Dawson & Barnaby - [2024] FedCFamC2F 1102

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dawson & Barnaby [2024] FedCFamC2F 1102

File number: MLC 1455 of 2023

Judgment of: JUDGE CHAMPION

Date of judgment: 16 August 2024

Catchwords: FAMILY LAW – Property – Where both parties had substantial property before the marriage and Husband had relatively greater assets than the Wife – Short relationship of approximately three years – Where three pool approach – First pool comprised of assets each party owned before the relationship and neither party sought to alter property in first pool – Where third pool comprised parties’ superannuation and neither party sought an order altering interest in superannuation in the third pool – Where property in the second pool comprised of property acquired during the relationship principally comprised of two pieces of real estate purchased to earn short term rental income – Finding that it was just and equitable to alter interests in the property in the second pool –Where Husband’s pre-relationship assets necessary for the parties to procure finance to purchase real estate – Where Wife made relatively greater contribution to the purchase of the real estate by increasing debt secured against her pre-relationship assets – Where no special rule applies to the assessment of contributions in a short marriage – Where contributions assessed 67.5%/32.5% in favour of the Wife – Section 75(2) – No further adjustment because of s. 75(2) factors

Legislation: Family Law Act 1975 (Cth) ss. 4AA, 75, 79, 81, 106A

Cases cited:
Bachman & Self [2023] FedCFamC1A 50

Brandt & Brandt (1997) FLC 92-758

Cabbell & Cabbell [2009] FamCAFC 205

Candle & Falkner (2021) FLC 94-069

Clauson & Clauson (1995) FLC 92-595, 81,911

Fontana & Fontana [2018] FamCAFC 63

Frederick v Frederick (2019) FLC 93-900; [2019] FamCAFC 87

Gadhavi & Gadhavi (2023) 67 FamLR 174; [2023] FedCFamC1A 117

Hickey & Hickey & Attorney-General (Cth) (2003) FLC 93-143

In the marriage of Bushby (1988) FLC 91-919

Marcin & Marcin (2020) FLC 93-956

Norbis & Norbis (1986) 161 CLR 513

Petrellis & Petrellis [2023] FedCFamC1A 104

Q & Q [1999] FamCA 1314

Stanford v Stanford (2012) 247 CLR 108

Stella & Stella [2023] FedCFamC1F 1092

Trevi & Trevi (Re-Exercise) [2019] FamCAFC 51

Division: Division 2 Family Law

Number of paragraphs: 189

Date of last submissions: 24 May 2024

Date of hearing: 16–17, 22 and 24 May 2024

Place: Melbourne

Counsel for the Applicant: Mr McIntyre

Solicitor for the Applicant: Bentleys Barristers and Solicitors

Counsel for the Respondent: Mr Williams

Solicitor for the Respondent: Carew Counsel Solicitors
ORDERS

MLC 1455 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS DAWSON

Applicant

AND:
MR BARNABY

Respondent

ORDER MADE BY:

JUDGE CHAMPION

DATE OF ORDER:

16 AUGUST 2024

THE COURT ORDERS THAT:
Disbursement of funds held in Sayer Jones trust account
1.That not earlier than 30 days and not later than 60 days after the date of this order (60 days from the date of this order being the Due Date) the monies held in the interest-bearing Controlled Monies Account with Sayer Jones be applied as follows:
(a)first, $23,691.04 to the State Revenue Office or such other amount as may be due as to land tax; and
(b)second, the balance to the Husband.

Wife’s payment to the Husband
2.That not later than the Due Date, the Wife make a payment to the Husband of $200,319 (Payment).

Transfer of control of Company H and the associated trust from the Husband to the Wife
3.That contemporaneously with and conditional on the Wife’s making of the Payment, the Husband shall do all such acts and things, in his capacity as the sole director of Company H, trustee for the Company H Trust, and appointer of the Company H trust:
(a)to resign as a director of Company H and appoint the Wife and/or her nominee in his stead;
(b)transfer all shares he owns in Company H to the Wife and/or her nominee; and
(c)resign as appointor and appoint the Wife and/or her nominee as the sole appointor of the Company H Trust.

4.That not later than the Due Date and conditional on the Wife making the Payment, the parties do all such acts and things as required to change the name of Company H and the Company H Trust to remove the Husband’s name from the company and Trust.
5.That in the event of dispute as to any matter as to the transfer of control of Company H and/or the Company H Trust under Orders 3–4 above, the parties have liberty to apply.

Default
6.In the event that the Wife does not pay the sum of $200,319 on or before the Due Date, the parties will do all such acts and things, and as to the Husband including in his capacity as the sole director of Company H, to list the Property E for sale forthwith and for the purpose of effecting the sale the following shall apply:
(a)the Property E shall be listed for sale by private treaty with Ms L of M Group;
(b)the Property E shall have a listing and reserve price as agreed and, failing agreement, $600,000;
(c)the parties shall facilitate the sale of the Property E including (without limiting the generality of the foregoing):
(i)making the keys available to the Agent;
(ii)making available to the Husband a key to enable the Husband to inspect the premises prior to sale;
(iii)allowing the inspection of the property at all reasonable times the Agent requests;
(iv)ensuring the property, including the grounds, are in a neat and clean condition at the time of inspection by the Agent and prospective purchasers;
(v)signing any documents the Agent requests in relation to the listing for the sale of the property;
(vi)removing any caveat lodged not less than seven days prior to settlement;
(vii)instructing the Agent to forward any report about the property and/or offers of sale to both parties.

7.That upon settlement of the sale of the property at Property E the proceeds of sale be applied as follows:
(a)firstly, to pay all costs, commissions and expenses of the sale;
(b)secondly, to discharge any other encumbrances affecting the Property E;
(c)thirdly, the sum of $20,000 be set aside for the purposes of winding up Company H and the Company H Trust and any funds leftover after the winding up be divided 67.5% to the Wife and 32.5% to the Husband;
(d)fourthly, to pay the Husband so much of the Payment as maybe outstanding plus interest pursuant to rule 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth); and
(e)fifthly, the balance to the Wife.

Capital gains tax
8.That as soon as practicable each party pay their equal share of the outstanding capital gains tax arising from the sale of the property situate at Property F on the basis that the capital gain is distributed equally between the parties.

Engagement of an accountant as to Company H’s accounts
9.That the parties engage Mr N of O Firm (O Firm), or such other person as the parties agree in writing, to finalise the accounts of the Company H and the Company H Trust.
10.That the parties pay in equal shares O Firm for preparing accounts up to and including 30 June 2023 for Company H or the associated trust and or for the purposes of these proceedings.
11.If the Wife makes the Payment and the Husband transfers control of Company H and the associated trust to the Wife and/or her nominee, the Wife pay any expenses of O Firm for the preparation of accounts after 30 June 2023.
12.Alternatively to Order 11, if Company H and/or the Company H Trust is wound up the parties pay the reasonable professional expenses of O Firm as to the winding up of Company H and/or the Company H trust:
(a)first, by the application of the funds set aside under Order 7(c); and
(b)second, in the event those funds are exhausted, in equal shares.

Section 106A order
13.In the event that a party neglects, fails or refuses to execute a deed, document or instrument as required under these orders, an officer of the Federal Circuit and Family Court of Australia, in the Melbourne Registry, is hereby authorised, pursuant to section 106A of the Family Law Act 1975 (Cth), to do all acts and things necessary to give validity to the deed, document or instrument, including executing the deed, document or instrument on behalf of the party.
14.For the purpose of Order 13 above, an affidavit setting out the defaulting party’s failure to comply with the orders shall be sufficient evidence of that party’s neglect and default.
15.If either the Applicant or Respondent is required, as a consequence of a breach of the above order, to make an application to the Court under section 106A of the Family Law Act 1975 (Cth), then the defaulting party will be liable for the costs of the Application.
16.If a defaulting party refuses or neglects to sign or execute a document within 14 days of a written request to do so by the non-defaulting party, but such document is unable to be signed by a Registrar of the Court due to the requirements of PEXA, the non-defaulting party shall nominate a solicitor authorised to sign documents for PEXA transfers and such solicitor shall sign on behalf of the defaulting party upon written request from the non-defaulting party’s solicitor to do so upon provision of a sealed copy of this Order.

Property the Wife will retain
17.The Wife (or entities she may nominate) will retain the following property:
(a)subject to her making the Payment in Order 2 above, the real estate at Property E (Property E);
(b)all furniture or other chattels at Property E;
(c)any interest she has in Motor Vehicle 1;
(d)any membership she has in Club P;
(e)the real estate at Q Street, Suburb B;
(f)the real estate at R Street, Suburb D;
(g)the net proceeds of sale from S Street, Suburb C;
(h)any amount outstanding in any bank account in her name;
(i)any interest she has in any motor vehicle registered in her name;
(j)any investment in T Company;
(k)any interest she has in any entity which operates the business known as U1 Business;
(l)any interest she has in an entity which operates the business known as U2 Business (t/as V Business); and
(m)any superannuation in her name.

Property the Husband will retain
18.The Husband (or entities he may nominate) will retain the following property:
(a)real estate at W Street, Suburb J;
(b)any interest he has in Units at X Street, Suburb K;
(c)subject to orders 3- 5 above as to his shareholding in Company H, any shareholdings in his name;
(d)any amount outstanding in any bank account in his name;
(e)any interest he has in any motor vehicle registered in his name; and
(f)any superannuation in his name.

Injunction to remove social media posts
19.Pursuant to s. 114 of the Family Law Act 1975 (Cth), the Wife forthwith remove all social media posts that identify the Husband or the family court proceedings and is hereby be restrained by injunction from ever identifying the Husband in any future social media posts.

Miscellaneous
20.Unless otherwise specified in these orders, and save for the purpose 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 other property (including choses-in-action) in the possession of such party as at the date of these orders;
(b)each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(c)insurance policies remain the sole property of the owner/beneficiary named thereon;
(d)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;
(e)each party be solely liable for any liability, including any tax debt, in their names; and
(f)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

21.Pursuant to s. 81 of the Family Law Act 1975 (Cth), the parties intend these orders shall as far as practicable finally determine the financial (and other) relationship between them and avoid further proceedings between them.

Costs
22.Save as to costs, all extant applications are 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
JUDGE CHAMPION:
WHAT IS THE NECESSARY BACKGROUND?

