Tedesco & Tedesco (No 2) [2026] FedCFamC2F 82 | Case summary

Baranski v Baranski (2012) 259 FLR 122; [2012] FamCAFC 18

Tedesco & Tedesco (No 2) [2026] FedCFamC2F 82 | Case summary | Zoe

[70]

Both parties submitted - and I agree - that I ought to adopt a two-pool approach to the division of their property: making separate orders as to net present assets and superannuation.
The parties' principal asset is the former matrimonial home, unencumbered real estate at B Street, Suburb C, Victoria of which they are the joint registered proprietors (Suburb C Property). Even though it was a matter of sharp contention, I have accepted the valuation of the single expert, Mr D, who valued the Suburb C Property at $1,660,000 (Ex CE-1).
As to net present assets, in closing the Wife submitted I ought to assess contributions 55%/45% in her favour (T1195: L21-22). The Wife submitted that there ought to be a further adjustment of 2.5%-5% in her favour under s. 79(5). As to that adjustment, she relied primarily in her closing submissions on a differential in earning potential between the parties. She submitted that both parties had a job at similar income levels but, in addition, the Husband has a business, "E Business" and therefore a greater income earning capacity. Overall, the Wife submitted that there ought to be an alteration of the parties' net present assets 57.5%/42.5% to 60%/40% in her favour (T1196: L10-14).
In final submissions, the Husband adhered to his Outline of Case dated 3 October 2025, that contributions to net present assets should be assessed 55%/45% in his favour. He submitted that there ought not to be any adjustment under s. 79(5). The Husband submitted that the overall alteration of the parties' net present assets ought to be 55%/45% in his favour (Husband's closing, T1142:L23-33).
In his Amended Response to Final Orders dated 12 May 2025, the Husband submitted that "there be a superannuation split of a base amount of $165,000 from the [Husband's] entitlements ... in favour of the [Wife]" (Husband's Amended Response, order 5). In approximate, but not exact terms, such an order would effect a 50/50 split of the parties' superannuation. In final submissions, the Husband submitted that the parties' superannuation ought to be equalised (Husband's closing, T1142:L23-33).
By way of orders to effect a just and equitable and appropriate division of the parties' property, the Husband wished to have the opportunity to retain ownership of the Suburb C Property; an opportunity which the Wife did not oppose. The Husband proposed to make a cash adjustment payment to the Wife to achieve a percentile division in the terms ordered and contemporaneously for the Wife to transfer her interest in the Suburb C Property to him. In default of the making of the cash adjustment payment he proposed a default order for the sale of the Suburb C Property. I will structure my orders accordingly.

[73]

The Husband is 57 years old (born in 1968).
The Wife is 56 years old (born in 1969).
In 1994, in their mid-twenties, the parties married. It was a 30-year marriage.
There are three adult children of the marriage: Ms F, aged 28 (born 1997), Ms G, aged 26 (born 1999) and Mr H, aged 24 (born 2001). Ms F lives in London. Ms G lives independently in Melbourne. Mr H lives with the Wife.
In 1995 the parties purchased a property in J Street, Suburb C for $187,000. There was a dispute about the initial contributions to the purchase of the J Street property.
In 2015 the parties sold J Street and purchased the B Street, Suburb C Property - the major divisible asset - for $907,000 - applying the sale proceeds of the J Street property (Ex H8, [18]).
In 2019, Mr K, the Husband's brother, passed away. An issue in the case is whether the Husband is in breach of his duty of full and frank disclosure as to documents in relation to Mr K's estate, whether the Husband is hiding property as to Mr K's estate and whether he has a financial resource as to an expectancy as to property he may receive from Mr K's estate.
Throughout the relationship, the Husband was employed at L Company. He was a consistent breadwinner. In June 2022, the Husband's employment at L Company was made redundant. The Wife was the primary carer for the children for 12 years of the relationship and worked in various jobs for 18 years of the relationship.
The Wife alleges that during the relationship, the Husband subjected her to significant family violence. I have found that the Husband subjected the Wife to sustained, recurrent family violence of a significant grade and will return to the details of the allegations in my consideration of contributions under s. 79(4)(ca).
Between 2016 and 2023, during the relationship, the Husband undertook substantial renovations to the backyard of the Suburb C Property (Ex W33). He undertook significant work himself and engaged contractors.
On 29 January 2024, the Wife says that the parties separated on a final basis (Ex W2, [6]). The Husband dates the final separation at 10 February 2024 (Ex H8, [10]). The difference in dates as to final separation is immaterial.
In January 2024, there was an emergency incident whereby the Wife alleges that the Husband threatened to kill himself (Ex W2, [14]-[15]). The police applied for an intervention order against the Husband naming the Wife as the affected family member. In early 2024, the Magistrates Court made a final intervention order for a period of two years to expire in early 2026 (Ex W2, [24]). The Husband consented to the final order without admissions (Ex H8, [51], AC-12)
After the end of the relationship, the Wife lived with her daughter Ms G and her partner sleeping on the couch for about one month (EX W2, [17]). The Wife has since rented housing since separation.
On 22 April 2024, the Wife deposed that: "to secure housing and basic household necessities, I sold my shares in [M Company] and [N Company]". She received a total amount of $56,400 (Ex W2, [23]).
Since February 2024, shortly after separation, the Husband has lived in the former matrimonial home, the B Street, Suburb C Property.

