Riggi & Kermode

[2025] FedCFamC1F 320

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Riggi & Kermode [2025] FedCFamC1F 320

File number(s):

SYC 3596 of 2022

Judgment of:

HARTNETT J

Date of judgment:

14 May 2025

Catchwords:

FAMILY LAW – PROPERTY – Where there is an application for an adjustment under s 79 of the Family Law Act 1975 (Cth) (“the Act”) – Where the parties cohabitated for 26 years – Where s 75(2)(o) of the Act is particularly considered – Where the wife, the husband and the wife’s brother were directors of a company – Where the company has been liquidated in the Supreme Court of New South Wales – Where the wife alleges that the husband engaged in conduct designed to cause the company’s demise – Where the parties’ two sons conduct business adjunct to the parties’ company – Where the wife alleges that the husband recklessly wasted financial resources – Where addbacks are considered – Where the husband unilaterally augmented the parties’ sons’ wealth to the wife’s detriment – Where the wife issues subpoenas to the parties’ sons to give evidence in the proceeding – Where items added back to the asset pool – Just and equitable division of assets is 54/46 per cent in the wife’s favour.

Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Pt VIII, ss 75(2), 79, 80, 90SM

Cases cited:

Bevan & Bevan (2013) FLC 93-545

Biltoft & Biltoft (1995) FLC 92-614

Blandford & Esmore [2022] FedCFamC1A 67

Burke and Burke (1981) FLC 91-055

DJM and JLM (1998) FLC 92-816 at 85,262

G v G (2000) FLC 93-043

JEL v DDF (2001) FLC 93-075

Kowaliw and Kowaliw (1981) FLC 91-092

Kowalski and Kowalski (1993) FLC 92-342

Lovine & Connor (2012) FLC 93-515

Mallet v Mallet (1984) 156 CLR 605

Moy & Pao (No. 2) [2025] FedCFamC1A 48

Norman & Norman [2010] FamCAFC 66

Omacini and Omacini (2005) FLC 93-218

Petruski v Balewa (2013) 49 Fam LR 116

Puddy & Grossvard (2010) FLC 93-432

Roverati & Roverati (2021) FLC 94-027

Stanford v Stanford (2012) 247 CLR 108

Steinbrenner & Steinbrenner [2008] FamCAFC 193

Townsend and Townsend (1995) FLC 92-569

Trevi & Trevi (2018) FLC 93-858

Trustee for the Bankrupt Estate of Lasic v Lasic (2009) FLC 93-402

Division:

Division 1 First Instance

Number of paragraphs:

202

Date of last submission/s:

22 November 2024

Date of last filing of materials and joint balance sheet

18 December 2024

Date of hearing:

29 April – 2 May 2024, 14-16 October 2024

Place:

Sydney

Counsel for the Applicant:

Mr Ahmad

Solicitor for the Applicant:

Croker Edwards

Counsel for the Respondent:

Mr Stapleton

Solicitor for the Respondent:

Dorter Family Lawyers and Mediators

ORDERS

SYC 3596 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS RIGGI

Applicant

AND:

MR KERMODE

Respondent

ORDER MADE BY:	HARTNETT J
DATE OF ORDER:	14 MAY 2025

THE COURT ORDERS THAT:

1.Order 7 of the Interim Orders made by Senior Registrar Hayward on 1 November 2022 be discharged.

2.All fees charged by the Single Expert in this proceeding be shared equally between the parties.

3.On or before 30 June 2025, the parties do all acts and things and sign all documents necessary to transfer to the wife all of  the husband’s right, title and interest in the property situated at and known as 2 B Street, Suburb C in the State of New South Wales, being the whole of the land comprised in Certificate of Title Folio Identifier … (“the Suburb C warehouse  property”) with the wife to meet the transfer lodgement fee, and thereafter the wife shall indemnify the husband and keep him indemnified against all monies owing and encumbrances with respect to the Suburb C warehouse property.

4.Pending the parties’ compliance with Order 3:

(a)the husband and the wife are each restrained from encumbering the Suburb C warehouse property;

(b)the wife be entitled to all rental income received in respect of the Suburb C warehouse property and be responsible for payment of all outgoings in respect of the Suburb C warehouse property;

(c)the wife be and is authorised to manage the Suburb C warehouse property to the exclusion of the husband, including leasing the premises, and collecting rental payments; and

(d)the husband shall, within 48 hours of a request by the wife, sign any document required to give effect to Orders 4(b) and 4(c).

5.Within 30 days hereof the husband do all acts and things and sign all documents necessary to transfer to the wife all his right, title and interest in Allotment ...9 at D Cemetery.

6.Within 30 days hereof the wife do all acts and things and sign all documents necessary to transfer to the husband all her right, title and interest in Allotment …0 at D Cemetery. 

7.Within 7 days hereof, the parties do all acts and things necessary to distribute the one-half proceeds of the sale of the property situate at and known as E Street, Suburb F, NSW (“Suburb F Property”) held in the wife’s solicitor’s trust account pursuant Orders dated 17 August 2023 to the wife.

8.Within 7 days from the date of these Orders, the parties do all acts and things to necessary to distribute the one-half Suburb F Property Sale Proceeds held in the husband’s solicitor trust account pursuant to Orders dated 17 August 2023 in the following manner and priority:

a)   an amount to Dorter Family Lawyers & Mediators to pay out all legal costs and disbursements owing by the husband to them at the time of the implementation of this Order; and

b)   the balance thereafter remaining to the husband.

9.Within 28 days hereof, the parties do all acts and things and sign all documents to distribute the funds held in the Bank G Account …62 and any other bank account held in the parties’ joint names in the following manner and priority:

(a)50 per cent to the wife; and

(b)50 per cent to the husband.

10.Within 30 days hereof, the parties shall do all acts and things and sign all documents necessary to relist the property situate at and known as H Street, Suburb J (“the Suburb J property”) for sale and sell for the best price reasonably attainable by private treaty or public auction (as recommended by the agent) in the following manner:

(a)the sale price or reserve price (as the case may be) at which the Suburb J property shall be listed be as agreed between the parties, and in the absence of such agreement, then as recommended by the selling agent;

(b)the parties shall cooperate in every way with the selling agent including but not limited to:

(i)making the key available to the selling agent;

(ii)allowing inspection of the Suburb J property at all reasonable times as requested by the selling agent;

(iii)doing or saying nothing to hinder or prevent the sale being effected;

(iv)ensuring the Suburb J property is in a neat and clean condition at the time of inspection by the selling agent and prospective purchasers;

(v)signing all documents requested by the selling agent in relation to the listing for sale of the Suburb J property except a contract or agreement for sale which has not been authorised by the parties’ solicitors;

(c)the parties shall execute a Contract of Sale in the form prepared by the Conveyancer at the sale price agreed upon between the parties, or in the absence of any agreement, at or above the price recommended by the selling agent.

11.Simultaneously with the completion of the sale of the Suburb J property, the parties shall do all acts and things necessary to distribute the proceeds of sale in the following manner and priority:

(a)to adjust council rates and water rates with the purchase in accordance with the relevant provisions of the Contract of Sale;

(b)in payment of costs of the sale including real estate agent fees and commission;

(c)marketing expenses, and legal costs;

(d)to pay any outstanding utility bills, insurances, and trade works in relation to the Suburb J property;

(e)to discharge the home loan over the Suburb J property, being loan account number …;

(f)in reimbursement to any party for any costs incurred for obtaining an occupation certificate (where applicable);

(g)the balance to be paid:

(i)50 per cent to the wife; and

(ii)50 per cent to the husband.

12.Simultaneously with the settlement of the sale of the Suburb J property, the wife make a payment to the husband in the sum of $412,466, or otherwise, including if the sale price of the Suburb J property is less than $4,500,000, the wife make a payment to the husband to effect a division of the parties’ net total assets as to 54 per cent to the wife and 46 per cent to the husband or, if the sale price of the Suburb J property is greater than $4,500,000, such additional funds shall be shared between the parties as to 54 per cent to the wife and 46 per cent to the husband.

13.The furniture and household contents in the Suburb J property be as soon as is practicable divided between the parties as follows:

(a)the wife to have ownership and possession of a large gemstone, with a value of $9,000, and the gifts as given by the wife’s family with a value of $880;

(b)the husband to have ownership and possession of the 2 smaller gemstones, with a total value of $9,000; and

(c)the remaining contents with a value of $4,360 shall be apportioned equally between the parties or otherwise apportioned as agreed between them.

14.Within 30 days hereof, each party shall do all acts and things and sign all documents and pay all fees and costs outstanding for the K Partnership equally, to dissolve and windup the K Partnership and for this purpose the parties shall:

(a)instruct Mr L to prepare final accounts, necessary declarations, notices, and/or tax returns for lodgement; and

(b)equally pay all moneys owing by the K Partnership to any third-party creditors, including the payment of any taxation owing.

