Stanford v Stanford

1. Within twenty eight (28) days of the date of this Order, the respondent is to produce to the applicant the following documents:

(a) original account statements for C Credit Card ending ...05 and ANZ Visa Card ending ...11 in the respondent's name and the E Pty Ltd trade account for B Pty Ltd for the financial years ended 30 June 2014 to date (being the correspondence period of review sought by the respondent in the order of 18 July 2022); > > (b) accounting journals and working papers evidencing payments made to the aforesaid credit card statements and trade accounts by any of the entities listed in order 11 of Orders made 30 November 2020; > > (c) bank statements for the account in his name for ANZ Bank account ending ...37 for the period 25 May 2021 to the date of this order; > > (d) copies of reports that the respondent has made to the Australian Taxation Office in respect of any entity listed in order 11 of Orders made 30 November 2020, for the period 20 April 2020 to date; > > (e) statements for ANZ Frequent Flyer account ending ...11 in the respondent's name for the period 17 January 2022 to date; > > (f) statements for C Credit Card credit card ending ...05 in the respondent's name for the period 25 September 2022 to date; > > (g) the respondent's ATO/MyGov Income Tax Portal Statements for the period 1 July 2019 to date; > > (h) the respondent's ATO/MyGov Employment Income Statement for the period 1 July 2019 to date; > > (i) the respondent's ATO/MyGov Superannuation Portal Statement for the period 1 July 2019 to date; > > (j) the respondent's personal taxation returns for the financial year ended 30 June 2022; > > (k) tax returns and financial statements for D Pty Ltd for the financial year ended 30 June 2022; and > > (l) tax returns and financial statements for F Pty Ltd and The Sartre Family Trust for the financial years ended 30 June 2021 and 30 June 2022.

2. Within 28 days of the date of this Order, each party file and serve a statement setting out the costs incurred to that date and from what source those funds have been paid and what costs are expected to be incurred until the completion of the proceedings.
3. Within fourteen (14) days of the date of this Order, the parties shall cause to be executed a joint letter of instruction to G Valuers requesting the valuation report in respect of property at H Street, Suburb J ("the Suburb J property") dated early 2021, to be updated to reflect the current market value of the property, with costs to be paid by the respondent in the first instance.
4. Within twenty eight (28) days of the date of this Order, the parties will do all such things necessary to instruct K Pty Ltd and Mr L, finance professional, to finalise and lodge all taxation returns and financial statements for B6 Pty Ltd as trustee for the Mr Sartre and Ms Henschel Family Trust or, provided that if K Pty Ltd and Mr L are not able to finalise the financial statements and taxation returns, then the parties shall seek a report as to why their instructions are not able to be carried out.
5. The respondent shall provide 7 days' notice of her intention to sell and/or dispose of any assets of B6 Pty Ltd as trustee for the Mr Sartre and Ms Henschel Family Trust to the respondent and upon the sale or disposal of any assets, shall forthwith provide documents in respect of any sale or disposal and advise as to the amount that may be received upon sale or disposal and the account in to which money received has been deposited.
6. Any sale proceeds consequent upon the sale or disposal of the assets of B6 Pty Ltd as trustee for the Mr Sartre and Ms Henschel Family Trust, shall first be used for the payment of farm property expenses and outgoings and any documents pertaining to such expenditure, shall be forthwith produced to the respondent.
7. Providing that the respondent shall not attend the premises at N Street, O Town ("the O Town property") on more than one (1) occasion in each calendar month, the applicant will do all acts and things necessary to facilitate the respondents attendance at the property, providing that it shall occur on such dates and such times as the applicant will be residing in Sydney, with the respondent to provide twenty four (24) hours' notice of his intention to attend.
8. Within twenty eight (28) days of the date of this Order, if not already provided, the applicant provide to the respondent by way of disclosure, the following documents as requested in the correspondence from ATW Family Law to the applicant dated 18 October 2022 and 29 November 2022 as follows:

(a) personal Taxation Returns for financial years ending 30 June 2016 to 30 June 2020; > > (b) payslips with respect to the applicant's employment with P Company for the period 26 November 2020 to November 2021; > > (c) land tax assessment notices in relation to the apartment at Q Street, Suburb R; > > (d) un-redacted invoices in respect of the sale, purchase or disposal of any livestock held by B6 Pty Ltd as trustee for the Mr Sartre and Ms Henschel Family Trust; and > > (e) with respect to S Pty Ltd: > > > (i) general ledgers for the period 1 July 2020 to 30 June 2022; and > > > > (ii) statements for NAB Account ending ...07 for the period 30 July 2022 to date.

