NEVILLE and BOWEN
[2025] FCWA 226
•24 SEPTEMBER 2025
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: NEVILLE and BOWEN [2025] FCWA 226
CORAM: O'BRIEN J
HEARD: [REDACTED]
DELIVERED : 24 SEPTEMBER 2025
FILE NO/S: 7350 of 2016
BETWEEN: MS NEVILLE
Applicant
AND
MR BOWEN
Respondent
Catchwords:
PROPERTY - Where during a long marriage the parties were both injured in a serious motor vehicle accident and individually received damages awards as a result – Where the wife alleges relevant family violence both before and after the motor vehicle accident – Where the injuries suffered by the husband caused behavioural changes, which impacted on the contributions necessarily made by the wife – Where subsequent to separation the wife acquired interests in trusts originating at the instigation of her late father – Where both parties contend for significant "addbacks" - Where those contentions would have been untenable even prior to recent legislative amendments and the decision in Shinohara & Shinohara - Discussion of relevant principles, particularly in relation to the treatment of paid legal fees and interim property distributions – Turns on its own facts
Legislation:
Evidence Act 1906 (WA)
Family Law Act 1975 (Cth)
Family Provision Act 1972 (WA)
Category: Reportable
Representation:
Counsel:
| Applicant | : | Ms T Farmer SC |
| Respondent | : | Dr R Ingleby |
Solicitors:
| Applicant | : | Mills Oakley |
| Respondent | : | Kim Wilson & Co |
Case(s) referred to in decision(s):
Aleksovski v Aleksovski (1996) FLC 92-705
Barnell & Barnell (2020) FLC 93-961
Benson & Drury (2020) FLC 93-998
Blandford & Esmore [2022] FedCFamC1A 67
Bulleen v Bulleen (2010) 43 Fam LR 489
C & C [1998] FamCA 143
Chorn and Hopkins (2004) FLC 93-204
Edinger v Duy (2023) 68 Fam LR 55
Falcken & Weule [2019] FamCAFC 140
Fields & Smith (2015) FLC 93-638
Gadhavi v Gadhavi (2023) 67 Fam LR 174
Gorga and Gorga [2020] FCWA 51
Hurst & Hurst (2018) FLC 93-851
Jabour & Jabour (2019) FLC 93-898
Jones v Dunkel (1959) 101 CLR 298
Khademollah and Khademollah (2000) FLC 93-050
Pickford v Pickford and Anor (2024) 70 Fam LR 85
Ryan v Zekas [2020] WASC 124
Shinohara & Shinohara [2025] FedCFamC1A 126
Stanford v Stanford (2012) 247 CLR 108
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Trevi & Trevi (2018) FLC 93-858
Vass v Vass (2015) 53 Fam LR 373
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
IT IS NOTED that publication of this judgment by this Court under the pseudonym Neville and Bowen has been approved by the Family Court of Western Australia pursuant to s 114Q(2) of the Family Law Act 1975 (Cth).
This copy of the Court's Reason for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) of the Family Court Rules 2021 (WA)) or to record a variation of the orders pursuant to r 311 of the Family Court Rules 2021 (WA).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
1The long-running proceedings between [Ms Neville] ("the wife") and [Mr Bowen] ("the husband") as to the alteration of their property interests went to trial commencing [in early] July 2025. At the conclusion of the trial [three days later in] July 2025, I reserved my decision.
2On 23 July 2025, the Full Court delivered judgment in Shinohara & Shinohara ("Shinohara").[1] That decision dealt with matters potentially relevant to the determinations required between these two parties, and in respect of which I considered it appropriate to give them the opportunity to make submissions. The parties sought to take up that opportunity and agreed a timetable within which they would do so. The husband filed written submissions on 15 August 2025 and the wife filed written submissions on 5 September 2025.
Overview
[1] [2025] FedCFamC1A 126.
3The parties were both born in 1964. While neither is now working, they are well-qualified professional people – the husband as a [health professional] and the wife as a [specialised clinician]. They began living together in 1995, married in [1996], and separated in [2016]. They were divorced in [2021]. They have two adult children, [Olivia] who is now 27 and [Emily] who is 26.
4The identification of the interests of the parties in property, the assessment of their respective contributions, and the consideration of their current and likely future financial circumstances are made more complicated by several factors.
5The parties were involved in a serious motor vehicle accident [in late] 2014. Both suffered significant injuries, which continue to affect them. Both pursued claims for damages with mixed outcomes that are outlined in more detail later in these Reasons. In short, the husband received significantly more in damages than did the wife.[2] The progress of these proceedings was necessarily delayed to await the outcome of those claims. Olivia and Emily also pursued damages claims.
[2] On the wife's evidence she eventually received a net award of $432,474. On the husband's evidence, he eventually received a net award of $1,249,689.13.
6The husband is now the sole owner of the family home [at an address in Suburb A] ("the [family home]"). The family home was previously in joint names. The proceeds of sale of a property previously owned by the wife [at an address in Suburb B] ("the [Commercial Property]") are presently preserved in an account ("the [Commercial Property proceeds]").
7The parties are the only members of the self-managed [Neville Bowen Pension Fund], and the husband is the only member of a separate fund, the [Mr Bowen Pension Fund].
8The wife is a beneficiary of [a Discretionary Trust], which was established at the instigation of her late father [Paul Neville] in 2021. She says that the Discretionary Trust was established with an initial payment from her father, and that Olivia and Emily subsequently paid their own damages awards into the trust by way of loan. She says that all distributions from the trust to date have been exclusively for the benefit of Olivia and Emily. As will be seen, that statement by the wife tells only part of the story.
9The wife is also a beneficiary of [a Testamentary Trust] ("the [Testamentary Trust]"). Her father died in 2022 and his estate is the corpus of the trust. It is primarily comprised of a property [in Suburb C] ("the [Testamentary Trust Property]"), in which the wife currently lives with Emily, and a motor vehicle.
The contentions of the parties and relief sought
Contributions – the positions of the parties as expressed at trial
10Some difficulty is faced in expressing in clear terms the contentions of the parties and the assessments of contributions which they sought.
11The wife contends that the parties "made similar initial contributions" and "approximately equal contributions to the acquisition, maintenance and conservation of the matrimonial assets and resources" during cohabitation. That said, she contends that because of the husband's conduct, particularly but not exclusively after the motor vehicle accident, her contributions were made more onerous. Overall, nevertheless, she contends that the contributions of the parties of all forms over the entirety of the relationship and up to trial should be assessed as being equal.
12The husband contends that the parties should each, in effect, retain the damages awards received by them. In his Papers for the Judge, he contended that "after the parties each retain their respective payments received as a result of their personal injury sustained by each of them, their contributions from the date of marriage up to 29 June 2018 [should] be assessed as equal".[3] Elsewhere in the same document, he said that he had "admitted for the purposes of the proceedings that the parties' contributions were equal from the date of the marriage to the date of his Affidavit filed on 29 June 2019." Leaving aside the typographical error as to the date of his Affidavit, those two positions expressed in the same document were potentially inconsistent, where the pursuit of the husband's claim for damages had commenced prior to the date identified.
[3] That date being the date on which he filed an affidavit responding to a Notice to Admit Facts that had been filed on behalf of the wife in which he stated that he was "prepared to admit that our contributions are equal from the date of our marriage up to the current date".
13In answer to a question from me, counsel confirmed that the husband contends that, but for the respective damages awards, the contributions of the parties up to the date of trial would appropriately be regarded as equal. On his case, it would not be just and equitable for the wife to, in effect, receive "a share" of the damages he received "when the purpose of the damages is to compensate him." He contends that the contributions of the parties in all forms over the entirety of the relationship and up to trial should be assessed in the proportions of 57.5 percent to him and 42.5 percent to the wife.
14In his written submissions filed on 15 August 2025 as to the impact of Shinohara, if any, the husband sought to alter his expressed position in relation to the assessment of contributions as summarised above. He did so in recognition that the approach for which he had previously advocated, described in those submissions as having "relied on the concept of addbacks to increase the size of the pool", by the addition of certain sums representing funds no longer held by the parties, was untenable. As will be seen, that approach was always untenable, and was not made so by Shinohara. A "pool" of existing property available for division cannot, and never could be, "increased in size" by reference to non-existent "notional property."
15In her written submissions filed on 5 September 2025, the wife submitted that Shinohara "stands prima facie for the proposition that 'add backs' as they stood prior to [the recent legislative] amendments… were extinguished". Having said that, she submitted that while "add backs' are not to be included in the asset and liabilities schedule… of the parties they may continue to be relevant pursuant to s 79(4) and s 79(5)." She submitted in effect that the mathematical approach to the consideration of individual contributions apparently contended for by the husband was misconceived.
Prospective factors
16The wife contends that, because of the injuries they suffered in the motor vehicle accident, neither party can return to work. The husband disputes that, asserting that the wife has retained an earning capacity. He points to findings to that effect made in the litigation regarding her damages claim. The wife says those findings were made without evidence to the contrary from her treating psychiatrist being adduced. She says that evidence was available at the relevant time and that she had expected it to be adduced by her then lawyers.
17The wife says that an adjustment of five percent in her favour to what would otherwise be the contributions-based division of property should be made. Notwithstanding his assertion as to the wife's earning capacity, the husband says that there should be no such adjustment in favour of either party.
The division of property
18The in-specie division of property is largely noncontentious.
19The husband lives in the family home and seeks to retain it. The wife is content for him to do so, provided that does not inhibit his ability to pay her the cash adjustment which she seeks. It is common ground that the wife should retain the Commercial Property proceeds and pay a Capital Gains Tax liability from those proceeds.
20The parties are the only members of the Neville Bowen Pension Fund. It is common ground that the wife should retain the full benefit of her member interest. She says that her interest should be rolled out, and that the husband should retain his member interest in the fund and control of it. The husband's position at the start of the trial was that a superannuation splitting order should be made in favour of the wife, to see her receive 100 percent of his member interest in the fund, from which he would then resign. By the conclusion of the trial counsel acknowledged that, if the cash payment the husband sought from the wife was to be made, there would be no utility in that splitting order. That was so as, in those circumstances, the wife would need to access the funds split in her favour in order to make the payment.
