorded by way of a director's loan or otherwise. Indeed, the detailed balance sheet as at 30 June 2020 for M Pty Ltd does not identify any director's loan(s) whatsoever.[119] This is remarkable given the husband's evidence (supra) that the loans were advanced to M Pty Ltd during the period 2011 to 2013;

(b) The financial statements for M Pty Ltd for the year ended 30 June 2020 identify that in the year ended 30 June 2019, the entity had loans from "other person(s)" of $59,420. That sum increased to $65,014 in the 2020 financial year.[120] If I accept the husband's evidence that he did not make any repayments of the loans to the W Trust or to the two individuals between 2011 and 2021, then it is curious that the entire loan amount of $115,000 does not appear as a liability of M Pty Ltd in its Balance Sheet; and

(c) The terms of the loans advanced by the trust and the two individuals are not clear.

1. The Full Court of the Family Court in Biltoft & Biltoft [1995] FamCAFC 45; (1995) FLC 92-614 indicated that a Court may properly determine not to take into account or to discount the value of an unsecured liability in certain circumstances. Such liabilities include but are not limited to a liability which is vague or uncertain or if such liability is unlikely to be enforced or if it was unreasonably incurred.[121] In this case, I have no evidence, which identifies with any precision when the monies from the W Trust and/or the two individuals was advanced to M Pty Ltd or the terms of any loan. Absent any information, it is possible that by May 2021, W Trust and the two individuals would have been prevented from commencing any litigation to recover the monies in any event by operation of s 14(1) of the Limitation Act 1969 (NSW). This is because neither the husband, M Pty Ltd, the W Trust or the two individuals made effort to contract out" of the common law position. In Olgilvie v Adams [1981] VicRp 92; [1981] VR 1041, Fullagar J said as follows at 1043 (as cited in VL Finance at [40]):

The common law has always regarded the fact of indebtedness as a continuing detention by the debtor of the creditor's money, and this whether the creditor brought an action of debt or an action in indebitatis assumpsit. Therefore if A lends money to B, then instantly B is detaining A's money. In order to prevent a cause of action for recovery arising in A instantaneously on paying the money, the parties must expressly contract out of that situation by words clearly inconsistent with that situation. ....

1. For these reasons, I am not persuaded that in May 2021, there was any reason for the husband to repay the monies allegedly owed to the W Trust or the two individuals. The documentary evidence does not enable me to find that the loans in fact existed or that the third parties had made any demand for the repayment of the monies. As discussed, the financial statement for M Pty Ltd for the financial year ended 30 June 2020 as to the existence of any loan(s) is inconsistent with the husband's oral evidence. I consider that the husband for reasons known only to him engaged in a course of conduct designed to prematurely distribute the assets of M Pty Ltd and/or acted in a manner which was reckless and without any consideration of the wife's interest in M Pty Ltd.

1. By the Aide Memoire tendered by the wife's solicitor advocate, the wife refers to a transaction in a sum of $40,000 being an amount withdrawn by the husband from a Commonwealth Bank account held in his sole name on 29 January 2021.[122] I say as follows with respect to this transaction:

(a) The transaction is not one referred to in the affidavit material of the wife or the husband;[123] and

(b) The transaction was not the subject of any cross-examination.

1. For these reasons, I am unable to make any finding about the genuineness of the transaction, its purpose or whether it is appropriate to characterise the transaction as an "addback" or otherwise take it into account for the purposes of my final determination.

Transactions from a Commonwealth Bank Account on 11 December 2020 and 5 May 2021

1. The wife asserts that the following transactions from a Commonwealth Bank Account in the name of H Pty Ltd Pty Ltd ought to be characterised as "addbacks":

(a) A sum of $39,900 withdrawn and paid to the respondent's niece on 11 December 2020; and

(b) A sum of $305,575 withdrawn on 5 May 2021.[124]

1. In respect of the transaction on 11 December 2020, the husband says that:

(a) On 16 September 2020, H Pty Ltd Pty Ltd borrowed $40,000 from his niece;

(b) A sum of $100 was repaid on 5 December 2020; and

(c) A further sum of $39,900 was repaid on 11 December 2020.[125]

1. The deposit of $40,000 from the husband's niece is demonstrated by way of a bank statement in the name of H Pty Ltd for the period 1 August 2020 to 31 October 2020.[126] Further, I was provided with bank statements in respect of the transactions on 5 December 2020 and 11 December 2020[127], which in fact show the return of monies to the husband's niece. Whatever the reason for the provision of the loan to H Pty Ltd, I am not troubled because the monies were borrowed and returned within a short period of time. Having regard to this evidence, I am not persuaded that the transaction represents a premature distribution of property, or a course of conduct designed to reduce the value of the matrimonial assets.[128] This being so, I do not consider it is appropriate to add a sum of $40,000 to the list of assets available for distribution.

1. With respect to the transaction on 5 May 2021 in a sum of $305,575, the husband says that the monies were applied to the following:

(a) An invoice in the name of an entity, which for the purposes of this judgment I will describe as Z Company in a sum of $52,500;

(b) An invoice in the name of an entity, which for the purposes of this judgment I will describe as BB Company in a sum of $45,000;

(c) An invoice in the name of an entity, which for the purposes of this judgment I will describe as AA Company in a sum of $48,000; and

(d) Two invoices in the name of an entity, which for the purposes of this judgment I will describe as CC Company in a sum of $80,000 each.

1. The husband's written evidence about these payments was brief. He said as follows:

Given COVID and my pre-occupation with my defence of the criminal charges against me (which were dismissed after hearing), these family law proceedings and full time [sic] care of the children, the deliverables regarding the above projects were put on hold. Due to my negotiation with the vendor they provided me with credit notes as above to expire on 30 June 2025 in the amount of $227,500.[129]

1. The invoice issued by Z Company on 26 April 2021 in a sum of $52,500 was directed to H Pty Ltd. The description of services the subject of the invoice is as follows:

[Training Software Program] (Advanced 70% for the Total Contract value $75,000).[130]

1. The account was paid by H Pty Ltd by cheque drawn on 5 May 2021.[131]
2. Cross-examination on the topic of services offered by Z Company proceeded as follows:

Wife's solicitor advocate: Was it intended that [Z Company] would provide a website?

Husband: A data management system - web based.

Wife's solicitor advocate: Is it your evidence that because of the separation, you never turned your attention to [Z Company] and it didn't go ahead

Husband: Yes.

Wife's solicitor advocate: Following separation, the project in respect of software services didn't go ahead?

Husband: No.

1. On 12 December 2024, Z Company issued a Credit Note in a sum of $26,250 being half of the sum paid by H Pty Ltd on 5 May 2021.[132] The credit note is expressed to expire on 30 June 2025. The terms governing the credit note further identify that that the credit note "is strictly for internal settlement purposes only and cannot be assigned, exchanged, or encashed".[133]
2. As with the other invoices the subject of this tranche of the evidence, the husband gave no evidence about:

(a) Why the work the subject of the invoice has not been performed in the intervening four years even though on his evidence, he has continued to operate H Pty Ltd (supra); or

(b) Any efforts made by him to obtain an extension of time within which to arrange for the completion of the work the subject of the invoice. Absent any efforts by him, any credit owing to H Pty Ltd will expire on 30 June 2025. The husband was not provided with any guarantee whatsoever that this judgment would be delivered by 30 June 2025, nor did the husband explain whether the delivery of this judgment had some nexus to whether he would enter negotiations to extend the term of the Credit Note. This observation applies to each of the invoices, which were paid by H Pty Ltd on 5 May 2021.

1. The invoice issued by AA Company on 21 April 2021 describes the services the subject of the invoice as follows:

[Training Software program] compliant Software.

[Company] Website - Design and Development.[134]

1. The account was paid by H Pty Ltd on 5 May 2021.[135]
2. When asked about the domain name for the website being developed, the husband said as follows:

Wife's solicitor advocate: What is the domain name?

Husband: It wasn't expected that things would unfold in such a bad manner. The project is delayed. The website is delayed.

1. The husband gave no further evidence with respect to the invoice. He did, however, produce a Credit Note issued by AA Company on 9 December 2024, which indicates that:

(a) H Pty Ltd was provided with a Credit Note in a sum of $36,000. It is expressed to be a "partial adjustment against INV... dated 21 April 2021"; and

(b) The Credit Note expires on 30 June 2025.[136]

1. Despite the approaching deadline of 30 June 2025, the husband did not give any evidence that he was making effort to extend the expiry date. Further, the husband gave no evidence whatsoever about:

(a) Why H Pty Ltd paid such a significant sum of money to AA Company one week prior to separation in circumstances where the time for the payment of the invoice, namely, 1 May 2021, had already passed;

(b) Why the work the subject of the invoice has not been performed in the intervening four years despite the fact that on his evidence, he has continued to operate H Pty Ltd (supra); or

(c) Any efforts made by him to negotiate an extension of time within which to arrange for the completion of the work the subject of the invoice. Absent any efforts by him, any credit owing to H Pty Ltd Pty Ltd will expire on 30 June 2025.