15.Within 60 days hereof, the parties do all acts and things and sign all documents as are necessary to cause the wife’s member entitlement as held in Superannuation Fund 1 to be rolled over into another complying superannuation fund nominated by the wife, with any costs of this transfer to be borne by M Pty Ltd as trustee for Superannuation Fund 1.

16.Contemporaneously with the parties’ compliance with the preceding order, the husband and the wife shall do all acts and things necessary, at the husband’s cost, and sign all documents, attend all meetings and give all votes necessary to remove the wife as a member of Superannuation Fund 1, including to:

(a)amend any trust deed;

(b)instruct any trustee;

(c)rollover any benefits, if applicable;

(d)comply with applicable legislation;

(e)instruct Mr L SMSF Auditor Number … in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2025 (Cth) to calculate the entitlements created for the husband, if applicable; and

(f)do any other act or thing as may be necessary to implement this order, including but not limited to effecting the resignation by the wife from any office she may hold in M Pty Ltd and the transfer of her shareholding in the entity.

17.Upon compliance with Orders 15 and 16 hereof, the wife shall relinquish all her right, title and interest in respect of Superannuation Fund 1, whether such interest may be actual, contingent or otherwise and the husband shall deliver to the wife’s lawyers a signed disclaimer of interest in a form provided to her by the husband.

18.Upon compliance with Orders 15 and 16 hereof, the husband shall thereafter indemnify the wife and keep her indemnified against all liability arising in any way whatsoever from the wife’s participation as a member of Superannuation Fund 1 or as a shareholder or officeholder of the trustee company of Superannuation Fund 1.

19.Except as specifically provided for by these Orders to the contrary, as against the wife, the husband is declared the sole legal and beneficial owner of, and the wife has no interest in:

(a)the husband’s superannuation;

(b)the husband’s bank accounts;

(c)any shares owned by the husband;

(d)motor vehicle(s) in the husband’s name;

(e)the husband’s personal belongings and furnishings; and

(f)all other property and financial resources of any nature and kind in the possession or control of the husband or any entity in which the husband has an interest or that is controlled by the husband at the date of making these Orders and in the future.

20.Except as specifically provided for by these Orders to the contrary, as against the husband, the wife is declared the sole legal and beneficial owner of, and the husband has no interest in:

(a)the wife’s superannuation;

(b)the wife’s bank accounts;

(c)any shares owned by the wife;

(d)motor vehicle(s) in the wife’s name;

(e)the wife’s personal belongings and furnishings; and

(f)all other property and financial resources of any nature and kind in the possession or control of the wife or any entity in which the wife has an interest or that is controlled by the wife at the date of making these Orders and in the future.

21.Each party shall be responsible for their respective Capital Gains Tax liability arising from the sale of the property situate at and known as N Street, Brisbane and Suburb F Property.

22.That subject to any Orders to the contrary:

(a)The husband wholly indemnify and hold harmless the wife from and in respect of all actions, claims suits and demands (past, present and future) in relation to any and all monies owing or payable whatsoever in the name of the husband or for which he is responsible (including in his name, jointly or with any other person or entity) and including but not limited to monies payable for tax including any and all imposts and penalties or otherwise, and all costs, fees, damages or other monies payable.

(b)The wife wholly indemnify and hold harmless the husband from and in respect of all actions, claims suits and demands (past, present and future) in relation to any and all monies owing or payable whatsoever in the name of the wife or for which she is responsible (including in her name, jointly or with any other person or entity) and including but not limited to monies payable for tax including any and all imposts and penalties or otherwise, and all costs, fees, damages or other monies payable.

23.In the event that either party refuses or neglects to execute any deed or instrument pursuant to these Orders, a Judicial Registrar of the Federal Circuit Court and Family Court of Australia (Division 1) be appointed pursuant to section 106A of the Family Law Act 1975 (Cth), to execute such deed and/ or instrument in the name of such defaulting party and to do all acts and things necessary to give validity to the operation of the deed and/or instrument.

24.There is liberty to the parties to apply with respect to the operation of these orders.

25.Otherwise, all extant applications be dismissed and the matter removed from the list.

AND THE COURT NOTES THAT:

A.The fees of the Single Expert in these proceedings have been paid from a joint account of the parties.

B.The parties have engaged Mr O to be the selling agent and Ms P, solicitor, as the conveyancer for the Suburb J property in accordance with the Orders dated 17 August 2023.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Riggi & Kermode has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

HARTNETT J

PRELIMINARY

1. This proceeding involved the seeking of property settlement orders under Part VIII of the Family Law Act 1975 (Cth) (“the Act”), by each of the Applicant wife (“the wife”) and the Respondent husband (“the husband”).

2. The orders sought by each of the parties are lengthy and appear as annexures “A” and “B” to these reasons for judgment; the orders as sought by the wife appear as annexure “A”, and the orders as sought by the husband appear as annexure “B”.

3. The parties had a long cohabitation and marriage of some 26 years, and a further period thereafter of living in the same household and attempting to work with each other in the family business. Their two children are adult children. At the commencement of the trial, each of the parties made open offers in court as to settlement of the matter, the wife indicating that she sought a property adjustment of 60 per cent in her favour, and the husband indicating that he sought a property adjustment of 50.5 per cent in the wife’s favour and 49.5 per cent to him. The parties indicated at commencement that contributions were equal as between them.

4. The wife put her case as based on a s 75(2)(o) of the Act adjustment in her favour. In particular, the wife asserted that the parties’ two adult sons and the companies owned by them were a financial resource available to the husband, and that the husband was the cause of the liquidation of the company which ran the family business. This latter claim was not argued by the wife in the Supreme Court proceedings which involved the liquidation of the company, which she did not oppose.

5. In closing submissions, the wife’s position shifted. She argued that she should receive a property adjustment of 70 per cent in her favour, being an adjustment of 15 per cent in her favour for the s 79(4)(e) and s 75(2)(o) of the Act matters, and a further five per cent adjustment for her contributions as primary homemaker and parent, and her under-paid work for the family business (without leave entitlements, and for a long period, without superannuation). Thus, the wife moved her application to a 70 per cent adjustment in her favour. The husband maintained in closing submissions the position he put at trial. The parties’ differing asset pools each stated that the net asset pool of the parties was more than 10 million dollars.

   MATERIAL RELIED UPON

6. The wife relied upon:

   (1)Amended Application for Final Orders filed 18 March 2024;

   (2)her affidavit of evidence filed 7 April 2024;

   (3)her Financial Statement filed 26 April 2024;

   (4)the affidavit of Mr Q filed 5 April 2024;

   (5)the affidavit of Mr R filed 7 April 2024;

   (6)the affidavit of Mr S filed 23 April 2024;

   (7)Items tendered in evidence as taken from the wife’s tender bundle and affidavit exhibits;

   (8)Case Summary Document filed 28 April 2024; and

   (9)Written submissions and written submissions in reply filed 1 and 22 November 2024 respectively. 

7. The husband relied upon:

   (1)Further Amended Response to Initiating Application filed 19 March 2024;

   (2)his affidavits filed 8 April 2024 and 26 April 2024;

   (3)his Financial Statement filed 8 April 2024;

   (4)Items tendered in evidence as taken from the husband’s tender bundle and affidavit exhibits;

   (5)Case Summary Document filed 28 April 2024; and

   (6)Written submissions filed 15 November 2024.

1. Each of the parties relied upon the evidence of the single expert as contained in the report of Mr T with annexures and covering letter dated 26 April 2024.

2. Each of the parties relied further on a joint balance sheet (which included disputed inclusions and values) and associated submissions as filed on the 18 December 2025. The parties’ two sons, Mr U and Mr V, were not on affidavit, the husband declining to file any affidavit evidence from his sons in the face of the sons’ opposition. The wife determined to subpoena the parties’ sons to give evidence in the proceeding. Each of Mr U and Mr V gave oral evidence. They had earlier opposed the production of subpoenaed material as sought by the wife.

   RELEVANT FACTUAL FINDINGS

3. In 1963, the husband was born in Country W. He was 60 years of age at trial. The husband first came to Australia in 1989 on a student visa and was later granted a spouse visa. The husband’s highest-level of academic qualification is the equivalent of a TAFE qualification, obtained in Country W before he migrated to Australia. It became clear throughout the proceeding that the husband’s command of the English language was not as good as that of the wife, and that he had relied, historically, on his wife and sons, the latter considerably, to assist him in the translation and writing (at his direction) of business and other communications.

4. In 1968, the wife was born in Country W. She was 56 years of age at trial. The wife migrated to Australia with her family in 1982. The wife completed Year 10 schooling in Australia, which is her highest level of education.

5. Around mid-1994, the parties purchased, in joint names, the property situated at X Street, Suburb Y (“the Suburb Y property”) for a purchase price of $166,000. The husband paid a deposit of $66,000 on the purchase and the parties otherwise borrowed the balance of the purchase price from the Bank XX. Save for this deposit, whilst each of the parties had some assets, neither party possessed assets of significant value at the commencement of their cohabitation which followed.

