Gormley & Gormley (No 4) - [2023] FedCFamC1F 673

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gormley & Gormley (No 4) [2023] FedCFamC1F 673

File number: CAC 2949 of 2020

Judgment of: CAMPTON J

Date of judgment: 15 August 2023

Catchwords: FAMILY LAW – PROPERTY – Adjustment of property pursuant to s 79 of the Family Law Act 1975 (Cth) – Disputed balance sheet – Where the vast majority of the current property of the husband and wife originated from intergenerational transfers of rural properties from the husband’s father during their marriage – Where the wife contends the intergenerational transfers were intended to benefit both herself and the husband – Where the transferred properties have been held by the husband’s family for more than 100 years – Whether a discretionary trust established by the husband’s father prior to the parties’ relationship is property of the husband and wife – Where the wife does not contend the trust is a sham, and a finding is made that the husband’s father retains ultimate control of the trust – Consideration of whether a financial resource is capable of being valued – Where a just and equitable division of the parties’ property is found to be 77.5 per cent in favour of the husband and 22.5 per cent in favour of the wife.

Legislation:
Child Support (Assessment) Act 1989 (Cth) Pt 6A

Family Law Act 1975 (Cth) ss 4, 75, 79, 106A, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.06

Trustee Act 1925 (NSW) s 44

Cases cited:
Barrett & Winnie (2022) FLC 94-093; [2022] FedCFamC1A 99

Biltoft and Biltoft (1995) FLC 92-614; [1995] FamCA 45

Conrad & Conrad and Anor [2019] FamCA 106

Figgins and Figgins (2002) FLC 93-122; [2002] FamCA 688

Gormley & Gormley (No 2) [2023] FedCFamC1F 433

Gormley & Gormley [2023] FedCFamC1F 296

Gosper and Gosper (1987) FLC 91-818; [1987] FamCA 43

Hall v Hall (2016) 257 CLR 490; [2016] HCA 23

Harris & Dewell and Anor (2018) FLC 93-839; [2018] FamCAFC 94

Horrigan & Horrigan [2020] FamCAFC 25

Kardos v Sarbutt (2006) 34 Fam LR 550; [2006] NSWCA 11

Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27

Kennon v Spry (2008) CLR 366; [2008] HCA 56

Kessey and Kessey (1994) FLC 92-495; [1994] FamCA 162

NHC and RCH (2004) FLC 93-204; [2004] FamCA 633

Pencious & Pencious and Anor [2014] FamCAFC 171;

Pierce v Pierce (1999) FLC 92-844; [1998] FamCA 74

Shaw and Shaw (1989) FLC 92-030; [1989] FamCA 29

Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52

Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173

TWN and PAQ (2005) FLC 93-230; [2005] FamCA 677

Division: Division 1 First Instance

Number of paragraphs: 300

Date of hearing: 10–13 July 2023

Place: Sydney

Counsel for the Applicant: Mr Matthews KC with Ms Tulloch

Solicitor for the Applicant: Orman Solicitors

Counsel for the Respondent: Mr Puckey KC

Solicitor for the Respondent: Walsh & Blair
ORDERS

CAC 2949 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS GORMLEY

Applicant

AND:
MR GORMLEY

First Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

15 AUGUST 2023

THE COURT ORDERS THAT:
Adjusting payment and transfer of real properties
1.The husband pay to the wife the sum of $6,251,716 by instalments as follows:
(a)The sum of $5 million (“the first instalment”) within 60 days from the date of these orders; and
(b)The balance then remaining within 12 months from the date of these orders (“the second instalment”).

2.Simultaneously with the payment of the first instalment pursuant to Order 1(a):
(a)The husband shall do all things to procure the discharge of the wife at his expense of all liability for the mortgages and any encumbrances secured over the following properties (“the properties”):
(i)D Property, (… ha) 2 H Street, J Town, NSW (“D Property”);
(ii)K Property, (… ha) 1 H Street, J Town, NSW (“K Property”);
(iii)2 K Property, (… ha) 1 H Street, J Town, NSW (“2 K Property”);
(iv)F Property, (… ha) 3 H Street, M Town, NSW (“F Property”);
(v)E Property, (… ha) L Street, M Town, NSW (“E Property”) and in respect of this property, this shall include the mortgage in favour of Mr B dated June 2014; and
(vi)G Property, (… ha), N Street, M Town, NSW (“G Property”).

(b)The wife shall do all such things and sign all such documents, as prepared by the husband at his expense, to transfer to the husband all of her right, entitlement and interest in the properties.

3.In the event of compliance by the husband with Order 1(a) and 2(a) hereof, pending the payment of the second instalment to the wife, the husband is injuncted from further encumbering or adversely dealing with his interests in the properties save and except:
(a)So as to comply with these orders; or
(b)In the ordinary course of the business of conducting the enterprise on the properties; or
(c)In the event he has given the wife not less than 28 days’ written notice of his intention to deal with (including by way of selling) or further encumber the properties, with such notice to include particulars of the terms of the proposed sale or further encumbrance.

4.From the date of these orders:
(a)The husband shall have sole use and occupation of the properties as against the wife;
(b)The husband is to pay or cause to be paid all rates, taxes and outgoings in relation to the properties;
(c)Save to the extent necessary to comply with these orders or pursuant to these orders neither party encumber or further encumber the properties.

Sale of properties in the event of default of payment
5.In the event the husband fails or neglects to pay to the wife the first instalment pursuant to Order 1(a), then the entire sum of $6,251,716 will become payable (“the default sum”) upon the default and interest is payable to the wife on such amount of the default sum as remains payable from time to time at the rate prescribed by Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) (“the Rules”) from 60 days from the date of these orders until the date of receipt of the default sum.
6.Within 14 days of the failure or neglect of the husband to comply with Order 1(a) and/or Order 2(a), the parties shall do all such things as are necessary to list for sale and to sell each of the following properties in the sequence set out below, on the terms provided for in Order 15, with such sales to occur until the wife has received the total amount of the default sum (with interest):
(a)First, F Property; and
(b)If the total amount of the default sum remains unpaid, then K Property; and
(c)If the total amount of the default sum remains unpaid, then D Property.

7.Upon the settlement of each sale pursuant to Order 6, the proceeds of sale shall be applied in the following manner and priority:
(a)All costs, commissions and expenses of the sale; and
(b)The amounts required to discharge any mortgage secured against the property sold and any other encumbrances affecting the said property; and
(c)In payment of any Capital Gains Tax (“CGT”) arising as a consequence of the sale; and
(d)To pay the wife from each sale such portion of the default sum as remains outstanding (with interest); and
(e)To pay the balance then remaining to the husband.

8.For the purposes of calculating the CGT to be paid on the disposal of the real properties identified in Order 6, for the purposes of Order 7, the parties shall do all things as are necessary to:
(a)Jointly instruct an accountant to act as a single expert to calculate the CGT liability of each party arising as a consequence of each sale (“the single expert accountant”);
(b)Thereafter shall cause such sum being the estimated CGT liability of each party as opined by the single expert accountant to be placed in a controlled monies account in their joint names pending the issue of an income tax assessment for each party for the relevant and applicable taxation year of the disposal; and
(c)Upon the issue of an income tax assessment for the relevant and applicable taxation year for each party, the party who receives that assessment shall serve a copy of the assessment on the other party within 14 days of the issue of the assessment; and
(d)Within 21 days of the service of the assessment, the parties shall do all things to cause funds held within the controlled monies account to be remitted to the Australian Taxation Office (“ATO”) in the sum tax payable as assessed on the capital gain on disposal of the property for that party; and
(e)After the CGT has been assessed and paid by each party in respect of each of the properties as sold pursuant to these orders:
(i)In the event of there being a shortfall of the funds held in the controlled monies account established pursuant to this order to pay the CGT liability assessed, that shortfall shall be met by the husband; and
(ii)In the event of there being a surplus of the funds held in the controlled monies account established pursuant to this order after payment of all CGT assessed, that surplus shall be paid to the husband.

9.In the event that the husband fails or neglects to comply with Order 1(a) and/or Order 2(a) above, upon receipt of the wife of the total value of the default sum, the wife shall do all such things and sign all such documents, as prepared by the husband at his expense, to transfer to the husband all of her right entitlement and interest in:
(a)E Property, G Property and 2 K Property; and
(b)Such of F Property, K Property and D Property as remain unsold pursuant to these orders.

Spouse maintenance
10.Pending the payment of the first instalment or payment to the wife of the total of the default sum, whichever is the earlier, the husband shall pay to the wife by way of spouse maintenance the sum of $1,200 per week, without deduction, with such payment to be made on the first day of the calendar month into a bank account nominated by the wife in writing to the husband.
11.The husband may make the payments of spousal maintenance from his personal income or drawings from the Gormley Family Trust, however he shall not allow or cause such payments to be recorded as a liability of the wife in the beneficiary loan accounts of the Gormley Family Trust.

The Gormley Family Trust
12.Within seven days of these orders, the husband is to provide a copy of these orders to Mr B and the accountants engaged on behalf of the Gormley Family Trust, and further request that each of them do all things necessary to cause his compliance with these orders.
13.The husband shall retain any legal or beneficial interest he holds in the Gormley Family Trust and in C Pty Ltd in its capacity as trustee of the Gormley Family Trust and in its capacity as a trading company (if any) and for that purpose:
(a)The wife shall within 28 days from the date of these orders do all things and sign all documents as prepared by the husband at his expense to relinquish and/or assign to the husband all legal and beneficial entitlements she may have in respect of Gormley Family Trust and C Pty Ltd;
(b)The husband shall within 28 days from the date of these orders do all things and sign all documents required to accept an assignment to himself and otherwise indemnify the wife in respect of all liability of any kind incurred by the wife in respect of Gormley Family Trust and C Pty Ltd, including but not limited to any liability arising for the wife in respect of any form of taxation and any loans, advances or distributions made to the wife and/or the husband and wife jointly from Gormley Family Trust.

AND BY CONSENT IT IS ORDERED THAT:
Interests in other property and liabilities
14.Unless otherwise specified in these orders and save for the purposes 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 and/or work-related entitlements belonging to or earned by the other;
(c)Insurance policies remain the sole property of the owner named therein;
(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; and
(e)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

Conduct of the sale of the properties in default of payment of adjusting sum
15.For the purposes of the default sales of the properties pursuant to Orders 5 and 6 hereof:
(a)The parties shall have joint conduct of the default sale of each of the properties;
(b)In the event the parties cannot agree within seven days as to a suitable real estate agent to be appointed to conduct the default sales the husband is to nominate in writing within a further seven days, three suitable agents and the wife is to select in writing one agent for each property within a further period of seven days (“the agent”);
(c)The agent is to be instructed jointly by the husband and wife and be directed to communicate all information, offers and negotiations to each party contemporaneously, and each party is at liberty to provide a copy of the default sale orders to the agent;
(d)The terms and conditions of the default sale of each of the properties shall be agreed in writing between the parties and in default of agreement, as recommended by the real estate agent;
(e)The listing price, sale price, reserve price and/or estimated price range for each of the properties shall be as agreed in writing between the parties and in default of agreement:
(i)The parties are to seek the advice of the real estate agent and accept all reasonable advice provided; and
(ii)In the event that agreement still cannot be reached between the parties, as may be determined by a valuer to be nominated by the president (or his or her delegate) of the Real Estate Institute of New South Wales.

Family photographs
16.Within 14 days the husband deliver to the wife the computer on which the wife stored family photos and in the event the wife is able to retrieve the photos, the wife is to copy onto a USB all family photos stored on the computer and provide the USB to the husband.

Section 106A of the Act
17.In the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, the Registrar of the Court be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.

