Conrad & Gilbert
[2025] FedCFamC2F 427
•3 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Conrad & Gilbert [2025] FedCFamC2F 427
File number(s): LNC 444 of 2023 Judgment of: JUDGE TURNBULL Date of judgment: 3 April 2025 Catchwords: FAMILY LAW – PROPERTY – Where the de-facto wife received an inheritance from her father’s estate late into the relationship – Where the de-facto husband claims that he made significant financial and non-financial contributions to the properties comprising most of the deceased estate – Assessment of contributions – Whether certain sums should be added back to the asset pool – assessment of other factors – Just and equitable outcome Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Cases cited: Beck & Beck (No 2) (1983) FLC 91-318
Bevan & Bevan [2013] FamCAFC 116
Briginshaw v Briginshaw (1938) 60 CLR 336
Boege and Boege [2001] FamCA 1167
C & C [1998] FamCA 143
Clauson & Clauson (1995) FLC 92-595
Dawes & Dawes [1989] FamCA 71
Dickons & Dickons [2012] FamCAFC 154
Dovgan & Dovgan [2021] FamCA 306
Gadhavi & Gadhavi [2023] FedCFamC1A 117
Grier & Malphas [2016] FamCAFC 84
Hickey & Hickey [2003] FamCA 395
Hunter & Borman [2020] FamCAFC 250
Jabour & Jabour [2019] FamCAFC 78
Jacobson & Jacobson (1989) FLC 92-003
Kessey & Kessey (1994) FLC 92-495
Koch & Kest [2021] FamCA 408
Kowaliw & Kowaliw (1981) FLC 91-092
Lotta & Lotta [2017] FamCA 50
MacKinnon & Talbot [2022] FedCFamC2F 1738
Mallet & Mallet (1984) 156 CLR 605
Mayne & Mayne [2011] FamCAFC 192
Parshen & Parshen (1996) FLC 92-720
NHC & RHC [2004] FamCA 633
Omacini & Omacini; sub nom AJO & GRO [2005] FamCA 195
Sigley & Cullen (No 3) [2015] FamCA 825
Stanford & Stanford (2012) 247 CLR 108
Teal & Teal [2010] FamCAFC 120
Vass & Vass [2015] FamCAFC 51
Warwick & Cutler [2016] FamCA 934
Division: Division 2 Family Law Number of paragraphs: 123 Date of last submission/s: 16 December 2024 Date of hearing: 9, 10, 11, 12 and 16 December 2024 Place: Launceston Counsel for the Applicant: Mr Gallimore Solicitor for the Applicant: Turnbull Hill Lawyers Counsel for the Respondent: Mr Trezise Solicitor for the Respondent: McVeity Dean ORDERS
LNC 444 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CONRAD
Applicant
AND: MS GILBERT
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
3 APRIL 2025
THE COURT ORDERS THAT:
1.Within 120 days of the date of this order, the Respondent will pay to the Applicant the sum of $792,672.71.
2.It is declared that the Respondent is the sole legal and beneficial owner of the real properties situate at:-
(a)B Street, Town C in Tasmania and comprised in Certificate of Title Volume … Folio …;
(b)1 D Street, Town E in Tasmania and comprised in Certificate of Title Volume … Folio …;
(c)2 D Street, Town E in Tasmania and comprised in Certificate of Title Volume … Folio …; and
(d)F Street, Suburb G in Tasmania and comprised in Certificate of Title Volume … Folio ….
3.Each party will otherwise be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of this order and that for this purpose bank accounts and share portfolios are deemed to be in the possession of the party whose name appears on the bank's records thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the member.
4.Each party will be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this order.
5.Each party do all things, sign all documents and take all necessary action to give effect to this order.
6.All extant proceedings be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TURNBULL J
OVERVIEW
These are property proceedings initiated by Mr Conrad on 6 July 2023, as against Ms Gilbert. The parties lived in a de facto relationship, but in these Reasons, for ease of reference, I will refer to them as the Husband and Wife respectively.
The trial commenced 10 December 2024 with the evidence taking three days to complete. The decision was reserved on 16 December 2024, after final submissions were received.
During final addresses, Mr Gallimore for the Husband, submitted that the Husband should receive forty (40) percent of the parties’ net property whilst Mr Trezise, for the Wife, argued that the Husband should receive twenty (20) percent. The form of the order, as proposed by the Wife, was not contested,[1] and it was only the cash amount payable by the Wife to the Husband that was in issue.
[1] Exhibit W4: Proposed Orders – save for the costs clause.
THE PARTIES
The Husband is 63 years of age, is currently unemployed and receiving Centrelink Job Seeker payments.[2] The Wife is 61 years of age, is employed at H Centre as an allied health worker and intends to retire in mid-2025 in order to continue managing her farm.[3] There are no children of the relationship, although both parties have children from previous relationships, all of whom were adults at the commencement of the relationship.
[2]Affidavit of Mr Conrad (‘Husband’ Trial Affidavit’) 18 November 2024 [51].
[3]Affidavit of Ms Gilbert (‘Wife’s Trial Affidavit’)19 November 2024 [38].
The parties commenced cohabitation in early 2009. The parties were not married. The parties separated on a final basis on 16 July 2021.[4]
[4] Wife’s Trial Affidavit (n 3) [1]-[5]; Husband’s Trial Affidavit (n 2) [1]-[3].
EVIDENCE
Whether referred to in these Reasons or not, I have read and considered all documents relied upon and tendered by the parties.[5]
[5] Certain objections were taken to each party’s affidavit. If redactions appear in extracted material, those are the parts of the documents successfully excluded.
Husband’s Evidence
The Husband relied upon:
·His Amended Initiating Application filed on 24 April 2024;
·His Financial Statement filed on 18 November 2024;
·His Affidavit filed on 18 November 2024
·His Case Outline filed on 6 December 2024;
·A tender bundle; and
·Various exhibits
The Husband was cross-examined. He gave his evidence in a calm manner, answering questions put to him directly and making appropriate concessions. He was a good witness who endeavoured, from his perspective, to provide a truthful account.
Wife’s Evidence
The Wife relied upon:[6]
·Her Amended Response filed on 19 November 2024;
·Her Affidavit filed on 19 November 2024;
·Her Financial Statement filed on 15 August 2023;
·Her Financial Questionnaire filed on 15 August 2023;
·Her Case Outline filed on 6 December 2024; and
·Various exhibits
[6] The Wife did seek to rely upon an affidavit of a valuer – Mr K dated 2 December 2024 – but leave to do so was denied.
The Wife was cross-examined. At times she gave the impression of being evasive by answering ‘possibly’ to several matters put to her, although I sensed she was wanting to add context to her answers. Initially, I held the impression that she was downplaying the Husband’s financial contributions and the nature of the physical work that he carried out during the relationship, but she made several concessions under cross-examination that dispelled the concern. The Wife was also a good witness.
THE ASSET POOL
The parties largely agreed upon the makeup and value of the asset pool, with the agreed balance sheet exhibited as J1, and extracted below. The parties also agreed that the Court should consider all the assets of the parties, including their superannuation interests, in one pool.
Assets
1 CBA Goalsaver #...52 W $ 18,633.00 2 CBA Smart Access #...44 W $ 9,587.00 3 CBA Smart Access # …29 W $ 6,401.00 4 CBA Netbank Saver #...53 W $ 21.00 5 CBA Goalsaver #...47 W $ 204,884.00 6 CBA CDIA Account #...35 W $ 44,356.00 7 Share Portfolio W $ 853,823.00 8 Motor Vehicle 1 W $ 55,000.00 9 CBA Smart Access #...47 W NIL 10 CBA Smart Access #...63 (proceeds from sale of Suburb J property) W $ 54,651.00 11 * Gilbert Family Trust: CBA Business Acc #...41 Livestock (bank account 110.82 and Livestock 90,350) W $ 90,461.00 12 F Street, Suburb G W $ 450,000.00 13 1 D Street, Town E W $ 650,000.00 14 2 D Street, Town E W $ 1,050,000.00 15 B Street, Town C W $ 700,000.00 16 Farm machinery W $ 106,500.00 17 Cryptocurrency Account H $ 1,293.00 18 Motor Vehicle 2 H $ 23,000.00 19 Motor Vehicle 3 H $ 45,000.00 20 Horse Float H $ 8,000.00 21 Conrad Family Trust – Online Share Trading #...25 H $ 54,400.00 22 Conrad Family Trust – L Company H $ 140,000.00 23 Conrad Family Trust – CBA Business #...90 H NIL 24 *P Bank Acc #...79 H $ 502.00 25 *CBA Saver Account #...48 H $ 3,099.00 26 *CBA CDIA Account #...52 H $ 4.00 27 *CBA Share Trading Acc #...22 H $ 12,704.00 28 *Conrad Family Trust – CDIA #...55 H $ 17,000.00 29 Conrad Family Trust – M Company Shares (N Company) H $ 25,000.00 30 Horses x 2 H $ 30,000.00 31 Motor Vehicle 4 H $ 57,000.00 32 Motor Vehicle 5 H $ 18,500.00 33 Funds in Trust H $ 51,654.00 TOTAL NON-SPERANNUATION ASSETS $ 4,781,473.00
Liabilities
34 Capital Gain on F Street W $ 0.00 TOTAL LIABILITIES $ 0.00 NET TOTAL OF NON-SUPERANNUATION ASSETS $ 4,781,473.00 Superannuation
35 Superannuation – Super Fund 1 W $ 270,757.00 36 Superannuation – Super Fund 2 H $ 115,443.00 TOTAL SUPERANNUATION ASSETS $ 386,200.00 TOTAL ASSETS - $ 5,167,673.00
The remaining dispute regarding the make-up of the asset pool was whether an amount of $26,732 spent by the Wife and $79,972 spent by the Husband, post separation, should be added back to the asset pool — an issue I will determine shortly.
