Barrett & Winnie - [2022] FedCFamC1A 99

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Barrett & Winnie [2022] FedCFamC1A 99

Appeal from: Barrett & Winnie [2021] FamCA 625

Appeal number(s): NAA 22 of 2021

File number(s): BRC 13257 of 2007

Judgment of: MCCLELLAND DCJ, BAUMANN & HARTNETT JJ

Date of judgment: 1 July 2022

Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the appellant appeals from the primary judge’s determination that a property adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) would not be just and equitable – Multiple respondents and trusts – Where the appellant concedes that a property adjustment would require trust property to be determined as constituting the matrimonial property pool – No error established – Trust property not included in matrimonial property pool – Numerous grounds of appeal not addressed in appellant’s Summary of Argument or oral submissions – Appeal dismissed – Costs ordered – Appellant to pay respondents’ costs in a fixed sum.

Legislation:
Family Law Act1975 (Cth) ss 4, 75(2), 79, 85A, 106B, 117, 117(2A)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17

Cases cited:
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Australian Competition and Consumer Commission (ACCC) v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25; [2016] FCAFC 181

Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30

Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; [1995] FCA 350

Bilson & Geer (Costs) [2017] FamCAFC 7

Browne v Dunn (1893) 6 R 67; [1893] 1 WLUK 44

Fitzgerald v Fish (2005) 33 Fam LR 123; [2005] FamCA 158

Goodwin and Goodwin Alpe (1991) FLC 92-192; [1990] FamCA 147

Graham & Squibb (2019) FLC 93-892; [2019] FamCAFC 33

House v the King (1936) 55 CLR 499; [1936] HCA 40

Kennon v Spry (2008) 238 CLR 366; [2008] HCA 56

Kowaliw & Kowaliw (1981) FLC 91-092; [1981] FamCA 70

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Lenehan & Lenehan (1987) FLC 91-814; [1987] FamCA 8

Lock v Westpac Banking Corporation (1991) 25 NSWLR 593

McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Omacini & Omacini (2005) FLC 93-218; [2005] FamCA 195

Raine & Creed [2013] FamCA 362

Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22

Rollings & Rollings (2009) 230 FLR 396; [2009] FamCAFC 87

Shaw and Shaw (1989) FLC 92-030; [1989] FamCA 5

Swishette Pty Ltd and Another v Australian Competition and Consumer Commission (2017) 249 FCR 483; [2017] FCAFC 45

Townsend & Townsend (1995) FLC 92-569; [1994] FamCA 144

Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173

Woodcock v Woodcock (1997) FLC 92-739; [1997] FamCA 5

Woodland and Todd (2005) FLC 93-217; [2005] FamCA 161

Number of paragraphs: 232

Date of hearing: 1 March 2022

Place: Brisbane (via videolink)

Solicitor Advocate for the Appellant: Mr Morrow

Solicitor for the Appellant: Morrow Peterson Lawyers

Counsel for the Respondents: Mr Hackett

Solicitor for the Respondents: Tubaro Lawyers
ORDERS

NAA 22 of 2021
BRC 13257 of 2007

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR BARRETT

Appellant

AND:
MS WINNIE

First Respondent

MR WINNIE

Second Respondent

B PTY LTD (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

MCCLELLAND DCJ, BAUMANN & HARTNETT JJ

DATE OF ORDER:

1 JULY 2022

THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant is to pay the costs of the respondents in the sum of $23,580.51 within 28 days.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Barrett & Winnie has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ, BAUMANN & HARNETT JJ:
INTRODUCTION

By a Notice of Appeal filed 23 September 2021, the appellant appeals against orders made by the primary judge on 26 August 2021. The primary judge dismissed the appellant’s application for property orders on the basis of his Honour’s determination that an adjustment of the existing property vested in each of the parties to the marriage would not be just and equitable in the circumstances of the case.
The appellant has failed to establish appellable error and, accordingly, we have dismissed the appeal with an order that the appellant pay the costs of the respondents.
THE PARTIES
In light of the number of parties joined to this litigation by the appellant, it is convenient to summarise their relevance or, more accurately, what the appellant contends is their relevance to these proceedings.
Mr Barrett (“the appellant”) was the husband of the first respondent from 1991 until the parties’ separation in 2005.
The first respondent, Ms Winnie (“the first respondent”), was the wife of the appellant as noted above. Ms Winnie, as she is named in these proceedings, was, prior to her marriage to the appellant, married to Mr L with whom she had three children: Mr Winnie born in 1978 (“the second respondent”), Ms C Winnie born in 1980 (“the fourth respondent”) and Mr O born in 1984. Subsequent to her divorce from the appellant, the first respondent married Mr K.
For the purpose of these proceedings, the appellant and the first respondent will be collectively described as “the parties to the marriage”.
The third respondent, B Pty Ltd (“the third respondent”) is the trustee company for the Winnie Family Trust. The second respondent and the fourth respondent are directors of the third respondent. The first respondent and the second respondent are the only shareholders of the third respondent, holding one share each beneficially. The Winnie Family Trust was established by a deed dated 21 September 1998.
E Pty Ltd, which was the fifth respondent in the primary proceedings, is now deregistered. Prior to being deregistered, E Pty Ltd was the corporate trustee of the P Family Trust, having replaced the first respondent as trustee by deed dated 8 January 1996.
The fifth respondent in this appeal, D Pty Ltd (“the fifth respondent”), was incorporated after the separation of the parties to the marriage and is the trustee company of the JJJ Trust. The directors of the fifth respondent are the first and fourth respondents. The shareholders of the fifth respondent are the first respondent and her current husband Mr K.
Where they are collectively referred to, the parties, including the parties to the marriage, will, for convenience, be referred to as “the parties to the proceedings”.
BACKGROUND
The appellant was born in 1959 and is now 63 years of age. He is a qualified professional but presently works as a technician.
The first respondent was born in 1951 and is currently 70 years of age. The first respondent holds degrees in science and humanities, and has worked as a health professional, educational professional, professional and, since about 2000, an executive and consultant.
The parties to the marriage commenced cohabitation in either 1989 or 1990, with that date being immaterial to this appeal.
The parties to the marriage lived together for a period of 15 or 16 years. However, relevant to the assessment of contributions, the primary judge found that the appellant, by his own account, initially spent significant periods of time working overseas in South East Asia and the Pacific in the early stages of cohabitation and that, in the final stages of that cohabitation, the appellant was working in Sydney.
Also relevant to the assessment of the respective contributions by the parties to the marriage is that no challenge has been made to the findings of the primary judge that there was regular volatility in their relationship, leading to various periods of separation (at [19]–[20]).
The parties to the marriage have one child together, Ms I, born in 1995. She is now 27 years of age.
The parties to the marriage separated on a final basis in 2005, at which time Ms I was 10 years of age. Subsequent to the separation of the parties to the marriage and extending for a period of approximately two years, Ms I lived with the first respondent and occasionally stayed with the appellant for short periods. Also relevant to the assessment of contributions are the unchallenged findings by the primary judge that, from about the time that Ms I was 12 years old, the first respondent undertook the sole parenting role in respect to Ms I (at [23]). Other than in respect to what the primary judge found to be relatively minor contributions by the appellant, for a limited period in respect to private school fees for Ms I, responsibility for Ms I’s financial support fell entirely to the first respondent.
The first respondent married Mr K in 2007, shortly after the parties’ divorce was finalised. The first respondent now goes by the name of Mrs K and does not have any children together with Mr K.
The appellant has also remarried and has another child from that marriage who, at trial, was aged approximately 12 years.
As will be described in greater detail throughout this judgment, the parties to the proceedings have, at various times, acquired and sold property. Where E Pty Ltd and the third and fifth respondents have acquired property, they have done so as corporate trustees of the relevant trusts to which reference has been made.
For reasons set out by the primary judge, his Honour did not include, in the balance sheet of the property of the parties to the marriage, the trust property owned by E Pty Ltd and the third and fifth respondents in their capacities as corporate trustees of the relevant trusts.
Having excluded that property from the balance sheet, the primary judge determined that, having regard to the respective contributions of the parties in the context of those matters set out in s 79(4) of the Family Law Act1975 (Cth) (“the Act”), it would not be just and equitable, nor appropriate, to make orders for there to be a further distribution of property to the appellant over and above the property that had already been transferred to him by the first respondent in April 2007. That property or, more accurately, the first respondent’s share of that property had been transferred by the first respondent to the appellant pursuant to what his Honour found to be an informal property settlement agreement between the parties to the marriage.
THE LITIGATION HISTORY
The extensive litigation history of this matter is detailed by the primary judge at [26]–[57] of the reasons. The details of that history are relevant to the extent that the delay in the finalisation of these proceedings, which the primary judge lay mainly at the feet of the appellant, was a factor considered by his Honour in determining whether it was just and equitable to make orders adjusting the parties’ property pursuant to s 79(2) of the Act.
While the appellant contends error on the part of the primary judge in so finding, the primary judge made it clear that the focus was on the fact that the delay resulted in a situation where, for a number of years, the respondents collectively devoted their time and energy to developing their individual property portfolios and the assets of the trusts. There was, in our view, no error on the part of the primary judge in taking that delay, and its consequences, into consideration.
CHRONOLOGY OF RELEVANT EVENTS
Fundamental to the determination of this appeal is the primary judge’s assessment of contributions made by the parties to the marriage to their individual and joint property. Having determined at [254] of the reasons that the net property pool of the parties to the marriage, including superannuation, totalled $1,140,425, the primary judge noted that the appellant had, as property in his sole name, a property in which he lived with his current wife at F Street, Suburb G in Queensland (“the F Street property”) valued at $725,000, in respect to which there was a mortgage payable of $427,532 (at [130]). The primary judge further found that the net property in the hands of the appellant, together with funds that he had applied for his benefit prior to the hearing, totalled $419,130. Additionally, the primary judge also found that the appellant held superannuation in the amount of $311,283. This resulted in an outcome whereby the appellant held 95.61% of the identified property pool of the parties to the marriage (at [254]).
In those circumstances, the primary judge held that it would not be just and equitable to make any further adjustment of property in favour of the appellant. In that context, it is noted that the amount of property in the hands of the appellant considerably exceeded the adjustment of property which the appellant contended was appropriate. In that respect, he contended that, having regard to the parties’ respective contributions, it was appropriate that he receive “between 20 and 25 per cent” of the property, albeit with that concession being made in the context of the appellant contending that the property pool contained trust property including, most relevantly, trust property of the Winnie Family Trust.[1]
[1] Transcript 24 March 2021, p.202 lines 26–27.
In summary, the primary judge’s findings relating to the parties’ contributions and the extent to which those contributions were made to the property of the parties to the marriage, as opposed to trust assets, was a central issue in the trial and in this appeal. While dense, it is necessary to set out the relevant findings of the primary judge and the basis upon which they were made.
Issues of credit
Significantly, those relevant findings were made in the context where the primary judge made adverse credit findings against the appellant, which were detailed at [58]–[76] of his decision. These included that the appellant:
·advanced matters of fact which did not withstand scrutiny (at [60]);
·was prone to disparaging the first respondent including by making scandalous and offensive assertions about her which were gratuitous and not relevant to the matters to be determined in the proceedings (at [62]);
·was obstructive in cross-examination (at [65]);
·falsely alleged that the first respondent had forged his signature (at [66]–[68]);
·made factual assertions despite having very limited knowledge of the matters to which he attested (at [69]–[71]); and
·was prone to overstating in his affidavit evidence (at [73]–[75]).
In contrast, the primary judge did not have the same reservations concerning the evidence of the first, second, or fourth respondents (at [77]).
Those findings as to credit impacted upon the relevant findings made by the primary judge in respect to the issue of the contributions of the parties to the marriage to their property, which are summarised immediately below.
Nature of the parties’ relationship
Firstly, the primary judge found at [94] that:
… leaving aside his own investment properties, the parties kept their finances completely separate and the applicant made no direct financial contribution to the acquisition of the various properties acquired in the course of the relationship. Nor did he make any contribution to the maintenance or outgoings of those properties in which the parties resided…
The primary judge further found at [90] that “[n]otably, cohabitation of the parties throughout the relationship was in various properties to which the [appellant] made no financial contribution.”
Relevant events and transactions
Further, in the context of the just and equitable requirement, as well as the s 79(4) assessment, the primary judge at [84]–[169] listed the following as findings of relevant events:
The P Family Trust
On 10 May 1982, the P Family Trust was established. The settlor was Mr DDDD and the trustees were initially the first respondent and Ms EEEE.
In 1984, the P Family Trust purchased the property known as the Suburb GG unit on behalf of the first respondent and her sister.
J Firm
In 1987, the first respondent acquired her interest in the legal firm then trading as J Firm.
Region HH property
In late 1988, the first respondent purchased the property known as the Region HH unit.
In 1989 – 1990, the parties to the marriage commenced cohabitation. In the early period of their cohabitation, the appellant spent two separate periods of six months each in South East Asia as a result of his work commitments.
On 1 August 1989, the first respondent sold the Region HH unit and purchased a commercial property known as the Suburb KK property.
Suburb DD property
In 1989, the appellant sold a residential property which he owned at Suburb DD, which the primary judge found resulted in net funds after payment of mortgage of no more than approximately $40,000. In turn, the primary judge found that the appellant gave the proceeds of sale to his mother. Accordingly, this was not regarded as a contribution to the property of the parties to the marriage.
Q Street property
In around February 1990, the parties to the marriage purchased the property known as the Q Street property from the first respondent’s sister. The purchase was, however, funded entirely by the first respondent by way of a loan from Bank 1. The primary judge further accepted the first respondent’s evidence that she met all costs associated with the purchase and the appellant made no contribution to same.
While the Q Street property had initially been purchased in the joint names of the parties to the marriage, in August 1990 it was transferred into the first respondent’s sole name. The primary judge found that the first respondent, in doing so, was motivated by the fact that the appellant was rarely home and that there were frequent arguments between the parties when he was home.
In mid-1991, the first respondent refinanced the loan for the Q Street property with Bank 2.
LL Street property
In mid-1992, the first respondent sold the Q Street property and acquired the property known as the LL Street property, as well as the property known as the Suburb NN unit. The primary judge accepted the evidence of the first respondent that she funded the purchase by way of mortgage secured over the Suburb GG unit and funds received from her mother. The primary judge found that no contribution “of any kind” was made by the applicant to the acquisition (at [97]).
Suburb GG unit
In 1991, the applicant and the first respondent married. Also in 1991, the first respondent became the sole trustee of the P Family Trust and registered a change of trustee on the title of the Suburb GG unit.
In 1993, in her capacity as trustee of the P Family Trust, the first respondent sold the Suburb GG unit. The primary judge accepted the first respondent’s evidence that she used the proceeds of sale of that property, together with a loan, to fund the purchase of the property known as the Suburb PP property. The primary judge found that the appellant made no financial contribution to the acquisition or maintenance of that property, which he found was purchased by the first respondent to support the appellant “in his work as a [business person] at the time” (at [99]).
QQ Pty Ltd
On 4 January 1994, the first respondent financed the appellant into operating QQ Pty Ltd, which conducted a business with the appellant as an executive. That business failed. While the primary judge was unable to find how much capital was lost, his Honour noted by way of “point of emphasis” that it was “the first respondent who assisted the [appellant] financially with respect to this business, as well as with the [appellant’s] legal fees in his consequent criminal proceedings” (at [101]).
The Winnie Family Trust

