Pavlik & Reubens [2025] FedCFamC2F 336 (14 March 2025)

Bevan & Bevan (2003) FLC 93-545; [2013] FamCAFC 116

Biltoft & Biltoft [1995] FamCAFC 45; (1995) FLC 92-614

Candle & Falkner (2021) FLC 94-069; [2021] FedCFamC1A 102

Chapman & Chapman (2014) FLC 93-592; [2014] FamCAFC 91

Chorn & Hopkins (2004) FLC 93-204; [2004] FamCA 633

Demeny & Ogden (2021) 371 FLR 444; [2021] FedCFamC1A 21

Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154

Fielding & Nichol (2014) FLC 93-617; [2014] FCWA 77

In the Marriage of Beneke (1996) FLC 92-698; [1996] FamCA 82

Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78

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

Noetel & Quealey (2005) FLC 93-230; [2005] FamCA 677

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Oamra & Williams (2021) FLC 94-035; [2021] FamCAFC 117

Omacini & Omacini (2005) FLC 93-218; [2005] FamCA 195

S & S [2000] FamCA 262

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

Trask & Westlake (2015) FLC 93-662; [2015] FamCAFC 160

Wallis & Manning (2017) FLC 93-759; [2017] FamCAFC 14

Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; [2003] HCA 48

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

1. All extant interlocutory orders be discharged, including order 4 of the orders made on 8 March 2024 and order 5 of the orders made on 4 September 2024.
2. The respondent pay to the applicant, by payment to the trust account of Miltons Lawyers, the sum of $264,581 ("the payment"), within 60 days ("the date").
3. The applicant retain to the exclusion of the respondent:

(a) His interest in the real property situated at B Street, Suburb C;

(b) His Motor Vehicle 1;

(c) Any personal effects in his possession;

(d) Monies in his personal bank accounts; and

(e) Responsibility for liabilities in his name.

1. Save as provided by these orders, the respondent retain to the exclusion of the applicant:

(a) Her interest in the real properties situated at:

(i) D Street, Town E ("Town E"); and

(ii) F Street, Suburb G ("Suburb G").

(b) Her interest in H Pty Ltd, J Pty Ltd, K Pty Ltd, M Pty Ltd, L Pty Ltd, the N Investment Trust, and any other interest she has in any corporate entity or trust ("entities");

(c) Motor vehicles registered in her name or in the name of the entities;

(d) Her animals;

(e) Plant and equipment at Town E;

(f) Monies in her personal bank accounts;

(g) Any personal effects in her possession; and

(h) Responsibility for all liabilities in her name.

1. In the event the respondent does not make the whole of the payment to the applicant by the date, the respondent forthwith do all acts and things and sign all documents as may be required to effect the sale of Town E ("Town E sale").
2. For the purposes of the Town E sale, unless otherwise agreed by the parties in writing:

(a) Within 14 days of the date, the respondent engage an agreed agent ("selling agent") to conduct the Town E sale and failing agreement:

(i) The respondent nominate three agents within 7 days of the date and the applicant select one of those agents within a further 7 days;

(ii) If the respondent fails to nominate three agents in accordance with order 6(a)(i), the applicant select the selling agent; and

(iii) If the applicant fails to select an agent from those nominated by the respondent in accordance with order 6(a)(i), the respondent select the selling agent.

(b) The sale price be no less than $1,975,000;

(c) The method of sale and terms of conditions of sale be agreed by the parties with regard to the advice of the selling agent and failing agreement, the parties have liberty to apply by way of an Application in a Proceeding supported by affidavit; and

(d) The applicant is authorised to liaise directly with the selling agent to obtain details relevant to the sale.

1. The proceeds from the Town E sale be distributed as follows:

(a) First, to pay all costs and commissions of sale including selling agent's fees and conveyancing costs;

(b) Secondly, to discharge the mortgage secured against the title of Town E and any other encumbrance affecting Town E;

(c) Thirdly, to pay an amount to the applicant being the dollar equivalent of "X" in the following equation less any part of the payment already made by the respondent:

"L" is the net proceeds remaining from the Town E sale after the payments made pursuant to each of orders 7(a) and 7(b)

"A" is the value of property retained by the applicant pursuant to these orders, fixed in the sum of $270,418

"R" is the value of property retained by the respondent pursuant to these orders (excluding Town E and the loan(s) secured by mortgage against Town E), fixed in the sum of $1,944,578; and

(d) Finally, the balance then remaining to the respondent.

1. Pending the payment, the respondent is restrained from further encumbering Town E without the applicant's consent in writing.

1. Unless otherwise specified in these orders and save for the purpose of enforcing any monies due under these or any subsequent orders:

(a) Each party be solely entitled to the exclusion of the other to all property (including choses in action; and any superannuation) in the possession or sole name of such party;

(b) Insurance policies remain the sole property of the owner named therein;

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

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

1. In the event either party refuses or neglects to execute any deed or instrument as directed by these orders then a Registrar of the court be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) ("the Act") to execute the deed or instrument in the name of that person and to do all acts and things necessary to give validity and operation to the deed or instrument.
2. All extant applications be dismissed.

1. Pursuant to section 81 of the Act it is intended these orders will, as far as practicable, finally determine the financial relationships between the parties and avoid further proceedings between them.

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

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

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

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

1. Before me is an application for an alteration of property interests under section 79 of the Family Law Act 1975 (Cth) ("the Act").
2. The applicant is Mr Pavlik. The respondent is Ms Reubens. I will refer to them as the husband and the wife respectively reflecting their former relationship, without intending any disrespect to them.
3. The parties were in a relationship for approximately ten years and were married for approximately one year of that time. The period of their cohabitation was in dispute but I find it was approximately four years and three months by the time their marriage broke down. They lived together for a further two months, under the one roof, before living separately and apart. They had been separated for some 3.5 years by the time of the final hearing. The parties do not have any children.
4. There is some disagreement in relation to the parties' assets and liabilities. In relation to the non-superannuation assets to be divided, the husband contends that whilst he holds legal title to a property in Suburb C along with his brother, the property is held on trust for his parents and does not form part of the pool of assets available to the parties. There are other aspects of the "balance sheet"[1] that are not agreed, including "add-backs" contended by the husband.
5. The parties do not jointly hold legal title to any assets. The most significant of assets acquired by the husband are motor vehicles and superannuation, held in his name. The husband acknowledges he did not make any direct financial contribution to the acquisition, conservation and improvement of assets held by the wife, including real property held in her name, real property and shares held in a trust she controls, and three allied health businesses conducted by the wife through corporate entities in which she has an interest along with a business partner and her parents. He nevertheless contends the parties' relationship was a joint endeavour. He argues he made indirect financial contributions to those assets held in the wife's name, including by meeting some expenses for her benefit and paying to her some of the income he received for undertaking information technology (IT) work for the allied health businesses. He asserts he made significant non-financial contributions by way of paid and unpaid work for the allied health businesses and unpaid work undertaken in respect of the real properties, including work undertaken on the rural property which was the parties' home for over four years of their relationship and from which a farming business was conducted. The husband also contends he made non-financial contributions to the welfare of the family consisting of the parties, including by being primarily responsible for homemaker tasks and by supporting the wife to acquire and conduct the businesses and to undertake further study.
6. The husband seeks orders effecting an alteration of property interests whereby he receives a payment from the wife to result in him receiving non-superannuation assets equivalent to approximately 30% of the combined value of the parties' assets as asserted by him. By the conclusion of the case, he sought a payment of $1,000,000.[2] He also seeks a superannuation split to achieve an equalisation of the parties' superannuation interests, proposing a base amount of $86,977[3] be allocated to him from the wife's superannuation.
7. The wife seeks the husband's application be dismissed, submitting it is not just and equitable for there to be an alteration of property interests. She contends the parties conducted their relationship on the assumption they would each be entitled to the property in their respective names and would not make a claim against the other. She asserts that, relying on that assumption, they maintained separate finances, at no time acquiring property in joint names, and there is no principled basis to interfere with the existing legal ownership of assets and superannuation. She contends the husband made minimal contributions of any description, that he was paid for the IT work he undertook in the businesses and that he has received a benefit for his other contributions, including by his occupation of the home registered in her name at no financial cost to him.

1. The following issues therefore require determination:

(a) Identification of the parties' existing legal and equitable interests in property, including in respect of the Suburb C property;

(b) Should the add backs contended for by the husband be included on the balance sheet and taken into account alongside the parties' legal and equitable interests in property?

(c) Is it, in all the circumstances, just and equitable for there to be an alteration of those interests?

(d) If the answer to (c) is yes, what order (if any) altering the parties' interests in property is appropriate and just and equitable in all the circumstances, taking into account:

(i) Those matters required to be considered by section 79(4)(a) to (d) of the Act, in particular, an evaluation of the parties' contributions; and

(ii) Pursuant to section 79(4)(e), those matters set out in section 75(2) as are relevant.

1. The matter was listed before me for final hearing on 16 September 2024 and ran for three days. The parties were represented by counsel. The parties attended at court in person and were both cross-examined. Those witnesses required for cross-examination also attended at court in person, save for one of the wife's witnesses who was cross-examined by video.

1. The documents relied upon by the parties are set out in their outline of case documents ("case outlines") together with additional tendered documents which were marked as exhibits.
2. In addition to those documents marked as exhibits during the hearing, the parties tendered the following joint documents at the commencement of the hearing, which I also mark as exhibits:

(a) Comparative balance sheet;[4]

(b) Agreed chronology of events;[5] and

(c) Comparative minute of orders sought,[6] setting out the terms of the final order sought by each party. I note none of the orders sought are agreed. The parties join only in seeking the court make a notation pursuant to section 81 of the Act reflecting their mutual desire for orders to be made finally determining their financial relationships and avoiding further proceedings between them.

1. Counsel for the husband also tendered a supplementary written submission, in the form of a table setting out the effect of orders sought by the husband and an aide memoire in support of his oral closing submissions.[7] It was confirmed with counsel before the conclusion of the hearing that I would be relying on the parties' filed costs notices. Counsel confirmed I may also go to the specific paragraphs of prior affidavits put to the parties in cross-examination.

1. Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.

1. Whilst objections to evidence had been foreshadowed,[8] counsel for the parties took a pragmatic approach and opted to make submissions in relation to the probative value of evidence before me rather than requiring determination of individual objections to evidence at the outset of the hearing. The wife's objection to the husband tendering recordings of conversations between the parties, including a conversation by phone, was ultimately not pressed.
2. I have read and considered all of the evidence adduced by the parties. If I have not mentioned a piece of evidence or an argument presented at the hearing that does not mean I have not considered it. As the High Court said in Whisprun Pty Ltd v Dixon:[9]

A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.

1. In relation to the parties' evidence generally, I find the parties each emphasised their own contributions and downplayed the contributions of the other. I found the husband at times overstated his contributions and the wife at times denied contributions made by the husband, later acknowledged by her. I have therefore looked closely at the concessions made by each of them in their oral evidence and for corroboration from other evidence.

1. The husband's application is made pursuant to section 79 of the Act, which provides (as relevant to this proceeding):

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

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

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

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

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

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

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

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

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

1. In Stanford v Stanford,[10] the High Court of Australia confirmed that before making any order altering the interests of the parties to a marriage in property, section 79(2) of the Act requires the court to be satisfied, in all the circumstances, it is just and equitable to do so. If so satisfied, the court then has power under the Act to make such order as it considers appropriate, after considering the matters set out in sections 79(4) and section 75(2), insofar as they are relevant.
2. In relation to the operation of section 79, the High Court in Stanford recorded three fundamental propositions,[11] which were summarised concisely by the Full Court in Oamra & Williams as follows_:_[12]

The first was the need to identify existing legal and equitable interests; the second was that those interests can only be altered by a principled application of judicial discretion; and the third was that, whilst s 79(4) considerations are relevant to the task, s 79(2) requires separate consideration and should not be conflated with the statutory considerations under s 79(4) of the Act.

1. In relation to the task of determining whether it is just and equitable to make an order altering the interests of the parties in property once those interests have been identified, the High Court in Stanford explained [citations omitted]:[13]

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

[41] [...] if the parties to a marriage have expressly considered, but not put in writing in a way that complies with Pt VIIIA, how their property interests should be arranged between them during the continuance of their marriage, the application of these principles accommodates that fact. And if the parties to a marriage have not expressly considered whether or to what extent there is or should be some different arrangement of their property interests in their individual or commonly held assets while the marriage continues, the application of these principles again accommodates that fact. These principles do so by recognising the force of the stated and unstated assumptions between the parties to a marriage that the arrangement of property interests, whatever they are, is sufficient for the purposes of that husband and wife during the continuance of their marriage. The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.

[42] In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).

1. In Bevan & Bevan,[14] the Full Court observed in respect of the third of these paragraphs from Stanford:[15]

In our experience, the circumstances described [...] above encapsulate the vast majority of cases. Hence, the reminder in Stanford of the pivotal role of s 79(2) is unlikely to have any impact in most cases, although it will serve as a reminder to trial judges that the precondition to making any order is a finding that it is just and equitable to do so.

1. In Oamra,[16] the Full Court observed it was clear from the passages I have set out above from Stanford, with the Full Court's emphasis marked, that the High Court was talking about mutual assumptions and mutual agreements:

The words which we have emphasised [...] make it clear that the High Court was talking about mutual assumptions and mutual agreements. Axiomatically any agreement must be mutual. The High Court makes no reference to unilateral assumptions and the reference to "a choice made by one or both of the parties" in the first sentence of [42] is a reference to a unilateral decision to leave the marriage. The primary judge was correct to record that mutual assumptions and agreements which are informed and truly consensual will potentially inform whether it is just and equitable to make any order altering property.