21It is common ground that the wife should retain her beneficiary interests in the Discretionary Trust and the Testamentary Trust, albeit the extent and value of those interests is in dispute. It is also common ground that the husband should retain his interest in the Mr Bowen Pension Fund. Subject only to specific orders by which the wife seeks to recover some jewellery currently in the possession of the husband,[4] it is common ground that each party should retain their own motor vehicles, chattels and personal bank accounts including funds already received by them by way of interim alteration of property interests. Similarly, it is common ground that the parties should retain responsibility for liabilities in their name and liabilities of any entity of which they are each to retain control.
[4] The husband did not dispute the proposition that the wife should receive her jewellery and neither party attributed any value to it.
22In real terms, therefore, the dispute is as to the amount of any cash adjustment to be paid by one party to the other.
23On the initial premise that the superannuation splitting order he proposed was made, at the commencement of trial the husband said that to meet the overall division for which he contends, the wife would need to pay him $684,895. If the splitting order is not made, the wife would need to pay him $189,737.
24On the premise that no superannuation splitting order is made, and she receives the jewellery items she seeks, at the commencement of trial the wife said that to meet the overall division for which she contends the husband will need to pay her $1,050,776.
25Thus, in dollar terms the positions of the parties were apart by approximately $1.24 million. In circumstances where in percentage terms their positions as to the appropriate division of the available property are apart by 12.5 percent of the identified total, that might be thought to lead to a conclusion that the value of the property available for division is something approaching $10 million. It is not. Rather, the apparent disparity between the positions of the parties expressed in percentage terms and their positions in dollar terms arises because of a dispute as to the extent of the wife's interest in the property of the Testamentary Trust, and a slew of addbacks for which each party contended.
26By the time of trial, and without allowing for the costs of the trial itself, the parties had spent something in the vicinity of $1 million in legal fees between them.[5]
The legal principles
Alteration of property interests
[5] As will be seen, a precise figure as to the amount spent by the wife in legal fees over the course of the litigation was not made available.
27The Court has a wide discretion conferred by s 79(1) of the Family Law Act 1975 (Cth) ("the Act"). That discretion must be exercised in accordance with legal principle, and without assuming that the parties' interests in assets are or should be different from those determined by common law and equity.
28The Court must be satisfied that it is just and equitable to make an order adjusting existing property interests. That requirement is readily satisfied in most cases, including this one. The parties are long separated, and both seek to discontinue any joint ownership of property. Steps to give effect to that have already been taken by the making of interim orders.
29In considering what order (if any) should be made, the Court is required to:
(1)identify the existing legal and equitable rights and interests in any property of the parties or either of them, and their existing liabilities;
(2)take into account considerations as to contributions which are listed in s 79(4) so far as they are relevant;[6] and
(3)take into account considerations relating to current and future circumstances which are listed in s 79(5) so far as they are relevant.
[6] Other than for the purpose of making an order with respect to ownership of a companion animal as that term is defined, which is not relevant here.
30The Court is required to consider the respective contributions of the parties, both financial and non-financial, holistically over the whole period to trial. That does not lend itself to a strictly mathematical approach. The holistic approach to the assessment of contributions accommodates the wide range of factual scenarios dealt with by the Court.
31There is no presumption that, even over the course of a long marriage, the contributions of the parties are to be regarded as having been equal. There is no requirement for an entirely discrete consideration of the impact of initial financial contributions, nor that the contributions of the parties be quantified at a particular past moment in time, whether by reference to the date of commencement of cohabitation or, for that matter, the date of separation.
32It is relevant in this case to bear in mind that s 79(4)(c) requires the consideration of the contribution made by a party to the "welfare of the family… including any contribution made in the capacity of homemaker or parent." The section contemplates a contribution to the welfare of the family as being "something more than a contribution in the capacity of homemaker and/or parent".[7] As has been observed, "whilst parenting as an occupation might stop or become less burdensome once children become adults, the ongoing role of both parents and later grandparents is no less an ongoing contribution".[8] In short, contributions of the nature contemplated by s 79(4)(c) do not automatically come to a halt when relevant children turn 18, nor on separation.
[7] Fields & Smith (2015) FLC 93-638, [97] and the authorities there cited.
[8] Bulleen v Bulleen (2010) 43 Fam LR 489, [170] per Cronin J cited with approval in Fields & Smith (2015) 93-638, [95].
33Since the recent amendments to the Act, the Court must consider the effect of any family violence on the ability of a party to make relevant contributions,[9] and on the current and future circumstances of the party subjected or exposed to that violence.[10] Those are matters squarely raised on the wife's case.
[9] Family Law Act 1975 (Cth), s 79(4)(ca).
[10] Ibid, s 79(5)(a).
34Nothing in the Act requires the Court to express in percentage terms its assessment of contributions, or its assessment of considerations relating to current and future circumstances, although that is often convenient and practical. Similarly, nothing in the Act requires the Court to allocate a percentage entitlement of the property to each party. What is required is a conclusion that the order proposed to be made is just and equitable in all the circumstances.
The evidence relied upon by the parties
35The wife relied on her affidavits accepted for filing on 20 February 2024 and 21 May 2024, and her Form 13 Financial Statement filed on 17 June 2025. She otherwise relied on the affidavit of her general practitioner [Dr Ross] filed on 19 April 2024, and the affidavit of her psychiatrist [Dr Bernard] filed that same day.
36The husband relied on his affidavit and Form 13 Financial Statement both filed on 9 May 2024.
37The parties jointly instructed a Single Expert Witness real-estate valuer, who reported as to the value of the family home and the Testamentary Trust Property. Based on [the] reports, the values of those properties were agreed by the parties for the purposes of trial. [The real-estate valuer] was accordingly not required to give evidence.
Observations to the evidence
38The assessment of the credibility of witnesses, relying solely or primarily on their presentation in the witness box, is potentially problematic in any case. To the extent possible, credit findings should be grounded in objective analysis of the evidence, rather than personal impressions of the witness. While those personal impressions can have a role to play, and can be pivotal where there is a lack of independent evidence, they must be considered with caution. The most confident and articulate witness can be a liar; the most hesitant witness can be truthful. In addition, even absent trauma of the nature that these parties have undoubtedly experienced, memories, particularly of events which occurred long ago, can be reconstructed without intentional dishonesty.[11]
[11] See the discussion in Ryan v Zekas [2020] WASC 124.
39In this case, the ongoing disabilities suffered by the husband severely affected his ability to give oral evidence. He struggles to speak and to construct coherent sentences. He is often unable to identify the relevant word for what he seeks to describe; that is not limited to adverbs and adjectives but extends to simple nouns.[12] The wife suffers from no similar disability.
[12] By way of example, when being sworn in before being cross-examined the husband was initially unable to state his name. Later, where he was unable to identify the word he needed to use he often said "thingy."
40At the conclusion of the trial, I raised with counsel the question of whether my assessment of the husband's credibility could be informed in any way by his presentation in the witness box. His counsel suggested that it could and that it should inform a positive finding. With respect, I disagree. Through no fault of his own, the husband's presentation was such that it could not confidently be interpreted, nor inferences or conclusions drawn from it, by a stranger without the relevant and specialised medical experience.
41I also raised with counsel the question of whether, in those circumstances, any global assessment of the wife's credibility might be informed by her presentation in the witness box. Counsel suggested that it could. Counsel for the husband pointed in that regard to what he would consider to be a discrepancy between the wife's presentation and that which might have been expected based on the evidence of Dr Bernard. Again, with respect I disagree. Where I simply cannot assess the husband's presentation, any negative overall impression drawn from the wife's presentation might work an injustice to her. To the extent I might form a positive overall impression from her presentation, that might work an injustice to the husband.
42My conclusions as to credit, therefore, are driven primarily by reference to the objective evidence, rather than by broad observations of the presentation of the parties in the witness box.
43In that context, as will be seen, some of the wife's evidence and conduct fell well short of the level of candour and honesty required. She gave false evidence as to the amount of money deposited by Olivia and Emily into the Discretionary Trust from their damages claims; when she admitted to that in oral evidence at trial, she did so at my direction and on the basis that a certificate under s 11 of the Evidence Act 1906 (WA) would be given to her. She admitted also taking active steps to distribute funds from the Discretionary Trust once she became aware that the husband's lawyers were enquiring about it. Her evidence as to the husband's conduct towards her and their daughters prior to the motor vehicle accident was inconsistent with her case in the civil proceedings, during which she attributed the husband's behaviour and alleged family violence exclusively to the effect of his injuries.
44Both professional witnesses gave their evidence in a straightforward and professional manner. I accept that they were truthful, and that the opinions they expressed were genuinely held.
The existing interests of the parties in property and their liabilities
45The parties conferred prior to trial. The extent of their interests in property, the values of those interests and the amounts of their liabilities were largely agreed. While various amounts held by the husband in accounts were noted on the joint schedule prepared for trial as requiring vouching, and that task was apparently not undertaken, they were not actively disputed by the wife in closing submissions.
46The matters requiring determination in that regard are:
(1)the values of motor vehicles and chattels in the possession of each party;
(2)the value of a horse float and tack in the possession of the wife;
(3)the amount if any of a debt said by the husband to be owed by him to his parents;
(4)the amount if any of a liability claimed to be owed by the wife in the form of unpaid medical expenses; and
(5)the value of the wife's beneficiary interests in the Discretionary Trust and the Testamentary Trust.[13]
Chattels
[13] No evidence was adduced as to the value of jewellery to be returned to the wife, and no findings can be made.
47The joint schedule filed by the parties indicated agreement as to the value of furniture in the possession of the husband. No value was attributed to furniture and household items in the possession of the wife, nor to the jewellery she seeks to recover and retain.
48The values of the motor vehicles and the horse float and tack were not the subject of any admissible evidence. Accordingly, the value can only be determined by reference to admissions made against interest.[14]
[14] Khademollah and Khademollah (2000) FLC 93-050.
49The husband seeks to retain the [Motor vehicle A] in his possession. In his most recent sworn Form 13 Financial Statement[15] he estimated the value of that vehicle at $36,000. The wife contends that the vehicle has a current value of $35,000. In fairness to the husband, I adopt the lower figure.
