Raich & Raich (No 2) [2025] FedCFamC2F 1791 (15 December 2025)

1. There be liberty to apply as to any difficulty in implementing these orders.
2. Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

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

(b) Monies standing to the credit of the parties in any joint bank account are to be divided 82.23% to the Applicant and 17.77% to the Respondent, and the account otherwise closed;

(c) Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;

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

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

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

1. All applications, including any extant application in a case, are otherwise dismissed.
2. The reasons for these orders are reserved.

1. The ATO is requested to co-operate, in a timely manner, with the Applicant's solicitors when they attempt to transfer the sum of $119,255 to the ATO, on account of the Respondent's expected CGT Liability.
2. The purpose of the order for the payment of the professional costs of the Applicant's solicitors for liaising with the ATO, from the Respondent's Part, is to indemnify the Applicant that would otherwise fall to her and this order does not appoint the Applicant's solicitors to act for the Respondent.

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

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

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

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

1. Having married back in 1988 and separated in about 2012, the applicant, Ms Raich ('the Applicant'), and the respondent, Mr Raich ('the Respondent'), need the assistance of the Court to work out how to divide their remaining property pursuant to section 79 of the Family Law Act 1975 (Cth) ('the Act'). The section 79 property settlement proceedings were issued in 2023 and there has been a lot of water under the bridge of this long relationship from separation in about 2012 and when this case was heard in 2025, 37 years after the marriage.
2. The Respondent seeks a 50/50 division of the asset pool as he characterises it. The Applicant seeks the entire proceeds of sale of the remaining asset of the Suburb C property to be paid to her (from her solicitors' trust account where proceeds of sale remain) because of:
   • The unilateral disposition of substantial funds by the Respondent; and
   • the failure of the Respondent to disclose all relevant information and records.
3. Those proceeds are $1,420,190.90. Each party now seeks that they retain their modest remaining superannuation.
4. I must determine the competing property alteration proposals in accordance with Part VIII of the Act as it was before the most recent amendments that came into effect on 10 June 2025 because the final hearing was completed prior to the commencement of the amending Act.

1. The Applicant was born in 1958 and is aged 67. She works as a health care worker at a hospital. The Respondent was born in 1961 and is aged 64. He has not been employed since being made redundant in 2020 and is in receipt of government benefits. Throughout the relationship, the Respondent was employed full-time as a professional at a large institution. The parties have three adult children.
2. The parties commenced cohabitation shortly after their marriage in 1988 and separated under one roof in or around 2012. As such, this matter concerned not only a long marriage relationship of approximately 22 years, but also a long separation, during which the parties continued to make some joint financial decisions which are highly relevant to these proceedings. At the final hearing, the parties had not yet divorced.

1. The Applicant commenced proceedings in this court on 29 August 2023. Interim orders were made on 6 March 2024 for the sale of the parties' real property in Suburb C ('the Suburb C Property'). Those orders were made on an undefended basis in circumstances where the Senior Judicial Registrar was satisfied that the Respondent was on notice of the proceedings and of the potential for orders to be made in his absence. He had also been provided with the information (including electronic link) for attending the hearing, but did not appear, and did not respond to contact from the Court. The orders made on that occasion gave the Applicant sole responsibility for the terms and conditions for the sale of the Suburb C Property and reserved her costs of and incidental to that interim hearing.
2. The Respondent appeared on the following listing, 10 April 2024, when the matter was listed for a 'compliance and readiness' hearing. Orders made that day listed the matter for final hearing before me on 28 August 2024 and imposed a ban on cross-examination between the parties pursuant to section 102NA(1)(c)(iv). In respect of the section 102NA order, the Respondent was also ordered to make application for funding under the Commonwealth Family Violence and Cross Examination of Parties Scheme to enable cross-examination and his representation at the final hearing.

Another case of the unintended consequences of the s.102NA scheme

1. On 28 August 2024, the date for which the matter had been listed for final hearing, the Applicant appeared represented by counsel and the Respondent appeared as a litigant in person. However, the matter was unable to proceed because of the difficulties the Respondent had had with the legal representation appointed to him pursuant to the section 102NA Scheme and the late withdrawal of his legal representation shortly before the final hearing. This case was another of the unintended consequences of the section 102NA Cross-Examination Scheme. The scheme is intended to protect the alleged victim of family violence, in this case the Applicant, from the possible trauma of being personally cross-examined by the alleged perpetrator, in this case the Respondent. The end result was because of the legislation the alleged victim of family violence was seriously disadvantaged and put to substantial expense by the combined effect of the mandatory provisions, the Respondent's engagement with the scheme and the lawyers appointed for him under that scheme. For further context, I refer to my decision of Raich & Raich [2024] FedCFamC2F 1215. The end result was that I was compelled to adjourn the matter, and did so, listing it for final hearing on 27 March 2025. I also ordered that the Applicant's costs of that hearing thrown away be fixed in the sum of $10,592, with the issue as to whether the Respondent should pay those costs to be determined at the adjourned final hearing.

1. The final hearing commenced on 27 March 2025 and ran for two days. I reserved reasons on 28 March 2025. Both parties were represented by solicitor and counsel at the final hearing. Only the parties were cross-examined. Counsel were of great assistance to the court in an otherwise chaotic litigation.

1. The Applicant initially contended that the property pool for division was approximately $4.8 million with $1.3 million of liabilities and a total of $12,000 of superannuation. The Applicant had sought "add-backs" of assets and superannuation of approximately $1.7 million, alleged to have been disposed of by the Respondent, after separation, which include proceeds of sale of a property overseas, a redundancy payment and his superannuation. She alleged that Respondent had not made full and frank disclose of all relevant financial information. The last remaining (and known) real property of the parties, known as the Suburb C Property, has been sold and the proceeds of sale of about $1,420,191 remain held on trust. The Applicant seeks that after payment of, or provision for, outstanding taxation liabilities arising from the sale of the Suburb C Property, she retain the whole of the proceeds of sale.
2. It is the Applicant's case that the Respondent has dissipated the asset pool by going through all of his redundancy payment, his superannuation and self-managed super fund, as well as receiving significant amounts of money from the sale of property overseas and has failed to account for those substantial funds. The Applicant asserts that all proceeds of sale of the Suburb C Property should be retained by her as the Respondent has deliberately dealt with very large sums of money without reference to her, and had failed to disclose the existence of, the funds disposed of or what he did with those funds.
3. The Applicant asserts the Respondent did not disclose any relevant information about his financial circumstances until very limited information was set out in his trial affidavit shortly before the final hearing. The Applicant's case was that all relevant information about the Respondent's financial affairs was obtained by a chance finding of the Respondent's documents when she was cleaning premises[1] prior to sale and through subpoenas issued by her.

1. The Respondent asserted that the property pool for division is about $3.5 million, approximately $1.25 million in liabilities and about $12,000 of superannuation but that assertion was before the sale of the remaining major asset. The Husband also sought the "add back" of approximately $90,000 for transfers he says the Applicant made to his country of origin, or that the disposition of those funds be taken into account in determining just and equitable orders pursuant to section 79 of the Act. He alleged the Respondent had not made full and frank disclose of all relevant financial information. Although the Respondent sought a 50/50 split of superannuation in his orders sought filed in March 2025, counsel for the Respondent indicated there is no live application for a superannuation splitting order.
2. The Respondent sought there be a 50/50 split of the asset pool as he said it was. The Respondent identified the pool as only the proceeds of the Suburb C property, the Applicant's current superannuation and the proceeds of sale of the Suburb N Property and his asserted "add-backs" on the Applicant's side of the notional ledger and the proceeds of sale of the former matrimonial home ('the FMH') that each had received.
3. In closing submissions, counsel for the Respondent sought that a payment equivalent to half of a property pool of $1,686,296,[2] being $843,148 less the Respondent's "keep", or assets retained by him, of $170,000,[3] being a payment of approximately $673,000[4] or about 55.75% of the net of expected tax proceeds of sale of $1,207,130.

1. The Applicant had gone to the trouble of retaining expert advice to calculate the likely additional income tax payable by her and also likely payable by the Respondent. The estimated further taxation liabilities of the parties likely to arise from the sale of the Suburb C property when the relevant tax returns are lodged, were not in dispute and became common ground in the hearing.
2. Through closing submissions of his counsel, it was submitted to the Court that there ought to be consideration of the fact the Suburb C properties were able to be completed and the equity in those properties increased over time. It is also the Respondent's case through closing submission that the Applicant had the benefit of residing in the Suburb N property prior to its sale, as well as occupying one of the three townhouses on the Suburb C properties with her de facto partner since about 2010 or 2012.
3. As to the funds that the Wife had initially sought to be added back, the Respondent simply asserted, in substance that, it was "all gone". Some, he said, had been lost in an investment in State GG, U.S.A, some in a "land banking" investment in Suburb P, Victoria and some lent to friends and some to repay debts. It was effectively asserted that none would be, or would likely be, recovered. Bank statements had been obtained by the Applicant on subpoena and in her "clean up" of the Suburb N property,[5] that showed that substantial funds had relatively recently once been in the control of the Respondent. But, no particulars of substance, as to who the funds were paid, what were the investments or debts or the terms of them, were provided by the Respondent.
4. The Respondent's assertions included that:
   • for part of the time after separation he had been compelled by poverty to live in his motor car; and
   • for part of the time after separation he had worked as a transport worker; and
   • then his car had been stolen; and
   • that the Applicant had authorised the destruction of his motor car when recovered; and
   • his business documents and records had been in his motor car when it had been stolen. This assertion carried with it the intended implication that the Applicant bore some responsibility for his being unable to corroborate his case and detail what happened to the money by documents.
5. As to the that part of the funds alleged to have been disposed of, or lost, or wasted by the Respondent, he asserted that the bulk of those funds, having come from his father and/or family was effectively an inheritance of his, and if taken account of, and whether wasted or not, should be treated as a direct contribution solely by him in accordance with the principles of the authority of Gosper[6] and of Kessey.[7]

1. Documents relied upon by the parties and exhibits tendered in these proceedings are listed at Appendix 1 and Appendix 2 to these reasons.

1. A couple of months after the conclusion of the final hearing and after the settlement of the sale of the remaining property took place, the funds of the sale of the property were placed in trust. Whilst judgment remained reserved, the Respondent sent several emails to my chambers requesting release of funds from the sale of the Suburb C Property. I do not accept those emails into evidence or regard them as applications.
2. Then, on 19 November 2025, the Applicant filed an application in a proceeding seeking orders on an urgent basis that the sum of $30,000 be distributed to her from the sale proceeds of the Suburb C Property, and that the Respondent pay her costs in respect of that application. That application was listed for urgent hearing before me on 4 December 2025, alongside the listing for delivery of these orders and reasons.
3. To save costs to the parties, I made orders in Chambers addressing the application in a proceeding, vacated the interim hearing and made the following orders on 3 December 2025:

3. By no later than 12.00pm on Friday, 5 December 2025, the parties are:

(a) directed to advise whether or not the figure of $1,417,918.35 (asserted at paragraph 8 of Applicant's affidavit filed 19 November 2025) is an accurate record of the funds of the proceeds of sale of the [Suburb C] property held on trust by Accord Family Law; and

(b) directed to advise whether there is any outstanding taxation due by [the Applicant] to the Australian Tax Office ('ATO') and what is the current amount, if any, outstanding; and

(c) directed to advise whether there is any outstanding taxation due by the [Respondent] to the ATO and what is the current amount, if any, outstanding.

1. My Chambers received a response from the Applicant's solicitors via email in response to the above orders. I am thankful for the efficiency and diligence of the Applicant and her solicitors. The Applicant's response included the following:

(a) As at today's date, the amount held in controlled monies via Accord Family Law Practice Trust Account, representing the balance of sale proceeds for the property at [B Street, Suburb C] is $1,420,190.90[8].

(b) Our client, the [Applicant] does not have any currently outstanding taxation due to the Australian Tax Office ("ATO")

The [Applicant] has not yet completed the 2025 tax return, which will include an assessment of any Capital Gains liability arising from the sale of the jointly owned property [the [Suburb C] Property], an estimate of which was referred to in submissions made by Laurence Fudim of counsel at the commencement of day 1 of the trial on 27 March 2025.

(c) [As to the Respondent's taxation liability] These matters are not known to the [Applicant] and the [Respondent] Respondent is to respond to this subparagraph.

1. I received no response from the Respondent. I am satisfied of the matters contained in the emailed response and, so I proceed on the basis of $1,420,190.90[9] is the total amount held on trust and that likely income tax ('CGT') arising from the sale of the Suburb C Property has not been paid.
2. The final orders and these reasons overtake the application in a case and mean there is no utility in dealing with the application in a case and it will be dismissed.

1. In these reasons, statements of fact are findings of fact. I apply section 140 of the Evidence Act 1995 (Cth) ('the Evidence Act') which states as follows:

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence; and

(b) the nature of the subject-matter of the proceeding; and

1. In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 ('Fox v Percy'), at first instance, the rider of a horse was found to be a more reliable witness than the driver of the Kombi Van that had collided with oncoming horses and riders who were coming around the bend. The issue was upon which side of the road the collision occurred. The Court of Appeal of the Supreme Court of New South Wales had to interfere with the first instance decision where it had been incorrectly determined, by reason of the apparent reliability of the witnesses, that the collision occurred on the Kombi Van's wrong side of the road. But an Appeal Court does not usually interfere with findings of fact at first instance because of the advantages the primary judge or jury have. The Court of Appeal found the first instance decision was wrong because of the position of the braking skid marks of the Kombi Van that were in evidence. The skid marks of the Kombi Van incontrovertibly demonstrated that the Kombi Van had been on its correct side of the road at all material times relevant to the point of collision. The High Court found that the Court of Appeal was justified in upholding the appeal and upheld that court's findings. That is the context to the following observation.
2. When discussing the drawing of conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses, the plurality of the High Court in Fox & Percy observed:

[31] ...in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events...