Ms Dawson (the Wife) seeks orders altering the parties’ property interests under s. 79 of the Family Law Act 1975 (Cth) following her final separation from Mr Barnaby (the Husband).
I have found that the parties were a couple from July 2019 until mid-September 2022. They married during that period in 2020. Each of them was 48 years old when their relationship commenced and 52 years old when the relationship broke down. The Wife had 3 children from a previous relationship. The Wife’s children were aged about 18, 12 and 8 when the relationship ended. The Husband has no children.
The Wife is a finance professional. She has a business and I have found that she has an ongoing involvement in a dog breeding and sale business. She derives very modest income from the two businesses. The Husband has a medical condition. I accept he is unable to work.
Pool A, Pool B and Pool C: Pre-relationship property (Pool A); Property acquired during the relationship (Pool B) and superannuation (Pool C)
It is convenient to categorise the property into three pools: Pools A, B and C.
The first pool (Pool A) is the property each party owned before the relationship started. Each party owned substantial property before the relationship started: the Husband owned net property before the relationship with a value of slightly more than $2,000,000. He had no debts. The Wife owned net property before the relationship with a value of slightly more than $1,000,000 even allowing for the fact that she had substantial debts in the nature of mortgages secured against real estate in Suburb B, Suburb C and Suburb D. Of course, between 2019 and trial, the value of the parties’ Pool A property has changed. As is set out in the reasons below, I have found that the Wife’s total net property in Pool A has a value of $1,027,505. The Husband’s Pool A assets have a net value of $2,297,164. Neither party seeks an order altering their interests in property in Pool A.
The second pool (Pool B), to which I will return shortly, was principally comprised of two real estate parcels at Property E and Property F, both close to Location G. The parties acquired these properties during the relationship at least in part to earn short-term rental income. It is the alteration of the parties’ interest in that property with which this case is concerned.
The third pool (Pool C) is the parties’ superannuation. Neither party seeks a superannuation splitting order as to the superannuation in Pool C. Each party will retain their own superannuation. The Husband will retain superannuation of approximately $407,868 (Balance sheet at Annexure A, items 48 and 49). The Wife will retain superannuation of $78,463 (Annexure A, items 46 and 47).
Company H
A company, Company H. (Company H) acquired both the Property E and Property F properties. In late 2020 the parties incorporated Company H for the purpose of acquiring Property E. The Husband is the sole director and shareholder of Company H. I accept that the parties’ approach is appropriate, namely that I “look through” the corporate vehicle and treat the property owned by Company H as owned jointly by them. Company H is the trustee of a trust. The parties did not disclose any issue about its trustee status or the trust except to say that it may affect some capital gains tax issues. I therefore put those trust facts to one side.
Property E
In late 2020 Company H acquired Property E. The transaction settled in late 2020. The purchase price was $420,000. Property E’s agreed current value is $600,000 (Annexure A, item 1). Initially, there was a mortgage of $302,000 (Ex. R19). The mortgage was discharged from the net proceeds on the sale of the second property (Property F, below) and Property E is now owned unencumbered. During the period it has been owned, Company H derived income from short-term rentals of Property E. Company H remains the registered proprietor of Property E. The Wife wishes to retain ownership of Property E. The orders I will make will provide her with that opportunity, but that will mean that the Husband receives the residual funds held in the lawyers’ trust account ($264,004) and, in addition, the Wife will make a cash adjustment payment to the Husband of $200,319. If she does not make that payment, Property E will need to be sold.
Property F
In late 2021, approximately one year after the purchase of Property E, Company H purchased Property F for $2,000,000. The Wife funded the 10% deposit of $200,000. In addition, she funded the purchase by increasing her debt secured against her pre-relationship real estate. Company H borrowed approximately $1,375,000 to pay the balance (Ex. R20). The Husband was the sole guarantor of the loan.
Following the relationship’s breakdown, by a contract made in early 2023, the Husband unilaterally sold Property F for $3,000,000.
Given Company H had purchased the property for $2,000,000 in late 2021 and it was sold less than 18 months later in early 2023 for $3,000,000, there was a capital gain. The Property F sale settled in early 2023.
The debt under the Property F mortgage grew whilst Company H owned Property F. After costs and the discharge of the mortgage, net sale proceeds of $1,564,734 were paid into a lawyers’ trust account.
Subsequently, following court orders made on 1 May 2023, on 22 May 2023, $303,661 from the trust account was applied to discharge the Property E mortgage.
By court orders made on 1 May 2023, and subsequently, $909,549 has been applied from the lawyers’ trust account by way of part property settlement for both parties. The Wife has received $784,549 (Annexure A, items 32, 34 and 35). The Husband has received $125,000 (Annexure A, items 31 and 33). It was common ground that the amount still held in the trust account is $287,695 (Annexure A, line 7). I will make orders, however, that the first payment from the residual funds held will be to discharge a land tax liability of Company H of $23,691 — which I regard as a joint liability — which will reduce the available funds in the trust account to $264,004.
Other Pool B property
There are some minor additional items on the balance sheet in Pool B. There is some furniture at Property E (Annexure A, item 6). I have also found that the Wife has property in the Club P and Motor Vehicle 1 which she acquired with matrimonial assets (Annexure A, items 10 and 11). Each of these items needs to be taken into account in the reckoning.
The Wife’s two businesses: U1 Business (professional business) and U2 Business (dog business)

At trial, there was dispute about the value of two businesses which the Wife owns or has owned. The businesses had very similar names which must be distinguished one from another. First, she owns a professional business, “U1 Business”. She derives a very modest income from it. She says her personal exertion is directed not to the business but to the short-term rental business at Town Y. The second business was “U2 Business” trading as V Business, a business in the breeding and sale of dogs. The Wife contended (and the Husband disputed) that in mid-2021 she had sold the dog business to Ms Z. I have found – for the reasons below - that despite her denials the Wife retains some stake in the Dog Business. Neither business was valued. Both businesses were loss-making. In summary, it was not proved that either business had any value that ought to be included on the balance sheet.
The Wife’s position
As noted, the orders of both parties focused nearly exclusively on Property E and the Property F proceeds.
The Wife dealt with “Pool B” property on an asset-by-asset basis. As explained below, particularly in circumstances in which the net proceeds of Property F were applied in part to discharge the Property E mortgage, and the orthodox position that it is not necessary to measure a party’s contribution referable to the current status of a particular asset, I have found that the parties’ contributions were “blended” and a global approach to the assessment of contributions to the pool B assets is appropriate.
The Wife submitted that the appropriate orders are that she receive 90% of the net value of Property F and the Husband 10%. She submitted that she should receive 76.2% of the value of Property E and the Husband 23.8%. The percentage precision of her Property E proposal was based on a mathematical calculation of relative contributions. As to Property F, as to the proposed 90%/10% proposed alteration in her favour she relied on her payment of the deposit of $200,000 and the increase in mortgage debts she accrued secured against her pre-relationship real estate. She also relied on her contribution by way of an increase of her mortgage debts secured against real estate she owned before the relationship of at least $475,000. The Wife submitted that there should be no further adjustment under s. 75(2) in favour of the Husband.
I have not accepted the Wife’s position. In summary, I do not accept that mathematically she made 76.2% of the contributions to Property E. In any event, contributions ought to be assessed holistically not mathematically. As to Property F, although I have given significant weight to her contribution to the purchase price by increasing her debt secured against her pre-relationship assets in the absence of a like contribution from the Husband, her position did not give adequate weight to: first, the necessity of the Husband’s unencumbered pre-relationship assets being a necessary prerequisite to procuring finance; second, the Husband’s sole guarantee of the debt; or, third, the Husband’s non-financial contributions. In addition, the parties bought both properties in a joint and shared endeavour during the relationship. Both properties appreciated in capital value. My assessment of the evidence is that the appreciation in the capital value of the properties was (largely) a result of external market forces rather than a particular contribution of either party. In circumstances in which the parties bought both properties as part of a shared endeavour they, by and large, ought both to share in the fruits of the capital appreciation of the value of those properties.
The Husband’s position
In his Outline of Argument, the Husband submitted that the parties’ interests in the Part B property pool should be altered 50%/50%. In his Outline of Argument, he further submitted that there should be a 5% adjustment in his favour under s. 75(2) because his medical condition means he has not capacity for future gainful employment. The overall division he sought was 55%/45% in his favour.
I have not accepted the Husband’s position as it does not give adequate weight to the Wife’s sole provision of $675,000 as a contribution to the purchase price of Property F, when he did not encumber his premarital assets as she did. It was the Wife’s $675,000 that was instrumental in the purchase of Property F and laid the foundation for the purchase and the ensuing capital gain.
The structure of the balance of these reasons
In terms of the structure of the balance of these reasons, the first dispute concerned the identification of the Pool B property which comprised the real estate at Property E, the net sale proceeds of Property F, the “U1 Business” and the Dog business and some disputed miscellaneous personal chattels.
The second dispute — and the principal dispute in this proceeding — concerned the assessment of the parties’ contributions to the Pool B property. To encapsulate the essential elements of that dispute, on the Wife’s side she submitted that her funding of the purchase of Property F — by increasing her mortgage debts secured against her pre-relationship property by at least $675,000, in circumstances in which the Husband made no like contribution — means that contributions would be assessed very substantially in her favour. Approaching the matter on an “asset by asset” basis, she submitted that contributions as to Property F should be assessed 90%/10% in her favour. In stark contrast, the Husband emphasised the value of his contributions, particularly, the necessity of the availability of his pre-relationship unencumbered assets as a prerequisite to procuring finance and the fact that he stood as the sole guarantor of the debt.
The third dispute was about whether there ought to be an adjustment in favour of the Husband because of his incapacity for work consequent on his medical condition, as a factor to consider under s. 75(2).
The fourth dispute concerned the orders to give effect to any division of property I found to be appropriate, just and equitable.
Summary
In summary, I have found that there is Pool B property with a value of $1,813,300 to be distributed between the parties. The percentile division of this Pool B property ought to be 67.5%/32.5% in favour of the Wife. Expressed in dollar terms, the Wife will receive $1,223,977. The Husband will receive $589,323. The difference between them is the amount of $634,654.
The Wife’s contributions of at least $675,000 to the purchase of Property F in the absence of a like contribution from the Husband is given a very significant weight in the context of the myriad factors in the contributions analysis. There will be no adjustment under s. 75(2). I accept the Husband has a medical condition and is unable to work. Nevertheless, the Husband will retain in excess of $2,000,000 of assets in Pool A, with a substantial income earning potential without depleting his capital. His Pool A assets have a value approximately double that of the Wife. He is debt-free. His superannuation is very much greater than the Wife’s.
WHAT IS THE PROPERTY AVAILABLE TO BE DIVIDED?
As noted, the parties did not seek orders altering the interests in property they owned before the relationship (Pool A) or their superannuation (Pool C). As a result, the controversy I must quell specifically concerns the Pool B property acquired during the relationship. Nonetheless, s. 79 directs my attention to all the parties’ property in determining what orders are appropriate, just and equitable. Further, the appropriate orders as to the Pool B property are informed by what property the parties own outside Pool B: their pre-relationship assets and superannuation.
I have set out in Annexure “A” to these reasons a complete balance sheet.
Annexure “B” is a table of the Wife’s Pool A assets.
Annexure “C” is a table of the Husband’s Pool A assets.
An order altering property interests under s. 79 which is appropriate, just and equitable will take account of the Pool A assets, even if the parties are to retain all of them.
The Wife’s total net Pool A assets are $1,027,505 as set out in the Annexure B table. In summary, she will continue to own real estate at Suburb B and Suburb D, the sale proceeds of a Suburb C property and some monies outstanding in bank accounts as well as some small miscellaneous items.
The Husband’s total net Pool A assets are $2,297,164 as set out in the Annexure C table. The Husband will continue to own unencumbered real estate in Suburb J and with his sister in Suburb K. He has a vehicle, some shareholdings and some money in a partnership bank account. His only debt is a credit card debt of approximately $3000.
As to Pool C, the Husband will retain superannuation of $407,868 and the Wife superannuation of $78,463.
As to bank accounts, although there was extensive evidence about the parties’ transferring monies between bank accounts in each of their names, it appeared that both parties maintained bank accounts in their own names. The parties’ orders did not propose that monies either of them held in any bank account should be the subject of orders altering their property interests. I have treated monies standing in bank accounts of either party as Pool A assets.
For completeness, in Annexure A I have performed the customary additions of assets and liabilities. However, in circumstances in which the orders only alter property interest in the Pool B assets, this process is of less significance than it may be in other cases.
I have also included in the Annexure A complete balance sheet a column (column 4) which identifies which of Pool A, B or C particular property falls within. This is intended to make clear the orders I will ultimately make.
POOL B PROPERTY
Turning now to Pool B, I will follow the four steps in Hickey & Hickey &Attorney-General (Cth) (2003) FLC 93-143 at [39]. First, I must identify and determine the asset pool of the parties as at the date of the hearing (this necessarily involves identifying both assets and liabilities). The Pool B property is as follows (omitted item numbers concern Pool A property or Pool C superannuation).