6. The parties married in mid-1994, and commenced cohabitation on that date. At the time, the wife was engaged in full-time employment in a manual role. The husband was a business partner of, and had full-time employment in, a business known as Z Company which exchanged or reconditioned parts of motor vehicles and sold and fitted same. The husband also worked part-time as a night and weekend delivery driver.

7. In 1995, Mr U was born. He was 29 years of age at the time of trial. The wife took a period of maternity leave before returning to full-time employment.

8. In late 1996, the parties jointly purchased a commercial warehouse property at 2 B Street, Suburb C (“the Suburb C warehouse property”) for $225,000. The parties applied their joint savings and borrowings of $150,000 from AA Financial Services. Z Company commenced to occupy the property, making rental payments to the parties. Following the business becoming incorporated in 2000, the newly created company rented the property and paid rental income to the parties of approximately $26,000 per annum until 2017; then $28,000 per annum for 12 months; and then from 2019-2021, $30,000 per annum.

9. In 1997, Mr V was born. Mr V was 27 years of age at the time of trial. The wife took a period of maternity leave before returning to full-time employment.

10. In 1998, at the wife’s request of the husband, the wife’s brother Mr Q (“Mr Q”) commenced to work on a casual basis at Z Company. He was not a licensed motor mechanic, so was only permitted to do a particular job which task he undertook. He also assisted in administrative tasks as needed to be performed by the business. Around this time, the husband’s original business partner left the business such that the husband became a sole trader.

11. In 1999, the husband and wife sold the Suburb Y property for a profit of $217,500.

12. In the second half of 1999, the husband and wife applied the profit from the Suburb Y property to the joint purchase of the property at H Street, Suburb J (“the Suburb J property”) for $527,000. The balance of funds needed to complete the purchase and payment of costs was obtained by a $320,000 home loan with AA Financial Services. The Suburb J property became the matrimonial home.

13. aIn 2000, BB Pty Ltd (“BB Pty Ltd”) was incorporated. The directors and shareholders of BB Pty Ltd were the husband, the wife, and Mr Q. The shares were owned 70 per cent as to the husband, 10 per cent to the wife and 20 per cent to Mr Q. Each of the directors were account signatories to the company bank account …39. They had the ability to access the company bank records and financial statements. The wife’s brother did not pay for his shares in the company. The wife ceased her employment in a manual role and started working at BB Pty Ltd where her role consisted of answering phone calls and making deliveries. The husband continued to undertake the overall management of BB Pty Ltd. Mr Q continued to work mainly in the workshop.

14. In 2000, the husband, wanting to expand the business, visited his first trade show in Country W. He met suppliers there, and subsequently in Australia, and commenced a business selling spare mechanical parts for motor vehicles which became increasingly online after the incorporation of the business. This business ran as an adjunct to, and part of the ongoing business operations of BB Pty Ltd. The wife and her brother joined the husband in the operations of the further business. Mr Q’s strong English language skills and knowledge of car parts were of benefit to the business.

15. In 2002, the husband and wife obtained a bank loan and jointly purchased the property at DD Street, Suburb J for $410,000 (“the DD Street property”). This property was rented to tenants. The parties applied their savings of more than $90,000 to this purchase and otherwise obtained a $320,000 loan with Bank CC.

16. In 2003, the parties purchased jointly the property at EE Street, Suburb FF (“the Suburb FF property”) for $335,000. The purchase was funded by a $300,000 loan and the balance was made up of the parties’ savings.

17. In mid-2003, the parties refinanced their mortgage over the Suburb J property to fund two Queensland purchases, namely a property in GG Street, Suburb HH (“the Suburb HH property”), and a property in Brisbane. The Suburb HH property was purchased at the time, with a 10 per cent deposit on a purchase price of $260,000. The parties subsequently sold this property for little profit.

18. In mid-2005, the husband and wife proceeded to jointly purchased the property at N Street, Brisbane (“the Brisbane property”) for $210,000. The property was unencumbered and rented to tenants.

19. Until approximately 2005, the business had five employees; the parties and Mr Q, as well as two men who worked in the warehouse.

20. The wife was paid each week by the husband whilst she worked at BB Pty Ltd. An amount was deposited directly into the husband and wife’s joint Bank G bank account. The wife did not have an individual bank account. Each of the husband and wife received a wage of approximately $1000 per week. The husband also handed the wife $500 each week in undeclared cash. Approximately every six months, the husband transferred $10,000 to each of the wife and him as a ‘bonus payment’. Mr Q received the same payments and bonuses as the wife.

21. In 2005, BB Pty Ltd commenced selling products through an online marketplace. All online marketplace transactions were paid into an online payment account in the husband’s and/or BB Pty Ltd’s (as transferred by the husband) name until 2021, when payments as received by BB Pty Ltd were paid into a CBA bank account in the husband’s name, being account ending …27 (a matter to which I shall refer hereafter). BB Pty Ltd hired an additional employee to manage the digital sales platform.

22. In early 2007, the mortgage secured over the Suburb C warehouse property was discharged. This left the property unencumbered.

23. In 2007, BB Pty Ltd commenced importing spare mechanical car parts from Country W. Country W suppliers required payment upfront.

24. In approximately early 2011, BB Pty Ltd moved its main office, sales shop and warehouse repair workshop to a rental premises at 1 B Steet, Suburb C and retained the Suburb C warehouse property as an off-site storage facility.

25. By 2012, BB Pty Ltd had approximately 11 full time employees, including the parties. The parties’ son, Mr V, also commenced to work for the business during school holidays and received cash sums. He was approximately 15 years of age.

26. In around 2012, the rebuilding of the Suburb J property commenced. The cost of the renovations was approximately $635,000.

27. In mid-2012, the Suburb FF property was sold for a sale price of $472,000. The net proceeds were approximately $172,000. These funds were applied to the knock down and rebuild of the Suburb J property.

28. In late 2012, the parties sold the DD Street property for a sale price of $580,000. The mortgage was discharged, and the net proceeds of more than $250,000 were applied to the knock down and rebuild of the Suburb J property.

29. In approximately 2013, the wife, in addition to her answering of the phone and email enquiries, commenced to attend to online marketplace orders, and to cash sales and EFTPOS on the counter of the retail shop. She would issue an invoice to the customer. She would record daily cash and company cheques. The wife also liaised with Mr Q to organise installations for car parts that customers had purchased and wished to have installed. The wife also personally guaranteed creditors of BB Pty Ltd in her capacity as a director.

30. In approximately 2013 or 2014, the parties’ elder son, Mr U, commenced working for BB Pty Ltd on a part-time basis, whilst attending university. He ultimately did not complete his university course.

31. In 2014, the husband rented a warehouse space in Country W to be used to consolidate stock from different Country W suppliers prior to loading that stock onto containers to be shipped to Australia. The warehouse space was provided by JJ Company, the primary supplier of stock to BB Pty Ltd. Mr KK was the trading agent who organised the smaller suppliers to source stock, and to deliver such stock to the warehouse. BB Pty Ltd did not own a warehouse in Country W  as earlier alleged by the wife. BB Pty Ltd at that time imported car parts from Country W in generally one container at a time, as known by the husband, the wife, and Mr Q.

32. BB Pty Ltd also had major suppliers in Australia throughout its operations.

33. In 2014, the online platform the husband had set up in New Zealand began to sell online stock. The funds were deposited into a CBA foreign account …35. The revenue was accumulated in that account and then transferred into the BB Pty Ltd main trading account ending …39.

34. In 2014, the parties created a self-managed superannuation fund, Superannuation Fund 1.

35. In June 2014, M Pty Ltd (“M Pty Ltd”) was incorporated. It was the corporate trustee of  Superannuation Fund 1. The husband and the wife were the directors. They were equal shareholders. The Superannuation Fund 1 and M Pty Ltd were not used until 2018.

36. In early 2015, the rebuild of the Suburb J property was completed. The parties refinanced the mortgage with the ANZ Bank for $2.28 million. 

37. In 2015, the parties’ son, Mr V, commenced working for BB Pty Ltd on a part-time basis, whilst attending university. He ceased enrolment at university after one semester and began full time work for BB Pty Ltd firstly as a salesperson, and then as an apprentice, ultimately obtaining a relevant qualification. Amongst other things, he created a new channel for the company.

38. In late 2015, the wife and the husband jointly purchased the property at E Street, Suburb F NSW (“the Suburb F property”) for a purchase price of $1,705,000. The parties intended to construct warehouses on this property for the purpose of expanding their company businesses. To progress that intent, the parties lodged a Development Approval Application to the local council in mid-2016.

39. In approximately 2016, the parties’ son, Mr U, also commenced working for BB Pty Ltd on a full-time basis. He assisted the husband in the producing of electronic payslips and oversaw the company’s office computer management. Mr U had skills that neither of his parents did. He applied them to the benefit of the company and worked hard in its further development and modernisation.

