Artigas & Merino
[2025] FedCFamC2F 949
•10 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Artigas & Merino [2025] FedCFamC2F 949
File number: SYC 6510 of 2023 Judgment of: DEPUTY CHIEF JUDGE MCCLELLAND Date of judgment: 10 July 2025 Catchwords: FAMILY LAW – PROPERTY – Application for an adjustment under s 79 of the Family Law Act 1975 (Cth) – Where the husband was the principal income earner and funded the acquisition and maintenance of the former matrimonial home – Where the wife was the primary homemaker and caregiver after the birth of the parties’ child – Competing contentions over financial and non-financial contributions – Whether increase in husband’s shares and superannuation post-separation should form a separate property pool – One-pool approach adopted – Consideration of addbacks for funds expended by the wife – Future needs factors under s 75(2) of the Family Law Act 1975 (Cth) – Final orders for lump sum payment to wife with settlement effected by sale of former matrimonial home – Just and equitable division of property. Legislation: Family Law Act 1975 (Cth) Pt VIII, ss 75, 79 Cases cited: Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303
Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Britt & Britt (2017) FLC 93-764; [2017] FamCAFC 27
Carter & Wilson (2023) FLC 94-129; [2023] FedCFamC1A 9
Clauson and Clauson (1995) FLC 92-595; [1995] FamCA 10
Clives and Clives (2008) FLC 93-385; [2008] FamCAFC 172
Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
DJM v JLM (1998) FLC 92-816; [1998] FamCA 97
Dovgan & Dovgan [2021] FamCA 306
Franklin & Franklin [2010] FamCAFC 131
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395
Horrigan & Horrigan [2020] FamCAFC 25
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Jefferson & Coulston [2014] FamCA 1083
Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46
Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27
Kowaliw and Kowaliw (1981) FLC 91-092; [1981] FamCA 70
Lenehan and Lenehan (1987) FLC 91-814; [1987] FamCA 8
Lovine & Connor (2012) FLC 93-515; [2012] FamCAFC 168
Maine v Maine (2016) 56 Fam LR 500; [2016] FamCAFC 270
Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21
Martell v Martell (2023) 66 Fam LR 650; [2023] FedCFamC1A 71
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Omacini and Omacini (2005) FLC 93-218; [2005] FamCA 195
Petruski v Balewa (2013) 49 Fam LR 116; [2013] FamCAFC 15
S & S [2003] FamCA 905
Schaars & Schaars [2023] FedCFamC1F 12
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Teal v Teal [2010] FamCAFC 120
Tomasetti and Tomasetti (2000) FLC 93-023; [2000] FamCA 314
Townsend and Townsend (1995) FLC 92-569; [1994] FamCA 144
Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173
Trevi & Trevi (Re-Exercise) [2019] FamCAFC 51
Van der Linden & Kordell [2010] FamCAFC 157
Zao & Lee [2019] FamCAFC 169
Division: Division 2 Family Law Number of paragraphs: 124 Date of hearing: 12–14 May 2025 Place: Sydney The Applicant: Litigant in person Counsel for the Respondent: Mr Antill Solicitor for the Respondent: Takchi & Associates ORDERS
SYC 6510 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ARTIGAS
Applicant
AND: MR MERINO
Respondent
ORDER MADE BY:
DEPUTY CHIEF JUDGE MCCLELLAND
DATE OF ORDER:
10 JULY 2025
THE COURT ORDERS THAT:
1.The parties shall forthwith do all acts and things and sign all documents necessary to sell the property situated at GG Street, Suburb HH, being the whole of the land in title reference Lot …, Strata Plan …, for the best price reasonably obtainable and the following orders shall apply:
(a)the parties shall list the property for sale with an agent as agreed upon between the parties and failing agreement within fourteen (14) days as nominated by the husband (“the agent”);
(b)the parties shall instruct a lawyer as agreed upon by the parties and failing agreement within fourteen (14) days as nominated by the husband to have carriage of the sale of the property;
(c)the property shall be listed at a price and method as agreed upon by the parties and failing agreement within fourteen (14) days as nominated by the agent;
(d)on the settlement of the sale of the property the proceeds of sale are to be paid in the following manner and priority:
(i)all costs and expenses of sale including legal costs and disbursements, agent’s commission, marketing and auction expenses;
(ii)the amounts required to discharge the mortgage to NAB;
(iii)adjustments on settlement;
(iv)a payment to the husband of $11,000;
(v)a payment to the wife of $657,771.89;
(vi)the balance to the husband.
2.In the event either party refuses or neglects to execute a document or deed required to give effect to these orders within seven (7) days of being presented with such document or deed, then pursuant to s 106A of the Family Law Act 1975 (Cth), a registrar or other officer of the Federal Circuit and Family Court of Australia be appointed to execute the said document or deed in the place of the defaulting party.
3.The parties shall otherwise retain all property and superannuation in their own names.
4.The parties shall otherwise be responsible for satisfying any liabilities in their own names.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Artigas & Merino has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MCCLELLAND:
INTRODUCTION
This case concerns an application for property adjustment orders pursuant to Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) between the applicant wife, Ms Artigas (“wife”) and the respondent husband, Mr Merino (“husband”). The parties began cohabitation in 2000 and married in 2002. They relocated multiple times before settling in Australia. The couple had a child, X (“X”), in 2013. The parties separated in mid-2018.
I have found that both parties contributed financially during their relationship up until the parties’ child was born. After that time, the wife primarily managed the household and child-rearing responsibilities, while the husband focused on his career.
Having regard to the husband’s superior financial contributions together with the parties sharing parenting responsibilities in the period subsequent to equal time parenting orders being made in September 2022, I have found that a 5 per cent adjustment in favour of the husband in respect to contribution factors is warranted. That adjustment is however, offset by what I have found are the wife’s greater future needs. Accordingly, there will be an equal adjustment of the parties’ property.
The final orders provide for the former matrimonial home to be sold and for a lump sum payment to be paid from the husband to the wife, with the balance of the net proceeds payable to the husband.
BACKGROUND
In 1975, the husband was born in City JJ, Country F. In 1978, the wife was born in City KK, Country E. In mid-2000, the parties commenced cohabitation. The wife worked as a professional at LL Company and as an educator, while the husband worked at MM Company.
In 2002, the parties married in Country E and relocated to Country F. The wife worked as a freelancer (unpaid), and the husband was an expat for MM Company, Country E. In or around mid-2003, the parties relocated to City OO, United Kingdom. The wife worked at NN Company, and the husband continued as an expat for MM Company, Country E. In or around late 2005 the parties moved to City PP, Country Q. The wife joined RR Company, and the husband continued as an expat for MM Company, Country E.
In late 2007, the husband resigned from MM Company Country E to pursue further studies in Country TT. In early 2008, the husband started his studies; whilst the wife stayed in Country Q, working as a professional. In early 2010, the wife took leave for medical treatment in Country TT.
The wife experienced a complex pregnancy, and in 2013 their child, X, was born.
In mid-2014, the husband was promoted to a senior professional position, at UU Company, Australia. In mid-2016, he was promoted to another senior position.
In late 2014, the parties purchased a property at GG Street, Suburb HH (“Suburb HH property”).
In mid-2017, an Apprehended Domestic Violence Order (“ADVO”) was issued, and accepted by the husband without admission. It was stated to be for the purpose of protecting the wife from the husband. On 1 June 2018, the parties separated on a final basis.
The wife contends the husband withdrew $13,000 from the NAB Home Loan account and $34,000 from the NAB joint accounts in June 2018. However, the husband contends that the total drawdown was only $13,584.87. The evidence has not enabled me to determine which party is correct.
In mid-2018, the wife moved with X to Suburb EE, renting a property for $520 per month.
On 8 October 2018, the husband initiated parenting court proceedings; the wife engaged private lawyers. On 14 June 2022, the parenting final hearing took place over four days. On 29 September 2022, parenting final orders were made.
The wife contends she did not receive child support for five months from September 2020, and that the NAB mortgage was unpaid for six months. I accept the arrears were, however, rectified by the husband.
