Bruil & Bruil - [2023] FedCFamC1F 316

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bruil & Bruil [2023] FedCFamC1F 316

File number: MLC 7506 of 2019

Judgment of: CARTER J

Date of judgment: 28 April 2023

Catchwords: FAMILY LAW – PROPERTY – protracted proceedings – allegations of family violence – where the wife asserted her contributions were arduous – where the wife asserted there had been non-disclosure – where the wife asserted there had been wastage – whether it is just and equitable for any orders to be made – orders made

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 75, 79, 81, 90E, 90XT, 102NA, 102NB

Cases cited:
Aleksovski v Aleksovski (1996) FLC 92-705

Bevan v Bevan (2013) 279 FLR 1

Cerini & Cerini [1998] FamCA 143

Chorn & Hopkins (2004) FLC 93-204

Dickons v Dickons (2012) 50 Fam LR 244

Jabour & Jabour (2019) 59 Fam LR 475

Keating & Keating (2019) 59 Fam LR 158

Kennon & Kennon (1997) FLC 92-757

Mallet v Mallet (1984) 156 CLR 605

Omancini & Omancini (2005) FLC 93-218

Stanford v Stanford (2012) 247 CLR 108

Stein and Stein (1986) FLC 91-779

Weir & Weir (1993) FLC 92-338

Division: Division 1 First Instance

Number of paragraphs: 298

Date of hearing: 16–18 January 2023
14–15 February 2023

Place: Melbourne

Counsel for the Applicant: Nicola Bowen

Solicitor for the Applicant: Clancy & Triado Family Lawyers

Counsel for the Respondent: Litigant in person
ORDERS

MLC 7506 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR BRUIL

Applicant

AND:
MS BRUIL

Respondent

order made by:

CARTER J

DATE OF ORDER:

28 APRIL 2023

THE COURT ORDERS THAT:
Election
1.On or before 26 May 2023 the Wife elect in writing either:
(a)to pay the Husband in accordance with Order 2 herein; or
(b)for the property at B Street, Suburb C (“the former matrimonial home”) to be sold.

Payment to the Husband
2.In the event the Wife elects to pay the Husband, then on or before 27 June 2023 (“the due date”) the Wife shall pay the Husband the amount of $1,758,731 (“the payment”) being the amount to affect the division of the pool 55% to the Wife and 45% to the Husband, together with the payment from the Wife’s entitlement to the Husband the further sum of $11,140.38 (“for costs and the Wife’s share of professional fees”) comprising:
(a)the costs order made on 2 July 2021;
(b)reimbursement of one half of the valuations of Ms E and the costs of her giving evidence less the amount already paid by the Wife; and
(c)reimbursement of half of the costs of the updated property valuations.

Sale of former matrimonial home
3.In the event:
(a)the Wife elects for the house to be sold, or fails to make an election in accordance with Order 1 the former matrimonial home be forthwith placed on the market for sale; or
(b)the Wife fails to make the whole of the payment by the due date then the former matrimonial home be placed on the market for sale (“sale in default”).

4.For the purposes of that sale or sale in default:
(a)the parties forthwith jointly appoint a selling agent to conduct that sale;
(b)in the event the parties do not agree as to the selling agent, the Husband shall nominate a list of three proposed selling agents on or before 2 June 2023 (or in the event of a sale in default, within seven days of the date of default) and the Wife shall select an agent from that list within a further seven days. In the event the Wife fails to select an agent within seven days of the husband providing her with a list of three proposed selling agents, the Husband shall determine the selling agent;
(c)the parties shall do all acts and things as may be necessary to appoint the selling agent and comply with all reasonable directions of the selling agent regarding the sale, including preparing the property for sale; and
(d)the sale shall be on such terms and conditions as are agreed and failing agreement as nominated by the selling agent.

Vacation of the former matrimonial home
5.When the Wife vacates the former matrimonial home she shall:
(a)leave the property empty, save and except for the items referred to in Order 14 herein, and the fixtures and fittings that are to be sold with the property;
(b)leave the property in a neat and tidy condition with the utilities still connected; and
(c)upon her exit deliver all keys relating to the property to the selling agent.

6.During the Wife’s occupation of the property pending payment or sale, the Wife be liable for all utility rates, land taxes and other expenses incurred in relation to the former matrimonial home.
7.Following the Wife vacating the property, the parties share the costs of the utilities, rates, land taxes and other expenses incurred in relation to the former matrimonial home.

Proceeds of sale of former matrimonial home
8.The proceeds of the sale of the former matrimonial home be applied as follows:
(a)firstly to pay the costs, commissions and expenses of the sale;
(b)secondly to meet all costs relating to the discharge of the D Bank registered mortgage (…2M) secured over the property the current balance of which is $0;
(c)thirdly, to reimburse to the Husband the costs of readying the property for sale in accordance with the reasonable recommendations of the selling agent (including the costs of professional styling of the property), with the Husband to meet those costs at first instance, and to provide the Wife with receipts to evidence the costs of all materials purchased and all professional services engaged;
(d)fourthly, subject to Order 9, to pay the Husband:
(i)45% of the proceeds of the sale of the home together with a further sum of $408,731; or
(ii)in the event of a sale in default so much of the sum as is outstanding together with interest thereon calculated in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

and the Husband to be responsible for discharging or refinancing the Westpac line of credit for F Pty Ltd (“the line of credit”);
(e)fifthly, the sum of $11,140.38 for costs and the Wife’s share of professional fees be paid to the Husband; and
(f)the balance paid to the Wife.

Line of credit
9.In the event the line of credit is required to be discharged or settled partially or completely upon the sale of the former matrimonial home, any amount retained by Westpac for repayment to the line of credit to be notionally included in the proceeds of sale prior to determining the Husband’s entitlement pursuant to Order 8(d).

Duties of the Husband
10.Contemporaneously upon the payment to the Husband in accordance with Orders 2 or 8, whichever is applicable:
(a)the Husband withdraw at his expense the caveat lodged on his behalf over the property at G Street, H Town (“the H Town property”);
(b)the parties do all acts and things and sign all such documents as may be required to forthwith remove the former matrimonial home as security for the line of credit; and
(c)the Husband do all acts and things and sign all such documents as may be required to transfer to the wife, at her expense, the Motor Vehicle 1 and Motor Vehicle 2 currently in her possession.

11.The Husband retain to the exclusion of the Wife;
(a)the Bruil Family Trust as trustee for F Pty Ltd, and F Pty Ltd;
(b)any monies in bank accounts in his name; and
(c)his boat.

12.The Husband be solely responsible for paying and indemnifying the Wife with respect to any and all liabilities of the Bruil Family Trust and/or F Pty Ltd, including the line of credit for which the Husband is solely responsible.

Wife’s retention of assets
13.The Wife retain to the exclusion of the Husband;
(a)the Motor Vehicle 1 and Motor Vehicle 2 currently in her possession;
(b)the shares registered in her name;
(c)her entitlements pursuant to her father’s estate (including her one third interest in the H Town property and the sum of $95,566 owed to her from that estate); and
(d)any monies in bank accounts in her name.

14.The Wife shall otherwise retain all chattels in the former matrimonial home, save for;
(a)any clothes, photographs, books, or other personal possessions of the Husband; and
(b)the sporting equipment.

Collection of Husband’s items
15.In the event the former matrimonial home is to be sold, the items referred to in Orders 14(a) and (b) are to be left inside the property when the Wife vacates the same. In the event the Wife elects to retain the home and make the payment to the Husband, the Wife shall make these items available for collection by the Husband on or before 26 May 2023, with the Husband to nominate the date and time for collection. The Wife to ensure all items are left or provided in a reasonable condition.

Superannuation
16.Orders 16 to 20 inclusive of these orders are binding on the Trustee of the Husband’s (Mr Bruil’s) superannuation fund being Super Fund 1 and (trustee) as J Pty Ltd (his account details being Super Fund 1 – Super Account, member number …45) (“the Fund”).
17.The base amount to be allocated to the Wife (Ms Bruil) out of the interest of the Husband in the Fund is $111,305 ("the base amount").
18.Pursuant to section 90XT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment within the meaning of section 90E of the Family Law Act 1975 (Cth) becomes payable in respect of the interest of the Husband in the Fund, the Wife shall be entitled to be paid an amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001 (Cth) ("the Regulations") using the base amount and there be a corresponding reduction in the entitlement of the Husband.
19.Order 18 has effect from the operative time.
20.The operative time for the purpose of these orders is the fourth business day after the day on which a certified copy of these orders is served on the Trustee of the Fund.

Property catch-all
21.Unless otherwise specified in these orders, and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all property (including choses-in-action) owned by or in possession of such party as at the date of these orders;
(b)monies standing to the credit of the parties in any joint bank account are to be equally divided between the parties and any such account be forthwith closed;
(c)insurance policies remain the sole property of the owner named therein;
(d)each party otherwise retain for their sole use and benefit, their superannuation entitlements;
(e)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled, pursuant to these orders; and
(f)any joint tenancy of the parties, in any real or personal estate, is hereby expressly severed.

Extant applications dismissed
22.All extant applications are dismissed, and the matter removed from the list of pending cases maintained by the Court.

AND THE COURT NOTES THAT:
A.Pursuant to section 81 of the Family Law Act 1975 (Cth), the parties intend that these orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.

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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
INTRODUCTION

The parties in this matter separated after a long marriage, which produced two children. It is apparent the Wife continues to grieve for the loss of the marriage. Her disappointment, distress and anger at the ending of the relationship was palpable. It is plain that the Wife did not anticipate being uncertain of her future at this stage of her life.
The task that faces me is to determine the appropriate division of the parties’ assets in all the circumstances. This is not a fault based determination – rather I must consider whether it is just and equitable to make an order, and if so, then consider the factors set out in the legislation. Many of the matters the Wife sought to raise were distractions to my central duty in that regard. For instance, some of her complaints were aimed at the court system, or at the legal system in general. Other complaints focussed on what she regarded as failures by those engaged to act on her behalf to protect her interests. She repeatedly expressed a view that the matter had commenced “without proper protocol” or “due diligence”. It was also apparent the Wife was aggrieved at behaviours of the Husband that she regarded as callous, uncaring and unfair.
I have done my best to listen to the evidence of each party, and understand the arguments each advanced, where that evidence and the arguments advanced have been relevant to the determination I must make.
The factual background of this matter is not complicated. It is regrettable that the parties were themselves unable to reach an agreement as to an appropriate division of the asset pool, and that it has taken so long for the matter to be finally determined.
BACKGROUND AND PROCEDURAL HISTORY
For the reasons I set out later in this judgment, unless otherwise specified, I prefer the evidence of the Husband to that given by the Wife. Accordingly, the history that I now recount includes my relevant findings of fact where the evidence is divergent.
The parties commenced cohabitation in 1990 and were married in Australia in 1991. There is some dispute as to the date of separation. The Wife’s affidavit filed 30 March 2020 pinpoints 12 August 2019 being the date of separation – being the date the Husband physically vacated the former matrimonial home, and began the process of the parties becoming financially separated. In the Husband’s trial affidavit filed 13 July 2022, he contended that the parties separated in June 2014. The parties continued to share a bedroom until 2017 and remained living together under the one roof until August 2019. The parties also remained financially intertwined throughout those years. The Husband also acknowledged that whilst in his mind the parties separated in 2014, the Wife “may see matters differently”. He conceded that there was not one particular discussion evidencing the irretrievable breakdown of the marriage, “but rather multiple discussions over a number of years”.
Little turns on whether the parties separated in August 2019 or earlier. I accept that from 2014 the Husband regarded the marriage as over. I further accept that from that time the parties began to lead increasingly separate social, physical and emotional lives.
The Wife continues to reside at the former matrimonial home, purchased by the parties in about 1997. It is registered in the Wife’s sole name, and is unencumbered (although it is security for the line of credit associated with the husband’s business. The home has been valued at $3,000,000.
The Husband is self-employed as the company director of his own business, F Pty Ltd (“F Company”). That business was commenced in 2008. The business provides services to the building industry. A significant part of the business is retrofitting existing buildings.
A valuation of the business was undertaken by Ms E (“Ms E”) on