40. In April 2016, the husband was diagnosed with a medical condition. The disease had spread by August 2016. The husband underwent treatment and two surgeries. In June 2017, the disease resurfaced. Throughout 2016 and 2017, the husband was very sick and only able to run the business from home. He could not physically go to work. He did, however, continue to communicate with BB Pty Ltd suppliers and other interested parties and provided instructions to the wife, the parties sons, and to Mr Q as to the operations of the business. In mid-2018, the husband was able to return physically to work, though he continued to have regular medical appointments for some years thereafter.

41. In mid-2016, just after his diagnosis, the husband incorporated LL Pty Ltd (“LL Pty Ltd”). He and the parties’ son Mr U were directors and shareholders. During the years that followed, the husband had control of, and a 70 per cent shareholding, in the company. The company never traded however, and it never held a bank account. The husband paid the yearly company fees.

42. Around June 2017, the parties had approximately $917,976 in their joint ANZ offset account. That money included funds consolidated by them and transferred from their joint Bank G account. By agreement between the parties, their son, Mr V, transferred $40,000 (in two $20,000 amounts) from another account, namely the husband’s CBA account, to the parties’ joint ANZ offset account. The monies, not with the knowledge of the wife, passed first through Mr V’s account, and then were claimed in this proceeding, by Mr V and the husband, to be monies advanced by Mr V to the parties joint ANZ offset account by way of loan. On the husband’s evidence, Mr V then transferred another $140,000 from the husband’s CBA bank account to his own account, and then to the parties’ joint ANZ offset account, but again by way of loan from him to the parties. The husband stated in his evidence that these transfers as conducted by Mr V throughout 2017 (with one further payment made in March 2019) were connected to the Development Approval Application (see paragraph 45 above) citing the mortgage repayments anticipated as the reason for the advances. The husband’s evidence, and that of Mr V, that loans existed as owed by the parties to Mr V was not credible evidence. The Development Application was only approved in early 2018, and subject to “deferred commencement conditions”. Indeed, the parties left the E Street property as vacant land. Further, Mr V was at the time only 20 years of age and although he had worked for BB Pty Ltd for approximately two to two and a half years, I do not accept his evidence nor that of the husband as to Mr V having savings in this quantum. The monies that were advanced from Mr V clearly belonged to the parties and/or BB Pty Ltd and were not funds belonging to Mr V.

43. In 2018, the husband arranged for BB Pty Ltd obtained four registered business names for the purposes of having online marketplace accounts.

44. In mid-2018, the parties’ sons, Mr U and Mr V, were added as members of the Superannuation Fund 1 and accordingly were appointed directors of the Superannuation Fund 1 corporate trustee. A bank account for the Superannuation Fund 1 was opened and initial contributions for each of the four members of $25,000 were made by the parties. The parties contributed a further $25,000 to each member in Superannuation Fund 1 in the following financial year.

45. In early 2020, the main business premises of BB Pty Ltd became a new rental location at RR Street, Suburb SS NSW. The Suburb C warehouse property continued to be used as a storage site for BB Pty Ltd.

46. The following month in early 2020, the police were called due to an incident which occurred during lunch time at the BB Pty Ltd business premises, in which the husband and Mr U became aggressive and screamed at the wife. The wife claimed she was fearful for her personal safety.

47. Commencing the night of 22 April 2020, the wife ceased cooking and cleaning for the husband and their two sons. She began sleeping in the spare bedroom.

48. On 22 April 2020, the parties separated. They lived separately under the same roof, in the Suburb J property. The parties’ sons also continued to reside in that property.

49. Around this time, the husband formed the view, based upon a reconciliation of bank statements that on an increasingly frequent basis, the wife and her brother were removing funds from the business.

50. Following separation, the husband unilaterally stopped providing the wife and Mr Q with the $500 unrecorded cash component of their wages each week being a component of their wages since approximately 2000. The wife’s cash money had historically been applied to support the household of the husband and the wife.

51. On each of 27, 28 and 29 April 2020, the husband transferred $25,000 (totalling $75,000) from the husband and wife’s joint ANZ offset account to Mr V, without consulting the wife. The husband gave evidence that these monies were paid to Mr V in partial repayment of the loans advanced by him to his parents. This evidence was not truthful. The husband was simply diverting money away from the wife without disclosing his activities.

52. In April 2020, the husband sent a directors notice to the wife and her brother in which he sought to regulate the operations of BB Pty Ltd and control the removal of cash from the business by the wife as asserted by the husband. In that same month, the husband claimed that the wife and her brother removed company goods from the premises of BB Pty Ltd, placing such goods in Mr Q vehicle to be driven away.

53. On 1 May 2020, the husband increased the wages he paid on behalf of BB Pty Ltd to Mr U and Mr V, the parties’ sons, without consulting the wife or Mr Q. Such weekly wage increases were immediate and over the next 2 years, significant.

54. In the financial year ended 30 June 2019, Mr U’s gross wage had been $75,443 and Mr V’s $89,330.  In the financial year ended 30 June 2020, Mr U’s gross wages were $89,330 and Mr V’s $103,703.  In the financial year ended 30 June 2021, Mr U’s gross wages were $117, 632 and Mr V’s $145,335. By the financial year ended 30 June 2022, Mr U’s gross wages were $130,180 and Mr V’s $168,504. The increases in the sons’ salaries occurred without consultation with the wife and her brother.

55. In mid-2020, the parties and their sons had a verbal argument in the workplace. The wife again called the police. The wife confirmed to police that she had not been physically or verbally threatened by any member of her family. The argument had was about BB Pty Ltd’s “money flow and account keeping” with the wife claiming – without observing – that her family were removing cash from the business as placed in the company safe at the work premises, and cash as placed in the home safe.

56. On 4 June 2020, the husband transferred the sum of $20,000 from his CBA account to Mr V. The husband first claimed that this was a gift to Mr V. Subsequently, the husband claimed that such monies were a repayment of monies lent by Mr V to the parties between 2015 and 2017. The husband’s evidence was not credible. Such transfer was a blatant diversion of monies belonging to the parties, to Mr V, without the consent of the wife.

57. On or about 30 June 2020, BB Pty Ltd received a notice from its supplier in Country W, JJ Company (who supplied approximately 80 per cent of its overseas stock), stating that due to the dispute between the BB Pty Ltd directors, it would no longer be a supplier of the company after its last delivery of stock later in that year, and demanding payment of an outstanding debt. The wife asserted the falsity of this correspondence. There was not enough evidence before the Court to conclude, to the necessary standard of proof, that this correspondence did not eventuate, and/or to find that the husband orchestrated the cessation of JJ Company’s relationship with BB Pty Ltd at that time. Even if the husband did inform JJ Company of the dispute between the three directors of BB Pty Ltd following the parties separation, or at some time before, and indeed he may have been obliged to do so, JJ Company by inference exercised its independent decision-making as to the taking on of risk, and as to whom in Australia that entity would have a commercial relationship with and when. At the time, JJ Company required BB Pty Ltd to pay for its stock prior to it being shipped to Australia.

1. Between 10 June and 1 November 2020, a series of cash deposits were made into Mr V’s bank account totalling $106,000. Mr V claimed them as his savings. It was the husband’s evidence that he had no idea from where such funds derived. He suggested they were Mr V’s funds. He further suggested that Mr V’s mother may have given her son the monies. That suggestion was preposterous given the then existing hostility between the wife and her sons. Whilst some of the monies may have been Mr V’s, it is probable that most of those deposits were by the husband, and that the monies belonged to BB Pty Ltd.

2. In July and August 2020, the wife and/or her brother proposed a meeting of the directors to discuss issues that had arisen in the operations of the company that caused conflict between them. The husband was unresponsive as to having a meeting and expressed outrage at what he perceived to be a challenge to his operation of BB Pty Ltd.  

3. In August 2020, the wife, with Mr Q, commenced to look at BB Pty Ltd’s bank accounts on an office computer, using the login details of the husband. Mr U came over to the wife and Mr Q and aggressively told his mother that she should not be looking at the account. An argument between Mr U and Mr Q followed.

4. Two days later, the husband handed Mr Q and the wife a three-page notice about Mr Q and the wife accessing the bank accounts and stating that he had reported the matter to the police. The police subsequently became involved to quell the dispute between the three directors.

5. The following day, Mr Q handed a letter to the wife and the husband, proposing a meeting of directors on 5 September 2020. Around this time, the wife had ceased to have access to the online payment account of BB Pty Ltd. Previously, the wife was able to view the account online, without the ability to transact on the account. The login credentials that the wife knew of, no longer worked.

6. In August 2020, Mr Q and the wife attended a bank branch and arranged for Mr Q to be added as a signatory on the bank account of BB Pty Ltd, and for Mr Q and the wife to have internet banking access and visibility of BB Pty Ltd's bank accounts.

7. On 13 August 2020, the husband engaged lawyers to sever the joint tenancies of he and the wife on the Suburb J home, the Suburb C warehouse property, and the E Street property. This was a marked departure from the lifelong approach of the husband, which was to place all property as acquired by the parties in their joint names.  

