Ruann & Pervez [2025] FedCFamC2F 929 (23 July 2025)

(na) 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. As at 5 October 2024, there is a current child support assessment that requires the husband to pay $5,361 per annum ($103.10 per week) to the wife. This represents an increase in the husband's assessed rate of child support payments from $1,566 for the period from 11 January 2024 to 1 September 2024 and $1,004 for the period from 2 September 2024 to 10 April 2025 under a previous child support assessment.
2. The wife submits that notwithstanding the most recent child support assessment increased the husband's assessed rate of child support, she still bears the greater burden of X's financial support given the husband's misrepresentations about his financial circumstances. Noting its previous findings, the Court accepts this submission.

(o) Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account

1. The Court is satisfied that the following issues are relevant:
   • firstly, the sales proceeds of the Suburb R property;
   • secondly, the husband's access to funds from T Pty Ltd;
   • thirdly, the Country K property;
   • fourthly, the husband's access to funds from his family and friends; and
   • fifthly, the husband's conduct during these proceedings.

1. As previously stated, the husband sold the Suburb R property in May 2018 for $1,863,000. He gives unchallenged evidence that he used a portion of the sales proceeds to pay off part of the mortgage on the Suburb P property and to discharge the mortgage on the Suburb R property.
2. The husband asserts he applied $811,500 from the sales proceeds towards the purchase of property from the third respondent. He further asserts to using the balance of the sales proceeds (being approximately $1,000,000) to pay "debts that I had incurred in [S Pty Ltd] and in savings for the purposes of further investments". During his cross-examination, he amended his evidence and asserted the money "went for the business and for work ... labour and everything" (Transcript, 13 November 2024, page 163).
3. The husband has not disclosed any evidence to support his contentions as to his use of these funds. The husband was cross-examined at length about this issue. His evidence on this issue was extremely unsatisfactory. When the proposition was put to him that he had not produced a financial statement for the financial year ending 2018 for S Pty Ltd ("the 2018 statement"), he asserted "there is no need to produce, because was going well" (Transcript, 13 November 2024, page 161). This was not only an unsatisfactory explanation for his non-disclosure but also directly contradicted his written and oral evidence that there were outstanding debts which needed to be repaid. When it was directly put to him that he had not produced evidence as to any alleged debts, he responded sarcastically - asking "How come I haven't produced" (Transcript, 13 November 2024, page 161).
4. A call was subsequently made for the financial statement for the year ending 2018 for S Pty Ltd. It was not answered. Counsel for the husband made the following submissions as to the failure to respond to the call (Transcript, 15 November 2024, page 254):

My friend specifically referred to the husband's failure to produce his 2018 tax return or the [S Pty Ltd] financial statements 5 for 2018. As I understand it, that was never specifically requested by the wife. It goes to an issue that arose during the relationship and, in my submission, the call was made it couldn't be responded to at the time and your Honour wouldn't make any findings in relation to that. In particular, in relation to the [S Pty Ltd] financial statements, the husband has provided to the wife the financial statements of [S Pty Ltd] 10 for 2019, 2020 and 2021, and so we would say he has complied with his disclosure obligations in that regard.

1. The Court does not accept this submission. The relevance of the 2018 statement was plain to all parties in circumstances where the wife argues the husband, in effect, retained the funds he asserts were applied towards S Pty Ltd. It was absurd for the husband to argue the wife did not need the 2018 statement given that she had the financial statements for the financial years ending 2019 through to 2021. It was equally illogical for him to argue that it was difficult to produce the 2018 statement when he had otherwise already produced the subsequent three statements.
2. The Court is satisfied the husband did not produce the 2018 statement because it did not support his contention that he either applied funds from the sale of the Suburb R property to S Pty Ltd to repay debts or that he otherwise loaned the funds to the company. The Court is further satisfied the husband has not tendered any evidence to support his contention that he applied funds to the purchase of property from the third respondent. The husband otherwise did not adduce any evidence of the so-called "further investments" he also asserted applying the funds toward. The Court is satisfied he did not produce such evidence because it does not exist or would not have assisted him. The Court is therefore satisfied and finds that the husband retained the approximate $1,000,000 remaining from the sales proceeds of the Suburb R property. In circumstances where those funds were undisputedly marital assets, this is a relevant consideration under this section.