In early 2021, the husband left UU Company. He received a severance payment that, exceptionally, took his income to approximately $800,000 for that year. In early 2022, the husband joined VV Company as a professional. In mid-2022, he was made redundant at VV Company.
In early 2023, the husband started working at WW Company as a professional. In early 2025, the husband’s employment at WW Company was terminated due to the companies’ concerns regarding the husband’s performance.
On 1 September 2023, the wife initiated property court proceedings. On 2 July 2024, Senior Judicial Registrar Osmand ordered that the wife be paid $35,000 by the husband. Of that sum, $15,000 was characterised as spousal maintenance and $20,000 as a partial property distribution.
In early 2025, the wife’s rental lease was terminated, requiring her to move within 21 days. Shortly after, she signed a new tenancy lease at XX Street, Suburb YY for $400 per week.
On 12 May 2025, the final hearing commenced and ran for three days with judgment reserved on 14 May 2025.
DOCUMENTS RELIED UPON
In their respective Case Outlines, both parties indicated an intention to rely on voluminous documents.
Fortunately, at the commencement of the hearing, the husband indicated that he would only seek to rely on his trial affidavit filed on 26 March 2025, together with additional documents tendered during the proceedings.
After debate, I ruled that the wife could rely on multiple affidavits filed for the purpose of these proceedings, that is the claim for orders pursuant to Pt VIII of the Act. I did not, however, allow the wife to rely on affidavit evidence that had previously been relied upon for the purpose of the now completed parenting proceedings that were heard and determined by orders made by Altobelli J on 29 September 2022.
Accordingly, the documents that I have considered for the purpose of these proceedings are the following.
Wife’s Documents
The wife relied upon the following documents:
·Affidavit filed by the wife on 1 September 2023;
·Financial Statement filed by the wife on 1 September 2023;
·List of Documents filed by the wife on 15 October 2023;
·Bundle from affidavit filed by the wife on 15 October 2023;
·Case Outline Interim Hearing filed by the wife on 8 November 2023;
·Affidavit Financial Disclosure filed by the husband on 8 January 2024;
·Affidavit filed by the wife on 19 April 2024;
·Tender bundle filed by the wife on 2 July 2024;
·Affidavit filed by the wife on 14 August 2024;
·Amended Application in a Proceeding filed by the wife on 26 September 2024;
·List of Documents filed by the wife on 27 September 2024;
·Affidavit filed by the wife on 12 March 2025;
·Affidavit filed by the wife on 25 March 2025;
·Affidavit filed by the wife on 23 April 2025; and
·Documents tendered as exhibits by the wife.
Husband’s Documents
The husband relied upon the following documents:
·Final trial affidavit filed by the wife on 13 March 2025;
·Final trial affidavit, including Annexures “MRM01–MRM112”, filed by the husband on 26 March 2025; and
·Documents tendered as exhibits by the husband.
PROPOSED ORDERS
Orders Sought by the Wife
The orders proposed by the wife are attached as Annexure “A” to this judgment.
Orders Sought by the Husband
The orders proposed by the husband are attached as Annexure “B” to this judgment.
PROPERTY ADJUSTMENT – LEGAL PRINCIPLES
In circumstances where both parties contend that orders should be made for the adjustment of their property upon the breakdown of their marital relationship, the task before the Court is to make such orders as are appropriate, just and equitable having regard to the language of both s 79(1) and s 79(2) of the Act.[1]
[1] Zao & Lee [2019] FamCAFC 169 at [48].
In exercising its discretion, the Court is required to take into account the matters set out in s 79(4) of the Act. Section 79(4) is divided into two limbs. The first limb is in respect to those matters set out in paragraphs (a) to (c), which deal with what are commonly known as the “contribution” factors. Contributions can, in turn, be direct or indirect, financial or non-financial contributions to the matrimonial property. The second limb is in respect to those matters set out in paragraphs (d) to (g), which primarily relate to the future needs of the parties but can include any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account.
The broad discretion conferred by s 79 of the Act is not, however, to be exercised “according to an unguided judicial discretion”.[2] The leading case of Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at [39] (“Hickey”), provided useful guidance recommending that, in determining what orders are appropriate, just and equitable the preferred approach is to adhere to the following four steps:
(1)Identify and determine the asset pool of the parties as at the date of the hearing (this necessarily involves identifying both the assets and liabilities);
(2)Identify and determine each of the parties’ financial and other contributions to the date of the hearing (this can include the financial contributions made before, during and after the marriage);
(3)Assess how future and other events may have a financial impact on either of the parties, such as their age, state of health, income and property or financial resources (known as the s 75(2) factors); and
(4)Step back and examine this formula-based reasoning against the history of the marriage, intangible considerations and other contingencies so as to consider whether the outcome represents a just and equitable result.
[2] Stanford v Stanford (2012) 247 CLR 108 at [38] (French CJ, Hayne, Kiefel and Bell JJ) (“Stanford”).
In undertaking the recognised second step of weighing the parties’ respective contributions,[3] I am required to take into consideration all of the myriad contributions, including both parties’ initial contributions, in a holistic fashion.[4] That is, in the exercise of discretion under s 79 of the Act, the Court is required to “weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation”.[5] Given their differing natures, it is not possible to assess contributions with mathematical precision so as to allow them to be weighed neatly against one another.[6] In reality, the “task is like comparing apples and oranges”.[7] All contributions must be weighed collectively rather than segmented or compartmentalised and weighed one against the remainder,[8] with the Court charged with moving from a qualitative to a quantitative assessment.[9]
[3] Bevan & Bevan (2013) FLC 93-545 at [60]–[71] (the Court). See also Schaars & Schaars [2023] FedCFamC1F 12 at [21] (Altobelli J).
[4] Dickons v Dickons (2012) 50 Fam LR 244 (“Dickons”) at [24] and [26]. See also Jabour & Jabour (2019) FLC 93-898 (“Jabour’) at [86].
[5] Jabour at [60].
[6] Norbis v Norbis (1986) 161 CLR 513 at 522 (Mason and Deane JJ) (“Norbis”), as applied in Clives and Clives (2008) FLC 93-385 at [41], [44]–[45].
[7] Franklin & Franklin [2010] FamCAFC 131 at [177] (Boland and Thackray JJ).
[8] Jabour at [73]–[87], as applied in Horrigan & Horrigan [2020] FamCAFC 25 at [42]–[48].
[9] Mallet v Mallet (1984) 156 CLR 605 at 625 (Mason J); Teal v Teal [2010] FamCAFC 120 at [36] (Boland
In undertaking the third step, that is the task of assessing the parties’ future needs, the Full Court has cautioned against a tendency “to assess s 75(2) factors in percentage terms without considering its real impact” and that it “is the real impact in money terms which is ultimately the critical issue”.[10]
[10] Clauson and Clauson (1995) FLC 92-595 at 81,911, as applied in Trevi & Trevi (Re-Exercise) [2019] FamCAFC 51 at [48].
In undertaking the fourth stage, referred to in Hickey, it has been said that what is a “just and equitable” outcome “does not admit of exhaustive definition”, nor is it “possible to chart its metes and bounds”.[11] It is important to recognise that “the whole is not necessarily the sum of its component parts, and at the very least one has to stand back, at the end, and look at the final result, to ensure that the cumulative process has not produced a manifestly unjust result”.[12]
[11] Stanford at [36].
[12] Tomasetti and Tomasetti (2000) FLC 93-023 at [114].
It is to be appreciated that the exercise of the broad discretion given to the Court pursuant to s 79 of the Act “‘inevitably involves value judgments and matters of impression’, and accordingly it cannot be treated as ‘a mathematical exercise’”.[13]
[13] Petruski v Balewa (2013) 49 Fam LR 116 at [49], citing Lovine & Connor (2012) FLC 93-515 at [40]–[41].
Is it Just and Equitable to Make a Property Adjustment?
Both parties contend that there should be an adjustment of property.
