Leptis & Leptis
[2025] FedCFamC2F 839
•20 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Leptis & Leptis [2025] FedCFamC2F 839
File number(s): MLC 11916 of 2023 Judgment of: JUDGE HARLAND Date of judgment: 20 June 2025 Catchwords: FAMILY LAW – Property only - weight to be given to various contributions - 29 year marriage - whether there should be an adjustment pursuant to s.75(2) - income earning disparity - wife seeking periodic spousal maintenance Legislation: Family Law Act 1975 (Cth) Part VIII, ss. 74, 75, 75(2), 75(2)(o), 79(1), 79(2), 79(4) Cases cited: Chang & Su [2002] FamCA 156
Clauson & Clauson [1995] FamCA 10
Stanford v Stanford [2012] HCA 52
Division: Division 2 Family Law Number of paragraphs: 95 Date of hearing: 20 and 21 March 2025 Place: Melbourne Counsel for the Applicant Mr Ellis Solicitor for the Applicant AFL Kordos Lawyers Counsel for the Respondent Mr Fudim Solicitor for the Respondent JosephDavid Lawyers ORDERS
MLC 11916 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR LEPTIS
ApplicantAND: MS LEPTIS
Respondent
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
20 JUNE 2025
THE COURT ORDERS THAT:
Sale of Suburb C Property
1.The parties shall do all acts and things and sign all documents necessary so as to effect a sale of the real property situated and known as B Street, Suburb C (“Suburb C property”), for the best price reasonably obtainable in the following manner:
(a)List the Suburb C property for sale by private treaty or public auction as directed by an agent selected by the husband within 14 days of these Orders, based on the names of three licensed real estate agents to be proposed by the wife within 7 days hereof, the costs of and incidental to such appointment to be borne by the parties equally as and when they fall due;
(b)The Suburb C property be listed for sale at the price agreed by the parties in writing and failing agreement, at a price nominated by the agent, and as updated by the agent from time to time;
(c)The parties co-operate in every way with the agent including (without limiting the generality of the foregoing):
(i)Making the key available to the agent;
(ii)As to the wife, allowing inspection of the Suburb C property at all reasonable times requested by the agent;
(iii)Doing or saying nothing to hinder or prevent a sale being effected;
(iv)As to the wife, ensuring the Suburb C property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers;
(v)Signing all documents requested by the agents in relating to the listing for sale of the Suburb C property; and
(vi)Any other reasonable request by the agent to facilitate the best price for the Suburb C property.
(d)The parties execute a contract for sale in the form prepared by the conveyancers having the conduct of the sale at a price agreed upon by the parties, or in the absence of any agreement, at or above the price nominated by the agent, as updated from time to time;
(e)The parties instruct such solicitor or conveyancer as they agree upon to have the conduct of the sale on behalf of both parties or, in the absence of agreement reached within fourteen (14) days of the date of these Orders, such conveyancer as may be appointed by the husband within 21 days of these Orders, based on the names of three conveyancers to be proposed by the wife within 14 days hereof, the costs of and incidental to such appointment to be borne by the parties equally as and when they fall due; and
(f)Neither party may confer on any agent without the consent of the other party any right to any sole or exclusive agency in respect of the Suburb C property or to any commission.
2.On Settlement of the sale of the Suburb C property the proceeds of sale be paid in the following manner and priority:
(a)First, all costs and expenses of sale including legal costs, taxes and disbursements, agents commission and auction expenses (including repayment of any such expenses as have been paid by either or both of the parties); and
(b)Second, the balance then remaining to be held in JosephDavid Lawyers’ Trust Account and to be divided so as to achieve a 60 / 40 division in favour of the wife of the non-superannuation pool.
3.Pending the settlement of the sale of the Suburb C property:
(a)The wife have the sole right to occupy the Suburb C property;
(b)The wife pay all rates, insurance premiums and outgoings in respect of the Suburb C property as they fall due;
(c)The wife pay, indemnify and keep the husband effectively indemnified in relation to the outgoings payable by her pursuant to subparagraph (b); and
(d)The parties not encumber the Suburb C property without the consent in writing of the other.
4.Within 14 days of the date of these orders each party do all acts and things and sign all documents necessary to, at the transferee’s expense:
(a)transfer all of the wife’s right, title and interest in Motor Vehicle 1 to the husband; and
(b)transfer all of the husband’s right, title and interest in Motor Vehicle 2 to the wife.
5.Within 14 days of the date of these orders parties do all acts and things and sign all documents necessary to close the joint account and shall divide the proceeds evenly.
Superannuation
6.The Court allocates, as required by Section 90XT(4) of the Family Law Act 1975, a base amount of $135,751.50 to the non- member wife out of MR LEPTIS’ (“Husband”) interest (membership number …) in the husband’s Super Fund 1 (“the Fund”).
7.Orders 6 to 13 of these Orders be binding on the Trustee of the Fund.