ASSETS Ownership Actual Value

1. Property E J $600,000

6. Furniture and chattels at Property E J $17,747

7. Funds held with Sayer Jones on trust for the parties J $287,695

9. Club P W $12,000

10. Motor Vehicle 1 and Trailer W $10,000

Sub-total $927,442

ADDBACKS

31. Part property settlement – per orders 1 May 2023 H $100,000

32. Part property settlement – per orders 1 May 2023 W $300,000

33. Part property settlement – per orders 7 July 2023 H $25,000

34. Part property settlement – per orders 7 July 2023 W $25,000

35. Payment from funds held on trust for the parties in Sayer Jones trust account W $459,549

Total addbacks
Pre-trial part property distributions
To Wife: $784,589
To Husband: $125,000
$909,549 $909,549

Total assets available for distribution $1,836,991

LIABILITIES

36. Land tax due on Property E J $23,691

37. Capital Gains Tax
Note: that there was a capital gain of $194,056 to be attributed to each party. It is to be omitted from the balance sheet. It is dealt with separately under order 9. J NIL

Liabilities Subtotal $23,691

Net total Pool B $1,813,300
Assets

In terms of identifying assets and liabilities, I deal only with disputed items below. Where I have found that items should be excluded from the balance sheet, those item numbers are not in the table above. They do, however, appear in the complete asset and liabilities table in Annexure A.
The only joint assets are assets Company H held which I have designated as joint assets (“J” above).
Item 9: Should the Wife’s Club P membership be included in the asset pool?
In early 2022 — during the relationship — the Wife withdrew $12,000 from U2 Business for the Club P (Ex. R12). The Wife accepted that she owned the Club P share but asserted she bought it with pre-marital assets and that it ought not to be included in the pool (T185:L42-46). Given that she paid for the purchase in early 2022 (during the relationship and 6 months before the relationship’s end) the Club P membership with a value of $12,000 should be included in Pool B on the balance sheet.
Item 10:
The registration record was in evidence which recorded the Wife as the purchaser of a vehicle in mid-2021 during the relationship (Ex. R26). The Wife admitted is cross-examination that she paid $8000 for the purchase of this vehicle and admitted that she had no other evidence as to its value (T186:L1-2) although she said it was now worth less. The parties are likely to have some practical knowledge of the value of property they own (Frederick v Frederick (2019) FLC 93-900; [2019] FamCAFC 87, [39]) I will include $8,000 on the balance sheet as to the vehicle.
Item 11: Property E
The Wife had made a payment of $1,750 as to maintenance of Property E. The Wife said that she made this payment because she stayed there with her cousin from time to time. She denied that she owned Property E. In closing, the Husband’s counsel conceded that I could not be satisfied that the Wife owned the site at Property E (T447:L46-47). Item 11 will be excluded from the balance sheet.
Item 12: U1 Business
Before, during and since the relationship, the Wife has owned “U1 Business” a business which provides professional services to third parties. The evidence was unclear as to any arrangements for the operation of this business via a corporate vehicle. An ATO activity statement generated on 17 June 2020 (Ex. R17) recorded an overdue tax debt of $35,864. An ATO Activity Statement as of 15 April 2024 (Ex. A20) recorded the overdue tax debt had grown to $154,431. The named taxpayer was “The Trustee For U1 Business Trust”. The Wife’s evidence was that since the relationship, her personal exertion has been in the short-term rental of Property E operated under the auspices of Company H and not in professional services work in U1 Business. The Wife’s evidence was that any income from U1 Business is very modest. In her financial summary set out in her financial statement she says her total average weekly income is $665 ($34,580 annually). In closing, she submitted that U1 Business was not a viable financial resource (T505:L38)
There was no valuation evidence of U1 Business. Such evidence as there was, was that U1 Business has been loss-making. There are carried forward tax losses of $167,000 (T139:L7-10; Ex. R18). If in the future, U1 Business were profitable those tax losses may be able to be offset against those business profits.
In conclusion, I cannot put any value on U1 Business. Item 12 has been excluded from the balance sheet.
Item 13: U2 Business– t/as V Business – the sale to Ms Z
The Wife also owned and operated a business in the breeding and sale of dogs in a company, U2 Business t/as V Business (Dog Business). The business structure appeared to be that a company U2 Business was the trustee for the U2 Business Trust. The evidence did not explain the trust.
There was a dispute between the parties as to whether the Wife sold the shares in U2 Business in mid-2021 to Ms Z for $200,000 under a sale of business agreement (Ex. R31) and promissory note (Ex. R32). The parties were in a relationship as of mid-2021. The promissory note acknowledged that the purchase price was reduced by $28,000 being a loan then owing to the purchaser Ms Z (Ex. R32, [2]). The Wife’s position was that she no longer owned any stake in V Business. Ms Z, who gave evidence and was cross-examined, corroborated that evidence on the basis that she (Ms Z), not the Wife, owned the Dog Business. To be clear, the Wife said that she had no continuing property in the Dog Business.
The Husband — by reference (among other matters) to significant transactions the Wife made on U2 Business bank account after the alleged sale date of mid-2021 — disputed that the Wife no longer owned U2 Business. He submitted that the Wife’s continued operation of U2 Business bank account after mid-2021 could not be reconciled with her position that she had sold the business. The Husband contended that the appropriate finding is that the Wife retains a stake in the Dog Business in which Ms Z is a de facto partner.
I do not accept that the Wife had no ownership in the business after mid-2021.
I “look through” the fact that the Sale of Business Agreement may not be legally effective. Notably, it defines U2 Business as the owner of all its issued and outstanding shares. A company cannot be a shareholder in itself.
First, the evidence was unsatisfactory as to the payment of the agreed purchase price for the business. The Husband deposed that there is “no evidence” that the Wife was paid the $200,000. Ms Z said that she made payments for the business by way of the following:
(a)payments to the Husband in the form of ‘wages’ ($52,815);
(b)payments to the Wife in the form of ‘wages’ ($40,388);
(c)offsetting a 2016 loan to the Wife ($28,000); and
(d)EFT transfer for money ($84,000).
I cannot accept that part of the purchase price ($52,815 of a purchase price of $200,000) was paid by way of wages to the Husband when the Wife’s own evidence was that she (the Wife) contrived — after the alleged sale date of the business in mid-2021 — to issue payslips to the Husband not in reality for labour performed but to prop up the Property F finance application. She also said that after the wages were paid, the Husband repaid those amounts to her. As to this issue, the Wife’s cross-examination of the Husband included the following (T343:L10-13):
And what [Ms Dawson] says about those wages was they were essentially paid to you to prop up your account in relation to an application for finance to make that more attractive to a lender; what do you say to that?---Now that we’re going through the court system, I understand that to be true.
This conduct undermined the Wife’s credit. On her own version of events, she was prepared to generate payslips which were not in truth for work performed to prop up a finance application. If the Husband’s wages were not for labour, the Wife did not explain how they were a genuine part payment of the purchase price on the sale of the Dog Business to Ms Z.
Second, the Wife — by a significant number of transactions — continued to operate U2 Business bank account after the alleged sale date in mid-2021. A standout example was the withdrawal on 15 March 2022 of $12,000 in connection with a payment for a membership at Club P (dealt with as to item 9 above). The Wife’s continued operation of the Dog Business’ bank account after mid-2021 for her personal purposes was inconsistent with her having sold the business.
Third, on the internet the Wife’s mobile number is still listed as a business contact for the Dog Business as of early 2024. Relatedly, the business address is listed as Mr AA’s home in Suburb BB, not premises Ms Z owns or has any association with. Mr AA is a friend of both the Husband and the Wife. In her evidence, Ms Z did not know where Mr AA lived. I cannot reconcile the Wife’s mobile number being advertised as a business contact and her friend’s address being advertised as the business premises with her having sold the Dog Business as long ago as mid-2021.
Fourth, although a spreadsheet of transactions in and out of the back account of the Dog Business was in evidence (Ex. R12) no transactions are satisfactorily identified as having the character of the payment of the purchase price for the business in the amount of $84,000.
Each of the following facts are consistent with the Wife having a continuing stake in the business:
(a)the Wife’s use of the company letterhead to generate pay slips on company letterhead after mid-2021;
(b)her capacity to draw funds from the company’s bank account to pay “wages” to the Husband after mid-2021;
(c)the listing of her phone number and her friend’s address as the key business contacts and the non-listing of Ms Z as a business contact; and
(d)the absence of satisfactory business records setting out payment of the purchase price.