STANDARD OF PROOF
I note briefly, before continuing, that all facts in issue in these proceedings must be proved on the balance of probabilities. A fact in issue is 'proved' if I am reasonably satisfied, on the evidence, that it is more likely than not that the fact existed or occurred in the manner ultimately determined.
Dixon J, as he then was, remarked upon the standard of proof for civil proceedings in Briginshaw v Briginshaw (1938) 60 CLR 336, which remains relevant and authoritative:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
The Evidence Act 1995 (Cth) (‘the Evidence Act’) sets out the applicable standard:
140 Civil proceedings: standard of proof
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject‑matter of the proceeding; and
(c) the gravity of the matters alleged. [7]
[7] Evidence Act 1995 (Cth) s 140 (‘EA’).
I will ground my assessment of the issues in dispute upon the facts, of which I am persuaded, on the balance of probabilities.
JURISDICTIONAL REQUIREMENTS
The parties were in a de facto relationship as characterised by the Act.[8] Their relationship lasted over twelve years and there were no children of the relationship.[9]
[8] Family Law Act 1975 (Cth) s 4AA (‘FLA’).
[9] Ibid ss 90SB(b), 90RB; Wife’s Trial Affidavit (n 3) [2]; Husband’s Trial Affidavit (n 2) [4].
The evidence plainly establishes that, at the time of the Husband’s application and for the duration of the relationship, both parties ordinarily resided in Australia. I am, therefore, satisfied that the parties meet the geographical requirements which empower the Court to make an order with respect to their property interests.[10]
LEGAL PRINCIPLES — PROPERTY PROCEEDINGS UNDER PARTS VIII AND VIIIAB AND THE APPROACH IN HICKEY AND STANFORD
[10] FLA (n 8) s 90SK.
Parts VIII and VIIIAB of the Act govern the scope of the Court’s power with respect to property and financial matters. The Court’s powers under sections 79(2) and 90SM (3) — regarded as ‘very wide discretion[s]’ — must be exercised according to principled reason,[11] and are constrained by a number of factors to which the Court must direct itself.[12] To this end a typical approach is that set out in Hickey & Hickey [2003] FamCA 395 (‘Hickey’)[13] and Stanford & Stanford (2012) 247 CLR 108 (‘Stanford’) comprising a number of steps:
(1)identify the parties’ existing legal and equitable property interests, liabilities, and financial resources at the time of trial, and then determine whether it is just and equitable to adjust their interests pursuant to section 79(2) or section 90SM(3);[14]
(2)consider the parties’ contributions under section 79(4)(a)-(c) or section 90SM(4)(a)-(c);
(3)consider the factors under section 79(4)(d)-(g) or section 90SM(4)(d)-(g), including, by virtue of section 79(4)(e) or section 90SM(4)(e), the ‘subjective considerations’ under section 75(2) or section 90SF(3) insofar as they are relevant;[15] and then
(4)‘stand-back’ to consider the justice and equity of the actual terms of order proposed to be made.[16]
[11] Stanford & Stanford (2012) 247 CLR 108, 122 [41] (‘Stanford’).
[12] Mallet & Mallet (1984) 156 CLR 605, 608 (Gibbs CJ), noting that the ‘very wide discretion to make such order as [the Court] thinks fit’ is conferred only ‘when [the Court] is satisfied that it is just and equitable that an order should be made’, with his Honour further stating that ‘there are some broad principles to which the Court is required to give effect, and some circumstances which it is required to take into account’ in making an order, and with Dawson J (at 647) referring to the just and equitable requirement as the ‘overriding requirement’.
[13] Hickey & Hickey [2003] FamCA 395 [39] (‘Hickey’), noting the remarks of the Full Court in Norman & Norman [2010] FamCAFC 66 [60], at which their Honours state that ‘[i]t is the mandatory legislative imperative (to reach a conclusion that is just and equitable) that drives the ultimate result’ and that ‘[f]or all its usefulness and merit [the four-step approach] merely illuminates the path to the ultimate result.’ I also note the three ‘fundamental propositions’ set out in Stanford & Stanford (n 13), 120 [36], as alternative guidance for trial judges, ultimately towards the same objective as the approach in Hickey, namely to cover off on all necessary points and criteria in pt VIII.
[14] Stanford (n 11), 120 [37], noting the explanatory remarks in Lotta & Lotta [2017] FamCA 50 [283]-[284], importantly that ‘[s]uch a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist’ and that ‘the Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act.’
[15] Lotta & Lotta (n 14) [289].
[16] Teal & Teal [2010] FamCAFC 120 [70], referring to Phillips v Phillips [2002] FamCA 350 in which, at [68], their Honours discuss the importance of considering the ‘real impact’ of an order to assess whether the result is just and equitable.
Sub-sections 90SM(1), 90SM(3) and 90SM(4) are, like their respective equivalents in sub-sections 79(1), 79(2) and 79(4), subject to the High Court’s approach and interpretation in Stanford.[17]
[17] Hunter & Borman [2020] FamCAFC 250 [31]-[33] (Ryan, Kent and Tree JJ).
The High Court in Stanford insists that interference with legal and equitable interests of parties must adhere to principled reason.[18] The principles to which this Court may have reference include, but are not limited to, ‘those principles which the Act itself lays down’.[19] Justice and equity, with respect to property settlement, does not admit to an exhaustive definition and it is ‘not possible to chart its metes and bounds’.[20]
[18] Stanford (n 11), 122 [41].
[19] Ibid, citing R v Watson; Ex parte Armstrong (1976) 136 CLR 248, 257.
[20] Stanford (n 11) 120 [36].
The principles contained within the Act also accommodate the ‘stated or unstated assumptions and agreements about property interests during the continuance of the marriage’.[21] It is just and equitable, according to Stanford, for a Court to make a property settlement order if such agreements or assumptions with respect to marital property interests during the marriage have been brought to an end, which usually occurs with the end of the marriage.
Identify the parties legal and equitable property interests — the final make-up of the asset pool — should any amount be added back?
[21] Ibid 122 [41].
Both parties argued that monies withdrawn by the other should be added back to the pool —$26,732 in the case of the Wife and $79,927 for the Husband.
A marriage or de facto relationship is, in countless ways, a shared endeavour. Married or de facto, couples ordinarily work together to strengthen their economic position, enduring side by side the financial highs and lows of domestic life. In Kowaliw Baker J summarised the Court’s view:
Marriage is for most couples an economic partnership. Married couples live together and work together with the ultimate object of purchasing a home, paying it off, acquiring other assets with the overall object of attaining a higher standard of living. The reported decisions in respect of applications for settlement of property under sec. 79 of the Act are unanimous that both parties should share the economic fruits of a marriage, having regard to the provisions of sec. 79(4) and sec. 75(2), although not necessarily equally.[22]
[22] Kowaliw & Kowaliw (1981) FLC 91-092 [8].
The inverse is also true — parties should generally share the financial losses incurred during their relationship.[23] This statement of general principle is, of course, guided by the overarching requirement of justice and equity in property adjustment orders.
[23] Ibid [9]-[11].
Where one party has ‘prematurely and inappropriately obtained the benefit of property of the relationship prior to it being considered by the Court at final hearing,’[24] it is often inappropriate for the loss caused by that party’s expenditure to be shared by both parties. A common example — as given in Mayne & Mayne [2011] FamCAFC 192 — is a party withdrawing and using joint funds for their own purposes post-separation.[25]
[24] Warwick & Cutler [2016] FamCA 934 [127] (McClelland J).
[25] Mayne & Mayne [2011] FamCAFC 192 [73] (Faulks DCJ) (‘Mayne’).