[15] Filed on 9 May 2024.
50The wife seeks to retain the [Motor vehicle B] in her possession. She estimates its value at $24,000. I accept that admission and adopt that value. Similarly, she seeks to retain the horse float and tack, estimating them to have a combined value of $5,000. In the absence of admissible evidence to the contrary I accept that admission and adopt that value.
51Those are the most significant chattels. I otherwise accept the relevant admissions against interest of each party in respect of chattels they seek to retain.
The alleged debt of the husband to his parents
52In his most recent Form 13 Financial Statement filed on 9 May 2024, the husband said he had a liability described as "loan to parents" (sic) estimated at $21,000. No further detail was given and there is no mention of any such liability in the husband's lengthy trial affidavit filed the same day.
53On the joint schedule of assets and liabilities filed by the parties on the first day of trial, the husband asserted a debt to his parents again "estimated" at $24,000. No evidence as to a precise amount, or the circumstances of any advance was adduced. That stood in contrast to evidence given earlier in the proceedings as to a specific advance made by the husband's parents to assist him in the period before he received his damages award, with an expressed expectation of repayment, and his evidence at trial of having made that repayment.
54Given the paucity of evidence, I am not satisfied that the husband presently has a repayable liability to his parents in either of the amounts estimated.
The wife's alleged minor liabilities
55There was a dispute on the papers as to the current amount owed by the wife on her NAB Visa credit card. The wife's figure as to the amount of the liability was actually lower than that noted on behalf of the husband. The absence of an agreement as to the lower figure likely reflects an oversight on the part of the solicitors for the parties. I adopt the lower figure.
56The wife included on the joint schedule a figure of $2,584 said to represent "unpaid medical expenses". That figure was not accepted by the husband. The wife's notation on the joint schedule referred to evidence given in her affidavit filed on 21 May 2024 asserting that liability. That evidence clarified that of the outstanding invoices she had detailed in her trial affidavit, only two invoices remained outstanding totalling $2,583.50. However, in her Form 13 Financial Statement filed only shortly before trial, the wife asserted that any "outstanding medical expenses not agreed to be paid by ICWA" totalled $9,183. No other detail was provided – the evidence did not even go to the extent of asserting that the expenses in question were related to injuries sustained in the motor vehicle accident.
57That matter and the discrepancy in her evidence was simply not addressed in submissions at trial. I decline to make any finding that the wife has unpaid medical expenses in circumstances where I could not rationally attribute an amount to them.
The Discretionary Trust
58It is common ground that the only asset of this trust is an amount of $378 in a bank account. In those circumstances, for obvious reasons it is tempting to treat the dispute as de minimus.
59In fairness to the husband, however, I do not take that approach. That is so, as he contends that the wife prematurely disposed of property belonging to the trust to avoid it being directly available for division between them. He initially sought to notionally add back a relevant figure for the purposes of calculation, as if those funds were still held by the trust. In turn, he contended that the assets of the trust should be regarded as being the property of the wife at full value. That argument was amended in written submissions filed after trial, to which I will return.
60As late as the commencement of the trial the wife did not concede that the assets of the trust should be regarded as being her property – but if they were, she said it could only be to the extent of one third of their value given the interests of the two adult children. By the conclusion of the trial, her counsel conceded that position was untenable, and that the property of the trust should be regarded as the wife's property.
61That was an appropriate concession for the following reasons.
62The Discretionary Trust was established by a discretionary trust deed executed [in] April 2021. The wife is the appointor of the trust. [A proprietary limited company] is the trustee; the trust deed records that the wife is the sole director and secretary of that company, but she says that subsequently Olivia was also appointed as a director. The wife acknowledges being the majority shareholder of the company.
63The wife, Emily and Olivia are the named beneficiaries of the trust. There is a broad class of eligible beneficiaries to include spouses, children and relatives of the named beneficiaries. Indeed, the husband is an eligible beneficiary, as a parent of Emily and Olivia.
64The trust deed confirms the absolute discretion of the trustee as to any distribution of income and capital. That discretion extends to the addition and removal of beneficiaries. Some of the trustee's powers can only be exercised with the consent of the wife as appointor.
65Accordingly, the Discretionary Trust is under the effective control of the wife, and distributions of capital and income can only be made at the absolute discretion of the corporate trustee which she controls. No beneficiary has an entitlement to any part of the trust fund; the discretion of the trustee is unfettered. At all times it has unquestionably been open to the wife to effect the distribution of the whole of the property and income of the trust to herself. Indeed, she has made distributions to herself when convenient, including it would appear of nearly $80,000 to meet legal fees.
66The property of the trust is properly regarded as property of the wife. That position is unchanged since the establishment of the trust. Any premature dissipation of trust property, if established, would thus represent dissipation of property otherwise available for division between the parties. As will be seen, however, that does not mean that moneys already distributed should simply be added back for the purpose of calculations as if property still held by the wife, as the husband initially contended, nor that the modified approach he proposed should be adopted.
The Testamentary Trust
67The Testamentary Trust was established by the will of the wife's late father. That will was executed on 28 August 2017, after the parties separated. The wife and her father's friend and accountant, [Ms Whitney], were named as joint executors and trustees. Paul Neville passed away on 19 April 2022.
68The will provided for Paul Neville's residual estate to be held on trust for the named primary beneficiaries (being the wife, Emily and Olivia) and for a wide range of descendants and others as eligible beneficiaries. The primary beneficiaries hold the power of appointment as to a trustee. Specific provision is made to permit the primary beneficiaries, with the consent of the trustee, to live in any home owned by the Testamentary Trust.[16]
[16] Having initially resisted the proposition that her interest in the Testamentary Trust could be characterised as property, the wife abandoned that position. Her counsel conceded in closing submissions that the interest should be so characterised.
69Relevantly, the terms of the trust include the following provision under clause 5(c):
The written consent of the Primary Beneficiary will be required before the Trustee may … (other than to or for the benefit of the Primary Beneficiary or equally between the Residuary Beneficiaries) …
(i)allocate the [Testamentary Trust] capital;
70And the relevant provision under clause 5(e):
Where the power of appointment in respect of the [Testamentary Trust] is held by more than one person, the Trustee may only exercise a discretion:
(i)with the written consent; or
(ii)in favour of and for, as nearly as is practicable, the equal benefit,
of each of those persons who are also Beneficiaries.
71And finally, as relevantly provided under clause 5(h)(xvi):
My Trustee may from time to time appoint new Trustees and if thought fit to increase the number of my Trustees.
72Thus, the wife and Ms Whitney as the trustees of the Testamentary Trust, may only exercise a discretion as nearly as practicable for the equal benefit of the wife, Emily and Olivia, or otherwise with the written consent of each of them. It is on that basis that the wife contends that her interest in the Testamentary Trust is limited to one third of its value.
73Counsel for the husband submitted that the wife, Olivia and Emily are "inextricably interlinked", and further that I should find that Olivia and Emily will inevitably act at the direction of the wife, such that they should be regarded as her "alter egos" when considering the beneficial ownership of the property of the Testamentary Trust. He suggested further that I should draw an adverse inference from the failure of the wife to call either Olivia or Emily as witnesses.[17]
[17] Jones v Dunkel (1959) 101 CLR 298.
74There are obvious problems with those propositions. While the husband's own relationships with Olivia and Emily are fractured, and he would attribute much of that to the wife's influence, that only goes so far. There is nothing in the husband's trial affidavit to even raise a contention that Olivia and Emily would simply act at the direction of the wife in relation to the Testamentary Trust, let alone to their own financial detriment. The finding sought is unsupported by any evidence. That in turn means that the adverse inference proposed simply cannot be drawn – in circumstances where the relevant allegation was not made by the husband in his evidence, no inference can be drawn from the wife's failure to call evidence from Olivia and Emily to refute it.
75I conclude that the wife's interest in the Testamentary Trust is property rather than a financial resource and that the value of that interest is one third of the value of the entire property of that trust, after deduction of liabilities.
76On the wife's evidence, the Testamentary Trust has a liability to her of $53,143 to repay costs met by her to "maintain the estate." That evidence was not challenged. Accordingly, the net value of the Testamentary Trust must take that liability into account, and it must also be reflected as a personal asset of the wife.
77The agreed value of the Testamentary Trust Property is $870,000. The only other asset of the Testamentary Trust is the [Motor vehicle C]. There is no admissible evidence as to the value of that car, but it is admitted by the wife to be $9,150 and I accept that admission. After allowing for the debt to the wife, the net value of the assets of the Testamentary Trust is $826,007. The value of the wife's one third interest is $275,336.
Disposition
78By reference to the findings above, and the otherwise agreed positions, I find that the existing interests of the parties in property, and the extent of their liabilities, are as set out in the table which appears below.[18]
[18] All figures are rounded to the nearest dollar.
Assets and Liabilities
Husband's Assets
The family home
$2,200,000
Westpac Choice Account ending [redacted]
$5,079
NAB Classic Banking Account ending [redacted]
$579
Westpac eSaver Account ending [redacted]
$306
Westpac BT Cash Management Account ending [redacted]
Nil
Furniture and Personal Effects
$15,000
Motor vehicle A
$35,000
Funds held in Kim Wilson Trust Account
$34,492
Total Assets:
$2,290,456
Husband's Liabilities
Pepper Money
$583,467
NAB Visa Account ending [redacted]
$7,809
Total Liabilities:
$591,276
HUSBAND'S NET ASSETS
$1,699,180
Wife's Assets
Interest in the Testamentary Trust – 1/3 interest
$275,336
ANZ Bank Progress Saver Account ending [redacted]
$406
NAB Account ending [redacted]
$2,095
ANZ Bank Account ending [redacted]
$257
Motor vehicle B (Reg No. [redacted])
$24,000
Horse Float and Tack
$5,000
Funds owed to the Wife by the Testamentary Trust
$53,143
Interest in a proprietary limited company as trustee for the Discretionary Trust
$378
Total Assets:
$360,615
Wife's Liabilities
NAB Visa Account ending [redacted]
$3,349
Personal taxation liability arising from the capital gains associated with the sale of the Commercial Property
$152,515
Total Liabilities:
$155,864
WIFE'S NET ASSETS
$204,751
Joint Assets
NAB Classic Banking Account ending [redacted] (net proceeds of sale of the Commercial Property)[19]
$334,594
TOTAL NET VALUE OF PERSONAL PROPERTY OF THE PARTIES
$2,238,525
Neville Bowen Pension Fund Assets
1,750 ANZ Group Holdings Ltd Shares
$51,100
575 BHP Group Ltd Shares
$20,752
1,900 NAB Ltd Shares
$76,152
500 Rio Tinto Ltd Shares
$52,185
1,750 Westpac Banking Corp Shares
$60,480
1,103 Woodside Energy Group Shares
$26,472
NAB Business Account ending [redacted]
$697,328
Income Tax Refundable
$5,847
Total Assets:
$990,316
[19] Whilst this was shown as an asset of the wife on the joint schedule filed by the parties, in closing submissions counsel confirmed that the account is in joint names.