[80]

A single expert, Mr D by a report dated 30 September 2025 and in his oral evidence at trial, valued the B Street, Suburb C Property at $1,660,000 (Ex CE-1). I accept his evidence.
About three weeks before trial, by orders made on 19 September 2025, I discharged Mr O of Q Company, who had previously been appointed as the single expert to value the former matrimonial home. On 29 April 2025, Mr O had valued the Suburb C Property at $1,265,000. I gave reasons for the discharge of Mr O in Tedesco & Tedesco [2025] FedCFamC2F 1628. Even though Mr O had been appointed as a single expert, I was informed that he had indicated that he was unavailable to give evidence on the scheduled trial dates, was travelling and had "indicated in no uncertain terms to the Husband's instructing solicitors that he was not interested in attending remotely to give his evidence from his European vacation".
Following Mr O's discharge, the parties by agreement nominated Mr D to be the single expert in Mr O's stead.
At trial, the approximate $400,000 difference between Mr O's valuation and Mr D's valuation became a point of sharp contest between the parties. The Husband's counsel subjected Mr D to trenchant cross-examination.
I admitted Mr O's report dated 29 April 2025 only for a limited purpose under s. 136 of the Evidence Act 1995 (Cth) to explain the basis of the cross-examination of Mr D (Ex H29). I refused the application to admit Mr O's evidence absolutely as opinion evidence under s. 79. After the trial continued after the initially scheduled dates of 9 and 10 October 2025, there was no evidence as to whether Mr O had become available and no party applied for Mr O to attend for cross-examination. In the absence of his attendance for cross-examination, his opinion was hearsay evidence and the exception under s. 63 of the Evidence Act did not apply because he was unwilling to give evidence rather than "not available" to give evidence. I add no party made an application for the evidence of Mr O to be adduced as an adversarial witness under r. 7.08 of the Rules or otherwise.
I intend to accept Mr D's evidence for the following reasons. Mr D possesses specialised knowledge based on his study: he holds tertiary qualifications in property valuation. He was experienced having valued many properties particularly for the Region R municipality. Counsel challenged Mr D on the basis that he was giving evidence only for the third time in the Court. Mr D was not experienced in giving evidence, but it did not undercut his expertise and experience in property valuation. Mr D's valuation methodology was not ultimately impeached. He valued the property by way of direct comparisons with other properties and a summation of those direct comparisons. There was an overlap between the direct comparator properties he had identified, and those Mr O had identified which reinforced my assessment that he had identified appropriate comparators. He valued the Suburb C Property by reference to relevant comparators, its square metreage and its improved value in an orthodox way. There was no material difference between his valuation methodology, and the valuation methodology Mr O had apparently deployed.
Counsel for the Husband criticised Mr D that as to some of his comparators he had not inspected inside the property - he had conducted a "desktop" valuation. The criticism was unfair in that often a property valuer will not have internal access to comparator properties because they are owned by strangers to the litigation.
Cross-examined as to the significant difference between his valuation and Mr O's valuation, Mr D put substantial weight on an improvement in market conditions from early 2025 (when Mr O had prepared his report) and later 2025 when Mr D prepared his report dated 30 September 2025. Part, but not all, the improvements in market conditions he ascribed to a series of interest rate cuts in the intervening period. As to improved market conditions, he put substantial weight on the availability of a more recent data set and emphasised that recent sales were often important in property valuations. It was apparent that it was of particular significance to his valuation that a recent sale of a property in P Street, Suburb C, had been sold for $1,520,000 in September 2025 which property Mr D regarded as "inferior internally and externally to the subject property" (Mr D, XX'N, T937:L201-21). That property was 733 m², in contrast to the B Street Property which was 904 m² (T937:L16-17). As evidence of improved market conditions, Mr D noted that the sale occurred months after Mr O's report. Mr D also assessed that property as inferior both to the B Street Property and to another property in P Street which had been previously sold for $1,320,000 in February 2025. Mr D was unmoved in the cross-examination that it was appropriate for him to have regard to the most recent data available.
At one point, counsel for the Husband suggested that an appropriate way to proceed was for me to take a halfway point between the valuation of Mr D and Mr O. In the Commonwealth v Milledge [1953] HCA 6; (1953) 90 CLR 157, the High Court explained that to take an average was not to proceed by application of proper principle (followed in In the Marriage of Lenehan [1987] FamCA 8; (1987) 11 Fam LR 615, 620). In closing, the Husband submitted that I might (T1147: L40-42):