The Balance Sheet
At trial, the parties agreed in oral submissions that the balance sheet setting out their respective contentions as to matrimonial property, including agreed variations and responses by way of mark up, with totals inserted accordingly, is as set out below:
ASSETS
Ownership
Description
Wife’s Value
Husband’s Value
1
Joint
Suburb HH property (valuation 18 February 2025)
$1,325,000
$1,325,000
2
H
NAB bank account
$24,818
$24,818
3
H
UU Company shares
$75,440
$75,440
4
H
VV Company shares
$27,757
$27,757
5
H
Motor vehicle – Motor Vehicle 1
E$30,000
E$30,000
6
H
Household contents
E$7,500
E$7,500
9
W
NAB (4 May 2025)
$0.23
$0.23
10
W
Commonwealth Bank (4 May 2025)
$28
$28
11
W
ZZ Bank (4 May 2025)
$196
$196
12
W
AB Bank (4 May 2025)
$50
$50
13
W
Local bank account (4 May 2025)
$115
$115
14
W
AC Bank dormant account in Country Q (4 May 2025)
$5
$5
15
W
AD Bank dormant account (4 May 2025)
$3
$3
16
W
Motor Vehicle 2 (hail damaged)
E$15,000
E$15,000
17
W
Household contents
E$480
E$480
Total
$1,506,392.23
$1,506,392.23
LIABILITIES
19
Joint
NAB Home Loan #...95
$358,324
$358,324
20
Joint
NAB Home Loan #...23
$131,996
$131,996
23
W
AE Company (4 May 2025)
E$900
$0
24
W
AJ Organisation non–interest loan (4 May 2025)
E$1,000
$0
26
W
AK Finance (4 May 2025)
$2,372.27
$0
27
W
AL Finance (4 May 2025)
$671.19
$0
Total
$495,263.46
$490,320
SUPERANNUATION
Member
Name of Fund
Wife’s value
Husband’s value
28
H
Super Fund 1
$326,949.60
$326,949.60
29
H
Super Fund 2
$26,561.78
$26,561.78
30
H
Super Fund 3
$20,513.62
$20,513.62
31
W
ATO Fund
$799
$799
Total
$374,824
$374,824
Total (assets – liabilities)
$1,011,128.77
$1,016,072.23
Total (assets – liabilities + superannuation)
$1,385,952.77
$1,390,896.23
Items 2–6 were included as admissions against interest by the husband, as were items 9–17 in the case of the wife.
The wife failed to provide evidence as to the quantification of items 23, 24, 26 and 27 and they will not, therefore be included on the balance sheet.
The husband agreed to the wife’s value of $799 for item 31 as an admission against interest (Transcript 14 May 2025, p.212 line 40).
I therefore determine the balance sheet of the parties’ assets, superannuation and liabilities to be:
ASSETS
Ownership
Description
Value
1
Joint
Suburb HH property (valuation 18 February 2025)
$1,325,000
2
H
NAB bank account
$24,818
3
H
UU Company shares
$75,440
4
H
VV Company shares
$27,757
5
H
Motor vehicle – Motor Vehicle 1
$30,000
6
H
Household contents
$7,500
9
W
NAB (4 May 2025)
$0.23
10
W
Commonwealth Bank (4 May 2025)
$28
11
W
ZZ Bank (4 May 2025)
$196
12
W
AB Bank (4 May 2025)
$50
13
W
Local bank account (4 May 2025)
$115
14
W
AC Bank dormant account in Country Q (4 May 2025)
$5
15
W
AD Bank dormant account (4 May 2025)
$3
16
W
Motor Vehicle 2 (hail damaged)
$15,000
17
W
Household contents
$480
Total
$1,506,392.23
LIABILITIES
19
Joint
NAB Home Loan #...95
$358,324
20
Joint
NAB Home Loan #...23
$131,996
Total
$490,320
SUPERANNUATION
Member
Name of Fund
Value
28
H
Super Fund 1
$326,949.60
29
H
Super Fund 2
$26,561.78
30
H
Super Fund 3
$20,513.62
31
W
ATO Fund
$799
Total
$374,824
Total (assets – liabilities)
$1,016,072.23
Total (assets – liabilities + superannuation)
$1,390,896.23
Addbacks
The husband contended that monies that he paid to the wife pursuant to orders made on 2 July 2024 should be included as an add back to the property pool. Those orders provided that the wife was to be paid the amount of $15,000 by way of lump sum interim spousal maintenance and the sum of $20,000 by way of partial property distribution.
The husband contended that the Court should accept that, rather than these funds being applied for day–to–day expenses, the evidence indicated that a substantial portion of these funds was expended on discretionary overseas medical travel for non-urgent procedures .
In Jefferson & Coulston [2014] FamCA 1083 at [31]–[32], Tree J voiced doubt as to whether a trial judge “can, in effect, undo the juridical basis for a previous order”, which his Honour described as seeming to involve “some curious form of judicial alchemy”. I share his Honour’s doubt. It is, however, unnecessary to determine that question in this case as I am satisfied the order for spousal maintenance was made in circumstances where the wife established that it was necessary for her to meet her expenses and those of her daughter. That is not, however the case in respect to the lump sum amount of $20,000.
In Omacini and Omacini (2005) FLC 93-218 at [30] (“Omacini”), the Full Court identified three categories where it may be appropriate to notionally add back an item of expenditure, as follows:
(1)Where the parties have expended money on legal fees: see DJM v JLM (1998) FLC 92-816 at 85,262;
(2)Where there has been a premature distribution of matrimonial assets: see Townsend and Townsend (1995) FLC 92-569 at 81,654; and
(3)In the circumstances outlined by Baker J in Kowaliw and Kowaliw (1981) FLC 91-092 at 76,644, including:
(a)Where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets; or
(b)Where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
The mere fact that a party has been allocated a lump sum amount by way of partial property distribution at a point in time prior to the hearing does not necessarily mean that the amount should be added back as falling within the second category identified in Omacini. This is because it is well recognised that parties do not go into a state of suspended economic animation, as noted in Trevi & Trevi (2018) FLC 93-858 at [29] (Alstergren DCJ, Murphy & Kent JJ).
The difficulty for the wife, however, is that she has failed to provide all relevant bank statements from two crucial bank accounts, being one held with ZZ Bank and the other with AB Bank. In those circumstances I am unable to determine that the lump sum amount of $20,000 was spent on the day–to–day living expenses of the wife and the parties’ daughter. My inability to do so is irrespective of the fact that the wife stated that she failed to produce those accounts to explain the expenditure of the $20,000 in circumstances where the Court and the husband were both already aware that the amounts had been allocated to her. In summary, the question is not the allocation of funds but rather the producing of evidence to substantiate her assertion that the funds were applied to day–to–day living expenses rather than discretionary overseas travel. She has failed in that respect.
Accordingly, I will include the amount of $20,000 as an add back on the balance sheet as funds already distributed to the wife.
ONE POOL OR TWO POOLS
It is not uncommon for the Court to assess contributions on the basis of a multiple pool approach. This approach involves identifying and isolating specific items of property in respect to which the other party made little or no contribution in a separate pool to the remainder of the balance sheet items, thereby creating two pools. There is no doubt that such an approach is open to a trial judge: Lenehan and Lenehan (1987) FLC 91-814 at 76,148, referring to Norbis v Norbis (1986) 161 CLR 513 (“Norbis”).
The husband contends that the Court should take a two pools approach to the parties’ property with the second pool representing firstly, the increase in value of his shares in the post separation period and, secondly, the increase in value of his superannuation in the post separation period.
In the exercise of my discretion, I decline to take that approach as advocated by the husband. This is because while there has been an increase in the value of his shareholdings and superannuation in the post separation period, that increase includes a substantial amount of interest earned on the capital sum being held by way of shares and, also, as superannuation. The husband’s shareholding was substantially based upon shares allocated as an emolument of his employment.
In circumstances where the wife contributed to the husband’s career development including by being the prominent homemaker and the primary carer of the parties’ child, the husband was able to devote his time to his employment and advancing his career. In my view, to treat the post separation increase in this capital sum that is now available to the husband as represented in the value of the shares and the superannuation entitlement, in circumstances where the wife effectively contributed to his acquisition of those shares and his superannuation contributions up until the point of the parties’ separation, would be inequitable.
Additionally, the wife also contributed to the husband’s ability to focus on his employment in the post-separation period by caring for the child in the post-separation period up until the orders were made by Altobelli J in September 2022.
