Dohman & Riain
[2025] FedCFamC1A 32
•4 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Dohman & Riain [2025] FedCFamC1A 32
Appeal from: Riain & Dohman [2024] FedCFamC1F 549 Appeal number: NAA 240 of 2024 File number: SYC 2118 of 2021 Judgment of: MCCLELLAND DCJ, WILSON AND CAMPTON JJ Date of judgment: 4 March 2025 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the wife appeals from a single order adjusting the property of the parties as to the value of a payment to be made by the husband, and does not challenge the balance of the suite of orders made pursuant to s 79 of the Family Law Act 1975 (Cth) – Limited and haphazard evidence available to the primary judge – Sub-optimal conduct of the trial before the primary judge by the parties – Limited and haphazard evidence adduced as to a factual finding challenged on appeal as to a value on an entity controlled by the husband – Where the primary judge erred in part in making a finding as to that value – Where the error is discrete and confined – Where no other grounds of appeal have merit – Appeal allowed – Orders on re-exercise to correct the confined error without varying the percentage division of the property of the parties or changing the specie of property achieved by way of the primary judge’s orders – Where the correction finalises the litigation as quickly, inexpensively, and efficiently as possible – Costs certificates ordered. Legislation: Family Law Act 1975 (Cth) s 79 and s 95
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 36
Federal Proceedings (Costs) Act 1981 (Cth) s 6 and s 9
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 10.13 and 13.39
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621; [1953] HCA 25
Cizek & Mihov (2024) FLC 94-206; [2024] FedCFamC1A 151
De Winter and De Winter (1979) FLC 90-605
G v H (1994) 181 CLR 387; [1994] HCA 48
Gibbs & Gibbs [2023] FedCFamC1A 37
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84
House v The King (1936) 55 CLR 499; [1936] HCA 40
King & King (No 2) (2023) 67 Fam LR 274; [2023] FedCFamC1A 100
Marcin & Marcin (2020) FLC 93-956; [2020] FamCAFC 85
Mead v Mead (2007) FLC 93-327; [2007] HCA 25
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Number of paragraphs: 92 Date of hearing: 3 February 2025 Place: Sydney Counsel for the Appellant: Mr Othen SC Solicitor for the Appellant: Rockdene Lawyers Counsel for the Respondent: Ms Hamilton Solicitor for the Respondent: Dalzell Law ORDERS
NAA 240 of 2024
SYC 2118 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS DOHMAN
Appellant
AND: MR RIAIN
Respondent
ORDER MADE BY:
MCCLELLAND DCJ, WILSON AND CAMPTON JJ
DATE OF ORDER:
4 MARCH 2025
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.The orders made on 22 August 2024 and as amended on 26 September 2024 are confirmed save that Order 13 is varied to delete the value “$300,814” and insert the value “$400,564”.
3.The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to her in respect of the costs incurred by her in relation to the appeal.
4.The respondent is granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to him in respect of the costs incurred by him in relation to the appeal.
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 the pseudonym Dohman & Riain has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ, WILSON & CAMPTON JJ
By way of a Further Amended Notice of Appeal filed on 15 January 2025, Ms Dohman (“the wife”) appeals against a single final property order forming a suite of 16 orders made on 22 August 2024, and amended on 26 September 2024 (pursuant to r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)) by a judge of the Federal Circuit and Family Court of Australia (Division 1). Mr Riain (“the husband”) opposes the appeal.
The order challenged by way of appeal is:
13. That the husband pay to the wife the sum of $300,814
$158,122within 30 days.(Strikethrough and underline per the original)
The remaining 15 orders, not challenged on appeal, broadly provide for:
(a)The husband to transfer his interest in a property at D Street, Suburb E (“the Suburb E property”) to the wife, for the wife thereafter to refinance all existing liabilities secured against the Suburb E property in her name, and failing compliance for the Suburb E property to be sold;
(b)The wife to transfer her interest in a property at F Street, Suburb G (“the Suburb G property”) to the husband, for the husband thereafter to refinance all existing liabilities secured against the Suburb E property in his name, and failing compliance for the Suburb G property to be sold;
(c)For the wife to refinance loans to releasee the husband as borrower or guarantor of loans secured over a real property at B Street, Town C (“the Town C property”), she to retain that real property; and
(d)For each party to respectively retain their other property.
Should the appeal be allowed, the wife seeks that this Court re-exercise discretion to vary the quantum she would receive payable by the husband pursuant to Order 13.
For the reasons that follow, the appeal is allowed. Order 13 as made on 22 August 2024 and as amended on 26 September 2024 is further amended to delete the value “$300,814” and insert the value “$400,564”.
BACKGROUND
The husband was born in 1977 and is 47 years old. The wife was born in 1997 and is also 47 years old. The parties commenced cohabitation in 2000, married in 2012, and separated on a final basis in 2019. The parties continued to live separated under one roof until the wife moved out of the former matrimonial home and obtained rental accommodation in 2021.
There are three children to the marriage aged 14, 12, and 10 years. From 2021 the children lived with the wife eight nights per fortnight and with the husband six nights per fortnight during the school term, and equal shared time with each parent during school holidays. Final consent parenting orders were made in these terms on 11 August 2022.
In early 2005 the wife incorporated H Pty Ltd (“H Pty Ltd”). She was the sole director and was and remains the sole shareholder. H Pty Ltd is the trustee of the P Trust. In mid-2005 the P Trust, by way of H Pty Ltd, purchased the Town C property for approximately $225,000. On in mid to late 2006 the husband was appointed as a director of H Pty Ltd.
In early 2006 the parties purchased their home at Suburb G for $425,000. The funds to acquire the home were sourced from a refinance of the mortgage loan secured over the Town C property.
In mid-2014 the parties incorporated W Pty Ltd. It is the trustee of the W Unit Trust. In mid-2016 the wife was appointed as a director of W Pty Ltd. Sometime in 2014 the W Unit Trust, by way of W Pty Ltd, purchased BB Street, Suburb AA NSW (“the Suburb AA property”).
In early 2015 the husband incorporated L Pty Ltd. It is the trustee of the L Unit Trust. The husband, Mr U, and Ms V were directors and shareholders of L Pty Ltd. The respondent, by way of a trust entity, held 60 per cent of the units in the L Unit Trust. The remaining 40 per cent of the units were held by entities controlled by Mr U and Ms V. In mid-2015 the L Unit Trust by way of L Pty Ltd purchased M Street, Suburb N, NSW (“the Suburb N property”). The L Unit Trust, by way of its trustee, obtained a mortgage from the Commonwealth Bank to fund the acquisition in part.