AND ON A DEFENDED BASIS, THE COURT FURTHER ORDERS THAT:
Extant applications
18.Save and except as to costs, all extent applications and responses thereto are dismissed.
19.Should any party wish to make an application for costs of or incidental to these proceedings, they are to file and serve within 28 days of the date of these orders an Application in a Proceeding specifying the orders sought as to costs, and any affidavit in support thereof.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Gormley & Gormley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
INTRODUCTION

Ms Gormley (“the wife”) and Mr Gormley (“the husband”) married in late 2008 and separated in November 2018 or February 2019. They have two children, X who is currently 14 years old, and Y who is currently 11 years old. The husband and wife are each currently 39 years old.
The wife commenced proceedings seeking orders for the adjustment of property pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) on 24 December 2020. The husband filed a Response to an Initiating Application on 9 February 2021 seeking different orders for the adjustment of property.
Central to this dispute is the intergenerational transfer of four rural properties, referred to as “D Property”, “E Property”, “F Property” and “G Property” from Mr B (“the husband’s father”) to the husband and wife jointly in 2014. A further issue, related in part to the intergenerational transfers, is the nature and value of the interests of the parties (and specifically the husband) in a discretionary family trust structure (“the Gormley Family Trust”), established by the husband’s father many years prior to the husband and wife’s relationship.
The wife prosecutes final relief contained in her Further Amended Initiating Application filed on 9 June 2023, being broadly that she transfer to the husband all of her interest in three of the four intergenerational rural properties and two further rural properties, known as “K Property” and “2 K Property”, all subject to existing encumbrances, that the husband transfer to her all of his interest G Property such that it be unencumbered, and that the husband pay her an adjusting sum of $7.5 million. She contends the effect of her proposed orders would be an equal division of the parties’ property, which includes her contended value of the Gormley Family Trust.
The husband filed an Amended Response on 27 June 2023. He broadly agrees for the wife transfer to him all of her interest in the five rural properties identified by her subject to encumbrances. He resists her application to retain G Property, and seeks that she transfer her interest in that property to him. The husband proposes to pay the wife the sum of $5 million. He contends a property pool of differing specie and value than that of the wife, asserting that the Gormley Family Trust is not his property but a financial resource available to him. It is his case that justice and equity are achieved in the circumstances of this case by assessing the contribution-based entitlements of the wife and any adjustments thereto as a monetary sum rather than an entitlement as a percentage of the property of the parties.
For the reasons that follow, the wife shall be required to transfer her interests in each of the six rural properties to the husband and the husband shall be required to pay the wife a sum of $6,251,716 in instalments, the first being of $5 million within 60 days and the balance of $1,251,716 to be paid within 12 months. Simultaneously upon payment of the first instalment, the wife shall transfer to the husband all of her interest in the six real properties.
DOCUMENTS RELIED UPON
The wife relied upon the following documents:
·Her Case Outline filed 7 July 2023 (Exhibit 2);
·Her Further Amending Initiating Application filed 9 June 2023;
·Her affidavit filed 19 June 2023 (“the wife’s affidavit”), and some of the exhibits to her affidavit (which together were marked as Exhibit 19);
·Her Financial Statement filed 19 June 2023;
·Affidavit of Mr O (“the wife’s brother”) filed 19 June 2023;
·Affidavit of Mr S (“the wife’s father”) filed 19 June 2023;
·Affidavit of Ms T (“the wife’s mother”) filed 19 June 2023;
·Affidavit of Ms U (a former babysitter of the parties’ children) filed 19 June 2023;
·Affidavit of Mr V (a neighbour) filed 19 June 2023;
·Affidavit of Mr W (the single expert real property valuer) filed 13 June 2023;
·Questions to Mr W dated 22 March 2023 and his answers dated 30 March 2023 (Exhibit 17);
·Affidavit of Mr Z (the single expert plant and equipment valuer) filed 15 June 2023;
·Affidavit of Mr BB (the single expert livestock valuer) filed 6 July 2023;
·Affidavit of Mr CC, a real property valuer other than the single expert, engaged by the wife to opine as to the possible rental value of G Property, filed 10 July 2023;
·Her costs notice filed 6 July 2023 (Exhibit 4); and
·Her undertaking as to disclosure filed 19 June 2023 (Exhibit 6).