Accordingly, in this matter, I take a one pool approach, and I will regard the husband’s shares and superannuation as being property already in his possession.
CONTRIBUTIONS
The Court is required to make an assessment of the nature and quality of the totality of the parties’ contributions throughout the entirety of their relationship, together with their contributions in the period subsequent to their separation. In Dickons at [14] (Bryant CJ, Faulks DCJ and Murphy J), Jabour at [61] (Alstergren CJ, Ryan and Aldridge JJ) and Dovgan & Dovgan [2021] FamCA 306 at [347] (Harper J), which restates the need to holistically assess contributions following the case of Dickons, it has been explained that “all contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder”.
Initial Contributions
Perhaps the only issue agreed between the parties in respect to their respective contributions was that each acknowledged that neither had any assets of substance at the commencement of the parties’ relationship.
Financial Contributions During the Course of the Parties’ Relationship
The wife contends, at paragraphs 7 through to 9 of her affidavit filed on 13 March 2025, that, during the course of the parties’ relationship, up until the period where she became pregnant, that she “contributed 100% financially”. She reaches that conclusion on the basis of her assertion that “the [husband’s] income was earned in [Country E] currency, which had become highly devalued”. She contends that during this period the parties’ living expenses were predominantly covered by her earnings.
The wife contends that, comparatively, the husband’s employer primarily “compensated him through non–monetary benefits such as travel arrangements” for the parties and their extended family.
The wife contends that the parties’ most substantial asset, being the Suburb HH property, was purchased “using [her] savings as a guarantee”. In that respect, the wife acknowledged that her savings at the time had accumulated to approximately $240,000 and that she retained those savings at the point of the parties’ separation.
The husband contends that he was the sole or primary financial provider for the household, funding living expenses, international relocations, and the wife’s education across multiple countries.
The purchase of the former matrimonial home was funded solely by the husband. He contends that this included the payment of the deposit, settlement costs, and all mortgage repayments to date. He further contends that despite the wife’s access to substantial personal savings at the time, she made no contribution to the purchase or maintenance of the property.
Conclusion in Respect to Financial Contributions by the Parties During the Course of their Relationship
I am satisfied that during the course of the parties’ relationship and up until the birth of the parties’ child in 2013, that the parties both made financial contributions to their matrimonial property from the income they earnt during the course of the employment they had, which has been set out under the background heading of this judgment. I do not accept the wife’s contention that the husband’s financial contribution should be given less weight as a result of the fact that it was in Country E dollars. This is because no evidence has been presented as to the comparative value of the currency utilised to pay the salary of each of the parties.
I am satisfied that the husband made a superior financial contribution during the course of the parties’ intact relationship as he earned a higher salary than the wife during the relevant period until the parties’ child was born. The husband also continued to be the sole breadwinner of the family after the parties’ child was born. That, of course, needs to be seen in the context of the entirety of the parties’ relationship, having regard to the totality of the contributions, including homemaking and child rearing.
I also accept that the husband contributed the totality of funds used to acquire the Suburb HH property. I accept, however, that it is probably the case that in assessing the parties’ creditworthiness, that the bank would have had regard to the parties’ savings, as reflected in the amount of approximately $240,000 that the wife had in her savings account.
Non-financial Contributions During the Course of the Parties’ Relationship
Both parties contended that they made superior non-financial contributions during the course of their intact marriage in the period prior to the birth of the parties’ child. The parties’ respective contentions reflected the partisan positions taken throughout the course of this litigation, and I give little weight to their respective subjective assessments of their own contributions as against the other. The preferable course is to acknowledge that both parties made equivalent non-financial contributions during the course of their intact relationship up until the period when their child was born in 2013.
The wife contends that while she withdrew from the paid workforce after the parties’ child was born, she undertook the predominant role as a homemaker and as the parent primarily responsible for the care of the parties’ daughter.
The husband, on the other hand, contends that not only was he the primary income earner, but he also performed an equivalent amount of duties as a homemaker and in respect to caring for the parties’ child.
I give little weight, however, to that subjective assessment of his own role as a homemaker and parent given the parlous approach of the parties to the litigation. The fact that the husband was employed in senior positions with substantial responsibility reflected in the income he received suggests that his work commitments would not have enabled him to allocate the same amount of time as the wife had available in circumstances where she was not in the paid workforce.
I therefore conclude that the wife made superior non-financial contributions to the husband during the course of the parties’ intact relationship.
Post-Separation Contributions
The wife has not worked in paid employment since the parties’ child was born. Other than periods of temporary unemployment, the husband has continued to work. Significantly, he has not worked since early 2025. He has, however, despite those periods of unemployment, been the party who has solely been responsible for making financial contributions to the parties’ property, including sustaining the mortgage and outgoings in respect to the Suburb HH property.
I acknowledge, however, that since September 2020, he has benefited from being the party who has resided in the Suburb HH property.
As against the husband’s direct financial contributions, in the period subsequent to the parties’ separation on 1 June 2018, until final parenting orders were made on 29 September 2022, the wife was solely responsible for the care of the parties’ child albeit with financial assistance provided by the husband in the form of child support payments made for the child.
While the wife complained that there was a period when the husband was in arrears of both child support and mortgage payments, I am satisfied that, eventually, the husband caught up with those payments.
Justice Altobelli, on 29 September 2022, ordered that the parties’ child is to spend equal time with her parents. Accordingly, in the period subsequent to 29 September 2022, the husband has made an equal contribution to the wife in respect to parenting the parties’ child. He has also been the sole income earner.
Kennon Issue
The husband contends that there should be an additional adjustment in his favour as a result of the application of principles adumbrated in the well-known case of Kennon v Kennon (1997) FLC 92-757 (“Kennon”). This is because, he contends, that the manner in which the wife conducted herself during the course of the parties’ parenting proceedings amounted to coercive and/or controlling conduct on her part. Specifically, he contends that this was in the form of the wife making false allegations against him, alleging abuse of the parties’ daughter and in opposing the child spending time with him unless it was supervised. The husband contends that the irresponsible position taken by the wife in respect to those matters amounted to coercive and/or controlling conduct.
The Full Court in Kennon and subsequently in S & S [2003] FamCA 905, held that a victim of family violence seeking to have their circumstances considered in a family law property case was required to establish that their situation gave rise to an “exceptional case” where:
(1)They were the subject to a course of violent conduct during the course of the marriage;
(2)They demonstrate:
(a)The violence had a significant adverse impact upon that party’s contributions to the marriage, or;
(b)The violence made his or her contributions significantly more arduous than they ought to have been.
(3)They quantify the effect of the violence on that party’s ability to contribute in terms of s 79(4)(c) of the Act; and
(4)They demonstrate the above by direct evidence or “where it is an obvious or very likely inference” from the facts that the violence had the requisite effect on the party’s ability to contribute to the marriage.
A number of more recent authorities confirm that “the adverse effect of the violence on the contributions of a party can be inferred from the lay evidence of the parties and that there is no need to call evidence to ‘quantify’ that effect” (see Martell v Martell (2023) 66 Fam LR 650 at [27] (“Martell”), citing Maine v Maine (2016) 56 Fam LR 500 at [47]–[52]; Britt& Britt (2017) FLC 93-764 at [74]–[75]; Keating & Keating (2019) FLC 93-894 at [27]–[43], [52]–[67]; Benson & Drury (2020) FLC 93-998 at [47]–[50] (“Benson & Drury”)).
In Benson & Drury, the Full Court at [35] said:
The central question raised by this appeal is how a judge takes into account the contributions of one party, found to have been made significantly more arduous by the conduct of the other, when assessing contributions under ss 79(4)(a)–(c) or ss 90SM(4)(a)–(c) of the Act. The answer is the primary judge must take a holistic approach. The contributions which have been made significantly more arduous have to be weighed along with all other contributions by each of the parties, whether financial or non-financial, direct or indirect to the acquisition, conservation and improvement of property and in the role of homemaker and parent. All contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder (Jabour & Jabour (2019) FLC 93-898 at [73]–[87] (“Jabour”); Horrigan & Horrigan [2020] FamCAFC 25 at [42]–[48]).