1. I have endeavoured to rely on objectively established facts and the apparent logic of events in this case as well as the evidence and demeanour in the witness box of the parties.
2. It is also important to note in a case where in substance each party alleges the other is lying that I bear in mind the guidance of the Full Court in Blass & Blass [2022] FedCFamC1A 63; (2022) FLC 94-085 at [39] and [40] which is as follows:

[39] The grave allegation of untruthfulness and its concomitant finding of abuse of child X as essential aspects of the determination of the case constituted, in accordance with s 140 of the Evidence Act 1995 (Cth), a factual conclusion that required persuasion, itself, on the balance of probabilities. It was not established on the mere failure by the appellant to prove that the behaviours had in fact occurred to that same standard.

[40] While the failure to accept a witness's evidence is a necessary component of a finding of untruthfulness or fabrication, such mere failure is less than a finding of untruthfulness; untruthfulness is a further fact that is required to be found.

1. The property orders dispute falls to be determined by application of Part VIII of the Act and in particular the provisions of sections 79, 75(2) and 80 of the Act applicable at the time of the trial.
2. Section 79 then read:

Section 79 Alteration of property interests

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

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

(b) in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage - altering the interests of the bankruptcy trustee in the vested bankruptcy property;

including:

(c) an order for a settlement of property in substitution for any interest in the property; and

(i) either or both of the parties to the marriage; or

(ii) the relevant bankruptcy trustee (if any);

to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.

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

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

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

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

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

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

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

(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and

(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

1. By section 79(4)(e), the shopping list of largely prospective factors of section 75(2), that are the same factors to be considered when considering spousal maintenance, must be had regard to and the applicable provision was and is as follows:

Section 75 Matters to be taken into consideration in relation to spousal maintenance

(1) In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2).

(2) The matters to be so taken into account are:

(a) the age and state of health of each of the parties; and

(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and

(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and

(d) commitments of each of the parties that are necessary to enable the party to support:

(i) himself or herself; and

(ii) a child or another person that the party has a duty to maintain; and

(e) the responsibilities of either party to support any other person; and

(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

(i) any law of the Commonwealth, of a State or Territory or of another country; or

(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

and the rate of any such pension, allowance or benefit being paid to either party; and

(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and

(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and

(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and

(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and

(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

(l) the need to protect a party who wishes to continue that party's role as a parent; and

(m) if either party is cohabiting with another person - the financial circumstances relating to the cohabitation; and

(n) the terms of any order made or proposed to be made under section 79 in relation to:

(i) the property of the parties; or

(ii) vested bankruptcy property in relation to a bankrupt party; and

1. The Court has wide powers as set out as section 80 of the Act:

Section 80 General Powers of Court

(1) The court, in exercising its powers under this Part, may do any or all of the following:

(a) order payment of a lump sum, whether in one amount or by instalments;

(b) order payment of a weekly, monthly, yearly or other periodic sum;

(ba) order that a specified transfer or settlement of property be made by way of maintenance for a party to a marriage;

(c) order that payment of any sum ordered to be paid be wholly or partly secured in such manner as the court directs;

(d) order that any necessary deed or instrument be executed and that such documents of title be produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;

(f) order that payments be made direct to a party to the marriage, to a trustee to be appointed or into court or to a public authority for the benefit of a party to the marriage;

(h) make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order;

(k) make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this section), which it thinks it is necessary to make to do justice; and

1. In the High Court of Australia case of Stanford v Stanford [2012] HCA 52;  (2012) FLC 93-518 ('Stanford'), the majority stated some fundamental propositions about section 79 of the Act proceedings. In Stanford the essential issue was whether it was just and equitable to make any property order at all, in circumstances where the consortium vitae or marriage relationship had not broken down and the Applicant's needs were otherwise provided for. The parties resided apart due to the ill health of one of them with that party being in residential care and the other remaining in the matrimonial home. The proceedings for the party in ill health were conducted by a case guardian who was also the beneficiary under the will of that party.
2. The Family Court of Western Australia had made an order for a property settlement that would have necessitated the sale of the former matrimonial home where the Respondent continued to reside. For 37 years, prior to the Applicant moving to a nursing home, the parties had made their matrimonial home in a house registered in the Respondent's name. The Applicant's expenses in accommodation were being met, and she had the benefit of a sum set aside in the event she needed anything further. It was the second marriage for both of the parties.
3. The High Court varied the order of the Full Court and found that in the circumstances it was not just and equitable that a property settlement or property alteration order be made at all. This was so despite 37 years of marriage and contribution by the Applicant. Hence section 79(4) contribution, even 37 years of it, was not to be conflated with the section 79(2) "just and equitable" requirement but should be considered separately.
4. Apart from general observations about section 79 the High Court observed that it should not be concluded that the making of an order is just and equitable only because of, or only by reference to, the matters in section 79 without a separate consideration of section 79(2).
5. In Stanford, the High Court did not go on to comment upon how section 79(4) and/or section 75(2) should be applied where it was just and equitable that a property alteration or settlement order be made.  Stanford was not concerned with the nuts and bolts of how sections 79(4) and 75(2) were to be applied in the ordinary run of cases, to the extent there is such a thing.
6. In Stanford nondisclosure or false evidence of a party's financial circumstances was not an issue. Stanford does not touch upon whether it is just and equitable to alter property interests in favour of the non-disclosing party or in favour of a party giving false evidence of his or her financial position.
7. Each party here contends that it is just and equitable that I make section 79(4) property alteration orders. Because each contends for section 79 orders and because they no longer have the joint use of assets, I am satisfied that it is just and equitable to make property alteration orders in this case.
8. In this case, it was common ground that the Suburb C Property had sold prior to the final hearing, with settlement set to occur approximately three months following the hearing, and the proceeds of sale to be subsequently held on trust. As recited above it is now clear those proceeds are $1,420,190.

1. In Keskin & Keskin and Anor [2019] FamCAFC 236; (2019) FLC 93-932 ('Keskin')[10] the Full Court, Strickland, Kent & Austin JJ, at [44] approved what was the age old and pre-Stanford "preferred approach" as to the how the nuts and bolts of section 79(4) (and therefore its de facto counterpart at section 90SM(4)) fitted together as set out in _Hickey and Hickey and the AG for the C'lth of Australi_a [2003] FamCA 395; (2003) FLC 93-143 ('Hickey') at [39]. Hickey set out the preferred approach as follows:

[39] The case law reveals that there is a preferred approach to the determination of an application pursuant to the provisions of section 79. That approach involves four interrelated steps. Firstly, 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 hearing. Secondly the court should identify and assess the contributions of the parties within the meaning of section 79(4)(a), (b) & (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly the court should identify and assess the relevant matters referred to in section 79(4) (d), (e), (f) & (g) ("the other factors") including, because of section 79(4), the matters referred to in section 75(2) so far as they are relevant and determine the adjustment study (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, 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. If it could be suggested that there may be a conflict between the High Court's rejection of the notion that a section 79 or section 90SM order being just and equitable by mere separation and/or section 79(4) (or section 90SM(4) in a de facto case) contribution on the one hand, and the use of the word "entitlements" in the Hickey passage cited above on the other. I regard the use of "entitlement" in the above passage as intended to be synonymous with "assessment". I will have regard to what I find to be the contribution-based assessment rather than entitlement.

Reliability of the Applicant's case and evidence

1. I do not accept the allegation that the Applicant had failed to provide material, information or document. The Applicant had, by and large, complied with orders as to filing of evidence and, I am satisfied she has complied with her duty of disclosure of all relevant financial documents and information. This was not a complex task as she was and is a long term employee of the same employer, earned a modest wage and had modest superannuation.
2. As was well known to the Respondent, along with six siblings she understood she was, as one of seven or eight siblings, a co-owner of a modest dwelling in a village in an overseas developing country from where she had migrated back in the 1980's. She disclosed the existence of the property. The Respondent had visited it and was well familiar with it. It was not disputed she held some interest of co ownership with her siblings. She had, by an admission against interest, asserted a value to that interest. No attempt to expend money on a single expert valuation of the Applicant's interest was ever attempted.
3. She had, as was also well known to the Respondent, from time to time when she had some small funds left over from household requirements, sent very modest sums, from her own wages, to members of her family in that developing country. To the extent that practice was explored and challenged in cross-examination, I found the Applicant's oral evidence to be responsive to the issue or question and frank and plausible and given without hesitation or artifice or histrionic effect. The account of events in her affidavit of evidence in chief was detailed and without apparent implausibility (in the circumstances). Taking account the extent to which her evidence was challenged, the apparent logic of events and her demeanour in the witness box, I did not find any reason not to accept her evidence. I found her evidence to be reliable.
4. Further, from her demeanour in cross-examination, the care and detail of her affidavit of evidence in chief and her preparedness to readily make a concession where the event or circumstance was within her memory, I am satisfied that where the Applicant actually recalled an event or circumstance she unhesitatingly stated or conceded it whether or not she thought it advanced her case, or the Respondent's.

1. The Respondent is highly educated and was employed for many years by an educational facility in a professional capacity. But his evidence under cross-examination was shambolic and argumentative. Because of the extent of substantial funds he received during the period he said he lived in his car because of poverty, the extent to which he attempted to attribute, or sometimes hint at, responsibility for unhappy events (like the account of my documents were in my car when it was stolen when I lived in my car) being connected to the Applicant, the considerable extent to which he failed to produce even the most rudimentary corroborating documents of receipt and disposition of substantial funds, the lack of precision or detail in his account and his demeanour in the witness box, I found the Respondent's oral evidence to be unreliable.
2. For the same reasons I am not satisfied the Respondent's (late filed) affidavit evidence is reliable.

Principles applicable to disclosure and non-disclosure

1. It is clear law and was not controversial in the proceedings that each of the parties have a duty to the other and the court to make full and frank disclosure of all relevant documents and information concerning their financial position and including, where relevant, substantial funds and property that the parties, or either of them, have had but no longer have. There must be some proportionality between the time, work and cost involved in chasing up, determining relevance and disclosing ancient documents on the one hand, and the extent of the funds or property concerned and the likely impact of the application of the funds or property to the current section 79 exercise. Not every transaction that has ever occurred requires an explanation or disclosure.
2. The duty of disclosure is a heavy burden, for good reason. That is particularly so in cases where there is some complexity to the financial structure and/or history of the parties asset and debt accumulation and the disposition of assets and/or discharge of debt during the relationship and afterwards until final hearing. This burden is particularly important where one party has knowledge and information about his or her or their financial affairs and the other does not have the information or ready access to it. Unless both parties provide all relevant documents and information concerning the parties assets and liabilities available for distribution at final hearing as well as how and when assets and liabilities arose or were disposed of, the other party and the court is hindered in determining what orders pursuant to section 79 of the Act are just and equitable.
3. The authorities[11] demonstrate that not only is there a duty on the parties to make full and frank disclosure of all relevant financial information but also that the failure to comply with that duty, may, mean that it is appropriate to deal with the remaining and known assets in a manner that is more generous to the innocent party at the expense of the non-disclosing party than would otherwise be the case.
4. The extent of that "more generous" adjustment in the case of non-disclosure must be proportionate as best as can be ascertained to what has not been, or may not have been disclosed. If it is clear or clear enough that the non-disclosure relates to minor or modest expenditure that where may have not been disclosed because of potential embarrassment about the destination of the funds, the adjustment is likely to be modest or even minor or none at all. Where the Court is satisfied the non-disclosure relates to substantial funds (in proportion to the remaining or known assets) then, if just and equitable, the court may be robust, and very robust, in favour of the innocent party in how the remaining or known funds or assets are dealt with.