The material in the Appeal Book and the transcript records continuing conflations by each of the parties at trial as to the shares in the bare trustee of the L Unit Trust, L Pty Ltd having value, and the units in the L Unit Trust having value.
In early 2015 K Pty Ltd was incorporated by the husband. It is the corporate trustee of the K Trust.
Sometime in 2016 the parties purchased the Suburb E property for $1.28 million.
On 24 September 2019 Mr U, beneficially holding 40 per cent of the units in the L Unit Trust and a director and shareholder of the trustee, commenced proceedings against the wife, the husband, and K Pty Ltd (controlled by the husband), and sought leave to commence proceedings against L Pty Ltd and W Pty Ltd. The wife was released from the proceedings. The primary judge’s reasons record:
34… A Deed of Settlement and Release (“the Deed”) ended all claims between the remaining parties in early 2021. One of the terms in the Deed (Exhibit 20) reads as follows:
(b) Not later than 3 business days from execution and exchange of this Deed, [Mr U] and [Ms V] will each:
…
(iii) provide to [Mr Riain] share transfer forms for the transfer to [Mr Riain] (or his nominee) of all shares in [L Pty Ltd] which are held by them;
(Deed of Settlement and Release dated 1 March 2021)
35 It is clear that the husband elected to have those shares transferred into the names of the parties’ minor children. This occurred about 2 years after the parties separated. The actual transfer occurred in November 2021.
36 It was necessary for the husband to pay the sum of $800,000 to Mr U pursuant to the Deed. When BB Street, Suburb AA (a property owned by W Pty Ltd) was sold, $500,000 of the $800,000 was paid to Mr U directly from the proceeds of sale. Bank statements suggest the entirety of the $800,000 was ultimately paid.
In mid-2021 the Suburb AA property sold for $2.01 million.
Both the husband and the wife have not insignificant business and commercial experience in the operation of corporate entities. The wife is currently working as a finance professional through her corporation J Pty Ltd. The husband conducts two industry enterprises through K Pty Ltd.
The litigation history
On 25 March 2021 the husband commenced parenting proceedings in what was then the Federal Circuit Court of Australia. On 12 October 2021 the wife filed a Response to an Initiating Application seeking different parenting orders and orders for the adjustment of property. On 29 September 2022 the matter was transferred to the Federal Circuit and Family Court of Australia (Division 1).
The trial was conducted over three days from 5 to 7 August 2024. At trial, the wife had legal representation. The husband was self-represented. The parties were in dispute as to a significant number of the items of their property and their values. The wife sought a finding as to equality as to contributions with an adjustment to the contribution finding of eight per cent in her favour, thereby seeking 58 per cent of the property pool. The husband sought orders adjusting the property pool 62 per cent in his favour.
The reasons record, unchallenged on appeal:
30 While the disclosure by the husband was subpar, this did not ground a conclusion that the husband had undisclosed income or assets such as would impact on my assessment of the pool available for adjustment (except perhaps some publicly listed shares).
31 The financial disclosure of the wife in respect of her income and access to the benefits of self- employment was also less than ideal but similarly, I did not conclude that this failure ultimately affected the determination of the asset pool and was comfortably satisfied that the financial statements for the entity from which the wife derives income provided a tolerably clear impression of the value she is able to derive from her shareholding.
The primary judge determined contributions as to 52.5 per cent to the husband and 47.5 per cent to the wife and made no adjustment pursuant to s 79(4)(e)–(g) of the Family Law Act 1975 (Cth) (“the Act”) thereto.
THE APPEAL
The wife prosecuted five grounds of appeal as contained in the Further Amended Notice of Appeal filed on 15 January 2025, identified as Grounds 2–6 inclusive. For the purposes of the appeal, she grouped Grounds 2, 3, and 5 and Grounds 4 and 6. The wife conceded that if Ground 2 failed, Grounds 3 and 5 would fall away. If Ground 4 failed, there would be little more she could submit in support of Ground 6. We shall address the grounds as grouped by the wife.
THE LAW
Allesch v Maunz (2000) 203 CLR 172 (“Allesch”) at [23], states that the powers of an appellate court are only exercisable if the appellant can demonstrate that “having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error” (emphasis added).
There is a “strong presumption” in favour of the decision appealed from, and an appellate court must be satisfied it is “clearly wrong” before there is any appellate interference (Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621 at 627).
It is not to the point that the appellate court may have come to a different decision on the same facts. The appellate court must be “well satisfied that the primary judge was plainly wrong” and did not properly exercise judicial discretion (Gibbs & Gibbs [2023] FedCFamC1A 37 at [44] citing Gronow v Gronow (1979) 144 CLR 513 (“Gronow”) at 519).
CONSIDERATION
Ground 2 – “[The primary judge] erred in finding that the husband’s mother advanced
the husband[L Pty Ltd] funds as set out in the Financial Statements of [L Pty Ltd] by way of loanwith such findingssince the finding was not open on the evidence.:[…]”Ground 3 – “[The primary judge] erred in that there are no, or no adequate, reasons for finding that the purported debt of the husband’s mother was a liability of [L Pty Ltd].”
Ground 5 – “[The primary judge] erred in failing to draw a Jones & Dunkel inference as sought by the wife, and failed to provide any reasons for not doing so.”