1. On 22 April 2021, CC Company issued H Pty Ltd two invoices in a sum of $80,000 each. The description of work to be performed by CC Company as it appears on Invoice H Pty Ltd ... is as follows:

Setting up Overseas office, training facilities and marketing courses in [Country B].[137]

1. The description of work to be performed by CC Company as it appears on H Pty Ltd ... is as follows:

Advance Rent for [Country B] office and training facilities, salaries for staff and office management for 12 months.[138]

1. As discussed above, each of the invoices were paid in full by H Pty Ltd on 5 May 2021, one week prior to separation.[139]
2. The husband gave oral evidence that:

(a) The "project didn't unfold". I understood this to be a reference by the husband to the establishment of an office by H Pty Ltd in Country B;

(b) He "didn't have capacity or strength to drive this - I would need to be engaged in it". Again, I understood from the husband's evidence that he did not consider that he had the fortitude to proceed with the establishment of an office in Country B by H Pty Ltd; and

(c) He is a "good friend" of the proprietor of CC Company . Particularly, the husband gave evidence that he had known the proprietor of that entity since 2007. In an email communication dated 2 April 2007, the husband describes himself and the proprietor of CC Company as having a "personal relationship (brotherhood)".[140]

1. On 29 November 2024, CC Company issued two credit notes to H Pty Ltd each in a sum of $60,000. Again, the credit notes are expressed to expire on 30 June 2025 and are otherwise expressed to be "non-transferable and non-redeemable for cash".[141]
2. In respect of each of the invoices and the credit note, the husband gave oral evidence that no office was ever established in Country B. Further, the husband gave no evidence whatsoever of:

(a) The actual steps taken by him on behalf of H Pty Ltd to establish an office in Country B. For example, the husband gave no evidence about the execution of a lease or the termination of the same or the engagement of staff to operate the office;

(b) Any effort made by him to extend the expiry date of the credit notes such that as a minimum, the sum of $120,000 would not be wasted;

(c) Any effort made by him to establish an office in Country B in the four years subsequent to the issuing of the invoices; and

(d) The circumstances in which the credit notes came to be issued or why it was that credit notes were not issued for the total amount of $160,000.

1. On 22 April 2021, BB Company issued an invoice to H Pty Ltd in a sum of $45,000 being for the provision of "[...] Courses for twelve months".[142] BB Company was also controlled by the proprietor of CC Company, namely, a person who was a "good friend" of the husband.
2. The invoice was paid by H Pty Ltd Pty Ltd on 5 May 2021.[143] It was followed by a Credit Note issued by BB Company on 2 December 2024 in a sum of $45,000. The credit note was expressed to be "non-transferable, non-redeemable for cash, and will expire on 30 June 2025".[144] Again, the husband gave no evidence whatsoever of:

(a) Any effort made by him to extend the expiry date of the credit note such that the sum of $45,000 would not be wasted;

(a) Any effort made by him on behalf of H Pty Ltd to obtain the provision of "[Training] Courses" in the four years subsequent to the issuing of the invoices. This is despite the fact that on his own evidence, the husband has continued to operate H Pty Ltd; or

(b) The circumstances in which the credit note came to be issued.

Conclusion as to the amounts paid by H Pty Ltd on 5 May 2021

1. The sums withdrawn from the account held by H Pty Ltd with the Commonwealth Bank of Australia and paid to the third-party entities referred to above trouble me for the following reasons:

(a) The evidence given by the husband on the topic was brief. He devoted only two sentences to the topic in his affidavit filed on 17 April 2025. Given the significant quantum of the transactions made on 5 May 2021 by H Pty Ltd it is not unreasonable to conclude that the husband ought to have devoted significantly more attention to the topic by his affidavit material. He did not do so despite his advanced knowledge of the wife's concerns as expressed at paragraph 416 of the wife's affidavit filed on 25 March 2025;

(b) The husband's oral evidence did not provide any clarity about the works the subject of the invoices, why it was that the works had not been performed in over four years or why it was that credit notes were issued albeit not in the total sums paid by H Pty Ltd. It defies commonsense that in circumstances where the husband paid a sum in excess of $305,000 to third parties that he would not have made efforts to secure the production of any work the subject of the relevant invoices despite the husband's own evidence that he has continued to operate H Pty Ltd in the intervening four-year period;

(c) It is beyond comprehension that the husband would permit a circumstance to arise whereby each of the Credit Notes will expire on 30 June 2025. He gave no evidence that on behalf of H Pty Ltd he had sought an extension of the terms of the Credit Notes and on its face, the husband seems quite content for the monies to simply be wasted; and

(d) The husband's responses to cross-examination by the wife's solicitor advocate were not convincing. At its highest, it seems that the husband had engaged the third parties to conduct various projects only to "mothball" those projects even though on his own evidence, the husband has continued to operate H Pty Ltd.

1. As discussed, the wife's solicitor advocate invites me to treat the sums paid by H Pty Ltd on 5 May 2021 as an "add back". It is difficult for me to do so in circumstances where the monies belonged to an entity, which still exists. I was not provided with any comprehensible explanation by the wife's solicitor advocate about why the entity was not valued. Similarly, the entity was not brought to account by way of the Balance Sheet tendered by the husband's counsel on behalf of the parties on 21 May 2025.[145]
2. I am satisfied that the sum of $305,575 was "wasted" by the husband in his capacity as a director of H Pty Ltd in the sense that the husband dissipated property absent the consent or knowledge of the wife: (Kowaliw and Kowaliw [1981] FamCA 70; (1981) FLC 91-092 at 76,644 ("Kowaliw"). Indeed, I find that the conduct of the husband was not reasonable and that the monies expended by him fall into the category of "waste" as that expression was defined in Kowaliw at 76,644:

As a statement of general principle, I am firmly of the view that financial losses incurred by the parties or either of them in the course of the marriage whether such losses result from a joint and several liability, should be shared by them (although not necessarily equally) except in the following circumstances:

(a) where one of the parties has embarked upon a course of action designed to reduce or minimise the effective value or worth of matrimonial assets; or

(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.

1. Further, I have formed a view that in the intervening four years since the invoices were issued by the entities described above, the husband has acted in a reckless manner particularly with respect to his indifference about:

(a) Firstly, obtaining credit notes, which did not reimburse H Pty Ltd in full for the monies expended by that entity in May 2021; and

(b) Secondly, being careless about the approaching deadline of 30 June 2025 in respect of each Credit Note and taking no steps to secure the funds for the benefit of H Pty Ltd.

1. I consider that the husband's reckless behaviour has two possible motivating factors, namely:

(a) It might be that the husband does not care about the value of H Pty Ltd. That is a matter for him, but the wife ought not be a victim of such recklessness; or

(b) It might be that the invoices rendered in May 2021 were a sham and, as asserted by the wife, designed to diminish the assets available for distribution between the parties.

1. I cannot make a definitive finding that the invoices rendered by the third-party entities in May 2021 were a sham. However, I am prepared to make a finding that the husband was simply reckless with respect to the expenditure of the monies at first instance and thereafter, reckless with respect to the recovery of the monies. As discussed, I am not persuaded that in the intervening years the husband has done enough to cause the works the subject of the invoices to be performed or otherwise to recover the monies in full.

1. By the Aide Memoire tendered by the Wife's solicitor advocate in support of a claim for addbacks[146], the wife claims a sum of $198,500. The wife introduces the topic by her affidavit filed on 25 March 2025 under the heading "Conduct by the Respondent on the [Suburb Q] property mortgage [...] Home Loan".[147] The wife then says as follows:

I refer to Statement Number [...], where the first transaction occurred on 29 May 2015 in the amount of $198,500 transferred to [the husband's brother-in-law] and [the husband's sister's] joint CBA Account [ending [...]73]. This reduced the offset balance from $200,319.70 to $1,819.70 and left the loan balance resting at $186,200.00.[148]

1. Under the same heading, the wife claims a sum of $113,500 in respect of which sum the wife says as follows:

I refer to Statement Number [...], where the second transaction occurred on 26 July 2016 in the amount of $113,500.00 transferred to [the husband's sister's] CBA Account [ending [...]72]. This reduced the offset balance from $113,769.70 to $269.70, and left the loan balance resting at $178,546.60.[149]

1. The husband responded to the allegations at paragraph 304 of his affidavit filed on 17 April 2025. He was not challenged in respect of that evidence. Again, I am mindful of the husband's evidence that from time to time he would advance sums of monies to his sister and brother-in-law and on occasion, they would advance monies to the husband. Simply, and in respect of the transactions in a sum of $198,500 and $113,500, I am not persuaded that the transactions represent a premature distribution of property, or a course of conduct designed to reduce the value of the matrimonial assets.[150]

1. In Stanford v Stanford (2012) 247 CLR 108_,_ the High Court, in its first proposition, indicated that in determining whether it was just and equitable to make any particular property order, it was necessary to identify the existing legal and equitable interests of the parties in the property. The High Court itself emphasised the word existing.[151] Further, the authorities to the effect that the court ascertains the value of property at the date of the hearing are beyond question.[152]
2. In my view, this proposition must have implications for how the court approaches the concept of add backs, which necessarily come into relief, in both the court and the parties' deliberations, only when the task arises to tabulate a balance sheet of potential matrimonial assets and liabilities, prior to a consideration of the matters arising under s 79(4) and s 75(2) of the Act. This is because such add backs exist only in a notional sense. It was not until the final day of trial that I was provide with a Balance Sheet clearly identifying the parties existing assets. I expressed concern on several occasions throughout the trial that absent provision of the same, neither party properly understood the parameters of the dispute between them. I was particularly concerned about whether the wife understood the parameters of the dispute given that by the conclusion of the trial, she continued to promote addbacks in excess of the existing assets available for distribution.[153]
3. I must bear in mind that the task I must undertake is not one of strict accounting. It has the potential to create injustice if a particular sum of money, which now no longer exists, is added back and credited to one party, without some corresponding allowance being made against the other party in respect of some expenditure which is inchoate or not so easily discernible.
4. In Watson & Ling [2013] FamCA 57 ("Watson & Ling") at [32] - [35], Murphy J said as follows:

[32] Where the Court has determined that it is just and equitable to make an order pursuant to s 79(2) or s 90SM(3) and there is clear evidence that one party has engaged in conduct and, but for that conduct, the legal and equitable interests of a party or the parties (or the value of those interests) would have be significantly greater, justice and equity may require recognition of the unfairness inherent in those circumstances in the terms of the orders to be made.