It follows that I also do not accept Ms Z’s evidence as to her being the sole owner of the Dog Business.
For those reasons I find that the Wife continues to hold a proprietary interest in the Dog Business. Although I find that the Wife has some continued stake in the business, I cannot make any more specific finding as to the nature of that proprietary interest on the evidence before me. The Husband submitted that the Wife and Ms Z are de facto partners. I cannot make any such definite finding.
The real issue is any valuation of the Wife’s remaining interest in the Dog Business.
There were historical “financial reports” in evidence that in FY19 that the Dog Business made a loss of $10,981 and a profit of $42,713 in FY20 (Ex. R11). There were carried forward tax losses of $97,489.
Ms Z’s evidence was that the business had been loss-making in 3 of the past 4 years. Asked why she would pay $200,000 for a business which — on her evidence — had been loss-making 3 of the past 4 years, Ms Z said the business was valuable because of the value of dogs the business owned.
There was no expert valuation of the Dog Business. I find that the Wife continues to have a proprietary interest in the Dog Business of an indeterminate value.
Although I take into account the Wife’s ongoing stake in the Dog Business under s. 75(2) below, I am not satisfied that I ought to put a valuation on it. Item 13 has been excluded from the balance sheet.
Items 14 and 15: Net proceeds of sale of Suburb C house now held in the CC Bank offset account
The Wife owned a property in Suburb C before the relationship. It was common ground that the Wife sold the Suburb C property since the relationship ended in December 2023. It was also common ground the net proceeds of sale of $226,952 was paid into the CC Bank offset account. It was also common ground that there is $109,544 left at the date of trial in the CC Bank offset account (Annexure A, item 15). This is a Pool A asset.
Items 19a and 19b: Carried forward losses for V Business and U1 Business
If these businesses make future profits, the Wife may have the capacity to set off the carried forward tax losses in either business against profits. The Husband did not press for the tax losses to be included on the balance sheet (T451:L9-21).
Item 26: Various bank accounts
I have omitted item 26 (as the parties provided it in JE-1) as to “various bank accounts” because it is a duplication of item 24 of the agreed monies in the Husband’s various bank accounts of $11,336.
Addbacks
Item 27: Mower
The Husband’s evidence was that during the marriage the parties purchased a mower which the Wife sold for $5,500 and retained the sale proceeds. The Husband’s position was that the Wife admitted that she received $5,500 for the mower. The Wife’s position was that Company H (not her) received the payment in the course of its business operations. She said in cross-examination that “the company has accounted for it in its – in its profit and loss as proceeds of sale”.
Exhibit R25 was a Profit and Loss statement for Company H for the year ending 30 June 2023 which also included historical income for FY22 and FY21. There was no line-item entry for the mower in the company’s accounts. Nonetheless, in the absence of contradictory evidence, I accept the Wife’s sworn evidence that Company H, not her, received the payment for the mower. The mower will be excluded from the balance sheet.
Item 28: Motor Vehicle 2
The Husband’s evidence was that Motor Vehicle 2 was sold for $500 and is in the Wife’s possession. The Wife’s position was, in the same way as the mower, Company H, not her, received the $500. I accept her sworn evidence. Motor Vehicle 2 will be excluded from the balance sheet.
Item 29: Chattels at Property F
There was a court order on 27 February 2023 [Order 6] that the chattels at Property F be offered to the purchasers for a price of $10,000.
The purchasers did not pay this amount for chattels because of a dispute about whether some chattels had been removed. I see no reason to “add back” $10,000 which was the Wife’s primary position (T509:L41-42) in circumstances in which there was no evidence that the amount was received. Although there was evidence that the purchasers had offered about $2,400, there was no evidence that the Husband received that amount. I infer that the reason the purchasers declined to pay the $10,000 is that the chattels they thought they were purchasing were not available because some had been removed. I infer that is more likely than not that the Wife had removed the chattels which was the Husband’s evidence “Ms Dawson has been there and taken anything of value” (T438:L24). I accept his evidence. If this is the case, in practical terms, even if the Husband has received $2,400 the Wife has received in specie a relatively greater share of the chattels which were at Property F.
It is not just and equitable to add back into the balance sheet any amount for chattels at Property F and I do not propose to add back any amount as to chattels. There will be a “nil” value at item 29 of the balance sheet.
Item 30: Should funds the Wife alleges the Husband withdrew after separation from the bank account of Company H’s bank account be “added-back”?
Because “addbacks” are the exception rather than the rule, the Wife bears the onus of persuasion (Marcin & Marcin (2020) FLC 93-956, [90]). I have not been persuaded that the evidence establishes that the Husband has prematurely distributed to himself $29,000 of marital assets.
The Wife deposes in her Trial Affidavit and that from 15 September 2022, the Husband withdrew “approximately a net amount of $30,241.00 from the Company H Bank Account”. In response to this allegation, the Husband sets out the following in his Trial Affidavit:
As to paragraph 74, [Ms Dawson] fails to acknowledge that prior to that date I had paid in $60,000 from the [EE] Unit Trust distribution. There were payments and withdrawals for various things however as at the date of separation, the balance of funds that I had left over from the [EE] Unit Trust was $34,780.
The Husband was not cross-examined on this matter (T452:L35-36).
I do not intend to add back the amount of $29,000 (or any amount) at item 29.
Liabilities
Item 36: Land tax
Company H’s outstanding land tax is a joint liability. The evidence of the amount of Company H’s outstanding Land Tax Assessment was less than clear (Ex. R61). In closing, the Wife did not significantly contest the Husband’s quantification of the land tax debt of $23,691.04 set out in the Husband’s proposed orders. I will order that the land tax debt be paid first from residual funds in the Sayer Jones trust account. If the actual land tax debt is less or more than $23,691 the parties will jointly share the benefit or burden of that fact.
The land tax joint liability of $23,691.04 will be included on the balance sheet.
Item 37: CGT on Property F
O Firm initially assessed the capital gain on the sale of Property F as follows (Ex. R2):
The capital gain will be $206,443 to each beneficiary and that will be included in each tax return along with their other incomes to arrive at their overall tax bill.
The joint balance sheet (Ex. JE-1) updated that figure on the basis that there was an agreed taxable capital gain to each party of $194,056. The parties agreed that the capital gain should be attributed equally to each party. Although the capital gain will be attributed equally, the tax each party will pay as to that capital gain will depend on that party’s other taxable income. I note that I can infer that by reference to a taxable capital gain to each party of $194,056 on an asset held for more than 12 months, I can calculate the actual capital gain on the sale of Property F approximated $800,000.
The Husband proposed (T459:L15-20) that the CGT be omitted from the balance sheet and dealt with by separate order. I will adopt that course. I will order that each party will be responsible for their equal share of the outstanding capital gains tax arising from the sale of Property F on the basis that the capital gain is distributed equally between the parties (order 8).
Item 41: ATO Tax debt – U1 Business
In the joint balance sheet (Ex. JE-1) it was common ground that U1 Business, the Wife’s professional services business, has a tax debt of $160,696. It will be included in the balance sheet. Under the orders the Wife will be solely liable for and indemnify the husband as to this tax debt (order 20).
Items 43 and 44: Should there be a balance sheet entry for the Husband’s unsecured loans from parents?
In closing, neither party addressed me on any value to be attributed to any unsecured loans to the Husband from his parents. Items 43 and 44 will be excluded from the balance sheet.
Item 45: Should a loan from the Husband to the Wife of $24,000 be included on the balance sheet?
The Wife says that she had a debt on a loan to the Husband for $24,000 owing (in respect of a loan of $25,000) where she was the borrower and the Husband the lender (Ex. A29).
The Husband’s proposed orders did not appear to make any submissions as to this loan. In particular, under order 19(a), as he proposed it, each party is to be solely entitled to the exclusion of the other as to property in their possession and under his suite of orders there is also an order that the court’s orders are intended to finalise the parties’ financial relations under s. 81 of the Act. I treat the Husband as not pressing any claim as to this loan. It will be excluded from the balance sheet.
Item 49: Superannuation
Neither party sought an order altering the other party’s interest in superannuation. The result is that Husband will retain superannuation of $407,868 (Annexure A, items 48 and 49). The Wife will retain superannuation of $78,463.
I will not make an order the Husband sought that the Wife (or an entity she controls) pay additional superannuation of $17,574 to the Husband’s nominated superannuation account as the Husband sought in his proposed suite of orders (proposed order 17) as to superannuation owing on “wages” U2 Business paid to the Husband for his labour in the Dog Business. My reasons are set out in the explanation of the orders below.
IS IT JUST AND EQUITABLE TO MAKE AN ORDER UNDER SECTION 79(2)?
Both parties sought orders for an alteration of the property interests following the breakdown of their marital relationship, with a view to moving on with their lives free of financial commitment to the other. Company H was incorporated to pursue their joint endeavours. As Company H owned property as a product of the contributions of both parties it is appropriate, just and equitable to alter the party’s property interests as to property Company H owns or owned. In all the circumstances it is just and equitable for me to make an order altering the parties’ interests in the property (Stanford v Stanford (2012) 247 CLR 108, [42]). Neither party contended otherwise.
WHAT WERE THE PARTIES’ CONTRIBUTIONS?
Section 79(4)(a), (b) and (c) deals with contribution factors.
Because the parties were both 48 years old at the relationship’s start and owned substantial property (the Husband owned property valued in excess of $2,000,000; the Wife owned property valued in excess of $1,000,000) it is just and equitable to follow the parties’ approach to quarantine in Pool A the substantial pre-relationship property from any order under s. 79. Vis-a-vis each other, the Wife made a 100% contribution to her pre-relationship assets and the Husband made a 100% contribution to his pre-relationship assets. For similar reasons, because, by and large, the parties accumulated their respective superannuation entitlements — over working lives largely outside the timespan of the relationship — it is just and equitable each party will retain all of their own superannuation without alteration (Pool C).
Are legal principles as to the assessment of contributions in a “short marriage” different?
There is no special approach to the assessment of contributions for a short marriage as contrasted with the assessment of contributions for a longer relationship. The relationship was of short duration from July 2019 until mid-September 2022; some 38 months. The Wife referred to some authorities with a view to persuading me that the parties’ actual financial contribution was of greater significance in a short marriage than in a longer relationship. Among other authorities, the Wife referred me to the Full Court decision in In the marriage of Bushby (1988) FLC 91-919 in which Baker J said at [76,667]:
In a marriage of four years, with no dependent children being involved on either side, it ought to have been apparent to the parties' legal advisers that each party's actual financial contribution to the marriage was the primary issue.
I accept as a statement of principle what the Full Court said in Q & Q [1999] FamCA 1314 at [39] that:
There is no principle that the length of the marriage leads to a likelihood that other contributions will outweigh or weigh equally with “a particular contribution”. It is a matter of assessing the contributions of all relevant kinds in each case to arrive at an outcome which is both appropriate and just and equitable. In some cases particular contributions may be outweighed or equalled by other ones. In other cases particular contributions may be so disproportionate to other contributions as to merit special recognition.
In both cases, the assessment of contributions is not an accounting exercise but a holistic one (Fontana & Fontana [2018] FamCAFC 63, [27]; Brandt & Brandt (1997) FLC 92-758; Norbis & Norbis (1986) 161 CLR 513). I must take into account the “myriad contributions” and weigh contributions collectively rather than in a way which is “compartmentalised… weighing one contribution against the remainder” (Petrellis & Petrellis [2023] FedCFamC1A 104, [68]).
The assessment of contributions made under s. 79(4)(a), (b) and (c) need not bear a direct relationship to the assets as they presently exist (Stella & Stella [2023] FedCFamC1F 1092 at 87(w)) (Strum J).
The Wife’s contribution to looking after her own children from a previous relationship is a not a contribution within the meaning of s. 79(4)(c) which refers to the “children of the marriage.”
Is an “asset by asset” assessment or a global approach to assessing contributions appropriate?
Sometimes, “justice and equity may best be served by proceeding upon an asset by asset basis in the division of the property between them” (Stella, 87(r)).
During this relationship, the parties maintained some bank accounts in their own names. There was also a Company H bank account. There were many transfers backwards and forwards between the Wife’s bank accounts, the Husband’s bank accounts and Company H’s bank accounts. The Husband tendered Ex. R60 which recorded dozens of payments between accounts. The Wife tendered Ex. A43 which traversed even more transactions between various accounts. The Husband said in his affidavit (and I accept) that the Wife had no fewer than 17 bank accounts. In closing, the Wife’s counsel referred to the transfers between accounts as a “cycling of funds” (T520:L18). It is apparent that the parties did not separate the financial affairs of Company H from their personal financial affairs. The tangle of the parties’ financial affairs only becomes knottier when it is considered that there are also payments though different bank accounts for U1 Business (the professional services business) and U2 Business (the Dog Business). Funds for those businesses were not kept separate from Company H’s accounts. The Wife deposed that:
My [U1 Business] company incurred significant ATO debt due to me using company funds to finance the [Company H] properties.
Although the Wife put some emphasis on the fact that the parties maintained separate bank accounts, having regard to the joint purchase of Property E and Property F via Company H, it cannot be said that the parties maintained separate financial affairs. The Wife was prepared to create what she says were misleading payslips for the Husband so as to prop up the finance application for the purchase of the Property F property. As a result, I do not accept the Wife’s case that the payments between the accounts were loans and repayments of loans between the couple in the absence of corroborative documentary evidence.
Despite some invitation that I do so, in assessing contributions, I have not tried to trace dozens of bank transactions between the parties in an accounting exercise as to the assessment of contributions which authorities such as Fontana and Norbis say is not appropriate.
Counsel for the Husband accurately used the word “blended” as to the financial arrangements for the two properties (T470:L24). One way in which financial affairs were “blended” is that when Property F was sold the proceeds discharged the Property E mortgage.
The fact that the parties’ financial dealings as to the two principal assets with which I am concerned — Property F and Property E — were “blended” means that the better approach is to assess contributions by reference to Pool B globally rather than to adopt an asset by asset approach.
Is a mathematical or holistic approach appropriate?
As to Property E, the Wife submitted I ought to approach the assessment of contributions with mathematical precision. Her submission that she was entitled to 76.2% of the value of Property E because she contributed 76.2% of funds to its purchase. She deposed:
Of the $176,359.66 spent on the [Property E] property, I personally contributed $134,359.66, which is 76.2%. I would seek therefore that I am entitled to an equivalent adjustment of the [Property E] property.
By way of illustration of that proposed mathematical approach, one of the Wife’s proposed orders in her suite of orders sought to distribute “23.8% of the equity in the Property E property as if the mortgage had not been settled by the Property F sale” to the Husband [Wife’s proposed order, order 5(c)].
Not only is it contrary to authority (Fontana, Brandt, Norbis above), it is incongruous to adopt the Wife’s approach of assessing contributions mathematically as to Property E, but to adopt a holistic approach as to the assessment of contributions as to Property F.
I was also unpersuaded that an appropriate approach was to assess contributions with the mathematical precision that the Husband urged upon me. He said at [32] of his affidavit that:
I say that in all I contributed $210,086 of capital … to the acquisition, conservation and improvement of assets. I have received $125,000 as a partial property settlement and say that if I am to be put in the same position as [Ms Dawson] (if she is given back all the money she borrowed and invested in our real estate ventures) then I am owed $85,086 to return to the same situation I was in at the commencement of our relationship.
Further, I am bound by, and wholly agree with the observations of the Full Court in Gadhavi & Gadhavi (2023) 67 FamLR 174; [2023] FedCFamC1A 117 at [45]: “it is not open to a trial judge to simply carry forward an original contribution as a mathematical proportion of that party’s total contributions”.
The Husband proposed an order for payment to him of the sum of $85,086 as “repayment of capital contributions”. In the passage above, the Husband referred to the parties being “given back” all the money borrowed and invested in real estate ventures. Such an approach does not assess the value of the assets as of the date of trial. Going back to reinstate the parties to a position they were in before the relationship also does not seem to grapple with the fact that the real estate ventures were successful: notably, returning the parties to their pre-relationship position does not distribute between them in a way which is just and equitable the agreed appreciation in the capital value of Property E and the substantial capital gain achieved on the sale of Property F. In my assessment, it is not appropriate or realistic to try to return the parties to their positions the before the relationship.