1. The Applicant's Initiating Application and her Amended Initiating Application both asserted that the parties finally separated in August 2010. However, that separation was under the one roof. The Applicant also discloses that she had, back in 2012, applied for a divorce. The parties continued to both live, albeit separately, in the Suburb N property for many years. The Applicant's de facto partner, Mr Q, moved into that part of the Suburb N property that the parties occupied in or about 2015. The Applicant deposes, and I accept, that the Suburb N property was a "big home" and the parties were able to live separately in that property.
2. But strong financial links and joint exposure to debt remained. The parties continued to jointly own the Suburb N property. The parties continued to own the Suburb C and then they joined together to develop the Suburb C Property. They continued to be jointly responsible for the debt secured over that property. Their financial futures continued to be linked together and influenced by the manner in which each acquired, conserved or improved their jointly owned property or the property of either of them, until the 2025 sale of the Suburb C Property.
3. The parties lived separately, but both parties lived in the Suburb N property until April of 2021 when the Applicant and Mr Q, the Applicant's partner, moved out of the Suburb N property. They moved into one of the three units of the, by then completed, three unit development of the Suburb C Property.
4. As to her application for a divorce, the Applicant deposed as follows:
   1. On 6 February 2012, I filed an Application for Divorce. [Mr Raich] disputed the Divorce and I was required to give evidence about our separation. [Mr Raich] cross examined me. Magistrate O'Sullivan was not satisfied that we had been separated for 12 months and I understand this was because I had referred to "our" bank accounts, and to [Mr Raich] driving "my" car. At the time, we still had joint mortgage accounts. The Divorce was not granted, and my application was dismissed by Orders made on 19 June 2012. We are still not divorced.
5. I accept that evidence.
6. When the Applicant's solicitors first wrote about property settlement proceedings shortly before the issue of proceedings in 2023, the Applicant solicitors stated in that letter that the parties separated in 2012. I accept that the Applicant genuinely feels that the parties marriage relationship ended in August 2010 but in light of the findings of the Judge who heard the 2012 divorce application and the solicitor's letter, I am satisfied that the parties separated in the sense of their marriage relationship having broken down completely and irretrievably as a matter of law in about 2011, not 2010. However nothing turns on that point.
7. It is common ground that the parties first purchased their matrimonial property together in Suburb N shortly after their marriage in 1988. It is also common ground that the property in Suburb N was purchased, in part, using funds provided to the parties by the Respondent's father. However, the quantum of those funds is disputed. The Applicant says the Respondent's parents gave the parties $100,000 as a wedding gift, whereas the Respondent asserted that his father provided the parties $165,000 (the whole purchase price) to purchase the property.
8. The parties refinanced the Suburb N property (FMH) in or around 1993. It is the Applicant's case that she does not know how much money was then borrowed against the FMH or for what specific purpose as the Respondent controlled the finances. I accept that evidence. It is common ground that the parties lived and raised their children in the Suburb N property.
9. The Applicant's current partner, Mr Q, also moved to live in the Suburb N property in 2015.
10. At around this time, the Applicant says she became concerned regarding bills not being paid, and continued to raise with the Respondent the division of their assets and liabilities. Also around this time, the Applicant says that that the parties began receiving letters from the NAB regarding mortgage arrears for the Suburb N property. It is the Applicant's evidence that the Respondent was not contributing to the parties' liabilities at all at that time, and that she was forced to make the decision to access her superannuation in order to pay mortgage arrears for the Suburb N property. She deposed to, and I accept, withdrawing $16,031.87 on 10 December 2017, and $10,766.07 on 11 December 2018 to meet mortgage payments as well as pay for living expenses. I accept that evidence.
11. The parties then refinanced the Suburb N property on 13 December 2018, increasing the amount owing on the mortgage over that property to $643,385. That mortgage was not adequately serviced and on 13 August 2020, the lender sought possession of the Suburb N property. It is the Applicant's evidence that she had attempted to resist or forestall mortgagee possession, until the Respondent's promised "money coming from overseas" could alleviate the debt, by withdrawing again from her superannuation the sums of $15,791.72 on 10 December 2019, and $14,394.82 on 11 December 2020. I accept that evidence.

1. The end result was that, despite the Applicant's efforts, the Suburb N property was seized by the Sherriff, and the Respondent was required to, and did, vacate the property in about August 2022. I accept the Respondent continued to promise he would be able to keep the Suburb N property right up until the day he was required to vacate the Suburb N property. But that did not eventuate, and the Suburb N property was ultimately sold on behalf of the mortgagee in possession, in November 2022.

1. Of the approximately $434,755 remaining from the sale of the Suburb N property after the mortgage debt had been discharged, it is common ground that the Applicant received $261,532.88 and the Respondent received $170,000 in early 2023.
2. The Applicant asserts:
   1. It was agreed that I would have a greater share of the proceeds so that I could pay outstanding rates to [Region R] council of $13,944 and to reimburse [Mr Q] about $45,888 that [Mr Raich] had borrowed from him.
3. I accept that evidence.
4. The Respondent, who received $170,000 in January and February 2023, seeks that sum and the $261,000 the Respondent received from the Suburb N sale should be notionally added back to the pool and then counted back against each party. The Respondent's position does not account for the joint expenses the Applicant had to meet from her part. After "adding back" the $170,000 and the $261,000, a total of $431,000, the total pool should, the Respondent says, be divided 50/50. The effect of that case is that on account of that agreed distribution back in 2023 the Applicant would "owe" or have adjusted against her $45,500.
5. There is no evidence that the parties agreed or proceeded on the basis of the Suburb N funds received would be "added back" or treated as interim or partial property settlements. To the contrary the limited evidence suggests this was a distribution agreed on the basis of alleged pressing need at the time. I am not satisfied that it is just and equitable to now "add-back" those funds and treat the parties as if they still had those funds. Further, in all the circumstances, I am not satisfied the receipt of those funds requires any adjustment pursuant to section 75(2) of the Act.

1. The Applicant has paid a total $50,981 on legal fees to the date of the final hearing. Notionally it could be said that sum, or some of it, has come for the $261,000 she received from the Suburb N proceeds and some from her continuing wages received. There has been no attempt to differentiate what, if any, of the Applicant's $261,000 from the Suburb N proceeds has been applied to paid legal fees.
2. In the circumstances of the Respondent's non-disclosure and his failure to even roughly account for the hundreds of thousands that has passed through his hands and the inability of the resultant evidence to demonstrate that the Respondent does not have, or will not have, access to substantial funds not known to the court, I am not satisfied any part of the Applicant's paid legals should be "added back" and then counted against her.

1. The parties had purchased a property in Suburb C in 2003. Later down the track, while living unhappily and separately in the Suburb N property, in about 2016, the parties refinanced the mortgage over the Suburb C Property, borrowing a significant sum in order to develop three townhouses ('units') on that property. I accept that the Respondent did more of the work of arranging the finance and organising the builder than the Applicant. She continued to work in full-time employment, live modestly and apply her wages to her own support (she did not draw on joint funds or finance to do so) and also apply her wages to the parties joint debt to the extent she was able.
2. It is common ground that those townhouses were subsequently built and then inhabited by tenants. There is some controversy surrounding where those rental payments were directed. I am satisfied that to the extent the Applicant was able to collect and deal with the rent received she did so fastidiously and applied the funds to the mortgage liabilities. I am so satisfied because of the reliability of the Applicant's evidence and the apparent logic of events when she was the party drawing on her superannuation in an attempt to service debt and keep mortgagees at bay. To the extent the Respondent was involved in collecting rent from the properties I am not so satisfied.
3. At the time of the hearing, the Suburb C property had sold for $2.8 million. The costs incurred with the sale of the property was approximately $52,000 with outstanding land tax and rates of $18,166. Although no documentation was presented to the court of these figures in writing, counsel for the Applicant submitted that a statement from an accountant calculated a capital gains tax of $93,615 to the Applicant and $119,225 to the Respondent and there was no dispute as to those calculations.
4. Both parties were joint borrowers of the mortgage of approximately $1.4 million with the Applicant contending, and I accept, the Respondent oversaw all moneys with respect to that property. There was difficulty obtaining the loan of that amount from the bank, but nonetheless, the parties were successful in obtaining that loan.
5. The Respondent's case includes that the idea of the three townhouses on the Suburb C property land was his idea. The Applicant concedes the Respondent had the idea first but, she asserts, and I accept, that both of the parties were involved in the whole of the Suburb C Property exercise including the sharing of risk as to whether the development was profitable or not. Merely because something was a party's idea does not mean that party made a greater contribution than the other.

1. I repeat that there is an obligation on all parties to a proceeding, especially in a property proceeding, to provide each other full and frank disclosure that may be relevant to the proceedings.
2. The Applicant pressed that this obligation was not met by the Respondent and the relevant information that was able to be obtained was obtained through subpoena and by the Applicant "stumbling" across information while preparing the Suburb N property for sale.
3. When asked during cross-examination about why the relevant disclosure obligations were not met by the Respondent, he simply said these documents were unable to be located.

MR FUDIM: [Mr Raich], would you agree that so far you haven't provided [Ms Raich] with any documents in these proceedings related to your financial position?---

THE RESPONDENT: There's no document... in the car or whatever. Lost. Nothing.

MR FUDIM: So you agree that you ... haven't provided any documents to her?---

THE RESPONDENT: I haven't got any document, whatever it is.

1. However, I am not satisfied that the Respondent was unaware of his relevant transactions that had occurred. I am not satisfied that he was unable to obtain and communicate relevant information to the Applicant.
2. I am very troubled at the apparent lack of effort that the Respondent has gone to provide an account of what he did with the substantial funds that went through his hands. The Applicant did not challenge the assertion that at least some documents were lost in the alleged motor car episode. Even if some documents and records were lost in the motor car episode, I am not satisfied that is a sufficient explanation for the failure of the respondent to disclose relevant documents and information about his receipt of the funds and his disposition thereof. I am satisfied that the Applicant's diligence in seeking to clean and tidy up the Suburb N property before the mortgagee's sale was consistent with her many years of careful, diligent and hardworking contributions to the acquisition, conservation and improvement of the properties of the parties.
3. By the time the Sherriff took possession of the Suburb N property to facilitate the sale by the mortgagee, the Applicant had not lived in the Suburb N property for more than a year. The Respondent had been in continual possession. Despite this, the Applicant decided to clean up the property. Clearly not all documents were lost in the car episode as the Applicant discovered some documents when she attended the Respondent's room in the FMH to clean it prior to the mortgagee auction.
4. The Applicant deposed as follows:
   1. Prior to the forced sale of [Suburb N], I returned to the property to help clear and clean in anticipation of sale. When cleaning and clearing I found some paperwork indicating that [Mr Raich] had had access to funds including from the sale of shares, superannuation and a redundancy payment from [L Company]. This came as a complete shock to me as [Mr Raich] had consistently told me that he had "no money" to pay the mortgage arrears and "no money" to pay bills.
   2. I was cautious about releasing any more money. No agreement had been reached about [Suburb C]. [Mr Raich] placed increasing pressure on me to release the funds from the sale of [Suburb N], calling me up to 50 times a day and repeatedly pleading that if l gave him "his half' of the money he would "sign anything" to resolve our property matters. [Mr Raich] told me that he was homeless, that he needed money to buy a home, that he was living in his car and that he had nothing. [Mr Raich] promised that if I agreed to release funds, he would not ask for anything more. I am able to produce these messages to the Court if required.
   3. Ultimately, I agreed to release proceeds of the [Suburb N] sale to [Mr Raich], and these were divided as follows:

52.1.1 $125,000 on 23 January 2023; and

52.1.2 $136,532.88 on 2 February 2023

52.2.1 $120,000 on 23 January 2023; and

52.2.2 $50,000 on 2 February 2023.

1. It was agreed that I would have a greater share of the proceeds so that I could pay outstanding rates to [Region R] council of $13,944 and to reimburse [Mr Q] about $45,888 that [Mr Raich] had borrowed from him.
2. Despite receiving $170,000 between January and February 2023, [Mr Raich] continued to contact me relentlessly, pleading for money for food. [Mr Raich] again told me that he was homeless, dirty and smelly. He promised that if I gave him money it would be for the last time, that he would leave me alone, and divorce me. [Mr Raich]'s messages were desperate and I felt sorry for him. Since leaving [Suburb N] I have given [Mr Raich] more than $40,000. The deposits are summarised in Annexure "[MSR]-I". The source information is voluminous and the summary contained in Annexure [MSR]-1 is produced pursuant to section 50 of the Evidence Act 1995.

1. The Respondent was asked if he conceded to the fact that the Applicant had found relevant documents while preparing the Suburb N property for sale. The Respondent's evidence was blunt:

MR FUDIM: So you don't dispute that she may have found those documents?---

THE HUSBAND: She's not supposed to come to my room and search all this kind of thing there. That's what I said.

1. That oral evidence, together with the other evidence and the Respondent's demeanour, satisfies me that the Respondent had intended to keep the receipt and application of those funds secret.

1. The Applicant asserted as follows:
   1. We separated in or about 2010 but continued to live under the same roof in [Suburb N]. I opened my own account with the Commonwealth Bank. I also had a credit card. This was the first time I had had my own account, and I had to learn how to pay the gas bill, electricity bill, and water. The financial arrangement between us was one where I used my pay to buy food, to meet all expenses for the children and to pay for utilities where I could. I did not use internet banking. The mortgage accounts were still in joint names.
   2. After separation [Mr Raich] continued to work full time at [L Company] and was earning more than I was. He was meant to pay the mortgage on [Suburb N] ...

...

1. [Mr Raich] was still working, but he stopped paying the mortgage on [Suburb N], and started to complain that he did not have any money. He was driving a car registered to me, a [Motor Vehicle 1], and I started to receive speeding fines, which he refused to pay. I was bringing home about $750 each week, which was not enough, and I applied for additional credit cards with the Commonwealth Bank, ANZ and the [S Company]. If I did not have money to pay bills, I would use these cards.

1. It is the Respondent's case that his father had gifted to him and the parties a total sum of approximately $300,000 throughout the relationship. Further, the Respondent deposed asserted that his father:
   • provided $160,000 or $165,000, where the Applicant asserts this was $100,000 and as a wedding gift (to both of the parties) in 1988 and the Respondent was unable to recall if it was a gift; and
   • provided $31,000 a motor vehicle (Motor Vehicle 1) for the parties for $31,000 cash in 2001, which was then registered in the Applicant's name (this was not in dispute); and
   • gave the Respondent $20,000 in 2009 to renovate the Suburb N property; and
   • gave the Respondent funds to buy shares; and
   • paid $20,000 for carpets for the Suburb C townhouses; and
   • paid $8,000 for "worksafe" in regard to the Suburb C townhouses.
2. The Applicant asserted that the Respondent's father contributed $100,000 for the purchase of the Suburb N property, not $160,000, as a wedding gift to both of them. She conceded that the Respondent's father provided the funds to purchase Motor Vehicle 1 for $31,000. She says that she recalls the parties borrowing about $60,000 to complete the purchase of the Suburb N property. As for the other pressed gifts from the Respondent's father, the Applicant does not agree that there was further assistance from the Respondent father as far as she knew. The Applicant's case was that the Respondent oversaw the financials between the parties and that she was not aware of further contributions.

