Bokin & Wild - [2022] FedCFamC1F 612

Federal Circuit and Family Court of Australia
(DIVISION 1)
Bokin & Wild [2022] FedCFamC1F 612

File number(s): WOC 928 of 2020

Judgment of: BRASCH J

Date of judgment: 30 August 2022

Catchwords:
FAMILY LAW – PROPERTY– BALANCE SHEET – Where dispute about valuation of real property “as is” or “as if” completed – Where property to be sold in any event - Where circumstances of an apparent tax debt unknown - Where parties cannot agree on bank account balances – Where parties dispute values of personal property not valued

FAMILY LAW – PROPERTY - CONTRIBUTIONS - Where one party claims “superior” initial contributions – Where one party claims significant financial assistance provided by other party’s father were really contributions to the first party – How homemaker contributions ought be assessed when children placed in care - Where Kennon claim advanced by one party

FAMILY LAW – PROPERTY - FUTURE NEEDS – Where one party’s father has capacity but a limited life expectancy - Whether income earning disparity exists

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4AA, 4AB, 90SF(3), 90SM, 90SM(4)(a)-(g)

Division: Division 1 First Instance

Number of paragraphs: 211

Date of last submissions: 15 June 2022

Date of hearing: 23-27 May 2022, 30 May – 2 June 2022, 15 June 2022

Place: Sydney

Counsel for the Applicant: Ms Coulton on 23-27 May, 30 May - 2 June 2022; Litigant in Person on 15 June 2022

Solicitor for the Applicant: Murphy Lawyers on 23-27 May and 30 May - 2 June 2022

Counsel for the Respondent: Mr Livingstone

Solicitor for the Respondent: Access Law Group
ORDERS

WOC 928 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR BOKIN
Applicant

AND:
MS WILD
Respondent

order made by:

BRASCH J

DATE OF ORDER:

30 AUGUST 2022

THE COURT ORDERS THAT:
The Suburb O property
1.Within 42 days from the date of these Orders, the de facto husband shall do all things and sign all necessary documents to transfer to the de facto wife all his right, title and interest in the property situated at G Street, Suburb O, NSW being the whole of the land comprised in title reference … ("the Suburb O property”).

The Suburb L townhouses
2.Within 42 days from the date of these Orders, the de facto husband and the de facto wife shall do all things and sign all necessary documents to transfer to the de facto wife, with vacant possession, his right, title, and interest in the property situated at J Street, Suburb L, NSW being the whole of the land comprised in title reference … ("the Suburb L townhouses").
3.The de facto wife undertake all necessary steps to subdivide and ready for sale the Suburb L townhouses, and provide the de facto husband monthly written reports on the steps she has taken and costs she has incurred.
4.The de facto wife shall thereafter do all things to cause the Suburb L townhouses to be sold at a sale price and method determined by the de facto wife, but with the de facto wife providing the de facto husband monthly written reports on the progress of the sales
5.Upon the sales of the Suburb L townhouses, the proceeds of sale shall be paid as follows:
(a)Payment of agent's commission, advertising expenses, and legal expenses of the sale;
(b)To reimburse the de facto wife of any costs incurred by her to subdivide and ready the townhouses for sale;
(c)Payment of the usual conveyancing adjustments and outstanding rates, including the debt to TT Council for unpaid rates of $20,929.16;
(d)Payment in the sum of $830,000 to Mr C;
(e)(The balance left after the payment of (a)-(d) being “the net proceeds”)
(f)the net proceeds will be added to the following assets and liabilities:
(i)S Pty Ltd: to be retained by the de facto husband at $20,000;
(ii)Furniture and contents: to be retained by the de facto wife at $5,000;
(iii)Furniture and contents: to be retained by the de facto husband at $500;
(iv)Motor Vehicle 1: to be retained by the de facto husband at $1,500;
(v)Motor Vehicle 2: to be retained by the de facto husband at a net equity of $0;
(vi)Motorbike 1 (large): to be retained by the de facto husband at $1,500;
(vii)Motorbike 2 (small): to be retained by the de facto wife at $1,000;
(viii)2014 Motor Vehicle 4: to be retained by the de facto wife at $5,000; and
(ix)Super Fund 1: to be retained by the de facto husband at $14,912.93.

(“the revised total”);
(g)Taking account of the items each party will retain and at what value pursuant to (e) above, the parties will then calculate what distribution is required to each party from the revised total to achieve the overall adjustment of 65 per cent to the de facto wife and 35 per cent to de facto husband (“the overall adjustment”);
(h)In the event there are insufficient funds from the net proceeds to achieve the overall adjustment of 65 per cent to the de facto wife or 35 per cent to the de facto husband, then the party who stands possessed of assets greater than their entitlement will make such cash payment to the other to achieve the overall adjustment of 65 per cent to the de facto wife and 35 per cent to the de facto husband.

6.Other than as set out in these Orders, the parties have the sole right, title, and interest in any other property which is at the date hereof in their possession, title, or name and they each shall be solely liable for and indemnify the other against any personal liabilities.
7.Other than as set out in these Orders, and Order 5 of the Order of 31 May 2022, the de facto husband and de facto wife are hereby released from all actions, proceedings, claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter, or thing.
8.Each party be solely liable for and indemnify the other against any liability encumbering any items of property to which that party is entitled pursuant to these Orders.
9.The de facto husband and de facto wife do all things and give all consents and execute all documents and writings necessary to give effect to these Orders.
10.In the event that either party refuses or neglects to execute any deed or instrument, a Registrar of the Court be appointed pursuant to s 106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.
11.The party in default of these Orders is to pay all reasonable solicitor/client costs incurred by the other party for the purpose of enforcing these Orders with the amount payable to be in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) unless otherwise agreed to by the parties.

Costs
12.The parties file any application for costs within 28 days of the date of this Order.

Interpretation and implementation
13.The parties are at liberty to approach chambers by email (…), copying the other party asking to re-list the matter on issues of interpretation and/or implementation.

The court notes that:
A.By consent order of 31 May 2022, the second respondent transferred her interest in J Street, Suburb L, to the de facto husband.
B.Order 5 of the 31 May 2022 order provides:
From the date of this order, liberty is granted to the First Respondent to make such application that she be advised as to the payment of the rent on the property situated at and known as [J Street, Suburb L NSW] not inclusive of past rents.

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 Bokin & Wild has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BRASCH J
INTRODUCTION