[33] How might that be recognised? First, consistent with existing authority, it can be recognised pursuant to s 75(2)(o) (cf s 90SF(3)(r)) (see, for example AJO & GRO [2005] FamCAFC 104; (2005) FLC 93-218, Browne & Green [1999] FamCA 1483; (1999) FLC 92-873 and Cerini). Secondly, it might be contended that it might be recognised within the assessment of contributions. This Court has long eschewed the notion of "negative contributions" (see, for example, Antmann & Antmann [1980] FamCA 64; (1980) FLC 90-908). Nevertheless, it might be argued that the "non-dissipating party" can be seen to have made a disproportionally greater indirect contribution to the existing legal and equitable interests (for example to their preservation) if it is established that, but for the other party's unilateral dissipation, those existing legal and equitable interests would have been greater or had a greater value.

[34] The assessment of the circumstance under discussion is, ultimately, a matter of discretion (see, for example, Cerini at [46] and Townsend at 81,654). Equally, however, authority dictates that it will be "the exception rather than the rule" (Cerini at [46]) that a direct dollar adjustment equivalent to the amount of the alleged dissipation of the pool is made to the otherwise entitlement of a party. It may be that aspects of the erstwhile treatment of legal fees pre-Stanford (see, for example, NHC & RCH [2004] FamCA 633; (2004) FLC 93-204) will require further consideration in an appropriate case.

[35] Importantly, of course, as has been emphasised in many authorities including those cited above, not every dissipation by a party can be seen to involve an affront to justice and equity; again the circumstances of the individual relationship must be assessed.[154]

1. As Murphy J pointed out in Watson & Ling, s 75(2)(o) of the Act provides a mechanism for the recognition of behaviour by one party which has had the consequence of disadvantaging the other party concerned and which would otherwise not be considered pursuant to the provisions of s 79(4).
2. As discussed, I have found that:

(a) On 10 May 2021, the husband by causing M Pty Ltd to pay the W Trust and two individuals a sum of $115,000 engaged in a course of conduct designed to prematurely distribute the assets of M Pty Ltd; and

(b) On 5 May 2021, caused H Pty Ltd to pay various amounts to third party entities in a total sum of $305,575 in an effort to prematurely distribute the assets of H Pty Ltd.

1. In circumstances where neither M Pty Ltd or H Pty Ltd were valued or identified on the Balance Sheet tendered by the parties, I have concluded that a holistic approach is required to be taken with respect to the topic of add backs contended for by the wife.
2. Having accepted that in respect of two transactions the husband's conduct plainly meets the definition of waste, I will return to this subject matter when I consider the parties' respective contributions and s 75(2) considerations.

1. The various and different contributions of the parties must be assessed against the background of a relationship of eighteen years' duration (2004 to 2021). The parties' contributions must also be assessed against the background of a relationship, which produced two children aged 17 and 12 years respectively.
2. The wife by her solicitor advocate's Case Outline Document says the following with respect to the topic of contributions:

The Parties contributions to the marriage are to be seen equally subject to the wifes [sic] assertion of Kennon and Kowaliw factors.[155]

1. Further, and during closing submissions, the wife's solicitor advocate described the parties' contributions as being "fairly even" during the relationship. He described the wife as having been the "primary caregiver to the children for the bulk of the relationship and the homemaker to the husband and the children".
2. For his part, the husband's counsel asserted that the husband's contributions during the relationship and subsequently were superior on account of:

(a) The provision of a property by the husband's brother-in-law free of any charge at the commencement of the parties' relationship;[156]

(b) Renovations performed to the Suburb Q property by the husband's friend in about 2006.[157] Save and except for the husband's opinion, there is no evidence about the cost of the renovation works or whether those works in fact improved the value of the Suburb Q property;

(c) Financial contributions made by the husband's mother during the parties' relationship;

(d) Financial contributions made by the husband to the mortgage secured over the Suburb C property in the period subsequent to separation;[158]

(e) Financial contributions made by the husband subsequent to the parties' separation in respect of the parties' children;[159] and

(f) Non-financial contributions made by the husband to the care of the children in the period subsequent to separation.[160]

1. Given the historical nature of the contribution made by the husband and referred to in the preceding paragraph at (a), I do not propose to give such contribution weight when considering the various and different contributions of the parties. Further, and for the reasons referred to at sub-paragraph (b) above, I will not place weight on the contributions the subject of works performed by the husband's friend to the Suburb Q property.
2. I will address the balance of the alleged contributions in turn.
3. The husband says that to assist the parties to purchase the property at Suburb Q:

(a) His mother transferred a sum of $58,000 into his ANZ account on 28 November 2005.[161] I have doubt about the veracity of that assertion in circumstances where the husband withdrew a sum of $58,000 from his ANZ account on 9 November 2005 with such sum returned to his account on 28 November 2005.[162] The husband says that the monies were in fact his mother's monies and that his mother had provided him with the monies so that he might place them in a fixed deposit to earn interest. I am not persuaded by that explanation given that the only documents admitted into evidence suggest that the husband held a sum of $58,00 in his own account on 9 November 2005 in any event; and

(b) His mother provided the parties with further monies in the order of $18,000 to enable settlement with respect to the purchase of the Suburb Q property.[163] The husband was not challenged with respect to that assertion. The husband's mother provided written evidence in support of the husband's assertion.[164]

(a) Between 22 December 2006 and 19 April 2010, his mother made sixteen deposits into the parties' joint home loan account in a total sum of $128,500.[165] That version of events is supported by the husband's mother;[166]

(b) Between 16 September 2016 and 18 April 2017, his mother made additional deposits into his ANZ account in a total sum of $28,500. The husband says that these deposits were "on account of" the Suburb Q property.[167] The husband's mother gives the same version of events;[168] and

(c) Between 29 January 2018 and 4 February 2021, his mother "made further financial contributions in relation to the Suburb C property" in a total sum of $79,200.[169] The husband's mother makes a similar assertion.[170]

1. For these reasons, the husband says that the total financial contributions made by his mother between November 2005 and February 2021 are in the order of $326,200[171] (although the sums referred to me above calculate at $312,200 only).
2. When questioned how it was that the husband's mother had the financial ability to assist the parties, she asserted that she brought sums of cash to Australia and kept monies in a safety deposit box. Indeed, the husband's mother says that in late 2005, she had a conversation with her son about assisting the parties to purchase their first property.[172] Having had this conversation, the husband's mother said that she would start bringing money to Australia.
3. The husband agreed under cross-examination that on his mother's arrival in Australia in April 2005,[173] she was unable to receive any Commonwealth benefits for a period of about ten years. This being so, the alleged contributions could only have been made:

(a) Firstly, as a consequence of monies brought to Australia by the husband's mother; or

(b) By the provision of monies, which the husband's mother earned in Australia.

1. As to the first method of contribution, the husband's mother says that she owned properties in Country B, which were sold. On realising sale proceeds, the husband's mother says that she found herself in a position to assist the parties. Notwithstanding this assertion, neither the husband nor his mother produced any documents to establish the provenance of the funds held by the husband's mother or any documents, which might demonstrate the transfer of monies from Country B to Australia.
2. As to the second method of contribution, the husband's mother says that between 2006 and 2011 she worked as an employee at M Pty Ltd at which time she was "primarily involved in office administration and student services".[174] That version of events is strongly disputed by the wife who across the course of her written and oral evidence said that the husband's mother never worked for any of the parties' entities. Particularly, the wife says:

During the entirety of my employment, [the husband's mother] never attended the office, she did not complete any work for [M Pty Ltd]. I do not recall [the husband's mother] ever being depicted in advertisements for [M Pty Ltd], nor any business cards or [the husband's wife] being involved with any emails relating to [M Pty Ltd].[175]

1. The husband's mother does depose to receiving wages and superannuation. On its face, that evidence supports the contention of the husband that his mother did work at M Pty Ltd. It may be that husband's mother was paid a wage to limit the parties' taxation obligations, but that possibility was not explored by the husband's counsel or the wife's solicitor advocate.
2. The written evidence given by the husband's mother with respect to her employment at M Pty Ltd is inconsistent with her oral evidence to the effect that on average, she would be at home for more than twelve hours per day assisting with household duties and the care of the family. This being so, I have doubt that the monies allegedly provided by the husband's mother to the parties were in fact her own monies. That is, and in a manner similar to the husband's financial dealings with his sister and brother-in-law, I suspect that there was a high degree of financial fluidity between the husband and his mother.
3. Even if this conclusion is erroneous, it is an agreed fact that whilst living with the parties across the course of sixteen years, the husband's mother never paid any rent or other fee for her lodging. On the version of events promulgated by the husband and his mother, this is because she considered that she had a one-third interest in the Suburb Q property and then, the Suburb C property. If I put the husband's case at its highest, it is that his mother contributed a sum of $326,200 to the parties across the course of sixteen years or say $20,000 per annum. For the reasons referred to above, I am not satisfied as to the provenance of the first contribution in a sum of $58,000 allegedly made by the husband's mother. This being so, the contribution at its highest is about $268,000 across the course of sixteen years or about $16,750 per annum.
4. For these reasons, I am not inclined to give recognition to financial contributions made by the husband's mother. Particularly, I find that whatever contribution the husband's mother did make represented her costs of living in any event.
5. I pause to note that on several occasions throughout the trial, the wife's solicitor advocate referred to the decision of the Judge of the Supreme Court of New South Wales.[176] As discussed above, His Honour dismissed the application by the husband's mother seeking a claim to a one-third beneficial entitlement to the Suburb C property. Particularly, the wife's solicitor advocate asserted that the following statement by the Judge at [98] of his decision estopped me from making any finding to the effect that the husband's mother made financial contributions to the acquisition of property in these proceedings. At [98], His Honour said as follows:

As a general proposition, I have no confidence that funds said to have been transferred by the plaintiff to the defendants from her own resources were in fact hers.

