Gilmour & Hofte (No 2)

The appeal, Gilmour & Hofte (No 2), was heard by the Federal Circuit and Family Court of Australia. The appeal concerns final property settlement orders and an interim spousal maintenance order made by the primary judge on 28 September 2023, following a trial. The primary judge determined that the property of the parties should be divided 80 per cent to 20 per cent in favour of the respondent and that the appellant should continue to pay spousal maintenance at the rate prescribed by earlier interim orders made on 19 July 2022 until the respondent obtained full-time employment or until further order. The appellant challenged the property settlement and spousal maintenance orders, and the respondent did not cross-appeal.

The court needed to decide whether the primary judge erred in assessing the property pool, contributions, and the appellant's income. The evidence presented at trial was deemed unhelpful, and the appellant did not produce financial records setting out his professional income or expenses. The appellant's law practice, valued at around $1.6 million in 2019, was placed in liquidation before the trial, and the appellant had considerable debts pursued by the liquidator as a result of director’s loans from the company to him. The primary judge found that the parties’ net asset pool was around $715,731 and that the parties made equal contributions during the relationship. The primary judge determined that the final property settlement should be 80 per cent to 20 per cent, in favour of the respondent, after adjusting for certain factors.

The court found that the appellant did not provide an adequate explanation for the failure to produce his Notice of Assessment for the 2022/23 financial year at the trial. The appellant did not seek to adduce copies of the Individual Tax Return, nor the source documents supporting the preparation of the return. The court also noted that the appellant did not seek to adduce evidence that he now holds a limited practicing certificate, or a trust account ledger. The court concluded that the findings of the primary judge were not unreasonable or plainly unjust, and that the findings were open on the state of the evidence. The court found no appealable error and dismissed the appeal. The appellant was ordered to pay the respondent’s costs in a fixed sum of $45,000.