2 November 2021, pursuant to orders made by a Registrar on 2 July 2021. She valued the business at $118,000.
The Wife is employed at K Company in Suburb L, Victoria on a casual basis.
The parties have two adult children: Mr M who was born in 1995; and Ms N who was born in 1997. They are aged 27 and 26 years old respectively. Mr M lives independently. He works full time with the Husband at F Company as an employee. The Husband said he hopes that at some time in the future, Mr M will take over F Company. Ms N is studying overseas.
The Wife provided primary care for the parties’ children when they were younger before returning to part time work. The Husband was engaged in paid employment throughout the relationship.
The parties were able to work hard and save sufficient funds to purchase their first home in 1992 in Suburb C.
After the children were born, the parties sold their first home and purchased the former matrimonial home at B Street Suburb C (“the former matrimonial home”) for approximately $270,000. The parties then renovated the property.
In about 2005 the former matrimonial home was put in the Wife’s name. The Husband said that was for asset protection.
As indicated, in 2008 the business F Company was commenced.
The Wife was also engaged in paid employment at this time, performing administrative duties at various places of employment, and undertaking some administrative duties for F Company.
As noted, the Husband said the parties separated in June 2014. He said the Wife told him at that time that she wanted a divorce. He said following that, he attended various sporting and social functions without her. He said the parties did their own shopping, cooking and cleaning, but did attend some family functions together.
I note that the Wife deposed she attended upon Ms O (“Ms O”), psychologist, in 2014, and sought to rely on a letter from that psychologist dated 26 August 2022. Ms O set out that the Wife was referred to her “for symptoms of anxiety and stress due to the events that led to the marriage breakdown”. As observed, the marriage was certainly under considerable strain from at least 2014. However, the parties remained financially intertwined, even as they became progressively emotionally distant and lead increasingly separate lives.
The Husband said from 2014, he had several conversations with the Wife in which he expressed a desire to sell the former matrimonial home and move on with their lives. The Wife was resistant to any suggestion that the property be sold.
In around July 2014 the Wife accepted a redundancy from her then employer. She did not depose as to the terms of that redundancy.
In early June 2015, the Wife transferred the sum of $95,566 to discharge a mortgage over her father’s property at G Street, H Town (“the H Town property”). She paid that money from her own account, being savings she accumulated without the Husband’s knowledge. The Wife did not discuss the payment of those monies with the Husband prior to doing so. At trial the Wife asserted that this was not a loan to her father, but a gift to him and a loan to one of her sisters.
In 2015, the Wife’s father passed away. The Wife and her two sisters have each inherited a one third interest in their father’s estate, which largely comprised of the unencumbered H Town property. The property has been valued at $3,000,000. Following her father’s passing, the Wife frequently stayed at the H Town property. The Husband said she was away often for three or four nights each week. The Wife conceded she spent “weekends” there but said she spent only two consecutive nights at a time at the property.

At the time probate was granted, the Wife’s one third interest in her father’s estate was valued at around $449,000. The estate owed both the Wife and one of her sisters $95,566.
In July 2015 the Wife commenced work at P Organisation on a part time basis.
The Wife acknowledged that by 2016 the Husband spent less and less time with her. At trial, the Wife was vociferous in her complaints about the Husband holidaying without her, and not being in attendance at various family and social events she felt he ought have attended.
In 2017 the Husband moved his belongings out of the main bedroom in the former matrimonial home, which until that time he and the Wife had shared. He continued to sleep in a separate room from the Wife until he left the property some two years later.
In late 2017 the Husband travelled to Country X and then met the children in Country Y. The Wife complained she was not told about nor invited on this trip. She also complained that he did not attend her 50^th birthday party celebration to which the Husband said he was not invited. The Wife complained that in early 2018 the Husband went overseas and did not attend Ms N’s 21^st birthday party, and that in May he went to Tasmania without informing her he was travelling. Later that year, the Husband did not accompany the Wife to an interstate wedding and instead travelled overseas again. At the end of the year he travelled overseas again, without the Wife. These matters support the Husband’s assertion that the marriage had broken down by this time.
In late June or July 2018, the Husband approached a local developer who had indicated they would purchase the former matrimonial home for $3,000,000. The Wife did not agree to the proposition that the former matrimonial home be sold. Indeed it continued to be her position at trial that the property ought not be sold, and she should retain the property unencumbered.
On 6 September 2018, the Husband engaged solicitors. He sought the Wife’s consent to the sale of the former matrimonial home. The Wife refused again to proceed with the sale of the home. At trial she made it plain she was aggrieved by the attempts by the Husband to have the home sold, which she perceived as underhanded, dishonest, threatening and intimidating.
In 2019 the Husband did not renew the credit cards the parties had been using when they expired. The Wife continued to have access to the joint account and offset account, into which the Husband’s salary was paid.
The Husband initiated these proceedings on 5 July 2019. He was keen to formalise the parties’ separation, and frustrated at the Wife’s refusal to discuss the sale of the home.
The Husband moved out of the former matrimonial home on 12 August 2019 following an altercation between the parties to which I will later return.
The Husband and Mr M left the former matrimonial home at that time and have not returned to live there since. The Husband has lived in rental accommodation. The Wife has continued to have exclusive occupation of the home, and exclusive use of all the chattels in the home. The Husband did not take any items with him from the home, save for the clothes the Wife threw out the door during the dispute on 12 August 2019.
At that time, the marriage was clearly at an end.
The Wife engaged R Lawyers in late 2019.
The parties and their lawyers attended a case assessment conference with a Registrar on 27 November 2019. The parties were ordered to obtain valuations of the properties and the business, at their equal expense. The Wife said she did not consent to that occurring. She then engaged Ms Q (“Ms Q”) to act on her behalf.
The Wife said she became increasingly concerned about the terms on which the business was to be valued, and was of the view that the valuation would be meaningless as the Husband had not - and would not - provide proper disclosure. Conversely the Husband asserted he had been upfront and transparent in relation to financial matters and forthcoming with disclosure at all times. I understand initially there was a suggestion a “short form” valuation of the business would be conducted. However the Wife insisted on a formal valuation being prepared, which was ultimately agreed to by the Husband.
The Wife engaged new solicitors in early 2020. The Husband’s solicitors, and the Wife’s then solicitors subsequently appointed T Valuers to provide valuations of the former matrimonial home and the H Town property. However, the Wife later said her sisters did not agree to the property being valued.
In circumstances where the Wife was not complying with reasonable requests in relation to have the business and properties valued, the Husband filed an Application in a Proceeding on 6 March 2020 in which he sought that he manage the engagement of the valuers. There were also difficulties with the Wife’s contribution towards the costs of Ms E.
On 28 May 2020 the Husband used funds from the business to discharge the mortgage on the former matrimonial home (which at that time was approximately $31,000). The funds available to be re-drawn were then no longer available to be drawn out by either party. The Wife regarded this as financially abusive behaviour, essentially describing herself as being deprived of access to funds as a result.
On 9 July 2020 the Wife took out $10,000 from her superannuation as permitted under the COVID-19 exceptions.
The parties were able to negotiate interim consent orders on 5 August 2020, pursuant to which the Husband was to provide various documents by way of discovery. Additionally, the Husband was to provide the Wife’s accountant with an invitation to view and print the business MYOB records within seven days of receiving a request from the Wife’s solicitors. The matter was adjourned to October 2020.
On 9 August 2020 the Husband’s lawyers wrote to V Accountants advising that the Wife had requested Mr U (“Mr U”) of V Accountants have access to the MYOB records, and to please forward an email address for Mr U so that an invitation to view could be provided. The email address was forwarded to the Husband’s solicitors that afternoon, and an invitation to Mr U was sent around 4:00 pm that same day.
The matter came before a Deputy Registrar on 14 October 2020. At that time the Wife was represented by Ms Q. A notation to the order reflected that the parties were not able to agree on the contents of a joint letter of instruction to Ms E, with the Wife asserting she required full financial disclosure and the opportunity to engage her own accountant prior to instructions being provided to the valuer. As will become clear, there have been multiple occasions in which the Wife has taken issue with proposed joint instructions, unnecessarily delaying obtaining the valuations, and needlessly causing additional legal fees. The matter was adjourned to a Conciliation Conference in December.
The Conciliation Conference in December 2020 does not appear to have proceeded.
For part of 2021, the Husband was in Country W. He had travelled there to work with a colleague to attempt to develop a new product that would be cheaper to manufacture in Country W and then import to Australia. The Husband was unable to return to Australia for some time due to the COVID-19 pandemic.
In 2021, the Husband’s mother died in Country X. The Husband inherited the equivalent of AUD4,595. The Husband deposed that his mother did not have a will, and her only asset was a bank account containing the equivalent of AUD18,380. Those funds were divided equally between the Husband and his three siblings.
The matter returned before a Registrar in March 2021. The Wife was no longer represented. According to the Wife she regarded Ms Q as failing to act with due diligence and compromising the Wife’s case. An order was made for the parties to settle a letter of appointment to Ms E for the business to be valued, the terms of which had still not been agreed. The Conciliation Conference could not proceed as the valuation of the business had not been completed by the time of the conference in circumstances where no letter of instruction had been agreed upon.
In mid-2021 the Husband agreed with a friend of his, Mr Z (“Mr Z”, noting that his name is spelt differently in the parties’ documents) for the business to lend him $200,000 which Mr Z would then invest on his behalf.
On 2 July 2021 a Registrar made orders for the parties to engage Ms E to undertake the joint valuation, and a letter of instruction be sent to her. The Registrar further ordered that if any party refused to execute any document to give effect to the appointment and instruction of Ms E then, pursuant to s 106A of the Family Law Act 1975 (Cth) (“the Act”), a Registrar execute that document on behalf of the refusing party. Orders were also made for further discovery.
On 23 August 2021, the matter was listed before Chief Justice Alstergren. His Honour adjourned the matter to 10 November 2021. He ordered the Wife to pay $1,300 to Ms E being half of the costs invoiced by Ms E in February 2020. His Honour’s orders included that the Husband pay at first instance the costs of further valuations, to be adjusted at final settlement. The matter was adjourned to a Conciliation Conference on 8 November 2021. The order noted the letter of instruction to Ms E had still not been signed.
The matter did not resolve at the Conciliation Conference.
Ms E was finally able to complete her valuation of the business on 2 November 2021. I note that Ms E wrote to the Husband’s lawyers and Ms Bruil on 2 November 2021 advising that her costs had exceeded the estimate provided “largely due to the time incurred at the start of the matter in responding to the correspondence from the Wife”.
The matter returned before Chief Justice Alstergren on 10 November 2021. His Honour ordered the matter be listed for a final hearing on a date to be fixed with priority. It is apparent the Wife raised an allegation that there was some conflict of interests impacting the Husband’s representation. The Wife was directed to provide a letter to the Husband’s solicitors within seven days articulating the basis for her assertion. Updated valuations of the properties were also ordered, together with filing directions for the final hearing.
The Husband deposed that in November 2021, in four separate tranches he paid a total of $200,000 to Mr Z to be invested by him. He deposed that as at the date of his trial affidavit those funds were invested and remained around the $200,000 mark. He said those funds are accounted for in the business records. I note that draft financial statements of the trust were provided to the Wife for the 2022 financial year that refers to those monies. A loan amount of $199,900 to “[Mr Z]” is recorded as being receivable.
The matter came before me for the first time on 12 May 2022. The Wife was not represented. I ordered the parties to file material setting out with particularity the orders they sought by way of final determination. The updated property valuations had not been completed, as there was no agreement on the letter of instruction. I ordered the Husband to provide the proposed letter to the Wife and she to advise of changes within seven days. I listed the matter for final hearing before me commencing 10 August 2022.
The matter was listed before me again in 17 June 2022 as the parties had still not been able to reach an agreement as to the property valuations. I made an order appointing T Valuers as the single expert, as they had previously been appointed by the parties to provide valuations of the real properties. I further ordered that the letter drafted by the Husband’s lawyers be provided as the letter of instruction, as the Wife did not identify any reasonable basis for opposing T Valuers’s appointment or issues with the proposed letter. She did not articulate any flaws or issues with their previous valuations and did not provide any other valuer who she would prefer.
Despite being ordered to do so, the Wife had not articulated the final orders she sought. I made an order requiring her to set out an Amended Response within seven days, setting out with particularity the orders she sought.
At that mention, the Wife asserted she was struggling to obtain legal representation given the “short time” until the final hearing date. I note she was aware from November 2021 that the matter was to be listed for final hearing with priority, and the matter remained listed for hearing in August 2022. I included a notation to the effect that the Husband would seek to proceed on an undefended basis in August if the Wife did not comply with Court orders.
On 25 July 2022 the Wife engaged AA Lawyers. They filed a Notice of Ceasing to Act on 10 August 2022.
The matter came before me on 10 August 2022. The Wife was in person. Regrettably I was not able to reach the matter that day, and it was adjourned to 21 September 2022. The Wife had still not provided any document setting out the orders she actually sought. New directions were made for the Wife to file any further affidavits; an Outline of Case specifying the orders she sought in relation to property; a detailed chronology of the matter; and a list of assets and liabilities. The Wife raised her concerns about the valuations obtained. She was advised she needed to put any expert witness on notice should she wish to cross examine them and challenge their evidence at trial. That was reflected in the orders made that day.
The Wife did not file material in accordance with my orders.
On 9 September 2022 the Wife filed an Application in a Proceeding seeking an order pursuant to s 102NA(1)(c)(iv). At the time, an Intervention Violence Order (“IVO”) application had been brought by the Wife, against the Husband. While no interim order had been made with respect to the IVO, the Wife asserted she was a victim of family violence and had been subjected to financial and psychological abuse, coercive control and other controlling behaviours by the Husband.
That application was heard by me on 12 September 2022, and a discretionary order was made. The trial date in September 2022 was vacated and the matter adjourned to 16 January 2023 with priority for a final hearing. The Wife was advised that if she appeared without a lawyer on the adjourned date, the matter would proceed regardless and she would be unable to cross-examine the Husband. My orders again required the filing of an Outline of Case including specification of the final orders sought, a chronology, a list of assets and liabilities and an affidavit. Again the Wife did not file in accordance with my orders.
On 29 November 2022, BB Lawyers filed a Notice of Address for Service on behalf of the Wife. However, at the commencement of the hearing on 16 January 2023, they were granted leave to withdraw on the basis they said they had been unable to obtain proper instructions from the Wife.
I was not prepared to further adjourn the matter to enable the Wife to seek further representation. The matter clearly had multiple adjournments and had been on foot for a considerable period. I also did not allow the matter to proceed undefended given that material had been filed on behalf of the Wife which purported to address issues such as contributions and the relevant s 75(2) factors. Despite never having filed a document setting out with precision the orders sought, the Wife was able to articulate that she sought no adjustment to the property pool. That would mean the Wife would retain the former matrimonial home registered in her name, together with her interest in the H Town property, her superannuation entitlements, cash savings and other items already in her name. The Husband would retain the business and his superannuation entitlements.
I also discharged the discretionary s 102NA order. The Intervention Order application that the Wife had initiated in 2022 had been determined by the Magistrates’ Court and no interim or final Intervention Order was made. By discharging the s 102NA order, the Wife was at liberty to cross examine the Husband.
In circumstances where the Wife had alleged family violence, but I determined that

