Lambeth & Quaid - [2024] FedCFamC2F 659

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lambeth & Quaid [2024] FedCFamC2F 659

File number(s): CAC 2164 of 2022

Judgment of: JUDGE W J NEVILLE

Date of judgment: 30 May 2024

Catchwords: FAMILY LAW – PROPERTY – very short de facto relationship of approximately 2 years – difficulties in assessing contributions based on the limited evidence and especially because the Respondent de facto Husband did not give evidence due to mental health issues and was represented by his litigation guardian – precise arithmetical calculation of contributions to be balanced with considerations of justice and equity – each party to pay their own costs.

Legislation: Family Law Act 1975 (Cth) ss.75(2)(o), 90SF(3)(r), 117

Cases cited:
Anson v Meek (2017) 57 Fam LR 23; (2017) FLC 93-816

Bevan v Bevan (2013) 279 FLR 1; (2013) 49 Fam LR 387

Chapman v Chapman (2015) 51 Fam LR 176

Dickons v Dickons (2014) 50 Fam LR 244

Fields v Smith (2015) FLC 93-638; (2016) 53 Fam LR 1

AJO & GRO (2005) 33 Fam LR 134

Stanford v Stanford (2012) 247 CLR 108

Division: Division 2 Family Law

Number of paragraphs: 95

Date of last submission/s: 9 April 2024

Date of hearing: 2 April 2024

Place: Canberra

Counsel for the Applicant Ms Davis

Solicitor for the Applicant Gabbedy Milson Lee

Counsel for the Respondent Ms Bromberger

Solicitor for the Respondent Stanford Solicitors & Mediators

ORDERS

CAC 2164 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS LAMBETH
Applicant

AND: MR QUAID
Respondent

ORDER MADE BY:

JUDGE W J NEVILLE

DATE OF ORDER:

30 MAY 2024

ON A FINAL BASIS, THE COURT ORDERS THAT:
1.Forthwith and from the date of these Orders:
(a)The Respondent shall be solely responsible for all outgoings associated with the property situated at B STREET, SUBURB C more particularly described in Certificate of Title Volume … Folio …, (“the Suburb C Property”), including but not limited to utilities, rates, insurances etc. and shall indemnify the Applicant in relation to same;
(b)The Respondent shall be solely responsible for all of the loan repayments as they fall due and shall indemnify the Applicant in relation to same; and
(c)The Respondent shall have right to occupy the Suburb C property including to the exclusion of the Applicant.

2.Within 30 days from the date of these Orders:
(a)The parties shall take all steps and sign all necessary documents to arrange the Suburb C property to be sold;
(b)The sale of proceeds from the Suburb C property shall be paid in the following manner and priority:
(i)Payment of the agent’s commission and advertising or other expenses, if any including but not limited to rates and other outgoings, payable on the sale;
(ii)Payment of the legal costs and outlays relating to the sale;
(iii)Payment of any expenses to be reimbursed to an auctioneer (if any);
(iv)Payment of the amount owing at the time on the loan and to discharge the mortgage;
(v)To pay the Applicant 16% of the net asset pool; and
(vi)The net balance to the Respondent.

3.For the purpose of Order 2(a), the parties effect the sale of the Suburb C property on such terms and conditions as agreed between them in writing, and failing agreement, as follows:
(a)The parties place the Suburb C property for sale with D Company, Suburb C / Suburb E as the agent having carriage of the sale (“the Agent”);
(b)The parties engage F Conveyancing to be the conveyancing solicitor for the sale or the Suburb C property (“the conveyancing solicitor”);
(c)The terms and conditions of the sale of the Suburb C property shall be as agreed between the parties in writing within 14 days from the date of these Orders unless otherwise agreed in writing, and failing agreement, as recommended by the Agent;
(d)The parties shall promptly sign all documents necessary to facilitate the sale of the Suburb C property including but not limited to the Agency Agreement, a Contract for Sale, a Transfer of Land and a Discharge of Mortgage;
(e)The list price for the Suburb C property be such amount as is agreed between the parties in writing and failing agreement, as recommended by the Agent;
(f)The sale price for the Suburb C property be such amount as is agreed between the parties in writing and failing agreement, the parties shall accept any offer to purchase the Suburb C property that is no less than 95% of the list price determined under Order 3(e);
(g)The parties shall cooperate with the Agent in relation to the marketing of the Suburb C property for sale, including making the keys readily available, allowing inspection of the Suburb C property at all times as reasonably requested by the Agent.

4.Unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money under these or any subsequent:
(a)Each party be solely entitled to the exclusion of the other to all property, including choses-in-action, in the possession of such party as at the date of these Orders;
(b)Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;
(c)Each party hereby foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other;
(d)All insurance policies are to become the sole property of the owner named herein;
(e)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
(f)Any joint tenancy of the Applicant and Respondent in any real or personal estate is hereby expressly severed.

5.In the event that the Suburb C property does not sell at auction within 120 days, absent any other agreement in writing between the parties, the parties may approach a Registrar of the Court to determine any other process to ensure the sale of the Suburb C property.
6.Pursuant to Order 5 herein, the parties may proceed on the basis of each filing and serving a single Affidavit to update the Court, of no more than 4 pages, accompanied by Written Submissions from each party of no more than 2 pages.
7.In the event that either party refuses or neglects to execute any deed or instruction, a Registrar of the Federal Circuit and Family Court of Australia be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed or instrument in the name of such party and do all acts and things necessary to give validity to the operation of the deed or instrument to effect compliance with the orders herein.
8.Pursuant to Section 117(1) of the Family Law Act 1975 (Cth), each party is to bear their own costs of and incidental to these proceedings.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction

This de facto property matter concerns a very short relationship between the parties of approximately two and a half years. Simply for ease of reference and nothing else, I will refer to the parties by the slightly more simplified terms of “Wife” and “Husband.” No legal or financial significance turns on such description. The Wife is aged 42 years, and the Husband 43 years.
At one stage early in the litigation, there was a contest about whether there actually existed a de facto relationship. However, the way the matter ultimately ran, and given the Respondent Husband’s Orders sought, the Court can put that preliminary contest to one side as now irrelevant.
For all practical purposes, there is only one asset in the asset pool, which is a property in the City G suburb of Suburb C. There was some, very small contest about its value. For current purposes, the Applicant Wife obtained (at her expense) a formal valuation of this property after having invited/requested the Husband to contribute to the cost of obtaining it. He declined. The value of it came in at approximately $1.355 million. Having regard to the mortgage over the property, it is now agreed between the parties that the net value is $710,000.
The Wife seeks payment to her of a specified sum of $170,000, which represents approximately 27.5% of the pool. The Husband proposes that the Wife receive a payment that is only 5% of the net asset pool.
There was one attempt to sell the property in late 2023. It did not then sell at auction. There were some “difficulties” at the auction arising from the conduct of certain persons. I need not detail the incident(s) alleged or otherwise comment on the persons involved, other than some passing references later in these reasons. I was not asked to make any findings about them. I need only note that it was, and is still, contended by the Husband that the real estate agents on the day did not conduct themselves appropriately, such that he now does not have confidence in them to sell the property. Given that it was the Husband’s family who were alleged to be the “disrupters” at the original auction, their current disposition is somewhat understandable. However, to engage different agents now will throw away both the knowledge obtained, and the costs already expended by the original selling agents. As I pointed out to everyone at the hearing, it is in the parties’ interests, as well as in the agents’ interests, to secure the best possible price. Plus, to engage different agents will incur additional costs. Therefore, it is unsustainable, in my view, to argue that because the Husband does not have confidence in the original agents, different agents should now be retained. To avoid further cost, I confirm that the original agents shall act as the selling agents for the property, absent any other agreement between the parties in writing.
Apart from the property at Suburb C, the assets of the parties are modest. The Wife works at J Company in an administrative role. The Husband worked, and may in time perhaps work further, as a tradesperson. He was medically discharged from his work in approximately late 2022. Their respective “incomes” (broadly defined) are modest. The Wife has a moderate amount of superannuation in the sum of $228,971. The Husband has a rather more modest amount of superannuation of $120,338.
Every case invariably has a “wrinkle or two.” The “wrinkle” in this matter (which is not a criticism) was not only the shortness of the relationship, but particularly that the Husband had appointed, by consent, a litigation guardian due to his mental health issues. One consequence of this circumstance was that the Wife alone was cross examined. At one level, this could be seen to be procedurally (and in relation to evidence also) unfair to her because she was the only one to be subject to this difficult task and have her evidence open to scrutiny. Conversely, this could likewise be seen as a procedural benefit or advantage for the Husband because he avoided such investigation and examination. The cross examination of the litigation guardian (canvassed below) did not ameliorate the procedural fault line for each party, especially since (a) the Husband did not even attend the hearing, and (b) without undue criticism, the litigation guardian was not able to answer a number of questions put to her because she did not have the relevant background information required.
Indeed, in many respects, this procedural “wrinkle” led Counsel for the Wife to submit that the matter might, or should, run on an undefended basis. Accepting the force of the argument, ultimately, I did not (and do not) think that the matter could proceed on that basis precisely because the Husband was formally represented by Counsel (even though he was absent from the hearing), and by his litigation guardian, and notwithstanding that the Husband’s evidence was untested and the evidence from the litigation guardian (as already noted) was necessarily limited in a significant number of respects (again I stress that this is no criticism of her).
No less relevantly, (a) the absence of cross examination of the Husband was a matter that was likely more relevant to the Court’s consideration of the evidence rather than (strictly speaking) a matter of procedure, and (b) at the end of the day, having regard to the documentary and other evidence, and in the light of submissions, I do not think that it would have made very much difference in any event.
Accepting the asset pool as specified in the “joint balance sheet” as detailed by the Wife (of $617,123), but excluding the superannuation of both parties (with each party keeping their respective superannuation interests – as proposed), for the reasons that follow, and having regard to a range of authority noted below especially regarding “short relationship cases”, in my view there should be a payment to the Wife in the sum of $98,739, which represents 16% of the net asset pool. While this is rather less (in dollar and in percentage terms) than the Wife sought, in my view, having regard to the shortness of the relationship and the consideration of the contributions of the parties (also set out below), and also bearing in mind that there is significant authority which confirms that the exercise of the Court is not a series of precise, mathematical calculations, the sum (and percentage) indicated is just and equitable in all of the circumstances.
Otherwise, with some “tweaking”, the procedural Orders sought by the Applicant should be made, including Order 2 as outlined in the Respondent’s Amended Response to Final Orders regarding the sale of the property. There shall also be an Order that s.106A of the Act shall apply regarding any documents that require signature able to be signed by a Registrar of the Court in the event of any default.
In the circumstances here, there is nothing exceptional that would warrant anything other than the usual Order under s.117(1) of the Family Law Act 1975 (Cth) (“the Act”), namely for each party to pay her and his own costs.
Applicant’s Orders sought
The Applicant’s Orders sought were contained in her Further Amended Initiating Application filed on 4^th March 2024, and were as follows (emphasis in original):
1.That forthwith and from the date of these Orders:
a.The Respondent shall be solely responsible for all outgoings associated with the [Suburb C] property including but not limited to utilities, rates, insurances etc and shall indemnify the Applicant in relation to same;
b.The Respondent shall be solely responsible for all of the loan repayments as they fall due and shall indemnify the Applicant in relation to same; and
c.That the Respondent shall have right to occupy the [Suburb C] property including to the exclusion of the Applicant.
2.That within 30 days from the date of the orders:
a.The parties shall take all steps and sign all necessary documents to arrange the [Suburb C] property to be sold with the method, sale price and real estate agent to be determined by the Applicant; and
b.The sale of proceeds from the [Suburb C] property shall be paid in the following manner and priority:
i.Payment of the agent’s commission and advertising or other expenses, if any including but not limited to rates and other outgoings, payable on the sale;
ii.Payment of the legal costs and outlays relating to the sale;
iii.Payment of any expenses to be reimbursed to an auctioneer (if any);
iv.Payment of the amount owing at the time on the loan and to discharge the mortgage;
v.To pay the Applicant 27.5%; and
vi.The net balance to the Respondent.
3.That unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money under these or any subsequent:
a.Each party be solely entitled to the exclusion of the other to all property, including choses-in-action, in the possession of such party as at the date of these Orders;
b.Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;
c.Each party hereby foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other;
d.All insurance policies are to become the sole property of the owner named herein;
e.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
f.Any joint tenancy of the Applicant and Respondent in any real or personal estate is hereby expressly severed.
Respondent’s Orders sought
Prior to the Final Hearing, the Respondent’s Orders sought were contained in his Amended Response to Final Orders filed on 3^rd October 2023 (emphasis in original);
1.That forthwith upon the making of these orders, the parties do all such acts and things necessary to effect the sale of the property situate at and known as [B Street, Suburb C] in [City G] (“the Suburb C property”), more particularly described in Certificate of Title Volume […] Folio […], Division of [Suburb C].
2.That for the purpose of Order 1, the parties effect the sale of the [Suburb C] property on such terms and conditions as agreed between them in writing and failing agreement as follows:
a.The parties place the [Suburb C] property for sale with [D Company] [Suburb E/Suburb C] as the agent having carriage of the sale (“the Agent”);
b.The parties engage [F] Conveyancing to be the conveyancing solicitor for the sale or the [Suburb C] property (“the conveyancing solicitor”);
c.The terms and conditions of the sale of [Suburb C] property shall be as agreed between the parties in writing within 14 days from the date of these orders unless otherwise agreed in writing, and failing agreement, as recommended by the Agent;
d.The parties shall promptly sign all documents necessary to facilitate the sale of the [Suburb C] property including but not limited to the Agency Agreement, a Contract for Sale, a Transfer of Land and a Discharge of Mortgage;
e.The list price for the [Suburb C] property be such amount as is agreed between the parties in writing and failing agreement, as recommended by the Agent;
f.The sale price for the [Suburb C] property be such amount as is agreed between the parties in writing and failing agreement, the parties shall accept any offer to purchase the [Suburb C] property that is no less than 95% of the list price determined under Order 1(e);
g.The parties shall cooperate with the Agent in relation to the marketing of the [Suburb C] property for sale, including making the keys readily available, allowing inspection of the [Suburb C] property at all times as reasonably requested by the Agent.
3.That upon the settlement of the sale of the [Suburb C] property pursuant to the preceding Orders, the parties shall do all things necessary to cause the proceeds from the sale of the [Suburb C] property to be distributed in the following manner and priority:
a.To pay all costs, commissions and expenses of the sale, including but not limited to the costs of the Agent and the Conveyancer;
b.To pay the usual rates adjustments and all outstanding rates and land tax;
c.To pay the amount required to discharge the mortgage dealing number […] secured against the [Suburb C] property;
d.To reimburse either party for any agreed repair or improvement costs they incurred in preparing the [Suburb C] property for sale;
e.To quarantine such amount as may be required to pay any potential amount by way of Capital Gains Tax liability. In this regard, each party will provide to the other within 14 days of being requested to do so any documents that may be needed by the other party for the purposes of preparing their taxation returns and for the purposes of calculating the potential capital gains tax liability;
f.To pay the balance then remaining as follows:
i.95% to the Respondent or as he directs;
ii.5% to the Applicant or as she directs.
4.That except as otherwise specified in these Orders and except for the purposes of enforcing payment of monies due under these Orders:
a.Each party be solely entitled to the exclusion of the other to all property (including choses in action) and personal possessions or items of furniture, personalty and/or chattels in the possession of such party at the date of these Orders;
b.Money standing to the credit of the parties in any bank account shall remain the property of the party in whose name such bank account is held;
c.Each party forego any other claims he or she may have to any superannuation interests or benefits belonging to or owned by the other;
d.Insurance policies remain the sole property of the beneficiary named therein; and
e.Each party be solely liable for and indemnify the other against any liability currently standing in their sole names or liability encumbering any item of property to which the party is entitled pursuant to these Orders.
5.The Applicant pay the Respondent’s costs of an incidental to this application.
6.Such further or other orders as the Court considers appropriate.