These were final parenting and property proceedings. However, the parenting matter resolved by consent on a final basis on day five of the hearing. The property matter, in so far as it concerned claims by and against the second respondent, also resolved by consent on day seven of the hearing. The property aspect of the proceedings and submissions occupied days eight to 10.
Mr Bokin (“the de facto husband”) initiated these proceedings by filing an Application for Final Orders on 21 July 2020. Ms Wild (“the de facto wife”) filed a Response on 31 July 2020.
BACKGROUND
The de facto husband was born in 1978. The de facto wife was born in 1978.
The de facto husband and de facto wife do not agree when their relationship began, nor when they commenced cohabitation. Both parties focused on cohabitation being the marker of the start of the de facto relationship. Whilst the nature and extent of a common residence may indicate the parties have a relationship as a couple, that is not necessarily so; s 4AA Family Law Act 1975 (“the Act”). Nevertheless, given the way in which the parties approached the start date of their de facto relationship, I shall not deviate from that path.
The de facto wife contended the parties commenced a relationship in 1997 and commenced cohabitation in 1999. The de facto husband, according to his affidavit of evidence in chief, contended the parties commenced a relationship in 2001 and cohabitation in late 2002/early 2003. However, during the hearing (and in earlier court documents) he gave other dates for the start of the de facto relationship including 2000, 2003, 2004 and 2005. I am not troubled by when the relationship itself began and need not make any findings about that. I will however determine when the de facto relationship commenced as the de facto husband said that was integral to his claim with respect to initial contributions.
The parties have five children. Relying on Court’s Exhibit 1 for names and spelling, they are:
(a)V (born in 2006) (“V”);
(b)W (born in 2009) (“W”);
(c)X (born in 2012) (“X”);
(d)Y (born in 2014) (“Y”); and
(e)Z (born in 2014) (“Z”) (“the children”).
The de facto wife also has an adult child from a previous relationship, Ms B (born in 1996) (“Ms B”).
The de facto parties separated for some months in 2016, reconciled and then separated on a final basis in 2020. Their relationship is thus some 17-18 years on the de facto husband’s affidavit of evidence in chief (i.e. late 2002/early 2003), and 21 years on the de facto wife’s. Either way, it is a long relationship.
DOCUMENTS RELIED UPON
The applicant de facto husband relied upon the following documents:
·Amended Application for Final Orders filed 13 May 2022;
·Affidavit of Mr Bokin filed 20 May 2022;
·Financial Statement of Mr Bokin filed 8 May 2022; and
·Ten Exhibits tendered during the course of the hearing, including a late tender, marked DFH Exhibit 10, which was the subject of written submissions and a decision made in Chambers to receive into evidence, the husband’s historical medical records.
The respondent de facto wife relied upon the following documents:
·Amended Response to Initiating Application filed 27 April 2022;
·Affidavit of Ms Wild filed 11 May 2022;
·Affidavit of Mr C filed 29 April 2022;
·Financial Statement of Ms Wild filed 5 May 2022; and
·Fifteen Exhibits tendered during the course of the hearing.
The Department of Community Justice (“DCJ”) and Independent Children’s Lawyer (“ICL”) also tendered other documents during the parenting aspect of proceedings, which I will refer to, where relevant, in these Reasons.
Both parties filed a Case Outline and the required Costs Notices. The parties also had tender bundles, but as indicated at the very start of the trial, while I had access to those bundles, I would only receive into evidence documents that were actually tendered.
The de facto husband, his partner Ms T, his father Mr R, and, the de facto wife were cross-examined, as was her father Mr C.
The parties filed a joint balance sheet on 27 May 2022, but as the trial progressed positions changed. For example, by the time of oral submissions the parties, appropriately, abandoned all add-back claims. By reason of the consent order made concerning the claims by and against the second respondent, the property at J Street, Suburb L was included in the balance sheet of assets and liabilities available for adjustment between the de facto husband and de facto wife, but a property at E Street, Suburb L, in the second respondent’s name, was excluded.
The standard of proof in this case is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject-matter of the proceeding; and
(c)       the gravity of the matters alleged.
It is well settled that it is not necessary for a trial judge, in reaching a decision, to refer to every piece of evidence or argument presented during the trial. In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
ORDERS SOUGHT
The applicant de facto husband sought the orders set out in his Amending Initiating Application filed 13 May 2022. The gist of these orders (predating the consent order with respect to the second respondent) was that the former matrimonial home, in which the de facto wife and children resided when with her, at G Street, Suburb O, be sold and the de facto husband receive 75 per cent of the net proceeds. However, by the time of submissions, he sought orders that the property pool be adjusted 65 per cent in his favour. I infer from the oral submissions that he wished to retain the three townhouses on the property known as J Street, Suburb L. The de facto husband also proposed that Mr C be repaid $830,000, and the TT Council be paid rates in arrears.
The respondent de facto wife sought the orders set out in her Amended Response to an Initiating Application filed 27 April 2022. In essence she sought to retain G Street, Suburb O, the three townhouses at J Street be transferred to her whereupon she would cause the subdivision to occur and sell the properties. The net proceeds (after also meeting the agreed liability to her father of $830,000 and the agreed debt for rates) would be paid $200,000 to the de facto husband and the balance to her. Her Case Outline filed on 18 May 2022 indicated this was an 80-20 per cent adjustment in her favour, but with the children living solely with her. Despite a week about order being made on a final basis by consent, the de facto wife maintained the 80-20 per cent adjustment of the overall pool in her favour by the time of final submissions.
ISSUES
The parties settled on an agreed list of issues. Court’s Exhibit 7 (as subsequently amended by an additional issue sought by the de facto husband in italics below) revealed the following for determination:
(1)Did the parties commence cohabitation in 1999 as the First Respondent asserts or in late 2002 as the Applicant now asserts?
(2)What was the quantum of initial contributions, and should the Court adjust the parties' interests whether the Applicant made a superior initial contribution to the property?
(3)The applicant’s current income and post separation income, and whether there should be an adjustment to first respondent for income earning disparity in relation to future needs pursuant to Section 75(2) [sic]. [I take this to be s 90SF(3)]
(4)The first respondent’s Kennon claim and whether family and domestic violence have made the first respondent’s contributions more onerous?
(5)Whether the parties have made full and frank disclosure.
(6)Whether the applicant has depleted the asset pool and whether there should be an adjustment for this including:
(a)$2,500 from the sale by the applicant of a motor scooter to his father.
(b)$15,990 from the undervalue sale by the applicant to his friend of a recreational boat.
(c)$5,000 from the sale by the applicant of Motor Vehicle 5.
(d)$36,000 from the company’s Motor Vehicle 6 owned at the time of separation.
(e)Significant cash funds drawn down by the applicant post-separation.
(f)The transfer of the property at J Street, Suburb L NSW (Title Reference: …) by the applicant to his sister, Ms Dunphy (the second respondent).
(g)Funds paid by the applicant towards Ms Dunphy’s property at E Street, Suburb L NSW.
(7)How should the applicant’s Tax Debt be treated in circumstances where the first respondent asserts that the applicant had sufficient income to meet the debt as it was incurred?
(8)Whether there should be a Section 75(2) [sic] adjustment due to the First Respondent’s prospective inheritance [from] her father who is alive but has cancer? [again taken to be s 90SF(3)]
(9)Whether the Court should adjust the interests of the parties where the applicant contends he made a superior contribution overall?
Legal principles
With respect to the parties’ dispute regarding the division of their property these proceedings, s 90SM of the Family Law Act 1975 (Cth) (“the Act”) sets out the following:
90SM Alteration of property interests
(1)In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate:
(a)      in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them—altering the interests of the parties to the de facto relationship in the property; or
(b)     …
including:
(c)      an order for a settlement of property in substitution for any interest in the property; and
(d)     an order requiring:
(i)either or both of the parties to the de facto relationship; or
(ii)the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the de facto relationship or a child of the de facto relationship, such settlement or transfer of property as the court determines.
…
(3)The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. In exercising that discretion, the court is required to take into account the matters set out in s 90SM(4) of the Act, as follows:
90SM Alteration of property interests
…
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court must take into account:
(a)     the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii)otherwise in relation to any of that last‑mentioned property;
whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(b)    the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii)otherwise in relation to any of that last‑mentioned property;
whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(c)      the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; and
(d)    the effect of any proposed order upon the earning capacity of either party to the de facto relationship; and
(e)     the matters referred to in subsection 90SF(3) so far as they are relevant; and
(f)     any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship.
The High Court in Stanford v Stanford (2012) 247 CLR 108 (“Stanford”), at [35] confirmed that before an order is made adjusting the parties’ property the court is required to make a determination that it is just and equitable to do so. That determination is to be made, however, not as a discrete or preliminary issue but requires the court to consider the matters set out in s 90SM(4) of the Act.
Once jurisdiction is established in de facto matters, the court then determines the property adjustment orders that should be made between de facto partners by following the same recognised four-step process that applies in respect of spouses (see Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at [39]), albeit pursuant to different statutory provisions.
First, the court should identify and value the de facto parties’ pool of property, comprised of assets, liabilities and financial resources at the date of the hearing. Second, the court should identify and assess the contributions of the de facto parties within the meaning of ss 90SM(4)(a)-(c) of the Act, and determine the contribution-based entitlements of each party as a percentage of the pool of assets. Third, the Court should identify and assess the relevant matters referred to in ss 90SM(4)(d)-(g), and s 90SF(3), and determine the adjustment, if any, that should be made to the contribution based entitlements of the parties. Finally, the court should consider the effect of those findings and resolve what order is just and equitable in all the circumstances of the case.
That approach has been endorsed many times: see, for example, Manolis v Manolis (No 2) [2011] FamCAFC 105 at [63]; Kildea v Kildea (2007) 38 Fam LR 347 at [104]; Coghlan and Coghlan (2005) FLC 93-220 at [22] and [142]. However, as the High Court noted at [35] in Stanford, s 79(2) of the Act (as that case concerned) provided that the court shall not make an order altering the interests of the parties to the matrimonial property, “unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”. Accordingly, since Stanford, it has generally been the practice of the court to determine, as an initial issue, whether it is just and equitable to make an adjustment of marital or de facto property.
As to an overall approach to contributions (once jurisdiction is established) the Full Court in Perrin & Perrin (No 2) [2018] FamCAFC 122 cited at [57]–[58] with approval, the decision in Babett & Falconer (2015) FLC 98-067 at [44]:
Within the family law context, those comments [in respect to the adequacy of reasons] should be seen as reinforced by the fact that the nature of the s 79 [as it was there] inquiry is, in essence, a broad discretionary assessment, which is neither an accounting nor mathematical exercise and which, effectively as a corollary, requires a "broad-brush approach".
(Citations omitted)
Is it just and equitable to make a property adjustment?
With the breakdown of the parties’ de facto relationship, their myriad of contributions over many years (as I later find), and the joint ownership of a real property and a joint liability, I find the husband and wife comfortably fit within Stanford, supra, at [42].
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
I thus find it is just and equitable to make a property adjustment order. No one submitted otherwise.
The Balance Sheet
Establishing the balance sheet is the first step in the recognised four-step process of determining the property adjustment orders that should be made between marital and de facto spouses (see Hickey, supra).
The final version of the joint balance sheet, marked Court’s Exhibit 8 (and with further amendments consequent on the concessions that no add-backs were agitated), showed the parties were in dispute about many items. I deal with each disputed item in turn.
Item 2: J Street, Suburb L: this property was acquired in the de facto husband’s sole name in 2016 when the parties were separated. They reconciled in that same year, until final separation on 4 January 2020. In 2018 (when the parties were together) development approvals were acquired to build three town houses on the land. Between 1 October 2019 and 2 February 2021, the de facto wife’s father, Mr C, loaned a total of $830,000 for the development of the townhouses.
That liability is an agreed joint liability in the pool although the de facto husband maintained during all of the trial that Mr C’s loan was completely independent of his relationship to his daughter “he did provide – me – me with a loan” and contended that he would have “100 percent” loaned him the money anyway (Transcript 30 May 2022, p. 30 lines 38-39 and p.31 line 24). Mr C, the maternal grandfather had a different view, and was steadfast in answers to questions that the loan was to both parties. Despite the de facto husband asserting it was a loan to him solely and had nothing to do with the de facto wife, given both parties placed it in the balance sheet as a joint liability, I will do so too.
Unbeknown to the de facto wife and her father, Mr C, in December 2019 the de facto husband transferred this property to his sister, the second respondent. The de facto husband agreed that at this time, the de facto relationship was strained, but they were still together. He said he did this because his sister, the second respondent, could secure finance as she had a stable job and he did not. It turned out the sister, the second respondent, could not secure finance, and thus Mr C’s loan.
The de facto wife discovered the transfer by chance. On 14 February 2021, she noticed and recognised two of the town houses were listed for sale online. Neither she nor Mr C had been given notice by the de facto husband or his sister, the second respondent, of the proposed sales. The de facto wife then had her solicitors conduct a titles search on 16 February 2021, wherein the transfer from the husband to his sister, the second respondent, back in December 2019 was discovered. Mr C had been providing money for the development as recently as 2 February 2021. He was told of the transfer by his daughter and said he was upset. The de facto wife caused a caveat to be lodged against the title on 26 February 2021 (De facto wife’s affidavit filed 11 May 2022, p.555-565).
The de facto husband, in cross-examination, could not accept that either the de facto wife or her father had any interest which would warrant them being told of the transfer prior to it occurring. He did however reluctantly concede that he did not give the de facto wife’s father even the opportunity to consider securing his loan of $830,000, prior to the transfer occurring.
Development work had started prior to the transfer to the de facto husband’s sister, the second respondent. The transfer by the de facto husband to the second respondent was for the consideration of $640,000, although no money was actually paid by the second respondent.
Quite appropriately, the parties (including the second respondent) entered into consent orders with respect to this property, which saw it being transferred back to the de facto husband’s name and thus into the de facto balance sheet.
The Single Expert Opinion, dated 21 December 2021, provided two valuations. First, a valuation of $2.2 million if J Street was considered “as is: on one title”. The de facto husband relied upon this figure. At the time of valuation, the three properties were still on one title. The three town houses were described as “near fully finished and tenanted with the rentals per [Mr Bokin] being: $620pw” (de facto wife’s affidavit filed 11 May 2022, p.659).
Second, a valuation of $2,725,000 “‘On Completion’ values as if subdivided Torrens Title and fully completed individual townhouses”. The three separate valuation figures for each property totalled the $2,725,000 upon which the de facto wife relied.
The de facto husband lives in what will be known as 2 E Street on completion of the sub‑division; he is not paying rent. His solicitor (on the record in this matter until just prior to submissions on day 10) occupies what will be known as J Street; in cross-examination, the de facto husband said whilst he negotiated the rent he could not recall the quantum. I have already set out what was attributed to the de facto husband with respect to rental receipts in the valuation report. The third townhouse will become 3 E Street. The de facto husband said it was rented to a couple with a baby, but (despite what is attributed to him in the valuation report) he said he did not know how much was paid, or where the rent went.
A call was made for rental documentation. The answer to that call revealed the following rentals: J Street (his solicitors) $500 per week; 3 E Street (the couple with the baby) $660 per week; and, 2 E Street no rental paid by the de facto husband or his partner.
These occupations and rentals give support to the valuer’s opinion that the three properties were tenanted and obviously then, in a fit state to be so.
I have no evidence of any work that had been undertaken on these properties since the December 2021 “as is” valuation. It was also common ground that the property had not been subdivided by the time of final submissions. Whilst I am attracted to Mr Livingstone’s submission that it “should have been completed by now”, the reality is that it has not.
Thus, I have no reliable evidence that would relegate the property to the higher valuation as if it were subdivided and fully completed. As such the evidence leads to my finding that the appropriate value is “as is: on one title.” In short, I do so, as that is the reality of the situation before me.
However, whilst I will use the lower figure to strike the balance sheet, and more so to understand the monetary value of my findings (even if the final outcome will differ but proportionally so between the parties), I will make orders that J Street be transferred to the de facto wife, she complete the work for subdivision, and the properties be sold by the de facto wife on the mechanism largely based on the orders proposed by her. Ultimately, those net sale proceeds (less the loan to Mr C, rates and usual costs of sale) will be added to the property to be retained by each party, at the values I find below. That new total will be used to determine the final monetary adjustment to the parties. I give reasons for selling J Street when I consider the justice and equity of my proposed orders.
Item 4: S Pty Ltd: this business is run by the de facto husband. No formal valuation was undertaken. The de facto husband inserted a value of $20,000 on the joint balance sheet and the de facto wife said “Unknown”. Whilst Counsel for the de facto wife urged me to make a Black & Kellner (1992) FLC 92-287 finding that the de facto husband had been obstructive with respect to his financial circumstances and had been less than honest with the court about such matters, he appropriately accepted that I could not divine some other figure of value without an evidential basis. Rather, what I was left with was the de facto husband’s admission against interest of $20,000. I agree; that is the best I can do in the circumstances presented to me by the parties.
Item 6: Furniture & contents (de facto wife): all I have here are the bald assertions by each party. The de facto husband said the de facto wife’s furniture and contents were worth $20,000, and the de facto wife said $5,000. Like S Company, I can really only adopt the admissions against interest, in this case, by the de facto wife as to her items. I will thus include $5,000 for these items.
Item 7: Furniture & contents (de facto husband): I repeat the same approach here. The de facto husband said his furniture and contents were worth $500, and the de facto wife said $10,000. I will adopt the de facto husband’s value for his items, being $500.
Item 10: Motorbike 1 (large): no submissions were made about this. The de facto husband said his bike was worth $1,500 and the de facto wife said $2,000. Why the parties ask the court to use precious resources to determine this matter, as opposed to some form of compromise, is a mystery. Again, I will take the relevant admission against interest, and use the husband’s figure of $1,500.
Item 12: Motor Vehicle 4: no submissions were made about this. The de facto husband said the de facto wife’s car was worth $13,000 and the de facto wife (and her father) said $5,000, being the purchase price by her father and then gifted to her in October 2021. I will adopt the same admission against interest approach and use the figure of $5,000.
Items 15-19: various bank accounts: A number of times during the trial, I asked the parties to get their most recent bank balances so the figures could be agreed. They did not. I will not dignify their lack of compliance with an otherwise simple request by spending court resources in determining whether one account had $1 or $0, or another had $169.21 or $252, or another $0.88 or $4. Perhaps the only account of any moment was where I was asked to determine whether the de facto wife held $2,750.58 (as at 16 March 2022) or $60 (as at 26 April 2022) in a particular bank account.
Due to the minor sums involved and the non-compliance with my request to get bank balances during the trial, I will adopt a de minimis approach to these bank account balances and not include any of them in the balance sheet.
Item 31: Credit card #...06 $15,407.28: the de facto husband said he had taken out the credit card post separation through BB Finance to purchase a laptop for V and a laptop for himself that he later gave to W. There was no suggestion the de facto wife agreed to this expenditure.
The de facto husband’s Financial Statement gave a different amount for his BB Finance credit card debt, being just over $10,000 and he swore that he paid, on average $100 per week. I have no evidence what he bought these items for and what value ought be attributed to them in the balance sheet, such that both the detriment and benefit would flow in double entry accounting principles.
Further, I have no evidence that the credit card is a secured liability. Accordingly, the court held in Biltoft and Biltoft (1995) FLC 92-614 (“Biltoft”) at 82,127:
Notwithstanding the general practice which has developed, the Court has indicated that it may properly determine not to take into account or to discount the value of an unsecured liability in certain circumstances. Such liabilities would include but are not limited to a liability which is vague or uncertain, if it is unlikely to be enforced or if it was unreasonably incurred.
Whatever its use, this is a post-separation liability which, for that reason and for the uncertainty that attends to the quantum of the liability and any corresponding asset acquired by that finance, I will exclude from the pool (see Trustee for the Bankrupt Estate of N Lasic & Lasic (2009) FLC 93-402 at [199]; Biltoft). I also cannot be satisfied how to address the impact of the de facto husband’s payments of approximately $100 per week for his credit card debt. I further exclude this liability because I accept the de facto husband’s evidence that he meets all expenses for his new partner, including providing her with the use of the $60,000 Motor Vehicle 2. In those circumstances, I consider it would be neither just nor equitable to have the de facto wife subsidise his post separation credit card expenditure.
Item 33: Australian Tax Office (“ATO”): the de facto husband said he had a debt to the ATO in the vicinity of $130,000. He said nothing about this in his affidavit of evidence in chief, nor anything in earlier Financial Statements to which he was taken in cross-examination. He was granted leave for oral evidence to be adduced about this, but he did not describe the debt with any particularity. The highest his evidence rose was a 5 February 2021 letter from the ATO, marked DFH Exhibit 3, which simply has an amount, and, his Financial Statement which says this: “Total income tax assessed and unpaid in previous financial years - $126,681.53 (50%)”. I have no idea when this debt is said to have arisen, or for what years, or for what income sources. This is also in circumstances where the de facto husband would have me believe, at least on the face of his evidence in chief, that “I have not worked since about May 2020” (De facto husband’s affidavit filed 20 May 2022, paragraph 58). Yet, cross-examination revealed the de facto husband was not correct in swearing that. Nevertheless, I am still none the wiser about the said ATO liability and its antecedents.