At the conclusion of the trial the parties tendered a joint balance sheet (Exhibit 50). The advance from the husband’s mother is not specifically identified in it. Items 3 and 11 are relevant to the grounds. Exhibit 50 records:
ASSETS Ownership Description Wife/de facto partner’s value Husband/de facto partner’s value 1 J [F Street, Suburb G] NSW […] $1,485,000 $1,485,000 2 J [D Street, Suburb E] NSW […] $2,350,000 $2,350,000 3 H [L Pty Ltd], [M Street, Suburb N] $3,350,000 $2,010,000 4 W [H Pty Ltd] ATF [P Trust] – [1 and 2 B Street, Town C] Qld $550,000 $550,000 5 W [J Pty Ltd] $161,157 $279,304 6 W [Motor Vehicle 1] $20,000 $20,000 7 H [Motor Vehicle 2] $60,000 $60,000 Total $7,976,157 $6,754,304 LIABILITIES Ownership Description Wife/de facto partner’s value Husband/de facto partner’s value 8 J ANZ Mortgages secured over [F Street, Suburb G] $405,277 $405,277 9 J [DD Bank] mortgage secured over [D Street, Suburb E] $874,825 $874,825 10 W CBA and ANZ accounts secured [B Street, Town C] $271,631 $271,631 11 H CBA mortgage secured over [M Street, Suburb N] and investors as at 2023 $868,625 $1,225,102 $1,256,236 12 H Monies borrowed by Husband to pay all mortgages as at 30 June 2024 0 $405,000 13 H [K Pty Ltd] (ACN: 604 846 639) 0 $196,396 14 H [O Financial Services] car loan secured over husband’s motor vehicle $50,356 $114,086 15 H Mediation - Parenting 0 $1,320 16 W Car Loan [Q Bank] $19,400 $19,400 17 W Loan from the wife’s father $165,420 0 18 W Loan from the wife’s cousin $10,255 0 Total $3,022,260 $3,544,171 ADDBACKS Ownership Description Wife/de facto partner’s value Husband/de facto partner’s value 19 W Costs order made by SJR Osmand May 2024 $6,500 $6,500 20 W [R Company] Building Defect Report $4,757 $4,757 Total $11,257 $11,257 SUPERANNUATION Member Name of fund Type of interest Wife/de facto partner’s value Husband/de facto partner’s value 23 H [Super Fund 1] – as at 30 June 2024 Accumulation $261,665 $261,665 24 W [Super Fund 2] Accumulation $71,283 $71,283 Total $332,948 $332,948 NET TOTAL ASSETS (including Superannuation) $5,286,845 $3,543,081
The single forensic accounting expert produced a report as to the value of the wife’s interests in J Pty Ltd. For reasons that remain unexplained, the parties failed or neglected to obtain any single expert evidence as to the value of their interests by way of units held in the L Unit Trust. The parties agreed at trial as to the value of the Suburb N property owned by L Pty Ltd as trustee for the L Unit Trust (Item 3) at $3,350,000.
Dispute existed as to whether the husband beneficially held 60 per cent or 100 per cent of the issued units in the L Unit Trust. The reasons record:
44 The husband owns shares in L Pty Ltd. He owns 60 of the hundred issued shares in the company or 60%. The remaining 40 shares are owned by the parties’ minor children.
45 In her application, the wife sought an order that the children be declared to hold their shares on trust for the father. The children are not parties to the proceedings. I am not satisfied that the evidence establishes that the children hold their shares on trust for the father, and even if I had been satisfied it would have been necessary for their interests to be represented. I am however, satisfied that the father voluntarily caused the shares to be registered in the names of the parties’ minor children in circumstances where it was open to him in the factual circumstances which arose to have the shares transferred into his own name and accordingly I am satisfied that it would be appropriate to treat the value of the children’s shareholding as though it were an asset in the name of their father.
46 The wife sought the following declaration in her Amended Minute of Order (Exhibit 47):
… pursuant to section 78 of the Family Law Act 1975, it is declared that [X], [Y] and [Z] hold their shares in [L Pty Ltd] on trust for the husband
(Wife’s Amended Minute of Order tendered 7 August 2024)
47 The wife’s counsel did not make any submissions in support of the making of this declaration either in writing or orally. While it was not made explicit it may have been in the wife’s contemplation that the children held their share on resulting trust (the father having provided the consideration necessary to obtain the 40%). However, if that were the contention, no submissions addressed the presumption of advancement.
48 The husband did not explain his conduct in gifting these shares to the parties’ minor children other than to submit that he had done so to assist the children financially in the future. The husband is, of course, entitled to deal with his assets. However, 40 shares in the entity have a value of about $650,000 and, but for the gift post-separation, would have been part of the property available for adjustment between the husband and wife.
49 No party has asked that I make an order for transfer of the shares held by the children. The issue is how I should treat the fact that the husband procured transfer of an asset which the Deed provided could be transferred to him, to the children instead, hence removing it from the assets which he legally owns for the purpose of these property proceedings. In order to do justice and equity between the husband and wife it is not open to me to effectively ignore the fact that the pool is smaller.
…
51 The effect of this finding is that for the purpose of the balance sheet I will treat the husband as though he has 100% of the shares.
The wife did not explain on appeal the juxtaposition between what she prosecuted at trial as to the husband beneficially holding the whole of the L Unit Trust and her relief as to the children legally and beneficially holding 40 per cent of (the units) of the trust.
The dispute as to the fact and value of the L Trust was not forecast in the Case Outline documents. It emerged haphazardly over the course of the trial. The reasons record:
Items of dispute on the balance sheet
L Pty Ltd
32 The company owns a property at M Street, Suburb N NSW […]. The parties agree that the value to be attributed to the Suburb N property is $3,350,000, being the figure in the single expert report dated July 2024. Further, the parties agreed that the Suburb N property is encumbered by way of a mortgage in the sum of $1,222,913.
33 The husband also says that there are debts of the company to persons who have invested funds with the company (or loaned monies to the company). I examine each of these purported liabilities below.
…
37…The most recent financial statements for the entity were in evidence and revealed the mortgage balance for the CBA loan in the sum of $1,245,213 as at 30 June 2023 and the following debts listed as “related party payables”:
Loan W Unit Trust $10,175
Loan Ms CC $495,081
Loan K Trust $284,206
Loan Mr Riain $45,012
Total $834,474
In circumstances where the value of the L Unit Trust was not agreed, and there was no expert evidence adduced as to its value, the reasons record:
41 Ordinarily it would be appropriate where shares in a company are being ascribed a value having regard to its net asset backing (as appears to have been the parties’ agreement here), to take into account all of its liabilities. The position is more problematic here…
…
43 I accept that the approach of valuing the shares by taking the value of the real property and deducting the secured debt (mortgage) and the one debt which appears on its face to be repayable is a less than ideal approach but the manner in which the parties conducted their case left this as the only credible approach to the conundrum. …
(Emphasis added)
In a commendable effort to deal with the chaotic material deficiently adduced to determine the conundrum as to the value of the L Unit Trust from which the wife now makes complaint by way of these grounds, the primary judge, found unchallenged, on appeal:
(a)At [38] and [39], that the loan contended to be payable by the W Unit Trust to the L Trust would not be called upon, as the W Unit Trust was dormant and was agreed to be removed from the balance sheet. That the liability would not be payable by the L Unit Trust;
(b)At [41], that the $284,206 said to be owed to the K Trust does not appear on the financial statements as an asset of that entity. If those monies are not to be paid to the K Trust, then they ought not be included as a liability of L Pty Ltd; and
(c)The monies said to be owing to the husband by L Pty Ltd ($45,012), if included as liability of the company, would be included as an asset of the husband. In effect, they would cancel one another out.
