R -v- T [2020] WASCA 109 (8 July 2020)

Family law - De facto relationship - Setting aside contributions to superannuation fund - Whether orders setting aside contributions to a superannuation fund involved contraventions of s 62 of Superannuation Industry (Supervision) Act 1993 (Cth) and reg 5.08 of Superannuation Industry (Supervision) Regulations 1994 (Cth) - Whether judge erred in finding that there were no taxation consequences in setting aside dispositions

Family law - De facto relationship - Adjournment under s 205ZG(5) of the Family Court Act - Interim orders under s 205ZG(6) of Family Court Act - Principles to be applied - Whether judge erred in making interim orders

Family law - De facto relationship - Practice and procedure - Whether appellant entitled to raise new points not litigated at trial - Whether appellant established that it was in the interests of justice to raise a new point in the appeal to the effect that the trustee of the superannuation fund had been denied natural justice in the primary proceedings.

Family Court Act 1997 (WA), s 205ZG(1), s 205ZG(3), s 205ZG(4), s 205ZG(5), s 205ZG(6), s 205ZI(1)(h), s 205ZLF, s 222, s 222(1), s 222(3), s 222(4a)

Family Court Rules 1998 (WA), r 12

Family Law Act 1975 (Cth), s 79, s 79(5), s 79(6), s 80(1)(h), s 85, s 85(1), s 106B, s 106B(1)

Family Law Rules 2004 (Cth), r 6.02

Income Tax Assessment Act 1936 (Cth), pt III div 6

Income Tax Assessment Act 1997 (Cth), s 6-5, s 295 - s 325

Income Tax Rates Act 1986 (Cth), s 26, s 26(2)

Relationships Act 2008 (Vic), s 63

Superannuation Industry (Supervision) Act 1993 (Cth), s 62(1)

Superannuation Industry (Supervision) Regulations 1993 (Cth), reg 5.08, reg 5.08(1A), reg 5.08(2)

First respondent's application filed 8 April 2020 dismissed

1. This is an appeal by the appellant (the de facto husband) against pars 1 ‑ 5, 7, 10 - 12 of the interim orders of Moncrieff J dated 25 June 2018 in favour of the first respondent (the de facto wife). The judge's reasons for decision are contained in T and R[1] (primary decision). The primary proceedings are pending in the Family Court of Western Australia. The interim orders involved the setting aside of certain transactions pursuant to s 222 of the Family Court Act 1997 (WA) (the Act), and making interim property orders in favour of the de facto wife pursuant to s 205ZG(5) and s 205ZG(6) of the Act. Amongst other things they had the effect of discharging the de facto husband's arrears in child maintenance exceeding $400,000.
2. The primary proceedings concern, relevantly, orders for a property settlement between the de facto husband and the de facto wife. The second respondent is the de facto husband's daughter of a previous relationship (the de facto husband's daughter).[2] She has not taken part in the appeal. As the parties had not entered into a legal marriage, the proceedings are conducted pursuant to pt 5A of the Act.[3]
3. The primary proceedings were commenced in 2009. The hearing before the primary judge, pursuant to which the interim orders were made, commenced on 23 October 2017. In the eight years from the commencement of proceedings, the structure of the matter had changed significantly, and there had been more than 50 court appearances. During the trial, the child‑related proceedings were not agitated, and the entire focus of the hearing, over eight days, related to financial matters between the parties. The relief ultimately sought by the de facto wife was significantly different from that which she had originally sought, and this reflected the change in 'landscape' within the dispute and how it had 'morphed over the eight years of litigation'.[4]
4. Ultimately, at the time of trial, the de facto wife (1) sought interim orders setting aside certain transactions with the intent of making some property available for distribution to the parties, and (2) thereafter sought to have the matter adjourned to allow for the proper resolution of questions in relation to a superannuation fund in which the de facto husband had a substantial interest (the VW Super Fund), and to enable a final definition of the de facto husband's beneficial interests in property.[5]
5. The core areas of dispute at trial were the beneficial interests of the parties and in particular of the de facto husband in assets, and the parties' respective interests in the VW Super Fund.[6]
6. For the reasons which follow, there is no merit in any of the de facto husband's grounds of appeal and the appeal should be dismissed.

1. In April 1999, the de facto husband and de facto wife commenced living together in a marriage-like relationship.[7] The relationship continued until the de facto husband and de facto wife separated on 26 January 2008. They never married.[8]
2. The de facto wife came into the relationship with two children of a prior marriage.[9] The de facto husband also has two children from a prior marriage (one of whom is the second respondent - the de facto husband's daughter).[10] The relationship of the de facto husband and de facto wife produced two children, both of whom were teenagers at the time of the primary decision.[11]
3. At the point of cohabitation, the de facto wife was employed and had accumulated, in her estimation, some $57,000 in superannuation entitlements in her superannuation fund. She also had a motor vehicle, some furnishings and personal effects, together with a small amount of cash. She did not have assets of any significance.[12]
4. The de facto husband was employed in accounting and auditing pursuits throughout the relationship and made financial decisions within the relationship. He held an interest in and was employed by a financial services firm. The de facto husband also had a substantial interest in the VW Super Fund, a self‑managed superannuation fund. He also had (amongst other things) a beneficial interest in a number of properties, including properties owned by the de facto husband's mother on trust for the de facto husband.[13]
5. The de facto wife ceased employment in about May 2002, when she assumed the role of primary homemaker and parent. Her evidence was to the effect that following her resignation from employment, she rolled her superannuation interest into the VW Super Fund, for which the de facto husband assumed, with the de facto wife's agreement, the primary management role.[14]
6. At the time of their separation, the de facto wife understood, based on representations made by the de facto husband, that the parties' wealth was around $8 million.[15]
7. The entities in which the de facto husband held, or allegedly held, interests included:
   1. GE Pty Ltd;
   2. the LMN Investment Trust;
   3. the LMN Family Trust;
   4. Holdings Pty Ltd; and
   5. the VW Super Fund.

1. The de facto wife was not challenged about her evidence as to the corporate structure of various entities, including the following.[16]

1. To the extent that the de facto wife was aware, the directors of GE Pty Ltd were the de facto wife (subject to compliance with orders for her reinstatement), the de facto husband, the de facto husband's mother, and the de facto husband's daughter. The de facto husband holds 102 shares and the de facto husband's daughter holds one share. The de facto wife was a director from 31 March 2003 until 27 September 2012.[17]
2. GE Pty Ltd is the trustee for:[18]
   1. The LMN Investment Trust.
   2. The LMN Family Trust.
   3. The VW Super Fund.

1. The LMN Investment Trust is a unit trust of which GE Pty Ltd is the trustee. There are 1,001 income units, two ordinary units and two discretionary capital units. At its establishment the unit holders were:[19]
   1. The de facto husband with 1,000 income units.
   2. GE Pty Ltd with one discretionary capital unit and one income unit.
   3. Holdings Pty Ltd with two ordinary units and one discretionary capital unit.
2. At trial, the de facto wife's evidence was that the present unit holders (in the event that the issue of units to the de facto husband's daughter did not occur) were (1) the de facto husband with 1,000 income units, and (2) GE Pty Ltd with one discretionary capital unit and one income unit.[20]

1. The LMN Family Trust is a discretionary trust of which GE Pty Ltd is the trustee. The de facto husband's children from his earlier relationship are the specified beneficiaries, and the de facto wife, the de facto husband and the LMN Investment Trust are members of the class of general beneficiaries.
2. The de facto husband is appointor and guardian of the LMN Family Trust and, accordingly, has effective control of the trust.[21]

1. Holdings Pty Ltd was deregistered in 2014. The de facto wife and the de facto husband had been directors.
2. At its inception, Holdings Pty Ltd allotted two types of shares in the form of two ordinary shares to the de facto husband's father, and 340,000 class 1 shares to the de facto husband. When the de facto husband's father passed away, those ordinary shares were distributed to the de facto husband, making him the sole shareholder.[22]
3. In the primary proceedings, the de facto wife assumed, and the assumption was not effectively challenged, that the units previously held by Holdings Pty Ltd in the LMN Investment Trust were now held by the de facto husband.[23]

1. GE Pty Ltd is the trustee of the VW Super Fund. The members of the fund are the de facto wife, the de facto husband, the de facto husband's mother, and the de facto husband's daughter.[24]
2. The de facto husband had already reached his preservation age, and, upon his retirement, his member entitlements in the VW Super Fund would vest.[25]
3. Even on the de facto husband's case, he would receive $2.6 million upon the vesting of his superannuation entitlements.[26]

1. On 31 August 2009, the de facto wife commenced the primary proceedings by an initiating application, pursuant to which she sought financial relief by way of property settlement, maintenance for herself and support for her two children from a prior relationship.[27] The de facto husband filed a response on 24 December 2009, which included seeking orders for the sale of certain property.[28]
2. On 11 November 2011, the de facto wife amended her application to include parenting orders.[29] On 31 August 2011, the de facto husband amended his response to include parenting orders and other financial relief. The net effect of the de facto husband's proposed orders was that the de facto wife would receive nothing by way of settlement of property, other than the property she held by way of chattels, subject to the proposed division, and any superannuation entitlement.[30]

1. On 2 February 2017 there was an application before O'Brien J of the Family Court in which the de facto wife sought, amongst other things, orders to the effect that GE Pty Ltd and the LMN Investment Trust 'not be required to be joined by [the de facto wife] as parties to these proceedings on the basis that those entities act as the alter ego of [the de facto husband] or the parties'.[31]
2. In relation to that matter, O'Brien J, in reasons for judgment in an interlocutory matter, said:[32]

While I am not prepared to make the finding sought to the effect that [GE Pty Ltd] is the alter ego of the [de facto husband], I am prepared to make orders as to the requirement for service of documents on that entity so as to avoid entirely pointless delay and expense being incurred in circumstances where the [de facto husband] is a director of the company, is at the very least actively involved in the direction of its affairs and resides at the address which is recorded as its registered office. (emphasis added)

1. On 31 March 2017 O'Brien J accordingly made orders including the following:[33]
   1. Until further order of the Court, special [sic - personal] service on [GE Pty Ltd] or [the LMN Investment Trust] of any documents filed in these proceedings to date, this order and any subsequent order, and any documents filed subsequent to these orders which would otherwise be required to be served on those entities or either of them be dispensed with on the condition that the said documents and orders are forwarded by pre-paid post to [the S Road property][.]

1. On 4 October 2017 the de facto wife filed an amended minute of orders, in which she sought, amongst other things:[34]
   1. Property settlement orders, via a cash payment to the de facto wife, so as to achieve an overall equal division in the parties' net assets, liabilities, superannuation and financial resources including the property of entities owned or controlled by the de facto husband.
   2. The setting aside of:

(a) dispositions to the VW Super Fund on 31 August 2016;

(b) transactions relating to certain concessional contributions made by the de facto husband to his member entitlement to the VW Super Fund; and

(c) transactions in relation to non-concessional contributions made by the de facto husband to his member entitlement in the VW Super Fund.

1. A further minute of amended orders was filed by the de facto wife on 2 November 2017.[35]

The amended orders sought by the de facto wife on 2 November 2017

1. On 2 November 2017, the de facto wife applied for and obtained leave to seek further amended orders.[36] By her minute of proposed orders dated 2 November 2017, the de facto wife sought orders, including orders to the following effect:[37]

1. Declarations that each of the LMN Investment Trust and GE Pty Ltd is the alter ego of the de facto husband, that the de facto husband is the true equitable owner of the D 15 property, and that any instrument purporting to issue or transfer to the de facto husband's daughter units in the LMN Investment Trust, is a sham.

Setting aside transactions in relation to the VW Super Fund and consequential orders

1. The purported contribution on 31 August 2016 of around $418,000 by the de facto husband to the VW Super Fund, and the consequential transfer of securities, be set aside.
2. Consequential orders and declarations requiring the repayment of $444,248.62 from the VW Super Fund to the de facto husband.
3. An order that a non‑concessional contribution by the de facto husband to the VW Super Fund in the sum of $96,859 in 2008 be set aside and be deemed to be a contribution of the de facto wife.
4. An order that the non‑concessional contribution by the de facto husband to the VW Super Fund in the sum of $450,000 in June 2011 be set aside, and that the contribution be deemed to be a contribution of the de facto wife.

1. The parties in their capacity as directors of GE Pty Ltd appoint Mr Mark Chan to review, and if considered appropriate amend, the financial statements of the VW Super Fund for the years ended June 2008 to June 2015 inclusive with focus on:

(a) the value shown in the accounts of the fund for various unlisted and property investments;

(b) the attribution of contributions and movements in value of property of the VW Super Fund as between members; and

(c) the calculation of member balances as at 30 June 2017.

1. The parties in their capacity as directors of GE Pty Ltd appoint Mr Mark Chan to prepare financial statements and taxation returns for the VW Super Fund for the years ended June 2016 and June 2017.

1. On or before 1 March 2018, and by way of partial property settlement, the de facto husband pay to the de facto wife $700,000 (the cash payment).

1. The proceedings be adjourned pursuant to s 205ZG(5) of the Act, with liberty to apply on reasonable notice in writing.

1. The de facto husband sought the following orders at trial:[38]

1. The children ... continue to have contact with [the de facto husband] in accordance with their wishes.
2. [The de facto wife] retain for her benefit interim payments totalling [sic] $405,414.
3. [The de facto wife] retain for her benefit household effects, artwork and jewelery [sic] of the former matrimonial home, as better particularized in the Insurance Manifest $602,727, item 259‑260, of Schedule of Discovery dated 24 July 2016.
4. [The de facto wife] retain for her benefit the two vehicles per her Form 13, namely Honda $45,000 and Toyota $10,000.
5. [The de facto wife] resign from the [VW Super Fund] and advise the Trustees the nominated complying fund [the de facto wife] wishes her member entitlements to be rolled over.
6. [The de facto husband] retain his membership entitlements in the [VW Super Fund].
7. [the de facto husband] retain his capital (2) and income (1003) units in the [LMN Investment Trust].
8. [The de facto husband] continue to pay Child Support in the sum of $650 per week or any other rate as determined by the Department of Human Services.

The de facto husband's conduct and arguments at trial

1. As at 24 December 2009, the de facto husband deposed, in a statement of financial circumstances, to having net assets and superannuation to a value of $3,943,000.[39]
2. In the statement of financial circumstances on 18 August 2016, upon which the de facto husband relied, the de facto husband deposed to his asset position as:[40]
   1. Total value of property owned: $5,005.
   2. Gross superannuation value: $2,200,000.
   3. Liabilities: $638,256.
   4. Total financial resources: $1,005.
3. The de facto husband's conduct and arguments at trial included the following:
   1. The de facto husband contended that there should be no alteration to the parties' legal entitlements to assets, and that the de facto wife's future entitlement in the VW Super Fund should be rolled over into another one.[41]
   2. Although he was $440,000 in arrears in child maintenance, the de facto husband made no proposals with respect to the arrears.[42]
   3. The de facto husband contended that the de facto wife had an ability to obtain payment of $1.4 million under an insurance policy. However, he failed to disclose that it was a policy owned by the VW Super Fund.[43]
   4. The de facto husband, knowingly in breach of his obligations, failed to make proper disclosure of documents.[44]
   5. The de facto husband sought to delay the proceedings by not attending on the fifth day of trial in the middle of his cross‑examination.[45]
   6. Although the de facto husband had been ordered by O'Brien J in March 2017 to reinstate the de facto wife as a director of GE Pty Ltd, he did not do so until the time of trial.[46]

1. On 2 November 2017, the de facto wife applied for, and was granted, interlocutory orders restraining the de facto husband's daughter from dealing with any units in the LMN Investment Trust or exercising any rights which she may have as a unitholder in that trust.[47]
2. Also, on 2 November 2017, by consent, the judge made orders[48] for the appointment of an expert, Mark Chan to, in effect:
   1. Amend in draft form the Financial Statements for the VW Super Fund for the financial years ending 30 June 2008 to 30 June 2015 (inclusive).
   2. Prepare in draft form the Financial Statements for the VW Super Fund for the financial years ending 30 June 2016 and 30 June 2017.
   3. Calculate the member balances as at 30 June 2017.

Such drafts were to abide further order of the court.