9. Within ninety (90) days of the date of this Order, the respondent do pay to an account nominated by the applicant, the sum of TWO HUNDRED AND FIFTY THOUSAND DOLLARS ($250,000) by way of partial settlement of property.
10. The Further Amended Application in a Proceeding sealed 6 December 2022 and the Amended Response to an Application in a Proceeding sealed 5 December 2022, be otherwise dismissed.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Henschel & Sartre has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1. Ms Henschel ("the applicant") and Mr Sartre ("the respondent") are unable to reach agreement in respect of property settlement and division.
2. By Orders made 8 December 2022, the proceedings are adjourned for a first day hearing on 28 February 2023. The parties understand that before a trial date can be allocated, the Court will need to be satisfied that the legal and equitable interests' of the parties are either agreed as to value or, that by the proposed date of any final hearing, evidence will be available to make a determination as to value.
3. Orders were made on 7 October 2020 that required the parties to appoint a single expert to value their separate and joint interests in various companies, trusts and a self-managed superannuation fund. By Orders made 30 November 2020, Ms T of U Pty Ltd ("the single expert"), was appointed to prepare the valuation report. To date, a valuation report has not been finalised.
4. There is a dispute between the parties as to the reason for the delay in the single expert being able to complete the valuation exercise. The applicant contends that the respondent has been recalcitrant in providing full and frank disclosure of documents necessary for the single expert to complete the valuation exercise. The respondent contends that the scope of instruction to the single expert needs to be expanded to bring to account accounting irregularities in the entity, B6 Pty Ltd as trustee for the Mr Sartre and Ms Henschel Family Trust ("SHFT"). The applicant resists expanding the scope of the valuation.
5. The proceedings have been Registrar managed with the focus of orders made on 18 July 2022 (amended on 28 July 2022) and 20 September 2022, that required the parties to do all things necessary to instruct the single expert to:
   • (1) Review the accounts for B6 Pty Ltd ("B6 Pty Ltd") as trustee for SHFT for the financial years ending 30 June 2014 to date;
   • (2) Advise in relation to any irregularities found in those accounts and documents;
   • (3) Advise what steps need to be taken to rectify any irregularities and the cost of doing so;
   • (4) Advise as to the taxation implications, if any, on each of the parties and B6 Pty Ltd as trustee for SHFT, if any irregularities found;
   • (5) Advise as to the impact, if any, of the above on the value of SHFT; and
   • (6) Advise as to any other matters that she believes.

(herein collectively referred to as "the expended scope of work").

1. The parties were required to provide all relevant documents to the single expert, comprising of the following:-
   • (1) Financial statements for financial years ended 30 June 2014 to date;
   • (2) Taxation returns for the financial years ending 30 June 2014 to date;
   • (3) General Ledgers for the financial years ending 30 June 2014 to date;
   • (4) Directors Loan Ledgers for the financial years ending 30 June 2014 to date;
   • (5) Journal entries for the financial years ending 30 June 2014 to date; and
   • (6) Any other documents or information as requested by the single expert.
2. A necessary first step requires the parties, and each of them, to finalise taxation returns and financial statements for the relevant entities for financial years ending 30 June 2016, 2017, 2018 and 2019.
3. On 20 September 2022, Orders were made that required each of the parties to send to the other a list setting out the documents they assert are outstanding by way of financial disclosure and provide for a response by each of the parties as to documents that are within their possession, control or power to provide.
4. Notwithstanding the interim Orders made, the parties are not able to agree that the single expert is now in a position to complete her valuation report.
5. As is apparent from the documents relied upon by the parties, the significant assets of the parties are as follows:-

(a) V Street, Suburb W ("the Suburb W property") $12,000,000 > > (b) N Street, O Town ("the N Property") $4,950,000 > > (c) 2/3 share in B2 Pty Ltd ("B2 Pty Ltd") $5,725,000 > > (d) Respondent's interests in B Pty Ltd