A court faced with an application under section 79 or section 90SM may address any such injustice or inequity in three ways — taking it into account under sub-section 75(2)(o)/ 90SF(3)(r), notionally adding back the expenditure, or taking the expenditure into account as a contribution, as was done in Grier & Malphas,[26] where the use of a large sum of money, post separation, was unexplained:
the receipt of these funds by the Husband requires expression in some form, either as a matter to be taken into account under s 75(2)(o), or, as the Wife later argues, in relation to contributions.[27]
[26] Grier & Malphas [2016] FamCAFC 84 (‘Grier & Malphas’).
[27] Ibid [57] (Bryant CJ).
The circumstances in which it may be inappropriate to share a loss are as extracted in Omacini & Omacini; sub nom AJO & GRO [2005] FamCA 195 (‘Omacini’) below. Their Honours in that case discussed addbacks, but the categories extracted may also be addressed through other means at the Court’s discretion.[28]
[28] Mayne & Mayne (n 25) [180] (Strickland J).
30. To date, three clear categories of cases have emerged where the court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:
(a) Where the parties have expended money on legal fees. In DJM and JLM (1998) FLC 92-816 the Full court said at 85,262:
11. 6 For reasons set out in Farnell, s 117 provides that each party to proceedings under the Family Law Act shall bear their own costs unless the court otherwise orders. Failing to add back monies expended by parties on costs frequently has the effect of defeating the policy of s 117 by permitting the pool of available assets for distribution between the parties to be diminished by any monies that either of the parties have managed to spend on their costs up to the date of trial. We are of the view that the normal approach ought be to add costs already paid back into the pool. Whilst there may be cases where that approach is inappropriate, the reasons why it is not taken ought normally be spelt out.
(b) Where there has been a premature distribution of matrimonial assets. In Townsend and Townsend (1995) FLC 92-569 Nicholson CJ as he then was with whom Fogarty and Jordan JJ agreed, said at 81,654:
In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the Husband did was to distribute to himself an asset in which the Wife had a legitimate interest. In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the Husband as a matter to which regard should be had under section 75(2). It seems to me that the Husband has had the benefit of that money. Had he retained, for example, the taxi licence instead of selling it, that would have been brought into account as an item of property which would have been dealt with in the same way as the remaining items of property in this case. Accordingly, I am of the view that the correct way in which to deal with the Husband’s receipt of those moneys is to bring them into the pool of assets on a notional basis and make a distribution accordingly.
(c) In the circumstances outlined by Baker J in Kowaliw and Kowaliw (1981) FLC 91-092 at 76,644:
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.”[29]
[29] Omacini & Omacini; sub nom AJO & GRO [2005] FamCA 195 [30] (Holden, Warnick and Le Poer Trench JJ).
The Full Court in Mayne also stated the following in relation to addbacks and their utility in pursuance of justice and equity:
78.It seems that human experience (and common sense) shows that while parties are together, each might, from time to time and with the consent of the other, either express or implied, apply or appropriate assets or funds to his or her own purposes. When the relationship is good, no-one is likely to care — let alone keep records. Individual amounts may stand out, as is the case here, but many small transactions in combination may exceed, in total value, one large transaction.
79.It is not the Court's function to conduct an audit of the marriage or of the relationship finances. The parties' remedies for resolving disputes about expenditure while they are together are centred on them and them alone. Choosing one transaction from many prior to separation for different treatments, specifically "to be added-back" or notionally included in the pool of property may make doing justice and equity between the parties difficult.[30]
[30] Mayne & Mayne (n 26) [78]-[79] (Faulks DCJ).
The Full Court in Vass & Vass [2015] FamCAFC 51 clarified that neither Stanford nor Bevan & Bevan [2013] FamCAFC 116 had the effect of making addbacks unavailable to first instance judges where they are an appropriate solution.[31] It is, however, ‘beyond doubt’ that notional addbacks are exceptional,[32] and that the Full Court’s remarks in C & C [1998] FamCA 143 remain authoritative:
46.Whilst not seeking to place a fetter upon the exercise of a trial judge in individual cases, it seems to us that the concept of adding monies reasonably disposed of back into the pool ought to be the exception rather than the rule. The parties are entitled to reasonably conduct their affairs post-separation in a manner that is consistent with properly getting on with their lives. Providing modest support for their adult children or taking not inappropriate holidays for themselves seems to fit comfortably within that description.[33]
(Emphasis added)
[31] Vass & Vass [2015] FamCAFC 51 [138]-[139] (Strickland, Murphy and Tree JJ). See Bevan & Bevan [2013] FamCAFC 116 [79] at which Bryant CJ and Thackray J in applying Stanford said that ‘“notional property”, which is sometimes “added back” to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute “property of the parties to the marriage or either of them”, and thus is not amenable to alteration under s 79’. The case ultimately did not turn on the issue, with their Honours stating that ‘in particular s 75(2)(o) gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property’.
[32] Mayne & Mayne (n 25) [185].
[33] C & C [1998] FamCA 143 [46] (Nicholson CJ, Ellis and Kay JJ).
Gill J in Koch & Kest [2021] FamCA 408, in explaining addbacks in the context of legal fees, extracted and cited with approval NHC & RHC [2004] FamCA 633 (‘Chorn & Hopkins’), as authority that outstanding legal fees in themselves are not generally added back as a liability.[34] The Full Court in Chorn & Hopkins also stated the following with respect to legal fees:
56. In summary, we consider that the above mentioned decisions of the Full Court establish that, while the treatment of funds used to pay legal costs remains ultimately a matter for the discretion of the trial judge, in determining how to exercise that discretion, regard should be had to the source of the funds.
57. If the funds used existed at separation and are such that both parties can be seen as having an interest in them (on account, for example, of contributions), then such funds should be added back as a notional asset of the party, who has had the benefit of them.
58. If funds used to pay legal fees have been generated by a party post-separation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance), they would generally not be added back as a notional asset; nor would any borrowing undertaken by a party post- separation to pay legal fees be taken into account as a liability in the calculation of the net property of the parties. Funds generated from assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement may need to be looked at differently from other post-separation income or acquisitions.[35]
Should the amount of $26,732 be added back to asset pool as monies received by the Wife and $79,927 be added back to asset pool as monies received by the Husband?
[34] Koch & Kest [2021] FamCA 408 [21].
[35] NHC & RCH [2004] FamCA 633 [56]-[58] (Finn, Kay and May JJ) (‘NHC & RCH’).
The Husband claimed, with reference to the Wife’s Costs Notice,[36] that she had used $26,732 of the monies received from the sale of a property at Suburb J in City O to pay her legal fees post-separation — monies that would otherwise have been available for distribution. The Wife’s affidavit confirmed that she held that property at the time of separation, although it was purchased for her daughter who paid the mortgage.[37] Under cross-examination the Wife agreed that she had used the sale proceeds of sale for that purpose. On the face of it, the monies the Wife used to meet legal fees were not derived from post separation earnings and I will need to have regard to them in some way.
[36] Costs Notice filed by Ms Gilbert 10 December 2024.
[37] Wife’s Trial Affidavit (n 3) [26(f)], [23].
The Wife argued that the monies spent by the Husband on legal fees — $79,927 — as evidenced by his Costs Notice,[38] should also be added back to the pool. The Husband did not detail the source of the funds, and Mr Trezise submitted that the Court can only conclude that they came from monies he had received from his inheritance or drawn down superannuation, given his evidence that he had not received a regular income since separation. Further, the Husband admitted that $51,654.50, currently held by his lawyers in trust to meet future legal fees, was drawn down from his superannuation fund. This, Mr Trezise argued, allows the Court to draw an inference that the funds must have come from monies that existed during the relationship, as opposed to monies accumulated from post-separation earnings. Mr Gallimore submitted that the Court cannot reach such a conclusion without there being evidence of the source of the funds.
[38] Costs Notice filed by Mr Conrad 6 December 2024.
I prefer the submission of Mr Trezise. The pool includes monies that both parties have received post-separation.[39] I infer, and am satisfied, given that the Husband was not in employment post-separation, that he accessed monies to pay his legal fees from asset(s) that should have otherwise been in the pool for division.
[39] The Husband received his inheritance and the Wife received the proceeds of the City O property post separation.
Both parties have used money to meet legal fees from assets that might otherwise have formed part of the asset pool. However, the Wife’s funds, derived from the sale of a property she purchased for her daughter in City O on the eve separation,[40] and sold post-separation. The source of the Husband’s payment(s) is unknown but may have come from his post-separation inheritance, or his cashed in superannuation. Given this, I will not add these sums paid for legal fees back to the asset pool but rather take the Husband’s payment, over and above that paid by the Wife — $53,195 — into account under section 90SF(3)(r).