s 102NA did not apply, pursuant to s 102NB, and at the request of the Wife, appropriate protections were put in place. This included having a Family Advocacy Support Service support worker present during the Wife’s cross-examination of the Husband and having the Husband give his evidence remotely, via Microsoft Teams.
At trial, I was advised the Wife had not put Mr CC (“Mr CC”), who valued the real properties, on notice that she required him for cross-examination. I understand the Wife also did not put Ms E on notice that she was required for cross examination, despite my clear direction that she do so should she wish to challenge their evidence. The Court is grateful to Ms E agreeing to give evidence even though she was on holiday.
The final hearing was initially listed for three days. On the third day, it was clear that the matter required additional days as the cross-examination of the Wife had not concluded. The matter was further listed part-heard to resume for an additional two days on 14 February 2023.
THE PROPOSALS OF THE PARTIES
In his Amended Initiating Application, the Husband sought the equal division of the property pool including superannuation. The Husband also sought orders that the Wife vacate the former matrimonial home such that it may be sold.
The Wife opposed the orders sought by the Husband. Despite being ordered more than once to set out with precision the orders she sought, the Wife failed to do so. At trial the Wife asserted that there should be no adjustment to the parties’ current entitlements to the asset pool. She said accordingly she should retain the unencumbered former matrimonial home, her interest in H Town and her superannuation entitlements; and the Husband should retain the business and his superannuation entitlements. If I accept the Husband’s formulation of the asset pool, that would leave with Wife with in excess of 90% of the pool.
THE EVIDENCE
It has not been possible to include every aspect of each of the parties’ evidence. However, I have taken all the evidence into account. Just because I have not mentioned something in these reasons does not mean that I have not considered it.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
The Husband
The Husband relied on:
(a)his trial affidavit filed on 13 July 2022;
(b)his affidavit in reply filed on 8 August 2022; and
(c)his financial statement filed 13 July 2022.
The Husband was an impressive witness. At times he was frustrated by the Wife’s attitude, and the Court processes. However, he remained considered and measured, and provided straightforward answers, in a genuine and open manner. I accept his evidence including where that conflicts with the evidence given by the Wife.
The Wife
The Wife was not satisfied that the trial affidavit filed on 9 September 2022 contained all the evidence upon which she wanted to rely. The Wife also sought to rely on additional affidavits filed by her on 2 September 2022 and on another affidavit also filed by her on 9 September 2022. I granted her leave to do so. Accordingly, the Wife relied on:
(a)her trial affidavit filed on 9 September 2022 at 4.32 pm;
(b)her affidavit filed on 9 September 2022 at 4.30 pm;
(c)her affidavit filed on 2 September 2022; and
(d)her financial statement filed on 25 November 2019.
As I have now had the opportunity to carefully read the Wife’s material it is apparent that the affidavits filed on 9 September and 2 September 2022 are in precisely the same terms save that the earlier filed affidavit contains multiple exhibits. The exhibits are not properly identified.
The Wife’s trial affidavit was substantially similar to the trial affidavit prepared on 3 August 2022. The exhibits were not identified or numbered and did not all appear in order.