1. Whilst the parties are not agreed as to the value to be attributed to the balance of the assets held and the treatment of liabilities, in particular, the status of loans from the respondent's parents to assist in the ongoing operation of B Pty Ltd, the areas of uncertainty are the value of the respondent's interest in B Pty Ltd and related entities and the value of SHFT.
2. Whilst the applicant contends that the respondent seeks to delay the completion of the valuation report of B Pty Ltd, the respondent denies that he has any interest in doing so.
3. To avoid any further conflict and uncertainty, I have indicated to the parties that if necessary, I would call the single expert to give evidence as to the progress of the valuation report and what further information would be required to enable the valuation exercise to be expedited.
4. It is against the backdrop of a deep mistrust between the parties that the applicant seeks orders as set out in the Further Amended Application in a Proceeding sealed 6 December 2022. In broad terms, the orders sought by the applicant go to the value of the respondent's interest in B Pty Ltd and related entities, an application for partial property settlement in the sum of $250,000 and the updated valuations of real property.
5. At the commencement of the hearing, senior counsel for the respondent indicated the respondent's attitude towards each of the orders sought by the applicant. There are significant areas of agreement although the respondent resists the applicant's application for partial settlement of property and is not prepared to give the applicant unfettered access to financial documents in respect of entities in which there are significant third party interests.

1. The applicant is 50 years of age and the respondent is 58 years of age.
2. The parties were married in early 2003 and separated on a final basis on 20 April 2020.
3. There is one child of the relationship, X, who is now 13 years of age.
4. The parties have reached agreement as to the future parenting arrangements for X, namely that he lives with the applicant and spends time with the respondent each Tuesday afternoon and each alternate weekend together with half of all school holidays.
5. Following separation, the respondent remained in the former matrimonial home in Suburb W ("the Suburb W property"), whereas the applicant resides in rental accommodation at Suburb Z and on the N Property.
6. The parties are not agreed as to the status of the applicant using the N Property to the exclusion of the respondent.
7. There is broad agreement that during the course of the relationship, the respondent was in receipt of significant income which enabled the parties to enjoy a high standard of living. The respondent concedes that the applicant undertook the primary parenting responsibilities for X.
8. The parties purchased rural land in O Town which are now comprised as, a farm property known as "N Property" which is held by B6 Pty Ltd as trustee for the Mr Sartre Family Trust ("Mr Sartre Family Trust ") and an adjacent property known as "AA Property" which is held by the Superannuation Fund 1 ("the Superannuation Fund 1").
9. N Property and AA Property have a combined value of about $7,000,000.
10. The respondent is a director and shareholder in the following entities:

(a) The B Group comprising; > > > (i) B Pty Ltd; > > > > (ii) B2 Pty Ltd; > > > > (iii) B3 Pty Ltd; > > > > (iv) B4 Pty Ltd; > > > > (v) B5 Pty Ltd; > > > > (vi) B6 Pty Ltd; > > > > (vii) B7 Pty Ltd

THE FURTHER AMENDED APPLICATION IN A PROCEEDING

1. I propose to dismiss proposed interlocutory orders 1, 2, 3, 12, 13, 14, 17, 20 and 21.

1. The respondent seeks twenty eight days to comply with the production of documents as sought by the applicant.

1. The respondent considers that the invoices sought by the applicant have already been discovered. The applicant is uncertain as to whether discovery has been made however at this stage, it is difficult to see the utility of the orders sought given that it is for an open ended period prior to November 2020. I do not propose to make the order as sought by the applicant.

1. The respondent consents to the order for production as sought by the applicant however, seeks 28 days to produce the documents.

1. The production of documents relating to construction of the dwelling on the N Property is opposed. The contention of the respondent is that no such documents exist. Again, the utility of the documents sought by the applicant is not immediately apparent. I do not propose to make the order as sought by the applicant.

1. The respondent contends that no documents exist in respect of the renovations to a property at Q Street, Suburb R, between 2007 to 2008. In the absence of any evidence that the documents sought by the applicant do exist, I do not propose to make the order.

1. The applicant seeks that the respondent provide full and frank disclosure of legal fees, costs and disbursements incurred in respect of the proceedings. I do not propose to make the specific order as sought by the applicant however, I will make a general order that each of the parties provide a document setting out the legal fees, costs and disbursements paid (and the source of those funds) incurred and anticipated to the conclusion of the proceedings.

1. The applicant seeks "read only access" to the financial accounting systems of entities in which the parties have an interest.
2. The respondent contends that other than F Pty Ltd and D Pty Ltd as trustee for Superannuation Fund 2, the other entities to which the applicant seeks access involve significant third party interests.
3. It is not in contention that in respect of the B Group of entities, the third party interests are at arm's length and it is not suggested that the respondent has unfettered control.
4. The applicant has not provided any basis for an order that would enable her to have real time oversight of the affairs of the various entities.
5. The primary focus of the parties, and if necessary assisted by Court orders, is to enable the single expert to complete her valuation report in a timely fashion.
6. It may well be that other issues will arise once the parties have had an opportunity to consider the valuation report, but its finalisation is a necessary precursor to any application for more intrusive orders to be made. I do not propose to make the order as sought by the applicant.