The authority confirms that in order to establish a “Kennon claim” two requirements must be satisfied:
(1)Firstly, there must be evidence establishing the occurrence of family violence; and
(2)Secondly, evidence must be adduced to satisfy the Court that the contributions of the party who alleges they have been the subject of family violence have been “made significantly more arduous” as a result of that violence.
A number of claims have failed because the party has not given sufficient attention to the second requirement. As noted by Aldridge J in Martell at [24]: “The focus is not on the conduct per se, but on its effects on contributions”.
In that respect, Martell, whilst taking an expanded view of when the Court can have regard to the impact of family violence, Aldridge J upheld the appeal in circumstances where “the primary judge did not explain how the acts of violence of the husband led to the non-financial contributions of the wife being made difficult, distressing and more arduous” (at [31]).
In this case, the husband has failed to establish that the wife’s conduct in withholding the child from him and insisting upon the child’s time with him being supervised, amounted to family violence in the form of coercive and controlling conduct. This is because it is well established that a parent’s conduct in genuinely acting protectively in the face of what they, even misguidedly, perceive to be a risk to the child does not amount to family violence: see Carter & Wilson (2023) FLC 94-129 at [16]–[17] (“Carter”).
I do not therefore take into consideration the legal fees paid by the husband in respect to the parenting proceedings or the cost incurred in paying for supervision as a result of interim orders made by the Court, as a factor justifying a higher contribution on his part or a lesser contribution on the part of the wife.
I would add that even if I am wrong in my application of the principal adumbrated in Carter, the husband has failed to establish how the alleged coercive and/or controlling conduct made his contributions more “difficult, distressing and more arduous”.
The wife also seeks to rely upon the principal adumbrated in Kennon to seek an additional adjustment in her favour. In that respect, she refers to the making of an ADVO in 2017 applying to the husband and naming the wife as the protected person.
The husband contends that the Court would not find the occurrence of family violence on the basis of the mere fact that the ADVO had been issued. This is because the husband contends that he consented to the making of the order, and more significantly, and relevantly, the husband notes that there is no evidence before the Court as to the nature of the actual event that underpinned the making of the ADVO. I accept that this is fatal to the wife’s Kennon claim.
Even if I am wrong in that, however, the wife has not established how she was impacted by the alleged family violence and how it is said that her contributions were made more “difficult, distressing and more arduous”.
In assessing the parties’ respective contributions, I have not taken into consideration the issue of possible exposure to family violence.
For completeness, I also confirm that I have not had regard to the legal fees paid by the husband as a relevant consideration under s 75(2)(o) of the Act. This is because the time to seek redress for those payments was at the conclusion of the parenting proceedings and before the judge who heard that case. Further, I am not persuaded that I should have regard to payments made by the husband in the form of professional supervision costs. While, with the benefit of hindsight, a different view may now be taken as to whether that supervision was necessary, it was clearly considered appropriate and in the child’s best interests at the time.
Assessment of Contributions
Taking the required holistic assessment of the parties’ contributions, both financial and non-financial, I find that there should be an adjustment in favour of the husband of 5 per cent. This is because of the following.
During the course of the parties’ relationship, the husband contributed the totality of the purchase price and associated expenses in respect to the acquisition of the Suburb HH property.
Comparatively, the wife did not access savings that she retained and carried with her into the post-separation period.
In respect to the post-separation period, the husband continued to be the only party earning an income, which income was applied, in substantial part, to maintaining the property of the parties, including the mortgage of the Suburb HH property. While the wife made a superior non-financial contribution in the period post separation until parenting orders were made on 29 September 2022, in the period subsequent to that date the husband made an equivalent contribution to the wife in respect to parenting while, at the same time, continuing to be the only party earning an income. That income sustained the parties’ property and contributed to the husband’s superannuation, which is the second most significant asset in the property pool.
Relevant s 75(2) Factors Pursuant to s 79(4)(e)
Subsection (2)(a) – the age and state of health of each of the parties
The husband is 49 years of age and the wife is 47 years of age. The husband contends that he suffers depression as a result of the pressure of the litigation and the manner in which the wife conducted herself during the course of the parenting proceedings. No admissible expert evidence has, however, been presented confirming that the husband suffers from any mental affliction.
The wife contends that she suffers from a number of medical ailments associated with her pregnancy and the subsequent birth of the parties’ child together with other potential afflictions. Again, however, the wife has failed to present admissible evidence that she suffers from any mental or physical affliction and if so, what the nature of that affliction is and the impact that it has upon her.
Subsection (2)(b) – the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
I have earlier set out the property, superannuation and liabilities of the parties.
For reasons that I have explained, neither party has produced any admissible medical evidence that satisfies me that they suffer from any physical or mental capacity that impacts their earning capacity.
I am satisfied, however, that the husband has a substantial earning capacity as reflected in the income he has earned in various positions since the commencement of the parties’ relationship. In that respect, the wife contends that I should assess the husband’s earning capacity according to his declared taxable income of three years ago in the sum of $800,000. The husband has, however, satisfactorily explained that his income in that year was substantially inflated by a severance payment. Having regard to employment contracts attached to the husband’s affidavit, I am satisfied that the more appropriate assessment of the extent of the husband’s income is an income earning capacity of approximately $200,000 per year, being the approximate amount he received in his last declared tax return of two years ago.
Subsection (2)(c) – whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
Both parties now share, equally, the care of the parties’ daughter who is 12 years of age.
Subsections (2)(d) and (e) – commitments of each of the parties that are necessary to enable the party to support himself or herself, and a child or another person that the party has a duty to maintain; and the responsibilities of either party to support any other person
As earlier indicated, both parties equally share the care of the parties’ daughter. There is no reason, however, as to why during those periods that the child is in the care of the husband, the wife would not be able to engage in gainful employment. Indeed, the acknowledgement that she has voluntarily provided technological assistance to various organisations suggests that she does have the capacity for paid employment.
Subsection (2)(f) – the eligibility of either party for a pension, allowance or benefit under any law of the Commonwealth, of a State or Territory or of another country; or any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party
The wife is currently in receipt of Social Security. I have not, however, taken that into consideration in determining the wife’s future needs in circumstances where I have assessed her to have a substantial earning capacity. I note that the husband has a substantial entitlement to superannuation. However, in circumstances where I have taken a one pool approach to the parties’ assets and the husband’s superior superannuation, his entitlement will be treated as an asset in his hands. I do not further consider the husband’s superannuation as a matter of relevance to the party’s respective future needs.
Subsection (2)(g) – where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable
Both parties enjoyed a comfortable standard of living during the period of their intact relationship. While there was considerable focus on the fact that the wife has undertaken overseas travel in the period post separation, there was no evidence that either party currently lives anything other than a relatively modest lifestyle.
Subsection (2)(h) – the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income
The wife attested to engaging in several courses to assist her return to the workforce however little evidence was provided as to the nature of those courses or as to the nature of the expense associated in engaging in those courses, and the manner in which engaging in them would assist her earning capacity. Accordingly, I have not regarded this as a relevant consideration.
Subsection (2)(ha) – the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant
This is not a relevant consideration.
Subsection (2)(j) – the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party
I accept that the fact that the wife took on the majority of parenting responsibilities and also homemaking tasks was such that it enabled the husband to devote more of his time and focus to progressing in his career. The husband has received the benefit of that career progression in his post separation income and his ability to contribute to his superannuation.
Subsection (2)(k) – the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration
The parties were married for 16 years. I accept the fact that the wife has been out of the paid workforce since the parties’ child was born and that has made returning to the paid workforce more challenging, and is likely to be a factor in her returning to work at a lower level of seniority and responsibility than she had when she was last in the workforce. This will necessarily be reflected in the income she receives.
Subsection (2)(l) – the need to protect a party who wishes to continue that party’s role as a parent
Both parties wish to make contributions as a parent. They share that responsibility equally and accordingly, this consideration does not favour either party.
Subsection (2)(m) – if either party is cohabiting with another person—the financial circumstances relating to the cohabitation
The husband currently resides with a new partner. In his Financial Statement filed on 10 October 2023, the husband stated that his partner earns $1,000 per week.