8.Pursuant to Section 90XT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of MR LEPTIS’ interest in the Fund, the trustee shall pay to the Non-Member Spouse’s MS LEPTIS the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of $135,751.50 and there should be a corresponding reduction in the entitlement of the person to whom a splittable payment would have been made but for these orders.
9.The Trustee of the Fund (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to:
(a)Calculate, in accordance with the requirements of the Family Law Act 1975 the entitlement awarded to the wife in the immediately preceding clause of this Order; and
(b)Pay the entitlement whenever the trustee makes a splittable payment from the husband’s interest in the Fund.
10.This Order has effect from the operative time and the operative time is four (4) business days after service of the sealed Final Orders upon the Trustee.
11.After service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (“the SIS Regulations”) the husband shall do all such things and sign all such documents as may be necessary, including but not limited to exercising the wife’s request in accordance with the SIS Regulations, for the rollover or transfer of the non-member spouse interest to a complying superannuation fund of the wife’s choosing in accordance with the SIS Regulations.
12.There be liberty to apply to each party and the trustee in relation to implementation of the Orders affecting the Superannuation interest.
13.The husband by himself, his servants and/or agents be and are hereby restrained from doing any act or thing which would prevent the wife, her heirs, executors, administrators or nominees from receiving the benefits in the Fund to which she is entitled pursuant to these Orders.
Miscellaneous
14.Unless specified in these Orders and save for the purpose of enforcing any monies due under these or any subsequent Orders:-
(a)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these Orders;
(b)Monies standing to the credit of the parties in any bank account is to become the property of that party in whose name the account is registered;
(c)Insurance policies remain the sole property of the owner named therein;
(d)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;
(e)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed; and
(f)Each party be solely entitled to the exclusion of the other to all superannuation entitlements in that party’s name.
Maintenance
15.The wife’s maintenance application is dismissed.
Other
16.All extant applications are dismissed.
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 HARLAND
The parties have not been able to resolve their property dispute. The pool is largely agreed. The dispute primarily centres on the weight to be given to their respective contributions and their respective earning capacities. The wife also seeks maintenance. The parties were in a 29-year relationship. The husband is 52 years old. The wife is 53 years old. The parties began dating in 1994 and became engaged in 1997. They bought a house together in 1999, situate at B Street, Suburb C (‘the Suburb C property’). They were married in 2000 and commenced living together after they were married. The parties separated on 4 May 2023 when the husband moved out of the former matrimonial home. They are not yet divorced.
The parties have two children of the relationship, Ms D aged 19 and Ms E aged 17. The wife continues to reside at the Suburb C property with the children. The husband has re-partnered with Ms F. The husband began living with his new partner in March 2024 in a home she owns. He pays $350 weekly in rent to her pursuant to a residential tenancy agreement drawn up by the husband.
OBJECTIONS
Prior to the commencement of trial, counsel for the parties discussed objections. The husband’s counsel informed the Court that some objections were conceded and identified the objections that were pressed. I determined the objections. Counsel helpfully provided a redacted court book to reflect my rulings. It is not necessary to go through the objections here apart from the issue of Dr G’s affidavit.
Despite Dr G not being available for cross-examination, the wife sought to rely on their affidavit filed 27 February 2025, to demonstrate how her medical condition affects her capacity to work. Counsel for the husband argued the prejudice to the husband in allowing this evidence in outweighs the prejudice to the wife and pressed that if a witness is not available for cross-examination, their evidence should not be read into evidence. Given her evidence could not be tested, I would not have been able to place weight on it. I did not allow the wife to rely on the affidavit. I did not strike out paragraphs of the wife’s trial affidavit where the wife discusses her medical conditions.
EVIDENCE RELIED UPON
The husband relies on the following documents:
(a)Amended Initiating Application filed 29 May 2024;
(b)Affidavit of Mr Leptis filed 20 February 2025;
(c)Affidavit in Reply of Mr Leptis filed 6 March 2025;
(d)Financial Statement filed 20 February 2025;
(e)Financial Statement filed 17 March 2025; and
(f)Husband’s Outline of Case filed 14 March 2025;
The wife relies on the following documents:
(a)Affidavit of Ms Leptis filed 27 February 2025;
(b)Amended Response to Final Orders filed 27 February 2025;
(c)Financial Statement filed 27 February 2025; and
(d)Wife’s Outline of Case filed 13 March 2025.
Additionally, the parties rely upon a joint balance sheet which was updated shortly before the commencement of the trial. The parties also relied on and tendered various documents as exhibits throughout the trial.
ISSUES IN DISPUTE
At the beginning of the trial, the wife sought an overall distribution of 70% in her favour, arguing that there should be a 45/55% adjustment in her favour for contributions and a further 15% adjustment for s.75(2) factors. During closing submissions, the wife’s counsel concluded that 70% is outside the range and that the range is up to 65% to the wife. The husband’s position remained the same throughout the trial. His position is that their contributions should be assessed as being equal and that there should be no s.75(2) adjustments.