1. The applicant contends that the entity M Family Trust does not exist and accordingly there are no documents to produce.

1. The respondent consents to the order for production as sought by the applicant.

1. The applicant consents to produce documents as identified in order 18(a) to (e) inclusive within 28 days.
2. The respondent resists the production of documents in respect of 18(f), (g) and (h). At this stage, an open ended order in respect of NVD Livestock records and "the [livestock] folder for [N Property]" would have little utility to the proceedings. I have regard to the applicant's assertion that Livestock could be sold as a source of funds identified by the applicant seeking an order for partial settlement of property.
3. The applicant has not identified the relevance of medical records pertaining to the respondent's apparent hospitalisation in early 2022. It is a matter for the respondent to make discovery of any documents relating to his health if it is an issue in dispute.
4. The applicant seeks payroll ledgers for the B Group of entities for the period 1 July 2020 to present. The applicant's concern is set out in paragraphs 72 and 73 of her Affidavit sealed 21 November 2022. In summary, the applicant is concerned that the respondent is diverting income via the B Pty Ltd payroll accounts that then in some way, supplements the respondent's income.
5. A consideration of the respondent's taxable income shows that for the financial year ending 30 June 2020, he received a taxable income of $781,708 which was then further revised in December 2021 from $803,596 to the assessed taxable income of $248,018.
6. The applicant does not accept that the respondent is able to support his lifestyle and other obligations on a reduced income.
7. The applicant's former solicitors apparently sought the payroll records from the respondent in March 2022. The documents were not forthcoming.
8. It is not suggested that the respondent's income is an irrelevant consideration. It does not appear to be controversial that the respondent has historically enjoyed a high income. Whilst the focus on the respondent's current financial circumstances is a likely area of contention, for the purposes of a valuation of the respondent's interest in the B Group of entities, it is unlikely to make a significant difference unless it is suggested by the single expert that the respondent's income should be benchmarked at a significantly lower amount historically. Again, the issue has been brought to the attention of the single expert and the parties may well be assisted once the valuation report is available.
9. The respondent is on notice as to the applicant's allegation. At this stage, the respondent's financial circumstances, as set out in paragraphs 5 to 20 inclusive of his Affidavit filed 5 December 2022, can be taken as a denial that income that should have been attributable to him, has been diverted to other persons via the B Pty Ltd payroll system.

1. The respondent gave the necessary instructions to prepare his tax return and financial statements for the 2022 financial year and for D Pty Ltd and F Pty Ltd. The respondent has no interest in his parents company BB Pty Ltd and CC Pty Ltd.

1. The parties are agreed that within 14 days of these orders, G Valuers should be jointly instructed to prepare an update valuation report in respect of property at H Street, Suburb J ("the Suburb J property").

1. There is significant focus by each of the parties as to the operation management and the integrity of the financial accounts for B6 Pty Ltd as trustee for SHFT.
2. The respondent considers that there are financial irregularities in the accounts of SHFT and as a result of an Application in a Proceeding, by Order made 18 July 2022, a Judicial Registrar expanded the scope of the single expert report to include an investigation into potential irregularities.
3. I do not propose to interfere with the Judicial Registrar's Order, although I accept that the parties remain in dispute as to the extent of the material that the single expert properly needs to give effect to the expanded scope of work.
4. At this stage, I am unaware of whether the single expert has all that she requires or whether further information will be sought.
5. I am not convinced that the single expert's focus should be unnecessarily distracted by a consideration of the expanded scope of work. That does not diminish the importance of determining whether there has been any financial irregularities in the books of account for the SHFT but rather to place the issue into perspective.
6. The respondent seeks an order that the bookkeeper for the Mr Sartre and Ms Henschel Family Trust finalise the accounts, presumably to enable the financial statements and tax returns for the years up to and including 30 June 2022 to be lodged.
7. Again, I am not aware of the current status of the accounts as may have been prepared by the bookkeeper but it seems that if there are allegations of financial irregularities, then the most obvious starting point would be the bookkeeper and accountant in whom each of the parties appear to have some confidence. If concerns persist, then it may well be that the bookkeeper and the accountant will advise the parties accordingly. There may also be some assistance provided to the single expert by their deliberations.
8. I propose to make an order as sought by the applicant.