Of significance, for the purpose of these proceedings, is the establishment of the Winnie Family Trust on 21 September 1998. On that date, the third respondent was incorporated and the trust deed for the Winnie Family Trust was settled. The primary judge found that, from the time of incorporation of the third respondent, both the first and second respondents were directors and each were 50 per cent shareholders. Under the terms of the trust deed for the Winnie Family Trust, the first respondent was the appointor and the range of beneficiaries included the spouse of the first respondent who, at that time, was the appellant.
Further, changes to the trust arrangements will subsequently be set out in greater detail.
Acquisitions by E Pty Ltd as trustee of the P Family Trust
By deed dated 8 January 1996, the first respondent was removed as trustee of the P Family Trust and E Pty Ltd was appointed.
On 11 April 1996, both the LL Street property and the Suburb NN unit were transferred by the first respondent to the P Family Trust, noting that, at that time, E Pty Ltd was the trustee of that trust.
On 10 May 1999, the first respondent transferred both the Suburb PP property and the commercial property which had been purchased at Suburb KK, referred to above, to E Pty Ltd as trustee for the P Family Trust. The Suburb PP property was subsequently sold by E Pty Ltd in April 2001.
In July 1999, the Suburb NN unit was sold and a property known as the Suburb SS property was purchased by E Pty Ltd for $300,000.
First respondent’s loss of professional registration
In 1999, the first respondent’s name was deregistered following disciplinary proceedings commenced by a professional organisation. The primary judge accepted the evidence of the first respondent that, in the period following the first respondent being deregistered, she and the appellant were “living separate lives” and “effectively separated under the same roof” (at [108]).
In 2000, arrangements were made by the first respondent for her business partner, Mr TT, to undertake the work of the business. The primary judge found this to be an arrangement pending the qualification of the second respondent who was, at that time, studying the profession and who it was anticipated would undertake the business in his own right.
V Street property
In May 2001, the fourth respondent purchased a property known as the V Street property for $650,000. The primary judge accepted the evidence of the fourth respondent that the purchase was funded by $200,000 provided by the P Family Trust, which had been received from the Suburb PP property sale, and the balance being obtained by the fourth respondent through a loan from Bank 2 in her name.
Relevantly, the appellant contended that he made a contribution in respect to the acquisition of this property because documents produced by Bank 2 confirmed that the appellant had signed the said documents as a co-borrower. The primary judge at [71], however, rejected the appellant’s contention that he provided security for the loan in the form of the Suburb CC property because, at that time, he did not own the property; it was purchased subsequently. It is of further relevance that, at [112], the primary judge found the appellant “made no contribution to loan repayments and indeed made no contribution to the maintenance or conservation of the V Street property despite his occupation of it.”
The V Street property was sold in June 2004 for $980,000.
Suburb CC property
In September 2001, the parties to the marriage purchased the Suburb CC property. It was purchased in the appellant’s sole name and subject to a mortgage in favour of Bank 2. The primary judge found at [114] that, in “keeping his finances separate, the [appellant] retained rental income from the [Suburb CC] property whilst residing in the [V Street] property as referred to, without making any financial contribution to the [V Street] property.”
The mortgage over the Suburb CC property was discharged on 8 March 2004, prior to separation.
In 2005, the parties to the marriage separated and subsequently divorced in 2006.
In late 2006, following separation, the appellant sold the Suburb CC property. The primary judge found that from the sale proceeds, $160,762 was paid to the appellant, $11,127 to the appellant’s solicitor and $11,000 to the appellant’s solicitor’s trust account. The primary judge noted the evidence of the appellant was that the amounts paid to his solicitor were on account of legal fees in these proceedings (at [116]).
UU Street property
In December 2001, the third respondent purchased commercial premises at UU Street, Suburb VV for $440,000. That purchase was funded by Bank 2 borrowings of $450,000.
W Street property
In March 2003, the appellant purchased two lots, which were on one title, known as the W Street property for $335,000. The property was purchased in the appellant’s sole name and subject to a mortgage in favour of Co-operative 1. The mortgage was subsequently refinanced by the appellant through Credit Union 1.
The primary judge accepted the evidence of the first respondent that she arranged for an easement to be registered over one of the lots such that the two lots could be sold separately. The primary judge further found that, later in 2003, the first respondent arranged for her son Mr O, who is not a party to these proceedings, to purchase one of the lots for the sum of $160,000 while the appellant retained the other lot.
In early 2008, following separation, the appellant sold his W Street property. The primary judge found that from the net proceeds of sale, the appellant was paid $150,000 and $22,895 was paid into the appellant’s solicitor’s trust account. The appellant’s solicitors were also paid an additional sum of $616. The primary judge noted the appellant’s concession that the larger amount paid into his solicitor’s trust account could not have been in respect to conveyancing costs (at [121]).
Commercial premises WW, Suburb BBB
In January 2004, the third respondent purchased Commercial premises WW at Suburb BBB for $1 million with the purchase price being fully financed by a combination of vendor finance by the previous owner, Mr T, to whom further reference will subsequently be made, and finance provided by Bank 2.
The DDD Trust
On 12 March 2004, the DDD Trust was established with the first respondent as its trustee.
EEE Street property
In June 2004, the fourth respondent sold her V Street property. The net proceeds of sale of that property were applied by the fourth respondent to acquire a three-quarter interest in a property known as the EEE Street property. The remaining quarter was acquired by the first respondent as trustee for the DDD Trust. The primary judge accepted that the purpose of this acquisition on behalf of the DDD Trust was, on the part of the first respondent, to provide security for the parties to the marriage’s daughter, Ms I. Ms I is the sole beneficiary of the DDD trust and is not a party to these proceedings.
The fourth respondent currently resides in the EEE Street property with her children. The parties agreed that this property, as valued by the single expert, has a value of $1,950,000 and is subject to a mortgage of approximately $1,672,787. In those circumstances, the value of Ms I’s interest, as sole beneficiary of the DDD Trust, is one quarter of $277,213, which is $69,303.25.
The F Street property
In June 2004, the appellant and the DDD Trust purchased the property known as the F Street property. The property was subject to a mortgage in favour of Bank 2. This property was the subject of an informal settlement agreement entered into by the parties after their separation, as a consequence of which the property was transferred to the appellant in August 2007. The appellant still retains this property. The primary judge found that, until it was transferred to the appellant, the appellant made no contribution to the acquisition of the property or its maintenance.
The primary judge noted that the appellant currently continues to reside in the F Street property with his current wife and their daughter. On 15 December 2020 this property, as valued by the single expert, had a value of $725,000 and is subject to a mortgage of approximately $427,532.
The N Centre
Of significant relevance in these proceedings is that, on 13 August 2004, the third respondent as trustee for the Winnie Family Trust purchased a commercial shopping centre known as the N Centre at M Town from a company associated with Mr T, who was the vendor of Commercial premises WW to which reference has earlier been made. The purchase price was $8,970,000 with finance being provided by Bank 2 and Corporation OOOO. Guarantees for the monies borrowed were provided by Mr T.
The primary judge noted that the first respondent worked in a consultancy role with Mr T at the time of the purchase and found at [132] that “the first respondent’s business association with [Mr T] was instrumental in this transaction occurring.” The primary judge further found that the second respondent had “a pivotal role in structuring the transaction to enable it to proceed.”
At [133], the primary judge found that the purchase price was met by:
(a)the transfer of Commercial premises WW, which the third respondent had purchased from Mr T in January 2004 for $1 million, that Mr T wanted to purchase back. Commercial premises WW was written down to an agreed value of $700,000 for the purpose of this transfer;
(b)a loan from Bank 2, which was secured by mortgages over a unit owned by the third respondent and a property owned by E Pty Ltd, as well as guarantees from E Pty Ltd and the second and fourth respondents. There was also a guarantee provided by GGG Pty Ltd as trustee for two trusts associated with Mr T to the value of $3 million. This guarantee was required to provide the equity required for the loan from Bank 2; and
(c)a loan of $450,000 from Mr HHH/Co-operative 2, with whom the second and fourth respondents worked closely, to meet the “transaction costs” of the purchase.
In mid-2005, the guarantees provided by Mr T were released.