[92]

I had several concerns about the sale. First, assuming the sale occurred, the Husband disposed of Motor Vehicle 2, joint property, without prior consultation with the Wife. Second, the Husband agreed it was "pretty much" a fire sale (Husband, XX'N, T524:L39) Third, relatedly, it was not an arm's-length sale. Mr S is a family friend. Fourth, the Husband removed the identification tags from the chassis for "memorabilia," reducing its sale value (Husband, XX'N, T512:L27). Mr S agreed that without its tags the vehicle was less valuable (Mr S, XX'N, T1099:L25-26). Fifth, I was sceptical that, having bought the vehicle, as to why Mr S would leave it stored where the Husband was living for more than a year, namely at the Suburb C Property. Sixth, as a cash sale, there was no record of the source of the payment of $9,000 or the Husband's disbursement of the $9,000 he received.
Whatever my concerns, the Wife has not proved the sale was a sham. Separate issues arise under s. 79(5).
If I were to include Motor Vehicle 2 in the divisible assets, as the Wife submits I should, that would require me to reject the evidence both of the Husband and Mr S as to the occurrence of the sale. If the Wife adopts the position that the sale did not in fact occur, that would in effect be tantamount to a court order that property Mr S says he owns he does not in fact own. That in turn raises issues as to whether Mr S ought to have been joined as a party to the proceeding, a matter neither party argued.
Pre-trial, the Wife sought to deal with these issues as to Motor Vehicle 2 by way of a Notice to Admit (Ex W1). In the Notice - among other matters as to which she sought admissions - she sought an admission that " the allegation that [Motor Vehicle 2] has been sold is false" (item 9). There is a prescribed form for a Notice to Admit. The standard form provides for it to be signed. The Wife did not prove service of a signed Notice and the Husband disputed that he had been served with a signed Notice. In the absence of proof of service of a signed notice, the Wife does not obtain the benefit of r. 8.02 of the Rules, namely that if a party does not serve a notice disputing the fact the party is taken to admit for the purposes of the proceeding only that the fact is true.
In any event, there was no valuation evidence as to Motor Vehicle 2. I will exclude Motor Vehicle 2 from the balance sheet. I will return, however, to the issue of Motor Vehicle 2 when I consider "material wastage" under ss. 79(5)(d) and issues under s. 79(5)(v) of the Act.

[93]

The Husband denied ownership of Motor Vehicle 3 because he said that it was the property of Mr K's estate. In February 2020, there was a transfer of registration from the estate of Mr K to the Husband of Motor Vehicle 3 (Ex W14). In that transfer of registration document, Mr K is identified as the seller/disposer of the vehicle and the Husband is identified as the buyer/acquirer. The document records an acquisition date of February 2020. The standard form provides that the "completed form must be retained by both the disposer and acquirer as proof of transfer." A transfer fee was apparently paid. The Husband has been in possession of the Motor Vehicle 3 for more than five years since.
The Husband submitted that under s. 9B of the Road Safety Act 1986 (Vic) the register of vehicles is not evidence of title. The Husband did not disclose ownership of Motor Vehicle 3 in his most recent financial statement (Ex H10).
To the extent that evidence was available as to the estate assets, a letter of the estate lawyers, T Law Firm, dated 28 October 2025 (Ex H32), stated that there were "no further funds remaining in the Estate". The letter of T Law Firm gave no indication that Motor Vehicle 3 continued to be an estate asset. That is, the evidence of the estate lawyers did not corroborate the Husband's claim.
I accept that registration of a vehicle is not indisputable or conclusive evidence of its ownership. Nonetheless, the transfer of registration in this case is the only written and best evidence available as to the vehicle's ownership. The Husband's denial of ownership is also inconsistent with the letter of the estate's lawyers which suggest there are no remaining estate assets. I find that in combination: the transfer documentation which identifies the Husband as the buyer/acquirer and identifies a transfer fee (as distinct from consideration paid), the registration of the vehicle in the Husband's name, his unchallenged use and possession of the vehicle for more than five years and the fact that the estate lawyers in writing disavow any claim that the vehicle is an estate asset lead me to conclude that Motor Vehicle 3 is part of the parties' divisible property.
The Husband said that Motor Vehicle 3 was worth $30,000 (Husband, XX"N, T1085:L4). In the absence of any formal valuation evidence, I accept his admission against interest (Frederick, above).
I will include Motor Vehicle 3 on the balance sheet with a value of $30,000.

