Marcos & Serina - [2023] FedCFamC2F 1474

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Marcos & Serina [2023] FedCFamC2F 1474

File number: MLC 11351 of 2020

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 17 November 2023

Catchwords: FAMILY LAW – final property orders – de facto relationship – not a long relationship – both parties brought in and retained separate assets and residences – no jointly owned property – respondent was wealthy – applicant self-employed-consideration of whether any orders were just and equitable – search for principled reason to alter property of parties – section 90SM(3) just and equitable consideration – section 90SM(4) and section 90SM(3) not to be conflate – whether principled reason for alteration of property – application dismissed

Legislation:
Evidence Act 1995 (Cth) s140

Family Law Act 1975 (Cth) ss 4AA, 79, 90SF, 90SM

Cases cited:
Bevan and Bevan (2013) FLC 93-545

Chapman & Chapman (2014) FLC 93-545

Fox v Percy (2003) 214 CLR 118

Keskin & Keskin and Anor (2019) FLC 93-932

Stanford v Stanford (2012) 247 CLR 108; 293 ALR 70; 47 Fam LR 481; FLC 93-518; [2012] HCA 52

Division: Division 2 Family Law

Number of paragraphs: 165

Date of hearing: 10 & 11 March 2022

Place: Melbourne

Counsel for the Applicant: Mr G. Glezakos

Solicitor for the Applicant: Nicholes Family Law

Counsel for the Respondent: Mr J. Mellas

Solicitor for the Respondent: Lander & Rogers
ORDERS

MLC 11351 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS MARCOS

Applicant

AND:
MR SERINA

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

17 NOVEMBER 2023

THE COURT ORDERS THAT:
1.The amended application of Ms Marcos filed 13 January 2022 be and is dismissed.
2.That the Wife do all acts and things to cause any caveat lodged by her on or over the title of any property owned or controlled by the Husband to be removed by her at her expense within 30 days.
3.All extant applications be and are otherwise dismissed.

AND THE COURT NOTES THAT:
A.It was determined it is not just and equitable to make any property alteration orders.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
INTRODUCTION

The Applicant, Ms Marcos (‘the Wife’), and the Respondent, Mr Serina (‘the Husband’), who lived together in a de facto relationship,[1] cannot agree whether there should be or should not be a property settlement or division of their assets, and if there is to be such, what any settlement should be.
[1] Although more accurately described as de facto husband or de facto wife, for convenience I will describe the parties as ‘Husband’ and ‘Wife’.
The Wife seeks a property division of 40/60 in the Husband’s favour. She seeks a cash payment equivalent to what would be 40% of the total asset pool including superannuation (on her case in the realm of $1,000,000) to be transferred to her. The Husband seeks that there be no property alterations and for the Wife’s application to be dismissed.
BACKGROUND
The Wife was born in 1958 and at the time of the final hearing was aged 63 years. She owns a business where she works and maintains good health, save for a medical condition. The Husband was born in 1955 and at the time of the final hearing was aged 66 years. He retired from operating a business in 2017 and relies on funds from a self-managed superannuation fund and rental income. He enjoys good health.
The parties had earlier commenced a relationship in 2007, maintaining separate residences but spending overnight time at each other’s homes. The Wife resided in a property she owned in Suburb B and the Husband rented a property in Suburb C. The Wife has two children and the Husband has one child from previous relationships, all of whom were under the age of 18 years at the commencement of the relationship. In 2009, the Husband purchased, in his sole name, and moved into a “commercial property/home” in Suburb D (‘the Commercial Property’) with a mortgage of approximately $2 million.
In late 2012, the Wife sold her property in Suburb B for $589,000, retaining the sale price less fees after settlement in early 2013 for herself. At the time of that sale the Wife looked to apply the proceeds to another property to be purchased in her sole name. The Wife moved into the Commercial Property with the Husband and I am satisfied that a de facto relationship within the definition of section 4AA commenced[2]. By the end of the case it was not disputed the de facto relationship had commenced in late 2012, when the Wife moved into the Commercial Property. The parties disagree whether this was a then intended to be a temporary or permanent residence arrangement.
[2] In affidavit the Husband had asserted that this was not the start of their de facto relationship, that that had commenced later when the parties moved into the residence the Wife subsequently purchased but this was not maintained at final hearing. In outline of case the Husband was ambiguous about whether the cohabitation until 2017 constituted a de facto relationship under the Act.
In mid-2013 the Wife purchased a property in Suburb E (‘the Suburb E property’) in her sole name for $615,00 using the sale proceeds of the Suburb B property and the remaining funds from a mortgage. After settlement, the Wife decided to undertake, and commenced, renovations. The Wife remained living in the Commercial Property with the Husband whilst renovations were undertaken on the Suburb E property. I am satisfied the Wife intended to move to the Suburb E property when renovations were completed. In 2014, one of the Wife’s children moved into the Commercial Property for approximately 12 months with the parties and the Husband’s son.
In early 2017, the Husband sold the Commercial Property for approximately $7 million. In early 2017, the Husband purchased, in his sole name, a property in Suburb F (‘the Suburb F property’) for almost $1.5 million (free of mortgage), utilising funds from the sale of the Commercial Property for the purchase. At settlement of the sale of the Commercial Property, and after purchase of the Suburb F property, in early 2017 the Husband had retained just over $3.5 million net sale proceeds. The Husband commenced substantial renovations to the Suburb F property and at the time he purchased the property intended to move there when renovations were completed.
In early 2017 the parties moved into the Wife’s Suburb E property together[3] where they remained until separation.
[3] This is when the Husband has asserted in affidavit that the de facto relationship commenced but did not pursue this point at hearing.
In early 2017, through a trustee company, the Husband purchased a property in Suburb D (‘the Suburb D property’) in his sole name, for almost $1.5 million using some of the sale proceeds of the Commercial Property. In mid-2017, the Husband contributed $1 million to his self-managed superannuation fund. In early 2018, the Wife purchased a new Motor Vehicle 1 for $46,000, with the Husband contributing $29,000.
The relationship ended when they separated in January 2020 and the Husband moved out of the Suburb E property. The Wife alleges the relationship foundered on the rock of the Husband’s illicit drugs use and infidelity. The Husband denies infidelity. It is common ground that the parties used illicit drugs together but in the later stage of the relationship the Wife regarded the Husband’s use as excessive.
I am satisfied they cohabited in the same residence from late 2012 until January 2020. From late 2012 until about early 2017 the parties lived at the Commercial Property. From mid-2013 until 2018, the Suburb E property was being renovated. When the renovations were completed sufficiently for comfortable cohabitation, and the Commercial Property sold, the parties moved to cohabit in the Suburb E property until the end of their relationship in January 2020. They cohabited for about seven years and one month. That was for about four years in the Husband’s Commercial Property and three years in the Wife’s Suburb E property.
It is common ground that:[4]
85. For the duration of the relationship [the Husband] and I maintained separate finances and we do not hold any joint bank accounts or credit card accounts. We have not acquired any assets in joint names, nor do we own any real estate together.
[4] See the Wife’s trial affidavit at [85].
The Husband characterised the financial aspects of the relationship thus:[5]
14. I seek Final Orders from this Honourable Court that [the Wife]'s Application be dismissed and that no adjustment be made to our respective property interests, on the following basis:
(a) [The Wife] and I each brought our own assets into the relationship, including our own homes.
(b)During the relationship we did not blend our finances, hold any joint bank accounts, or acquire any joint assets ([the Wife] herself deposes to this at paragraph 19 and again at paragraph 85 of her Affidavit). We each applied our incomes towards our own assets. We kept our respective assets and finances separate from one another and made independent financial decisions regarding our respective assets, without recourse to the other, throughout our relationship. …
[5] See the Husband’s trial affidavit at [14].
The statements of the Husband recited above are not disputed save that the Wife qualifies the financial separateness of the couple by asserting, and I accept, “we did pay for things for each other … and to that extent we did share finances”. The Wife also asserted, and I accept, that where she spent money for the benefit of both of them, for example on holiday, she was usually reimbursed that expenditure by the Husband.
The Husband contends that the Wife necessarily had to move when she sold her Suburb B property. She had not purchased a replacement property and so, he says, she moved into his home, the Commercial Property, temporarily until her next property was available to live in. Implied in his case was that it was not expected that the Suburb E property, purchased some months after the Suburb B property was sold, would end up taking years and years to renovate. This much is not disputed. What is disputed is whether the Husband paid some $120,000 for renovations of the Suburb E property or a still substantial but much lessor sum of about $31,000. I am satisfied that neither the Husband or the Wife kept any record, or even rough track, of what either of them spent on renovations to the Suburb E property, or what the other spent. It is also common ground the Husband paid for some renovation services and items in cash.
I am not satisfied that either party has a reliable or accurate record of what either spent on renovations to the Suburb E property, but I am satisfied that substantial sums were spent over a number of years by the Husband, and spent without quibble or issue.
The Husband worked and lived until his retirement at the Commercial Property. He sold the Commercial Property in early 2017 and purchased the Suburb F Property. The Suburb F property also underwent renovations. The Husband asserted that he intended to move into the Suburb F property when renovations were complete and so he temporarily moved in with the Wife to her Suburb E property to live at her place as she had lived at his. Whatever their initial intentions about residence, as the parties moved from place to place they maintained an intimate and sexual relationship and lived together as a de facto couple. By the end of the case, it was common ground that the Wife undertook the majority of the cooking (when at home) for the two of them while the Husband paid for the majority of their lavish lifestyle.
Throughout the relationship, and since, the Wife has maintained her own business and earned a modest income from that. The Husband retired from his trade in 2017 (when the Commercial Property was sold) and thereafter has lived on his own substantial capital and the income generated from that capital.
THE PROCEEDINGS
On 19 October 2020 the Wife issued proceedings in this Court. At the first return on 9 February 2021, consent orders were entered into which provided for joint valuations of the parties’ properties, full and frank disclosure and attendance at mediation.
The matter returned on 10 May 2021 and an unsuccessful attempt to resolve the matter at mediation. The matter was set down for final hearing on 24 March 2022 with trial directions.
On 4 August 2021 the matter was listed in the winter call over with the Chief Justice and adjourned for the parties to attend mediation. On 14 September 2021 the parties again attempted mediation but were unsuccessful in resolving and there remained significant issues in dispute.
On 23 September 2021 the parties were notified that the Final Hearing would be brought forward by two weeks.
FINAL HEARING
The matter proceeded for Final Hearing on 10 May 2022 via Microsoft Teams over two days.
I acknowledge this judgment is well outside the three-month guideline for judgments of this Court and I apologise to the parties and their lawyers for the delay. I have re-read the affidavits of evidence in chief and the exhibits, and I have read the transcript of the proceedings. I recall the demeanour of the parties as witnesses, the evidence, the issues and the rhythm of the trial.
Documents relied upon
The Wife relied upon the following documents:
·Amended Initiating Application filed 13 January 2022;
·Affidavit of the Wife filed 13 January 2022 (‘Trial affidavit’);
·Affidavit of Mr G filed 13 January 2022;
·Affidavit of Mr H filed 13 January 2022;
·Financial Statement filed 13 January 2022;
·Affidavit in Reply filed 17 February 2022 (‘Reply affidavit’).
The Husband relied upon the following documents:
·Response to Initiating Application filed 1 February 2021;
·Affidavit of the Husband filed 27 January 2022 (‘Trial affidavit’);
·Financial Statement filed 27 January 2022;
·Affidavit of Mr J filed 27 January 2022;
·Affidavit in Reply filed 23 February 2022;
The Husband had relied upon a valuation of the Suburb D property filed early 2022 and valuations of the Suburb E property and the Suburb F property were filed early 2022, but I did not read them as the values were agreed.
Exhibits tendered
Exhibits tendered during the Final Hearing are as follows:
·A1:     Tax invoice from removalists dated late 2012 exhibited 11 May 2022;
·A2:     Letter from Nicholes Family Law to Landers & Rogers dated 20 August 2020 exhibited 11 May 2022;
·R1:     Letter from Landers & Rogers to Nicholes Family Law dated 26 March 2021 exhibited 11 May 2022;
·R2:     Letter from Nicholes Family Law to Landers & Rogers dated 13 April 2021 exhibited 11 May 2022;
·R3:     Letter from Landers & Rogers to Nicholes Family Law dated 14 April 2021 exhibited 11 May 2022; and
·C1:     Email sent from chambers dated 31 March 2022 exhibited 31 March 2022.
In this case of trial by affidavit it is significant and ultimately helpful that each party filed affidavits as follows;
·The Wife, as applicant, filed her trial affidavit on 13 January 2022;
·The Husband filed his trial affidavit on 27 January 2022, including a paragraph by paragraph reply to the Wife’s trial affidavit;
·The Wife then filed a “reply” affidavit on 17 February 2022 that responded, paragraph by paragraph, to the Husband’s trial affidavit, including that part of his affidavit that responded to her trial affidavit.
·The Husband then filed a reply affidavit on 23 February 2022 that responded to the Wife’s reply to his trial affidavit and to her reply to his response to her evidence in chief.
Therefore, each party had replied to the other’s initial evidence and had also replied to the other’s replies. Hence the factual disputes were well ploughed paddocks. All affidavits included catch-all phrases; “I have not replied to every paragraph…and this should not be construed as me admitting to any assertions to which I have not replied” (from the Husband’s reply affidavit) and, without intended irony, “To keep matters contained, I do not propose to respond in detail to every assertion made by [the Husband] in his Affidavit. Where I do not respond to a statement made in [his] Affidavit, I do not intend this to be an admission of that assertion” (from the Wife’s reply affidavit).
I will accept the parties’ entreaties not to regard something not replied to as an admission. However, where I have significant relevant issues raised, I have some evidence that is not contested, although it is not admitted. Evidence being not contested goes to the weight of that evidence.
Witnesses
The parties and Mr G, the Wife’s ex-husband, were cross-examined.
Mr G gave short evidence about the substantial money he provided to the Wife for her legal fees. The evidence given by the Wife about that money and its terms and conditions is not entirely consistent with the evidence of Mr G. I prefer the evidence of Mr G.
The parties’ evidence in affidavit was not entirely accurate. For example, the Wife deposed to having spent three nights per week “as well as” weekends with the Husband prior to formally residing at one property. Under cross-examination, the Wife clarified that it was up to three nights per week including weekends. Such evidence paints quite a different picture than the deposed material. Conversely, the Husband deposed to the relationship being “casual” in nature prior to the parties residing together, but under cross-examination conceded that they were in an exclusive relationship during that period. Such inconsistencies by both parties made me look very carefully at their evidence.
APPLICABLE LAW
Standard of proof
In these reasons, statements of fact are findings of fact. Findings are made on the balance of probability. A party alleging a fact carries the burden of proving it. I apply section 140 of the Evidence Act 1995 (Cth) (‘the Evidence Act’) which states as follows:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject-matter of the proceeding; and
(c)       the gravity of the matters alleged.
Reliability and Credit of the parties
In Fox v Percy (2003) 214 CLR 118 (‘Fox v Percy’), at first instance, the rider of a horse was found to be a more reliable witness than the driver of the Kombi Van that had collided with oncoming horses and riders who were coming around the bend. The issue was upon which side of the road the collision occurred. The Court of Appeal of the Supreme Court of New South Wales had to interfere with the first instance decision where it had been incorrectly determined, by reason of the apparent reliability of the witnesses, that the collision occurred on the Kombi Van’s wrong side of the road. The Court of Appeal found the first instance decision was wrong because of the position of the braking skid marks of the Kombi Van that were in evidence. The skid marks of the Kombi Van incontrovertibly demonstrated that the Kombi Van had been on its correct side of the road at the point of collision. The High Court found that the Court of Appeal was justified in upholding the appeal upheld their findings.