The primary judge noted at [135] that, during cross-examination, the appellant “conceded that he had not contributed any funds, directly or indirectly, to the purchase of the [N Centre].”
Events from 2004 to 2005
In the context where the parties to the marriage separated in 2005, the primary judge noted the following events as being of relevance.
In December 2004, E Pty Ltd, as trustee for the P Family Trust, sold the Suburb KK property (at [137]).
In 2005, the second respondent was registered as a professional (at [138]).
In August 2005, the second respondent was appointed as the appointor of the P Family Trust. Significantly, the appellant sought to have that appointment set aside pursuant to s 106B of the Act. This is in circumstances where, prior to his death, the first respondent’s father, Mr GGGG, had been the initial appointor of the P Family Trust and, following his death, the first respondent’s mother Ms CCCC became the appointor.
Subsequent to the separation of the parties to the marriage which, as previously noted, occurred on 6 October 2005, the fifth respondent was incorporated on 28 November 2006.
On 1 December 2006, the JJJ Trust, with its name mirroring that of the first respondent’s current husband, was settled and the fifth respondent was appointed as its trustee.
Also subsequent to separation, in December 2005, the UU Street property was sold by the third respondent as trustee of the Winnie Family Trust.
Suburb LLL property
In July 2006, the third respondent purchased a property known as the Suburb LLL property. Following the subsequent sale of the N Centre in August 2007 and using the proceeds received, a multilevel building was constructed on the property at a cost of between $5 million and $6 million. At [143], the primary judge accepted the evidence of the second respondent that the cost of construction was less than the “normal cost” as Mr K, the first respondent’s now husband, did not charge “the normal 10% – 20% builder’s margin”.
Significantly, for the purpose of this appeal, the Suburb LLL property was valued by the single expert valuer on 4 February 2021 at either $6.7 million (treating related party leases as vacant) or $7.4 million (subject to existing leases). As will become relevant, the primary judge accepted the lesser value.
Suburb MMM property
In 2006, a property at Suburb MMM was purchased by the third respondent for $550,000 and later sold in 2009 for $880,000 (at [145]).
Sale of Suburb CC property
On 3 November 2006, the appellant sold his Suburb CC property, the net proceeds of which, as previously noted, the primary judge found to have been retained by the appellant and paid to his lawyers.
NNN Street property
In December 2006, PPP Pty Ltd, together with the fifth and third respondents, purchased a property known as the NNN Street property.
J Firm – business
As referenced above, in 2007, the second respondent obtained his unrestricted registration as a professional and took control of the J Firm. The primary judge noted at [149] that the firm is now owned by a company which was not a party to these proceedings.
Informal property settlement
The primary judge accepted the evidence of the first respondent that, in April 2007, she received a telephone call from the appellant shortly prior to her marriage to Mr K on 21 April 2007. The primary judge accepted that the appellant demanded that the 50 per cent interest in the F Street property, which he did not already own, be transferred to him “under threat that her upcoming wedding would be ruined” (at [150]). The primary judge found that the respondent agreed to that arrangement and duly provided the transfer. The primary judge also found at [150] that the parties, at that time, seemingly treated the transfer “as being in full settlement of any property claim.”
QQQ Pty Ltd
In July 2007, the fifth respondent purchased a 100 per cent shareholding in QQQ Pty Ltd, thereby acquiring a commercial property in Tasmania. That commercial property has since been operated by a combination of the first respondent, her husband Mr K and the second respondent.
Post-N Centre sale
As will become clear, a significant issue in these proceedings is the distribution of significant profits that were made from the sale of the N Centre. The centre was sold in August 2007 for $17.5 million, which the primary judge found yielded a capital gain of $6,893,507 (at [153]). On 19 November 2007, the appellant filed an application pursuant to s 79 of the Act commencing proceedings.
The primary judge accepted the evidence of the fourth respondent that the net proceeds of sale was largely used to pay down debt and also to fund new purchases. By way of example, the primary judge referred to the funds being applied to resolve the debt on the EEE Street property and, on 21 September 2007, the third respondent as the trustee of the Winnie Family Trust purchased property at Suburb SS for $405,000. Further, on 21 November 2007, the third respondent and the fifth respondent, the latter being the trustee of the JJJ Trust, purchased the remaining 50 per cent of the NNN Street Property from PPP Pty Ltd.
Other transactions subsequent to the commencement of primary proceedings
In December 2007, the third respondent purchased a property known as the RRR Street property.
In February 2008, the appellant sold his W Street property.
On 12 March 2008, the third respondent purchased commercial premises for $7 million.
Funds resulting from the N Centre sale were also applied to the construction of the multilevel building on the Suburb LLL property.
Impact of the global financial crisis
The primary judge accepted the evidence of both the second and fourth respondents as to the adverse impacts of the 2007/2008 global financial crisis and associated economic downturn. The primary judge accepted the evidence that, to stave off economic collapse, the first, second, and fourth respondents, as well as Mr K, took effective action including by way of selling properties at a loss. At [159], the primary judge accepted the evidence that “their financial affairs were desperate and for a significant period it appeared that all would be lost.” In other words, the primary judge found that a substantial part of the asset base that currently exists in the trusts, in particular, the Winnie Family Trust, accrued in the period subsequent to the global financial crisis and, necessarily, post the separation of the parties to the marriage.
As previously noted, the appellant has, in these proceedings, placed significance on property distributed from the Winnie Family Trust. It is relevant that, on 5 February 2008, the first respondent was, by deed, replaced by the second respondent as appointor of the Winnie Family Trust. This is another event that the appellant seeks to set aside pursuant to s 106B of the Act.
On 23 April 2009, the second respondent was appointed as a director of the company known as J Firm which, as previously noted, operates the business in which he has succeeded the first respondent subsequent to her being deregistered.
At [163]–[166] of his reasons, the primary judge notes that, from late 2009 until early 2013, relevant respondents were involved in proceedings commenced by the Fair Work Ombudsman against QQQ Pty Ltd, with the eventual outcome being that the company was subject to an order appointing a liquidator on 6 February 2013.
In September 2014, the NNN Street property was sold for $3.5 million. The primary judge found that the proceeds were applied to outgoings and debt reduction, as well as the purchase of other properties including, to the extent of $55,000, funds for Ms I and her now husband to purchase their first home.
From 1 July 2018, TTT Pty Ltd, a company controlled by the second respondent, has undertaken management of the commercial property in Tasmania.
Relevantly, the primary judge also referred to his findings in respect of the child Ms I, as set out in [18] above, as being findings of relevant events in the context of the just and equitable requirement and s 79(4) assessment.
SUBSTANTIVE ISSUES TO BE DETERMINED IN THE APPEAL
By Application in an Appeal filed on 21 February 2022, the appellant sought leave to rely upon an Amended Notice of Appeal in the form of a document in an annexure attached to an affidavit of the appellant’s solicitor filed on 21 February 2022. There was no objection to leave being given for that purpose. That document raises 15 grounds of appeal and many more sub- grounds. In view of its length, being 16 pages, it will not be incorporated into the body of this decision but will, instead, be attached to these reasons and marked “Annexure A”.
While the grounds of appeal relied upon by the appellant are voluminous and, in large part, lack logical or meaningful connection to the actual facts of this matter, the solicitor advocate for the appellant conceded that in order to obtain an outcome such that there would be a distribution of property to the appellant, it would be necessary to achieve an outcome whereby the assets of the Winnie Family Trust are included in the property pool of the parties to the marriage.[2]
[2] Transcript 26 March 2021, p.410 lines 4–13.
In respect of the above, the appellant conceded that, for the Winnie Family Trust assets to be considered as constituting part of the property pool available for distribution between the parties to the marriage, it was necessary for the appellant to succeed in respect to his applications pursuant to s 106B of the Act.[3] Further, it was conceded by the appellant that in order to obtain a distribution over and above property which had already been transferred to the appellant, it would be necessary for the appellant to establish:
·that the value of the Winnie Family Trust is at the higher of the potential values identified by the valuers;[4] and/or
·that distributions made from the Winnie Family Trust would need to be ‘added back’ to the property pool.[5]
[3] Transcript 26 March 2021, p.411 lines 8–10.
[4] Transcript 26 March 2021, p.463 line 17 to p.464 line 22; Appeal Transcript 1 March 2022, p.79 lines 4–6.
[5] Appeal Transcript 1 March 2022, p.79 line 24.