1. The applicant seeks an interim order of property settlement in the sum of $250,000. The application is opposed.
2. It is not controversial that the applicant seeks the payment on account of her legal fees.
3. Each of the parties have incurred significant legal costs to date.
4. The applicant acknowledges that on 26 June 2020, she had the use of $500,000 from the parties' joint funds, which she asserts has been used predominantly on her legal fees, costs and disbursements. For his part, the respondent has incurred legal fees of approximately $400,000 with an estimate of a further $400,000 to the conclusion of a final hearing.
5. It is apparent that the parties are engaged in high conflict litigation and that whilst the applicant may consider that once a balance sheet has been settled upon the parties may well resolve their differences, it is not suggested by either party that the proceedings are other than complex.
6. The respondent is represented by experienced solicitors and senior counsel whereas the applicant is a self-represented litigant.
7. There is significant complaint by the respondent that the requests for documents and the filing of ongoing interim proceedings are onerous and unnecessary. Whilst I do not make a finding about that, the litigation is complex and the interests of each of the parties would be well served by the applicant being represented.
8. The attention of the parties, at least in part, is marred by their dislike and mistrust of each other.

1. There are essentially two stages to the consideration of an application for interim property orders:[1]
   • (1) The first stage is a "procedural step" which requires an analysis of whether the circumstances of the case triggers the Court's power to invoke s 80(1)(h) of the Family Law Act 1975 (Cth) ("the Act) to make an order for interim property settlement before a hearing. At this stage, the "overarching consideration" is the interests of justice.[2]
   • (2) The second stage is the "substantive step" where the provisions of s 79 of the Act must be considered and applied but with limitations, given that it is not the final hearing.[3]
2. In Medlow & Medlow (2016) FLC 93-692 ("Medlow") at 81,088, the Full Court confirmed that the starting point in respect of any property application, including an application for interim property orders, is the identification of the parties' property and of their interests in it.[4]
3. In circumstances where a party seeks interim property orders, the Full Court said in Medlow (supra) at 81,090:-
   1. The onus was clearly upon [the applicant] to establish that there were sufficient assets available for the interim distribution and that the effect of any interim order was capable of being reversed as part of the final hearing or at least would not defeat [the respondent]'s property claims. The onus was not on the [respondent] to adduce such evidence.
4. In that context, the Full Court in Medlow (supra) referred to Strahan & Strahan [2009] FamCAFC 166; (2009) FLC 93-466 ("Strahan") and the authorities referred to therein, in confirming that an interim order for the distribution of property must be "amenable to adjustment on a final hearing".[5] The very nature of an interim hearing is such that the Court is not in a position to properly evaluate the evidence and accordingly, the Court should take a conservative approach, including in respect to determining whether there is likely to be sufficient resources of the parties available at final hearing to accommodate any "adjustment issue".
5. The applicant carries the onus of satisfying the Court that any interim distribution of matrimonial property can be accommodated at a final hearing.
6. In terms of the second consideration in respect to an application for interim property orders, the High Court in Stanford v Stanford (2012) 247 CLR 108 stated as follows:-
   1. Under s 79(2) of the Act, a court shall not make a property settlement order unless satisfied that it is "just and equitable" to do so....
7. As the Full Court said in Medlow (supra) at 81,089, in the context of considering an appeal concerning interim property orders:-
   1. ... . This is not to be determined "by beginning from the assumption that one or other party has the right to have the parties' property divided between them" (Stanford at [40]).
8. The following principles are relevant to the Court's consideration of this matter:
   • (1) Together, s 79 of the Act and s 80(1)(h) of the Act confer a power on the Court to make orders for interim property settlement.
   • (2) Section 79 of the Act confers the discrete power to make orders for property settlement and the Court may exercise the power conferred by s 79 of the Act through "a succession of orders until the power... is exhausted" [6] or, until a final order dealing with all of the known property of the parties is made.
9. Section 80 of the Act is not in itself a source of jurisdiction for such an order to be made. Rather, the section is an "enabling provision" that provides various ways in which the general power in s 79 of the Act may be exercised in individual cases.[7] Section 80(1)(h) of the Act includes providing for the making of "a permanent order, an order pending the disposing of the proceedings or an order for a fixed term or for a life or during joint lives or until further order".
10. Given that the applicant is effectively seeking access to the parties own funds, it is unnecessary for a "...detailed enquiry as to the purposes for which the funds are to be used".[8]
11. Sufficient particulars must nonetheless be provided to enable the Court to determine:
    • (1) That the application is genuine;
    • (2) To identify the circumstances that make it appropriate to give consideration to exercising its power; and
    • (3) To sufficiently weigh the identified need "against the benefits of having only one exercise of a s 79 power".[9]
12. While the usual s 79 considerations apply to the second stage of the process, a detailed analysis of those considerations is not required in an interim hearing.
13. Nevertheless, an applicant is required to show more than mere fact that upon a final hearing the applicant would receive the property sought from the other party.
14. The overriding consideration at all stages of the process is that the Court must be satisfied that it is just and equitable to make the order in the circumstances presented before the Court.
15. In evaluating the competing contentions, it is necessary to have some regard to the fact that in family law proceedings, one party may have the preponderance of resources.[10]
16. In the context of interim property orders, in Strahan (supra), Boland & O'Ryan JJ analysed relevant authorities and noted as follows:-
    1. In Poletti and Poletti Nygh J, when describing an application for "interim costs", referred to the reasons of the Full Court in Wilson and Wilson and said it is a "situation where one party to the marriage controls almost exclusively what might be described as the patrimony of the parties and has control of the bulk of the assets and funds of the parties, where an order may be made to ensure that the other party, who does not have the fortune of controlling those funds, at least has an equal or near equal opportunity to present his or her case": see also In the Marriage of Polletti [1990] FamCA 79; (1990) 15 Fam LR 794 ("Polletti") at 796 per the Full Court (Ellis, Strauss and Butler JJ). The Full Court in Zschokke at 83,220 made a number of relevant remarks about the "desirability of legal representation for both parties in family law proceedings".