As outlined further below, a document was handed up in Court on the morning of the Final Hearing by the Respondent’s Counsel entitled ‘Minute of Order Sought by Respondent on Final Hearing.’ The Orders contained therein were as follows (emphasis in original):
1.Pursuant to section 90SM of the Family Law Act 1975 (Cth), the Court orders that:
Termination of exclusive agency agreement
a.The Applicant [Ms Lambeth] (‘the Applicant’) and the Respondent [Mr Quaid] (‘the Respondent’) (collectively ‘the parties’) do all things and sign all documents necessary to terminate the exclusive agency agreement with [D Company Suburb C/ Suburb E] dated [mid]-2023, and for these purposes:
i.The Respondent shall prepare a draft joint letter to [D Company Suburb C/ Suburb E] terminating the exclusive agency agreement and shall provide same to the Applicant within 48 hours of the date of these orders;
ii.The Applicant shall make any changes to the draft letter and shall return the draft joint letter to the Respondent in such a form where those changes are evidence within two (2) days of receipt of the draft letter; and
iii.The Respondent shall forward the settled draft joint letter to [D Company Suburb C/ Suburb E] within 24 hours of receipt, copying the Applicant or the Applicant’s legal representatives into that correspondence.
Selection of settling agent
b.Within 7 days of the date of these orders, the Respondent shall provide to the Applicant a list of three real estate agents for the purpose of selling the property situate at and known as [B Street, Suburb C] in [City G] more particularly described in Certificate of Title Volume […] Folio […], Division of [Suburb C] (‘the [Suburb C] property’), and with each proposed real estate agent shall be included the name of the agent so proposed (if any) and the agent or agency’s contact information.
c.Within 7 days of receipt of the list of proposed real estate agents, the Respondent shall select one agent and communicate that selection to the Respondent in writing, and as and from the Respondent’s selection, that real estate agent shall be the Nominated Real Estate Agent for the purposes of these orders.
Sale of the [Suburb C] property
d.Both parties do all things necessary to sell the [Suburb C] property on such terms and conditions as agreed between them in writing and failing agreement as follows:
i.The parties place the [Suburb C] property for sale with the Nominated Real Estate Agent;
ii.The parties engage [F] Conveyancing to be the conveyancing solicitor for the sale of the [Suburb C] property (‘the conveyancing solicitor’);
iii.The terms and conditions of the sale of the [Suburb C] property shall be as agreed between the parties in writing within 14 days from the date of these orders unless otherwise agreed in writing, and failing agreement, as recommended by the Agent to both parties in writing;
iv.The parties shall promptly sign all documents necessary to facilitate the sale of the [Suburb C] property including but not limited to:
1.The agency agreement
2.A contract for sale
3.A transfer of land
4.A discharge of mortgage
v.The list price for the [Suburb C] property shall be such amount as is agreed between the parties in writing and failing agreement as recommended by the Nominated Real Estate Agent to the parties in writing;
vi.The sale price for the [Suburb C] property to be such amount as is agreed between the parties in writing and failing agreement, the parties shall accept any offer to purchase the [Suburb C] property that is lo less than 95% of the list price determined under order 1(d)(v);
vii.The parties shall cooperate with the Nominated Real Estate Agent in relation to the marketing of the [Suburb C] property for sale, including making the keys readily available and allowing inspection of the [Suburb C] property at all times reasonably requested by the Nominated Real Estate Agent;
viii.The mode of sale – auction or private treaty – shall be as the parties agree in writing, and failing agreement between the parties, shall be as recommended by the Nominated Real Estate Agent in writing to both parties.
e.Upon settlement of the sale of the [Suburb C] property, the parties shall do all things necessary to cause the proceeds from the sale of the [Suburb C] property to be distributed in the following manner and priority:
i.To pay all costs, commissions and expenses of the sale, including but not limited to the costs of the Nominate Real Estate Agent and the conveyancing solicitor;
ii.To pay usual rates adjustments and all outstanding rates and land tax;
iii.To pay the amount required to discharge the mortgage to [H Bank] with dealing number […] secured against the [Suburb C] property;
iv.To quarantine such amount as may be required to pay any potential Capital Gains Tax liability, and in this regard each party will provide to the other within 14 days of being requested to do so any documents that may be needed by the other party for the purposes of preparing their taxation returns and for the purposes of calculating the potential capital gains tax liability;
v.To pay the balance then remaining as follows:
1.95% to the Respondent or as he directs.
2.5% to the Applicant or as she directs.
Other property
f.Except as otherwise specified in this order:
i.Each party be solely entitled to the exclusion of the other to all property (including choses in action) and personal possessions or items of furniture, personalty and/or chattels in the possession of such party at the date of these orders;
ii.Money standing to the credit of the parties in any bank account shall remain the property of the party in whose name such bank account is held;
iii.Each party forego any other claims he or she may have to any superannuation interests or benefits belonging to or owned by the other;
iv.Insurance policies remain the sole property of the beneficiary named therein; and
v.Each party be solely liable for and indemnify the other against any liability currently standing in their sole names or liability encumbering any item of property to which the party is entitled pursuant to these orders.
Enforcement
2.In the event that either party refuses or neglects to execute any deed or instruction, a Registrar of the Federal Circuit and Family Court of Australia be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed or instrument in the name of such party and do all acts and things necessary to give validity to the operation of the deed or instrument to effect compliance with the orders herein.
THE COURT NOTES THAT:
A. Pursuant to section 90ST of the Family Law Act 1975 (Cth), these orders are intended to end the financial relations between the parties.
Preliminary matters canvassed at the Hearing
At the commencement of the Hearing, the Wife was granted leave to file an Affidavit in reply in Court.
As already noted, in relation to the agent that the parties sought to continue the sales process of the property, the Husband’s Counsel confirmed that he did not agree on D Company, despite it being included in his Amended Response document. It was indicated by his Counsel that a Minute would be handed up on this issue. The Husband’s Counsel, accepting it was from the Bar Table, said there had been a conversation which occurred on the day of the auction, which involved a misrepresentation of the factual circumstances. This had distressed the Husband and hence caused him concern that D Company was not impartial.
Due to an incident which occurred at the auction, D Company had also given evidence in Court for an FVO to be taken out in favour of the Wife. It was confirmed that the FVO matter would be returning on a final basis to the Court later in the year. There is currently an interim Order in place.
It was also confirmed by both parties that the Suburb C property was the only property in question. In relation to its value, the Wife agrees with the formal valuation that she obtained, whereas the Husband had reduced the value to 1.3 million (round figure).[1]
[1] T 1 – 7
At this point a “view” was given by the Court about the matter more generally.
Briefly, it was outlined that this matter falls into the category of cases known as ‘short marriage cases’, which generally turn upon the initial contributions, with some matters also turning on contributions during the relationship. It was suggested that an ‘asset by asset’ assessment was not necessary here. It was indicated by the Court that usually, the range in these cases tends to be between 5 and 10 per cent. Regarding “evidence”, it was suggested that any supporting witness was unlikely to assist the Court in its assessment. Although some of the material appeared to cover matters of family violence, it did not appear that any party was raising any kind of “Kennon argument”.[2]
[2] T 7 – 8
At this point the parties adjourned to have some discussions; ultimately they returned seeking to proceed with the trial.
The Husband’s Counsel advised that the Husband would not read any of his evidence, and further that he was unavailable for cross-examination. The only evidence read by him was the Affidavit of his litigation guardian and the peripheral witnesses. In light of this, it was asked whether this matter was effectively a ‘no contest case.’
The Wife’s Counsel indicated that the main contest was over the contributions brought in by the Wife, which appears to have been $41,000, although this reads as $47,000 in some parts of the evidence. It was advised that the parties did not know the value of the house at the commencement of cohabitation, although they did know that at the time of property settlement, it was valued at $850,000, minus the various debts. Counsel contended that on this basis, the Wife’s contribution was about 22% of what the parties’ thought was in equity. In her view, it was submitted that the case was effectively running undefended. Further, it was submitted that the matter was also effectively a mathematical exercise, as the Wife brought in a 22% contribution at the commencement of the relationship, and contributions occurred by both parties during and after via contributions to the mortgage.
Further, the Wife’s Counsel noted that she would only require the litigation guardian for cross-examination and not the Husband’s supporting witnesses.
At this point, the Court indicated some concern about the lack of attendance or presence by the Husband and the possibility that this might cause, among other things, procedural fairness issues. It was suggested that he be invited to attend via telephone. The Husband’s Counsel advised that she would contact him when it was required and when it best suited the Court.
It was submitted by the Husband’s Counsel that the matter was not running undefended, as the Husband would participate via his litigation guardian. She was ultimately appointed by consent due to the Husband’s mental health issues, outlined in a medical certificate annexed to the litigation guardian’s Affidavit.
It was indicated to the parties that, in the unusual circumstances of the case, the cross-examination of the Wife needed to be significantly confined. A document of objections was handed up by the Husband’s Counsel.[3] As an observation: there was some irony (if not more) in this course, namely, to make formal evidentiary objections about the evidence of the only person who was to be subject to cross examination and that those objections came from the party who would not be cross examined at all.
[3] T 8 – 18
Oral evidence of the Wife
The Wife confirmed that she had provided an Affidavit of 4^th March 2024 and an Affidavit in Reply on the date of the trial (2^nd April 2024).
She was shown a document, which she described as a spreadsheet of a list of things that the parties needed to complete for renovations at the Suburb C property. She said it was ‘not exclusive of everything that was required to be done.’ The Wife may have, in fact, meant that it was not “inclusive” of everything that need to be done. She said she had created the document in 2018 or early 2019. She said that this document differed from the one annexed to her Affidavit of 4^th March 2024, and indicated that the “crosses” next to items meant that she had completed them herself, and the ‘lines’ meant that she had “helped” to do them. At this point an objection was raised as to the provenance of the document, being that it did not appear in the Affidavit. In response, it was submitted that paragraph 71 of the Affidavit provided the relevant background and details concerning the provenance of it. Ultimately, the document was accepted.[4]
[4] T 18
A further two documents were shown to the Wife by her Counsel. The Wife identified the first as an Award Saver Account Bank Statement from the end of 2017 until mid-2018. The second document was a superannuation statement dated 30^th June 2018, with the value of $171,554 at the time. The documents were tendered for the purposes of the contributions at the initial cohabitation period.[5]
[5] T 18 – 21
Cross-examination commenced with questions related to the Wife’s savings at the start of the relationship. The Wife said that she had about $47,000 in one of her bank accounts ending in #...09. She confirmed that all of her funds were held in that account. She said that the majority of those funds went towards the relationship. She explained that this included groceries, living expenses, going to places together, dinners and the like. She was unsure how she would be able to distinguish between using the funds in her then Commonwealth Bank account, or her weekly, fortnightly or monthly income. She said her wage did not go into the Commonwealth Bank account, and instead, it went into an “Everyday Access” account. She said she thought she was drawing from both accounts to make purchases for the property. She was unable to say what the balance of the “Everyday Access” account was, because it was ‘very high use.’[6]
[6] T 21 – 23
The Wife said that she paid her rent from the $47,000 for the Suburb K property. She said that ‘towards the end’, she switched the accounts and started taking funds from her Complete Access account. A document was shown to the Wife. This document was tendered and marked as Exhibit L4, ‘Collection of CBA Bank Statements Account Ending #...09.’ The Wife was shown eleven entries between late 2017 and late 2018 outlining rent payments in the sum of $1651.19 from this account. An additional entry appears for mid-2018, not highlighted to the Wife in cross-examination. The Wife was then shown a further eleven entries that totalled $1694.64 in rental payments between late 2018 and late 2019. Three further rental payment entries in the sum of $1781.50 were shown to the Wife between early 2020 and mid-2020. Although the total was not put to the witness, this equates to $43,799.82. The Wife said that a significant amount of the $47,000 was used for her rental payments at the Suburb K property.[7]
[7] T 23 – 27
The Wife acknowledged that there was some ‘fluidity’ in her living arrangements, in that she would live in both the Suburb K and Suburb C properties with the Husband. The arrangement was outlined at pars.8 and 68 of her primary Affidavit. Paragraph 8 was as follows; [8]
In the beginning of our relationship and until around July 2018, I usually slept at the [Suburb K] property and [Mr Quaid] slept at the [Suburb C] property. From July 2018 to [late] 2018, [Suburb C] and I either primarily stayed at the [Suburb C] property or at the [Suburb K] property. From [late] 2018 to [early] 2019, we initially stayed in the [Suburb K] property as my father lived in the [Suburb K] property, however not far into this period we ended up back at [Suburb K] most of the time as it was exhausting going back and forth between the houses continuing renovations. From [early] 2019, we either stayed in the [Suburb K] property or the [Suburb K] property, depending on which part of the house we were renovating. For example, we stayed in [Suburb K] when the kitchen was being done in [Suburb C], but from [mid]-2020 to November 2020 when we separated, we lived in the [Suburb K] property.
[8] T 25
The Wife was taken to an entry within the same document in the sum of $9,371, which she explained was a payment for fertility treatment. She said that she had initially had consultations for this treatment independently of, and prior to, meeting the Husband. She said that he had wanted to continue with that treatment and freeze embryos. The Wife explained, however, that she had chosen to freeze eggs (rather than embryos) because it was still early in their relationship.[9]
[9] T 27
Questions moved to the renovations undertaken at the Suburb C property. The Wife confirmed that the Husband had already commenced renovating the property when their relationship began. She said he had been employed as a tradesperson. In her view, the renovations were undertaken by them both together with assistance from others along the way. She said that she had messaged some of her friends about the renovations. One of these friends included Ms L, who filed an Affidavit with three messages about the renovations annexed.[10] None of the Wife’s other cast of friends were on Affidavit.
[10] T 28
The Wife confirmed that pars.73 and 74 of her Affidavit outline what she says were the contributions that she made to the relationship, which included the management of the tenants living in the Suburb C property from mid-2020 until mid-2022. She said that this included writing out receipts when they paid rent, chasing tenants for late payments, and that she was the main contact person for any rent-related activities. She said that rent was paid into her account ending in #...09. It was suggested to the Wife that there were only two occasions where rent was paid late. The Wife said she would have to look back, but that the main conversations with the tenants was about the end-of-lease procedures including notification to vacate.[11]
[11] T 28 – 30
The Wife said that her payment of the shortfall between the rent received and the mortgage payments between mid-2020 and early 2022 was another contribution made by her. She confirmed that she received the rent into her #...09 account and paid the mortgage out of that same account. During this period, the rent was $820 per week. She said that the shortfall during this period was about $26 per fortnight. It was suggested to her that this equated to approximately $1000 over the period in question.[12]
[12] T 30 – 31
To the best of her knowledge, the Wife said that the property was insured. She said that when she ceased managing the rental property, she was informed that the Husband commenced residing in it. She said she had obtained the most recent rates and land tax statements, which she said were in her most recently filed Affidavit. The Wife then acknowledged that these documents were not annexed. A call for the documents was made.[13]
[13] T 31 – 32
Questions moved to the involvement of D Company in the sale of the property. The Wife said that she had been aware of the Husband’s view against D Company for a few months. She said the reason for her staying with D Company was the consequences of exiting at this late stage the agency agreement in the sale process, including additional payments. She said this sum was somewhere between two and three thousand dollars for marketing, as well as any additional complications if an interested buyer had engaged with D Company for the property and then purchased the property through another real estate, rendering them liable for commission for both agents.[14]
[14] T 32 – 34