For reasons which we explain, we are of the opinion that the primary judge correctly excluded the trust property from the matrimonial property pool and it is therefore unnecessary to consider issues relating to the valuation of that property, or whether trust property that has been distributed should be added back to the property pool.
It is noted that, while those concessions earlier referred to were, in our view, properly made, we do not take the concessions to be an abandonment of the other grounds of appeal. In those circumstances, we will consider each of the appellant’s grounds of appeal on the material that is available.
CONSIDERATION OF RELEVANT GROUNDS OF APPEAL
The persuasive onus is held by the appellant to show that there was some error in the decision subject to appeal (Allesch v Maunz (2000) 203 CLR 172 at [23]; McDonald v Queensland Police Service [2018] 2 Qd R 612 at [39]).
The decision of the learned primary judge was one which was discretionary. Accordingly, the standard to be applied in this appeal is that described by the High Court of Australia in House v the King (1936) 55 CLR 499 (“House v the King”) at 504–505, namely that:
…It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred...
In the absence of an express or implied error on the part of the primary judge, the weight to be afforded to the various considerations relevant to his Honour’s decision were a matter for the primary judge.
In the case of specific error, “the error must have either caused or materially contributed to the result. An error which has not in some material way affected the outcome will ordinarily result in the appeal court declining to intervene, at least as to the result.” (Australian Competition and Consumer Commission (ACCC) v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25 at [53]).
Ground 15 – Was there a denial of procedural fairness?
A denial of procedural fairness would require a retrial, irrespective of the merit of the remaining grounds of appeal. Accordingly, we deal with that issue first. Relevantly, Ground 15 of the appellant's Amended Notice of Appeal is as follows:
15. Failure to accord procedural fairness
15.1A lack of procedural fairness is a separate basis of appealable challenge. A failure to assert a want of procedural fairness at the trial does not preclude it being first raised on appeal.
15.2 Matters that give rise to complaint here include but are not limited to:
(i)The rule in Browne v Dunn: The Respondents did not make any submission about the application of the rule; fairness required that this issue be identified by His Honour to the Appellant's advocate. The general principle is that although the basis on which the parties conduct a trial does not bind the judge, if the judge contemplates determining the case on a different basis he or she must inform the parties of this so that they have an opportunity to address any new or changed issues that may arise. A failure so to inform the parties will ordinarily result in a denial of procedural fairness and did so here.
(ii)Findings on Credit-Compare T 320, lines 20-24 with Reasons, [60] [63] [64] [69] [70]. Compare reasons [81-83].
(iii)Separation under one roof- the conclusion at [108] is "glaringly improbable" and "contrary to compelling inferences" for example given evidence of financing and purchase activities. It is also Inconsistent with the approach taken in Conrad & Conrad & Anor [2019] FamCA 106 which is to be preferred.
(iv)Reopening-p36, Lines 6-8. 13-14: p35, Lines 38-41-compare with Reasons, [83] and compare [229].
(v)Informal property settlement -Reasons [268] -conclusion fails to consider [F Street] property was heavily mortgaged to [Bank 2]; and that the Appellant did not know about the profit on sale of [N Centre] at that time.
(vi)Parenting- Reasons [23] [259]-inconsistent with the decision in Brew v Brew [2002] FamCA 1178. Paragraph 79(4)(c) of the Act unlike paras.79(4)(a) and 79(4)(b) does not specifically include contributions made on behalf of a party by some other person such as the wife's mother.
(vii)Not even-handed -compare the treatment of the Appellant's conduct re the [QQ Pty Ltd]: (R [101]) with that of the loss of [the first respondent’s] [business] (R[107, 149, 241-244]). Also see reversal of ruling on admissibility (T 100 Lines 39-45, T101, Lines 1-46, T 110 Lines 10-14.) Also see T409. Lines 16-17; T 415,Lines 39-46,: 416-Line 1.during closing submissions. Compare Reasons [26] with T414, lines 12-17.
(As per the original)
The arguments presented in support of this ground of appeal are summarised at paragraph 8.1 of the appellant’s Amended Summary of Argument as contained in the affidavit of the appellant’s solicitor filed on 21 February 2022. That Summary of Argument essentially replicates the points raised in the Amended Notice of Appeal, albeit with slightly reduced verbosity.
At paragraph 43 of the respondents’ Summary of Argument filed 25 February 2022, the respondents express a lack of understanding of this ground of appeal.
Having received notice of the lack of clarity that afflicted this ground of appeal and the Summary of Argument presented in support, the solicitor advocate for the appellant did not, at the hearing of the appeal, seek to elaborate upon or attempt to clarify this ground.
We, too, are at a loss in understanding the basis upon which the appellant contends that he was denied procedural fairness at the hearing before the primary judge.
To the contrary, the trial transcript indicates remarkable patience and forbearance on the part of the primary judge. The solicitor advocate for the appellant was not constrained in presenting what can only be described as a scattergun approach to the litigation, in which a multiplicity of issues were raised despite, in many instances, their lack of merit.
In that context, the primary judge provided every reasonable assistance in attempting to assist the legal representative for the appellant to focus upon the substantive issues in the proceedings.
The primary judge did not unreasonably constrain the ability of the appellant to present evidence or such arguments that he wished to present in support of the relief he was seeking.
Further, the solicitor advocate for the appellant was not unreasonably constrained in his ability to challenge evidence called by the respondents, including in his ability to cross-examine witnesses called in the respondents’ case.
Conversely, the cross-examination of the appellant conducted by counsel for the respondents was, in our view, entirely appropriate in the context of the issues in the proceedings.
In so far as this ground of appeal raises an issue as to whether the primary judge appropriately applied the principles adumbrated in Browne v Dunn (1893) 6 R 67, that issue relates to the valuation of trust assets. In circumstances where we have determined, as discussed below, that the trust assets should not be included in the property pool, it has been unnecessary to consider that issue.
This ground of appeal is without merit.
Grounds 1, 2 and 3 – Inclusion and valuation of trust assets in the matrimonial property pool
These grounds, which include a multiplicity of sub-grounds of appeal, in essence, involve the question as to whether the assets of the trusts should be included in the matrimonial property pool available for distribution between the parties to the marriage and, if so, at what value.
In the cacophony of the multitudinous grounds of appeal, there are a number of distinct grounds which raise the issue as to whether the assets held on behalf of each of the trusts should be included in the matrimonial property pool. While the primary focus was upon the Winnie Family Trust, we have also considered this a relevant aspect of the appeal as it relates to the trusts identified in Ground 1.1, which are as follows:
(a)    The [Winnie Family Trust] (constituted by Deed dated 21 September 1998)
(b)    The [P Family Trust] (constituted by Deed dated 10 May 1982)
(c)    The [JJJ Trust] (constituted by Deed dated 1 December 2006)
(d)    The [DDD Trust] (constituted by Deed dated 12 March 2004)
The Winnie Family Trust
The Winnie Family Trust was established by deed dated 21 September 1998.
The settlor of the trust was Mr BBBB. It has not been suggested that he has any relationship to the parties to the proceedings.
The trustee company of the Winnie Family Trust is the third respondent.
From incorporation of the trustee company, each of the first and second respondents were directors and each were 50 per cent shareholders.
The beneficiaries of the trust are as follows:
(a)Fourth respondent & Mr O (a non-party);
(b)Any parent, child or grandchild of any person in (a); and
(c)Any spouse, widow or widower of any person in (a) & (b).
It is to be noted that the first respondent is a parent of the fourth respondent and Mr O and therefore within the class of beneficiaries.
The appointor of the trust was initially the first respondent. She was removed and replaced by the second respondent by trust deed dated 5 February 2008 (“the Deed”). The appellant challenges the Deed and seeks to have it set aside pursuant to s 106B of the Act. The appellant, as noted, concedes that unless that Deed is set aside, he cannot sustain the argument that the property of the trust should be included in the matrimonial property pool.
Clause 7(5) of the Deed precludes the appointor appointing themselves as trustee. That is, the power of appointment of the trustee cannot be used by the appointor in their favour. This applied when the first respondent was the appointor.
At [211] of the reasons for judgment, the primary judge found that the first respondent “has never had control of the Winnie Family Trust as she has always been one of two or more directors of the trustee”, being the third respondent. In that respect, the primary judge accepted the evidence of the second and fourth respondents that any influence held by the first respondent in that role “has waned over time with the increasing involvements of other participants.” The primary judge found that, while the first respondent has benefited from the Winnie Family Trust, together with other family members who are beneficiaries, “this was obviously always in contemplation by the formation of the [Winnie Family Trust] itself.” In other words, the primary judge found, as a matter of fact, that the Winnie Family Trust had never operated as or been treated as the alter ego of the first respondent. The relevant findings in that respect were not the subject of challenge.
In pressing for the Deed to be set aside, the appellant implicitly acknowledged that neither the first respondent’s role as a director of the third respondent, the trustee company of the Winnie Family Trust, nor her entitlement as beneficiary justified a finding that the property of the trust, or a part of it, should be included in the matrimonial property pool of the parties to the marriage.
The appellant nonetheless contended that the Deed executed by the first respondent appointing the second respondent should be set aside, pursuant to s 106B of the Act. Once that occurred, it was contended that the first respondent would remain as appointor of the Winnie Family Trust, that is, the person responsible for appointing the trustee charged with the responsibility of administering the trust.
The first question therefore becomes whether, in accordance with the principles of House and King, the primary judge erred in failing to make an order pursuant to s 106B of the Act to set aside the Deed entered into on 5 February 2008 which replaced the first respondent with the second respondent as appointor. Section 106B of the Act relevantly provides:
Transactions to defeat claims
(1)In proceedings under this Act, the court may set aside or restrain the making of an instrument or disposition by or on behalf of, or by direction or in the interest of, a party, which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order.
…
(2)The court may order that any money or real or personal property dealt with by any instrument or disposition referred to in subsection (1), (1A) or (1B) may be taken in execution or charged with the payment of such sums for costs or maintenance as the court directs, or that the proceeds of a sale must be paid into court to abide its order.
(3)The court must have regard to the interests of, and shall make any order proper for the protection of, a bona fide purchaser or other person interested.
(4)A party or a person acting in collusion with a party may be ordered to pay the costs of any other party or of a bona fide purchaser or other person interested of and incidental to any such instrument or disposition and the setting aside or restraining of the instrument or disposition.
(4AA) An application may be made to the court for an order under this section by:
(a)a party to the proceedings; or
(b)a creditor of a party to the proceedings if the creditor may not be able to recover his or her debt if the instrument or disposition were made; or
(c)any other person whose interests would be affected by the making of the instrument or disposition.
(4A)In addition to the powers the court has under this section, the court may also do any or all of the things listed in subsection 80(1) or 90SS(1).
(5)In this section:
disposition includes:
(a)a sale or gift; and
(b)the issue, grant, creation, transfer or cancellation of, or a variation of the rights attaching to, an interest in a company or a trust.
interest:
(a)in a company includes:
(i)        a share in or debenture of the company; and
(ii)an option over a share in or debenture of the company (whether the share or debenture is issued or not); and
(b)       in a trust includes:
(i)        a beneficial interest in the trust; and
(ii)       the interest of a settlor in property subject to the trust; and
(iii)      a power of appointment under the trust; and
(iv)a power to rescind or vary a provision of, or to rescind or vary the effect of the exercise of a power under, the trust; and
(v)an interest that is conditional, contingent or deferred.
It is apparent by the use of the expression “the court may set aside” in s 106B(1) of the Act that the power is discretionary and the principles adumbrated in House v the King apply to the exercise of that discretion.
The appellant, who carries the persuasive onus of establishing such error, has failed to do so. In declining to make the order pursuant to s 106B of the Act, the primary judge found at [214] that the appellant, in this case, “made no contribution of any significance to the property of the [Winnie Family Trust]” and “overwhelming[ly,] contributions ha[d] been made by the first respondent and, significantly, third parties to the marriage”. This factual finding distinguishes the case from Kennon v Spry (2008) 238 CLR 366 (“Kennon v Spry”), where it was found that both parties to the marriage had contributed to the property of the relevant trust throughout the course of their marriage (per Kiefel J (as her Honour then was) at [189] and [225]).
Further, as noted by French CJ in Kennon v Spry at [80], a trial judge exercising their discretion to consider whether an order should be made pursuant to s 106B of the Act may legitimately take into consideration the equitable entitlement of other existing beneficiaries to due consideration in the administration of the trust. Relevantly, in this case the primary judge at [202], appropriately in our view, gave consideration to the contributions made by third parties, including the second and fourth respondents, who had “devoted their working lives” to contributing to the property of the Winnie Family Trust. This included during the period of the drawn out history of the litigation. Those findings further distinguish the facts of this case from Kennon v Spry at [113] where, in that case, the primary judge, whose decision was ultimately upheld by the High Court, found that the children whose interests were impacted by the s 106B order “had no direct input in accumulating” the property of the trust.
To similar effect, as noted in the joint judgment of Gummow and Hayne JJ in Kennon v Spry at [135] referring to the facts of that case:
The situation of the children of the marriage did not render it other than just and equitable to make the s 106B order with respect to the 2002 instrument and application of the Trust fund between the Children’s Trusts. The interests of no other third parties were involved in setting those transactions aside.
(Emphasis added)
In our view, the primary judge in the present case appropriately had regard to the interests of other third parties and the significant contributions that they made to the trust property in determining whether it was appropriate to exercise his discretion to set aside the Deed. The appellant has failed to establish that the primary judge acted other than properly exercising his discretion in considering the matters to which we have referred. There was no error on his part in declining to make the order sought by the appellant to set aside the Deed pursuant to s 106B of the Act.
Those same considerations were also relied upon by the primary judge in rejecting the appellant’s application pursuant to s 85A of the Act, which relevantly provides:
(1)The court may, in proceedings under this Act, make such order as the court considers just and equitable with respect to the application, for the benefit of all or any of the parties to, and the children of, the marriage, of the whole or part of property dealt with by ante‑nuptial or post‑nuptial settlements made in relation to the marriage.
(2)In considering what order (if any) should be made under subsection (1), the court shall take into account the matters referred to in subsection 79(4) so far as they are relevant.
The primary judge stated at [5] that, even accepting the establishment of the Winnie Family Trust and transactions associated with the trust as being “ante-nuptial or post-nuptial settlements” his Honour would not, in the exercise of his discretion, make the order sought by the appellant to apply those provisions in the context of these proceedings. Specifically, at [184] of the reasons, the primary judge stated:
In this context it bears emphasis that the parties’ marriage effectively ended with their final separation in [2005] now almost 16 years ago followed soon after by their divorce. Viewed another way, the property which is the focus of the [appellant’s] claims for relief is clearly not the same property as existed upon any settlement via a trust or indeed as existed at the time of the parties’ final separation. Moreover, as has already been emphasised, what exists today is the product not sourced to the subject marriage between the [appellant] and the first respondent, but is the product of the extensive involvement and contributions of the first respondent and the other respondents involved and their efforts over a very lengthy period subsequent to the subject marriage, during which the applicant has made no relevant contribution.