Neville Bowen Pension Fund Liabilities
Deferred Tax Liability
$5,739
Sundry Creditors
$909
Total Liabilities:
$6,648
NEVILLE BOWEN PENSION FUND TOTAL NET ASSETS:
$983,668
Mr Bowen Pension Fund Assets
Cash HUB24
$77,446
Australian Shares
$203,332
Shares held in fixed interests
$171,587
Shares held in international equities
$184,071
Shares held in managed funds
$119,240
MR BOWEN PRIVATE PENSION FUND TOTAL ASSETS:
$755,676
TOTAL NET VALUE OF PROPERTY AVAILABLE FOR DIVISION:
$3,977,869
79The joint schedule tendered by the parties did not indicate any agreed value for the individual member entitlements of the parties in the Neville Bowen Pension Fund, in circumstances where it was not common ground that any superannuation splitting order should be made. There was no clear evidence on that point, albeit the financial statements for the fund for the year ended 30 June 2022 (being the only direct evidence on point) indicated that the individual member entitlements were roughly equal. The matter was not addressed by either party at trial.
80At my direction, the Principal Registrar wrote to the solicitors for the parties on 23 July 2025 drawing that issue to their attention and advising that in the absence of any agreed position, or a request for a relisting by a specified date to address the matter, I would proceed on the basis that the parties were content for me to find that their individual member entitlements are equal.
81The parties conferred and reached an agreed position as to the values of their individual member entitlements. I accept that agreed position.
Addbacks
82In this case, as in many others, issues arose as to the appropriate treatment of property no longer owned by the parties, but which was owned by them prior to trial. While the Court's power is only to adjust existing interests in existing property, circumstances often arise where the disposal of property post separation must be taken into account if a just and equitable order is to be made.
83Broadly, there are two approaches which were taken, at least prior to the recent amendments to the Act. The Court was often asked to notionally "addback" the value of disposed property. That could be considered, but merely as an aid to calculation in determining the appropriate division of existing property. Error could arise where a clear distinction was not drawn between that approach, used only to inform the broad exercise of discretion, and the sometimes-used descriptor of "notional property".
84Even where that clear distinction was drawn, the approach which was often taken could be problematic. More recently, the Full Court[20] has firmly cautioned against what it described as "the conceptually dubious practice of notional add backs".[21]
[20] For simplicity, I refer to the Federal Circuit and Family Court of Australia (Division 1) sitting in its appellate jurisdiction as “the Full Court”.
[21] Shinohara & Shinohara [2025] FedCFamC1A 126.
85Confusion could arise where the parties, or the Court, injected that concept into the required task of identifying the existing interests of the parties in property. For obvious reasons, property "that was owned at some time in the past but no longer exists at the time of trial, cannot be adjusted or divided."[22]
[22] Shinohara & Shinohara [2025] FedCFamC1A 126, [95].
86The recent amendments to the Act make a number of relevant matters clear, without otherwise departing from what was already established law.
87The Court must first identify the existing legal and equitable rights and interests in any property of the parties or either of them.[23] The Court must take into account the considerations relating to contributions listed at s 79(4), which includes a consideration of contributions made to the acquisition, conservation or improvement of any property, whether or not the parties still own it. The Court must also take into account the considerations relating to current and future circumstances listed at s 79(5), which includes a consideration of the effect of any material wastage of property or financial resources, caused intentionally or recklessly, and any liabilities incurred by either party including the nature of those liabilities and the circumstances relating to them. Finally, what was s 75(2)(o) is now replicated in s 79(5)(v) - the Court must take into account any other fact or circumstance which the justice of the case requires to be taken into account.
[23] Family Law Act 1975 (Cth) s 79(3)(a).
88 A further question arises whether following the legislative amendments and the recent decision in Shinohara, there remains a place for mathematical calculations regarding property which no longer exists in the determination of what orders altering interests in existing property are just and equitable.
89First, as already noted, confusion can arise where addbacks or related concepts are injected into the fundamental first task of the Court - the identification of existing legal and equitable interests in property. The risk of that confusion is nothing new.
90 Indeed, in Trevi & Trevi ("Trevi")[24] the Full Court said this:
The essence of a claim for add backs is that the asserted sum/s should be added to the value of the existing property interests of the parties and, subsequent to the assessment of contributions, (emphasis added) credited to the spending party as part of the value of their assessed entitlements. Doing so does not offend what was emphasised by the High Court.[25] Adding back does not seek to create property interests that do not exist. (emphasis added) Rather, doing so emphasises that satisfying the respective requirements of ss 79(2) and (4) can require an "accounting" or "balance sheet" exercise for the purposes of s 79(2) and (4) so as to include the value of the dissipated property or expended sums within the total value of the parties' existing interests in property, and to credit the value of same against the assessed entitlement of the dissipating or spending party.[26]
[24] (2018) FLC 93-858.
[25] Stanford v Stanford (2012) 247 CLR 108.
[26] Trevi & Trevi (2018) FLC 93-858, [47].
91In my view, subject only to the effect of the recent amendments to the Act, that remains an accurate statement of the law. While the Full Court in Shinohara did not refer specifically to the paragraph just quoted, neither did it suggest otherwise, nor suggest that any aspect of Trevi was wrongly decided.
92Further, adding back has always been the "exception rather than the rule".[27] Again, the Full Court in Shinohara did not suggest otherwise; rather, it expressed concern at the "practice of notional add backs generally [continuing] unabated" post–Trevi.
[27] C & C [1998] FamCA 143, [46].
93As the Full Court observed in Trevi:[28]
Two fundamental premises emerge from Omacini and the authorities preceding it. First, "adding back" is a discretionary exercise. When the discretion is exercised in favour of adding back, it reflects a decision that, exceptionally, in the particular circumstances of a case, justice and equity requires it. The second premise is its corollary: in cases that are not "exceptional" justice and equity can be achieved, not by adding back, but by the exercise of a different discretion – usually by taking up the same as a relevant s 75(2) factor. Indeed, it has been said that the latter is "a course which is, perhaps, technically more correct" than adding back to the list of existing interests in property.
[28] Ibid [30]; referring to Omacini and Omacini (2005) FLC 93-218.
94 In my view, the very recent admonition of the Full Court in Shinohara reinforces the observations clearly made in Trevi, while drawing attention to the now express relevant provisions of the legislation.
95The first key point, which has been unchanged for years, is that there is no such thing as "notional property". The Court can only make orders altering interests in existing property.
96The second point, which again in my view is unchanged, is that mathematical calculations are properly to be avoided in the necessary holistic assessment of contributions. That applies not only to purported addbacks, but also (for example) to considerations of the impact of particular forms of contribution.[29] That is reinforced not only by the reference in Trevi to any claim for addbacks being considered "subsequent to the assessment of contributions",[30] but by the emphasis given to the point by the Full Court in Shinohara, as to the holistic approach remaining applicable, and that (citations omitted):[31]
The proper approach to assessment of contributions … Is not a mathematical exercise, but rather involves the identification and assessment of all of the parties' respective contributions, in a holistic way across the course of the relationship and in the post separation period to the point of assessment. When engaging in such holistic assessment, all contributions must be weighed collectively and not by way of compartmentalising one against the other or the remainder.
[29] See for example, albeit in a different context, Jabour & Jabour (2019) FLC 93-898, Hurst & Hurst (2018) FLC 93-851, and Barnell & Barnell (2020) FLC 93-961.
[30] Trevi& Trevi (2018) FLC 93-858, [47].
[31] Shinohara & Shinohara [2025] FedCFamC1A 126, [133].
97Thus, it is in my view clear that the mathematical approach to the consideration of a specific form of contribution, as proposed by the husband in his written submissions, cannot be adopted. Again, in my view, that is unchanged either by the recent legislative amendments or by Shinohara.
98The question then is whether a mathematical approach can inform the required consideration of wastage under s 79(5)(d), or the required consideration of any other relevant fact or circumstance required to be taken into account in order to do justice, as contemplated by s 79(5)(v).
99Both considerations, like the consideration of contributions, require a holistic approach. No one consideration listed under s 79(5) inherently takes precedence over others. The relevance of each consideration in the facts of the particular case, and the relative weight to be given to them, must be the subject of that holistic approach.
100Provided that is understood, and the process adopted by a Judge in making the necessary "leap from words to figures"[32] does not muddy or obscure that understanding, in my view there is nothing inherently objectionable in that process including limited mathematical calculations designed only to inform the required holistic consideration.
[32] Steinbrenner & Steinbrenner [2008] FamCAFC 193.
101Any such approach, however, should be cautious. An approach which simply serves to assist and clarify the required overall exercise of discretion is one thing; an approach which risks attributing disproportionate weight to considerations which might lend themselves to a mathematical calculation, over considerations which might not, is to be avoided.
102Indeed, in Shinohara the Full Court cites without demur the observation in Vass v Vass[33] that "there is no error committed per se in adjusting the parties' actual property interests by a calculation (emphasis added) involving notionally adding back into the pool sums which have been dissipated by the parties".[34]
[33] (2015) 53 Fam LR 373.
[34] Shinohara & Shinohara [2025] FedCFamC1A 126, [138].