The Respondent doesn't remember how much it was

1. When asked in cross-examination about his $160,000 or $165,000 (100%) of the purchase price claim against the $100,000 plus a mortgage of about $60,000 claim (the Applicant's evidence) the Respondent said:

MR FUDIM: So you agree that there was $100,000 provided by your father, do you?---

THE RESPONDENT: Yes. My father always give me money.

MR FUDIM: Yes. And that sum was 100,000 wasn't it?---

THE RESPONDENT: I'm not sure about that one there.

MR FUDIM: And so you're not sure because it's been a long time, and you can't remember?---

THE RESPONDENT: Yes. Too long.

MR FUDIM: But you agree that it wasn't the full amount of money required to purchase the house?---

THE RESPONDENT: Yes. We borrowed from the bank. I think [U Bank].

MR FUDIM: You borrowed from the bank. And so it's true as well, that the evidence that my client gives at paragraph 17 of her affidavit, was that by about 1990 you paid off the mortgage in full? So a few years later?---

THE RESPONDENT: I can't recall the date. I know at one time we did got back of the ..... title. Yes, we did got back.

MR FUDIM: Yes. And that was one of the reasons she said she can remember that the mortgage was paid off, was because the title came back to your possession?---

THE RESPONDENT: Yes.[12]

1. Had the Respondent not made the $160,000 claim that might be seen as a proper concession. The problem for that is that no basis for the claim of $160,000 from his father has been provided. This prompt about face on a significant issue, combined with a concession of no actual memory of the amount leads me to conclude that was no proper basis to make that assertion. I cannot determine whether the $160,000 claim was made from recklessness and/or intention to exaggerate or only carelessness. But this circumstance of contradiction of the Applicant's evidence without an apparent proper basis in formal litigation, substantially undermines the reliability of the Respondent's evidence and his case.
2. When asked about a contribution of $20,000 from the Respondent's father for the renovation of the Suburb N property, the Applicant gave the following evidence:

MR SMITH: There was another 20,000 he provided to help renovate the [Suburb N] property, wasn't there?---

THE APPLICANT: I don't agree with that because I haven't really seen - he was just putting it on his - on his affidavit. But there was no proof that his father give him 20,000 for the renovation. As far as I know - - -

As far as I know, we have accumulated enough funds because [Mr Raich] has been buying shares. He even said to me at one time we can extend the house. No need to borrow money from the bank. So I don't agree that his father give us 20,000 because we do not need any money. Because we had enough.

1. When further pressed about funding for shares bought by the Respondent, the Applicant gave similar evidence.

MR SMITH: And do you accept that the money to buy the shares was provided by [Mr Raich]'s father?---

THE APPLICANT: No.

MR SMITH: How would you know that?---

THE APPLICANT: We both working. We don't have much mortgage. Between the two of us we have enough money. We have saved enough money that we do not need his father's money.

1. The Applicant's evidence was consistent when propositions were put to her of the funding from the Respondent's father. The Applicant's evidence had a verisimilitude about it. I am satisfied that the Respondent did control and oversee the financials between the parties because although there was no agreement, that was the arrangement the parties had during their relationship.
2. The evidential burden of proving a contentious fact lies with the person seeking to prove the fact. The Applicant demonstrated a sharp recollection of the events of the purchase of the parties first home in the new country for them and their family. Her evidence had a verisimilitude to it. The apparent logic of events demonstrates she has good reason to recall that significant purchase. It is unfortunate that this controversy was left to be resolved by competing accounts of recollection of events, competing credibility and different levels of reliability of evidence when there would exist in the records of what was the "Titles Office", a record of the extent of mortgage debt being impressed on the title to the Suburb N property. Of course, with the Respondent filing his evidence in chief only 6 working days before the first day of the trial time did not permit such a deep dive into historical record.
3. I repeat that I did not find the Respondent to be a reliable witness. I am satisfied the Appellant's evidence on this point was of an actual recollection, that the recollection was reasonably accurate and that the account of the recollection was unembroidered and genuine. I accept the Applicants evidence as to the $100,000 gift from the Husband's father that went towards the purchase of the Suburb N property, the first major purchase of the parties. I do not accept the Respondent's affidavit assertion that it was equivalent to the whole of the purchase price of $160,000.
4. Because of the unreliability of the Respondent's evidence, the Applicant's denial of the events and the lack of corroboration of these asserted facts, I do not accept the Respondent's assertions about:
   • $20,000 from his father in 2009 to renovate the Suburb N property; or
   • that his father gave the Respondent funds to buy shares; or
   • that his father paid $20,000 for carpets for the Suburb C Property; or
   • that his father paid $8,000 for "worksafe" in regard to the Suburb C Property.
5. Hence, I am satisfied that up to about 2017, when the torrent of secret money started to come in to the Respondent's bank accounts, that the Respondent's father was a generous man and his generosity included the $100,000 back in about 1988 and $31,000 for Motor Vehicle 1 in about 2001. I am not satisfied of the other alleged gifts.

1. The principle of Gosper means that party that received a gift from his or her parent and applied that sum to the purposes of the parties' marriage, with or without success, will be regarded as making a direct financial contribution of the funds of that gift for the purpose of section 79 if the Act. The principle of Kessey means that where a gift has come into the marriage from a parent, then absent the court accepting evidence to the contrary of the donor, that gift will be presumed to be a direct contribution of the child of the donor. Absent accepting evidence to the contrary, even if the gift was received into the joint names of the parties, the court is expected to presume that the gift was because of the donor's relationship with his or her child.
2. In this case the Applicant asserts her opinion, and I accept genuine opinion, that the $100,000 was a wedding gift to both of the parties. The fruit of the gift, the Suburb N property, was registered in the joint names of the parties. That is consistent with the Applicant's case. However there is no evidence of anything the donor said or did at the time of the gift. There is no evidence of how the payment of the gift was made, ie by transfer of cheque to both or only to the Respondent.
3. I do not accept the Respondent's mere assertion that this was a gift to him. His evidence is too unreliable to be accepted. The only objective fact that might found the drawing of an inference is the fact of the fruit of the gift being the title to the Suburb N property being in joint names. Of itself I am not satisfied that circumstance is such that I can draw a reliable inference that this was a gift to both. Despite the genuineness of the Applicant's recollection and opinion, I am not satisfied that the starting point of the Kessey position or presumption is overcome. Put another way I am not satisfied that the gift of $100,000 was a gift to both parties. I am satisfied that gift of $100,000 back in 1988 should be regarded as a direct contribution of the Respondent.
4. The same applies to the $31,000 gift that purchased Motor Vehicle 1 in 2001. It must be regarded as a direct contribution of the Respondent.

1. It is common ground the Respondent's father passed away approximately a year before the final hearing. It seems to be common ground that the Respondent's father was a wealthy man who owned a substantial business that operated throughout Country D. The Respondent compared the business as working from Melbourne to Sydney. Not international, but not a small trip either.
2. The Respondent was pressed about his father's will, and I was unable to ascertain what exactly was in the will or who was the executor (or like position) of the will. The Respondent gave further evidence that any inheritance he may receive will return back to his family in Country D. The Respondent's evidence was unconvincing and I was not satisfied his evidence is reliable on this issue. I am not satisfied the Respondent has done what he should to properly disclose whether or not he has, or will, receive further funds from his father's estate.
3. I am not satisfied the Respondent has made full and frank disclosure of his entitlement or potential entitlement from his father's estate. I am not satisfied that the Respondent will not benefit from that estate in the future.

March 2020: Respondent's $123,000 redundancy payment

1. The Applicant seeks, or had sought, that the Respondent's redundancy payment of his employment with L Company be added back into the pool. The payment, and conceded by the Respondent, was approximately $123,000 and was received in March of 2020. It is the Respondent's evidence that the redundancy payment went to unspecified loans that he owed and not to the mortgage repayments to the Suburb N property back in 2020.
2. It is the Applicant's case that the Respondent did not disclose anything about a redundancy payment to the Applicant and that she only came across such information when preparing the Suburb N property for sale. I accept that.
3. When asked in re-examination about where the redundancy payment went, the Respondent gave the following evidence:

MR SMITH: [Mr Raich], you said that you "spent the redundancy on all kinds of things", what things?---

THE RESPONDENT: I don't know, maybe I sent back the money to [Country D], and then I pay all my things there. I haven't got any work. That's the last money I have. And then from my accountant there, because it's a redundancy package, I don't pay any tax at all.

1. It is common ground that while the parties were separated, the Applicant would send money to the Respondent as she "felt sorry for him." Within her affidavit, the Applicant sets out the reasoning for her generosity of sending money to the Respondent, as well as the language the Respondent would use to coerce her into sending money to him:
   1. ... No agreement had been reached about [Suburb C]. [Mr Raich] placed increasing pressure on me to release the funds from the sale of [Suburb N], calling me up to 50 times a day and repeatedly pleading that if l gave him "his half' of the money he would "sign anything" to resolve our property matters. [Mr Raich] told me that he was homeless, that he needed money to buy a home, that he was living in his car and that he had nothing. [Mr Raich] promised that if I agreed to release funds, he would not ask for anything more.

...

1. Despite receiving $170,000 between January and February 2023, [Mr Raich] continued to contact me relentlessly, pleading for money for food. [Mr Raich] again told me that he was homeless, dirty and smelly. He promised that if I gave him money it would be for the last time, that he would leave me alone, and divorce me. [Mr Raich]'s messages were desperate and I felt sorry for him. Since leaving [Suburb N] I have given [Mr Raich] more than $40,000.

1. The Applicant sets out the transactions within her affidavit of MSR1 and the Respondent conceded that this amount of money ($40,000) had been sent to him. When asked if the Respondent agreed with such a summary, he deposed:

MR FUDIM: This is the annexure [that] summarises the payments that [Ms Raich] made to you, and you agree with this summary as well; is that correct?---

THE RESPONDENT: Yes. She give me the money, [I] ask for money. This what - I keep on asking money, and then she don't give me. I knock on the door and then they call policeman and call intervention order because of this, because asking for some money. I got no money. That's what this - since 19 January 2024, give me 200. Until now, not a single cent at all.

1. Further evidence was given by the Respondent regarding the return to Country D to attend his father's funeral. The Respondent's case is that he had no money when travelling to Country D and sought more money from the Applicant.

MR FUDIM: And you managed to fly to [Country D] without having any money. Is that right?---

THE RESPONDENT: Yes. My - I think my brother's friend borrow - pay the money for me to go funeral. And I sent the text to my son and [Ms Raich] that my father pass away, can you give me some money. They don't give me the money. The next day I receive it's a intervention order from the police. Oh, you're not supposed to send, you send. So I never send any more. Never send any more.

1. I accept the Applicant's evidence on this point. As a result of harassment, the Applicant's pleading and her kind and generous nature the Applicant gave the Respondent substantial funds in August and September 2021, then in 2023 and then again in 2024 in 24 different transactions that totalled $40,000. From the evidence of the substantial money the Applicant had received proximate to these receipts I am not satisfied the Respondent was actually in need of money at the time of the Suburb N property proceeds were released or in the period after that when the Applicant gave him the further $40,000. As stated later, because of the unreliability of the Respondent's evidence and the extent of the non-disclosure by the Respondent, I am unable to reach any conclusion about the Applicant's circumstances at that time.
2. But I am satisfied of the generosity of the Applicant.

1. It is the Applicant's case that the Respondent refinanced the Suburb N property in approximately 1993 in order to purchase shares. The Respondent agreed that he purchased shares in blue chip companies such as M Company and V Company but disagreed with the accusation that he refinanced the home for the purpose of purchasing these shares. The Respondent's case is that his father gifted him the money to be able to purchase these shares.
2. As previously stated in these reasons, the Respondent is a man with a university degree and who has worked in an area requiring skill and intelligence. The Respondent gave evidence that he would attend seminars to further educate himself on investments and shares and that the Applicant would not attend these seminars. The Respondent concedes that all share investments were done by him, even though some shares were in his name and same in the Applicant's name. He gave further evidence by a general assertion that the Applicant would have been unaware of any investments he made nor was she concerned with anything the Respondent did with these shares. I don't accept that opinion or evidence.
3. I accept the Applicant's evidence that she did not know about the sale of the shares and the spending or dissipation of the proceeds of sale. She never got the chance to know about the share sales.
4. Annexed to the Applicant's affidavit at MSR3 is an uncontroversial table of the sale of shares with W Company that were deposited into the Respondent's #...47 account between May 2017, through 2018 and up to June 2019. In that period the Respondent received about $106,000 from share sales. He received another $3,300 nine months later in March of 2020. The Applicant alleges she was unaware of these transactions and only obtained this information when she sought assistance from her accountant in 2017/18. Some of the shares that the Respondent sold were in the Applicant's name which incurred a $15,000 tax liability from the sale of the shares. She paid that liability. In total, $109,970 was deposited into the Respondent's account from the sale of shares.
5. The Respondent's evidence about how much money hit his account was unreliable. It was first the Respondent's case in cross-examination that the table of MSR3 was the total sale of those shares and did not take into account the relevant borrowings or deductions that had to be made upon the sale of those shares: therefore (he said) he did not see that total amount.