I advised the Wife at the outset of the process that would be undertaken during the trial. She was able to conduct the trial in a reasonable manner, although at times she did become distressed, and at other times infuriated.
The Wife was not an impressive witness. She frequently gave rambling and confusing answers. There were significant discrepancies between her affidavit evidence, her oral evidence and documentary evidence. She took many opportunities to belittle, berate and denigrate the Husband, and complain about the legal system. She provided implausible explanations at times, and at other times became quite uncontained. She presented as angry and aggrieved by the end of the relationship. She remains highly upset at the Husband’s failure, as she perceives it, to prioritise her and his relationship with her, preferring instead to holiday with others, or spend time with friends and not with her. When cross examining the Husband the Wife referred to very historical events in which she saw herself as having been wronged by the Husband in this respect. For instance she asked him about who he spent New Year’s Eve with in 1994. She also questioned him about events at a work conference he attended in 2002, from which she felt excluded. She also referred to the Husband not being in attendance at events such as the children’s 21^st birthday parties. The Wife regarded these matters as being pertinent to the issues that I must decide, despite being re-directed by the Court on a number of occasions.
The Wife regards herself as having been treated most unfairly by the Husband and various legal practitioners, and the Court whom she perceives as operating against her interests. The Wife asserted lawyers acting on her behalf had been professionally negligent and had compromised her case. She complained about accountants she herself had sought to engage. She also complained about the professional fees charged by Ms E for her time at Court. She was critical of the Court and Court processes, regarding them as unfair, humiliating and disgraceful. She repeatedly referred to these proceedings as having been “orchestrated” by the Husband, his lawyers, her lawyers and the Court, depriving her of proper access to justice. She regarded the Husband’s institution of these proceedings as a cruel act by him in an effort to destroy the Wife’s peace.
The Wife made multiple allegations against the Husband’s solicitors, which appeared entirely without foundation. There were many times she apparently perceived something sinister in what on their face seemed to be unremarkable events. For instance, she included in her affidavit material that she had attended a fundraiser and found herself seated in close proximity to Mr Mr DD (“Mr DD”), the Husband’s solicitor. She made a number of allegations regarding Mr DD, who coincidentally operates a business adjacent to the H Town property. For instance, she deposed that he was “interested in my family’s farm”. She also suggested Mr DD had tried to run over her dog and had been involved – together with the Husband – in the poisoning of her livestock on the H Town property.
The Wife made further unusual allegations. She implied the Husband was involved with underworld figures. She hinted that there was some sort of connection between the death of a neighbour and that neighbour being pressured to sell her property to the property developer who had been interested in purchasing the former matrimonial home. She suggested the Husband’s accountant was fraudulent. She said a solicitor who had been acting for her had propositioned her. It was at times difficult to follow the Wife’s somewhat convoluted narrative.
The Wife found it difficult to make concessions even when faced with evidence that contradicted her version of events. For instance she would not agree that the amount she provided to discharge the mortgage encumbering the H Town property was $95,566 as set out in the probate document. Instead, she maintained the figure she paid was $91,000. She also insisted that the monies were not a loan by her to her father, but instead it was a loan by her to her sister, Ms EE (“Ms EE”), and a gift to her father. This oral evidence was inconsistent with the Wife’s own financial statement filed 25 November 2019. When that was put to the Wife, she said that her financial statement was incorrect, and that the document was prepared by her then lawyers ‘in a rush’. That oral evidence was also inconsistent with the probate documents. The inventory of assets and liabilities prepared for the grant of probate sets out the sum of $95,566.28 as being owed to the Wife from her father’s estate. The Wife’s sister, Ms FF (“Ms FF”), similarly loaned $95,566.28. A total of $191,132.56 is accordingly recorded as being a liability of the estate. The Wife reluctantly conceded the figure of $95,566, although she maintained this was a gift to her father, and a loan to Ms EE.
The Wife seemed to view the $95,566 as ‘her money’. She would not concede she had only been able to amass those savings in circumstances where the Husband’s income was otherwise meeting the vast bulk of the family’s expenses. Instead, she said perhaps the parties could have a windfall, an inheritance or won lotto. There is no evidence of any of those events occurring at the relevant time.
As indicated, the Wife had previously deposed that the Husband had removed $78,000 from the mortgage in May 2020. During the trial it became clear that he had not done so. Rather, the amount of $78,000 was no longer available to be re-drawn when the mortgage was discharged. The Wife then appeared to alter her evidence. She said she was not complaining that the Husband had ‘removed that sum’, but had ‘removed the parties’ access to those funds’. When it was put to her that was not how she had portrayed it in her affidavit, she said counsel had not understood what she had meant.
The Wife’s description of being served was another example of her evidence being implausible and somewhat exaggerated. The Husband, quite appropriately, engaged a process server who attempted to serve the Wife on about 2 October 2019. The process server attended in the evening. The Wife advised she did not answer the door. The Wife described that when Ms N returned home that evening around 10:00 pm, she saw the envelope containing the Husband’s Court documents and brought it inside to the Wife. The Wife described this as being “quite a horrific incident”. There was not, in my view, anything in her narrative that warranted that descriptor.
In all the circumstances the Husband appeared to be a more reliable historian.
The Wife also made it abundantly clear she will not accept any determination I make if that is not wholly in accord with her proposals. She said she will appeal any order that involves the former matrimonial home being sold, and will not cooperate with any orders for its sale. She said it is her home, and part of her identity. She utterly refused to consider any outcome other than she retain the home, unencumbered, her interest in the H Town property and all other assets in her possession.
ALLEGATIONS OF NON-DISCLOSURE
Pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), both parties are required to make full and frank disclosure of their financial circumstances.
The Full Court of the Family Court of Australia in Weir & Weir (1993) FLC 92-338, said at 79,593:
…once it has been established that there has been a deliberate non-disclosure…the Court should not be unduly cautious about making findings in favour of the innocent party…
In circumstances where I am satisfied that one party has deliberately failed to meet their obligations of disclosure, I may then draw adverse inferences against that party, “if there is material upon which the inferences can be based”. This was observed by the majority of the Full Court in Stein and Stein (1986) FLC 91-779.
Firstly then, I must consider whether a party has deliberately failed to meet their obligations in relation to disclosure. If so, I can take a robust approach and draw such adverse inferences from that non-disclosure as can be supported by the evidence before me.
The Wife alleged that the Husband had not provided full and frank disclosure, including that he had not provided all bank statements to her for himself or the business, and that he had not provided access to her in relation to the business records.
The Husband denied all allegations of non-disclosure. He said he has produced all statements for his savings account, the business account and the line of credit, together with the statements for his Mastercard and GG Finance card. He said those accounts, together with the account in Country X are and were the only accounts he operates.
The Husband produced correspondence to the Wife regarding discovery. For instance, he produced correspondence from May 2020 from his solicitors to the Wife’s then solicitors attaching substantial amounts of business records. He also provided correspondence from his solicitors to the Wife’s then solicitors in July 2022 enclosing further documents. That letter referred to an earlier letter enclosing other discoverable documents.
The Wife acknowledged that letters purporting to enclose discoverable documents were sent. However, she asserted that whilst correspondence referred to various attachments, not everything was attached as claimed. She described the Husband’s lawyers as acting fraudulently and deceitfully by describing documents as being included which were not. Whilst that was her claim, the Wife did not identify what had and what had not been provided. She also provided almost no correspondence from lawyers acting on her behalf or from herself to the Husband’s solicitors requesting material that was then not provided, or identifying incomplete or partial discovery.
One of the few requests the Wife exhibited was an email dated 17 November 2021 in which the Wife asserted a lack of disclosure by the Husband. A number of the items sought are not documents that can be produced. For instance, she had requested information rather than documents. Some of the requests in that correspondence were vague, or without time frames.
The Wife further asserted that the Husband had not provided disclosure with respect to his GG Finance credit card account and monies paid into that account arising out of the work he undertook in Country W in around 2019. That was denied by the Husband who said he had disclosed the account and the income paid into it. He said he received a total of $25,000 for this work, which was ad hoc and not ongoing. That money was referred to and treated as income of F Company by Ms E.
The Wife also asserted the Husband had bank accounts and possibly real estate in Country X. The Husband denied having an interest in property overseas. He said he had a bank account in Country X, and that he provided the Wife with the statements for that account since it was opened in 2017. The Wife suggested the Husband was providing funds to his brother from that account. The Husband said he had loaned EUR10,000 to his brother, and was able to identify the transactions showing the funds being advanced to his brother on

25 November 2019, and then being repaid on 2 April 2020. The Wife did not adduce any other evidence to support her assertions regarding overseas accounts or properties.
In relation to the MYOB records for the business, the Wife asserted she was not provided complete copies, that electronic access was prevented and that there were considerable delays in the provision of some parts of those documents. The Wife expressed a view that the Husband probably used the delays in providing documents to tamper with them. The Wife adduced no evidence for that view.
In relation to the MYOB records, as already set out, an email exchange was tendered before me that shows access was granted to the Wife’s nominated accountant – Mr U – to inspect the all MYOB records. However, for reasons that remain unclear to me, the Wife did not apparently instruct the accountant to actually peruse those records. The Husband is not responsible for that.
Notwithstanding the offer to allow electronic access, the Wife deposed that Mr U “was denied access to business records”. She repeated that in her oral evidence. That is not correct. The Husband produced both the email chain in which an invitation was sent to Mr U, and a screen shot confirming that Mr U was invited to have online file access to the MYOB records. However the Wife still would not concede the invitation had been sent. Instead, she queried the address that was nominated by her own accountant for Mr U, and expressed suspicion that it was not an email address with which she was familiar. She then implied that perhaps Mr U and the Husband’s lawyers were acting together against her interests as Mr U “changed his tune” after he spoke with the Husband’s lawyer. The Wife did not identify any logical basis for that suggestion. She maintained in her closing address that the Husband never fully provided the MYOB accounts, describing that as a deliberate effort by him to stop a proper assessment being made of the asset pool.
The Wife put to the Husband that he had not provided full and frank disclosure in relation to his involvement with KK Company. The Husband was able to produce a letter from his solicitors dated 28 July 2022 in which the Wife was advised the entity had not traded. Enclosed with that correspondence was a letter from Mr LL of MM Pty Ltd, dated

27 July 2022, being the tax agent for KK Company, confirming the entity was non-trading.
The Wife complained that the Husband had not produced the rental agreement he has with Mr NN. The Husband said they do not have any rental agreement and accordingly he cannot produce one.
It is not sufficient for the Wife to simply assert the Husband did not produce documents or provide information. In my view the Wife has not adduced evidence to corroborate her concerns regarding material non-disclosure. At any rate, I am satisfied that the Husband has generally done the best he can to provide the Wife with his discoverable documents.
ASSETS, LIABILITIES AND FINANCIAL RESOURCES AS AT THE DATE OF FINAL HEARING
The parties do not agree as to the asset pool. For the reasons that follow, I am satisfied the pool of assets, liabilities and financial resources is as follows:

ASSETS

B Street, Suburb C - the former matrimonial home – registered in the Wife’s sole name

$3,000,000

Value of the Wife’s 1/3^rd entitlement in her father’s estate (including the property at G Street, H Town at $3,000,000)

$944,333

Bruil Family Trust as trustee for F Pty Ltd

$118,000

Husband’s personal bank accounts:

PP Bank Account: AUD22,050

GG Finance (acc no. ending …04): $926

Westpac Bank Account: $4,986

$27,962

Wife’s personal bank accounts:

QQ Bank account …58: $20,505

QQ Bank account …07: $1,391

NAB account (ending …74): $709

NAB account (ending …13): $1,890

NAB accounts as at 24.06.22 – AUD785

$25,280

Inheritance of the Husband from his mother

AUD4,595

Husband’s boat

$8,000

Loan owed by Wife’s father’s estate to Wife

$95,566

Motor Vehicle 1 - to be retained by the Wife

$6,000

Motor Vehicle 2 - to be retained by the Wife

$20,000

Wife’s shares

$1,820

Notional add back: funds withdrawn by Wife for legal fees

$9,084

Assets subtotal

$4,260,640

SUPERANNUATION

Husband’s entitlements with Super Fund 1

$263,367

Wife’s entitlements with Super Fund 2

$70,252

Wife’s entitlements with Super Fund 3

$4,295

Super total

$337,914

TOTAL POOL inclusive of superannuation

$4,598,554

Disputes in relation to the pool
Valuation of the real properties

Mr CC from T Valuers was appointed as the single expert to complete valuations of the former matrimonial home and the H Town property. As indicated, this appointment was subsequently disputed by the Wife, but no meaningful basis for a challenge to the appointment was made by her. At best, she wanted her sisters to have a say in who was appointed to undertake the valuation of the H Town property.
When the property valuations were to be updated, the Wife refused to sign the letter of instruction. However, she was unable to articulate any actual basis for her refusal to do so or identify any part of the instructions that were inaccurate, inappropriate or otherwise should be altered.
On 16 January 2023, the first day of the final hearing, the Wife indicated her intentions to cross-examine Mr CC. However, the Wife had not put Mr CC on notice as previously directed to do. When the matter came before me again on a part-heard basis on

14 February 2023, the Wife sought to have the matter stood down to speak to a duty lawyer about bringing in Mr CC as a witness. Again, the Wife had failed to put him on notice, citing that she did not have the funds and required legal advice and assistance on the matter.
I was not prepared to further delay the hearing in the circumstances. The Wife had ample opportunity to put Mr CC on notice and she failed to do so.
In her oral evidence the Wife conceded the valuation of the former matrimonial home.
The Wife said she was “unclear” and “unsure” as to whether the valuation of the H Town property was appropriate, stating she did not know if Mr CC had an agricultural background.
Whilst the Wife said she did not accept Mr CC’s valuation, there was no application made by her to adduce evidence from another expert. Moreover, at the final hearing the Wife was unable to identify any reasonable foundation to assert Mr CC’s valuations were flawed. She asserted the “valuation process” was wrong, as her sisters had not been involved and they should have had “a voice”; that there could be “biases” as Mr CC valued both properties; that the lawyers and the valuers “are all networked” – suggesting some sort of possible collusion; and she complained that she did not have a say as to who did the valuations as it had been agreed between the lawyers. She said in those circumstances she did not know whether the valuations were correct and accordingly she did not accept them.
In circumstances where the Wife:
(a)did not cross examine Mr CC, or provide notice to him of her desire to do so;
(b)did not articulate any reasonable basis for challenging his valuations; and
(c)did not seek to adduce any alternative evidence regarding the property valuations;
I accept the valuations of the real properties prepared by Mr CC.
Whether the Wife’s entitlement under her father’s will should be excluded from the pool
The Wife and her two sisters are the three beneficiaries of their father’s will.
The Husband said the H Town property remains in the name of the estate. It is not in dispute that the Wife and her sisters are each entitled to be on title as tenants in common with a one third share each. Probate was granted in July 2016. The Wife said she and her sisters have been registered as joint proprietors of the H Town property as at 30 July 2019. According to the valuation report the three sisters are the registered proprietors in their capacity as executors of their father’s estate.
The Wife was apparently of the view that her entitlement under her father’s will ought be excluded from the pool. At trial, the Wife asserted that her mother “is the real beneficiary” or “the true beneficiary” of her father’s estate, despite that the Wife’s mother is not a beneficiary under the will and that her parents were divorced. She also said that “fundamentally that property is not mine”. At one point the Wife said there was a condition in her father’s will that her mother would receive her interest in the H Town property if it was sold, and that it was her father’s intention that the property not be sold, but be retained in the family. There is no reference to any such conditions or intentions. There is no evidence that the Wife’s mother has any entitlement to the H Town property in the probate documents or the Wife’s father’s will. Nor had that been raised by the Wife previously in these proceedings. Moreover, the Wife’s father explicitly declares in his will made in February 2007 that he has made no provision for his former Wife and that marriage has irretrievably broken down.