8. On 31 August 2020, after Mr Q and the wife looked through the bank statements of BB Pty Ltd, they provided a letter to the husband asking questions about the company bank accounts, including why they were linked to his personal bank accounts. The wife and Mr Q also asked for copies of BB Pty Ltd's financial statements and tax returns, a record of BB Pty Ltd's assets and liabilities, the online marketplace transaction statements, and details of any offshore business-related accounts. The husband did not provide a response. I observe that all the BB Pty Ltd financial documents as requested by the wife and her brother were available to them from the company’s and the wife’s, personal accountant.

9. In late 2020, the husband determined to resign from his directorship of LL Pty Ltd and to transfer his shareholding in the non-trading company to the parties’ son, Mr V. Mr V became the secretary and a director and shareholder of LL Pty Ltd. The name of LL Pty Ltd was changed by the parties’ sons to MM Pty Ltd (“MM Pty Ltd”).

10. Three days later, the wife and Mr Q attended a meeting of directors as arranged by them. The husband did not attend the meeting, having requested its rescheduling. Mr Q and the wife agreed that the pay of directors be $1,500 after tax until the end of the financial year, increasing to $1,600 after tax commencing in the following financial year. The wife and Mr Q agreed that backpay would be paid. They approved bonuses of $20,000 per annum to themselves.

11. Between around 7 September 2020 and 8 January 2021, cash deposits totalling $262,150 were deposited into the newly opened bank account of MM Pty Ltd. In that financial year, the gross salary receipt of the parties’ sons combined, was approximately $262,967. In the previous financial year, it was $192,510. Both as increased by the husband without notice to the other directors. The evidence of the husband and the parties’ sons was that the monies as deposited into the MM Pty Ltd account belonged to them. The sons claimed to have had savings accumulated well before those financial years, from their income from BB Pty Ltd over many years, and from Mr V’s sale of some items. They additionally had savings from their income in those 2020 and 2021 financial years, with few expenses given that they continued to live rent free in their parents’ home.  The wife submitted, to the contrary, that the Court would find that these funds derived from cash savings that belonged to the parties and/or BB Pty Ltd. It is probable that these funds were in part those of the parties’ sons, but in larger part belonged to the parties and/or BB Pty Ltd, being part of the cash receipts of the business which were undeclared. The husband engaged in a deliberate course of dissipation of the parties’ assets by his repeated transfer of the parties’ funds to the parties’ sons or either of them, and this was, but another example.  

12. In September 2020, the registered principal place of business for LL Pty Ltd (now named MM Pty Ltd), was changed from the Suburb J property to the Suburb C warehouse property, which was then occupied by BB Pty Ltd and owned by the parties. The wife was not informed as to this arrangement.  MM Pty Ltd commenced trading later in that year. As JJ Company had earlier indicated the cessation of a trading relationship with BB Pty Ltd, MM Pty Ltd commenced to act as a wholesaler of parts from Country W, including from JJ Company. JJ Company offering to MM Pty Ltd generous terms of credit. MM Pty Ltd commenced selling stock at a markup to BB Pty Ltd and selling stock with markup to other domestic entities. MM Pty Ltd rented its own warehouse. BB Pty Ltd also had a trade relationship with JJ Company in the financial year ended 30 June 2021, because there remained stock in the Country W warehouse to be paid for by, and delivered to, BB Pty Ltd.

13. In November 2020, on the husband’s evidence, he, the wife and Mr Q, reached an agreement for the husband to acquire the wife and Mr Q’s shares. The husband handed to the wife unsigned documents titled ‘Agreement for Sale of Shares’ and documents titled ‘Resignation of Director’ and ‘Resignation of Director & Secretary’. In these documents, the husband proposed to purchase the wife’s 10 per cent shareholding in BB Pty Ltd for $280,000, and to purchase Mr Q’s 20 per cent shareholding in BB Pty Ltd for $280,000, plus the company car that Mr Q drove, valued at $45,000. The offer was “without prejudice”. There was no valuation of BB Pty Ltd obtained by or relied upon by any of the directors at that time. The context was an inability of the parties and the wife’s brother to continue to jointly operate the company and the husband’s increased frustration and anger at what he perceived to be the dysfunction in the operations of BB Pty Ltd.  I give to the wife’s submission that this offer was an accurate estimate of value, no weight.

14. On 4 November 2020, the husband handed to the wife and Mr Q a 'Formal Notice'.  By that notice, the husband set out that the wife and Mr Q had until 12.00pm on 6 November 2020 to sign and return the share sale documents, failing which "any & all proposal/s [would] be void". The Notice further stated that the husband would be, at 12:00pm on 6 November 2020, with the “relevant bank cheques and vehicle registration for settlement". The parties reached no agreement, and the matter went no further, save for some limited discussions.

15. On 31 December 2020, the husband paid from BB Pty Ltd’s account "annual leave" sums to himself, Mr U and Mr V. He did not provide payment of this kind to the wife or to Mr Q.

16. By January 2021, discussions regarding the husband purchasing Mr Q and the wife’s interest in BB Pty Ltd had ceased. The wife and Mr Q wished to obtain further financial information about BB Pty Ltd and claimed that the husband and the company accountant did not assist them in this regard. The husband referred them to the accountant for any documents they wished to view, and claimed the accountant was available to speak to the wife and Mr Q.

17. In June 2021, the husband opened a new bank account, ending …27, with the CBA, in his personal name. Until February 2022, he used this account to receipt online marketplace revenue of BB Pty Ltd. He used such funds of the company to pay MM Pty Ltd for stock, thus removing the payments from the oversight of the wife and her brother, and otherwise at regular intervals and in lump sum returned the monies to the company account.  He did not tell the wife that he had opened this bank account in his name, and nor did he tell her that he was diverting company monies to a personal account which only he controlled, and which was thus beyond the control of the company. In  February 2022, the husband commenced to hold such funds as received to pay the necessary expenses of BB Pty Ltd including wages and suppliers. He claimed his actions were necessary to preserve company funds in circumstances where he alleged the wife and Mr Q were siphoning off company funds. Upon the appointment of the provisional liquidator, the husband was required to transfer all company funds as received from the online marketplace into his account ending …27, to an account controlled by the provisional liquidator. The husband did so, and the provisional liquidator reconciled all transactions.

18. In mid-2021, Mr V purchased a property at NN Street, Suburb OO for $840,000.

19. In mid-2021, a divorce order was granted.

20. In July 2021, the wife moved out of the Suburb J property and into her parents' home. She took her personal items with her. The husband and the parties’ sons remained residing in the Suburb J property for a further approximately two years.

21. In August 2021, the husband paid bonuses of $8,000 to each of Mr U and Mr V from BB Pty Ltd's CBA account ending …39. This was done without consultation with, or knowledge of, the wife. The husband did not pay any bonuses to Mr Q or the wife at this time. The husband also transferred a further $5000 to Mr V from his personal CBA account. The husband alleged such advance was a repayment of monies lent to the parties between 2015 and 2017. The husband’s evidence was not credible. That transfer was again without the consent of the wife and was a further dissipation of the parties’ funds.

22. In mid-2021, the husband provided Mr U with $47,000 to assist him in the purchase of an apartment. The husband claimed that those monies were lent to Mr U by him. The wife was not informed or consulted. The husband further claimed that such monies were returned to him by Mr U in 2024, and that the husband applied same to his living expenses. I do not accept the evidence of the husband that these monies were a loan to Mr U. They were a gift as referred to hereafter.

23. On 1 September 2021, the husband transferred $100,000 to Mr V from the husband’s CBA account ending …27, which held income from BB Pty Ltd. This was done without the wife’s knowledge or consent. The husband asserted that this transfer was in part repayment of the earlier loan to the parties from Mr V, in the sum of $180,000. Mr V was 20 years of age at the time. Mr V had, as conceded by the husband, received $40,000 from BB Pty Ltd immediately prior to the alleged advancement of this loan. The husband was not truthful in his giving of this evidence. The wife knew nothing about any of these financial transactions and was certainly not consulted about them.

24. In late 2021, Mr U purchased a property at PP Street, Suburb OO, for $800,000. 

25. On 14 January 2022, the husband ceased paying the wife and Mr Q, although they continued to perform their usual roles at BB Pty Ltd. The husband did not pay Mr Q and the wife for a period of 11 weeks until 14 April 2022, whilst they underwent their usual roles. The wife arranged to pay herself her usual wage from the bank account of BB Pty Ltd or from cash belonging to BB Pty Ltd, which she recorded. The wife took the cash takings of the company between January 2022 and 23 July 2022 in a total sum of approximately $82,285. She claimed that she took such funds by way of reimbursement for her petrol, for her wages and bonuses and back-pay in quantum as asserted by her. I accept the wife needed funds for her living expenses and was entitled to her reimbursement, wages and bonus which the husband had failed to pay. I accept that she took a sum greater than those amounts would have provided for, but at this time the wife was unable to predict whether the situation wherein the husband held funds back from her would continue; both parties were removing cash from BB Pty Ltd, the husband in far greater sum; and the wife had a complete mistrust of the husband. I accept she applied such funds to her living expenses in this fraught time.