[95]

Before finalising the identification of the parties' property, I note that each party alleged the other had not complied with their disclosure obligations.
The Wife alleged that the Husband had an entitlement to $400,000 from Mr K's estate.
The Wife alleged that the Husband had breached his duty of disclosure as to the estate of documents. Taking the Wife's allegation at its highest, I have considered whether any entitlement of the Husband referable to Mr K's estate ought to be included in the parties' net present assets available for division.
Alternatively, the Wife characterised the Husband's entitlement from his brother's estate as a "financial resource" under s. 79(5)(c).
Under r. 6.01 each party has a duty to the court and to each other party to give "full and frank disclosure." Rule 6.03 sets out that the duty of disclosure applies to each document that is or has been in the possession or under the control of the party disclosing the document.
A failure to disclose in financial proceedings may lead to adverse inferences against the non-disclosing party: "it has been well settled law for decades ... that deliberate nondisclosure warrants the court been not unduly cautious about making findings in favour of the innocent party" (Wei & Xia (No 5) [2023] FedCFamC1F 679, [170] citing Weir and Weir [1992] FamCA 69; (1993) FLC 92-338). In Wei (No 5), Harper J noted at [175] that the line of authority as to non-disclosure in financial proceedings has tended to concentrate upon the consequences of non-disclosure for ascertaining the property of the parties to the marriage. Acknowledging Harper J's observations in Wei (No 5) that the authorities have tended to concentrate on the consequences of non-disclosure for ascertaining the property of parties to the marriage, the Full Court decision of Mayhew & Fairweather [2022] FedCFamC1A 53; (2022) 64 Fam LR 633 at [14] sets out that the "usual way" in which defective disclosure is taken into account is either by adding a sum to the pool, reflective of an estimate of the value of undisclosed property, or an adjustment under the former s. 75(2)(o) of the Act [now s. 79(5)(v)]. If there is persuasive evidence supporting a reasonably plausible conclusion of the existence of other undisclosed assets, a court may make a finding that such assets exist (at [175]). Also, at [175] Harper J said:

[103]