1. On several occasions during the trial, I expressed reservation that such a statement prevented me from making a finding that the husband's mother made financial contributions in the case at bar such a statement falling short of an actual finding but instead, obiter, which His Honour took into account when making a declaration that the husband's mother had no right, title or interest in the Suburb C property. Particularly, I queried whether non-satisfaction of a particular state of affairs was sufficient to give rise to an estoppel. In Cross on Evidence (14th edition, 2024), Heydon says as follows at [5075]:

An estoppel can arise from a finding expressed in negative terms as much as it can from a finding expressed in positive terms. Some think it has been held to arise from the finding of non-satisfaction of the particular state of affairs.

1. In support of the last proposition, Heydon referred to the decision of the New South Wales Court of Appeal in Egri v DRG Australia Ltd[177] although that decision related to findings as to a litigant's incapacity in the context of a claim under the Workers' Compensation Act 1926.
2. I asked the wife's solicitor advocate for assistance on this topic on several occasions during the trial but did not receive any such assistance. Instead, he advised me that whatever financial contribution the husband's mother did make was "wrapped up in the equitable claim". That submission is wrong at law. Ultimately, it has not been necessary for me to determine this issue in light of my own findings as to financial contributions made by the husband's mother.
3. As to non-financial contributions made by the husband's mother, the wife conceded that the husband's mother would clean the house, which she shared with the parties and the children and that she provided other domestic support. However, she was reluctant to concede that the husband's mother undertook tasks such as shopping, gardening and assisting with the care of the children as so asserted by the husband.[178] For example, the wife conceded that the husband's mother "cooked for the family" albeit, "not for everyone" and she conceded only that the husband's mother provided "nominal care" to the children. The wife also asserted that the husband's mother never undertook shopping. It was evident to me that the wife's denial of any contribution was motivated by the significant animus between the mother and her former mother-in-law. By mere dint of her presence at the family home, I expect that the husband's mother would have made contributions to the home and to the family. These contributions should not be recognised in a token way. Further, the wife's denial that her former mother-in-law made non-financial contributions is at odds with the submission made by the wife's solicitor advocate that the husband's mother could not have been working at M Pty Ltd in circumstances where she was devoted to domestic duties on average for about twelve hours per day.
4. Similarly, the wife was reluctant to concede that the husband undertook any tasks arguing that he never cared for the children, never changed a nappy and never cooked for the family. I do not need to consider this evidence in any detail given that the wife's solicitor advocate subject to two exceptions invites me to find that the parties' contributions were to be "seen equally".
5. With the exception of the question of the dissipation of funds (supra) and non-financial contributions made by the husband's mother, I would have assessed the parties' respective contributions at the time of separation pursuant to s 79(4)(a), (b) and (c) of the Act as being equal.
6. The period since the parties separated has been one of financial calamity for the parties. For his part, the husband had the primary care of the children. The wife has spent no time with them, and she pays a sum of $10.30 per week by way of child support.[179] In 2023, the wife was not paying any child support whatsoever.[180] It follows that in realistic terms, the financial burden of the parties' children has rested solely on the husband.
7. The husband by his written evidence says that in the period subsequent to the parties' separation in May 2021, he has incurred costs of $336,097 with respect to, among other things, the payment of the children's school fees and extra-curricular activities, council rates and utilities, health insurance, health related expenses such as orthodontics for the female child, home insurance and mortgage repayments.[181] In respect of this amount, the husband says that he has paid a sum of $139,637 towards the mortgage. The wife conceded under cross-examination that she made no contribution to the mortgage secured over the Suburb C property in the period subsequent to the parties' separation and the sum of $139,637 was not the subject of any challenge by the wife's solicitor advocate. With respect to school fees and other tuition fees, the husband identified that for his part he has paid:

(a) The children's school fees. By reference to Exhibit H14 I find that in the post-separation period, the husband has paid school fees for the male child in a sum of about $42,476; and

(b) Tuition fees and tutoring fees for the female child in English and maths for the period 2024 to date in a sum of $13,617.[182]

1. These amounts calculate in total at $56,093. However, the husband says that the actual expense associated with school fees and extracurricular activities has been in the order of $92,933. The husband did not clearly identify how this amount was calculated.[183] Having said this, the wife accepted under cross-examination that she has made no financial contribution towards the children's school fees or maintenance in the period subsequent to separation.

The wife's claim for Kennon v Kennon [1997] FamCA 27; (1997) FLC 92-757 considerations

1. By her solicitor advocate's Outline of Case Document, the wife simply says that the parties' contributions to the marriage ought to be seen equally "subject to the wifes [sic] assertion of Kennon and Kowaliw factors".[184]
2. The assessment of those contributions may incorporate a qualitative assessment based upon them being rendered significantly more arduous by the perpetration of family violence. When doing so the principles are those as set out in cases such as Kennon v Kennon[185] and Keating & Keating.[186] It was highlighted in Kennon, and reinforced in Keating, that imposing a circumstance of family violence upon a party to the relationship may lead to contributions being "significantly more arduous" and cause a "discernible impact" on the parties' contributions.[187]
3. As Gill J said Vestri & Vestri (No 6) [2024] FedCFamC1F 292, the assessment of such an impact should not be undertaken in a compartmentalised manner.
4. In Benson & Drury,[188] the Full Court (Strickland, Watts & Austin JJ) said at [35]-[39]:

The central question raised by this appeal is how a judge takes into account the contributions of one party, found to have been made significantly more arduous by the conduct of the other, when assessing contributions under ss 79(4)(a)-(c) or ss 90SM(4)(a)-(c) of the Act. The answer is the primary judge must take a holistic approach. The contributions which have been made significantly more arduous have to be weighed along with all other contributions by each of the parties, whether financial or non-financial, direct or indirect to the acquisition, conservation and improvement of property and in the role of homemaker and parent. All contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder.

...

Although the use of the short-hand descriptor of a 'Kennon claim' is not of itself erroneous, it is liable to induce error because the issue is not a stand-alone claim, but is rather integral to the entire process. Nor is it helpful to refer to the issue as a 'Kennon adjustment' because that epithet invites treatment of the issue as an isolated claim for an additional share of the available property.

...

The error of segmentation and the comparative analysis of one feature of the evidence against all others befell her Honour in this instance.

(Citations omitted)

1. In this case, and after an appeal to the District Court of New South Wales, the wife was convicted of the following offences:

(a) One count of common assault of the husband in mid-2015;

(b) One count of assault of the husband occasioning actual bodily harm in late 2019; and

(c) One count of assault of the parties' son occasioning actual bodily harm in late 2018.[189]

1. The facts giving rise to the common assault of the husband in mid-2015 are as follows:

[In mid] 2015 the ... [wife and the husband] were at home at... [Suburb Q]. The pair were discussing the upcoming sale of the [DD Street] Property. The discussion soon led to an argument. The argument escalated to the point where the [wife] was shouting at [the husband] in both [Country B language] and English. The [wife] slapped and kicked [the husband] before putting her right hand underneath the shirt of [the husband], and dug her nails into his skin and scratched him on the right side of his chest.. An amount of blood formed over the top of the scratch marks. [The husband] then phoned a work colleague... who was known to both [the husband] and [the wife]. The reason for this call was [the husband's] belief that [his colleague's] attendance would de escalate [sic] the situation. [The husband's work colleague] attended the location a short time later and witnessed the scratch marks on the chest of [the husband].[190]

1. The facts giving rise to the common assault of the husband in late 2019 are as follows:

Around 11:30pm [in late] 2019 [the husband] was putting [the parties' daughter] to bed in [her] bedroom when the [wife] entered the room and began to lecture [the parties' daughter] in regards to her homework. [The parties' daughter] asked the [wife] to leave so she could go to sleep however the [wife] continued to lecture [the parties' daughter]. [The husband] made attempts to get the [wife] to leave the room however the [wife] started to shout at [the husband]. The [wife] raised her hand, causing [the husband] to fear that the accused was going to hit [the parties' daughter].

...

The [wife] walked downstairs and started banging on the the [sic] door of [the husband's niece] who was residing with the...family for a period .... Becoming scared that the [the wife] was going to hurt [his niece] due to her aggressive manner, [the husband] stood between [his niece's] bedroom door and the [wife].

...

The [wife] scratched [the husband] on the lower front of his neck, causing a scratch mark. The [wife] then used a car key that she was holding to injure the right hand of [the husband]. The injury that [the husband] sustained was two cuts to his right hand. The wound started bleeding, and required [the husband] to use [a] (mild antiseptic) to treat the injury and stop it from bleeding.[191]

1. According to the Facts of Charge, the husband received medical assistance in the days following the assault.
2. The facts as they relate to the assault of the parties' son in late 2018 are particularly egregious. The facts identify that the wife assaulted the parties' son in the bathroom of the family home pushing him in the back "causing his right elbow to impact on the corner bathroom of the sink, resulting in a cut and subsequent bleeding". The immediate aftermath of the assault was witnessed by the parties' daughter who identified that the parties' son was also bleeding from his eyebrow. The parties' son subsequently required stitches because of his injuries.[192]
3. In addition to these specific events, the husband says that he was assaulted by the wife on several occasions during the parties' marriage and that the children were also assaulted.[193] The husband also:

(a) Refers to the wife's intimidating and abusive behaviour towards the children;[194]

(b) Says that the wife's physical and verbal abuse of the parties' daughter became so severe that the wife stopped performing tasks such as lunch preparation for the parties' daughter.[195]

1. The husband was not challenged with respect to these assertions.
2. It will not surprise a reader of this judgment to learn that the wife also makes allegations of family violence. Particularly, she says that the husband has caused her physical and psychological harm. In support of that proposition, she provides the following examples of abuse:

(a) Her "forceful" removal from the Suburb C property in May 2021. In my view, that occurrence cannot be placed at the feet of the husband given it was police who considered it appropriate to issue an Apprehended Domestic Violence Order in response to allegations made by the parties' daughter;

(b) Removal of the wife's jewellery "from our joint locker". As discussed above, I am not persuaded that the evidence as presented by the wife enables me to find that the husband withdrew items of jewellery from the safety deposit box in November 2019 as so asserted;

(c) The disbursal of funds during the parties' relationship "without my awareness". I will discuss this topic below;

(d) The initiation of "various proceedings against me which have significantly drained my assets, estranged me from my children, cost me my sole source of income".[196] Responsibility for the commencement of criminal proceedings against the wife cannot be placed at the feet of the husband particularly where, at least in the case of the parties' daughter, a complaint to police was made by her own motion. Insofar as the wife is referring to proceedings in the Supreme Court of New South Wales commenced by the husband's mother, it is again difficult to understand how the husband can bear any responsibility for the same. I note particularly that the husband's mother commenced proceedings against each of the parties. I also reject a submission made by the wife's solicitor advocate that the failure of the husband's mother to remove a caveat over the Suburb C property in accordance with orders made by the judge constitutes family violence on the part of the husband. Such a submission is a nonsense because responsibility for such an act rests with the husband's mother.