It is also a curiosity that remains unanswered that the ATO has seemingly taken no steps to pursue the alleged liability over the last 19 months since the letter. Nor is there any evidence that the de facto husband has entered into any kind of payment plan with respect to this apparent liability.
Ironically, I learned slightly more about this from the de facto wife who deposed:
[Mr Bokin] is asserting that is ATO debt in the sum of $130,000 should be included in the Balance Sheet. I do not agree. [Mr Bokin] has incurred the debt to the ATO due to his irresponsible spending and wastage. He had more than sufficient income to discharge his tax obligations to the ATO. He may also be trying to evade the ATO by transferring properties out of his name. The statements provided show that the ATO debt has significantly increased since separation due to [Mr Bokin] not making regular instalments towards the debt.
(De facto wife’s affidavit filed 11 May 2022, paragraph 729)
I do not know what the statements are to which the de facto wife refers. I do not know what the balance was at separation. Counsel’s submissions for the de facto wife aptly summarised this matter:
Your Honour should conclude from that is that this is a $130,000 debt which has been brought about for unknown reasons in relation to undisclosed income, unknown income and that [Mr Bokin] should be responsible for meeting that liability, which he gave virtually no evidence as to how that came about.
…
What you do know is that he gave sworn evidence last year in his financial statement that he didn’t owe anything to the Tax Office. So it could be capital gains.
(Transcript 15 June 2022, p.29 lines 5-9)
For the paucity of evidence put on by the de facto husband about this alleged liability, I cannot be satisfied it is just and equitable to add an apparent liability into the pool which would see the de facto wife “contributing” to the liability by having her fair share in the parties’ property reduced by including it in the balance sheet. I say that because I have no reliable evidence as to how it arose, from what sources and for what purposes. Frankly, it would not have been hard for the de facto husband to tender a suite of ATO documents which would have made out the bona fides of this sum (or not), but for whatever reason he has not. He confirmed he had an accountant and bookkeeper, who would have been rather obvious sources of evidence.
Further, I am satisfied on the cross-examination of the de facto husband that he has been able to spend considerable funds on discretionary matters, such as drugs, at hotels, licensed premises, when he ought have been attending to any obligations he had (on his case) to the ATO.
Finally, I will not undertake a forensic examination of the de facto husband’s bank statements, as he urged me to do, to work out his income and then work out his tax debt, somehow work out what his Medicare rate ought be, and what marginal rate ought apply. In short, it is not my job to run the de facto husband’s case.
My findings here deal with Issue 7 on the parties list of issues.
Item 36 Motor Vehicle 2 lease: The de facto husband said the lease was $60,000 and the de facto wife said “Unknown”. In the notes to the balance sheet the de facto wife observed that no disclosure had been made about this lease. It was also not mentioned in the de facto husband’s Financial Statement of 8 May 2022.
Counsel for the de facto wife submitted that there was a “pretty remote” chance that a lease would remain at a whole figure amount given it would be subject to interest. Counsel further suggested that as no evidence was put before the court as to the lease agreement, it would have to be taken at the value asserted by the husband. I accept this proposition. This is a little different to the apparent ATO debt, because the de facto wife accepted that the car exists (and is in the pool as an asset), and that there was a lease. She ultimately adopted the figure of $60,000 in submissions. Again, unlike the apparent ATO debt, I do not need to perform any calculations to work out the lease figure.
Accordingly, for the reasons given above, the assets and liabilities available for division as between the de facto husband and wife are as follows:

Ownership Description Value

1 Joint G Street, Suburb O $3,175,000

2 DFH
J Street, Suburb L

NB: as the property is to be sold, the net proceeds, will replace the figure of $2,200,000. The net proceeds will be added into a formula to determine who needs to be paid what.
$2,200,000

3 - E Street: No longer relevant $0

4 DFH S Pty Ltd ATF S Trust trading as S Company $20,000

5 DFH Cash $0

6 DFW Furniture and Contents $5,000

7 DFH Furniture and Contents $500

8 DFH Motor Vehicle 1 $1,500

9 DFH Motor Vehicle 2 $60,000

10 DFH Motorbike 1 (large) $1,500

11 DFW Motorbike 2 (small) $1,000

12 DFW Motor Vehicle 3 $5,000

13 DFW Motor Vehicle 4 $0

14 DFW Motor Vehicle 7 $0

15-19 Both All removed on de minimus principle $0

20-30 Both Removed by parties from balance sheet $0

Total assets

NB: This figure will change when the net proceeds of J Street crystalise.
$5,469,500.00

Ownership Description Value

31 DFH BB Finance Credit Card #...06 $0

32 Both Debt to Mr C for funds loaned to develop property at J Street, Suburb L $830,000

33 DFH Australian Tax Office $0

34 - Item removed by parties $0

35 JT Debt to TT Council for unpaid rates $20,929.16

36 DFH Motor Vehicle 2 $60,000

Total liabilities

NB: This figure will change when the net proceeds of J Street crystalise.
$910,929.16

Total assets, less liabilities excluding superannuation

NB: This figure will change when the net proceeds of J Street crystalise.
$4,558,570.84

Member Name of Fund Type of Interest Value

24 DFH Super Fund 1 Accumulation $14,912.93

25 DFW Super Fund 2 Unknown $0

Total superannuation $14,912.93

TOTAL POOL INC. SUPERANNUATION

NB: This figure will change when the net proceeds of J Street crystalise.
$4,573,483.77