There is also a dispute about the quantum of both parties’ income specifically the husband’s income that he has declared to the Australian Tax Office (‘ATO’) in the last financial year and whether there are undeclared cash earnings and whether the wife has a reduced working capacity. The wife presses a periodic maintenance application.
Helpfully, the parties at the end of the trial agreed on a form of order with respect to the sale of the home and the superannuation split. The superannuation trustee has been accorded procedural fairness.
The issues in dispute that I must determine are:
(a)The parties’ respective initial and early contributions and what weight should be given to the parties’ respective initial and early contributions;
(b)Other contributions during the relationship including renovations undertaken on the home;
(c)What weight should be given to the wife’s parents’ contributions;
(d)The husband’s money received from his work as an entertainer and arts teacher;
(e)Whether or not there should be any s.75(2) adjustments including but not limited to disparity in income earning capacity;
(f)Whether or not an order for spousal maintenance should be made and whether it should be made as a lump sum or periodic payment; and
(g)If an order for periodic spousal maintenance is made if it should be for five years as the wife seeks or a shorter period.
Before discussing the evidence, I will discuss the applicable legal principles.
PROPERTY GENERAL PRINCIPLES
Part VIII of the Family Law Act 1975 (Cth) (‘the Act’) governs property, spousal maintenance and maintenance agreement between married couples. The major provisions relating to marital property division are contained in ss.79(1); 79(2); 79(4); & 75(2) of the Act.
The High Court considered the operation of s.79 of the Act (which has almost identical terms to s.90SM) in the matter of Stanford. In this case, the majority stated at [35]-[36] that:
It will be recalled that s 79(2) provides that "[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.”
The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. [Footnotes omitted]
The High Court found three fundamental propositions with respect to the application of s.79, which can be summarised as follows:
(a)Firstly, in order to ascertain whether it is just and equitable to make a property settlement order, it is necessary to identify the existing legal and equitable interests of the parties in the property. The High Court emphasised the word ‘existing’.
(b)Secondly, although s.79 gives the court a broad power to make property settlement orders it may not be exercised in an unprincipled fashion. There must be no assumption that the parties’ interests are or should be different to their existing interests.
(c)Thirdly, when considering whether making a property settlement order is just and equitable the court must not assume that one or the other party has the right to a property adjustment order. The court must give separate consideration to s.79(2) in addition to the matters referred to in s.79(4).
In Stanford v Stanford [2012] HCA 52 the High Court indicated that, in the vast majority of matrimonial property cases, the requirements of s.79(2) will be readily satisfied, largely as a result of a consideration of the circumstances of the parties concerned, particularly the nature of their separation. Both parties seek property adjustment orders.
The High Court also pointed out that what is just and equitable is different in every case. As the trial commenced before 10 June 2025, the old provisions apply.
It is important to have regard to the myriad of contributions the parties have made over the whole of their long relationship and take a holistic approach to the assessment of the parties’ contributions.
I will address the principles applying to maintenance separately after addressing the property matters.
ASSET POOL
The parties provided a joint balance sheet at the commencement of the trial.
The parties agree they will each keep the vehicle in their possession. They have agreed to orders requiring them to transfer ownership of the vehicles to the other.
The parties agree that the Suburb C property is to be sold, therefore I do not need to make a determination in relation to the valuation of the former matrimonial home.
The parties are $100,000 apart in their estimated values for the Suburb C property. For ease of reference, I will adopt the mid-point on the balance sheet. The parties included in their balance sheet a joint account with a balance of $20. Given this amount is so small, I will not include it in the balance sheet. I will order the parties to close the account and divide the proceeds equally.
Given the parties have separated for two years, I will not include their separate bank accounts with minimal amounts at items 6 and 8 of their joint balance sheet. The parties will keep their accounts in their sole name. I will include their bank accounts with larger sums.
In relation to the joint balance sheet, the wife has conceded prior to trial that the cycling bike, with a value of $10,000, be removed.
The adjusted balance sheet is set out below. The parties have net non-superannuation assets totalling $3,037,735. The Suburb C property is mortgage free. The parties do not have any other debts included in the balance sheet.
Ownership Description Applicants value Respondents value ASSETS Joint B Street, Suburb C $2,950,000 $2,950,000 Wife (in husband’s possession) Motor Vehicle 1 $24,000 $24,000 Husband (in wife’s possession) Motor Vehicle 2 $31,000 $31,000 Husband CBA #...87 $4,013 $4,013 Wife CBA #...87 $10,122 $10,122 Husband (Musical instruments) $18,600 $18,600 Net assets $3,037,735 $3,037,735
ADDBACKS NIL NIL Add-backs NIL NIL Net assets + add-backs $3,037,735 $3,037,735 SUPERANNUATION Member Name of Fund Type of Interest Applicants value Respondents value Husband Super Fund 2 Accumulation $20,215 $20,215 Husband Super Fund 1 Accumulation $376,418 $376,418 Wife Super Fund 3 Accumulation $125,130 $125,130 Superannuation $521,763 $521,763 Net assets + superannuation $3,559,498
$3,559,498
CONTRIBUTIONS
Initial and early contributions
The parties dated for six years before living together and opening a joint account. Both parties agree that prior to the purchase of the Suburb C property they did not combine their finances. They purchased the Suburb C property in early 1999 for $300,000. The parties agree that the wife contributed $53,000 to the purchase. They also agree that the wife’s parents also contributed to the purchase. In his trial affidavit the husband says the wife’s parents contributed $50,000 but in cross-examination he conceded that they provided $60,000.