1. The wife during her oral evidence and by her solicitor advocate's submission, drew a causal link between her termination as an employee of S Company in early 2024 and criminal charges, which she says were commenced at the behest of the husband. Whilst the wife's criminal convictions were one ground for a termination of her employment, her employer also advised her that she had been unable to "perform the inherent requirements of...[her] role".[197] This being so, there is no merit to the wife's assertion that the husband has deprived her of an income. Further, the husband cannot be held responsible for the criminal conduct of the wife and the implications, which those convictions had for the wife's ongoing employment.
2. With respect to the disbursal of funds and the allegation of financial abuse, the denial of financial autonomy is an example of a behaviour that may constitute family violence within the meaning of s 4AB of the Act. I have found above that at least some sums of money were paid by the husband in the week prior to separation and that the husband acted in a reckless manner by doing so. It is difficult for me, however, given the proximity of that behaviour to the parties' separation to conclude that the husband's behaviour rendered the wife's contributions more arduous.
3. With respect to the topic of financial abuse, it was the wife's case that she had to obtain her husband's permission to open any accounts in her own name. I am not persuaded that such permission was in fact required. Particularly, I note that:

(a) At about the time of separation, the wife held a sum of almost $91,000 in a term deposit account with L Bank;[198]

(b) By February 2022, the wife held a sum of $25,132 in a term deposit account with L Bank (noting that the amount had been "locked away" for the previous twelve months);[199]

(c) At the time of separation, the wife held monies in an account in her own name at L Bank in a sum of about $6,600;[200]

(d) The wife's concession under cross-examination, that she also held additional monies in three additional accounts at the Commonwealth Bank and the Westpac Banking Corporation.[201]

1. In short, and by reason of the above, I am not satisfied that the wife was the subject of financial abuse. Instead, I find that each party was engaged in employment during the relationship and/or worked in the family businesses and structured their financial affairs as they considered might advance their mutual interests.
2. The wife does make one allegation to the effect that in February 2021, the husband kicked her on the right side of her ribs with force. She says that the impact caused immediate pain and that she was left with a "red mark".[202] Although the husband denies that he assaulted the wife,[203] I find that on balance, the assault did occur. This is because on the same day, the wife attended on her treating general practitioner and made a complaint that she had been kicked by the husband.[204]
3. I am also cognisant that the wife makes other allegations in relation to sexual, physical and emotional abuse. However, cross-examination of the husband on these topics does not permit me to make any finding that such abuse occurred. Further, and although a trial in respect of the charges against the husband of common assault, intentionally strangle person without consent and stalk/intimidate proceeded in mid-2022 and early 2023, those charges were dismissed.[205]
4. On balance, I have found that at least on one occasion, the husband perpetrated family violence. It may be that I would have made additional findings had cross-examination on the topic proceeded in a satisfactory manner. However, I also bring to account the convictions recorded against the wife's name for assault of the husband and the husband's son. I expect that the wife's actions compelled the husband to take steps to be protective of the children.

Conclusion as to contributions to the identified assets

1. As the Full Court in Roverati and Roverati [2021] FamCAFC 89 at [33] restated (citing Dickons & Dickons (2012) 50 FamLR 244 at [23] - [26]):

...the assessment of contributions is not a mathematical or accounting exercise, and even more importantly, it is an holistic undertaking with all of the contributions of the parties of whatsoever nature being taken into account.

1. Bearing in mind all the circumstances referred to above, including the recognition to be given to the contributions made by the husband in the period subsequent to separation, I assess the husband's overall contributions as being superior in a range of around six (6) percent, leading to the parties' various contributions, in percentage terms, being assessed at 56:44 in the husband's favour.

SECTION 75(2) - THE PROSPECTIVE NEEDS OF THE PARTIES AND CONSIDERATION OF A FURTHER ADJUSTMENT IN FAVOUR OF THE WIFE ON ACCOUNT OF THE PREMATURE DISTRIBUTION OF ASSETS AND NON-DISCLOSURE

1. At the time the parties met, the wife was working in her father's business "at a general and administrative level".[206] The wife has also worked in the retail industry,[207] as an educator,[208] as a community support worker,[209] as a sales assistant for a major store,[210] as an educator for a training company, [211][212] and as an employee of S Company. She also assisted the husband to develop the parties' businesses.
2. In terms of qualifications, the wife holds post-graduate qualifications[213],[214] and certificates in beauty services.[215] The wife says that she is not currently qualified to work as a beauty therapist given that her qualifications were obtained "years ago". In recent times, the wife says that she was undertaking a hospitality course so that she might be able to obtain employment in a café.
3. For his part, the husband obtained post-graduate qualifications in 2022.[216] He has worked as a registered professional since 2003.[217] He continues to provide consultancy services.[218]
4. The wife's oral evidence was to the effect that it has been difficult to obtain employment given her criminal convictions. I accept that many corporations require the provision of a police clearance prior to engaging an employee and I accept that the existence of a conviction may compromise the wife's ability to obtain employment in some sectors. Having said this, the wife has demonstrated significant flexibility with respect to her employment across many years and I conclude that the wife can obtain employment albeit the income, which the wife may receive is likely to be modest.
5. It weighs on me that the husband will bear financial responsibility for the parties' children for the foreseeable future. Further, the financial statements for H Pty Ltd (to the extent that they were tendered and are now historic),[219] suggest that the entity has operated at a loss and otherwise, the earnings received by the parties (and now the husband) were modest. At the current juncture, the husband's income is in the order of about $1,151 per week and his expenses exceed his income.[220]
6. As discussed, the amount which the wife pays to the husband by way of child support is nominal. Further, the child support which the husband is likely to receive in the future will be modest and potentially unreliable. The female child is aged 17 years, but the male child is only aged 12 years. He has important years of education ahead of him and the husband's unchallenged evidence was that even in the period subsequent to separation, the children's education expenses have been about $3,000 per month.[221] All of these factors warrant an adjustment of the parties' net assets in favour of the husband.
7. However, two other matters must be considered by me, namely:

(a) Whether an adjustment in the wife's favour is warranted on account of non-disclosure by the husband; and

(b) The monies the subject of the premature distribution and/or waste in a sum of $430,590 (supra).

1. By her Outline of Case Document, the wife's solicitor advocate made the following submission:

Notwithstanding previous detailed orders made by Registrar [surname] on 30 November 2021 and in accordance with Family Law Rule 6.06 in respect of disclosure, the Respondent has not complied with these Orders in full. Notwithstanding the previous hearings where the Respondent understood the failure to comply and was subject of cross examination he has also failed to comply.[222]

1. During close submissions, the wife's solicitor advocate and I had the following exchange:

Wife's solicitor advocate: Yes. So I now move to non-disclosure. As your Honour knows in property settlement proceedings, parties are required to make full and frank disclosure. The case of Weir and Weir is an example where the husband deliberately did not disclose a sum of $100,000. And in Black and Kellner, the court could not accurately identify the asset pool because the husband did not comply with his duty of disclosure. In that case, the husband was awarded 6 per cent of the known pool. So I will just stop there and invite your Honour to consider that. And we have said it in the hearings before today that the asset pool can't be properly identified because the husband hasn't provided full and adequate disclosure.

His Honour: Right. Now it has been troubling me overnight because you make those submissions. Where do I find the evidence of an absence of disclosure pertaining to your client's ...

Wife's solicitor advocate: It is fairly simple.

His Honour: No, it is not fairly simple. Take me to the evidence in support of that assertion.

1. In response to my exhortations, the wife's solicitor advocate advised me that he would give me a lesson with respect to the provisions of s 198F of the Corporations Act 2001 (Cth) and the husband's right to inspect the books of N Pty Ltd for a period of seven years after he ceased being a director of the company. In circumstances where the husband ceased being a director of that entity in August 2016, the submissions of the wife's solicitor advocate was that the husband could have inspected and taken copies of the books of N Pty Ltd for an indefinite period of time prior to his resignation as a director. Even if I accept this submission, the husband was unable to give me a definitive response to how precisely it was that the husband fell short of his obligations under Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
2. In Briese & Briese [1985] FamCA 23; (1986) FLC 91-713 at 75,181, Smithers J applied the House of Lords decision in Livesey v Jenkins [1984] UKHL 3; [1985] AC 424 in determining that:

... in financial proceedings between spouses each party must make a full and frank disclosure of all material facts. In that case it was made clear that full and frank disclosure was required as a matter of principle in the light of the fact that it was the duty of the Court, taking into account a number of designated criteria, to make a decision which basically involved the exercise of a discretion.

In my view it is fundamental to the whole operation of the Family Law Act in financial cases that there is an obligation of the nature to which I have referred. Livesey v. Jenkins makes it clear that mere compliance with rules of court or practice directions does not alter the basic principle of the need for full and frank disclosure by the parties.