When discussing the drawing of conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses, the plurality of the High Court observed:
[31]…in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events…
[Citations omitted]
I have endeavoured to rely on common ground, objectively established facts and the apparent logic of events in this case as well as the evidence and demeanour in the witness box of the parties. I am satisfied that the parties were not dishonest witnesses although their affidavit evidence, and the Wife’s oral evidence, was influenced by what each understood would advance their case.
THE APPLICABLE LAW OF PROPERTY ALTERATION
The property orders dispute falls to be determined by application of Part VIIIAB of the Act and in particular the provisions of sections 4AA, 90SF and 90SM of the Act. There was no dispute that the parties were in a de facto relationship as described in section 4AA of the Act, but there is a dispute with respect to whether any property alterations should be made.
Relevant parts of applicable legislation include the following:
4AA    De facto relationships
Meaning of de facto relationship
(1)      A person is in a de facto relationship with another person if:
(a)the persons are not legally married to each other; and
(b)the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
…
Working out if persons have a relationship as a couple
(2)      Those circumstances may include any or all of the following:
(a)the duration of the relationship;
(b)the nature and extent of their common residence;
(c)whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e)the ownership, use and acquisition of their property;
(f)the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h)the care and support of children;
(i)the reputation and public aspects of the relationship.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
…
90SF    Matters to be taken into consideration in relation to maintenance
…
(3)      The matters to be so taken into account are:
(a)the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship); and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)        himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e)       the responsibilities of either party to support any other person; and
(f)subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)       a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(i)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
…
(r)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; …
…
90SM Alteration of property interests
(1)In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them – altering the interests of the parties to the de facto relationship in the property…
…
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d)       an order requiring:
(i)        either or both of the parties to the de facto relationship; or
…
to make, for the benefit of either or both of the parties to the de facto relationship or a child of the de facto relationship, such settlement or transfer of property as the court determines.
…
(3)The 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.
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii)otherwise in relation to any of that last-mentioned property;
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship:
(i)to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or
(ii)otherwise in relation to any of that last-mentioned property;
whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; and
(c)the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the de facto relationship; and
(e)the matters referred to in subsection 90SF(3) so far as they are relevant; …
[Emphasis added]
Stanford & 90SM(3): …must not make an order…unless…satisfied…just and equitable
In Stanford[6] the majority stated some fundamental propositions about section 79 (married couple) proceedings. Those statements are also applicable for section 90SM of the Act (de facto couple) proceedings. In Stanford  the essential issue was whether it was just and equitable to make any property order at all. That same issue arises in this case. In Stanford the issue arose n circumstances where the consortium vitae or marriage relationship had not broken down by way of a separation and the Wife’s needs were otherwise provided for.
[6] Stanford v Stanford (2012) 247 CLR 108; 293 ALR 70; 47 Fam LR 481; FLC 93-518; [2012] HCA 52 (‘Stanford’)
The Family Court of Western Australia had made an order for a property settlement that would have necessitated the sale of the former matrimonial home where the husband continued to reside. For 37 years prior to the wife moving to a nursing home, the parties had made their matrimonial home in a house registered in the husband's name. The wife’s expenses in accommodation were being met and she had the benefit of a sum set aside in the event she needed anything further. It was the second marriage for both of the parties.
The High Court discharged the order of the Full Court and found that in the circumstances it was not just and equitable that a property settlement or property alteration order be made at all. This was so despite 37 years of marriage and contribution by the wife. Hence section 79(4) contribution, even 37 years of it, was not to be conflated with the section 79(2) “just and equitable” requirement but should be considered separately.
Apart from the general observations about section 79 the High Court also observed that it should not be concluded that the making of an order is just and equitable only because of, or by reference to, the matters in section 79 without a separate consideration of section 79(2).
The plurality observations included:
35. 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.
36. 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. And while the power given by s 79 is not “to be exercised in accordance with fixed rules”, nevertheless, three fundamental propositions must not be obscured.
37. First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property…
38.Second, although s 79 [and so s 90SM] confers a broad power …it is not a power to be exercised according to an unguided judicial discretion…
…
39. Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is “just and equitable” to make the order is not to be answered by assuming that the parties’ rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that “[c]ommunity of ownership arising from marriage has no place in the common law”. Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be “decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses”. The question presented by s 79 is whether those rights and interests should be altered.
40. Third, whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”. To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
41.… The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.
42.In many cases where an application is made for property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice by made by one or both of the parties, the husband and wife are no longer living in a marital relationship.[7] It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and the wife. No less importantly, the express implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship... And the assumption that any adjustment of those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).[8]
43.In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
[Citations omitted and emphasis added]
[7] Or de facto relationship.
[8] And/or section 90SM(3).
In Stanford the High Court did not go on to comment upon how section 79(4) should be applied where it was just and equitable that a property alteration or settlement order be made.  Stanford was not concerned with the nuts and bolts of how section 79(4) was to be applied in the ordinary run of cases, to the extent there is such a thing.
But before making any property order I must be satisfied that it is just and equitable to do so. I must first determine the “principled reason for interfering with the existing legal and equitable interests” of the parties in their property. Just how that should be done was addressed in the subsequent authorities of the Full Court of the Family Court of Australia, including Bevan and Bevan (2013) FLC 93-545 (‘Bevan Part 1’) and then Chapman & Chapman (2014) FLC 93-545 (‘Chapman’).
In BevanPart 1 the Full Court’s observations included:
81. The third “fundamental proposition” demands separate consideration of the preliminary question of whether it is just and equitable to make any order altering property interests before the need arises to consider the extent to which existing interests are to be altered and the manner in which that is to be done.
…
86. We do not consider it helpful, and indeed it is misleading, to describe this separate enquiry as a “threshold” issue. We say this for two reasons. First, as was emphasised in Stanford, the initial enquiry is to determine the existing legal and equitable interests of the parties. Secondly, although s 79(2) is cast in the negative and amounts to a prohibition against making any order unless it is just and equitable to do so, the corollary is that if the court does make an order, such order itself must be just and equitable: Woollams & Woollams (2004) FLC ¶93-195 per Thackray J at [53] and Teal v Teal [2010] FamCAFC 120 per Finn, Boland and Dawe JJ at [70]. The just and equitable requirement is therefore not a threshold issue, but rather one permeating the entire process.
87. It will be seen from this discussion that while the s 79(2) and s 79(4) issues must not be conflated, they are intertwined because the text of the Act links them. This was recognised in Ferguson & Ferguson where Strauss J said that s 79(2) “is directed to both the questions whether an order should be made at all, and what the order should be, if one is made” (supra at 77,615).
88. This understanding of the interplay between ss 79(2) and 79(4) accords with the analysis of Martin Bartfeld QC in his paper entitled “Stanford and Stanford — Lots of Questions — Very Few Answers”. In that paper, which we drew to the attention of counsel, Mr Bartfeld opined that:
49. … there is scope for taking into account the factors under s 79(4) in the exercise of the [s 79(2)] discretion. This can be accomplished, it is submitted, by treating the contribution factors and the factors under s 75(2) as having two simultaneous characteristics;
a. A discretionary characteristic, which is used to identify those matters which are relevant to enliven the exercise of the discretion. Thus the fact that a party has made substantial contributions, over a long period of time, which are not reflected in their asset holdings but which are reflected in the other party’s assets may found a basis for finding that it is just and equitable for an order to be made; and
b. An evaluative characteristic, which is used to measure the weight or to quantify the effect of a particular contribution.
50. The problem of conflation can easily be overcome by clearly identifying the use to which a factor is being put.
89. In our view, it will be less likely that the separate issues arising under s 79(2) and s 79(4) will be conflated if judges refrain from evaluating contributions and other relevant factors in percentage or monetary terms until they have first determined that it would be just and equitable to make an order. Ultimately, however, appellate error will not be demonstrated if it is possible to ascertain, either by reference to an express finding or by necessary inference, that the trial judge has given separate consideration to the two issues.