In his trial affidavit the husband states he contributed $50,000 to the deposit. The husband was cross-examined and shown the trust account receipt dated 18 March 1999 for $30,000. He said that $30,000 was the deposit he paid and that he paid another $20,000 for other expenses. He refers to selling H Company shares for $10,000. However, in his affidavit he refers to using this towards renovations. There is no supporting evidence of further payments before me. This is unsurprising given how long ago they purchased the property. In addition to the deposit, the parties would have had expenses for stamp duty and other costs related to the conveyancing. I am not satisfied that the husband had an additional $20,000 for the purchase.
The parties took out a mortgage with National Australia Bank (‘NAB’). The wife says the mortgage was for $170,000. The husband does not refer to the amount of the mortgage in his trial affidavit. Given the purchase price and the amount of money the husband and wife had, they could have purchased the Suburb C property without the wife’s parents help. The reality is that the wife’s parents contributed $60,000 to the purchase which meant they could take out a smaller mortgage.
Renovations
The parties undertook significant renovations and engaged in multiple sets of renovations to the matrimonial home. There is some confusion about the dates of the renovations given the passage of time. There is a dispute between the parties as to the extent of their respective involvement with the renovations.
The property needed work when the parties first purchased it. In the husband’s trial affidavit, the husband stated that the first renovations included the replacement of rotten joists and bearers in some rooms, replacement of floorboards, replacement of ceilings, restoring double hung windows, repairing solid brick render, replacement of bathroom, repairment of rotten downpipes and guttering, replacement of damaged roof tiles, cosmetic landscaping and internal and external painting.
It is the husband’s case that the first renovations took place over five months and the husband would attend the site each day after work to do some work before going home as well as on the weekends. The husband could not recall how much the first renovations cost. Neither party had documentation outlining the cost of the renovations, understandably given the passage of time.
The husband says that the second set of renovations took approximately 10 weeks to complete. The husband argued this set of renovations included removing carpets, installing fireplaces, replacing and polishing skirting boards and architraves, installing new tiling on the fireplaces, restoring internal timberwork, replacing mantle-pieces, installing ducted hearing, repainting internally, stripping and restoring the kitchen cabinetry, replacing the hot water service. The husband deposes in his trial affidavit that he spent every night after work as well as on the weekends at the site and he assisted in some of the work except for the specialised work which was engaged by sub-contractors.
The wife disputes that the husband was on site for the renovations as much as he claims and argues he taught arts during the week and was working as an entertainer four weekends a month. According to the wife’s trial affidavit, she deposes to being on site every morning and ordering and picking up supplies for the works as well as looking after their two children. The husband admits that the wife’s father provided some minor assistance being at the site.
The parties undertook major renovations to the Suburb C property in 2007. During the main renovations, both parties agree that the family lived at the wife’s parents house, and they did not have to pay rent or a form of board during this time. The parties agreed that the wife’s parents provided non-financial support as well during this time by caring for the children, cooking, cleaning and washing clothes. The husband says these renovations took about 18 months. The wife says it was two years.
The wife agrees that the husband did not teach students whilst they were living at her parents’ home. The husband says the wife’s parents did not pay all their expenses. I accept this as the parties were working but they did receive a significant benefit from the wife’s parents in being able to stay with them rather than renting a property whilst the major renovations were being completed.
Later in the relationship the wife’s parents lived with the parties in their home for 13 months in August 2017 to early September 2018. The wife’s parents paid them $20,000 in consideration for them staying there. The husband acknowledges this sum as part of the $89,000 he acknowledges. This is in contrast to when the parties stayed with the wife’s parents. I do not accept the husband’s submission that these two matters cancel each other out entirely. It is convenient for the husband to say his two redundancies equal the amount he acknowledges the wife’s parents gave them. I accept the wife’s evidence that her parents also gave smaller amounts to them at various times . It is not possible to identify all of the sums.
Gifts given by the wife’s parents
The parties acknowledge the wife’s parents were generous. The parties disagree about how much they were financially assisted by the wife’s parents over the course of the relationship. The wife said throughout the relationship the parties were frequently gifted with payments via cash, bank transfer or cheque for various expenses from her parents.
In addition to the initial $60,000, the husband concedes that approximately a further $89,000 was paid by the wife’s parents’ during the period of 2007 to 2017.
The wife asserts $172,478 was gifted from her parents over seventeen years in addition to the initial $60,000. The wife lists specific sums at paragraph 116.3 of her trial affidavit. She was able to verify various amounts which the husband conceded. There are other amounts where she has some documents that refer to specific amounts but as the husband’s counsel submitted, they do not show who paid the amounts. With respect to expenses incurred in 2007, the wife refers to the parties taking out a further mortgage for renovations.