1. I consider that the applicant has properly established that there would be significant advantage in her being able to secure representation. Whilst there is some concern, given the future cost anticipated by the respondent to be in excess of $400,000, that the amount sought by the applicant may well be inadequate, nonetheless it is difficult to argue that the amount sought by the applicant is unreasonable, excessive, or without proper justification.
2. I consider that it is just and equitable for the Court to hear the application. The parties have a complex financial matrix and there is implicit agreement that the parties need to separate their financial affairs to finality.
3. It is not suggested by the respondent that the applicant would receive less than the amount she seeks, even taking into account the assertion that $500,000 was removed from the parties' joint funds.
4. At this stage, the pool of assets has not been determined but there is agreement that it is likely to be substantial.
5. The parties have been in a relationship for 17 years, with one child, who resides primarily with the applicant.
6. The opposition of the respondent is on the basis of his concern as to where the money would come from.
7. The respondent has now caused the financial statements and tax returns for the B Group of entities to be completed. He refers to what he describes as a difficult financial situation facing the group as evidenced by neither the respondent, nor his business partner, taking a dividend since December 2021.
8. The respondent's income is claimed to be $255,000 per annum and he considers that the fact that the B Group borrowed $2,700,000 from the ANZ Bank, resulting in total ANZ borrowings of $4,200,000, and that he has borrowed $3,350,000 from his parents' company, BB Pty Ltd, is an indication that his financial resources are exhausted.
9. The applicant does not accept the respondent's dire predictions and rather points to the retention by the respondent of the Suburb W property and other areas of significant personal expenditure.
10. The respondent does not seek to retain the N Property farm enterprise. If that property was to be sold, then there would be no opposition to some of those funds being used to assist the applicant in her future litigation costs.
11. The applicant seeks to retain the N Property as part of her eventual settlement. Given the concession by the respondent, it does not appear that such an outcome is opposed.
12. It is also uncontroversial that the respondent is in effective control of the substantial property of the parties. The applicant has no interest in the B Group of entities nor is it suggested that she would wish to resume residence in the Suburb W property.
13. By reference to the respondent's costs notice filed 19 September 2022, it appears that the source of funds for the payment of his legal fees is predominantly from his family. Given that his Financial Statement of 16 September 2022 reveals total average weekly income of $5,156, with a total expenditure of $9,866, it is unlikely that the respondent is able to fund his legal fees to any significant degree.
14. It may be that the parties have now reached the stage where they need to give proper consideration to the assets that they seek to retain and whether it is viable for them to do so.
15. The case outline filed on behalf of the respondent suggests that the B Group of entities may have to consider its financial viability. That is of course a matter for the respondent and there is no evidence presented before the Court that would suggest that B Pty Ltd is, or could be at risk of, trading insolvent. Obviously, if that were to be the case, then the respondent has an obligation to take whatever steps are required necessary to preserve the property of the parties.
16. I accept that B Pty Ltd has been confronted with a difficult economic climate and that there are financial challenges however, the focus at this stage must be upon merits of the applicant's application for interim settlement of property.
17. I do not propose to order that the N Property be sold.
18. There appears to be broad agreement that whilst there may be an adverse financial impact in terms of various tax allowances should the livestock on the property be sold, in circumstances where the respondent does not wish to retain the farm enterprise and the applicant proposes that the livestock be disposed of, it does not seem unreasonable to pursue that outcome.
19. The extent to which the farm enterprise may be adversely affected by the disposal of the livestock and the flow on consequences, both financial but also in terms of whether a farm manager is required, is likely to be a matter for the applicant rather than the respondent.
20. If there is a diminution in value and/ or a significant loss incurred as a result of the sale of livestock, then it may well be that it becomes the responsibility of the applicant.
21. I propose to make the order as sought by the applicant but to give the respondent three months to make payment either by sale of the livestock, other property or from the respondent's own resources.