[40] Wife’s Trial Affidavit (n 3) [23], [29]; Cross-examination of Ms Gilbert by Mr Gallimore.
Conclusion regarding the asset pool
Given my findings regarding add-backs, I determine that the asset pool for division is as set out here:[41]
Assets
[41] The entries in the pool are those set out in J1, but with the figures grouped under those owned by the Husband and those owned by the Wife.
1 Cryptocurrency Account H $ 1,293.00 2 Motor Vehicle 2 H $ 23,000.00 3 Motor Vehicle 3 H $ 45,000.00 4 Horse Float H $ 8,000.00 5 Conrad Family Trust – Online Share Trading #...25 H $ 54,400.00 6 Conrad Family Trust – L Company H $ 140,000.00 7 Conrad Family Trust – CBA Business #...90 H NIL 8 *P Bank Acc #...79 H $ 502.00 9 *CBA Saver Account #...48 H $ 3,099.00 10 *CBA CDIA Account #...52 H $ 4.00 11 *CBA Online Share Trading Acc #...22 H $ 12,704.00 12 *Conrad Family Trust – CDIA #...55 H $ 17,000.00 13 Conrad Family Trust – M Company Shares (N Company) H $ 25,000.00 14 Horses x 2 H $ 30,000.00 15 Motor Vehicle 4 H $ 57,000.00 16 Motor Vehicle 5 H $ 18,500.00 17 Funds in Trust H $ 51,654.00 18 CBA Goalsaver #...52 W $ 18,633.00 19 CBA Smart Access #...44 W $ 9,587.00 20 CBA Smart Access # …29 W $ 6,401.00 21 CBA Netbank Saver #...53 W $ 21.00 22 CBA Goalsaver #...47 W $ 204,884.00 23 CBA CDIA Account #...35 W $ 44,356.00 24 Share Portfolio W $ 853,823.00 25 Motor Vehicle 1 W $ 55,000.00 26 CBA Smart Access #...47 W NIL 27 CBA Smart Access #...63 (proceeds from sale of Suburb J property) W $ 54,651.00 28 * Gilbert Family Trust: CBA Business Acc #...41 Livestock (bank account 110.82 and Livestock 90,350) W $ 90,461.00 29 F Street, Suburb G W $ 450,000.00 30 1 D Street, Town E W $ 650,000.00 31 2 D Street, Town E W $ 1,050,000.00 32 B Street, Town C W $ 700,000.00 33 Farm machinery W $ 106,500.00 Total non-superannuation assets $ 4,781,473.00 Superannuation 34 Superannuation – Super Fund 1 W $ 270,757.00 35 Superannuation – Super Fund 2 H $ 115,443.00 Total Superannuation $ 386,200.00
TOTAL ASSETS $ 5,167,673.00 By reference to the parties’ existing legal and equitable property interests, is it just and equitable to make an order pursuant to section 79?
As foreshadowed above, the law requires that any interference with legal and equitable interests adheres to principled reason.[42] Justice and equity, with respect to property settlement in section 79(2) or section 90SM(1), does not admit of exhaustive definition and it is ‘not possible to chart its metes and bounds’.[43] The principles contained within the Act also accommodate ‘stated or unstated assumptions and agreements about property interests during the continuance of the marriage’.[44] It is just and equitable, according to Stanford, for a Court to make a property settlement order if such agreements or assumptions with respect to property interests during the marriage have been brought to an end, which usually occurs with the end of the marriage.
[42] Stanford (n 11) 121 [41].
[43] Ibid 120 [36].
[44] Ibid 122 [41].
Both parties submitted that there should be a property order in this case — I agree. The assumptions that the parties' held during their relationship, as to the appropriateness of the arrangement of their property interests and liabilities ended when the parties' separated. Both parties have made contributions of various kinds to the pool now available for division and it is just and equitable for the Court to make a property order in this case.
Section 90SM(4)(a)-(c) — contributions
Section 90SM(4)(a) — direct or indirect financial contributions to property
In assessing the parties’ contributions to the asset pool, I must ‘weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation’.[45] A trial judge must not disproportionately account for one contribution over and above the ‘myriad of other contributions’ made during the relationship.[46] This means that any contribution, whatever its size or significance, should not be weighed against the other ‘miscellany’ of contributions made, but instead should be assessed as one of those myriad contributions.[47] In essence, as expressed by Harper J in Dovgan & Dovgan [2021] FamCA 306, the introduction of property by one party to a long relationship must be assessed holistically:
347. … all contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder.[48]
[45] Jabour & Jabour [2019] FamCAFC 78 (‘Jabour & Jabour’) [60].
[46] Ibid [43].
[47] Ibid [59], [73].
[48] Dovgan & Dovgan [2021] FamCA 306, [347].
The Full Court in Dickons & Dickons [2012] FamCAFC 154, as restated by later authorities, refuted the idea that contributions should be assessed according to their ultimate economic result.[49] In MacKinnon & Talbot [2022] FedCFamC2F 1738 the Full Court confirmed:
[N]ot all contributions by parties to marriages or de facto relationships lead to an increase in the wealth of the parties. A more common example of work and effort that does not lead to a financial benefit is where a party unsuccessfully attempts to establish a business to provide for the family: one could not deny that the work and effort in attempting to establish a business is a contribution to be considered, even if the business fails. There is no requirement that a contribution must result in a positive economic result before it can be taken into account: see Browne v Green [1999] FamCA 1483; (1999) FLC 92-873 at 86,359. Whilst the lack of economic benefit may be relevant (Willmore and Willmore [1988] FamCA 45; (1988) FLC 91-975), a party’s work and effort generally remains a contribution unless it is conduct of the type described in Kowaliw and Kowaliw [1981] FamCA 70; (1981) FLC 91-092.[50]
[49] Dickons & Dickons [2012] FamCAFC 154, [14] (Bryant CJ, Faulks DCJ, Murphy J) (‘Dickons’); Jabour & Jabour (n 45), [61] (Alstergren CJ, Ryan and Aldridge JJ). See also Dovgan & Dovgan (n 49), [347] (Harper J), which restates the need to holistically assess contributions following the case of Dickons, and that ‘all contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder’.
[50] MacKinnon & Talbot [2022] FedCFamC2F 1738 [36]
Recently, the Full Court in Gadhavi & Gadhavi [2023] FedCFamC1A 117 confirmed that the Court cannot overlook the use and impact of an asset introduced into the relationship by a party:
30.It was not in dispute that the primary judge applied proper principle in determining that the assessment of the impact of the Husband's initial contributions could only properly occur after she assessed "the totality of the parties' contribution—based entitlement over the entirety of the marriage and post-separation" (at [210]).
31.In that respect, in Pierce v Pierce (1999) FLC 92—844 ("Pierce"), the Full Court stated at [28]:
… It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the Husband and the Wife. In considering the weight to be attached to the initial contribution, in this case of the Husband, regard must be had to the use made by the parties of that contribution.
32.To similar effect, in Cabbell & Cabbell [2009] FamCAFC 205, the Full Court stated at [54] that in considering the parties' contributions, it is necessary to trace the use of those assets and consider the foundation that they laid for the subsequent accumulation of wealth by the parties.
33.That is, in evaluating the parties' contributions, it was necessary for the primary judge to have regard to the context of the Husband's initial contribution and specifically, to the opportunity that initial contribution created and the impact of that initial contribution on the subsequent wealth of the parties as at the date of the hearing.[51]
(Emphasis added)
[51] Gadhavi & Gadhavi [2023] FedCFamC1A 117 [30]-[33].
The Wife stated that at the start of the relationship, she owned a property at F Street, Suburb G in Tasmania (‘the Suburb G property’) which was unencumbered. She also stated in her affidavit that she had savings of $112,000 with the Commonwealth Bank, superannuation valued at approximately $45,000, no debts and chattels in her home.[52] At that time she was employed full time at the Q Centre as a professional.[53] Her position was largely accepted by the Husband:
At cohabitation, [Ms Gilbert] owned the real property located at [F Street, Suburb G] ("The [Suburb G] property").
I am not aware of the balance of her savings or superannuation[54]
[52] Wife’s Trial Affidavit (n 3) [3]-[5].
[53] Ibid.
[54] Husband’s Trial Affidavit (n 2), [6].
At the start of cohabitation, the Husband was finalising a property settlement with his former wife and at that time owned:
(1)A half interest in the property located at R Street, Town S TAS ("the Town S property") – he received his interest in early 2013, by way of a payment of $190,096.95, $30,000 of which was later paid back to his former wife;[55]
(2)A half interest in a vacant block located at T Street, City U TAS ("the City U property") from which he received $35,000 in 2011[56];
(3)Motor Vehicle 6, subsequently sold for $30,000[57];
(4)Motor Vehicle 7;
(5)A V Bank Investment – cashed out in 2021 for $218,599.84[58] At the time of cohabitation it seems to have had a value of $149,207.97[59]; and
(6)A superannuation interest with Super Fund 3[60] valued at $10,950.22[61]
[55] Wife’s Trial Affidavit (n 3) [9].