In Chapman, a Full Court case where both parties sought (different) section 79 orders, and hence on one view both parties pressed that it was just and equitable to make orders, the plurality were circumspect about some aspects of Bevan Part 1 as they feared that decision could be interpreted as containing a statement that it was mandatory or a “requirement” to take into account the matters of section 79(4) when considering the “preliminary” question of section 79(2) “just and equitable” consideration. It is clear that a consideration of section 79(4) and section 90SM(4), when considering section 79(2) and/or section 90SM(3) is not mandatory.
In this case, to determine the contested question about whether it is just and equitable to make a property settlement order at all it is necessary to determine and identify “the existing legal and equitable interests of the parties in [their] property” and examine the financial history of the relationship and the parties’ contentions.
The process of the first consideration of the Stanford examination overlaps with the first step of the orthodox “preferred” approach[9] where it is just and equitable to adjust parties’ property.
[9] See Keskin & Keskin and Anor (2019) FLC 93-932 (‘Keskin’)
The Husband’s property case
The Husband argued that there it would not be just and equitable for the Court to make any order pursuant to s 90SM of the Act and, therefore, the parties should each retain what is in their possession to the exclusion of the other.
In the alternative, if the Court was to find it just and equitable to make property alteration orders, the Husband argued that it is not just and equitable for any further adjustments to be made as the Wife already received such adjustment throughout the parties’ relationship. In this circumstance, the Husband seeks that I adopt an asset-by-asset approach to the parties’ respective entitlements.
The Husband asserted that the $1,103,798 previously sought to be “added back” by the Wife should be regarded as a contribution, or as part of his contribution, and I understood that to be pursuant to section 90SM(4).
The Husband asserts that at the start of their de facto relationship he brought in about 94.6% of the value of the parties’ combined assets. He asserts that the Wife sold her Suburb B property and temporarily moved into the Commercial Property until she bought her next home (the Suburb E property) and/or until renovations there were finished. He asserts that from some time in 2017 until the end of the relationship he temporarily lived at the Suburb E property until he bought his next home (the Suburb F property) and it was renovated and ready to move into.
By the end of the final hearing the Husband conceded that the parties had cohabited in the same residence from late 2012, firstly in his property and then hers, but he says they each had done so “temporarily”. One aspect, and usually a very significant one, of a de facto relationship is a shared residence. But a de facto relationship may also exist without a shared residence.
The Husband asserted in cross examination that he did not know at the time details of what the Wife’s income was, did not know what her mortgage debt was on her Suburb B property she sold or on the Suburb E property she purchased was. I accept that evidence because of the frank manner when the Husband gave that evidence and because it was not contradicted.
Aspects of the Husband’s evidence
The Husband was usually, not always, responsive to the question asked in cross examination. He unhesitatingly made concessions when asked. His demeanour had an apparent uncontrived frankness. However, the divergence between the Husband’s affidavit evidence and his evidence in cross-examination was significant on some points was significant.
In response to the Wife’s assertion that prior to the Husband’s retirement (about 4 years) she did “the large majority of the housework and so forth”, at [10 (iii)] of his reply affidavit the husband asserted “I admit that [the Wife] did marginally more cooking than me throughout the relationship; however, we rarely cooked and regularly had takeaway or went out for dinner that I funded.” But his evidence in cross examination included the following:
MR GLEZAKOS: Yes, your Honour. [the Husband], moving on from the dollars and cents, the reality is that [the Wife] did undertake the majority of the household tasks for the entire time that you were living together, isn’t it?
THE HUSBAND: Not really. No.
MR GLEZAKOS: She cooked and cleaned; she was primarily responsible for all those things?
THE HUSBAND: Cooking, yes. Cleaning we did together, and I paid for a lot of takeaways and restaurants I paid most for. That’s obvious in the bank statements.
MR GLEZAKOS: Yes. So you went out a bit - - -?
THE HUSBAND: Yes.
MR GLEZAKOS: - - - but when there was cooking at home it was mostly [the Wife]?
THE HUSBAND: Sorry. I missed that.
MR GLEZAKOS: When there was cooking at home it was mostly [the Wife]?
THE HUSBAND: All [the Wife].
I accept that evidence. Although cooking in this case was not a major issue the contrast between his affidavit evidence and oral evidence is stark.
At annexure 1 of his trial affidavit, he asserted all payment described in the table were transfers to the Wife but in cross-examination, after the Wife had said in cross-examination that two minor payments were to Mr H (the Wife’s son from a previous relationship), the Husband accepted the payments to Mr H.
When discussing the knowledge of the Wife’s financial affairs, the Husband’s cross-examination included the following:
MR GLEZAKOS: Well,…you come here to the court and say I don’t know what she did with her money, but you’ve had the statements so you could have looked at them?
THE HUSBAND: Well, I didn’t.
MR GLEZAKOS: Okay?
THE HUSBAND: I was not interested in [the Wife]’s money.
…
MR GLEZAKOS: Thank you, your Honour. So [the Husband], you’ve heard me rattle off some figures, but do you accept off the back of that that in the period of time when works were being done to [Suburb E], my client was earning in the order of $80,000 per year; do you accept that?
THE HUSBAND: Well, I’ve heard it from you. Yes. It’s the first time I’ve heard it, but I’ve never asked [the Wife] about what she earnt.
MR GLEZAKOS: All right. Well, no. But again, I’m taking you to your affidavit?
THE HUSBAND: Yes. Well, I understand; I agree.
…
MR GLEZAKOS: All right? Because you say she couldn’t have had the money to do it. The other issue, [the Husband], is this. You accept, do you not, that [the Wife] sold her [Suburb B] apartment for $589,000?
THE HUSBAND: Correct.
MR GLEZAKOS: Do you accept that?
THE HUSBAND: Yes.
MR GLEZAKOS: And she had the mortgage of $320,000 to pay?
THE HUSBAND: I didn’t know that.
MR GLEZAKOS: All right?
THE HUSBAND: At the time I didn’t know that.
MR GLEZAKOS: At the time you didn’t know that, but you’ve heard that before, have you?
THE HUSBAND: Well, only in this – the affidavits that have come through. I didn’t know; it wasn’t my business.
MR GLEZAKOS: Well, hang on. You’ve heard it? When did you hear that she had a mortgage of [$320,000] that needed to be paid?
THE HUSBAND: Well, it was in one of the affidavits, I think, but I didn’t know at the time.
MR GLEZAKOS: All right?
THE HUSBAND: It wasn’t my business.
MR GLEZAKOS: Well – but – all right. But if I put to you now that she had therefore about $269,000 plus or minus expenses that she received from the sale of [Suburb B]; does that sound right?
THE HUSBAND: I believe you.
I accept that evidence. Likewise the Wife did not know very much about the Husband’s finances.
MR GLEZAKOS: Okay. Well, her income that was declared to the tax office was in the order of about $80,000 before COVID, wasn’t it, per annum?
THE HUSBAND: I don’t – I don’t know.
MR GLEZAKOS: Well, your counsel put that very proposition to my client yesterday based off her tax returns, didn’t he?
THE HUSBAND: I believe so, and if that’s what the tax return said: yes, fine. I didn’t see her tax returns while we were living together.
MR GLEZAKOS: Okay. I’m not saying that you did, [the Husband]. I’m simply saying that you heard it put to my client that she was earning in the order of [$80,000]. It varied - - -?
THE HUSBAND: Yes.
When discussing whether the Wife moving into the Commercial Property and the Husband moving into the Suburb E property were temporary or not, the Husband’s evidence included the following:
MR GLEZAKOS: Okay. And even though you say in your affidavit, and you do it in a couple of places, but it’s at first – well, certainly, you say it at paragraph 15(e) of your affidavit that my client moving into your Commercial Property was a temporary arrangement. The truth is that she stayed there for four years, didn’t she?
THE HUSBAND: Yes, three years.
MR GLEZAKOS: Three years?
THE HUSBAND: Yes.
MR GLEZAKOS: So from 2012/13 to 2017?
THE HUSBAND: Three years.
MR GLEZAKOS: Right. And she bought a house within six months of moving in with you; that’s right, isn’t it?
THE HUSBAND: Yes, that – that sounds about right, yes.
MR GLEZAKOS: Yes. And a fair bit of money was spent on that. We will come to that. But whilst we might appreciate you wouldn’t have kicked her out and left her homeless, why didn’t you ask her to leave? If it was a temporary arrangement, why didn’t you ask her to leave after she bought her house?
THE HUSBAND: You just nailed it. The first comment, I didn’t want to throw her out.
MR GLEZAKOS: No, but after she bought her house, she had somewhere to go. Why didn’t you ask her to leave?
THE HUSBAND: It was unliveable.
MR GLEZAKOS: So at what stage did it become liveable, do you say?
THE HUSBAND: Probably just before we moved in.
…
MR GLEZAKOS: One, you didn’t want her to move out, did you?
THE HUSBAND: No.
MR GLEZAKOS: Two, you were happily in a relationship?
THE HUSBAND: Yes.
MR GLEZAKOS: Three, you intended to continue living together, didn’t you?
THE HUSBAND: Yes.
MR GLEZAKOS: Four, you spoke about your future together, didn’t you?
THE HUSBAND: Not really, no.
MR GLEZAKOS: Well, “not really”, is that a yes or is that a no?
THE HUSBAND: No.
MR GLEZAKOS: You never spoke about your future together?