1. In relation to the matters that might be taken into account in determining whether it is just and equitable to alter the existing interests of property, including the relationship between section 79(2) and section 79(4), the Full Court explained in Bevan:[17]

[84] Just as the expression "just and equitable" does not admit of exhaustive definition, it is not possible to catalogue the "range of potentially competing considerations" that may be taken into account in determining whether it is just and equitable to make an order altering property interests. However, in our view, it would be a fundamental misunderstanding to read Stanford as suggesting that the matters referred to in s 79(4) should be ignored in coming to that decision. Indeed, such a reading would ignore the plain words of s 79(4) which make clear that in considering "what order (if any)" to make, the court must take into account the matters referred to in that subsection.

[85] This requirement to consider the s79(4) matters, in determining whether it is just and equitable to make any order provides fertile ground for potential conflation of the two different issues, which the High Court has warned against. However, this potential will not be realised in many cases because of what the plurality said at [42] about the "just and equitable" requirement being "readily satisfied". But there will be a range of cases, of which arguably the present is a good example, where determining whether it is just and equitable to make any order altering property interests will not be so clear cut and will therefore require not only separate but very careful deliberation.

[...]

[87] It will be seen from this discussion that while the s 79(2) and s 79(4) issues must not be conflated, they are intertwined because the text of the Act links them. This was recognised in Ferguson & Ferguson where Strauss J said that s 79(2) "is directed to both the questions whether an order should be made at all, and what the order should be, if one is made" (supra at 77,615).

[88] This understanding of the interplay between ss 79(2) and 79(4) accords with the analysis of Martin Bartfeld QC in his paper entitled "Stanford and Stanford - Lots of Questions - Very Few Answers". In that paper, which we drew to the attention of counsel, Mr Bartfeld opined that:

1. ... there is scope for taking into account the factors under s 79(4) in the exercise of the [s 79(2)] discretion. This can be accomplished, it is submitted, by treating the contribution factors and the factors under s 75(2) as having two simultaneous characteristics;

   1. A discretionary characteristic, which is used to identify those matters which are relevant to enliven the exercise of the discretion. Thus the fact that a party has made substantial contributions, over a long period of time, which are not reflected in their asset holdings but which are reflected in the other party's assets may found a basis for finding that it is just and equitable for an order to be made; and

   2. An evaluative characteristic, which is used to measure the weight or to quantify the effect of a particular contribution.

   3. The problem of conflation can easily be overcome by clearly identifying the use to which a factor is being put.

[89] In our view, it will be less likely that the separate issues arising under s 79(2) and s 79(4) will be conflated if judges refrain from evaluating contributions and other relevant factors in percentage or monetary terms until they have first determined that it would be just and equitable to make an order. ...

[emphasis per original]

Findings of fact concerning the parties' financial history (i.e. their contributions) and their present circumstances and future prospects made in the context of s 79(4) will also assist, but such findings cannot (according to Stanford) be conclusive in determining whether or not it is just and equitable to make an order altering any particular property interest.

1. Considering Bevan and Chapman & Chapman,[19] Thackray CJ explained in Fielding & Nichol:[20]

_The fact the "two inquiries" under s 79(2) and s 79(4) are "separat_e" and "not to be merged" also does not mean, as a matter of logic, that matters arising under s 79(4) can be ignored when deciding whether it is just and equitable to make any order adjusting existing interests. The provisions of s 79(4) encompass what Finn J in Bevan & Bevan described as "the parties' financial history (ie their contributions) and their present circumstances and future prospects" - and her Honour went on to hold that findings of fact about those matters will assist in determining whether it is just and equitable to make any order. Similarly, as the Chief Justice pointed out in Chapman & Chapman at [5], "the matters referred to in subparagraphs (a) to (c) of s 79(4) in particular, would be likely to embrace much of the factual substratum on which any exercise of discretion would be based". ...

1. Because findings of fact concerning the parties' financial history, including their respective contributions, and their present circumstances and future prospects are relevant to determining whether or not it is just and equitable to make any order altering the parties' property interests, I first set out that financial history and my findings in respect of it.

1. The husband is 42. He is employed as a community worker with a government authority, earning approximately $60,000 per annum, working four days each week.
2. The wife is 37. She is an allied health worker and director of the three allied health businesses which are among the assets the subject of this proceeding. She also runs a farming business from a property registered in her name which was the parties' home during their relationship, being the property at D Street, Town E ("Town E"). She deposes to total business and investment income of approximately $168,168 per annum, less a loss of $112,008 per annum in respect of the farming business. [21] On this basis, she deposes to total annual income of $56,160 per annum. As explained later in my reasons, I find this does not accurately reflect the wife's financial circumstances and I note the estimate provided by the wife in her trial affidavit, of her taxable income for the 2024 financial year at $105,636.
3. Both parties are in good health, although the husband deposed he was in receipt of WorkCover payments at the time his financial statement was filed.

1. The parties met in late 2010. Whilst the husband asserted the parties entered a "committed relationship" in late 2011, the wife denied this, and the husband did not give evidence of what he meant by this. It does not in my view matter.
2. It is not in dispute the parties lived in different suburbs to one another until 2016.[22] During that time, the husband generally stayed with the wife on alternate weekends.
3. The husband contends the parties began living together at Town E in November 2016. The wife contends she lived alone for a period in Town E and the husband moved in between December 2016 and May 2017. She deposed:

I lived in the [Town E property] alone for some time and contemplated getting a housemate to help pay the mortgage over the property. [The husband] ultimately decided to come and live with me permanently sometime between December 2016 and May 2017. I cannot recall a definitive date that [the husband] moved in as when he first moved in he was still living between the [Town E property] and [Suburb C]. Eventually, [the husband] started living in at the [Town E property] full time.

1. I prefer the husband's account, that he began living with the wife in November 2016, which was corroborated by his unchallenged evidence that he notified Telstra of his change of address in November 2016 and only shortly pre-dates the time range given by the wife. The wife's account was vague by contrast and seems to distinguish between the husband living with her "full time" and continuing to spend some time at Suburb C. Nevertheless, little turns on the determination of this dispute given the parties are married, so no jurisdictional issue arises, and it is the analysis of the parties' contributions that is important, rather than the date of cohabitation.[23]
2. The parties were engaged to marry in 2019 and married in 2020.
3. They separated on a final basis on 29 March 2021, initially under the one roof. They began living separately and apart in June 2021 when a family violence order naming the husband as the respondent and the wife as a protected person was served and the husband was required to vacate Town E. The parties are divorced by way of order made in mid-2022.

1. In 2011, when the parties commenced their relationship, the husband was 28 years old, living with his parents. He was working as a community worker in a role he had held since approximately 2005. The husband deposed his taxable income was $48,557 in 2011. He had previously commenced but not completed a technology course and had commenced but not completed a transport worker course. His parents were meeting the cost of the transport course.
2. In 2011, the wife was living in a shared house in Suburb O and then returned to live with her parents, undertaking the final year of her allied health studies at university. It was not disputed that her taxable income was $12,304 in 2011.
3. The parties each owned a motor vehicle and had some superannuation.
4. In his case outline, the husband claims he provided the wife with financial support, by way of contributions to rent and utility bills and meeting various expenses from the commencement of their relationship in 2011. About this, he deposed:

Due to [the wife] not being employed at the commencement of our relationship and being financially supported by her parents, I financially supported her when we were together. [The wife] and I had a mutual agreement that she not be required to contribute to my rental payments, utility bills or other outgoings when she stayed with me, yet when I stayed the night at her residence, I would contribute by way of paying [the wife] money in cash to cover a portion of the utilities and to assist her.

1. When cross-examined, the husband acknowledged that during this time he did not contribute towards the wife's rent, cost of her education or motor vehicle costs. He acknowledged the wife could not have been required to contribute to his rental payments, utility bills or outgoings as he was living at home with his parents. In relation to the expenses he did pay for the wife at this time, he gave oral evidence he paid for take-away lunches, movies and dinners when they went out on dates. After hearing the husband's evidence I was not persuaded he gave the wife cash towards utilities or to assist her generally during this time or that he made substantial contribution to her expenses.
2. In 2012, the wife commenced employment as an allied health worker.

1. In 2012, the wife purchased a block of land at F Street, Suburb G ("Suburb G") for $112,000 and a house was subsequently built on the property at a cost of approximately $190,000. The wife gave evidence the purchase was funded by personal savings of around $25,000, a loan from her parents of $10,000, a home-owner's grant and a loan secured by mortgage. The wife's father deposed he made a gift of $10,000 to the wife to the deposit for Suburb G but the wife maintained it was a loan and was repaid by her. Either way, the husband acknowledges he did not make any financial contribution to the acquisition and construction of Suburb G or to the property thereafter. Following construction of the home, the wife moved into Suburb G. She had flatmates stay with her at Suburb G which assisted her to meet mortgage repayments. The husband remained living with his parents.
2. The husband asserted he made various non-financial contributions in respect of Suburb G. However:

(a) He acknowledged that whilst the parties had discussions about Suburb G, the wife decided to purchase the property independently of any opinion he may have had;

(b) He acknowledged he did not engage with the builders at all during the build;

(c) He deposed "being a new build, there was a lot of gardening and landscaping work to be completed" and that the parties attended together to "work on the garden" and "gradually [improve] the landscaping." However, when cross-examined, he acknowledged the wife engaged landscapers to attend the landscaping. He gave oral evidence "we did some rocks [...], planting trees etcetera." He said they laid rolls of grass paid for by the wife but acknowledged it was for a small section of the backyard and didn't take much time. He said this gardening work was undertaken by the parties together although there were times when he started before the wife "when she came from work on a Saturday";

(d) The husband deposed he completed any repairs that needed to be done, including paying for materials and tools and assembling and moving furniture. However, from his evidence given under cross-examination, the extent of that work appeared to be purchasing a cupboard and putting it together, installing hooks and repairing stuck door hinges and a drawer. He agreed these were minor repairs, the home was a new build, defects were attended to by the builder and "not a great deal" of repairs were required; and

(e) The husband ultimately acknowledged the work undertaken at Suburb G came down to some very minor repairs and some gardening. He had deposed he "spent countless hours working at the [Suburb G] property" but when challenged about this gave evidence "it would be correct to say I spent countless hours because I did not count them." In the end, he agreed with the summary of his oral evidence put to him by counsel for the wife that this work was undertaken over "a few hours a day over a fair few weeks".

1. In 2014 the wife moved to live in rental accommodation. Suburb G was tenanted from 2014.

1. In 2014, the wife established the N Investments Trust ("the trust") of which P Pty Ltd is trustee ("trustee company"). The trust is controlled by the wife as sole director of the trustee company, and she deposed she is the principal and primary beneficiary of the trust.

1. In 2014, the allied health business known as K Business, was purchased by the wife for $205,000. The business is conducted via K Pty Ltd which in turn is owned by J Pty Ltd ("J Pty Ltd"). The wife has a 90.04% shareholding in J Pty Ltd via H Pty Ltd of which she is the sole shareholder.[24] The wife's parents hold the balance of shares in J Pty Ltd.
2. The husband deposed "We purchased [K Pty Ltd] by borrowing $100,000 from [the wife's] parents and taking out a business loan in [the wife's] sole name. [emphasis added]. This was in contrast to previous evidence given by him on affidavit, including [emphasis again added]:

In 2015, [the wife] wanted to purchase her own [allied health] business. She purchased the [K Pty Ltd] [...].

(b) In his affidavit sworn and filed on 1 September 2023:

In 2015, [the wife] wanted to purchase her own [allied health] business. I supported [the wife] in her desire to do this.

In 2016, [the wife] purchased [K Pty Ltd] [...].

1. In his trial affidavit, the husband acknowledged the wife found this particular business for sale. When cross-examined, he conceded "[the wife] organised the loan" and "[the wife] went out and purchased the [K Pty Ltd]" and he was not involved in the acquisition. He agreed the wife would "possibly" have purchased K Pty Ltd even if he did not support her doing so. He acknowledged he paid no money towards the acquisition of the business and that the wife's parents advanced money for the acquisition of K Pty Ltd by way of loan to the wife rather than to both of them.
2. The parties agree the husband provided IT services for K Pty Ltd. The wife acknowledged he helped at the start of the business, by setting up the computers used in the business. In her trial affidavit, she estimated he "spent a few hours on this, there were 3 or 4 computers to set up and link together on the same network and uploading basic programs like Microsoft word and like programs" but when cross-examined, she accepted the husband's evidence that he was "tasked with the enormous role of setting up the entirety of the computer systems [...], including the network, running cables and programming". The husband's claim that he digitised the records of K Pty Ltd was denied by the wife, who gave detailed evidence about how customer details were entered into the computer system by staff each time they made contact with the business. The husband's evidence in relation to the work undertaken by him to digitise the records of K Pty Ltd was imprecise, given in the following terms:

Some of the staff assisted with this work, however, I was primarily responsible for it. I cannot recall exactly how long this took me to complete, other than to say I remember it being very time consuming for a period of time.