Although I do not intend to assess contributions on an accounting or mathematical basis but holistically in accordance with authority, I note that while “mathematical precision is certainly not required, there is ordinarily a need to know the circumstances in which assets were acquired and the general extent of each party’s contribution to them” (Norbis, 523).
Finding as to length of relationship as a couple
The parties proceeded on the basis that a dispute between them as to when the relationship started and ended may matter in the contributions analysis. There was a dispute about when the “relationship is a couple living together on a genuine domestic basis” began (s. 4AA). I did not assess there to be in great significance as to the dispute. Nonetheless, I have set out my findings lest this matter go further. The principal assets in dispute — namely real estate at Property E (bought September 2020) and Property F (bought September 2021) — were both acquired during, and as part of, the joint matrimonial endeavour on whoever’s version of the start and end dates of the relationship was accepted.
The Wife said the parties only began cohabiting very close to February 2020 when they married. The Husband said they began living together in July 2019. Section 4AA(2)(a)–(i) sets out a non-exhaustive list of circumstances as to working out if persons have a relationship with a couple. No particular factor is determinative. One significant marker of a “degree of mutual commitment to a shared life” was that the parties shared in four attempts to conceive a child via IVF in Country FF. The Wife said these attempts were “between 2019 and 2020”.
There were photos of the Husband’s bed being moved into the Wife’s Suburb B property in July 2019 which then became the matrimonial home where they both lived (Ex. R3). In all the circumstances, I find that their relationship as a couple commenced in July 2019.
There was a dispute about the separation date as to whether the parties separated on 15 September 2022 (the Wife’s contention) or 4 October 2022 (the Husband’s contention). I find that the parties separated on 15 September 2022. Any forensic significance as to the dispute about the two dates was not explained. In preferring the date of 15 September 2022, on 15 September 2022 the Husband made payments which were described as “Mr Barnaby reimburse Ms Dawson” These payments were said to be repayment for board arrears, IVF treatment and wedding expenses. This kind of reckoning as to past expenses was consistent with the end of the relationship as a couple.
Having regard to those matters set out above, I find that the parties had a relationship as a couple for slightly longer than 3 years from July 2019 until 15 September 2022.
Pre-existing property
I find that the Wife had net property before the relationship (excluding superannuation) of approximately $1,056,111. By and large, the evidence as to the Wife’s property was set out in a document as to her assets and liabilities the Wife prepared in anticipation of a Binding Financial Agreement (BFA), never signed. In closing the Husband accepted these estimates (T466:L27). Annexure “D” sets outs my finding as to the Wife’s pre-relationship property.
I find that the Husband had net property (excluding superannuation) of approximately $2,054,476, a calculation by and large derived from a document he prepared in anticipation of an unsigned BFA.
The Husband’s premarital assets were essential to the purchase of real estate at Property E and Property F
In late 2020, some 14 months after the relationship commenced, the parties purchased Property E. The Husband made a significant contribution to the purchase of Property E and Property F because it was his pre-marital assets which meant the necessary security was available to procure the finance to purchase both Property E and Property F. Without his unencumbered pre-relationship assets, the parties could not have borrowed the money and purchased the real estate.
I do not accept the Wife’s contention that the fact that Property E and Property F were purchased via Company H was a matter of mere convenience to which no weight should be given in the contributions analysis. She said at [24] of her affidavit that:
…despite doing most of the work to set up the company, as well as most of the financing, I was unable to put my name shareholder or director for [Company H] as the banks would then require my personal finances which were already fully utilised in my personal properties. Therefore, [Mr Barnaby] was sole director and sole shareholder for financing purposes.
It was the fact that her assets were “fully utilised” that made the Husband’s unencumbered premarital assets essential to the acquisition of the real estate at Property E and Property F. In this sense the Husband’s pre-relationship assets were a springboard for the parties’ acquisition of real estate during the relationship.
The Husband’s guarantee
In a related way, the Husband provided a contribution which must be given some weight by personally — and solely — guaranteeing the debt Company H incurred as to both properties. I say solely because the Wife did not provide a personal guarantee as to the mortgage debts for both Property E and Property F. Although the financiers would have been able to access their security and neither property was highly levered relative to its total acquisition, I accept that this was no “shallow guarantee” (T470:L41). I infer that the banks would not have advanced the funds needed to purchase the properties without the guarantee. The guarantee was instrumental in securing the properties because the bankers had access (if needed in the event of default and inadequate security) to the Husband’s $2,000,000 worth of pre-relationship assets to recover their loan. The guarantee is to be give some weight in the contributions analysis.
Parties both made capital contributions to the purchase of Property E
I make the following findings as to the contributions to the purchase price of Property E of $420,000:
(a)in approximately September 2020, the Husband paid the 10% deposit of $42,000 on the Property E property which had a purchase price of $420,000;
(b)the parties had to contribute a further $98,695 to effect settlement in late 2020. I find the Husband paid a further $40,000 from his capital. His pre-relationship capital was with the NAB. The bank records disclose a transfer from the account ending in #...64 in late 2020 of $40,000 (CB561). The Wife disputed that the Husband paid this further amount. I prefer the evidence of the Husband in circumstances in which the Wife’s credit was undermined by the fact that on her own case, she was a person prepared to generate misleading payslips to prop up a loan application.
(c)the Wife contributed the sum of $58,725; and
(d)the balance of the purchase price was secured by a mortgage from DD Bank in the sum of $302,000.
Thereafter, the income from short-term rental of the Property E property covered the mortgage until the mortgage secured against the Property E property was discharged with the funds from the sale of the Property F property effective mid-2023.
I find that the Wife made a contribution of $58,000 towards the Property E purchase. I find that the Husband made a contribution of $82,000. Thereafter, the contributions between them could not be differentiated because, by and large, rental income from the property serviced the mortgage.
I accept the Wife’s evidence that she had spent some amount on capital improvements at Property E which she quantified at $5,140.
To the extent that the capital value of Property E has appreciated since its purchase in late 2020 for $420,000: as of trial there was an agreed value of $600,000 that appeared to be almost entirely because of external market forces and therefore is to be regarded as a contribution by both parties.
The Wife made a capital contribution to the purchase of Property F of at least $625,000 which was not matched by a capital contribution from the Husband
In late 2021 Company H purchased the Property F property for $2,000,000.
I have not been able to reconcile in any precise way the amount set out in the affidavits with the purchase price.
The Husband admits that the Wife’s debt incurred by $699,549 against the security of her pre-cohabitation assets during the relationship. This calculation was done by reference to the matters set out in his outline of case involved two points in time “snapshots” of the amount of the Wife’s debt under mortgages as of the date of marriage and the date of separation.
The Wife contended that she increased her mortgages secured against her pre-relationship real estate portfolio to enable the purchase of Property F by approximately $738,000 (Suburb B: $425,000–$800,000; Suburb D $163,000–$431,000; and Suburb C $304,000–$537,000). There must have been transaction costs as to the purchase of Property F — including substantial stamp duty — but it is not easy to reconcile in any precise way an increase of the mortgages in this amount with the $2,000,000 purchase price.
I find that the purchase price of Property F was approximately funded as follows:
(a)The Wife contributed a 10% deposit of $200,000 with funds she sourced;
(b)the Wife increased the level of debt she had on property she owned before the marriage by at least $425,000 and probably more (this amount is calculated by reference to the fact that at least $625,000 had to be found because the mortgage was only $1,375,000 out of $2,000,000) secured by increased mortgages against real estate she owned before the marriage: specifically, properties at Suburb B, Suburb D and Suburb C;
(c)Company H took on a mortgage of $1,375,000 with DD Bank (Ex. R20);
(d)the Husband was the sole guarantor of the DD Bank mortgage (Ex. R20); and
(e)to the extent that the Wife increased her mortgage debts by more than $425,000, the Wife, not the Husband, paid the Property F purchase transaction costs.
The Wife contributed $625,000 to the purchase price of Property F (by her increased borrowings) and paid the transaction costs. In contrast, the Husband did not contribute to the Property F purchase price by mortgaging his pre-relationships assets. He did, however, act as sole guarantor and his ownership of approximately $2,000,000 of unencumbered assets pre-relationship was a necessary precondition for the procuring of the finance.
The Wife’s contributions to the management of the properties
The Wife made a relatively greater contribution to the management of Property E and Property F so that the properties could be rented out. It was her personal exertion that enabled the necessary arrangements to be made so that the properties could be rented out. The Husband acknowledged that the Wife “was the driving force behind the purchase of both Property E and Property F and was instrumental in setting them up as short-term rentals with a view to generating income.” Doubtless, necessity meant that the Wife had to make the relatively greater contribution to the management of these properties because of the Husband’s prolonged ill-health and hospitalisation for 12 months from mid-2021 until mid-2022.
I accept the Wife’s evidence that she had the relatively greater responsibility for the letting and day-to-day management of the Company H properties. She itemised that she set up the letting platforms, she arranged cleaners and gardeners, replaced broken and missing items and prepared the properties for the arrivals of guests.
In the financial years ending 30 June 2021 to 30 June 2023 Company H’s trading income totalled $288,786 (Ex. R25). The substantial income was the product of substantial work. The Wife’s substantial contribution to the generation of that income ought to be given some weight in the contributions analysis. On the other hand, the Husband’s evidence was that:
During the relationship [Ms Dawson] retained all income from [Property F] and [Property E], at the time of swearing my affidavit no tax return for [Company H] Trust has been prepared so I cannot say accurately how much she received but I would estimate it to be approximately $200,000.
It appeared from the profit and loss statement that Company H’s income exceeded expenses. There was evidence that Company H paid the Wife a wage.
The Husband’s non-financial contributions
The Husband made non-financial contributions including as to the care of the Wife’s children particularly during a period in which she was stranded in Country FF following the outbreak of COVID-19 pandemic. The Husband was generally involved in the lives of the Wife’s children as evidenced by the photographs of him engaged with the children’s activities (Ex. R4). Contributions do not need to be tied to a particular asset.
In addition, I accept that the Husband made a contribution by way of various handyman jobs. These contributions were of various kinds including excavating under the house to create extra storage space (Ex. R5); repairing a pool (Ex. R6); pruning work at the Wife’s Suburb C investment property (Ex. R7); and work at Property E including moving various items to Property E, fixing the pool there and installing surveillance cameras (among other matters) (Ex. R8). I accept he was involved in the Wife’s Dog Business. I give these matters some weight in the contributions analysis but did not find these matters to be of great weight.
The Wife’s non-financial contributions
The Husband had the misfortune to be hospitalised following complications from surgery for 12 months from mid-2021 until mid-2022. I give the Wife’s non-financial contributions caring for her seriously ill husband some weight in the contributions analysis.
Other contributions
There were other contributions over the life of the relationship. The Husband said that he contributed $210,086 of capital to the acquisition, conservation and improvement of assets. I say only that this evidence was not directly challenged.
The Wife said that she estimated that she applied but $144,000 of her own funds to furnish the properties for guest use. This evidence was also not directly challenged.
Because the Wife increased her mortgage on the Suburb K property, the Suburb C mortgage and the Suburb D mortgage she has had to pay additional interest on those debts. Her evidence was that she has paid an additional $122,333 in interest payments because of the increasing her mortgage on those properties. A countervailing factor is that the interest cost of the additional borrowing was an expense claimed against income generated from the rental of Property F.
The Husband said that these contributions should not be overstated. He noted in a table in his outline of case that the Wife’s indebtedness from the date of marriage to the date of separation had increased by $699,496 (from $1,064,970 to $1,764,466).
Contributions since separation
Since mid-2023, the Wife has been solely responsible for the management of Property E. She has had the concurrent benefit of income from the Property E property.
Conclusions as to contributions
Assessing the myriad factors, I have determined that it is appropriate, just and equitable to assess contributions at 67.5%/32.5% in the Wife’s favour. In money terms the 35% difference between the parties is $634,654 ($1,813,300 x 67.5% = $1,223,977; $1,813,300 x 32.5% = $598,323; $1,223,977 less $589,323 = $634,654).
In reaching this conclusion, the Wife’s capital contribution of at least (but probably more) than $625,000 to the purchase of Property F is a significant contribution that must be given appropriate weight. It needs to be considered in the context of the myriad contributions of the parties. It was that contribution that provided the foundation for the purchase of Property F and the ensuing wealth which flowed from its appreciation in value which is the major asset at issue (see, i.e., Cabbell & Cabbell [2009] FamCAFC 205, [54]). The Wife’s contribution must be assessed in the context of the fact that it was the substantial extent and unencumbered nature of the Husband’s pre-relationship assets that were instrumental in the parties procuring finance for the purchase of Property E and Property F. Further, the Husband’s sole guarantee of the debt must be given some weight. In addition, I must give some weight to the moderately greater capital contribution the Husband made to the purchase of Property E. Some weight must be given to the Wife’s greater management of the properties, but this is offset by her apparent retention of rental income received from Company H. Some weight must be given to the Husband’s non-financial contributions as to home maintenance and care of the Wife’s children.
In terms of the capital gain on both parties, it is to be remembered that Company H was incorporated as a joint endeavour in which they both hoped to participate. Although the relationship has ended, from a business point of view it was a successful endeavour in that both parcels of real estate achieved substantial capital appreciation over a short period. The substantial increase in the value of Property F appeared to arise mainly by external market forces. I have not overlooked that the Wife said that she did substantial renovating work at Property F. She said that “much of the capital gain realised on the sale of Property F is due to the physical cleanup, renovations, furnishings, decor and physical labour attended to and arranged by me personally”. Nonetheless, her estimate that she applied $144,000 of her own funds to furnish, prepare and maintain the properties for guest use does not readily translate into the approximate $800,000 capital gain achieved on the sale of Property F. I calculate an approximate $800,000 capital gain by reference to the fact that the parties each must pay CGT on a capital gain of approximately $194,000, and only 50% capital gain is taxable because the asset was held for more than 12 months.
Authority “point[s] to the increase [because of external market forces] being categorised as a contribution by both parties and not necessarily the party who contributed the greater proportion of the funds to acquire that property” (Petrellis at [92] citing among other authorities Bachman & Self [2023] FedCFamC1A 50 at [125]–[127]).
WHAT ADJUSTMENT SHOULD BE MADE UNDER SECTION 75(2)?
In Petrellis at [69] McClelland DCJ said:
The appropriate approach in considering relevant s 75(2) [s.90SF(3)] factors is to:
•firstly, determine what factors should be taken into account pursuant to s 75(2) [s. 90SF(3)], without any consideration at all at that stage of the amount (if any) that should be ordered;
•secondly, when all of these factors have been determined, it is then appropriate to determine what weight should be given to each of them, including the outcome of the Court’s analysis undertaken pursuant to ss 79(4)(a), (b) and (c) [ss. 90SM(4)(a), (b) and (c)].
I should be cautious to guard against a tendency to assess s. 90SF(3) factors in percentage terms without considering “the real impact in money terms which is ultimately the critical issue” (Clauson & Clauson (1995) FLC 92-595, 81,911; Trevi & Trevi (Re-Exercise) [2019] FamCAFC 51, [48]).
The s. 75(2) exercise is done against the background of the conclusions already arrived at on contributions (Clauson, 81-911).
The Husband submitted that an adjustment of 5% in his favour was appropriate. An adjustment of 5% is a 10% differential between the parties: an amount of $181,330 as to the Pool B assets. The Wife submitted no adjustment was appropriate under s. 75(2).
The Husband submitted that the relevant s. 75(2) factors were: 75(2)(a), (b), (d), (e), (g), (k), (i) and (o) (T461:L39).
Under s. 75(2)(a), each of the parties is 54 years old. The Wife is in good health. The Husband has significant ill health in the nature of a medical condition.
Under s. 75(2)(b), each of the parties has significant property in Pool A, namely their pre-relationship property.