1. The judge adjourned the hearing to 14 November 2017.[49]

1. On 14 November 2017, the eighth day of trial took place before the judge. The judge extended the injunction against the de facto husband's daughter, until further order of the court, with liberty for her to apply on short notice. The judge also gave leave to the de facto wife to file further references to transcript arising from submissions at the oral hearing, and for the de facto husband to have liberty to apply to be heard in relation thereto.[50]

1. The primary decision was delivered on 25 June 2018. The primary decision included findings to the following effect.

1. The judge made trenchant credibility findings adverse to the de facto husband, and favourable credibility findings in favour of the de facto wife.[51] Amongst other things, the judge said that the de facto husband's approach to the treatment of asset values in the VW Super Fund was 'quite extraordinary', involving amounts being transferred into the fund at value, and then subsequently written down to almost nothing. The write downs lacked transparency and lacked any proper explanation.[52] His Honour also said that certain arguments about an insurance policy advanced by the de facto husband were an attempt to mislead the court,[53] and that the de facto husband had 'wilfully obfuscated matters and at times blatantly misled the court'.[54]

1. The de facto wife's unchallenged evidence was that during the relationship, the de facto husband and de facto wife had legal and/or beneficial interests in relation to certain properties.[55]
2. The judge also found that the de facto husband had, in effect, 'deferred' assets being (at least) $2.6 million to his account in the VW Super Fund, $485,000 in respect of a property that would pass to him on the death of his (aged and unwell) mother, and other funds that he stood to receive from his mother.[56]

1. The judge accepted that it was an appropriate case to make interim property orders, and then to adjourn the matter to a final hearing.[57]
2. His Honour effectively accepted that the final exercise of the power under s 205ZG of the Act should be done after the vesting of superannuation entitlements, unless prior to then the agreement between Attorneys General as to the transfer of power from State to Federal government were enacted, such that superannuation splitting orders could be made.[58] His Honour had regard to present uncertainties as to when the de facto husband's entitlement under the VW Super Fund would vest, as well as other uncertainties about his financial position and the likelihood of his inheriting assets on the death of his mother.[59] The judge also found, in effect, that the de facto husband's failures to disclose documents, including in relation to the VW Super Fund, made it difficult for the de facto wife, and the court, to identify the pool of assets available for distribution, and to identify the assets in, and the value to be attributed to, the VW Super Fund.[60]
3. The judge referred to the power to adjourn proceedings pursuant to s 205ZG(5) of the Act and said, in effect, that the circumstances mentioned in s 205ZG(5) applied in the present case.[61]
4. His Honour also observed that, under s 205ZG(6), the court had power to make interim property orders before granting an adjournment of the proceedings.[62] His Honour said:[63]

The approach to be adopted in the making of interim orders has been judicially considered on numerous occasions by the Full Court. Whilst the interests of the parties and the Court are generally better served by there being only one final hearing, there is little doubt that the exercise of power under s 205ZG of the Act may be 'exercised by a succession of orders until the power ... is exhausted (see paragraph 57 Gabel and Yardley (2008) FamCAFC 162).

In Strahan & Strahan (supra) the Full Court determined that the only condition precedent to the exercise of the power was a determination that it was appropriate.

1. His Honour also noted the requirement, under s 205ZG(3), that no order should be made under s 205ZG unless the court was satisfied that it was in the interests of justice to do so, and his Honour was so satisfied.[64]
2. The judge said, in effect, that the making of any interim (property) order that settled upon the de facto wife any current asset, and the proper identification of any beneficial interest that the de facto wife or the de facto husband may currently have in the asset pool, required a consideration of the de facto wife's application to set aside certain transactions.[65]

Setting aside transactions involving contributions to the VW Super Fund

1. The judge observed that the de facto wife sought to set aside three particular transactions involving transfers by the de facto husband into the VW Super Fund:[66]
   1. A non-concessional contribution made by the de facto husband in 2008 of $96,859 to the VW Super Fund, resulting from the sale proceeds of the E property by GE Pty Ltd as trustee at the LMN Family Trust.[67]
   2. The non-concessional contribution to the VW Super Fund of $450,000 made by the de facto husband in 2011 resulting from the sale of the de facto husband's interests in an accounting company.[68]
   3. The purported contribution made by the de facto husband on 31 August 2016 to the VW Super Fund involving certain transfers of interest in property syndicates from the LMN Investment Trust to the VW Super Fund.[69]
2. As to the three contributions referred to above, the de facto husband's evidence was to the effect that (1) in 2008, almost all of the funds from the sale of the E property were directed solely to his account in the VW Super Fund[70] (which the judge found to include the payment of $96,859),[71] (2) almost all of the profit from the sale of the de facto husband's interest in his firm was put into the VW Super Fund in his name,[72] and (3) he directed the 31 August 2016 contribution to be made in his name to the VW Super Fund.[73]
3. The de facto husband accepted (1) that if the contributions were treated as allocated to the member entitlement of the de facto wife, rather than treated as allocations to his account, it would simply be necessary to change the member balances as between the parties in the VW Super Fund,[74] and (2) the setting aside of those dispositions would not cause any adverse taxation liability to the VW Super Fund or the members of the VW Super Fund.[75]
4. The judge referred to s 222(1) of the Act and said that remedies are only available under that provision if (1) the application is made 'in proceedings under the Act', (2) the application relates to an 'instrument or disposition', (3) the instrument or disposition is made, or proposed to be made, by or on behalf of a party or by direction of a party, or in the interest of a party to the proceedings, and (4) the instrument or disposition is made, or proposed to be made, in order to defeat an existing or anticipated order in the proceedings or, irrespective of intention, is likely to defeat such an order.[76]
5. The primary judge said that if each of those elements were established, then the court may, in the exercise of its discretion, make an order under s 222(1). His Honour also said that although intention to place assets, or attempt to place assets, beyond the reach of a party to the intent of defeating any claim is not necessary, the factor of intention is highly relevant to the exercise of the court's discretion (once the power is enlivened).[77]
6. In relation to the 2008 concessional contribution of $96,859 to the VW Super Fund, the judge said that whilst the payment preceded the commencement of the proceedings, it occurred at a time of marital disharmony and it was not a precondition for setting aside a transaction under s 222(1) that the parties be parties to a proceeding then on foot.[78] Moreover the allocations and variations to the parties' loan accounts relating to the payment which effected the disposition to the de facto husband were made a couple of years after 2008 and subsequent to the parties' separation.[79]
7. The judge found, in effect, that the criteria for the exercise of the power under s 222(1) had been established. His Honour was satisfied that the relevant dispositions had been done with the intention of defeating anticipated orders under the Act by removing property from the asset pool available for the making of property settlement orders.[80]
8. Having decided that the power under s 222(1) of the Act was enlivened, his Honour considered that the following matters favoured the exercise of a discretion to make orders in favour of the de facto wife:
   1. Neither the VW Super Fund nor the de facto husband (nor other members) incurred a tax liability upon the making of the contributions to the VW Super Fund, and an order for the setting aside of the contributions would not, in itself, create any adverse tax liability for the VW Super Fund or for the de facto husband (or other members) - a point conceded by the de facto husband.[81]
   2. Accounts for the VW Super Fund were yet to be prepared.[82]
   3. Setting aside the three transactions would not result in cashing in a member's benefits to a third party contrary to reg 6.22 of the Superannuation Industry (Supervision) Regulations 1994 (Cth) (Superannuation Regulations), as the order would only affect the transactions that created the entitlements in the VW Super Fund, and would not be in the nature of a direction to the trustee of the superannuation fund or a member of the superannuation fund.[83]
   4. The transactions were effected by the de facto husband with an intention of defeating anticipated property settlement orders.[84]

Setting aside the transfer of units in the LMN Investment Trust to the de facto husband's daughter

1. The judge observed that the de facto wife also sought to set aside a transfer or issue of units to the de facto husband's daughter in the LMN Investment Trust, or in the alternative, curtail her ability to exercise rights or receive benefits as a unit holder.[85]
2. The judge effectively accepted submissions by senior counsel for the de facto wife that the transfer of units to the de facto husband's daughter was done with the intention of defeating anticipated property settlement orders under the Act.[86] His Honour also said, in effect, that it was in the interests of justice to make such an order having balanced the interests of the parties and the de facto husband's daughter.[87]

The making of interim orders - whether just and equitable

1. The judge, having considered the nature of the power to make interim property orders (see [50] [88]ove) said:88

I have above considered the difficulties confronting the Court in terms of a singular exercise of power [under s 205ZG] through the lack of ability to identify with precision the extent and the totality of the value of the asset pool. The fault for that inability lies almost entirely with the [de facto husband] who has a unique and intimate knowledge of the parties' financial affairs and financial dealings that he has undertaken during the course of the parties' relationship. He has, as I have found wilfully obfuscated matters and at times blatantly misled the Court.

In the exercise of the power, however, the Court should also be satisfied that the remaining property will be sufficient to meet the legitimate expectations of the parties at the final hearing.

Logically in the circumstances of this case, that is a difficult assessment to make and accordingly I consider that I should exercise the power conservatively. However, I am mindful that even on the [de facto husband's] case there is a deferred asset, which will ultimately come into his hands upon the vesting of his superannuation entitlement of $2,600,000 allowing for the [de facto husband's] write downs through the 'impaired' assets and taking his version of the values for the [VW Super Fund's] interests in property at [S Road] ...

Further, upon the death of his mother the [de facto husband] will inherit property at [D 15], where he does not dispute and has not disputed the value nominated by the [de facto wife], as seen in a notice to admit on 20 February 2017, of $485,000. Additionally the [de facto husband] stands to receive funds held in the name of his mother. (emphasis added)

1. The judge also said in effect that it was common ground, notwithstanding the orders made for the appointment of Mr Chan, that the VW Super Fund had sufficient cash to satisfy the setting aside of the dispositions for the making of the interim orders.[89]
2. The judge further said:[90]

Of the transactions to be set aside I propose to order that the sums be paid into the Trust account of the [de facto wife's] solicitors and to be dispersed therefrom in accordance with these orders. In particular the first payment is to be made to the [de facto wife] to the extent of the arrears of spousal maintenance and child support, with a direction that she notify the Registrar of Child Support accordingly.

That sum is the liability of the [de facto husband] and it is a liability that he does not challenge, nor does he seek to vary the spousal maintenance order in force. Similarly, he has not sought to enliven the jurisdiction of the court as to matters arising pursuant to the Child Support (Assessment) Act 1989 (Cth). Accordingly, although ultimately it is an exercise to be completed as part of the final hearing of this matter, that is a sum unlikely to be brought to account as an amount received by way of settlement of property by the [de facto wife] other than as to any balance remaining after deduction of the [de facto husband's] said liabilities.

The balance which I intend to order be paid to the [de facto wife] will approximately be the sum of $547,000 which represents as against the [de facto husband's] pool of assets a percentage calculated thus:

• $2,725,652, inclusive of superannuation, given that the final exercise of the power will be conducted after the vesting of superannuation, or the agreement between Attorneys General as to the transfer of power from state to federal government, is enacted, such that superannuation splitting orders can ultimately be made; and
• $2,725,652 less $450,000 arrears of child support and maintenance leaving a balance of $2,275,652 of which $547,000 represents 24 per cent.

In determining that the order is just and equitably made, consistent with authority, [I am satisfied] that the dimension of such is not so great that the remaining property will [not] be sufficient to meet the legitimate expectations of the parties.[91]

The parties' contributions - s 205ZG(4)(a), (b) and (c) factors

Having determined that it is just and equitable to make an order pursuant to s 205ZG of the Act and having determined that I should adjourn the proceedings, I turn then to the consideration of contribution and the factors prescribed by s 205ZD(4), being the matters that a court must take into account in considering what order should be made in the alteration of the parties' property interests. ...

...

In making the assessment of contribution prescribed in the Act, financial contribution is not to be treated as greater than non-financial contribution or contribution made by a de facto partner to the welfare of the family and any children of the de facto partners.

It is the case for the [de facto wife] that she accepts that the [de facto husband] made the greater initial financial contribution at the commencement of the relationship in the form of:

(a) the [P] property;

(b) the [de facto husband's] interests in [his] business ... and related entities; and

(c) some superannuation interests.

As to the [P] property I note the [de facto husband's] position as to the same, and if I am wrong in my findings then the [de facto husband's] initial contribution should ultimately be reduced accordingly.

The [de facto wife] came into the relationship with some superannuation interests accumulated during her employment, some savings and otherwise modest assets.

After the parties commenced to cohabitate the [de facto wife] continued in her employment ... until the same became untenable through ... closure ...

The [de facto wife] describes their relationship as being like 'a traditional marriage-like relationship' with the [de facto husband] assuming responsibility for financial decisions.

I accept that the [de facto wife's] knowledge of the financial transactions undertaken by the [de facto husband] was limited. However, it was clear that she was active in assisting the [de facto husband] in his role, for example, in reducing the tax burden on the family from the balance standing to her loan account in the [LMN Investment Trust].

Following the cessation of her employment ... in 2002 and having taken paid maternity leave when the parties' elder child ... was born, it is the [de facto wife's] case that she took on the role of primary homemaker and parent.

There is no doubt that the [de facto husband] worked hard and was successful in his chosen profession notwithstanding the offensive comments made by him in his submissions about the [de facto wife's] role, the [de facto husband] fails to recognise that the [de facto wife], in adopting the role that she did as primary homemaker and parent, was supportive of the [de facto husband's] commercial endeavours.

It is of note the [de facto husband] submits that his capacity to make a professional income is limited by his inability to travel overseas, and during the course of his evidence much was made of the 'top secret' level of responsibility that the [de facto husband] enjoyed in his overseas work. However, the same again ignores the role that was assumed by the [de facto wife] in supporting the family and household during his absences and which role would have been enhanced during such times.

The [de facto wife's] evidence that she managed renovations to properties and assisted physically at times in that task, was not challenged in any meaningful way by the [de facto husband].

The [de facto wife] acknowledges that she had assistance around the house, about which she was unchallenged. She identified that she had a cleaner once a week, a gardener who mowed the lawns, a person who attended to pool maintenance and a person who did the ironing, which she identifies as being primarily the [de facto husband's] shirts, on average once a week.

The [de facto wife] was on her case otherwise responsible for cooking, cleaning, laundry, managing the household shopping, children's clothing, paying household bills, running errands for the [de facto husband], caring for the children when they were infants and thereafter attending kindergarten, school, sport and extra-curricular events, pick‑ups and drop offs and attending to general gardening.

The [de facto husband's] children spent time with the family, and the [de facto wife] was responsible in a similar way for them during the time that they were present, albeit during school holidays.

It is not disputed that the [de facto husband] was generous in his provision for the [de facto wife's] other children, nor could it reasonably be so.

The parties operated as a partnership and whilst the [de facto husband's] financial contribution may have outweighed that of the [de facto wife], her non‑financial contribution was equally important and significant within the subsisting relationship between the parties to the point of separation.

Post-separation the [de facto husband] has had the benefit of the property that he has retained and an income that he has earned whilst failing to meet his ordered and assessed financial obligations to the [de facto wife].

1. The judge concluded as to contributions:[94]

Overall I conclude that the parties' contributions to trial should be assessed as equal or close thereto.

In the papers for the judge Senior Counsel [for the de facto wife] nominated the following as applicable:

'SECTION 205ZG(4)(d), (e), (f) and (g) FACTORS

1. Both parties are of similar age, and while the [de facto wife] has suffered from breast cancer and associated complications, both parties are in reasonable health.
2. It is the [de facto wife's] submission that the [de facto husband] has a significantly greater earning capacity than she has. The [de facto wife] also contends that the [de facto husband] has property and financial resources beyond that which have been identified by him in these proceedings.
3. The parties' eldest child ... is now living with the [de facto husband]. The parties' youngest child ... lives with the [de facto wife].
4. It is likely the [youngest child] will continue to live primarily with the [de facto wife] in the future. The change of residence of [the eldest child] is recent and was at least in part driven by the poverty of the [de facto wife] and the lifestyle that the [de facto husband] is able to offer [the eldest child] and which the [de facto wife] cannot match until she receives a proper financial settlement.
5. The [de facto husband] currently has a child support debt of $467,699.10. The Child Support Agency has, to date, been unable to enforce that debt, and the [de facto husband] has not made a payment of child support or spousal maintenance for a period of more than 10 months.
6. It is the [de facto wife's] submission that the [de facto husband] has failed to provide full and frank disclosure in a timely manner or at all, and has in fact deliberately misrepresented his financial position to the Court. In those circumstances, the [de facto wife] contends that the Court should not be unduly cautious in making findings against him and/ or making an adjustment in her favour.'

I agree with and respectfully adopt those matters identified by Senior Counsel as relevant.

In particular, however, I consider that the [de facto wife] would be entitled to a significant allowance in her favour given my findings as to the conduct of the [de facto husband] as a litigant and his failure to properly and fully disclose matters material to the proceedings.

As seen I reject any suggestion by the [de facto husband] that he was ignorant of his obligations.