[56] Husband’s Trial Affidavit (n 2) [15].
[57] Wife’s Trial Affidavit (n 3) [9]; Exhibit W1: Court Order Dated 22 November 2010.
[58] Husband’s Trial Affidavit (n 2) [40].
[59] Exhibit H1: Pages 5-10 and 11-14 – V Bank and Superannuation Account Statements, (‘H1’).
[60] Husband’s Affidavit (n 3) [5].
[61] H1 (n 59).
At that time, the Husband was employed full-time as a professional for W Centre.[62]
[62] Husband’s Trial Affidavit (n 3) [7].
Noting that the Suburb G property is now valued at $450,000,[63] the Wife came into the relationship with assets that were ultimately of greater net value than those brought in by the Husband — an ultimate differential of around $140,000.[64]
[63] Exhibit J1: Joint Balance Sheet (‘J1’).
[64] There is little evidence as to the actual value of the parties’ assets at the time of cohabitation, but the figures obtained from the sale of the Husband’s properties and the cashed in amount of his V Bank policy, his car and superannuation - see [44] – as compared with the value of the Wife property at Suburb G, her savings and superannuation - see [43] - are known. A rough calculation demonstrates that the ultimate value of what the Wife brought in appears to be approximately $140,000 more than the assets brought in by the Husband, using those figures. The figure maybe higher when one considers the payment the Husband made to his former wife, borrowed as part of the rocket loan – see [48]
The parties lived together in the Suburb G property at the commencement of cohabitation, which was then renovated. There is dispute as to the extent of the Husband’s non-financial contributions to the renovations that I will address when considering section 90SM(4)(b).
In mid-2010, the parties jointly purchased a Motor Vehicle 4 for $150,000, with the Wife paying a $15,000 deposit and the balance paid with a Westpac ‘Rocket Loan’, secured against the Wife’s home. The Wife also claimed that the loan was used to meet a payment of $46,122 to his former wife:
By June 2014 the rocket loan had been repaid but the account was not closed until 2016. I have checked the loan statement and have calculated that I deposited $105,305 into the loan account (in addition to the $15,000 deposit) and that [Mr Conrad] deposited to the loan account $117,191 but also withdrew the $46,122 for his legal fees and payment to his former wife.[65]
[65] Wife’s Trial Affidavit (n 3) [11].
Her claim was not challenged. The Rocket Loan was paid out in 2013, with monies the Husband received from the sale of the Town S property.[66]
[66] Husband’s Trial Affidavit (n 2) [21].
In early 2012, the parties moved from the Suburb G property to a farming property at Town E (‘the Town E farm’) owned by the Wife’s father — Mr X (‘Mr X’). The parties lived in Motor Vehicle 4, and opened a joint bank account, each contributing $50.00 per fortnight to the account. The Wife explained:
We kept separate bank accounts for most of the 12 years we were together. The Westpac rocket loan was a joint loan account, and we opened a joint bank account in 2013 at my request. [Mr Conrad] initially deposited $50,000 into the account and we both contributed $50 every week. In the year prior to our separation [Mr Conrad] transferred $50,000 from that joint account to his personal share investing account and another $30,000 was transferred to the CBA home loan for the [Town Y] property that he purchased in his sole name. This reduced the joint account from $90,000 to $15,000.[67]
[67] Wife’s Trial Affidavit (n 3) [26].
The Husband added:
When [Ms Gilbert] and I moved to the farm we set up a joint bank account in 2012. We each contributed $50 per fortnight and did not regularly use this account. At separation the balance of the account was $34,000.00. I withdrew $17,000.00 and [Ms Gilbert] withdrew the balance and closed the account.[68]
[68] Husband’s Trial Affidavit (n 2) [43].
In early 2014, the parties ceased living in Motor Vehicle 4 and begin residing in a dwelling located on the Town E farm. Prior to moving from Motor Vehicle 4 and over the years that followed, the parties renovated the dwelling and made improvements to the farm, but again, there was dispute as to the extent of the Husband’s non-financial contributions in this regard. The Husband claimed that he also made financial contributions amounting to at least $146,887.34[69] to the renovations and their lifestyle, over and above amounts reimbursed to him by the Wife[70] — the reimbursements being for his expenditure for the farm after 2019. What amounts related to ‘lifestyle’ and what related to improvements was unclear. Under cross-examination the Husband conceded that the Wife may have reimbursed him for some of his expenditure prior to 2019 but maintained that he had spent more than he was reimbursed.
[69] Ibid [42].
[70] Ibid.
The Wife gave evidence that she reimbursed the Husband for much of his injected funds,[71] but was unable to prove her position with reference to any documentary evidence — even though she claimed that she held such documents — to counter those produced by the Husband.[72] The Wife’s evidence on this point, under cross-examination, was unconvincing and I am not satisfied that she reimbursed the Husband as much as she claimed. I accept that the Husband contributed significant funds to the improvements, over and above what the Wife reimbursed.
[71] Wife’s Trial Affidavit (n 3) [13].
[72] Husband’s Trial Affidavit (n 2) and Exhibits H9-H13 inclusive.
In 2019, Mr X passed away, and in late 2019 the Wife received an inheritance worth over two million dollars, constituting the Town E farm, farming equipment, a herd of cattle, Mr X’s Motor Vehicle 1, his share portfolio and $491,500.00 in cash.[73] The bulk of the inheritance remains in place and forms a significant component of the asset pool. The Wife’s inheritance was a contribution of hers alone to the relationship,[74]notwithstanding the financial contributions the Husband made to the farm improvements.
[73] Wife’s Trial Affidavit (n 3) [21].
[74] See Kessey & Kessey (1994) FLC 92-495 at 81,149
In 2019 the Husband received an inheritance of $29,985 from the estate of his late grandfather. That was also a direct financial contribution of his to the relationship.
In 2020 the Wife helped the Husband to purchase a property, via the Conrad Investment Trust, to house his daughter at Town Y (‘the Town Y property’) for $520,000 — with the loan secured against her Suburb G property and her acting as Guarantor. 1n 2022, post-separation, the Town Y property was sold for $940,000 and the Husband received $439,648 which was paid to his CBA Award Saver account.
In 2021 the Wife purchased a property for her daughter in City O for $555,000, with a loan also secured against her Suburb G property. That property was sold in 2023, and the Wife received $80,000, part of which she used to pay her legal fees.
The parties separated in 2021, and the Husband moved into his father’s property in City Z. His father passed away shortly after, and in 2022 the Husband received a further inheritance of $223,000.
Both parties earned income during the relationship that were put towards relevant expenses.[75] The Wife accepted that she decreased her working hours to assist her father with the farm in 2017, but maintained that she always contributed an income:
[Mr Conrad] has asserted that I was without income for 8 months of the relationship. That is not true. I had full time employment except for a 4-month period when I was unemployed between [early] and [mid] 2016. During that period, I continued to receive rental income from my [Suburb G] property, I also received a redundancy and an unpaid employment entitlements package from the [W Centre]. Over 4 payments I received $57,929. Between [mid] 2016 and [early] 2017, I had paid work of 4 days a week at the […] in [Suburb G] and then in [early] 20l7 I took up part time work with [H Centre] as a [allied health worker].
[Mr Conrad] worked most of the relationship with the [W Centre]. In about 2019 he left the [W Centre] and started working with [H Centre] as the [professional] of [AA Service]. For most of the relationship our incomes were similar. For the last couple of years of the relationship [Mr Conrad] earned more than 1 did.[76]
[75] See Parshen & Parshen (1996) FLC 92-720 and Boege and Boege [2001] FamCA at 51
[76] Wife’s Trial Affidavit (n 3) [15]-[16].
The Wife’s position was not successfully challenged under cross-examination, and I accept her detailed evidence.
The Husband received a payout of $16,367 when he left W Centre. In the last year of the relationship the Wife returned to fulltime employment. The Husband maintained his employment before becoming unwell at the time of separation.
The parties tended to keep their finances separate throughout the relationship,[77] save for the money they used to meet joint expenses, the Rocket loan and the monies contributed by the Husband to the improvements of Town E and Suburb G. The separate nature of the way they kept their finances was demonstrated by the Wife reimbursing the Husband for costs he paid out for the farm, particularly after 2019. Even the joint account they set up was rarely used.[78]
[77] Ibid [20]; Husband’s Affidavit (n 2) [43].
[78] Husband’s Trial Affidavit (n 2) [43].