THE HUSBAND: No.
MR GLEZAKOS: Well, I put to you that you did, and that you spoke about buying a house together?
THE HUSBAND: She spoke about buying a [Commercial Property]; I didn’t.
MR GLEZAKOS: She spoke about buying a [Commercial Property] in the future?
THE HUSBAND: Correct.
MR GLEZAKOS: And did you ever say to her, “No, don’t want to own property with you. Don’t want to have anything to do with it”?
THE HUSBAND: I said no.
MR GLEZAKOS: No to a particular property, or “No, I don’t want to own property with you”?
THE HUSBAND: No to a particular property.
MR GLEZAKOS: Right. So you looked at a property together?
THE HUSBAND: No, she did.
MR GLEZAKOS: She did and she brought it to you, and you said, “I don’t want that property”?
THE HUSBAND: Yes. Correct.
MR GLEZAKOS: But I take it from your answer earlier that you never said to her, “I don’t ever want to own property with you”?
THE HUSBAND: I did not – I didn’t say that.
…
MR GLEZAKOS: So when you say in your affidavit that it was a temporary arrangement, why don’t you say, “Initially, it was supposed to be something short-term, but it turned into something more”?
THE HUSBAND: Well, that’s how it looks.
MR GLEZAKOS: But that’s not what you say, is it?---That’s what it looked in the first place, but it wasn’t at – after we were living together.
MR GLEZAKOS: And then you double-down on that and you say, “Well, I actually went and lived with her because she was just repaying the favour.” That’s not right, is it? You went and lived with her because you sold your place and you were in a relationship and you wanted to live together; that’s right, isn’t it?
THE HUSBAND: I had nowhere to go.
MR GLEZAKOS: You had nowhere to go, and you had somebody that you were in a committed relationship with who you wanted to live with; that’s right, isn’t it?
THE HUSBAND: Correct.
MR GLEZAKOS: Yes. Because by that stage when you sold the – your place, your [Commercial Property], you had plenty of money. You could have gone and lived anywhere you wanted to. You could have rented, couldn’t you?
THE HUSBAND: Yes, I could have.
MR GLEZAKOS: Yes, but you didn’t want to because you wanted to live with my client?
THE HUSBAND: She offered.
MR GLEZAKOS: But you took up the offer?
THE HUSBAND: Correct.
I accept the Husband’s evidence as asserted in these exchanges. As set out later, the relationship was permanent but each party maintained their own property that each purchased to live in and each then renovated his or her separate property.
The Wife’s property case
The Wife pressed that it was just and equitable to alter the parties’ property. As at January 2022 the Wife sought 35% of the combined property pool inclusive of superannuation. However, upon filing an outline of case in March 2021, she sought orders for 40% of the pool including superannuation to be retained or paid to her were just and equitable. In opening the Wife continued to press for orders that would see her retain her assets and receive a payment to the total effect of her receiving a property settlement of 40% of the combined assets pool, or about a $1 million payment from the Husband to her.
The Wife conceded in opening that the $1,103,798 (until then said to be an “add back” in the Husband’s hands) should not be an “add back” as it was asserted the money had been “dissipated”.
Aspects of the Wife’s evidence
I do take into account that the nature of the start of a de facto relationship, for the purposes of section 4AA of the Act, may not always be clear in retrospect or even at the time. Relationships, not unusually, move from meeting or introduction to “dating”, sometimes to sex and then “staying over,” to cohabitation in the one residence. The start of a marriage is clear: one moment a couple are not married and then by the conclusion of the ceremony they are married. Allowing for that process and the inevitable uncertainty of what a relationship was at a point in time, aspects of the Wife’s evidence was significantly influenced by what she understood would promote her case and was only partly reliable.
For example, the parties’ controversy in trial affidavits included the sleeping arrangements of the parties prior to the start of the de facto relationship. The Wife deposed in her trial affidavit[10] that prior to cohabitation the parties’ nights together had progressed to “a minimum of 3 nights per week” together “as well as” most weekends. Under cross-examination, the Wife clarified that it was “up to three nights per week including weekends”. Such evidence paints a different picture. In her first or interim affidavit the Wife had asserted: “From early 2012 until early 2017 [the Husband] and I maintained separate residences, but would spend, at least, three nights together, including every weekend.” The Wife was clearly mistaken in her trial evidence. When she was reminded in cross-examination that she had so deposed in an interim affidavit, the Wife was dismissive, in word and demeanour, of what she had herself previously deposed.
[10] At [10].
The cash payments
The Husband asserted that he had paid for some works on the Wife’s Suburb E property in cash as, he said, some of the tradesman discounted for cash. The Wife had deposed, in her trial affidavit, as follows:
89. Over the course of our relationship, [the Husband] paid for some of the renovations to the [Suburb E] property, including installation of the kitchen. He also, from time to time, helped renovating the property using his own skill and labour and made some direct financial contributions in cash to contractors. …
[Emphasis added]
When that paragraph of her own affidavit was put to her in cross-examination by the Husband’s counsel, the Wife, perceiving the passage to be somehow helpful to the Husband’s case denied part of it as follows:
MR MELLAS: Now, in your trial affidavit you say, in paragraph 89 – your Honour, that’s page 68 of the court book:
Over the course of our relationship, [the Husband] paid for some of the renovations to the [Suburb E] property, including installation of the kitchen.
…
And he made some direct financial contributions in cash to contractors.
Do you agree with that?
THE WIFE:No, I don’t agree with that, because I know nothing about it.
MR MELLAS: Right. Well, why did you – well, you said it in your affidavit, did you not?
THE WIFE:Cash?
MR MELLAS: Yes?
THE WIFE:Well, that’s, sort of, in dispute really.
…
THE WIFE:Well, he doesn’t have any receipts.
After the Wife was asked to look at and read paragraph 89 (recited above) the Wife changed her evidence to the following:
HIS HONOUR: All right. Can you just read that paragraph 89 to yourself, please, and tell Mr Mellas when you’ve finished reading it?
THE WIFE:Okay. Well, I don’t know exactly how much the financial contributions were to the contractors.
…
THE WIFE:Going on what [the Husband] has told me, that’s what he said to me, but I don’t know the amount of cash.
…
THE WIFE:… No receipts were ever shown to me on what [the Husband] gave contractors; he only verbally told me he did. So I can say yes, he gave contractors money, but I have no idea of the amount, unless there’s receipts produced.
I am satisfied that the Husband did pay some payments to builders for the renovations to the Wife’s Suburb E property in cash. The Wife’s changing position and her demeanour when so changing her position undermines the reliability of aspects of her evidence.
The Wife in maintaining statements about the relationship being permanent avoided the issue about the parties’ intentions when each purchased property and moved from house to house. After looking at common ground and indisputable events I do not accept the Wife’s contention that when she moved into the Commercial Property both parties intended to live in the same residence thereafter.
SIGNIFICANT & COMMON GROUND EVENTS
It is necessary, in this case, to look at the question of whether it is just and equitable to make any order in the context of the parties’ relationship. I will recite some common ground, or established by incontrovertible evidence, events.
Relationship before the de facto relationship
The parties had formed an intimate relationship, including staying overnight with each other some nights, some years before they commenced to live together in the same property and so commended their de facto relationship. When and how many nights each “stayed over” before the start of the de facto relationship, is in dispute and it is unnecessary, and not possible on the evidence before me, to determine that dispute.
Wife’s assets at start of the de facto relationship
In late 2012, the Wife entered a contract for the sale of the home where she was living in Suburb B. The Wife sold that property for $589,000 and at the time she had mortgage debt over that property of $320,000, leaving equity of about $269,000, less selling and conveyancing costs. The Husband’s case reasonably estimates that left about $250,000 and that estimate was not disputed. Settlement of the sale was early 2013, and I infer from the apparent logic of events, required the usual vacant possession. In early 2013 the Wife had about $250,000 from the sale of the Suburb B property. In addition, she had her own business, her vintage[11] Motor Vehicle 2 (later sold for $30,000), her home contents and modest superannuation.
Start of de facto relationship
[11] “Vintage” in the eyes of those interested in such things.
Preparing for that settlement, in late 2012 the Wife arranged for a removalist to transport her home contents from her Suburb B property to the Commercial Property, owned by the Husband and where he was living, as shown by the contemporaneous record of the removalist tax invoice that is exhibit A1. She paid the invoice in late 2012. The Wife says this is when the parties first commenced to live together in the same residence. Corroborated by the removalist invoice, I accept her evidence on that point. After that invoice was tendered in evidence (and there is no evidence it had been previously disclosed to the Husband) and the Husband was asked about it, that cohabitation commenced in late 2012, not early 2013, became common ground.