1. The judge concluded, however, that the extent of any adjustment could be left to the final hearing:[96]

However, it is not necessary for me to determine the extent of such an adjustment at this point but rather that is a matter left for the final hearing of the proceedings between the parties, as I am satisfied that on a contribution based assessment the interim award that I propose to order by way of a variation of property interests, is not of such a dimension when considered against the matters prescribed in s 205ZG, that there will be insufficient funds remaining at the final hearing to properly reflect each of the parties' entitlement. (emphasis added)

1. The judge said that there was no application before him to discharge the current spousal maintenance order, and that, in any event, he was not satisfied that the de facto wife should be solely reliant upon the capital settled upon her after the discharge of arrears of maintenance and child support, to meet her daily needs.[97] The judge noted that the only application before him in respect of spousal maintenance was an application by the de facto wife to reduce the amount payable, and that it was inherent in the application that she would use capital to meet the shortfall of her present expenditure over income.[98] The judge then said:[99]

In Senior Counsel's submissions, it is noted that the change is sought in expectation of an interim partial property settlement, and, partly, in recognition of [the de facto wife's] income albeit from Social Security.

As the application is not addressed by the [de facto husband] in the context of the orders sought by the [de facto wife], and represents a decrease in his liability, I will order accordingly. Further, the order, continuing as an interim order, will be reviewed in the context of the [de facto wife's] prevailing circumstances at the final hearing of the application.

I propose that the transactions I have identified be set aside and that the funds forthwith be paid in the first instance to [the de facto wife's] solicitors ... whose receipt shall be a sufficient discharge therefore on behalf of the [de facto wife] to be dispersed therefrom to the [de facto wife] by way of payment or at her direction.

I have not made orders in terms of those sought by the [de facto wife] by way of a redistribution of superannuation accounts within [VW Super Fund], as by setting aside, whether by way of superannuation contribution or otherwise, the transaction the same, it has in effect, never occurred. I have no independent evidence of the tax effect or ordering in the terms sought, and, further, to so order may constitute a Superannuation Splitting Order, which the Court presently does not have the jurisdiction to make.

I will hear submissions otherwise as to the precise terms of orders.

The proceedings will otherwise stand adjourned with liberty to relist upon the vesting of the [de facto husband's] superannuation interests or the Court being empowered for a referral of powers to the federal government to make superannuation splitting orders.

1. On 25 June 2018, the judge made orders relevantly to the following effect:

1. Order 1 is to the effect that certain transfers, payments, distributions or dispositions, made on behalf of the de facto husband to the VW Super Fund, and any associated instruments, be set aside pursuant to s 222 of the Act, including:

(a) certain transfers of securities purportedly made from the LMN Investment Trust to the VW Super Fund on 31 August 2016;

(b) all transactions leading to non-concessional contributions of $96,859 made by the de facto husband to his member entitlement in the VW Super Fund in 2008; and

(c) all transactions leading to the non-concessional contribution of $450,000 made to the VW Super Fund in 2011.

1. Order 2 is to the effect that any instrument purporting to issue units to, or transfer units to, the de facto husband's daughter in the LMN Investment Trust, or to issue a transfer to the de facto husband daughter's other rights or entitlements in respect of the property of the LMN Investment Trust, be set aside.

1. Order 3 is to the effect that in relation to order 1(a), (1) there be consequential orders to the effect that the amount to be repaid by the VW Super Fund to the de facto husband is $444,248.62, (2) the parties, in their capacities as directors of GE Pty Ltd, do all things necessary to cause the amount of $444,248.62 to be paid to the de facto wife into her solicitor's trust account, and (3) the balance of the relevant funds to be paid to a specified bank account held by the VW Super Fund.
2. Order 4 is to the effect that in relation to orders 1(b) and (c), there be consequential orders that the parties, in their capacities as directors of GE Pty Ltd, do all things necessary to cause the amount of $546,829, currently held in the name of GE Pty Ltd as trustee of the VW Super Fund, to be paid to the de facto wife into her solicitor's trust account.

1. Order 5 is to the effect that, upon the receipt of the funds referred to in orders 3 and 4, the de facto wife's solicitors cause the funds to be disbursed to discharge the arrears of child support and maintenance owed by the de facto husband to the de facto wife as at 30 June 2018, and as otherwise as directed by the de facto wife.

1. Order 7 is to the effect that if a party fails, or is not physically available, to comply with a requirement to sign documents or authorise any transaction pursuant to these orders, a Registrar of the Court be and is hereby authorised to sign any such documents on his behalf pursuant to s 221 of the Act.

1. Order 10 provides, in effect, that until further order, and save and except with the de facto wife's prior written consent, the de facto husband be restrained from dealing with property in which he has an interest.
2. Order 11 provides, in effect, that for the avoidance of doubt, save as may be expressly authorised by the de facto wife in writing, the de facto husband and the de facto husband's daughter, in whatever capacity, including as directors of GE Pty Ltd, as attorney for the de facto husband's mother, or by their agent, be restrained from doing any act or thing to cause or allow funds to be withdrawn, transferred, or otherwise removed from, certain accounts held in the name of GE Pty Ltd as trustee for the VW Super Trust.

1. Order 12 is to the effect that, pursuant to s 243(8)(g) of the Act, the de facto wife have liberty to disseminate a copy of 'the preceding paragraph of these orders' to any third party controlling property, superannuation interests or liabilities referred to in these orders.

1. Ground 1 alleges, in effect, that the judge erred in law by not considering reg 5.08 of the Superannuation Regulations and s 62 of the Superannuation Industry (Supervision) Act 1993 (Cth) (Superannuation Act), and thereby erred in making orders 1 ‑ 5 and 7 of the orders dated 25 June 2018.
2. Ground 2 alleges, in effect, that the judge erred in law (at [205] in the primary decision)[101] in finding that there were no taxation consequences in setting aside the transactions when there were taxation consequences pursuant to s 6‑5 of the Income Tax Assessment Act 1997 (Cth) and pt III, div 6 of the Income Tax Assessment Act 1936 (Cth) at the rates under the Income Tax Rates Act 1986 (Cth).
3. Ground 3 alleges, in effect, that the judge erred in law in setting aside the three transactions relating to contributions to the VW Super Fund because:
   1. There were no grounds for finding that the transactions were made, or proposed to be made, to defeat an anticipated order under the Act for the purposes of s 222(1) of the Act.[102]
   2. GE Pty Ltd was a person affected by the orders and was denied procedural fairness by not having been joined as a party to the proceedings.
   3. The judge failed to require the de facto wife to give an undertaking as to damages.
4. Ground 4 alleges, in effect, that in setting aside the three transactions relating to contributions to the VW Super Fund (1) the judge was required to determine, under s 222(1) of the Act, whether a reasonable disponor in the position of the de facto husband would have anticipated, at the time of each transaction, an order being made under the Act, and (2) as part of this determination, the judge was required to identify what the available asset pool was for distribution. Ground 4 alleges the judge erred in law by failing to make the requisite determination.
5. Ground 5 alleges, in effect, that the judge erred in law in that:
   1. He was unable to identify, in accordance with common law and equitable principles, the existing legal and equitable interest of the parties in the VW Super Fund (including quantifying their member's balance at the date of the trial) until Mr Chan's work (in accordance with the orders of 2 November 2017) had been completed and any further orders of the court made.
   2. Consequently, the judge was unable to make a finding as to the identity and value of the property, financial resources and liabilities of the parties at the date of the hearing, including having regard to:

(a) Mr Chan's investigations in respect of the VW Super Fund for the years 30 June 2008 to 30 June 2017;

(b) the effect of orders 3 and 4 of the orders made on 25 June 2018 on the asset pool; and

(c) the taxation consequences arising from the orders dated 2 November 2017 (concerning Mr Chan's investigations) and 25 June 2018.

1. He failed to provide adequate reasons in relation to his assessment of contributions by the parties to the acquisition, conservation or improvement of any of the property of the parties as required under s 205ZG(4) of the Act, and thereby erred in finding that parties' contributions were equal or close thereto.

1. It may be noted here that although the de facto husband, by his amended notice of appeal,[103] challenges orders 1 ‑ 5, 7 and 10 ‑ 12 of the above interim orders of Moncrieff J, the de facto husband's grounds and submissions do not address orders 2, 7 and 10 ‑ 12.

The de facto wife's applications in an appeal Application 28 August 2019

1. On 28 August 2019, the de facto wife filed an application in the appeal in which (relevantly for present purposes) she sought to adduce additional evidence in the appeal via an affidavit of her solicitor Ms K E Breese sworn 28 August 2019. In that affidavit Ms Breese relevantly deposed:
   1. To the recent history of the appeal and the primary proceedings, particularly in relation to Mr Chan's work.
   2. To the orders of O'Brien J dated 31 March 2017 referred to in [31] above.
   3. To the service of documents on GE Pty Ltd in accordance with the orders of 31 March 2017.
   4. To the de facto wife's issue of a subpoena to the de facto husband's mother to give evidence, the unsealed copy of which was served on 18 October 2019 and the sealed copy was served on 19 October 2019.
   5. That in relation to the service of the unsealed copy of the subpoena, the process server swore an affidavit to the effect that:

(a) she attended the de facto husband's mother's property and served her with the documents;

(b) the de facto husband's mother said 'I don't know what's going on ... my son [the de facto husband] has told me not to accept or sign anything'; and

(c) as the process server was leaving the house a man the de facto husband's mother referred to as her 'son' arrived in a farm ute.

1. The application to adduce this evidence was in response to an amendment to the grounds of appeal that raised the procedural fairness point referred to at [85.2] above. The application was not opposed. Leave was granted in the interests[104] justice.104

1. On 8 April 2020, the de facto wife also filed an application together with a further affidavit of Ms Breese sworn 7 April 2020. By this application, the de facto wife sought leave to adduce the affidavit of Ms Breese and to file and serve a further amended answer to the appellant's further amended case filed 30 July 2019. By the further amended answer, the de facto wife contended that the de facto husband was in contempt of court in the primary proceedings for failure to comply with certain court orders, and that accordingly, he should not be heard on the appeal.

Ground 1 - alleged breaches of Superannuation Regulations and Act De facto husband's submissions

1. The de facto husband submitted, in effect, that the orders setting aside the three dispositions to the VW Super Fund result in contraventions of the Superannuation Regulations and the Superannuation Act.[105] In that regard, the de facto husband referred to reg 5.08(1) of the Superannuation Regulations, which provides:

(1) For subsections 31(1) and 32(1) of the Act, it is a standard applicable to the operation of regulated superannuation funds and approved deposit funds that the trustee of a fund must ensure that a member's minimum benefits in the fund are maintained in the fund until the benefits are:

(a) cashed as benefits of the member, other than for the purpose of the member's temporary incapacity; or

(b) rolled over or transferred as benefits of the member; or

(c) transferred, rolled over or allotted under Division 6.7.

1. The de facto husband submitted that none of the exceptions referred to in reg 5.08(1A) and (2) apply, and that the orders effectively place the trustee (GE Pty Ltd) in a position of breach of reg 5.08(1).
2. Also, the de facto husband submitted that the orders setting aside the three dispositions involved a breach of s 62 of the Superannuation Act, in a context where s 62 is a civil penalty provision carrying both criminal and civil penalties. Section 62(1) of the Superannuation Act provides, in effect, that each trustee of a regulated superannuation fund must 'ensure' that the fund is maintained solely for one or more specified 'core purposes', or for one or more of the 'core' purposes and for one or more specified 'ancillary purposes' in relation to the provision of benefits for members of the fund.
3. The de facto husband submitted that:
   1. There is no provision under the Superannuation Act, or the Act, that confers a power on a court exercising jurisdiction under the Act to make an order which has the effect of binding the trustee of a regulated superannuation fund to take action which contravenes s 62 of the Superannuation Act.[106]
   2. The court has no power 'to reverse legitimate transactions' on the part of the de facto husband, citing Ascot Investments v Harper.[107]
   3. The effect of the orders setting aside the three transactions is to 'reallocate' the de facto husband's superannuation benefits in the absence of a power to make a 'splitting order'.[108]
4. In oral submissions,[109] counsel for the de facto husband sought to raise a point, not the subject of his written submissions in the appellant's case, by reference to [141] of the primary decision.[110] Counsel for the de facto husband contended, in substance, that this court should infer as a fact from the de facto husband's evidence in cross‑examination recorded at [141] of the primary decision, that the non‑concessional contribution to the VW Super Fund in 2011 set aside by the judge included payments directed to the respective accounts of the de facto husband's mother (in the sum of $31,321) and daughter (in the sum of $21,000).
5. Counsel for the de facto husband also said that a further point, with respect to ground 1, 'arises out of the submissions made on behalf of the [de facto wife], and that's the submission [at [92] of the primary decision[111]], where it is said that [the setting aside] would not affect other members of the [VW Super Fund]'. Counsel said, in effect, that this 'submission' by the de facto wife was wrong. He submitted that other members would be affected because 'interest ... was earned on those dispositions ... which would have been applied to the members' accounts on a proportionate basis' as opposed to a 'segregated' basis.[112]

1. The de facto wife submitted, in effect, that:
   1. The judge's orders do not result in a breach of the Superannuation Act or Superannuation Regulations because the effect of the orders is to reverse the dispositions from inception, and to treat the contributions as never having occurred. The de facto wife submitted that the de facto husband's approach to the effect of orders made under s 222(1) does not make sense as it would denude such orders of their efficacy.[113]
   2. In any event, the issues had not been raised before the judge, were not the subject of expert evidence, and may be raised by the de facto husband when the matter returns for a final hearing.[114]
   3. In that regard, the de facto wife's general response to the appeal[115] was that the orders under appeal were interlocutory, and at the further hearing of the proceedings, the court may make orders which vary or reverse the interlocutory orders of the judge. Reference was made to Gabel v Yardley[116] and Lippmann v Lippmann.[117]

1. There is no merit in ground 1. Properly understood, the orders set aside ab initio the de facto husband's contributions to the VW Super Fund. Senior counsel for the de facto husband accepted as much in the appeal.[118] The effect of the orders is that the moneys the subject of the dispositions were never part of the fund to which the obligations of GE Pty Ltd as trustee for the VW Super Fund under reg 5.08 of the Superannuation Regulations and s 62 of the Superannuation Act applied. The orders did not involve a 'breach' of those provisions because those provisions imposed personal obligations on the trustee with respect to the fund, and the consequence, at law, of the orders is that the fund did not relevantly include the moneys the subject of the orders.
2. The submission that the court had no power 'to reverse legitimate transactions' begs the question of whether the power under s 222(1) of the Act was exercisable. That matter is the subject of consideration in grounds 3 and 4.
3. The submission that the orders effected a 'reallocation' of the parties' superannuation entitlements with the VW Super Fund, involving 'splitting orders' (1) is outside the scope of ground 1 and (2) in any event lacks merit as that is what the judge did not do, and said in terms that he did not do.[119]
4. The new point sought to be raised in oral submissions at [96] above has no merit. First, there was no application to amend the appellant's case to raise it. An appellant is bound by their appellant's case unless leave is granted to depart from it. That is sufficient to dispose of the point. Secondly, even if there had been an amendment, (1) the judge made no findings to the effect that the contribution in 2011 the subject of an order setting aside the transactions included non‑concessional payments directed to the accounts of the de facto husband's mother or daughter, (2) counsel did not point to any objective evidence to that effect - by reference to accounting records of the VW Super Fund or otherwise, and (3) this court is not in a position to make findings of fact based on that passage from the de facto husband's evidence. That is so given the judge's adverse findings generally as to the de facto husband's credibility and, moreover, the judge's reference to this particular evidence as an illustration that the de facto husband gave 'unreliable' evidence 'at best' when it appeared that 'there could be a perceived advantage' [120]his case.120 Finally, even if there were such findings of fact, it would not affect the reasoning and conclusion referred to in [99] above.
5. The further point raised by counsel for the de facto husband, referred to in [97] above, also has no merit. First, it was also not part of the submissions in the appellant's case. Secondly, it involves a mischaracterisation of the judge's reasons. Insofar as counsel for the de facto husband described the passage at [92] of the primary decision as a 'submission' by the de facto wife that the setting aside of the contributions would not affect other members of the VW Super Fund, counsel's description is inaccurate. At [92] of the primary decision, the judge was setting out evidence given by the de facto husband. It was not a submission by the de facto wife and, moreover, the judge referred to the evidence as an illustration of the facts that (1) the de facto husband's conduct and treatment of values for the purposes of the VW Super Fund was 'quite extraordinary', and (2) he was involved in transferring assets to the VW Super Fund which had been acquired for value and which he then 'deemed ... to be "impaired" and [had the assets] written down to the value of almo[121]nothing'.121 Thirdly, whilst the de facto husband's evidence may, in appropriate circumstances, be used as an admission against his interests, his evidence cannot be accepted, given the adverse credibility findings, as proof that 'interest was earned on the dispositions' which 'would have been applied' to members' accounts on a 'proportionate basis' as alleged. Counsel did not point to any objective evidence in support of the submission.
6. Ground 1 should be dismissed.