As I have dealt with above, but ultimately not accepted, the Husband's evidence was that although the registration for Motor Vehicle 4 had been transferred to him out of the estate in 2020, in fact it was a vehicle the estate owned, and he did not own it (Ex W14).
Putting Motor Vehicle 3 to one side, the Husband's evidence was that he had received no property from the estate of Mr K and that he had no entitlement to, or relative certainty of, receipt of any property in the future from the estate which would constitute it as a "financial resource" under s. 79(5)(c).
As to the first issue as to whether the Husband has breached his duty of disclosure as to estate assets, the Husband was not the executor of, or a beneficiary under, Mr K's Will. It has not been proved that he had the requisite control over estate documents such that the documents can be said to have been in his possession or under his control - and, in consequence, within the ambit of his duty of full and frank disclosure - merely because he was Mr K's brother.
I accept that in this Part VIII litigation under the Act, there are real questions which remain unanswered about the disbursement of Mr K's estate. Having regard to Mrs Tedesco's affidavit in the probate jurisdiction as to Mr K's assets and liabilities (Ex W30) and the estate lawyer's statement that $370,000 had been expended on costs (Ex H32) that still leaves the question as the disbursement in the sum of approximately $1,000,000. Mrs Tedesco's identification of the inventory of assets and liabilities in the probate documents discloses that any superannuation death benefit was in addition to Mr K's other net assets identified in the inventory which approximated $1,000,000 (Ex W30). The Husband's assertion that he has received no benefit from his brother's estate is difficult to reconcile with the fact that he has had the use of Motor Vehicle 4 for five years, since the registration of it was transferred to him in 2020.
Further, in this litigation, the Husband seems to have had available to him funds which are not identifiable on the face of his various financial statements. The Husband's costs notice as of 18 November 2025 (the end of trial) recorded billed costs and disbursements in the sum of $129,089 (Ex H33). His source of funds to meet those legal fees was not adequately disclosed. He gave limited evidence or explanation as to the source of funds to meet those costs. I will return to this issue under s. 79(5)(v).
Determinatively, however, the unchallenged evidence was that Mrs Tedesco was the sole executor and sole beneficiary of Mr K's Will. It was arguable that as the donee of powers under the Enduring Power of Attorney Mrs Tedesco made in 2021, the Husband had the right to access all documents that Mrs Tedesco could access as her attorney (Cordiant Communications (Aust) Pty Ltd v Communications Group Holdings Pty Ltd [2005] NSWSC 1005; (2005) 194 FLR 322, [158]). But it is also contestable that the Husband had the estate documents in his possession or control on the basis that Mrs Tedesco's executor role was a matter outside the scope of her own personal and financial matters which were marked the out limits of the Enduring Power of Attorney. In the absence of the Wife developing any submission that the Husband was in possession or control of the documents as his mother's attorney, I express no concluded view as to whether the Husband's rights as his mother's attorney extended to this extent.
In In the Marriage of White [1995] FamCA 127; (1995) 127 FLR 105 - in the different circumstances of an objection to a subpoena - the court was not satisfied that there was a "worthwhile connection" (at 116) between documents as to the Will of the mother of one of the parties and the financial cause. It upheld the objection to the subpoena. In this case, I must make just and equitable and appropriate property settlement orders. The Husband was not the executor of Mr K's estate or a named beneficiary. The Wife has not proved that the Husband was in possession of, or had control of, documents in relation to Mr K's estate which he had to and did not disclose. In conclusion, the Husband did not breach his duty of disclosure as to the estate documents. Further, it has not been proved that the estate documents were in any event relevant because the Husband was not a beneficiary of Mr K's estate.
In conclusion, the Wife has not proved that the Husband had in his possession, or under his control, estate documents or that he has breached his duty of disclosure in not disclosing estate documents. No amount will be included on the balance sheet as to Mr K's estate.

[111]

In 1994, the parties were married in their mid-twenties. As is more common than not for people of that age, they had limited assets. The Husband said as much. He deposed in his trial affidavit (Ex H8, [15]) "at the commencement of the relationship, [the Wife] and I did not own any assets of significant value".
In another statement I have found is irreconcilable with the statement that at the commencement of the relationship he did not own any assets of significant value, he deposed that only one year later, in July 1995, the parties purchased real estate at J Street, Suburb C for $210,000. He deposed: "I contributed approximately $160,000, and Ms Tedesco contributed approximately $50,000 towards the purchase price" (Ex H8, [16]).
The Wife deposed that: "at the commencement of our relationship, [Mr Tedesco] and I both held similar levels of savings, which we contributed equally toward the deposit for our first home" (Ex W2, [39]).
I prefer the Wife's evidence that there was nothing to differentiate between the parties as to their initial contributions. I do not accept the Husband's submission that he made a greater contribution to the purchase of the first home for two reasons. First, the Husband's assertion of a greater contribution than the Wife - $160,000 versus $50,000 - to the purchase of the J Street real estate cannot be reconciled with his acknowledgement that neither party owned assets of significance at the time of their marriage just one year earlier. His counsel's assertion for the first time in closing that he received a gift from his parents to pay for their first home which was the source of his capacity to make the greater contribution (T1156:L33-34) had no support in the evidence. The Husband's quantification of the cost of the property at "$210,000 exclusive of stamp duty" (Ex H8, [16]) was also inconsistent with the contemporaneous document that set out the consideration on the J Street purchase was in fact $187,500 (Ex W13). I prefer the evidence in the contemporaneous document. As a result, I do not accept the accuracy of the Husband's recollection as to relative contributions to the purchase of the parties' first home.
I find that there is nothing to differentiate the parties' contributions to the purchase of their first home.
The property they purchased in 1995 in J Street increased in the value over time in the 20 years they owned it between 1995 and 2015 by external market forces. I categorise the market forces increase in value as a contribution by both parties (Hurst & Hurst [2018] FamCAFC 146; (2018) FLC 93-851, [26]).
The parties' property now available for division is - predominantly - in the value of the jointly owned B Street Property. The sale proceeds of $907,000 from J Street enabled the purchase of the B Street Property. Its current value of $1,660,000 is again - by and large - the product of external market forces and the passage of time between 2015 and 2025. I infer that the backyard renovation also increased the property value. As discussed below, however, because the backyard renovation occurred wholly during the relationship, the Husband's performance of the renovation work is not to be differentiated from the Wife's other contributions which freed him up to do that work.