1. As discussed earlier in these reasons, the wife unsuccessfully sought to have T Pty Ltd included on the balance sheet as an asset owned and/or controlled by the husband. Whilst the Court did not accept this argument, it made findings that T Pty Ltd is a "phoenix company" through which the business of S Pty Ltd continues to operate, and that the husband has received and/or has access to significant funds from T Pty Ltd. These are issues which are a relevant consideration under this section.
2. The husband concedes receiving funds from T Pty Ltd from his brother Mr LL and also by accessing funds from T Pty Ltd on his own accord using a company debit card. He also conceded Mr LL provided him with funds from T Pty Ltd to help pay for his extensive overseas travel and to provide to his wife, although he notes that the money sent to his wife is "not necessary from [T Pty Ltd]" (Transcript, 13 November 2024, page 186). The husband did not adduce any evidence to quantify the funds he received from T Pty Ltd nor to support his contention that he only used the company debit card to withdraw funds for work expenses. The Court also notes the husband could not explain why payments were made from the T Pty Ltd account ostensibly to pay for his wife's visa application, to his migration agent, to his legal representatives in these proceedings, or to the liquidator appointed by him for S Pty Ltd as set out in Exhibit "AW19". He did not adduce any evidence to contest the wife's contention these payments were made for his benefit. It is noted the husband did not call Mr LL to give evidence on these issues.
3. The Court cannot make precise findings as to the quantum of funds received by the husband. The wife tendered a schedule of withdrawals from the T Pty Ltd company account prepared in accordance with s.50 of the Evidence Act 1995 (Cth). She invites the Court to make a finding that the majority of these funds have been provided to the husband. The Court cannot make such a finding given Mr LL also has a company debit card and, on both parties' evidence, payments are ordinarily made in the construction industry in cash. Nevertheless, the Court is satisfied the husband has not disclosed evidence quantifying the funds he has received from T Pty Ltd. It is further satisfied that the evidence of Mr LL would not have assisted his case. Therefore, the Court finds the husband has received significant funds from T Pty Ltd exceeding those conceded by him or identified by the wife. It is also satisfied that there is no evidence before the Court which would suggest that the husband will stop receiving such funds so as long as the business operated by T Pty Ltd, and before it S Pty Ltd, remains operational.

1. There was some contention about the inclusion of the property owned by the husband in Country K on the balance sheet. As stated, the parties did not substantially address this issue in their submissions and, in any event, there was effectively no evidence about this property outside the husband's concession that he owned a property in Country K and that it was held beneficially for his father. Whilst the Court ultimately found it appropriate to include on the balance sheet with a value of "not known", it is satisfied the husband's ownership of this property is a relevant consideration under this section. The Court does not accept the husband's submissions as to the beneficial interest of his father or his own self-serving assertion that the property has no commercial value.

1. The husband concedes he has received financial support from his brothers - Mr LL, Mr SS, and Mr TT together with his friend Mr G. He submits they have helped him fund his extensive international travel. It is appropriate to note the Court has also found Mr LL to have provided significant funds to the husband through T Pty Ltd, and that Mr TT has permitted the husband to reside with him, when he is in Sydney, without paying rent. It is trite to say that the husband has not adduced evidence quantifying their financial support nor called any of them as witnesses. Whilst the Court cannot make a specific finding as to the quantum of funds they have provided to the husband, it is clear that this is a relevant consideration under this section.
2. The Court also notes the husband has not adduced any evidence as to the financial circumstances of his wife. Whilst the husband has provided funds to his wife, the Court has found that this occurred to satisfy the requirements of the wife's visa application. There is otherwise no evidence before this Court as to the wife's financial capacity except for the husband's concessions that she is in employment and "has money". As stated, the husband did not call his wife as a witness. The Court is satisfied her evidence would not have assisted the husband. The Court is therefore satisfied that any potential financial support provided by his wife is also a relevant consideration under this section.