This then left the issue as to whether the L Unit Trust owed $495,081 to the husband’s mother, Ms CC. Notwithstanding the construction of Ground 2, the reality is that it is a challenge to the finding at [43] and consequently at Item 3 at [82]:
43 …Accordingly, the 100 shares in the entity have a value derived as follows:
Value of M Street Suburb N $3,350,000
Mortgage over M Street Suburb N ($1,225,102)
Ms CC ($495,081)
Total: $1,629,817
…
82Accordingly, I find that the assets, liabilities and superannuation of the parties available for adjustment between them are:
Ownership Description Value 1 J F Street, Suburb G $1,485,000 2 J D Street, Suburb E NSW $2,350,000 3 H Shares in L Pty Ltd $1,629,817 4 W Shares in H Pty Ltd ATF P Trust $550,000 5 W Shares in J Pty Ltd $161,157 6 W Motor Vehicle 1 $20,000 7 H Motor Vehicle 2 $60,000 Total $6,255,974 Ownership Description Value 8 J ANZ Mortgage secured over F Street, Suburb G $405,277 9 J DD Bank mortgage secured over D Street, Suburb E $874,825 10 W CBA & ANZ accounts secured over B Street, Town C $271,631 13 H ANZ overdraft and fit out loan (K Pty Ltd) $196,396 14 H O Financial Services car loan secured over husband’s motor vehicle $113,001 16 W Car Loan Q Bank $19,400 W Wife’s liability to J Pty Ltd $118,417 Total $1,998,947 Member Name of fund Type of interest Value 23 H Super Fund 1 – as at 30 June 2024 Accumulation $261,665 24 W Super Fund 2 Accumulation $71,283 Total $332,948 NET TOTAL ASSETS (including Superannuation) $4,589,975
The wife contends on appeal that the evidence relied upon by the husband to establish that L Ltd owed $495,081 to his mother was insufficient for the finding at [43], and hence at Item 3 at [83], to be made. The balance of the findings made at [83] are not challenged on appeal.
It is necessary to unpack the evidence relevant to the asserted error and the submissions made (or not made) relevant to it at trial, being:
(a)The husband was not challenged on his evidence that, on 13 May 2015, a loan agreement was entered between L Pty Ltd and his mother (Exhibit 33). That agreement provided that the loan amount of credit was “up to $550,000” with an interest rate of 10 per cent per annum which was repayable in “one lump sum repayment at the end of the loan term (of 10 years) or up on [sic] the sale of the [Suburb N property]”. The agreement further provided:
This loan is strictly for the purpose of maintaining the [Suburb N] property, i.e. payment of bank mortgages, land tax, rates, counsel fees, development application fees, and must not be used for any other purpose.
(b)The annual financial statements of L Pty Ltd from 2016 until 2023 (Exhibit 35) were prepared by accountants for the unit trust.
(c)The husband did not adduce evidence from his mother.
The submission of the wife at trial as to the fact and value of the husband’s mother’s loan advanced to L Pty Ltd was limited to:
(a)The “husband hasn’t been honest with the court in both his oral evidence and his written evidence in relation to this” (Transcript 7 August 2024 p.198 lines 1–2);
(b)That “it is artificial and unfair to simply take one debt out of that, and say that that should be a joint liability when no other liabilities are being taken into account” (Transcript 7 August 2024, p.199 line 17–19); and
(c)Perhaps being directed to Item 12 in Exhibit 50 being a contended post-separation loan from the husband’s parents to the husband and also the advance from the husband’s mother to L Pty Ltd “[i]t defies belief… that [the husband’s] parents, who immigrated to Australia from [Country GG] in the 1980s, whose main language is [Language HH], with a mother who has done very little paid employment during her time in Australia, and a father who has worked […] but who is now on the pension and has been on the pension for some time, could loan this amount of money” (Transcript 7 August 2024, p.201 lines 34–39).
The wife’s contentions on appeal are somewhat different from those made at trial. On appeal the wife contends that, while the husband provided L Pty Ltd’s financial statements and the loan agreement between his mother and L Pty Ltd, this, together with his own testimony, was insufficient to discharge the burden of proof in circumstances where no other corroborative evidence was presented to prove that “the funds were in fact advanced” (at [42]) as to the loan at any time.
A plain reading of the Appeal Book, including the wife’s affidavit evidence and Case Outline document, does not suggest complaint as to the fact and the value of the husband’s mother’s loan to L Pty Ltd would be an issue at trial. Issue existed as to the fact and terms of the husband’s parents advancing funds to him personally post-separation.
At the hearing of the appeal the wife was not able to identify anywhere in the Appeal Book or transcript, any request for disclosure of the bank statements of L Pty Ltd or the husband’s mother prior to 30 June 2020. The husband was not challenged on his assertion that monies advanced by his mother prior to the financial year commencing 1 July 2020 was for the purpose as stated in the loan agreement of meeting expenses associated with the Suburb N property.
The annual financial statements of L Pty Ltd from 2016 until 2020 were the subject of some cross-examination of the husband at trial, but not challenged (Transcript 5 August 2024, p.42 line 29 to p.44 line 8). They record L Pty Ltd’s annual income being insufficient to pay its expenses and that shortfall being funded by the value of an increasing liability payable to the husband’s mother at a rate that was not inconsistent with annual losses incurred by the unit trust. The liabilities payable to other entities also similarly increased. The L Pty Ltd financial statements up until 30 June 2020, approved by both the husband and Mr U, being the owners of the issued units in the trust, were not submitted at trial by the wife to be inaccurate. No submission inferred that Mr U, as the other owner of L Pty Ltd, would produce inaccurate annual financial statements. No submission was made at trial challenging the fact and quantum of funds recorded to be advanced by the husband’s mother to L Pty Ltd pursuant to the 2015 loan agreement prior to 30 June 2020.