At cohabitation the Husband had his business, a Commercial Property/home (the Commercial Property) where he lived and from where (I infer) he operated his business, two old but “vintage” motor vehicles and modest superannuation of $90,000. It was “accepted”[12] in a detailed reply affidavit that the Commercial Property was then valued at about $7.5 million and was encumbered by debt of $1.8 million. That would leave equity of about $4.7 million in that property. Later on, after the close of the Wife’s case, and in cross-examination, it was put that the Husband did not have an independent valuation of the Commercial Property at the time of cohabitation. Nothing turns on that when the parties had agreed and proceeded on the basis of the assertions being common ground.[13]
[12] So asserted at [20(a)] of the Husband’s trial affidavit, and at [13] of the Wife’s reply affidavit she said, “[the Husband also] had [another motor car]… I otherwise accept [the Husband’s] assertion of our initial contributions save that I also owned an older [car] that I later sold for $30,000…”. The Husband replied to the Wife’s reply and at [22] of his reply affidavit “admitted” the assertions of the Wife in her [20].
[13] And the common ground position was not inconsistent with the incontrovertible evidence of the Commercial Property being later sold in 2017 for $7.5 million then encumbered with a mortgage of $1.852.
Hence, at or around cohabitation both parties were engaged in self-employment on their own behalf and the Wife’s capital was worth a small fraction of the capital of the Husband, and excluding superannuation, home contents and motor cars and respective businesses, about 5% of the parties’ capital if that is notionally combined.[14]
The Wife purchases her next home early on in de facto relationship
[14] $4,700,000 plus $250,000 = $4,950,000.
Although living with the Husband at the Commercial Property, soon after the settlement of the sale of the Suburb B property, the Wife commenced to look around (in the sense of browsing the papers) for her next home to purchase by herself and independently of the Husband.[15]
[15] TP 26.
In mid-2013 the Wife purchased another property, the Suburb E property, intending this to be her home, and I infer, settled the purchase some month or two later. The Wife purchased the Suburb E property for $615,000 (plus stamp duty and conveyancing costs) and borrowed, independently of the Husband, about $490,000 secured by mortgage over the Suburb E property. Stamp duty being about $32,000, I infer the Wife applied about $157,000 of the roughly $250,000 proceeds of sale of the Suburb B property to the purchase of the Suburb E property.
The Wife’s new property renovations start
At some point soon after the purchase the Wife decided to renovate the Suburb E property and commenced renovations[16]. The Wife alleges, and it was not disputed, that the bulk of renovations were completed by early 2017, around when the parties moved there from the Commercial Property, and some minor works continued into 2018.
[16] I accept the Husband’s evidence on that point.
The Husband retires, sells the Commercial Property & buys another dwelling
In early 2017 the Husband retired from his business and sold the Commercial Property, where he had worked and also where he had lived since 2011. Also in early 2017, the Husband purchased a dwelling, the Suburb F property that he still owns, for $1,250,000 and thereafter he started to renovate that property but did not live in it until after the end of the relationship.
The settlement of the sale of the Commercial Property was on or about early 2017 and that settlement coincided with the settlement of the sale of the Suburb F property. After vendor and purchaser adjustments and state taxes, and the payment of the balance approximately ($1,115,000) to settle the Suburb F property, the Husband received approximately $3,550,000[17] at settlement of the sale of the Commercial Property, and I infer less selling commission and expenses. He had already received a deposit of $750,000.
[17] See annexure 5 to Wife’s Trial affidavit and her evidence at [73]-[75].
Hence the equity the Husband had in the Commercial Property at the point of sale was about $5,397,700,[18] less selling expenses and taxes. That number is roughly $700,000 and about 15% more in dollar terms than he had when the Wife moved into his property in late 2012.
[18] Calculated as approx.. $7,000,000 less mortgage debt of $1,800,000, see settlement statement at annexure 5, bearing the date of printing (late 2020) not the date of settlement, early 2017. Both parties refer to the balance received at settlement of Commercial Property sale in a cheque of approx. $3,500,000 but this was the balance to settle after the balance to settle the Suburb F property had been paid and not including the deposit of $725,000 paid earlier.
In early 2017, the Husband purchased another dwelling, the Suburb D property, for approximately $1,500,000 plus stamp duty and conveyancing costs that totalled approximately $1,550,000, and that cost was later paid from the proceeds of sale of the Commercial Property. The Suburb D property was rented out and the Husband retained the income.
It is common ground that after the settlement of the Suburb F and Suburb D properties, the Husband had about $2,648,963 left over from the sale of the Commercial Property (including the deposit). In mid-2017 the Husband paid $1,000,000 to his superannuation fund from those proceeds.[19]
[19] See annexure 7, bank statements in name of the Husband’s super fund annexed to the Husband’s trial affidavit.
The degree of financial separateness of the parties
During the period in which the parties were residing in the Suburb E property, the Wife met the mortgage repayments and the Husband paid for the utilities, substantial interstate and international holidays, car insurance, and not all, but I infer most, food bills, the parties’ substantial dining out bills, clothing and illicit drugs expenses. The Wife’s case was that cash transfers made to her during the relationship were for her to pay for things such as booking their flights and accommodation. The Husband’s affidavit evidence included that he paid around 70% of the home food bills. In affidavit he agreed that the Wife cooked more than he, but not as often as she suggests. In cross-examination he said she did “all” the cooking.
During the relationship the parties never shared a shared a bank account, or the ownership of any asset or the burden of any liability or had any detailed knowledge of the others financial affairs. During the relationship each dealt with his or her assets and liabilities and income and work obligations and expenditure separately and without explaining, let alone accounting, to the other. I am satisfied that during the relationship neither had much interest at all (and in the Husband’s case none at all) in the financial affairs of the other.
SOME RELEVANT DISPUTES
The parties’ dispute many things but some that are relevant to the decisions I must make include the following.
What the Husband contributed to the Suburb E renovations
The extent of the Husband’s financial and other contributions to the Wife’s Suburb E property are disputed. The Husband alleges he did a lot of work and spent a lot of money, about $120,000, on the that property. The Wife says he only spent about $31,000 and only did a little work.
Paragraph 17 of the Wife’s reply affidavit asserted as follows:
17. As to paragraph 24 I say that [the Husband] contributed approximately $31,371. to the renovations of the [Suburb E] property whilst I contributed approximately E$110,000. 17. In [mid-]2014 [Mr H] moved into [the Commercial Property] to live with [the Husband] and I for over a year. [Mr H] lived full time with us in a room previously occupied by [the Husband’s] son, [Mr K], and stayed with us in [the Commercial Property] until [mid-]2015.
That assertion was corrected in evidence in chief as follows:
MR GLEZAKOS: What did you want to clarify in relation to paragraph 17; it relates to the works at [Suburb E]?
THE WIFE:I wanted to clarify that the amount of money that was an approximate amount of [$110,000] actually includes the amount that I also have estimated and was documented that [the Husband] put into the [Suburb E] property, so it’s a collective amount of [$110,000], including his.
…
THE WIFE:… I’m saying that the two amounts actually, well, they amount to [$110,000], inclusive of [the Husband]’s contribution.
In cross examination the Wife gave the following evidence:
MR MELLAS: Yes. Okay. And at the time, you said that you contributed approximately [$110,000] towards the renovations. Do you recall making that comment?
THE WIFE:Yes. I adjusted that comment to include [the Husband’s] contribution.
MR MELLAS: And today you’ve said no, no, it wasn’t [$110,000] that you contributed, but in total there was [$110,000], including [the Husband]’s contribution of [$31,371]; is that right?
THE WIFE:Yes, that’s referring to my bank statements and going through what was put into my account regarding things that were purchased for the house. Yes.
MR MELLAS: When you saw your trial affidavit – well, sorry, when you saw your reply affidavit on 17 February 2022, how did you calculate the figure that you contributed of 110 that you said at the time you contributed?
THE WIFE:How did I calculate it, sorry?
…
HIS HONOUR: How did you calculate the [$110,000]?
THE WIFE:Well, I just, basically, went through, in my mind, things that were purchased, floorboards, appliances and so forth, and made a calculated educated guess as to how much these things cost. I did everything as cheaply as I could.
MR MELLAS: And you did that in your mind, you say?
…
THE WIFE:Yes. Well, I don’t have receipts. They were destroyed in two separate floods where we had our mutual things stored in [Suburb L].
MR MELLAS: So when you swore your reply affidavit in February 2022, that was just an estimate, was it?
…
MR MELLAS: … was the [$110,000] that, you say, you contributed an estimate?
THE WIFE:Yes, it’s an estimate, because I actually married up the money that [the Husband] had transferred into my accounts, and then I went through, in my mind, because that’s the only recollection can have, because receipts were destroyed, and looked around my house at what had been done. I did a lot of the work myself, including painting, pulling out floors and so forth, so a lot of it, I didn’t use any labour for. I did it myself.
MR MELLAS: Okay. Yet today, a few weeks later after you’ve sworn that affidavit, you come to court and you say, “Well, no, I got that wrong; it’s closer to [$80,000] that I contributed”?
THE WIFE:That’s correct.
MR MELLAS: And you didn’t have the benefit of receipts or anything else to come to that figure of [$80,000], did you?
THE WIFE:No, but I live in the house, so I can look around and I can look at things and remember where I bought them.
MR MELLAS: Right. Well, you said that you turned your mind, or you worked all that out in your mind back in February when you [swore] your reply affidavit, did you not?
THE WIFE:Probably not as thoroughly.
In her October 2020 affidavit the Wife had deposed that the Husband had spent approximately $50,000 on renovations to her Suburb E property and the following was put to her in cross-examination:
MR MELLAS: Why did you say that?
THE WIFE:Why did I say it? Because it was an estimate, because I really didn’t have any receipts to rely on.
MR MELLAS: And then - - -?
THE WIFE:And going over my – going over the contributions that were put into my bank account, it was a more accurate figure that I came up with.
MR MELLAS: And does that more accurate figure include what you said before, some of the cash payments made to the various contractors?
THE WIFE:Yes.
MR MELLAS: How did you work that out? You said you didn’t know what those figures were?
THE WIFE:Well, I don’t know what those figures were. I was never told.
MR MELLAS: You see, again, you initially say that [the Husband] contributed 50,000, and then you change it to a precise amount of 31,371. Again, are you making figures up to suit your case as you go?
THE WIFE:No.
…
MR MELLAS: Okay. And, well, and you don’t know exactly how much cash was paid to the contractors?
THE WIFE:No.
The Husband points to the total of $61,297 he transferred to the Wife’s account, over 15 transactions in 2016 and the further sums of totalling $121,605, over 41 transactions, he says he transferred to the Wife’s account over almost four years from early 2017 (when he retired and sold the Commercial Property) until shortly before separation on 16 December 2019 as evidence corroborating his assertion that he contributed about $120,000 on the Suburb E renovations. In addition I accept that he paid some amount in cash for renovations.
The Husband’s affidavit evidence included tables of transfers from the Husband’s account to the Wife’s account, a table at [26] and another at annexure 1 to his trial affidavit. The [26] table totalled $61,581 from 2015 to the end of 2016. That those transfers were made was not controversial. When looked at more closely, the one 2015 transfer was minor. Three transfers between early 2016 and mid-2016 totalled $1,893 and from late 2016, three months, $59,581 in twelve transfers was transferred. This coincides with the period in the lead up to the renovations to the Wife’s Suburb E property that meant the property to be sufficiently renovated to enable the parties to move there in early 2017. But the Wife asserted that “some” of these payments were to pay off her credit card for expenses of the both of them that it was always intended those costs would be borne by the Husband. That the Wife incurred some expenses on her credit card that were intended to be, and were, later paid or reimbursed by the Husband was not in dispute.
The table at annexure 1 to the Husband’s trial affidavit asserts that from early 2017 (that is commencing after the table at [26]) until 16 December 2019, in 41 transfers the sum of $121,605 was transferred from the Husband’s account to the Wife’s account. I am satisfied that the entries for November 2019 ($4,000) and December 2019 ($5,750) recorded in annexure 1 were not “towards a holiday” for the Wife but rather the payment for the house appliance the Husband purchased for the Suburb E property. I am satisfied that the entries for May 2018 ($500) were payments to the Wife’s son, Mr H, who did some paid work for the Husband. The Husband asserts the $121,605 was in addition to living expenses which he paid and the funds ($120,000 plus cash) he said he contributed to the Suburb E property.
The Husband’s table at annexure 1 contains the implicit assertion that he has taken real care in putting together the table and that it could be relied on. But four of the entries were readily conceded to be inaccurate. It is not suggested that the $120,000 paid towards the Suburb E renovation and the $121,605 are the same thing or even substantially overlap. Hence, I am not satisfied that the Husband’s account or attempt at recollection is accurate. The Husband’s $120,000, despite being emphatically put in affidavit and outline of case, was not based on actual recollection or record and was like the Wife’s account, only an estimate.
The detail of the Wife’s (apparently “in her mind”) calculations, of either her earlier $50,000 account, or her $31,371 reply affidavit account of the renovation cost the Husband paid is not in evidence. The detail of the Wife’s assertion in evidence in chief of total cost of $110,000 for the Suburb E renovations is not in evidence. Neither party set out any calculations or detail of their assertion, really only estimates, and I am satisfied more akin to “guesstimates” of the $120,000 or the $31,371 or the $110,000 figures.
The Wife asserts that the bulk of those transfers were to reimburse her for expenditure on her credit card that was for joint expenses like holidays for the two of them. Implicit in the Husband’s evidence of transfers to the Wife’s accounts over 2016 to the end of 2019 of $182,902 ($61,297 plus $121,605) is that some of those alleged transfers were for purposes other than the renovations to the Suburb E property.
Given the nature of the exercise of attempting to identify contributions some imprecision is inevitable, but when a party emphatically asserts an estimate or a guestimate without acknowledging that limitation, as if the estimate was based on a calculation or actual recollection, that process undermines the reliability of the evidence even when the estimate or guesstimate is given bona fide.
I am satisfied that that from the proceeds of sale of the Suburb B property some roughly $155,000 was applied to the purchase of the Suburb E property and hence the Wife at one point at least had some $90,000 to $100,000 available to her from her capital that could have been applied to the renovations. However, the Wife did not give that evidence or make that assertion.
Circumstances and evidence I have considered include;
·That the Wife did not point in evidence to any particular payment being for her credit card reimbursement in evidence in chief;
·The Wife’s demeanour in the witness box when being cross-examined about her assertions of expenditure on the renovations including her own affidavit statements of payments by cash by the Husband;
·The Wife’s determined refusal to acknowledge or concede contributions by the Husband;
·The Wife’s varying accounts of what the Husband spent, emphatically stated in sworn affidavits;
·The undisputed time of the 2016 (about $59,404), 2017 (about $73,700) and 2018 (about $13,700) advances overlapping with the common ground or undisputed time frame that the Suburb E renovations were mostly finished by early 2017, with some continuing in 2018;
·The Wife’s evidence (that I accept) that the $4,000 and $5,700 late 2019 transfers were to the home appliance provider not to her and that the two $500 payments to her son, Mr H (included by the Husband in the annexure 1 table and which the Husband did not dispute in cross-examination);
·Neither party provided to the other or the Court the calculations or detail of the $31,372 allegation or the $120,000 allegation;
·The Husband has not examined the Wife’s bank account statements at all and has only a cursory knowledge or recollection of his own;
·There is no evidence of the parties ever discussing either the total cost of the renovations or how much each had contributed;
·Any contribution the Husband made was not regarded as him acquiring any interest in the Suburb E Property but those contributions were always regarded as gifts by each of the parties and hence there was no need for any record or account or even rough track to be kept; and
·During the relationship neither party kept any record or even rough track of the total cost of the renovation or what each had contributed to them and the attempt to identify the cost of and the contributions to the Suburb E property renovations was only undertaken for the purpose of these proceedings.
Those circumstances, evidence and contradictions all combine to the effect that I do not accept the Wife’s (last) account that the Suburb E renovations cost $110,000 and that Husband contributed only $31,371 to the renovations or the Husband’s account that he contributed $120,000 to the renovations and a further $121,605 in transfers to the Wife for living expenses.
I am satisfied that it is likely that the renovations cost more than either party can recollect and that until the preparation of evidence in this case neither party had turned their mind to the cost in other than a very general way. I am satisfied that much of the transfers to the Wife’s account in 2016, 2017 and 2018 along with some cash were for the purpose of the Suburb E renovations.