Again, relevantly, the primary judge distinguished the facts in the case before him from those considered by the High Court in Kennon v Spry which, the primary judge noted at [185], involved a situation where “the assets of the trust in that case [were] acquired exclusively by or through the efforts of a party or parties during their marriage” (referring to French CJ at [66] and [69] and Gummow & Hayne JJ at [137]).
We observe further that the setting aside of the Deed pursuant to s 106B of the Act would, in any event, have been a futility. This is because the appellant overlooks the fact that clause 7(5) of the Deed prohibited an appointor from appointing themselves as trustee. The appellant nonetheless contends that, in the event of the Deed being set aside and the first respondent, as a result, becoming the appointor, she could appoint a person or entity as trustee who could, in turn, make a distribution or distributions from the Winnie Family Trust to her in circumstances where she is included in the class of beneficiaries of the trust.
That argument, with respect, ignores the fact that when the first respondent was possessed of that power of appointment, in the period prior to February 2008, she did not exercise it to displace the third respondent, which was a company where, as noted, she held office as a joint director, not a sole director. There was, even in those circumstances where the first respondent was appointor, no history of the Winnie Family Trust operating as or being treated as the alter ego of the first respondent.
Self-evidently, as noted by French CJ in Kennon v Spry at [57] by reference to the decision of the Full Court of the Family Court in Goodwin and Goodwin Alpe (1991) FLC 92-192 at 78,269:
[T]he question whether the property of the trust is, in reality, the property of the parties or one of them … is a matter dependent upon the facts and circumstances of each particular case including the terms of the relevant trust deed.
In this case, as a beneficiary under the discretionary trust, the first respondent was and is entitled to due consideration by the trustee from time to time acting in accordance with the trustee’s fiduciary responsibility to all potential beneficiaries of the trust (Lock v Westpac Banking Corporation (1991) 25 NSWLR 593 at 609 per Waddell CJ in Eq).
The nature of the entitlement of a beneficiary to a discretionary trust, in those circumstances, was described by the Full Court of the Federal Court of Australia in Swishette Pty Ltd and Another v Australian Competition and Consumer Commission (2017) 249 FCR 483 at [26] in the following terms:
…an object of the discretionary trust, has no legal or beneficial interest but only the right to due consideration and due administration of the Trust: Kennon v Spry (2008) 238 CLR 366; Re Gulbenkian’s Settlements Trusts [1970] AC 508; McPhail v Doulton [1971] AC 424.The fact that [the subject] may control the Trust both as appointor and as director of the trustee company, does not give him an interest in the trust property amounting to ownership: DKLR Holding Co (No 2) Pty Ltd v Commissioner of Stamp Duties(NSW) [1980] 1 NSWLR 510; Gartside v Inland Revenue Commissioners [1968] AC 553 at 617–178. Objects of a discretionary trust have no beneficial interest in the property of the trust and their only interest is characterised as a mere expectancy coupled with a right to due administration of the trust. Whilst the right to due administration includes a right to due consideration in the exercise of the trustee’s discretionary power to distribute capital and income, until the exercise of the trustee’s power in favour of [the subject], [the subject] has no entitlement to such capital or income. Moreover, [the subject] as trustee is not free to exercise rights in respect of the trust property for its own benefit as if no trust existed. It has fiduciary and equitable obligations to administer the Trust in accordance with its terms, which the beneficiaries have the right to enforce.
We accept, as appropriately conceded by the respondents, that the right of a beneficiary of a discretionary trust can, depending upon the particular facts of the case, be an interest that falls within the particular definition of property as defined in s 4 of the Act. However, the acceptance of that proposition is not determinative of the outcome. This is because of the difficulties associated with attempting to place a value on such an interest. In Kennon v Spry, French CJ noted that difficulty at [77], stating:
The beneficiary of a non-exhaustive discretionary trust who does not control the trustee directly or indirectly has a right to due consideration and to due administration of the trust but it is difficult to value those rights when the beneficiary has no present entitlement and may never have any entitlement to any part of the income or capital of the trust.
(Emphasis added)
In the present case, there was no evidence presented to the primary judge as to what the value of such a right to “due consideration and due administration” would be.[6] In the absence of evidence of any such value of the interest held by the first respondent, the primary judge, appropriately, in our view, excluded the trust property from the property pool but had regard to the trust assets as being a significant financial resource available to the first respondent. No error has been demonstrated on the part of the primary judge in taking that approach. In that respect, in Shaw and Shaw (1989) FLC 92-030 at 77,420, the Full Court said there was “a degree of artificiality about attempting to assign a monetary value” to a financial resource in circumstances where it was not possible to identify future events or decisions that would result in the financial resource being accessed by the party. A similar view was expressed by Aldridge J in Raine & Creed [2013] FamCA 362 at [33].
[6] Kennon v Spry (2008) 238 CLR 366 at [75].
For completeness, we make it clear that this case is not analogous to the facts of Kennon v Spry and we caution against giving the principles adumbrated in that case a legend beyond what were described as the “unusual circumstances” of that case (per Kiefel J at [237] and French CJ at [62]). The surrounding circumstances in Kennon v Spry included that the purpose and intent of the trust, created by Dr Spry, was to avoid an obligation to pay land tax. The 1983 instrument creating the trust “was designed to ensure that the Toorak property was not, for land purposes, aggregated with other properties owned personally by the husband” (per Gummow and Hayne JJ at [107]). Moreover, the structure of the trust was, as noted by French CJ at [62], such that Dr Spry was “the sole trustee of a discretionary family trust and the person with the only interest in those assets as well as the holder of a power, inter alia, to appoint them entirely to his wife.”
Those circumstances, together with Dr Spry’s power to appoint “the whole of the property to his wife”, lead to the conclusion by French CJ and, in their separate judgment, Gummow and Hayne JJ that, once the deed removing the wife as a beneficiary of the trust was set aside pursuant to s 106B of the Act, the primary judge had, in the unique circumstances of the case, appropriately included the assets of the relevant trust in the matrimonial property pool as being the property of “the parties to the marriage or either of them” (Gummow and Hayne JJ at [128]).
In the present case, the setting aside of the Deed would have resulted in the first respondent remaining as the appointor with the power to appoint the trustee pursuant to the terms of the trust deed of the Winnie Family Trust. However, unlike the situation in Kennon v Spry, she would not have had the power of distribution of trust assets, nor would she have had legal title to those trust assets. Moreover, any person or entity that she appointed as trustee would have been bound by their fiduciary duty owed to all other beneficiaries. Accordingly, the appellant’s reliance upon the “unusual circumstances” of Kennon v Spry (per French CJ at [62]) as being analogous to the facts of this case is, with respect, misplaced. There was, in our view, no basis for including the property vested in the third respondent as trustee for the Winnie Family Trust in the property pool of the parties to the marriage, and no error has been demonstrated on the part of the primary judge for not including the assets as such.
For these reasons, there is no need to consider issues relating to the valuation of the property vested in the third respondent as trustee for the Winnie Family Trust or the disbursement of funds from that trust. This is because to do so would equate the first respondent’s right to due consideration as a beneficiary as being equivalent to the value of the entire trust property. For reasons which we have explained, the primary judge would have been, in our opinion, in error had he done so.
In circumstances where it is unnecessary to consider the value of the Winnie Family Trust, it is similarly unnecessary to consider the appellant’s arguments regarding the adding back of funds distributed from the trust, including to the first respondent’s now husband, Mr K.
Accordingly, we find that Grounds 1, 2 and 3 are without merit. As appropriately acknowledged by the appellant, this determination is dispositive of the appeal. For completeness and to minimise the prospect of ongoing litigation, we will nevertheless deal with the remaining grounds.
The P Family Trust
We have not had regard to the appellant’s contentions that the assets of the P Family Trust should be included in the matrimonial asset pool of the parties to the marriage. This is because the former trustee company was deregistered and it has no trustee or other representative before the Court. Moreover, there has been no challenge to the finding of the primary judge, as set out at [226] of the reasons for judgment, that the financial statements in evidence before him (marked Exhibit “22” in the primary proceedings), dated at about the time of the parties’ separation, recorded the P Family Trust as having a net value of $20 at that time and his Honour accepted that, as at the date of hearing, it had no value.