103Two issues which commonly arise, and which are unlikely other than in unusual circumstances to fall for consideration pursuant to s 79(5)(d), readily invite consideration pursuant to s 79(5)(v). Those are the questions of paid legal fees and interim property adjustments. In my view, nothing in the decision in Shinohara alters that, other than to reinforce that any consideration does not occur at the first step identified in s 79(3)(a).
104Paid legal fees have historically "[occupied] a particular position in the consideration of addbacks by reason of s [114UB(1)] of the Act".[35] Against the background of s 114UB(1) the Court has traditionally been alert to consider notionally adding back legal fees paid from monies which would otherwise have been properly available for division between the parties, and which were not generated by one party post separation from his or her own endeavours, so as to avoid a contribution by one party to the legal fees of the other, other than by a proper application of s 114UB(2).[36] The need to be alert to that issue remains, regardless of the approach taken to its consideration.
[35] Trevi & Trevi (2018) FLC 93-858 [36].
[36] Chorn and Hopkins (2004) FLC 93-204.
105Similarly, it is not uncommon for interim orders altering property interests to be made, particularly in the course of long‑running proceedings. Where those orders effect equal interim distributions to the parties, little difficulty arises. Where, however, they effect a distribution only to one party, or otherwise unequal distributions, attention must still be paid to them in determining the justice and equity of the final outcome. That will often be appropriately achieved by direct reference to the value of the property received by either party as a result of that interim alteration, whether or not that property still exists.
106The parties each contended at trial for addbacks of significant amounts. As will be seen, their contentions are problematic. In my view, frankly, they were inherently problematic even had the case been decided before the recent legislative amendments, and before Shinohara.
107For simplicity, in the discussion below I adopt the shorthand of "addbacks"; by that, I refer only to the undertaking of mathematical calculations as to either wastage, or other facts and circumstances which the justice of the case requires to be taken into account, and even then only as an aid to the required holistic consideration of the matters listed in s 79(5).
The wife's contentions
108For the reasons that follow, I do not propose to adopt any of the addbacks proposed by the wife.
Legal fees
109The wife initially submitted that an amount of $665,758 should be notionally added back as if retained by the husband, representing the amount paid by him for legal fees in these proceedings up to the commencement of trial. She submitted that an amount of $273,000 should be similarly added back as if retained by her.
110Historically, the exercise of notionally adding back paid legal fees to inform the exercise of discretion in adjusting interests in existing property, in circumstances where the fees were met from capital rather than post separation personal exertion income, was largely noncontentious and uncomplicated. That is not the case here, even before any consideration of Shinohara.
111That is so, as the figure initially proposed by the wife to be notionally added back as if retained by her represents only an undefined portion of the legal fees she has incurred and paid in these proceedings. It is described as her "best estimate" of "net legal fees paid to date … from capital."
112The proceedings were commenced by the wife in November 2016. At that point, she was represented by O'Sullivan Davies. That firm acted for her until it filed a Form 9 Notice of Ceasing to Act on 21 October 2022. It may reasonably be inferred that considerable work had been undertaken, given that the matter had progressed to the point of a trial being listed in October 2018.[37]
[37] That trial listing was vacated by an order made on 28 September 2018, to await the determination of the personal injury compensation claims of the parties.
113The wife was then represented by McClelland Lawyers, who filed a Form 8 Notice of Address for Service on her behalf on 26 October 2022. That firm remained on the record until 19 June 2023, when the wife's current lawyers filed a Form 8 Notice of Address for Service on her behalf.
114Doing the best that I can based on the costs notification letter of the wife's lawyers, most of the $273,000 estimate relates to fees for her current solicitors and counsel. It does not appear to include any amount for fees paid to O'Sullivan Davies over a period of nearly six years, McClelland Lawyers over a period of some eight months, or disbursements, including counsel fees that may have been incurred by either firm.
115Thus, the wife's proposition was that the whole of the husband's legal fees incurred and paid to the firm which has represented him throughout the proceedings should be notionally added back, while only an unspecified proportion of her legal fees incurred and paid should be similarly added back. That had the obvious potential to work an injustice to the husband, potentially by an amount of $200,000 or more.
116I had squarely raised that issue [on the first day] of the trial [in] July 2025, so that it could be addressed. No evidence was then adduced by the wife directed to that issue, nor was I advised of any agreement as to the total amount of the legal fees incurred by her. Rather, at the conclusion of closing submissions I was advised that an updated costs notification letter could be provided.
117The difficulty with that proposed approach is clear. While the parties are required to exchange and lodge costs notification letters, they do not form part of the evidence unless tendered for that purpose. In most cases that is unnecessary, as the letters themselves provide the information which leads to agreement between the parties as to the relevant figures. There was agreement in this case as to the total legal fees paid by the husband, but there was no such agreement as to the fees paid by the wife. Thus, evidence was required.
118That difficulty was acknowledged by counsel for the wife. No application to reopen to adduce the required evidence was made. The potential injustice in adding back the whole of the husband's paid legal fees, and only an undefined proportion of the wife's paid legal fees, was not obviated. In those circumstances, I consider the only proper course available is to decline to add back legal fees for either party, or otherwise consider them in any mathematical calculation.
119If, as appears likely, the wife has paid less towards legal fees than has the husband, such that the failure to consider paid legal fees by any form of mathematical calculation operates to her disadvantage, that is regrettably a circumstance of her own making.
Monies spent by the husband and sourced from his damages award
120The wife initially submitted that an amount of $189,689 should be notionally added back as if retained by the husband, asserting that he placed that amount from his damages award into his personal account and subsequently spent it.
121On the husband's evidence, the damages award was $1,520,000 plus costs to be agreed or taxed. The Insurance Commission of Western Australia subsequently paid him $173,400 by way of costs.
122That total award of $1,693,400 was then paid by the husband as follows:
(a)$108,845 to the Australian Taxation Office;
(b)$1,060,000 into the Mr Bowen Pension Fund;
(c)$255,013 in legal fees associated with the personal injuries litigation;
(d)$60,328 to his lawyers in these proceedings;
(e)$7,231 to his speech therapist;
(f)$12,295 to his accountants; and
(g)the amount of $189,689 referred to above into his personal account.
123Thus, of the $1,249,689 remaining after tax, legal fees and other noncontentious expenses were met, the husband was said by the wife to have failed to account for expenditure of $189,689. The husband deposed to having given disclosure of all statements for the account to which that amount was deposited, both before and after the deposit.
124It subsequently emerged that of the $189,689 in question the husband had paid $115,000 to his parents, repaying them for payments of legal fees they had made on his behalf. In closing, counsel for the wife indicated that she no longer pursued the proposed addback of $189,689 but instead pursued an addback of $115,000 as having been identified as being paid towards legal fees. No submission was directed to the question of whether that amount was included in the total legal fees already identified as having been paid by the husband, which would raise the clear possibility of the same amount being "added back" twice, but nothing turns on that.
125For the reasons already articulated, it would be unfair to add back only a specific identified portion of the legal fees of either party. The purpose of undertaking mathematical calculations regarding legal fees paid from funds which would otherwise have been available for distribution between the parties is to ensure that neither party indirectly subsidises the legal fees of the other, other than in the context of a properly made costs order. Achieving that purpose requires an even‑handed consideration of all legal fees met by either party from funds which would have otherwise been available for division.
126The concession by counsel for the wife as to the additional $74,689 initially sought to be added back to reach the total of $189,689 was appropriate. The evidence clearly supports a finding that at relevant times the husband's expenses exceeded his available income. Even before Shinohara, capital spent by parties on reasonably necessary living expenses was not susceptible to being added back.
Share of accounting fee in relation to the Neville Bowen Pension Fund
127Initially, the wife sought that an amount of $1,491 be added back as if property retained by the husband, representing the portion of accounting fees for the Neville Bowen Pension Fund paid by her and for which he should have been responsible. Sensibly, that proposition was abandoned in closing submissions.
Interim property settlement
128Consent orders for what was described as "partial property settlement" were made on 5 February 2019. Each party received $117,283. On the joint schedule of assets, liabilities and superannuation filed and relied on by the parties, the wife proposed that those equal amounts should be added back for the purposes of calculation. The husband did not agree.
129In closing submissions, counsel for the wife submitted that the amounts received by each party pursuant to those orders should be notionally added back. Counsel for the husband said that he had no strong view as to whether that should happen, or whether instead the amounts received by each party should simply be ignored for the purposes of calculation.
130The parties received equal amounts. It is unnecessary to undertake any mathematical calculation to inform a consideration under s 79(5)(v) of their receipt of those funds. That is so, even though neither proposes an equal division of the available property, and both contend for a calculation of percentage based final entitlements. Any minor mathematical discrepancy which might arise would not be such as to lead to any injustice or inequity. I do not propose to add back or otherwise consider in any calculation either interim distribution.
The husband's contentions
131For the reasons that follow, I do not propose to adopt any of the addbacks proposed by the husband.
Funds drawn by the wife against joint redraw facility at about the time of separation
132At or about the time of separation, the wife drew down $100,000 from a joint loan facility secured against the family home and paid those funds into an account in her sole name. She also accessed a further sum of $70,000, said to be from the proceeds of sale of her [clinic], which had been sold some years prior to separation. She applied those funds to her own use. The husband proposed that they be notionally added back for the purpose of calculations as if property retained by her.
133On the wife's evidence, upon which she was not challenged, she spent those funds on a family holiday, school fees, establishing herself in a rental property after separation, rent, and various expenses for the benefit of Emily and Olivia including expenses associated with their equestrian activities.
134At the relevant time, like the husband, the wife had not received her damages award. She was reliant on rental income and payments from her income protection insurance policy. On her evidence, her expenses exceeded her income, and she had the care of both Emily and Olivia.
135I am not persuaded to add back the amount proposed by the husband, nor give the relevant expenditure weight in any consideration under s 79(5)(v), in circumstances where the unchallenged evidence of the wife is that at least the bulk of the funds in question were spent on reasonable living expenses.