The Wife confirmed that an FVO was obtained with her listed as the protected person as a result of events which occurred at the auction. She said that when she applied for the FVO, comments made by the real estate agent about what was witnessed were used in support of the Application. She said that she had been standing away from the Husband during the auction, so was unable to hear what he had discussed with the agent, nor could she hear what the agent had said.[15]
[15] T 34
Brief re-examination of the Wife commenced in relation to a bundle of documents outlining rental expenses. She was taken to page 23 of the document, outlining an entry in late 2019. She confirmed that the closing balance of the account after the rental payment was withdrawn was $28.66 in credit. She said this was the case because “all of the money was gone.”[16]
[16] T 34 – 36
She was asked some questions in relation to her income payments, and whether this went into her Award Saver account. She was taken to paragraph 46 of her Affidavit of 4^th March 2024. The Wife said that income went into a separate account, although it was not very high at this point. She said that there were transactions in her Award Saver account to transfer money into her Everyday Access account, and that ultimately both were used ‘freely for overall expenses of everything.’[17]
[17] T 36
To provide a ‘ballpark’ figure on how often she and the Husband were living at Suburb K or Suburb C, the Wife said that it would have been about half/half.[18]
[18] T 37
In relation to her fertility treatment, she confirmed that this was for the operation to have her eggs extracted and stored. She said that the Husband had attended this appointment.[19]
[19] T 37
In relation to the differences between the mortgage payments and rental receipts, she said that having those fees come in and out of her account meant that she would be responsible for any dishonour fees if the payments were late.[20]
[20] T 38
Finally, the Wife said that, in relation to non-financial circumstances at the time, there had been a lot going on between the parties, including an FVO in place initiated by the police excluding any contact. She said it was difficult to manage the lease without free communication between herself and the Husband, and ultimately, the management had fallen solely to her. She said that the tenants rented the property out in mid-2020 until mid-2022, and the FVO was in place from late 2020.[21]
[21] T 39
The Wife’s evidence was generally reasonably clear. But like the Husband, but for rather different reasons, she did not have many cards to play with, so to speak. This is no criticism. She did the best she could with the limited evidence she had and having regard to the shortness of the relationship in any event. It is no criticism to note, among other things that her contention about her IVF treatment as a factor for the Court to consider in these property proceedings, and which she started before the relationship commenced, showed plainly the difficulties and the sort of “stretch” which both parties undertook to make the best case they could in the confined circumstances of the relationship. Likewise, to make a determination about how many nights the couple spent at one property or the other (Suburb K or Suburb C) almost got down to a mathematical exercise, which the Court cannot, and is enjoined not to, undertake. The same impossible assessment of other “contributions” was sought in relation to things like the management of the rent from tenants, and the renovations at the Suburb C property. Both parties did their best in the unusual, apparently somewhat fluid, circumstances of their new relationship, which, unfortunately, proved to be rather short-lived.
Oral evidence of the Husband’s Litigation Guardian
Ms M confirmed that she was the Husband’s litigation guardian, appointed in early 2024. She was not engaged in employment at the time, however, was qualified as a professional overseas. She relied on her Affidavit sworn on 26^th March 2024, in which she confirmed that she had known the Respondent Husband for approximately 2 years.
Cross-examination commenced on the Financial Statement sworn by Ms M, reflecting the Husband’s financial circumstances. The Husband received Jobseeker payments as his only source of income. In relation to the reference to sales, Ms M said that the sum reflected a weekly estimate over the course of the year. She confirmed that this was an ongoing source of income for the Husband.[22]
[22] T 42
She was then taken to Part F, entitled ‘expenses paid by others for your benefit.’ She had listed that the Husband’s parents provide him with room and board in the sum of $460 per week. Ms M clarified that they provide him with room and board and that their estimate of the value of that room was $460 per week. She did not know how they came to this figure. She had also listed that his parents pay for medical health fees in the sum of $350 a week. She clarified that this included doctors’ visits and prescriptions. She did not have a breakdown of these costs, and confirmed that it, too, was an estimate. Further, she said that the vehicle maintenance and registration of $100 per week paid to him by his parents was solely for his two personal vehicles and did not include all of the other vehicles that the Husband maintains. She said he would not register the vehicles that he was intending to sell.[23]
[23] T 42
Ms M confirmed that the references to property and car insurance included the Suburb C property and the cars owned by the Husband. In relation to superannuation, she was unsure whether he was paying superannuation from his Jobseeker income. Ms M was unfamiliar with how Centrelink and Jobseeker work. She confirmed that it would be fair to say that the only superannuation the Husband was paying was superannuation removed from his regular income. If he received such income, the figure would be $141.31.[24]
[24] T 42 – 44
Ms M said that rates and levies were outlined in the sum of $482.79 and $73.46 per week. She said that she had calculated these figures by taking the rates and levies figures and dividing them over the course of 52 weeks. She advised that they did not indicate what had actually been paid by the Husband and was instead a “reflection” of how much it would cost were he to make those payments. The figure for the home loan listed as $1,375 per week was also not reflective of what the Husband was currently or actually paying. In relation to the mortgage, Ms M confirmed that it was outlined in the Financial Statement that the Husband was to be ‘paying [the Wife’s] half of the mortgage, insurance, tax and utilities’ yet none of those payments were actually being made. It was clarified that this was due to the freeze on the mortgage.
In relation to the Husband’s legal fees set out at $6,000, Ms M advised that these fees were not actually paid. In total, the weekly expenditure laid out was $18,325.30. Ms M said that this figure included the $14,987 owing by the Husband in child support. She confirmed he was paying child support, but not $14,987 per week – as set out in her Affidavit! It was suggested that what he was actually paying per week was home insurance of $57.98, car insurance of $37, bank payments of $150.50 and child support of $18.90.[25]
[25] T 44 – 45
Ms M was asked why the house was valued in the Financial Statement at $1.3 million rather than $1.355 million as per the valuation obtained by the Mother. Ms M said she had never seen a valuation for $1.355 million. It was suggested to her that the valuation of this figure was annexed to her Affidavit. Confusingly, she said that the value of the house would likely have increased since the Wife’s valuation, and hence, the value of the house would likely be higher than both figures. She was asked why the value in the Financial Statement was so low. She said that during negotiations, the parties were “almost in agreement” as to the value of $1.3 million, and there had been no valuation undertaken since. She said this was the number that they arrived at after the auction failed. She accepted that, just as the Wife obtained a valuation of the property, the Husband also could have done so, yet he did not. She then advised that when the Husband signed on with D Company in mid-2023, D Company had outlined that the value was $1.45 million. She said the house was not going to sell for that price, so they had commenced negotiations on $1.3 million.[26]
[26] T 45 – 49
Ms M said that the Husband’s parents covered the mortgage payments, and he paid them back when he received his redundancy payment. She said that they had not kept track of how much they lent him. She advised that the payment to his parents would be within the bank statements, however, she was unsure when this was. Ms M said that the Husband had received a $10,000 payment from the Government to assist with his mortgage. The payment was interest free and would be repaid upon sale or after six months. One of the conditions for receiving the funds was to live in the property, which she confirmed the Respondent had done. As with a number of other matters, actual details here were quite sketchy, and often a sizeable distance from the truth of what was actually paid or claimed.
When asked how his parents provided him room and board in such circumstances, Ms M explained that he spends the night with his terminally ill Father and the day at the property.[27]
[27] T 49 – 51
Annexed to Ms M’s Affidavit was the “financial agreement” of 2020 between the Husband and his former Wife, Ms N. She said that at the time of the agreement, the house at Suburb C was valued at $850,000. The Husband was to pay Ms N $162,500. She said she had not considered the Wife’s contributions when calculating the available equity in the property. It was suggested to her that in 2020, the Husband had a credit card debt of $15,925.74. Few details were provided regarding this alarmingly high debt. She said that she was aware that the Wife had put in a settlement statement from when the parties obtained the funding to pay out Ms N, which included a payment to each of the parties for their credit card debts. The Wife’s credit card debt had been $5,500, and by the time of paying this out, the Husband’s was $16,257. It was confirmed that, by way of their joint mortgage, the Wife effectively took on his debt, as well as the payment of $162,500 to his former spouse.[28] In my view, this was a not insignificant issue.
[28] T 51 – 52
It was confirmed that the Husband’s credit card debt had now returned to $15,925.[29] How this had occurred, nor any other details, were not explained.
[29] T 52
In relation to the land tax and rates arrears, Ms M said that she had annexed various statements. One of these was a statement dated November 2023. She said that she had also successfully assisted the Husband to apply for a review of the land tax liability. Accordingly, there had been some communications between herself and the Land Tax Office. She had not included the updated figures for the new reassessed lower land tax. She said that the information in the current, updated land tax statements was more accurate than what was in her Affidavit. It was suggested to her that in the email correspondence between herself and the Land Tax Office, the new rates had been outlined as $331.26 and land tax liability at $19,126.60. The email read that there was an outstanding balance of $19,126.60 and $3,331. She said it was an oversight on her part not to include these figures.[30]
[30] T 52 – 54
Questions moved to the renovations undertaken at the Suburb C property. Ms M said that she had annexed receipts and bank statements reflecting hardware and landscaping purchases. It was highlighted that various items included in the statements were somewhat surprising, for example in relation to women’s footwear and electronics. How these were related to the current proceeding (and the renovations) were unable to be explained. She said that some of the items, including a trip to the tip, were included due to the tenants leaving the house in ‘massive disrepair’; and likewise regarding various purchases that had been made to get the house ready for the sale. It was suggested that it was difficult for the Court to do anything about receipts without any explanation. Similarly, the photographs attached were without context or explanation.[31]
[31] T 54 – 58
In relation to the $10,000 provided by the Husband’s father, Ms M said that she was not present when this occurred, nor did she know the date that this occurred. She had annexed a document at page 190 of her Affidavit, undated. She was not present when the document was signed, nor did it have the Wife’s signature, nor was it witnessed.[32]
[32] T 58
Questions briefly moved to the rates notices, and an attached Water and Sewerage Account statement dated late 2023 showing an outstanding balance of $2,852. The last bill was $568.60, paid by $570 with a $1.40 credit. Ms M was asked why there was a 500 per cent increase in the bill since the previous bill. Ms M stated that this was due to some obstructions to the meter while the property was tenanted. She was unsure whether the tenants were paying for water usage costs. She said that this sum was still outstanding. She was unsure whether during this period, the Husband was living in the property and renting out the outbuilding, or whether the whole property was tenanted.[33]
[33] T 58 – 59
Ms M was taken to paragraph 45 of her Affidavit, where she had outlined that the Husband lived in the property by himself from mid to late 2022, and thereafter until early 2023, he had remained in the main house while renting out the outbuilding. She had deposed that the Husband was receiving $1,600 per fortnight in rent for the outbuilding only. She said that the rent received for the whole house was $1,250 per fortnight. Ms M suggested this was just the rental market at the time. She said the tenant was a tradesperson, and his ‘crew’ would often stay at the house.[34]
[34] T 60
Ms M advised that the Husband had declared the rental circumstances on his tax return and received a loss, which reduced the amount of tax payable on his income. She said that at the time, he was receiving cash for his rent, which was deposited into the bank account. She said that she was unable to identify whether he was receiving additional rent in cash and not depositing those funds.[35]
[35] T 60 – 61
Questions moved to a fee for tree clearing and vegetation administrative fees in the sum of $968.70. She said that it was still outstanding. It was suggested to Ms M that this was in early 2023. Ms M was unable to say whether or not the Husband was still living in the property at this time.[36]
[36] T 61 – 62
Finally, on the subject of the mortgage figures, Ms M said that the freeze on them was put in place in November 2023. The amount owing at that time was $688,347, and as of the date of the hearing, the amount was a little over $704,000. Ms M was unsure why the Husband was unable to meet mortgage payments on the property while in receipt of rental income. Ms M said she was unsure of there being any dishonour fees, despite attaching multiple documents to her Affidavit outlining dishonour fees because the mortgage was not being paid. It was suggested to her that this would have been why Ms M applied for the mortgage freeze. Ms M said that the rent was not being received for the last month, which was why he had missed his mortgage payments.[37]
[37] T 63
Re-examination briefly canvassed the mortgage relief payment that Ms M had said that the Husband was in receipt of. She clarified that he had not received this payment because the Wife had not filled out her portion of the application.[38]
[38] T 63
It is no criticism, and certainly not an undue one, that the litigation guardian could, at best, only provide such information as she had, which often was not very much. She did the best she could with what she had – which, respectfully, was not very much. She accepted and conceded, when she could, that a range of figures upon which the Husband relied were, at their highest, guesses or “best estimates”. As such, they were and are, rather unreliable pieces of evidence in a generally haphazard puzzle of matters upon which the Husband was asking the Court to rely.
Written submissions on behalf of the Applicant
The Wife’s written submissions, filed 9^th April 2024, were as follows (emphasis in original; footnotes omitted):
1.These submissions are provided in accordance with Order 1 of the Orders of Judge Neville made on 2 April 2024. The extra length is accounted for by the Case Comparison.
2.The Applicant’s case should be accepted in its entirety. The Respondent offered no evidence of significance that could detract from what the Applicant says about contributions and future needs. The Respondent’s financial statement cannot assist the Court and while very well-meaning, the Litigation Guardian’s evidence was unhelpful as to genuine issues in dispute.
3.It is acknowledged that “where there has been a short marriage and all other things are equal it may be said that the initial financial contributions of the parties carry great weight”. Analysis of comparative cases shows that the range of 8-12% applies to cases where initial contributions are less than 5%. It would be a rare case where a party’s initial financial contribution was reduced simply due to the length of the relationship. It is axiomatic that justice and equity considerations may more easily be satisfied by a small percentage distribution from a large pool than by a similar percentage of a much smaller pool.
Case Comparison
4.Russo and Dorsey and Anor [2014] FamCA 467: 3-year relationship, $4.75m pool, with a finding that the Wife contributed 1.9% of the parties assets, as well as homemaker contribution (no children). Wife received 8%.
5.Anson & Meek [2017] FamCAFC 257: Five-year relationship, $2.47m pool. Wife held 3.5% of assets at commencement. At trial, first instance judge gave Wife 40%. On appeal, review of comparable short marriage no children cases, all where financially weaker party had initial contribution of 1% - 3.5% and received 8% – 12.5% of the property. One exception in the list was Hsieh & Chow where husband made no initial financial contribution but made approximately 35% of contributions during 5.5-year relationship and received 40%.
6.Maguire & Richter [2009] FMCAfam 85: Wife brought approximately 21% of non-super assets to a short relationship with no children. At hearing, she held approximately 30% of non-super assets. No adjustment from parties’ held assets.
7.Grunseth & Whighton [2022] FedCFamC1A 132: de facto relationship of just under 3 years, but long period of post separation prior to trial. $2.43m asset pool. No children. Finding that Wife contributed 52.5% of assets and made greater homemaker contribution but result at hearing reduced division of assets to the Wife of 47.5% of pool. On appeal, increased to 55% to Wife.
8.H & T [2002] FMCAFam 209: four-year relationship, one young child, husband brought the only real asset to the relationship and Wife made homemaker and parent contribution assessed at 20%. Adjustment of further 25% to the Wife due to small asset pool, income disparity and the ongoing care of children.
9.Bauer and Bauer [2013] FCCA 1125: Wife made about 11% initial financial contribution assessed as 20% overall contribution at time of trial. One child. Small pool – Wife received 40% overall.
10.Perras & Perras [2021] FamCAFC 109: 3.9-year relationship with two children. Overwhelming financial contributions by the husband, when taken with Wife’s homemaker and parent contributions assessed at 55/45 husband’s favour. Overall, after s75(2) and justice and equity considerations, 60/40 division in Wife’s favour.
Contributions
11.At the commencement of the relationship in 2018, the Applicant had savings of approximately $44,000, her car and $171,000 interest in superannuation. At cohabitation in June 2018, her savings were approximately $41,000.
12.Despite cross-examination on this point, there is no evidence that the Applicant applied her savings other than for the benefit of the parties’ relationship. She was earning $38,000 a year at that time while the Respondent was earning $98,000. She paid rent on her [Suburb K] rental property that benefitted both parties, as they were residing between the two properties approximately half the time. She paid for groceries for their joint benefit as well as social events and vacations.
13.The large expense of fertility treatment should be characterised as a joint expense, given the unchallenged evidence that, while the plan was made prior to the relationship, the procedure was undertaken at a time that the parties were planning to jointly benefit.
14.At the time of cohabitation, the respondent held the [Suburb C] property with his former partner. The Court does not have the assistance of evidence in support of a value for the property at the time of cohabitation in mid 2018, however there is some evidence of the value of the property [in mid]-2016 when the Respondent and [Ms N] paid out their friend. Better evidence of the value of the property in [early] 2020 is provided through the property settlement between the Respondent and [Ms N]. The [Suburb C] property was then valued at $850,000 with a mortgage of $542,578 and a property settlement liability quantified at $162,500, leaving maximum equity of $144,922.
15.The Respondent also held (at the commencement of cohabitation and at the time of settlement with [Ms N]) a substantial credit card debt, some vehicles and $94,000 in superannuation.
16.If the Respondent can be considered to have held at commencement the same interests he held at [early] 2020, then the Applicant held 47% of the net assets inclusive of superannuation at that time. For the Applicant to hold 47% of the total net pool inclusive of superannuation now, she would require a payment of approximately $225,300.
17.Excluding superannuation interests, the Applicant held over 22% of the net assets at the commencement of the relationship. For the Applicant to hold 22% of the net non-super pool, she would require a payment of approximately $135,800.
18.The Applicant made some important contributions that have not been successfully challenged:
a.By joining with the Respondent in a mortgage over the [Suburb C] property, that property did not need to be sold. The parties have benefitted from a $505,000 increase in property value between [early] 2020 and [late] 2022. That increase is responsible for almost all of the equity available for distribution between the parties.
b.The applicant assisted in the renovations that account for some of the increase in value that is not otherwise provided for by market forces. There is no evidence offered to the court to determine a specific value for the renovation work of either party or any of their supporters.
c.The Applicant, in accepting liability through the joint mortgage for the additional borrowings of $173,254 - made up of payment to [Ms N] plus the Respondent’s credit card debt, less the Applicant’s credit card debt - contributed to liabilities that were of no benefit to her. The additional $173,254 liability represents 24% of the $720,000 that the parties borrowed to refinance the [Suburb C] property.
d.The Applicant’s father lived in the property to undertake renovations for five months. It is noted that this significant contribution is reflected in the contemporaneous messages between the Applicant and her friend [Ms L] and is unchallenged.
19.The Court cannot but find that the Applicant made the majority of the homemaker contributions as hers is the only evidence on this point.
20.There has been a very long period post separation. The Applicant managed the rental of the [Suburb C] property and paid the mortgage, as well as paying her rent.
21.There is no evidence of the Respondent’s cost of living post separation prior to [mid]-2022 when he began living in [Suburb C]. The Applicant was paying rental while the Respondent had the benefit of living in [Suburb C], and for a period with the assistance of rental income.
22.While meeting the shortfall in mortgage between [mid]-2020 and [mid]-2022 was modest, the Applicant gave evidence of a more significant non-financial burden. She was protected by an FVO from separation until the Respondent began living in [Suburb C] in [mid]-2022, some eighteen months later. The Respondent was found guilty of two breaches of the FVO, although the Applicant’s unchallenged evidence was of more numerous breaches.
23.In accordance with such cases as Britt and Britt (2017); Giunta & Giunta (No 3) [2021] and Martell & Martell [2023] the Court should find that the Applicant’s contribution in the post-separation period was made more arduous by the Respondent’s actions.
24.Neither party seeks a superannuation splitting order. The Applicant’s overall contribution is assessed at 27.5% of the estimated proceeds of sale of the [Suburb C] property.
Future needs s90F(3) and Justice and Equity
25.The Respondent asserted through the litigation guardian that he was unable to perform ‘high risk’ [employment]. The Respondent provided no evidence as to any lack of capacity to work, other than a medical certificate to indicate a temporary incapacity for three months.
26.His litigation guardian indicated that the respondent was qualified to undertake [employment] shown at pages 410-413 of her Affidavit, which was not high risk and so could not be considered inconsistent with any asserted incapacity to perform ‘high risk’ [employment].
27.Whether the respondent is currently working or not, the court must consider the parties’ relative capacities to work. The respondent had taxable income of over $98,000 in 2019 and $86,000 in 2020. There is a gap in evidence about the Respondent’s income until 2023, when his taxable income was reported as $69,437.
28.Compared with the Wife’s income, the respondent has a far greater capacity. He will also receive the lion’s share of the property division. Overall, this consideration favours the Applicant.
29.For the justice and equity considerations in this short relationship, the court will look at the monetary figure more than a percentage. The Applicant seeks a defined figure of$170,000 from the proceeds of sale of the property, estimated to be around $618,000.
Other Comments
30.The Court can only apply the value for [Suburb C] that is provided in the valuation of $1,355,000. The parties have agreed mortgage and rates/land tax values. Only debts to Water and Energy [providers] are relevant to the Court’s determination.
31.The Applicant’s orders include that the agent for sale of the property be [D Company]. That specification is necessary to avoid the potential waste relating to the payment of two agency commissions on sale. However, if the Applicant is ordered to receive a fixed sum, that issue is clearly of less significance to her.
Written submissions on behalf of the Respondent