1. Having considered the evidence of both parties carefully, I accept the husband set up the system for digitisation of the records of K Pty Ltd but I am not persuaded he personally entered a great deal of customer data into the computer system. I find this was likely undertaken by staff of the store as described by the wife.
2. When cross-examined, the wife agreed the husband was not paid for that work but said she "figured" buying him numerous free meals and free products "offset" their dealings. This evidence had not been given on affidavit, suggesting it was a recent reflection rather than an agreement between the parties.
3. The parties agree the husband continued to be responsible for the IT needs of K Pty Ltd after the initial set up. The husband said this was the case on an ongoing basis and the wife said he only undertook this work from the end of 2016 until the end of 2019, so for a period of three years. She agreed anything to do with IT for K Pty Ltd was the husband's responsibility between the end of 2016 and the end of 2019 and said he was paid for that work. The wife gave oral evidence that in the intervening period she used contractors.
4. The husband's evidence given on affidavit about the work he undertook after the initial set up of the computer system at K Pty Ltd was not given with reference to a particular time period, save for calls he said he received while the parties were holidaying overseas together in mid-2016. Whilst he referred to being "on call" and communicating back and forth with staff online, he did not provide particulars of that work or adduce evidence of those communications to corroborate his evidence of that work undertaken by him after the initial set up and prior to late 2016. His friend, Mr R, deposed to the IT work undertaken by the husband at K Pty Ltd only during the period he was also assisting with IT work at that business - for the IT set up from 2017 (which date must be incorrect as K Pty Ltd was purchased in 2014) and for various IT tasks between August 2019 and March 2021. In the absence of more detailed evidence about this period or corroborating evidence, I am not persuaded the husband undertook regular IT work for K Pty Ltd between the initial set up and late 2016 when he began invoicing for his work.
5. The wife ultimately agreed she benefited from the work the husband undertook for K Pty Ltd and that his work "added value to the business" although qualifying that in her view it did so "in a very minor way."
6. The husband gave evidence he also attended to what he described as "handy man" tasks at the K Pty Ltd store, including repairing holes in the wall, changing light globes, repairing and rearranging the display units, repairing drawers, cleaning spills on the carpet and other tasks. The wife denied this work was undertaken by the husband and admitted only the husband may have created grommet holes for cables. My assessment of this evidence is that even if the husband undertook some handy man tasks for K Pty Ltd, they were minor in nature.

1. In early 2016, the allied health business now known as M Business was purchased for $300,000 plus stock. The wife deposed to the acquisition of the business, initially via a trust in which her parents had a 30% interest, reflecting their contribution of $100,000 to the purchase price. M Business is conducted via the company, M Pty Ltd. The wife's interest in M Pty Ltd is held via the interest of H Pty Ltd in J Pty Ltd.[25] J Pty Ltd now holds 51% of M Pty Ltd in circumstances I will explain chronologically.
2. The building rented by M Pty Ltd from which that business operates is owned by the wife's father's self-managed superannuation fund. The wife deposed to renovations undertaken to the building, paid from cash flow from the business, completed in mid-2016.
3. The husband deposed he aided in planning and preparation for renovations to M Pty Ltd including by "knocking down walls [...], ripping up the carpet etc." The wife agreed the husband helped to knock down one wall. She denied he helped rip up carpets at the premises and agreed she was saying the husband was "making that up" when that proposition was put to her by way of cross-examination. However, her father gave oral evidence the husband was involved in ripping up the carpets, which he said took about six hours, although he qualified his evidence saying the husband was involved for "a minor part of it". After considering all of the evidence I find the husband assisted at the M Pty Ltd premises to knock down one brick wall over a single day with the wife and other members of her family, to cart bricks to a bin and to rip up some carpet. The wife acknowledged the husband was not paid for this work. Even accepting the evidence of the husband, as supported by the evidence of the wife's father, the husband's contribution to this work was minor, consisting of a day's physical work along with other family members. I find the wife and her father were primarily responsible for planning and overseeing the renovations to the M Pty Ltd premises as deposed by them.
4. The husband deposed he set up the IT for M Pty Ltd which included networking, setting up new computers and upgrading some old computers. He did not say when this work was undertaken. He deposed he then continued to maintain those systems and was on call during operating hours to provide IT support to staff when required. In response to this aspect of the husband's evidence, the wife gave evidence the husband undertook paid work for M Pty Ltd, from 2017 onwards. She disputed he set up new computers at M Pty Ltd, giving evidence computers were acquired with the business, and she denied the husband was "on call" for IT support. I accept the evidence of the husband in respect of work undertaken by him for M Pty Ltd generally, including assisting staff with computer issues over the phone, which was supported by the unchallenged evidence of Mr R. I will return to consider the matter of payments received by the husband for the work undertaken by him for the businesses, later in my reasons.

1. Town E was purchased in 2016 for $1,220,000, in the wife's name. Settlement was effected in late 2016. The wife deposed she paid the deposit of approximately $240,000 from personal savings plus stamp duty of $67,000, and took out a loan secured by mortgage to fund the purchase. The husband did not make any financial contribution to the acquisition of Town E.
2. It was not disputed the husband was involved in the wife's search for a suitable property, including attending to view some properties and including the first inspection of Town E. However, the husband did not challenge the wife's evidence that Town E was purchased because of her love of animals and wish to acquire a farming property.
3. I have found the parties began living together from November 2016. By this time, the husband had sold his Motor Vehicle 2 and taken out a loan to fund the purchase of Motor Vehicle 3 for approximately $35,000. When cross-examined, he agreed he had a bank loan of approximately $45,000 by this time, relating to the purchase of his motor vehicle and to pay off "some small credit card debts here and there".
4. The wife subsequently established a farming business running from Town E, operating as a sole trader. Expenses of the business include a contribution of $880 per week towards the home loan secured against Town E.
5. The wife deposed to improvements made to Town E funded by increasing the borrowings secured against the property, including to build an indoor area in 2017 and a further outbuilding in 2018.
6. It is not disputed the wife's father undertook significant maintenance and improvement work to Town E, over about one weekend each month, from the time the property was purchased.
7. The husband does not assert he made any direct financial contribution to the mortgage or outgoings of Town E. He does however contend he made an indirect financial contribution by way of income paid to him by the businesses which he refunded in part to the wife and she then in turn applied to expenses.
8. The husband deposed he used his bank account predominantly for any joint expenses, outgoings and the assets of the relationship which could not be utilised for tax purposes. This evidence was disputed by the wife and where the husband did not adduce bank records or other evidence to support this evidence, I do not accept it. The wife said that whilst they discussed and agreed the husband would contribute to utilities and internet at Town E, he did not do so and she paid those expenses. Both parties gave evidence they purchased groceries to a greater extent than the other. After considering their evidence, I find only that they each purchased groceries.
9. The husband deposed in his trial affidavit to various work he undertook to maintain Town E.[26] He elaborated on that evidence when cross-examined and I found his evidence convincing. In her trial affidavit the wife deposed the husband "did not do regular labour outside at [Town E] and was not involved in the [farming] business". The wife's evidence under cross-examination demonstrated a reluctance to acknowledge any contributions made by the husband in respect of Town E and a tendency to minimise the extent of those contributions admitted by her. By way of example only:

(a) When asked if she admitted the husband did tractor work the wife answered, "No. I know that he utilised the tractor for his own benefits, not for the purpose of the entire property." She did not explain what she meant by "his own benefits". She then agreed the husband would sometimes mow the lawn and used the tractor to slash the orchard. When giving this evidence, she qualified her evidence to describe the orchard as "very, very small". She later reluctantly accepted slashing the grass in the orchard was an important part of protecting the property from fire during the summer months and therefore constituted a contribution to the conservation of the property. When asked if the husband slashed paddocks, the wife admitted he slashed the orchard, adding, "the orchard doesn't count as a paddock";

(b) She denied the husband was responsible for grading the animal area but then admitted he may have undertaken that work "on one or two occasions" when she was absent from the property. When presented with copy text messages between the parties which I will refer to shortly, the wife admitted she told the husband the animal area needed to be graded on a daily basis and that she had asked him to do it daily for the period he was doing it for her;

(c) When presented with the text messages between the parties and asked if they demonstrated the wife was relying on the husband to carry out tasks essential to the functioning of the farm in her absence, the wife admitted this was the case but only in respect of her particular absence during the period of the specific text messages put to her;

(d) The husband deposed he cleared trees at Town E, which included cutting them down and removing them. When asked under cross-examination if the husband cleared trees, she said he "cut down a tree that I recall". This was inconsistent with her affidavit evidence asserting the husband "cut down the trees because he wanted to see the view" [emphasis added];

(e) When asked if the husband was responsible for maintenance of the fences and gates at Town E, the wife answered, "no". When presented with text messages between the parties she admitted they referred to the husband having undertaken fencing repairs;

(f) She admitted he "might have done some gardening in the garden, but that is the full extent." When subsequently asked if he was responsible for the maintenance of the front garden, she answered "I didn't think he was responsible for it. He partook in it on a shared basis";

(g) She admitted she might have asked him to walk her animal, qualifying her admission by answering, "once or twice, but [the animals] don't generally need walking on a regular basis";

(h) She admitted the husband liaised with owners of neighbouring properties, answering "He has spoken to our neighbours, yes, but we don't need to talk to them [...] very often. It might have happened three times over the course of that time"; and

(i) When asked if he relocated stray cattle, she answered "We don't have cattle." She then added, "The neighbour's cattle did end up on our property one time and he did relocate that back to the neighbours, yes. It was a one-time occasion."

1. Tendered copies of text messages between the parties[27] reveal on numerous occasions from 2018 to 2021:

(a) The wife asking the husband to undertake work at Town E, including grading the animal area and organising quotes for repairs;

(b) The wife asking the husband to contact neighbours about trespassing livestock;

(c) The wife asking the husband to collect supplies for the animals at Town E;

(d) The wife asking the husband to check the farm building gutters;

(e) The wife asking the husband to purchase groceries;

(f) The wife asking the husband to purchase a new float for a water trough on the property;

(g) The husband informing the wife of work he had undertaken at Town E, including grading and watering the animal area, fence repairs and moving animals,

(h) The husband expressing excitement at the thought of a new mower, supporting his evidence that he regularly undertook mowing at Town E, and the wife sharing in that joke;

(i) The husband asking for help hooking the slasher to the tractor, consistently with his evidence that he regularly slashed the grass at Town E;

(j) The husband organising the tractor to be serviced;

(k) The husband investigating the purchase of a snipper for Town E;

(l) The husband undertaking research for repairs to an air conditioner at the property; and

(m) The husband attending to farming enquiries.

1. When these messages were put to the wife, she admitted the contributions made by the husband referenced in the messages but sought to qualify or minimise those contributions in her answers. It was contended on behalf of the wife that these messages showed only a small number of contributions during the parties' relationship, confined to the dates of the selection of messages tendered, and that they predominantly related to the period shortly before and after separation and the time the husband was on WorkCover. However, this did not accord with the evidence given by her on affidavit that the husband "did not help [her]" during the periods he was off work, including when on Workcover. I find it likely the messages only represent a proportion of the work undertaken by the husband during the parties' relationship and that other work was undertaken without being the subject of text messages. These messages corroborate the evidence given by the husband and undermine the evidence given by the wife, supporting my finding that her evidence understated the contributions made by the husband in respect of Town E.
2. My impression of the wife's father's evidence was that he was also reluctant to acknowledge any work undertaken by the husband, including at Town E, and that those contributions that were acknowledged by him were minimised. He did acknowledge the husband conducted research and identified a fault in an air conditioner at Town E which was consistent with the husband's evidence. He agreed the husband installed a warning light on the front gate at Town E.
3. The husband's friend, Mr R, was not challenged in respect of his evidence that between 2017 and 2021, including on five occasions between December 2019 and January 2021, he observed the husband engaged in work including: installing and mending fences; cutting, pruning and removing trees; landscaping the front yard including removing shrubs and trees, levelling soil, installing border, cutting and laying weed mat, spreading crushed rock; "fire safing"; and setting up Wi-Fi access throughout the house.
4. The husband's friend, Mr T, was not challenged in respect of his evidence that between 2017 and 2021 he assisted the husband with work at Town E including: mowing the lawn, collecting and discarding trimmings; clean-up of the property and garden; maintenance of overgrown trees, including the removal of some trees; removal of shrubs; installation and repair of fencing; and removal of weeds.
5. I was not assisted by the evidence of Ms U who has rented a home at Town E since mid-2018 and has undertaken paid work at the property. She deposed she observed the wife undertaking work at Town E but did not see the husband or any of his friends assisting with labour around the property. I put no weight on this evidence where even on the wife's evidence, the husband did undertake work on the property at Town E.
6. After considering all of the evidence and the above matters in particular, I find the husband made significant non-financial contributions to Town E during the period of more than four years they lived there together.
7. The husband contended he was "predominantly" responsible for home duties during the time the parties lived together at Town E, completing "70% of the cooking and 90% of the household chores". In his trial affidavit, the husband described doing dishes, cleaning the kitchen, bathrooms, vacuuming, mopping, dusting, removing spider webs, unblocking toilets, washing windows and minor household repairs. He gave oral evidence of washing certain pots and pans by hand. He acknowledged tasks undertaken by the wife, including changing the bedsheets, doing her own laundry and occasional vacuuming and mopping. In response to that evidence, the wife deposed the parties both used the dishwasher and disputed the husband undertook minor household repairs. She acknowledged the husband did more vacuuming. The wife otherwise asserted the parties both completed "usual" household chores. However, in contrast to the husband's evidence, the wife did not describe the tasks she undertook, save for those acknowledged by the husband. Text messages between the parties in October 2019[28] and March 2020[29] recorded the husband referring to work he was undertaking at home, including cleaning the house, mopping, vacuuming and sweeping daily. He acknowledged in his oral evidence the wife took on these tasks for a period while he had an injured wrist. In a text message sent to the husband in October 2019, the wife said she did clothes washing (but the oral evidence indicated they each did their own laundry), attended to the dishwasher (which she deposed was a shared task), bought groceries (which I have found both parties did) and made sure the electricity kept working (by which I infer she meant paying household bills). The husband deposed he usually cooked dinner four to five times a week and the wife usually two or sometimes three times a week. The wife contended she "ended up doing the majority of the cooking" but also gave evidence the husband "often" brought home meals from his parents and on other occasions he would purchase takeaway or prepared meals. The husband agreed he often brought meals cooked by his parents and gave evidence this was in addition to cooking quick, easy meals for the two of them. The husband deposed he took on a greater proportion of household duties during 2020 when he was off work due to a workplace injury. This was denied by the wife in her trial affidavit, but it was later submitted on her behalf that household and property tasks undertaken by the husband referenced in tendered text messages between the parties reflected periods the husband was able to attend to matters within Town E while on WorkCover and not meaningfully employed.
8. After considering all of the evidence, I find the husband contributed to a greater extent than the wife to homemaker responsibilities and this was likely because he was home more during the day (working nightshift and on WorkCover for periods of time) and because of the volume of time the wife devoted to the allied health businesses, the farming business, further studies, and caring for her animals.[30]