I do not accept the Wife’s mother has any entitlement to or interest in the H Town property. There was no basis for the Wife to make any such assertion. In the circumstances, the Wife’s interest in the estate is appropriately included in the assets of the parties.
Valuation of the Bruil Family Trust as trustee for F Pty Ltd (“the business”)
The business was conceived around 2006 and established in 2008. It is operated through the Bruil Family Trust of which the Husband is the appointor. The Husband is the sole director of F Company.
The business operates out of rented premises in Suburb RR, where items are manufactured and then transported offsite by factory staff for installation. The largest customers are TT Company, and SS Pty Ltd which contributed about 16% of the business income in 2021 financial year. The Husband acts as a manager of the business which employs the parties’ son Mr M and one other factory hand.
The trust own a number of motor vehicles used by the business, being Motor Vehicles 4, 5 and 6 and a Motor Vehicle 3. I remain unclear whether it also owns the vehicles driven by the Wife and Ms N.
I note the business line of credit is secured against the former matrimonial home. I do not know what arrangements the Husband will make regarding refinancing that line of credit. It is not intended that upon the sale of the home the business line of credit would be repaid prior to the balance of the proceeds being paid to the parties. Rather, the Husband will retain the business, and responsibility for the line of credit. If it is required to be repaid upon the sale of the former matrimonial home, the Husband will be wholly responsible for same. He will either need to pay it out of his entitlement, or arrange alternate security.
Ms E, Director of VV Accountants was appointed as the single expert to complete a valuation of the interest held by the parties in the business as trustee for the

Bruil Family Trust. The joint letter of instruction dated 24 August 2021 was executed by a Registrar in circumstances where as outlined, the Wife would not sign it herself.
The Husband advised Ms E that some of the machinery used by the business was old, and requiring repairs or replacement. However, Ms E did not factor those costs into her valuation.
The Husband also advised that the COVID-19 lockdowns impacted the business, restricting the ability of staff to attend onsite to install their products. Delays in receiving materials from overseas, together with increased shipping costs and materials costs also impacted the business.
The business valuation sets out that the Husband had an overdrawn beneficiary account, and owed $60,248 to the business. Of course, if that amount is included as an asset of the business, there would need to be a corresponding liability of the Husband to the business. I have included neither in the pool as outlined.
Ms E was aware the Husband had used some company funds to meet the legal fees incurred in the family law proceedings. She noted that those fees were appropriately being debited to his loan account. She also added back the Husband’s travel expenses that were not incurred in the ordinary course of business.
Ms E was offered access to the MYOB records if she wished to peruse those.
Ms E valued the business using a net asset backing approach, in circumstances where the business had incurred net losses in 2018, 2019 and 2020, and derived a profit only in the 2021 financial year. She also allowed a notional salary for the Husband of $140,000 inclusive of superannuation, although the business could not have paid the Husband that amount over the three years it sustained net losses.
Ms E was aware of the Husband’s endeavours to work with a manufacturer in Country W to create a less expensive product. She noted that it was not known if or when the product would be completed, or when it could be received and tested by the Husband to see if it met Australian standards. Accordingly, she did not make allowances for any increase in revenue/margins that might follow once that product was ready to be imported and installed.
Ms E noted that the F Company’s industry was, at the time of valuation, weakened by the COVID-19 pandemic. Industry revenue was expected to continue to decline until

June 2022, and then expected to improve from the 2024 financial year onwards.
Ms E concluded that as at 30 June 2021, the business was worth $118,000, which included the sum of $22,000 owed to the Wife under a beneficiary account. As I am not asked to include the sum of $22,000 as an asset of the Wife, I will also not include it as a liability of the company. I note further that Ms E eliminated the beneficiary accounts of the children, as it was not expected they would be paid.
I note that Ms E advised that as at the date of valuation, it was not possible to predict the extent of the ongoing economic impact of the pandemic. However, no updated valuation was prepared. Nor was Ms E provided with any more recent information about the business operations.
The Wife expressed considerable concern that the incorrect entity had been valued. I note that Ms E took the view that as F Pty Ltd acts only in its capacity as trustee, the value of that entity is nil. The company does not trade – it is the trustee of the trust, which is the trading entity, and it would have no beneficial interest in the assets it holds for the trust. Accordingly, Ms E has, in my view, valued the correct entity.
The Wife was unhappy that the Husband’s accountant, Mr WW (“Mr WW”), had provided the business records to Ms E. The Wife referred to Mr WW having been engaged in fraudulent activities in 2017. I am not satisfied there was anything inappropriate or suspicious about Mr WW providing the documents.
The Wife was of the view that the valuation by Ms E was deficient and unreliable. The Wife argued that the valuation of the business without first conducting an audit was insufficient and did not enable the valuer to accurately assess the business as at the date of valuation. She insisted the business had accordingly been significantly undervalued, that the Husband had not been upfront with the valuer, and that he had moved substantial funds out of the business in an effort to reduce its value and deliberately “run down” the business before issuing these proceedings. The Wife remained adamant throughout the proceedings that the Husband undertook ‘cash jobs’ and had misappropriated business funds since its inception.
The Wife required Ms E for cross examination. The Wife did not challenge Ms E’s expertise.
Ms E’s evidence was clear, concise and compelling. It was her view that there was nothing she observed in the operations of the business that would suggest that her valuation was problematic. She said the business had behaved during the COVID-19 pandemic similarly to other like businesses. She said there was nothing in the financial records that caused her to have concern that she did not have sufficient insights into the financial arrangements to complete an accurate valuation. She did not agree with the proposition that there was any basis for an audit of the business to be undertaken.
As indicated, it was the Wife’s view that the Husband’s declared earnings from the business could not sustain the lifestyle he enjoys and he must accordingly be siphoning cash, and undertaking substantial cash jobs. The Wife cross examined the Husband at length about a number of business transactions, business decisions and business relationships. The Husband was well able to answer the questions and explain all concerns the Wife put to him regarding transactions or business dealings she regarded as dubious. The Husband was also able to produce various invoices and other documents requested by the Wife during cross-examination and to clarify various transactions or dealings that she had identified as suspect.
For instance, the Wife suggested the Husband had been paid cash to do a job for Ms OO and Ms XX (“the XX’s”) in 2018 in Suburb YY. The Husband said it was not a cash job, and it was much earlier than 2018. He produced an invoice dated 10 February 2011 to the XX’s in Suburb ZZ for $13,200.63, and a copy of the Westpac bank statement for F Company showing a deposit of that amount on 14 February 2011. In response to questions about a job he did for Mr JJ and Ms JJ (“the JJ’s”), the Husband was again able to produce an invoice for $5,830 and the corresponding Westpac bank statement showing that amount was paid by the JJ’s in two instalments on 29 October 2019 and 4 December 2019.
The Wife also appeared to believe the Husband was ‘doubling up’ invoices. In her cross-examination of him she queried why in the MYOB records there were two entries under the same invoice numbers on a number of occasions, one of which was 10% of the other. The Husband explained that the 10% GST amount had been entered as a separate journal entry in the accounts.
The Wife cross-examined the Husband about his relationship with Mr HH (“Mr HH”), who works for SS Company. The Husband denied Mr HH was an employee of F Company. He acknowledged that Mr HH operated from the same premises, but did not pay rent. The Husband said Mr HH worked out of an office space and at times