The husband, during cross-examination, could not recall specific dates when they received payments, but he conceded the wife’s parents provided financial support on numerous occasions throughout their relationship. He readily conceded that they were generous. He conceded specific amounts when presented with documents. With respect to other figures, he admitted it was possible those payments came from the wife’s parents, but he could not recall. The husband said he could not recall the wife’s parents giving them cash but said at times they provided assistance such as buying food.
The husband’s counsel in closing submissions submitted that the husband could not agree to many of the figures provided by the wife as it has been too long ago. He refers to paragraph 116.3 of the wife’s trial affidavit where she outlines all the financial contributions made by her parents. Out of those numbers a value of $88,768 is agreed to by the husband. It is the husband’s case that some of these other payments said to be made by the wife’s parents may have happened. However, it is the wife’s case to prove they did and that there is nothing in the wife’s affidavit that would assist the court in making that determination. It is opinion evidence and little weight should be given to it. Counsel specifically drew attention to sub-paragraphs 116.3.2, 116.3.3 and 116.3.4 which totalled $10,000 and 116.3.5 of $21,360 where the husband was provided an invoice. However, counsel for the husband submits that nothing was put to the husband to show that invoice was paid and by whom. Counsel further referred to sub-paragraph 116.3.14 being the $25,000 paid for Motor Vehicle 3 stating that again a bank cheque was shown to the husband however it was not put to the husband that that cheque was applied for the benefit of the family. The husband however did not offer other explanations as to how the car was funded.
On the state of the evidence, it is not possible to establish how some of those invoices were paid. I do accept that the wife’s parents made significant contributions on behalf of the wife throughout the relationship in the various ways discussed. The wife produced bank statements showing transfers and deposits from her parents. The wife referred to them making regular payments as well as larger lump sums.
The parties’ employment
The wife was employed as a professional at J Company in 1999. The husband was working as a professional. They earnt similar incomes. The husband worked full-time throughout the relationship.
The husband is currently employed full-time as a worker in construction and supplements his main income by working as a arts teacher and entertainer. His income from construction varies depending on how much overtime he does. I will discuss his earnings as a arts teacher and performer separately.
The wife worked full-time until the birth of the children, Ms D in 2006 and Ms E in 2007. The wife then became the primary carer and homemaker, and the husband continued to work full-time. The wife returned to casual part-time work 12 months after Ms E was born where she worked at a retail store in Suburb K on Friday nights, Saturday morning and some Sundays from 2008 to 2009. From 2011 to 2012 the wife worked as an educator at L Centre, three days a week.
The wife has worked as an educator at M School in Suburb N since 2013. The wife said she currently works on a full-time basis in accordance with the school hours, 8:30am to 3:00pm, earning a taxable income in the last financial year of $52,495. The husband disagrees that the wife is currently employed on a full-time basis by working 30 hours a week.
The husband says in his trial material that the wife is not exercising her income earning capacity. The husband focused a lot on the fact that the wife works 30 hours a week and complained that the wife was not working full-time. Typically, full time work is 38 hours a week. The wife says her employer increased her work hours at her request in August 2023. Prior to that she had been working four days a week from 9.00am to 3.00pm. In 2024 her employer increased the mother’s hours so that she now starts at 8.30am. The wife’s evidence is that she is working the maximum hours she can as an educator which is school hours five days a week from 8:30am to 3.00pm. She earns around $61,000 a year. The wife agreed when cross-examined that when considering her hourly rate on her pay slip that her annual income is $61,000 not $52,000 which is the figure she used in her trial affidavit which she says was based on her 2024 tax return. The husband’s counsel suggested that the wife was not being truthful in this regard. I do not accept that. The wife also conceded that the figure for her weekly income in her financial statement sworn on 26 February 2025 was incorrect. She annexes several letters from her employer to her trial affidavit when her hours have varied. I am satisfied that the wife is working the maximum hours available to her at her employment.
The husband says that the wife can gain alternative employment based on her qualifications in marketing and business management, and it would be a good for their children to see that their mother is hardworking. The husband claims the wife utilised her qualifications during her employment at J Company. The wife worked at J Company before she had children as a professional. She has tertiary qualifications which was required for that role. When cross-examined, the wife said she earned $55,000. The husband’s counsel asked if she had looked at returning to that type of work. She said no. The wife has not worked in that industry in many years. What she earnt then is similar to what she earns now. It is unrealistic to think that she is likely to be able to return to that work at over 50 having been away from that area in so long. Furthermore, there is no evidence that the wife would earn a greater income in that industry. The wife conceded that despite her various health conditions she works five days a week. I am satisfied that the wife is exercising her earning capacity. I reject the husband’s argument that the wife could seek alternative employment and receive a higher income. There is no evidence to support this.