Of the witnesses in her case, only the wife was required for cross-examination. None of the single experts were cross-examined by either party. The wife additionally produced a tender bundle comprising some 823 pages which became Exhibit 20, and a further tender bundle of an additional 72 pages which became Exhibit 23.
The husband relied upon the following:
·His Case Outline filed 5 July 2023 (Exhibit 3);
·His Amended Response to an Initiating Application filed 27 June 2023;
·His affidavit filed 19 June 2023 (“the husband’s affidavit”);
·His affidavit filed 7 July 2023 (“the husband’s affidavit in reply”);
·His Financial Statement filed 3 July 2023;
·An affidavit of Ms DD (“the husband’s current wife”) filed 19 June 2023;
·An affidavit of the husband’s father filed 19 June 2023 (“the husband’s father’s affidavit”);
·An affidavit of Mr EE (a worker) filed 19 June 2023;
·His costs notice filed 5 July 2023 (Exhibit 5); and
·His undertaking as to disclosure filed in Court on 10 July 2023 (Exhibit 8).
The husband, his current wife and his father were each cross-examined. Mr EE was not required for cross-examination.
AGREED FORM OF SOME OF THE ORDERS
At the conclusion of the trial, after the closure of the evidence and oral submissions, the parties with leave submit a Minute of Order to chambers, intended to reflect the form of some agreed orders they sought to be made. That document was received on 18 July 2023 and was marked as Exhibit 29.
Exhibit 29 highlighted the tendency of the parties to fail to identify important issues in dispute between them and instead focus on other issues of lesser moment. It contains more disputed than agreed items, and in reality, extends and refines the divergent orders sought by each of them in their Further Amending Initiating Application filed 9 June 2023 and Amended Response filed 27 June 2023. For example, it contains a series of disputed orders as to what ought to happen in the event the husband defaults on paying the wife the determined adjusting sum, including as to the allocation of liability of any Capital Gains Tax (“CGT”) that may accrue on the sale of real properties. Many of the issues in Exhibit 29 were important, but were not the subject of evidence or submissions at trial. They were more akin to afterthoughts at the conclusion of three and a half years of litigation.
BACKGROUND AND FINDINGS
The husband’s father was born in 1939. His grandfather (the husband’s great grandfather) moved to the J Town district in 1909, and purchased rural property in the area. The land he purchased in 1909 was the genesis of a significant business aggregation which has passed down the patrilineal line. The aggregation has been expanded on by the husband’s great-grandfather, his grandfather and his father since 1909, each of whom improved, purchased and sold real properties in the area, including relevantly for the purpose of these reasons:
(a)A property at L Street, M Town known as E Property, the property in which the husband’s grandfather was born and is now where his father lives and continues to work;
(b)A property at H Street, J Town known as D Property, purchased by the husband’s father from his brother in 1964;
(c)A property at the corner of H Street and FF Street, J Town known as F Property, purchased by the husband’s father in 1989. Also in 1989 the husband’s father established a company;
(d)A property at N Street, M Town known as G Property, purchased by the husband’s father in 1999. G Property is a portmanteau of the husband’s grandfather’s name, the husband’s father’s name (Mr B) and the husband’s nickname.
These four rural properties total over 2,000 acres.
In late 2000, the husband began working with his father. He was about 16 years of age at that time and had just finished high school.
The husband and wife met in late 2001 and began dating. They were 17 or 18 years old. They were each living on their parents’ rural properties.
The wife contends the parties commenced cohabitation in 2002. The husband contends cohabitation commenced on their marriage in 2008. This is controversial and will be dealt with later in these reasons.
The Gormley Family Trust
In 1994, when the husband was 10 years old, his father by deed established the Gormley Family Trust. C Pty Ltd was its original trustee. The husband’s father and mother, Ms HH, were the shareholders and directors C Pty Ltd. The deed and variations thereto (dated 31 August 2001, 1 July 2002 and 31 January 2014) form part of Exhibit 19. The settlor was Mr GG. The deed made provision for broad classes of beneficiaries of the Gormley Family Trust. The husband’s father, the husband’s two older sisters (their mother is not the husband’s mother, who was the husband’s father’s second wife), the husband, the wife and the children, are within classes of beneficial objects of the Gormley Family Trust.
After the Gormley Family Trust was constituted, C Pty Ltd continued to trade on its own account, in addition to it acting in a capacity as trustee.
The husband’s father has at all times held the power under the deed as “the appointor” of the Gormley Family Trust (see Clause 8 of the deed). As the appointor, he:
(a)Has the power absent fetter to appoint another person as the appointor; and
(b)Could appoint or remove a supervisor at any time (Clause 8(d) of the deed).
If a supervisor was nominated by the appointor, the supervisor could remove a trustee and appoint a trustee. There is no evidence that the husband’s father as appointor ever nominated a supervisor, engaging Clause 8 of the trust deed.
Clause 12 of the deed further recorded:
12.The power of appointing a new Trustee or new Trustees conferred by statute is for the purposes of these presents vested in the Settlor during his lifetime after his death is vested in the Trustee.
Clause 4 of the deed provides the trustee with absolute discretion to apply the net income and the capital of the Gormley Family Trust for the benefit of its beneficiaries.
By way of the 1 July 2002 deed of variation, the settlor appointed the husband and the husband’s father as trustees of the Gormley Family Trust. They became trustees in addition to C Pty Ltd. The husband was 18 years old at that time. The shareholders and directors of C Pty Ltd remained the husband’s father and mother.
The husband’s mother, Ms HH, died in 2007 after a period of illness. In 2007 his mother’s share in C Pty Ltd was transferred to the husband and he was appointed as a director of the company. From that time, the husband and his father held the two issued shares in and were the directors of C Pty Ltd.
The deed of variation dated 31 January 2014 deleted Clause 12 of the deed, and inserted a new Clause 12 which changed the ability to vary the trust deed from being a power of the trustee with the consent of the settlor, to being a power of the trustee with the consent of the appointor. The deed also changed the power to appoint a new trustee or to remove a trustee from the settlor to the appointor. Again, the appointer has at all times remained the husband’s father.
Acquisition of JJ Property
In early 2004 the husband and his father purchased a property known as “JJ Property” for $1,005,000. The husband did not have any savings at this time.
The husband said that he did not attend the auction, that his father organised the purchase and finance for the acquisition and that he understood (as recorded at paragraph 29 of his affidavit) that they “purchased [JJ Property] with 100% finance which was secured over all properties”.
The wife in her affidavit said that most, if not all, of the funds used to purchase JJ Property were borrowed by the husband and his father by way of mortgage against the property and that the husband had very little equity, if any, in JJ Property when they married.
The husband’s father said in his affidavit that JJ Property was purchased “with 100% finance, using it and other properties I owned as security” (at paragraph 35).
As is recorded later in these reasons, it emerged during the trial that the evidence of the husband, the wife and the husband’s father as to the source of the funds used to acquire JJ Property may not have been accurate.
Events after the marriage including the intergenerational transfers
In late 2008, the husband and wife married and moved into the husband’s childhood home at D Property. Prior to that point, the husband’s father was living in that home. He moved to E Property after the parties married. D Property was the family home of the husband, wife and their children for most of their relationship.
The parties’ first child, X, was born in 2009. It was uncontroversial that the wife’s working days reduced so that she could care for X. Their second child, Y, was born in 2012.
In mid-2012, the husband’s father made a will (Exhibit 12).
The intergenerational transfers
In early 2014, a series of discussions occurred between the husband, the wife and the husband’s father, between the husband’s father and his accountant, and between the husband, the wife, the husband’s father, the husband’s accountant and a local solicitor, as to a succession plan for the enterprise, including D Property, E Property, F Property and G Property. KK Valuers provided a report opining that those properties were valued together at $6,550,000 as at early 2014 (pages 115–129 of Exhibit 20).
In mid-2014, the husband’s father and the husband and the wife entered a single contract for the sale of D Property, E Property, F Property and G Property (pages 108–114 of Exhibit 20). Also on that date, the husband’s father executed:
(a)An Acknowledgement of Gift in relation to the four rural properties in favour of the husband and the wife (page 150 of Exhibit 20). One impact of the Acknowledgement of Gift was that was no stamp duty payable in circumstances of the transaction being an intergenerational transfer; and
(b)A document entitled “Legal Advice Acknowledgment Certificate” (pages 130–136 of Exhibit 20).
The husband and wife also executed a document entitled “Legal Advice Acknowledgment Certificate” in mid-2014 (page 94 of Exhibit 20), recording that:
We [the husband and the wife] certify that:
1. We have read the document(s) to which this certificate is attached (“the Documents”).
2. We have been given the opportunity to obtain legal advice on the nature and effect of the Documents but have chosen not to do so.
3. We understand the nature and effect of the Documents.
4. ‘We understand the obligations and risks involved in signing the Documents.
5. We sign the Documents freely, voluntarily and without pressure from any person.
(As per the original)
In mid-2014, a single real property transfer document was executed in respect of the title of the four properties, transferring them from the husband’s father to the husband and wife for a recorded consideration of $6,550,000 (“the intergenerational transfer”) (pages 59 and 60 of Exhibit 20). No monetary consideration was paid to the husband’s father by the husband and wife.
As part of the arrangements, simultaneously with the intergenerational transfer:
(a)The husband’s father was granted a 20-year lease over the homestead and curtilage at E Property (pages 137–149 of Exhibit 20); and
(b)A mortgage was registered in favour of the husband’s father securing a loan by him in the sum of $500,000 secured upon the E Property (pages 90–93 of Exhibit 20). The loan and mortgage facility does not carry interest. The principle is to be repaid in 2034.
The husband’s father later undertook significant renovations on E Property at his cost. The wife in her affidavit said that:
165.…[The husband’s father] wanted to renovate the […] home on the [E Property] property, which he later did. [The husband’s father] sold his flat in [J Town] for $200,000 to pay for the renovations to the [E Property]
The parties separated for a period of five months from 10 January 2015, and reconciled in June 2015. During that period, the wife and the children lived in a rental property on the outskirts of J Town.
In June 2016, the wife was appointed as a secretary of C Pty Ltd.
The business operations of the husband, his father and the wife were and continue to be run through the Gormley Family Trust. The Gormley Family Trust owns a number of assets including plant and equipment, livestock, crops. It has significant financial institution and other liabilities, including but not limited to overdraft accounts with LL Financial Services.
The husband, the wife and the husband’s father have used the Gormley Family Trust as a “bucket” for the enterprise throughout the marriage. All income from the enterprises was paid into the trust and all the expenses, including the living and personal expenses of the husband, the wife and the husband’s father during the period of the marriage, were paid from the trust’s bank account. The trust paid and continues to pay the interest instalments on the LL Financial Services mortgages secured on the real properties of the parties. For a period of time during the parties’ marriage it paid wages to the husband.
The Gormley Family Trust has continued to meet the expenses of the husband and his father post separation. It has sourced payments due by the husband to the wife, including:
(a)An interim property distribution to the wife of $150,000 in April 2021;
(b)The husband’s obligations by way of periodic spouse maintenance to the wife;
(c)$185,000 on 19 February 2023 to the wife to fund part of the deposit of a property the wife is currently acquiring (see [65] below);
(d)A payment of $48,000 to the wife to fund the costs of a mediation in March 2023 (see [66] below);
(e)Costs of single expert reports;
(f)The husband’s legal fees incurred throughout the litigation;
(g)Other post separation periodic and non-periodic expenses, including school fees.
As recorded later in these reasons, it emerged at trial that the husband and wife were not aware that the accountants for the Gormley Family Trust recorded each of these payments against credit and debit loan accounts in their names, or against unpaid present entitlements to distributions from the trust. Those records were found in the annual published financial statements of the trust for each financial year up to and including 30 June 2022.
Sale of JJ Property and purchase of K Property and 2 K Property
The husband and his father sold JJ Property in 2017 for $3 million. At the same time the properties known as K Property and 2 K Property were purchased for $5 million.
The husband’s affidavit records that the proceeds of sale from JJ Property were applied to the purchase of K Property and 2 K Property, and that he and the wife borrowed $2.3 million and $2.5 million from LL Financial Services as an interest only loan to fund the balance of the purchase price. The loan was collaterally secured over D Property. The husband and the wife acquired K Property as joint tenants. 2 K Property was purchased in the name of the husband, the wife and the husband’s father as joint tenants.
The wife’s affidavit records:
215. [In late] 2017, [the husband] and I purchased the [K Property] property for $3,607,890. [The husband and his father] and I then purchased [2 K Property] for $1,392,110. Both of these purchases were funded from the sale of the [JJ Property]. The [JJ Property] property realised proceeds of $3,000,000 and [the husband] and I borrowed an additional $2, l 00,000 from the National Australia Bank to fund the balance of the cost of purchasing [K Property] and [2 K Property].
216. On advice from our joint accountant [Mr RR], [the husband’s father] retained a 1/3 interest in the [2 K Property]. [Mr RR] gave advice to [the husband] and I at the time of the transfers to the effect of:
“[The husband’s father] should have his name on [2 K Property] to counteract any capital gains tax from the sale of [JJ Property] […]. The transfer of nearly all the land will take the pressure off [the husband’s father’s] shoulders but still make him feel as though he is a part of if all.”.
217. [The husband, his father] and I were happy with the advice given that [the husband’s father] should retain a one third share in [2 K Property].
(As per the original)
The husband’s father says in his affidavit that:
47.…I was not aware at the time that I was not put on the title of “[K Property]”. Given that [the husband] and I were 50% share owners of “[JJ Property]”, I believed that my interest would be transferred to the new properties but that occurred without my knowledge.
(As per the original)
Again, as recorded later in these reasons, it emerged during the trial that the evidence of each of the husband, the wife and the husband’s father as to the source of the funds applied to acquire K Property and 2 K Property may not have been accurate.
After the acquisition of K Property and 2 K Property, those properties were worked with the four properties received by the husband and wife upon the intergenerational transfer as an aggregation, totalling over 4,000 acres. Across the properties, various uses were made of the land.
Separation and these proceedings
The husband and wife separated in either November 2018 (on the husband’s evidence) or February 2019 (on the wife’s evidence). From the date of separation (on either of the wife or husband’s affidavit), the husband began living primarily at the home on K Property and the wife and the children continued living at the home on D Property.
The wife stopped working in early 2019, and stopped her involvement with the bookkeeping and finances.
The husband repartnered with his current wife in early 2019 (the timing of this is disputed). The husband’s current wife has three children from her prior relationships, being MM aged 12, NN aged eight, and OO aged seven.
In mid-2019 the wife was admitted to a health facility known as PP Centre. She was discharged some time later. During that period, the husband and the wife’s family cared for the children while the wife was in hospital.
In mid-2019, the husband’s current wife moved into the home at K Property with her three children.
In July 2019 the wife was removed as a secretory of C Pty Ltd. Around this time, the husband also removed the wife’s access to the business bank accounts.
An order for divorce was made in late 2020.
In late 2020, the wife contends the husband called her by telephone, was verbally abusive and threatened her. She said this event was relevant to the s 79 enquiry, as will be discussed later in these reasons, in part because it caused her to leave the family home at D Property with the children. She moved to live with the children and her mother in Town AM.
The wife commenced these proceedings on 24 December 2020 in what was then the Family Court of Australia. The husband filed a Response on 9 February 2021.
The husband and his current wife married in early 2021.
On 30 April 2021, orders were made by consent providing for:
(a)The husband to pay the wife $150,000 pursuant to s 117 of the Act by way of litigation funding;
(b)The husband to pay the wife the sum of $1,200 per week by way of interim spouse maintenance; and
(c)The husband to pay the wife the sum of $4,000 by way of lump-sum spouse maintenance;
(d)The parties to attend a private mediation.
On 12 August 2022, extensive orders and directions were made listing the proceedings for trial over five days commencing on 10 July 2023.
The wife gave evidence that in early 2023, a property at P Street, Suburb R (“the P Street property”) was listed for sale. It was uncontentious that in early 2023, the wife advised the husband of her interest in buying the property and that she received, as she requested, the sum of $185,000 (again sourced from the trust’s overdraft account) to be used as part of the $200,000 deposit on the property.

The parties engaged in a mediation on 3 March 2023. The husband caused $48,000 to be paid to the wife’s solicitors from the Gormley Family Trust overdraft account to facilitate her engagement in the mediation.
In early 2023, without notice to the husband, the wife exchanged contracts to acquire the P Street property for the purchase price of $4 million. She paid a deposit of $200,000 on exchange, comprising the $185,000 sourced from the husband and $15,000 borrowed from her family. She did not disclose the fact of the exchange of contracts nor the payment of the deposit to the husband at this time.
On 18 April 2023 the wife filed an Amended Application in a Proceeding seeking orders that the husband’s father and C Pty Ltd in its capacity as trustee of the Gormley Family Trust, be joined as a party to the proceedings, that the husband pay her further litigation funding in the sum of $250,000 and that the husband pay her by way of interim property settlement the value of stamp duty on the purchase of the P Street property in the sum of $215,200.
For reasons then delivered, on 21 April 2023 the wife’s relief to join the husband’s father and C Pty Ltd was dismissed (see Gormley & Gormley [2023] FedCFamC1F 296).
The proceedings were listed on 25 May 2023, being six weeks prior to the trial, for hearing of the wife’s relief for litigation funding and for the husband to pay the stamp duty incurred on the purchase of the P Street property. Judgment was delivered on 29 May 2023 (see Gormley & Gormley (No 2) [2023] FedCFamC1F 433), dismissing the wife’s relief. The reasons then delivered relevantly record:
40The gravamen of the evidence of both the husband and wife is that they each hoped at the time of facilitating the wife putting a deposit on the [P Street] property that their dispute would resolve at mediation on 3 March 2023. It did not. There was no evidence as to the terms of any exchange after the mediation event as to how the wife would complete the acquisition of the [P Street] property in light of the litigation continuing.
The contract for sale on the P Street property has a completion date of late 2023. Stamp duty in the sum of $215,200 arising from her purchase of the property became payable in mid-2023. It was suggested at the hearing on 25 May 2023, as recorded in the reasons delivered that:
44.… the New South Wales State Revenue Office will impose a penalty on the outstanding stamp duty from […] 2023 at a rate of 11.46 per cent per annum until the duty is paid. The reality of the penalty was in the range of $2,000 per month. The husband did not challenge this assertion.
The subject matter of interest payable on the outstanding stamp duty was not agitated at trial.
ISSUES IN THE PROCEEDINGS
The wife filed a document setting out her contention as to the issues in the proceedings that became Exhibit 16. By the end of the trial the parties agreed that Exhibit 16 was amended as follows (with the items crossed out being resolved between the parties):
1.        The Asset Pool
a. Inclusion of the [Gormley] Family Trust
~~b. Disclosure of assets of the [Gormley] Family Trust~~
c. Value of assets and liabilities of the [Gormley] Family Trust
d. Whether mortgage to [the husband’s father] will ever be repaid/should it be included in the asset pool?
e. Inclusion of loans from wife’s family
~~f. Inclusion of wife’s outstanding legal fees/wife’s significant costs arising from husband’s failure to make full and frank disclosure and his lack of cooperation~~
g. Addback of legal fees
h. Addback of husband’s excessive expenditure post separation
i. Inclusion of wife’s liability for stamp duty on purchase of [the P Street property]
2.        Contributions
a. Assessment of wife’s contributions between February 2002 and 13 September 2008
b. Assessment of each party’s contributions at the time of marriage on 13 September 2008
c. Assessment of wife’s contributions to farm and her role on the farm between 13 September 2008 and separation on 28 February 2019
d. Relevance of transfer of properties [D Property], [E Property], [F Property] and [G Property] by [the husband’s father] to husband and wife as tenants in common in 2014
e. Weight to be given to transfer of [D Property], [E Property], [F Property] and [G Property] by [the husband’s father]
f. Claims made by husband and [the husband’s father] as to why [D Property], [E Property], [F Property] and [G Property] were transferred to both parties and absence of evidence to support those claims
g. Retrospective value of [D Property], [E Property], [F Property] and [G Property] at time of transfer in 2014 vs current value and weight to be given to increase in value
h. Impact upon wife and children due to family violence and husband’s issues with alcohol
i. Circumstances of separation and wife being forced to leave [D Property]
j. Assessment of contributions post separation:
i.Husband’s sole control and use of [business] assets post separation
ii. Limited financial support provided to wife
iii. Husband’s payment of minimal child support
iv. Wife’s care of the children and husband’s limited contact with them
k. Husband’s increase in liabilities of [rural] business post separation vs profitability of [rural] business
l.         Overall assessment of contributions
3. Section 75(2) Factors
a. Wife’s primary care of the children
b. Husband’s payment of minimal child support and other financial support for the children
c. Husband’s assets and financial resources which enable him to generate significant income
d. Wife’s limited earning capacity
e. Overall assessment of adjustment in favour of the wife for Section 75(2) factors
4.        Form of orders proposed by each of the parties
a. Wife’s proposal for orders which would enable her to house herself and the children and derive an income
b. Husband’s claims regarding his ability to sell assets and/or borrow funds and his lack of evidence in relation to these claims
(As per the original)
THE LAW
In determining claims for alteration of property interests between married couples, I am required to:
(a)Make findings as to the identity and value of the property (including superannuation interests), liabilities, and financial resources of the parties, or either of them, at the time of the final hearing, and determine the legal and equitable interests of the parties in such property;
(b)Consider, identify and assess the contributions by the parties to the acquisition, conservation and/or improvement of their property, including financial and non‑financial contributions and any contributions to the welfare of the family before, during and after the relationship came to an end; and
(c)After consideration of altering the interests in the property pool on the basis of contributions, to consider whether there should be any further adjustment to either of the parties on account of the matters set out in s 79(4)(d)–(g) of the Act, including any relevant considerations under s 75(2); and
(d)Ensure that any order made is just and equitable.
The balance sheet – identifying the property of the parties
The joint balance sheet identifying the property of the parties tendered at the commencement of the trial was marked as Exhibit 1. The parties did not update that document at the conclusion of the trial. Instead, at the conclusion of the trial the husband prepared a document entitled “Simplified Table of Existing Legal and Equitable Interests ($ rounded to nearest thousand)”. It became Exhibit 25. The wife provided hand written amendments to Exhibit 25 in red pen. That amended document became Exhibit 28. The contentions both the husband and wife as recorded in Exhibits 25 and 28 were difficult to distil. To give this observation context, Exhibit 28 is attached as Schedule 1 to these reasons.
Doing the best I can in the circumstances, I find the property of the parties to be as recorded in the following table, with the items not agreed appearing in bold:

Ownership Description Wife’s value ($) Husband’s value ($) Determination ($)

ASSETS

1 Joint or Husband Gormley Family Trust 1,548,000 0 0

2 Joint D Property 4,500,000 4,500,000 4,500,000

3 Joint K Property 7,932,821 7,932,821 7,932,821

4 Joint Two thirds interest in 2 K Property (remaining one third interest held by the husband’s father, total value $4,467,178) 2,978,119 2,978,119 2,978,119

5 Joint E Property 6,000,000 6,000,000 6,000,000

6 Joint F Property 2,600,000 2,600,000 2,600,000

7 Joint G Property 7,800,000 7,800,000 7,800,000

8 Wife QQ Credit Union account x…88 8,039 8,039 8,039

9 Wife Deposit paid by the wife to purchase the P Street property 200,000 185,000 200,000

10 Wife Motor Vehicle 1 70,350 0 70,350

11 Husband QQ Credit Union x…54 1,387 1,387 1,387

Total 33,638,716 31,122,660 32,090,716

ADDBACKS

12 Wife Paid legal fees 204,534 206,030 206,030

13 Husband Paid legal fees 100,603 100,000 100,000

14 Husband Husband’s excessive expenditure post separation from January 2020 to May 2023 273,420 0 0

15 Wife Proceeds of sale of Motor Vehicle 4 sold in 2021 0 65,000 0

Total 578,557 371,030 306,030

TOTAL ASSETS + ADDBACKS 32,396,746

LIABILITIES

16 Joint LL Financial Services account …15
K Property Mortgage
(Limit $2,500,000) 2,500,000 2,500,000 2,500,000

17 Joint Mortgage to the husband’s father over E Property 0 500,000 500,000

18 Wife Loan from the wife’s mother 150,000 0 150,000

19 Wife Loan from the wife’s father 20,000 0 20,000

20 Wife Loan from wife’s brother 10,000 0 0

21 Wife Stamp duty due 1 June 2023 215,200 0 0

22 Joint Advance from the Gormley Family Trust to the husband and wife to purchase K Property and 2 K Property 0 2,746,000 0

Total 2,895,200 5,746,000 3,170,000

TOTAL ASSETS + ADDBACKS – LIABILITIES 29,226,746

SUPERANNUATION

Member Name of Fund Type of Interest Husband’s value ($) Wife’s value ($) Determination ($)

22 Wife Superannuation Fund 1 Accumulation 14,405 14,405 14,405

23 Husband Superannuation Fund 1 Accumulation 5,695 5,696 5,695

Total 20,100 20,100 20,100

TOTAL NET SUPERANNUATION + NON-SUPERANNUATION 29,246,846
Item 1 – Gormley Family Trust and Item 22 – Advance from the Gormley Family Trust to the husband and wife to purchase K Property and 2 K Property
Is the Gormley Family Trust property of the husband?

The wife sought findings that:
(a)The Gormley Family Trust was property of the husband; and
(b)It be included as an asset on the balance sheet; and
(c)The value of that asset in the husband’s hands was the value of the Gormley Family Trust.
The findings as to the establishment of the Gormley Family Trust in 1994 by way of deed and subsequent amendments thereto are recorded earlier in these reasons at [18]–[26].
The first pathway in the wife’s case as to the Gormley Family Trust being the property of the parties was contained in her affidavit as follows:
40. At the time that legal title of the [rural] properties was transferred to [the husband] and I in [mid] 2014, [the husband’s father] had already gifted us the stock, plant and equipment. The [rural] properties and the stock, plant and equipment all went hand in hand. It would have been impossible for [the husband] and I to continue to run the [rural] properties if we had not also been gifted the stock, plant and equipment. [The husband] and I had been treating the stock, plant, and equipment as if they were our own from 2008, even though they were still held in the [Gormley] Family Trust.
(Emphasis added)
This evidence was repeated again in her affidavit:
221.At the time that legal title of the [rural] properties was transferred to [the husband] and I in [mid] 2014, [the husband’s father] had already effectively gifted us the stock, plant and equipment. The [rural] properties and the stock, plant and equipment all went hand in hand. It would have been impossible for [the husband] and I to continue to run the [rural] properties if we had not also been gifted the stock, plant and equipment. [The husband] and I had been treating the stock, plant and equipment as if they were our own from 2008, even though they were still held in the [Gormley] Family Trust. [The husband] and I had control of the [Gormley] Family Trust stock, plant and equipment from 2008. I estimate the value of the plant and equipment in 2008 to be approximately $1,500,000. I have sought disclosure of the [Gormley] Family Trust 2008 financials. I have not been provided with those. I instructed my solicitors to subpoena the financials The subpoena has not been compiled with yet.
(Emphasis added)
This evidence of the wife was inconsistent with:
(a)The fact and terms of the January 2014 variations to the trust deed in the shadow of the intergenerational transfers, which secured the ultimate power to control the Gormley Family Trust by way of appointment and removal of its trustee with the husband’s father (as opposed to the settlor), rather than vesting the power of appointment in the husband or the husband and the wife (as recorded at [26] above); and
(b)Other evidence in the wife’s own affidavit, being:
223. Although [the husband’s father] remains as the appointor of the [Gormley] Family Trust which from a legal perspective gives him the ultimate power to remove and appoint the trustees, in reality that will never happen and he will not change the present arrangement… It is my understanding based on the conversations that occurred between the three of us in 2014 that legal control of the trust will ultimately pass to [the husband] pursuant to the terms of [the husband’s] will.
(c)The letter contained in Exhibit 20 from the husband’s father’s solicitor to the husband’s father in June 2014, confirming in relation to the intergenerational transfer to the parties that:
5. You will recall we telephoned your accountant [Mr RR] during our meeting. [Mr RR] confirmed that you:
(i) still control the family trust which owns the livestock and plant. Therefore you have control over the distribution of income from the family business; …
(Emphasis added)
(d)The wife’s concession in cross-examination that it was a deliberate decision not to transfer the interest of the husband’s father in JJ Property or in the Gormley Family Trust at the time of the intergenerational arrangements. This concession ties closely with and supports the husband’s father’s version of the 2014 events.
For those reasons I reject the wife’s contention (insofar as it was maintained by the conclusion of the trial) that the husband’s father gifted to the husband, or to the husband and the wife, the Gormley Family Trust or some of the assets of the trust.
The second pathway on this subject matter was recorded by the wife in paragraph 2 of her Case Outline as follows:
c.In June 2014 [the husband’s father] gifted the properties at [E Property], [D Property], [F Property] and [G Property] to the parties as tenants in common in equal shares. He also gave the parties the use and control of the assets of the [Gormley] Family Trust and [C Pty Ltd].
(Emphasis added)
The wife did not contend that the Gormley Family Trust was a sham. She stressed that it was not her case that the trust had been brought into being, in appearance rather than reality, as a device to assist the husband to evade his obligations under the Act.
To ground this alternate finding, the wife identified that she “relied on what the High Court had said” in Kennon v Spry (2008) CLR 366 (“Kennon v Spry”).
During the course of submissions, the wife contended that the husband in reality controlled the Gormley Family Trust from March 2007 when he became a director of its corporate trustee, C Pty Ltd. She submitted that from that time:
(a)The husband and his father were each trustees in their personal capacity and C Pty Ltd was the third trustee of the Gormley Family Trust; and
(b)The husband held one of the two issued shares in C Pty Ltd; and hence
(c)When the husband’s directorship was coupled with the husband’s shareholding in C Pty Ltd and his personal role as a trustee, the husband became the controller of the Gormley Family Trust; and
(d)The control of the Gormley Family Trust from that time in reality rested with the husband, irrespective of what the husband’s father thought or what later occurred.
The wife submitted that by reason of the husband’s legal control of the Gormley Family Trust and by reason of the extent, manner and history of the husband making decisions directly affecting the Gormley Family Trust and his dealings with its property, the parties’ interests in property ought to include the whole value of the Gormley Family Trust. She highlighted evidence to ground findings that the husband and the wife used and controlled the trust’s bank account and the husband’s father having no alleged control over the drawings they made or over the trust’s expenditure.
It is difficult to find by reference to the terms of the trust deed, its variations and the structure of its trustees that the husband alone has control of the office of trustee (at any time, let alone from March 2007). The husband is one of three trustees of the Gormley Family Trust and has a capacity to influence the decisions of C Pty Ltd (as a corporate trustee) to the same extent as his father is able to do so. At best, this could be a negative power or veto by way of the trustee. The structure of the trustees does not give the husband control of the trust without the cooperation of his father.
Rather, the husband’s father, in his absolute discretion, has the ultimate control of the trust by way of his capacity to remove the husband and C Pty Ltd as trustees using his power of appointment. He controls the identity of the trustee(s), who in turn absolutely control the distribution of income and capital from the Gormley Family Trust (see Conrad & Conrad and Anor [2019] FamCA 106 at [77].) This was the circumstance engineered by the January 2014 amendments to the trust deed (it in itself being a process implemented by the husband’s father) and made plain in the letter tendered in the wife’s case from the husband’s father’s solicitor to the husband’s father on 5 June 2014 (recorded at [81(c)] above).
Despite the wife’s assertion, the facts in this matter do not reflect those considered to be determinative by the High Court in Kennon v Spry. In that case, the characterisation of the assets of the trust as being property of the parties to the marriage was supported by the husband’s power as sole trustee to apply the whole of the income and capital of the trust at his absolute discretion, his power to appoint the trustee and vary the trust deed, his legal title in the assets, and the absence of an equitable interest in the trust assets of any other party. These factors, when combined with the equitable rights of the wife to due administration of the trust, all led to a finding that the trust was the property of he and the wife. Those circumstances do not apply to the husband and the Gormley Family Trust in this case.
Importantly in the circumstances of this case, as was identified by the Full Court in Harris & Dewell and Anor (2018) FLC 93-839:
67.It should be accepted that the principles emerging from the High Court and from the decisions of this Court to which reference has been made permit of a finding that property ostensibly that of a trust can be treated as property of a party for s 79 purposes where evidence establishes that the person or entity in whom the trust deed vests effective control is the “puppet” or “creature” of that party. The metaphor is used to connote a situation where the person or entity with control (the “puppet”) does nothing without the party (the “puppet master”) controlling or directing that person or entity.