1. In relation to the husband's work for the allied health businesses from late 2016 to late 2019, the wife acknowledged the husband undertook troubleshooting work, including taking and responding to calls from staff in relation to printers, servers, programs and system settings. During that period, the husband issued invoices for IT work undertaken by him which were paid by the wife, from the businesses. It is not in dispute the husband paid to the wife some of the payments made to him by the businesses.
2. The husband deposed he did not receive a set income for his IT services but would invoice whatever funds the wife wanted to draw out of the business and "channel them through" his ABN because he was on a lower tax bracket than her. He gave oral evidence he would bill whatever the wife told him to and this would sometimes reflect more or less than the work undertaken by him, depending on what she could take out of the business at the time. When cross-examined, he agreed it would "pretty much" average out over time. He said the monies he paid to the wife from the sums he received from the businesses "would go towards the mortgage or whatever [the wife] needed to put them towards."
3. In respect of this arrangement, the wife asserted the husband was "overpaid" for the work he had done, taking more time than warranted and taking additional time to rectify mistakes he made. She said the husband refused to reduce his invoices, informing her he wanted to improve his borrowing capacity. She deposed:

I told [the husband] he would invoice me at whatever rate he chose but that ultimately I would only pay what was fair. I would review the invoices and then [the husband] at my request, would refund me some of the monies.

She asserted he "retained more than fair payment for the work he undertook at the [businesses]".

1. Given the wife's approach to the conduct of her financial affairs, I find her explanations unlikely. I prefer the husband's evidence that he rendered invoices in amounts advised or approved by the wife and then paid amounts to the wife as requested by her. I find this arrangement was what was described during the final hearing as an "income sharing" arrangement, adopted for the parties to receive money from the businesses and benefit from the lower tax rate paid by the husband.
2. A tendered summary prepared by the wife records payments to the husband totalling approximately $86,000 (rounded) pursuant to invoices rendered between November 2016 and October 2019, plus superannuation contributions of approximately $4,886.[31] An updated table jointly tendered at the conclusion of the hearing[32] recorded the husband may have received invoiced payments of up to approximately $98,500 from the businesses during this time.
3. An undisputed summary tendered by the wife recorded the husband made payments to the wife's personal bank account during the same period of approximately $19,565.[33] A jointly tendered summary[34] recorded transaction descriptions for many of these payments, including the description "mortgage", supporting the husband's oral evidence that these payments were intended to be applied, at least in part, to the mortgage.
4. It was not in dispute the wife also loaned monies to the husband which were repaid by him in 2017.

Husband's requests to acquire an interest in the wife's assets

1. The husband deposed that from around 2018, he started asking the wife to be included in their business endeavours on a formal basis but the wife disagreed, providing reasons including that his lower income would be a risk to any loans she may need. The wife acknowledged the husband sometimes asked about being included within her entities and at one point offered to invest $10,000 in her businesses, which she declined. When cross-examined, the husband agreed the wife was very transparent about not wanting to include him in the businesses. He then qualified that evidence, saying she was clear she did not want his name on her assets.
2. The husband also deposed to discussions about his name being added to the title of Town E, indicating this was something he hoped for, but that the wife and her parents did not support it. The wife agreed she was adamant the husband not be on the title of Town E, that she informed the husband of this and he understood it. I accept this evidence but am not persuaded it means the husband agreed with the wife or accepted that he would not acquire any interest in the property.

1. In mid-2018, the allied health business, L Pty Ltd, was purchased by the wife for $560,000 plus stock. The purchase was funded by a business loan secured against K Pty Ltd and M Pty Ltd. The wife's interest in L Pty Ltd is held via the interest of H Pty Ltd in J Pty Ltd.[35] The husband deposed he told the wife he would like to take out a small business loan and be a silent partner in the business, but she refused, and told him she did not want him to own any shares in the store and she preferred for her parents to do so. L Pty Ltd operates from a site owned by the wife's mother.
2. The husband acknowledged in his trial affidavit he was "less involved" in the purchase of this store than the other stores and he did not even attend the premises until after it was purchased. However, he deposed he was involved in the business set up and maintenance, including by:

[...] upgrading any existing I.T system/s that were in place, upgrading computers, and the network. I maintained the IT services for [L Pty Ltd], taking over from [the company previously providing IT support]. Specifically, I upgraded the computers (physical upgrade and software upgrade), assisted in setting up the VOIP system, maintained smooth operations on all I.T related issues that came up, server and firewall maintenance, I upgraded the server from the old operating exchange system to office 365, I upgraded from command line software to a Gui *graphical user interface* and restored various services, among other things.

1. The wife denied the husband performed "any significant IT works" at L Pty Ltd. However, she admitted "he did upgrade some computers along the way", that he "potentially" maintained the network and that he physically attended the business from 2018 to 2019. When cross-examined, she was not sure if he assisted in setting up the VOIP system and she was "not sure" if he did backups for the network system periodically. She acknowledged he "potentially" upgraded the server to Office 365. She said she did not know about him restoring IT services, and was unsure what other work described in his trial affidavit meant. The wife's evidence in respect of these matters was uncertain and demonstrated limited knowledge of the IT requirements of the business. The husband's evidence was supported by the affidavit evidence of Mr R who was not cross-examined. The husband's evidence was not significantly undermined by the evidence of Ms W, who has been employed as the business manager of L Pty Ltd since late 2020.
2. The husband deposed that in early 2019, he engaged a local IT contractor to assist with L Pty Ltd's IT needs, to save the lengthy travel required for him to attend at the store in person. He deposed he also occasionally engaged another company owned by his friend, Mr R, to assist with large jobs, meeting Mr R at Town E and then travelling together to the store requiring IT services. This was consistent with Mr R's unchallenged evidence.
3. I am satisfied the husband undertook significant IT work for L Pty Ltd from the time it was purchased, in 2018, including physically attending at the store on occasions.

1. The husband deposed that for all stores, after he had set up the IT systems, he continued to maintain them. He said he completed maintenance on weekends, especially Sundays, often logging in remotely from home, performing backups and updating the computers. When cross-examined about this evidence the wife responded only that she did not know how often he would have done that and suggested a backup would be monthly. I was not persuaded from her evidence that she knew what was required to maintain the business IT systems or exactly what work was undertaken by the husband. About this work, I accept the husband's evidence. The husband deposed that as the stores were acquired, his role expanded. He estimated he ultimately spent approximately 10 to 15 hours per week undertaking work for the businesses. The wife estimated it was "probably a few hours a month." Whilst I am unable to quantify the volume of work undertaken by the husband, I find it was likely more than conceded by the wife given my findings about her limited knowledge of the IT work required for the businesses and where she generally understated and minimised the husband's contributions in her evidence. I find it was a significant contribution.
2. The husband deposed he remained responsible for the IT and maintenance needs of the three stores until around mid-2020. He said from that time he delegated more work to one of the contractors and took on more of a supervisory role. The wife denied the contractor acted under the husband's supervision but agreed there was "a degree of collaboration.".
3. The husband deposed the wife began paying him less towards the end of 2020 and told him it was "not worth the effort" to pay him, by which he said he understood the tax break was not worth it given the income by then generated by the businesses. The wife deposed the husband did not undertake work in the businesses "in any significant capacity" past 2019 and she ceased paying him accordingly.
4. The husband said he continued providing IT services until not long before separation. Mr R's unchallenged evidence referred to work he assisted the husband with and observed the husband undertaking for each allied health business and for H Pty Ltd between 2017 and 2021. However, he was not specific in respect of the timing of the particular work he observed the husband undertaking. I do not accept Mr R assisted the husband with work for M Pty Ltd until July 2021 given the parties separated in March 2021 and an intervention order was served on the husband in June 2021.
5. I find the husband undertook some ongoing unpaid IT work for the businesses from 2020, in light of the qualifications to the wife's evidence I have emphasised in italics and also references in the parties' text messages to the husband assisting the wife with IT matters in December 2020. However, I find it was to a lesser extent than he had previously undertaken, placing particular weight on the husband's own evidence that he took on more of a supervisory role from around mid-2020 and the absence of detail in his evidence about work he undertook during this period.

1. The wife undertook further study during 2019 and 2020, obtaining a qualification. During that time she stayed in Melbourne from Thursday through to Sunday once a month. She disagreed that she relied on the husband to work at Town E during the time she was away but I find she did so, as acknowledged by her (albeit reluctantly and to a small extent) when cross-examined.

1. The wife deposed she engaged a lawyer in 2019 to prepare a binding financial agreement ahead of the parties' marriage in 2020. She said the lawyer sent her a draft and instructions on how to proceed. She deposed that she "attempted to begin the conversation" with the husband about what needed to be specified in the agreement. She said she told him he would need to engage his own solicitor and she agreed to pay for him to do so but he did not get around to it. She said this continued until the parties' wedding day by which time she felt it would be embarrassing to cancel the wedding. It was unclear from the wife's affidavit evidence if the husband had been presented with a draft agreement or if there had been discussion as to the terms of the proposed agreement. It was apparent from cross-examination of the wife that a draft had not been prepared.
2. When cross-examined, the husband acknowledged conversations about a financial agreement but gave evidence "We weren't even agreed upon the fact that we need it. I was always reluctant to it from the [...] start of the relationship in 2011".
3. A series of text messages exchanged between the parties on 18 October 2019 were produced by the husband in response to a call made by counsel for the wife.[36] Due to the late production of these messages, I afforded counsel the opportunity of further cross-examination of the parties in relation to the messages. Counsel for the wife took up the opportunity to cross-examine the husband about those messages. Among those messages were the following messages:

Wife: I'm not asking you to put in writing because I'm calculative it is part of the process for the [binding financial agreement] which you agreed to btw

[...]

Husband: I havent signed anything

Husband: but sure Ill agree to whatever

[...]

Wife: I know you haven't signed because they can't draft anything until you answer the questions!!

Husband: I do want it in though that if I already have or do come into money now or any time in the future, that money will be 100% mine

Husband: since - if we split I get 0 so...

Wife: Yes that will be in it

Husband: we were meant to sit down and talk about it

Husband: this relationship is more an arrangement / agreement than a relationship

Wife: Is the BFA thing what's bothering you?

Husband: no I guess Im not used to money being someone's main priority [...]

[...]

Husband: its odd

Husband: but I'll get over it

Wife: It's not a main priority. I understand that you're an emotional person and it can be hard to seperate facts from feelings. It's just logical to have one - for everyone not just us.

Husband: sure

Wife: It's nothing personals

Husband: I bet

Husband: I don't care. I just don't think there is much Love in this relationship

[...]

Husband: You are very business minded, I just don't want to feel like another contract lol

Husband: Anyway as Ive said many many times where do I sign

[...]

Husband: [...] the whole prenup thing has always been a no no in my mind I told you this back when you were in [Suburb O]

Husband: it's just not rightttt

[...]

Wife: Ok this is my point of view: I've worked my ass off and sacrificed enjoying my life so I don't have to worry about money down the track. Fast forward to a divorce, half of everything is gone and I wonder why I even bothered?

Husband: when we first met ( you say you just went along with it) you said you don't agree with them either

Husband: only when you started making a lot

[...]

Wife: If I thought you were going to be entitled to half of everything I would quit my job right now

Wife: I'm not working this hard for nothing

Husband: yeah.. I wouldn't think like that

Husband: but ok

Husband: yeah ok

Husband: I'll sign whatever

[...]

Husband: we can talk about this face to face.. or not I don't really care at this point.

[...]

1. The wife relied on these messages in support of her evidence the parties had discussed entering into a financial agreement, that they agreed to each retain their own assets and that it is not just and equitable for there to be an alteration of property interests between them. I find these messages demonstrate it was the wife who sought a financial agreement and was trying to persuade the husband to enter into one. When cross-examined, the husband said his messages appearing to agree to enter into an agreement were sarcastic and I accept that to be the case in respect of some of his answers. For example, "I bet". My overall impression from this exchange of messages is that the husband did not want to enter into a financial agreement but at points in these particular communications, appeared to resign himself to doing so at the insistence of the wife.
2. The parties did not enter into a financial agreement. The wife deposed that when she asked about the binding financial agreement after the parties married, the husband laughed at her and said, "We're married now, so I don't need to sign". The husband denied this but even if he did make such a statement, it does not support the wife's position the parties agreed they would have no interest in the property held by the other.

1. In 2020, the wife restructured the business entities, converting her parents' 30% interest in M Pty Ltd to an 11% interest in J Pty Ltd.
2. In 2020, 49% of M Pty Ltd was sold to X Pty Ltd, being an entity controlled by the wife's partner in that business, Ms Y.