(As per the original)

1. In Venter & Venter (No 5) [2023] FedCFamC1F 635, Carew J also considered the fundamental importance of disclosure in financial cases albeit in the context of an application to dismiss a litigant's case on the basis of not disclosing a document as required by the Rules.
2. In this case, I consider that the wife's general complaints about the adequacy of disclosure have been infected by the wife's indefatigable belief that the husband has an interest in real property and/or corporate entities owned by the husband's sister and/or brother-in-law.
3. I note that the topic of the husband's non-disclosure was found only three times in the wife's affidavit filed on 25 March 2025, namely, at paragraphs 326, 332 and 338. I upheld objections in relation to each of those paragraphs on the basis that among other things, the paragraphs were argumentative only and did not provide me with any evidence of non-disclosure by the husband of documents material to the issues determined by me.[223]
4. Immediately prior to closing submissions, the wife's solicitor advocate sought to tender a bundle of correspondence, which he asserted related to the husband's failure to make disclosure. He had not alerted the husband's counsel that he would seek to tender the documents and further, the husband was not cross-examined in relation to the correspondence. Indeed, the husband was not cross-examined in any detail at all about his failure to make disclosure.
5. For these reasons, and in circumstances where the wife simply did not produce sufficient evidence to enable me to make such a finding, I am disinclined to make any adjustment in the wife's favour on account of the husband's non-disclosure of documents relevant to these proceedings.
6. As discussed above, a significant issue is the treatment of monies wasted and/or prematurely distributed by the husband in a sum of $429,490. For clarity, the transactions, which give rise to this sum are:

(a) Transactions on 10 May 2021 at which time the husband withdrew a sum of $115,015 from an account held by M Pty Ltd;

(b) Transactions in a sum of $305,575 being monies wasted by the husband in his capacity of a director of H Pty Ltd.

1. In the context of a Balance Sheet, which identifies that the parties enjoy non-superannuation assets in the order of $1,524,183 only, the husband's conduct has had significant ramifications for the wife.
2. However, I consider that the husband's conduct must be balanced against his post-separation contributions. As discussed, the husband says that since May 2021, he has spent a sum of $92,933 on the children's school fees and extracurricular activities as well as additional monies with respect to the maintenance of the Suburb C property including mortgage payments. The husband was not challenged with respect to this evidence. As discussed, the husband will also incur significant expenses in the future for the children noting that the youngest child is only aged 12 years.
3. Having regard to these factors, I have concluded that it is just and equitable to divide the parties' pool of assets, as I have calculated it, 58 / 42 percent in the husband's favour. This division reflects:

(a) The husband's superior contributions both during the relationship and subsequently;

(b) The husband's wastage and/or premature distribution of monies in the order of $429,000; and

(c) The husband's ongoing financial responsibility for the parties' children without any significant aid of the wife and the likelihood that the wife will not contribute to the financial needs of the children for the balance of their minority.

1. The wife says as follows with respect to the topic of occupation rent at paragraphs 567 to 568 of her affidavit filed on 25 March 2025:

Since 12 May 2021, I have been living in share accommodation and paying rent, my estimated rent amount averages at around $300 per week.

1. I was not provided with any evidence or submission about how a sum of $300 per week translates to a claim for occupation rent in a sum of $140,000. A sum of $300 per week over a period of about four years equates to a sum significantly less.
2. The husband's evidence, which was not the subject of challenge under cross-examination, was that in the period subsequent to separation he had made mortgage payments in a sum of $139,637.
3. In the New South Wales Court of Appeal decision of New South Wales v Koumdjiev [2005] NSWCA 247; (2005) 63 NSWLR 353 ("Koumdjiev"), Hodgson JA said as follows with respect to the topic of occupation rent:

It is clear that each tenant in common is entitled to possession of the property, and to the use and enjoyment of it in a proper manner. If one tenant in common excludes the other from the property, the latter has a remedy in action for trespass; and if one tenant in common takes more than its share of income or other benefits produced from the property, the other may have an action for an account: Jacobs v Seward [1872] UKLawRpHL 10; (1892) LR 5 HL 464 ; Bull v Bull.[224]

1. The requirement that the exclusion be legally wrongful was also emphasised by Beasley JA in the New South Wales Court of Appeal decision of Biviano v Natoli (1998) 43 NSWLR 695. She said:

The rights of co-owners of property are equal to occupation of the land, neither one nor the other owning any particular parcel of land: see Megarry & Wade, The Law of Real Property, 5th ed (1984) Stevens, London at 422; Jacobs v Seward [1872] UKLawRpHL 10; (1872) LR 5 HL 464; Bull v Bull [1955] 1 QB 234; Jones v Jones [1977] 1 WLR 438.

A tenant in common is entitled to exercise acts of ownership over the whole of the common property without liability to be called upon to account in respect thereof: Luke v Luke (1936) 36 SR (NSW) 31053 WN (NSW) 101. This general rule will be displaced, however, where a tenant in common has wrongfully excluded a co-tenant from exercising the right to occupation. At common law a co-tenant so excluded could sue for ejectment and for mesne profits: Goodtitle v Tombs (1770) 3 Wils KB 11895 ER 965, and could also bring a partition suit to charge the occupying co-tenant with an occupation rent...

Long Innes CJ in Equity rejected the proposition that a co-owner who remained in occupation of property was, by that circumstance alone, subject to an occupation fee. An entitlement to an occupation fee only arose where there was conduct sufficient for the court to infer a denial of the claimant's title: see Chieco v Evans (1990) 5 BPR 11,297; Jones v Jones (at 441), per Lord Denning MR. In Forgeard v Shanahan, Meagher JA reiterated the principles which govern the right to claim an occupation fee. His Honour stated (at 223):

"... Turning to the liability of a co-owner in occupation to pay an occupation fee, the position at law is fairly clear. He was not liable unless he excluded his co-owner, in which case he rendered himself liable in ejectment and for mesne profits, or if he constituted himself a bailiff, in which event he would be liable in an action of account, like any other bailiff: Re Tolman's Estate (1928) 23 Tas LR 29 at 31; Rees v Rees [1931] SAStRp 3; [1931] SASR 78 at 80-81 . Indeed, the whole bias of the law against making a co- owner in occupation liable to account is precisely based on the rationale that if such a liability were to exist a co-owner could, by abstaining from entering into occupation, turn his co-owner into an involuntary bailiff..."

...The true nature of ouster is that it constitutes a trespass by one co-tenant of another co-tenant's rights in respect of the property. An express denial of the title and right to possession of fellow tenants, brought home to the latter openly and unequivocally would clearly amount to an ouster: see 20 Am Jur 2d, Cotenancy and Joint Ownership, par 51, citing Williams v Sinclair Refining Co Inc 39 NM 38847 P 2d 910 (1935) and Howell v Bradford 570 So 2d 643 (1990): see also Doe v Bird (1809) 11 East 49103 ER 922. On the other hand, a temporary disturbance to an access way to the property would not: see, eg, Ferguson v Miller [1978] 1 NZLR 819."

1. In this case, it was not the actions of the husband, which prevented the wife from exercising her rights as a joint owner of the property. Instead, it was the terms of a Provisional Domestic Violence Order, which was issued by New South Wales Police against the wife.[225]
2. For this reason, I am not persuaded that the husband's conduct was "legally wrongful" in the manner described by Beasley JA. Even if I am wrong about this, I have no evidence about how the sum claimed by the wife is calculated.

Non-Compliance with orders for the payment of monies

(a) The husband has failed to comply with an order made on 15 November 2024 requiring him to pay monies owing to the wife in Supreme Court proceedings. Particularly, the wife says that the husband did not pay the full amount such that a sum of $3,726 remains payable;

(b) The husband has failed to comply with an order made on 15 November 2024 requiring him to make a payment to the wife in a sum of $21,243.

1. The husband gives various reasons for his failure to satisfy the orders. However, he did not apply for the discharge of the same.
2. I was not addressed as to the calculation of any interest. This being so, and when I craft my final orders, I will simply add the above sums to any monies otherwise payable to the wife. Given the interest is nominal, I have taken the same into account through the discretion afforded to me by s 75(2)(o) of the Act.

1. On or about 4 December 2024, the husband's solicitors served the wife's solicitors with a Notice to Admit. The Notice requested the wife to admit that among other things, the following facts are true:

(a) At the time of their passing, neither of the wife's parents had executed a will "or any other legal document conveying their property or interests to their children or third parties";

(b) Upon the passing of the wife's mother, the wife and her brothers "inherited their parents' estate (including properties) in equal shares, in accordance with applicable laws of inheritance in [Country B]"; and

(c) The wife "has not provided disclosure to the... husband in relation to her inheritance of proportional entitlement in her parents' estate".[226]