Post-separation, the Wife has been able to maintain most of the assets that she held at the time the parties ended their relationship. The Husband, however, has spent a part of the money he held, as he explained:
I initially lived off the funds I received from my [V Bank] investment after I separated from [Ms Gilbert]. I used these funds to buy the [Motor Vehicle 5], to pay for my living expenses.
I transferred some funds from the [V Bank] Investment for the purchase of shares, and I repaired the [Motor Vehicle 4] so it could be transported from Tasmania to Queensland. I transported my horses to Queensland. I required significant funds to reestablish myself in another state.
My father died [in] 202 1. In […] 2022, I received an inheritance from my father's estate in the sum of $223,000.
Some of these funds were applied to the purchase of a [Motor Vehicle 3].
I provided $9,000.00 of these funds to my children.
I made a lump sum contribution to my superannuation fund of $20,000.00 in June 2023. Some of these funds were loaned to the [Conrad] Trust and some were used to buy shares. A number of my [online share trading] investments in my personal account have not performed well, primarily my shares in [BB Ltd] and [DD Ltd].
I have otherwise used these funds to pay for my living expenses.[79]
[79] Ibid [45].
As to the sale proceeds of the Town Y property, the Husband explained that after tax was paid, they were invested in the share portfolio held by the Conrad Investment Trust:
The [Conrad] Trust holds a [online share trading] Portfolio, but it has also directly invested in [L Company], […] and [N Company] […].
I have also taken drawings for my living costs including repairs and insurance for the [Motor Vehicle 4], [Motor Vehicle 5] and [Motor Vehicle 3], horse vet and farrier costs, medical costs and other living costs.[80]
[80] Husband’s Trial Affidavit (n 2) [46].
The Husband also seems to have cashed in $80,000 of his superannuation,[81] and approximately $51,000 of the fund was placed into his lawyer’s trust account to meet future fees.[82]
[81] Cross-examination of Mr Conrad by Mr Trezise.
[82] Ibid
The Husband was cross-examined about his post-separation expenditure. Although he admitted to taking several trips overseas and interstate since separation, he claimed that the overseas trip was paid for by his friend and brother. No evidence was produced by his ‘friend’ or brother to corroborate his position. The Husband also did not provide any information about how he paid for numerous trips to Tasmania and a trip to Sydney from 2023 to the date of the trial. The Husband has not held employment since separation, and as such, I can readily accept that he has had to draw down on the funds available to him to meet his living costs. I have some doubt as to his claim that his ‘friend’ and/or brother met the majority of costs of his trip to Country CC, but I am unable to make any finding as to the extent of such expenditure and whether it was unreasonable. I repeat what was stated in C & C:
The parties are entitled to reasonably conduct their affairs post-separation in a manner that is consistent with properly getting on with their lives. Providing modest support for their adult children or taking not inappropriate holidays for themselves seems to fit comfortably within that description.[83]
[83] C & C [1998] FamCA 143
As can be seen, both parties made important financial contributions throughout the relationship, and to the pool as it now stands. The Wife’s greater initial contributions, together with her inheritance, did, however, eclipse the financial contributions of the Husband including those he made to the improvements to Suburb G and the farm. The Wife’s inheritance alone, has a value of at least $3,505,784, and constitutes sixty-seven (67) percent of the final asset pool,[84] at a minimum. The Wife also made an important indirect contribution by allowing the Husband to use the Suburb G property as collateral and act as guarantor, so that he could obtain a loan to purchase the profitable Town Y property. The Husband was also able to live in the Wife’s property and at the farm, which were mortgage free. I am satisfied that the Wife’s direct and indirect financial contributions were significantly greater than the Husband’s.
[84] Exhibit W3: Will and probate of the Respondent’s Father; Wife’s Trial Affidavit (n 3) [21] – This calculation was undertaken by looking at the assets she inherited with reference to [21] of her affidavit and adding together items 24,25,28,30,31,32 and 33of the asset pool. I note the figures at items 18-23, but it was unclear if these were inherited monies.
Section 90SM(4)(b) — direct or indirect non-financial contributions to property
The Wife disputed the Husband’s claim that he had made significant non-financial contributions to the maintenance and improvement of the Suburb G and Town E properties.
The Husband detailed the nature of his works with corroborating photos and invoices in his affidavit.[85] The Wife stated in her affidavit:
6.When [Mr Conrad] moved into my [Suburb G] properly in 2009 he did so rent/mortgage free. We resided in this property until 2011, and [Mr Conrad] assisted with minor improvements. I had a new kitchen installed for which I bad prepaid tradesmen. Together we removed the existing bedroom wall and changed where the bedroom door was.
…
12. …We renovated the kitchen, the bathroom, added a sunroom, a walk--in wardrobe and we built a shed at the rear. We sourced as much second-hand materials as possible, we did as much of the work ourselves as we could. Most of the kitchen materials were given to us and the tin for the shed was purchased second hand […]. We used qualified trades where needed (such as concreting, tiling, glazing, solar panel installation and carpet layers). We paid for the materials as we went.
13. [Mr Conrad] has asserted that he spent significant funds and hours on the renovations but I say that he has greatly exaggerated both the time and money he says he put in. I paid [Mr Conrad], by deposits to his account and credit card, extensive reimbursements to him for materials he had purchased for renovations and farm expenses to ensure he was not out of pocket.
14. While we lived on my father's farm we did not have to pay any rent or insurance as that was paid by my father, We jointly contributed to electricity costs until the solar was installed
…
17. In 2017 I cut back from fulltime to part time to help my father with the farm. My father had […] acres of pri.ma1y produce land with a further […] acres that were unusable land. The farm is not a cropping farm. It has always operated as a […] farm.
18. [Mr Conrad] has asse1ted that he helped with running the form but that is not true. He worked full time until our separation. My father was actively managing his own fam1 with my help until he died. In 2018 [Mr Conrad] developed an interest in horses so his time after work and on weekends was spent on his horses. My father did not want horses on his farm because of the way they destroy pastures and fencing but he relented. [Mr Conrad] paid for a backhoe to create a horse arena and for sand to be laid and I paid for fencing of the arena. [Mr Conrad] joined a " [club] " ([club]) which took up more of his time on training and preparing for […] competitions.[86]
[85] Husband’s Trial Affidavit (n 2) [12],[13],[24],[25]-[27],[33].
[86] Wife’s Trial Affidavit (n 3) [6], [12]-[14], [17]-[18].
The Husband’s position regarding the nature of his contributions, as detailed and corroborated in his material, was not successfully challenged under cross-examination. The Husband did concede that trades people were used to undertake some of the renovations:
Yes, apart concreting we had concreter come in after I prepared it but for large shed I did it[87]
[87] Cross-examination of Mr Conrad from Mr Trezise – from notes and may not be verbatim when compared to the transcript.
When asked to detail the 40-50 hours per week he claimed he spent working on the Town E property, when he was employed, he stated:
24 hrs sat and sun - we hardly left farm not many holidays and after work - I was inspired by work on the property and I hardly stopped[88]
[88] Cross-examination of Mr Conrad from Mr Trezise – from notes and may not be verbatim when compared to the transcript.
Asked if the work he did was to repay Mr X and the Wife for being able to live at Town E and Suburb G rent free, he replied:
[A]ny efforts towards the farm purely I’d seen my future on the farm and no question whether I owed anything to anyone[89]
[89] Ibid.
Under cross-examination, the Wife initially appeared reluctant to agree that the Husband contributed in the manner that he claimed but went on to make several concessions and confirmed that he was involved, and sometimes solely responsible, for undertaking numerous improvements.
In relation to the Suburb G property, she agreed that he carried out most of the works, as he detailed in his material, but emphasised that she also assisted. The nature of the works he, at a minimum ‘assisted’ with, were extensive and not ‘minor’, as she claimed in her affidavit.[90] The photos annexed to the Husband’s affidavit provided further support to his position.
[90] Wife’s Trial Affidavit (n 3) [6].
In relation to the Town E property, the Wife again conceded it was ‘possible’ that the Husband had been partially or solely involved in extensive works to dwellings on the property and other improvements. She went on to accept that he was engaged in many works including digging for cables, repairing footings, paying for and using an excavator, paying for concrete, replacing walls and re-doing wiring. He also undertook plastering, added doors and wired in the solar. He dealt with a planning issue and engaged his son and daughters’ partner — a tradesperson — to undertake certain works, including framing up windows and flooring. He also developed a horse arena on one of the paddocks.[91]
[91] Cross-examination of the Wife by Mr Gallimore.