Contributions

Once a marriage or de facto relationship dissolves and the parties’ rights and entitlements under Part VIII or Part VIIIAB of the Act fall to be determined, all of their financial and non-financial contributions pertaining to the relationship – whether made before, during or after it – are intrinsic to the discretionary relief granted. That is because their rights are premised upon the existence of the marriage or the de facto relationship regardless of when their property was acquired (see Kowalski and Kowalski (1993) FLC 92-342 at 79,630-79,631; W v W (1997) FLC 92-723 at 83,769-83,771; G and G (2000) FLC 93-043 at 87,673-87,674; Maine & Maine (2016) 56 Fam LR 500 at [21]).
The Court is required to make an assessment of the nature and quality of the totality of the parties’ contributions throughout the entirety of their relationship, together with their contributions in the period subsequent to their separation: see for example: Dickons & Dickons [2012] FamCAFC 154; Jabour & Jabour (2019) FLC 93-898. See also Dovgan & Dovgan [2021] FamCA 306, which restated the need to holistically assess contributions, and that “all contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder” at [347].
I raised the required holistic approach with the de facto husband, given Issue 2 on the parties’ List of Issues asked me to quantify his initial contributions and then asked whether the court ought “adjust the parties’ interests whether the Applicant made a superior initial contribution to the property?” Whilst I will consider the parties’ initial contributions, I will do so as part of the wider and holistic assessment of their myriad of contributions. I consider that if I adopted the approach sought by the de facto husband, being that I make an adjustment specifically because of his asserted “superior initial contribution” then I would be lead into the kind of error that Jabour, supra, speaks to: the compartmentalisation of one kind of contribution to be measured against the remainder. Accordingly, whilst I will consider initial contributions as part of an holistic assessment, I otherwise decline to follow the approach sought by the de facto husband in Issue 2 of singling out or compartmentalising his initial contributions and making an adjustment just for that.
Traditional chronological contribution headings are used below. I do so to assist in identifying the myriad of contributions made by the parties, but then assess all contributions holistically.
Initial contributions
Before looking at the de facto parties’ initial contributions, I must determine when the de facto relationship began. This is Issue 1 in the list provided by the parties. Importantly, they asked me to decide between either 1999 or late 2002, and nothing in between:
Did the parties commence cohabitation in 1999 as the First Respondent asserts or in late 2002 as the Applicant now asserts?
As I have observed, both parties focused their attention on the de facto relationship commencing when they started to cohabit. As s 4AA of the Act makes plain, the nature and extent of their common residence is only one of a number of considerations which would help me to work out if persons have a relationship as a couple. Nevertheless, I have little evidence to support any consideration prior to the asserted cohabitation dates and will thus focus on cohabitation as the parties do themselves.
The de facto wife consistently maintained that cohabitation and thus the de facto relationship began in 1999 “when he moved into the property [Ms B] and I were living in [H Street, Suburb M]” (De facto wife’s affidavit filed 11 May 2022, paragraph 3). She was not shaken from this date despite vigorous cross-examination on the topic.
That said, the cross-examination of the de facto wife on this topic became a rather confusing focus on whether she acquired the H Street, Suburb M property in 1999 or 2005. Respectfully, there was no doubt that the de facto wife was living there with Ms B in 1999, when the house was held in the name of her stepmother; Her evidence was resolute in maintaining that was when the de facto husband moved in. In 2005, the de facto parties acquired the property from the stepmother, but on both parties’ cases, they were in a relationship by then. There were also many questions about when the de facto wife had a mortgage secured against this property. None of this cross-examination assisted me in understanding the de facto husband’s case that cohabitation was late 2002 (as per Issue 1) and could not have been 1999. As said, it was not controversial that the de facto wife lived there with Ms B in 1999 irrespective of the title, and irrespective of mortgage.
The same consistency as to cohabitation date cannot be said for the de facto husband who advanced a range of dates from 2000 to 2005 – albeit asking for a finding that cohabitation commenced in late 2002. For example, the de facto husband deposed cohabitation commenced in or about 2000 in earlier court material:
(a)DFW Exhibit 4 was the de facto husband’s Amended Initiating Application of 16 June 2021, to which the de facto husband deposed, at question 25: “Date parties commenced to live together - 2000”;
(b)DFW Exhibit 5 was the de facto husband’s affidavit of 22 August 2020, to which the de facto husband deposed at paragraph 5 that, “Mother and I commenced living together on or around the year 2000”; and
(c)DFW Exhibit 6 was the de facto husband’s affidavit of 16 June 2021, to which the de facto husband deposed at paragraph 4 that, “Mother and I commenced living together on or around the year 2000”.
However, in his trial affidavit at paragraphs 4 and 5 the de facto husband said they commenced a “sexual and emotional relationship” in “late 2001 early 2002” and “we did not commence living together until late 2002 early 2003”. In his Amended Initiating Application filed 13 May 2022, he said “2001-2002” at question 25. In oral evidence, he said it was not until “I actually purchased the property off [Ms N] [the maternal stepmother] in 2005 that it was actually my home” and that this point was when they “fully cemented the relationship” (Transcript 30 May 2022, p.35 lines 18-19 and 38-39). This was in June 2005. In other oral evidence he also referred to 2004/2005. In submissions, the de facto husband said “I believe the de facto relationship was probably around 2002 – 2003” (Transcript 15 June 2022, p.50 lines 10-11)
In resisting the 1999 date of cohabitation, the de facto husband submitted that correspondence sent to him at 1 K Street in October 1999, December 2000, February and June 2001 (marked DFH Exhibit 4) was proof he was living at 1 K Street. These were rental receipts for F Street. The de facto wife submitted that the de facto husband’s:
…whole case in relation to cohabitation seems to be based on misuse of an address, and we know he uses his father’s address to send his bank statements to. We do know that sometimes when it comes to [Mr Bokin], the very address that he gives banks and others, or he allows banks and others to use, we know we won’t find him there because that’s where his father lives.
(Transcript 15 June 2022, p.34 lines 34-38)
I do not accept the mailing address used by the de facto husband to be dispositive of the cohabitation date. I accept the de facto wife’s submissions extracted above, because the de facto husband admitted he was receiving mail, such as bank statements in 2019 to his father’s address at U Street, Suburb L, even though he was not living there. By way of further example, the letter said to be from the ATO (DFH Exhibit 3) was sent to U Street, Suburb L (his father’s address), even though the de facto husband was living with his new partner “at [DD Street, Suburb EE] in about February 2021” (de facto husband’s affidavit filed 20 May 2022, paragraph 233). He was also asked when he last lived with his father at U Street, Suburb L. He answered “Probably, actually, just after the start of 2020” (Transcript 30 May 2022, p.64 line 32). Similarly, he had a conveyancing letter sent to his father’s U Street address on 5 May 2017 and 20 April 2017 (Annexure “M” of de facto husband’s affidavit filed 20 May 2022, p.119 and 121), when on both parties’ cases he was back residing with the de facto wife at the then matrimonial home. Further, on his own case the de facto husband said his “bank account is still at the same address now, today; it has been like that my whole life” (Transcript 30 May 2022, p.64 lines 13-14). I am not persuaded that mail sent to the de facto husband at 1 K Street is proof of anything other than mail was sent there.
The parties give me a binary choice: 1999 or late 2002 (Issue 1). I will rule out the late 2002 option because of the inconsistencies in the de facto husband’s own evidence which I have set out above. That leaves me then with the 1999 date and I so find that to be the start of the de facto relationship. First, I accept what the wife said about this; she was consistent. Second, I repeat my findings about mail to 1 K Street.
If I am wrong on understanding the binary approach presented by the parties, then I will immediately discount the 2004 or 2005 options because it was not supported in any of the other documents to which the de facto husband had sworn or affirmed. I will also discount it as I took the view the de facto husband was answering these questions in a way to bolster his initial contributions. The idea of 2004/2005 is also contrary to the de facto husband’s trial affidavit where he listed the 2004 purchase of a Suburb P property and the 2005 purchase of the H Street property from the maternal stepmother under the heading “Contributions during the relationship” (emphasis added). 2004-2005 is also contrary to other documents sworn for the trial, and earlier court documents set out above.
I will also rule out 2000, 2001 and 2003, because the de facto husband did not ask me to make such findings, but even if he had, the inconsistencies in his own evidence give me no comfort that any are correct on the balance of probabilities. Similarly, I also rule out late 2002 (as per Issue 1) as it being an unreliable date to rest upon, again, because of all the inconsistencies in the de facto husband’s evidence.
I will now turn to initial contributions. It is not in dispute that the de facto husband acquired the following real properties prior to or in and around the start of cohabitation which I have found to be in 1999. On the state of the evidence, I cannot be any more specific than the year:
(a)1997 (month unknown): the de facto husband purchased 1 K Street, Suburb L, for $140,000, unencumbered. The de facto husband used funds from a compensation payment arising out of a motor vehicle accident in 1994. When the de facto husband moved into the de facto wife’s property, he rented this property. I do not know what the de facto husband did with this money;
(b)1999 (month unknown): the de facto husband said he acquired F Street, Suburb L, in his sole name for $99,500 to $100,000, with a mortgage of $70,000 from HH Bank. The deposit came from his motor vehicle accident compensation; this was not in dispute. This property was rented and rent receipted into the mortgage account. The de facto wife said “we purchased” this property when the de facto husband was living with her at H Street in 1999. She did not suggest though that she made any direct financial contribution to the acquisition or the mortgage; at best she may have made a very modest indirect financial contribution by providing the home at H Street, for which the de facto husband paid very little by way of expenses. However, I heard little, if any cross-examination on this topic, nor much by way of submissions. I cannot advance any contribution by her beyond that.
Accordingly, I find that at or about the start of the de facto relationship in 1999 the de facto husband had two real properties with equity of about $170,000 in total.
The de facto husband put on no evidence of owning any other items of real or personal property or liabilities at the start of cohabitation (even on his dates). The de facto wife however deposed that he had a ute worth $5,000. I accept that to be so. Accordingly, I find the de facto husband came to the de facto relationship with 1 K Street, F Street and a ute, being $175,000 on his and the de facto wife’s cases.
The de facto wife deposed she owned Motor Vehicle 5 worth about $8,000 and had furniture of about $10,000. The de facto wife further said:
I also had financial resources by way of funds gifted by my father of about $60,000 per year and I was living in a property at [H Street, Suburb M] … with [Ms B]. The property was registered in [Ms N's] name, but Dad has made it clear to me that the property was for [Ms B] and I for the future. [Mr Bokin] moved into the [H Street] property and paid very little expenses associated with the property. He rented out the [1 K Street] property and retained the rental income.
(De facto wife’s affidavit filed 11 May 2022, paragraph 679)
I pause to note that whilst H Street might have been “earmarked” for the de facto wife and Ms B, these de facto parties paid $200,000 for it in 2005 borrowing the same sum from HH Bank. That is common ground. What is in dispute is its value: $200,000 for the de facto husband, or $320,000 for the de facto wife and supported by her father. I will consider this dispute under the section concerning contributions during the relationship.
I accept what the de facto wife said of her initial contributions being the car, chattels, financial support from her father, and a place to live. She was not challenged about any of the items.