The wife is bound by the way she conducted her case at first instance. The primary judge cannot be criticised for not considering a matter not addressed at trial. The value of L Pty Ltd’s liability to the husband’s mother at 30 June 2020 was $223,915.
The value of L Pty Ltd’s liability to the husband’s mother (as recorded in Exhibit 35) increased by $213,915 from $223,915 on 30 June 2020 to $437,880 on 30 June 2021. The husband was extensively challenged at trial as to his mother’s source of funds increasing the value of the loan during the 2021 financial year (Transcript 5 August 2024, p.46 line 13 to p.48 line 20). The husband was not directly challenged as to the accuracy of the 2021 trust financial statements.
There was no controversy in respect to relevant principles to be applied. Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 (“Robinson Helicopter”) at [43] states that in order to establish an error of fact, it is necessary for the appellant to establish that the impugned finding of fact was:
(a)demonstrably wrong by incontrovertible facts or uncontested testimony; or
(b)glaringly improbable; or
(c)contrary to compelling inferences.
Factual findings are not wrong “merely because an appellant can point to some countervailing evidence” (Cizek & Mihov (2024) FLC 94-206 at [21]). Nor is error established simply because the appellate court would have arrived at a different conclusion (Gronow per Stephen J at 519).
Relevant to these grounds, not addressed by the wife at trial, are the historic holding of 40 per cent of the issued units in the L Pty Ltd by Mr U and the terms of the settlement of the 2019 litigation compromised with them in 2021.
At paragraph 111 of his trial affidavit sworn on 18 July 2024, the husband said that he paid $800,000 to Mr U and Ms V in June 2021. The primary judge found that $500,000 of that amount was paid to Mr U directly from the proceeds of sale of the Suburb AA property (at [36]). There was a controversy between the parties as to the source of the payment for the balance of the settlement monies.
During the trial, the husband stated that he had used the monies contributed by his mother to L Pty Ltd between 30 June 2020 and 30 June 2021 totalling $210,000, “to acquire the shares of the other unit holders” in the L Unit Trust. That is, for the purpose of making up the part of the shortfall of $300,000, over and above the proceeds of sale of the Suburb AA property.
The submission of the wife at trial was that this evidence ought not be accepted:
In the deed of settlement in relation to the dispute he had with his former shareholders, the only evidence is payment of 500 – the – in relation to the proceeds of sale, and the settlement statement is at exhibit 6. The only evidence is payment from that, from the proceeds of sale of [the Suburb AA property], of $500,000, not $800,000. In relation to the other – the payment of the other $300,000, your Honour can find evidence in – starting at page 160 of [the husband’s] affidavit in the bank statements there, where he says […] July 2020 – no, sorry – [in] September 2021, there’s a transfer from NetBank of $100,000. All it says is “loan”.
[In] September, there’s a transfer to [Law Firm JJ’s] trust account in settlement of the [Mr U] matter. There is no explanation provided here as to who that loan is from. Your Honour, at page 1076, there’s another payment to [Law Firm JJ] of $100,000 – transfer to [Law Firm JJ]. Then there is another loan – transfer from NetBank [in] October, “loan”, of $100,000 – again, doesn’t say who it’s from – and a transfer out the next day to [Law Firm JJ]. So there has been no explanation at all provided from [the husband] as to where those 100 – $300,000 came from, but it certainly didn’t come from the direct proceeds of the sale of [the Suburb AA property].
(Transcript 7 August 2024, p.206 lines 12–28) (Emphasis added)
The controversy as to the source of the additional $300,000 paid to Mr U and Ms V in settlement of the L Unit Trust dispute was not definitively resolved, but the primary judge found that “[b]ank statements suggest the entirety of the $800,000 was ultimately paid” (at [36]). This finding was not challenged on appeal.
The question on appeal becomes: were the monies said to be contributed by the husband’s mother during the financial year ending 30 June 2021 for him to acquire the interest of Mr U and Ms V recorded as received by L Pty Ltd as $210,000 and included in the value of the legally enforceable debt payable by that entity to his mother? This would have the effect of increasing the value of her loan by $210,000 and then found to have reduced the value of L Pty Ltd by an equivalent amount of the total debt recorded as due to her of $495,081 (at [42]).
We have considerable sympathy for the primary judge who endeavoured to do the best as could be done within the deficient parameters presented by the parties on this subject matter at trial. Understandably, at [40] of the reasons, the primary judge observed:
It is not clear whether the amount said to be owing to the husband’s mother is in addition to or part of the funds said to be advanced under the loan agreement and whether it includes or excludes any monies said to have been borrowed to fund mortgages post-separation.
(Emphasis added)
The primary judge nonetheless reduced the value of L Pty Ltd by the amount of $495,081, found to be payable by the entity to the husband’s mother. In that respect the primary judge stated, at [42]:
…I accept that the financial statements of the company have recorded the funds advanced by the husband’s mother historically and accept that the husband’s capacity to acquire the interests of his previous business partners has probably been largely dependent upon the injection of cash from outside the company in circumstances where neither he nor the wife had funds available in their own names. I accept that the husband says that there is interest payable on these monies, but given that I cannot be satisfied that all of the funds were in fact advanced in accordance with the terms of the loan, then doing the best I can with the available evidence, I will accept the figure from the most recent set of financial statements in evidence before me namely $495,081 (excluding interest).
(Bold and italics emphasis added)
Whilst entirely understandable, by undertaking a real review of all of the evidence, the primary judge was nonetheless in error in finding that the totality of the $495,081 was payable to the husband’s mother pursuant to a legally enforceable agreement.
The 2015 loan agreement, relied upon by the husband to establish the existence of a legally enforceable obligation on the part of L Pty Ltd to repay monies advanced by his mother, was limited “strictly for the purpose of maintaining the [Suburb N] property, i.e. payment of bank mortgages, land tax, rates, counsel fees, development application fees, and must not be used for any other purpose” (emphasis added). The linkage of the funds to the Suburb N property was also confirmed by the requirement of L Pty Ltd to repay the loan in the event of that property being sold. There was an absence of evidence that the $210,000 had been advanced by the husband’s mother to L Pty Ltd pursuant to the terms of the 2015 agreement.