Interest estimated by the husband as having been paid by him on funds drawn by the wife from the joint redraw account at or about the time of separation
136Initially, the husband submitted that an amount of $62,000 should be added back as if property still retained by the wife. That figure represented his estimate of interest paid by him in servicing that part of the joint loan facility which equated to the wife's withdrawal of what he alleged was $180,000[38] at the date of separation, with that interest being paid over the period 3 June 2015 until the relevant account was closed in 2024.
[38] Later amended to $170,000.
137Sensibly, that proposition was abandoned in closing submissions.
Funds paid by the wife to settle claim against the estate of her late father
138Probate of the will of the wife's late father was granted to her and to Ms Whitney [in] September 2022. [In] February 2023, [Alex Neville] and [Daniel Neville][39] commenced proceedings in the Supreme Court by originating summons, naming the wife and Ms Whitney as defendants in their joint capacities as executor of the estate, and the wife, Emily and Olivia as individual defendants, presumably as named primary beneficiaries of the Testamentary Trust. They each sought a payment of $200,000 pursuant to s 6 of the Family Provision Act 1972 (WA) and costs.
[39] The wife’s niece and nephew.
139The proceedings were settled by payment of a total of $130,000 divided between Alex Neville and Daniel Neville. Legal costs of $20,000 were incurred. The Testamentary Trust had no liquid assets, and the wife, Emily and Olivia did not want to sell the Testamentary Trust Property to make funds available. The wife accordingly made the payment required to Alex Neville and Daniel Neville, and paid the legal costs, from her own resources.
140The husband initially sought that the amount of $150,000 just described be added back for the purposes of calculation as if it were property still held by the wife. In closing submissions, I asked counsel for the husband how that proposition could be maintained in circumstances where the husband's case is that the wife is the beneficial owner of the whole of the property of the Testamentary Trust; thus, on the husband's case, the wife merely paid expenses otherwise payable by her from her trust property but chose to pay them from a different source.
141Counsel for the husband abandoned the proposed addback, and an associated further proposed addback of $9,559 representing legal fees paid on behalf of the wife, Emily and Olivia as defendants in their personal capacities.
142I acknowledge that, contrary to the husband's primary position, which may have been the only basis upon which the concession was made, I have concluded that the wife has only a one third interest in the Testamentary Trust. Nevertheless, even absent the concession made, I would not have exercised the relevant discretion to add back the amounts in question, nor considered the amounts wasted for the purposes of s 79(5)(d). It was reasonable for the wife to seek to settle the claim against the estate without having to sell the Testamentary Trust Property.
143That said, the wife's failure to record those payments made as a loan to the Testamentary Trust, and the effect of that in preserving the net asset position of the Testamentary Trust while effectively reducing her personal assets, is appropriately considered by reference to s 79(5)(v). I do not propose to do so by reference to any mathematical calculation.
Funds distributed to the wife by the Discretionary Trust and applied to legal fees
144At one point, the wife asserted that she had a liability of $77,321 to the Discretionary Trust. The husband disputed the liability, while accepting that she had received that amount by way of distribution and applied it to legal fees. He contended that amount should be added back for the purposes of calculation as if it were property still held by her. In closing submissions, the wife did not contend for the alleged liability and the husband abandoned the proposed addback.
Monies distributed by the wife from the Discretionary Trust
145As earlier noted, despite the position previously maintained by her, by the conclusion of trial the wife conceded that property of the Discretionary Trust should be regarded as her property. She did so without resiling from the submission that notwithstanding her effective control of the trust and her ability to distribute capital and income exclusively to herself, she regarded the trust as having been established for her benefit, and that of Olivia and Emily, and would act accordingly.
146The trust was established [in] April 2021. At that point, these proceedings were effectively in abeyance, having been adjourned on 28 September 2018 to await the outcome of the parties' personal injuries claims, subject only to the resolution of a number of interlocutory issues.[40]
[40] Which were resolved by consent [in] February 2019.
147On 28 August 2023, the wife's current lawyers (who had only then relatively recently been instructed)[41] sent a schedule of the wife's documents subject to her duty of disclosure to the husband's lawyers. The schedule was dated 5 July 2023. It made no reference to any documents associated with the Discretionary Trust, nor to the existence of the trust.
[41] Having filed a Form 8 Notice of Address for Service in these proceedings on 19 June 2023.
148On 15 September 2023, the husband's lawyers wrote to the wife's lawyers seeking specific disclosure. In particular, they sought the financial statements, constitution or memorandum and articles of association for all entities controlled by the wife or in which she had an interest, including but not limited to the proprietary limited company which was the corporate trustee of the Discretionary Trust.
149On 20 October 2023, the wife's lawyers provided an updated disclosure list, and answered various queries raised by the husband's lawyers. Specifically, they stated that they had been "recently instructed" in respect of the proprietary limited company and the trust, having "received some instruction on 12 October 2023, some disclosure on 13 October 2023 and 17 October 2023, and confirming instructions on 20 October 2023."
150They said further that the wife "instructs that she did not consider same to be relevant to her disclosure obligations", by which they referred to the proprietary limited company and the Discretionary Trust.
151The wife was represented from the commencement of the proceedings in November 2016 (at the latest) until 21 October 2022 by O'Sullivan Davies, a specialist family law firm. She gave an Undertaking as to Disclosure on 6 July 2018, confirming in standard terms that she understood her duty of disclosure and had complied with it. While I appreciate that undertaking was given before the establishment of the trust, the representation as to her understanding of her duty of disclosure was nevertheless made.
152I acknowledge also that, as the proceedings were largely in abeyance, the wife was not required by any procedural order to file an updating Form 13 Financial Statement until she did so on 23 October 2023. That, however, only goes so far. The wife was clearly required by rule 201[42] to file a new Form 13 Financial Statement or affidavit in lieu within 21 days after the change in her circumstances which arose from the establishment of the trust. She did not do so.
[42] Family Court Rules 2021 (WA).
153The wife was also obliged to disclose the existence of the trust, and her interest in it, and relevant documents within her possession power or control relevant to it. She was required to do so promptly and proactively, not simply to wait for the husband to "ask the right question".[43] She did not do so.
[43] Gorga and Gorga [2020] FCWA 51 and the authorities there cited in relation to the issue of disclosure.
154In the Form 13 Financial Statement the wife eventually filed on 23 October 2023, she acknowledged that she was the appointor of the Discretionary Trust and one of three specified beneficiaries. She described her entitlement in the trust as a financial resource. She said that the trust was established in 2021 for the benefit of herself, Olivia and Emily.
155Relevantly for present purposes, she said this:
[The proprietary limited company] has held cash in a bank account on behalf of the [Discretionary Trust]. My father paid in $280,000. My daughters each paid in a sum too, by way of loans to the trustee company which have now been repaid. The trust is discretionary. Recent distributions leave the trust balance at $84,457.67.
156That evidence was unacceptably vague in the circumstances described below.
157Bank statements tendered into evidence established the following:
(1)the bank account for the trust was opened on 15 June 2021 with a nil balance;
(2)Emily deposited $47,391 into that account in three transactions on 22 August 2021, 2 September 2021, and 3 September 2021;
(3)no further deposits were made until 5 January 2022, when the wife's father deposited $280,000;
(4)Olivia transferred $30,000 into the account in three separate transactions on 5 January 2022, 7 January 2022 and 11 January 2022, bringing the balance of the account to $357,391;
(5)various expenses were met from the account on behalf of Olivia and Emily over the period of June 2022 to 12 October 2023, of relatively modest individual amounts, reducing the balance in the account to $320,109; and
(6)a total of $236,110 was then transferred to Olivia in four separate transactions on 19 October 2023, 20 October 2023 and 21 October 2023 bringing the balance down to $83,999. As already noted, the husband's lawyers had sought information and disclosure about the trust on 15 September 2023 and received a reply on 20 October 2023.
158In her responsive trial affidavit filed on 21 May 2024, in the context of explaining her nondisclosure the wife said:
I did not think it was relevant to the asset pool available for division, especially considering it was established 6 years after separation, it was for the sole benefit of the children, and [the husband] had not contributed to it.
159The balance in the trust bank account at the time the wife swore that affidavit was $81,699. Having sworn to that position, notably as to the trust being for the "sole benefit of the children", she subsequently transferred some $79,367 from the trust bank account to her own bank account, with the notations on the withdrawals recording that she did so to pay legal fees.
160It is clear that the wife took the steps just described to reduce the amount held in the trust which could be regarded as her property and thus available for division. In cross-examination she admitted as much. I asked her why she paid $236,110 out of the trust over the course of three days. She replied, "because when we found out that this was counted in Family Court, the girls asked me to get their money out."
161By the time of the commencement of trial the wife's position was that her interest in the trust was limited to "1/3 of the corpus", which as a result of her withdrawals was only $378.
162It is in those circumstances that the husband contended that the whole of the amounts distributed should be notionally added back for the purposes of calculation, as if property still held by the wife.
163While that contention is understandable, it is simplistic. Emily and Olivia are eligible beneficiaries of the trust. Each had paid monies into the trust. It was always open to the wife to exercise her discretion to make distributions to either or both. The fact that she did so in the manner already described does not alter that. The evidence does not support a conclusion that, were it not for these proceedings, no such distribution would ever have been made. The distribution cannot be characterised as wastage for the purposes of s 79(5)(d).
164Equally, to add back the amounts withdrawn by the wife to her own benefit and applied to legal fees would raise the same issues already canvassed as to selective addbacks of that nature.
165In those circumstances I decline to simply add back the relevant amount. I record that I would have reached the same conclusion prior to Shinohara. Neither party should misunderstand that. The wife's actions may, and will, appropriately be more broadly considered in the context of s 79(5)(v), albeit not by reference to any mathematical calculation. Her conduct of the proceedings, including the matters just recounted, may be the subject of submissions and consideration in any costs application brought by either party.
The contributions of the parties
Background to the required consideration
166At an earlier stage of the proceedings, the wife served a Notice to Admit Facts calling on the husband to admit, for the purpose of the proceedings, that "the parties' respective contributions and their contribution based entitlements to the property and superannuation of the parties (but excluding any payments received by the parties as a result of the personal injuries sustained by each of them during the relationship) from the date of marriage to the date of separation be regarded as equal." A further admission was sought that "on the basis that payments arising from the parties' respective personal injury claims are treated separately from the balance of the property of the parties", the only relevant factors for consideration pursuant to what was then s 75(2) were s 75(2)(b) "only in so far as this relates to monies which may be received and retained by either party arising from their respective personal injury claims for past and future economic loss" and the commitments of each party necessary to enable them to support a relevant child.