26. Around February 2022, the husband commenced a new relationship. He now resides with his partner, and they share a bank account together with Bank QQ. Both the husband and his partner have deposited funds into this account. Indeed, between 28 February 2022 and 7 December 2023, a total of $78,633.85 of cash deposits were made into this account. During that time, and for an initial period of approximately five months, the husband was diverting company funds into a personal account in his own name being the period prior to the appointment of the provisional liquidator. Thereafter, the husband was in receipt of a wage as the manager of BB Pty Ltd, under the provisional liquidator, until the liquidation of the company. The husband did not disclose the Bank QQ account to the wife when he should have. He claimed that was because his girlfriend also had funds in the account. I reject that explanation. The husband engaged in a blatant failure to disclose this account into which I find he paid cash deposits.

27. On 5 February 2022, after $30,000 was received into the company account ending …39 of BB Pty Ltd, the wife withdrew $10,000 for herself and $10,000 for her brother, Mr Q.

28. In April 2022, the company received a Final Notice of Breach of Covenant of Lease. This notice demanded payment of $36,834.76 in respect of BB Pty Ltd’s rental occupation of RR Street, Suburb SS.

29. On 14 April or thereabout, the husband resumed payment of the wages of the wife and her brother.   

30. In May 2022, the landlord terminated the lease of BB Pty Ltd due to unpaid rent since January 2022, and the breakdown in the management of the company.

31. On 27 May 2022, the wife commenced proceedings in the Federal Circuit and Family Court of Australia (Division 2).

32. In June 2022, MM Pty Ltd made payments on behalf of the husband of the husband’s legal fees. That sum was in total $57,484.

33. In mid-2022, the husband commenced proceedings in the Supreme Court of NSW for the winding up of BB Pty Ltd. Mr Q filed a crossclaim for oppression. The wife did not oppose the liquidation of BB Pty Ltd. The winding up was sought because the three directors had no longer an ability to reach a consensus on necessary business operations, leading to a deadlock between them. Even prior to the parties’ separation, the parties’ business relationship at BB Pty Ltd had suffered because of their commencing family disputes and arguments in the workplace. The husband had suffered from ill health and was stressed. Arguments saw the husband on one side, and the wife and her brother on the other. They had all worked together for a long time and were no longer capable of agreeing the necessary running and operational matters in respect of BB Pty Ltd. That much was acknowledged by Mr Q in at least July 2020. The arguments between the three were, at times, so heated that the police were called to the BB Pty Ltd premises on several occasions. Following COVID-19, the number of company employees had been reduced such that, save for one employee, there remained the husband, the wife, Mr Q and the parties’ sons, the latter who were left in the middle of their warring parents and uncle. The parties’ sons had worked hard in the business for many years, including necessary overtime as the number of employees decreased, adding value, and they did not appreciate the position they found themselves in. The content of the disputes between the three directors included the husband accusing Mr Q of allowing third parties to use the workshop and company tools without recompense to BB Pty Ltd and against the husband’s wishes, and the wife and her brother seeking to exert a managerial role contrary to, and to the exclusion of, the husband. The fighting was endless and serious, with other examples being the parties each accusing the other of hiding cash in circumstances where the wife had stopped depositing cash sales into the company safe and retained same unaccounted for, and where the wife claimed the husband  removed hundreds of thousands of dollars in cash from the home family safe and retained same, unaccounted for;   and the husband accused Mr Q of stealing parts from BB Pty Ltd in May 2022, amongst other illegal activities. The husband had ultimately proposed buying out the wife and her brother, but limited negotiations were not successful.  In this context, it was not surprising that the Supreme Court proceeding eventuated.

34. On 17 June 2022, the wife withdrew $58,472 from the parties’ joint Bank G account without the consent or knowledge of the husband.

35. On 30 June 2022, the husband withdrew $47,500 from the parties’ joint Bank G account without the consent or knowledge of the wife.

36. In mid-2022, Mr TT (“Mr TT”) was appointed the Provisional Liquidator. During the period that he was Provisional Liquidator, Mr TT noted in his Circular to Creditors dated late 2022 that “the company’s operations had been met with numerous operational challenges and interruptions to its viable, profitable trading as a result of personal antagonisms and conflict issues. These issues have not abated, and are unlikely to abate, if the involvement of the parties remains a factor in the ongoing operation of the business.”

37. Mr TT offered to each of the husband and the wife employment contracts with salary, with roles as deemed suitable by the provisional liquidator. The husband was appointed to manage the company, subject to the supervision of the provisional liquidator. The husband was required, amongst other things, to provide Mr TT with an indemnity against any adverse costs’ orders caused by his impugned conduct (which the court had found justified the appointment of the provisional liquidator) of receiving money from the sale of BB Pty Ltd’s stock into the CBA account ending …27 being in his own name. The wife was offered and accepted a new role subject to the supervision of the provisional liquidator. Due to the wife’s repeated defiance of the directions of the provisional liquidator, he was required to terminate her employment around mid- 2022. The wife ceased receiving income at this time.

38. When put to him during the trial that he and his brother were involved with their father in his application to appoint a provisional liquidator for the purposes of suppressing BB Pty Ltd’s value, and for he and his brother to take it over, the parties’ son Mr U denied that allegation. Mr U did assist his father in translation and communication matters around this time, but in the way that he always had, and borne out of his father’s English language limitations. I am satisfied that the sons did not consider a takeover of BB Pty Ltd to be something that they wished to do.

39. The provisional liquidator continued to buy stock from MM Pty Ltd after his appointment, and in significant quantity, and that process continued until the sale of the business by the liquidator. The liquidator found and reported nothing improper in the continuing relationship between MM Pty Ltd and BB Pty Ltd who were trading on arm’s length commercial terms. BB Pty Ltd did pay a markup on the stock obtained from MM Pty Ltd, not surprisingly. The wife claimed that markup was excessive, and damaged BB Pty Ltd’s profitability.  There was however, not before the Court expert evidence as to market norms in respect of appropriate markups, so that claim could not be successful on the evidence. BB Pty Ltd benefitted from the arrangement in circumstances where it no longer had a Country W supplier and was able to obtain stock on credit terms with MM Pty Ltd, which was not the case for other of its domestic suppliers. Whilst the wife sought to impugn the relationship between the two entities, the wife did not call the liquidator to advance that which she sought to argue.

1. On 13 August 2021, the husband transferred a further $5,000 to Mr V from his CBA account. He again claimed this payment was in repayment of a loan advanced to the parties by Mr V between 2015 and 2017. The husband’s evidence was not credible.

2. In mid-2022, Mr TT identified three vehicles registered in the name of BB Pty Ltd, amounting to a total appraised auction value of $148,000. Mr TT sold two of the cars,  Motor Vehicle 1 ($23,000) and  Motor Vehicle 2 ($97,000), to the husband.

3. On 5 September 2022, the wife withdrew $140,260.78 from the parties joint ANZ account and placed those funds in her Bank G account …49. Such withdrawal by the wife was without the husband’s knowledge or consent. The husband subsequently received the sum of approximately $140,260 from the parties’ joint ANZ bank account. The husband applied these funds to the purchase of  Motor Vehicle 2 at a cost of $97,000 and to payment of Supreme Court legal fees in the sum of approximately $43,260.

4. In late 2022, the provisional liquidator sought to have BB Pty Ltd placed in liquidation. Mr Q initially opposed the liquidation but, in late 2022, he withdrew his opposition to the liquidation.

5. In late 2022, the Supreme Court of NSW found the company was insolvent with various unpaid debts including an overdue debt to the Australian Taxation Office of more than $50,000; and trade creditors who were owed as at 30 June 2022 approximately $100,000 to $120,000. Mr TT was appointed by the Supreme Court as Liquidator of BB Pty Ltd to liquidate and wind up the company. Upon his appointment, Mr TT wrote to BB Pty Ltd’s external accountant, Mr L, requesting the company’s financial records. The husband was appointed as manager of BB Pty Ltd for the period that Mr TT traded the business.

6. In late 2022, Mr TT issued a letter to the directors of BB Pty Ltd, advising them of his intention to advertise the sale of BB Pty Ltd and its assets via a public sales campaign. The directors were invited to make an offer for the purchase of the business. Advertisements were also featured in the media seeking expressions of interest in the purchase of the company’s business and assets.

7. In November 2022, Mr TT issued a demand on the husband for payment of $100,000 in accordance with the indemnity provided in respect to the accumulated losses incurred for the period of 22 July 2022 to 3 December 2022. This payment was received by Mr TT in January 2023. 

8. In late 2022, a new company, UU Pty Ltd (“UU Pty Ltd”) was registered. The parties’ two sons were shareholders of UU Pty Ltd. Mr U was the sole director.