The husband failed to produce any documentary evidence verifying the receipt and payment of the $210,000. There was an absence of banking records showing funds paid from an account of the husband’s mother in the 2021 financial year to L Pty Ltd, nor were there records showing receipt of funds paid by the mother into the sole bank account operated by L Pty Ltd, which was identified by the respondent as being Commonwealth Bank account ending #...20 (Transcript 5 August 2024, p.44 lines 38–39); and establishing that L Pty Ltd transferred funds from that bank account to Mr U in satisfaction of the obligation set out in the 2021 Settlement Deed.
It is illogical for the husband’s mother to advance $210,000 to the unit trust itself during the 2021 financial year for the husband as a unitholder “to acquire the [units] of the other unit holders”. If the funds flowed from the husband’s mother through L Pty Ltd to the husband to pay to Mr U and Ms V, this would create a debt or liability of the husband to L Pty Ltd. It did not.
The High Court in Robinson Helicopter said that where an intermediate court hearing an appeal by rehearing concludes that the primary judge erred in fact, then “it is required to make its own findings of fact and to formulate its own reasoning based on those findings” (at [43]).
There was an absence of evidence that L Pty Ltd was under a legally enforceable obligation to pay the sum of $210,000 to the husband’s mother said to be applied to purchase the interests of Mr U and Ms V, or that this sum had been received by the trust from the husband’s mother in the 2021 financial year. The challenge to the finding that the value of the liability payable by L Pty Ltd to the husband’s mother as recorded in the 2023 financial statements at $495,081 is established to the extent that it included, on the husband’s own evidence, the $210,000 contended to be advanced by his mother in the 2021 financial year.
This, in turn, impacted upon the finding by the primary judge as to the value of L Pty Ltd which, in our respectful opinion, should have been valued on the basis of having a legally enforceable debt to the husband’s mother in the sum of $285,081 and not $495,081. Therefore, the value in the balance sheet of L Pty Ltd, on a consideration of all the evidence, ought to have been $1,839,817.
Accordingly, Grounds 2, 3, and 5 partially succeed.
Ground 4 – “[The primary judge] erred in finding that the Husband’s contributions should be assessed at 52.5% on account of his post-separation contributions in maintaining real property in circumstances where: (a) [The primary judge] failed to give any, or adequate weight, to the financial resources available to the husband in the post-separation period; (b) [The primary judge] failed to give any, or adequate, weight to the husband’s lack of disclosure as to his financial circumstances; (c) The inferential finding that such properties were maintained by funds advanced by family members or other third parties (whether by loan or otherwise) was not open on the evidence; and (d) [The primary judge] treated funds purportedly advanced by the husband’s mother both during the relationship and post-separation as contributions made on his behalf when such amounts were counted as a liability on the Balance Sheet.”
Ground 6 – “[The primary judge] erred, in coming to a 52.5/47.5 assessment on contributions, by: (a) Failing to give any, or adequate weight to monies advanced by the wife’s parents during the relationship; (b) Failing to take into account a material matter, being the husband’s access to funds in the post-separation period from the sale of assets; and (c) Failing to meaningfully consider the husband’s inadequate and/or failures to make proper disclosure in the proceedings.”
The challenge by way of Ground 4 as constructed does not accurately reflect the reasons of the primary judge. The primary judge did not expressly determine the finding of the husband’s contributions at 52.5 per cent “on account of his post-separation contributions”. The primary judge took a global approach to the contribution finding up to the time of the trial (at [83]). No finding was made as to an assessment of contributions during the period of the relationship as opposed to the post-separation period. It seems that the construction of the ground is centred upon the following paragraph of the reasons:
97 While I am obliged to consider all the contributions identified by the material in the context of the relationship as a whole, the most significant matters underpinning my contribution findings come from the imbalance in the contributions which each party received from family.
The primary judge did not ascribe a specific percentage to the parties’ contributions received from family, or those received during the relationship, as opposed to those received in the post-separation period. By way of the holistic approach employed by the reasoning, it is tolerably clear that individual contributions were not quantified.
Grounds 4 and 6 challenge an implicit finding of fact and the attribution of weight in the exercise of a discretionary determination. The wife must therefore demonstrate an error as identified in House v The King (1936) 55 CLR 499.
The value of the complaint, as a function of the finding of the value of the property of the parties being $4,589,975 as found (at [82]) is a differential of $229,499 (Wife’s Summary of Argument, paragraph 36). As is later explained, the value of this differential is determinative to the weight challenges by way of the sub-grounds.
The factual finding challenged by sub-ground 4(c) in assessing the parties’ contributions globally is:
92 I also accept that while the evidence fell well short of establishing the existence of legal loans between the husband and his parents, the husband had significant financial assistance in meeting the parties’ joint expenses particularly after separation. The husband submitted that his contributions after separation in servicing the mortgages were significant but as discussed above they cannot be viewed in isolation.
(Emphasis added)
By way of context to sub-ground 4(c), it was unchallenged at trial and on appeal that:
(a)The mortgage payments and outgoings on the five real properties owned by the parties and associated entities, from the time of separation, continued to be met solely by the husband in the five-year period post-separation;
(b)The mortgage loans values on the Suburb N, Town C, Suburb E, and Suburb G properties had decreased in the post-separation period; and
(c)The husband produced, and was cross-examined on, a self-authored table as to his contributions to the mortgage loans and outgoings for the properties, either by way of his own funds or loans from family and friends, in the post-separation period (Exhibit 41) totalling $707,840. The value of these payments, and the fact they were made, was not put into dispute. It did not identify the $210,000 said to be advanced by the husband’s mother to L Pty Ltd in the 2021 financial year. Its absence from Exhibit 41 was not identified at the hearing of the appeal to be the subject of any cross-examination or submission at trial. The schedule records the husband’s mother in the year ended 30 June 2022 advancing $45,300 to L Pty Ltd and $25,000 in the financial year ended 30 June 2023. Again, the wife did not identify on appeal any cross-examination or submission as to those contended payments. Sub-ground 4(d) as it pertains to the alleged “double count” of the $210,000 advance from the husband’s mother to L Pty Ltd in the 2021 financial year is absent merit. Although not the subject of particularisation in the wife’s Summary of Argument and, at best, identified by inference at the hearing of the appeal, the ground which asserts a limited “double count” has some merit as to $70,300 applicable to the 2022 and 2023 financial years, being included as a liability of L Pty Ltd, thereby reducing its value, and accounts for 10 per cent of the value of the payments made by the husband in the post-separation period totalling $707,840.