[140]

Cross-examined as to whether he had hit his son Mr H during the relationship, the Husband responded, "he has hit me on numerous occasions before that I did" (T542:L44-45) and he only hit Mr H in response to being struck by him (T533:L12-13).
A video adduced into evidence when family members attended at the Suburb C Property to collect belongings after the end of the relationship on 10 May 2024 (Ex W18) was strikingly inconsistent with the Husband's denials of family violence and undermined the internal consistency of his evidence. In the video, he both referred to his daughters by derogatory names and physically struck his son including pushing his head against a garage door, without any provocation.
Further, as well as denying violence, the Husband offered two shifting and irreconcilable explanations as to allegations of violence in his evidence. One explanation was that this was a toxic relationship and the violence was two-way over an extended period. In a confronting video taken right at the end of the relationship in January 2024 (Ex W32), the Wife said: "You bashed me for 30 years. You involved the children." The Husband said that the Wife's provocation was like a radio constantly playing in his head. The Husband, however, by his counsel, offered an alternative and inconsistent explanation that the family violence only occurred after the death of the Husband's brother, Mr K, when it was conceded that the conduct was "deplorable in certain aspects" (T36:L18-22) but contextualised as a product of poor mental health following a tragic event.
Further, in preferring the Wife's evidence to that of the Husband, there was the collateral evidence that the Husband behaved in an aggressive and uncontrolled manner from the gallery of the court itself. In cross-examination, the Husband conceded that while the Wife was giving her evidence, he made a "L" shape with his thumb and forefingers, physically gesturing towards her that she was a liar (Husband, XX'N, T576:L3-4; T577:L8).

[141]

I also assess the credibility of evidence by reference to common experience and the logic of events. The Wife alleges that the Husband had a listening device in the couch at the former matrimonial home and a tracker in the Wife's car during the marriage (Ex W2, [13]). The Wife supports her allegation by reference to the fact that the Husband kept various handwritten notes of addresses she visited and phone numbers she called. The notes were admitted into evidence over objection (Ex W23). The Husband sought to turn the tables as to this allegation and counter alleged that, in fact, he made these notes because the police asked him to assemble evidence that the Wife was tracking or stalking him. It is self-evident that records of addresses the Wife had visited and phone numbers she had called could only be evidence of the Husband monitoring the Wife's movements and communications and not vice-versa. The fact that the Husband maintained - incredibly - that these documents constituted evidence of the Wife tracking him and refused to concede that he had been monitoring the Wife's movements and communications, significantly detracted from his credibility of his denials of family violence.
I accept that the fact that I have not accepted the Husband's denials of family violence does not mean the opposite of what he asserted it is true (Sheer v Jeffreys [2024] NSWSC 1161, [46], approved in Sayed & Rehmann [2025] FedCFamC2F 102, [53]). Disputed allegations of family violence must be subjected to the same forensic rigour as any other contested factual issue (Pickford & Pickford [2024] FedCFamC1A 249, [79]). The Wife gave her evidence in a straightforward way. The nature of family violence means that it often occurs without witnesses. I may make a positive finding about the occurrence of violence without corroborative evidence (Amador & Amador [2009] FamCAFC 186, [79]; Evidence Act 1995 (Cth), s. 164). The Husband said that the absence of corroborative evidence was a reason that I ought to find that the Wife had not proved the allegations of family violence. Keating v Keating [2019] FamCAFC 46; (2019) 59 Fam LR 158 at [64] was a case in which the absence of corroborative evidence - without explanation - adversely affected the cogency of the wife's allegations in that case. In this case, the Wife said she never went to the police, before separation, to report the family violence to "protect [her] family" (Wife, RE-EX'N, T384:L40-41). I accept her explanation. It is true that there was no medical evidence and I have taken that into account in the weight I have accorded to family violence issues in the contributions analysis under s. 79(4)(ca).
I turn not to the family violence the Wife alleged.