1. The Court has made numerous findings as to the husband's inappropriate and problematic conduct during these proceedings. Many of these findings go to his disposal of matrimonial assets in an effort to frustrate the wife's application before this Court for a just and equitable division of the parties' property. This is most evident in the husband's blatant attempt to dispose of his interest in the second respondent which he accomplished with the assistance of Mr G & Ms H, and his successful disposal of S Pty Ltd. It is unnecessary for the Court to restate its findings on these issues nor set out the extraordinary breadth of the husband's dishonesty and disregard for this Court and its processes.
2. The Court is satisfied and finds that the husband's conduct unnecessarily extended the length of these proceedings and undermined the parties' ability to resolve the matter without the need for a final hearing, and judicial determination. This has resulted in the parties incurring further costs through additional legal fees, counsel/solicitor advocate's fees, the costs of further valuation reports, the costs of attending numerous interim hearings, and the wife's costs of issuing numerous subpoenas (together with legal costs associated with reviewing voluminous subpoena material). Most significantly, it has also increased the period which the wife has been denied the benefit of her share of the marital assets. It is undisputed that the wife and the children have resided in sub-optimal conditions post-separation and pending the finalisation of these proceedings. The Court is satisfied this is a relevant consideration under this subsection.
3. Otherwise, there are no other factors which the justice of the case requires to be taken into account that have not been discussed previously in this decision.

(p) The terms of any financial agreement that is binding on the parties to the marriage

1. This consideration is not relevant to this dispute.

(q) The terms of any Part VIIIAB financial agreement that is binding on a party to the marriage

1. This consideration is not relevant to this dispute.

Section 79(4)(f): any other order made under this Act affecting a party to the marriage or a child of the marriage

1. This consideration is not relevant to this dispute.

Section 79(4)(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. As previously stated, the Court is satisfied and finds that the husband has, effectively, underreported his income such that his child support liability is disproportionate to his true level of income. I otherwise refer to previous comments.

1. Having considered the available evidence in light of the relevant statutory criteria I find that the wife should benefit from a significant adjustment in her favour for s.75(2) and related factors. I find that an adjustment of 45% should be made to the wife.
2. The wife has the sole care of the parties' youngest child, X. There is no dispute that X's needs are significant and costly. His care makes enormous demands of the wife's time and financial resources, in circumstances where she also gives unchallenged evidence about her care responsibilities for her mother. The husband submits the Court should place little weight on this in circumstances where he argues the wife, effectively, should be able to find flexible employment and where the costs of X's care are met by the National Disability Insurance Scheme. The Court respectfully rejects these submissions. It is plain the husband has not grappled with the wife's detailed and conscientious evidence about X's care requirements. She deposed clearly to the out-of-pocket expenses she cannot afford to provide X such as short holidays or supervised outings. She was also clear in her evidence that whilst X does ordinarily attend school during the day, she is still required to be available in case he needs to go home early or is otherwise unable to stay at school for the entire day. As stated, the wife's evidence on these issues was not challenged. The husband also failed to acknowledge the higher parenting contributions the wife will continue to make into the future, noting X will not reach majority until 2031 and that, in any event, it appears likely he will continue to reside with the wife into adulthood. Whilst the husband pays child support in line with the most recent child support assessment it is minimal noting the Court's findings as to his undisclosed income and access to funds. Outside of this obligation, it is clear the husband is financially responsible for no one other than himself, and his new wife.
3. The adjustment of 45% to the wife (relative to the known net asset pool) also takes into account the issues raised pursuant to s.75(2)(o) of the Act which need not be restated. The Court has found the husband's evidence to have been utterly unreliable. His non-disclosure was so pervasive and significant that the Court cannot make findings as to the application or whereabouts of funds in the husband's sole control or the value of property in his sole control except to say that, on the available evidence, they are proximate or greater than the amount to be received by the wife pursuant to these orders.
4. Having considered the available evidence in light of the relevant statutory criteria I am therefore persuaded that an adjustment of 100% of the known net asset pool in the wife's favour is appropriate.
5. The Court finds accordingly.