I do not accept that the wife has established on the evidence the necessary extent, manner and history of the husband making decisions directly affecting the Gormley Family Trust and his dealings with its property such that a finding can be made that the value of the trust ought to be included in the parties’ interests in property for the following reasons:
(a)The husband identified critical concessions contained in the wife’s own affidavit (in addition to that recorded at [81(b)] above), on this subject matter as follows:
12. [In mid-]2014 by way of an intergenerational transfer, [the husband’s father] transferred four properties known as [D Property], [E Property], [F Property] and [G Property] to [the husband] and me as tenants in common in equal shares…… In order to operate the [rural] business [the husband] and I also continued to use the [chattels] held in the name of the [Gormley] Family Trust. The trustees of the trust are [the husband], [the husband’s father] and [C Pty Ltd]. [The husband and his father] are the directors of [C Pty Ltd]. [The husband’s father] was and continues to be the appointor of the [Gormley] Family Trust. However, since 2014 (the year in which he turned 75 years) [the husband’s father] has only had a limited involvement in the [rural] business.
…
39. As set out below, from when the trust was commenced by [the husband’s] in 1994 it was in effect his alter ego. After the intergenerational transfer in 2014 (the details of which are also set out below), by virtue of the way that the [rural] enterprise was operated, the trust became the alter ego of [the husband and I]. Presently it appears to be the alter ego of [the husband and his current wife]. Further, and in reality, the process of the trust becoming the alter ego of [the husband] and I was a process of transition commencing well prior to the intergenerational transfer in 2014. The income from the trust was used to meet the family expenses of [the husband’s father and mother] and [the husband] and I from the time I started living (albeit mostly part time in the beginning) with the [Gormley] family.
170.After the intergenerational transfer took place [in mid] 2014 [the husband’s father] continued to have the business pay for his expenses including motor vehicles, utilities, doctor's visits, and medication. [The husband’s father] also drew cash out weekly to pay for his food and a case of beer per week. [The husband’s father] lived quite frugally and so did we. I recall on occasion, when the [business] had made a large profit from [business activities] [the husband’s father] requested I pay money from the [C Pty Ltd] account into a personal account of his to 'top up' the funds that be would be able to leave for his daughters, [Ms AN] and [Ms AO], when he died.
(b)In the 2011–2013 and 2017 financial years, and most significantly in the 2018 financial year, (see Exhibits 19 and 23, which comprise the historical financial statements of the Gormley Family Trust) the husband’s father used the reality of his control of the trust to direct substantial funds to his loan account with the Gormley Family Trust, so as to build a fund for his daughters upon his death. In the 2018 financial year, the husband’s father directed a credit of $984,929 to his own loan account. There is no evidence to suggest he sought either the husband (or wife’s) consent to do so, or that they even knew of the transaction.
(c)The contents of the letter from the solicitors for the parties on the intergenerational transfer to the husband’s father dated 5 June 2014 recorded at [81(c)] above;
(d)Each of the husband’s father’s wills made in August 2012 and in June 2023 (three weeks before the trial) expressly dealt with the control of the Gormley Family Trust passing from the husband’s father to the husband upon the husband’s father’s death.
(e)It was not put to the husband’s father that he was a puppet of his father. The unchallenged evidence of the husband’s father was that he retained the ultimate control of the Gormley Family Trust, as recorded in his affidavit:
36.At the time that we had this meeting [in 2014] I still had my share in “[JJ Property]”. I also controlled the family trust and the income being generated from the business. I am a director of the trustee company of the trust and the appointer and consider I still retain control of it although [the husband] and I make decisions together in relation to [business] operations. We have an [expert] who advises us in relation to our […]. [The husband] is primarily responsible for that aspect of our [rural] business and I am more responsible for [other aspects].
(Emphasis added)(As per the original)
In cross-examination the husband’s father did not resile from this evidence, saying when asked who controlled the Gormley Family Trust, “this fellow”, while pointing to himself.
(f)The husband’s unchallenged affidavit evidence was entirely consistent with that of his father, including the following:
52. The [Gormley Family Trust] overdraft pays and has always paid for the rates, insurance, electricity, gas, motor vehicle fuel and health insurance. If I ever needed anything I asked my father who usually agreed and he transferred money when required. This continued for a few years after our marriage and then [the wife] and I were given authority by my father to sign the [business] cheque book, which enabled us to purchase things whenever we needed to.
…
57. I remember the first time I bought [a piece of equipment for the business]. This was in 2008 and it was a Case […]. From about that time I started to have more influence in those decisions for the [business], whilst continuing to consult with dad. I still see or talk to my father on an almost daily basis. We still discuss all major financial decisions such as purchase of [business items] with dad.
…
63. When I commenced working for my father full time in late 2000 he was then aged 61 and ran the [business] on his own, engaging employees and contractors when he needed them. He made all [business] decisions and financial decisions. My full time work reduced the need to engage other workers. I took over the [activities] from my father from that time.
64. My father has always run [livestock]. He makes the decisions in relation to the stock. I do whatever was asked of me in relation to any stock work. My father manages the stock and arranges the sales. He continues to do so. He contacts the stock agent when sales occur. He moves the stock to paddocks for feed and arranges their supplement feeding. I have little to do with this side of the business but help out when asked, such as moving the lick feeding bins and setting up augers under silos to collect feed gain to be put in the lick bins.
I accept that evidence.
(g)Each of the husband and his father in their oral evidence said that at the time of the trial (consistent with historical patterns), the husband’s father is predominately responsible for and interested in the livestock operations, and the husband is predominately responsible for and interested in the other aspects of the business and does most of the day-to-day business operations. They both said significant decisions on the properties, including the purchase and sale of machinery and other major management decisions and transactions, are made in consultation and most occasions are concluded jointly, but that the husband’s father has the final say. I accept that evidence and so find.
(h)The wife’s submission that the husband’s father was not interested in the trust was not established on the evidence. The evidence promotes a finding to the contrary. The wife conceded in cross-examination that she understood (consistent with the evidence of the husband’s father) that the assets of the Gormley Family Trust were in reality assets of the husband’s father.
(i)During oral submissions, it was conceded on behalf of the wife that evidence would not establish that the husband’s father was a puppet of the husband.
On a consideration of all of the evidence, the wife does not discharge that the onus of proof to establish that the husband’s father was the puppet of the husband, such that the husband has ultimate control of the Gormley Family Trust and its property. I find that the husband does not treat the Gormley Family Trust as if it were his own. I find that there is no tacit agreement between him and his father to that effect, and that a consideration of the evidence leads to a conclusion to the contrary. The Gormley Family Trust is ultimately controlled by the husband’s father, both at law and in practice, and not the husband.
I therefore reject the wife’s contention that the Gormley Family Trust is the ‘property’ of the husband for the purposes of the s 79 determination.
Do the husband and wife have interests in the Gormley Family Trust of a proprietary nature?
Although the Gormley Family Trust itself is not property of the husband (or wife), they each as discretionary objects of the trust have a form of an equitable choses in action in the trust being the right to compel the trustee to consider whether or not to make a distribution to him or her and a right to the proper administration of the trust. This falls within the definition of “property” in s 4(1) of the Act and the wording “the property of the parties to the marriage or either of them” in s 79 (see Kennon v Spry at [48], [74]–[75], [79] and [126]). That said, appropriately in my view, neither the husband nor the wife sought to value their property interests by way of such equitable chose in action in the Gormley Family Trust. No such entry shall be recorded in the balance sheet identifying the property of the parties.
Should the Gormley Family Trust, as a financial resource of the husband, be valued?
The husband accepted that a finding was available that “the assets in the [Gormley] Family Trust are a financial resource” of himself, rather than his property (husband’s Case Outline, paragraph D11). The wife accepted that if the Court was not satisfied the Gormley Family Trust was property of the husband and wife, then it “represents a significant financial resource for the husband” (wife’s Case Outline, page 3).
Having regard to the parties’ use of the Gormley Family Trust during their relationship and since separation, I find that the Gormley Family Trust is a financial resource of the husband (of the kind described by the High Court in Hall v Hall (2016) 257 CLR 490 (“Hall”). Currently, it in reality operates as a bucket for the enterprise of the husband and his father. The husband reasonably expects that future support from the Gormley Family Trust will continue as and when he seeks to call on it.
In the event the Gormley Family Trust was determined to be a financial resource of the husband, the wife contended that:
(a)This financial resource could and should be valued. The husband said it could not; and
(b)The evidence was sufficient to ground a valuation of the husband’s financial resource in the trust as at the date of the trial.
Putting aside for one moment the question of whether the financial resource should be valued, the wife’s approach to its valuation was confusing and unsatisfactory. Despite the issue being raised with the parties well-prior to the trial, there was no expert evidence as to the value of the Gormley Family Trust as a whole nor as to any contended interests of the parties in it. The orders and directions made on 12 August 2022 when the trial was listed, include the following notations:
C.The joint balance sheet filed 5 July 2022 records that [2 K Property is] owned in conjunction with the husband’s father and that the [Gormley Family Trust] identified earlier in these notations is a trading trust for the purposes of [business] operations having underlying assets by way of a substantial quantity of plant and equipment, stock, crops […] and other [business] products.
D.The wife contends at this time that it is not required for the purpose of any s 79 hearing to value the interests of the parties in the [Gormley Family Trust].
In the absence of expert evidence, the wife’s final contention was that the value of the financial resource of the husband in the trust was $1,548,000 (see Exhibit 28, Schedule 1 to these reasons) being what she contends is the current net value of the entire trust itself. If I understand it correctly, this approach aggregates:
(a)The single expert opinions as to the value of the Gormley Family Trust’s plant and equipment less the value of finance on some of that equipment; and
(b)The single expert valuations of the livestock of the Gormley Family Trust; and
(c)An estimation of the value of the Gormley Family Trust’s crops; and then
(d)Subtracting the value of bank borrowings (in reality overdrafts), and the value of the beneficiary loan owed by the Gormley Family Trust to the husband’s father.
This approach is wholly deficient and could not be adopted in finding a value of the Gormley Family Trust, in that it:
(a)Did not accurately reflect the value of the husband’s father’s beneficiary loan, recorded at $1,238,750 in the 2022 financial statements. In submissions, the wife said that the Gormley Family Trust ledgers establish that between 30 June 2022 and 31 December 2022, the husband’s father has withdrawn or payments have been made on his behalf from the Gormley Family Trust in the sum of $39,000. Hence she said the value of his loan account as at 31 December 2022 is approximately $1.2 million. That of course assumes that the husband's father's expenditure has been booked against his loan account and that the Gormley Family Trust made no distributions to him in that same period. It is a wholly artificial formula.
(b)Failed to give consideration to other significant assets and liabilities of the trust as recorded in the 2022 financials, being other debit and credit loan accounts as discussed later in these reasons.
(c)Included as an asset of the Gormley Family Trust the value of the “advance” to the husband and wife that the wife contends is not a liability of them, and hence on her case will never be received by the trust (as recorded at [127]–[132] below).
In those circumstances, I do not accept the integers identified by the wife ground a finding as to the current value of the entire Gormley Family Trust, let along the value of the financial resource available to the husband from the trust. I am otherwise not prepared to make such a finding on this issue absent expert evidence.
Even if that were not the case, for the reasons that follow I am not satisfied that it would be appropriate to attribute a value to the financial resource of the husband (or the wife) in the Gormley Family Trust for the purpose of this s 79 exercise.
As recorded above, the husband and wife throughout their relationship used the capital and income of the Gormley Family Trust to meet their own expenses and to conduct business operations, as did the husband’s father. The husband has continued to do so after separation, and might reasonably expect that this capacity to draw on the Gormley Family Trust on an ongoing basis.
In Hall, the High Court said the following in relation to ‘financial resources’ for the purpose of the Act:
[54]The reference to “financial resources” in the context of s 75(2)(b) has long been correctly interpreted by the Family Court to refer to “a source of financial support which a party can reasonably expect will be available to him or her to supply a financial need or deficiency”. The requirement that the financial resource be that “of” a party no doubt implies that the source of financial support be one on which the party is capable of drawing. It must involve something more than an expectation of benevolence on the part of another. But it goes too far to suggest that the party must control the source of financial support. Thus, it has long correctly been recognised that a nominated beneficiary of a discretionary trust, who has no control over the trustee but who has a reasonable expectation that the trustee’s discretion will be exercised in his or her favour, has a financial resource to the extent of that expectation.
(Footnotes omitted)
The inherent nature and characteristics of a financial resource to a party as identified by the High Court in Hall suggest that it is not capable of valuation within the s 79 context. In support of her contention that such a financial resource as available to the husband in this case is not only capable of valuation but ought to be so valued, the wife referred to a recent decision of the Full Court, Barrett & Winnie (2022) FLC 94-093 (“Barrett & Winnie”). That decision did not appear to support the wife’s proposition. At [155], McClelland DCJ, Baumann and Hartnett JJ, citing Shaw and Shaw (1989) FLC 92-030 (“Shaw”) said this:
155.In the present case, there was no evidence presented to the primary judge as to what the value of such a right to “due consideration and due administration” would be. In the absence of evidence of any such value of the interest held by the first respondent, the primary judge, appropriately, in our view, excluded the trust property from the property pool but had regard to the trust assets as being a significant financial resource available to the first respondent. No error has been demonstrated on the part of the primary judge in taking that approach. In that respect, in Shaw and Shaw (1989) FLC 92-030 at 77,420, the Full Court said there was “a degree of artificiality about attempting to assign a monetary value” to a financial resource in circumstances where it was not possible to identify future events or decisions that would result in the financial resource being accessed by the party. A similar view was expressed by Aldridge J in Raine & Creed [2013] FamCA 362 at [33].
(Footnotes omitted)
In Shaw, the Full Court considered the nature of a financial resource, :
As we have previously noted his Honour made no finding as to the value of the Trust or the husband’s interest therein, nor did he find that the Trust was the husband’s alter ego or his “puppet”. If he was correct in not making the latter finding, then we think he did not err in failing to assign a value to the husband’s interest in the Trust. In the absence of such a finding, the husband’s only “property” in relation to the Trust was his right as a beneficiary to enforce the due administration of the Trust, and there is, in our view, a degree of artificiality about attempting to assign a monetary value to such an intangible species of property. In that circumstance, what the parties and the Court ought to have been concerned to ascertain was whether the Trust and, indeed, the husband’s shareholding in Edess, were significant financial resources of the husband. If they were, there would be no need to attempt to value them as if they were property, but only to gain an appreciation of the extent to which the husband might reasonably expect to receive benefits from them in the future, this being a factor proper to be taken into account by the Court in exercising its wide discretion under sec. 79 by virtue of the direction in sec. 79(4)(e) to have regard to the relevant matters referred to in sec. 75(2).
(Emphasis added)
The Full Court said in Shaw that the trial judge, having found that the trust of the husband in that case was a financial resource of him, did not err in failing to attribute a value to the trust itself or to the husband’s interest in it. The wife did not engage with this statement by the Full Court. She did not explain how (or why) the artificiality of attempting to attribute a value to an expectation of future benefit could be overcome. She did not engage with the reality that, while it might be possible to accord a ‘value’ to the trust (being its assets and liabilities), that value would not represent the value of the husband’s expectancy, nor would any attempt to quantify the portion of the trust which the husband might be assumed to receive.