The husband’s work as an entertainer and arts teacher
The husband is a talented entertainer. He plays an instrument. He has been very involved in the Country O community for many years. During the relationship he worked in construction and he earned money for performances on the weekends and also taught paying students. The extent to which the husband engaged in these activities during and after the relationship is in dispute. He has continued to do this post-separation although claims he has reduced his commitments. The husband confirms that some students pay him in cash, some pay via bank transfer which is reflected in his bank statements.
The wife says that the husband after work taught arts students four nights a week. The husband says this is incorrect, and he did not teach four nights a week. In his trial affidavit the husband claims that during the marriage on average he would have 15 students at a time. In his affidavit in reply, the husband claims that he now teaches students two to three nights a week and concedes that he charges $50 to $70 a lesson. He claims that since separation he has reduced the number of students he teaches and currently has nine students.
He also outlines different rates he charges for performances depending on their type. He says during the marriage he would do an average of 50 performances a year. He says now he does an average of 20 performances a year. The wife says typically the husband would perform two gigs on a weekend and sometimes three. In his affidavit in reply, the husband states that he would avoid scheduling performances on Friday nights and rarely had them on Sundays due to working the following day. Instead, he would prioritise Saturdays as those were usually the night for weddings. The amount would ebb and flow throughout the year with summers and other periods of cultural significance. I accept this. I do not however accept that the demand for his services has reduced.
The husband claims that he has reduced his entertainment work post-separation because of his construction job and regularly needing to work overtime. He does not explain why this has changed post-separation. In light of how unreliable his evidence was with respect to this topic, I do not accept that his entertainment work has reduced as he claims. He may have done less work in entertainment when working overtime. When working overtime, the husband earns more from his construction work even if he is earning less from entertainment and vice versa.
The husband conceded that the figures he provided to the ATO, which were based off a spreadsheet he formulated, did not represent all his performances and tutoring. The husband said he did not deliberately intend to mislead the Court, and it is possible he missed entries in his spreadsheet due to human error. The husband’s disclosure is unsatisfactory. The true number of the husband’s income is difficult to ascertain due to the inconsistencies in his financial statements.
The husband’s financial statement is also incorrect with respect to the money he earns as a an entertainer and arts teacher. He put the figure of $200 a week for his “hobby”. It is more than a hobby. The husband’ financial statement is also not completed correctly. Part N is not completed as is required. I am unable to make the finding the wife’s counsel seeks that the husband has deliberately failed to make to make full and frank disclosure and was deliberately misleading about his financial position.
In her trial affidavit the wife refers to the husband’s estimated earnings from his entertainment work of $14,000 a year and says she estimates that he “conservatively earns more than $94,000 a year”. Whilst it is clear that the husband earns more from his entertainment work than he admits, I do not accept that it is as much as the wife claims. If that sort of money was coming in then they would not have needed as much assistance as the wife claims they received throughout the relationship. I do not accept the husband’s counsel’s submissions that the husband was an impressive and truthful witness. There were issues with aspects of both parties’ evidence. The wife was often defensive and non-responsive. The husband’s evidence particularly with respect to his finances and earnings from his work was unclear. I accept that his entertainment career is an important part of his identity but it does not flow that he would teach and perform for free. There is the occasional performance he does for a friend or a fundraising event. He earns cash from some of his performances and students. He would have significant sums of cash at home. In his closing submissions, the husband’s counsel there was about 29 performances disclosed and about 30 omitted. That is a significant number, and I cannot be satisfied that there are no other performances that have not been disclosed. The husband’s tax returns with respect to his income from entertainment activities are wrong and underestimated.
Other contributions
Both parties made other contributions of various kinds. The husband was the primary income earner. The wife was primarily responsible for the care of the children, noting that the husband worked full-time but also spent significant periods of time on weeknights and weekends on his entertainment work which he was able to do because the wife was caring for the children. The wife also contributed financially returning to part time work.
The husband also contributed the two redundancy payments he received.
Post-separation contributions
It is not disputed that after separation, the wife became the sole carer for the children as their relationship with their father had broken down. At the time of separation, Ms E was 15 and Ms D was 17. In the wife’s trial affidavit, she deposes to taking the children to school and other extracurricular activities as well as medical appointments. She sets various expenses she has incurred for herself and the girls in her trial material. Ms E is currently finishing year 12 and Ms D has completed her VCE.
The husband pays child support as assessed. The payment of the girls’ school fees is no longer in issue.
The wife refers to repairs and maintenance expenses she has incurred for the Suburb C property. There is no mortgage on the property. Given she has remained in that property since separation, a little over two years ago, it is reasonable that she pay these expenses.
Section 75(2) factors
There is a dispute between the parties in relation to the s.75(2) adjustment in favour of the wife. The wife is seeking an additional 15% in her favour. The husband argues no adjustments should be made for either party. There are several factors under s.75(2) that favour a small adjustment to the wife including her care of Ms D and Ms E and the fact the husband has re-partnered. There is also an income disparity between the parties. This disparity exists without including the husband’s earnings from his entertainment work.