The Wife has access to rental income from her investment property in Suburb D. She continues to earn some very modest income from her professional services business (U1 Business). Because I have found that the Wife continues to have a stake in the Dog Business, she continues to have a financial resource within the meaning of s. 75(2)(b) as to future business income from the Dog Business. Having regard to the business’ history of losses, that financial resource is of limited value.
Under s. 75(2)(b) the Husband has no capacity for gainful employment because of his serious medical condition.
The Husband’s has a very significant financial resource in terms of the income earning capacity of his Pool A assets the capital value of which exceeds $2,000,000 which is significantly greater than the income earning capacity of the Wife’s Pool A assets which are valued at slightly more than $1,000,000. The Husband can access a substantial income from his Pool A assets without any depletion of his Pool A capital. This is also relevant to s. 75(2)(d).
The Husband has significantly relatively superior superannuation (Pool C) which he will retain because neither party sought an order altering superannuation.
Under s. 75(2)(e), the Wife continues to have the care of two children under the age of 18 from a previous relationship, one of whom is fifteen years old and the other of whom is ten years old.
Under s. 75(2)(g), both parties have significant assets which will permit a standard of living that in all circumstances is reasonable. I note, however, that the Wife says that she relies upon Property E to derive a livelihood. If Property E is sold, that will affect her income.
Under s.75(2)(o), there are carried forward tax losses for U1 Business (the professional services business) of approximately $167,000. There may be some potential for the Wife to derive some benefit from those carried forward tax losses. I cannot put any significant weight on this factor in circumstances in which the evidence was that U1 Business has for some time been loss-making and the real value of the carried forward tax losses depends on the realisation of future profits, the prospect of which, at the very best, is highly uncertain. I also accept her evidence that she applies her personal exertion income to the Property E short-term rental business and not to her professional services business, a business she assesses that has limited prospects.
The carried forward tax losses in the Dog Business may also conceivably be of some future benefit to her. This factor too is of limited weight having regard to the Dog Business loss-making history.
She also says that there are carried forward tax losses within Company H which she hopes to derive a future benefit from by continuing to conduct the short-term rental business from Property E under the auspices of the same corporate entity, albeit renamed to remove the Husband’s name from the name of the company.
IS THE OVERALL RESULT APPROPRIATE, JUST AND EQUITABLE?
In Petrellis, at [71] McClelland DCJ said:
In undertaking the fourth step referred to in Hickey, it has been said that “the whole is not necessarily the sum of its component parts, and at the very least one has to stand back, at the end, and look at the final result, to ensure that the cumulative process has not produced a manifestly unjust result.
Evaluation of s. 75(2) factors
The critical issue is the real impact of value of the adjustment in money terms, not its expression as a fraction or percentage of the overall assets (Candle & Falkner (2021) FLC 94-069, [102]).
In all the circumstances, particularly having regard to the capital position of the Husband in terms of his pre-relationship assets, even though the Husband has a serious medical condition which means he has no capacity for gainful employment, I do not intend to make any adjustment for s. 75(2) factors.
WHAT ORDERS ARE NECESSARY TO GIVE EFFECT TO THAT RESULT?
I have set out below a further version of the table of the parties’ Pool B assets and liabilities as to how the alteration of the parties’ interests in the net assets in Pool B (67.5%/32.5% in favour of the Wife) is to be achieved. Issues in framing the orders include the fact that before trial there have been substantial part-property distributions of $784,589 to the Wife (Annexure A items 31, 34 and 35) and $125,000 to the Husband (Annexure A, items 31 and 33). Further, the Wife wishes to retain Property E (values are rounded to the nearest dollar)

‘Pool B’ total assets

Net total ‘Pool B’ assets $1,813,300

Percentile division (Wife/Husband) 67.5%/32.5%

Resultant Settlement (Wife) (67.5%) $1,223,977

Resultant Settlement (Husband) (32.5%) $589,323

WIFE’S ‘POOL B’

Wife’s total ‘pool B’ assets

1 Property E $600,000

6 Furniture and chattels at Property E $17,747

9 Club P $12,000

10 Motor Vehicle 1 and Trailer $10,000

32 Part property settlement – per orders 1 May2023 $300,000

34 Part property settlement – per orders 7 July 2023 $25,000

35 Payment from funds held on trust for the parties in Sayer Jones trust account $459,549

Wife’s Pool B assets retained total
(Total of items 1, 6, 9, 10, 32, 34, 35) $1,424,296

Difference between Wife’s retained Pool B assets and her 67.5% entitlement
(i.e., Cash adjustment amount to be paid by Wife to Husband to effect property adjustment: $1,424,296 – $1,223,977) ($200,319)