1. Given the statutory criteria and the above determinations, there will be a final settlement of matrimonial property that will divide the net property pool (valued at $2,607,653.83) 100% to the wife.
2. This will result in a distribution of the assets (with a total net value of $2,607,653.83) of which $165,500.87 is controlled by the wife and $2,424,282.44 which is controlled to the husband. Therefore, to affect a 100% notional distribution of the assets, the husband will be required to pay the wife the sum of $2,442,153[24]. The following table represents this distribution:

Funds transferred by cheque to Mr G & Ms H on 6 July 2022

1. There will be a further order that, subject to any order to the contrary, the parties will retain all property including personal property, superannuation, savings in bank accounts and such held in their sole names or in their respective possessions. Similarly, there will be an order for each party to be solely liable for and indemnify the other against any personal liabilities.
2. The wife sought an order providing for the Town D property to be sold in the event of default which the husband did not address. Given the Court's findings as to the husband's frequent noncompliance with orders of this Court, it is satisfied that it is appropriate to make such an order. That said, the wife's proposed minute of order was unfortunately of limited assistance to the Court and orders have been made merely reflecting the wife's proposed minute. There will also be an order, pursuant to s.106A of the Act, to take effect in the event of default in signing any documentation required by the orders. Orders will also be made directing the wife to remove her caveat on the property (in the event the husband pays the settlement sum) and for both caveats to be removed (in the event the Town D property must be sold).
3. The Court acknowledges that a capital gains tax liability will likely arise in the event the default order for the Town D property to be sold comes into effect. The husband raised this issue during his cross-examination of Mr BB but otherwise did not propose any specific order be made and, as stated, made no submissions as to this issue. The third respondent, as previously stated, did not participate in the final hearing which proceeded undefended against them. It is not the Court's role to run the parties' cases for them. Despite the obvious fact that a capital gains tax liability will likely arise in the event of default, none of the parties addressed this in their submissions, and the Court will make no orders accounting for this.
4. I note that the wife sought her costs of these proceedings, and the costs of earlier interim proceedings reserved to this final hearing. In the event that any party still presses their application for costs, they will be required to file an Application in a Proceeding within 28 days.
5. For all these reasons the Orders of the Court will be as set out at the commencement of these reasons for judgment. Given the factors to which I have referred, I state again that I am satisfied that the Orders made are just and equitable.

I certify that the preceding two hundred and twenty-nine (229) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Monahan.

1. That, within 42 days from the date of these order, the Applicant Wife (Wife) receive 70% of the net asset pool of the parties, and the First Respondent Husband (Husband) receive 30%.
2. To the extent that it is found that the joint venture agreement between B Pty Ltd and C Pty Ltd dated December 2018 has not already been terminated, it be set aside pursuant to s 106B of the Family Law Act 1975 (Cth).
3. That, in circumstances where the Husband cannot pay the Wife a cash sum such that she obtains 70% of the net asset pool in accordance with order 1 herein, within a further 21 days, from the date of these Orders, B Pty Ltd and C Pty Ltd do all things and sign all documents necessary to sell the Town D Properties for sale by public auction and for that purpose the following shall apply:

(a) The Town D Properties shall be listed for sale with such real estate agent as is agreed between B Pty Ltd and C Pty Ltd, but failing agreement, as nominated by the Real Estate Institute of NSW (REINSW).

(b) B Pty Ltd and C Pty Ltd will cooperate in every way with the real estate agent in relation to the marketing of the Town D properties for sale including making the key readily available, allowing inspection of the Town D Properties at all times reasonably requested by the agent and ensuring that the Town D Properties are clean, neat and in good order at the time of inspection by any prospective buyer.

(c) B Pty Ltd and C Pty Ltd will do all acts and things and sign all documents necessary to instruct Finn Roache Lawyers to act on the sale of the Town D Properties.

(d) The reserve price shall be nominated by Mr CC of UU Company, valuer, with B Pty Ltd and C Pty Ltd to meet equally the costs of Mr CC in determining the reserve price of the auction.

(e) In the event that the Town D Properties is not sold at auction or by private negotiation after auction, or before auction within three months after the said auction, then B Pty Ltd and C Pty Ltd shall do all acts and sign all necessary documents and shall pay any necessary monies equally to procure a second auction within a further five (5) weeks of the date otherwise upon the sale terms and conditions as applied to the first auction.