1. It was at around this point the parties married, in 2020.

1. The husband deposed he was off work from early 2020 until late 2020 following an injury sustained at work. This injury coincided with the Covid-19 pandemic which meant the husband could not immediately access surgery. He received WorkCover payments during that time. The husband deposed that during this period, he competed a larger percentage of household duties, taking on even more cleaning and cooking and attending to more work at Town E. About this, the husband's evidence was supported by tendered records of text messages between the parties[37] and the submissions made by the wife's counsel about those messages. This was at odds with the wife's evidence that "[the husband] did not help me during the above periods of time off. [He] preferred to spend his time inside the house playing videogames".

1. In mid-2020, the title of the property at B Street, Suburb C ("Suburb C") was transferred from the husband's parents to the husband and his brother, Mr Z, registered as joint proprietors. The husband asserts he and his brother hold Suburb C on trust for their parents. This claim is disputed by the wife.
2. At the time of the transfer of Suburb C, the husband and his brother refinanced their parents' loan secured against Suburb C, into their names. When refinancing their parents' loan, they extended the loan to fund renovations to Suburb C and borrowed additional monies from which a personal loan of the husband was repaid in the amount of $45,514 and the husband received $6,187 into a personal bank account. The husband deposed some further funds were borrowed to assist his brother.

1. Following the breakdown of the parties' marriage on 29 March 2021,[38] the parties continued to live separately and apart under the one roof at Town E for a time. They physically separated in June 2021 upon the making of an interim intervention order, at which time the husband returned to live with his parents in Suburb C, where he continues to reside. He deposed he is unable to pay rent while funding the costs of this litigation.
2. The wife has continued to live at Town E since separation and has continued to operate the allied health and farming businesses.
3. In or around late 2021, the husband purchased his current motor vehicle, being Motor Vehicle 1, utilising an insurance payout after his Motor Vehicle 4 was written off. (He gave evidence he had previously sold his Motor Vehicle 3 in 2019 and applied the sale proceeds along with a further $5,000 to $10,000 to purchase the Motor Vehicle 4.) When cross-examined, the husband agreed the purchase of motor vehicles were the most significant purchases he had undertaken since the parties commenced their relationship in 2011.

1. In July 2021, the wife purchased a property at S Street, Town V ("Town V") for $372,500, via the trust. The wife deposed Town V was acquired using borrowings from H Pty Ltd and redrawing against a business loan.
2. The wife deposed that in addition to Town V, the trust holds some shares. She did not depose as to the timing or other details of the acquisition of those shares.

1. On 17 May 2023, the husband filed an Initiating Application commencing these proceedings, seeking to be excused from particularising the final property orders sought pending disclosure by the wife. He also sought interlocutory orders including injunctions and litigation funding, and providing for disclosure, valuations and mediation. The wife filed her Response to Initiating Application on 20 June 2023, seeking the husband's application be dismissed and he pay her costs of and incidental to the proceedings.
2. On 8 March 2024, orders were made by consent at an interim defended hearing providing for the sale of the wife's interest in M Pty Ltd to an entity associated with her business partner, Ms Y, X Pty Ltd. The orders provided for the husband to receive $100,000 from the sale proceeds by way of litigation funding and for the balance to be applied to the loans secured by mortgage against Town E. The husband was informed by way of a letter from the wife's lawyers dated 7 March 2024, of the possibility of "the sale being delayed or falling through together". He nevertheless agreed to the litigation funding order, conditional upon the sale proceeding. The sale of M Pty Ltd had not been completed at the time of the final hearing. The wife gave evidence this is because Ms Y had been unable to obtain finance to fund the purchase. The husband has therefore not received the anticipated sum of $100,000 by way of litigation funding.

1. As made clear by the High Court in Stanford,[39] it is first "necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property."
2. The comparative balance sheet tendered by the parties[40] identified they had the following legal and equitable interests in property at the time of the final hearing:

Wife's loan relating to Town E, secured by mortgage

Wife's loan relating to Suburb G, secured by mortgage

Wife's interests in the entities[41] including the allied health businesses and Town V

Cash in business accounts operated by wife: $79,699

Suburb C (50%): husband and his brother are joint proprietors on title; equitable ownership disputed

Loan relating to Suburb C, secured by mortgage (50%): husband and his brother jointly and severally liable; responsibility for loan disputed

Proceeds from sale of Motor Vehicle 5 by wife: $12,050

Loan owed by wife to business group, as reflected in single expert business valuation

Husband's personal loans (for legal costs): $133,805

Total (excluding disputed assets & liabilities)

1. I first turn to consider current assets and liabilities in dispute before determining if it is just and equitable to make any order altering those interests. I will also consider the add-backs the husband contended should be notionally included on the balance sheet and considered alongside the parties' actual assets and liabilities in the event of an alteration of property interests.

1. In his case outline,[43] the husband contends he has an equitable interest in the businesses and real properties held in the wife's name and the entities she controls. The wife denies the husband has any interest in those assets, equitable or otherwise.
2. As to whether this is a matter I have to consider at the preliminary stage of identifying the parties' legal and equitable interests in property, I note the following observations made by Bryant CJ and Thackray J in Bevan:[44]

Once it is recognised a court has power to alter both legal and equitable interests, it follows that it is necessary first to identify all property in which the parties have either a legal or equitable interest. Since the issue does not arise here, we will not express a concluded view about the post-Stanford controversy concerning the extent to which it is necessary to decide whether - as between the parties - the legal title accurately reflects their respective interests. However, where it is accepted that justice and equity require the making of an order, it would seem unnecessary to complicate proceedings by deciding whether one party has an equitable interest in property held by the other, since the ultimate outcome will not be determined by application of equitable principles but rather by reference to ss 79(4) and 75(2).

Nevertheless, there will be cases, of which Stanford may have been one, where the assertion (or lack thereof) of an existing equitable interest in property held by the other party may be of critical importance in deciding whether it would be just and equitable to interfere with the existing legal ownership. And of course it will always be important to determine whether one party has an equitable interest in property owned by a third party.

1. In this case, the husband did not seek a declaration that he has an equitable interest in the businesses or assets of the wife or her entities in the alternative to his application pursuant to section 79. He did not particularise the interest he claimed or the basis for that claim. His counsel did not make submissions in support of such a claim. Accordingly, I proceed on the basis the existing legal ownership of the wife's property reflects the beneficial ownership of that property.

1. I am not satisfied the husband and his brother hold the Suburb C property on trust for their parents, having particular regard to the following:

(a) The husband did not articulate the basis of the equitable interest he claimed his parents have in Suburb C. He referred to his parents' inability to refinance the mortgage to fund improvements to Suburb C and deposed that he and his brother agreed to refinance his parents' home loan into their name, including to fund improvements to the property, which entailed a transfer of the property to them. He did not adduce evidence of any agreement with his parents or representation made by them in respect of the beneficial ownership of the property. He referred only to a "belief" in his affidavit, in the following terms:

Given we had made no contribution to the acquisition of the house earlier or subsequently, it is clear in our minds, and I believe at law, that my brother and I hold the property on trust for our parents and have no beneficial interest in the property.

(b) The husband relied on an affidavit made by his father which likewise did not depose to any agreement or representation giving rise to a trust;

(c) The husband's father gave oral evidence there is no written agreement between the husband and his brother in relation to Suburb C and he does not have a will;

(d) The husband did not dispute that his parents answered "no" to the question "are you retaining an interest in the property" in transfer documents submitted to the State Revenue Office. He gave evidence only that to the best of his knowledge his parents had to tick "no" for him and his brother to refinance Suburb C;

(e) The husband benefited from borrowings secured against Suburb C upon the transfer. He deposed these additional funds were gifted to him and his brother as a thank you for helping his parents. However, it was apparent from the husband's father's evidence given under cross-examination that the husband's father was not aware of the details of the refinance, including the total amount borrowed and of the funds advanced to the husband upon the refinance, indicating those funds were not gifted to the husband by his parents as the husband deposed. The husband and his brother borrowing additional funds without the father's knowledge or consent is consistent with them holding both the legal and beneficial title to Suburb C; and

(f) The husband gave evidence his parents have continued to pay the mortgage and outgoings in respect of their home and neither he nor his brother have made any payments towards the property. However, when cross-examined, the husband's father gave evidence that the monthly income he and his wife receive (pursuant to a pension) is less than the required home loan repayments and the husband's brother is helping with the mortgage repayments. When asked about the home loan repayments, the husband said, "I'm not in charge of the mortgage, my brother is." This evidence is also consistent with the husband and his brother having a beneficial interest in Suburb C.

1. Having found the husband holds the title of Suburb C beneficially with his brother, as joint proprietors and subject to a joint loan secured by mortgage, I include 50% of the value of Suburb C and 50% of the loan secured against Suburb C on the balance sheet.

1. The husband initially sought to include on the balance sheet, the sum of $79,699 representing cash balances held in business accounts of the entities as at 7 August 2024, asserting those monies do not form part of the value of the entities which were valued on a capitalisation of future maintainable earnings basis. However, this sum was not included as a proposed item in the table forming part of the husband's supplementary submissions tendered prior to closing submissions or addressed in closing submissions on behalf of the husband, indicating that argument had been abandoned. I nevertheless consider the issue in case it was not. The wife contends the business bank balances should not be included separately, being an asset of the entities and included in the single expert valuation. She points to the fluctuating nature of business bank accounts and that third parties also have interests in the business entities. I accept the wife's submission and do not add back the updated bank balances of the entities.

1. The wife deposed that in 2014 her parents loaned her $186,000 to purchase K Pty Ltd. No loan agreement was signed but the wife deposed her father told her the money was repayable upon demand if he needed it. She deposed $86,000 had been repaid and asserted $100,000 remained payable. Her father deposed he and his wife had loaned the wife $200,000 of which $100,000 remains owing to him and that he expects to be paid back for this debt. The husband deposed he heard the wife's father inform the wife she would not need to pay him back these funds but did not give evidence about the timing or circumstances of that alleged conversation to persuade me that conversation occurred as described. The husband contended the loan is older than six years, there has been no demand for full repayment and there is no expectation of repayment of the balance. Whilst the wife's father deposed that he expects the balance of this loan to be repaid, he did not give evidence of the terms of the loan. He deposed the wife offered to repay the funds "a couple of years after purchasing the business" but by that time she was looking at purchasing another business and he informed her she could hold on to the funds and repay him "at call or if any when she sold either of the businesses". When cross-examined, the wife's father gave evidence the wife has not made repayments towards the loan for the last nine years and that he would probably not sue her for the balance of the loan. Having regard to the legal principles set out by the Full Court of the Family Court of Australia in Biltoft & Biltoft[45] and applied regularly by this court, I am not persuaded the balance of this loan is a liability repayable by the wife, finding the terms of the loan are vague and uncertain and the wife's father's evidence indicates he is unlikely to enforce the loan. It does however represent a financial contribution made by the wife via her father.

1. It is not disputed the wife has a Higher Education Loan Program ("HELP") liability of $73,896. The wife contends this is a liability to be included on the balance sheet. The husband asserts it should not be included as a liability and ought to be characterised as a financial resource as it is only repayable "as a percentage of [the wife's] assessable income over and above a set threshold".
2. I do not accept the husband's submission that the student loan is not a liability and is a financial resource to the wife. It is a liability, albeit one the parties agree is payable on the terms asserted by the husband. The issue is whether it is a liability that should be included on the balance sheet as a matrimonial liability to be deducted from the value of the parties' assets if I make an order altering their interest in property or if it should be disregarded and borne entirely by the wife. This is a matter within the discretion of the court having regard to the characteristics of the loan and the particular circumstances of the case.[46]
3. I find it is appropriate to include the wife's HELP liability as a matrimonial liability in the following circumstances:

(a) One of the wife's qualifications was undertaken during the parties' relationship, during 2019 and 2020;

(b) It was undertaken with the support of the husband, as reflected in their marriage vows;[47]

(c) Deferring the costs of the wife's study was of benefit to the parties in that it meant the wife did not need to apply income or deplete assets to meet those costs during their relationship;

(d) The course of study was directly relevant to the wife's operation of the businesses, which represents a significant asset on the balance sheet and is reflected in her income and future income earning capacity, which are matters required to be taken into account pursuant to section 75(2) of the Act if I find it is just and equitable to make an order altering the parties' interests in property; and

(e) Evidence was not adduced as to the threshold at which the wife is required to make repayments to the HELP loan and of the applicable repayment rates, but taking into account the wife's evidence in respect of her taxable income,[48] the business income distributed between the parties in the financial years ended 2017 to 2020, and the wife's estimate of her taxable income for the 2024 year at $105,636, I find it is likely she will earn an income sufficiently high such the HELP loan will be repayable by her.

1. The "adding back" of funds expended prior to trial is exceptional and falls into three categories: where the parties have expended money on legal fees; where there has been a premature distribution of matrimonial assets; and in the case of waste or wanton, negligent, or reckless dissipation of assets.[49]
2. The Full Court in Candle & Falkner considered key authorities in relation to the law on add backs and concluded that those authorities established four relevant propositions:[50]

... First, adding back property which has been distributed and spent is discretionary, and reflects an exceptional exercise of the discretion as an "accounting" or "balance sheet" exercise for the purposes of ss 79(2) and (4) to achieve justice and equity between the parties. Secondly, the nature of the expenditure reflected in add backs is relevant, and reasonably incurred expenditure does not usually come within accepted categories of addback. Thirdly, the decision in Stanford, followed by Bevan, does not necessarily require the conclusion that adding back notional property is per se an error, but proper consideration must be given to existing interests in property. Fourthly, in cases which are not exceptional, expended interim distributions can be taken up under s 75(2) rather than as part of the balance sheet exercise.