During the course of the proceedings, the husband has attested that a child of his current partner has developmental challenges. As unfortunate as it would be for the child to be afflicted by any developmental challenge, no evidence has, however, been presented that would enable me to make an assessment as to the extent to which the husband is required to provide financial and/or other assistance to the child.
Subsection (2)(n) – the terms of any order made or proposed to be made under section 79 in relation to the property of the parties; or vested bankruptcy property in relation to a bankrupt party.
This is not a relevant consideration.
Subsection (2)(naa) – the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to a party to the marriage; or a person who is a party to a de facto relationship with a party to the marriage; or the property of or vested bankruptcy property in relation to a person covered by the categories aforementioned
This is not a relevant consideration.
Subsection (2)(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
While the wife questioned the husband’s ongoing commitment to meeting his child support obligations, no evidence has been presented that causes me to doubt the husband’s commitment to meeting those responsibilities, including the child’s private school education expenses, in the event that she is unsuccessful in winning a place at a selective state school.
Subsection (2)(o) – any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
There is no other consideration that I have regarded as being relevant to my decision.
Evaluation of s 75(2) Factors
The relevant factors that I have regarded as being relevant to my assessment of a just and equitable adjustment of the parties’ property are the following:
·The wife has been out of the paid workforce since the parties’ child was born;
·Consequently, there will inevitably be challenges to the wife returning to the full-time paid workforce;
·The husband has demonstrated a substantially higher earning capacity than the wife and based on that earning capacity, is likely to enjoy a higher standard of living than the wife; and
·Both parties have ongoing responsibility to care for the parties’ child. The husband will receive some assistance in meeting the expenses of his household, including the parties’ child, through the income earned by his current partner.
As a result of those factors, I am satisfied that an adjustment of 5 per cent in favour of the wife is appropriate having regard to those matters set out in s 75(2) of the Act.
Spousal Maintenance
In circumstances where I have made a significant adjustment in favour of the wife in respect to s 75(2) considerations, I do not make a discrete order for spousal maintenance as sought by the wife. This is because the same s 75(2) considerations have already been taken into account in determining the s 75(2) adjustment in the wife’s favour of 5 per cent.
OVERALL EVALUATION
Accordingly, there will be an equal adjustment of the parties’ property.
The total net assets and superannuation of the parties (including the add back of $20,000 but less liabilities) is $1,410,896.23.
On the basis of an equal split, the wife is entitled to the total amount of $705,448.12.
The wife currently has in her possession property totalling $36,676.23.
This means that in the event of the husband retaining the Suburb HH property, he is required to pay a lump sum to the wife in the amount of $668,771.89 less the amount of $11,000 which the wife acknowledged would be an adjustment to the husband in respect to the wife’s share of the report fee of Dr C which is payable upon completion of the property proceedings.
The parties agree the settlement should be effected by way of sale of the Suburb HH property. However, in my view, neither party’s proposed orders are practical. I will therefore make orders for the property to be sold, with the husband having ultimate control of the settlement. This is in circumstances where the wife is assured of a fixed sum payout and it is in his interests to maximise the sale price.
While I have not taken up the husband’s proposal to refinance the property there will be nothing preventing him from making a reasonable offer to purchase the property.
The parties will otherwise keep all property and superannuation in their own names and be responsible for any debts in their own names.
I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Judge McClelland. Associate:
Dated: 10 July 2025
ANNEXURE A – PROPOSED MINUTE OF ORDERS SOUGHT BY THE WIFE
1. HOUSE TO BE SOLD AND THE PROCEEDS DIVIDED:
a. 85% for the Applicant Wife (Ms Artigas)
b. 15% For the Respondent Father (Mr Merino)
2. Within 7 days, the applicant and respondent shall ensure that the property located at GG Street, Suburb HH, NSW, more particularly described as “Folio: […] and Lot […] in Strata Plan […] at [Suburb HH],” is listed for sale by live auction. The property shall be sold in its current condition, with a minimum reserve price of $1,500,000.00, and shall not be sold for less than $1,400,000.00.
3. The real estate agent appointed to sell the property shall be the agent who has sold the highest number of homes in Suburb HH within the preceding six months, as published on the website The applicant and respondent shall do all acts, things, and sign all documents necessary to disburse the proceeds of sale of the property as follows:
a. in adjustment of rates and taxes;
b. in payment of the expenses of sale including real estate agent's commission;
c. in payment of any monies required to secure discharge of any encumbrance registered against the title to the said property; and
d. the balance be divided in proportions 85% to the applicant and 15% to the respondent.
5. The Court shall appoint an Independent Licensed Conveyancer or solicitor to manage the sale of the property located at GG Street, Suburb HH, NSW, with the costs of conveyancing to be shared equally between the Applicant and the Respondent. The appointed conveyancer shall have full authority to undertake all necessary steps for the sale, including but not limited to preparing contracts of sale, liaising with the real estate agent, overseeing the distribution of proceeds in accordance with the Court's orders and keeping both parties informed of all significant developments in writing via email. The parties shall provide all necessary corporation and documentation as required by the conveyancer to facilitate the sale.
MORTGAGE
6. The Respondent shall indemnity the Applicant for 100% of all liabilities associated with the property, including but not limited to all loans secured against the equity of the property.
ASSETS OTHER THAN LAND
7. The applicant and respondent each retain the motor vehicles and furniture and household contents presently in their possession or control.
8. Any other financial resource, pets or company shares (stock plans) to be splitted in proportions 85% to the applicant and 15% the respondent.
LIABILITIES
9. The parties each retain sole responsibility for any debt or liability in their sole name.
10. The Respondent shall indemnify the Applicant for 100% of all costs associated with loans secured against the equity of the property, including but not limited to any loans obtained from National Australia Bank (NAB) under the home loan facility, as the Applicant did not request or authorize any such loans.
11. The Respondent shall indemnify, the Applicant for 100% of the costs associated with the fees of the Single Expert Report prepared by Dr C, as well as all fees payable to NSW Legal Aid in relation to the independent Children's Lawyer.
SUPERANNUATION DIVIDED
12. 85% for Mother Applicant and 15% Father Respondent.
13. Splitting order in a specific percentage of 85% for the applicant and 15% for the respondent.
Super Fund 1
14. That in accordance with section 90XT(1Xb) of the Family Law Act 1975 whenever a splittable payment becomes payable from the Respondent's interest in the Super Fund 1, member number …, the Trustee, being AF Pty Ltd, shall pay the Applicant or her legal personal representative, an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the 'percentage amount' of 85% and that there be a corresponding reduction in the entitlement that the Respondent would have in the Super Fund 1 but for these Orders.
15. That Order 14 has effect from the operative time and the operative time is four (4) business days after the day on which the final sealed, signed Orders are served on the Trustee.
Super Fund 3
16. Pursuant to Section 90XT(1Xb) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the Respondent's interest in Super Fund 3, the Trustee being AG Pty Ltd, shall pay to the Applicant or her legal personal representative, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the percentage amount of 85% and there should be a corresponding reduction in the entitlement of the person to whom a splittable payment would have been made but for these orders.
17. That Order 16 has effect from the operative time and the operative time is four (4) business days after the day on which the final sealed, signed Orders are served on the Trustee.
Super Fund 2
18. Pursuant to section 90XT(1Xb) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the Respondent's interest in Super Fund 2, the Trustee, being Super Fund 2 Pty Ltd, shall pay to the Applicant or her legal personal representative, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using a specified percentage of 85% and there should be a corresponding reduction in the entitlement of the person to whom a splittable payment would have been made for these orders.
19. That Order 18 has effect from the operative time which is four business days after a sealed copy of these Orders has been served upon the Trustee.
SPOUSAL MAINTENANCE
20. The Respondent shall pay to the Applicant the sum of $750,000 by way of lump sum spousal maintenance or as a combination of Property Settlement and Maintenance.