167That admission was sought by the wife before either party had received their damages award. It may reasonably be inferred from subsequent events that it was sought at a time when the wife did not anticipate that the husband's award would exceed hers by any significant margin.
168In his affidavit filed on 28 June 2018, the husband said that he was "prepared to admit that our contributions are equal from the date of our marriage up to the current date (not the date of separation as stated by [the wife] in her Notice to Admit)", subject to each party retaining the benefit of the individual income protection insurance policies and the proceeds of their respective personal injury claims.
169At trial, neither counsel addressed the question of whether the "facts" which the wife sought to have the husband admit were capable of being the subject of a Notice to Admit Facts nor whether it might be suggested that either party was in any sense estopped from departing from the positions just described.
Financial contributions after separation
207After separation, the husband continued to live in the family home. The wife continued to receive rental income from the Commercial Property.
208The parties had a portfolio facility with National Australia Bank ("NAB"). The facility comprised four separate sub accounts:
(1)a home loan (sub account [redacted]) in joint names, secured by mortgage against the family home;
(2)a business loan (sub account [redacted]) in joint names;
(3)a further business loan (sub account [redacted]) in the wife's sole name and secured by mortgage against both the Commercial Property and the family home as security; and
(4)a further facility (sub account [redacted]) in joint names on which only a modest amount was owed.
209Orders were made, and undertakings given, in April 2017 requiring the husband to continue to meet the repayments associated with [the home loan in joint names secured against the family home and the business loan in joint names]. In addition, the husband maintained responsibility for [the further facility in joint names on which only a modest amount was owed]. At the same time, orders were made and undertakings given, requiring the wife to continue to meet the repayments associated with [a further business loan in the wife's sole name and secured against the Commercial Property and the family home]. The most significant loans were [the home loan in joint names secured against the family home and the further business loan in the wife's sole name secured against the Commercial Property and the family home].
210Thus, the husband continued to service the debt associated with the family home and had the benefit of living in the home. The wife continued to service the debt associated with the Commercial Property and received the rental income from it until it was sold. That income amounted to approximately $56,000 per annum at the time the wife filed her trial affidavit in February 2024.
211In April and May 2020, the husband received the settlement proceeds from his personal injury claim, and a contribution towards his legal costs. The amount received from the Insurance Commission of Western Australia totalled $1,693,400. The disbursement of those funds is summarised earlier in these reasons. $1,249,689 remained after tax, legal fees and other noncontentious expenses were met. The Mr Bowen Pension Fund was established entirely from the proceeds of the damages claim, and the amount of $755,676.00 remained in that fund as at the date of trial.
212In August 2021, the wife's solicitors in those proceedings received her gross damages award, having proceeded to trial in the District Court, being $850,313.24 before any contribution by the insurer towards her legal costs and the consideration of any subsequent appeal or costs application. Later in August 2021, the wife received the settlement proceeds from her personal injury claim in the net sum after legal fees of $444,816.77. In November 2023, the matter having proceeded on appeal to the Supreme Court, the wife's solicitors received a net contribution towards her legal fees from the Insurance Commission of Western Australia of $106,000. That figure was calculated after deductions were made for costs payable by the wife in relation to unsuccessful aspects of her appeal, a reduction of the damages award, and the addition of costs payable to the wife both from the District Court proceedings and the parts of the appeal and cross‑appeal in which she was successful.
213On the wife's evidence, which was not challenged, she ultimately received a net compensation award of $432,474 after paying all legal costs, including those associated with the appeal.
214At the time of swearing her trial affidavit in February 2024, the wife said that she had "expended much of the $432,474 already, in expenses including defending [her] late father's Estate." Her evidence did not descend into more detail, beyond saying that she had to meet costs of approximately $53,143 to maintain her father's estate as earlier noted and incurred approximately $150,000 in expenses related to the challenge to the estate by Alex Neville and Daniel Neville. Had she not paid those expenses, the property of the Testamentary Trust would necessarily have been sold. Thus, to a degree at least the fruits of that contribution remain available for division.
215In making that observation I acknowledge that the wife's interest in the Testamentary Trust is as to only one third of the property of that trust, but she chose to make the payments in question in full without any contribution from Emily or Olivia. In effect, of the $150,000 spent by the wife settling the claim against the estate, $100,000 was spent for the benefit of Olivia and Emily and was thus made unavailable for division between the parties.
216The damages awards received by each party are appropriately considered as contributions predominantly by the party receiving them.[50] That does not mean they should be considered in isolation, as appeared to be the position adopted by both parties early in the proceedings; all contributions by each party of whatever form must be weighed and considered holistically.
[50] See Aleksovski v Aleksovski (1996) FLC 92-705, 83,437 and Falcken & Weule [2019] FamCAFC 140.
217As already noted, the Discretionary Trust was established by a discretionary trust deed executed on 30 April 2021. I have determined that it was at all material times property of the wife. In the circumstances earlier described, that represented a financial contribution by her, albeit only a modest amount remains to show for that contribution.
218Similarly, the wife's interest in the Testamentary Trust represents a financial contribution by her.
219Both parties received payments from income protection insurance policies post separation. The payments received by the husband were higher than those received by the wife, but both parties applied the whole of the income so received to their own support and other expenses. Neither applied the payments directly to the support of the other, certainly after separation. Neither contended that any payment, for example, towards what would otherwise be joint liabilities should inform the overall assessment of their respective contributions.
Non-financial contributions after separation
220Apart from any steps he may have taken to maintain and preserve the family home, the husband has not made any identifiable non‑financial contributions after separation. Sadly, he has no ongoing relationship with Olivia and Emily.
221The wife has continued to make non-financial contributions as a parent since separation. Olivia and Emily both have various issues which impact on them; it is clear that they continue to require support, and that they receive that from the wife. The husband readily acknowledged that Emily in particular continues to need support and assistance.
222It may also be readily inferred that the wife made non-financial contributions after separation in maintaining and preserving the Commercial Property before it was sold and the Testamentary Trust Property in which she continues to live.
Conclusion as to the contributions of the parties
223I have considered all of the contributions of the parties of all forms, for the whole of the period from the commencement of the relationship to trial.
224In broad terms, over the roughly 20 years of cohabitation prior to the motor vehicle accident those contributions would likely have been assessed as having been equal. For the period of roughly 18 months between the accident and separation, largely because of the significance of the husband's injuries, the wife necessarily made greater contributions, and those contributions were made more onerous by the effect of the husband's head injuries on his personality and behaviour. The direct contribution by each party of their respective damages awards favours the husband, and not only because his net award was significantly higher than that received by the wife – the actions he took have preserved much of that award so that it remains available for division, when the same cannot be said for the wife. The relevant interests in the Discretionary Trust and the Testamentary Trust were contributed by the wife, but nothing remains of the former. The wife has also continued to make a significant parenting contribution over the nine years post separation, in difficult circumstances, where the husband has made no such contribution. The husband has maintained the most significant asset available to the parties, the family home, but has had the benefit of living in it.
225The inevitability of a "leap from words to figures" in the assessment of contributions is well known,[51] and cannot be minimised by "scoring each factor and then somehow calculating the total".[52] Having considered all the matters discussed above, I conclude that the respective contributions of the parties are appropriately assessed as 55 percent by the husband, and 45 percent by the wife.
[51] Steinbrenner & Steinbrenner [2008] FamCAFC 193, [234].
[52] Blandford & Esmore [2022] FedCFamC1A 67, [14].
226Alteration of property interests based solely on that assessment would see the husband retain property to a net value of $2,187,828, and the wife retain property to a net value of $1,790,041.
Prospective matters
227The husband did not suggest that any alteration by reference to prospective factors should be made to what would otherwise be the contributions-based outcome in the case. The wife contends that an adjustment in her favour of five percent of the value of the overall property available for division should be made. She does so by reference to the income disparity between the parties, the fact that the husband has a home in his sole name and she does not, her ongoing responsibilities to support Emily in particular, and what she would contend to be the ongoing impact on her of family violence.
228The wife will shortly turn 61. She has not been employed since the motor vehicle accident. It was appropriately conceded by counsel for the husband that she is not physically capable of returning to work as a specialised clinician. I am satisfied based on the evidence of Dr Bernard in particular that there is no reasonable prospect of the wife returning to any substantial paid employment of any form.
229The wife's current income is $2,146 per week from her income protection insurance and a modest government allowance related to her care of Emily.
230The husband has recently turned 61. Properly, it is accepted by the wife that there is no prospect of him returning to any form of paid employment. In his most recent Form 13 Financial Statement, he said that his income was $3,199 per week from his income protection insurance and a modest carers allowance.
231Both parties have significant, and ongoing, health issues. Neither has a legal obligation to support any other person, but I acknowledge that the wife has provided significant support to both Olivia and Emily since separation, including financial support, and that she will likely continue to do so. I note in that regard that while Emily requires support, she has a partner and splits her time between the wife's home and her partner's home. Neither Emily nor her partner gave evidence. The wife's evidence about Olivia's circumstances was vague and Olivia did not give evidence.
232While the husband's ongoing income from insurance exceeds the wife's by a significant margin and it is correct to observe that he has a house in his sole name while the wife does not, that tells only part of the story.
233The wife's ongoing treatment needs are likely less than those of the husband. While she does not have a house in her sole name, she has the ongoing right to occupy the Testamentary Trust Property and there is nothing in the evidence to suggest that Olivia and Emily would join forces to bring that to an end. She will, based on the contributions‑based outcome, receive a significant payment. If she has not already reached a condition of release for her superannuation, noting there was no evidence adduced in that regard, it may fairly be inferred that she will do so in the relatively short term.
234I am not persuaded that any extent to which the effects of the husband's behaviour following the motor vehicle accident have impacted on the wife's current mental health is such as to justify an adjustment.