(f) That, on settlement of the Town D Property, the proceeds of the sale be disbursed in the following order:

(i) Pay the agent's commission, advertising and marketing costs and legal and conveyancing costs of the sale;

(ii) Pay the outstanding home loans, mortgages and fees in respect of the Town D property;

(iii) In payment in adjustment of any adjustments on settlement; and

(iv) Pay to C Pty Ltd 50% of the balance of the proceeds of sale; and

(v) Pay to the Wife a sum such that she obtains 70% of the net matrimonial asset pool.

(vi) Pay to the Wife a further sum of $40,956.38 on account of the Centrelink Debt referred to at order 2 herein.

(vii) The balance to the Husband.

1. That, to give effect to order 4 herein, the Wife and C Pty Ltd provide a signed withdrawals of caveat within 7 days prior to the settlement of the sale of the Town D Properties.
2. That any CGT payable in respect of the Town D Properties be borne by C Pty Ltd and B Pty Ltd to the exclusion of the Wife.
3. In the alternative, that if the Court is unable to determine the value of the asset pool, due to the Husband's non-disclosure, such further or other order as the Court thinks fit.
4. That the Husband pay the Wife's costs of these proceedings.

Husband's Response to Initiating Application field 31 May 2022

1. That the Respondent Husband (Husband) receive 50% of the net asset pool of the parties and the Applicant Wife (Wife) receive 50%.

[1] The final hearing of this matter occurred before the commencement of the Family Law Amendment Act 2024 (Cth).

[2] Also see s.79AA(10)(b) of the Act which is relevant to the second and third respondents.

[3] In the Marriage of Crapp and Crapp (No 2) [1979] FamCA 17; (1979) 5 Fam LR 47 at 61 (per Fogarty J; Pawley and Dovey JJ agreeing).

[4] Warne & Warne [1982] FamCA 33; (1982) 8 Fam LR 388 at 389 (Simpson J; Strauss and Hase JJ agreeing); also see Omancini & Omancini [2005] FamCAFC 104; (2005) 33 Fam LR 134 at 142 (Holden, Warnick and Le Poer Trench JJ).

[5] As discussed in the cases of In the Marriage of Briese [1985] FamCA 23; (1985) 10 Fam LR 642; [1986] FLC 91-713 and Oriolo v Oriolo [1985] FamCA 54; (1985) 10 Fam LR 665; [1985] FLC 91-653.

[6] See regulation 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

[7] Guinti and Giunti [1986] FamCA 15; (1986) 11 Fam LR 160 at 165; [1986] FamCA 15; [1986] FLC 91-759 at 75,555.

[8] Guinti and Giunti [1986] FamCA 15; (1986) 11 Fam LR 160 at 165; [1986] FamCA 15; [1986] FLC 91-759 at 75,555.

[9] In the Marriage of Briese [1985] FamCA 23; (1986) FLC 91-713 at 75,181.

[10] Oriolo v Oriolo [1985] FamCA 54; (1985) FLC 91-653 at 80,256-7.

[11] Oriolo v Oriolo [1985] FamCA 54; (1985) FLC 91-653 at 80,256.

[12] In the Marriage of Briese [1985] FamCA 23; (1986) FLC 91-713 at 75,180-1.

[13] Black & Kellner [1992] FamCA 2; (1992) 15 Fam LR 343 at 347.

[14] Black & Kellner [1992] FamCA 2; (1992) 15 Fam LR 343 at 348.

[15] Weir & Weir [1992] FamCA 69; (1992) 16 Fam LR 154 at 159.

[16] Limitation Act 1969 (NSW) s 14

[17] Limitation Act 1969 (NSW) s 54.

[18] Rockman & Rockman [2014] FCCA 1966 at [127].

[19] Rockman & Rockman [2014] FCCA 1966 at [132]. Also see C & C [1998] FamCA 143; M & M [1998] FamCA 42; NHC & RCH [2004] FamCA 633; [2004] FLC 93-204.

[20] In the Marriage of Olliver [1978] FamCA 24; (1978) 4 Fam LR 360; (1978) FLC 90-499.

[21] In the Marriage of Ferraro (1992)16 Fam LR 1; (1993) FLC 92-335.

[22] [1997] FamCA 27; 22 Fam LR 1 at p 24.

[23] [1997] FamCA 27; 22 Fam LR 1 at p 24.

[24] This sum being rounded up from $2,442,152.96.