1. It was conceded by the wife during the hearing that there was a failure by her to respond to the Notice to Admit. Further, at no juncture either during the hearing or closing submissions did the wife's solicitor advocate make an application to be relieved of the admissions. This was despite the fact that the wife did not agree with the three propositions set out in the Notice. Against this background, and subsequent to reserving judgment, I requested written submissions from each of the parties.
2. The court has the power pursuant to rule 8.03 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, to permit withdrawal of an admission. The rules are silent as to the criteria, which a litigant would need to satisfy in order to persuade the Court to allow the withdrawal of an admission. However, in Jeans v Commonwealth Bank of Australia Ltd [2003] FCAFC 309; (2003) 204 ALR 327, the Full Court of the Federal Court referring to Santow J in Drabsch v Switzerland General Insurance Co Ltd (1996) 130 FLR 127 said as follows:
   1. Where a party under no apparent disability makes a clear and distinct admission which is accepted by its opponent and acted upon, for reasons of policy and the due conduct of the business of the court, an application to withdraw the admission, especially at appeal, should not be freely granted . . .
   2. The question is one for the reviewing judge to consider in the context of each particular appeal, with the general guidelines being that the person seeking on a review to withdraw a concession made should provide some good reason why the judge should disturb what was previously common ground or conceded . . .
   3. Where a court is satisfied that admissions have been made after consideration and advice such as from the parties' expert and after full opportunity to consider its case and whether the admission should be made, admissions so made with deliberateness and formality would ordinarily not be permitted to be withdrawn . . .
   4. It will usually be appropriate to grant leave to withdraw an admission where it is shown that the admission is contrary to the actual facts. Leave may also be appropriate where circumstances show that the admission was made inadvertently or without due consideration of material matters. Irrespective of whether the admission has or has not been formally made, leave may be refused if the other party has changed its position in reliance upon the admission . . .
   5. Following Cohen v McWilliam (1995) 38 NSWLR 476, a court is not obliged to give decisive weight to court efficiency, such that a party who wishes to defend its claim is entitled to a hearing on the merits, with costs orders being available as a means of compensating the other party for any costs thereby unnecessarily incurred or not fairly visited on the other party.
3. The authorities were helpfully summarised by Kent J in Mendicino & Mendicino & Ors (No 4) [2015] FamCA 485 at [10].
4. Given submissions made by the wife's solicitor advocate, I have no doubt that the admissions were made inadvertently and/or the wife's solicitor was negligent insofar as the wife failed to respond to the Notice to Admit.
5. I was provided with the Probate of the Estate of the wife's late mother.[227] The provisions of that document provide that the wife will not receive an inheritance from her mother's estate as she received a financial benefit from her mother during her mother's lifetime.[228]
6. Whilst I was unable to test the terms of the Probate, I did not receive any evidence as to the value of the properties held by the wife's late mother in any event. It is true as submitted by the husband's counsel that the husband unilaterally obtained valuations. However, those valuations were not admitted into evidence. Accordingly, I am unable to ascribe a value to the Estate of the wife's late mother.
7. Whatever the scenario, I consider that even if the wife does have an interest in the estate of her late mother, that interest is sufficiently recognised by the exercise of the discretion afforded to me by s 75(2)(o) of the Act.

1. In Steinbrenner & Steinbrenner,[229] Coleman J observed as follows at [234]:

[234] Given that the evaluation of contribution-based entitlements inevitably moves from qualitative evaluation of contributions to a quantitative reflection of such evaluation, there will inevitably be a "leap" from words to figures. That is the nature of the exercise of discretion, whether it be in the assessment of contributions in the matrimonial cause, assessment of damages in a personal injuries case, or determination of compensation in a land resumption case.

1. I must now make a leap and turn to the topic of what each party will receive, particularly how and in what form. This leap from abstraction to the concrete must be undertaken in terms of what is just and equitable to each of the parties concerned.
2. As discussed, the non-superannuation assets available for distribution are in the order of $1,542,183. In addition, the husband claims an add back in a sum of $155,047 being monies held by the wife at the time of separation. It is not contested that the wife held these monies (supra). Further, the wife says that the monies have been expended on legal fees for the Supreme Court proceedings, the associated appeal and these proceedings. It has long been recognised that the expenditure of money on legal fees is a recognised category of addback.[230] Whilst this may be so, I consider that justice and equity has been achieved by the exercise of my discretion under s 75(2)(o) of the Act and accordingly, I decline to include the same in the list of assets available for distribution.
3. As identified above, the wife has superannuation assets in the order of $79,163 and the husband has superannuation assets in the order of $65,562. The wife seeks an order that she retain the entirety of the parties' superannuation monies. For his part, the husband seeks an order that each party retain his/her superannuation interests. Given the quantum of the parties' superannuation assets and the nominal difference between the parties' respective interests, I will adopt a global approach with respect to the division of non-superannuation and superannuation assets.
4. Having regard to the parties' existing property interests, the wife will retain non-superannuation and superannuation assets with a value of $82,174 calculated as follows:

1. Having regard to the parties' existing property interests, the husband will retain non-superannuation and superannuation assets with a value of $1,586,734 calculated as follows:

Property at Suburb C in the State of New South Wales

Westpac Bank account ending ...31

(in the name of G Company)

1. In order to achieve a 58:42 division of non-superannuation assets in the husband's favour, it will be necessary for the husband to pay to the wife a sum of $618,767 calculated as follows:

1. During closing submissions, the wife's solicitor made a submission that absent any proof by the husband that he is able to pay monies to the wife, the Suburb C property ought to be sold forthwith. I decline to make such an order. It is in the children's interests that they remain at the Suburb C property and by reason of the orders I will make, the husband will have the opportunity to retain it.
2. The husband seeks an order that if the Suburb C property does not sell at auction, then the property be relisted for public auction every eight weeks on the basis that the sale or reserve price shall be reduced by five percent at each auction until the property is sold. The wife did not seek such an order. The husband's counsel did not address me as to the merit of the husband's proposal, but I consider that it represents an order, which will bring an end to the parties' financial relationship. I will make an order in the terms sought by the husband.

1. I am satisfied that overall, this is a just and equitable outcome of these proceedings. For the reasons referred to above, the Orders of the Court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding two hundred and forty (240) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson.

[1] Wife's affidavit filed 25 March 2025, paragraph 4; Husband's affidavit filed 17 April 2025, paragraph 8.

[2] Stanford v Stanford (2012) 247 CLR 108 at [42].

[3] Wife's affidavit filed 25 March 2025, paragraph 1.

[4] Wife's affidavit filed 25 March 2025, paragraph 2.

[5] Husband's affidavit filed 17 April 2025, paragraph 6.

[6] Wife's affidavit filed 25 March 2025, paragraph 3.

[7] Wife's affidavit filed 25 March 2025, paragraph 5.

[8] Wife's affidavit filed 25 March 2025, paragraph 23.

[9] Wife's affidavit filed 25 March 2025, paragraph 24.

[10] Wife's affidavit filed 25 March 2025, paragraph 26.

[11] Wife's affidavit filed 25 March 2025, paragraphs 24 and 27.

[12] Husband's affidavit filed 17 April 2025, paragraph 19.

[13] Wife's affidavit filed 25 March 2025, paragraph 37.

[14] Wife's affidavit filed 25 March 2025, paragraph 37.

[15] Wife's affidavit filed 25 March 2025, paragraph 40.

[16] Husband's affidavit filed 17 April 2025, paragraph 29.

[17] Wife's affidavit filed 25 March 2025, paragraphs 43 and 47.

[18] Wife's affidavit filed 25 March 2025, paragraphs 49 and 50.

[19] Wife's affidavit filed 25 March 2025, paragraph 54.

[20] Wife's affidavit filed 25 March 2025, paragraph 54.

[21] Wife's affidavit filed 25 March 2025, paragraph 54.

[22] Wife's affidavit filed 25 March 2025, paragraph 55.

[23] Husband's affidavit filed 17 April 2025, paragraph 60.

[24] Husband's affidavit filed 17 April 2025, paragraph 212.

[25] Wife's affidavit filed 25 March 2025, paragraph 58.

[26] Husband's affidavit filed 17 April 2025, paragraph 31.

[27] Husband's affidavit filed 17 April 2025, paragraph 31(a).

[28] Husband's affidavit filed 17 April 2025, paragraph 31(b).

[29] Wife's affidavit filed 25 March 2025, paragraph 130; Husband's affidavit filed 17 April 2025, paragraph 53.

[30] Wife's affidavit filed 25 March 2025, paragraph 131.

[31] Husband's affidavit filed 17 April 2025, paragraph 55.

[32] Husband's affidavit filed 17 April 2025, paragraph 31(b).

[33] Husband's affidavit filed 17 April 2025, paragraph 31(c).

[34] Husband's affidavit filed 17 April 2025, paragraph 31(c).

[35] Wife's affidavit filed 25 March 2025, paragraph 153.

[36] Wife's affidavit filed 25 March 2025, paragraph 155.

[37] Wife's affidavit filed 25 March 2025, paragraph 153.

[38] Husband's affidavit filed 17 April 2025, paragraph 31(d).

[39] Wife's affidavit filed 25 March 2025, paragraph 162.

[40] Husband's affidavit filed 17 April 2025, paragraph 31(d).

[41] Wife's affidavit filed 25 March 2025, paragraph 162.

[42] Husband's affidavit filed 17 April 2025, paragraph 31(e).

[43] Wife's affidavit filed 25 March 2025, paragraph 86.

[44] Husband's affidavit filed 17 April 2025, paragraph 98.

[45] Husband's affidavit filed 17 April 2025, paragraph 101.

[46] Wife's affidavit filed 25 March 2025, paragraph 169; Husband's affidavit filed 17 April 2025, paragraph 115.

[47] Husband's affidavit filed 17 April 2025, paragraph 127; Wife's affidavit filed 25 March 2025, paragraph 190.

[48] Wife's affidavit filed 25 March 2025, paragraph 280.

[49] Husband's Outline of Case Document filed 22 April 2025, page 10 of 16.

[50] Husband's affidavit filed 17 April 2025, paragraph 168.

[51] Husband's affidavit filed 17 April 2025, paragraph 168.

[52] Husband's affidavit filed 17 April 2025, paragraph 172.

[53] Husband's affidavit filed 17 April 2025, paragraph 178; Exhibit H5.

[54] Husband's affidavit filed 17 April 2025, paragraph 180.

[56] Husband's affidavit filed 17 April 2025, paragraph 336.

[57] Husband's affidavit filed 17 April 2025, paragraph 192.

[58] Wife's Outline of Case Document filed 17 April 2025, pages 4 and 5 of 9.

[61] Orders made on 22 March 2024, paragraph 1.

[63] Wife's affidavit filed 25 March 2025, paragraph 306.6.

[64] Wife's affidavit filed 25 March 2025, paragraph 447.4.

[66] Wife's affidavit filed 25 March 2025, paragraph 115.

[67] Wife's affidavit filed 25 March 2025, paragraph 116.

[68] Wife's affidavit filed 25 March 2025, paragraph 306.6.

[69] NHC & RCH [2004] FamCA 633; (2004) FLC 93-204.