[174]

In closing submissions, the Husband formally maintained his position that contributions should be assessed at 55%/45% in his favour. In the course of an exchange with me, he submitted that it was a "fifty-fifty case" (T1142:L43), because over a long marriage of 30 years, each party had fulfilled their respective roles with the Husband performing the role of the primary income earner and, the Husband accepted, the Wife's contributions as a homemaker were no "less than his contributions as the breadwinner" (T1143:L33-34) (see, i.e., Mallet, above).
Because - as set out above - I do not accept that the Husband made the initial greater contribution, in consequence I do not accept the submission that the greater initial contribution created a "springboard" for the parties' wealth accumulation (Cf: Husband's closing, T1143:L3).
Holistically, the Husband's role as primary breadwinner (including his redundancy) and his real and material contribution to the backyard renovation and the Wife's role as the person who was the primary parental caregiver, homemaker and was in paid work for 18 years of the 30-year relationship, does not call for differentiation between the parties in the contributions assessment. The fact of the Wife having made her contributions in difficult circumstances in which she was the subject of recurrent and sustained family violence of a serious grade is a matter to which I have given significant weight in my conclusion that she made the greater contribution.
I have assessed contributions 53%/47% in favour of the Wife. In finding that the Wife had made a 53% contribution and the Husband a 47% contribution, that apportionment equates to a 6 per cent differential between the parties which, based on the balance sheet as found, represents a difference in money terms of approximately $106,836 ($1,780,603 x 6% = $106,836).
As I have noted, the other matter which (potentially) invited differentiation between the parties is the Wife's indirect post-separation contribution by which the Husband has had sole and exclusive occupancy of the unencumbered former family home. I have held over this issue and considered it under s. 79(5)(v).

[191]

The Husband alleged that over a three-year period before the end of their relationship, the Wife siphoned funds of approximately $50,000 out of their joint account and directed the siphoned funds to the parties' adult son, Mr H. A schedule of payments from the parties' joint account (CBA a/c #...86) indexing about 75 payments over a period starting on 30 November 2020 and continuing until 16 February 2024 identified payments to Mr H totalling $51,461 (Ex H8, [30]). The amounts transferred out of the account varied: the smallest transfer was $10, and the highest transfer was $6,300 on 2 February 2023. I accept that, if proved, "material wastage" may extend to the premature distribution of joint matrimonial property to one or other of the parties or a third-party.
The Wife denied any scheme to siphon money to their adult son out of a joint account. The Wife said (and I accept) that the Husband was a person who preferred to operate in cash. The Wife said that the Husband did not operate a digital bank account. In this timeframe, the Husband was undertaking a significant backyard renovation at the Suburb C Property and Mr H (their adult son) was paid in cash for part-time work including sports refereeing. Over this time - regularly enough to account for a significant number of the 75 payments - the Husband used cash sourced from Mr H to pay a tradesperson or contractor who- and then the Wife reimbursed Mr H for the cash he had provided from the joint account. The Wife also accepted that from time to time she gifted money from the joint account to Mr H. That a parent might make a cash gift to child is unremarkable.
I accept the Wife's evidence. The Husband makes a serious allegation which is for him to prove. He has not proved the allegations for the following reasons. First, it was not substantively contested that the Husband was making cash payments to tradespersons or contractors in this period as to the backyard renovation. It was not disputed that Mr H was working jobs for which he was paid in cash. The original source of the cash payments made to contractors was not otherwise identified if it was not CBA a/c #...86. Second, there was no reason that on 30 November 2020 - more than three years before the end of the relationship when the relationship was intact - that the Wife would have any motivation to embark on a scheme to siphon away matrimonial funds by a series of small payments at the time of an intact relationship to siphon away cash. At the very moment a motivation may have arisen, on the relationship's end, the alleged siphoning stopped. In February 2024, after the end of the relationship, there were only two transfers totalling $85. Third, as to at least one payment concerning a door - the Wife positively proved that the payment was a renovation payment.
To try to substantiate his allegation, the Husband pointed to an increase of approximately $50,000 in a joint account of Mr H (the son) and his partner Ms FF (CBA a/c #...03) between 31 December 2023 (close to the date of the end of the relationship) and 30 June 2024 (Ex H2). The date range of the increase in the balance of this account does not correspond with the date range of the alleged siphoning. The evidence was that both Mr H (the son) and Ms FF paid their salaries into this account (CBA a/c #...03). There was no evidence as to the amount of Mr H's salary or the amount of Ms FF's salary in the first half of 2024. It is apparent the increase in the balance resulted from a single $35,000 transfer on 7 April 2024. There was no evidence as to the circumstances of that transfer. The increase in the bank balance of CBA a/c #...03 does not prove the siphoning.
No party called Mr H to give evidence. The Husband invited me to draw an inference that the evidence of Mr H would not have assisted the Wife based on the principle drawn from Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 (see also Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11, [63]). The Husband proceeded on the basis that Mr H was in the Wife's camp because since separation, he has become estranged from each of his adult children. As the authors of Cross on Evidence (LexisNexis, 2025, 14th edition; [1215]) state the principle applies to an "unexplained failure ... to call witnesses" [Emphasis added]. The Wife explained the reason that she did not call Mr H: namely, that she did not wish to drag their adult son into the middle of the high conflict between his parents. The Husband's counsel dismissed that explanation as "poppycock" (T1208:L47). The conflict between the parents was high. The evidence included evidence of the Husband's physical assault of Mr H in May 2024 (Ex W10). In s. 43(1)(b) of the Act there is an exhortation that I have regard to "the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society...". In the context of s. 43(1)(b), I accept the Wife's explanation for not calling Mr H, an adult child of the relationship, as reasonable. I decline to draw any Jones v Dunkel inference.