Dispute existed at trial as to the husband seeking to include as a liability in the balance sheet the value of funds said to be sourced by way of loans from his parents and friends in the sum of $405,000 (Item 12 Exhibit 50) forming part of the funds sourced to pay the $707,840.
The wife submitted at trial that if the funds to service those mortgages had not been sourced from the husband’s parents, then they must be from another source of income or a financial resource of the husband that he has not disclosed in the proceeding (Transcript 7 August 2024, p.203 lines 42–45). Notwithstanding finding the husband’s disclosure was “subpar” (at [30]), the primary judge did not accept the wife’s submission that the husband had undisclosed income or assets that would impact on the assessment of the pool available for adjustment, save for a small quantity of publicly listed shares.
There was no other explanation promoted in the wife’s case before the primary judge as to alternate income streams or financial resources of the husband to maintain the properties in the post-separation period. The wife, nearing the conclusions of her submissions, to the contrary said that the parties were “essentially asset-rich, cash-poor” (Transcript 7 August 2024, p.209 lines 13–14).
On appeal the wife shifted her contentions from those made at trial, submitting there were “plausible alternate sources of funding” for the maintenance of the properties, including the proceeds of sale of the Suburb AA property to which a proper accounting of the settlement funds would conclude that the husband had access to approximately $371,132 after payment of liabilities, $22,000 from the proceeds of a sale of Motor Vehicle 3, the husband’s “additional income”, and the husband’s undeclared shares in Westpac and the NAB.
Leaving aside the wife being bound by the conduct of her case at trial, and that such submissions ought not be raised on appeal (Metwally v University of Wollongong (1985) 60 ALR 68), as to:
(a)The finding at [29] as to the husband’s disclosure was not challenged on appeal. Either the husband applied the balance of the Suburb AA sale funds to acquire the L Unit Trust units held by Mr U, and hence the Suburb AA proceeds are included by way of 100 per cent of the value of the L Unit Trust units in the balance sheet, or he sourced the acquisition funds from others not included as liabilities in the balance sheet and retained the proceeds of the sale of the Suburb AA property. Either way, for the purposes of these grounds, the net effect is of no material prejudice to the wife.
(b)The husband received $22,000 from the proceeds of sale of Motor Vehicle 3 in the shadow of the trial in May 2024 (Transcript 5 August 2024, p.39 lines 1–10). That value is not significant when compared to the value of the payments made preserving the property portfolio over five years and by reference to the differential value of the contribution finding under challenge.
(c)The husband’s additional income, termed by the wife as “trailing commissions” were “project management fees” that lasted approximately three to four months (Transcript 6 August 2024, p.99 line 34 to p.100 line 32). No submissions were made as to the trailing commissions to the primary judge.
(d)The undeclared shares in Westpac and the NAB are expressly considered at [30].
The husband’s income tax returns over the period of separation were not suggested to be unreliable. The income recorded therein was insufficient to meet the undisputed costs of mortgages and outgoings in respect of the properties (Transcript 7 August 2024, p.216 lines 8–27). The wife did not pay the post-separation mortgages and outgoings. There was no challenge that these were met by the husband. The only complaint of the wife at trial was the source of the payments he made.
The evidence records deposits into mortgage accounts by the husband’s parents. At trial, the wife acknowledged that the DD Bank statements show that payments are being made “supposedly, from [the husband’s] father”, however she then asked the primary judge “to accept that it’s not a loan and there are no payments from the father, but the payments are being made. So it begs the question, what is the source of funds for those payments? And that is a significant aspect, in my submission, of the husband’s non-disclosure.” (Transcript 7 August 2024, p.203 line 45 to p.204 line 6).
The primary judge found that there were “significant deficits” in the husband’s evidence (at [62]) which did not “make a distinction between money borrowed from his mother, his father and family friends” (at [63]). The primary judge found that:
(a)Whilst the evidence was not precise, funds to maintain those properties came from the husband’s income and from assistance he received from third parties, including family members; and
(b)The evidence did not establish the amount of funds so received by the husband, from third parties, was not quantified.
Hence the primary judge concluded:
74 I cannot, given the state of the evidence, make a finding that the husband is liable to a person or persons unknown. Given the state of the evidence the approach most likely to do justice and equity as between the parties is to acknowledge that the funds which have been applied by the husband to mortgages in the post-separation period are a contribution on the husband’s behalf to be expressed as a percentage as opposed to acknowledgment of a loan.
(Emphasis added)
The primary judge accepted the wife’s submission at trial that the evidence could not establish the loan at Item 12 in Exhibit 50, however her submission stopped there. She did not engage at trial as to how the post-separation contributions to the mortgages should be weighed in the contribution findings. That significant omission only became the subject of distinct attention on appeal.
The process of drawing inferences from established facts simply involves logical deduction (G v H (1994) 181 CLR 387 at 390; Mead v Mead (2007) FLC 93-327 at [13]). The wife’s complaint by way of the sub-ground 4(c) fails to engage with the findings at [74] and [92] that the husband had significant financial assistance from third parties to meet the mortgage commitments and expenses in respect of the parties’ properties, being not only open on the evidence but that it was the only logical conclusions available.
Separate from the conclusions at [74] and [92] is the implicit double count of $70,300 identified in [66] of these reasons. The value and particulars of the double count were not identified with any precision at the hearing of the appeal. As no submission was made as to the error being material to the outcome of the final orders, implicitly it was not (De Winter and De Winter (1979) FLC 90-605).
As to sub-grounds 4(a) and 4(b), complaints upon appeal as to the weight attributed to some portion or portions of the evidence are meaningless unless it is contended that the ultimate exercise of discretion was manifestly unreasonable or unjust (Hedlund & Hedlund (2021) FLC 94-065 at [12], [36], and [37]). No ground of appeal asserted that the appealed decision fell into that category. Nevertheless, the sub-grounds will be considered insofar as they have not been determined by way of sub-ground 4(c). The primary judge accepted at [72] that the husband’s recourse to borrowings to support the maintenance of real properties in the post-separation period was an asset preservation strategy enabling the capital growth in the value of the properties enjoyed in the period from separation until trial. The primary judge considered and weighed that the wife also received funds from family members, but determined those contributions were likely to be less than the funds received by the respondent from third parties in the post-separation period. The care of the children was close to equally shared by the parties’ post-separation. Having regard to those matters, as considered by the primary judge, it cannot be suggested that the conclusion weighing the balance of the husband post-separation is indicative of error. Sub-grounds 4(a) and 4(b) fail.