My findings here about what the parties brought to the relationship deals with the first part of the Issue 2. I have already indicated that I will not compartmentalise these contributions nor find the de facto husband made “superior” initial contributions as a separate issue, for the reasons previously given, including that would offend the principles in Jabour. I will however look at these contributions as part of the required holistic approach.
Contributions during the course of the parties’ relationship
The de facto husband was keen to impress that when properties were in his sole name, then that was a contribution by him. That however failed to take account of indirect and homemaker contributions to which s 90SM(4) requires I have regard.
For example, when the husband purchased J Street in 2016 (the one he then transferred to the second respondent in 2019) with the proceeds of his properties acquired many years prior, the de facto husband maintained the de facto wife did not make a single contribution over the years to the two older properties or J Street. It was nevertheless accepted by the de facto husband that for the great bulk of the relationship, the de facto wife was a “great mother” to their five children.
The parties bought and sold various properties during their de facto relationship:
(a)2001: the parties acquired 2 K Street, Suburb L for $132,000, in the de facto husband’s sole name. They consolidated the loan for 2 K Street with the loan for F Street in the total amount of $200,000, again in the de facto husband’s name. Rentals from both properties were paid to the mortgage;
(b)2002: the de facto wife said F Street was sold for $210,000, but said in her trial affidavit at paragraph 695, that she had no knowledge what happened to the proceeds. The de facto husband said nothing at all about the sale or application of the sale proceeds, but he said he still owned it at least as of 2004 when they bought the Suburb P property. On the way the parties’ ran their cases, it is not necessary for me to find when F Street was sold. It is also impossible to make any specific finding about the use of the F Street proceeds in the de facto husband’s favour, other than it was part of a consistent pattern of buying and selling properties;
(c)2004: the parties acquired a property at Suburb P for $330,000, in the de facto husband’s sole name with a loan from HH Bank. The de facto husband said the loan for Suburb P was consolidated with the loans referrable to 2 K Street and F Street in the total sum of $500,000. I have already referred to the de facto wife’s position on F Street being that is was sold in 2002. Suburb P was sold for $307,000 or $307,500 (it does not matter which one) in 2008 at a loss. The de facto wife said she recalled all the funds from the settlement went to the bank (De facto wife’s affidavit filed 11 May 2022, paragraph 700). The de facto husband did not indicate how the funds were distributed. I accept the de facto wife’s evidence as it makes sense that the bank would take the proceeds. Further, I am offered no alternative evidence. Nothing turns on this other than the de facto wife and de facto husband buying and selling properties;
(d)Of F Street and the Suburb P property, the de facto wife said:
I maintained the rental properties at [F Street] and [FF Street], I cleaned and repaired the malfunctioning oven and maintained the gardens. Prior to the sale of the [F Street] property, I helped ready the property for sale and took items to the tip, cleaned, repaired, and painted the property.
(De facto wife’s affidavit filed 11 May 2022, paragraph 697)
I accept the wife’s unchallenged evidence. I accept it not because it was unchallenged per se (Ellis v Wallsend District Hospital (1989) 17 NSWLR 553; Scott & Scott (1994) FLC 92-477), but because what she said was consistent with the impression I gained of the de facto wife that until her alcoholism took hold, she was a hard worker within the family unit;
(e)June 2005: the parties acquired H Street, Suburb M, for $200,000 with a loan from HH Bank in the same amount. This was the property in which the de facto wife, Ms B and the de facto husband had resided since 1999. The de facto husband said the value of this property upon its acquisition in 2005 was also $200,000 whilst the de facto wife (and her father) said it was worth $320,000. The transfer was attached to the affidavit of Mr C and listed the property at a value of $320,000 (Annexure “A” of affidavit of Mr C filed 29 April 2022, p.22). Given the independent documentation and that the de facto wife was not challenged about this, I accept the true value to be $320,000 but that the parties were only required to pay the agreed $200,000. The parties thus received the benefit of the undervalue;
(f)2007-2009: the de facto husband deposed:
In 2007 I subdivided [1 K Street] and [2 K Street] to create two additional blocks of land knowns as [3] and [4 K Street]. I subsequently built a house on [3 K Street] and a house on [4 K Street] over a period time from 2007 until 2009 from my earnings. I carried out the majority of the labour myself.
(De facto husband’s affidavit filed 20 May 2022, paragraph 19-20)
The dates of 2007 to 2009 cannot be correct as the date of development consent to construct the two additional dwellings was not given until 9 March 2009 and was not certified as suitable for occupancy until 18 February 2016 (Annexure “G” of de facto husband’s affidavit filed 20 May 2022, p.80). I thus prefer the de facto wife’s evidence as to dates, being subdivision occurring in 2013 and a certification on 2016 (and find that to be so) because at least the 2016 date is borne out on the certification document. Little turns on this anyway – they both agree there was a subdivision and that two additional dwellings were built. Perhaps more importantly, the de facto husband’s emphasis on “I” and “my” overlooks the fact that whatever the dates, the parties were a couple and that the de facto wife was at home caring for children and by doing so allowed the de facto husband to perform these tasks. By 2009, the de facto wife had given birth to V and to W, both by IVF. By 2016, all five had been born and all by IVF;
(g)2006 or 2008-2009 (I do not need to find which date): the parties built a new home on H Street, Suburb M at a cost $260,000 to $280,000 (it matters not which one) with a mortgage from HH Bank in both names. I accept the unchallenged evidence of the de facto wife, who added:
We obtained a joint mortgage with [HH Bank] in the sum of about $380,000 to fund the build and borrowed $100,000 from my father. We later paid back the $100,000 to Dad. I paid about half of the mortgage repayments from funds gifted from my father. Dad gifted the installation of a pool costing about $30,000.
(De facto wife’s affidavit filed 11 May 2022, paragraph 699)
The de facto husband disputed that the de facto wife contributed to the H Street mortgage. I find it does not matter who actually made the payments, because the parties were living together and each contributed to the good of the family unit;
(h)2012: I pause to observe that the parties’ third child, X was born. Whilst this is plainly not a property acquisition (as I am primarily focused on in this section), it is useful to keep in mind what else was happening in the relationship;
(i)2013: the de facto wife said the parties sold 1 K Street, Suburb L for $325,000, and 2 K Street, Suburb L for $292,000. The de facto husband said this all occurred in 2014, but the transfer attached to the de facto husband’s affidavit (Annexure “J” of de facto husband’s affidavit filed 20 May 2022, p.87) in the sum of $325,000 is dated 15 March 2013 and a letter about the sale of 2 K Street is dated 5 November 2013. I therefore accept the de facto wife’s dates for these transactions because that is supported by independent documentation. Little turns on this anyway;
(j)2013-2016: the de facto wife deposed:
[Mr Bokin] and I built two dwellings, [3 and 4 K Street, Suburb L], behind the dwellings on [1 and 2 K Street, Suburb L]. The development and build of these properties were largely funded by funds gifted to me by Dad. I spent money on the materials including the bricks, stairs, carpet, framing, roofing, carpet, and the kitchen. The total spent on the project was about $290,000. I contributed most of the expenses towards the project. Most of the expenses were paid to the tradesman by way of cash withdrawn from my bank account. [Mr Bokin] also paid for some expenses from his cash [building] jobs. I completed the owner builder course and was the owner builder for the builds. I helped with the manual labour including transporting materials from the store to the jobsite transporting materials around the jobsite, purchasing materials and goods passing [Mr Bokin] tools and equipment on scaffolding. I acted as a labourer and passed items, tools and building materials and assisted [Mr Bokin] in various ways.
(De facto wife’s affidavit filed 11 May 2022, paragraph 704)
In cross-examination the de facto wife was asked to indicate transactions from her bank account ending in #...00 (see de facto wife’s affidavit filed 11 May 2022, p.500-505) that pertained to the build. The de facto wife was able indicate:
…there’s seven in a row there. [JJ Company, the KK Company, LL Company, MM Company, CC Company]. They definitely all – them would have went straight to the build from that page. Do you want me to just keep going through each one or…
…
[NN Company] on two – [NN Company, GG Company, BB Company, CC Company, PP Company]. That’s all like stove tops, etcetera. Wardrobes
(Transcript 1 June 2022, p.67 lines 40-43 and 45-47)
On this cross-examination, I accept the general thrust of the de facto wife’s evidence that she made financial contributions to the project, but again, I find each is contributing to the best of their abilities. I also accept the de facto wife assisted with physical work as that sits comfortably with my assessment of the de facto wife that she was active in supporting the relationship’s property acquisitions until her alcohol abuse took over;
(k)July 2013 or 2014: Both the de facto husband and de facto wife said Mr C loaned the parties $700,000 to buy land at VV Street, Suburb O for the same amount in 2013. Mr C could not recall this in cross-examination, but it was certainly the parties’ cases that this occurred: see the de facto husband’s trial affidavit at paragraph 24 and see the de facto wife’s cross-examination at Transcript 1 June 2022, p.80 lines 35-40). I accept the parties’ evidence with respect to the $700,000 loan from Mr C. It is also consistent with other courses of conduct undertaken by him over the course of the relationship in loaning $100,000 for the new home; $2.2 million for the purchase of G Street; and, $830,000 for the development of J Street;
(l)2014: again, mindful of the wider family unit, the parties’ twins Y and Z were born;
(m)2014: the parties were agreed that H Street, Suburb M was sold for $725,000 and in that year. The de facto husband deposed at his paragraph 28, that the net proceeds of sale of the three properties (H Street, 1 K Street and 2 K Street) were used as follows: “(a) Payment of the loan to [Mr C]- $700,000.00. (b) Payment of the mortgage on [Suburb M] $300,000.00”, and the balance used to build the home on VV Street. The de facto husband’s paragraph 28(b) is said to be supported by Annexure K which he said was a settlement statement. It is not and says nothing in support of this. Further, in earlier evidence, the de facto husband said the mortgage on H Street, Suburb M was $200,000 (De facto husband’s affidavit filed 20 May 2022, paragraph 18), but here said it was $300,000. Equally confusingly, the de facto wife deposed in her affidavit that the H Street proceeds were used to buy the land at VV Street, Suburb O however readily accepted in cross-examination it was a loan from her father that enabled the parties to purchase the VV Street land. I have found that to be so. As for the other differences between the de facto husband and de facto wife, it is not necessary that I resolve them, as on either case, this is a continuation of buying and selling and with the assistance of Mr C from time to time.
(n)2015: the de facto wife said the parties spent this year building the home on VV Street. She added: “I assisted as a labourer. I painted, laid bamboo flooring, and assisted the builders with labouring on scaffolding including passing materials” (de facto wife’s affidavit filed 11 May 2022, paragraph 706). In cross-examination the de facto wife appropriately accepted that the de facto husband did most of the physical work on the parties developments, which I accept, but also accept she contributed too.
(o)May 2016: during a period of separation the de facto husband entered into a contract to purchase J Street, Suburb L NSW ("J Street") (de facto husband’s affidavit filed 20 May 2022, p.91). This is the property for which Mr C subsequently loaned $830,000 for its development not knowing the de facto husband had transferred the property to the second respondent, and, for no actual monetary consideration. I have already referred to the de facto husband’s conduct at some length. The de facto husband deposed he acquired this property in his name in the sum of $690,000 with a mortgage to WW Bank in the sum of $650,000. He said the cash of about $40,000 came from his savings (de facto husband’s affidavit filed 20 May 2022, paragraph 33). There was no evidence by the husband that he acquired the funds solely during separation in 2016, and I cannot so find. The de facto wife said there was no mortgage, because the acquisition was funded from the sale of two K Street properties (de facto wife’s affidavit filed 11 May 2022, paragraphs 709-710). No one produced any documents to support what either said. However, if I accept that the de facto husband was able to use savings to buy this property, then, that paints him in a poor light when he also deposed in his trial affidavit at paragraph 57 that in 2016 and 2017, he was in such a parlous financial state that, “I remember going to work with no lunch or food, and I would have to work overtime to get what they called a crib docket, which was for buying food for the day”. He added “Any money I had in my bank account I kept for the family as a fall back”. He was also able to buy a recreational boat in 2016 for $11,000. I find the matrimonial finances were not as grim as he portrayed. Rather, I find matrimonial funds were used to support the purchase of J Street;
(p)July 2016: also during separation, the parties settled on the purchase of the former de facto home at G Street, Suburb O, in joint names for $2.084 million, with a loan of $2.2 million from the de facto wife’s father, Mr C. According to the de facto husband those funds were paid back on the sale of other real property, being VV Street in December 2016 and the remaining K Street properties. It was common ground that the $2.2 million was repaid. I do not need to identify the source other than to identify it came from the proceeds of matrimonial property;
(q)December 2016 or 2017: the parties sold VV Street for $1.8 million in December 2016 for the de facto husband, but 2017 for the de facto wife (de facto wife’s affidavit filed 11 May 2022, paragraph 711). On the de facto husband’s case, the sale proceeds left a shortfall owing to Mr C of $350,000. The de facto wife said the VV Street proceeds went to the purchase of G Street, but that property had been acquired (on her case) in July 2016. Mr C said he was repaid the $2.2 million when VV Street was sold but that cannot be so because it was sold for $1.8 million meaning there were insufficient funds to meet the total. I will not conduct a tracing exercise trying to work out when and how Mr C was repaid. What I find is the parties bought and sold properties with Mr C’s assistance. I also find that he has been repaid all loans, save the agreed $830,000 because that was the evidence of Mr C, and I accept his evidence;
(r)Late 2016: the parties reconciled;
(s)2017: the de facto husband sold what he described as 3 K Street and 4 K Street, and the de facto wife described as 1B and 2B K Street, for $580,000.00 each. The sale price was agreed. The de facto husband said at his paragraph 38, the proceeds were used to pay the balance of $350,000 owing on the loan to Mr C, to discharge the $650,000 WW Bank home loan for J Street and to pay some outstanding personal debts of his. That cannot be because his settlement statement for the two properties at his Annexure M (de facto husband’s affidavit filed 20 May 2022, p.120) said the total proceeds of sale amounted to $333,070.81, after discharge of the WW Bank loan. There is then insufficient funds to meet all the debts he said he serviced. I will not even attempt to try to reconstruct what actually happened with the money. My task is not one of inquisitor. Rather, I can accept what he claimed or not. I do not because there is a short fall in funds on the evidence before me. I do however accept Mr C was repaid the $2.2 million and from matrimonial sources. Mr C says so and I accept his evidence;
(t)2019: in or around this time, Mr C stopped providing $50-60,000 per annum to his daughter. He did not wish to enable her purchasing alcohol (affidavit of Mr C filed 29 April 2022, paragraph 32). I accept both the provisions of funds during the relationship and that it stopped about this time. I do so because I found Mr C to be a forthright and honest witness;
(u)October 2019 to February 2021: Mr C loaned $830,000 for the development of J Street. I have already set out the de facto husband’s actions with respect to this property and Mr C’s lack of knowledge of the transfer;
(v)In December 2019: Mr C gave the de facto wife, his daughter, $5,000 to use while she, the de facto husband and the children were on holidays in XX Town.
The $830,000 remains owing and is included in the joint balance sheet. Obviously, I cannot include it as a liability and also count it as a contribution in its totality; that would be a double count. The same applies to the $100,000, $700,000 and $2.2 million advanced by Mr C, all of which were repaid.
However, that is not the end of the matter. The de facto husband did not consider the fact of the provision of these significant funds from Mr C to be any kind of contribution, let alone on the de facto wife’s side of the equation. I disagree. The provision of funds by Mr C, including the $100,000, $700,000, the $2.2 million and $830,000, nevertheless saved the parties from dealing with banks and being exposed to commercial interest rates and repayment schedules. The loans from Mr C were interest free. That is something of value to the parties. There is no evidence before me to suggest the parties would have been capable of raising such funds from commercial providers if left to their own devices, unaided by Mr C.
It was also the de facto husband’s case that the loan of $830,000 from Mr C would have been made to him even if he had never had a relationship with the de facto wife, Mr C’s daughter. He was adamant that Mr C’s generosity had absolutely nothing to do with Mr C wishing to benefit or assist his own daughter. Rather, on his evidence, the loan from the de facto father in law, Mr C, to the de facto husband, Mr Bokin, was for the de facto husband and him alone:
Are you seriously saying that if you weren’t in the relationship, that he wouldn’t have – he would have loaned you the money anyway?‑‑‑100 per cent, your Honour. He has lent me considerable amounts of money in the past.
(Transcript 30 May 2022, p.31 lines 1-3)
I accept the evidence of Mr C that the substantial funds advanced by him at various times were not for the de facto husband alone. Mr C’s evidence was clear and accorded with simple common sense – the monies advanced had everything to do with benefiting his daughter and the wider de facto family unit.