I am satisfied that both parties contributed to the improvement and maintenance of the Suburb G and Town E properties and were involved in the renovation work and assistance on the farm. The detailed evidence of the Husband, as set out in his affidavit, and largely conceded by the Wife, makes it clear that the Husband’s contributions in this regard were significant and outweighed any recompense for living rent free at the Suburb G and Town E properties.
I am satisfied that the Husband made significant non-financial contributions as detailed in his affidavit and conclude that his non-financial contributions were greater than the Wife’s. That is not to downplay the importance of the Wife’s non-financial contributions as she stated, but the Husband’s efforts were important and must be given weight.
Section 90SM(4)(c) — contributions to the welfare of the family, including contributions as homemaker or parent
The Court must not give the parties' contributions to the family, including those as homemaker and parent, token weight. In Dawes & Dawes [1989] FamCA 71 the Full Court stated:
73.Although it is difficult, as it always is in such cases, to put one's finger squarely on what led his Honour to so undervalue the Wife's contribution, we think that one significant matter which did so was that he failed to give any weight to the fact that the Wife's performance of her role as homemaker and parent during the 30 years of cohabitation was not just a contribution under s.79(4)(c) (which he subsequently recognized to some degree) but was also a significant contribution under s.79(4)(b). That point was made by the Full Court (Nicholson, C.J., Murray and Buckley, JJ.) in In the Marriage of Napthali (1988) 13 Fam LR 146 at p 151, where their Honours said:-
151.Turning now to the second ground of appeal, (which was that 'the court erred in law in failing to take into account contributions made by the Wife during the marriage as homemaker and parent') it is apparent that nowhere in her Honour's judgment does she consider the contribution of the Wife to the business assets as a home—maker and parent. It is clear that the Wife did perform this role and nowhere in the evidence or in the submissions was any criticism directed at her capacities in this regard. It is to be noted that in Mallet v. Mallet [1984] HCA 21; (1984) 9 Fam LR 449; (1984) FLC 91—507, the High Court whilst rejecting the proposition of a presumption of equality, approved statements by this Court that the purpose of s 79(4)(b) is to give recognition to the position of the house Wife who by her attention to the home and the children frees her Husband to earn income and acquire assets and also approved the proposition that the contribution made by the Wife as a home—maker and parent should be recognised not in a token way but in a substantial way: see Gibbs C.J. at Fam LR 451; FLC 79,111; Mason J. at Fam LR 461—2; FLC 119—20.”[92]
(Emphasis added)
[92] Dawes & Dawes [1989] FamCA 71 [73] (Lindenmayer, Strauss and Cohen JJ).
The Husband claimed that he and Wife shared the domestic duties[93] — a position not challenged by the Wife. I accept the Husband’s evidence in this regard.
[93] Husband’s trial Affidavit [44].
Conclusion regarding the parties’ contributions
Mr Gallimore submitted that, notwithstanding the Wife’s greater financial contributions, significant weight must be given to the Husband’s financial and non-financial contributions, particularly those made to the farming property that the Wife inherited. Contributions should therefore be assessed 40/60 in the Wife’s favour.[94]
[94] Case Outline of Mr Conrad 6 December 2024 (‘Husband’s Case Outline’) [18] and [21].
Mr Trezise submitted that the Husband’s position regarding contributions is untenable having regard to the significant assets that the Wife brought into the relationship at its commencement and from her inheritance — which, on his calculation, accounts for 83 percent of the existing property pool.[95] Further, the Wife’s inheritance has been largely preserved, whilst the Husband’s monies have been spent post-separation. In the circumstances, the contributions of the parties should be assessed 85/15 in the Wife’s favour.[96]
[95] Mr Trezise’s Oral Submissions 16 December 2024.
[96] Mr Trezise’s Oral Submissions 16 December 2024 – Mr Trezise noted that in her case outline the Wife refers to the contributions being assessed as 75/25 in her favour, but this was considering a different approach to the asset pool.
Consideration
Both parties made significant financial and non-financial contributions during, and post the relationship, resulting in an asset pool now valued at $5,167,673 — a large pool where 10% is worth $516,767. The financial contributions of the Wife were far higher than the Husband’s, with the lion’s share of the asset pool being made up of property introduced by her.[97] Her inheritance, worth at least $3,505,784, but potentially $3,750,502.40 — or approximately seventy-two (72) percent[98] of the pool — was received late in the relationship. Further, she ultimately introduced more capital into the relationship and now holds assets worth $4,565,074, a significant proportion of which was introduced by her to the relationship.
[97] Of a pool of $5,167,673 the Wife holds assets (including superannuation) amounting to $4,565,074 approximately 88% of the pool. A significant proportion of that appears to be introduced by her, while the Husband’s assets stand at $602,599, including the Motor Vehicle 4 – J1 (n 62).
[98] This figure is calculated by adding items 23 and 24 to the sum of $3,505,784 as previously calculated. It is possible but not definite that these items derived from her inheritance.
Weight must, however, be given to the important financial and non-financial contributions of the Husband to the maintenance and improvement of both the Suburb G and Town E properties. He also contributed his income to meet expenses of the relationship and made other non-financial contributions over a twelve-year relationship.
Having assessed all the contributions of the parties since 2009, when cohabitation commenced, I conclude that their contributions be assessed as 78% to the Wife and 22% to the Husband. In dollar terms this results in the Wife having an entitlement to assets valued at $4,030,784.94 and the Husband $1,136,888.06 — a differential of $2,893,896.88.
Section 90SM(4)(d)-(g), including s 90SF(3) — other factors
It is not the task of a Court with jurisdiction under Part VIII and Part VIIIAB to engage in social engineering under section 79(4)(d)–(g) or (90SM(4)(d)-(g)) — that is, to serve any ‘moral’ or ‘charitable’ (but non-legal) ends outside the bounds of section 79 (or section 90SM).[99] The Full Court in Beck & Beck (No 2) (1983) FLC 91-318 explained that:
[i]t is the financial consequences of all of the relevant matters that are to be taken into account and the section is so drafted to effect this purpose while excluding matters of conduct in a moral or non-financial sense.[100]
[99] Clauson & Clauson (1995) FLC 92-595, 81,912.
[100] Beck & Beck (No 2) (1983) FLC 91-318 78, 167–78,168.
Whether in relation to maintenance or property settlement, the Court cannot assess or account for the section 75(2) (or section 90SF(3)) factors without satisfying itself that it bears upon a party’s financial circumstances.[101]
Section 90SM(4)(d) – the effect of any proposed order upon the earning capacity of either party to the de facto relationship
[101] Jacobson & Jacobson (1989) FLC 92-003, 77,178, at which Nygh J remarks that there ‘cannot be any doubling up as between the adjustment in capital position of the parties, which is implicit in sec 75(2) factors [in the context of s 79], and making provision for the periodic needs of a party who suffers from an inability to support [themselves] pursuant to sec 72 of the Act’. Both assessments, on his Honour’s remarks, require an assessment of the financial consequences of the factors considered. See also Sigley & Cullen (No 3) [2015] FamCA 825, [42], [105], as an example, in which Cronin J discusses the Applicant ’s health as it affected her academic studies, which in turn may have affected her employment prospects.
The Full Court in Beck & Beck (1983) FLC 91-318 defined ‘earning capacity’ for the purposes of section 75(2)(k) and therefore section 90SF(3)(k), applicable the Act generally, as:
a capacity to obtain income which could be used to provide maintenance … and not merely as current income from personal exertion or from the use of personal skills.[102]
[102] Beck & Beck (n 100) 78,166 (Evatt CJ, Emery and Hase JJ).
Both parties proposed that the Husband receive a cash sum from the Wife. Whatever amount he receives, the money may assist him to meet his expenses while he trains as an allied health worker.
Section 90SM(4)(e) – the matters referred to in subsection 90SF(3) so far as they are relevant
Section 90SF(3)(a) — the age and state of health of each of the parties
The Husband is 63 years of age, and the Wife is 61. The Wife continues to work but intends to retire in mid-2025. There was no evidence that her ability to continue to work, including on the farm, is impeded by any factor, including the state of her health.
The Husband has not worked since separation. In mid-2021 he suffered a mental health event, that left him suffering anxiety and panic attacks.[103] He also continues to suffer pain from an injury that required surgery:
50. I injured my […] in 1995 and had a [surgery] […] …I see a psychologist regularly.
51. I struggle with processing and recalling information. I can work for around 30 minutes before I need to take a break.
I am not employed and am presently receiving a Job Seeker pension.
I am however, studying to receive [qualifications in allied health care]. If I can pass this [course] program, I may be able to return to employment in some respect, but it is not guaranteed.[104]
[103] Husband’s Trial Affidavit [38].
[104] Ibid [50],[51].
The Husband’s evidence that he is currently unable to work was not successfully challenged. He said that he has an exemption form Centrelink from having to look for work until early 2026, and hopes to finish his training as an allied health worker,[105] at the end of 2025, and then work part-time.