Having regard to the above, I accept that the wife had a number of other motivating reasons which may have induced her to leave D Property in late 2020. Even if her assertion as to the husband’s conduct on that date was accepted, evidently this was not the sole factor which compelled her to move out of the rural properties and thereafter source her own accommodation for herself and the children.
The evidence does not permit me to make specific findings as to what (if anything) occurred between the husband and the wife in late 2020.
Even if I were able to make findings as to the incidents of family violence alleged by the wife, there was a deficiency in the evidence as to how those incidents impacted upon the wife’s contributions. I am not satisfied that the wife has discharged her evidentiary burden to establish that her contributions were rendered more onerous by any family violence occasioned by the husband.
Other matters post-separation
The wife said and I find that in 2020, the children spent a total of “76 hours” with the husband, thereafter that their time with him had increased to five weeks in 2021, and to seven weeks in 2022. It seemed uncontroversial that in 2023 the husband has spent increasing time with the children, and X in particular, including for weekends during the school terms and for block periods over the school holidays. I find the wife’s parenting contributions over the more than four years since separation have been significantly greater than those of the husband. This contribution attracts meaningful weight.
The wife’s affidavit recorded complaints that the husband’s financial support of her and the children post-separation was insufficient. By way of example, she said that:
15.…It has only been on the rarest of occasions since our separation in February 2019 that [the husband] has contributed to our children's expenses beyond paying child support and spousal maintenance.
Her affidavit evidence sat in direct contrast to the series of concessions she readily made in cross-examination about the various expenses paid for by the husband since separation, including:
(a)That in the months after separation in 2019, the husband would transfer her funds in the amounts as and when she requested on an ad hoc basis to meet expenses;
(b)In October 2019, the husband caused a weekly payment of $1,000 (again, in the amount the wife had requested) to be made to her from the Gormley Family Trust;
(c)In late 2020, the husband caused the Gormley Family Trust to transfer her Motor Vehicle 4 after she left D Property with the children. The provision of this vehicle, its subsequent sale by the wife and her retention of the monies she received on the sale of Motor Vehicle 4 are weighed as a contribution favouring the husband;
(d)He and the wife agreed to an interim order in April 2021 that the weekly payments to the wife from the Gormley Family Trust increase to $1,200, and that she receive $150,000 by way of litigation funding; and
(e)In early 2023 $185,000, being the sum she had requested, was transferred to the wife within days to pay a deposit on the P Street property;
(f)In March 2023, $48,000 being paid from the Gormley Family Trust to the wife’s solicitors and further funds being directed to the payment of single expert valuers as recorded at [148] above.
The wife initially said in her oral evidence that the import of her affidavit evidence was that the husband had “shut off the financial tap” at separation. She agreed that ‘to a degree’ she has been adequately financially supported by the husband post separation and that her evidence as to being financially deprived since separation was an “overstatement, I didn’t mean it, I meant that I did not have access to the pool”. She later agreed that her real complaint was that the husband’s priorities had shifted upon him entering into a new relationship with his then partner and now wife and her children. She agreed that, in addition to the financial support she had received as requested from the husband post separation, she had been on average earning about $1,000 per week from a number of different sources. The wife eventually agreed that she has been financially comfortable by way of provision made available by the husband after separation valued at a total in the range of $600,000 and by her own income. I so find. She had the benefit of resources made available from her parents and accepted in cross-examination that she always had on average between $10,000 and $20,000 by way of credit balance in her bank accounts each month after separation.
It is uncontroversial and I find that the assessed child-support paid by the husband post‑separation is very modest. It is currently in the range of $58 per week.
In 2022 the wife enrolled X in a private school to commence in Year 7, without the husband’s prior consent. Despite her affidavit evidence to the contrary, in cross-examination the wife agreed that the husband offered to pay X’s 2022 school fees, without her prompting or request and had paid the fees for the first half of 2023.
By the conclusion of the trial, having regard to the above concessions, the wife’s contention that she was not financially supported or that she was excluded from the parties’ assets after separation largely fell away. In the event of any continued dispute about this issue, I find that the husband has adequately supported the wife and the child since separation, by making payments to her (usually at her request) to meet ongoing periodic and non-periodic expenses as recorded above.
The husband has continued to work hard on the rural properties since separation. The wife has also continued to work hard, including doing contract work and working in Town AK and J Town .
To the extent the wife made complaint in her affidavit that the husband has wasted funds since separation, that issue fell away and was not pressed in submissions.
Conclusion as to contributions
Both parties adopted a single pool approach to the assessment of contributions of both superannuation and non-superannuation property
The wife contended for contributions finding in favour of the husband of 60 per cent and in her favour of 40 per cent up to separation. She submitted that up to the date of the trial, by reason of her superior post-separation parenting contributions, an overall contribution finding should be made in favour of the husband of 55 per cent and in her favour of 45 per cent.
The husband contended contributions should be assessed in a monetary sum of $5 million in favour of the wife. On the balance sheet he constructed (which had a net value in the range of $26 million), this equated to the wife purchasing the P Street property without encumbrance and he paying a cash sum to her in the range of $1 million, so that she would receive approximately 20 per cent of his pool of property.
It was accepted during submissions that a number of Full Court authorities have confirmed that it is not mandatory to assess the contribution based entitlements as a percentage of the pool of the property of the parties and that a trial judge could, in an appropriate case, assess contribution as a monetary sum (see Figgins and Figgins (2002) FLC 93-122).
The Full Court in Horrigan & Horrigan [2020] FamCAFC 25 emphasised that the proper approach to the assessment of contributions is:
…well established that an assessment of contributions is not a mathematical exercise, but rather involves the identification and assessment of all of the parties respective contributions, in a holistic way across the course of the relationship and in the post separation period to the point of assessment
When engaging in such holistic assessment, all contributions must be weighed collectively and not by way of so compartmentalising one against others or the remainder. Taking into account all of the contributions identified in these reasons, contributions are assessed as favouring the husband as to 82.5 per cent and the wife as to 17.5 per cent. This will see a disparity between the husband and wife in dollar terms that equates to $24,128,648 to the husband and $5,118,198, a difference of $19,010,450.
Adjustments to the contributions
Each of the parties are 39 years old and are in good health.
The wife currently receives income from a number of different sources in the range of $1,000 per week. The husband’s Financial Statement records his current income to be $1,000 each week, which he derives from the enterprise conducted by the Gormley Family Trust. He was not challenged on this evidence.
An analysis of the financial statements of the Gormley Family Trust from 2018 to 2022 record sequentially that:
·In the 2018 financial year, the Gormley Family Trust generated a profit of $232,457 (page 56 of Exhibit 23).
·In the 2019 financial year, the Gormley Family Trust generated a loss of $409,399 (page 272 of Exhibit 20).
·In the 2020 financial year, the Gormley Family Trust generated a loss of $89,038.94 (page 298 of Exhibit 20).
·In the 2021 financial year, the Gormley Family Trust generated a profit of $395,990 (page 325 of Exhibit 20).
·In the 2022 financial year, the Gormley Family Trust generated a loss of $669,254 (page 351 of Exhibit 20).
The evidence suggests that in recent years, the Gormley Family Trust has been largely funded by the sale of depreciated plant and equipment and increases in borrowings to maintain the enterprise and to facilitate the purchase of further significant plant and equipment. The recent trust financial statements record that the enterprise since separation has not produced a consistent ongoing profit. The Gormley Family Trust and hence the husband and the wife have, in reality, been living out of capital since separation as identified by the reduction in the value of the husband’s credit loan account, the complete exhaustion of the wife’s credit loan account and the creation and increase in the value of her debit loan account (see [111]–[116] above).
The property interests of the husband by way of the contribution findings are substantially greater than and significantly dwarf those of the wife. The husband has the benefit of a significant financial resource by way of the Gormley Family Trust. The “advance” from the trust to the parties to facilitate the purchase of 2 K Property and K Property and the parties’ debit or credit loan accounts have been taken into account in the contribution findings. I find that it is likely that the husband will call upon the trust to provide him with financial assistance in the future as he has done so in the past, and that the trust, through his father, will meet that call.
I take into account that the wife will have to pay the stamp duty on her current P Street acquisition.
The wife will have the ongoing primary care of the children. The husband’s time spent with the children has increased over the past 12 months compared to his time spent in the aftermath of separation. I find that the terms of his current time spent with the children is likely to continue in the foreseeable future.
As recorded above, the husband pays modest periodic child support to the wife as assessed. In cross-examination he said, and I accept, that he will continue to pay for X’s private school fees and will pay those for Y once he commences high school. Consistent with his conduct post‑separation (as recorded in my findings at [241]–[245] above), I find that it is more likely than not that the husband will continue to appropriately support the children in the future at a rate commensurate to his income, property and resources. In the event I am in error in this determination, it is always available to the wife to apply to review the current periodic child support payable by the husband pursuant to the provisions of Pt 6A of the Child Support (Assessment) Act 1989 (Cth).
During the period of the marriage the parties lived a frugal and thrifty lifestyle. The standard of living of each of them appears to have improved somewhat since separation.
Each of the husband and wife have modest interests in superannuation, which have been included in the single pool of property to be adjusted between them.
The husband has an obligation to support his current wife at law. There is little evidence about her financial circumstances. He is in reality, albeit he has no legal obligation to do so, providing direct and indirect support for his current wife’s three children including paying their school fees. This support is being made available to the husband by way of the financial resource he has in the Gormley Family Trust.
The wife’s contentions contained in her affidavit and Case Outline as to the husband’s disclosure failures insofar as they were suggestive of the husband failing to identify all of his current income property and resources (including those of the Gormley Family Trust) fell away by the end of the trial.
The husband will retain and be solely responsible for substantial but unquantified possible impregnated CGT in the rural properties. As recorded earlier in these reasons, the single expert opined as to the spectacular impact of upward market movements in the value of the properties from 2015 to date. It is difficult to give weight to this factor in circumstances where the current possible value of that capital gain was not the subject of evidence. In the circumstances it can only be broadly considered.
Both parties said in submissions that their contentions as to the fact and value of any adjustment to the contribution findings was not static, in that they were dependent on the findings made as to the items to be included on the balance sheet and the values attributed to them, as well as the contribution findings. That said, the wife contended there ought to be an adjustment in her favour from her contended contribution finding of 45 per cent by way of a further five per cent so that she would achieve half of the property of the parties. The husband contended that there ought not to be any further adjustment to the contribution findings in favour of either party granted from his contention as to a contribution determination being made in the wife’s favour in the sum of $5 million.
A holistic consideration of all of the matters raised above, as are relevant, warrants an adjustment from the contribution findings in favour of the wife of five per cent. In dollar terms, this is an adjustment to the wife of $1,462,342, a difference of just under $3 million ($2,924,684.60).
CONCLUSION – JUSTICE AND EQUITY
This will result in the wife receiving 22.5 per cent and the husband receiving 77.5 per cent of the property of the parties. In dollar terms, this results in the husband receiving property to the value of $22,666,306 and the wife property to the value of $ $6,580,540, a difference of $16,085,766. I find that this conclusion is just and equitable in a manner that derives from the context, the history and the reality of these parties in the circumstances of this matter. The determination is based in reality rather than being arbitrary.
Both parties seek G Property
The wife’s primary relief was that in addition to a cash adjustment, there be an adjustment in her favour so that she retains G Property unencumbered. As I understood her case, the cash adjustment sought from the husband was in priority to a transfer of the G Property in specie, so that she would be in a position to complete the acquisition of the exchanged contract to acquire the P Street property due to complete in late 2023.
The value of the proposed adjustment pursuant to these reasons does not provide to the wife sufficient funds to achieve the transfer of G Property in specie without encumbrance and a cash adjustment sufficient to complete the purchase of the P Street property. The wife did not promote any evidence that she would be able to receive a cash adjustment, complete the acquisition of the P Street property and also then receive the benefit of a transfer in her favour of G Property making a necessary adjustment payment to the husband as a consequence of that transfer. In those circumstances, the wife’s application to receive G Property in specie will be refused.
In the event, I am in error as to that conclusion, I find it to be just an equitable for the husband to retain the benefit of G Property as against the wife.
I accept the husband’s evidence as to the benefit of G Property to the balance of the business aggregation and the necessity of the property, having regard to its size and other characteristics, to maintaining the viability of the overall enterprise. I am not persuaded that the wife’s reasons for her retention of G Property, being that she could either rent the property for a very modest return as a function of its value, or that she could farm the property herself, or install a temporary dwelling on the property so that the children could engage in recreational activities, tips the balance in her favour on this subject matter.
I further give weight in this determination as to the wife’s unilateral election in early 2023 to commit herself to expend $4 million to buy the P Street property on the river near City AR, being more in the character of a lifestyle acquisition, rather than taking what may have been a more prudent approach in circumstances to await the outcome of this determination, where the matter was listed for trial in the near future, having then a clearer picture of her then financial presentation to achieve or buy a large commercial property.
Adjusting sum
The wife’s overall entitlement of 22.5 per cent of the pool identified in the balance sheet equates $6,580,540. She currently has in her possession or will receive the following:

Ownership Description Value ($)

ASSETS

8 Wife QQ Credit Union account x…88 8,039

9 Wife Deposit paid by the wife to purchase the P Street property 200,000

10 Wife Motor Vehicle 1 70,350

ADDBACKS

12 Wife Paid legal fees 206,030

SUPERANNUATION

22 Wife Superannuation Fund 1 14,405

Total assets + addbacks + superannuation 498,824

LIABILITIES

18 Wife Loan from the wife’s mother 150,000

19 Wife Loan from the wife’s father 20,000

Total net property $328,824

Prior to any adjusting sum, the wife has or will receive property in the value of $328,824. Hence, in order to reach her entitlement to $6,580,540, she requires an additional $6,251,716.
The husband has in his possession or will receive the following:

Ownership Description Value ($)

ASSETS

2 Joint D Property 4,500,000

3 Joint K Property 7,932,821

4 Joint Two thirds interest in 2 K Property (remaining one third interest held by the husband’s father, total value $4,467,178) 2,978,119

5 Joint E Property 6,000,000

6 Joint F Property 2,600,000

7 Joint G Property 7,800,000

11 Husband QQ Credit Union x …54 1,387

ADDBACKS

13 Husband Paid legal fees 98,439

SUPERANNUATION

23 Husband Superannuation Fund 1 5,695

Total assets + addbacks + superannuation 31,918,022

LIABILITIES

16 Joint LL Financial Services account …15
K Property Mortgage 2,500,000

17 Joint Mortgage to the husband’s father over E Property 500,000

Total net property 28,918,022

Prior to paying the wife an adjusting sum, the husband has or will receive net superannuation and non-superannuation property in the value of $28,918,022. Upon a payment by him to the wife of $6,251,716, he will be left with property to the value of $22,666,306 (being his entitlement of 77.5 per cent of the property).
The wife sought by way of Exhibit 29 that the husband pay her the entire adjusting sum on before 29 September 2023, and that simultaneously with that payment he cause any liability secured by way of mortgage on the properties (including the mortgage in favour of his father secured upon E Property) to be discharged. The husband sought that $5 million of any cash adjusting sum be paid within 60 days of any orders and any balance be paid 12 months thereafter. Without concession, the wife’s position was that any payment of an adjusting sum greater than $5 million be paid within six months of the date of any orders.