The JJJ Trust
At [227] of his reasons for judgment, the primary judge noted that the JJJ Trust was established by deed dated 1 December 2006, post-dating the separation of the parties to the marriage. The appellant had no involvement in the establishment of the trust. To the contrary, the trust was established in the context of the first respondent’s relationship with her new partner and now husband Mr K. We respectfully agree with the finding of the primary judge that, in those circumstances, the provisions of s 85A of the Act can have no application and there was no error on the part of the primary judge in respect to that determination.
In the circumstances of the case, the primary judge did not regard the property of the JJJ Trust as being property of the first respondent where:
·the first respondent has never been the appointor of the trust, with that position being occupied by her now husband Mr K;
·the first respondent has been one of two or more directors of the trustee company, the fifth respondent and, as such, has not had sole control of the trustee company; and
·there was no evidence of the first respondent ever having exercised control over the JJJ Trust “to the extent that it could be characterised as the first respondent’s alter ego” (at [228]).
No error has been established in respect to those findings, nor the conclusion which the primary judge made as a result of those findings.
In any event, as noted by the primary judge, the unchallenged evidence of the fourth respondent was that the trust, as at the date of hearing, had a negative value of ($532,893).
Accordingly, no error has been established on the part of the primary judge in failing to include the property of the JJJ Trust on the balance sheet setting out the matrimonial property of the parties to the marriage.
The DDD Trust
The primary judge noted that the sole beneficiary of this trust is the daughter of the parties to the marriage, Ms I, who was born in 1995. She was not a party to the primary proceedings, nor is she a party to the appeal.
Including the assets of the DDD Trust in the matrimonial property pool to be distributed between the parties, or otherwise making orders impacting upon the trust, would impact upon Ms I, the sole beneficiary of the trust. In those circumstances, she would be a necessary party to the litigation and the making of orders in the absence of Ms I being afforded the opportunity of addressing the Court in respect to matters that impact upon her would have constituted a fundamental denial of procedural fairness. Accordingly, the appellant’s contention that the trust assets of the DDD Trust should have been included on the balance sheet will not be considered.
For completeness, we indicate that we respectfully agree with the submissions of the respondents as set out at paragraphs 29 to 33 of the respondents’ Summary of Argument that the assets of the DDD Trust could not be considered property of the first respondent and were appropriately omitted from the balance sheet. Additionally and in any event, the appellant conceded that the inclusion of the value of the DDD Trust on the balance sheet would not have changed the outcome of the matter.
Accordingly, these grounds fail.
Ground 4 – Failure to include other assets in the property pool
In Ground 4.1, the appellant contends:
In assessing the amount of the assets recorded as owned by the First Respondent at $50,000 His Honour failed to take into account that:
(i)the accounts for the [JJJ Trust] as of 28 February 2021 recorded an unpaid distribution of $111,661 due to the First Respondent;
(ii)the accounts for [QQQ Pty Ltd] as of 28 February 2021 recorded a loan in the sum of $36,165 owed by that company to the First Respondent;
(iii)the accounts for the [P Family Trust] as at 30 June 2011 (the last prepared) recorded an unpaid distribution of $206,090 due to the First Respondent;
(iv)those liabilities to the First Respondent have been taken into account in the financial accounts for the trusts thus diminishing the respective values of such trusts by the amounts of such liabilities.
(As per the original)
The appellant did not address this ground of appeal in either his Amended Summary of Argument or in his oral submissions. As explained by the Full Court of the Federal Court of Australia in Bahonko v Sterjov (2008) 166 FCR 415 at [3]:
Notwithstanding the obligation of an appeal court, where it is able to do so, to make its own evaluation of the material at first instance, it is a fundamental aspect of the appellate process that appeals are made available for the correction of error (see Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [22]-[30]; Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd (2005) 220 ALR 211 at [45]). This basic principle imposes an obligation upon an appellant to identify where error is to be found in a judgment under appeal, whether it be an error of fact, law or general principle. It is not necessary for an appeal court to hunt through all the material at first instance and recanvass every aspect of it unless an occasion arises for suspecting, on reasonable grounds (generally those provided by the appellant), that such an examination may yield a conclusion of appellable error.
There is, in our view, no error that is apparent on the face of the judgment in respect to the findings made by the primary judge regarding these matters or in the exercise of his discretion. In the absence of presenting argument in support of this ground and sub-grounds of appeal, the appellant has failed to discharge the persuasive onus that he bears to demonstrate any error on the part of the primary judge in quantifying the property of the first respondent for the purpose of the balance sheet.
Accordingly, Ground 4 fails.
Ground 5 - Add backs
The substance of the appellant’s ground of appeal in respect to add backs are summarised at paragraph 6.1 of the appellant’s Amended Summary of Argument as follows:
His Honour:
(i)allowed addbacks for an amount of $54,474 borrowed in 2015 by the Appellant against his residence at [F Street]; and for all funds received by the Appellant from the sale of two properties owned by the Applicant, viz [W Street] and [Suburb CC] being in the sum of $344,746,
(ii)rejected any addbacks in respect of amounts distributed to the Respondents by the trusts; and refused to consider an allowance for CGT on the sale of the [W Street] property by the Appellant.
(As per the original)
It is quite clear that the learned primary judge was well aware of the principles in respect to what is commonly referred to as “add backs.” Indeed, his Honour noted at [231] that he sat with Alstergren DCJ (as he was then known) and Murphy J in the hearing and determination of a seminal case concerning add backs, that case being Trevi & Trevi (2018) FLC 93-858 (“Trevi”). His Honour noted that both himself and the Chief Justice agreed with the judgment of Murphy J which, at [28], acknowledged that the practice of notionally adding back property that no longer exists to the balance sheet is “the exception rather than the rule”, but nonetheless remained within the armoury of tools available for trial judges in the exercise of their discretion to achieve an outcome in property settlement cases that was “just and equitable”.
In Trevi, the Full Court referred to several Full Court authorities, including Omacini & Omacini (2005) FLC 93-218 at [30], following Kowaliw & Kowaliw (1981) FLC 91-092 and Townsend & Townsend (1995) FLC 92-569. Those authorities confirm that add backs fall into “three clear categories”: where the parties have expended money on legal fees, where there has been a premature distribution of matrimonial assets, and “waste” or wanton, negligent, or reckless dissipation of assets. This latter category indicates that the nature of the expenditure of post-separation or premature distributions can be relevant to the exercise of discretion to add back.
In this matter, the primary judge observed at [233] that the category of funds which the respondents contended should be added back to the property pool fell into the second category, that is, where there has been a “premature distribution of capital by one party.”
The primary judge noted, in circumstances where there had been such a premature distribution of capital, it fell to the party who had benefited from that premature distribution to explain how the funds have been applied. For reasons set out from [230]–[240], the primary judge explained why the evidence presented by the appellant was less than complete and why his Honour found that the appellant failed to provide a satisfactory explanation as to how the funds had been applied. This included a failure to explain why it was necessary for the appellant to apply what the primary judge described at [237] as potentially “some modest amount” that may have been used for the purchase of a motor-vehicle, rather than relying upon income from his employment that he was continuing to receive.
Appeal courts do not lightly interfere with the findings of fact made by a trial judge “unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’”: Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at [43].
Moreover, in this matter, the primary judge set out in some detail his reservations concerning the credibility of the appellant. In those circumstances, the findings by the primary judge “are likely to have been affected by impressions about the credibility and reliability of [the appellant] formed by the trial judge as result of seeing and hearing [him] give [his] evidence”: Lee v Lee (2019) 266 CLR 129 at [55]. Again, appeal courts do not lightly interfere with the findings of fact made by a trial judge in those circumstances.