Ground 2 - taxation De facto husband's submissions

1. The de facto husband submitted that the judge erred in finding, at [205] of the primary decision, that setting aside the three transactions involving payments into the VW Super Fund had no taxation effect.
2. The de facto husband submitted that there was a taxation effect - in relation to investment earnings - in that:[122]
   1. The funds from the three transactions had been maintained in the concessionally taxed superannuation environment since they were completed.
   2. The investment earnings on the funds have been receiving concessional tax treatment at the taxation rate of 15% pursuant to s 26 of the Income Tax Rates Act.
   3. If the funds were not held in a superannuation fund, but were held personally or by the entity responsible for the asset, the earnings on the funds would be taxed at marginal rates for individuals (up to 45%) or at 30% if the funds were held by a corporation.
   4. The statements made by the de facto husband conceding that there would be no taxation effect (referred to at [111] and [205] of the primary decision) relate to the contribution of the funds to the VW Super Fund rather than earnings on the investment of those funds throughout the successive tax years. Also, the exchange between counsel for the de facto wife and the de facto husband (referred to at [140] of the primary decision) related to the taxation effect of the contribution of funds to the VW Super Fund, and not to the taxation effect of the ongoing investment earnings of those funds.
   5. The Australian Taxation Office (ATO) is the regulator for self‑managed funds and 'may take the view that the action taken pursuant to the order [constitutes] an unauthorised release of the superannuation funds'. In that event, the ATO would apply a penalty (pursuant to s 26(2) of the Income Tax Rates Act) to the total value of the investments less the part of the crystallised undeducted contributions (see s 295 - s 325 of the Income Tax Assessment Act 1997).
3. The de facto husband also submitted that his Honour erred in finding that there was no taxation effect in the absence of expert evidence relating to the taxation effect of the orders.[123]
4. Counsel for the de facto husband sought to raise another new point in oral argument, again not advanced in the submissions in the appellant's case. He said that the judge erred in finding that there were no taxation consequences given certain evidence referred to by the judge at [174] of the primary decision.[124] That evidence, the de facto husband's counsel said, indicated that the de facto husband's contribution on 31 August 2016 included a concessional payment of $25,000, and that the amount of $25,000 had 'immediate taxation consequences'.[125] He did not say for whom, but he presumably meant for the de facto husband.

1. The de facto wife submitted that:[126]
   1. The treatment of profits or income was not a matter raised by the de facto husband before the judge. The de facto husband ought to be bound by the conduct of his case at trial, and should not be permitted to raise this new point now.
   2. The matters raised by the de facto husband in ground 2 should be dealt with at trial. The calculations that enable the judge to deal with this can be prepared by Mark Chan as part of the process of preparing the VW Super Fund's financial statements and taxation returns. The appropriate time for this matter to be dealt with is when the matter resumes, and when the primary court has the benefit of Mr Chan's work, accurate accounts and expert evidence.
   3. Insofar as the de facto husband's submissions characterise the orders setting aside the three transactions as a 're‑allocation' of superannuation benefits in the VW Super Fund, that is incorrect. Rather, the orders were made pursuant to s 222(1) of the Act and are of that character.

1. Ground 2, as explained in the de facto husband's submissions, seeks to impute to the judge a finding to the effect that the earnings on the amounts contributed, once in the VW Super Fund, would not be taxed at a rate different from the tax rates applicable to the disponor. The judge did not make that finding. The finding under challenge by ground 2 is at [205] of the primary decision. There the judge found that the contributions themselves created no tax liability in the VW Super Fund or for the de facto husband or other members, and that an order setting aside the contributions would not, of itself, create any adverse tax liability for the VW Super Fund or for the de facto husband or other members.[127] The judge's reasons properly construed are as set out in [60.1] above. That conclusion is sufficient to dismiss ground 2.
2. Even if the judge's finding at [205] of the primary decision should be read more broadly as a finding that there were no taxation consequences for earnings on the impugned contributions to the VW Super Fund, the ground has no merit. On that characterisation of the finding at [205] of the primary decision, ground 2 effectively seeks to raise a new point not raised at trial - the (alleged) earnings on funds in the VW Super Fund. It may possibly have been met by evidence, and, accordingly, the de facto husband cannot raise it now.[128] That is also sufficient to dispose of ground 2.
3. Further, any such alleged error is immaterial and could not sustain the relief claimed by the de facto husband for the following reasons. The fact that the disponee has a differential tax rate from the de facto husband disponor on funds invested is not, in and of itself, a consideration weighing against the exercise of discretion under s 222(1) of the Act and is not a precondition of the exercise of power under s 222(1). Section 222(1) is an 'anti-avoidance' provision. The mere fact that the disponee had a lower tax rate on funds invested than the disponor (as will often be the case where the disponor de facto spouse has a high income and the disponee is a corporation) would not ordinarily be a factor which weighed against the exercise of power under s 222(1) in respect of a disposition which enlivens that section of the Act. Moreover, even if there were some income tax liability incurred by the de facto husband as disponor arising from the setting aside of the dispositions, it could be taken into account in final orders under s 205ZG, to the extent that the court considered it just and equitable to do so.
4. Further, insofar as the de facto husband was seeking to contend (it was not clear from the submissions) that the judge erred in the exercise of his discretion under s 222(1) of the Act because he failed to take into account (alleged) adverse taxation consequences for the de facto husband's daughter and mother, four points may be made.
5. First, that is not the error alleged in ground 2 and the contention is outside its scope. Ground 2, and the written submissions in support, do not go on to assert that there were, in fact, taxation consequences for the de facto husband's mother and/or daughter which the judge ought to have taken into account. Secondly, the de facto husband's counsel did not point to any evidence of the taxation position of the de facto husband's mother or daughter which would enable this court to find, as a fact, that there were adverse taxation consequences for them. Thirdly, the de facto husband's counsel did not suggest that the de facto husband had sought to resist, before the primary judge, the s 222(1) orders on the basis of adverse taxation consequences for his mother or daughter. The judge was not in error in not addressing a point allegedly relevant to the exercise of his discretion which had not been raised with him for consideration at the hearing, and in circumstances where the point was by no means fundamental or obvious.[129] Also, as regards the de facto husband's daughter, she was a party to the proceedings and did not contest the proposed orders on that basis (or apparently at all).
6. Fourthly, if at any further or final hearing of the property settlement proceedings the de facto husband's mother, or the trustee on her behalf, contended that, as a member of the VW Super Fund and having regard to her taxation position, she was a 'bona fide purchaser or other person interested' within the meaning of s 222(3) of the Act, the court could fashion protective orders at that stage.[130] Both the trustee of the VW Super Fund, GE Pty Ltd, and the de facto husband's mother are now, the court was told, formally parties to the primary proceedings.[131]
7. Also, insofar as the arguments in support of ground 2 rely on the contention that the orders would put the trustee of the VW Super Fund in breach of reg 5.08 of the Superannuation Regulations or s 62 of the Superannuation Act, those arguments have no merit for the reasons given in relation to ground 1.
8. The submission referred to in [107] above cannot be accepted for the reasons given in [110] - [116] above.
9. The new point sought to be raised in [108] above also has no merit. It was not part of the appellant's case. Further, the judge made no finding that the contribution made by the de facto husband on 31 August 2016 included a concessional payment of $25,000. Also, there was no objective evidence that it did, and this court could not infer that fact merely based on the de facto husband's evidence, given the judge's adverse conclusions as to his credibility. Moreover, even if there were error in this regard, any necessary adjustments in the determination of what is just and equitable could be made in the context of final orders.
10. Ground 2 should be dismissed.

1. Ground 3 has two components. The first alleges that there were no grounds for making orders under s 222(1) of the Act, and concerns the proper construction and operation of s 222(1) of the Act. It is related to ground 4 which concerns specifically the criteria to be applied in the making of orders under s 222(1) of the Act. The second part of ground 3 alleges a denial of procedural fairness.
2. The following summarises the parties' submissions in relation to the construction and operation of s 222(1) of the Act under grounds 3 and 4. The aspect of ground 3 concerning procedural fairness is addressed separately in [176] ‑ [191] below.

1. The de facto husband submitted,[132] in effect, that the judge erred at [204] of the primary decision when his Honour said:

I am further satisfied that in the exercise of my discretion the transactions are properly set aside, and in the exercise of that discretion I consider I need go no further than to reaffirm my finding that the transactions were entered into with the intent of diminishing the pool of current assets available to be distributed to the [de facto wife] in the course of the current proceedings, in furtherance of the [de facto husband's] belief that once the funds were placed in a superannuation fund they were beyond the reach of the jurisdiction of the Court. (emphasis added)

1. The de facto husband submitted in that regard:
   1. The judge misunderstood the italicised part of s 222(1) of the Act below:

In proceedings under this Act, the court hearing the proceedings may set aside or restrain the making of an instrument or disposition by or on behalf of, or by direction or in the interest of, a party which is made or proposed to be made to defeat an existing or anticipated order under this Act or which, irrespective of intention, is likely to defeat any such order. (emphasis added)

1. The de facto husband's actions did not deprive the court of jurisdiction in the sense of possessing authority over the subject matter,[133] and that while his actions changed the 'manner and structure of the court's order', they did not 'deprive the court of making an order in relation to the [de facto husband's] superannuation by ordering [the de facto husband] to make a payment to [the de facto wife] as and when [the de facto husband] obtains his superannuation benefit'.[134]
2. The limitations on the court's power over superannuation entitlements arose not from the conduct of the de facto husband, but due to the failure of the State of Western Australia and Commonwealth Government to take action that would allow superannuation 'splitting orders' to be made in the case of de facto property settlements.[135]
3. The de facto husband also submitted[136] that the public announcement made by the Attorney General in relation to the referral of power from the State of Western Australia to the Commonwealth under 51(xxxi) [sic] of the Constitution to allow such an order to be made was not a proper basis upon which to adjourn the proceedings.[137]

1. The de facto husband contended[138] that an applicant under s 222(1) of the Act must, among other things, establish that an anticipated 'order' will be defeated or likely be defeated - not just an anticipated 'claim'. Also, 'anticipated' means anticipated by a reasonable disponor at the time of the relevant disposition. Reference was made to Australia and New Zealand Banking Group Ltd v Harper[139] and Grech v Deak-Fabrikant.[140] Based on the summary in Grech,[141] the de facto husband submitted that under s 222(1) of the Act:
   1. The applicant must establish a causal connection between the transaction and the defeat of the order.
   2. An order must be objectively foreseeable, and not just a claim.
   3. The transaction must be foreseeably likely to defeat that order.
   4. 'Anticipated' means 'expected' or 'reasonably probable' according to an objective test.
2. In summary, it was the de facto husband's submission that both limbs of s 222(1) of the Act must be satisfied before the power under s 222(1) is enlivened.[142] In that regard, the de facto husband submitted that the judge could not have concluded on the evidence that a reasonable disponor, at the time of the first transaction (in 2008) and the second transaction (in 2011) would have anticipated an order under the Act which the disposition was likely to defeat,[143] particularly given the absence of findings as to the asset pool at the time of each disposition.
3. The de facto husband also contended that the judge erred by referring to 'claims' at primary decision [126], [164] and [216].[144]
4. The de facto husband also sought to raise what appeared to be an acquiescence claim. He submitted that because the de facto wife had failed to make an application pursuant to s 222 of the Act until nine years after the separation, and until a number of years had passed after the respective transactions were effected, the de facto wife 'may be taken to have accepted the effect of the three transactions and did not choose to challenge the transactions despite her ability to do so'.[145]
5. The de facto husband also sought to contend that the judge's reasons were inadequate for finding that the dispositions were made to defeat an anticipated order under the Act.[146]
6. The de facto husband also said that the directors of GE Pty Ltd had included the de facto wife and that 'the matrimonial pressures in relation to trusteeship responsibility are not a defence'.[147]

1. The de facto wife submitted that the reference to 'jurisdiction' at [204] of the primary decision was a 'descriptor only', and had no effect on the decision. The de facto wife submitted that the disposition of the funds into the VW Super Fund would effectively render the court unable to enforce an order for the payment of moneys from the de facto husband to the de facto wife.[148]
2. As to the adjournment, the de facto wife submitted that the public announcement made by the Attorney General was not the sole reason that the matter was adjourned.[149] The de facto wife submitted that the matter was adjourned pursuant to s 205ZG(5) by reason of other matters including (1) the appointment of Mark Chan to prepare the VW Super Fund financial statements, (2) the likely vesting of the de facto husband's superannuation entitlements in the near future,[150] and (3) the likelihood of the de facto husband gaining an inheritance from his aged and unwell mother.

1. The de facto wife contended that the de facto husband misstated the test to be applied under s 222(1) of the Act. She referred to the decision in Halabi v Artillaga.[151] The de facto wife submitted, in effect, that the judge found that the de facto husband had entered into transactions with the intention of defeating anticipated orders under the Act (at [137], [164], [167] and [204] of the primary decision), and, accordingly, it was open to the judge to exercise the discretion conferred by s 222(1) of the Act.[152]
2. The de facto wife submitted that even if an 'objectively assessed intention' to defeat an anticipated order were required under s 222(1), the test was satisfied in the circumstances of this case, having regard to the following matters (which were not disputed by the de facto husband in the appeal):[153]
   1. The proceedings were commenced in 2009.
   2. The de facto wife was removed as a director of the trustee company (GE Pty Ltd) on 27 September 2012 and was only reinstated, following a court application, on 23 October 2017.
   3. While the non-concessional payment of $96,859 was made to the VW Super Fund in 2008, it was not until a 'couple of years later', ie after the commencement of the proceedings, that the accounts were prepared and the payment was recorded as constituting part of the de facto husband's member balance.
   4. The 2011 non-concessional payment into the VW Super Fund was classified as a contribution solely to the account of the de facto husband in 2016, ie after the commencement of the proceedings and when the de facto wife was not a director.
   5. The contribution on 31 August 2016 to the VW Super Fund also occurred after the commencement of proceedings and when the de facto wife was not a director.

1. Section 222(1) of the Act provides:
   1. Transactions to defeat claim - FLA s 106B

(1) In proceedings under this Act, the court hearing the proceedings may set aside or restrain the making of an instrument or disposition by or on behalf of, or by direction or in the interest of, a party which is made or proposed to be made to defeat an existing or anticipated order under this Act or which, irrespective of intention, is likely to defeat any such order.

1. Section 222(1) of the Act has its present counterpart in s 106B of the Family Law Act 1975 (Cth). Section 106B is, for present purposes, in materially identical terms with s 222 of the Act.
2. The predecessor of s 106B was s 85 of the Family Law Act. Section 85(1) of that Act provided:[154]

In proceedings under this Act, the court may set aside or restrain the making of an instrument or disposition by or on behalf of, or by direction or in the interest of, a party, which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order. (emphasis added)

1. The italicised words of s 85(1) referred to above were not in the statutory predecessor to s 85(1), namely s 120(1) of the Matrimonial Causes Act 1959 ‑ 1973 (Cth). Section 120(1) of that Act provided:[155]

In proceedings under this Act, the court may set aside or restrain the making of an instrument or disposition by or on behalf of, or by direction or in the interest of, a party, if it is made or proposed to be made to defeat an existing or anticipated order in those proceedings for costs, damages, maintenance or the making or variation of a settlement. (emphasis added)

1. Under s 120(1) of the Matrimonial Causes Act, the italicised words above were construed as requiring a subjective intention to defeat an existing or anticipated order. In Kriwoschejew v Kriwoschejew, Gerard Investments Ltd, Selby CJ observed:[156]

[I]t is necessary to consider whether s 120(1) applies. The subsection is applicable in the present case only if the court is satisfied that the instrument or disposition was made to defeat an anticipated order for the making of a settlement.

With regard to the question whether it can be said that, at the time of the making of the contract there was 'an anticipated order for the making of a settlement', I agree, with respect, with the words of Joske J in Ganas v Ganas (1971) 18 FLR 298, where his Honour said, at p 300: 'Where orders are asked for in a suit, one is entitled to say that those are orders which it might very well be anticipated will be made'.

It will be noted that s 120(1) does not specifically refer to an intention to defeat, but the relevant words are 'made or proposed to be made to defeat ...'. However, it is clear that there must be evidence from which a court can properly infer that such an intent existed. In Laws v Laws (1964) 6 FLR 202, Allen J held that the section deals only with the case in which there is an intention to defeat a claim as opposed to the situation in which the transaction under attack merely has that effect. This view was followed by Lucas J in Walker v Walker (1966) 9 FLR 59; by Starke J in Burns v Burns [1967] VicRp 103; (1967) 10 FLR 441, [1968] ALR 59, and by Sangster J in Ovenstone v Ovenstone (1972) 20 FLR 94. With respect, I am entirely in agreement with these views.