sub-contracted to F Company to do installation, as well as acting as a supplier at times, and at other times SS Company purchased items from F Company. The Husband said the relationship F Company has with SS Company was an important business relationship. He said all transactions are properly recorded in MYOB and reflected in the financial records of the business.
The Wife was also of the view that the Husband had mismanaged the trust. She referred repeatedly during the proceedings to the Husband having breached his fiduciary duties to the beneficiaries of the trust, which included her and the children. As best as I could understand, part of her argument touched on distributions and beneficiary funds which she said he had misappropriated. She believed the Husband had not disclosed an account into which he paid the beneficiary funds, asserting that she had not received the $22,000 that was owed to her and reflected in the business financial statements.
It seemed the Wife had misunderstood how distributions had been dealt with. As explained by the Husband, distributions were allocated ‘on paper’ for tax purposes, and not paid out to any actual bank account. The funds notionally to be distributed to her were reflected on the trust financial statements as a liability, being funds that had not been paid, but were owing to the Wife. If I were to treat that as a genuine liability of the business, the asset pool would have to include a corresponding asset in the Wife’s name. By not treating the monies as a liability of the business (and simultaneously not including it as a loan asset of the Wife) the overall asset pool is not affected. I have not included it as a liability of the business, nor as an asset of the Wife’s.
The Wife has not adduced any evidence in my view that indicated the Husband had breached any duties.
The Husband maintained that when he has used funds for his own purposes (such as paying his legal fees) that has all been accounted for as personal income. Other amounts used for personal purposes have been recorded as a director’s loan. He said all trades, transactions, transfers and the like are accurately reflected in the business accounts, and appropriately and properly reconciled. He said the entire income of the business is properly and accurately reflected in the business returns.
The Wife also questioned the Husband regarding the purchase of various motor vehicles. The Husband explained they were purchased through the business and produced a number of the documents from 2014, 2017 and 2018 evidencing their purchase.
Despite the Wife’s suspicions, I did not form the impression that there was anything untoward, fraudulent or duplicitous in the manner the Husband operated and continues to operate the business. I am not of the view that the Husband has engaged in dishonest methods of accounting, or invoicing or record keeping. In relation to the Husband’s evidence regarding the operations of the business and its financial accounts and records, I am satisfied that the Husband has operated the business to the best of his ability. The business has been operating for around 15 years. The Husband described it as doing well and going strong. He said the sales turnover has remained consistent. He said there have been matters that have impacted on the profits that are beyond his control, including increasing costs of freight and materials, and the impact of the COVID-19 pandemic. The Husband said he wants the business to continue to do well as he is hopeful that Mr M will take it over when the Husband retires.
In relation to the Wife’s assertion that the Husband has established a manufacturing business in Country W, there was information provided to Ms E in his regard. There was no evidence that the Husband had established a business there, but was endeavouring to obtain a more cost effective product. At the date of the valuation of the business it did not appear that product was being imported or utilised by the business. There was no other evidence adduced by the Wife to support her assertion that the Husband was engaged in another manufacturing business in Country W.
I note further that whilst the Wife referred at times to having been advised by two accountants that there were issues with the Husband’s asserted income and lifestyle, and concerns with the financial records provided, she did not adduce – or seek to adduce – any evidence from any other expert. I have already referred to Mr U whom the Wife did not call as a witness. In her oral evidence she also referred to a Mr AD, accountant, who she said had expressed consternation about the Husband’s accounts. She said however that Mr AD went on to make derogatory comments about the Wife and the children, indicating he regarded them as being corrupt. She said she did not want anything further to do with him after that. Accordingly, she has not adduced any evidence from him either.
The valuation was provided to the parties in mid-2021. The Wife had, in my view, ample time to engage another expert to value the business. Additionally, the Wife complained about not being provided with complete access to the business MYOB records. Yet – as already outlined – when her accountant was provided with access to those records, it does not appear any inspection was made of the records.
As already observed according to the draft financials for the 2022 financial year, the business is owed $200,000 being funds provided by the Husband to Mr Z to invest. Those funds were provided to Mr Z in the months after the valuation of the business was completed, and accordingly are not referred to by Ms E. Despite the Wife’s complaints, she did not adduce any evidence that suggested there was anything inappropriate or untoward in the Husband’s dealing with Mr Z. The Husband is permitted to continue to operate the business, and make investment decisions. Parties are not expected to go into a state of suspended economic animation at separation, and they are entitled to conduct themselves post separation “in a manner that is consistent with properly getting on with their lives” as set out in Cerini & Cerini [1998] FamCA 143 at [46]. It seems to me that I cannot deal with that investment as a separate entry in the parties’ table of assets distinct from the value of the business even though it occurred after the date of the business valuation. I do not know what effect it has had, if any, on the overall value of the business. No questions were put to Ms E in this regard.
In the circumstances, I accept the valuation of the Bruil Family Trust as trustee for F Company of $118,000 as at 30 June 2021. I have no valuation that is more up to date, and accordingly, that is the best evidence I have of the value of the business.
Bank accounts
The Husband was able to provide balances of his GG Finance money account and his Westpac savings account as at the conclusion of the trial. I have included those amounts. He said he was not able to provide a current statement regarding the funds in the Country X account. He said to access that information he required to put his debit card in a scanner to then obtain an access code. However, his scanner no longer worked. He said he has not otherwise deposited into or withdrawn from that account and the amount remained unchanged from mid-2022. I accept his evidence.
The Wife provided an updated statement for her QQ Bank account, so I have used that figure. She did not provide updated statements for her other accounts, and accordingly I have used the figures provided by her in July 2022.
Inheritance
The Husband said he inherited the sum of AUD4,595 following his mother’s death in 2021. The Wife did not concede the quantum of the sum received. Rather, she seemed to have a view that the Husband received more. However she did not adduce any evidence to support that view, which appeared to be based on mistrust and suspicion.
I accept the Husband’s evidence regarding the funds he inherited.
Boat
It appeared there was an agreement that the Husband’s boat was worth $8,000. It is agreed he will retain that boat.
Loan owing to the Wife from her father’s estate
Although the Wife was resistant to the concept, it is apparent the Wife – and her sister Ms FF – are each owed $95,566 from their father’s estate. That is reflected in the probate documents.
Vehicles
The vehicles were not valued.
The Wife drives a Motor Vehicle 2 which the Husband asserted was $20,000. The Wife asserted she had received information from the insurers that it was worth $15,000. She did not produce that evidence.
The Wife also has physical possession of the Motor Vehicle 1. She said that is Ms N’s car. The Wife did not challenge the value of that vehicle.
In the circumstances of this case, I am prepared to accept the values the Husband has attributed to the motor vehicles. The Wife has indicated her view that her car is worth just $5,000 less than the value attributed to it by the Husband. The Wife had ample opportunity in my view to challenge the value nominated by the Husband in his affidavit filed 13 July 2022. It is insufficient for her to attend the trial commencing on 16 January 2023 and only then advise that she does not agree with the Husband’s valuations.
It is unclear who owns those vehicles. The Wife said the Motor Vehicle 2 was registered in the business’s name. According to the Husband’s Financial Statement dated 5 July 2019, the vehicles are registered in his name. The Husband agrees that the Wife will retain both vehicles, which will need to be transferred into the Wife’s name.
Shares
The Wife has a modest share portfolio valued at $1,820, being shares purchased by her during the parties’ relationship. It is agreed she will retain those shares.
Superannuation
The Husband was able to adduce a screen shot of his superannuation entitlements with Super Fund 1 at the conclusion of the hearing before me. I have accordingly included the amount of $263,367 as the Husband’s current entitlement.
The Wife also provided updated superannuation statements. She had entitlements with Super Fund 2 of $70,252.23, and entitlements of $4,295.37 with Super Fund 3 as at the date of hearing.
Add backs
On 9 July 2020 the Wife withdrew the sum of $10,000 from her Super Fund 3 entitlements which she paid into her QQ Bank account. The Husband sought those funds be notionally added back. He also sought a notional add back of the sum of $9,084.35 the Wife utilised from the joint account to pay her legal fees in 2020.
The Wife opposed either amount being notionally added back.
It is a matter of discretion whether or not the Court will notionally add back assets. It is also clear that notionally adding assets disposed of back into the pool is the exception rather than the rule, and it is not simply a matter that the Court will add back assets that existed at the date of separation which have been dissipated by the time of the final hearing. The general principle is that the Court is to take the property of the parties as they are at the date of the final hearing. Add backs should only occur in circumstances where justice and equity require it. In many cases, justice and equity can be achieved by consideration of the issue under s 75(2)(o) of the Act rather than by adding back.

The Wife put similarly vague and unparticularised assertions to the Husband in her cross-examination of him, including that he had “forced [her] to do things sexually”, used her as a “slave around the house”, and referred in her oral evidence to being forced to have sex with the Husband. These very serious allegations are not mentioned anywhere in the Wife’s material. She also put to the Husband that he threatened her with a chainsaw; that he threatened to kill the dog; that he tried to push her out of the business; and made her uncomfortable in her home.
In her cross-examination of the Husband the Wife also made reference to what appear to be other grievances, which she believed were part of the Husband’s abuse of her. For instance, she asserted that the Husband had affairs; withdrew from her emotionally; did not attend family functions; and holidayed and travelled separately from her. She complained it took time for the boiler to be fixed in 2019, and during that time she and her daughter had to have cold showers. She also complained that there was no electrical outlet in the bathroom. Additionally she said that after the Husband moved out of the home in 2019 he cancelled the family private health membership. I do not regard these matters as relevant to the Wife’s argument that her contributions were made more arduous.
The Husband denied each and every allegation of abuse, control and violence.
The only specific incident of physical violence to which the Wife deposed occurred on