The Husband’s demeanour and unpretentious style of communicating gave his assertions in cross-examination a compelling verisimilitude. I accept his evidence about his knowledge of his brother’s affairs and what he has done to recover the money and that there are no formal or informal loan documents. The advances are of a similar nature to the advances to the Wife by Mr G, the Wife’s ex-husband. The advances to his brother were intended to be recovered in good financial times but not in bad. I am not satisfied the advances, notwithstanding the Husband’s intention at the time of advance are recoverable or that they should be regarded as an asset in the Husband’s hands.
The extent of the Wife’s contribution or “help” with the Commercial Property
The Wife’s case maintained she had made a significant indirect contribution to the Husband’s Commercial Property and the Husband denied that. The Husband’s cross-examination included:
MR GLEZAKOS: And she assisted you in coordinating and ideas in relation to the design works for [the Commercial Property]; that’s right, isn’t it?
THE HUSBAND: I think it was a mutual thing. I would have to say yes.
MR GLEZAKOS: Yes?
THE HUSBAND: It was a – we both had an input into that, but I paid for it.
MR GLEZAKOS: Yes. And likewise, in relation to [Suburb F]. She helped you with coming up with ideas and designs for [Suburb F]?
THE HUSBAND: Not so much in [Suburb F] because [Suburb F] was all done after we split. We did have a designer in who designed the bathroom area, but any – I can’t remember his second name, but we didn’t end up using his design in the end.
MR GLEZAKOS: But it’s not the case as you put in your affidavit that she didn’t help you at all with those things, is it?
THE HUSBAND: When we split, she didn’t even put her foot in the house. She probably - - -
MR GLEZAKOS: Hold on. I’m not talking about the period after you split; I’m talking about overall. It’s not true, as you say in your affidavit, that she had nothing to do with the design works; that’s not right, is it?
THE HUSBAND: No, it’s not right. Minimum. We didn’t use anything. Actually, can I rephrase – can I – I do remember. It was her idea to raise the roof in the back of the house which was very good.
MR GLEZAKOS: Well – and she helped you with designs for things like the windows?
THE HUSBAND: Yes, she did.
MR GLEZAKOS: Yes. Some floorplans?
THE HUSBAND: No. I don’t think - - -
HIS HONOUR: Mr Glezakos, could – hang on, Mr – could you just help me a little bit on that topic, what “helped you” means?
MR GLEZAKOS: Yes, your Honour. I’m going – I’m just calling up the specific reference in the material.
HIS HONOUR: Yes.
MR GLEZAKOS: So [the Husband], my client helped you with designing the floorplan for the kitchen at [the Commercial Property]?
THE HUSBAND: Fifty-fifty.
MR GLEZAKOS: She selected fixtures and fittings?
THE HUSBAND: Yes. She probably did, yes.
MR GLEZAKOS: Yes. She sourced second hand furniture and crockery to fit it out?
THE HUSBAND: Yes.
MR GLEZAKOS: In relation to [Suburb F], she put you in touch with people who could assist with making custom windows for the house?
THE HUSBAND: Yes.
MR GLEZAKOS: She designed the floorplan?
THE HUSBAND: [Mr P] had a lot to do with that
MR GLEZAKOS: [Mr P], the person she put you in touch with?
THE HUSBAND: Yes.
MR GLEZAKOS: Yes. She communicated with [Mr P] in relation to that design?
THE HUSBAND: I think she did, yes.
MR GLEZAKOS: She assisted in relation to – certainly, the idea, I think, you conceded of raising the rear ceiling to make it appear more spacious?
THE HUSBAND: Correct.
MR GLEZAKOS: Yes. She did research so that she could help you with designing the windows and doors to the property?
THE HUSBAND: I cannot remember that. Unknown.
MR GLEZAKOS: She chose the colour schemes for the kitchen, bedroom and bathroom, and the outside of the house?
THE HUSBAND: No.
MR GLEZAKOS: And I put it to you that she planned the fence for the front of the house?
THE HUSBAND: Which was the same as hers, and it hasn’t been done.
MR GLEZAKOS: No. But she assisted getting the - - -?
THE HUSBAND: I – sorry.
MR GLEZAKOS: She planned the fence to go to council to get approval?
THE HUSBAND: I wanted – I wanted – I wanted the same fence that she had at [Q Street].
MR GLEZAKOS: All right. And she arranged for [Mr P] to do works in relation to the structural changes including organising the roller doors at the rear of the house?
THE HUSBAND: No. That’s all been done by the planner that I’ve had already draw the plans.
MR GLEZAKOS: All right?
THE HUSBAND: Which is [Mr R].
…
MR GLEZAKOS: So [the Husband], having made those appropriate concessions, why do you say at paragraph 45 of your trial affidavit, “[the Wife] had no input in the building design of the [Suburb F] property”, amongst other things?
THE HUSBAND: She would visit.
MR GLEZAKOS: That’s not right, is it?
THE HUSBAND: She gave her opinion, and she was good at it.
MR GLEZAKOS: [the Husband], I’m putting to you that your statement that she had no input in the building and design of the [Suburb F] property is simply incorrect?
THE HUSBAND: No physical input, yes. She did not put any physical input in. Is that what you’re saying?
MR GLEZAKOS: I’m telling you what you say in your affidavit. You don’t say about physical input, you say she had no input; that’s not true, is it?
THE HUSBAND: Physical, that’s what I was referring to.
MR GLEZAKOS: But that’s not what your affidavit says, is it?
THE HUSBAND: Correct.
MR GLEZAKOS: All right. Because whether she physically put into the properties or not, the truth is that she did contribute to [the Commercial Property] and to [Suburb F]?
THE HUSBAND: Yes. You’re talking about conversations on the front lawn or something like that.
I accept the Husband’s evidence. The “help” or “contribution” was largely in the nature of conversations between the parties about the Wife’s ideas where she expressed her opinions about the Husband’s property. The Husband was respectful of the Wife’s volunteered opinions. I am not satisfied that this was in the overall circumstances of the relationship a significant direct or indirect contribution to the Husband’s property.
Money spent on “lifestyle” not “dissipated”
It is common ground that at least some $976,000[23] of the Husband’s money, and I infer directly or indirectly, from the proceeds of sale of the Commercial Property was spent over the next few years, on “lifestyle” by the Husband on the “lifestyle” of the couple. Lifestyle for this couple included a lot of regular dining out (and I am satisfied no expense spared), much alcohol, illicit drugs, five holidays together and much expensive clothing and gifts. Emblematic of that expense was the US$… dog collar purchased by the Husband in the USA while on holiday and “suggested” by the Wife. The Husband and the Wife were a couple of considerable style in their social circles. How much was for the benefit of the couple as opposed to only the Husband was in dispute but that the Husband paid all or almost all the expensive or luxurious costs was not disputed.
[23] The Husband’s table includes about $68,000 spent or paid in March 2020, hence not during the relationship but whether only $900,000 or $976,000 is not material and nothing turns on this.
When cross-examined the Wife’s evidence about expenditure on holidays included:
MR MELLAS: Yes, [$1022.49]. That’s that one. And [S Store], the next transaction. There’s two transactions for [S Store]. One for 803.48 and one for [$1150.47]. Do you see those?
THE WIFE:Yes, we both purchased clothes there, yes.
MR MELLAS: Yes. [T Store], [$…]. Is that the dog collar that he purchased?
THE WIFE:Yes, [the Husband] picked out a dog collar to our – well, the dog, our dog.
MR MELLAS: That was the collar that you wanted for the dog, wasn’t it?
THE WIFE:I suggested it.
MR MELLAS: Right. …[…]?
THE WIFE:Yes, it wasn’t up to me to pay for it.
MR MELLAS: No, no. Well, because [the Husband] is paying, isn’t he?
THE WIFE:Yes, he did.
MR MELLAS: That [US$…] for a dog collar?
THE WIFE:Yes.
MR MELLAS: Yes. Next transaction, [City U Hotel], [US$…]?
THE WIFE:That would have been for food.
MR MELLAS: Just the two of you?
THE WIFE:Yes, there was only the two of us.
MR MELLAS: Okay?
THE WIFE:You’re working in US dollars. So once it’s converted back to AU, it’s incredibly – but you know what, we were here for a long, you know, a good time not a long time and we only had probably at least two weeks a year holiday. Well, I did anyway.
The Wife was highly critical of the Husband’s illicit drugs consumption in her affidavits. The Husband’s alleged illicit drugs use was a joint expense and that the Wife introduced him to illicit drugs. I cannot determine whether the Wife did introduce the Husband to illicit drugs, but I am satisfied she was familiar with illicit drugs use before meeting the Husband and that mutual illicit drugs use was a part of their relationship. I regard any illicit drugs use as “excessive” and I am satisfied significant funds of the Husband were spent on it. To the extent that any money accumulated over the Husband’s lifetime of work was spent on illicit drugs I accept it was “dissipated”. The Court turns its nose up at the idea that any illicit drugs use is acceptable as opposed to only “excessive” use being “dissipation”. However, I am satisfied the “dissipation” was a joint exercise and I accept the Husband’s evidence that the Wife did not complain about the extent of his lifestyle expenditure.
In the circumstances of each having little or no interest in the other’s financial affairs and it being the Husband’s money, or largely the Husband’s money, spent during the de facto relationship, the Husband had greater responsibility for the “dissipation” of his money on the parties’ illicit drugs use. Actually how much was spent on illicit drugs is not known.
The Husband had given $60,000 to his former employees when he retired, closed his business and sold the Commercial Property. This was not a legal obligation, but simple appreciation of services rendered or simple generosity. The Wife was inclined to be critical of his generosity to his former employees. The Husband’s attitude to spending money, or being generous, are that he had retired, had substantial property paid for and had sufficient money. His attitude was: so why not enjoy the money from my lifetime’s work with my partner?
Apart from the unknown, but I accept substantial, money spent on illicit drugs, I do not accept the Husband “dissipated” his money spent on lifestyle.
IDENTIFYING THE EXISTING PROPERTY INTERESTS
In her outline of case, although for the purpose of the first step of the orthodox “preferred” approach to assessing contribution and section 90SF factors after, as the Wife sought, it had been determined that it was just and equitable to make orders altering property interests, the Wife asserted the assets and liabilities of the parties (as contended for by each party) was as follows:

Property interests, superannuation and financial resources

Description Ownership Applicant’s value Respondent’s value

ASSETS

1 Q Street, Suburb E Applicant $1,300,000 $1,300,000

2 ANZ Account #...12 Applicant Nominal Nominal

3 ANZ Account #...42 Applicant Nominal Nominal

4 ANZ Account #...98 Applicant Nominal Nominal

5 ANZ Business Account #...35 (Ms Marcos’ Business) Applicant Nominal Nominal

6 ANZ Business Account #...55 (Ms Marcos’ Business) Applicant Nominal Nominal

7 ANZ Account #...50 Applicant Nominal Nominal

8 Household contents Applicant Excluded Excluded

9 Motor Vehicle 1 Applicant $46,000 $46,000

10 V Street, Suburb F Respondent $1,600,000 $1,600,000

11 W Pty Ltd ATF the Serina Family Trust – (Trust owns property at …Suburb D) Respondent $2,180,000 $2,180,000

12 ANZ Account #...16 Respondent Nominal Nominal

13 ANZ Account #...62 Respondent Nominal Nominal

14 ANZ Account #...47 Respondent Nominal Nominal

15 ANZ Account #...64 Respondent Nominal Nominal

16 Household contents Respondent Excluded Excluded

17 Loans owed by family members to Respondent Respondent $475,716 NIL

18 Unaccounted for proceeds of sale of Suburb D Respondent $1,103,798 NIL

19 Motor Vehicle 3 Respondent $50,000 $50,000

20 Motor Vehicle 4 Respondent $45,000 $45,000

Assets subtotal $6,800,514 $5,221,000

LIABILITIES

21 AMEX Credit Card Account #...04 Applicant $7,022 $3,245

22 ANZ Frequent Flyer Account #...47 Applicant $10,697 $8,139 CR

23 Personal Loan from Mr G Applicant $157,913 NK

24 ANZ Home Loan Account #...14 (for Suburb E property) Applicant $488,836 $488,836

25 ANZ Frequent Flyer Account #...39 Respondent $33,608 $33,608

26 ANZ VISA Account #...80 Respondent NIL NK

27 ANZ overdraft facility account ending #...84 Respondent $19,482 $19,482

Liabilities subtotal $717,558 $537,032

SUPERANNUATION

Name of Fund Type of interest Member Applicant’s value Respondent’s value

28 Super Fund 1 Accumulation [Applicant] $38,629 $38,629

29 Super Fund 2 SMSF [Respondent] $385,964 $385,964

Superannuation subtotal $424,593 $424,493

TOTAL (assets – liabilities) $6,082,956 $4,683,968

TOTAL (assets – liabilities + superannuation) $6,507,549 $5,108,461

TOTAL (assets – liabilities + superannuation + financial resources + other) $6,507,549 $5,108,461

However, after discussion with counsel only two items remained in dispute: debts due to the Husband of $455,000 from his brothers and whether the advances from the Wife’s former husband, Mr G, should be included in the section 90SM(4) exercise, if or when the case came to that. The Wife had included the advance as her liability, and although having applied the funds to legal fees, she did not include the notional “asset” of paid legal fees. If this loan was included, the notional asset of “paid legal fees” of the equivalent amount would also usually need to be included.
In this case, for the purpose of “identifying, according to ordinary common law and equitable principles, the existing legal and equitable of the parties in the property”, it is appropriate to not include either the notional asset or the corresponding moral obligation to repay Mr G.
At line 18 of the above outline of case table of assets (and in her trial affidavit), the Wife alleged assets in the Husband’s hands of totalling $1,103,798 of unaccounted for proceeds of sale of the Commercial Property, sold in early 2017. That claim of a notional asset was abandoned at of the first day of trial, but the funds were said to have been dissipated by the Husband.[24] I have found that only some not known part (the illicit drugs) should be regarded as dissipated and by both parties, but with the Husband having greater responsibility.
[24] At transcript page 7 (TP 7), “…it’s tolerably clear … that those moneys were spent, but it’s not that they have been converted into an asset, so it’s not said that they should be added back. They will be a relevant factor…under 90SF(r)…”
The Wife alleged the Husband had the asset of the recoverable debt owed by relations of his family in the sum, initially of $475,716, but reduced in opening to $455,000 being the advances totalling $400,000 to one brother and $55,000 to another. That such a sum had been advanced to his siblings was not in dispute. Earlier on in the proceedings the Husband had referred to these advances as “loans”. He advanced money to family members in necessitous financial circumstances. These advances are either gifts or loans (that may or may not be recoverable) or a family arrangement type loan to be repaid in good financial times and not otherwise or loans that have been forgiven. The Husband was generous to his family. I accept that funds of that dimension were advanced by the Husband to his family. He was a wealthy and generous man and to help family members is a reasonable thing to do. I accept his evidence that he has no intention of trying to recover these amounts and I do not accept these advances, whatever they were called at the time, constituted an intention to create legal relations and constitute a legally enforceable loan. Most of the money went to one of the Husband’s brothers. I accept the relatives, and the brother in particular, have a moral obligation to repay them if they can, but not a legally enforceable and recoverable obligation.
Neither party asserted the other had any equitable of legal interest in the other’s property. For this exercise I will not treat the Husband’s notional assets of paid legal fees[25] of $121,246 as existing property. Given the parties ages and the Husband being retired I treat their respective entitlement to the due administration of their superannuation funds as the value of his or her interest in their fund.
[25] Conceded at item 24 of Husband’s outline of case at page 7 of 24 and updated in the running.
I find that the existing legal and equitable of the parties in their property is as follows:

$

Wife’s existing assets & liabilities

The Suburb E Property (Agreed) 1,300,000

Suburb E property mortgage (488,836[26])

Suburb E Property Equity 811,164

Bank accounts Nominal

Household contents modest

Motor Vehicle 1 46,000

Credit card debts (not disputed) (17,719)

Wife’s Superannuation 38,629

TOTAL Wife’s assets & liabilities 878,074

Husband’s existing assets & liabilities

The Suburb F property 1,600,000

The Suburb D property (owned by a trust/trustee controlled by Husband & treated by the parties as if his property)) 2,180,000

Motor Vehicle 3 50,000

Motor Vehicle 4 45,000

Husband’s home contents modest

Husband’s Bank accounts Nominal

Credit card (not disputed) (33,608)

Overdraft facility (not disputed) (19,482)

Husband’s self-managed superannuation 385,968

TOTAL Husband’s assets & liabilities 4,277,119

TOTAL ASSETS & LIABILITIES: 5,155,193
[26] Not disputed.

I inquired of the Wife’s counsel what was submitted to be the “principled reason” for interfering with the existing legal and equitable interest of the parties. He made concise and articulate submissions as follow:
MR GLEZAKOS: They talked about buying a property together. He says, “I never really wanted to”, but he also concedes that he never told my client that. This is how they lived their lives. It was a committed relationship for a period of seven plus years. There was cohabitation for seven years, but the relationship was longer than that. They spent time with each other’s families, extended families, their children. They had children living with them, albeit adult children. The mere fact that [the Husband], at the commencement of the relationship, had greater resources does not then mean that, seven years down the track, we just keep them all separate. There’s an inherent tension, I would submit, in the position that he takes, because on the one hand, he says, “We kept everything separate, Stanford – no adjustment required. It’s not just and equitable to do anything”, but then says, “But if you are, look at all these things that I have provided.”
There was an intermingling of resources – not necessarily an intermingling of assets, but their resources – there was a mutual and combined enterprise for those seven years, your Honour. As I say, not necessarily in respect of specific assets, but they intended to continue to live together.
…
MR GLEZAKOS: There was no suggestion in that that he wanted anything but the relationship to continue. It was the intention of both parties throughout, up until the very end, that they combined their resources and stay happily together for an extended period of time – perhaps until their deaths, but there’s no evidence about that.
HIS HONOUR: Sorry….is the evidence that they combined their resources, if resources includes assets?
MR GLEZAKOS: I – I take no issue with the proposition that the parties’ primary assets – that is, the real estate and what was bought with that real estate, in terms of where it was flipped into another asset – were kept separate, save and except my client’s evidence to the degree that she assisted in relation to the development of the properties and likewise. Because [the Husband] again says that he put blood, sweat and tears into [Suburb E] and [Suburb B] as well as money. Well, that’s not really separate. The title is separate, but he has made a non-financial contribution, he would no doubt say. Well, my client says likewise, she made a non-financial contribution to the other properties, and it was greater than [the Husband] gives her credit for. I don’t want to overstate that, your Honour. There is no – there is no doubt that [Mr Serina] got a tidy profit from selling his [Commercial Property], and he is entitled to be proud of that. But that doesn’t mean it just gets kept separately, in my submission, in circumstances of this relationship.
HIS HONOUR: Well,…don’t I have to go back to Stanford and find a principled reason to find that an adjustment is just and equitable?
MR GLEZAKOS: Yes, your Honour.
…
MR GLEZAKOS: Yes, your Honour. And my learned friend [says] to that: [the Husband] is retired and he is living off his capital. [The Wife] has got a capacity to work. Well, [the Husband] conceded firstly that my client’s back is not what it once was, and that she works four days a week, and that is appropriate. He conceded that in his affidavit and in his evidence – which impacts her ability to earn an income. But the other issue is this - - -
…
HIS HONOUR: But – so that means – that means, Mr Glezakos, like a barrister, she only gets the money from the [work she performs] or deals with.
MR GLEZAKOS: Exactly right. She has got no employees. She doesn’t get a cut from the other parties for providing them services or anything like that.
…
MR GLEZAKOS: And your Honour, the other distinction between the parties’ financial circumstances – and [the Husband] says his income is about [$80,000] in terms of rent for [Suburb D] and moneys that he gets from super fund. Accepting that part of that might be attributable to capital, he doesn’t have a mortgage.
…
MR GLEZAKOS: But [the Husband] lives in an unencumbered home. He has also got a [Commercial Property] that earns an income that is also unencumbered. My client has got a mortgage of about $480,000. So, that is a significant difference in relation to their financial security and their financial circumstances. It is a bit simplistic, in my submission, for the respondent to say, “We have got enough to get by on, look at the equity that she’s got” in circumstances where there’s a mortgage there that needs to be met on an ongoing basis.
…