9. The followoning day in late 2022, Mr TT received an offer to purchase the assets of the business from UU Pty Ltd. 

10. In November 2022, BB Pty Ltd received a Notice of Demand for the sum of $48,386.19 from WW Pty Ltd, one of the major domestic suppliers for BB Pty Ltd. That company lodged caveats on all NSW real estate in the company and parties’ names.

11. Three days later in November 2022, Mr TT wrote to Mr Q regarding the third car owned by BB Pty Ltd, Motor Vehicle 3. He advised Mr Q of his intention to take possession of Motor Vehicle 3 and provided Mr Q with the opportunity to make an offer of purchase. On the same day, Mr Q submitted an offer of $25,000 to purchase Motor Vehicle 3.

12. Four days later in November 2022, Mr TT wrote to Mr Q advising him that the appraised Auction Value of Motor Vehicle 3 was $48,000, and therefore he could not accept an offer lower than that value. Mr Q did not submit a revised offer, and the vehicle was sold via public auction.

13. On 28 November 2022, Mr TT’s legal representative issued an email to the legal representatives of the directors, notifying them that he had received an offer in respect of BB Pty Ltd and that should any party be interested, they were to provide offers no later than 30 November 2022.

14. On 30 November 2022, a further email was sent by Mr TT’s legal representative advising that any offer in respect of the company and/or its business and assets was to be provided by no later than 4.00pm that day. Mr TT did not receive any other offers in respect of the company, its business or its assets.

15. On 2 December 2022, Mr TT accepted the offer from UU Pty Ltd. Included in the sale to UU Pty Ltd was all stock on hand owned by BB Pty Ltd: the company’s plant and equipment on an as is where is basis; and the company’s rights and claims on the use and ownership of the company’s online marketplace accounts. The stocktake arranged by Mr TT in mid-2022, had provided a market value for the stock at hand of $849,000, and an auction realisable value of $85,215. By way of consideration, the terms provided for: $100,000 plus GST to be paid in clear funds within 14 days of acceptance;  for UU Pty Ltd to indemnify BB Pty Ltd and the Liquidator from any claims made by any party in respect of warranty claims or refunds for purchases made from BB Pty Ltd or through online marketplace sites for the period commencing 22 July 2022 to the date of the sale, with the value of the indemnity by UU Pty Ltd to be at least $100,000. The payment by UU Pty Ltd of $100,000 plus GST comprised approximately $70,000 in cash deposits which, on the evidence of Mr V, derived from savings as accumulated by him, and, to a lesser extent, his brother, and on the evidence of Mr U, from savings of Mr V and also partly from his own savings.

16. On 6 December 2022, the directors were advised that Mr TT had accepted an offer from UU Pty Ltd.

17. In late 2023, settlement of the sale of the Brisbane property took place. The sale price was $305,000. Out of the net proceeds, $70,000 was paid to the trust account of the wife’s solicitor to pay the Single Expert fees. $100,000 was paid to the husband. $12,393.88 was paid to the wife to cover a costs order that the husband had previously not paid. $113,044.27 was paid to the wife and deposited into her Bank G account.

18. In late 2023, the husband and the parties’ two sons vacated the Suburb J property. The Suburb J property was placed on the market to be sold, and the husband took up residence in his partner’s home. 

19. In early 2024, settlement of the E Street property took place. It had been sold in late 2023. The sale price was $5,200,000 plus GST.

20. In mid-2024, the Suburb J property was listed for auction, with an agreed real estate agent. The sale was not successful, and the Suburb J property was not sold.

    LEGAL PRINCIPLES

21. Property settlement orders under Part VIII of the Act altering the property interests of spouses require the Court to be first satisfied that it is just and equitable to make such orders. To that end, the Court must commence by identifying the existing legal and equitable interests of the parties. The need to be first satisfied that it just and equitable to make an order is as set out in s 79(2) of the Act, which provides that:

    The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

22. If the Court is so satisfied that it is just and equitable to make an order altering the interests of the parties in property, s 79(4) of the Act sets out the matters which the Court must take into account when considering what order (if any) should be made.

23. In Stanford v Stanford (2012) 247 CLR 108 (“Stanford”), in that the High Court of Australia revisited the process for trial judges in altering property interests of parties pursuant to s 79 of the Act. The High Court emphasised the requirement for the Court to establish firstly, that it be just and equitable in the particular circumstances of the case to make any alteration of property interests. In this process, the question presented by s 79(2) of the Act, namely, “whether, having regard to those existing interests, the Court is satisfied that it is just and equitable to make a property settlement order,”[1] must not be merged with, or supplanted by the inquiries under s 79(4) of the Act.[2] In determining whether it is just and equitable to make an order, the matters which can be taken into account do “not admit of exhaustive definition.”[3] However, there must be a “principled reason for interfering with the existing legal and equitable interests of the parties to the marriage.”[4]

    [1] Stanford v Stanford (2012) 247 CLR 108 at [37] (“Stanford”).

    [2] Stanford at [51].

    [3] Stanford at [36] referring to Mallet v Mallet (1984) 156 CLR 605, 608 per Gibbs CJ.

    [4] Stanford at [41].

24. The High Court further held that:

    42. In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship.

25. Whilst I have considered as a precondition to making an order for property settlement whether it is just and equitable in all the circumstances of the particular case to make such an order, the Full Court of the then Family Court of Australia (now Federal Circuit and Family Court of Australia (Division 1)) in Bevan & Bevan (2013) FLC 93-545 at [86] made clear that the just and equitable consideration is one that “permeat[es] the entire process”.

26. It has been determined that, in undertaking the task of considering the totality of the parties’ contributions in a holistic manner, it is inappropriate for a trial judge to adopt an ‘accounting’ or ‘scoring’ approach to each separate contribution. As explained by the Full Court in Blandford & Esmore [2022] FedCFamC1A 67 at [14], adopting such an approach is flawed because it “would not only require detailed actuarial calculations with respect to financial contributions (which would rarely be possible on the evidence generally available in property settlement cases), but it would still leave the significant problem of how to convert the qualitative factors in s 90SM(4)(b) [s 79(4)(b)] and s 90SM(4)(c) [s 79(4)(c)] of the [Act]”.

27. When considering the parties competing contributions, a broad discretion is bestowed upon the Court pursuant to s 79 of the Act which “‘inevitably involves value judgments and matters of impression’, and accordingly cannot be treated as ‘a mathematical exercise’”.[5]  It is often stated that there is an inevitable ‘leap’ from the evaluation of the parties’ contributions to declaring the “quantitative reflection of such an evaluation”.[6]

    [5] Petruski v Balewa (2013) 49 Fam LR 116 at [49], citing Lovine & Connor (2012) FLC 93-515 at [40]–[41].

    [6] Coleman J in Steinbrenner & Steinbrenner [2008] FamCAFC 193 at [234], cited with approval in Roverati & Roverati (2021) FLC 94-027 at [38].

28. When determining the property available for division between the spouses, the long-standing practice is to identify and ascertain the gross value of their assets and liabilities and to then deduct the secured and unsecured liabilities from the assets to establish the overall net value of their property. In that process, circumstances may require some liabilities to be either disregarded (Biltoft & Biltoft (1995) FLC 92-614 at 82,124–82,128) or exclusively attributed to one spouse for payment (Puddy & Grossvard (2010) FLC 93-432 at [62] and [101]–[111]; Trustee for the Bankrupt Estate of Lasic v Lasic (2009) FLC 93-402 at [198]–[200]).[7]

    [7] Moy & Pao (No. 2) [2025] FedCFamC1A 48.

29. The parties to this proceeding seek that the Court make an alteration of their legal and equitable property interests.

30. Section 80 of the Act grants specific powers to a Court to make a range of different orders to adjust property interests between the parties.

    Addbacks

31. Addbacks are the exception and not the rule.[8] Further, addbacks do not occur whenever “a party has expended money realised from the disposition of assets that existed as at the date of separation”; the Full Court described that framing as “unduly simplistic”.[9]

    [8] Trevi & Trevi (2018) FLC 93-858.

    [9] Trevi & Trevi (2018) FLC 93-858 at [28].

32. In Omacini and Omacini (2005) FLC 93-218 at [30], the Full Court identified three categories where it may be appropriate to notionally addback items of expenditure. They are:

    (1)Where the parties expended money on legal fees: see DJM and JLM (1998) FLC 92‑816 at 85,262;

    (2)Where matrimonial assets were distributed prematurely: see Townsend and Townsend (1995) FLC 92-569 at 81,654; and

    (3)Those circumstances as outlined by Baker J in Kowaliw and Kowaliw (1981) FLC 91‑092 at 76,644, which include:

    (a)Where a party has conducted themselves in such a way that is designed to reduce or minimise the effective value or worth of matrimonial assets; or

    (b)Where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.

    EVIDENCE

33. Statements of fact in these reasons are findings of fact on the balance of probabilities unless the context indicates otherwise.[10]

    [10] Evidence Act 1995 (Cth) s 140.