12 August 2019. At that time, she said the parties had a disagreement about repairing the boiler at the home. The Wife deposed that after asking him to leave:
I went and collected [the Husband’s] clothes and as I was taking them to the front door, [the Husband] crashes into the side of me, my glasses went flying…
The Husband said the Wife threw the groceries he had just purchased out the front door, along with some of his clothing, and told him and Mr M to get out of the house and not return.
The Wife’s affidavit is not wholly consistent with the Wife’s complaint in the application she made for an Intervention Order in August 2022 some 12 months after the event. In that application, it is recorded that when the Husband would not leave after being asked by her to do so, she “grabbed his clothes and went to put them outside”. She said he then shoved her hard, before grabbing both her wrists causing her pain “for months after”.
The Wife did not provide an affidavit from a medical professional to support her allegation. She did tender a letter from the AG Medical Clinic which recorded the Wife’s attendance on a Dr AH in August 2019. The notes of that consultation refer to her being “shoved hard on L shoulder” and “L temple”. There is no reference to her wrists being injured. In her affidavit she does not refer to being struck on the temple.
At trial the Wife gave different evidence again about that incident. She said both the Husband and Mr M were holding her wrists down. That is not included in the Wife’s affidavit. She said she did not include any reference to Mr M being involved in the incident in her affidavit as she did not want Mr M “to be implicated”. She said Mr M was also aggressive towards her.
I note there is no dispute that on that day there was a physical altercation between the parties. However, I do not regard this incident as supporting a finding that the Husband had engaged in a course of violent conduct. The Wife threw the Husband’s clothes and groceries outside and demanded that he leave. I note the Husband denied that he pushed the Wife, and said that she hit into him. I accept that the parties may have bumped into each other as the Husband went to leave the home. I also accept the Husband’s evidence that Mr M may have restrained the Wife so that he could drive away after she had thrown his belongings out of the door. Mr M then left the home as well.
The Wife asserted the Husband subjected her to financial control. She said he had total control of the parties’ funds, and she had to beg for money from him. These allegations were denied by the Husband.
The Wife referred to the extension of the line of credit for the business which was initially capped at $150,000 as an example of the Husband’s financially controlling behaviour. She deposed:
[s]omehow [the Husband] changed that amount to $300,000 without my permission. That really concerned me and I went to seek advice from another accountant.
However, her oral evidence was confusing and inconsistent with her sworn affidavit. Although the Wife deposed the Husband had unilaterally altered that cap increasing it to $300,000, in her oral evidence she admitted she was well aware the line of credit was to be extended. She said variously:
·that she was bullied into signing the documents;
·that she did not sign the documents;
·that she did sign them but could not remember actually signing them; and
·that “a lot of things happened without my signature”.
The line of credit is secured against the former matrimonial home and accordingly the paperwork would have been signed by her. I do not accept she was bullied into signing the documents – that was not included in the Wife’s affidavit material and she provided no details of any alleged bullying - or that it was increased without her permission.
I reject the Wife’s assertion that the Husband had full control of the parties’ finances and she had to beg him for money. The Husband’s entire income was deposited into joint accounts the Wife was able to access. The Wife did not complain in her affidavit material that she was unable to access funds, save for the business line of credit. She also had the unfettered use of a credit card for most of the relationship. For at least the later part of the parties’ cohabitation, most of the funds the Wife earned were retained by her for her own use. I accept that the Wife did on occasion use some of her income to contribute towards some school fees, Ms N’s braces and holiday expenses. However the bulk of the parties’ expenses were met from the Husband’s income. I have already referred to the Wife having amassed savings of around $100,000, which she saved and then used without reference to the Husband. In her oral evidence the Wife said by amassing these savings she was “protecting myself as most abused women do”, so that she could “escape”. In my view it makes no sense that she would use her ‘escape’ funds to pay off her father’s mortgage.
The Wife also asserted she was deliberately excluded from knowing about the Husband’s financial affairs. This was again denied by the Husband. He said the Wife always had access to his business records, as well as full access to the parties’ joint accounts. I accept that evidence.
The Wife further asserted she was required to work in administration with F Company when it was first established. In the questions she asked of the Husband it became clear the Wife regarded herself as having been made to work like “a slave”, that her work was not recognised, and she was not appropriately remunerated for her work. The Husband did not agree. He said all employees were paid appropriately, and he had encouraged the Wife to work at F Company as it would provide her with flexible working hours. I accept his evidence, which was reasonable and plausible.
I note the Wife asserted that the Husband was at times “aggressive” and that for instance in 2011, “demanding” that she contribute towards household and private school expenses. The Husband acknowledged that at times when the family was financially strained he did ask the Wife to contribute towards various expenses, which was met with great resistance from her.
In her cross-examination of the Husband, the Wife asserted that in mid-2016 the Husband had sent her a text message threatening to cut off her access to credit cards and telling her to attend to paying her own bills. The Husband acknowledged he cancelled his credit card at that time, and the Wife’s secondary card would also have been cancelled. He said at that time he was aware the Wife had access to considerable funds, having paid almost $96,000 to discharge her father’s mortgage, and he did not regard it as fair that he was paying all expenses for the family in those circumstances. I do not regard the Husband’s behaviour in the circumstances as being financially abusive. He continued to meet the bulk of the parties’ expenses, including the mortgage payments.
The Wife also regarded the Husband’s behaviour in discharging the mortgage and closing the redraw facility attached to the home loan as financially abusive and “cruel”. I reject her assertions. As indicated already, the Wife had suggested the Husband had taken available funds from the redraw facility. He did not.
The Wife also complained that the Husband did not provide her with financial assistance during the COVID-19 pandemic. I note that even on the Wife’s case, the parties had been separated for months by that time, and she had the significant benefit of living in the unencumbered home. I am not of the view that this amounted to financial abuse.
When it was put to the Wife that after moving out of the home the Husband had continued to deposit his income into the joint account, which then paid for the mortgage and her utilities, the Wife said “he has always taken full control of everything”. I do not regard the Husband’s preparedness to continue to meet the mortgage and other household expenses on behalf of the Wife after he left the home as being controlling or abusive.
The Wife asserted the Husband subjected her to psychological abuse. In support of that allegation the Wife said she suffered from gynaecological problems, about which the Husband was unsympathetic, and did not provide her with emotional support. She said these matters were relevant to the question of the Husband’s abuse of her, making her contributions more arduous. She also asserted that his asserted failure to take her emotional wellbeing into account was relevant because “he owes her a fiduciary duty as director of the family trust”. I do not agree with either proposition. I note further that the Husband said he was supportive of the Wife and denied that he did not care about the Wife’s health, and I accept his evidence.
The Wife questioned the Husband about holiday destinations, suggesting to him that he chose where to go and did not discuss plans with her, and then expected her to arrange accommodation. She indicated that it was her view that it was arduous for her in circumstances where the Husband determined where the family would travel. I reject that proposition.
The Wife sought to rely on a report of Ms O, psychologist dated August 2022. The Wife told Ms O that the Husband was financially and psychologically abusive and controlling, manipulating and scheming and unsupportive and threatening. Ms O has never met the Husband. Accordingly, her assessment of the Husband is based on the information provided by the Wife.
I note further that Ms O recorded that the Husband “wouldn’t allow [the Wife] to put anything financial in her name”. That is obviously inaccurate, as the house is in the Wife’s name, she had shares in her name and she had bank accounts in her name, from which the Husband was excluded. If that is what the Wife reported to Ms O, she has been misled. In her oral evidence the Wife also advised that Ms O had provided a draft of her letter to the Wife, which the Wife amended, before Ms O provided the final copy. Ms O was not on affidavit. In all those circumstances I put no weight on that report.
Having heard evidence from both of the parties, as indicated, I found the Husband to be a convincing and compelling witness. He denied all allegations of abuse and control. He denied being an unsupportive Husband, or that he had extra-marital affairs. He said he encouraged the Wife to undertake her studies, and that he was an engaged and loving father, doing the best he could, working long hours and then assisting the mother with the children in the evenings and providing care for them on weekends and holidays. He denied excluding the Wife from his financial affairs, and said she was involved in establishing the family trust and attended meetings with the accountant. He said she had access to all accounts and statements, save for the business accounts, which he has provided to her over the course of these proceedings. Conversely, the Wife managed her own income and accounts to the exclusion of the Husband.
The Husband seemed exhausted by the ongoing and unnecessarily drawn out legal proceedings, and the Wife’s attempts to further delay any financial settlement. Despite the provocative manner in which the Wife sometimes addressed him in Court, he generally remained calm and considered in his responses. From around 2014, the Husband regarded the marriage as over, and sought to extricate himself from it. The Wife interpreted his emotional and financial withdrawal from her as abusive and distressing and described it as such to her treating practitioners. Certainly the parties arguments included quarrelling over money, and how they spent their time. But I do not accept the Wife’s assertions regarding coercive controlling behaviour, psychological abuse or violence.
The Wife made other bewildering allegations, without any rational basis. For instance, in her complaint in support of the Intervention Order application she sought in August 2022 she said that livestock at H Town were poisoned “and I believe [the Husband] had something to do [with] it”. When cross-examined about this allegation, the Wife asserted the neighbouring property – being a business with which Mr DD is involved – may have sprayed roundup on the fence line that affected her livestock. The Wife was asked if she believed the Husband and Mr DD were working together to kill her livestock she responded “absolutely”. According to the Wife, she went to the police and they took no action. The Wife did not articulate any rational basis for her beliefs.
The Wife also said a screw driver had been put through her car tyre “which I believe was [the Husband] also”. The Wife was unable to adduce any evidence other than her suspicions that this action was undertaken by the Husband.
In her oral evidence, the Wife made another allegation that the Husband had threatened her with a chainsaw, and that she had text messages to prove it. The Wife had not deposed to any alleged threat to her with a chainsaw. She said she had not included this in her affidavit material as it was traumatic for her to recall. When asked to explain how he threatened her, she described that the parties had argued about who would retain the chainsaw when they separated. The Husband apparently wanted to take the chainsaw and there was a scuffle between them as she held tightly on to the piece of equipment and did not let him take it. The Husband then moved away from the Wife, and she retained the chainsaw. The text threats she referred to were messages he sent to her asking where the chainsaw was and asking for it to given to him.
I am not satisfied that this amounts to the Husband threatening the Wife with a chainsaw as alleged.
For these reasons I am not satisfied the Husband subjected the Wife to coercive control or violence or abuse. Accordingly, the Wife’s assertions regarding her contributions being made more arduous must fail.
RELEVANT CONSIDERATIONS PURSUANT TO SECTION 75(2) OF THE ACT
The Husband is 59 years old. The Wife is 56.
The Wife deposed to having a number of issues with her physical health, although she did not have any of her treating practitioners on affidavit. Nor did she depose to her health impacting her ability to work.
According to the Wife’s Financial Statement filed 25 November 2019, she was earning $42,172 per annum, made up from income paid by P Organisation. It does not appear to include her casual work at K Company. In her affidavit filed 9 September 2022 the Wife said she was on a leave of absence from her role at P Organisation. She said her two days of work per week at P Organisation then generated an income of approximately $27,000 per annum. According to her pay slip tendered, had she been working full time her salary would be $72,524. However, the Wife said she was not offered a full time position there.
The Wife deposed that her casual employment at K Company, of about 17 hours per week, generated a further $476 per week income. That amounts to another $22,000 per annum if she were to work those hours for 48 weeks of the year. The Wife deposed she was able to work additional hours to increase her income.
At trial, however, the Wife said she was no longer employed by P Organisation. She said she stopped working for them in October 2022 when her contract ended. The Wife said she was told by a colleague at P Organisation that she had to take time off, and that she suffered from stress and trauma. Whilst the Wife said she has ceased work at P Organisation, she did not produce a letter from her employer confirming her termination or the reasons for it. She produced a pay slip showing nil payment to her for the period 15 to 28 October 2022. The Wife also said the workplace, and her rate of pay were abusive. She said she is currently in a dispute with P Organisation as she says she is still owed about $1,300.
The Wife said her income with K Company fluctuated and had diminished. In her oral evidence she said that she had been working around 19 hours each week, but now worked around 12 hours per week and earned around $420 per week from K Company. She said in February 2023 K Company advised her that they would not make her “an offer of casual conversion…due to Your [sic] hours of work significantly reducing within the next 12 months”. It is unclear why her hours of work were reducing – and whether that was the Wife’s election to reduce her hours, or that was a reduction imposed by K Company.
The Wife asserted at trial she had been unable to obtain full time work. She said she had been looking for work, and had applied for many jobs. However, she was not able to advise when she had made applications, for what positions, or with what organisations save that she applied for an administration role in June 2022. She said she has “a black mark against my name”.
The Wife also asserted during the hearing that she had responsibilities to care for her aged mother which meant she could not work full time. She did not depose to those responsibilities in her affidavit material, or set out in detail how those responsibilities impacted on her income earing capacity. In her oral evidence she said her mother was not well. She did not produce any medical evidence to support her assertions that her mother was unwell or to support her allegation that the amount of care required would impact on the hours the Wife was available to work.
Whilst counsel for the Husband asserted the Wife had not adduced a shred of evidence to support her assertion that she could not work full time, I accept she would struggle to do so. Her skills are limited. She is 56 years old. Her employment with P Organisation was concluded on apparently unfavourable terms. She remains in dispute with her former employer. Her current employer has not offered her full time work, and I accept the Wife’s evidence that her hours have been reduced. Having had the opportunity to see the Wife give evidence and run her trial, she presented as somewhat emotionally labile and even chaotic at times. These matters may well impact the Wife’s ability to secure full time, ongoing employment.
The Wife also said at trial there were other changes to her financial circumstances that were not reflected in her Financial Statement. That included that insurances she pays for the properties and motor vehicle have increased, and that she is no longer paying for Ms N.
The Husband said he also earns a relatively modest income. That is disputed by the Wife, who asserted that the Husband has continued to live a lavish lifestyle post separation, including overseas travel.