[75] B Pty Ltd and Ors & K and Anor [2008] FamCAFC 113; (2008) FLC 93-380 at [52].

[76] The development of the modern "rule" and the use of the term "Hadkinson order" derives from a decision of the same name (Hadkinson & Hadkinson (1952) 2 All ER 567). Also refer to the decision of the Full Court in Fahmi & Fahmi [1995] FamCAFC 106; (1995) FLC 92-637.

[77] Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervenor) [2003] FamCA 395; (2003) FLC 93-143 at [39] and Bevan & Bevan [2013] FamCAFC 116; (2013) 279 FLR 1 at [60].

[78] Stanford v Stanford [2012] HCA 52.

[79] Stanford v Stanford [2012] HCA 52 at [35] - [36].

[80] Bevan & Bevan [2013] FamCAFC 116; (2013) 279 FLR 1 at [73].

[81] Bevan & Bevan [2013] FamCAFC 116; (2013) 279 FLR 1 at [65] and [71].

[82] See Wardman & Hudson [1978] FamCA 68; (1978) FLC 90-466; and In the Marriage of Biltoft [1995] FamCAFC 45; (1995) FLC 92-614.

[83] See Family Law Act s 79(4)(c).

[84] See Watson & Ling [2013] FamCA 57; (2013) 49 Fam LR 303 at [13] per Murphy J.

[86] Husband's affidavit filed 17 April 2025, paragraph 213.

[87] Wife' affidavit filed 25 March 2025, paragraph 447.2.

[88] Husband's affidavit filed 17 April 2025, paragraph 379(b).

[89] Wife's affidavit filed 25 March 2025, paragraph 464.

[90] Wife's affidavit filed 25 March 2025, paragraph 235.

[91] Husband's affidavit filed 17 April 2025, paragraph 196.

[92] Husband's affidavit filed 17 April 2025, paragraph 379(d).

[93] Husband's affidavit filed 17 April 2025, paragraph 379(n).

[94] Wife's affidavit filed 25 March 2025, paragraph 447.4.

[95] Husband's affidavit filed 17 April 2025, paragraph 31(c)(i).

[96] Husband's affidavit filed 17 April 2025, paragraph 31(c)(ii).

[97] Husband's affidavit filed 17 April 2025, paragraph 31(c)(iv).

[99] Husband's affidavit filed 17 April 2025, paragraph 31(c).

[100] Husband's affidavit filed 17 April 2025, paragraph 35.

[101] Husband's affidavit filed 17 April 2025, paragraph 35.

[102] Husband's affidavit filed 17 April 2025, paragraph 318.

[103] Husband's affidavit filed 17 April 2025, paragraph 320.

[104] Husband's affidavit filed 17 April 2025, paragraph 321 and 322.

[105] Affidavit of the husband's sister filed 15 April 2025, paragraph 22.

[106] Affidavit of the husband's sister filed 15 April 2025, paragraph 14.

[107] Affidavit of the husband's sister filed 15 April 2025, paragraph 23.

[108] Affidavit of the husband's sister filed 15 April 2025, paragraph 24.

[109] Husband's affidavit filed 17 April 2025, paragraph 303(b).

[110] Husband's affidavit filed 17 April 2025, paragraph 303(b).

[111] Husband's affidavit filed 17 April 2025, paragraph 303(b) and table of borrowings as it appears at pages 62 and 63 of 83 of the husband's affidavit filed 17 April 2025.

[112] Refer for example to paragraphs 14 and 22 of the husband's sister filed 15 April 2025.

[113] Husband's affidavit filed 17 April 2025, paragraph 303(b) and table of borrowings as it appears at pages 62 and 63 of 83 of the husband's affidavit filed 17 April 2025.

[114] Layton & Layton [2014] FamCAFC 126; AJO & GRO [2005] FamCAFC 104; (2005) FLC 93-218.

[115] Husband's affidavit filed 17 April 2025, paragraphs 385 and 386.

[116] Wife's affidavit filed 25 March 2025, paragraph 435.

[117] Wife's affidavit filed 25 March 2025, paragraph 289; Exhibit H7.

[118] The husband describes a Commonwealth Bank Account ending ...77 as being an account in his sole name - Husband's Affidavit filed 17 April 2025, paragraph 234.

[121] See also Lambert & Jackson [2010] FamCA 357.

[124] Wife's affidavit filed 25 March 2025, paragraph 422.

[125] Husband's affidavit filed 17 April 2025, paragraph 389.

[128] Layton & Layton [2014] FamCAFC 126; AJO & GRO [2005] FamCAFC 104; (2005) FLC 93-218.

[129] Husband's affidavit filed 17 April 2025, paragraph 269.

[139] Exhibit W21, pages 5 and 7 of 61.

[141] Exhibit H28, pages 4 and 5 of 5.

[147] Refer to the heading immediately prior to the wife's affidavit filed 25 March 2025, paragraph 103.

[148] Wife's affidavit filed 25 March 2025, paragraph 115.

[149] Wife's affidavit filed 25 March 2025, paragraph 116.

[150] Layton & Layton [2014] FamCAFC 126; AJO & GRO [2005] FamCAFC 104; (2005) FLC 93-218.

[151] Stanford v Stanford (2012) 247 CLR 108 at [37].

[152] For example, refer to In the Marriage of Wardman and Hudson [1978] FamCA 68; (1978) 5 Fam LR 889.

[154] Watson & Ling [2013] FamCA 57 at [32] - [35].

[155] Outline of Case Document filed by the wife on 17 April 2025 at paragraph 4.1.

[156] Outline of Case Document filed by the husband on 22 April 2025, paragraph 26.

[157] Husband's affidavit filed 17 April 2025, paragraphs 82 and 88.

[158] Husband's affidavit filed 17 April 2025, paragraph 363.

[159] Husband's affidavit filed 17 April 2025, paragraph 363.

[160] Outline of Case Document filed by the husband on 22 April 2025, paragraph 29.

[161] Husband's affidavit filed 17 April 2025, paragraph 75.

[163] Husband's affidavit filed 17 April 2025, paragraph 95.

[164] Affidavit of the husband's mother filed 17 April 2025, paragraph 36.

[165] Husband's affidavit filed 17 April 2025, paragraph 99.

[166] Affidavit of the husband's mother filed 17 April 2025, paragraph 40.

[167] Husband's affidavit filed 17 April 2025, paragraph 113.

[168] Husband's affidavit filed 17 April 2025, paragraph 44.

[169] Husband's affidavit filed 17 April 2025, paragraph 134.

[170] Affidavit of the husband's mother filed 17 April 2025, paragraph 44.

[171] Outline of Case Document filed by the husband on 22 April 2025, paragraph 23.

[172] Affidavit of the husband's mother filed 17 April 2025, paragraph 23.

[173] Affidavit of the husband's mother filed 17 April 2025, paragraph 9.

[174] Affidavit of the husband's mother filed 17 April 2025, paragraph 18.

[175] Wife's affidavit filed 25 March 2025, paragraph 140.

[177] Egri v DRG Australia Ltd (1988) 19 NSWLR 600 at 603.

[178] Husband's affidavit filed 17 April 2025, paragraph 98.

[181] Husband's affidavit filed 17 April 2025, paragraph 149.

[183] Husband's affidavit filed 17 April 2025, paragraph 149.

[184] Outline of Case Document filed 17 April 2025, paragraph 4.1.

[185] [1997] FamCA 27; (1997) FLC 92-757 ("Kennon").

[186] [2019] FamCAFC 46; (2019) FLC 93-894.

[188] [2020] FamCAFC 303; (2020) FLC 93-998 ('Benson & Drury').

[189] Husband's affidavit filed 17 April 2025, paragraph 172.

[193] Husband's affidavit filed 17 April 2025, paragraph 167 and onwards.

[194] Husband's affidavit filed 17 April 2025, paragraph 152.

[195] Husband's affidavit filed 17 April 2025, paragraph 162.

[196] Wife's affidavit filed 25 March 2025, paragraph 447.

[201] Also see the Husband's affidavit filed 17 April 2025, paragraph 66.

[202] Wife's affidavit filed 25 March 2025, paragraph 237.

[203] Husband's affidavit filed 17 April 2025, paragraph 200.

[205] Husband's affidavit filed 17 April 2025, paragraph 191.

[206] Wife's affidavit filed 25 March 2025, paragraph 13.2.

[207] Wife's affidavit filed 25 March 2025, paragraph 13.1.

[208] Wife's affidavit filed 25 March 2025, paragraph 43.

[209] Wife's affidavit filed 25 March 2025, paragraph 46.

[210] Wife's affidavit filed 25 March 2025, paragraph 47.

[211] Wife's affidavit filed 25 March 2025, paragraph 58.

[212] Wife's affidavit filed 25 March 2025, paragraph 153.

[213] Wife's affidavit filed 25 March 2025, paragraph 15.

[214] Wife's affidavit filed 25 March 2025, paragraph 17.

[215] Wife's affidavit filed 25 March 2025, paragraph 52.

[216] Wife's affidavit filed 25 March 2025, paragraph 20.

[217] Wife's affidavit filed 25 March 2025, paragraph 22.

[218] Husband's affidavit filed 17 April 2025, paragraph 360.

[220] Husband's Financial Statement filed 20 April 2025.

[221] Husband's affidavit filed 17 April 2026, paragraph 149.

[222] Outline of Case Document filed 17 April 2024, paragraph 7.1.

[223] Rule 8.18, Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

[224] New South Wales v Koumdjiev [2005] NSWCA 247; (2005) 63 NSWLR 353 at [32].

[225] Wife's affidavit filed 25 March 2025, paragraph 289.

[226] Exhibit H23, Questions 17, 18 and 19.

[229] See Steinbrenner & Steinbrenner [2008] Fam CAFC 193.

[230] Trevi & Trevi [2018[ FamCAFC 173; AJO & GRO [2005] FLC 93-127.