Section 90SF(3)(b) — the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
[105] Cross-Examination of Mr Conrad by Mr Trezise.
In Clauson & Clauson (1995) FLC 92-595, the Full Court stated:
It has long been recognised that in most cases the most valuable “asset” which a party can take out of the marriage is a substantial, reliable, income-earning capacity: see Best and Best (1993) FLC 92-418 at 80,295.[106]
[106] Clauson & Clauson (n 99), 81, 911 (Barblett DCJ, Fogarty and Mushin JJ).
Their Honours further remarked that:
In addition, it should not be forgotten that the payment of child support in no way compensates the custodial parent for the loss of career opportunity, lack of employment mobility and the restriction on an independent lifestyle which the obligation to care for children usually entails: see Langford (16 January, 1995, Full Court, not reported).[107]
[107] Ibid.
The Husband is currently receiving unemployment benefits as he retrains as an allied health worker. He also receives monies from the Conrad Investment Trust on an ad hoc basis. He claims that his expenses exceed his income each month,[108] which explains, in part, his expenditure from his investments post separation.
[108] Husband’s Financial Statement 18 November 2024, Part O, note C.
The Husband expects to receive a further inheritance from his late mother’s estate, in the amount of $120,000-$125,000.[109]
[109] Ibid Part O Note F.
The Wife receives income from her employment, investment properties and invested monies totalling $2,396 per week. She agreed after the expenses of tax and superannuation (to which voluntary contributes $350 per week) she is left with approximately $1,205 to meet her necessary expenses but added that farm expenses also needed to be considered.[110] Her Financial Statement indicated that her income was largely eaten up by expenses.[111]
[110] Examination and Cross-Examination of Ms Gilbert.
[111] Financial Statement of Ms Gilbert 15 August 2023 (‘Wife’s Financial Statement’) Part B.
The Wife’s earning capacity and earnings are greater than Husband’s. Even upon her intended retirement, her resources and income will likely remain higher than his.
Section 90SF(3)(c) — whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years
This is not a relevant factor.
Section 90SF(3)(d) — commitments of each of the parties necessary to enable them to support themselves and a child or another person that the party has a duty to maintain
I have also addressed this issue.
Section 90SF(3)(e) — the responsibilities of either party to support any other person
This factor is not relevant.
Section 90SF(3)(f) —the eligibility of either party for a pension, allowance or benefit under any law or superannuation fund, and the rate of any such pension, allowance or benefit being paid to either party
The Husband receives unemployment benefits of approximately $335 a week. He intends to work part-time when he finishes his training as an allied health worker.
Section 90SF(3)(g) — a standard of living that in all the circumstances is reasonable
Both parties maintained a high standard of living during the relationship. The Husband has been living in the Motor Vehicle 4 since separation in Queensland and has had to use his investments to meet his living expenses. His financial position will improve as a result of the monies he will receive from his inheritance and from the property order to be made by this Court. There is no evidence that the Wife’s standard of living has diminished since separation.
Section 90SF(3)(h) — the extent to which a party’s earning capacity could be increased by enabling them to undertake a course of education or training or to establish themselves in a business or otherwise to obtain an adequate income
The Husband is engaged in allied health training which will be completed at the end of 2025. He hopes that the training will allow him to work part-time.
Section 90SF(3)(j) — the extent to which a party has contributed to the income, earning capacity, property and financial resources of the other party
Both parties made important financial and non-financial contributions during their relationship as detailed earlier on these Reasons. Each assisted the other to earn income, maintain their assets and build the assets of the relationship. They were able to holiday together for an extended period and maintain a good lifestyle. That said, it cannot be ignored that a significant proportion of the asset pool is made up of the Wife’s inheritance received late in the relationship.
Section 90SF(3)(k) — the duration of the de-facto relationship and the extent to which it has affected the earning capacity of each party
The parties’ relationship subsisted for over twelve years. The Wife continues to work, and the relationship has not impacted on her ability to earn an income. The Husband’s inability to work relates to injury and illness.
Section 90SF(3)(l) — the need to protect a party who wished to continue that party’s role as a parent
This is not a relevant factor.
Section 90SF(3)(m) — if either party is cohabiting with another person—the financial circumstances relating to the cohabitation
The Wife says that she is not cohabiting with any other person. The Husband states the same, although the Wife believes him to be in a new relationship.[112] There is no evidence that any other person contributes to either party’s income or expenses.
Section 90SF(3)(n) — the terms of any order made or proposed to be made under section 90SM in relation to the property of the parties
[112] Wife’s Trial Affidavit (n 3) [40].
I have determined that the contributions of the parties be assessed as 78% to the Wife and 22% to the Husband. In dollar terms this results in the Wife having an entitlement to assets valued at $4,030,784.94 and the Husband $1,136,888.06 — a differential of $2,893,896.88.
Section 90SF(3)(o) — the terms of any order or declaration made, or proposed to be made, under this Part in relation to a party (in relation to another de facto relationship), persons in that other de facto relationship, or the property or vested bankruptcy property thereof
This factor is not relevant.
Section 90SF(3)(p) — the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to a party, persons in a marriage with the first-mentioned party, or the property or vested bankruptcy property thereof
This factor is not relevant.
Section 90SF(3)(q) — any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship
This factor is not relevant.
Section 90SF(3)(r) — any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account
As indicated, I also take into account, under this section, the $53,195 in legal fees paid by the Husband, over and above those paid by the Wife.
Section 90SF(3)(s) — the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship
This factor is not relevant.
Section 90SF(3)(t) — the terms of any financial agreement that is binding on a party to the subject de facto relationship
This factor is not relevant.
Section 90SM(4)(f) – any order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship
This factor is not relevant.
Section 90SM(4)(g) — any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the de facto relationship
This factor is not relevant.
Conclusion regarding the matters referred to in s 90SM(4)(d)-(g)
Mr Trezise submitted that there should be an adjustment in the Husband’s favour of five percent, resulting in an overall division of 80/20 in the Wife’s favour. In dollar terms this results in the Wife paying the Husband $366,991,[113] which leaves him with total assets exceeding one million dollars.
[113] W4 (n 1).
Mr Gallimore also suggested a five percent adjustment, resulting in a 45/55 division in the Wife’s favour. He confirmed, however, that his client was hoping to receive the set amount of $1,337,312[114] from the Wife, which, in his case, was closer to a 37.5/62.5 division in the Wife’s favour.[115]
[114] Amended Application for Final Orders filed by Mr Conrad 29 April 24.
[115] Mr Gallimore’s Oral Submissions.
Having considered all the evidence, I will make a five (5) percent adjustment to the Husband for the matters referred to in s 90SM(4)(d)-(g). In reaching this conclusion I have considered several matters including the income and capital disparity of the parties, whilst also noting that the Husband will receive a further inheritance of approximately $120,000-$125,000 and should be able to earn some income in the future. I also note the legal fees the Husband has spent — over and above those spent by the Wife — that likely came from monies that were otherwise available for distribution. I also cannot ignore that much of the parties’ wealth is derived from an inheritance received by the Wife late in the relationship.
Conclusion regarding the division of the parties' net assets
Given my findings, the Wife is entitled to 73% and the Husband 27% of the asset pool. In dollar terms this results in the Wife having an entitlement to assets valued at $3,772,401.29 and the Husband $1,395,271.71 — a differential of $2,377,129.58.
What is the just and equitable exercise of discretion?
After assessing contributions and other factors, this Court must consider whether, in light of those assessments and the actual property to be divided, the proposed exercise of the discretion under section 90SM is just and equitable. In Clauson, the Full Court stated:
… that exercise is not done in isolation; it is done against the background of conclusions already arrived at on contributions, the consequence of which will be in some cases to intrude into the s. 75(2) exercise because of the dimension of the former conclusion and the total pool.
It is largely for that reason that it is ultimately necessary to stand back from the process and reach a conclusion which appears overall to be a just and equitable exercise of the discretion.[116]
[116] Clauson & Clauson (n 99) 81, 911-81, 912.
This was a relationship where much of the parties’ wealth was accumulated via the Wife’s inheritance, received late in the relationship. As a result of my determination, the Husband will retain the assets in his possession valued at $602,599 (including superannuation) plus a cash payment from the Wife of $792,672.71. I also note that he will soon receive a further amount of $120,000-$125,000. The Wife’s healthy financial position will reduce by the amount payable to the Husband, but she will remain with substantial cash, real estate, equipment and superannuation assets.
Standing back, I am satisfied that a 73/27 division of the net assets in the Wife’s favour, results in a just and equitable outcome.
I will make the Order set out at the commencement of these Reasons.
I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull. Associate:
Dated: 3 April 2025
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