1. In Benjamin the court considered the application of s 120(1) of the Matrimonial Causes Act in circumstances where the impugned transaction occurred prior to the commencement of proceedings. Glass JA (Samuels JA agreeing) said:

I think the language is wide enough to cover an anticipated order both in existing proceedings and in future proceedings. The phrase 'in those proceedings' refers back to the initial phrase 'proceedings under this Act' in which the power may be exercised. At that stage they must, of course, be on foot. But I see no reason why an anticipating state of mind may not be proved so as to satisfy the section which relates to proceedings, the commencement of which then lies in the future, although it must be in the past when the power is invoked. It is easy to comprehend why the legislature, as a goal of policy, would wish to nullify transactions completed before proceedings were commenced no less than those completed after proceedings brought, provided that prohibited intent could be demonstrated. In my view the language shows it is adequate to achieve this purpose.

It was next submitted that the evidence failed to make out the requirements of the section. I believe that what the parties seeking an order must show in such a case is that the respondent party contemplated as a real possibility that proceedings would be brought against him and further contemplated, as a real possibility, the making in those proceedings of an order of the various kinds mentioned which would redound to his financial disadvantage and that he entered into the transaction to defeat that order.

...

The powers given by the section are designed to give the trial judge a flexible control over the financial position.[157]

1. Section 85(1) of the Family Law Act effectively extended the scope of the operation of its predecessor in s 120(1) of the Matrimonial Causes Act by (relevantly) adding the italicised words in [137] above. As Hannon J observed in relation to s 85(1) in the case of In the Marriag[158]f Hajduk:158

The subjective state of mind of the [disponor] is no longer an essential element required to be established before the Court may exercise its discretion to set aside a transaction.

1. The second limb of the concluding words of s 85(1), namely whether the disposition 'irrespective of intention' was 'likely to defeat any such order', imported an objective test: Halabi.[159]
2. Further, in Halabi, Nicholson CJ said of s 85(1) of the Family Law Act:[160]

The section therefore lays down two sets of circumstances which will cause it to operate, namely that an instrument has been made with the intention of defeating an anticipated order in the proceeding, or secondly, regardless of the intention with which it has been made it is likely to have the effect of defeating such an order.

...

In In the Marriage of Gelley (No 2) (1992) 15 Fam LR 483; [1992] FLC 92‑291, Treyvaud J rejected the proposition that the making of the instrument with the intention of defeating an order alone, is sufficient for the section to operate. His Honour was of the view ... that a causal connection must be shown between the making of the instrument in question, and the likely defeat of the order. His Honour also rejected arguments to the effect that if the making of the instrument significantly reduced the amount available for consideration by the court then that should be interpreted as having the effect of defeating an anticipated order.

For my part, I have some difficulty in accepting a proposition that where an instrument is made with the intention of defeating an anticipated order, it cannot be set aside unless it is shown that it was likely to do so.

It seems to me that the section clearly contemplates two possibilities, one being that the instrument was made with the intention of defeating an order, and the second being that, regardless of the intention with which it was made, it did have the effect of being likely to defeat an anticipated order. I consider that if the necessary intention has been demonstrated there is nothing in the section which imposes the further requirement that the instrument is likely to defeat such an order. However, I think that it is clear enough that if it cannot be shown that ... the instrument is made with the intention of defeating the order, or even if the contrary can be shown, ie that it was not made with the intention of defeating the order, then it can still be set aside if it can be established that it was, at the time that it was made, likely to defeat any such order.

1. With reference to the second limb of s 85(1), Nicholson CJ said:

I would add that I have difficulty in accepting the proposition of Treyvaud J that in cases where [it] is necessary to show that the instrument or disposition is likely to defeat any such order, this cannot be done by demonstrating that the pool from which any such order is to be made is and was anticipated to be significantly reduced by the making of the instrument or disposition. I consider it self-evident that if the pool is significantly reduced then in most cases the applicant will be likely to receive significantly less than would have been the case if the instrument or disposition had not been made.

1. The observations of Nicholson CJ in Halabi have been approved of in a number of authorities including by the Full Court of the Family Court in VC v GC,[161] and in In the Marriage of Grace,[162] and by Bryson J in Newjur Pty Ltd v Panjas.[163] It may also be observed that in Kennon, French CJ[164] and Gummow and Hayne JJ[165] found no error where the primary judge had set aside dispositions (including one prior to the commencement of the proceedings) on the basis that the dispositions were made with the intention to defeat anticipated orders within the meaning of s 106B(1) of the Family Law Act.
2. The observations of Nicholson CJ in Halabi referred to above apply equally to the ordinary meaning of s 222(1) of the Act and give effect to its evident purpose. They should be accepted in the present context. At least ordinarily, proof of the requisite intention for the purposes of the first limb of s 222(1) of the Act would involve proof of the matters referred to by Glass JA in Benjamin referred to in [140] above. Nevertheless, observations on a method of proof should not be taken as a substitute for the statutory text. The question under the first limb remains whether the disponor has (relevantly for present purposes) made the disposition with the intention to defeat an existing or anticipated order under the Act.
3. The authorities relied on by the de facto husband, particularly in relation to ground 4, are of no material assistance to him, in that:
   1. Harper concerned the application of the second ('irrespective of intention ... likely to defeat any such order') limb of s 85(1) of the Family Law Act.[166]
   2. In the Marriage of Gelley (No 2),[167] with respect (1) appears to have elided the two limbs, (2) relied on the decision of Pflugradt[168] (discussed below) in relation to the second limb and (3) is evidently inconsistent with the observations of Nicholson CJ in Halabi and the authorities which have approved Halabi.
   3. Pflugradt was a case in which, on one view of it, the judge incorporated an objective intention into the first limb of s 85(1) of the (then) Family Law Act by suggesting that an 'anticipated order' must be objectively foreseeable.[169] In that context his Honour also seems to have concluded, with respect erroneously, that the element of 'intention' was removed by s 85(1) of the Family Law Act.[170] In any event, the judge's discussion of the topic concluded with a finding that the 'husband's trust disposition, irrespective of intention, was likely to defeat any ... orders and in such circumstances ... it must be set aside'.[171] In other words, properly understood it was a case concerning the second limb. Subsequent decisions have generally referred to or understood it in that context.[172]
   4. Grech concerned s 63 of the Relationships Act 2008 (Vic) which, in effect, (relevantly) contained the second limb only of s 222(1) of the Act.[173] Davey AsJ, in his summary of the relevant principles (1) relied on cases including Pflugradt which concerned the second limb and (2) said that whilst he noted there was a 'tension' between the authorities to which he had referred and Halabi, it was unnecessary for him to resolve that tension in the proceedings before him.[174]
   5. Riemann (No 3) was a case in which McClelland J (1) adverted to the distinction between the two limbs,[175] (2) found that the first limb (regarding intention) had not been established[176] and (3) made the observations relied on by the de facto husband in this appeal in the context of his Honour's discussion of the second limb as applied to the facts of that case.[177]
4. Even if (contrary to the views expressed above) the first limb of s 222(1) of the Act incorporates an objective element in that a reasonable person in the disponor's circumstances must anticipate an order under the Act, proof that the disponor subjectively anticipated an order under the Act and intended to defeat it may provide grounds for an inference that a reasonable person in the disponor's circumstances would have anticipated such an order.[178]
5. Against that background, it is necessary to return to grounds 3 and 4 of the grounds of appeal. The first part of ground 3 alleged in effect that the judge erred in law because he lacked grounds for finding that the dispositions came within the words 'made ... to defeat an ... anticipated order under this Act or which, irrespective of intention, is likely to defeat any such orders'. Ground 4, as elaborated upon in written submissions, was, in large part, directed to the proposition that the judge erred in law by failing to have regard to the criteria for the second limb of s 222(1).
6. Ground 3 insofar as it relates to the operation of s 222(1) of the Act, and ground 4, both stem from a fundamental misconception of the construction and operation of s 222(1) of the Act. There is no merit in either ground.
7. The judge made findings of fact, unchallenged in this appeal (as senior counsel for the de facto husband accepted[179]), as to the de facto husband's state of mind - that the dispositions were made by him with a subjective intention of defeating anticipated property settlement orders. That was sufficient to enliven the exercise of power under s 222(1) of the Act on its proper construction and in accordance with the principles referred to earlier. The judge was not bound to consider the application of the second limb of s 222(1) once the power to make orders had been enlivened under the first limb of s 222(1) of the Act. The de facto husband's submission that it was necessary to satisfy both limbs of s 222(1) before the power under s 222(1) is enlivened is incorrect. In any event (although it is not necessary given the above reasons to decide the point) the de facto wife's submissions referred to in [134] may be accepted.
8. Also, the de facto husband's submission (see [123.2] above) to the effect that the judge wrongly considered that s 222(1) of the Act applied to dispositions which deprived the court of 'jurisdiction' (in the technical sense of that term) under the Act is untenable. The judge at primary decision [204] found in effect that the dispositions were made with the intention of defeating anticipated property settlement orders under the Act and that this was done 'in furtherance' of the de facto husband's belief that the dispositions would put the assets out of the reach of the jurisdiction of the court. The finding was one of fact - as to the state of mind of the de facto husband. It was not a finding to the effect that the judge considered that s 222(1) required an intention to put property beyond the 'jurisdiction' (in the technical sense of that term) of the court. Whilst it is true that in some parts of the primary decision the judge referred to the 'claims' of the de facto wife, his Honour's reasons read as a whole make it plain that his Honour understood that s 222(1) required (relevantly) an intention to defeat anticipated orders. The word 'claims' was perhaps, regrettably, used somewhat loosely by his Honour, but it is an expression which not uncommonly, and without error, surfaces in discussions of provisions such as s&[180]222(1).180
9. Insofar as the de facto husband submitted in effect (see [123.3] and [124] above) that the judge's orders involved 'splitting orders' and that the public announcement of the Attorneys-General in relation to the referral of power to deal with superannuation entitlements was not a proper basis for an adjournment, the submissions are without merit. First, the orders do not involve 'splitting' orders - see [101] above. Secondly, neither ground 3 nor any other ground of appeal alleges error in the decision to adjourn under s 205ZG(5) of the Act. Thirdly, the judge did not make the decision to adjourn under s 205ZG(5) on that alleged basis - see [48] above.
10. Insofar as the de facto husband sought to raise an argument about acquiescence (see [128] above), it is outside the scope of grounds 3 and 4 and, moreover, the de facto husband has not established that the point was litigated at trial. Accordingly, the de facto husband has not established any proper basis for dealing with th[181]oint now.181 Also, the allegation that the judge's reasons were inadequate (see [129] above) is not the subject of grounds 3 and 4 of the appeal. The submission referred to in [130] above is meaningless in this context.
11. The first part of ground 3, and ground 4, have no merit.

Ground 5 - interim orders under s 205ZG of the Act De facto husband's submissions

1. The de facto husband submitted, in effect, that the judge erred in making the interim orders because he could not, and did not, make findings as to the identity and value of the property, financial resources and liabilities of the parties at the date of the trial in accordance with s 205ZG(4) of the Act. In that regard, the interests of the parties in the VW Super Fund could not be determined pending the completion of Mr Chan's investigations and the work.[182] The de facto husband referred to Stanford v Stanford;[183] and In the Marriage of Hickey.[184] In Hickey the court said:[185]

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

1. The de facto husband submitted that the judge's assessment of what was just and equitable could not have been decided in accordance with the process outlined in Hickey where (1) the trial proceedings had been adjourned, (2) the asset pool had not been quantified particularly in relation to the VW Super Fund, (3) the parties legal and equitable interests in the VW Super Fund were yet to be determined, and (4) the relevant provisions of s 205ZD(3) of the Act had not been addressed.[186]
2. The de facto husband also submitted that as a consequence, the judge could not give adequate reasons, and gave no adequate reasons, to justify a finding of equal contribution (or close thereto).[187]
3. The de facto husband also submitted that the judge 'gave no or inadequate weight' to a number of contributions made by the de facto husband, including financial contributions made by the de facto husband at the commencement of cohabitation.[188]

1. The de facto wife submitted that in the case of interim orders, it is not necessary for the court, before making an interim property order, to (1) identify and value with specificity the assets, liabilities and financial resources of the parties or (2) make final findings in relation to the matters set out in s 205ZG(4). All the court is required to do is to undertake a brief consideration of those matters and, if it seems likely that the applicant will receive (on final orders) a sum sufficient to cover the 'advance' by the interim property settlement, that is sufficient to enable the interim order to be made.[189]
2. The de facto wife submitted that the judge, correctly, (1) identified what each party claimed the asset pool to be and what the proposed interim payment would amount to in that context, (at [237] ‑ [243] of the primary decision), (2) canvassed the matters in s 205ZG(4) (at [244] ‑ [275] of the primary decision) and (3) in that context made a finding that it was just and equitable to make the interim orders.[190] In that connection the de facto wife submitted:[191]
   1. The de facto husband has misconceived the true position of interim orders, and the judge did a useful 'cross-check' to make sure that the payment sought to be made to the de facto wife would not likely exceed her ultimate entitlement in the proceedings.
   2. In positing that the de facto wife may be entitled to 50% of the property pool, the judge was using the rule of thumb as a check, and was comforted by the position that the payment proposed to be ordered was less than 25% of the property pool.
   3. A finding that in a general sense, contributions were likely to be equal, is unremarkable in circumstances when the de facto wife had been responsible for the physical and financial care and support of two minor children since separation.
   4. In any event a significant portion of the payment (around $569,000) was a payment to be made to the Child Support Agency which had the effect of alleviating the obligation of the de facto husband to pay penalties and to 'clear the slate' as at 30 June 2018.
3. The de facto wife further submitted that, in any event, the judge may make any further adjustments having regard to what is just and equitable at the final hearing.[192]

1. Ground 5 concerns the judge's making of interim property orders. The provisions of the Act principally relevant in this context are s 205ZG(5) and (6), and s 205ZI(1)(h). The corresponding provisions in the Family Law Act are s 79(5) and (6), and s 80(1)(h).
2. By s 205ZG(5) of the Act, the court has power to adjourn proceedings for a property settlement in the circumstances specified in s 205ZG(5)(a) and (b). The judge found that the circumstances for the exercise of power under s 205ZG(5) existed, and there is no ground of appeal challenging that finding.
3. By s 205ZG(6), the court has power in relation to such an adjournment, to 'make such interim order or orders or such other order or orders ... as it considers appropriate with respect to any of the property of the de facto partners or of either of them'. Section 205ZI(1)(h) provides in effect that in exercising its powers under div 2 of pt 5A (relevantly for present purposes under s 205ZG), the court may make an order pending disposal of proceedings or until further order.
4. In Gabel,[193] Byrant CJ and Coleman J said, with respect to the equivalent provisions in the Family Court Act relating to interim orders:

The legislative framework, and the authorities to which we have been referred, suggest that the court's power to make orders with respect to settlement of property is not necessarily exercisable at only one time, and can properly be exercised by a succession of orders until the power to make orders with respect to property is exhausted. Logic suggests that the power to make orders for settlement of property will be exhausted or 'spent' when there remains no property of the parties to the marriage or either of them with respect to which orders by way of alteration of interests of property could be or have been made. In those circumstances there can be no matrimonial cause to enliven the jurisdiction to make orders for settlement of property. It is thus potentially more instructive to focus on the nature and scope of the power conferred by s 79 of the Act and the nature and effect of orders made in the exercise of the power than upon attempts to categorise the kinds of orders which may be made pursuant to the power.

...

The reality that 'interim' orders will often, as discussed in Bassi v KD Sales Force Specialists Pty Ltd [1999] FamCA 1352; (1999) 25 Fam LR 678, involve less than a full hearing or, as was submitted by learned senior counsel for the wife, could not involve a consideration of all relevant facts and circumstances, further supports this conclusion.

...

In the Marriage of Hickey the Full Court accepted that:

'Although there may be partial or interim orders (s 79(6) of the Act) ultimately there is only one exercise of power under s 79 in respect of the property of the parties, even though that single exercise of power may be reflected in a complex order of many paragraphs or clauses, each dealing with a different item of property and some dealing with questions of implementation.'

Logically, until that 'one exercise of power under s 79' has been completed, most obviously by the making of orders with respect to the totality of the 'property' of the parties to the marriage or either of them, the power has not been spent or exhausted, but exercised partially or in an interim manner.

...

As we have earlier explained, in our view the focus of our attention should be whether or not the power to make orders pursuant to s 79 has been exhausted. Unless it has, we see no basis in law or logic for concluding that further orders may not be made with respect to property the subject of earlier orders. There can be little doubt that the exercise of power under s 79 involves the exercise of discretion by reference to the provisions of Part VIII of the Act. It would be surprising if, in circumstances clearly involving less than such an exercise of discretion, orders made pursuant to the power conferred by s 79(6) of the Act could not be revisited and altered. Indeed, there may be cases where the court could only exhaust the power conferred by s 79 in a 'just and equitable' manner as required by s 79(2) of the Act by altering an earlier order with respect to the property of the parties or either of them as learned senior counsel for the wife submitted. If the court could not do so, there may be cases where the court was precluded by s 79(2) from making orders which exhausted the power conferred by s 79 of the Act. To so construe s 79 of the Act would in our view be to prefer a construction 'that would not promote' the 'purpose or object underlying' that provision of the Act to one that would promote that purpose or object, contrary to the principle of statutory construction expressed in s 15AA of the Acts Interpretation Act 1901 (Cth).