[Emphasis in original]

1. In his case outline, the husband asserts the proceeds from the sale of Motor Vehicle 5 sold by the wife in December 2023 should be added back and considered alongside the parties' assets and liabilities available for distribution, as an asset of the wife. The wife disclosed the sale of this asset in her financial statement, for $12,000, but does not depose to the sale in her affidavit. The consolidated balance sheet records the vehicle was sold in December 2023 and recorded in the Town E financial statement for 2024.[51] The report of the single expert valuer reported the recent sale of a large motor vehicle by the trust. The wife was not cross-examined about the sale. I am not persuaded the sale of Motor Vehicle 5 has not already been taken into account in the single expert valuation value of the entities. Even if it were not, I do not find the sale exceptional such that it is necessary to add back the net sale proceeds to achieve justice and equity between the parties.

1. The husband contends legal fees paid by the parties, save for sums he has borrowed to pay legal costs, should be added back to the asset pool. On that basis, he seeks the following amounts be added back:

(a) $240,454.95 in respect of the wife, being $147,799.95 in paid legal costs plus $32,655 in paid disbursements ($13,640 of which were paid on behalf of the husband) and $60,000 held by the wife's lawyers in trust to be applied to what were at that time unbilled and future estimated costs. The costs notice filed on behalf of the wife records the wife "has paid her legal costs to date from her income and personal resources."[52] In a note to the consolidated balance sheet, the wife records her legal costs have been paid "from income and loans from the business group which have not been factored into current valuation of entities";[53] and

(b) $18,755 expended by the husband on legal costs other than by borrowing. This figure was provided with the husband's closing submissions[54] but was not detailed in the costs notice filed on his behalf or in his evidence. The costs notice filed on behalf of the husband stated his legal costs were being funded from earnings and loans from the bank, litigation funders and friends.[55]

1. The Full Court in Chorn & Hopkins[56] confirmed the following guidelines relevant to the treatment of monies expended on legal costs in this matter:

(a) "...where the payment of legal costs can be regarded as a premature distribution of funds (in which both parties have an interest), it is appropriate to add back those costs as a notional asset";[57]

(b) "If funds used to pay legal fees have been generated by a party post-separation from his or her own endeavours ... they would generally not be added back as a notional asset... Funds generated from assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement may need to be looked at differently from other post-separation income or acquisitions";[58]

(c) "...where funds have been borrowed to pay legal fees, and such liability is still outstanding, neither the payment of the fees nor the liability should be taken into account";[59] and

(d) Ultimately however, the treatment of legal expenses is a matter of discretion for the court, having regard to the source of the funds.[60]

1. I am not persuaded either party's paid legal costs should be added back and notionally treated as an asset retained by them in the following circumstances:

(a) It was not disputed the wife's legal costs have been paid from her income and/or revenue from the business entities. Whilst I have found the husband made contributions to the businesses by way of the IT work he undertook during the parties' relationship, the wife's income from the businesses after separation is not a passive income but relates directly to her work undertaken in the businesses during that time. The business group has been valued and forms an asset on the balance sheet. That valuation takes into account loans owed by the wife to the business group at the time of valuation, with a corresponding entry on the balance sheet for the related liability of the wife, but does not take into account the further loans deposed to by the wife;[61] and

(b) The husband was not challenged in respect of his costs notice identifying his legal costs were being funded from earnings and loans. The wife did not seek any sum be added back in respect of the husband's legal costs.

Husband's credit card liability and personal loans

1. In his case outline, the husband submits the liabilities he has incurred to meet legal fees should be included on the balance sheet, given the wife had the benefit of paying her legal fees from the businesses. I did not understand that to be pressed by the husband in the end, as these liabilities were not included in the table tendered with the husband's closing submissions.[62] This is in my view appropriate having regard to the principles I have set out from Chorn & Hopkins which apply in respect of monies borrowed to pay for legal fees. He did not adduce evidence his credit card liability was referrable to the parties' marriage or their assets. I therefore do not include on the balance sheet the husband's credit card liability and loans relating to the payment of his legal costs.

1. Whilst not a balance sheet issue, it is convenient to address the issue of the ligation funding order made on 8 March 2024 at this point, while considering treatment of the parties' legal costs. That order provided for the husband to receive $100,000 from the proceeds from the sale of M Pty Ltd by way of litigation funding. The litigation funding has not been fulfilled because the sale has not occurred. The husband has therefore not received the anticipated sum of $100,000 by way of litigation funding. He submits this sum remains payable to him by the wife.
2. The wife seeks the litigation funding order be discharged given Ms Y is unable to proceed with the purchase of M Pty Ltd and where it is now evident the husband has been able to meet his legal costs.
3. I accept the submission of the wife in respect of the litigation funding order. That order was conditional on the sale of J Pty Ltd's share of M Pty Ltd to X Pty Ltd. The sale did not occur. The condition requiring payment by the wife to the husband was therefore not fulfilled. The order did not require the sale of the business other than to X Pty Ltd, being an entity that is not a party to these proceedings and not bound by the order. The husband was ultimately represented to the conclusion of the final hearing, and his legal costs met were from his earnings and by borrowings. In these circumstances I am not persuaded there are circumstances to justify an order requiring the wife to contribute to the husband's legal costs. I will therefore discharge the litigation funding order as sought by the wife.

Single expert costs payable by husband to the wife

1. An order was made on 4 September 2024 requiring the wife to meet the costs of ordered single expert valuations in the first instance and for the husband to meet 50% of those costs upon the making of final orders, subject to any order of the trial judge. The husband's share of those costs amounts to $13,640.
2. The wife submitted via her counsel that if the litigation funding order made on 8 March 2024 was discharged as sought by her, it was appropriate for her to meet the whole of these single expert costs. I accept that submission and, having determined to discharge the litigation funding order, will discharge the order made on 4 September 2024 requiring the husband to reimburse the wife for the single expert fees paid by her on his behalf.

1. Taking into account the above findings, the adjusted balance sheet reflecting the parties' legal and equitable interest in property to be considered alongside those interests, is as follows:

Wife's loan relating to Town E, secured by mortgage

Wife's loan relating to Suburb G, secured by mortgage

Wife's interests in entities, including allied health businesses and Town V property

Husband's notional share of the loan relating to Suburb C, secured by mortgage (50%)

Loan owed by wife to business group, as reflected in single expert business valuation

1. The combined net value of the parties' non-superannuation assets amounts to $3,057,135, of which the husband has assets with a net value of $270,418 and the wife of $2,786,717. In percentage terms, the husband holds assets with a value of less than 9% of the combined value of the parties' assets and the wife more than 91%.
2. The parties also have the following interests in superannuation:

1. The total combined net value of their assets including superannuation is $3,556,859 of which the husband has assets and superannuation with a total net value of $433,303 and the wife has assets and superannuation with a total net value of $3,123,556.

1. Having identified the parties' legal and equitable interests in property, I now turn to consider if it is just and equitable to alter those interests applying the principles outlined earlier in my reasons.

1. The wife submits there is no principled reason to make an order altering the existing interests of the parties in property. She asserts the parties conducted the entirety of what her counsel described as a short relationship, on the assumption they should each be entitled to the property in their respective names and would not make any claim against the property of the other. She claims they turned their minds to what they each would have in the event of their separation and maintained separate finances, dealing with their assets independently from one another and at no point acquiring any property in their joint names or holding any joint bank accounts or making substantial contributions to the other's property.
2. In closing submissions, the wife's counsel submitted the parties lived very separate domestic and financial lives, and in particular separate financial lives, referring to the following passage from the Full Court in Dickons & Dickons,[63] in turn referencing dicta of Deane J from the High Court of Australia decision in Mallet v Mallet:[64]

...the requirements of the section are met by approaching the assessment of contributions holistically and by analysing the nature, form, characteristics and origin of the property currently comprising that to which s 79 applies, and, in turn, analysing the nature, form and extent of the contributions (of all types) contemplated by s 79). That task is also undertaken by reference to the nature and form of the particular marriage partnership manifested by the particular circumstances of this particular marriage. Is it, for example, a relationship, as Deane J put it in Mallett at 640-641 "...where the parties have adopted the attitude that their marriage constituted a practical union of both lives and property..." or is it, for example, a union where parties lived very separate domestic and financial lives?

1. Counsel for the wife submitted the wife made clear to the husband, expressly by her words and actions, her intention and expectation for the parties to maintain separate financial lives and their relationship proceeded on the basis of this assumption. It was submitted on her behalf that this was a mutual intention and assumption, implied by the fact that the relationship continued on this basis.

1. Section 79(2) was not addressed by the husband in his case outline. His outline instead focussed on the nature of the parties' relationship including prior to the time the parties began living together, his asserted contributions, and equitable principles notwithstanding he was seeking an alteration of property interests pursuant to section 79 of the Act rather than a declaration of existing interests in property pursuant to section 78.
2. In closing submissions, counsel for the husband submitted this is one of the many cases in which the High Court contemplated in Stanford, where the just and equitable requirement would be readily satisfied by the breakdown of the parties' relationship bringing an end to the common use of property. He pointed to the parties' separation bringing their use of Town E to an end after a period of more than four years. Counsel for the husband focused on the nature of the parties' relationship in his closing address, describing the husband as the wife's "confidant, ally, collaborator, trusted partner [... and] sounding board." I was not persuaded these descriptors were helpful to the section 79(2) question. Counsel for the husband argued the parties worked as a team to accumulate their assets and, using the words of Deane J in Mallet[65] and of the Full Court in Dickons,[66] submitted the parties had "adopted the attitude that their marriage constituted a practical union of both lives and property" rather than a union where they had "lived very separate domestic and financial lives." It was submitted the parties' communications[67] and agreed wedding vows[68] illustrated the parties were pursuing mutual domestic and financial goals and that the husband made significant contributions in respect of those assets held in the wife's name and to the welfare of their family on the basis of that understanding.

Section 79(2) determination - is it just & equitable to make an order?

1. Having considered the parties' submissions and the evidence, I find there is a principled reason to alter the parties' existing interests in property. I do so having regard to all of the evidence and the following matters in particular:

(a) During their relationship, the parties enjoyed the common use of Town E as their home, for a period of just over four years. The breakdown of their marriage has brought to an end their common use of property, in particular Town E. As observed by the High Court in Stanford, in many cases, the just and equitable requirement is readily satisfied by this fact alone;[69]

(b) I have considered the parties' contentions as to the assumptions they each say underpinned the existing property arrangements brought to an end by the breakdown of their relationship and I am not persuaded there was a mutual decision of the parties to maintain independent domestic and financial lives during their relationship. Even if the wife approached the relationship on this basis (and I am not persuaded she did completely), I am not satisfied it was an intention shared by the husband and I do not find their property arrangements were based upon mutual assumptions, express or implicit. This was particularly apparent from the following:

(i) The work undertaken by the husband in the allied health businesses, some of which was paid and some of which was unpaid;

(ii) The income sharing arrangement implemented by the parties between 2016 and late 2019;

(iii) The physical work undertaken by the husband at Town E, including in respect of the farming business;

(iv) The husband taking on a greater proportion of homemaker responsibilities during the time the parties made Town E their home together;

(v) The wife making a will in August 2019 which made provision for the husband in the event of her death.[70] The husband was aware of the will. I do not find that the will reflected any particular interest the husband had in the assets of the wife at that time as the husband appeared to submit. Nevertheless, that the wife made provision for the husband in her will at that time is significant because it contradicts her evidence that the parties conducted their relationship on the basis that they would not ever be entitled to the assets of the other;[71]

(vi) The text message exchange between the parties on 18 October 2019, in which the husband expressed that he did not consider it fair to enter into a binding financial agreement as proposed by the wife and that he had told her "the whole prenup thing has always been a no no in my mind I told you this back when you were in [Suburb O]";[72]

(vii) The parties' marriage vows, prepared by them ahead of their wedding in 2020, listing among their plans for their future together [emphasis added]:[73]

Ψ Paint their home, to transition it from the 1980's to the present [smiling face icon]

Ψ With [the husband's] support, [the wife] looks forward to completing her [...] qualification.

Ψ They would love to have children [...]

It is significant that at the time the wedding vows were canvassed with the celebrant and approved, the wife was well into her qualification (which she deposed was undertaken in 2019 and 2020), from which I infer the wife was acknowledging the support the husband had already provided to her and which she anticipated she would continue to receive from him;

(viii) The wife asking the husband to prioritise her businesses over his work in July 2020, during the Covid-19 pandemic (including to take leave from his employment so he wouldn't have to attend high risk sites), explaining to him that she was making this request because "most of our money" comes from her businesses [emphasis added][74]; and

(ix) The conversation between the parties in March 2021 during which they both used the term "we" when referring to the purchase of Town E,[75] including the wife saying "when we bought this place" and "we weren't the highest offer for this one" [emphasis added][76] and the wife's admission that she may have described Town E to others as "our home". I find this conversation and the parties' marriage vows are consistent with the husband's assumption that he was making contributions towards a joint endeavour with the wife.

(c) I do not accept the following evidence given by the wife that there was an "agreement" between the parties that the husband would not acquire an interest in the assets held in her name or that he would not make a claim against her if their relationship ended:

The topic of what would happen to our assets in the event of separation was often discussed. [The husband] and I agreed that my property was my property and his property was his property; [he] would live rent free and be expected to pay bills only, at the end of relationship [he] would retain his property (car computer, his [dogs] and any other items belonging to him) and I would retain full ownership of [Town E], the [allied health businesses], all companies, [animals], and goods in my name and [he] would not make a financial claim against me.

I accept this may have been the wife's intention and something raised by her early in the parties' relationship (as evidenced by their text messages and ultimately acknowledged by the husband), but I do not accept it was an intention shared by the husband or an arrangement he agreed to, accepted or assumed and acquiesced to.