Grounds 4 fails. Ground 6 fails for the same reasons.
SHOULD THIS COURT RECONSIDER THE EXERCISE OF THE SECTION 79 DISCRETIONS?
Section 36 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), gives a wide power to the Full Court exercising power in an appeal to affirm, reverse, vary the judgment appealed, or make appropriate orders including for the matter to be remitted for hearing before judge of the Court.
The wife firmly submitted that if error was established, the Full Court should re-exercise discretion rather than to remit the matter for rehearing by a judge other than the primary judge. The husband initially agreed to that course, then prevaricated in respect to that issue but ultimately said he would prefer it be remitted if error was established.
In considering the wife’s application we are mindful that in Marcin & Marcin (2020) FLC 93-956, the Full Court said that a rehearing is an order of last resort and generally exasperating for both parties. Neither party in this appeal used the opportunity to present further evidence by way of r 13.39 of the Rules to address deficiencies in the evidence identified by the primary judge, or to update the evidence in respect to changes that have occurred since the trial. Neither party indicated that they would seek the opportunity to adduce fresh evidence if the matter was remitted. Only the value of the payment to be made by the husband to the wife pursuant to Order 13 is proposed to be varied. Neither party seeks to disturb the other 15 orders adjusting their property. These considerations militate to the re-exercise of discretion.
Ground 2 was established in part. The error in the finding of the value of L Pty Ltd was sourced from, and confined to, the value of the husband’s interest it, increasing it by $210,000, from that as found by the primary judge to be $1,839,817. The finding of the property of the parties at $4,589,975 (at [82]), absent the error as to the value of L Pty Ltd, ought to have been $4,799,975, illustrated as:
ASSETS Ownership Description Value 1 J F Street, Suburb G $1,485,000 2 J D Street, Suburb E NSW $2,350,000 3 H Shares in L Pty Ltd $1,839,817 4 W Shares in H Pty Ltd ATF P Trust $550,000 5 W Shares in J Pty Ltd $161,157 6 W Motor Vehicle 1 $20,000 7 H Motor Vehicle 2 $60,000 Total $6,465,974 LIABILITIES Ownership Description Value 8 J ANZ Mortgages secured over F Street, Suburb G $405,277 9 J DD Bank mortgage secured over D Street, Suburb E $874,825 10 W CBA & ANZ accounts secured over B Street, Town C $271,631 13 H ANZ overdraft and fit out loan (K Pty Ltd) $196,396 14 H O Financial Services car loan secured over husband’s motor vehicle $113,001 16 W Car Loan Q Bank $19,400 17 W Wife’s liability to J Pty Ltd $118,417 Total $1,998,947 Member Name of fund Type of interest Value 23 H Super Fund 1 – as at 30 June 2024 Accumulation $261,665 24 W Super Fund 2 Accumulation $71,283 Total $332,948 NET TOTAL ASSETS (including Superannuation) $4,799,975
To correct the value of the adjusting sum pursuant to Order 13 payable by the husband to the wife would reflect, absent distortion, the clear intention of the reasons (King & King (No 2) (2023) 67 Fam LR 274).
The parties have been vigorously litigating and expending substantial financial and emotional resources by way of the listings for three trial events for over three years. The costs they have incurred have consumed in the range of 25 per cent of their property. It is appropriate, considering s 95 of the Act, as reinforced by r 1.04 of the Rules, that this litigation is brought to finality as quickly, inexpensively, and efficiently as possible in this forum.
By way of the orders of the primary judge, less the cash adjusting sum, the husband has the benefit of the following property:
ASSETS Ownership Description Value 1 H F Street, Suburb G $1,485,000 3 H Shares in P Pty Ltd $1,839,817 7 H Motor Vehicle 2 $60,000 Total $3,384,817 LIABILITIES Ownership Description Value 8 H ANZ Mortgages secured over F Street, Suburb G $405,277 13 H ANZ overdraft and fit out loan (K Pty Ltd) $196,396 14 H O Financial Services car loan secured over husband’s motor vehicle $113,001 Total $714,674 Member Name of fund Type of interest Value 23 H Super Fund 1 – as at 30 June 2024 Accumulation $261,665 Total $261,665 NET TOTAL ASSETS (including Superannuation) $2,931,808
To achieve 52.5 per cent of $4,799,975, the husband by way of the orders of the primary judge, needs to receive $2,519,987. He currently has $2,931,808. The husband therefore ought to pay the wife $411,821.
By way of the orders of the primary judge, less the cash adjusting sum, the wife has the benefit of the following property:
ASSETS Ownership Description Value 2 J D Street, Suburb E $2,350,000 4 W Shares in H Pty Ltd ATF P Trust $550,000 5 W Shares in J Pty Ltd $161,157 6 W Motor Vehicle 1 $20,000 Total $3,081,157 LIABILITIES Ownership Description Value 9 J DD Bank mortgage secured over D Street, Suburb E $874,825 10 W CBA and ANZ accounts secured over B Street, Town C $271,631 16 W Car Loan Q Bank $19,400 17 W Wife’s liability to J Pty Ltd $118,417 Total $1,284,273 Member Name of fund Type of interest Value 24 W Super Fund 2 Accumulation $71,283 Total $71,283 NET TOTAL ASSETS (including Superannuation) $1,868,167
To achieve 47.5 per cent of $4,799,975, the wife by way of the orders of the primary judge, needs to receive $2,279,988. She currently has $1,868,167. The husband therefore ought to pay the wife $411,821.
The primary judge took into account the outstanding costs order and the amount payable for the wife’s share of the single expert report (at [108]) and reduced the sum payable by $11,257. The cash adjusting sum by way of Order 13 therefore ought to be $400,564.
COSTS
In the event the appeal was allowed, the wife and the husband sought a certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth). It cannot be said that the wife has been wholly unsuccessful. Error has been found on the part of the primary judge. Notwithstanding its origin was in large part generated by the sub-optimal conduct of the parties at trial, it is appropriate to grant certificates in favour of both the husband and the wife for the appeal.
I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Wilson and Campton. Associate:
Dated: 4 March 2025
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