It follows in our view that when the court finally determined the proceedings which had been adjourned, whether categorised as 'partial', 'interim', or otherwise, earlier orders altering property interests could be varied or reversed without resort to s 79A of the Act or an appeal, the power to make such orders not having been 'spent' or 'exhausted'. (emphasis added)

Section 79(5), (6) and (7) is directed to the situation where it is known that there is likely to be some change in the parties' financial circumstances (a principal example being the vesting of a superannuation entitlement) and it is considered appropriate to adjourn pending property settlement proceedings until that change occurs (because an order made at that time is more likely to do justice than an order made immediately), although it may also be considered appropriate to make some orders in relation to the then existing property.

In [48] of ... Hickey, the Full Court by its reference to s 79(6), can be seen as recognising the potential application of the principle that there can be only one exercise of the power under s 79 to a case (such as the present) where the proceedings have been adjourned under s 79(5) pending some anticipated financial event, with some orders being made under s 79(6). The Full Court can also be seen as holding that in such a case (that is, a s 79(5) case) it is only the final order, which deals on a final basis with all known property of the parties, which completes the one single exercise of the s 79 power.

On the basis of this analysis, any earlier order made for the transfer of an asset or payment of money during the course of the property settlement proceedings would have to be regarded, or characterised, as an order pending the disposal of the proceedings or an order until further order (made under the power contained in s 80(1)(h)), in other words, an 'interim' order, and thus be capable of alteration at any time prior to, or as part of, the final exercise of the s 79 power. This is because an alteration of an earlier order may be necessary to ensure that the final order or final exercise of the s 79 power is just and equitable. If such an earlier order was not altered by the final order, it would become in effect (in its unaltered form) a paragraph or clause of the final single order (as it would if it was the subject of alteration).

This analysis would also support the reservations expressed by the Full Court in In the Marriage of Harris [1993] FamCA 49; (1993) 113 FLR 472 as to the utility of any attempt to draw a distinction between 'interim' and 'partial' orders.

Again on the basis of this analysis, any orders made under s 79(6) (that is, any order made in circumstances where there has been an adjournment of the proceedings under s 79(5) because there is likely to be a significant change in the financial circumstances of the parties and an order made when that change occurs would be more likely to do justice than an order made immediately) would have to be regarded as an 'interim' order for purposes of the amending Act, regardless of whether it was expressly stated to be an 'interim' order or an order made 'pending further order' or 'pending the disposal of the proceedings', or indeed a 'partial' order. (emphasis added)

1. In Strahan,[195] Boland and O'Ryan JJ, having referred to Gabel, said:

There is only one exercise of the power under s 79 of the Act. However, this power may 'be exercised by a succession of orders until the power ... is exhausted' and the power is exhausted 'when there remains no property ... with respect to which orders by way of alteration of interests in property could be or have been made.': Gabel v Yardley at [57] per Bryant CJ and Coleman J at [57]. As Finn J in Gabel v Yardley at [125] said: 'it is only the final order, which deals on a final basis with all known property of the parties, which completes the one single exercise of the s 79 power'. Further, an earlier order whether made under s 79(6) or s 80(1)(h) is capable of alteration at any time prior to, or as part of the final exercise of the s 79 power: Gabel v Yardley per Bryant CJ and Coleman J at [69] - [73] and Finn J at [126].

...

... [I]n our view, when considering whether to exercise the power under s 79 and s 80(1)(h) of the Act to make an interim property order the 'overarching consideration' is the interests of justice. It is not necessary to establish compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. In exercising the wide and unfettered discretion conferred by the power to make such an order, regard should be had to the fact that the usual order pursuant to s 79 is a once and for all order made after a final hearing.

...

Once a court proceeds to exercise the power in s 79 of the Act, ... a court is required to undertake consideration of the matters in s 79(4) including by reference to s 79(4)(e) the matters in s 75(2) so far as they are relevant. However consideration of such matters may be brief and if it is established that 'it seems likely to the court that ... the applicant ... will be likely [to] receive by way of property settlement a sum sufficient to cover the advance, that would seem to be sufficient to enable the order sought to be made': Zschokke; Polletti and Polletti per Nygh J and Wenz v Archer. As senior counsel for the Wife submitted, 'provided scope can be found within the assets of the parties for an order of the size sought ... then that should be the end of the matter'. In other words, in such circumstances the applicant would only be receiving what he or she was entitled to receive when the power was exhausted.

...

Once it is determined there are appropriate circumstances [to exercise the power] then the substantive stage should ordinarily be readily capable of resolution for the reasons we have explained. As the jurisdiction is being exercised pursuant to s 79 of the Act it is wrong to take an approach that a part of a legitimate entitlement of an applicant should be deferred until the final hearing. (emphasis added)

1. Thackray J in the same case said:[196]

In my view ... [The] court must first identify circumstances that make it appropriate to give consideration to exercising its power to make an interim order. It is at this stage that the court has regard to the policy consideration that it is generally in the interest of the parties and the court for there to be only one exercise of the s 79 power. However, once the court has determined that the interests of justice require it to exercise the power, the conditions on which the power is to be exercised are governed only by the obligation to make an order that is 'appropriate' and to ensure that the proposed order is 'just and equitable' by reference to the matters set out in s 79(4).

1. The principles outlined in the above cases may be taken as equally applicable to s 205ZG(6) of the Act. The judge's approach in this case was conformable with the principles outlined above.[197]
2. In the present case there are no grounds directly challenging:
   1. The judge's finding as to the relevant principles to be applied in relation to the exercise of the power to make interim property orders pursuant to s 205ZG(6).[198]
   2. The judge's specific findings of fact[199] relevant to his exercise of the power including (1) notwithstanding the orders for the appointment of Mr Chan, it was common ground that the VW Super Fund had sufficient cash to satisfy the interim orders, (2) after the payment of child support arrears of $450,000, the balance of $547,000 payable under the interim orders represented only 24% of the de facto husband's asset pool (even accepting his valuation of his interest in the VW Super Fund), (3) such payments were not so great that the remaining property would be insufficient to meet the legitimate expectations of the parties at final hearing, (4) the parties' contributions should be treated as equal or close thereto[200] and (5) the factual matters of relevance identified by his Honour under s 205ZG(4)(d), (e), (f) and (g).
3. In the absence of grounds directly challenging those findings, ground 5 cannot succeed. Insofar as ground 5 seeks, in an indirect way, to challenge the making of the interim orders, it has no merit in any event for the reasons referred to below.
4. The true effect of ground 5 is to contend that because the judge recognised that the interests of the parties in the VW Super Fund, and the values to be ascribed to those interests, could not finally be determined without the benefit of Mr Chan's investigations, the judge could not (1) undertake the first step outlined in Hickey[201] and (2) was consequently unable to make a determination as to whether the proposed interim orders were just and equitable. That is tantamount to a submission that the judge could not have made interim orders which were just and equitable because he was not in a position to make final orders. That view of s 205ZG is incorrect. The requirement in s 205ZG(3) that the court must not make an order 'under this section' unless it is just and equitable applies equally to an interim order made under s 205ZG(6). Such an order, although not final, is still an order made 'under this section'. The fact that interim orders contemplate the making of further orders under s 205ZG is not an obstacle to a finding that the interim orders themselves are just and equitable. The court must still 'take account' of the matters in s 205ZG(4), but the taking account of those matters will be influenced by the context in which the exercise is undertaken - the proposed making of interim orders prior to the final exhaustion of the power under s 205ZG(1) of the Act. In this regard it is important to recall that the court, as part of the final exercise of power under s 205ZG(1), will take into account the interim property orders and have the power to alter their operation as explained in the judgments in Gabel and Strahan set out earlier.
5. Ground 5 also alleges that the judge failed to give adequate reasons for his assessment of the respective contributions of the parties. The reasons are set out in [66] ‑ [68] above. They are plainly adequate in accordance with[202]tablished principles.202
6. The de facto husband's submission that the judge erred in finding that the parties' respective contributions were equal or close thereto because he failed to take into account certain alleged contributions made by the de facto husband raises an argument outside the scope of ground 5. The submission ought to be rejected on that basis alone. In any event, ground 5 alleges an error of law. The de facto husband's submissions fell well short of any credible basis for an assertion that there was no evidence to support the judge's finding of fact as to equal contributions (or close thereto).[203]

Procedural fairness De facto husband's submissions

1. The second part of ground 3 concerns procedural fairness. The de facto husband contended,[204] in effect, that GE Pty Ltd, as trustee of the VW Super Fund, was not accorded procedural fairness, in that:
   1. The de facto wife had made an application to the court that (relevantly) GE Pty Ltd not be required to be joined on the basis that it was the alter ego of the de facto husband. That application had not been determined, and GE Pty Ltd had not been found to be the alter ego of the de facto husband. Nor had it been found to be a sham or puppet arrangement.
   2. The effect of the orders was to remove from the VW Super Fund a substantial portion of the assets under its control.
   3. The de facto wife was not required to give an undertaking as to damages.
   4. The judge failed to consider s 205ZLF(3) in relation to the issue of procedural fairness. The judge also failed to consider r 6.02 of the Family Law Rules 2004 (Cth), which provides:

(1) A person whose rights may be directly affected by an issue in a case, and whose participation as a party is necessary for the court to determine all issues in dispute in the case, must be included as a party to the case.

1. The de facto husband further submitted that:[205]
   1. Even if GE Pty Ltd had been joined, the directors of GE Pty Ltd could not have consented to any orders removing from the VW Super Fund the assets held by GE Pty Ltd as trustee, because to do so would be in breach of reg 5.08 of the Superannuation Regulations and s 62 of the Superannuation Act.
   2. The financial consequences for GE Pty Ltd, its directors and members, had not been properly considered.
   3. The judge failed to consider s 205ZLF of the Act and, in particular, s 205ZLF(4) of the Act in relation to the taxation effect of the orders.

1. The de facto wife submitted, in effect:
   1. The issue of GE Pty Ltd's joinder and/or procedural fairness was not raised by the de facto husband in the primary proceedings and he is bound by the conduct of his case.[206]
   2. Joinder was unnecessary in the circumstances.[207]
   3. GE Pty Ltd was, in any event, effectively made a party and was accorded procedural fairness; alternatively, if not, the absence of joinder occasioned no injustice.[208]
2. The de facto wife referred, amongst other things, to the following:
   1. The orders for service made by O'Brien J on 31 March 2017 (see [29] ‑ [31] above).
   2. The evidence of service in accordance with those orders in Ms Breese's affidavit of 28 August 2019.
   3. Ms Breese's evidence to the effect that the de facto husband's mother was subpoenaed to give evidence at the final hearing, she was served with the relevant papers but did not attend the final hearing, and the de facto husband explained her non‑attendance on the basis that she did not have mental capacity and that he held an enduring power of attorney on her behalf.
   4. The Act is silent about joinder, and the methods by which a person may become a party to proceedings can include by simply being served with a copy of the claim for relief being sought, and that is what occurred in the present case.[209]
   5. There is a material inconsistency between the de facto husband, on the one hand, asserting that GE Pty Ltd was not accorded procedural fairness and, on the other, seeking to make submissions on its behalf in the appeal proceedings.
   6. GE Pty Ltd is a trustee of the VW Super Fund, and has no beneficial interest in the property.

1. The de facto husband alleged, in effect, that the judge should not have made orders setting aside the transactions involving contributions to the VW Super Fund, because GE Pty Ltd, the trustee of the VW Super Fund, was denied procedural fairness. This point was not taken by the de facto husband in the court below. Nor was it taken when the de facto husband first filed his appellant's case. It has all the hallmarks of an afterthought in the context of already seriously protracted and delayed litigation.
2. Only in very exceptional circumstances will the court allow an appellant to take a point not advanced in the primary court. Even where the new point is one in respect of which all the facts have been established beyond controversy, the appellant must still show that it is in the interests of justice to allow the new point to be raised in the appeal.[210]
3. In this matter, whilst the admission of Ms Breese's affidavit largely overcomes the evidentiary difficulty arising from the point having not been raised below, the de facto husband has nevertheless not shown that it is in the interests of justice to allow the point to be raised in the appeal. That is for the reasons in [183] ‑ [186], in combination.
4. First, the trustee company itself, of which the de facto husband is the directing mind and will,[211] has not sought to be made a party to the appeal, and has made no complaint in this appeal of any lack of procedural fairness by the primary judge. The trustee does not come to this court asserting an entitlement to set aside the orders of the primary court.[212]
5. Secondly, even if, as may be accepted for present purposes, the trustee was a necessary party within the meaning of r 6.02 of the Family Law Rules[213] and was entitled, and required, to be joined, the principles relevant to joinder enunciated by the High Court in John Alexander's are based on the principles which underpin the law of procedural fairness.[214] The concept of procedural fairness is essentially practical, and the concern of the law is to avoid practical injustice.[215] Ms Breese's evidence is to the effect that the relevant materials in the primary court had been served on the trustee at the address for service specified by O'Brien J in his orders of 31 March 2017, and senior counsel for the de facto husband accepted in this appeal that the trustee was notified of the orders being sought by the de facto wife.[216] Whether such service may or may not have been sufficient (it is unnecessary to decide) to effect a joinder,[217] even if the trustee had not been formally joined as a party, it had been served by the de facto wife in accordance with the orders made by O'Brien J, and had not sought to be joined as a party to the proceedings pursuant to r 6.05 of the Family Court Rules. This was not a case where the de facto husband can demonstrate that the trustee was effectively denied the opportunity to participate in the trial and was unaware of the relief being claimed, and, as noted earlier, the trustee itself makes no such complaint.
6. Thirdly, in the above context and in the context more broadly of this lengthy and tortuous litigation to date, it is not in the interests of the administration of justice to allow the de facto husband to take this new point on appeal - the evident purpose of which is to render naught the eight days of hearing in 2017, and have the whole question of interim orders litigated again before another judge.[218] In this more than most cases, any retrial would be 'a most deplorable result'.[219] Moreover, it is to be noted in this context that had the de facto husband raised the non‑joinder of GE Pty Ltd in a timely way at trial, it would have been a simple matter for the de facto wife to have joined GE Pty Ltd as a party pursuant to r 6.03 of the Family Court Rules with likely no material delay to the disposition of the case at first instance.
7. The above matters are sufficient to conclude that the de facto husband is not entitled to raise the new point on appeal. That conclusion is confirmed by, but not dependent upon, the considerations referred to next.
8. GE Pty Ltd is merely a trustee who holds the assets of the VW Super Fund on the trusts established for that fund in accordance with the regulatory environment for a self‑managed superannuation fund. In the absence of any exposure by the trustee to breaches of the Superannuation Regulations or Superannuation Act as contended in ground 1 (which has been dismissed), the de facto husband has not demonstrated how the setting aside of these three particular transactions has affected the rights and interests of the trustee. For example, there is no evidence that the setting aside of the transactions in question would materially prejudice any right of indemnity or exoneration that GE Pty Ltd may have out of the trust fund.
9. Further, insofar as the dispositions which were set aside related to contributions allocated, or intended to be allocated, to the de facto husband's member entitlement in the VW Super Fund, plainly he was a party and was afforded procedural fairness. Similarly, insofar as the de facto wife's interests may have been affected, she was a party - and indeed the moving party - to the orders sought. Also, insofar as the de facto husband's daughter might allegedly have been affected, she too was a party. Insofar as the de facto husband's mother might allegedly have been affected by the orders - as to which there is no finding or objective evidence - the observations in [115] above apply.
10. The de facto husband's submissions in [177] above are outside of the scope of the ground and have no merit for that reason. Further, insofar as they purport to raise matters the subject of grounds 1 and 2, they have no merit for the reasons given in relation to grounds 1 and 2.
11. Finally, the de facto husband's contention regarding the fact that the de facto wife was not required to give an undertaking as to damages was not developed in submissions and there was no attempt to demonstrate error by the judge in that regard.
12. Ground 3, insofar as it alleges an absence of procedural fairness, should be dismissed.

1. The appeal is wholly without merit. It should be dismissed. On that basis, it is unnecessary to deal with the merits of the de facto wife's application referred to in [91] above. That application should nevertheless also be dismissed given that the appeal is being dismissed in any event.