MR FUDIM: Having a look at that document, do you agree that those moneys that you received from the sale of the shares landed in your account?---

THE RESPONDENT: Because you said sale of the share of [W Company] so I think it's only 25 per cent lend my account. Because I sell the share and then I cannot withdraw the money, 25 per cent go to the margin lending. I got 25 per cent so I don't know about all this...

1. Helpfully, counsel provided a tender bundle of further particulars of the transactions of the Respondent's NAB accounts. With this helpful tender bundle, counsel cross-referenced MSR3 with further subpoenaed documents with the Respondent while in cross-examination. He suggested that MSR 3 was the correct figure that was deposited into the Respondent's NAB account after the secured borrowings or deductions had been made. After counsel pressed this issue with the Respondent, his evidence changed:

MR FUDIM: So you agree that those are all amounts that hit your bank already after deductions?---

THE RESPONDENT: Hit your bank but most - if I assume that [Ms Raich] own half, I own half so I - so not everything belong to me. Half belong to her, half belong to me.

MR FUDIM: So you're suggesting that if you received $5000 into your account, half of that belonged to [Ms Raich]?---

THE RESPONDENT: Because I don't [know] which share I'm selling now.

...

MR FUDIM: That money that went into that account, [Ms Raich] didn't get any of it, did she?---

THE RESPONDENT: No.

MR FUDIM: It was used by you?---

THE RESPONDENT: Yes. This - I bought all for my brother and sister to invest for her.

1. I don't accept the Respondent's evidence on this point. I accept that the sum of $109,970 of shares acquired during the relationship was deposited in the Respondent's bank account.

Respondent Superannuation[13] withdrawals

1. The Father deposes that he withdrew all his superannuation and that he had no superannuation entitlements left at the time of the final hearing.
2. It is clear enough, largely from subpoenaed documents, that the Respondent, without notice to the Applicant, withdrew and one way or another, managed to dispose of all of his superannuation. How much he disposed of is not entirely clear.
3. In addition it is common ground that the Father established a self-managed super fund with X Bank in the name of "Y Pty Ltd" ('the SMSF'). It is Applicant's case, and it was not disputed, that unbeknownst to her, this superfund was established and she only became aware of it when she stumbled across this information while cleaning the Suburb N property for sale. The Applicant caused her solicitor to subpoena X Bank which confirmed the existence of the SMSF.
4. The Applicant also tendered annexure MSR 2 which was a list of withdrawals from the Respondent's Super Fund 1 account to his NAB accounts ending #...47 & #...82. These transactions were not challenged by the Respondent. The Applicant received this information on subpoena. In total, there were 20 transactions for a sum of $349,412 in relation to the Respondent's Super Fund 1 account. In addition MSR-7 is a record of money being withdrawn from his Super Fund 1 and put back again.
5. The Respondent's case was:[14] ....

MR SMITH: He's going to say that these are transfers, just the super fund moving money between two separate accounts. So there's - - -

HIS HONOUR: So it's the same money going backwards and forwards..

1. The Respondent gave this evidence in chief about the Super Fund 1 record annexed as MSR-7 as follows:

MR SMITH: Thank you. All right. I'm going to take you - if the witness can be shown - - -

HIS HONOUR: This is [MSR]7.

MR SMITH: [MSR]7? Yes. I believe the page. Okay.

So, can you see - sorry, can you see, [Mr Raich], how on the front page it shows roll overs ..... and transfers in the amount of $940,000?---

And it says withdrawals in the amount of $998,000 or so?-

THE RESPONDENT: Yes.

MR SMITH: And if you go down to - well, if you go down into your statement, we have - a few pages down, we then have a list of transactions.

HIS HONOUR: Page 46 of 52. It's headed Transactions to Your Account During the Reporting Period?---

THE RESPONDENT: Yes, I .....

MR SMITH: See that?---

THE RESPONDENT: Yes. I know that.

MR SMITH: So do you see where, in September, it shows there's a - what it describes as a partial - sorry, 3 September rollover, $235,984. Do you see that?---

THE RESPONDENT: Yes.

MR SMITH: And you see 5 September, there's another - there's a partial payment of $250,000?---

THE RESPONDENT: Which page is that?

MR SMITH: Same page. Just a few - - -?---

THE RESPONDENT: 46, is it?

MR SMITH: No, no. Well, we're on page 46, yes?---

THE RESPONDENT: Yes, yes, yes. I know that.

MR SMITH: On 3 September, there's the roll-over from [Z Company], $235,984?---

THE RESPONDENT: Yes.

MR SMITH: And then there's the partial payment on 5 September, $250,000. Do you see that?---

THE RESPONDENT: Yes. Yes. Yes. I know that.

MR SMITH: See that?---

THE RESPONDENT: Yes.

MR SMITH: And if we go down, there's similar transactions in October? -

THE RESPONDENT: Yes.

MR SMITH: Do you see those?---

THE RESPONDENT: Yes, I know that.

MR SMITH: And you go on the next page, and there's similar transactions in November?---

THE RESPONDENT: Yes. I know that.

MR SMITH: And similar transactions in December?---

THE RESPONDENT: Yes, I know that.

MR SMITH: Yes. Can you tell his Honour what those transactions are all about?---

THE RESPONDENT: Yes. The way I know is, because when you're working ..... monitoring me, you're not ..... you go to a community fund all the time, okay? If I work, go to ..... when you're over 55, you can withdraw the money. The only way you withdraw the money is - I can withdraw whatever money when you're 67, in the - a community fund, okay? Because in order to withdraw, I have to remove this, whatever, any time in my super, I only got 260 to 300, okay? As you said in the judgment there, there's only $280,000 to withdraw there you say that, okay? And every time I withdraw, I move to the other side, then move ..... I withdraw 10 per cent, and the moment I withdraw, it go back to the original one. And ..... I do four times, 900 coming out. You understand? I consult - this ..... get the money, 10 per cent every time. So every time ..... reading of the statement is wrong, okay? For ..... transition to retirement, then you can withdraw 10 per cent. After withdraw that, the money go back to ..... because I'm still working. So the money go back there. And then the - the - the - the ..... you can do as many times as you like. At any time, you have to - you have to leave 90 per cent inside there. After withdraw, go back. Withdraw, go back. So - - -

1. The shambles of the Respondent's evidence and the extent of non-disclosure and the implausible assertions of poverty all combine to make the assertation of what superannuation the Respondent had, before the process of getting rid of it or disposing of it began, unreliable. However I am satisfied it would be an error to find that the MSR-7 amount was a balance of superannuation at any time. It is a record of deposits and withdrawals, not the balance. It is clear from MSR-7 that substantial funds were being withdrawn and then substantial funds deposited. Hence the total of withdrawals of MSR-7 ($998,249.97 at page 43 of 52) does not assist as to the total balance available to the Respondent before the emptying out the super fund process began. I use the term "emptying out" without any intended statement of the Respondent's intention. That is just what happened. But how much was once available?
2. Back in 2011 the Respondent had commenced and withdraw property proceedings. She deposed in these proceedings about what the parties had back then. At [26.5] she deposed:

26.5 [Mr Raich]'s superannuation, the value of which I did not then know, but which I now understand from subpoenaed documents to have been about $370,000;

1. The Respondent did not dispute this assertion. Nine years later the Respondent was retrenched and had in the meantime continued to be employed at about $80,000 per annum and with compulsory superannuation in the meantime. Hence the $370,000 figure is a solid enough base to work from. Hence the superannuation that would have been available to the Respondent at or about the time of his being made redundant in March 2020 would have been at least $370,000 plus whatever earnings the industry fund made plus the further compulsory contributions over the 8-9 years since the agreed or known position of $370,000.
2. The determination of just how much superannuation the Respondent would have had available had he not spent it or applied it elsewhere cannot, on the evidence, be accurately calculated. That is not the fault of the Applicant, but rather relates to the Respondent's conduct of the litigation and his lack of disclosure.
3. The Respondent asserts that apart from the extensive borrowings that the parties jointly made to fund the development of the Suburb C property (3 units) he had to spend about $200,000 from his funds towards that development. Without discovering the source documents, the Respondent lists[15] within his late filed trial affidavit expenses that add up to about $162,000. That there would have been additional expenses is consistent with the apparent logic of events. However the Respondents evidence and assertions are unreliable. But accepting them for the purpose of this exercise at face value that still leaves some hundreds of thousands of dollars unexplained.
4. The danger with this type of analysis, thrust upon the Court and upon the Applicant, by the Respondent's conduct of the litigation and failure to make full and frank disclosure is that guess work and speculation becomes involved. Nonetheless, the point must be had regard to that after the Respondent was retrenched in March 2020, putting aside the money from overseas/his family/his father, he otherwise did not have an income to live on. But he had superannuation, the redundancy payment and the $40,000 that he persuaded the Applicant to give him and the $170,000 from the proceeds of sale of the Suburb N Property.

1. It is common ground that the Father established a self-managed super fund with X Bank in the name of "Y Pty Ltd". It is Applicant's case that unbeknownst to her, this superfund was established and she only became aware of this when she stumbled across this information while cleaning the Suburb N property for sale. The Applicant caused her solicitor to subpoena X Bank which confirmed the existence of the SMSF. The Applicant alleges, and I accept that, this information was not provided and she was not made aware of this, prior to the return of the subpoena.
2. The Applicant deposed the following in her trial affidavit at:

58.1 On 8 January 2015 [Mr Raich] established a self-managed superannuation fund, [Y Pty Ltd], the Trustee for which is [Y Pty Ltd] ("the SMSF");

58.2 On 14 February 2015, $200,000 was rolled over from [Super Fund 1] to a [X Bank] Cash Management Account ending #[...]28 in the name [Y Pty Ltd] ("the [Y Pty Ltd] account");

58.3 On 11 March 2015 $300,000 was rolled over from [Super Fund 1] to the [Y Pty Ltd] Account

58.4 On 13 March 2015 $130,000 was transferred to "[AA Pty Ltd]";

58.5 On 20 June 2017 a deposit of $45,000 was received from [Super Fund 1];

58.6 On 5 July 2019 $30,000 was deposited from [Super Fund 1];

58.7 On 12 August 2019 $8,400 was withdrawn from the [Y Pty Ltd] account for what appears to me an international currency exchange;

58.8 Payments that appear to be share dividends were paid to the [Y Pty Ltd] account at various times;

58.9 On 29 December 2020 what appear to be the proceeds of share sales, totalling $18,517.06 were deposited to the [Y Pty Ltd] account;

58.10 There appear to be a number of credit card payments made, and payments to individuals including [BB] and [CC];

58.11 Since 30 December 2020 the balance of the [Y Pty Ltd] account has remained at $9.88.

1. The Respondent deposed that $130,000 of that money went towards the Suburb P property, $90,000 was used for the USA property and $200,000 went into the build of the Suburb C property. The Respondent also alleges he repaid a loan to a friend of approximately $50,000 from the money that was withdrawn from the SMSF. When asked about the friend's name in cross-examination, the Respondent said he did not know.
2. This accounts for approximately $470,000 of what was alleged to have been a total of $575,000 that was withdrawn on the Applicant's case.
3. I am not satisfied that the Respondent has given a full and frank account of what he did with these funds. It is possible some funds went towards the Suburb C three unit development.

Deposits from the Respondent's friends and family

1. As to unexplained receipt of funds and failure to disclose the Applicant asserted as follows at [56].
   1. By order dated 25 October 2023 [Mr Raich] was required to file responding material and to exchange financial information. I am informed by solicitor and believe that he has failed to comply with requests to provide information, including bank statements. I instructed my solicitor to issue subpoena to various financial institutions, and to [Super Fund 1].

Documents produced under subpoena indicate that between 2015 and 2023 [Mr Raich] has had access to significant funds, including during the time when the [Suburb N] mortgage was not being paid. Deposits, some of which are summarised in Annexures "[MSR]-2" to "[MSR]-5" herein have been deposited to accounts in [Mr Raich]'s sole control. The source information is voluminous and the summaries as contained in annexures are produced pursuant to section 50 of the Evidence Act 1995. The deposits include the following:

To National Bank Account ending# [...]47

56.1 Deposits from [Super Fund 1] between July 2019 and October 2020 totalling $280,815.66.

56.2 Sale of shares between 2017 and March 2020 to an estimated value of $107,940. In relation to these shares, some were in my name. I did not know that shares had been sold until I met with my Accountant in 2017/2018. I was then informed that I had a tax liability of $15,000. Thankfully, I was able to reduce this liability by entering into a payment plan with the Australian Taxation office;

56.3 Deposits from [E Law Firm] between 30 November 2017 and 7 March 2023 to a total of$ 809,758. I understand that the payments may represent proceeds from sale of overseas properties. I say this because in the context of clearing the [F Street] property for sale, I found a document from [E Law Firm] dated 23 February 2018 referring to [Mr Raich] as the vendor of a property at [G Street, Suburb H, Country D].

56.4 Payments of more than $130,000 from individuals, some of whom I know to be members of [Mr Raich]'s family, including:

56.4.1 [...] (this may be [Mr Raich]'s cousin);

56.4.2 [...] ( his sister);

56.4.3 [...]

56.4.4 [...]; and

56.4.5 [...].