The de facto husband was highly critical, understandably, of the de facto wife’s alcohol abuse, driving under the influence and requirement for an interlock device in her vehicle. However, the extracts above show the de facto husband had drug problems and the evidence revealed he too, and his partner, had a driving under the influence each, and an interlock device in his car. Both parties accused the other of driving cars without their interlocks, but I do not need to make any findings about that. Each also said the other’s partner was an unacceptable risk to the children, but that is also not a matter about which I need to make a finding in what is now property proceedings. What I can safely find is that post-separation both parents incapacity to parent was such that the children were taken into care. The relevance of that is to my assessment of post-separation contributions.
Neighbours called the police in May 2020 and an Apprehended Domestic Violence Order made in the favour of the de facto wife. The de facto husband was not to enter the home.
On 21 July 2020, the de facto husband initiated these proceedings.
Until orders were made, the children had no particular routine between the parents. On 4 September 2020, Judge Altobelli (as His Honour was then) made Orders requesting that DCJ intervene and made several notations to the Orders including concerns that the children were at risk of harm in the de facto wife’s care because of her alcohol abuse but also concerns in the de facto husband’s care because of the family violence “which is not acknowledged by him.” A further notation added: “The material before the Court creates the strong impression that the children have been exposed to parental family violence and are suffering psychological harm as a result of this”.
In early October 2020, DCJ accepted the invitation to intervene in these proceedings. They were joined as parties in early November 2020. Those Orders also provided for Mr C and his wife to have parental responsibility for the children and for the children to live with them. The time that the children were to spend with the parents was to be supervised.
The children were taken into the care of DCJ in November 2020. Three of the five children remained in care when the matter came before me in May 2022.
Thereafter, the children were placed with Mr C and Ms D (the maternal grandfather and stepmother) from November 2020 to mid-2021 when Mr C was in hospital. Then, in mid-2021, the younger three were placed with the paternal grandmother, Ms Q for a short period until 13 August 2021. The three younger children were back in the care of the maternal grandfather and his wife for a week or so from 13 August 2021. Then, between late August 2021 to 24 September 2021, X, Y and Z were placed into the care of Ms RR and Mr RR, the children's great paternal aunt and uncle who lived in YY Town. On 24 September 2021, the three children were brought back to Suburb O and placed in a hotel with carers. In November 2021, X, Y, and Z had moved from the hotel to a multiple bedroom house with the same supervising agency. That remained in place until implementation of the final consent orders (parenting), which sees the three younger children transition to a week about arrangement with each parent.
W was placed with the younger three children in the care of Mr C and Ms D in November 2020. In late July 2021, W was placed with the paternal grandfather, Mr R. W remained in the care of Mr R for a period of six weeks until she self-placed with the de facto wife in October 2021 and remained in her care at the time of the hearing.
V self-placed with the de facto husband in December of 2020, shortly moving on to the de facto wife’s house in January 2021. V then self-placed with the de facto husband in December 2021 and remained in his care at the time of the hearing.
The final consent orders (parenting) will see W and V living with the parties in accordance with their wishes.
At the start of this section on post-separation contributions, I referred to 2020 as chaotic for the de facto husband and de facto wife. It was chaotic for the children too. That chaos continued for the children in 2021 and 2022. Whilst these are not parenting proceedings, the summary of their care assists in looking at post-separation homemaker contributions.
On the chronology of parenting I have described, the three younger children of the relationship have been in the care of the department almost exclusively post-separation. The older two have recently shared their time, roughly with each parent. Accordingly, these contributions cannot be assessed in the usual manner referenced to one parent or the other or a combination thereof. Rather, I accept the submissions of the de facto wife’s Counsel:
The parenting contribution in this case is unusual and it is significant and it is nuanced. Because, in this particular proceeding, for a not – for a significant period of time, the children weren’t in the care of either parent.
(Transcript 15 June 2022, p.42 lines 46-47 and p.43 lines1-2)
None of the maternal nor paternal extended family had any obligation to support these children, to maintain them and meet all of their needs. This was also in the very difficult circumstances of parental responsibility being with the Minister from August 2021. I accept the paternal family provided some care in this regard, but it cannot be disputed that in so far as the wider family is concerned, the lion's share fell to Mr C and his wife. This is a significant contribution referrable to the de facto wife.
As already determined, Mr C continued loaning money for the development of J Street until he was told in February 2021 that the property was no longer in the de facto husband’s name. He is to be paid that money back thus I do not count the totality of the $830,000 as a contribution. I have however already referred to the fact of the loan, without interest and not needing bank involvement as a contribution during the relationship. I do not count it again here, but simply include it as part of the post-separation chronology.
Mr C also financially supported the de facto husband when in December 2020, Mr C and his wife assisted the de facto husband to furnish a home with second hand furniture and pieces from family. Mr C said “We paid a deposit of $8,840 for his rental bond and three months' rent in advance. We also spent $1,100 on some new furniture and household items for him” (affidavit of Mr C filed 29 April 2022, paragraph 38). The de facto husband accepted Mr C had assisted him post-separation. I accept this to be so, and as a contribution attributable to the de facto wife.
Mr C also financially supported his daughter, the de facto wife. She was not provided with rental income from, for example, J Street, once tenanted by the de facto husband, who lived there rent free, his solicitor or the couple with the baby. Instead, Mr C provided his daughter, the de facto wife, with a car and some financial support.
Mr C also financially supported the children when not in his care, in addition to when they were placed with him. For example, on 21 August 2021, when the children were removed from Mr C and taken to the children's great paternal aunt and uncle, the carers had $5 for each child for lunch. He provided the carer with $50.
The de facto husband submitted that he had gone above and beyond in relation to contributions to the care of the children post separation, inclusive of when they were in the care of DCJ:
even since post-separation and since the children have been in the care of DCJs, I believe that I’ve, you know, gone above and beyond to make sure that my kids get the, you know – I’ve been in constant communication with DCJs to make sure that they attend all their sporting training sessions, they get there on the weekends and I’ve bought them all – all of them, new shoes, new footy boots, you know, shorts and all their registrations and everything for them since post-separation.
(Transcript 15 June 2022, p.58 lines 16-23)
The de facto wife maintained contact through FaceTime and phone calls with the children and attended the supervised visits whilst they were in the care of other family members and DCJ.
I accept what each said about their efforts to maintain contact with the children. I accept they both did what they could when they could.
In the meantime, the de facto wife said she had maintained the G Street property since separation, even making improvements to it:
Post-separation, I have continued to maintain the [G Street] property. I have been residing in the [G Street] property to the exclusion of [Mr Bokin], since the Apprehended Domestic Violence Order that was made. Since separation, I have gurneyed the driveway and outside of the house on scaffolding, assisted the carpenter to lay floors, pulled up carpet and timber skirting boards.
Since separation, I have made improvements to the [G Street] property, including replacing the walls with new gyprock due to [Mr Bokin] having punched holes in them, painting the bedrooms, replacing the carpet with hybrid-flooring, refurnishing, and decorating the children's rooms, arranged for removal of a tree in the backyard due to the palm trees causing damage to the retaining wall, and maintained the outdoor areas including mowing. I also did some renovations to the kitchen doors and shelving.
(De facto wife’s affidavit filed 11 May 2022, paragraphs 717-718)
I accept that to be so, because the de facto wife described these activities helped with her rehabilitation. I also accept that because the de facto wife said it was against her interest to improve the property (and thus the valuation) she hoped to keep, but she did it anyway.
The de facto husband said that between late 2019 and mid-2022 he “carried out the scaffolding, assisted with carpentry, landscaping, the concreting work and the pool” at the J Street property (de facto husband’s affidavit filed 20 May 2022, paragraph 42). I accept that to be so because it is consistent with earlier evidence he gave about physically assisting with other property developments.
Evaluation of contributions overall
The de facto husband said contributions favoured him in the vicinity of a 60 per cent adjustment. The de facto wife said contributions favoured her in the vicinity of a 70 per cent adjustment. The final Issue, added by the de facto husband in submissions, asked this:
Whether the court should adjust the interests of the parties where the applicant contends he made a superior contribution overall?
If contributions were measured solely by income earning and legal title to property, that question would be answered in the affirmative in favour of the de facto husband. However, s 90SM(4) is not expressed in those terms.
Looking at the myriad of contributions in this long relationship, and in collectively considering the de facto husband’s initial contributions and the use that was made of those two properties, the sizeable interest free loans from Mr C obviating the need to deal with commercial providers and repayment schedules (I again observe I do not count the quantum of loans as they have been repaid or will be, rather, I concentrate on the interest free aspect and not dealing with commercial finance providers and repayment schedules), the provision of $50-60,000 per annum to the de facto wife until her alcoholism took hold, the undertaking of IVF, the involvement of paternal and maternal family members with the care of the children post separation, and the significant financial and homemaker assistance made by Mr C post-separation (and by financial, I include financial support for the de facto husband to secure alternate accommodation in December 2020, and support for the de facto wife’s expenses), together with the other contributions of both parties holistically, all contributions weigh in the de facto wife’s favour warranting a 60 per cent adjustment for contributions in her favour.
I appreciate a 10 per cent adjustment is a 20 per cent differential. In money terms, that 10 per cent equates to $457,348.38 or, on the 20 per cent differential, $914,696.75. Obviously, when J Street is sold these figures will be different, but these dollar figures allow me to understand the monetary effect of my findings. The parties will then proportionally share in the upside or downside when J Street is sold and the net proceeds used to calculate the revised pool total.
Section 90SM(4)(d)
The property order I will make will not affect the earning capacity of either of the parties under s 90SM(4)(d) of the Act. Neither party suggested otherwise.
Relevant s 90SF(3) considerations
The de facto husband sought a five per cent adjustment in his favour for his “injuries and potential incapacity to work” (Transcript 15 June 2022, p.103 line 12). The de facto wife sought a 10 per cent adjustment in her favour due to the considerable amount of time she has been out of the workforce and her capacity for paid employment.
The Issues I am asked to determine are the following:
(3)The Applicant’s current income and post separation income, and whether there should be an adjustment to the First Respondent for income earning disparity in relation to future needs pursuant to Section 75(2) [sic]?
(8)Whether there should be a Section 75(2) [sic] adjustment due to the First Respondent’s prospective inheritance [from] her father who is alive but has cancer?
I accept the references to s 75(2) ought be references to s 90SF(3). The two remaining issues set out below, fall within s 90SF(3)(o), as does the de facto husband’s Robb & Robb (1995) FLC 92-555 (“Robb & Robb”) claim.
(5) Whether the parties have made full and frank disclosure.
(6) Whether the Applicant has depleted the asset pool and whether there should be an adjustment for this including: items (a)-(g) already listed out
Subsection (3)(a) – the age and state of health of each of the parties
Nothing turns on age; both parties were born in 1978.
The de facto husband made much of his health (although not on the Issues list) and tendered a bundle of medical records (DFH Exhibit 10). He put on no affidavit from a medical professional opining about or explaining his apparent health issues and resultant impact on his capacity to work. I am left with a bundle of medical records and no expert assistance as to what it all means. I did raise that with the de facto husband and his former Counsel but both persisted in any event.
At the outset, it is agreed that the de facto husband was involved in a motor vehicle accident prior to the commencement of the relationship when he was 17 years old. But it is equally common ground that he did work for remuneration outside of the home after this accident and for much of the relationship. Or, as the de facto husband submitted in his cover page to this tender bundle (DFH Exhibit 10), after this motor vehicle accident he had a “history of working [as a tradesperson] as per my affidavit”.
Doing the best I can on the medical records at DFH Exhibit 10, this 44 year old man: “may eventually need a knee osteotomy” in a record of February 2022 (DFH Exhibit 10, p.3); had some knee joint osteoarthritis (DFH Exhibit 10, p.5); has had “multiple surfing injuries to his right knee” and is “active and likes to surf” (DFH Exhibit 10, p.7); pages 8 and 9 contain many medical terms which I cannot understand; page 10 is a note from 2015 referring to non-acute grade 1 spondylolisthesis and “suspicious of partial impingement of left L5 nerve root”; page 11 is a 2008 record of back pain; and, pages 13-20 are records from 1995 to 1996 dealing with the consequences of the motor vehicle accident.
There is nothing in this evidence (so far as I have been left to make of it what I can) which would allow me to make any findings about the de facto husband’s health – or more so, his apparent poor health and that as a consequence, the submission that “the court could infer that my working life has considerably been shortened” (Transcript 15 June 2022, p.62 lines 12-13). On the evidence before me, I cannot make the finding he seeks.
Nothing turns on this factor.
Subsection (3)(b) – the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
I have already referred to the de facto husband’s capacity to work within the context of his apparent health issues. I will not do so here again.
The de facto husband swore in his affidavit at paragraph 58 that he had not worked since May 2020. Yet Counsel for the DCJ took him to things he told case workers that sit at odds with his affidavit:
(a)A file note of the caseworker Ms SS on 28 October 2020 where Y reported that his father went to work “last week”;
(b)A file note of 21 December 2020 where the de facto husband told Mr C that he was "working a lot";
(c)On 3 January 2021 the de facto husband told a caseworker in an email that he “was working, pursuing his working life…to provide an adequate income”;
(d)On 14 January 2021 the de facto husband also told a caseworker that he “wants to take a step back from his current role and take more of a management role”;
(e)That when he crushed his fingers, he denied that he was working, but rather he was moving things at work;
(f)At a contact visit on 15 April 2022 he put Y on his shoulders and showed the caseworkers some back strapping. The file note said the de facto husband “was hurt yesterday at work and went to the hospital”. He denied this in cross-examination (Transcript 24 May 2022, p.36 lines 10-12);
(g)Another casework file note, this time on 29 January 2021 recorded the de facto husband was at work; and
(h)Mr R gave evidence that his son was “always damaging something at work” (Transcript 25 May 2022, p.7 lines 1-2).
When asked about the inconsistencies between his affidavit and the file notes, the de facto husband said:
Yes. Well – so in my defence, I would say is that – like, my whole life I have been a hands-on worker. You know what I mean? And due to my injuries and that, I’ve – I’ve – I don’t – how do I explain it? So when I go to a job and there’s – I get guys organised, I don’t really consider that work
(Transcript 24 May 2022, p.31 lines 23-27)
As I said before, I realise that my traditional scope of work has always been full-on, intense. So I didn’t associate with that type of role as being still categorised as full-time work type thing.
(Transcript 24 May 2022, p.36 lines 1-3)
This was not convincing. I accept the DCJ records to be accurate and thus accept that the de facto husband has worked since May 2020. I also accept the de facto husband’s father’s evidence that “he’s always damaging something at work” (Transcript 25 May 2022, p.7 lines 1-2), which means he is working.
Further, the de facto husband entered a lease for Motor Vehicle 2 in 2021, which currently has an estimated value of $60,000 and lease of the same quantum. Counsel for the de facto wife submitted that the de facto husband’s financial “circumstances were so comfortable he purchased that on a hire purchase or leasing agreement” (Transcript 15 June 2022, p.26 lines 33-34). I accept he has been able to satisfy a finance provider that he has the ability to meet the repayments. There was no suggestion that his partner was meeting this, or any other, financial commitments. I accept the de facto wife’s submission that a financier would be unlikely to loan $60,000 if the de facto husband “was a disabled [tradesperson] incapable of earning an income or deriving an income from his trade or calling” (Transcript 15 June, p.30 lines 27-28).
In the circumstances of his incontinences between not working but telling DCJ and others he was “at work”, and his ability to finance a $60,000 Motor Vehicle 2, I find the de facto husband has the capacity for appropriate gainful employment.
For the de facto wife, she has held odd jobs including casual work at a friend’s company since separation. The de facto wife said she had aspirations to go back to university to pursue further studies. On the de facto wife’s own contention, she would be able to obtain gainful employment, however this would require retraining:
And you will get a job. You will try to get a job?‑‑‑Yes, I – yes, ma’am.
And retrain?‑‑‑I’m planning on going to uni in 12 months.
And what are you going to do?‑‑‑I was interested – yes, I was really interested in two years to do psychology, but I’ve been hanging around [UU] and [ZZ] for two years. I’m more interested in law at the moment, but psychology was my plan.
(Transcript 1 June 2022, p.34 lines 9-15)