Wife’s Resultant Settlement
($1,424,296 – $200,319) $1,223,997

HUSBAND’S ‘POOL B’

Husband’s total pool B assets

31 Part property settlement – per orders 1 May 2023 $100,000

33 Part property settlement – per orders 7 July 2023 $25,000

Husband’s pool B assets retained total
(Total of items 31, 33) $125,000

7 Funds held with Sayer Jones on trust for the parties $287,695

36 Land tax liability to be paid from Sayer Jones trust $23,691

Amount remaining in Sayer Jones trust $264,004

Cash adjustment amount to be paid by Wife to Husband to effect property adjustment $200,319

Amount to be paid to Husband
($200,319 cash adjustment from Wife + $264,004 held in Sayer Jones trust) $464,323

Husband’s Resultant Settlement
($464,323 + $125,000) $589,323
Order 1(a): Land tax

Order 1(a) is that the joint land tax obligation be discharged from funds held in the Sayer Jones trust account. Both parties agreed that the land tax should “come off the top” (Husband, closing submissions T545:L6-7; Wife closing submissions, T534:L4-5). Order 1(a) is framed with some width — “or such other amount as may be due” — lest the land tax not be exactly $23,691.04. I have in effect stayed the operation of order 1(a) for 30 days to permit both parties time to consider their positions.
Order 1(b): Payment of monies held in the Sayer Jones trust account
The Wife wishes to retain Property E valued at $600,000 (item 1). She has received, before trial, part property settlement amounts totalling $784,548 (items 32, 34 and 35). She has retained or will retain the Property E furniture, the Club P membership and Motor Vehicle 1 totalling $39,747. In total she has or will have $600,000 + $784,549 + 39,747 = $1,424,296, some $200,319 in excess of her $1,223,977 (67.5%) entitlement. For the Husband to receive his $589,323 entitlement, he must receive the payment of the balance of the trust funds held by Sayer Jones and a further cash adjustment payment of $200,319 from the Wife to the Husband.
Order 1(b) provides for the Husband to receive the residual amount $264,004 in the Sayer Jones Trust after the land tax is paid. Order 2 provides for the cash adjustment payment.
Order 2: Payment of case adjustment of $200,319
Order 2 is the second part of the process of ensuring the Husband receives the 32.5% settlement, by an order that the Wife makes a cash adjustment payment of $200,319.
The calculation of the cash adjustment payment takes into account that the Wife will retain ownership of the Property E contents in the agreed amount of $17,747 (Balance sheet, item 6).
I have framed orders that permit 60 days for this to occur.
Orders 3–5: Husband’s transfer of control of Company H and the associated trust to the Wife
Conditional on the Wife making the Payment, it was agreed that the Husband would transfer control of Company H and the associated trust to the Wife. Orders 3 and 4 provide for this to occur. Order 5 grants liberty to apply if there are additional machinery orders required as to the transfer of control of Company H and the associated trust to the Wife.
Orders 6–7: Default sale of Property E if the Wife does not make the payment
If the Wife does not make the Payment there will be a default order for the sale of Property E (order 6) to secure for the Husband any shortfall in the Payment. I have made in order 7(c) an order substantially in the form sought by the Husband that in the event that the Payment is not made and Company H and the associated trust need to be wound up, residual funds will need to be set aside for that to occur.
Order 8: CGT – Property F
I have adopted the Husband’s proposal as to order 8 that each party must pay their equal share of the outstanding capital gains tax arising from the sale of the property at Property F on the basis that the capital gain is distributed equally between the parties.
Orders 9–13: O Firm
Orders 9 – 13 are substantially as the Husband proposed for O Firm to be engaged to prepare necessary accounts for Company H. It did not appear that the Wife opposed these orders.
Orders 13–16: Section 106A orders
Orders 14 – 16 are orders with reference to s. 106A of the Act.
Orders 17 and 18: Property the parties will retain
Orders 17 and 18 identify property the parties will retain.
The Husband’s proposed order that the Wife (or U2 Business) pay additional superannuation of $17,574
The Husband sought an order (proposed order 17) that:
[Ms Dawson] through [U2 Business] or such other legal entity pay to the Respondent’s nominated superannuation fund the sum of $17,574
U2 Business (Dog Business) rendered payslips for approximately $110,000 to the Husband which on the face of the payslips recorded payment for work he performed for V Business. The Husband submitted that the court should order that the Wife pay superannuation calculated according to the superannuation guarantee levy on those wages totalling $17,574.
As set out earlier in these reasons, the Wife said that the payslips were generated to prop up a finance application and did not record an entitlement to wages for work or labour truly done. The Husband accepted that he did not, in reality, perform work for the Dog Business which entitled him to payment of those wages in the amount set out on the payslips. A court order that U2 Business now pay superannuation calculated by reference to payslips generated which did not reflect work truly performed would be to perpetuate the fiction that the Husband had performed the work referred to in payslips. I do not intend make a court order that this occur.
Order 19: Removal of social media posts
The Wife has made social media posts about the Husband. She did not oppose an order that she forthwith remove those posts and be restrained from further posts. I will make an order accordingly.
Order 20: Parties’ sole liability for tax debts in their names
Order 20 details (among other matters) that each party will be solely responsible for and indemnify the other as to liabilities in their name. This seemed most particularly apposite as to the U1 Business tax debt of $160,696 set out at item 19 of the balance sheet which is the Wife’s responsibility.
Order 21: Extant applications and costs
Save as to costs, I dismiss all extant applications.

I certify that the preceding one hundred and eighty-nine (189) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion.
Associate:
Dated: 16 August 2024
Annexure A
The complete balance sheet: Pools A, B and C

Assets Ownership Pool Actual Value

1. Property E J[1] B $600,000

2. W Street, Suburb J H A $842,842

3. Units at X Street, Suburb K
Note: held with his sister Ms GG H A $1,335,500

4. Q Street, Suburb B W A $1,125,000

5. R Street, Suburb D W A $630,000

6. Furniture and chattels at Property E J B $17,747

7. Funds held with Sayer Jones on trust for the parties J B $287,695

8. ANZ Business Account (…87) J B $285

9. Club P W B $12,000

10. Motor Vehicle 1 and Trailer W B $10,000

11. Property E W B Nil

12. U1 Business – Professional Services W B Nil

13. U2 Business t/as V Business W B Nil

14. Net Proceeds of sale from Suburb C 2023
Note: Remaining proceeds are in the CC Bank A/C (item 15) W A
Nil

15. CC Bank Offset account W A $109,544

16. ANZ Plus bank account …06 W A $748

17. ANZ Everyday account …18 W A $2,530

18a. HH Bank account W A $2,295

18b. JJ Bank account W A $389

19a. Carried forward losses – V Business W A NIL

19b. Carried forward tax losses for U1 Business W B NIL

20. Motor Vehicle 3 H A $33,562

21. Motor Vehicle 4 W A $10,000

22. T Company Investment W A $1,111

23. Shareholdings with KK Company H A $75,130

24. Various bank accounts H B $11,336

25. Partnership Bank a/c H A $13,140

26. Omitted

Assets Subtotal $5,120,854

ADDBACKS

27. Mower W B NIL

28. Motor Vehicle 2 owned by Company H W B NIL

29. Furniture and chattels at Property F H B NIL

30. Funds withdrawn by Respondent post-separation from Company H bank account H B NIL

31. Part property settlement – per orders 1 May 2023 H B $100,000

32. Part property settlement – per orders 1 May2023 W B $300,000

33. Part property settlement – per orders 7 July 2023 H B $25,000

34. Part property settlement – per orders 7 July 2023 W B $25,000

35. Payment from funds held on trust for the parties in Sayer Jones trust account W B $459,549

Addbacks Subtotal $909,549

Total Assets (Assets + Addbacks)
$6,030,403

LIABILITIES

36. Land tax due on Property E Joint B $23,691

37. Capital Gains Tax
Note: that there was a capital gain of $194,056 to each party. It is to be omitted from the balance sheet. It is dealt with separately under order 9. Joint B NIL

38. Mortgage on Suburb B property W A $ (400,000)

39. Mortgage on Suburb D property W A $ (431,292)

40. ATO Tax debt W A $ (20,000)

41. ATO Tax debt W A $ (160,696)

42a. ANZ Visa card …70 W A $ (2,585)

42b. NAB Visa card H A $ (3,010)

43. Unsecured Loan from Respondents parents H A NIL

44. Unsecured Loan from Respondents parents H A NIL

45. Loan owed by Ms Dawson to Mr Barnaby H B NIL

Liabilities Subtotal $1,041,272

Net total of Pools A and B (Assets – Liabilities) $4,989,131

SUPERANNUATION

46. U Business Super Fund W C $67,505

47. Super Fund 1 - Accumulation Interest W C $10,958

48. U Business Super Fund H C $2,707

49. Super Fund 2 - Accumulation Interest H C $405,161

Superannuation Subtotal $486,331
[1] Note: Property held by Company H. is designated “J”- Joint Property
Annexure B
Wife’s ‘Pool A’ Assets

ITEM Owner Value

ASSETS

4 Q Street, Suburb B W $1,125,000

5 R Street, Suburb D W $630,000

14 Net proceeds of sale from Suburb C property late 2023 W $0

15 CC Bank offset account W $109,544

16 ANZ Plus bank account …06 W $748

17 ANZ Everyday account …18 W $2,295

18a HH Bank account W $2,295

18b JJ bank account W $389

19a Carried forward losses: V Business W $0

21 Motor Vehicle 4 W $10,000

22 T Company Investment W $1,111

WIFE’S TOTAL “Pool A’ ASSETS $1,881,382

LIABILITIES

38 CC Bank mortgage on Suburb B property W $400,000

39 Mortgage of Suburb D property W $431,292

40 ATO tax debt W $20,000

42a ANZ Visa credit card …70 W $2,585

WIFE’S TOTAL LIABILITIES $853,877

Wife’s total ‘pool A’ assets
Assets minus liabilities

($1,881,382 - $853,877)
$1,027,505
Annexure C
Husband’s Pool A assets

ITEM Owner Value

ASSETS

2 W Street, Suburb J H $842,842

3 Units at X Street, Suburb K H $1,335,500

20 Motor Vehicle 3 H $33,562

23 Shareholdings with KK Company H $75,130

25 Partnership Bank a/c H $13,140

HUSBAND’S TOTAL “Pool A” ASSETS $2,300,174

LIABILITIES

42b NAB Visa credit card H $3,010

43 Unsecured loan from Respondent’s parents H NIL

44 Unsecured loan from Respondent’s parents H NIL

Husband’s total ‘pool A’ assets $2,297,164
Annexure D
Wife’s pre-relationship net property

ASSETS Ownership Pool Actual Value

4. Q Street, Suburb B W A $950,000

5. R Street, Suburb D W A $450,000

14. Net proceeds of sale from Suburb C property W A $550,000

21. Motor Vehicle 4 W A $10,000

22. T Company Investment W A $1,111

Assets $1,961,111

LIABILITIES

38. Mortgage on Suburb B property W A $(432,000)

38. Mortgage on Suburb C W A $(308,000)

39. Mortgage on Suburb D Property W A $(165,000)

Total Liabilities $905,000

Wife’s NET PRE-REATIONSHIP
ASSETS
(Assets less liabilities) $1,056,111

SUPERANNUATION

46. Superannuation W C $23,000

47. Super Fund 1 – Accumulation Interest W C $10,000

Superannuation Subtotal $33,000
Annexure E
Husband’s pre-relationship net property