1. The respondent seeks orders that can be summarised as follows:-
   • (1) That the applicant be restrained from selling or disposing of any assets of SHFT without the written consent of the respondent;
   • (2) That the applicant pay the sum of $35,200 to a bank account held by SHFT;
   • (3) That the applicant facilitate the attendance of the respondent on the N Property;
   • (4) That the applicant sign a draft letter of instruction as appears at annexure A to the Amended Response sealed sealed 5 December 2022; and
   • (5) That the respondent provide documents relating to the following:

(a) Unredacted personal tax returns including working sheets for financial years 30 June 2016 to 30 June 2017; > > (b) Payslips with respect to the applicant's employment with P Company for the period 26 November 2020 to November 2021; > > (c) Land tax assessment notices in relation to the property at Q Street, Suburb R ("the Suburb R property"); > > (d) Details of the purchase and sale of livestock sold; and > > (e) Documents in respect of S Pty Ltd ("S Pty Ltd") being the following: > > > (i) General ledgers for period 1 July 2020 to 30 June 2022; and > > > > (ii) Statements for NAB Account ending ...07 for the period 30 July 2022 to date.

2. The respondent seeks an order of restraint against the applicant disposing of the assets of SHFT, arising from the purported sale of livestock with the total proceeds received by the respondent in the sum of $35,200 being placed in an account in her sole name.
3. The respondent instructed his solicitors to write to the applicant on 17 October 2022, seeking an undertaking that she will refrain from selling any livestock held by SHFT without the respondent's knowledge and/or consent.
4. By letter of response dated 21 October 2022, the applicant refused to provide the undertaking as requested.
5. It could not be said that the unilateral sale of livestock by the applicant would unfairly prejudice the respondent given the totality of the parties' asset pool.
6. The applicant seeks the sale of livestock, being one type of livestock, but is silent in respect of the sale of another type of livestock. The applicant denies that she is running a separate business operation and that any livestock sold should properly be considered a former asset of SHFT.
7. There is no good reason why the sale of one type of livestock should be considered separate to the position of the applicant that livestock should be sold in order to fund her anticipated legal fees, costs and disbursements.
8. I do not consider that the applicant should be the subject of an order of restraint, but it is not unreasonable that she provide proper and timely notice to the respondent of her intention to sell livestock and upon the sale or disposal of any animals, notice should be given of money received from any such sale and into which account the proceeds have been deposited. If farm related expenses are to be paid from the proceeds of sale, then that is a matter that requires disclosure to the respondent.
9. The net proceeds of the sale of any livestock by the applicant, should be considered as part satisfaction of the order for interim settlement of property.
10. At this stage, I do not know the extent to which the monies received by the applicant in the sum of $35,200 from the sale of livestock, have properly been utilised for the payment of farm expenses. I have given consideration to the applicant's Amended Response of 21 October 2022, I note that it is claimed that the money has been utilised for essential farm repairs and other expenses that have been properly accounted for. If the respondent's claim that no invoices have been provided evidencing the farm expenses is correct, then the applicant in the ordinary course is obliged to do so.
11. I do not propose to make the order as sought by the respondent that the applicant reinstate the sum of $35,200 to the SHFT bank account.
12. The respondent contends that the applicant has restricted and/or made difficult his ability to access the N Property. Whilst not conceded by the applicant, the specific allegation is that the applicant has changed multiple locks, has installed cameras and has removed the motor vehicle key.
13. The conflict between the parties escalated to the unacceptable level of the police being called in early 2022, consequent upon the respondent attending at the N Property homestead. The respondent has not attempted to attend the premises again.
14. The issue of the ability of each of the parties to access and utilise the N Property is contentious.
15. The applicant contends that N Property is her primary place of residence notwithstanding that she and the child reside in rental accommodation in Suburb Z to enable the child to attend school.