Counsel for the de facto wife submitted:
Your Honour would find that the applicant is a talented [tradesperson] and [project manager]. Your Honour would find that my client is unlikely to obtain employment in the near future. She has expressed an interest in working in the legal profession in some sphere but that’s many years off if she matriculates and passes the exams and succeeds in meeting those exams coupled with caring for the children. She will have a lifetime vulnerability to mental illness, including alcoholism. And that vulnerability came about during the relationship.
(Transcript 15 June 2022, p.45 lines 4-11)
… The applicant de facto husband’s partner lives with him but this court is not told anything about her income or her contributions that he makes to her expenses. In my respectful submission, your Honour would find that that was a deliberate choice that they made not to disclose those matters and that that relationship is financially otherwise advantageous to him. [Mr C], your Honour would find, is not a financial resource to either party. He wasn’t effectively challenged in his cross-examination. And in my submission, he was a witness of truth
(Transcript 15 June 2022, p.45 lines 13-22)
I accept the de facto wife’s submissions. She has few skills and hardly any work experience in anything other than menial work. The de facto husband is in a better position than the de facto wife when it comes to income and income earning capacity.
As a final issue under this sub-heading, it was the de facto husband’s case that the de facto wife had the benefit of a financial resource being the prospective inheritance from “her father who is alive but has cancer”. The de facto husband had engaged in considerable efforts to secure Mr C’s will, despite acknowledging Mr C had and has capacity.
Mr C has terminal cancer, but having watched him give evidence, there is no doubt he has capacity. He was an impressive witness. When asked about his succession plans in cross-examination, he said he had no intention of doing succession planning “at all. The reason being I have been diagnosed with terminal cancer and the last thing I want to talk about is after I’m dead”. He also said that he was not sure about doing a will in the future, but if he did, given the distributions he had made to his adult children during his lifetime, his priorities would be his wife and grandchildren.
I accept Mr C’s evidence. There was a refreshing honesty and frank candour to all he said. I do not take account as a financial resource the prospect of any inheritance which the de facto wife may or may not receive in the future.
This subsection favours the de facto wife.
Subsection (3)(c) – whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
By virtue of the final consent orders made in this matter, the older two children, V and W, will live according to their wishes. For the younger three, they will live in a week about arrangements. In those circumstances, nothing turns on this consideration, and no one made a submission that it ought.
Subsections (3)(d) and (e) – commitments of each of the parties that are necessary to enable the party to support himself or herself, and a child or another person that the party has a duty to maintain; and the responsibilities of either party to support any other person
Given the consent orders with respect to parenting, nothing turns on this and no one made a submission that it ought.
Subsection (3)(f) – the eligibility of either party for a pension, allowance or benefit under any law of the Commonwealth, of a State or Territory or of another country; or any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party
No one made submissions about this consideration. Nothing turns on it.
Subsection (3)(g) a standard of living that in all the circumstances is reasonable
No one made submissions about this consideration. Nothing turns on it.
Subsection (3)(h) – the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income
This is not relevant.
Subsection (3)(i) – the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant
This is not relevant.
Subsection (3)(j) – the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party
This is not relevant.
Subsection (3)(k) – the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration
No one seeks maintenance. This is not relevant.
Subsection (3)(l) – the need to protect a party who wishes to continue that party’s role as a parent
Both parties wish to continue the role as a parent. In the circumstances, nothing turns on this and no one made submissions I ought consider it.
Subsection (3)(m) – if either party is cohabiting with another person—the financial circumstances relating to the cohabitation
The de facto wife was not re-partnered at the time of trial. The de facto husband is in a de facto relationship, but I have scant evidence about the financial circumstances of cohabitation other than the de facto husband saying he paid for everything and his partner drives the Motor Vehicle 2. I cannot advance consideration of this factor beyond that.
Subsection (3)(n) – the terms of any order made or proposed to be made under section 90SM in relation to the property of the parties; or vested bankruptcy property in relation to a bankrupt party
Not applicable.
Subsection (3)(o) – the terms of any order or declaration made, or proposed to be made, under this Part in relation to a party to the subject de facto relationship; or a person who is a party to another de facto relationship with a party to the subject de facto relationship; or the property of or vested bankruptcy property in relation to a person covered by the categories aforementioned
Not applicable.
Subsection (3)(p) the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to a party to the subject de facto relationship; or a person who is a party to a marriage with a party to the subject de facto relationship; or the property of or vested bankruptcy property in relation to a person covered by the categories aforementioned
Not applicable.
Subsection (3)(q) – any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship
Not applicable.
Subsection (3)(r) – any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
I will consider the issue of Ms B first. The de facto husband essentially made a Robb & Robb contribution claim, the principle of which is stated at [67]:
…in contributing to the support of these children the wife was merely honouring a legal obligation which she owed to the children, whilst the husband, in making his contribution, was acting essentially as a volunteer assisting the wife in the discharge of her legal obligations. Upon that basis, whilst we consider the justice of the case clearly required the husband's contribution to be taken into account under s.75(2)(o), the same cannot be said of the wife's contribution. In making that contribution the wife was in no way discharging or assisting to discharge any legal obligation of the husband.
I accept that the de facto husband provided emotional support for Ms B and that he considered her part of the family, together with the de facto husband. I have no doubt he wanted her to have a beautiful bedroom and for them all to live in “a really safe and comfortable environment”. I accept that the de facto husband was the sole earner of income sourced outside the family, but the de facto wife started receiving $50-60,000 per annum from her father Mr C in or around 1999. The care and support provided by the de facto husband to Ms B is balanced out by Mr C giving his daughter $50-60,000 a year and providing a property in which they lived until 2005 when the parties acquired that home at an undervalue.
I now turn to the two remaining issues set out by the parties - the disclosure issue and the depletion of the pool issue.
Both parties complained about non-disclosure from the other. Yet the trial was able to run, the parties presented their cases, and calls were made and answered. I have already dealt with the non-disclosure of the apparent ATO liability as a discrete issue within the balance sheet and will not do so again under this consideration. Nothing otherwise turns on the parties’ shared complaints about the other.
As for the depletion of the pool issue, by the time of submissions, neither party addressed the issue of the specific items with any particularity, if at all. It was apparent from the cross-examination of the de facto husband that he had sold some assets such as a motor scooter, but I cannot advance the matter beyond that.
Subsections (3)(s) and (t) – the terms of any financial agreement and any Part VIIIAB financial agreement that is binding on the parties to the subject de facto relationship
This consideration is not relevant.
Evaluation of s 90SF(3)
The de facto husband said his “injuries and potential incapacity to work in the near future” favoured him in the vicinity of a five per cent adjustment. I have already made findings about these two issues and not resolved them in the de facto husband’s favour.
The de facto wife said the extended period of time she has been out of the workforce and her capacity for paid employment favoured her in the vicinity of a 10 per cent adjustment. I have already accepted there is a disparity in income and income earning capacity that favours the de facto wife. I have accepted the evidence of Mr C, and accept he has capacity. I could only speculate about what he might do, if anything, about succession planning in the future. I am not prepared to do that other than accept that his priorities will be his wife and grandchildren, only some of whom are children of this relationship.
Critically, the de facto husband has the capacity to earn income and I have found he is engaged in work outside the home. The de facto wife is not in the same position. For this disparity I find it is just and equitable to make an adjustment of five per cent in favour of the de facto wife.
As was pointed out by the Full Court in Marriage of Clauson (1995) FLC 92-595 at 710, when referring to an adjustment warranted by factors under s 75(2) of the Act and equally relevant to de facto relationships under s 90SF(3), “…it is the real impact in money terms which is ultimately the critical issue”.
Thus, five per cent is $228,674.19 and the 10 per cent differential is $457,348.38. Obviously, the actual adjustment will depend on the net proceeds of J Street but this at least allows me to have a sense of the real impact in money terms. Both parties will share proportionally in the upside or downside of the J Street net proceeds.
WHAT PROPERTY ORDER IS APPROPRIATE TO ACHIEVE A JUST AND EQUITABLE OUTCOME?
The property of the de facto parties or either of them will be divided so to reflect the de facto husband receiving 35 per cent of the assets and liabilities on the balance sheet (once the net proceeds are factored in) and the de facto wife receiving 65 per cent of the net overall asset pool (again as revised on sale).
On a pool of $4,573,483.77 and at a 65-35 per cent adjustment, the de facto husband will receive $1,600,719.32, and the de facto wife $2,972,764.45. But upon the sale of J Street, which I have determined to do for the reasons below, and payment of the relevant liabilities, that final cash adjustment will be different, but proportionally so.
Standing back, I find this just and equitable.
The de facto husband sought to keep J Street and sell G Street. It is plain he wished to finish the works then sell some, if not all three town houses, at a higher price as contemplated by the valuer on the ‘as if completed’ valuation. On his proposal only he would benefit from any upside, or downside.
The de facto wife sought to keep G Street, and that J Street be transferred to her and she ready it for sale, including finishing the sub-division. On her proposal, they would both proportionally share in any upside, or any downside.
In other words, on both parties’ cases a property is to be sold. When it is agreed that Mr C is owed $830,000 and both parties propose he be paid, there is no other readily identifiable means of his debt being repaid other than through the sale of a property. It was common ground that the parties do not have the capacity to borrow from a third party lender.
The question then for me is which property will be sold. For the following reasons, it will be J Street. First, the children have had chaos in their post-separation lives. To remain in the former matrimonial home is a sliver of stability. I found the de facto husband’s evidence that the de facto wife can buy another five-bedroom property to be insensitive to the children who have been through so much. Second, both parties ought share in the benefit from any upside from the sale, but also the detriment of any downside. Third, it gives me no confidence that the de facto husband would ready the property for sale in any timely fashion because at the time of submissions on 15 June 2022, the de facto husband had taken no steps to have the property transferred from his sister to him as required by the Order of 31 May 2022. As a corollary of that, I accept the submission for the de facto wife that a transfer of J Street to the de facto wife would:
… be one way of maximising the value of this property if [Mr Bokin] – I mean, he hasn’t even executed a transfer. So what hope do we have, or what confidence could the court have if he is not even prepared to implement the transfer process, or he has been thinking about doing that with his sister, having been ordered to do so. What possible confidence could the court have that he is going to take all necessary steps to sell this property for the best price reasonably obtainable.
(Transcript 15 June 2022, p.23 lines 11-16)
I will base my sale orders on those orders proposed by the de facto wife. However, I will require the de facto wife to provide the de facto husband monthly reports on the steps she has taken with respect to the subdivision and readiness for sale and costs she has incurred, as well as her progress towards selling the townhouses. I make those additional orders because the de facto husband has an interest in J Street, the sale process and the outcome. I have also added that any outstanding rates, including the debt to TT Council for unpaid rates of $20,929.16, are included in the clause “payment of the usual conveyancing adjustments”. I do so for the sake of clarity.
The de facto husband has been on notice since the de facto wife filed her Amended Response in April 2022 that she sought to take over the Suburb L Townhouse developments. By the time of submissions in June 2022, the de facto husband had secured the lease agreements which showed the leases with his former solicitor and the couple with the baby expired in July 2022. If the de facto husband has done anything precipitous like enter into new leases with these people, despite being on notice as to the de facto wife's orders, then the consequences shall be for him. The de facto wife seeks vacant possession within 42 days and I will make that order.
Neither party sought an order in default in the event the sale proceeds of a property were insufficient to meet the overall adjustment. I have thus added an order to the effect that the party who stands possessed of an adjustment greater than either the 65 per cent for the de facto wife or 35 per cent for the de facto husband is to pay the other party such cash sum to effect that overall adjustment.
I am satisfied that the proposed property settlement orders achieves a just and equitable outcome.