ASSETS Ownership Pool Actual Value

2. W Street, Suburb J H A $900,000

3. Units at X Street, Suburb K
Note: Half-share held with his sister Ms GG H A $1,000,000

20. Motor Vehicle 3 H A $50,000

23. Shareholdings with KK Company H A $75,130

24.
25.
Bank accounts
H A $16,206

25. Partnership Bank a/c H A $13,140

Assets Subtotal $2,054,476

SUPERANNUATION

49 Super Fund 2 - Accumulation Interest H C $303,000

Superannuation Subtotal $303,000

File number:	MLC 1455 of 2023
Judgment of:	JUDGE CHAMPION
Date of judgment:	16 August 2024
Catchwords:	FAMILY LAW – Property – Where both parties had substantial property before the marriage and Husband had relatively greater assets than the Wife – Short relationship of approximately three years – Where three pool approach – First pool comprised of assets each party owned before the relationship and neither party sought to alter property in first pool – Where third pool comprised parties’ superannuation and neither party sought an order altering interest in superannuation in the third pool – Where property in the second pool comprised of property acquired during the relationship principally comprised of two pieces of real estate purchased to earn short term rental income – Finding that it was just and equitable to alter interests in the property in the second pool –Where Husband’s pre-relationship assets necessary for the parties to procure finance to purchase real estate – Where Wife made relatively greater contribution to the purchase of the real estate by increasing debt secured against her pre-relationship assets – Where no special rule applies to the assessment of contributions in a short marriage – Where contributions assessed 67.5%/32.5% in favour of the Wife – Section 75(2) – No further adjustment because of s. 75(2) factors
Legislation:	Family Law Act 1975 (Cth) ss. 4AA, 75, 79, 81, 106A
Cases cited:	Bachman & Self [2023] FedCFamC1A 50 Brandt & Brandt (1997) FLC 92-758 Cabbell & Cabbell [2009] FamCAFC 205 Candle & Falkner (2021) FLC 94-069 Clauson & Clauson (1995) FLC 92-595, 81,911 Fontana & Fontana [2018] FamCAFC 63 Frederick v Frederick (2019) FLC 93-900; [2019] FamCAFC 87 Gadhavi & Gadhavi (2023) 67 FamLR 174; [2023] FedCFamC1A 117 Hickey & Hickey & Attorney-General (Cth) (2003) FLC 93-143 In the marriage of Bushby (1988) FLC 91-919 Marcin & Marcin (2020) FLC 93-956 Norbis & Norbis (1986) 161 CLR 513 Petrellis & Petrellis [2023] FedCFamC1A 104 Q & Q [1999] FamCA 1314 Stanford v Stanford (2012) 247 CLR 108 Stella & Stella [2023] FedCFamC1F 1092 Trevi & Trevi (Re-Exercise) [2019] FamCAFC 51
Division:	Division 2 Family Law
Number of paragraphs:	189
Date of last submissions:	24 May 2024
Date of hearing:	16–17, 22 and 24 May 2024
Place:	Melbourne
Counsel for the Applicant:	Mr McIntyre
Solicitor for the Applicant:	Bentleys Barristers and Solicitors
Counsel for the Respondent:	Mr Williams
Solicitor for the Respondent:	Carew Counsel Solicitors

MLC 1455 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS DAWSON Applicant
AND:	MR BARNABY Respondent

ORDER MADE BY:	JUDGE CHAMPION
DATE OF ORDER:	16 AUGUST 2024

ASSETS	Ownership	Actual Value
1.	Property E	J	$600,000
6.	Furniture and chattels at Property E	J	$17,747
7.	Funds held with Sayer Jones on trust for the parties	J	$287,695
9.	Club P	W	$12,000
10.	Motor Vehicle 1 and Trailer	W	$10,000
Sub-total	$927,442
ADDBACKS
31.	Part property settlement – per orders 1 May 2023	H	$100,000
32.	Part property settlement – per orders 1 May 2023	W	$300,000
33.	Part property settlement – per orders 7 July 2023	H	$25,000
34.	Part property settlement – per orders 7 July 2023	W	$25,000
35.	Payment from funds held on trust for the parties in Sayer Jones trust account	W	$459,549
Total addbacks Pre-trial part property distributions To Wife: $784,589 To Husband: $125,000 $909,549	$909,549
Total assets available for distribution	$1,836,991
LIABILITIES
36.	Land tax due on Property E	J	$23,691
37.	Capital Gains Tax Note: that there was a capital gain of $194,056 to be attributed to each party. It is to be omitted from the balance sheet. It is dealt with separately under order 9.	J	NIL
Liabilities Subtotal	$23,691
Net total Pool B	$1,813,300

‘Pool B’ total assets
Net total ‘Pool B’ assets	$1,813,300
Percentile division (Wife/Husband)	67.5%/32.5%
Resultant Settlement (Wife) (67.5%)	$1,223,977
Resultant Settlement (Husband) (32.5%)	$589,323
WIFE’S ‘POOL B’
Wife’s total ‘pool B’ assets
1	Property E	$600,000
6	Furniture and chattels at Property E	$17,747
9	Club P	$12,000
10	Motor Vehicle 1 and Trailer	$10,000
32	Part property settlement – per orders 1 May2023	$300,000
34	Part property settlement – per orders 7 July 2023	$25,000
35	Payment from funds held on trust for the parties in Sayer Jones trust account	$459,549
Wife’s Pool B assets retained total (Total of items 1, 6, 9, 10, 32, 34, 35)	$1,424,296
Difference between Wife’s retained Pool B assets and her 67.5% entitlement (i.e., Cash adjustment amount to be paid by Wife to Husband to effect property adjustment: $1,424,296 – $1,223,977)	($200,319)
Wife’s Resultant Settlement ($1,424,296 – $200,319)	$1,223,997
HUSBAND’S ‘POOL B’
Husband’s total pool B assets
31	Part property settlement – per orders 1 May 2023	$100,000
33	Part property settlement – per orders 7 July 2023	$25,000
Husband’s pool B assets retained total (Total of items 31, 33)	$125,000
7	Funds held with Sayer Jones on trust for the parties	$287,695
36	Land tax liability to be paid from Sayer Jones trust	$23,691
Amount remaining in Sayer Jones trust	$264,004
Cash adjustment amount to be paid by Wife to Husband to effect property adjustment	$200,319
Amount to be paid to Husband ($200,319 cash adjustment from Wife + $264,004 held in Sayer Jones trust)	$464,323
Husband’s Resultant Settlement ($464,323 + $125,000)	$589,323

Assets		Ownership	Pool	Actual Value
1.	Property E	J[1]	B	$600,000
2.	W Street, Suburb J	H	A	$842,842
3.	Units at X Street, Suburb K Note: held with his sister Ms GG	H	A	$1,335,500
4.	Q Street, Suburb B	W	A	$1,125,000
5.	R Street, Suburb D	W	A	$630,000
6.	Furniture and chattels at Property E	J	B	$17,747
7.	Funds held with Sayer Jones on trust for the parties	J	B	$287,695
8.	ANZ Business Account (…87)	J	B	$285
9.	Club P	W	B	$12,000
10.	Motor Vehicle 1 and Trailer	W	B	$10,000
11.	Property E	W	B	Nil
12.	U1 Business – Professional Services	W	B	Nil
13.	U2 Business t/as V Business	W	B	Nil
14.	Net Proceeds of sale from Suburb C 2023 Note: Remaining proceeds are in the CC Bank A/C (item 15)	W	A	Nil
15.	CC Bank Offset account	W	A	$109,544
16.	ANZ Plus bank account …06	W	A	$748
17.	ANZ Everyday account …18	W	A	$2,530
18a.	HH Bank account	W	A	$2,295
18b.	JJ Bank account	W	A	$389
19a.	Carried forward losses – V Business	W	A	NIL
19b.	Carried forward tax losses for U1 Business	W	B	NIL
20.	Motor Vehicle 3	H	A	$33,562
21.	Motor Vehicle 4	W	A	$10,000
22.	T Company Investment	W	A	$1,111
23.	Shareholdings with KK Company	H	A	$75,130
24.	Various bank accounts	H	B	$11,336
25.	Partnership Bank a/c	H	A	$13,140
26.	Omitted
Assets Subtotal	$5,120,854
ADDBACKS
27.	Mower	W	B	NIL
28.	Motor Vehicle 2 owned by Company H	W	B	NIL
29.	Furniture and chattels at Property F	H	B	NIL
30.	Funds withdrawn by Respondent post-separation from Company H bank account	H	B	NIL
31.	Part property settlement – per orders 1 May 2023	H	B	$100,000
32.	Part property settlement – per orders 1 May2023	W	B	$300,000
33.	Part property settlement – per orders 7 July 2023	H	B	$25,000
34.	Part property settlement – per orders 7 July 2023	W	B	$25,000
35.	Payment from funds held on trust for the parties in Sayer Jones trust account	W	B	$459,549
Addbacks Subtotal	$909,549
Total Assets (Assets + Addbacks)	$6,030,403
LIABILITIES
36.	Land tax due on Property E	Joint	B	$23,691
37.	Capital Gains Tax Note: that there was a capital gain of $194,056 to each party. It is to be omitted from the balance sheet. It is dealt with separately under order 9.	Joint	B	NIL
38.	Mortgage on Suburb B property	W	A	$ (400,000)
39.	Mortgage on Suburb D property	W	A	$ (431,292)
40.	ATO Tax debt	W	A	$ (20,000)
41.	ATO Tax debt	W	A	$ (160,696)
42a.	ANZ Visa card …70	W	A	$ (2,585)
42b.	NAB Visa card	H	A	$ (3,010)
43.	Unsecured Loan from Respondents parents	H	A	NIL
44.	Unsecured Loan from Respondents parents	H	A	NIL
45.	Loan owed by Ms Dawson to Mr Barnaby	H	B	NIL
Liabilities Subtotal	$1,041,272
Net total of Pools A and B (Assets – Liabilities)	$4,989,131
SUPERANNUATION
46.	U Business Super Fund	W	C	$67,505
47.	Super Fund 1 - Accumulation Interest	W	C	$10,958
48.	U Business Super Fund	H	C	$2,707
49.	Super Fund 2 - Accumulation Interest	H	C	$405,161
Superannuation Subtotal	$486,331

ITEM		Owner	Value
ITEM		Owner	Value	ASSETS
4	Q Street, Suburb B	W	$1,125,000
5	R Street, Suburb D	W	$630,000
14	Net proceeds of sale from Suburb C property late 2023	W	$0
15	CC Bank offset account	W	$109,544
16	ANZ Plus bank account …06	W	$748
17	ANZ Everyday account …18	W	$2,295
18a	HH Bank account	W	$2,295
18b	JJ bank account	W	$389
19a	Carried forward losses: V Business	W	$0
21	Motor Vehicle 4	W	$10,000
22	T Company Investment	W	$1,111
WIFE’S TOTAL “Pool A’ ASSETS		$1,881,382
LIABILITIES
38	CC Bank mortgage on Suburb B property	W	$400,000
39	Mortgage of Suburb D property	W	$431,292
40	ATO tax debt	W	$20,000
42a	ANZ Visa credit card …70	W	$2,585
WIFE’S TOTAL LIABILITIES		$853,877
Wife’s total ‘pool A’ assets Assets minus liabilities ($1,881,382 - $853,877)		$1,027,505