16. An obvious and heightened area of conflict between the parties, is the continued occupation of the Suburb W property by the respondent to the exclusion of the applicant. Whilst not specifically the subject of concession by the applicant, the conflict between the parties over the use of N Property is just one of a myriad of areas of disagreement dispute.
17. Whilst at first blush, the applicant's reasons to attend the N Property appear reasonable and are based upon his desire to ensure the farm is managed, livestock are properly maintained and also to enjoy the amenity with his son, I bring to account the matters raised by the applicant in paragraphs 41 to 49 of her Affidavit sealed 25 October 2022.
18. I do not make a finding that the applicant's allegations pertaining to the respondent's alleged behaviour are made out, but rather it is yet again another aspect of the heightened conflict between the parties. It is unfortunate that there has been an escalation of conflict between the parties and that in order to ensure that the parties avoid further conflict, there is in place an Apprehended Domestic Violence Order.
19. The parties' circumstances have significantly altered. The respondent does not oppose and indeed has indicated strong support for the sale of the N Property. The applicant seeks to retain the property. The respondent now has the option of disposing of the livestock in order to satisfy the order made for the payment of interim settlement of property to the applicant.
20. It seems to me therefore, that the respondent's interest in the property is now only one of value rather than the property representing an alternate, or at the very least, an additional source of substantial income.
21. The respondent also acknowledges that to the extent that the SHFT no longer receives payment for the storage of property of the B Group of entities, it may well be a matter for the applicant to consider how the N Property will be utilised into the future.
22. It must be remembered that whilst neither party accepts the assertion of the other, their separate representation to the Court is that they wish the proceedings to be expedited and orders for settlement of property to be made as soon is reasonable.
23. I have indicated to the parties that, providing the evidence is available so that the areas of conflict can be resolved judicially if so required, then I will list the matter for final hearing in 2023.
24. I do not consider that it is appropriate for the applicant to change locks and actively put barriers in the way of the respondent attending the N Property. The N Property, its improvements, plants and equipment are owned by SHFT.
25. A balance must be struck between the reasonable ability of the respondent to attend the property from time to time for the purposes of inspection as opposed to his attendance interfering with the applicant's use of the property.
26. Accordingly, whilst I do not propose to make orders as sought by the respondent, I do consider that the respondent should be able to attend the property on one occasion in each calendar month upon the giving of 24 hours' notice and when the applicant is residing in Sydney.
27. The respondent seeks orders for discovery as set out in paragraph 7 of the Amended Response to an Application in a Proceeding sealed 5 December 2022.
28. The category of documents sought do not appear to be onerous and they are documents that either exist in which case disclosure should be provided, or if they do not exist then obligation for disclosure arises.
29. I do not propose to make the order as sought in Order 7.4 of the Amended Response. Whilst it is not unreasonable for the respondent to believe that the applicant would know with a high level of precision and detail the purchases of livestock sold, it appears that invoices have been provided and the issue is the proper accounting for monies received rather than the identity of any purchaser.
30. I make orders as appear at the commencement of these reasons.

I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman.

[1] Strahan & Strahan [2009] FamCAFC 166; (2009) FLC 93-466 at [118].

[2] Strahan & Strahan [2009] FamCAFC 166; (2009) FLC 93-466 at [132].

[3] Strahan & Strahan [2009] FamCAFC 166; (2009) FLC 93-466 at [135].

[4] Medlow & Medlow (2016) FLC 93-692 at [69].

[5] Medlow & Medlow (2016) FLC 93-692 at [83].

[6] Gabel & Yardley [2008] FamCAFC 162; (2008) FLC 93-386.

[7] Davidson & Davidson (No 2) (1994) FLC 92-469.

[8] Felice & Felice (2011) FamCA 162 at [12].

[9] Wenz & Archer [2008] FMCAfam 1119; [2008] 40 Fam LR 212 at [55].

[10] Wenz & Archer [2008] FMCAfam 1119; [2008] 40 Fam LR 212 at [50]- [57].