I do not accept the parties had an “intermingling of resources” over the seven years. The parties kept their assets separate, their debt separate and they did not account to each other for their income or expenses, nor were they interested in the other’s income or assets or expenses.
Those articulate submissions point to the Wife’s claim of indirect contribution by her ideas and advice to the Husband about renovating his Suburb F property, her homemaking including her cooking, her provision of a home for the couple to live in (the Suburb E property) for the last three years of the relationship, essentially section 90SM(4) contributions and the significant asset disparity between the parties at the end of the relationship and the Wife’s commitments to support herself.
I do not accept the significance or importance of the Wife’s contributions are as significant as the Wife’s case asserts when the whole of both parties’ contributions and the context and circumstances of the relationship are taken into account.
There was a huge asset disparity between the parties at the start and a significant, but lessor asset disparity at the end. The Wife came into the relationship with a substantial mortgage and on her home and she leaves the relationship with a larger mortgage on a more valuable home. But the Husband’s financial position remains superior to the Wife’s.
CONCLUSION TO SECTION 90SM(3) JUST AND EQUITABLE ANALYSIS
Section 79(4) as applied in Stanford, and here section 90SM(4), incorporated the income and asset disparity of the largely prospective factors of section 75(2), and here section 90SF(3). Those matters are not to be conflated. On the evidence this case is clearly not the situation contemplated by Mr Bartfelt QC and approved in Bevan Part 1, of where “a party has made substantial contributions, over a long period of time, which are not reflected in their asset holdings but which are reflected in the other party’s assets may found a basis for finding that it is just and equitable for an order to be made”. That observation is not the test for section 90SM(3) but an example of one scenario where it would be likely to be just and equitable to make an order.
That the Wife made a direct contribution of her equity in her Suburb B property and an indirect contribution of cooking for the both of them and the children of each when they lived with them, and the circumstance that the Wife must continue to support herself and pay her substantial mortgage are in substance matters required to be considered under section 90SM(4). They are relevant, but not determinative, in this case to assessing the section 90SM(3) preliminary analysis. The High Court is crystal clear: section 90SM(4) matters including contribution and asset disparity, even 37[27] years of it, is not to be conflated with the preliminary section 90SM(3) “only make an order if just and equitable” to do so.
[27] As in Stanford.
In this case the Husband ends up with his own separate assets that are the direct product of the assets he had at the start of the relationship. In this case the Wife ends up with her own separate assets that are the direct product of the assets he had at the start of the relationship. Those results, applying the concepts of [41] of Stanford (recited earlier), are consistent with the manner of how the parties conducted their de facto relationship and the unstated assumptions and implicit agreements about property interests that were in place during the relationship.
At the start of the de facto relationship the Husband had about $4.7 million of equity/assets and the Wife had about $250,000 of equity/assets. In addition each had a car/s, superannuation and home contents. At the time of hearing the Husband had about $4.3 million of assets, after enormous expenditure on lifestyle enjoyed by both, and generosity to family and former employees. That is in dollar terms a bit less than what he had at the start of the relationship after a lifetimes work. The Wife, at the time of hearing ended up with assets/equity of about $878,000, that is in dollar terms more than three times what she had at the start of the relationship after her lifetimes work. If those dollar proportions are adjusted for the time value of money or inflation the Husband would likely have even less again than he had at the start and the proportion of the Wife’s increase would be significantly less than “more than three times”. But the Husband has less than he started with and the Wife has significantly more. The Husband may have ended up with about the same as he started with had he not been so generous or had he not spent that enormous amount on the lifestyle of the couple.
The Husband contributed significant capital to the Wife’s assets but the Wife did not contribute capital to the Husband’s assets, nor was she ever asked to.
That a party has made a contribution within 90SM(4) and/or that there is a significant disparity of assets between parties that would be considered under section 90SF(3), are not of themselves, in this case, a principled reason to alter the parties’ interests in property.
The most significant matters I take into account are:
·Section 90SM(4) matters, that is contribution and/or section 9SF(3) factors are not to be conflated with the section 90SM(3) analysis.
·The Husband and the Wife kept their assets, liabilities, income and expenditure separate. Not even much information about the detail of the other’s affairs were shared. There was a real independence in the affairs of each. Not only were their assets separate but the parties always owned their own separate residence (save for about six months at the start while the Wife looked around for her next property).
·At the start the Wife’s habitation in the Husband’s property it was intended to be temporary notwithstanding that the relationship was intended to be permanent.
·At the start the Husband’s habitation in the Wife’s property it was intended to be temporary notwithstanding that the relationship was intended to be permanent.
·The Husband ended up with assets of less value than he started with and the Wife ended up with more than she started the de facto relationship with. Her net asset position improved significantly.
·The Husband, later in life, contributed capital to the Wife’s assets but the reverse did not occur.
·The lifestyle expenditure was enjoyed by both and came only from the Husband’s capital.
·To extent that the Husband’s assets were dissipated on illicit drugs, that was a joint dissipation, although the Husband bears greater responsibility as only he had knowledge of his financial affairs.
·This was not a long relationship.
I must not make an order adjusting the parties’ property unless I am satisfied it is just and equitable to do so. In all the circumstances I am not satisfied that there is a principled reason to alter the parties’ interests in their property. I am not satisfied, in all the circumstances, that it is just and equitable to make property alteration orders. Accordingly I will dismiss the Wife’s application.
The caveats
The Husband sought orders that the Wife remove any caveat lodged by the Wife on either his Suburb F property (the registered proprietor is the Husband) and on his Suburb D property (the registered proprietor is the trustee of a trust). The parties conducted the proceedings on the basis that the trustee and trusts were the alter ego of the Husband and I accept that. In the end the Wife did not allege that she had any legal or equitable interest in either property. In any event my findings mean she does not. Hence she does not have an interest that is capable of sustaining a caveat and it follows, as a matter of law, that the caveats should be removed by the Wife at her expense.
For the sake of clarity and to conclude the controversy between the parties, and as a consequence of the dismissal of the Wife’s claim with no alteration in property being made, I will order that any caveat lodged by the Wife over any property owned or controlled by the Husband be removed by her at her expense within 30 days.
COSTS SOUGHT
Costs applications are usually determined at the end of a case after consideration of findings. The Husband’s outline of case sought indemnity costs. Costs are determined by section 117 of the Act and do not simply follow the event. There is no reason why the ordinary course should not be followed, in accordance with the rules, if any application is made.

I certify that the preceding one hundred and sixty-five (165) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.
Associate:
Dated: 17 November 2023

File number:	MLC 11351 of 2020
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	17 November 2023
Catchwords:	FAMILY LAW – final property orders – de facto relationship – not a long relationship – both parties brought in and retained separate assets and residences – no jointly owned property – respondent was wealthy – applicant self-employed-consideration of whether any orders were just and equitable – search for principled reason to alter property of parties – section 90SM(3) just and equitable consideration – section 90SM(4) and section 90SM(3) not to be conflate – whether principled reason for alteration of property – application dismissed
Legislation:	Evidence Act 1995 (Cth) s140 Family Law Act 1975 (Cth) ss 4AA, 79, 90SF, 90SM
Cases cited:	Bevan and Bevan (2013) FLC 93-545 Chapman & Chapman (2014) FLC 93-545 Fox v Percy (2003) 214 CLR 118 Keskin & Keskin and Anor (2019) FLC 93-932 Stanford v Stanford (2012) 247 CLR 108; 293 ALR 70; 47 Fam LR 481; FLC 93-518; [2012] HCA 52
Division:	Division 2 Family Law
Number of paragraphs:	165
Date of hearing:	10 & 11 March 2022
Place:	Melbourne
Counsel for the Applicant:	Mr G. Glezakos
Solicitor for the Applicant:	Nicholes Family Law
Counsel for the Respondent:	Mr J. Mellas
Solicitor for the Respondent:	Lander & Rogers

MLC 11351 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS MARCOS Applicant
AND:	MR SERINA Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	17 NOVEMBER 2023

Property interests, superannuation and financial resources
Description				Ownership	Applicant’s value	Respondent’s value
ASSETS
1	Q Street, Suburb E			Applicant	$1,300,000	$1,300,000
2	ANZ Account #...12			Applicant	Nominal	Nominal
3	ANZ Account #...42			Applicant	Nominal	Nominal
4	ANZ Account #...98			Applicant	Nominal	Nominal
5	ANZ Business Account #...35 (Ms Marcos’ Business)			Applicant	Nominal	Nominal
6	ANZ Business Account #...55 (Ms Marcos’ Business)			Applicant	Nominal	Nominal
7	ANZ Account #...50			Applicant	Nominal	Nominal
8	Household contents			Applicant	Excluded	Excluded
9	Motor Vehicle 1			Applicant	$46,000	$46,000
10	V Street, Suburb F			Respondent	$1,600,000	$1,600,000
11	W Pty Ltd ATF the Serina Family Trust – (Trust owns property at …Suburb D)			Respondent	$2,180,000	$2,180,000
12	ANZ Account #...16			Respondent	Nominal	Nominal
13	ANZ Account #...62			Respondent	Nominal	Nominal
14	ANZ Account #...47			Respondent	Nominal	Nominal
15	ANZ Account #...64			Respondent	Nominal	Nominal
16	Household contents			Respondent	Excluded	Excluded
17	Loans owed by family members to Respondent			Respondent	$475,716	NIL
18	Unaccounted for proceeds of sale of Suburb D			Respondent	$1,103,798	NIL
19	Motor Vehicle 3			Respondent	$50,000	$50,000
20	Motor Vehicle 4			Respondent	$45,000	$45,000
Assets subtotal					$6,800,514	$5,221,000
LIABILITIES
21	AMEX Credit Card Account #...04			Applicant	$7,022	$3,245
22	ANZ Frequent Flyer Account #...47			Applicant	$10,697	$8,139 CR
23	Personal Loan from Mr G			Applicant	$157,913	NK
24	ANZ Home Loan Account #...14 (for Suburb E property)			Applicant	$488,836	$488,836
25	ANZ Frequent Flyer Account #...39			Respondent	$33,608	$33,608
26	ANZ VISA Account #...80			Respondent	NIL	NK
27	ANZ overdraft facility account ending #...84			Respondent	$19,482	$19,482
Liabilities subtotal		$717,558				$537,032
SUPERANNUATION
Name of Fund		Type of interest	Member		Applicant’s value	Respondent’s value
28	Super Fund 1	Accumulation	[Applicant]		$38,629	$38,629
29	Super Fund 2	SMSF	[Respondent]		$385,964	$385,964
Superannuation subtotal					$424,593	$424,493
TOTAL (assets – liabilities)					$6,082,956	$4,683,968
TOTAL (assets – liabilities + superannuation)					$6,507,549	$5,108,461
TOTAL (assets – liabilities + superannuation + financial resources + other)					$6,507,549	$5,108,461

$
*Wife’s existing* assets & liabilities**
The Suburb E Property (Agreed) 1,300,000
Suburb E property mortgage (488,836[26])
Suburb E Property Equity	811,164
Bank accounts	Nominal
Household contents	modest
Motor Vehicle 1	46,000
Credit card debts (not disputed)	(17,719)
Wife’s Superannuation	38,629
TOTAL Wife’s assets & liabilities	878,074
*Husband’s existing* assets & liabilities**
The Suburb F property	1,600,000
The Suburb D property (owned by a trust/trustee controlled by Husband & treated by the parties as if his property))	2,180,000
Motor Vehicle 3	50,000
Motor Vehicle 4	45,000
Husband’s home contents	modest
Husband’s Bank accounts	Nominal
Credit card (not disputed)	(33,608)
Overdraft facility (not disputed)	(19,482)
Husband’s self-managed superannuation	385,968
TOTAL Husband’s assets & liabilities	4,277,119
TOTAL ASSETS & LIABILITIES:	5,155,193