21. The payment in Order 20 shall be made on or before 30 June 2025 into the Applicant's nominated bank account, being:
a. Account Name: MS ARTIGAS
b. BSB: …
c. Account Number: …32
ANNEXURE B – PROPOSED MINUTE OF ORDERS SOUGHT BY THE HUSBAND
Sale of Matrimonial Property & Sole Conduct of Sale
1.The property situated at GG Street, Suburb HH, NSW, being the whole of the land in title reference Lot …, Strata Plan …, shall be sold ‘as is’, unless both parties provide written consent within 14 days of receiving the real estate agent’s written recommendations to undertake only those improvements or repairs that are strictly necessary to comply with legal sale requirements.
2.If no agreement is reached within this timeframe, the property shall be sold in its current condition, and no party shall unreasonably refuse, delay, or fail to execute any required documents necessary for the sale.
3.The Respondent shall have sole conduct of the sale, including full authority over viewings, inspections, and dealings with the real estate agent, conveyancer, and auctioneer, as well as the marketing and sale strategy.
4.The Respondent shall provide written updates to the Applicant on the progress of the sale, including any offers received.
5.The Respondent shall initially bear all upfront costs related to the sale, including but not limited to:
a. Any mutually agreed marketing or advertising costs; and
b. Any mutually agreed repairs or improvements required to facilitate the sale.
6.The Applicant shall not unreasonably refuse, delay, or fail to sign any sale-related documents necessary for the completion of the sale. If the Applicant fails to sign such documents within five (5) business days of receiving a written request, the Registrar of the Court shall be authorised, pursuant to section 106A of the Family Law Act 1975, to execute the required documents on her behalf.
7.Notwithstanding Orders 1–6 regarding the sale of the property at GG Street, Suburb HH, NSW, the Respondent shall have the right, within 60 days from the date of judgment, to refinance the existing mortgage and pay the Applicant her determined share, subject to the following conditions:
a. The Respondent must provide the Applicant with a written notice of intent to refinance within 14 days of the Orders being made.
b. The Respondent must obtain and provide evidence of an unconditional loan approval for refinancing and payout of the Applicant’s share within 45 days of the Orders being made.
c. Upon completion of the refinancing and payout, the Applicant shall take all necessary steps to remove herself from the mortgage and title of the property within 14 days, failing which the Registrar of the Court shall be authorised, pursuant to section 106A of the Family Law Act 1975, to execute any required documents on her behalf.
d. If the Respondent is unable to secure refinancing within the specified period, the property shall be sold as per Orders 1–6, and the sale shall proceed in accordance with the terms set out therein.
e. The amount required to be paid by the Respondent to the Applicant upon refinancing shall be calculated based on the independently obtained valuation dated 18 February 2025, conducted by AH Pty Ltd, which assessed the Market Value of the property at $1,325,000.
f. This valuation is deemed binding for the purpose of refinancing, as the Applicant was provided an opportunity under the 5 February 2025 Orders to dispute the valuation and obtain an independent valuation herself but failed to do so.
g. If refinancing occurs, the property shall be refinanced at the Court-approved valuation amount, and the Applicant shall receive her agreed share as per the Final Orders Sought, without further negotiation or dispute over valuation.
h. The Applicant shall not later claim that the valuation is inaccurate, outdated, or require a second valuation process, as she had full opportunity to contest it as per the 5 February 2025 Orders and failed to do so.
Financial Adjustments & Deductions from Applicant’s Entitlement
8.Before calculating the Applicant’s final share of the net proceeds of sale, the following amounts shall be deducted:
a. $20,000 AUD already received by the Applicant as partial property settlement via the NAB overdraft, per Interim Orders made on 2 July 2024;
b. $10,750 AUD in Expert Report fees paid by the Respondent on behalf of the Applicant, as declared in her Financial Statement (para. 53);
c. 50% of any agreed upfront costs paid by the Respondent relating to the sale of the property.
d. $400,000 AUD in legal costs incurred by the Respondent in defending false allegations and securing Final Parenting Orders, which were entirely dismissed by the Court;
e. $50,000 AUD in professional supervision fees incurred by the Respondent as a direct result of the Applicant’s allegations, which were wholly dismissed by the Court.
9.These deductions are sought on the basis that the Applicant’s conduct necessitated excessive litigation and financial outlay by the Respondent, and fall within the purview of:
a. Section 117(2A) of the Family Law Act 1975, which allows costs orders where a party’s conduct has unnecessarily prolonged proceedings or caused unjustified expenses;
b. Section 75(2)(g) and (o), which allow the Court to consider financial harm caused by the other party’s actions, including economic loss and legal costs incurred due to false allegations and litigation misconduct.
10.The Applicant’s final entitlement shall be calculated only after all deductions in Clause 8 have been applied. These deductions take priority over any division of assets, ensuring that the Applicant does not benefit financially before repaying amounts owed.
11.If the Applicant’s entitlement is insufficient to cover these costs, the shortfall shall be converted into an enforceable judgment debt against the Applicant, payable immediately.
12.Should the Applicant fail to repay the deducted amounts within 30 days of settlement, the Respondent shall be entitled to:
a. An enforcement application, which shall be listed within 7 business days. No further hearing shall be required for the Court to issue enforcement orders under section 117 of the Family Law Act 1975; and
b. Enforce recovery through any available legal means, including but not limited to:
i.Garnishment of any funds held by the Applicant, including superannuation or bank accounts;
ii. Registration of a charge over any remaining assets held by the Applicant, including her superannuation; and
iii. Application for interest to be applied at the statutory rate on any outstanding debt from the date of non-payment until full satisfaction of the amount owed.
13.The Applicant shall provide full disclosure of any remaining funds from her historical savings accumulated in Country Q, other international accounts and superannuation funds within 14 days of the issuance of these Orders. Failure to do so may result in an adverse inference being drawn against the Applicant, presuming the undisclosed funds exist and shall be attributed to the Applicant for the purpose of financial settlement calculations.
Property Sale & Distribution of Proceeds
14.The property shall be sold by private treaty within 90 days. If it is not sold within this timeframe, it shall be sold by public auction within 45 days.
a. The proceeds shall be distributed as follows:
i. Payment of Agent’s commission and advertising expenses;
ii. Payment of Conveyancer and Auctioneer, as appropriate;
iii. Payment of council rates, water rates, strata levies, and taxes;
iv. Payment of any outstanding liabilities due to the Australian Taxation Office as of the settlement date;
v. The net balance shall be divided:
I. 30% to the Applicant;
II. 70% to the Respondent.
15.Neither party shall engage in conduct that unreasonably delays or obstructs the sale process, including but not limited to failure to provide necessary authorisations, documentation, or approvals in a timely manner.
Superannuation Split
16.In accordance with section 90XT(1)(a) of the Family Law Act 1975, the Applicant shall receive 30% of the Respondent’s superannuation balance as of the final separation date: 1 June 2018, in the following funds:
a. Super Fund 1 (AF Pty Ltd);
b. Super Fund 3 (AG Pty Ltd);
c. Super Fund 2 (Super Fund 2 Pty Ltd).
17.The Applicant shall have no entitlement to any increment, interest, dividends, or growth in the Respondent’s superannuation balance occurring after 1 June 2018. The Respondent shall retain 100% of any such increments, irrespective of their source, including but not limited to:
a. Employer and voluntary contributions;
b. Market-driven growth;
c. Interest, dividends, and investment returns.
18.The Respondent shall serve these Orders on the trustees within three (3) business days of their issuance. The superannuation split shall take effect within four business days after service.
19.If the Applicant refuses or fails to provide any required signatures, authorisations, or documents necessary for the transfer of superannuation, the Registrar of the Court shall be authorised to execute the required documents on her behalf.
20.If the Applicant attempts to interfere with the superannuation transfer or makes post-judgment claims, the Respondent shall be entitled to:
a. Apply for immediate enforcement of the split without further hearing;
b. Seek costs against the Applicant for any delay caused; and
c. Request a compliance order under section 90XT of the Family Law Act 1975, ensuring that the transfer occurs without further delay.
Share Sale & Tax Apportionment
21. The Respondent shall sell all shares in his possession within 14 days of these Orders.
22.The Applicant shall have no entitlement to any increase in the value or holdings of shares acquired or retained by the Respondent after 1 June 2018, and any post-separation increase shall be deemed the sole and separate property of the Respondent.