1. Whilst I have considered some of the matters set out in section 79(4) as part of the parties' financial history for the purpose of my determination in respect of section 79(2), those matters form only part of my consideration. I have taken care not to make my decision only by reference to those matters as the Full Court made clear is required in Bevan and Chapman, heeding the warning of the High Court in Stanford not to conflate consideration of section 79(2) and 79(4) considerations.
2. In respect of those matters in section 79(4) I have so far considered, whilst I have not yet evaluated the parties' contributions, I do find the husband has made substantial contributions, over a period of time (albeit not a long period of time as described by Mr Bartfeld KC in his paper referenced in Bevan[77]), which are not reflected in the way in which the parties' assets are held. Although I have not yet weighed those contributions in the context of all contributions made by the parties, I am not persuaded the husband's contributions considered in respect of the section 79(2) assessment were offset, as was asserted by the wife, by the income retained by him from the businesses and by the benefit of living at Town E without making direct financial contributions to the mortgage or outgoings (that is, effectively in lieu of rent). I am not persuaded he made these contributions assuming he would not acquire any interest in the assets held in the wife's name.
3. I am satisfied it is just and equitable to make an order under section 79 of the Act, notwithstanding the parties acquired assets in their own names (or in respect of the wife, through entities she controlled), did not operate joint bank accounts, did not intermingle their financial affairs (save for the income sharing arrangement from late 2016 to late 2019), and the wife made loans to the husband which were repaid by him in 2017.[7]

1. Having determined it is just and equitable to make an order pursuant to section 79 of the Act, I now turn to evaluate those matters in section 79(4), including section 75(2) as required by section 79(4)(e).
2. The husband contended that a "two pool" approach should be taken to this exercise, considering non-superannuation assets separate to the parties' superannuation. The wife did not make submissions in relation to the approach to be taken if the court determined it was just and equitable to alter the parties' interests in property, submitting only that it was just and equitable for the parties to retain those assets and superannuation held in their names respectively even if the court proceeded to an evaluation of the parties' contributions and relevant section 75(2) factors.
3. The Full Court has made it clear the court may treat superannuation as an asset pool separate from the parties' pool of non-superannuation assets and that it is often preferable to do so.[78] This allows the court to give separate consideration to the distinct characteristics of superannuation. I prefer a two pool approach in this case, given the different nature of superannuation from the parties' other assets and the parties' ages, noting they are still some way from being able to access their superannuation. I therefore consider the contributions made by both parties and the matters relevant pursuant to section 75(2) as apply to their non-superannuation and superannuation assets separately.
4. It was not suggested by either party that if I found it just and equitable for there to be an alteration of property interests between the parties that anything other than a global approach should be taken to assessment of the parties' contributions to their non-superannuation assets, including in respect of Suburb C. Accordingly, I consider the parties' contributions and relevant section 75(2) factors in respect of non-superannuation assets globally, in a single pool.

1. In exercising my discretion to make an order that is in all the circumstances just and equitable, I am required to consider and evaluate those matters in sub-sections 79(4)(a), (b) and (c) of the Act, as set out earlier in my reasons, relating to the parties' contributions.
2. In determining what orders are to be made, I am required to approach the assessment of contributions holistically, by analysing the nature, form and characteristics of those contributions with reference to the particular circumstances of this relationship.[79] This process involves the exercise of a wide discretion, not the performance of a mathematical or accounting exercise[80] and should be undertaken without over-zealous attention to the ascertainment of contributions.[81] All contributions are to be weighed collectively, not compartmentalised with some contributions weighed against others.[82]
3. In relation to the assessment of contributions, the following submission was made on behalf of the husband in his case outline (on the basis of his contention he does not hold a beneficial interest in Suburb C):

The Husband's myriad of contributions, upon which the Wife undeniably relied upon, include valuable work completed by him which assisted the growth of the parties' business and assets generally, as well as being primarily responsible for home duties. In this respect, it is proper to view the myriad of contributions which span across the length of the relationship and marriage as being essentially equal. This being said, the Husband concedes that the Court ought to acknowledge the Wife's superior financial contributions

He ultimately contended for an assessment of contributions in his case outline and via his counsel's closing submissions, of 25% in his favour and 75% to the wife.

1. Consistently with her primary contention that it is not just and equitable for there to be any alteration of property interests between the parties, counsel for the wife submitted that even if the court formed the view that the assumptions underlying the way in which those property interests are held were not mutual, it remains the wife's case that the parties' contributions are reflected in their existing property interests such that the court should not exercise its discretion to alter the wife's property interests in favour of the husband.

1. I find neither party had non-superannuation assets of significant value at the time they commenced their relationship in 2011, save for their cars and modest savings.

1. The wife gave evidence that by the time the parties began living together, on her case sometime between December 2016 and May 2017,[83] they had the following assets:[84]

Town E, subject to a loan secured by mortgage, with a deposit paid of $240,000.

Suburb G, subject to a loan secured by mortgage, with a balance owing of approximately $223,000

Interest in K Pty Ltd and M Pty Ltd held through the entities, including retained earnings of $188,000 within H Pty Ltd

Two vehicles (at least one held by a business entity)

Farm machinery, Motor Vehicle 6 and Motor Vehicle 7

I accept this evidence which was not challenged in the husband's affidavit in reply save to say that he "also purchased a TV and some other bits of furniture for the house".

1. In the absence of evidence as to the value of most of these assets and liabilities save for opinions of estimated value proffered by the wife, I am unable to quantify the value of assets held by the parties at the time they began living together in November 2016. I do however accept that the wife had equity in Suburb G and Town E and the two allied health businesses were performing well, although M Pty Ltd had only been purchased relatively recently. On this basis, I find the wife had assets of significantly greater value than the husband at the time they began living together in or around December 2016.
2. By this time, in November 2016, neither party had made direct or indirect financial contributions to the assets held by the other.
3. I put little weight on the limited non-financial contributions made by the husband to minor repairs and gardening undertaken by him to Suburb G early in the parties' relationship, well prior to their cohabitation.
4. I do however put weight on the non-financial contributions he made to K Pty Ltd and M Pty Ltd, including the set-up of the IT systems for those businesses, finding they constitute significant direct contributions to the improvement of those businesses, well into the parties' relationship and more proximate to the time they began living together, particularly in respect of M Pty Ltd. The husband was not paid in respect of that work.
5. The husband asserts he assisted the wife and that she relied on his support for the purposes of purchasing the businesses, including by attending inspections, providing his opinion as to the advantages and disadvantages of proceeding with the purchase, and being a part of the decision-making processes. I am not persuaded this was a significant contribution made by the husband. I find the wife was the driver of her business decisions, taking advice from her father.
6. Up to this point in the parties' relationship, I find the majority of contributions were made by the wife. I put significant weight on those contributions which provided the foundation for the subsequent acquisition of assets, but I also give some weight to the husband's work assisting with the set-up of the two allied health businesses.

1. It is not disputed the husband did not make any direct financial contribution to the acquisition of Town E.
2. I do however find the husband made significant contributions during the time the parties' lived together at Town E, from around November 2016 to March 2021, a period of over four years, including particularly:

(a) Physical work undertaken on the Town E property, including for the benefit of the farming business, and noting the wife's evidence the farming business contributes to the Town E mortgage;

(b) Work in all three allied health businesses, some of which he was paid for and some he was not;

(c) Indirect financial contributions by the income sharing arrangement implemented by the parties, with almost $20,000 of invoiced payments received by the husband from the businesses paid to the wife from December 2016 to October 2019.[85] Those monies were applied by her to expenses, including likely the loan secured by mortgage against Town E. The arrangement also likely resulted in tax savings for the wife at least in the 2016 and 2017 financial years in which the wife's counsel acknowledged her income was in a higher tax bracket;

(d) Contributions as homemaker, which I have found were greater than those made by the wife; and

(e) Support provided to the wife, enabling her to work in the businesses and undertake further study.

1. I find these were significant contributions made by the husband to be given weight in my assessment of the parties' contributions.
2. The husband's acquisition of a 50% interest in Suburb C in June 2020, shortly prior to the parties' separation constitutes a significant financial contribution made on his behalf. The title of Suburb C was transferred to the husband and his brother without consideration, subject to them assuming the mortgage. The wife acknowledged she did not make any financial or non-financial contribution to the acquisition, conservation or improvement of Suburb C. To contextualise that contribution, 50% of the equity in Suburb C amounts to approximately $244,000 and approximately 8% of the combined value of the parties' non-superannuation assets.

1. Each of the parties made allegations of family violence against the other. Neither contended their contributions were made more arduous or onerous as a result of family violence or made other submissions as to the relevance of that evidence, so it is unnecessary for me to consider those allegations.

1. The husband has not made significant contributions to the parties' assets after separation, save for in respect of Suburb C (including by virtue of the renovations that were to be undertaken to Suburb C funded by additional borrowings in the name of the husband and his brother, the gardening/lawnmowing costs referenced in his financial statement, and contributions made by his family members towards the home loan and property expenses), and indirectly by way of his contributions made during the relationship, including in respect of the businesses.
2. The wife has continued to work in the businesses, has met all expenses relating to Town E, and has maintained that property and the assets in her name and control, at her expense or through the businesses.
3. The wife acquired Town V via the trust, utilising resources of and borrowings through the entities. The husband has therefore made an indirect contribution to that purchase, albeit a less significant contribution than the wife, by his contributions made during the parties' relationship.
4. In these circumstances, I find the wife's contributions in the period of approximately 3.5 years after separation, were greater than those of the husband.

1. Whilst I have set out my consideration of the parties' evidence in respect of their contributions in categories for convenience, referring to their evidence about "initial" contributions and contributions during the "period of cohabitation" for example, I have weighed and assessed the contributions of all kinds and from all sources made by each of the parties throughout their relationship, as the Full Court in Wallis & Manning[86] made clear is the task of a trial judge. My holistic assessment of the parties' contributions has extended to the period after separation.
2. I reject the submission made in the husband's case outline that the parties' contributions should properly be viewed as "being essentially equal". Such an assessment gives inadequate weight to what were acknowledged by the husband to be the wife's superior financial contributions. This submission is also at odds with the contribution-based assessment contended for by the husband in his case outline of 25% in his favour and 75% to the wife.
3. Having undertaken a comprehensive and holistic assessment of the parties' contributions throughout their relationship and after separation, I find the parties' contributions, assessed in percentage terms, to be 15% to the husband and 85% to the wife: a differential of 70%.
4. Where I have found the total net value of the parties' assets excluding superannuation to be approximately $3,057,135, applying those percentages would see the husband receive non-superannuation assets with a net value equivalent to approximately $458,570 and the wife approximately $2,598,565. The difference between the value of property to be retained by the parties on this assessment would be approximately $2.14 million (rounded).

1. Section 79(4)(d) of the Act requires me to consider the effect of any proposed order upon the earning capacity of either party to the marriage.
2. Subject to her capacity to make a payment to the husband without selling assets held by her personally or through the entities, the order I contemplate making will not impact the earning capacity of the wife. Even if she is required to sell an asset, she will maintain a substantial income earning capacity.
3. The husband contends in his case outline that he intends to live on the property he receives pursuant to any order I make. It was unclear what he meant by this. I note he has significant liabilities. In the absence of further evidence from the husband as to how he intends to apply any payment made to him by way of property settlement, I do not presume the order I make will increase his earning capacity.

1. In considering what order should be made under section 79, subsection 79(4)(e) requires me to take into account the matters referred to in section 75(2) so far as they are relevant.
2. The husband contends for an adjustment of 5% in his favour pursuant to section 75(2), relying primarily on the differential in the parties' income and earning capacity and the disparity of assets to be retained by them pursuant to the contribution-based assessment contended by him. The wife submits that if her primary position is not adopted, it is just and equitable for the parties to retain their existing property interests without adjustment.
3. The husband is aged 42 and the wife 37. They are both in good health.
4. There are no children of the parties' relationship.
5. The husband earns approximately $60,000 from his employment, working part-time. The wife submits he has the capacity to work full-time. I find even if he was to increase his hours and work full-time, there would still be significant disparity between the parties' income and income earning capacity having regard to the following:

(a) The wife deposed in her financial statement to a total average weekly income of $1,080 (equivalent to $56,160 per annum) calculated as follows:

(i) Salary: nil;

(ii) Investment income: $2,596 per week (approximately $135,000 per annum);

(iii) Net rental income (Suburb G): $238 per week (approximately $12,376 per annum);

(iv) Trust distributions: $400 per week (approximately $20,800 per annum); and

(v) Farming business loss: ($2,154) per week, but noting the wife also deposed the farming business contributes $880 per week towards the Town E mortgage.[87] The wife referred to the recorded loss of $112,024 for the financial year ended 30 June 2024 but explained in her affidavit that the farming business assisted to meet the cost of owning such a large property.

(b) I do not accept this is an accurate reflection of the income and benefits derived by the wife from the business, in the following circumstances:

(i) The wife estimated her taxable income for the 2024 financial year at $105,636 in her trial affidavit; and

(ii) The wife did not record any benefits from her business in her financial statement, which I find is inaccurate. For example, she did not disclose superannuation contributions made on her behalf, yet financial statements accompanying the single expert valuation of the entities recorded superannuation payments made for her benefit of $25,000 per annum. She also does not disclose the use of a motor vehicle as a benefit but identifies Motor Vehicle 8 registered to H Pty Ltd in her trial affidavit and does not record motor vehicle expenses in her financial statement.