(i)taken such resources into account in determining whether it was just and equitable to make property adjustment orders in favour of the Appellant; and

(ii) made property adjustment orders in favour of the Appellant.

7.Approach to valuing assets and assessing contributions where a lengthy period has elapsed between commencement of proceedings and the hearing
7.1His Honour's approach to valuing the assets and assessing the contributions of the parties and others in respect of such assets was in error in that it relied on several incorrect premises asset out in para 7.2.
7.2His Honour erred in apparently adopting the premises that the assets of the trusts, to the extent to which those were matrimonial assets during the marriage, ceased to be of that character, due to the confluence of:
(i)the lengthy period between the commencement of the proceedings and the final hearing; and

(ii) delay in the conduct of the proceeding; and
[(iii)] post separation contributions by the Respondents and [Mr K].

7.3 His Honour further erred in attributing delay:
(i)solely to the Appellant (except for a delay in delivery of a judgment which His Honour gave in 2018- a delay of over three years); or

(ii) to the Appellant in respect of certain delays,
and failed to consider the available evidence when doing so.
7.4His Honour also erred in concluding that contributions made by the respondents and allegedly [Mr K] over the lengthy period between the commencement of the proceedings and the final hearing had the effect (either of themselves or together with delay and lapse of time) of extinguishing any contributions earlier made by the Appellant.

8.Valuation impact of post separation conduct and changes in value in respect of assets
8.1His Honour erred in adopting a flawed approach to the valuation of assets in that he:
(i)did not consider or alternatively adequately consider whether an asset by asset or global approach or a combination of both was more appropriate;
(ii)failed to allow for the effect of investment decisions made by the Respondents in circumstances where these proceedings were on foot and being vigorously resisted by the Respondents, which investment decisions resulted in substantial losses;
(iii)also failed to allow for the effect of conduct of the First Respondent which resulted in substantial losses-some of which losses His Honour referred to being
(a)misleading the District Court resulting in her [registration] being lost;
(b)conducting (or allowing to be conducted) the business of the [commercial property in Tasmania] in breach of the Fair Work Act 1989 (Cth);
(c)lying to and misleading Fair Work Ombudsman investigators.

8.2His Honour further erred in not analysing the values of assets at particular dates or assessing the value of contributions made by third parties to the value of such assets as of such dates and in not considering whether there was any sufficient evidence of the value of such contributions.

9.Contribution issues in respect of the trusts
9.1 His Honour erred in finding that:
(i)the Appellant made no significant contribution in respect of any of the assets of the trusts;
(ii)by reason of post-separation contributions to those assets made by the Second and Fourth Respondents and [Mr K], it was not just and equitable that any contribution made 'by the Appellant in respect of such assets be taken in to account.

Contributions by the Appellant
9.2His Honour erred in finding that the Appellant made no significant contribution in that:
(i)His Honour failed to take into account, or sufficiently take into account, non-financial contributions by the Appellant during the marriage;
(ii)His Honour erred as to the significance of the financial contributions made by the Appellant, those being substantial as follows:
(a)the Appellant provided financial support in respect of the acquisition of the property at [V Street, Suburb G] which was acquired in 2001 and sold at a substantial profit in 2004; by entering (as a co-borrower) into a housing loan agreement with [Bank 2];
(b)the proceeds of sale of the house at [V Street] were used by the Fourth Respondent [Ms C Winnie], and the First Respondent (as trustee of the [DDD Trust]) to acquire the property at [EEE Street] which they still own, last valued at $1.95 m;
(c)in July 2005 the Appellant entered into securities with [Bank 2] to assist the respondents to satisfy the acquisition terms for the [N Centre], [M Town]; being:
(i)limited guarantees for the sum of $400,000 plus interest and costs;
(ii)a mortgage in respect of the Appellant's property at [W Street, Suburb G] (which was subsequently registered in April 2006.)

(d)the Appellant was in June 2004 the co-purchaser along with the First Respondent (as trustee of the [DDD Trust]) of the residential property at [F Street]; which property, or the [DDD Trust’s] interest therein, was provided as security for the [N Centre] acquisition.

9.3In respect of the [N Centre], His Honour erred by mischaracterising the Appellant's contribution as in respect of refinancing when it was more accurate to describe it as assisting the respondents to satisfy the acquisition terms for that asset, and by otherwise deprecating its significance including by describing such contribution as "relatively modest", and that the Appellant "has made no contribution of any significance to the property of the [Winnie Family Trust]". [In] fact the extent of risk undertaken by the Appellant in doing so was substantial and risked all of his existing equity in his assets, and was also greater than that risk undertaken by of several of the respondents.
9.4His Honour erred in respect of the issues concerning the [W Street] property in:
(i)determining, at para 207 of his reasons for decision, that there was no evidence that mortgage security was taken by [Bank 2] over any property of the Appellant;
(ii)determining, at para 207 of his reasons for decision, that there was doubt that a mortgage was given by the Appellant in respect of the [W Street] property (referred to in 7(ii)(d) above) as no such mortgage was registered, when evidence in the form of a title search and a copy of the mortgage as registered established otherwise; albeit His Honour concluded by saying that he proceeded by "giving the Appellant the benefit of the doubt";
(iii)failing to appreciate the significance of the transfer by [Co-operative 1] to [Bank 2] contemporaneously with the registration of the mortgaged referred to in (ii).

Contributions by the Respondents other than the First Respondent
9.5His Honour, having found, with respect correctly, that it was just and equitable that contributions to the assets of the trust by third parties be taken into account, erred in thereupon finding that in part by reason of such contributions no contributions by the Appellant should be taken into account.
9.6His Honour also erred in failing to consider the substantial extent to which the increase in value of the [N Centre] was not due to contributions by any of the parties but rather by an increase in market values for that class of asset, or was a windfall.
9.7His Honour erred in that he failed to assess the value of the contributions made by the parties or others with the result that there was no, or no proper, foundation for determining that such contributions were the sole or primary cause of the increase in value of the [N Centre].
9.8His Honour erred in that he found that the individual respondents made substantial contributions in preserving assets of the trusts after the GFC began but made no allowance for investment decisions or conduct of such respondents which reduced the value of such assets and caused losses.

10.Other Contribution issues
Length of marriage
10.1The marriage was a lengthy one -16 years- of which 14 and one half years were before the separation. His Honour erred in not taking this sufficiently into account.
10.2His Honour further erred in deprecating this consideration by finding, amongst other things, that the following matters diminished or detracted from this consideration:
(i)the fact that the Appellant was overseas working as [a professional] for two six months periods early in the marriage;
(ii)the fact that the-Appellant was working and partly living in Sydney for a period in the 2000s in the course of working for [Company NNNN] as [a professional];
(iii)that in some stages of the marriage relations between the parties were sometimes volatile;
(iv)That the parties to a significant degree kept their financial affairs separate.

10.3As to the parties keeping their financial affairs separate, His Honour failed to take into account the following matters of evidence:
(i)in 2001 the Appellant provided financial support in respect of the acquisition of the property in which the First Respondent, the child [Ms I] and when not away working, the Appellant, resided, by entering into, as co-borrower, a housing loan agreement with [Bank 2] as a co borrower in respect of the residential property at [V Street] which was acquired in 2001 and sold in 2004;
(ii)in 2005 the Appellant entered into securities with [Bank 2] to assist the respondents to satisfy the acquisition terms for the [N Centre] shopping complex, [M Town];
(iii)the First Respondent (as trustee) was the co-purchaser along with the Appellant of the residential property at [F Street] in 2004;
(iv)by nature of their respective employment qualifications it was inevitable that neither of the parties to the marriage could involve themselves in the other's employment or business to a substantial degree, although the Appellant did provide some support to the First Respondent in connection with her [business] and the First Respondent did provide some legal services to assist the Appellant with his business activities and in around 1994 financial support in starting a business.

Parenting
10.4His Honour erred in taking into account assistance said to have been provided by the First Respondent's mother in respect of parenting of the child [Ms I], as s.79(4) limits consideration of contributions to parenting to those of the parties to the marriage.
10.5His Honour erred in finding that the Appellant was not entitled to rely on the First Respondent's conduct in respect of access to the child [Ms I] because in His Honour's view the Appellant ought to have brought (further) legal proceedings in respect of parenting matters but did not.
10.6His Honour erred in taking account of parenting by the First Respondent in respect of her three children of her prior marriage as this is not a contribution, within the terms of s.79(4) of the Act.
10.7His Honour erred in not taking account, or sufficient account, of the contribution of the Appellant to parenting of the child [Ms I] up until she was aged 12.
10.8His Honour erred in not taking account of the contribution of the Appellant to parenting the children of the First Respondent from her first marriage.
10.9His Honour erred in the description, in para 22 of his reasons for decision, of parenting arrangements including erring as to the terms of final parenting orders.
Separation under one roof
10.10His Honour erred in finding that the First Respondent and the Appellant were "living separate lives" and effectively separated under the same roof on the basis of the First Respondent's assertion in this respect.
10.11The evidence relied upon by His Honour consisted of no more than bald assertion by the First Respondent to that effect, which was not admissible or sufficient evidence of the facts sought to be made out.
10.12His Honour also erred in accepting this assertion of the First Respondent as it was contradicted by other established facts and the First Respondent did not specifically refute the more specific evidence of the Appellant concerning cohabitation during this period.
Superannuation
10.13His Honour erred in finding that the Appellant enhanced his superannuation interests in circumstances where he has paid no (or little) financial support for [Ms I] as:
(i)the quantum of the Appellant’s superannuation interests is not causally related to expenditure on parenting matters and was entirely a function of:
(a)mandated SGC contributions or other required contributions by his employers from time to time;
(b)accretions from investments made by the superannuation fund managers.