The Husband’s written submissions were received on 9^th April 2024. They were as follows (emphasis in original; footnotes omitted):
Introduction
1.These are de facto property proceedings for a very short relationship.
2.The Respondent did not give evidence in this matter as he was assisted by a litigation guardian appointed with the consent of the Applicant (without that matter proceeding to a judicial determination). The Respondent’s difficulties in conducting these proceedings stem from his ill mental health.
3.As noted by the Court at various points during the hearing, this case comes down to what adjustment is just and equitable to be made to the Applicant from the net proceeds of sale of the [Suburb C] property.
The law
4.The relevant case law for short relationships was adverted to by the Court at various times during the hearing.
5.The Court will have regard to the initial contributions of the parties. While the Court will not undertake a dollar-for-dollar accounting exercise, the shortness of the relationship does mean that precision as to contributions will be required.
The Respondent’s application
6.The Respondent seeks that the Court:
a.Make orders to change the real estate agent responsible for the sale of the [Suburb C] property; and
b.From the net proceeds of the [Suburb C] property sale, that a figure equivalent to 5% of the net proceeds be paid to the Applicant and the balance to the Respondent.
Initial contributions
7.The crux of the Applicant’s case, that she made an initial contribution, appears to hinge on her initial contribution of $47,000 cash. Further submissions are made about how those funds were utilised.
8.The Respondent brought in his interest in the real property at [B Street, Suburb C] (‘the [Suburb C] Property’). That asset is a dominant contribution in this matter.
Financial contributions – the use of the $47,000
9.That the $47,000 was all but spent by [late] 2019 is not of itself evidence that the funds are a contribution on behalf of the Applicant. The Court must have regard to the application of those funds and how they contributed to the relationship.
10.As was gleaned under cross-examination, the vast majority of the $47,000 went to paying the Applicant’s rent of the [Suburb K] property during that period.4 In anticipation of the Applicant’s submission, the evidence does not support a finding that the parties resided at the [Suburb K] property with any regularity.
11.At paragraph 8 of her affidavit, there is no mention of the time spent at both properties expressed as a percentage. The Applicant should have given that evidence in her affidavit. Under cross-examination, the Applicant could not estimate the time the parties spent living at the [Suburb C] property and the [Suburb K] property. Under a liberal re-examination, eventually the Applicant proffered the figure of 50/50 time between both properties. This sequence can hardly give the Court comfort that the Applicant is assured of her evidence, to enable the Court to make that finding.
12.The Respondent’s case is that the when the parties cohabited, they primarily resided at the [Suburb C] property and the retention by the Applicant of her lease of the [Suburb K] property was a matter for her. On the Applicant’s own written evidence, she deposes that the parties spent all waking moments that were not spent at their day jobs renovating the property.
13.She deposes that the parties were not able to reside at the [Suburb K] property during the period that her father resided at the [Suburb C] property due to the inconvenience of travel between the residences.
14.What the Court could find is that while the parties occasionally stayed at the [Suburb K] property, they primarily resided in the [Suburb C] property. If that is the case, this would not make the substantial funds expended on the Applicant’s rent of the [Suburb K] property a contribution to the de facto relationship.
Financial contributions – Discrete payments during the relationship
15.The payments made for the asserted benefit of the Respondent at paragraph 48 of the Applicant’s affidavit are de minimus in the grand scheme of the matter. Nothing turns on this contribution.
Financial contributions – Application of income to the benefit of the relationship
16.On the Applicant’s own evidence, the Respondent earned a greater income during the relationship.
Financial contributions – Fertility treatment
17.From the bank statements tendered into evidence and marked L4, the Court would note the substantial payment made by the Applicant [in late] 2018, being $9,371.00 spent by her for her own purposes.
18.No contribution arises for the Applicant obtaining fertility treatment. Not only was the matter not canvassed in her affidavit, but her own evidence under cross-examination made clear that her pursuit of fertility treatment commenced prior to her relationship with the Respondent.
Financial contributions – Payment of the mortgage
19.The Applicant accepted under cross-examination that the funds expended by her to pay the shortfall between the rental income and the mortgage between [mid]-2020 and [early] 2022 were in the environ of $1000. The opportunity to improve her answer under re-examination did not materially change her evidence as to this contribution.
20.The Respondent took up the responsibility for the mortgage payments from [early] 2022.
Financial contributions – Refinancing the mortgage
21.It is acknowledged that the Applicant took on the mortgage liability jointly with the Respondent when the refinance occurred in [mid]-2020. The Court does not have sufficient evidence to find that that constituted a material financial contribution, especially given that the refinancing of the mortgage enabled the Applicant the chance to come on title to the [Suburb C] property.
Non-financial contributions – renovations
22.The Court has minimal evidence that would enable it to assess the value of the contributions made by the Applicant by way of renovating the property. The Applicant certainly agreed that her contributions by this way did not exceed that of the Respondent.
23.Of more pressing concern is the internal inconsistency between the Applicant’s assertion that the parties spent half of their time living at the [Suburb K] property (for which she paid rent) referred to earlier in these submissions, but that the parties also spent every waking moment after work and on weekends renovating the [Suburb C] property. The Court is in a better position to find that the parties resided at the [Suburb C] property most of the time to undertake the renovations.
24.The Applicant accepted under cross-examination that at the height of her case, her contributions to the renovations did not exceed those made by the Respondent, a [tradesperson] by trade.
Non-financial contributions – Management of the tenants
25.Three specific duties arose from the Applicant’s management of the tenants. Very little was given in her affidavit. On the Applicant’s own case, the Respondent took up this duty after [mid]-2022. Nothing of significance turns on this contribution.
Kennon
26.The Court may have been left with the impression that evidence was adduced in the last moments of the Applicant’s re-examination which is relevant to a Kennon claim. This evidence came late in the Applicant’s re-examination regarding the operation of the Family Violence Order.
27.The Court would note that no adjustment for a Kennon purpose was expressed in the Applicant’s case outline, and certainly none is apprehended at present. Certainly, the Court has insufficient evidence to establish what quantum of an adjustment the Applicant seeks.
28.Furthermore, to the extent that the Court finds anything turns on this evidence, the Court should give this matter little weight on procedural fairness grounds. The Respondent was (properly) limited in what could be explored on this line of evidence under cross-examination. Notwithstanding this, the Applicant had liberality in how her re-examination was approached, adducing this evidence that, properly, should have been in her trial affidavit and written submissions in her Case Outline document.
Change of real estate agents
29.The Court need not find that [D Company] has engaged in nefarious, calculated conduct to determine that it is appropriate to order that there be a change in real estate agents.
30.The Respondent has reason to be apprehensive about [D Company]’s continued involvement in the matter. This Court cannot make findings on the state of the evidence as to whether the altercation at the auction occurred, or whether the real estate agent has, as a matter of fact, engaged in the asserted conduct. What the Court would be able to find is that the agent’s conduct is of genuine concern to the Respondent (and the Respondent’s litigation guardian on his behalf). The reasonable confidence of both parties in the integrity of the sale process is something the Court would be minded about.
Outline of Principle
In Chapman v Chapman, the Full Court said, firstly at [19] – [21] (Strickland and Murphy JJ; Bryant CJ agreeing, at [1] – [9]):[39]
[19] Section 79 demands a consideration, separately, of all of its requirements without conflation. Provided a trial judge has done so, and the reasons demonstrate that this has been done, no error is demonstrated by a failure to follow a particular order in doing so. Further, the breadth and depth of the consideration of the s.79(2) issue, and the extent of an adequate exposition of it in the reasons, will vary from case to case. In that respect, the plurality in Bevan said, at [82], that the separate s.79(2) issue will, “...in many cases ... [be] ... effectively answered in the affirmative by the way the parties present their cases.”
[20] Each of those conclusions conforms entirely with what was said about those issues by the High Court in Stanford v Stanford (2012) 247 CLR 108.
[21] First, it is “...not possible to chart [the] metes and bounds” of the relevant discretion. Just as importantly, it was recognised specifically that the characteristics of individual marriage unions, in so far as they acquire, hold and deal with property, differ. In “many cases”, the union is underpinned by “...stated and unstated assumptions between the parties to a marriage that the arrangement of property interests, whatever they are, is sufficient for the purposes of the husband and wife during the continuance of their marriage” (Stanford, at [41]). And, in “many cases”, (but, not all) the “...just and equitable requirement is readily satisfied...” by the fact of separation: “[i]t will be just and equitable to make a property settlement order ... because there is not and will not thereafter be the common use of property by the husband and wife” (Stanford at [42]).
[39] Chapman v Chapman (2015) 51 Fam LR 176.
Regarding matters of “weight”, also in Chapman, the Full Court said, at [64]:
“...what is ‘plainly wrong’ will vary in the eyes of different beholders” and also the fact that the “...functions and purposes of the Court ... [involve] ... difficult and evaluative decisions...” such that “...any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions”. (CDJ at [186(2)], per Kirby J).
In AJO & GRO, at [46], subject to the matters outlined from Stanford and Bevan above from Chapman, the regular “four-step” process will be undertaken here.[40] That process begins with (i) the identification and value of the net property of the parties, (ii) assessment of the contributions of the parties under s.79(4), (iii) consideration of the factors under s.75(2), and finally (iv) consideration and determination of what Orders are just and equitable between the parties in all of the circumstances, having regard to all the evidence and in the light of the principles outlined.
[40] AJO & GRO (2005) 33 Fam LR 439.
“Contributions” were a vexed issue in this matter, as they are in many, albeit in a limited number of respects. It is important therefore to note the following from Fields v Smith, where the Full Court said (Bryant CJ and Ainslie-Wallace J; May J agreeing), at [75] and [168] (emphasis added):[41]
[75] … As we have already said, there is no requirement to attribute different percentages to different periods in the relationship. Indeed the Full Court has cautioned against it: see Dickons & Dickons(2012) 50 Fam LR 244, Lovine & Connor and Anor (2012) FLC 93-515 and Bolger & Headon [2014] FamCAFC 27 where the Full Court said at [28], “[d]oing so ... is not consistent with a holistic assessment of the parties’ contributions which is what s.79(4) requires.” It is only if error can be demonstrated in the overall result that the appeal would succeed.
[168] … the task is to consider the contributions holistically over the whole period from the commencement of cohabitation to trial and the analysis requires the court to weight all of the contributions of all types prescribed by s.79(4) made by both parties across the entirety of the relationship until the time of hearing, including the post-separation period.
[41] Fields v Smith (2015) FLC 93-638; (2016) 53 Fam LR 1.
Because of the vagaries outlined in the troubled and often opaque evidence in this matter, I should note the further comments by the Full Court in Dickons v Dickons regarding the evaluation of “contributions.”[42] First, at [18] – [22], the Full Court said (emphasis added):
[18] Any and all such contributions, whether or not they sound in, or are directly linked to, the property available for distribution, should be considered and assessed together with the nature, form and extent of all other contributions of all types contemplated otherwise by s 79(4).
[19] That is true of assets or income generated within the relationship and it is equally true of assets or income coming from outside of the relationship (for example, as here, in the form of inheritances). In the same way, s 79(4) specifically requires the Court to take into account contributions made to the welfare of the family (and substantively and “...not in any merely token way...”; see, Mallett v Mallett (1984) 156 CLR 605 at 636 per Wilson J) notwithstanding that those contributions may not be, or cannot be seen to be, directly linked to the available property at trial, or any increase or decrease in the value of the property.
[20] Put another way, consistent with authority, the s 79 discretion involves as a necessary requirement that “... trial Judges weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation and then translate such an assessment into a percentage of the overall property of the parties or provide for a transfer of property in specie in accordance with that assessment.” (In the Marriage of Aleksovski (1996) 20 Fam LR 894 at 903). In Aleksovski, Kay J outlined the well-known “gold bar” analogy and said “[w]hat is important is to somehow give a reasonable value to all of the elements that go to making up the entirety of the marriage relationship” (at 83,443).
[21] Those same principles can be expressed as saying that the requirements of the section are met by approaching the assessment of contributions holistically and by analysing the nature, form, characteristics and origin of the property currently comprising that to which s 79 applies, and, in turn, analysing the nature, form and extent of the contributions (of all types) contemplated by s 79. That task is also undertaken by reference to the nature and form of the particular marriage partnership manifested by the particular circumstances of this particular marriage. Is it, for example, a relationship, as Deane J put it in Mallett at 640-641 “...where the parties have adopted the attitude that their marriage constituted a practical union of both lives and property...” or is it, for example, a union where parties lived very separate domestic and financial lives?
[22] The analysis just referred to might, obviously enough, also involve an examination of when contributions were made and the use made of contributions. But that is quite different to attributing to, or searching for, a necessary causal connection between contributions and the available property as a requirement for a particular contribution having significance in the overall assessment of what is just and equitable.
[42] Dickons v Dickons (2014) 50 Fam LR 244.
Regarding the dangers of attributing “percentages” to specific contributions, the Full Court forcefully noted, at [23] – [26] (emphasis added):
[23] We wish also to refer to the approach of the Federal Magistrate in attributing percentages to differing periods within the relationship, or types of contribution made. There is in our view little to be gained, and much to be said against, approaching the task of assessing contributions by attaching percentages to components of it. (The same, it might be said, applies to attributing a percentage to each of the relevant s 75(2) factors).
[24] There can be little doubt that the classification of contributions by reference to terms such as “initial contributions”, “contributions during the relationship”, and “post-separation contributions”, can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties’ respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
[25] Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without “...giving over-zealous attention to the ascertainment of the parties’ contributions...” (Norbis v Norbis (1986) 161 CLR 513 at 524) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the Court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.
[26] The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.
As the Full Court noted in Dickons, the issue is less a matter of the “erosion” of initial and perhaps large contributions, and more about questions of “weight”. Likewise, regarding those early contributions being considered as a “springboard” for later financial matters, as set out in the extracts above, again the Full Court in Dickons said that the appropriate course is to look at all contributions in a “holistic” manner for the purposes of determining what Orders are ultimately “just and equitable.”
In accordance with multiple other, earlier authorities, in Chapman, at [39], the Full Court said (emphasis added):
The consideration of the relevant matters referred to in s.75(2) of the Act, pursuant to s.79(4), like the assessment of contributions, is holistic. Also, like the assessment of contributions, it is not an accounting exercise.