[201]

As to legal costs, since the decision in Shinohara, where the funds used to pay legal costs existed at separation such that both parties can be seen as having an interest them, then the paid legal costs can be considered under s. 79(5)(v) (the relevant principle is still derived from Chorn & Hopkins [2004] FamCA 633, [57]). In contrast, if funds used to pay legal fees have been generated by a party post-separation from his or her own endeavours or sourced from a third-party gift, the relevant principle derived from Chorn would continue in to apply- the paid legal fees would generally not be a relevant consideration as to a s. 79(5) adjustment (Chorn, [58]). Chorn also remains authority for the proposition that I need not consider outstanding legal costs (Chorn, [59]).
The Wife's part-property settlement was the restoration of joint funds the Husband had unilaterally withdrawn. The Wife then applied the part-property settlement - by and large - to the payment of her legal costs. As a result, the Wife has paid her legal costs out of joint funds. At the end of the trial, her costs notice disclosed that she had spent $149,000 on legal costs (Ex W36). At the start of the trial, she held approximately $60,000 in CBA a/c #...80, the interim part-property settlement of $220,000 having been reduced to approximately $60,000 by her legal costs and living expenses. I have included the residue amount of (approximately) $60,000 in the identification of the divisible property above. It is possible that available funds left in #...80 were less by the trial's end but as I have noted the evidence did not travel that far.
I also accept the Wife's submission that I ought to avoid double counting as to the part property settlement, legal costs and residual funds left in #...80.
The Husband had spent approximately $129,000 on legal costs (Ex H33). Even though r. 12.06(6) requires it, his costs notice did not disclose "the source of the funds for the costs paid" nor did his evidence disclose (satisfactorily) how he had paid those legal costs. As to at least $59,000 there was direct evidence that he had paid his legal fees out of joint funds ($43,000 otherwise unaccounted for which I have explained below plus $9,000 being the proceeds of Motor Vehicle 2 plus $7,000 interest on the term deposit). There was also the apparent full dissipation of about $25,000 which had been in the E Business account. I infer that the E Business funds which were also joint funds were applied to the Husband's legal costs. It is possible - although unclear - that another part of the funds for Husband's legal costs might have been sourced from his sister (Ms EE) by way of a third-party gift, the $25,000 difference between the $250,000 he received in July 2024 and the $225,000 he repaid in January 2025.
It was within the Husband's power to lead evidence as to the source of funds for the payment of his legal costs (Blatch v Archer [1774] EngR 2; (1774) 1 Cowp. 63 at 65; [1774] EngR 2; 98 ER 969 at 970; cited in Wei (No 5) at [151]). In the absence of the Husband adducing evidence that he paid his legal costs out of the post-separation income or to otherwise explain the source of the funds, I infer that, by and large, he paid his legal fees from joint funds.
As a result, as to the intersecting issues of the part-property settlement and the payment of legal costs from joint funds, as Austin J did in Stubbs, I intend to take account of the disparity between the $160,000 which the Wife has had the benefit of (noting about $60,000 of the $220,000 she received by way of interim property settlement remains on the balance sheet) and the $129,000 that the Husband has had the benefit of- a disparity of $31,000 or more in favour of the Wife - as a consideration to which I give some weight as to an adjustment in the Husband's favour under section 79(5)(v). I note that the disparity might in fact be greater than $31,000 because the Husband may have paid some of his legal costs from his own funds, not matrimonial funds, but the evidence does not permit a definitive finding.

Tedesco & Tedesco (No 2) [2026] FedCFamC2F 82 (2 February 2026)

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