Fundamental to the application of justice and equity is that the Court must take the property of the parties as it finds it. That property is the product of its history and the manner in which the parties have caused it to be constructed. This is a case about business assets that are worked on a seasonal or annualised basis. The income of the business assets are not generated on a monthly or similar sequence. It was the husband’s case that he could arrange a payment of $5 million to the wife within 60 days. The wife did not materially put this contention into dispute or submit why such period was unreasonable.
The wife’s proposed period(s) for payment are a function of her natural desire to achieve all of her cash adjustment, and hence her property, as quickly as possible. That said, it would not be sensible to order the husband to pay a sum of money within a period of time that he could not accommodate with the consequence of a default order for sale of properties. Payment to the wife of $5 million within 60 days will ensure that the wife has more than adequate funds to complete the acquisition of the P Street property, funds to pay her outstanding legal fees, and funds to otherwise supplement her income until she obtains the balance due. Payment of any balance by the husband in 12 months’ time will allow the husband to complete work so as to generate additional funds or security for borrowings, to pay the wife the balance of $1,251,716 due. An order will be made as to the husband paying to the wife, the sum of $5 million within 60 days and the balance (being $1,251,716) within 12 months from the date of these orders.
There was no material submission made by the wife to support her relief as to the husband causing the mortgages secured upon the real property to be discharged at the date of transfer as opposed to the husband causing the wife to be discharged from any obligation pursuant to the said mortgages. It is sensible that an order be made that the husband procure the discharge of any liability of the wife by way of loan or mortgage. An order will be made to that effect.
It was the wife’s proposal that she not transfer her legal interest in any of the real properties to the husband until the total value of the adjusting sum is paid, including if it were to be paid by instalments. On the husband’s case, the first instalment of $5 million will be raised by finance secured upon the real properties, for which he will be solely responsible. Orders in the terms sought by the wife would be grossly problematic, in that they would require the husband to borrow funds secured upon the properties of which the wife remained a registered proprietor. This would be, if not commercially nonsensical, more likely than not to at least delay and possibly prevent, the husband raising funds to comply with the orders for paying the first instalment of cash adjusting payment to the wife required before 1 December 2023. Orders as to this subject matter will be broadly made in terms sought by the husband.
Security sought by the wife for the second instalment payment is anchored in the substantive value of the real properties to be retained by the husband when compared to the value of the current and proposed secured borrowings. Sufficient security for the second instalment payment will be by way of an injunctive order as to the husband providing the wife with 28 days’ notice in writing of any intention he may have to sell or further in encumber the properties pending payment of the second instalment, save and except in the ordinary course of business in conducting the farming operations. The notice provided by the husband shall include particulars of any proposed sale or further encumbrance. Upon receipt of such notice, the wife can take such further action as she considers prudent or necessary to secure the balance of the cash payable by the second instalment.
The Gormley Family Trust
The wife sought orders requiring the husband to cause the Gormley Family Trust to forgive, or assign to himself or his nominee, the debit loan account currently payable to her (see at [115]–118] above). She implicitly sought similar orders in relation to Item 22. Her proposed orders made her relinquishing or assigning to the husband her entitlements in the Gormley Family Trust and C Pty Ltd conditional upon him doing so.
The husband proposed an order that he, in his personal capacity, in his capacity as a trustee of the Gormley Family Trust and in his capacity as a shareholder and director of C Pty Ltd, would indemnify the wife in respect of any liability of any kind incurred by the wife arising from she being a discretionary object of the Gormley Family Trust, an officeholder of C Pty Ltd or in respect of any taxation or other liability relating to same or by way of any loan, advance or distribution from the Gormley Family Trust.
The order sought by the husband contained in Exhibit 29 achieves the objectives of both parties. An order will be made to that effect.
Default sales
The parties agreed in Exhibit 29 to orders for the sequential sales of F Property, then K Property, and then D Property in the event the husband failed to pay to the wife at least the first instalment of $5 million. The wife also proposed default sales in the event the balance was not paid. They broadly agreed as to the priority for applying the proceeds of the sales of the properties to include orders ensuring that the CGT liabilities of either of them were quarantined and later met from the default sales proceeds before any monies were paid to the wife.
Importantly, the parties agreed that in the event of a default sale, contrary to what was identified by the Full Court in Noetel and Quealey (2005) FLC 93-230, the wife shall receive that part of her outstanding adjusting sum as remains unpaid, together with interest thereon from the date of default at the rate prescribed by the Rules until the date those monies are received by the wife. This course was preferred by them to orders being made for the proceeds of any sale of real property being adjusted between them on a percentage basis, which would maintain the integrity of the justice and equity adjusting property as recorded earlier in these reasons. The latter approach would ensure each party benefits from or contributes to the rise and fall of any value achieved on the default sale of the properties, and would similarly equitably share in any CGT liability triggered by that disposal.
In all of the circumstances, accepting that the parties are well represented and given they have set the parameters of this issue, orders will be made broadly and consistently in the terms they have agreed on this subject matter.
Exhibit 29 reflects an agreement to engage a single expert accountant to estimate the CGT liabilities of the husband and wife in the event properties are sold by default. It reflects an agreement that a portion of the proceeds of sale would be quarantined to meet those liabilities. It did not provide any mechanical order to facilitate the payment of the liability, or directing what would happen in the event there was a shortfall in the quantified amount required to pay the liability or surplus remaining after it had been paid.
In circumstances where the parties agree that the husband will seek to retain the properties, and the wife will receive a fixed adjusting sum, I find that it is just and equitable for the husband to assume responsibility for any CGT payable in the event one or more of the properties are sold because of his default. The husband would then achieve the benefit or detriment of any rise or fall in the value achieved on such default sale. It would not be just or equitable for the wife in these circumstances to bear any CGT consequence reducing the value of her specified adjusted cash sum. Should a surplus exist in the controlled monies account after the assessment and payment of the CGT of each party, the husband will receive that surplus. Similarly, if further monies are payable to the ATO after the controlled monies account is exhausted, the husband will pay that shortfall on behalf of the wife. Orders will be made to deal with any such contingency.
The wife sought a suite of orders should the husband elect to sell any real property in order to “raise funds to pay” the adjusting sum. The husband did not seek such an order. There is no reason to make such an order having regard to the determinations made earlier in these reasons.
The parties broadly agreed that the husband should have exclusive use and occupation of the properties, for him to meet the outgoings in respect of the properties and for neither of the parties to encumber the properties until the first instalment was paid, unless the encumbrance was required to facilitate compliance with the orders. While the parties did not precisely agree to the terms, orders will be made generally progressing their objectives so that they are consistent with the earlier determinations made in these reasons.
Periodic spouse maintenance
The parties agreed that the husband will pay periodic spouse maintenance to the wife of $1,200 per week, pending the happening of specified events. The husband agreed that it be paid until the first instalment of $5 million was paid to the wife. The wife sought the payment to continue until the entire adjusting sum was paid. The wife did not seek orders for spousal maintenance on a final basis (that is, after the payment of the adjusting sum).
No material submissions were made on this subject matter. The wife’s current income is in the range of $1,000 per week. Her Financial Statement asserts that her personal expenditure is in the range of $2,200 (including expenditure for the children). Hence after the receipt of the first instalment of $5 million, her current income and those funds would be sufficient to ensure she can adequately support herself.
In the circumstances, an order will be made in terms similar to those agreed to by the husband, save that in the event he does not pay the first instalment of $5 million and properties are sold, taking into account the value of F Property and the mortgage priority secured upon same, the wife will not receive funds until K Property is sold. Should that occur, the periodic spouse maintenance will be payable until all of the cash adjusting sum is received by the wife. There is no foundation for the order sought by the wife as to “penalty interest” (whatever that may mean) being payable on any arrears of spouse maintenance should they accrue. That order is refused.
Further consent orders will be made in terms of paragraphs 4, 5, 22 and 25 of Exhibit 29.
The parties sought an order by way of liberty to apply in respect of any default sales or part thereof. I will not provide a general liberty by way of this determination. The parties have the capacity to make such enforcement application as they consider appropriate in accordance with the Act and the Rules. An order will be made dismissing all extent applications and providing for a regime of filing any applications for costs.
Conclusion
For all of the above reasons, I make the orders as set out at the forefront of these reasons.

I certify that the preceding three hundred (300) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton.
Associate:
Dated: 15 August 2023
SCHEDULE 1 – EXHIBIT 28
Omitted to comply with s 121 of the Family Law Act 1975 (Cth)

File number:	CAC 2949 of 2020
Judgment of:	CAMPTON J
Date of judgment:	15 August 2023
Catchwords:	FAMILY LAW – PROPERTY – Adjustment of property pursuant to s 79 of the Family Law Act 1975 (Cth) – Disputed balance sheet – Where the vast majority of the current property of the husband and wife originated from intergenerational transfers of rural properties from the husband’s father during their marriage – Where the wife contends the intergenerational transfers were intended to benefit both herself and the husband – Where the transferred properties have been held by the husband’s family for more than 100 years – Whether a discretionary trust established by the husband’s father prior to the parties’ relationship is property of the husband and wife – Where the wife does not contend the trust is a sham, and a finding is made that the husband’s father retains ultimate control of the trust – Consideration of whether a financial resource is capable of being valued – Where a just and equitable division of the parties’ property is found to be 77.5 per cent in favour of the husband and 22.5 per cent in favour of the wife.
Legislation:	Child Support (Assessment) Act 1989 (Cth) Pt 6A Family Law Act 1975 (Cth) ss 4, 75, 79, 106A, 117 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.06 Trustee Act 1925 (NSW) s 44
Cases cited:	Barrett & Winnie (2022) FLC 94-093; [2022] FedCFamC1A 99 Biltoft and Biltoft (1995) FLC 92-614; [1995] FamCA 45 Conrad & Conrad and Anor [2019] FamCA 106 Figgins and Figgins (2002) FLC 93-122; [2002] FamCA 688 Gormley & Gormley (No 2) [2023] FedCFamC1F 433 Gormley & Gormley [2023] FedCFamC1F 296 Gosper and Gosper (1987) FLC 91-818; [1987] FamCA 43 Hall v Hall (2016) 257 CLR 490; [2016] HCA 23 Harris & Dewell and Anor (2018) FLC 93-839; [2018] FamCAFC 94 Horrigan & Horrigan [2020] FamCAFC 25 Kardos v Sarbutt (2006) 34 Fam LR 550; [2006] NSWCA 11 Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27 Kennon v Spry (2008) CLR 366; [2008] HCA 56 Kessey and Kessey (1994) FLC 92-495; [1994] FamCA 162 NHC and RCH (2004) FLC 93-204; [2004] FamCA 633 Pencious & Pencious and Anor [2014] FamCAFC 171; Pierce v Pierce (1999) FLC 92-844; [1998] FamCA 74 Shaw and Shaw (1989) FLC 92-030; [1989] FamCA 29 Stanford & Stanford (2012) 247 CLR 108; [2012] HCA 52 Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173 TWN and PAQ (2005) FLC 93-230; [2005] FamCA 677
Division:	Division 1 First Instance
Number of paragraphs:	300
Date of hearing:	10–13 July 2023
Place:	Sydney
Counsel for the Applicant:	Mr Matthews KC with Ms Tulloch
Solicitor for the Applicant:	Orman Solicitors
Counsel for the Respondent:	Mr Puckey KC
Solicitor for the Respondent:	Walsh & Blair

CAC 2949 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS GORMLEY Applicant
AND:	MR GORMLEY First Respondent

ORDER MADE BY:	CAMPTON J
DATE OF ORDER:	15 AUGUST 2023

Ownership		Description		Wife’s value ($)	Husband’s value ($)	Determination ($)
ASSETS
1	Joint or Husband	Gormley Family Trust		1,548,000	0	0
2	Joint	D Property		4,500,000	4,500,000	4,500,000
3	Joint	K Property		7,932,821	7,932,821	7,932,821
4	Joint	Two thirds interest in 2 K Property (remaining one third interest held by the husband’s father, total value $4,467,178)		2,978,119	2,978,119	2,978,119
5	Joint	E Property		6,000,000	6,000,000	6,000,000
6	Joint	F Property		2,600,000	2,600,000	2,600,000
7	Joint	G Property		7,800,000	7,800,000	7,800,000
8	Wife	QQ Credit Union account x…88		8,039	8,039	8,039
9	Wife	Deposit paid by the wife to purchase the P Street property		200,000	185,000	200,000
10	Wife	Motor Vehicle 1		70,350	0	70,350
11	Husband	QQ Credit Union x…54		1,387	1,387	1,387
Total				33,638,716	31,122,660	32,090,716
ADDBACKS
12	Wife	Paid legal fees		204,534	206,030	206,030
13	Husband	Paid legal fees		100,603	100,000	100,000
14	Husband	Husband’s excessive expenditure post separation from January 2020 to May 2023		273,420	0	0
15	Wife	Proceeds of sale of Motor Vehicle 4 sold in 2021		0	65,000	0
Total				578,557	371,030	306,030
TOTAL ASSETS + ADDBACKS						32,396,746
LIABILITIES
16	Joint	LL Financial Services account …15 K Property Mortgage (Limit $2,500,000)		2,500,000	2,500,000	2,500,000
17	Joint	Mortgage to the husband’s father over E Property		0	500,000	500,000
18	Wife	Loan from the wife’s mother		150,000	0	150,000
19	Wife	Loan from the wife’s father		20,000	0	20,000
20	Wife	Loan from wife’s brother		10,000	0	0
21	Wife	Stamp duty due 1 June 2023		215,200	0	0
22	Joint	Advance from the Gormley Family Trust to the husband and wife to purchase K Property and 2 K Property		0	2,746,000	0
Total				2,895,200	5,746,000	3,170,000
TOTAL ASSETS + ADDBACKS – LIABILITIES						29,226,746
SUPERANNUATION
Member		Name of Fund	Type of Interest	Husband’s value ($)	Wife’s value ($)	Determination ($)
22	Wife	Superannuation Fund 1	Accumulation	14,405	14,405	14,405
23	Husband	Superannuation Fund 1	Accumulation	5,695	5,696	5,695
Total				20,100	20,100	20,100
TOTAL NET SUPERANNUATION + NON-SUPERANNUATION						29,246,846

Ownership		Description	Value ($)
ASSETS
8	Wife	QQ Credit Union account x…88	8,039
9	Wife	Deposit paid by the wife to purchase the P Street property	200,000
10	Wife	Motor Vehicle 1	70,350
ADDBACKS
12	Wife	Paid legal fees	206,030
SUPERANNUATION
22	Wife	Superannuation Fund 1	14,405
Total assets + addbacks + superannuation			498,824
LIABILITIES
18	Wife	Loan from the wife’s mother	150,000
19	Wife	Loan from the wife’s father	20,000
Total net property			$328,824