As will have been noted, the Wife’s submissions provided a conspectus or overview of recent so-called “short marriage” cases. In this regard, and without repeating the summaries provided by Counsel for the Wife, I need only note the following.
In the Full Court decision in Anson v Meek, the Full Court recorded the following.[43] First, at [102] – [113], Murphy J set out and discussed a range of “short marriage cases”. I simply note his Honour’s comments and need not set them out. Secondly, in the joint judgment of Aldridge and Cleary JJ, their Honours focussed more on the utility of, and any requirement (for and against) to consider “comparable cases” in reaching a conclusion which, on the facts of each case, was “just and equitable.” Notably, however, at [179] – [181], their Honours stated:
[179] In any event, we do not accept that a trial judge, or indeed an appeals court, is obliged to trawl through a slew of cases cited to them as comparable cases so as to identify a list of factual similarities and differences and then weigh these against the facts in the immediate matter so as to determine whether they are, in fact, “comparable”. Such an approach is contrary to authority and an unjustifiable burden on trial judges.
[180] Finally, for ourselves, we derived no assistance at all from the cases cited to her Honour in deciding this appeal.
[181] If the point is that, where there is a short marriage, where there are no children and where the parties’ contributions to their assets and to the welfare of the family from the commencement of the relationship to the time of the hearing is equal, any disparity in initial financial contributions is of critical importance in determining the overall contributions of the parties, then such a position is easily arrived at by the application of principle alone.
[43] Anson v Meek (2017) 57 Fam LR 23; (2017) FLC 93-816.
Consideration & Disposition
In the light of the principles outlined above, I note the following.
First, helpfully, the parties have now agreed upon an asset pool balance sheet. It is in the following terms:

Balance Sheet

Description

Ownership

Applicant’s Value

Respondent’s Value

ASSETS

1

B Street, Suburb C

Joint

$1,355,000

$1,325,000

2

CBA Account #...14

A

Nominal

$3,095

3

CBA Account #...09

A

Nominal

Nominal

4

CBA Account #...55

A

Nominal

$988

5

Motor Vehicle 1

A

Nominal

$1,000

6

Household contents

A

Nominal

Nominal

7

ME Savings Account #...51

R

Nominal

$4,655

8

ME Savings Account #...52

R

Nominal

Nominal

9

Motor Vehicle 2

R

Nominal

$5,000

10

Motor Vehicle 3

R

Nominal

$10,000

11

Household contents

R

Nominal

$1,000

Assets subtotal

$1,355,000

$1,350,738

LIABILITIES

12

Mortgage over Suburb C property

Joint

$710,087

$710,087

13

Rates arrears

Joint

$4,378

$4,378

14

Land tax arrears

Joint

$19,592

$19,592

15

Energy company

Joint

$969

$969

16

Water company

Joint

$2,851

$2,851

17

Credit cards

A

Not agreed

$7,857

18

Credit cards

R

Not agreed

$15,500

19

Legal fees owed to O Law Firm

R

Not agreed

$6,000

Liabilities subtotal

$737,877

$767,234

SUPERANNUATION

Name of fund

Type of interest

Member

Applicant’s Value

Respondent’s Value

20

Super Fund 1

Defined Benefit Interest

A

$222,701

$222,701

21

Super Fund 2

Accumulation Interest

A

$6,270

$6,270

22

Super Fund 3

Accumulation Interest

R

$120,388

$120,388

Superannuation subtotal

$349,359

$349,359

TOTAL (assets – liabilities)

$617,123

$583,504

TOTAL (assets – liabilities + superannuation)