(c) The allied health businesses have been sufficiently profitable to fund the acquisition, improvement and maintenance of assets acquired by the wife;

(d) The wife submits in her trial affidavit that she cannot sustain working to the level she does in the allied health businesses as well as running the farming business, notwithstanding she was adamant she previously did so with little support from the husband. However, I also note her evidence that she intended to continue acquiring allied health businesses so that she could manage them, rather than work as an allied health worker; and

(e) The wife deposed that from the end of 2020 until 2024, she was also employed as a director by Q Company, receiving a salary, including a salary of $18,071 for the financial year ended 30 June 2024. Thus, the wife also has capacity to work in employment in addition to or in lieu of work in the businesses.

1. In respect of business and rental income, the single expert business valuer reported the income and expenses of the entities valued by him includes consulting income for the wife's services paid between the entities and also includes rental income from the Town V property held by the trust. I am therefore mindful not to double count that income when it forms part of the value attributed to the business group.
2. Pursuant to my contribution-based assessment the wife will retain assets of significantly greater value than the husband, as identified earlier in my reasons. This is a matter I take into account pursuant to sub-sections 75(2)(b) and (n).
3. In relation to the transport course the husband was undertaking when the parties commenced their relationship, he gave the following evidence in his trial affidavit:

In approximately 2015, I recall completing a medical exam for my [transport] course, dated [mid] 2015. Shortly after completing this medical exam, I had a discussion with [the wife] regarding the [transport] course I was completing. [The wife] told me that she was not okay with me pursuing a career in [transport] as it would result in me not being home for periods of time. [The wife] was the love of my life, and I felt that our relationship was more important than my career aspirations. I told [the wife] that I would withdraw from the course, if it was important to her. [The wife] said it was. I withdrew from the course, which also meant that the funds spent by my parents (approximately $65,000) were wasted.

1. When cross-examined, the husband gave evidence he started the transport course in 2007, so four years prior to the parties commencing a relationship and approximately eight years before the discussion he deposed to in 2015, if I accept that conversation occurred. He said if undertaken full-time, it is a 14-month course, but he was "doing it part-time and quite slowly". When asked how long he had left to complete this qualification the husband answered, "At that rate that I was slowly doing it, I still had a couple of - fair few years to go." He then appeared to extend that estimate saying he estimated he had "at least another seven years to go." He agreed the progress he achieved prior to 2015 would be credited if he resumed his training. He agreed he had not done anything to continue that course in the period of approximately 3.5 years after separation. In these circumstances, I do not find the husband's income earning capacity was impacted by the parties' relationship as was contended by him or that the monies expended by his parents on his transport training was wasted.
2. Having considered the matters in section 75(2) and the above matters in particular, I find an "adjustment" to my contribution-based assessment of 2.5% in favour of the husband is appropriate, being a differential of 5% or $152,857 in monetary terms.

1. Pursuant to the above assessment, I find it just and equitable for the parties' interests in property to be altered such that non-superannuation assets are divided in the proportions of 17.5% to the husband and 82.5% to the wife.
2. To achieve the above outcome, the husband is to receive assets (excluding superannuation) with a net value of approximately $534,999 and the wife approximately $2,522,136. The differential between their positions, in respect of non-superannuation assets, will be approximately $1,987,138.
3. To make up the husband's entitlement, he will retain those assets in his name, valued at $270,418 and an adjusting payment from the wife of $264,581. The wife will retain those assets in her name and held within the entities she controls, (being Town E with a net value of $842,139 and other assets valued at $1,944,578), and make the adjusting payment to the husband.[88]

1. Given a two-pool approach is to be taken, it is necessary for me to consider the direct and indirect contributions made by the parties in respect of their superannuation interests and those matters in section 75(2) of the Act as are relevant to their superannuation.
2. The husband submits the parties' superannuation should be divided equally between them and seeks a superannuation splitting order in respect of the wife's superannuation to effect that outcome. Consistently with her position in respect of all assets, the wife submits there should be no alteration of the parties' existing superannuation interests.
3. It was not disputed the husband had approximately $30,000 in superannuation in 2011 when the parties commenced their relationship.
4. Whilst the wife asserted she had "modest" superannuation at the time the parties commenced their relationship, from working part-time whilst studying, she did not adduce evidence of her superannuation balance at that time. I accept she had accumulated some superannuation by that time but find it was likely less than that of the husband given the wife is younger and the husband had been working in paid employment to a greater extent while the wife was studying.
5. The wife's evidence that she had approximately $60,000 in superannuation by the time the parties began living together was not disputed. Evidence was not adduced of the value of the husband's superannuation at the time the parties began living together in 2016. This means I cannot assess the parties' respective contributions to the superannuation pool, by the time the parties began living together.
6. During the time they lived together, the parties were each working in paid employment and for the businesses. It was not disputed by the husband that five superannuation payments were made by the allied health businesses for the husband's benefit in 2017 and 2018, amounting to $4,885.85.[89] In response to questions asked by the single expert for the preparation of his report as to the value of the wife's interest in the business group, the wife advised that from 2020 to 2023 she received no wages from the entities but was paid superannuation of $25,000 per annum and that no superannuation was paid by the entities to the husband during that period. Of those contributions, only the 2023 financial year related wholly to the period after separation. It is unclear from the evidence before me if further contributions were made to the wife's superannuation in the 2024 financial year, forming part of the balance disclosed on her financial statement and adopted in the consolidated balance sheet.
7. The husband now has $162,885 in superannuation and the wife has $336,839 in superannuation. The husband holds approximately one third (33%) of the total value of the parties' superannuation and the wife holds approximately two thirds (66%).
8. I do not find it is just and equitable for there to be an alteration of the parties' superannuation interests. I find their superannuation balances reflect their respective contributions in respect of those interests, including my findings that the wife's contributions to the businesses were far greater than those of the husband, including after separation. Given their ages and their capacity respectively to continue to earn income and contribute to their superannuation, I find no "adjustment" is warranted to my contribution-based assessment pursuant to section 75(2) in respect of their superannuation interests. Accordingly, I will not make a superannuation splitting order as sought by the husband.

1. Considered globally, the orders I propose making equate to the husband receiving assets and superannuation amounting to $697,884, which is equivalent to approximately 20% of the combined value of the parties' assets including superannuation and the wife receiving assets and superannuation with a total net value of $2,858,975 consisting of approximately 80% of the combined value of the parties' assets including superannuation.
2. I consider this to be a just and equitable outcome, in percentage and actual terms, consistent with my holistic assessment and weighing of the parties' respective contributions and those matters relevant pursuant to section 75(2) in the context of them living together for approximately four years and three months, with no children, and a separation of approximately 3.5 years. I am satisfied the configuration of the proposed settlement, in terms of the particular assets and superannuation each party is to retain, is appropriate.

1. As requested by my chambers, a joint document was tendered at the commencement of the hearing, setting out the terms of orders sought by each party. Counsel for the wife did not propose an alternate form of orders in the event I made orders contrary to her case and did not make any submissions in respect of the orders sought by the husband. I therefore adopt the form of order proposed by the husband to give effect to my decision, with some modifications.
2. The order proposed by the husband provides for the sale of Town E in default of a payment to him and for the parties to have joint conduct of the sale, including to jointly engage a selling agent and to agree on the method of sale. In the absence of agreement, the husband seeks an order providing for the president of the Real Estate Institute of Victoria (REIV) to nominate the method of sale.
3. I will make orders providing a mechanism for the selling agent to be appointed in default of agreement. The husband did not propose any order in respect of the conveyance of the sale. Given Town E is registered in the wife's name and she will receive the greater proportion of the sale proceeds, it is appropriate for her to select and engage the solicitor to undertake the conveyance of the sale. In the absence of evidence as to the willingness of the president of the REIV to undertake the task proposed by the husband, and evidence of the process, timing and fees involved with that course, I will make an order reserving the parties liberty to apply in respect of the method and terms of sale if they are unable to reach an agreement after considering the selling agent's advice.
4. In the event of a default sale, the husband sought orders providing for a fixed payment to him together with interest. I note the court's preferred approach, when an item of property is to be sold, is for there to be a percentage division of the net sale proceeds rather than one party receiving a particular sum and the other the balance, particularly if the value of the property is likely to change.[90] In this case, I note the value adopted by the parties for Town E was based on expert evidence from late 2023.[91] Accordingly, I will make an order providing, in the event of a default sale, for the net proceeds of sale to be applied pursuant to a formula of the type adopted by the Full Court in Trask v Westlake,[92] to achieve the percentage division of non-superannuation assets between the parties I have determined to be just and equitable.
5. The husband proposed an order requiring the parties to instruct the agent to market the sale for $1,975,000. I will leave the marketing to be agreed by the parties with the benefit of advice from the agent. I will instead make an order providing for the sale of Town E for no less than $1,975,000 reflecting the agreed value adopted at trial for Town E.
6. It is unnecessary to make an order providing for the sale of Suburb G in default of payment from the sale of Town E given there is sufficient equity in Town E to satisfy the husband's entitlements.
7. The husband seeks an order requiring the wife to be responsible for and indemnify him in respect of any and all liabilities relating to the entities in which the wife has an interest, for any debts owed to those entities, for taxation as a consequence of any payment to be made to him by any of the entities or from him being associated with the entities. In the absence of evidence about any such liabilities and where the orders I make provide for a payment by the wife to the husband and not from the entities, I am not persuaded such an order is appropriate.
8. Other minor changes to the terms of orders sought by the husband will be made to ensure the parties' obligations are clear and to reflect the wording of the Act, including in respect of the order proposed pursuant to section 106A and the notation proposed pursuant to section 81.
9. I have not included specific reference in the orders to the wife's Motor Vehicle 7 as proposed by the husband given her financial statement records it was sold and it was not an asset on the joint balance sheet. If she has acquired another motor vehicle she will retain it under the more general provisions of the orders in any event.

1. I therefore make the final order as set out at the commencement of these reasons, considering it to be appropriate and just and equitable in the circumstances.

I certify that the preceding two hundred and nineteen (219) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A. Humphreys.

[1] Being the assets and liabilities of the parties to be retained by or adjusted between the parties on their respective cases.

[2] As set out in Exhibit H-12, which recorded such a payment resulted in the husband receiving approximately 38.5% of the parties' non-superannuation assets as asserted by him.

[8] Including as identified in the wife's case outline.

[9] [2003] HCA 48; (2003) 77 ALJR 1598 at [62], per Gleeson CJ, McHugh and Gummow JJ.

[10] (2012) 247 CLR 108 ("Stanford") at [35].

[12] (2021) FLC 94-035; ("Oamra"), at [35].

[13] At [40]-[42], citations omitted and emphasis as added by the Full Court in Oamra.

[17] Per Bryant CJ and Thackray J at [84]-[85], [87]-[89], with the emphasis added in Bevan.

[19] Chapman & Chapman (2014) FLC 93-592.

[20] [2014] FCWA 77 at [42].

[21] In her financial statement filed on 3 September 2024.

[23] In the Marriage of Beneke [1996] FamCA 82; (1996) FLC 92-698 at [37], by reference to prior authority; see also Macmillan J in Balken & Vyner [2020] FamCA 955, at [38].

[24] The wife explained in her trial affidavit at [11] this shareholding has changed temporarily, explaining the inconsistency with the shareholding recorded in the single expert business valuation report.

[25] Wife's financial statement, Part O, item 41(b)(ii).

[30] As described at [106] of her trial affidavit, without any reference to homemaker responsibilities.

[33] Exhibit MSR-2 (excluding the repayment of loans referenced in paragraph 85).

[35] Wife's financial statement, Part O, item 41(b)(ii)(c).

[38] Which I will refer to as their separation.

[41] M Pty Ltd, L Pty Ltd, K Pty Ltd, H Pty Ltd, J Pty Ltd and the N Investment Trust.

[42] Post separation liability excluded from balance sheet by agreement.

[44] Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545 ("Bevan"), at [77] - [78].

[45] [1995] FamCAFC 45; (1995) FLC 92-614 at 82,127 ("Biltoft").

[48] At paragraph [25] of her trial affidavit.

[49] Omacini & Omacini (2005) FLC 932-218 at [30].

[52] Wife's cost notice filed on 13 September 2024.

[55] Husband's costs notice filed on 13 September 2024.

[56] [2004] FamCA 633; (2004) FLC 93-204 ("Chorn & Hopkins").

[61] At Part O of her financial statement, in respect of item 53.

[63] (2012) 50 Fam LR 244 ("Dickons") at [21], cited by Macmillan J in Balken & Vyner, at [209].

[64] [1984] HCA 21; (1984) 156 CLR 605 ("Mallet").

[67] Including as evidenced in the tendered recordings and text messages, including H-4 H-5, H-9 and H-10.

[71] In contrast to Fielding and Nichol [2014] FCWA 77; (2014) FLC 93-617 at [52] where Thackray CJ found it significant that neither party made any significant provision for other to receive an interest in their property in the event of death.

[75] During a conversation about the potential purchase of another property subsequently.

[78] In the marriage of Coghlan (2005) FLC 93-220.

[81] Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at [524].

[82] Jabour & Jabour (2019) FLC 93-898 at [73]-[87]; Benson & Drury (2020) FLC 93-998 at [35].

[83] The reference to March 2017 in paragraph [65] of the wife's trial affidavit being corrected by her oral evidence, to May 2017.

[84] At paragraphs 71 and 72 of her trial affidavit filed on 3 September 2024.

[87] Item 18 of her financial statement.

[88] The figures in bold reflect the value of assets to be retained by each party for the purpose of the default orders I will make.

[90] Demeny & Ogden [2021] FedCFamC1A 21; (2021) 371 FLR 444 citing with approval at [26], Noetel & Quealey [2005] FamCAFC 677; (2005) FLC 93-230, in which the Full Court in turn referred to the comprehensive review of authorities in S & S [2000] FamCA 262.

[91] Affidavit of single expert valuer, John Gunthorpe of Jones Lang LaSalle, filed 9 September 2024.