The husband is 52 and is currently in good health. He complains about some medical conditions. The wife is 53 and is currently managing medical conditions. The wife talks about the need for treatment for pain. There is nothing in the evidence which suggests that these conditions impact on her capacity to work. Given the parties ages it is not surprising that they have some medical complaints. This factor is neutral.
The parties have two children of the relationship. The wife no longer receives child support payments for Ms D due to her age. Ms E is currently in year 12 and will turn 18 this year. Child support for Ms E will cease in November 2025. The husband said he pays $1,849 per month in non-periodic child support for Ms E. He also pays for Ms E’s secondary education which the husband estimates to total $9,000 for this year. The wife says that she will continue to be responsible for their daughters’ expenses whilst they live with her and go to university. Once the girls finish school their parents may have a moral but not a legal obligation to support their children. Of course it is common for parents to provide support to their adult children if they are able to do so. This is not a matter than can be given much weight.
The husband has re-partnered and currently resides with his new partner. He pays $350 a week in rent according to a rental agreement he prepared. His partner owns the house. He does not know how much the mortgage is. This is a relevant consideration as he has the benefit of sharing expenses with a partner. The rent he is paying is modest. It is perfectly reasonable for the husband and his partner to want to acknowledge the fact that she owns the home they now share. This is a factor that favours the wife as she has not re-partnered.
The husband’s counsel suggested that the wife could live with her mother. There is no evidence with respect to this. It is not a reasonable standard of living to expect the mother to live with her parent in her fifties.
The husband submitted that the wife has an expectancy of an inheritance when her mother dies. There is insufficient evidence for me to give this factor any weight as there is no evidence as to her mother’s health and her estate.
There is a disparity between the parties’ income. The husband’s income from construction varies depending on how much over time he works. The average taxable income he has earnt from construction over the past three years is $125,000. This is approximately double the wife’s salary. In addition to this he has the income he earns from his entertainment work. The husband’s counsel sought to minimise the husband’s failure to properly record his income from his work. This is not simply a matter of a few accidental omissions. It is more extensive than that. The criticism of the wife not disclosing the advertisements she found of the husband’s performances post-separation is unreasonable. It was a perfectly orthodox cross-examination in this regard and should not deflect from the husband’s careless and haphazard record keeping. He was well aware that the extent of his income from his entertainment work was one of the major issues in dispute in this case. The husband even filed a third financial statement three days before the trial as the one he filed the month before had errors.
CONCLUSION WITH RESPECT TO PROPERTY
The husband will keep:
(a)Motor Vehicle 1 $24,000
(b)Bank accounts $4,013
(c)Musical instruments $18,600
Total: $46,613
This represents 1.53% of the non-super pool. The total-superannuation pool is $521,763.
The wife will keep:
(a)Motor Vehicle 2 $31,000
(b)Bank accounts $10,122
Total $41,122
This represents 1.35% of the non-super pool.
The only other asset to be divided is the net proceeds of the Suburb C property. The market will determine the selling price. Both parties will receive a significant cash sum.
Both parties filed several financial statements during these proceedings. They are sworn documents. Both were cross-examined about the inaccuracies in those statements. Similarly with respect to his entertainment earnings, the husband’s financial statements are also unreliable. There were careless mistakes such as referring to Ms D being a member of his household when neither daughter has spent time with him post-separation. Under cross-examination the husband was not able to explain why there was variations in his income but no change to his tax payments. He also could not explain the variations in his expenses and particularly the increase in expenses when the wife was pursuing an application for child support departure. All three of his financial statements contain inconsistencies which as well as his entertainment earnings, cannot be explained as mere mistakes.
Both parties worked hard during their relationship. Whilst there was some disagreement as to the extent of their work on renovations for example, it is necessary to consider their respective contributions holistically. During the period of the major renovations in 2007, the wife was responsible for caring for their very young daughters, freeing up the husband to work and carry out work on the renovations after work. I accept that the wife and her father also gave some assistance with respect to the renovations, but it is likely that the husband did more.
Whilst I do not accept the submissions by the wife’s counsel that this is a case where the authority of Chang & Su [2002] FamCA 156 applies, I cannot be satisfied that the husband has deliberately hidden income. The husband’s evidence about his income from his entertainment work is unreliable and I am unable to find that this income can be capped in a way the husband’s counsel sought.
I must consider the contributions made by the parties and on their behalf holistically. The husband draws attention to the wording of s.79(4)(c) and addresses contributions to the welfare of the family. In contrast to s.79(4)(a) and (b) there is no reference to “by or on behalf of a party”. The husband’s counsel submits that the contributions made by the wife’s parents caring for the children, which the wife deposes to such as when she returned to work part time, cannot be considered under this subsection due to the wording of the subsection. In some cases, this may be a significant consideration which could nonetheless be taken into consideration under s.75(2)(o). It is not necessary in this case as it is a minor matter when considering all the other contributions.