$966,482

$932,863

As will be seen, there is a modest difference in the respective amounts set out in the table for each party. The differences, summarily stated, relate to (a) the value of the Suburb C property ($1.355 million cf $1.325 million); (b) some savings of the Husband ($3,095); (c) two cars and some household contents, claimed by the Husband, for which there are no valuations at all ($16,000); and (d) two credit card debts and the Husband’s legal fees owed to his former lawyers (in total $29,357).
In general terms, in my view, the Wife’s balance sheet is the more accurate of the two for the following reasons:
(a)The value ascribed to the Suburb C property, absent any other evidence, should be in accordance with the only valuation before the Court, being that which was obtained by the Wife referred to above, namely $1.355 million. Of course, if the property is sold at auction, such contest, ultimately, goes away;
(b)I have already noted that there is no valuation or other proper evidence regarding the valuations of the Respondent’s cars that he seeks to include in the balance sheet. Absent such evidence, the values ascribed to them, and notably in circumstances where there was no evidence from the Husband, should not be accepted;
(c)Absent agreement between the parties, which is the case here, there is no legal principle that would warrant the credit card debts being included in the balance sheet. I propose to exclude them; and
(d)The evidence of the Husband’s litigation guardian confirmed that the legal fees of $6000, which the Husband owes to his former lawyers have not been paid. In such circumstances, legal fees that have not been paid cannot be added back into the pool, precisely because they were never taken out in the first place.
Accordingly, the asset pool shall be taken as set out in the balance sheet proposed by the Wife.
Regarding “contributions”, I recall again the importance of the instruction from two Full Court authorities to which I have referred, namely Dickons v Dickons regarding the “holistic nature” in the assessment of them, and the decision in Anson v Meek regarding (in my words) a degree of particularity required regarding assessing contributions in short marriage cases as well as a focus on relevant disparities.
In my view, on the evidence, as best as one can determine in the unusual circumstances and evidence of this matter, I make the following observations, which should relevantly be taken as “findings” in relation to contributions:
(a)At the start of the relationship, the Wife had savings of approximately $47,000;
(b)The Wife’s income at the start of the relationship was $38,000 per year; the Husband’s was $98,000 per year. It is more likely than not that at the beginning and during the brief relationship, both parties equally contributed to it financially, both from their incomes (at least when the Husband was employed), and as required, from their savings;
(c)The Wife’s fertility treatment was commenced before the parties met and in turn before they commenced a relationship. At its highest, the Husband was a “passive” participant albeit a supportive one for the limited time of the relationship. At its highest, the costs associated with such treatment (the treatment of course being highly sensitive, highly personal, and extremely delicate) could only be considered to be the most miniscule of contributions for the current litigation;
(d)The use, and cost, of the Wife’s Suburb K property, in my view, must be considered “holistically”. By this I mean that it is inaccurate to consider it on the basis of an arithmetical assessment of actual days it was used, and dollar amounts spent, again on a daily basis. The primary benefit to the parties was surely that it was available to them both, as and when required, subject only to what was happening with the renovation and all else regarding the Suburb C property. It was at least a significant convenience to them both during the course of their relationship;
(e)There is no doubt that the Suburb C property was a very significant initial contribution by the Husband to the relationship, accepting that the net equity in it, while significant, was limited by the significant mortgage (now agreed to be $710,087). The net equity, according to the Wife’s figures in the balance sheet, is $644,913;
(f)The Wife’s management of the tenants in the Suburb C property for approximately 2 years is a not insignificant contribution. Of perhaps slightly greater import was the Wife taking on debt with the Husband regarding payment to his former Wife, and in relation to the Husband’s quite significant credit card debt;
(g)Accepting the force of the Wife’s submissions that, because there was no evidence from the Husband about it, the Wife’s evidence about being the primary “home-maker” should be accepted, in my view, precisely because of the shortness of the relationship and the general lack of detail about this aspect, as with a range of other dimensions, it is difficult to put a significant amount of weight, or to put a more specific value, on this contention other than in the most general terms;
(h)the Court can do little with the respective contentions about the Husband’s vehicles (sold and unsold) as a contribution, or the lack of detail regarding the Husband’s significant credit card debt, and the sizeable credit card debt of the Wife; and
(i)There is no doubt that, for the duration of the relationship, both parties contributed, each in their own ways, to the renovation of the Suburb C property.
Apart from an allusion or passing, almost cryptic, reference at par.2 on p.7 of her Case Outline, the Wife’s contention that her contributions were made more arduous because of the domestic violence of the Husband, does strike a difficult note, as it were, because such an important issue was not raised directly in the Wife’s Case Outline, as noted by the Husband in final submissions. In my view, such a matter in the circumstances here, where there is no question that the Wife obtained a Family Violence Order (“FVO”) at the time of their separation in November 2020 but, in consequence, the “difficulty surrounding her contributions”, almost by necessity, if they occurred at all, was not until relatively late in the very short relationship. Accepting this to be generally the case, to the degree that the Court can and should have regard to the FVO and surrounding similar circumstances, I really cannot address it as akin to a “Kennon-type” argument, but I can take it into account under s.90SF(3)(r) (the de facto equivalent of s.75(2)(o)) of the Act.
On a percentage basis, I assess the contributions of the parties as 14% to the Wife and 86% to the Husband. As something of a general observation, the weight to be attributed to the Suburb C property cannot be overstated in the context of such a short relationship. In a sense it almost, by necessity, overwhelms the other assets in the property pool. In effect and in reality, it was and remains the asset. Such an assessment does not and should not be taken as a criticism of the Wife’s contributions. They were significant, which the Court has duly taken into account, having regard to all of the circumstances in such a short relationship.
Regarding ‘future needs”, in all of the circumstances, I accept the Wife’s submissions that, having regard to the situations of both parties, notably their ages and actual or potential employment, they should essentially be able to look after themselves. As the Wife’s Counsel fairly noted in her Case Outline, the shortness of the relationship tells against the Court being able to place much or any relevant weight upon the factors set out in s.90SF(3).
As noted above, the Wife taking on the debt that flowed from the settlement between the Husband and his former partner was, in my view, a significant factor. So too was the FVO that issued at the end of the relationship, although not very much, it seems to me, can or should be placed on that unfortunate development.
In my view, a further adjustment to the Wife of 2% should be made, as the Court’s fourth step in determining what is just and equitable, overall, in the circumstances of this matter. The circumstances include noting that neither party seeks a splitting Order regarding the respective superannuation accounts.
The percentage division I have determined would bring the final assessment of the Court as to what is just and equitable between the parties to a distribution of the net assets (but from which, for calculation purposes, I will exclude the superannuation), which totals $617,123, as 16% to the Applicant Wife and 84% to the Respondent Husband. In dollar terms, this would result in a payment to the Wife of $98,739.
The usual terms of s.117 of the Act should apply whereby each party will be responsible for her and his own costs. For more abundant caution, there should be the following Orders, which are, primarily, procedural and/or precautionary to ensure the sale of the Suburb C property and that neither party needs further assistance from the Court regarding the sale:
(a)an Order under s.106A of the Act regarding the signing of any documents by a Registrar of the Court;
(b)an Order that until the sale and distribution of the net proceeds of sale in accordance with these Orders, the Husband is responsible for all mortgage payments regarding the Suburb C property; and
(c)in the event that the Suburb C property does not sell at auction within 120 days, absent any other agreement in writing between the parties, they may approach a Registrar of the Court to determine any other process to ensure the sale of the Suburb C property. That process may proceed on the basis of a single Affidavit from each party of no more than 4 pages that updates the Court and two pages of submissions from each party.

I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville.
Associate:
Dated: 30 May 2024

File number(s):	CAC 2164 of 2022
Judgment of:	JUDGE W J NEVILLE
Date of judgment:	30 May 2024
Catchwords:	FAMILY LAW – PROPERTY – very short de facto relationship of approximately 2 years – difficulties in assessing contributions based on the limited evidence and especially because the Respondent de facto Husband did not give evidence due to mental health issues and was represented by his litigation guardian – precise arithmetical calculation of contributions to be balanced with considerations of justice and equity – each party to pay their own costs.
Legislation:	Family Law Act 1975 (Cth) ss.75(2)(o), 90SF(3)(r), 117
Cases cited:	Anson v Meek (2017) 57 Fam LR 23; (2017) FLC 93-816 Bevan v Bevan (2013) 279 FLR 1; (2013) 49 Fam LR 387 Chapman v Chapman (2015) 51 Fam LR 176 Dickons v Dickons (2014) 50 Fam LR 244 Fields v Smith (2015) FLC 93-638; (2016) 53 Fam LR 1 AJO & GRO (2005) 33 Fam LR 134 Stanford v Stanford (2012) 247 CLR 108
Division:	Division 2 Family Law
Number of paragraphs:	95
Date of last submission/s:	9 April 2024
Date of hearing:	2 April 2024
Place:	Canberra
Counsel for the Applicant	Ms Davis
Solicitor for the Applicant	Gabbedy Milson Lee
Counsel for the Respondent	Ms Bromberger
Solicitor for the Respondent	Stanford Solicitors & Mediators

CAC 2164 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS LAMBETH Applicant
AND:	MR QUAID Respondent

ORDER MADE BY:	JUDGE W J NEVILLE
DATE OF ORDER:	30 MAY 2024

Balance Sheet
Description		Ownership		Applicant’s Value	Respondent’s Value
ASSETS
1	B Street, Suburb C	Joint		$1,355,000	$1,325,000
2	CBA Account #...14	A		Nominal	$3,095
3	CBA Account #...09	A		Nominal	Nominal
4	CBA Account #...55	A		Nominal	$988
5	Motor Vehicle 1	A		Nominal	$1,000
6	Household contents	A		Nominal	Nominal
7	ME Savings Account #...51	R		Nominal	$4,655
8	ME Savings Account #...52	R		Nominal	Nominal
9	Motor Vehicle 2	R		Nominal	$5,000
10	Motor Vehicle 3	R		Nominal	$10,000
11	Household contents	R		Nominal	$1,000
Assets subtotal				$1,355,000	$1,350,738
LIABILITIES
12	Mortgage over Suburb C property	Joint		$710,087	$710,087
13	Rates arrears	Joint		$4,378	$4,378
14	Land tax arrears	Joint		$19,592	$19,592
15	Energy company	Joint		$969	$969
16	Water company	Joint		$2,851	$2,851
17	Credit cards	A		Not agreed	$7,857
18	Credit cards	R		Not agreed	$15,500
19	Legal fees owed to O Law Firm	R		Not agreed	$6,000
Liabilities subtotal				$737,877	$767,234
SUPERANNUATION
Name of fund		Type of interest	Member	Applicant’s Value	Respondent’s Value
20	Super Fund 1	Defined Benefit Interest	A	$222,701	$222,701
21	Super Fund 2	Accumulation Interest	A	$6,270	$6,270
22	Super Fund 3	Accumulation Interest	R	$120,388	$120,388
Superannuation subtotal				$349,359	$349,359
TOTAL (assets – liabilities)				$617,123	$583,504
TOTAL (assets – liabilities + superannuation)				$966,482	$932,863