I certify that the preceding two hundred and eleven (211) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Brasch.
Associate:
Dated: 30 August 2022

File number(s):	WOC 928 of 2020
Judgment of:	BRASCH J
Date of judgment:	30 August 2022
Catchwords:	FAMILY LAW – PROPERTY– BALANCE SHEET – Where dispute about valuation of real property “as is” or “as if” completed – Where property to be sold in any event - Where circumstances of an apparent tax debt unknown - Where parties cannot agree on bank account balances – Where parties dispute values of personal property not valued FAMILY LAW – PROPERTY - CONTRIBUTIONS - Where one party claims “superior” initial contributions – Where one party claims significant financial assistance provided by other party’s father were really contributions to the first party – How homemaker contributions ought be assessed when children placed in care - Where Kennon claim advanced by one party FAMILY LAW – PROPERTY - FUTURE NEEDS – Where one party’s father has capacity but a limited life expectancy - Whether income earning disparity exists
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4AA, 4AB, 90SF(3), 90SM, 90SM(4)(a)-(g)
Division:	Division 1 First Instance
Number of paragraphs:	211
Date of last submissions:	15 June 2022
Date of hearing:	23-27 May 2022, 30 May – 2 June 2022, 15 June 2022
Place:	Sydney
Counsel for the Applicant:	Ms Coulton on 23-27 May, 30 May - 2 June 2022; Litigant in Person on 15 June 2022
Solicitor for the Applicant:	Murphy Lawyers on 23-27 May and 30 May - 2 June 2022
Counsel for the Respondent:	Mr Livingstone
Solicitor for the Respondent:	Access Law Group

WOC 928 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR BOKIN Applicant
AND:	MS WILD Respondent

order made by:	BRASCH J
DATE OF ORDER:	30 AUGUST 2022

Ownership			Description		Value
1	Joint		G Street, Suburb O		$3,175,000
2	DFH		J Street, Suburb L NB: as the property is to be sold, the net proceeds, will replace the figure of $2,200,000. The net proceeds will be added into a formula to determine who needs to be paid what.		$2,200,000
3	-		E Street: No longer relevant		$0
4	DFH		S Pty Ltd ATF S Trust trading as S Company		$20,000
5	DFH		Cash		$0
6	DFW		Furniture and Contents		$5,000
7	DFH		Furniture and Contents		$500
8	DFH		Motor Vehicle 1		$1,500
9	DFH		Motor Vehicle 2		$60,000
10	DFH		Motorbike 1 (large)		$1,500
11	DFW		Motorbike 2 (small)		$1,000
12	DFW		Motor Vehicle 3		$5,000
13	DFW		Motor Vehicle 4		$0
14	DFW		Motor Vehicle 7		$0
15-19	Both		All removed on de minimus principle		$0
20-30	Both		Removed by parties from balance sheet		$0
Total assets NB: This figure will change when the net proceeds of J Street crystalise.					$5,469,500.00
Ownership			Description		Value
31	DFH		BB Finance Credit Card #...06		$0
32	Both		Debt to Mr C for funds loaned to develop property at J Street, Suburb L		$830,000
33	DFH		Australian Tax Office		$0
34	-		Item removed by parties		$0
35	JT		Debt to TT Council for unpaid rates		$20,929.16
36	DFH		Motor Vehicle 2		$60,000
Total liabilities NB: This figure will change when the net proceeds of J Street crystalise.					$910,929.16
Total assets, less liabilities excluding superannuation NB: This figure will change when the net proceeds of J Street crystalise.					$4,558,570.84
Member			Name of Fund	Type of Interest	Value
24		DFH	Super Fund 1	Accumulation	$14,912.93
25		DFW	Super Fund 2	Unknown	$0
Total superannuation					$14,912.93
TOTAL POOL INC. SUPERANNUATION NB: This figure will change when the net proceeds of J Street crystalise.					$4,573,483.77