235In response to questions from me, Dr Bernard confirmed that a mixture of factors contributes to the wife's current mental health. The experience of the accident itself had a psychological impact. Having to deal with her own physical injuries received in the accident and all that flowed from that, including the loss of her capacity to work, had a psychological impact. The ongoing effects of those psychological impacts had a compounding effect. Dealing with the impact of the injuries to the husband, and the effect of that on his behaviour and their relationship, also had a psychological impact. Dr Bernard agreed with the proposition that she would "not really be able to apportion the total package in any shares to those different contributing factors."
236Further, the dissipation of funds by the wife post separation is appropriately considered by reference to s 79(5)(v).
237As already noted, the wife chose to meet from her own resources (likely the proceeds of the damages claim) an expense of $150,000 to deal with the challenge to her father's will. She chose not to do that by the available mechanism of lending that money to the Testamentary Trust, such that it would be recoverable by her in due course. Rather, she met the whole of the expense in circumstances where $100,000 of that amount will stand to the benefit of Olivia and Emily. That stood in contrast to the other expenses of $53,143 she met on behalf of the Testamentary Trust which were recorded as a loan and remain an asset available for division.
238Secondly, the wife took active steps to reduce the funds in the Discretionary Trust by an amount well over and above the amounts deposited by Emily and Olivia from their damages claims, by distributing the monies immediately prior to swearing her Form 13 Financial Statement on 23 October 2023. She also spent funds from that trust on legal fees as earlier noted.
239Thirdly, the wife chose to give no detailed evidence as to the disposition of a significant component of her damages claim once she received it.
240All of those matters mitigate against any adjustment in favour of the wife to what is otherwise the contributions-based outcome.
241I have considered whether an adjustment in favour of the husband might be appropriate in all the circumstances, notwithstanding the matters raised by the wife. I have done so, as it is tolerably clear that the husband's case at trial was that an overall division which would see him receive 57.5 percent[53] by value of the available property (with addbacks for which he contended taken into account) would be just and equitable, even though no express submission was made to the effect that an adjustment should be made to reach that outcome if it was not achieved simply by the assessment of contributions.
[53] Leaving aside his subsequent submission received in response to Shinohara, as already noted.
242On balance, I have concluded that no such adjustment should be made. Quite apart from the fact that the proposition just contemplated was not squarely advanced on behalf of the husband, I remain conscious that it is highly likely that the legal fees met by him for the purpose of these proceedings from what would otherwise be property available for division significantly exceeded those paid by the wife for the same purpose.
243In all the circumstances, I conclude that no adjustment in favour of either party should be made to what is otherwise the contributions‑based outcome.
Disposition
244Before any adjusting payment is made, the wife will have property already in her possession to a net value of $204,751. It is common ground that she should also receive the whole of the net proceeds of sale of the Commercial Property, amounting to a further $334,594,[54] and retain her interest in the Neville Bowen Pension Fund amounting to $498,191.50.
[54] Noting that the wife's personal capital gains tax liability, reflected in the net property already retained by her, is to be paid from the Commercial Property proceeds.
245In all the circumstances, including the desirability of both parties being able to stay in their present accommodation should they choose to do so, I conclude that the superannuation splitting order proposed by the husband, whereby the whole of his interest in the Neville Bowen Pension Fund will go to the wife, should be made.
246By those steps, the wife will retain property and superannuation to a value of $1,523,013. As previously noted, I have determined her proper entitlement to be $1,790,041. Thus, the husband will need to make an additional payment to her of $267,028. I am satisfied that he has the capacity to do so, either from his member benefits in the Mr Bowen Pension Fund, or potentially by borrowing further against the family home if he chooses to do so.
247That outcome will see the husband retaining the $2.2 million home in which he lives, subject to the mortgage, plus his savings and chattels, and pension funds to a value of approximately $488,648, if he chooses not to borrow further against the family home. He will continue to receive his income protection payments, which exceed those received by the wife.
248After the adjusting payment is made, the wife will have her one third interest in the Testamentary Trust Property, her savings, including the net proceeds of the Commercial Property after paying Capital Gains Tax, chattels, pension funds to a value of $983,668 and the required cash payment. She will continue to receive her income protection payments, and to enjoy the benefit of living in the Testamentary Trust Property for the foreseeable future should she choose to do so.
249I am satisfied that the outcome just described is just and equitable in all the circumstances.
Proposed orders
250The wife proposed pre-emptive orders for the sale of the family home if the husband could not make the cash payment which she sought. The payment sought in that context was just over $1.050 million. In light of the findings made, I do not anticipate that the wife would press for that order now to be made, where the husband has the capacity to make the cash payment I have determined to be appropriate. If I am wrong in that anticipation, submissions may be made.
251There are no remaining joint liabilities, and the husband is to resign from all positions in the Neville Bowen Pension Fund. I do not perceive a need for orders requiring the parties to indemnify each other in relation to liabilities for which they already have sole legal responsibility, but the parties are at liberty to make submissions in that regard.
252Subject to those observations, and to any other submissions as to form, I propose to make the following orders:
Noting that the Court determines that the value of the member interest of the wife in the [Neville Bowen Pension Fund] is $498,191.50, and that the value of the member interest of the husband in the said fund is $485,476.50:
1.Within 30 days, the Respondent husband, [MR BOWEN], must pay to the Applicant wife, [MS NEVILLE], the sum of $267,028.
2.Pursuant to section 90XT(1)(b) of the Family Law Act 1975 (Cth) ("the Act"):
(a)the wife is entitled to be paid the specified percentage out of the husband's interest in the [Neville Bowen Pension Fund];
(b)the husband's interest in the said fund is correspondingly reduced by force of this order; and
(c)the specified percentage for the purposes of this order is 100 percent.
3.The trustee of the [Neville Bowen Pension Fund] must do all acts and things and sign all such documents as may be necessary to:
(a)calculate, in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2021 ("the Regulations") the entitlement awarded to the wife in the immediately preceding clause of this order; and
(b)pay the entitlement whenever the trustee makes a splitable payment from the husband's interest in the said fund.
4.This order has effect from the operative time and the operative time is 4 business days after service of these orders on the trustee.
5.The trustee having been afforded procedural fairness, this order binds the trustee to observe the provisions of the Act and the Regulations.
6.Upon the trustee complying with the orders contained in paragraphs [2] and [3] of these orders, the husband must do all such acts and things and sign all documents necessary to:
(a)resign from his position as a member and trustee of the [Neville Bowen Pension Fund]; and
(b)transfer to the wife of all rights and responsibilities for the management and administration of the said fund, including but not limited to the termination of his rights to sign, operate and access or bank accounts, share accounts or other accounts related to the said fund, whether personally or by digital means, including surrender of all passwords and other digital rights and means of access.
7.Thereafter, the wife must indemnify the husband and keep him indemnified in respect of any liability of the [Neville Bowen Pension Fund].
8.Within 14 days, the parties must do all things necessary to transfer the remaining funds in the joint NAB Classic Banking account ending in [redacted] to an account of the wife's choosing and close the said joint account.
9.Within 14 days, the husband must cause any of the wife's jewellery which remained at the [family home in Suburb A] at the date of separation to be delivered to the wife or to her solicitors.
10.Any interest of the wife in the husband's AMP Income Protection Insurance Policy and the associated financial benefits arising therefrom, forthwith vest in the husband.
11.Any interest of the husband in the wife's AMP Income Protection Insurance Policy and the associated financial benefits arising therefrom, forthwith vest in the wife.
12.Any right, title and interest the husband may have in the following do vest in the wife absolutely:
(a)the remaining proceeds of sale of the [Commercial Property];
(b)the [Discretionary Trust] and the [Testamentary Trust];
(c)all bank accounts held in the wife's sole name, including but not limited to:
(i) ANZ account ending [redacted];
(ii) ANZ account ending [redacted]; and
(iii) NAB account ending [redacted].
(d)any life insurance policies held in the wife's name;
(e)furniture, personal effects and jewellery in her possession;
(f)any motor vehicles registered in the sole name of the wife, including but not limited to that:
(i)[Motor vehicle B] (registration number [redacted]);
(ii) horse float; and
(g)any horses registered in the sole name of the wife, including tack and riding equipment.
13.Any right, title and interest the wife may have in the following do vest in the husband absolutely:
(a)the [family home];
(b)all bank accounts held in the husband's sole name, including but not limited to:
(i)Westpac Choice account ending [redacted];
(ii)NAB Cash Management account ending [redacted];
(iii)NAB Classic Banking account ending [redacted];
(iv)Westpac eSaver account ending [redacted]; and
(v)Westpac BT Cash Management account ending [redacted].
(c)the [Mr Bowen Pension Fund];
(d)any life insurance policies held in the husband's name;
(e)furniture, personal effects and jewellery in his possession; and
(f)any motor vehicles registered in the sole name of the husband, including [Motor vehicle A].
14.All outstanding applications and responses other than as to costs be and are hereby dismissed.
15.If any party seeks orders for costs of these proceedings, that party must file and serve written submissions within 28 days from the date hereof.
16.The respondent to any such application for costs must file and serve written submissions in response within 28 days thereafter.
17.Each party has liberty to seek a relisting for the making of oral submissions on the issue of costs, such request to be made within 14 days after the expiry of the time for the filing of any responsive written submissions pursuant to the immediately preceding order.
18.In the event that a submission seeking costs is filed and served pursuant to paragraph [15], and no request for relisting is received pursuant to paragraph [17] of these orders, any costs application stands to be determined by the Presiding Judge in Chambers on the papers with reasons to be delivered and orders pronounced from Chambers without necessity for further appearance and without future notice to the parties.
19.All documents produced by named persons pursuant to subpoena in these proceedings be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from the date hereof.
20.In relation to material tendered as an exhibit into evidence in these proceedings:
(a)all parties must collect the exhibits tendered by them ("their exhibits") from the Chambers of Justice O'Brien, at least 28 days, and no later than 42 days, from the date hereof;
(b)all parties must contact the Chambers of Justice O'Brien to arrange the collection of their exhibits;
(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the Court without notice to the parties.
21.In the event of an appeal being lodged prior to the expiration period of 42 days, paragraphs [19] and [20] do not apply.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
RM
Associate
24 SEPTEMBER 2025
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