(ii)accordingly there was no proper basis for His Honour concluding as he did that the Appellant gained a benefit to the quantum of his superannuation by reason of any lack of financial support concerning [Ms I].

10.14His Honour erred in making allowance for both the First Respondent’s additional contributions in respect of the post-divorce parenting of [Ms I] and the alleged enhancement of the Appellant's superannuation interests (which is denied) as this constituted double counting.
10.15His Honour ought to have adopted the approach of excluding post separation increases or alternatively post parenting increases in the Appellant’s superannuation balance from the asset pool.

11.Credit issues
11.1His Honour erred in preferring the evidence of the First Respondent to that of the Appellant, or in accepting certain of the evidence of the First Respondent.
11.2His Honour ought to have allowed for the fact that matters in respect of which the Appellant gave incorrect evidence primarily occurred between approximately twenty five and thirty years ago and had limited if any relevance to the issues for determination at the hearing;
11.3His Honour ought not to have so readily accepted evidence of the First Respondent having regard to:
(i)the well established propensity of the First Respondent for lying about legal matters in dispute, and misleading a court;
(ii)the claimed inability of the First Respondent during cross examination to not recall matters which were not to her advantage, when contrasted with her detailed recall of matters to her advantage;
(iii)the apparent inconsistency between other evidence and portions of the evidence of the First Respondent.

11.4His Honour further erred in relation to the credit of the Respondents' witnesses and respectively that of the Appellant by:
(i)not making adequate allowance for the First Second and Fourth Respondents erroneously denying on multiple occasions that the Appellant provided any financial support in respect of [V Street] or securities in respect of the [N Centre]; even going so far as to claim that none of the security from the Appellant described in the [Bank 2] Release Form in evidence was ever brought into existence;
(ii)not finding that the First Second and Fourth Respondents showed at the least a reckless indifference to the truth or otherwise of their sworn denials and claims as set out in (i);
(iii)robustly criticising the Appellant in respect of errors in the evidence of the Appellant about such matters notwithstanding that such errors did not affect the substance of the Appellant's contention that he provided such security and that in some instances the evidence was qualified- for example in his trial affidavit the Appellant had stated that he "may have" given security over the [Suburb CC] property but His Honour found that the applicant's assertion of a contribution in the form of him having provided a mortgage over .. the [Suburb CC] property ... was ... established to be wrong;
(iv)not taking account of the Respondents' failure at any time to make disclosure in respect of the [Bank 2] documents relating to the Appellant providing guarantees or mortgages or the [Bank 2] Release Form;

11.5His Honour erred in referring to evidence which ought not have been admitted on the basis that it was unduly prejudicial, and was objected to by the Appellant on inter alia that basis, that being evidence concerning the Appellant's conduct whilst a director of the company [EE Pty Ltd].
11.6His Honour adopted an unnecessarily hostile approach to the Appellant and his evidence and an unduly favourable one to the respondents and their evidence.

12.The 2007 “informal settlement”
12.1In addressing the significance of the "2007 informal property settlement" His Honour erred in that he:
(i)gave insufficient weight to the fact that only a half interest in this property was transferred by the First Respondent to the Appellant whereas in fact only a half interest in it was transferred;
(ii)appears to have assumed that the property was unencumbered whereas it was encumbered to [Bank 2] with the result that after allowance for the [Bank 2] debt, the quantum of the financial benefit thereby conferred on the Appellant was minor;
(iii)found that no financial contributions were made by the Appellant in respect of the mortgage taken out by himself and the First Respondent when acquiring the property even though no contention to this effect was made by the respondents.

12.2Having regard to the matters referred to in para 12.1, and the other circumstances then prevailing, there was no reasonable basis upon which His Honour could conclude, as he did, that the making of the informal property agreement was plainly relevant to the determination of what is just and equitable in the circumstances.

13.Justice and equity – s.79(2) of the Act
13.1His Honour erred in concluding that he was not satisfied for the purposes of s.79(2) of the Act that it would be just and equitable to make property adjustment orders as sought by the Appellant.
13.2But for His Honour having erred, as the matters set out in this Notice of Appeal, His Honour could not reasonably have been so satisfied.

14.Further errors
His Honour otherwise erred in law and in determining relevant facts.
15.Failure to accord procedural fairness
15.1A lack of procedural fairness is a separate basis of appealable challenge. A failure to assert a want of procedural fairness at the trial does not preclude it being first raised on appeal.

15.2 Matters that give rise to complaint here include but are not limited to:
(i)The rule in Browne v Dunn: The Respondents did not make any submission about the application of the rule; fairness required that this issue be identified by His Honour to the Appellant's advocate. The general principle is that although the basis on which the parties conduct a trial does not bind the judge, if the judge contemplates determining the case on a different basis he or she must inform the parties of this so that they have an opportunity to address any new or changed issues that may arise. A failure so to inform the parties will ordinarily result in a denial of procedural fairness and did so here.
(ii)Findings on Credit-Compare T 320, lines 20-24 with Reasons, [60] [63] [64] [69] [70]. Compare reasons [81-83].
(iii)Separation under one roof- the conclusion at [108] is "glaringly improbable" and "contrary to compelling inferences" for example given evidence of financing and purchase activities. It is also inconsistent with the approach taken in Conrad & Conrad & Anor [2019] FamCA 106 which is to be preferred.
(iv)Reopening-p36, Lines 6-8, 13-14: p35, Lines 38-41-compare with Reasons, [83] and compare [229].
(v)Informal property settlement -Reasons [268] -conclusion fails to consider [F Street] property was heavily mortgaged to [Bank 2]; and that the Appellant did not know about the profit on sale of [N Centre] at that time.

(vi)Parenting- Reasons [23] [259]-inconsistent with the decision in Brew v Brew [2002] FamCA 1178. Paragraph 79(4)(c) of the Act unlike paras 79(4)(a) and 79(4)(b) does not specifically include contributions made on behalf of a party by some other person such as the wife's mother.
(vii)Not even-handed -compare the treatment of the Appellant's conduct re the [QQQ Pty Ltd] business: (R [101]) with that of the loss of [the first respondent’s] [business] (R[107, 149, 241-244]). Also see reversal of ruling on admissibility (T 100 Lines 39-45, T101, Lines 1-46, T 110 Lines 10-14.) Also see T409, Lines 16-17; T 415, Lines 39-46,: 416-Line 1. during closing submissions. Compare Reasons [26] with T414, lines 12-17.

(As per the original)
SCHEDULE OF PARTIES

BRC 13257 of 2007

Respondents

Fourth Respondent:

MS C WINNIE

Fifth Respondent:

D PTY LTD

NAA 22 of 2021 BRC 13257 of 2007
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR BARRETT Appellant
AND:	MS WINNIE First Respondent MR WINNIE Second Respondent B PTY LTD (and others named in the Schedule) Third Respondent

Appeal from:	Barrett & Winnie [2021] FamCA 625
Appeal number(s):	NAA 22 of 2021
File number(s):	BRC 13257 of 2007
Judgment of:	MCCLELLAND DCJ, BAUMANN & HARTNETT JJ
Date of judgment:	1 July 2022
Catchwords:	FAMILY LAW – APPEAL – PROPERTY – Where the appellant appeals from the primary judge’s determination that a property adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) would not be just and equitable – Multiple respondents and trusts – Where the appellant concedes that a property adjustment would require trust property to be determined as constituting the matrimonial property pool – No error established – Trust property not included in matrimonial property pool – Numerous grounds of appeal not addressed in appellant’s Summary of Argument or oral submissions – Appeal dismissed – Costs ordered – Appellant to pay respondents’ costs in a fixed sum.
Legislation:	Family Law Act1975 (Cth) ss 4, 75(2), 79, 85A, 106B, 117, 117(2A) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.17
Cases cited:	Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 Australian Competition and Consumer Commission (ACCC) v Reckitt Benckiser (Australia) Pty Ltd (2016) 340 ALR 25; [2016] FCAFC 181 Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30 Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119; [1995] FCA 350 Bilson & Geer (Costs) [2017] FamCAFC 7 Browne v Dunn (1893) 6 R 67; [1893] 1 WLUK 44 Fitzgerald v Fish (2005) 33 Fam LR 123; [2005] FamCA 158 Goodwin and Goodwin Alpe (1991) FLC 92-192; [1990] FamCA 147 Graham & Squibb (2019) FLC 93-892; [2019] FamCAFC 33 House v the King (1936) 55 CLR 499; [1936] HCA 40 Kennon v Spry (2008) 238 CLR 366; [2008] HCA 56 Kowaliw & Kowaliw (1981) FLC 91-092; [1981] FamCA 70 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Lenehan & Lenehan (1987) FLC 91-814; [1987] FamCA 8 Lock v Westpac Banking Corporation (1991) 25 NSWLR 593 McDonald v Queensland Police Service [2018] 2 Qd R 612; [2017] QCA 255 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 Omacini & Omacini (2005) FLC 93-218; [2005] FamCA 195 Raine & Creed [2013] FamCA 362 Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22 Rollings & Rollings (2009) 230 FLR 396; [2009] FamCAFC 87 Shaw and Shaw (1989) FLC 92-030; [1989] FamCA 5 Swishette Pty Ltd and Another v Australian Competition and Consumer Commission (2017) 249 FCR 483; [2017] FCAFC 45 Townsend & Townsend (1995) FLC 92-569; [1994] FamCA 144 Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173 Woodcock v Woodcock (1997) FLC 92-739; [1997] FamCA 5 Woodland and Todd (2005) FLC 93-217; [2005] FamCA 161
Number of paragraphs:	232
Date of hearing:	1 March 2022
Place:	Brisbane (via videolink)
Solicitor Advocate for the Appellant:	Mr Morrow
Solicitor for the Appellant:	Morrow Peterson Lawyers
Counsel for the Respondents:	Mr Hackett
Solicitor for the Respondents:	Tubaro Lawyers

ORDER MADE BY:	MCCLELLAND DCJ, BAUMANN & HARTNETT JJ
DATE OF ORDER:	1 JULY 2022

BRC 13257 of 2007
Respondents
Fourth Respondent:	MS C WINNIE
Fifth Respondent:	D PTY LTD