56.5 Payments from [J Law Firm] totalling $84,385.97 received on 14 May 2018;

To National Australia Bank Ltd ending #[...]22

56.6 Payments from [Super Fund 1] between 26 June 2017 and 25 July 2018 of$ 68,596.77

56.7 Payments from [K Firm] between October 2020 and 2 March 2021 of$71,237.92; and

56.8 A payment of $77,900 on 20 October 2017 with reference to "Proceeds of overseas".

1. The Respondent had replied to [53] and [54] of the Applicant's affidavit in his late filed affidavit of evidence in chief, and then replied[16] to [56], recited above, as follows:
   1. Some of the funds that I received at paragraphs 56.1 to 56.8 was spent on living expenses, the funds that were transferred from [Country D] were not entirely mine and belong to my siblings. The amounts that I borrowed from my father's friends in [Country DD] were returned to them. Some loans that I borrowed were repaid and some were not. My father passed away in 2024. He told me to pay my siblings the amounts owed to them after the sale of the [Town EE] land. My siblings had a larger share of the sale of the land in [Country D]. I transferred some funds to my siblings and some on my father's instructions to his friends in [Country DD].
2. Hence the evidence of the Applicant's [56] and [56.1 - 56.8] is not disputed.
3. The Applicant also annexes at MSR5 deposits (identified through subpoena) into the Respondent's NAB accounts of money that she believes are from friends and family. The Applicant is able to identify two names within those deposits, being the Respondent's sister and cousin. The helpful table at MSR5 totals to approximately $147,852 that was available to the Respondent. This table was not controversial. The Respondent agrees with these transactions.[17]

HIS HONOUR: What was it, the investment?---

THE RESPONDENT: It's two blocks of land. Okay. And then the ASIC found out that land banking is banned in this area, and then he sell this property. I think the government took it back. And then he told me, I'm not sure, he told me, whatever the money have, when I got the money, I'll pay you back. I think he's been banned for 10 years, not allowed to speak on this banking property or this kind of thing.

1. It is the Respondent's case that in approximately August 2022 he became homeless and began to live in his car. He also, but vaguely, suggested that was for two years.
2. Annexure MSR-4 of the Applicant's affidavit show payments from E Law Firm from August 2022. The deposits the Respondent received into his account ending #...47 since the time of his apparent homelessness include the following:

1. This sum of $454,470 appears to be part of the undisputed $809,758 from his father.
2. The Respondent claimed to be homeless but had over $450,000 deposited into his NAB account in the next 6 months from one source alone. That is a most implausible account. It does not make sense. It was not suggested that this "live in the car business was false", but the Applicant made clear she did not accept his case on any point.
3. There was an aspect to the Applicant's evidence of, "...poor old me...". He also claimed the Applicant's de facto partner "owed" him $90,000 for rent for the time he lived at the Suburb N and Suburb C properties as the partner of the Applicant. It was somehow her fault that he lived in his car, that the documents were in the car and the car was destroyed, apparently after theft and recovery, but with the documents still within although it was never suggested that the Respondent ever at least told the Applicant to his "documents" being in the car.
4. I am not satisfied the Respondent lived in his car for any substantial period. How he had no money despite the flood of funds coursing through his accounts has not been satisfactorily explained.

1. It is common ground both parties withdrew from their superannuation balance following separation. At the time of the hearing, there was approximately $12,000 remaining in superannuation between the parties, that being the entirety of the Applicant's entitlements.
2. The Applicant's affidavit evidence did not describe the application of the whole of funds she received from the sale of the Suburb N property. However, after receiving instructions by his client, counsel for the Applicant submitted that $100,000 of those withdrawals were used as a gift to their adult son to buy a home. That evidence was not challenged. Counsel for the Applicant took me to the decision of C & C [1998] FamCA 143 ('C & C') where the Full Court picked up on and stated that:

45. Although it is not one of the Grounds of Appeal, we would also like to make the observation that we were troubled by her Honour adding back into the pool of assets the sum of $15,000 provided by the Applicant to A to enable her to place a deposit on a unit. The provision of modest amounts of capital by parents to their adult children to enable the children to get a start in life is a normal experience in our society. ...

1. This was a family with two substantial properties, one working, and the other with hundreds of thousands of dollars coursing through his accounts. In those circumstances the gift, or maybe be repaid one day gift/loan, from a parent to an adult child is a proper and perfectly normal sort of transfer that a parent or family in that situation could and perhaps should make. Had the gift been reported to the child as from both parents it would be difficult to see how any complaint could be made. It was only reported as from the Applicant. It was from only her resources. The corresponding, but larger, resource of the Respondent has just "gone" and like Clancy, "...we don't know where [it] are...". And the Respondent has not properly explained where those funds went.

The Applicant's interest in property in Country FF

1. On affidavit, the Applicant deposed to owning a small portion of agricultural land in the Country FF, alongside seven other owners of that land. The subject of the land in Country FF was the old family home that she deposes was in her mother's name who passed away in 1980. Her evidence was that the property is jointly owned by each of her siblings and not solely in her name. The Applicant's evidence is that she sent a total of $1200 to Country FF in small amounts.
2. I accept the Applicant's interest in the land and that any trade of her interest in her share of the property in Country FF would not be for a significant amount of money.

1. The Respondent alleges that the Applicant had sent substantial sums of money to Country FF throughout the relationship. In his outline of case, the Respondent sought that the Applicant should be regarded as having transferred approximately $90,000 to Country FF, and that this be added back to the pool of assets.
2. The Applicant's evidence is that she would send small amounts of money here and there of what she had available back to Country FF. She deposes that her sister would join her when transferring money, as well as the Respondent joining her on some occasions. Her evidence is that she would send money overseas for special occasions such as Christmas, birthdays and/or weddings.
3. It is the Applicant's case that money that was sent to Country FF by her was her money, and not money from a joint account. It was put to the Applicant that she would use funds from her credit card to send overseas and the Applicant denied that assertion. The Applicant gives evidence that the rules of how you send money overseas have changed, and I make no finding of that, however I accept the Applicant's evidence that the money sent overseas were not of large amounts and of only modest amounts she could afford at that time.
4. The Respondent also pressed that the Applicant also sent over $9,000 to Country FF to plant 'trees' and that the money should be added back to the pool. The Applicant concedes that some modest sums of money was sent over for the purpose of these trees. But I accept this was a most minor amount and should not be regarded as an asset. The irony, or injustice, of the Respondent seeking to have the "trees" counted as an asset against the Applicant when he has failed to satisfactorily account for hundreds of thousands of dollars, appears lost on the Respondent. I accept the Applicant's evidence and will regard the trees as de minimus.

CONCLUSION AS TO EXTENT OF FUNDS UNACCOUNTED FOR

1. These unaccounted for satisfactorily and/or not disclosed (in the sense that the application of the funds has not been properly disclosed) funds fall into two categories.
2. First those funds or assets that were contributed to by the parties over their joint lives together. Those funds include:
   • Proceeds of the sale of jointly owned shares of about $107,000 between 2017 and March 2020;[18] and
   • At least $370,000 of superannuation but likely more than that;
   • $122,000 of the March 2020 redundancy payment; and
   • $36,500 received from the Applicant between August 2021 and December 2023 and then a further $3,500 in January 2024;[19] and
   • The $170,000 received by agreement from the proceeds of sale of the Suburb N property.
3. Those funds totalled a bit over $800,000. The $40,000 referred to above and the $170,000 from the Suburb N proceeds received in January and February 2023 were received by the Respondent to do as he pleased with and in that sense, he would not be required to account for what he spent the funds on. Except, the Respondent claims to have been impoverished to such an extent that he had to live in his car and obtain the $40,000 from the Applicant.
4. The Applicant has continued to work and earn an income of approximately $75,000 and after tax the sum of $62,000 available to her.[20] Over the five years since the retrenchment of the Respondent, if the same disposable income is notionally regarded as a crude measure of reasonable expenditure on personal living expenses by the Respondent, that would account for about $300,000 of those funds and hence by that crude analysis some $500,000, at least, is unexplained. The Respondent alleges that of these funds, about $200,000 of these funds were for the Suburb C development that were in excess of the funds borrowed. He says he made some payment, but not all, in regard to the Suburb N property. Were I to accept the notional $300,000 claim as reasonable expenditure, that still leaves $500,000 of the $809,000 unexplained.
5. I am satisfied that some of these funds may have been applied to the Suburb C development.
6. It is not for the Applicant to disprove the vague and possible expenditure of funds raised. It is for the Respondent to make full and frank disclosure of his financial affairs, and where he has expended funds that would otherwise be available for distribution between the parties, to explain the application of those funds.
7. Second, those funds that were received after the end of the consortium vitae, or marriage relationship, or after separation. But the funds were received while the parties' financial futures were bound together by their joint debt and joint assets and hopes for benefit from the ownership of the Suburb N property and the development of the Suburb C property. Those funds include:
   • The payment of $77,500 on 20 October 2017 with reference "proceeds of overseas";[21]
   • The receipt of funds from E Law Firm between late November 2017 and early 2023 of a total of $809,758;[22]
   • The, more than, $130,000 from individuals;[23]
   • The payments from J Law Firm in the sum of $84,385.97;[24] and
   • The $71,237.92 received from K Firm between October 2020 and March 2021.[25]
8. The total of those funds is at least $1,270,000.[26]
9. The total of those funds that have gone through the Respondent's hands without satisfactory explanation or acceptable evidence was approximately $1,981,880 apart from any increase in his superannuation from 2011 until 2019. I have not included in these findings and calculations any amount in regard to the self-managed superannuation fund because I am not satisfied that the money in that fund did not come from the Super Fund 1 Industry Fund already taken into account. It may be that most of those transactions and funds come from money being moved in and out of the self-managed superfund as it was in the Industry Fund.
10. Mr Smith on behalf of the Respondent makes the point that the funds received from the Respondent's family should be regarded as a direct contribution by him in accordance with the orthodox Gosper and Kessey principles discussed above. I accept that point. However, at the time these funds were received the parties were engaged in the process of attempting to maintain the Suburb N property and develop the Suburb C property as well as support themselves.
11. The Applicant was scrimping and saving to attempt to meet the mortgage arrears on the Suburb N property, that the Respondent had agreed to pay himself, and the shortfall of debt payments on the Suburb C property. In 2017 she withdrew the sum of $16,000 from her superannuation to meet the Suburb N mortgage arrears and ongoing living expenses. About a year later she did the same thing when she withdrew $10,766 from her superannuation and applied the fund to the same purposes. Where she could, she made small additional payments to the Suburb N mortgage. In those circumstances, some small part of the funds from his family and/or inheritance and/or the sale of the overseas property that was given to him by his father, could have been applied to service the Suburb N mortgage and prevent it falling into arrears. And preventing the stress and grief of the mortgagee and/or the Sherrif taking possession and the resultant mortgagee sale. There is no evidence of any loss in the value received on the sale of the property from the fact that it was a mortgagee sale. But it is clear that interest and penalty interest and legal fees would have accrued. In those circumstances, the Respondent kept the money from his family to himself and let those events happen.
12. In those circumstances, some small part of the funds from his family and/or inheritance and/or the sale of the property that was said to have been given to him by his father, could and should have been applied to service the Suburb C Property mortgage and prevent it falling into arrears.
13. In those circumstances there was a moral obligation on the Respondent to assist the family fortunes by the application of the funds he had received, notwithstanding they were his property.

1. I refer to and adopt discussion of the law set out earlier in these reasons.

Step one: identify the property and liabilities

1. I turn now to step one of the preferred approach. This step coincides with the first stage of the Stanford directions. The Applicant's said to be joint list of assets and liabilities (from Outline of Case filed 21 August 2024) was as follows:

Commonwealth Bank Account ending #...60 (held jointly with Mr Q)

Add back - proceeds from sale of Country D properties

Add back - proceeds from sale of shares - W Company

Y Pty Ltd, including Real property held by SMSF - including land at Suburb P (Australia) x 2 and X Bank Account ending #...28

Funds transferred from Super Fund 1 to SMSF - Respondent

Add back - withdrawals from Super Fund 1 (to individual accounts) - Respondent

1. The Applicant had taken advice as to the likely income tax consequences on the sale of the Suburb C property. That real potential liability will crystalise when each party his or her annual tax return or when the ATO takes recovery action. I am satisfied that when the Applicant receives her property settlement in these proceedings she will, sensibly, file her tax return and pay whatever tax is assessed.
2. Those potential tax liabilities were said to be $93,615 for the Applicant and $119,255 for the Respondent. It was clear that the Respondent and those advising him had not turned their minds to the potential income tax consequences on the sale of the Suburb C property, but after having the opportunity to consider these calculations, there was no issue or dispute about those likely liabilities or the extent of them.
3. In his Outline of Case, filed a week before the final hearing, Respondent asserted the pool of assets and liabilities was as follows:

1. I do not accept either list of asset and liabilities.

1. I am satisfied the asset pool of assets that are known to exist now comes down to the items or issues discussed in the following passages. It is important to take account of the fact that the Respondent was in full-time employment until made redundant in March 2020.
2. As discussed with counsel, I was not prepared to accept the Applicant's estimate that her household full of furniture had a value of $10,000. I accept it might cost that sum to replace it with brand new stuff, but I was not satisfied that such an estimate would represent a current market value of the furniture and contents of the Applicant's home in the circumstance where no one allegers there is anything rare or valuable within the contents. Rather I take into account the Applicant has a useful and appropriate amount of furniture. I was not satisfied of the proper basis of the allegation of the value of the trees and regard them as nominal value. I was not satisfied that funds transferred to Country FF from time to time to assist her family in a developing country is an asset available for distribution to the parties. I was not satisfied that the Applicant's past statement of the funds in a bank account with her de facto represented a current balance and I am not satisfied a current balance or half of it ($518) should be included in the asset pool as the sum is de minimus in the circumstances_._
3. For the reasons described above I am not satisfied that the proceeds of sale each party received from the Suburb N sale should be included as part property settlements. Although listed in outlines of case, the Applicant's counsel asserted those assets simply remain where they were rather than be treated as a notional asset. I am satisfied that is appropriate and will take those sums into account as received but not treat them as if they exist. The $170,000 the Husband received is relevant in the context of the volume the money passing through his hands at the same time as his passionate statement of his poverty.
4. I am satisfied that that the Applicant's interest in the property in the developing country of her origin is worth something in the order of $1,200 as she asserts. I do not accept the Respondent's opinion as to the value of the property and in any event I do not accept that the whole of the value of the property can be attributed to the Applicant when it is undisputed she is 1 of 8 siblings who have a potential interest in that property.
5. In Outline of Case the Applicant had pressed for an add-back in regard to the Respondent's handling of the Respondent's Country D property or properties in the sum of $1,117,091 and an add-back for the sale of shares of W Company of $107,940 and an add-back of the redundancy payment received by the Respondent in the sum of $122,605. In this case I am not satisfied it is appropriate to simply "add back" those inadequately accounted for funds because of the unclear extent to which the Respondent may have needed to apply funds to the Suburb C property and to support himself. I discussed at the hearing whether it may be that the Respondent's handling of money is such that he could be described as a "bit of a duffer". Upon reflection I am unable to make that finding. That is partly because the Applicant does not press such a finding, partly because the Respondent does not press such a finding and mostly because of the significant inadequately explained and non-disclosed manner of dealing with the total sum of money described above that is in the order of $2,000,000, and about 1 ½ times the remaining or known net of tax assets.
6. Even if I allow the notional sum of $300,000 (roughly five years of about $60,000 net of tax per annum) as explained earlier there is still nearly $1.7 million not satisfactorily explained when the remaining pool of assets is only a bit over $1.2 million.
7. There was no issue in the proceedings that there was likely to be substantial income tax consequences for each parties as result of the Suburb C Property. The Applicant's solicitors have taken advice as to the extent of those liabilities and, although late in the piece, after learning of what the calculations were there was no dispute as to those calculations. It was common ground that those liabilities should be regarded as joint liabilities vernacular of section 79 cases as "off the top" rather than lying at the foot of either party.
8. The solicitors for the Respondent hold the sale proceeds of the Suburb C property on trust for the parties and I was informed that they were prepared to continue to do that on account of the expected liability of the Respondent until that is paid to the Australian Taxation Office ('ATO'), notwithstanding that they do not act for him. There was no objection taken to that sensible course when discussed, but I am not satisfied that the professional fees administering such a matter should lie at the feet of the Applicant, and therefore I have crafted an order that any such fee come from the Respondent's part of the property settlement that he is to receive.

Conclusion as to the "pool" without "add-backs".

1. Hence, re-ordered into assets to be divided and the Respondent's 'keep' and the Applicant's 'keep', the assets and liabilities of the parties are as follows:

Actual proceeds of sale of Suburb C property

The likely CGT ATO debt of the Applicant-

The likely CGT ATO debt of the Respondent-

Share in Country FF property,

($95,000 or $1,200)

1. Because of his non-disclosure and the unreliable nature of his evidence I am unable to find that the Respondent does not have other assets or financial resources available to him in the future. He may, or may not, have other substantial assets. His duty to the court and to the Applicant is to properly make a full and frank account, with corroborating documents, of his financial affairs and he hasn't done so.
2. In this case I am not satisfied it is just and equitable to notionally "add back" property disposed of or wasted or maybe, in part, hidden. I am satisfied it is more appropriate to take into account the substantial funds, both "inherited" and not, that have passed through his hands and not been properly accounted for and/or disclosed at the section 75(2) or third step analysis.
3. In addition there is the small balance in the bank account #...82 to be divided and closed.

Step two: section 79(4)(a), (b) & (c) contributions

1. The thrust of the authorities of the Full Court, which I endeavour to apply, is that all direct and indirect contributions, all financial and non-financial contributions, made long ago or made recently must be considered and had regard to in a holistic manner. I am assisted by the many statements of the Full Court of the Family Court of Australia and/or the Appeal Division of the Federal Circuit and Family Court of Australia Division One and for convenience both iterations of that appeal court will be referred to as "the Full Court"). Those statements include the following authorities.
2. In Hoffman & Hoffman [2014] FamCAFC 92; (2014) FLC 93-591 at [52], the Full Court observed:

[52] In each case, we consider that the point being made is that there is no principle or guideline (or, indeed, anything else emerging from s 79), that renders the direct contribution of income or capital more important - or "special" - when compared against indirect contributions and, in particular, contributions to the home or the welfare of the family.

1. I also follow the observations of the Full Court in Fields & Smith [2015] FamCAFC 57; (2015) FLC 93-638 where at [43], they observed:

[42] If it is necessary to make the point again, and to highlight it for the purpose of this appeal, we add our endorsement to what has been made clear in the authorities referred and to the Full Court's comments in [52] of Hoffman, that the words of s 79 do not provide endorsement for any category of contribution related to any class of property (for example, high wealth) being, by virtue of that category or class, more valuable or important that another. In each case the contributions made by the parties must be evaluated in the context of the facts particular to that case.

1. In assessing section 79(4) contributions, I apply Dickons & Dickons [2012] FamCAFC 154 ('Dickons') at [24], Hurst & Hurst [2018] FamCAFC 146; (2018) FLC 93-851 ('Hurst') at [23], Lovine & Connor and Anor (2012) FLC 93-515, [2012] FamCAFC 168 ('Lovine & Connor') at [40] to [42], and those passages are as follows.

[24] There can be little doubt that the classification of contributions by reference to terms such as "initial contributions", "contributions during the relationship", and "post-separation contributions", can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties' respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.

[23] The direct financial contribution of the Suburb C property by the Respondent some 14 years before trial is, of course, a significant direct financial contribution weighing in his favour (s 79(4)(a)) and her Honour correctly so found. But, as the authorities earlier cited make clear, a separate question within the assessment of contributions is, relevantly, the contributions made by both parties indirectly other than financially (s 79(4)(b)) and contributions to the welfare of the family including in the capacity of homemaker and parent (s 79(4)(c)).

[40] Contribution, either direct or indirect and financial or non-financial, to any of acquisition and/or conservation and/or improvement to property (whether or not such property has ceased to be held) or to the welfare of the family or children, falls for consideration. No order of priority is attached to individual elements. The evaluation occurs often, as in this case, with respect to such disparate kinds of contribution made over a substantial period. Such evaluation, having regard to its subject matter, inevitably involves value judgments and matters of impression.

[41] It follows that the assessment involves matters of estimation and is not, and cannot be, a mathematical exercise. No amount of devotion to mathematics is capable of transforming a discretionary exercise involving many component parts, each mostly unamenable to precise computation, into one of aggregating separately finely calculated components to reach an overall outcome.

1. I am mindful of the Full Court's observations in Dickons as recently restated in Benson & Drury [2020] FamCAFC 303, and although a case dealing with a "Kennon" claim, the observations of the Court are apposite. Those observations include the following:

[35] ... all contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one again the remainder.

[36] That principle has a counterpart in the application factors prescribed in section 75(2) or section 90SM(3) of the Act. Any adjustment to the parties contribution-based- entitlements should be determined inclusively after considering all relevant factors; not by aggregating incremental adjustment in respect of each relevant factor.

1. Hence, I must avoid, "the error of segmentation and the comparative of analysis of one feature of the evidence against all others".
2. It is clear that the terms of section 79(4) require that I take into account all contributions within the terms of section 79(4)(a),(b) and (c) whenever they were made, and that it is an error to give greater or lesser weight to any particular type of contribution. However, a contribution is not to be disregarded merely because it was made long ago. Further, as stated in Wallis & Manning [2017] FamCAFC 14; (2017) FLC 93-759 ('Wallis & Manning') at [105]:

The length of the marriage can be seen to be of considerable importance in the assessment of contributions.

1. Where assets have been inappropriately disposed of or damaged such as in Kowaliw & Kowaliw (1981) FLC- 91-092 and where the disposed of assets are not added back then the disposition or wasted of the assets, if appropriate can be had regard to at either the second contribution step or the third section 75(2) factor step. This is apparent from the observations of the Appellate division of the Court (Schonell J) in Manwaring v Emmerton (2025) 70 Fam LR 458, [2025] FedCFamC1A 20 at [30] & [31] where his Honour observed:

[30] ... the observations of the Full Court in Keskin & Keskin & Anor [2019] FamCAFC 236; (2019) FLC 93-932 are both apposite and instructive where their Honours observed:

1. ...The discretionary increase in the [respondent]'s proportional share of the spouses' property due to such dissipation could properly find expression in either the overall comparison of their contributions under s 79(4)(a)-(c) of the Act or as a factor under s 75(2) of the Act (see Trevi & Trevi [2018] FamCAFC 173; (2018) FLC 93-858 at [27]- [30]; Watson & Ling [2013] FamCA 57; (2013) FLC 93-527 at [30]- [33])...

1. This is a long marriage with a long period of post consortium vitae, or cohabitation as spouses contributions. In this case the financial activities of the parties are directly related to their previous relationship of living as man and wife. This is not a case where there was a financial or business relationship independent of the prior personal and marriage relationship of the parties. Further, they are not divorced. This is a case where I am satisfied that it is appropriate to take into account the whole of the parties' contributions from when they married in 1998 up until the final hearing. This is consistent with the chain of authority of the Family Law Act courts of Kowalski and Kowalski [1992] FamCA 54; (1993) FLC 92-342 and Sommerville & Sommerville (2000) FLC 93-042[30]. The Kessey gift to the Respondent of about $100,000 back in 1988 and the $31,000 for Motor Vehicle 1 are significant direct contributions on his behalf. I take those into account along with all the other contributions of the parties.
2. For the whole of the period from 1998 until the final hearing in 2025, the Applicant has worked long and hard, including within the home as homemaker and parent, and also for many years in full-time employment I am satisfied that save for the most minor amounts of funds appropriately sent to her family overseas, she has carefully applied all of the funds available to her for family purposes.
3. In cases of non-disclosure and/or a failure to properly account for a significant expenditure of funds, it is easy enough to be struck by the injustice to the other spouse of that non-disclosure and unexplained application of funds. This is such a case. That application of funds outside of the parameters of the marriage relationship and outside the purposes of the family commenced in about 2015 and became more pronounced from about 2017 as the Respondent received more funds and likely received the funds from his family or father, directly or indirectly. However, the many years of year after year of hard and diligent work of the Respondent in paid employment, including effectively extra work or overtime of additional work outside his usual employment (the tutoring) and his assistance to the Applicant with parenting also needs to be taken into account. The many, many years of the Respondent working long and hard is not set at naught because of his financial conduct from about 2015 onwards.
4. The Respondent's manner in dealing with the substantial funds that were in his power to deal with, that include the almost $1.2 million received from family or his father or from overseas as well as the roughly $800,000 received from dealing with assets and financial resources that were acquired by the parties during their marriage, from their hard work and diligence, is the antithesis of a good and proper or high quality endeavour of "acquisition, conservation and improvement" of the property of the parties or either of them. This manner of dealing with the funds available to him has some poignancy given how hard the Applicant continued to work in paid employment and attempted to meet as many of the liabilities as she could from her own salary while the Respondent dealt with a lot of money.
5. I take into account that the Respondent's concession that he received the substantial funds described in the Applicant's material (as outlined above) included the assertion that these were effectively gifts and or advance inheritance from his family and/or his father. That assertion was not challenged, and it is consistent with the apparent logic of events. It is unlikely and implausible that those substantial funds relate to the increase or multiplication or return on the funds that the Respondent had received and are described above as the first category (the superannuation, the share sales, the Suburb N proceeds received, the total of about $800,000 described above).
6. Hence, I am satisfied that the funds said by the Respondent to be received by his family or his father (some roughly $1,200,000) were funds that came from his father and/or family and hence should be regarded as a Gosper/ Kessey type direct contribution on his behalf. The Gosper/ Kessey contribution of about $1.2 million came in after the breakdown of the consortium vitae but while the parties were continuing joint financial endeavours that arose with their marriage relationship. The Applicant has made a modest indirect contribution to those assets received. This is not a Bonnici & Bonnici (1991) FLC 92-272 type situation, where the post separation inheritance or gift should be regarded as merely a separate asset of the recipient.
7. Further, those funds were the Respondent's own property and as demonstrated by the High Court decision in Stanford (described above) the Applicant did not automatically have an entitlement to any part of those funds merely by reason of many, many years of high-quality contribution pursuant to section 79(4) of the Act. If those funds had been wasted or dissipated, it was the Respondent's own funds that he was dissipating. Nonetheless in the circumstances of many years of high quality contributions that each of the parties had made to a substantial but still modest pool of joint funds and assets, and the looming mortgagee crisis, there was a moral and legal obligation upon the Respondent to conserve those assets and to account to his wife of many years, and to this court, for the expenditure. I am unable to be satisfied on the balance of probabilities that the funds have been dissipated or wasted. Likewise, I cannot be satisfied on the balance of probabilities that they have not been so dissipated or wasted. That resultant uncertainty is one of the vices of non-disclosure.
8. As to the remaining assets and liabilities identified at the stage one analysis, I am satisfied that the Applicant has made an overwhelming contribution by her careful conservation of assets compared to the opposite of that, being the extent to which jointly contributed assets have passed through the Respondent's hands.
9. Because of the inadequate disclosure and explanation, I am unable to conclude that the Respondent has made some bad investments and lost funds in attempting to make money as can be described in the general principle of "taking the rough with the smooth" or "swings and roundabouts" over a long marriage. That is the broad principles of Browne & Green [1999] FamCA 1483, (1999) FLC 82-873 ('Browne v Green & Green v Browne') are not applicable in this case. The evidence does not satisfy me that the Respondent has simply lost substantial funds in investments that turned out poorly. Though that may have occurred to some extent.
10. Although not the measure of many years of contribution and there being no resumption of equality of disparate contribution, I cross check my impressions and findings to look at what might have been so as not to lose track of proportionality of disparate contribution. Taking the pool as about $1,200,000 and only $500,000 of the $800,000 of jointly contributed assets that were through the Respondent's hands gives a notional figure of $1,700,000. If contribution was equal overall on a mathematical approach, each would then be regarded as "contributing" about $850,000 of the notional pool. That would be about 70% of the existing remaining pool.
11. The Applicant continued and continues in paid employment and has supported herself without recourse to jointly acquired funds. She worked long and hard as the principal homemaker and as a parent while working in paid employment. She has not drawn on debt facility or applied funds otherwise available for debt servicing to her own support. She provided substantial funds, otherwise available solely to her (the $40,000 indirectly from the Suburb N proceeds) to the Respondent when he nagged her and professed desperate need. She drew on her own superannuation to service debt. She attended the Suburb N property to clean it up and ready it for the mortgagee's sale. The Applicant over many, many years fully applied herself to the acquisition, conservation and improvement of the property of the parties, including in the long period after the break down of the consortium vitae from 2011 on. I take into account that both parties have had the use of the Suburb N property until 2021 and in the Respondent's case, 2022. I take into account that the Applicant had the use of a unit in the Suburb C Property from 2021 until the settlement of the sale in 2025 and the Respondent did not.
12. Although the extent of funds that have gone through the Respondent's hands and his extensive non-disclosure makes the assessment of section 79(4) contribution more difficult, I do not take into account the fact of that non-disclosure at this contribution stage of analysis. I do not notionally "add-back" any funds disposed of. The authorities direct me to take care not to inadvertently "double count" in two stages of analysis the same circumstance.
13. The early $100,000, a substantial sum back then, applied to the purchase of the Suburb N property, must be given weight and I do so. The gift of the funds for Motor Vehicle 1 must also be taken into account and I do so.