23. Proceeds shall be distributed as follows:
a.Capital Gains Tax liability shall be assessed by a CPA-qualified accountant and paid to the Australian Taxation Office first;
b.The net remaining balance shall be divided 70% to the Respondent and 30% to the Applicant;
c.The Respondent shall provide the Applicant with a statement of sale price, tax deductions, and final distribution amounts within 14 days of the transaction.
24.The Applicant shall have no claim to any reimbursement, compensation, or additional entitlement arising from tax implications, brokerage fees, or any other costs associated with the sale of shares.
Indemnities & Finality of Property Claims
25.Each party shall retain sole ownership of any property currently in their possession and shall indemnify the other party against any liability encumbering such property.
26.The Applicant shall be solely liable for any future legal fees, costs, or expenses arising from her attempts to challenge, reopen, or seek variation of the parenting or property settlement orders.
27.The Respondent shall be fully indemnified by the Applicant for all legal costs and professional supervision fees incurred as a result of the Applicant’s allegations and litigation conduct, which were wholly dismissed by the Court. This indemnity shall cover:
a. $400,000 in legal costs incurred in defending against false allegations and securing final parenting orders;
b. $50,000 in professional supervision fees paid by the Respondent due to the Applicant’s claims, which were proven to be unfounded.
28.Any failure by the Applicant to comply with this indemnity shall result in the Respondent being entitled to enforce this debt as a judgment debt against the Applicant, including but not limited to enforcement proceedings under the Family Law Act 1975.
Spousal Maintenance Termination
29.That no further spousal maintenance shall be payable by the Respondent to the Applicant now or at any time in the future, on the basis that:
a. The Applicant has full capacity for employment;
b. The Applicant has already received $15,000 AUD in spousal maintenance via the NAB overdraft (per Interim Orders, 2 July 2024);
c. The Respondent ceased full-time employment in early 2025, making further financial support unviable.
30.Neither party shall seek to vary, amend, or extend this Order under section 83 of the Family Law Act 1975, and any such application shall be deemed an abuse of process.
Execution of Documents & Court Registrar’s Authority
31. Both parties shall execute all necessary documents to give effect to these Orders.
32.If either party refuses or neglects to sign necessary documents, the Registrar of the Court is appointed under section 106A of the Family Law Act 1975 to execute such documents in their name.
33.Any document executed by the Registrar shall have full legal effect as if signed by the non-cooperating party, without the need for further authorisation.
Finality of Proceedings
34.These Orders constitute a full and final property settlement under sections 81 and 90ST of the Family Law Act 1975.
35.Both parties acknowledge and agree that these Orders constitute a final and irrevocable resolution of all financial matters between them. No party shall seek to revisit or contest these Orders under any provision of the Family Law Act 1975 or any other legal doctrine.
Additional Safeguards Against Future Claims
36.No claim shall be made by the Applicant for any superannuation, shares, or financial assets acquired, accumulated, or increased in value by the Respondent after 1 June 2018, as such assets and increments constitute solely the property of the Respondent, unless the Applicant has first obtained leave of the Court pursuant to Clause 32 below.
37.The Applicant shall not file any further applications in the Federal Circuit and Family Court of Australia, whether in relation to property matters, financial orders, or any ancillary claims, without first obtaining leave of the Court.
38.Leave shall only be granted where the Applicant demonstrates, with supporting evidence, that:
a. The proposed application is neither vexatious nor an abuse of process; and
b. The application has a reasonable prospect of success.
39.If the Court grants the Applicant leave to file any future application, and such application is subsequently found to be without merit, the Applicant shall be personally liable for 100% of the Respondent’s legal costs on an indemnity basis, payable within 30 days of judgment. Failure to comply with this costs order shall trigger automatic enforcement measures, including but not limited to:
a. Registration of the debt as an enforceable judgment, accruing statutory interest until paid in full;
b. An order restricting the Applicant from filing further applications until the debt is settled; and
c. A security for costs order before permitting the Applicant to file any future property-related application.
40.If the Applicant does not pay the legal costs within 30 days, the Respondent shall be entitled to:
a. Register the debt as an enforceable judgment, including interest at the statutory rate until full payment is made;
b. Apply for an order restricting the Applicant from filing further applications unless payment is made in full;
c. Seek an order requiring the Applicant to provide security for costs before being permitted to file any further property-related application.
41.If the Applicant makes any claim in contravention of these Orders, including attempts to seek further financial distribution, such a claim shall be presumed to constitute an abuse of process unless the Applicant provides compelling evidence to justify why the matter should be revisited. If the Court finds that the application lacks merit, the Respondent shall be awarded indemnity costs immediately, without need for a separate application.
42.Any such claim shall be referred to the Court’s triage process for merit assessment before being accepted for filing, ensuring that the Applicant does not use litigation as a financial weapon.
43.This Order is sought pursuant to section 117(2A) of the Family Law Act 1975 (Cth), given the Applicant’s history of vexatious litigation and misuse of Court processes.
44.Any application filed by the Applicant contrary to these Orders shall be summarily dismissed at the first available opportunity without further hearing. The Court shall have no discretion to entertain any such application unless the Applicant first satisfies the threshold requirements under Clause 32.
45.In addition to dismissal, the Applicant shall be personally liable for the Respondent’s costs on an indemnity basis, payable within 30 days. If payment is not made, enforcement shall proceed as per Clause 12, including but not limited to garnishment of assets or registration of a charge over the Applicant’s property.
46.This Order is made in light of the judicial findings in the Parenting Proceedings (Merino & Artigas (No 2) [2022] FedCFamC1F 742, Altobelli J, Reasons for Judgment, para. 219), which acknowledged the Applicant’s:
a. Anxious disposition;
b. Tendency to catastrophise; and
c. Hypervigilant nature,
which, in turn, makes further litigation foreseeable.
47.Pursuant to section 118 of the Family Law Act 1975 (Cth), the Applicant, Ms Artigas, is restrained from instituting any further property, financial, or maintenance proceedings against the Respondent, Mr Merino, without first obtaining the leave of the Federal Circuit and Family Court of Australia (Division 2).
48.Leave shall not be granted unless the Applicant first establishes a prima facie case, supported by affidavit material, demonstrating genuine grounds for relief and that the proposed proceeding is neither vexatious nor an abuse of process.
49.Any application for leave filed by the Applicant must be accompanied by an affidavit setting out all relevant material facts and annexing all documents relied upon. Failure to comply with this requirement shall result in automatic dismissal of the application without further hearing.
50.If any proceeding is commenced by the Applicant without first obtaining leave as required under Order 47, the proceeding shall be summarily dismissed on the first return date, and the Applicant shall be personally liable to pay the Respondent’s indemnity costs incurred as a result of the improper proceeding.
51.If the Applicant fails to comply with any provision of these Orders, including failure to sign necessary documents, failure to repay deducted amounts, or failure to adhere to financial disclosure obligations, the Respondent shall be entitled to:
a. File an urgent enforcement application, which shall be listed for hearing within 7 business days;
b. Apply for a contempt finding if non-compliance is deemed deliberate; and
c. Seek additional cost sanctions against the Applicant for enforcement proceedings.
Publication of Reasons
52.That the Court publish its Reasons for Judgment, pursuant to its discretion and in accordance with principles of transparency and legal development, given:
a. The public interest arising from the complete dismissal of serious and reputationally damaging allegations;
b. The judicial findings already made in the parenting proceedings regarding credibility, litigation conduct, and psychological factors relevant to further litigation risk (Merino & Artigas (No 2) [2022] FedCFamC1F 742, Altobelli J, para 219);
c. The need to establish judicial guidance on the application of sections 75(2)(g), 75(2)(o), and 117(2A) in circumstances where demonstrable economic harm has been suffered by a party due to false allegations, procedural misconduct, and reputational damage; and
d. The potential of such Reasons to provide clarity and precedent for similarly situated litigants — particularly fathers whose earning capacity has been irreparably damaged by dismissed allegations.
and Dawe JJ); Van der Linden & Kordell [2010] FamCAFC 157 at [90] (the Court).
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