The Husband’s taxable income in 2021 was around $91,000 which comprised his base salary of $74,984 together with additional funds the Husband utilised to pay his legal expenses. He said his taxable income in the subsequent financial years will also include additional amounts for legal fees. I note that for the purposes of the valuation the Husband’s income was taken to be $140,000 inclusive of superannuation. There was no challenge by the Husband to this being an appropriate figure at least for the purposes of valuation. The Husband also has the benefit of the business meeting some of his expenses including motor vehicle expenses, phone expenses, and some travel expenses.
I accept the Husband’s evidence that he may not be able to continue working such a physically demanding job for many more years. While he continues to operate the business, he does have access to additional benefits through it, including his vehicle and mobile telephone. If he has to employ another person his salary would most likely need to decrease.
The Husband acknowledged he has been working with a manufacturer in Country W to try and develop high quality products that would be imported and installed at a lower cost than the products the Husband currently manufactures. However, that is yet to come to fruition. I note the business continues to have funds invested with Mr Z. I do not know how, if at all, those investments will impact on the value of the business, or the Husband’s income.
The Husband was questioned about his entitlement to an overseas pension. He said he had worked for less than 12 months in Country X before moving to Australia. He said that his entitlement to any payments would be minimal in the circumstances, as a recipient’s entitlement to the pension accumulates at the rate of 2% of the full pension for every 12 months of work in Country X. He said the time and effort involved in securing any minimal payments would outweigh the benefit of receiving any small monies. The Wife did not adduce any evidence regarding the Husband’s asserted entitlement to an overseas pension.
ASSESSMENT OF CONTRIBUTIONS AND PROSPECTIVE NEEDS
The parties both worked to the best of their abilities and contributed to the family both financially and non-financially. As already indicated I reject the Wife’s assertions that the Husband’s behaviours towards her made her contributions more arduous and that there should be any adjustment in her favour as a result. I also reject any suggestion that the Husband wasted assets or income.
In relation to the H Town property, in 2015, the Wife’s inherited one third interest was valued at about $449,000. The property has significantly increased in value, ostensibly as a result of market forces. There have been no capital improvements made to the property, which the Wife said was quite run down.
I must be careful to ensure that I do not overstate the importance of the increase in value of the Wife’s inherited interest in the H Town property at the expense of all the other contributions made by the parties over the course of the relationship and post separation. As was made clear by the Full Court in the case of Jabour & Jabour (2019) 59 Fam LR 475 when assessing the overall contributions of the parties, I must not:
·consider the Wife’s contribution to the pool as including a separate contribution of the value of the H Town property as at the date of trial; or
·look for a nexus between the contributions of the parties to the H Town property and its current value.
Rather, I must look at the totality of what the parties have contributed financially and non-financially, to the welfare of the family and to the acquisition, conservation and improvement of any of the property of the parties. I must give a reasonable value to all of the contributions across the entirety of the relationship and post separation.
I note again the comments of the Full Court in Dickons in which their Honours said at [18]-[19]:
Any and all such contributions, whether or not they sound in, or are directly linked to, the property available for distribution, should be considered and assessed together with the nature, form and extent of all other contributions of all types contemplated otherwise by s 79(4).
That is true of assets or income generated within the relationship and it is equally true of assets or income coming from outside of the relationship (for example, as here, in the form of inheritances).
When assessing all the contributions, I am also of the view that I cannot overlook the benefit the Wife has received in having exclusive occupation of the unencumbered family home for over three years. The Husband continued to provide financial support for the Wife well after the end of the relationship. Again, these matters cannot be treated as a separate issue, but form part of my holistic assessment.
Doing the best I can, and weighing up the myriad of contributions, I am of the view that an appropriate assessment of those contributions is 53% to the Wife and 47% to the Husband.
In terms of the relevant s 79(4) factors, I note the ages of the parties. I also note, in particular, the income earning disparity. Given the parties’ ages, however, it is unlikely either will continue to work for a protracted period. As indicated I accept the Husband’s evidence that he does not anticipate being able to work long hours in the business for many years to come. However, I also note Ms E’s evidence that the glazing services industry was expected to improve from the 2024 financial year onwards, having been in decline at the time the valuation was completed. I also accept that the Wife’s ability to earn an income is impaired, and that her income earning capacity is lower than that of the Husband.
It does seem to me that it is appropriate that there be a modest adjustment in the Wife’s favour on the basis of the s 75(2) factors of 2%, bringing her total entitlement to 55% of the pool, and the Husband’s at 45% of the pool inclusive of superannuation.
ORDERS TO BE MADE
The Wife did not adduce at trial any evidence that she can borrow funds to pay the Husband out and retain the former matrimonial home herself. However, it seems to me not unreasonable that she be given the opportunity to make those enquiries and elect whether to pay the Husband or sell the home.
I have significant concerns that the Wife will endeavour to delay and obstruct the sale of the home. She said in her oral evidence that she would not cooperate with the sale of the home. She said she would not cooperate with any selling agent, as they are all “shonky”. She said if it had to be sold, she would sell it herself, although she has no experience in selling properties. She also said she refused to have it sold and she would not leave the house. It has been the Wife’s clear intent to retain the home. Throughout these proceedings she has been highly resistant to any suggestion it be sold.
I am well aware of the significant difficulties that were encountered in matters such as agreeing on an expert, or as simple as providing a joint letter of instruction to valuers. The Wife unnecessarily and unreasonably hindered these processes, causing avoidable delays and legal fees. The Wife’s conduct during the trial – and her stated opposition to the sale of the home – gives me considerable concern that if she is permitted to participate in the sale of the home she will continue to be obstructive and difficult. She said she would not cooperate with the sale of the home. She did not cooperate with the valuation of the H Town property alleging her sisters objected to the valuation. That does not appear to be accurate as the Husband’s lawyers wrote to the Wife’s sisters in April 2020 and they indicated they did not object to the valuation proceeding. However, I am not prepared to exclude the Wife from participating in the sale of the home at this stage. That is a very significant step. It is, in my view, appropriate that she be given the opportunity to engage with the process.
In the event the house is to be sold, and the Wife is not co-operative, at that point it may become necessary to remove the Wife from the property and give the Husband sole conduct of the sale. I hope that does not become necessary.
The Wife has already expressed her dissatisfaction with the Husband’s nominated selling agent AJ Real Estate, alleging there was a “conflict of interest” as the Husband is friends with Mr AK (“Mr AK”). In her closing address the Wife referred to AJ Real Estate being appointed the selling agent. She said that we live in a very complex society, and that she lives in an area where there are a lot of extremely powerful people, who have networks, and have “fingers in the pie”, which she said was “really quite scary”. I do not regard this as substantiating any claim for a conflict of interests. The Husband acknowledged he has known Mr AK for some time, but denied that they are friends.
At any rate, the orders I am making require the Husband to nominate three agents to conduct the sale. The Wife will select from that list. If she does not make an election, then the Husband is at liberty to nominate his preferred agent.
There will likely be works required to be undertaken to ready the home for sale. It may also need to be staged for sale. The Husband will need to meet the costs to ready and stage the home for sale and be reimbursed for same from the proceeds of sale.
I understand the business’s line of credit is secured over the former matrimonial home. Obviously as the Husband is retaining the business, he will also retain liability for the line of credit. In the event that line of credit needs to be discharged when the home is sold, that will need to come from the Husband’s share of the proceeds.
Pursuant to my orders, the Husband will retain the following assets totalling $158,557:

Bruil Family Trust as trustee for F Pty Ltd

$118,000

Husband’s personal bank accounts

$27,962

Inheritance of the Husband from his mother

AUD4,595

Husband’s recreational boat

$8,000

The Wife will retain the following assets totalling $1,102,083:

Value of the Wife’s 1/3^rd entitlement in her father’s estate (including the property at G Street, H Town at $3,000,000)

$944,333

Wife’s personal bank accounts

$25,280

Loan owed to wife’s father’s estate to Wife

$95,566

Motor Vehicle 1 to be retained by the Wife

$6,000

Motor Vehicle 2 to be retained by the Wife

$20,000

Wife’s shares

$1,820

Notional addback: funds withdrawn by Wife for legal fees

$9,084

To achieve the 55% division of the overall pool of assets to the Wife and 45% to the Husband, the Husband will be entitled to a payment of $408,731 from the Wife’s 55% share of the proceeds of the sale of the former matrimonial home. That adjusts for these assets that the parties are respectively keeping as part of the property distribution.
The superannuation split order that I am making reflects a 55% division of superannuation to the Wife and 45% to the Husband.
There are various items in the home that I am satisfied should be retained by the Husband. The Wife agreed he could have his personal memorabilia and photo albums. She did not agree that he could retain the sporting equipment. She said that would need to be sold if neither of the children wanted it. The Wife did not have any reasonable basis to refuse to provide the sporting equipment to the Husband. She did not want it herself. In the event the Wife is vacating the home, she is to leave these items including the sporting equipment. If she is retaining the home, she is to make them available for collection by the Husband.
The Wife currently has physical possession of the Motor Vehicle 1. She said however it is not her car, as she gifted it to Ms N for her 18^th birthday. Ms N is currently living overseas. I do not know when she will return. The car will be retained by the Wife as part of her entitlements. It is a matter for the Wife what she then does with it.
The Wife is to reimburse the Husband for various costs met by him at first instance during these proceedings, as well as to meet a costs order against her. The monies to be paid to the Husband from the Wife’s entitlements amount to $11,140.38. They are calculated as follows:
(a)the sum of $503 being a costs order made on 2 July 2021 and expressed at that time to be payable at settlement;
(b)one half of Ms E’s fees for the preparation of the report, as previously ordered, from 6 August to 2 November 2021 paid for in whole by the Husband at first instance: $5,405.38;
(c)one half of the costs of the updated valuations obtained from T Valuers paid for in whole by the Husband at first instance: $2,460, and;
(d)the whole of the costs of Ms E’s attendance at Court for cross examination paid for in whole by the Husband at first instance: $2,772.
I am satisfied it is appropriate the Wife meet the costs of Ms E’s attendance at Court. The Husband did not require her for cross-examination and did not ask any questions of her. He did not challenge her report in any way. The Wife was not able to challenge Ms E’s report in any meaningful way.
For all of the foregoing reasons, I make the orders as are set out.

I certify that the preceding two hundred and ninety-eight (298) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter.
Associate:
Dated: 28 April 2023

File number:	MLC 7506 of 2019
Judgment of:	CARTER J
Date of judgment:	28 April 2023
Catchwords:	FAMILY LAW – PROPERTY – protracted proceedings – allegations of family violence – where the wife asserted her contributions were arduous – where the wife asserted there had been non-disclosure – where the wife asserted there had been wastage – whether it is just and equitable for any orders to be made – orders made
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 75, 79, 81, 90E, 90XT, 102NA, 102NB
Cases cited:	Aleksovski v Aleksovski (1996) FLC 92-705 Bevan v Bevan (2013) 279 FLR 1 Cerini & Cerini [1998] FamCA 143 Chorn & Hopkins (2004) FLC 93-204 Dickons v Dickons (2012) 50 Fam LR 244 Jabour & Jabour (2019) 59 Fam LR 475 Keating & Keating (2019) 59 Fam LR 158 Kennon & Kennon (1997) FLC 92-757 Mallet v Mallet (1984) 156 CLR 605 Omancini & Omancini (2005) FLC 93-218 Stanford v Stanford (2012) 247 CLR 108 Stein and Stein (1986) FLC 91-779 Weir & Weir (1993) FLC 92-338
Division:	Division 1 First Instance
Number of paragraphs:	298
Date of hearing:	16–18 January 2023 14–15 February 2023
Place:	Melbourne
Counsel for the Applicant:	Nicola Bowen
Solicitor for the Applicant:	Clancy & Triado Family Lawyers
Counsel for the Respondent:	Litigant in person

MLC 7506 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR BRUIL Applicant
AND:	MS BRUIL Respondent

order made by:	CARTER J
DATE OF ORDER:	28 APRIL 2023

ASSETS
B Street, Suburb C - the former matrimonial home – registered in the Wife’s sole name	$3,000,000
Value of the Wife’s 1/3^rd entitlement in her father’s estate (including the property at G Street, H Town at $3,000,000)	$944,333
Bruil Family Trust as trustee for F Pty Ltd	$118,000
Husband’s personal bank accounts: PP Bank Account: AUD22,050 GG Finance (acc no. ending …04): $926 Westpac Bank Account: $4,986	$27,962
Wife’s personal bank accounts: QQ Bank account …58: $20,505 QQ Bank account …07: $1,391 NAB account (ending …74): $709 NAB account (ending …13): $1,890 NAB accounts as at 24.06.22 – AUD785	$25,280
Inheritance of the Husband from his mother	AUD4,595
Husband’s boat	$8,000
Loan owed by Wife’s father’s estate to Wife	$95,566
Motor Vehicle 1 - to be retained by the Wife	$6,000
Motor Vehicle 2 - to be retained by the Wife	$20,000
Wife’s shares	$1,820
Notional add back: funds withdrawn by Wife for legal fees	$9,084
Assets subtotal	$4,260,640
SUPERANNUATION
Husband’s entitlements with Super Fund 1	$263,367
Wife’s entitlements with Super Fund 2	$70,252
Wife’s entitlements with Super Fund 3	$4,295
Super total	$337,914
TOTAL POOL inclusive of superannuation	$4,598,554

Bruil Family Trust as trustee for F Pty Ltd	$118,000
Husband’s personal bank accounts	$27,962
Inheritance of the Husband from his mother	AUD4,595
Husband’s recreational boat	$8,000

Value of the Wife’s 1/3^rd entitlement in her father’s estate (including the property at G Street, H Town at $3,000,000)	$944,333
Wife’s personal bank accounts	$25,280
Loan owed to wife’s father’s estate to Wife	$95,566
Motor Vehicle 1 to be retained by the Wife	$6,000
Motor Vehicle 2 to be retained by the Wife	$20,000
Wife’s shares	$1,820
Notional addback: funds withdrawn by Wife for legal fees	$9,084