1. I am satisfied the Applicant should be regarded as making not quite twice or double the contribution (66.6%/33.3%) to those remaining assets as the Respondent but more than 1 ½ time (60%/40%) as the Respondent. The Applicant has worked hard and carefully conserved assets. The Respondent has worked hard but dissipated assets.
2. Taking all of those circumstances into account, I am satisfied that the Applicant should be regarded as making a substantially greater contribution to those remaining assets, as the Respondent. Expressed in percentage terms that is about 62.6% to the Applicant and 37.5% to the Respondent. That assesses the respective contributions to the remaining identifiable assets in dollar terms of $1,219,794 as about $702,372 to the Applicant and $457,422 to the Respondent and a disparity between them of about $305,000

Step three: section 75(2) factors

1. The Applicant is aged 67 years of age and continues in full-time paid employment. She has the support of a long term de facto or partner. Her diligence in maintaining full-time employment after 65 years of age is to be admired but realistically her full-time working life cannot continue for many years in the future. Further, for the reasons discussed above, I also note that she has no assets or resources save those discussed in this case.
2. The Respondent is aged 64 years and has not been employed in regular employment since he was retrenched in March 2020 at about 59 years of age. He has not re-partnered. He is well educated. Because of the inadequate disclosure of his financial affairs and the application of substantial funds that have passed through his hands, and because of the uncertainty of the potential for him to receive further funds from the estate of his father, and/or access or recover some of the funds that have passed through his hands, I cannot conclude that he will not receive or recover further funds in the future. I do not accept the substance of his case that all of those funds have simply "gone".
3. Care must be taken not to double count a factor within stage two, contributions, and stage three, section 75(2) factors. But section 75(2)(o) (recited above) requires that I take into account any other circumstance the justice of the case requires to be taken into account. It is at this point I take into account the failure of the Respondent to make full and frank disclosure and the extent to which jointly contributed assets and the Kessey type assets have not been accounted for. I take into account the possibility that the Respondent may benefit from his father's estate in the future.
4. The funds that have passed through his hands and not been adequately explained, that can be regarded as jointly contributed assets, amount to about $800,000. I take into account that the Respondent was retrenched in 2020 and needed some funds to live on. He needed to provide his own accommodation after 2022 when the Suburb N property was sold. Some funds may have been applied to the Suburb C Property. Even after taking those real needs into account there is a colossal sum of funds compared to the remaining known pool of assets, that can be regarded as being indirectly jointly contributed to, that is unaccounted for or not disclosed.
5. Further to the indirectly jointly contributed to funds there is the further roughly almost $1.2 million of funds from family, or his father, or from sale of land given to the Respondent that is unaccounted for, that is the application has not been properly disclosed.
6. Taking all of that into account and looking at the extent of the funds that has passed through the Respondent's hands without adequate explanation or disclosure, and the principles relating to division of property after non-disclosure, and taking into account the larger part of those funds were his own funds acquired after the breakdown of the consortium vitae, and taking account of the funds that are now able to be identified, I am satisfied that there should be a substantial adjustment on account of section 75(2) factors including section 75(2)(o), in favour of the Applicant and of 20% of the remaining known assets. That creates a disparity between the parties of 40% of the remaining assets on account of section 75(2) factors.
7. In money terms that is an adjustment from the assessment at the end of the contribution step of $243,959 (rounded), leading to a disparity on account section 75(2) factors and principally section 75(2)(o), of $487,718 (rounded).

1. The effect of those findings and conclusion means that the Applicant would receive 82.5%, being 62.5% on account of contribution plus 20% on account of section 75(2) factors, of the remaining proceeds of sale as well as retaining all of her modest superannuation that is left. The Respondent should receive 17.5% of the remaining identifiable assets.
2. The Applicant will retain her superannuation and overseas land that total about $12,664 and that sum is included in the total remaining net of tax asset sum of $1,219,794. Hence the proportion of the remaining funds held on trust that the parties should receive must take account of her retention of those assets. The Applicant should receive 82.5% of $1,219,794, that being $1,006,330 but less her retained assets of $12,664, being a sum of about $993,666. But there are some expenses of lawyers administering the funds on trust for the benefit of both parties to be deducted from those funds hence the actual sum available will be or may be a tad less than the $1,207,130 calculated as being left after tax. That compels a percentage conclusion. The sum of $993,666, as a proportion of the funds (after taxation) held on trust of $1,207,130 is about 82.31%, and I round down to 82.23%. This is a minor rounding in the Respondent's favour because the Applicant is receiving the bulk of the funds on trust and because I am comfortable that orders for the Respondent to end up with about $200,000 after the $10,592 of the Applicant's costs thrown away has been paid to her are just and equitable. That would mean the Respondent would receive 17.77% of the funds held on trust less some minor costs of administering those funds and his liability to the ATO and less costs thrown away.
3. The Respondent would receive about $214,507 of the proceeds of the sale of the Suburb C Property, but less some small lawyers fees of attempts to get the likely capital gains tax liability deducted from the pool to the ATO and less the $10,592 costs order made.
4. I now stand back and consider whether such an outcome is just and equitable in all of the circumstances. The end result is that the Applicant will retain about 82.5% of the total pool and the Respondent about 17.5%. The difference between the percentage share of the pool and the percentage share of the proceeds of the Suburb C Property is effectively modest superannuation that the Applicant retains and minor rounding. The Respondent will end up with about $203,913 ($214,507 less $10,592) less some lawyers fees. The Applicant will end up with the balance, or about $992,623 less some lawyers fees, or about $778,118 more than the Respondent of the remaining assets. As a proportion the Applicant will receives a bit more than 4 ½ times what the Respondent receives from the remaining funds.
5. That disparity takes into account that this property settlement takes into account that the Respondent has failed to make full and frank disclosure of the disposition of substantial assets received since about 2015, being about $800,000 of assets that notionally can be regarded as jointly contributed to and about $1.2 million that can be regarded as being the Respondent's separate gifts from his father and/or family. And those funds passed through the Respondent's hands at a time of serious financial need of the parties to service jointly acquired debt.
6. In all of those sad circumstances I am satisfied that orders to give effect to that division are just and equitable.
7. There remains the problem that the Respondent's hitherto failure to effectively participate in the proceedings unless assisted by lawyers appointed under section 102NA (that is at public expense), raises the risk that the application of funds held to be applied to the ATO may be thwarted by the Respondent's failure to lodge his tax return and/or a failure by the ATO to engage with the Applicants solicitors. As discussed with counsel I am not satisfied that holding those funds on trust situation should proceed indefinitely. Further, although the Applicant's solicitors will charge professional fees for her for the work and worry involved in attending to that, I am satisfied there should be a complete indemnity of those expenses and that those expenses or that indemnity should come from the Respondents roughly 17.77% of the funds held in trust.
8. Further in the event that the movement of those funds to the ATO has not occurred with 12 months would mean that the expected liability arising from the sale of the Suburb C property has not come to pass. In that circumstance the funds should be provided between the Applicant and the Respondent in the same proportions of the other funds, that is, 82.23% to the Applicant and 17.77% to the Respondent.
9. Further, given the manner in which the Respondent has attended to this litigation and his obligations of disclosure, I am not satisfied that the Respondent would cooperate with the Applicant's solicitors to give effect to these orders in a timely manner. Although the Respondent has not yet refused or neglected to comply with any direction to execute any necessary document or authority, I am satisfied that there is "other reason" to make such an order in accordance with section 106A of the Act. Section 106A is reproduced in Appendix 3 to these reasons.
10. Those are my reasons.

I certify that the preceding two hundred and thirty-three (233) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.

The Applicant relied upon the following documents:

• Outline of case filed 21 August 2024;
• Amended initiating application filed 19 February 2024;
• Affidavit of the Applicant filed 30 July 2024;
• Financial statement filed 30 July 2024;
• Notice to admit filed 12 August 2024; and
• Affidavit of Ms T filed 21 August 2024.

The Respondent relied upon the following documents:

• Outline of case filed 20 March 2025;
• Response to an initiating application filed 17 March 2025;
• Affidavit of the Respondent filed 17 March 2025; and
• Financial statement filed 17 March 2025.

Bundle of documents regarding agent commission, overdue rates and land tax

Section 106A Execution of instruments by order of court

(1) If:

(a) an order under this Act had directed a person to execute a deed or instrument; and

(b) that person has refused or neglected to comply with the direction or, for any other reason, the court considers it necessary to exercise the powers of the court under this subsection;

[1] Not the Suburb C property, rather the former matrimonial home in Suburb N, after a mortgagee had taken possession and was in the process of selling the property.

[2] After taking into account fees associated with the sale of the Suburb C property.

[3] This "keep" of $170,000 is entirely made up of the $170,000 of the proceeds of sale of the FMH.

[4] The figure understood and asserted by the Respondent to give effect to his 50/50 case.

[5] Also described herein as the former matrimonial home or FMH

[6] [1987] FamCA 43; (1987) FLC 91-818

[7] [1994] FamCA 162; (1994) FLC 92-495

[8] At final hearing the Suburb C property had been sold but the sale had not settled and the expected net proceeds of sale, without accounting for the inevitable vendor and purchaser adjustment of rates, was uncontroversially expected to be the similar sum of about $1,247,000

[9] For the purpose of the final hearing a likely figure of about $1,247,000 was referred to in discussions, see TP9

[10] Keskin continues to be applied and followed by the Appellate Division ('the Full Court') in Manwaring v Emmerton (2025) 70 Fam LR, [2025] FedCFamC1A 20, Schonell J, ('Manwaring') at [30]. But note that Manwaring was determined before the 10 June 2025 amendments to section 79 and section 76 of the Act. Although the Keskin point in Manwaring was not the four step approach but the "don't double count" issue and that dissipation of assets can be taken account of under contribution and section 79(4)(a)-(c) or under section 75(2) point.

[11] Including Weir & Weir [1992] FamCA 69; (1993) FLC 92-338, Black & Kellner [1992] FamCA 2; (1992) FLC 92-287 & Chang & Su [2002] FamCA 156; (2002) FLC 93-117

[12] It was clear this meant "I agree with those assertions".

[13] An Industry Fund and being an accumulation fund

[18] See paragraph 56.2 of the Wife's trial affidavit (recited above).

[19] See MSR-1 and the undisputed paragraph 54.

[20] Applicants financial statement filed 30 July 2024 and unchallenged in the proceedings.

[21] See paragraph 56.8 of the Applicant trial affidavit and not disputed in the Respondent's reply affidavit.

[22] See the not disputed paragraph 56.3 of the Applicant's trial affidavit.

[23] Other than the E Law Firm funds described at paragraph 56.4 of the Applicants affidavit which was not disputed by the Respondent in his reply affidavit.

[24] See paragraph 56.5 of the Applicant's trial affidavit and not disputed in the Respondent's reply affidavit.

[25] See paragraph 56.8 if the Applicant's trial affidavit and not disputed in the Respondent's reply affidavit.

[29] In addition there is the small balance in bank account #...82 to be divided in the same proportions as the proceeds held on trust and closed.

[30] A more detailed discussion of those principles is contained in Martoulis & Valas [2022] FedCFamC2F 1781.