There is no presumption or starting point that the contributions should be equal even in long marriages. I have considered all the parties’ contributions holistically. I find that that there should be an adjustment of 2.5% for contributions in the wife’s favour. This is a 5% difference which is a differential of $151,886.75. This is a modest adjustment as it was a long marriage, and both parties worked hard but there needs to be some recognition of the significant contributions made on the wife’s behalf by her parents throughout the relationship.
Both parties have incurred significant legal fees in similar amounts of approximately $105,000. The difference is that the husband has been able to pay $65,000 of his legal fees whereas the wife has paid $4,000. Both will be able to pay their outstanding legal fees and have significant funds left.
There does need to be an adjustment in the wife’s favour for s.75(2), primarily due to the disparity in the parties’ income. I will make an adjustment of 7.5% in the wife’s favour. This represents a differential of $455,660.
Both parties seek that their superannuation entitlements be equalised with a superannuation splitting order. Their total superannuation entitlements are $521,763. The parties have accumulation funds. Neither party meets a current condition of release. Both will continue to work for some time. There is no evidence as to what their respective superannuation entitlements were at the beginning of the marriage. The amounts would have been modest given how young the parties were when they married. I am satisfied that it is just and equitable to split the parties’ superannuation entitlements equally. The parties will each have $260,881.50 in superannuation entitlements.
Given that that the parties will retain assets of similar small amounts I will order that the net proceeds of sale of the Suburb C property be divided as to achieve 60% to the wife and 40% to the husband of the non-superannuation pool as this is simpler and the other amounts are trifling.
I am satisfied that this outcome is just and equitable.
SPOUSAL MAINTENANCE
Now that I have determined the property adjustment, I turn to the wife’s application for maintenance. It is necessary to determine the property adjustment orders first as depending on the outcome this may result in there no longer being a need for maintenance. As a result of the property orders the wife will receive 60% of the non-superannuation pool. It is well established that a person does not need to spend all their resources before seeking maintenance. In considering whether or not the wife can adequately support herself, it is not simply a matter of looking at her income but also her property and financial resources. I have outlined these above.
The wife must establish she meets the threshold in s.72 of the Act. The wife is 53 years of age and is currently managing medical conditions. She is also currently in full-time paid employment as an educator. She conceded that her income is approximately $61,000 and not $52,000 as recorded in her trial affidavit.
It is then necessary for me to consider the relevant provisions in s.74 and s.75(2) of the Act. In determining whether the wife has the means to support herself from her own resources, I am not restricted to considering the pre-separation standard of living the parties enjoyed. I must consider what is reasonable in the circumstances.
The wife says she is unable to support herself from her own resources and seeks an order that the husband pay her maintenance of $500 per week for five years. This amounts to $130,000 after tax.
The husband argues that the wife has not established a need for maintenance and seeks her application be dismissed.
In the husband’s financial statement filed 20 February 2025 he claims to pay $250 a week for a NAB visa card but does not show any amount owing on the credit card. In that same statement he discloses paying $350 a week rent to his partner but does not disclose her as an income earner in the household.
The parties disclose significantly different rates of child support being paid by the husband for Ms E. The wife says she receives $426 a week in child support. The husband says he pays $709 a week. Page 112 of the court book is a direct credit for child support made on 11 February 2025 for $1,849. This monthly figure works out to be $426 a week.
In his March 2025 financial statement, the husband does include Part N but it is completed incorrectly. He has simply filled out the totals and has not apportioned his expenses between himself and the other adult in his household as required.
Looking at the wife’s financial statement her estimated income should be $173 a week more reflecting the fact that her income is $61,000 not $52,000 a year. Her income tax payments would also increase slightly. The wife disclosures expenses for herself in Part N of $672 a week. With respect to petrol and car maintenance of $195.00 a week, she does not apportion any of this to the children. This must be an error as I do not accept that the wife never drives with the children. The wife has attributed all of the house repairs of $81.00 a week to herself. Some should be attributed to the children.
The wife outlined expenses for her and the children in her trial affidavit. She was cross-examined about this. She agreed that she carefully looked at her statements when working out her expenses. It is apparent from her evidence generally that she keeps detailed records and was able to produce documents from the time the parties bought the property. When the figures were put to her she conceded that the figure for food in her trial affidavit was based on her analysis of her expenditure and her total expenditure on food was not $500 a week but $380 a week. Her portion is $152 a week not $200 a week.
As pointed out by the husband’s counsel once the Suburb C property is sold she will not have expenses for rates, house repairs and property insurance. The wife will have other expenses but these are unknown.
The wife does not provide an explanation as to why an order for maintenance for five years is necessary. She also does not provide an explanation for the need of $500 a week. After the property adjustment the wife will have $1,822,641. That sum will allow her to pay her debts and to have funds to rehouse herself and the girls. The wife does not provide any evidence as to her intentions with respect to further living arrangements whether it be buying a home or renting a home and investing a lump sum. In all of the circumstances I am not satisfied that the wife has met the threshold in s.72 of the Act and is unable to support herself from her own resources. Given this it is not necessary to consider whether or not the husband has the capacity to pay. I dismiss the wife’s maintenance application.
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland. Dated: 20 June 2025
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