Dovgan & Dovgan

The Family Court of Australia considered a property settlement dispute between Mr. and Mrs. Dovgan. The primary dispute concerned the valuation of real estate, the inclusion of substantial assets held in discretionary trusts within the marital property pool, and the proper construction of a deed executed by the husband. The wife also sought orders under Part VIIIAA of the *Family Law Act 1975* (Cth) to protect her interests.

The court was required to determine several key legal issues. These included whether the wife should be permitted to adduce adversarial expert evidence regarding the valuation of real estate, despite the prior appointment of a single expert and the husband's acceptance of that valuation. The court also had to consider the proper methodology for valuing real estate, particularly where there was a remote potential for rezoning, and whether to depart from the single expert's valuation. Furthermore, the court needed to construe a "Deed of Acknowledgement" executed by the husband to determine if it created a trust or a contingent promise, and whether the trust assets of two discretionary trusts were property "of" the husband for the purposes of property settlement. Finally, the court had to assess the appropriateness of making orders under Part VIIIAA of the Act.

Regarding the real estate valuation, the court found that the wife failed to satisfy the criteria under Rule 15.59(2) of the *Family Law Rules 2005* to permit the late introduction of adversarial expert evidence, and the court would not have exercised its discretion in her favour. The court held that the evidence did not permit a departure from the value determined by the single expert, noting that any potential for a higher value due to rezoning could be considered under s 79(4)(e) of the *Family Law Act 1975*. On the construction of the deed, the court found that it did not create a trust, but rather acknowledged a promise to pay on a contingency, and the husband's subsequent conduct was inconsistent with any contractual or promissory intention. The court determined that the substantial assets held within the discretionary trusts were not property "of" the husband, as he was a discretionary object but not a trustee, settlor, or appointor, and the trustee's decisions were made by his father. These trust assets were therefore considered "financial resources" rather than property. The court also found it inappropriate to make orders under Part VIIIAA as the rights or property interests of third parties were likely to be altered. Despite these disputes, the court acknowledged the long marriage, the parties' traditional roles, the husband's substantial financial contributions and growth of assets, and the wife's significant contributions as homemaker and carer, noting the substantial asset pool of close to $40 million.