1. I have the considerable benefit of having read Buss P and Murphy JA's reasons for decision. I adopt their Honour's description of the primary decision, the grounds of appeal and the parties' arguments. I also agree with Buss P and Murphy JA that grounds 1 - 2, 3 (so far as it is bound up with ground 4 and the proper construction and application of s 222(1) of the Act), 4 and 5 should be dismissed for the reasons that their Honours give. I wish, however, to develop my own reasons in relation to the remainder of ground 3, ie the part of ground 3 that alleges a denial of procedural fairness in relation to GE Pty Ltd. It should become evident, however, that my reasons for rejecting that part of ground 3 overlap with Buss P and Murphy JA's reasons.
2. The relevant part of ground 3 reads:
   1. In addition, the Trial Judge should have but did not take into account the provisions of s 205ZLF of the Family Court Act 1997 and Rule 6.02 of the Family Law Rules 2004 and therefore should not have made orders on 25 June 2018 pursuant to s 222 affecting [GE Pty Ltd] because at the time of the Orders:

(a) [GE Pty Ltd] was not a party to the proceedings, and,

(b) Was not found to be the alter ego of the [de facto husband];

and [GE Pty Ltd] was not accorded procedural fairness.

1. The effect of the Orders was to remove from the superannuation fund a substantial portion of the assets under its control;
2. No order was made requiring the First Respondent to provide an undertaking as to damages.
3. Beyond the ground referring to the fact that there was no undertaking as to damages, no submissions were directed to its absence. That part of the ground (par 7) goes nowhere. The consequence of the impugned orders (see par 6) was, as I apprehend matters, referred to simply to demonstrate that GE Pty Ltd was a person whose rights may be directly affected by the orders. While otherwise referring to aspects of the particular statutory context, the burden of the ground was that GE Pty Ltd was not accorded procedural fairness.
4. It is, in my view, significant that the complaint as to denial of procedural fairness was made by the de facto husband rather than GE Pty Ltd. It is unusual, to say the least, that the person who complains on appeal about a denial of procedural fairness is not the person who is said to have been deprived of the opportunity to contest the making of the relevant orders.

The statutory provisions relied on by the appellant

1. In the ground the de facto husband referred to s 205ZLF of the Act. In oral submissions senior counsel for the de facto husband referred to s 205ZLF(3) and (4).[220] The relevant parts of those statutory provisions provide

(3) The court may make an order under subsection (1) or (2) only if:

(c) the third party has been accorded procedural fairness in relation to the making of the order; and

(e) the court is satisfied that the order takes into account the matters mentioned in subsection (4).

(b) the taxation effect (if any) of the order on the third party;

(g) if, as a result of the third party being accorded procedural fairness in relation to the making of the order, the third party raises any other matters, those matters;

1. As appears from the provisions relied on, they are concerned with orders under s 205ZLF(1) or (2). These are orders in proceedings under s 205ZG which bind a third party in particular respects. It is not necessary to set out the type of orders being referred to. In broad terms they correspond with the type of orders referred to in s 90AE(1) and (2) of the Family Law Act 1975 (Cth). In the present case, however, the primary judge was not relevantly concerned with an order under s 205ZLF(1) or (2). His Honour was instead being asked to exercise the power under s 222 of the Act to set aside particular dispositions. The various references to according procedural fairness to third parties in s 205ZLF of the Act is an irrelevancy that does not need to be pursued further.
2. Rule 6.02(1) of the Family Law Rules 2004 (Cth) is of broader application.[221] It provides:

A person whose rights may be directly affected by an issue in a case, and whose participation as a party is necessary for the court to determine all issues in dispute in the case, must be included as a party to the case.

Example: If a party seeks an order of a kind mentioned in section 90AE or 90AF of the Act [ie the Commonwealth Act], a third party who will be bound by the order must be joined as a respondent to the case.

1. A note to rule 6.02 explains, by reference to rule 1.12, that the court may dispense with compliance with the rule.
2. Senior counsel for the de facto husband was asked to identify the rights of GE Pty Ltd that may be - and were - directly affected by the orders sought and made pursuant to s 222 of the Act. Senior counsel suggested that the relevant rights were coextensive with obligations that GE Pty Ltd had as trustee of the superannuation fund, these being:[222]
   1. A responsibility to ensure that there was no breach of the statutory duties associated with the Superannuation Regulations - here apparently picking up the matters complained of in relation to ground 1.
   2. Potential taxation responsibilities - the nature of such responsibilities being undeveloped.
   3. A responsibility to the members of the superannuation fund as to the treatment of their members' balances and the management of the asset pool.
3. On behalf of the de facto husband it was contended that GE Pty Ltd's participation was necessary to determine all issues in dispute as the orders under s 222 of the Act were in the nature of final orders having the effect that the transactions were void ab initio.[223] In broad terms the submission was that GE Pty Ltd, as trustee, was a person who was 'interested' so far as the orders applied for sought to remove a significant amount of money from its control.[224]
4. As will be seen from the next section of these reasons, rule 6.02(1) - at least as to its first limb - is reflective of the principles that inform the general law as to joinder. I am inclined to the view that the second limb (ie that of 'necessity') adds little to the first: where the court is invited to make an order directly affecting the rights or liabilities of a non-party, the non-party is a necessary party.[225] In turn those principles are based on the principles which underpin the law of procedural fairness.[226] Non-compliance with rule 6.02(1) does not of itself mean that there has been a failure to accord procedural fairness. All the more so it does not mean that there has been a failure to accord procedural fairness such as would entitle a third party to set aside an order made in its absence. The Family Law Rules do not dictate any particular consequences for failure to comply with rule 6.02. And, as is mentioned by the note to the rule, compliance may be dispensed with.
5. For these reasons it is not essential to dwell on whether or not rule 6.02 required the joinder of GE Pty Ltd. In my view - as I explain below - rule 6.02 did require that GE Pty Ltd be joined as a party. However, the application of rule 6.02 is not determinative of this aspect of ground 3.

Procedural fairness and the non-joinder of a third party to proceedings

1. There is high authority approving the following observations of Lord Diplock in Pegang Mining Co Ltd v Choong Sam in respect of the rules as to joinder:

[O]ne of the principal objects of the rule is to enable the court to prevent injustice being done to a person whose rights will be affected by its judgment by proceeding to adjudicate upon the matter in dispute in the action without his being given an opportunity of being heard ... a better way of expressing the test is: will his rights against or liabilities to any party to the action in respect of the subject matter of the action be directly affected by any order which may be made in the action?[227]

1. The 'directly affected' test has been said to involve matters of degree, and ultimately judgment, having regard to the practical realities of the case and the nature and value of the rights and liabilities of the third party which might be directly affected.[228]
2. In State of Victoria v Sutton McHugh J explained that:

The rules of natural justice require that, before a court makes an order that may affect the rights or interests of a person, that person should be given an opportunity to contest the making of that order. Because that is so, it is the invariable practice of the courts to require such a person to be joined as a party if there is an arguable possibility that he or she may be affected by the making of the order. That practice also assists in avoiding duplication of hearings on the same issues and in avoiding the spectre of inconsistent decisions ... [229] (emphasis added)

1. The consequences of non-joinder of a third party whose rights or interests were directly affected by an order of a court were considered by the Full Court of the Federal Court in News Ltd v Australian Rugby Football League Ltd and the High Court in John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd. Those cases, and State of Victoria v Sutton, were considered in detail by this court in Currie v Currie [No 2][230] in terms that I adopt without repeating. I note, however, that in News Ltd v Australian Rugby Football League Ltd the third parties (coaches and players not joined to the primary proceedings) were granted leave to intervene on appeal for the limited purpose of making submissions to the effect that they should have been joined as parties. In John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd the third party (an entity claiming an interest as mortgagee in land the subject of the proceedings) sought that it be joined as a party to the appeal so that certain orders in the primary court said to affect it could be set aside.
2. In those respects, in both cases, the relevant third parties took part in the appellate process and sought to set aside the order of the primary court made in their absence.[231]
3. In Currie v Currie [No 2] this court summarised the principles emerging from the authorities as follows:

A person is entitled and required to be joined if that person's rights against, or liabilities to, any party to the action in respect of the subject matter of the action may be directly affected by an order which may be made. An order with such a direct effect should not be made unless the person whose rights or liabilities are affected is also joined as a party. It is not sufficient to give notice to the third party who is so affected; the party seeking the order must join the third party.

Ordinarily at least, a person whose rights or interests are affected by an order made in breach of these principles is entitled to have the order set aside.

Where the orders sought establish or recognise a proprietary interest in (relevantly) land, all persons who have or claim an interest in the relevant land are necessary parties. That is because an order in favour of the claimant will, to a corresponding extent, be detrimental to all others who have or claim an interest.[232] (emphasis added; citations omitted)

1. Importantly, as is contemplated by the second paragraph in the quoted passage, it is the third party who was not heard at trial by reason of non‑joinder who is - ordinarily at least - entitled to have the order set aside. So far as the third party must seek leave to be joined as an appellant to the appeal (not being a party to the primary proceedings), a person who shows a prima facie case that an order made in the primary proceedings directly affected his or her rights against or liabilities to any party to the action in respect of the subject matter of the action will be entitled to be joined as a party to the appeal.[233]
2. The setting aside of the order on appeal is grounded on the denial of procedural fairness rather than the lack of an order for joinder.[234] As a 'general proposition', while the order is not a nullity, the third party is entitled to have the order made in its absence set aside rather than seeking that result through the favourable exercise of discretion.[235]

1. I accept that this is a case where GE Pty Ltd should have been joined as a party to the proceedings prior to trial.
2. Orders 1, 3 and 4 of the orders of the Family Court of Western Australia made 25 June 2018 directly affected the rights and interests of GE Pty Ltd. The coercive aspects of the order did not name GE Pty Ltd. However, GE Pty Ltd was the relevant counterparty to the transactions that were set aside by par 1 of the orders. The effect of the orders was to set aside, as if they had never occurred, the three dispositions of property GE Pty Ltd had received in 2008, 2011 and 2016. In practical terms the consequence was that some $989,077.62 was to be paid out of the superannuation trust fund as maintained by GE Pty Ltd as trustee. In my view it is not without significance that the payment orders were directed to the parties in their capacities as directors of GE Pty Ltd.
3. It is not necessary to consider the putative rights asserted by senior counsel for the de facto husband. Some of those plainly have difficulties. For example, the putative right to avoid breach of the Superannuation Regulations (if there could ever be such a 'right') falls with the dismissal of ground 1. It is enough to conclude, as I do, that prior to the orders challenged by the appeal GE Pty Ltd enjoyed all the relevant rights as legal owner of the property the subject of the impugned dispositions. However, after the orders, it did not. It matters not that GE Pty Ltd held those rights as legal owner of the property on trust. Even if this mattered, the effect of the orders was to deprive GE Pty Ltd of the right of indemnity, supported by equitable lien, that it held in relation to the property.
4. As GE Pty Ltd was a person whose rights may be directly affected by the orders sought pursuant to s 222 of the Act, its participation as a party was necessary for the Family Court of Western Australia to determine all issues in dispute in the case. GE Pty Ltd should have been joined as a party.
5. There was, in this respect, no duty on GE Pty Ltd to seek to be joined.[236] It is the responsibility of the prosecuting party to ensure joinder of all necessary parties.[237] It might be that the de facto wife chose not to do so because of the applications that are mentioned in Buss P and Murphy JA's reasons at [29] and [34.1] above. While that might explain the failure, it does not excuse any denial of procedural fairness occasioned thereby. Similarly, it is irrelevant that GE Pty Ltd may have had the same or similar interests to those of the de facto husband; the existence of any such common interest does not justify or excuse the failure to join GE Pty Ltd as a necessary party whose interests were directly affected.[238]
6. Senior counsel for the de facto wife made the submission that the service of documents on GE Pty Ltd sufficed for joinder.[239] I do not accept that submission. No doubt GE Pty Ltd was on notice of the proceedings and the orders sought in them. Notice of proceedings is different to joinder. The Family Law Rules identify those who are parties to a case[240] and the methods by which a person may be added as a party[241] or seek to intervene to be added as a party.[242] Mere service without compliance with rule 6.03 does not suffice. To the extent that the de facto wife relied on a case suggesting to the contrary, that case did not consider the terms of rule 6.03.[243]
7. Senior counsel for the de facto wife made a further submission to the effect that, as final orders were yet to be made under s 205ZG of the Act, GE Pty Ltd's position could be taken into account - and it could be accorded all necessary procedural fairness - when the matter returned to the Family Court of Western Australia. For example, to the extent necessary, there could be adjustments as between the parties - or even GE Pty Ltd. Mention was made that matters might arise as a result of the work being done by the court-appointed accountant, Mark Chan.[244] In my opinion, while relevant for other reasons discussed below, this provides no answer to the non-joinder. The mere possibility of further orders in the context of a final order for alteration of property interests under s 205ZG does not neutralise or overcome any denial of procedural fairness in having been deprived of the opportunity to contest the making of the orders under s 222 of the Act. As matters stand, at present, orders have been made, the dispositions have been set aside, and money has been paid out of the superannuation trust fund of which GE Pty Ltd is the trustee.
8. The circumstance that GE Pty Ltd should have been joined as a party to the proceedings prior to trial does not mean that the de facto husband must succeed in the procedural fairness aspect of ground 3.
9. There is, as Buss P and Murphy JA explain at [188] above, no doubt that the de facto husband was a party to the proceedings and was accorded procedural fairness with respect to the application for orders under s 222 of the Act. The only issue is whether GE Pty Ltd was not accorded procedural fairness. It might, in this respect, be questioned what GE Pty Ltd might have done in addition to contest the orders sought by the de facto wife. Nothing concrete was identified in the written or oral submissions on behalf of the de facto husband. Accordingly, in terms of the allegation of denial of procedural fairness, it is not obvious that there was any practical injustice. More importantly it was conceded that the appellant de facto husband controls the operations of GE Pty Ltd.[245] An inference thus arises whereby GE Pty Ltd can be taken to be aware of the appeal. Notwithstanding that fact, GE Pty Ltd has not sought to challenge the orders under appeal. GE Pty Ltd makes no complaint of denial of procedural fairness. Indeed, senior counsel for the de facto husband was at pains to eschew any suggestion that the procedural fairness issue taken in relation to the orders under appeal was taken by the de facto husband for GE Pty Ltd. It was a contention advanced for the appellant and the appellant only.[246]
10. Accordingly, as senior counsel for the de facto husband accepted at the appeal hearing, the de facto husband sought to take a point as to denial of procedural fairness that GE Pty Ltd - the entity with the proper interest in taking the point - had chosen not to take.[247]
11. The general rule is that a third party is entitled to have an order set aside where the order directly affects the rights of the third party, and the third party should have been, but was not, joined as a necessary party. The present case is outside that general rule. The point is not taken by the third party (GE Pty Ltd) but rather is taken by a person (the de facto husband) who was a party to the proceedings and who participated at the trial of the proceedings.
12. Accordingly, the procedural fairness aspect of ground 3 stands outside and is not to be determined by the general rule as established in News Ltd v Australian Rugby Football League Ltd and John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd. In circumstances where there is no challenge on appeal by GE Pty Ltd it is not the case that the s 222 orders should be set aside as of right simply because GE Pty Ltd was entitled and required to be joined as a party to the proceedings and - despite that not occurring - orders were made which directly affected GE Pty Ltd's rights in relation to the property the subject of the orders.
13. The absence of GE Pty Ltd is significant for another reason. It is possible that, had GE Pty Ltd taken the point on appeal, the de facto wife would have been able to answer it by asserting estoppel by conduct or abuse of process. The former was raised in John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd but failed on the facts.[248] The latter may be open given the concession that the de facto husband controls the operations of GE Pty Ltd. It is unnecessary and inappropriate for present purposes to consider whether either possible response would succeed. It is enough to conclude, as I do, that these matters could not be litigated on appeal in the absence of GE Pty Ltd. The possibility - unexplored - that these matters might provide an answer to the procedural fairness point if agitated by GE Pty Ltd serves to emphasise the importance that the point be raised by GE Pty Ltd rather than the de facto husband.
14. While, for the above reasons, the general rule does not apply and there is no entitlement requiring that the orders be set aside, it ought to be acknowledged that the procedural fairness point could have been taken by the de facto husband at the trial. Had that occurred the non-joinder of GE Pty Ltd would have precluded orders being made under s 222 of the Act to the extent that those orders directly affected GE Pty Ltd's rights. However, the de facto husband did not take the procedural fairness point before the primary judge. Thus, as was said on behalf of the de facto wife,[249] it is a new point advanced on appeal and must be considered in the context of the well-established principles as to when an appellate court will entertain a new point on appeal.
15. Those principles include the following:
    1. An appellant is bound by the conduct of his or her case at trial. The opportunity to assert a new case at another trial should only be granted where the interests of justice 'require it' and such a course can be taken without prejudice to the other party.
    2. The circumstance that an appeal is by way of rehearing does not mean that the issues and the evidence are considered at large. Other than in exceptional circumstances it is contrary to principle to allow a party to raise a new argument which, whether deliberately or by inadvertence, he or she failed to put during the trial when there was an opportunity to do so. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at trial.
    3. A point cannot be raised for the first time on appeal when it could possibly have been met by calling evidence at the trial ...
    4. However, an appellate court may allow a new point to be raised on appeal where it is both 'expedient and in the interests of justice' to entertain the new point and '[w]here all the facts have been established beyond controversy or ... the point is one of construction or of law'.
    5. Even if no question of further evidence arises it may not be in the interests of justice to allow a new point to be raised on appeal - particularly if it will require a further trial of the action.
    6. Before any new point is allowed the court should be satisfied that the raising of it could work no injustice to the other party and it is otherwise in the interests of justice to allow the new point to be raised.[250] (citations omitted)
16. To the extent that the principles have their origin in estoppel by election the relevant consideration is not that the other party is put in a worse position, but that he or she may have been put in a worse position. Accordingly, a new point of law cannot be taken if, had it been taken at trial, the course of the proceedings could have been altered - whether by the adducing of other evidence or otherwise. The possibility that the hearing would have taken a different course may suffice to deny raising the new point.[251]
17. Applying these principles there are three reasons, in my view, why the procedural fairness point should not be entertained by this court on appeal at the behest of the de facto husband.
18. First, to allow the new point to be raised on appeal - thereby necessitating, if upheld, a new trial - offends the public interest that there should be finality in litigation. The principle of finality applies with more than usual force given the tortured history of the primary proceedings and the length of the trial before the primary judge. The point now taken could and should have been raised before the primary judge. The failure to do so is stark given that the de facto husband controlled the operations of GE Pty Ltd. There is no suggestion that GE Pty Ltd might have raised any further matters in answer to the application for orders under s 222 of the Act. There is no suggestion that it will do so now if the appeal is allowed and there is a new trial. Moreover, final orders are yet to be made under s 205ZG of the Act. If, which has not been demonstrated, the orders of 25 June 2018 work any injustice as between the de facto husband and the de facto wife - they being the only interested parties who appeared on the appeal - that is something that can be taken into account and remedied when the Family Court of Western Australia makes final orders. In all the circumstances this is not a case where it is in the interests of justice to allow the new point to be raised by the de facto husband on appeal.
19. Second, I am not satisfied that the raising of the point on appeal could work no injustice to the de facto wife. It is inevitable that, should the procedural fairness point be upheld necessitating a new trial, such a new trial would prejudice the de facto wife by causing further delay in proceedings that have already suffered inordinate delay. The injustice in this respect outweighs any injustice suffered by the de facto husband as a result of the non-joinder of GE Pty Ltd in circumstances where: (1) the de facto husband fully contested the application for orders pursuant to s 222 of the Act; and (2) final orders are yet to be made under s 205ZG of the Act and, if required, any injustice as between the de facto husband and the de facto wife can be ameliorated at that point.
20. Third, and in my view most significantly, this is a case where the de facto wife was put in a worse position vis-à-vis joinder as a result of the point not being taken at trial. Had the point been raised at trial it would have been a very simple matter for the de facto wife to have taken steps to join GE Pty Ltd as a party. By rule 6.03 of the Family Law Rules all that is required is that: (1) the application be amended to add the name of the person as a party; (2) an affidavit be filed setting out the facts relied on to support the addition of the new party; and (3) service be effected on the new party of those materials and any other relevant document. Had the point been raised at trial, joinder to regularise and properly constitute the proceedings would, at most, have required a short adjournment - and possibly no adjournment at all given the orders previously made by O'Brien J and the de facto husband's control of GE Pty Ltd's operations.
21. The de facto wife was represented by very experienced senior counsel at trial. It is, in my view, almost certain that had the procedural fairness point been taken at trial the course of the proceedings would have been altered by the de facto wife taking these steps to address and nullify the issue. GE Pty Ltd would have been added as a party and the point now sought to be agitated on appeal would have fallen away. In all the circumstances of this matter I am of the view that this alone suffices to conclude that the de facto husband ought not be permitted to raise the procedural fairness point on appeal. In combination with the other two matters the de facto husband has, all the more so, not made out that his case meets the established criteria whereby error might be corrected on appeal by entertaining a new point on appeal not advanced before the primary judge.
22. Accordingly, like Buss P and Murphy JA, I would dismiss ground 3 so far as it alleges that GE Pty Ltd was not accorded procedural fairness. It follows that I, like Buss P and Murphy JA, would dismiss the appeal. I also agree Buss P and with Murphy JA that it follows that the de facto wife's application dated 8 April 2020 need not be considered and should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza

[1] T and R [2018] FCWA 113. (All references to the parties, their business interests and properties have been anonymised.)

[4] Primary decision [4], [14] - [18].

[13] Primary decision [62], [67], [69].

[20] Primary decision [116] - [117].

[27] Primary decision [4], [6], [57].

[31] T and R [2017] FCWA 44 [36]; BB 165.

[37] Primary decision [20]. It is to be noted that the proposed orders of 2 November 2017 did not include orders to set aside the concessional contributions claimed in the orders of 4 October 2017.

[44] Primary decision [35] - [39], [42] - [46], [94], [113].

[48] BB 194 - 195; this was broadly consistent with par 6(a) of the orders sought by the de facto wife on her amended minute dated 2 November 2017.

[50] Primary decision [213]. See also BB 196 - 197.

[51] Primary decision [44] - [50], [65], [95], [141], [162], [234], [237].

[56] Primary decision [239] - [240].

[57] Primary decision [79] - [104].

[58] Primary decision [76], [229], [243].

[59] Primary decision [226] - [228].

[60] Primary decision [79], [89], [92], [225], [230], [273] - [274].

[63] Primary decision [235] - [236].

[64] Primary decision [100] - [104].

[67] Primary decision [128] - [137].

[68] Primary decision [138] - [142].

[69] Primary decision [173] - [180].

[73] Primary decision [173] - [174].

[75] Primary decision [111], [205].

[77] Primary decision [125] - [126].

[78] Primary decision [203] with reference to Kennon v Spry [2008] HCA 56; (2008) 238 CLR 366.

[80] Primary decision [90], [103], [137], [160] - [162], [164] - [172], [173] - [182], [226].

[81] Primary decision [205], read with [111], [135] - [136] and [140].

[83] Primary decision [210]. The judge referred to and distinguished Mackah v Mackah [2017] FamCAFC 62; (2017) 56 Fam LR 516.

[86] Primary decision [103], [212.84], [212.87], [224].

[87] Primary decision [224], [226].

[88] Primary decision [237] - [240].

[90] Primary decision [241] - [244].

[91] This sentence, as expressed, is, with respect, rather difficult to read and the interpolated words have been added to reflect what appears to be obvious intent of the sentence.

[92] Primary decision [245] - [246].

[93] Primary decision [253] - [268].

[95] Primary decision [271] - [274].

[98] Primary decision [277], [279].

[99] Primary decision [280] - [281].

[100] Primary decision [282] - [285].

[101] Appellant's written submissions par 10; amended WB 12.

[102] Appellant's written submissions pars 11 - 13; amended WB 13 - 14.

[105] Appellant's written submissions, pars 1 - 2; amended WB 7 - 9.

[106] Appellant's written submissions, par 6; amended WB 11.

[107] Ascot Investments v Harper [1981] HCA 1; (1981) 148 CLR 337.

[108] Appellant's written submissions, par 9; amended WB 12.

[113] First respondent's written submissions, pars 13 - 16; amended WB 33 - 34.

[114] First respondent's written submissions, par 17; amended WB 34.

[115] First respondent's written submissions, pars 5 - 12; amended WB 32 - 33.

[116] Gabel v Yardley [2008] FamCAFC 162; (2008) 221 FLR 270 [124] - [128].

[117] Lippmann v Lippmann [2010] FamCAFC 127 [50] - [54].

[121] Primary decision [91] - [92].

[122] Appellant's written submissions, par 10(a) - (f); amended WB 12 - 13.

[123] Appellant's written submissions, par 10(g); amended WB 13.

[126] First respondent's written submissions, pars 20 - 25; amended WB 34 - 35.

[127] Primary decision [111], [136], [139] - [140], [205].

[128] Rizhao Steel Holding Group Pty Ltd v Koolan Iron Ore Pty Ltd [2012] WASCA 50; (2012) 43 WAR 91 [48] - [54]; Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [65] - [66].

[129] Mighty River International Ltd v Mineral Resources Ltd [2020] WASCA 44 [77].

[130] See s 222(4a), s 205ZI(1)(k) and (l) of the Act; Loder v Aysom (1988) 12 Fam LR 659; Mitty v Mitty [2010] FamCAFC 256; (2010) 45 Fam LR 20 [113], [115].

[132] Appellant's written submissions, pars 11 - 16, amended WB 13 - 15.

[133] Appellant's written submissions, par 14; amended WB 13.

[134] Appellant's written submissions, par 15; amended WB 14.

[135] Appellant's written submissions, par 15; amended WB 14.

[136] Appellant's written submissions, par 16; amended WB 15.

[137] Reference was made to Van Essen and Van Essen [2000] FamCA 77; (2000) 26 Fam LR 456 and Ruane and Bachmann‑Ruane [2012] FamCA 369; (2012) 48 Fam LR 131.

[138] Appellant's written submissions, pars 19 - 22; amended WB 17 - 19.

[139] Australia and New Zealand Banking Group Ltd v Harper [1987] FamCA 4; (1987) 89 FLR 454.

[140] Grech v Deak-Fabrikant (No 3) [2015] VSC 581.

[143] Appellant's written submissions, pars 21 - 31; amended WB 19 - 22. Reference was made to Riemann & Riemann (No 3) [2017] FamCA 911 [71].

[144] Appellant's written submissions, par 32; amended WB 22.

[145] Appellant's written submissions, par 34; amended WB 22.

[146] Appellant's written submissions, pars 23(d) and 26(d); amended WB 19 - 21.

[147] Appellant's written submissions, par 21(d); amended WB 18.

[148] First respondent's written submissions, pars 37 - 38; amended WB 37.

[149] First respondent's written submissions, par 39; amended WB 37 - 38.

[150] Reference was made to Gabel [124].

[151] Halabi v Artillaga [1993] FamCA 154; (1993) 17 Fam LR 675.

[152] First respondent's written submissions, pars 46 - 48; amended WB 43 - 44. Reference was made to Pierce v D'Cruz (2010) FamCAFC 99 [450] - [454].

[153] First respondent's written submissions, pars 50 - 62; amended WB 44 - 46.

[155] See, eg, Benjamin v Benjamin (1976) 11 ALR 211, 214.

[156] Kriwoschejew v Kriwoschejew, Gerard Investments Ltd (1975) 6 ALR 260, 266 - 267. See also Benjamin (215); and In the Marriage of Buckeridge [1981] FamCA 91; (1981) 56 FLR 386, 404.

[158] In the Marriage of Hajduk [1993] FamCA 149; (1993) 109 FLR 218, 222. See also Buckeridge (404).

[161] VC v GC [2010] FamCAFC 62 [153].

[162] In the Marriage of Grace [1997] FamCA 59; (1997) 143 FLR 62, 67. See also Pierce [427] ‑ [428]; [447] ‑ [449]; In the Marriage of Gould [1993] FamCA 126; (1993) 115 FLR 371, 384.

[163] Newjur Pty Ltd v Panjas (1997) 140 FLR 194, 198 - 199. See also Johnson [64].

[165] Kennon [106], [130], [135].

[167] In the Marriage of Gelley (No 2) (1992) 107 FLR 160.

[168] In the Marriage of Pflugradt [1981] FamCA 23; (1981) 7 Fam LR 188.

[172] In the Marriage of D and D [1984] FamCA 64; (1984) 10 Fam LR 73, 82 - 83; Hajduk (222 - 223); Harper (459); Johnson [62].

[180] See, eg, VC [147]; Buckeridge (405). Compare also the heading of s 222 to the provision itself.

[182] Appellant's written submissions, pars 35 - 39; amended WB 22 - 25.

[183] Stanford v Stanford [2012] HCA 52; (2012) 247 CLR 108 [35] - [38].

[184] In the Marriage of Hickey [2003] FamCA 395; (2003) 30 Fam LR 355.

[186] Appellant's written submissions, par 44; amended WB 27.

[187] Appellant's written submissions, par 40; amended WB 26.

[188] Appellant's written submissions, par 42; amended WB 26.

[189] First respondent's written submissions; pars 26 - 28; amended WB 35 - 36; citing In the Marriage of Harris [1993] FamCA 49; (1993) 113 FLR 472; In the Marriage of Zschokke [1996] FamCA 79; (1996) 133 FLR 375; Strahan and Strahan [2009] FamCAFC 166; (2009) 214 FLR 1; Hickey [48]; Gabel [124] - [126].

[190] First respondent's written submissions, pars 29 - 31; amended WB 36.

[191] First respondent's written submissions, pars 63 - 67; amended WB 47.

[192] First respondent's written submissions, par 32; amended WB 36; citing Gabel [126] and Lippmann v Lippmann.

[193] Gabel [57], [62], [66] - [67], [69], [72].

[195] Strahan [113], [132], [137], [155].

[197] See [48] - [51] and [63] above.

[198] See [50] - [51] above.

[200] Ground 5 only alleges, relevantly, that in failing to give adequate reasons, the judge thereby erred in finding equal, or near equal contributions. Neither ground 5 nor any other ground of the appeal alleges that if the judge's reasons were adequate, the finding of equal or near equal contributions was nevertheless not open on the evidence.

[201] Hickey [39], set out in [156] above.

[202] See generally G v O [2018] WASCA 211; (2018) 53 WAR 393 [63] - [65].

[203] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 355 - 356.

[204] Appellant's written submissions, par 17(a) - (g); amended WB 15 - 16.

[205] Appellant's written submissions, pars 17(f) - (h) and 18; amended WB 16 - 17.

[206] First respondent's written submissions, par 40(a); amended WB 38.

[207] First respondent's submissions par 40(c), (f) and (g); amended WB 40 - 41.

[208] First respondent's written submissions, par 40(b), (e) and (h); amended WB 38 - 41.

[209] Reference was made to XYZ Pty Ltd v Charisteas [2017] FamCAFC 112 [115].

[211] As accepted by senior counsel for the de facto husband: appeal ts 62.

[212] Compare John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1 [137]; Currie v Currie [No 2] [2019] WASCA 2 [241].

[213] Rule 6 of the Family Law Rules 2004 (Cth) is applied by virtue of r 12 of the Family Court Rules 1998 (WA).

[214] Tiao v Lai [No 2] [2010] WASCA 189 [121].

[215] Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37].

[218] Appellant's 'orders wanted', pars 5 - 6; amended WB 30.

[219] Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 [36].

[221] Rule 6.02 applies for the purpose of the exercise of the Family Court of Western Australia's non-federal jurisdiction under the Act: Family Court Rules 1998 (WA) rules 12, 13(4).

[225] John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1 [131].

[226] Tiao v Lai [No 2] [2010] WASCA 189 [121].

[227] Pegang Mining Co Ltd v Choong Sam [1969] UKPC 16; [1969] 2 MLJ 52, 55 - 56. See State of Victoria v Sutton [1998] HCA 56; (1998) 195 CLR 291 [77]; John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [131]. (In John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd the relevant footnote directs attention to State of Victoria v Sutton. However, the text echoes the language of Lord Diplock: 'where a court is invited to make, or proposes to make, orders directly affecting the rights or liabilities of a non-party, the non-party is a necessary party and ought to be joined').

[228] News Ltd v Australian Rugby Football League Ltd [1996] FCA 870; (1996) 64 FCR 410, 525.

[229] State of Victoria v Sutton [77].

[230] Currie v Currie [No 2] [2019] WASCA 2 [216] - [229].

[231] That was also the case in Tiao v Lai [No 2].

[232] Currie v Currie [No 2] [236] - [238].

[233] Currie v Currie [No 2] [241].

[234] John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [153]. See also [138].

[235] John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [137].

[236] John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [140].

[237] News Ltd v Australian Rugby Football League Ltd (526 - 527).

[239] Respondent's submissions par 40(e) WAB 41; Appeal ts 83 - 84.

[240] Family Law Rules rule 6.01.

[241] Family Law Rules rule 6.03.

[242] Family Law Rules rule 6.05.

[243] XYZ Pty Ltd v Charisteas [2017] FamCAFC 112 [115]. Alternatively, it might be that the Full Court was contemplating service of a claim for relief including an amended application in terms of rule 6.03.

[248] John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [141] - [144].

[249] First respondent's submissions par 40(a) WAB 38.

[250] Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [66].

[251] Zerjavic v Chevron Australia Pty Ltd [67].