34. It is not necessary in these reasons for judgment to comment upon the entirety of the evidence including the evidence of each witness, nor to comment on every exhibit tendered. Nor have I done so. However, every piece of evidence relied upon by the parties has been read and carefully considered by me.

35. The wife understated the degree of conflict between the parties prior to and following their separation that led to the liquidation of BB Pty Ltd, and the parties increasing inability to execute a transaction together, some examples of which appeared in the husband’s affidavit evidence.

36. The husband’s evidence was at times not credible or reliable, and I have referred to those instances of most relevance in these reasons as they occurred, together with his failure to disclose matters.

37. Each of the parties at times was unreliable in their giving of evidence as to what they had done with monies withdrawn or retained by them, and as to the existence or otherwise of cash sums and their application.

38. The parties’ sons gave mostly unchallenged evidence. Mr U helped his father in the NSW Supreme Court proceedings by providing an affidavit in support, and by assisting his father in translating documents. He engaged Mr VV, consultant, to help the sons’ company secure a $30,000 debt that BB Pty Ltd owed to MM Pty Ltd.

    The single expert, Mr T

39. Mr T received joint instructions from the parties, dated 22 December 2022, to prepare a report as to the value of BB Pty Ltd as of 30 June 2021 and 30 June 2022.

40. The evidence of the single expert as to the value, if any, of BB Pty Ltd was required in circumstances where there was no agreement between the parties as to the value of the business as of 30 June 2021, or 30 June 2022. Neither party sought nor obtained a valuation of BB Pty Ltd for the year ended 30 June 2020, despite it being a relevant time, shortly after separation. The single expert could not give an opinion as to the value of BB Pty Ltd, including that of goodwill, for the years ended 30 June 2021 and 30 June 2022 because the books and records of BB Pty Ltd were unreliable. The “lack of records and the poor quality of information” provided to the single expert precluded him from forming any opinion.

41. Each of the husband and wife were directors of the company in the above referred to years, as they were from the incorporation of BB Pty Ltd. Each were statutorily responsible, as was Mr Q, to retain reliable financial accounts for BB Pty Ltd, and the company had a long-term accountant to assist them in that task. Each of the husband and wife signed their taxation returns and those of BB Pty Ltd. Each of the parties kept records for BB Pty Ltd, not all of which were handed to the liquidator. Each of the parties were aware of the cash receipts of the business, each of them handled that cash, and both were responsible for the accurate record keeping in respect thereto.

42. The poor quality of information and lack of record keeping was contributed to by both parties.

    THE ASSET POOL

    Disputed addbacks

43. The parties, on 18 December 2024, filed a joint balance sheet. The balance sheet included seven addbacks as asserted by the husband which were not agreed by the wife, and eight addbacks as asserted by the wife which were not agreed by the husband. The joint balance sheet also included two disputed assets, being a purported loan from the husband to Mr U, and Motor Vehicle 1, both of which are considered as addbacks in the below table. The joint balance sheet further included that the wife’s legal fees paid from her Bank G account and the parties’ joint Bank G account be included as an addback, though the parties disputed the quantum of the addback; that amount is considered in the below table at item number 3. The Court is required to decide as to whether each of the addbacks be included in the asset pool. The disputed addbacks are as follows:

ADDBACK ITEMS (Disputed)	Ownership	Value
1. Loan to Mr U following separation	Husband	$47,000
2. Motor Vehicle 1	Husband	$25,000
3. Wife’s legal fees paid from her Bank G account & joint Bank G account	Wife	$25,366
4. Proceeds of sale of Brisbane property paid to Wife	Wife	$51,974
5. Wife’s legal fees in respect of Supreme Court proceedings	Wife	$46,406
6. Costs of liquidation funded by BB Pty Ltd	Husband	$110,818
7. Payment to WW Pty Ltd	Husband	$49,396
8. Legal fees paid by wife for Supreme Court proceedings	Husband	$46,406
9. Interim property settlement for payment of whole of Single Expert fees	Wife	$18,700
10. Cash withdrawn from Bank G account ending …49 between 29 September 2020 and 11 July 2022	Wife	$101,000
11. Funds transferred by the wife from the parties joint Bank G account ending …62 on 17 June 2022	Wife	$58,472
12. Wife’s withdrawal from joint ANZ Account ending …99 to her Bank G account ending …49 on 26 August 2022	Wife	$140,260
13. Cash removed from BB Pty Ltd and held personally by the wife	Wife	$82,285
14. Funds transferred by husband to Mr V on 1 September 2021	Husband	$100,000
15. Further funds transferred to Mr V after separation	Husband	$75,000
16. Further funds transferred to Mr V after separation	Husband	$25,000
17. Cash from matrimonial home	Husband	$375,000
18. Husband’s further unaccounted for expenditure of matrimonial funds since separation including on legal fees	Husband	$80,931

Consideration of the disputed addback assets

Item 1

1. Counsel for the wife submitted the Court should find that the husband advanced to the parties’ son Mr U, a sum of $47,000, without the wife’s consent, and that such sum was not repaid by Mr U to the husband as claimed by the husband. The Court makes such finding as indicated elsewhere in these reasons. The husband conceded in his affidavit evidence, that he had advanced such sum to Mr U. He claimed it was a ‘loan’ given in mid-2021, to assist Mr U in the purchase of an apartment in Suburb OO. The Court accepts that the husband gave such money to Mr U without consultation with the wife. The subject line of the bank transfer transaction was “Support to [Mr U]”. The husband earlier asserted that this was a “one off financial support paid from a father to his son for [his] purchase of [his] property”. The husband subsequently asserted that these funds were a loan to Mr U and gave evidence that Mr U repaid such monies to him in 2024, and that the husband applied them to his living expenses. The Court does not accept the evidence of the husband as to this matter. The Court finds such advance by the husband to Mr U was not a loan but rather a gift which augmented the wealth of Mr U, at the expense of his mother.

   Item 2

SUPERANNUATION	Ownership	Wife’s Value	Husband’s Value
Superannuation Fund 1 (SMSF)	Husband	$59,332	$60,970
Superannuation Fund 1 (SMSF)	Wife	$58,026	$57,985
Superannuation Fund 2 (Accumulation)	Wife	$26,132	$26,122
TOTAL	$143,490	$145,077

1. Each of the parties placed the remaining contents of the former matrimonial home in the asset pool with an agreed total value of $23,240. The husband was content for the wife to have ownership of all the items at the agreed value. I observe there was no valuation evidence. The wife, however, did not wish to retain all the items. In my view, given that: there was no agreement between the parties as to which party should receive the totality of the contents; the contents were of relatively low, non-expert value; the contents included gifts from the wife’s family in the value of $880; and that otherwise there was no reliable evidence as to the distribution of the balance of the contents, it was just and equitable, and proper that, the personal items as described should not appear in the asset pool as having a value of $23,240 in favour of one party, but rather should be divided without further adjustment by inclusion in the asset pool, as to the large gemstone, with a value of $9,000, to the wife together with the gifts as given by her family with a value of $880. The remaining two smaller gemstones with a total value of $9,000 should be the property of the husband. The remaining contents, with a value of $4,360, should be apportioned equally between the parties or otherwise apportioned as agreed between them.

   CONTRIBUTIONS

2. The Court must consider the contributions of the parties in an overall sense (Norman & Norman [2010] FamCAFC 66; Kowalski and Kowalski (1993) FLC 92-342; G v G (2000) FLC 93-043). A broad approach is preferred, rather than reference to precise mathematical calculations (Burke and Burke (1981) FLC 91-055), although an evaluation of each party’s respective contributions is necessary (JEL v DDF (2001) FLC 93-075).

   Commencement of cohabitation

3. The parties married and commenced cohabitation in 1994, moving into the Suburb Y Property together. The husband contributed $66,000 to the purchase of that property. Given the myriad of contributions made by the parties over a 26-year period, this is not a contribution I now make any adjustment for. Indeed, the husband, in his stated position of equality of contributions between the parties, conceded as much.

4. The parties each had motor vehicles or a motor vehicle of no consequence at this time.

5. The wife’s parents gifted the parties ‘new white goods’, including a fridge, a microwave, a television and a washing machine.

6. Both parties were working at the time of their marriage; the husband predominantly at Z Company, which business was later incorporated to become BB Pty Ltd; and the wife in a manual role. Both parties continued working hard and full time until the wife took maternity leave following the birth of the parties’ son, Mr U, in 1995.

   During cohabitation

7. Following Mr U’s birth, the wife had some limited maternity leave. On her return to work in a manual role, the wife asserted that her mother cared for Mr U, and the evidence of the husband was that his parents came from Country W and cared for Mr U until October 1996. It is probable that both the husband’s parents and the wife’s mother assisted in the care of Mr U. Following Mr V’s birth, the wife had, again, some limited maternity leave, and on her return to work, she commenced to work at BB Pty Ltd, on a part time basis, to allow her to otherwise care for the parties’ young children. She was assisted in that care by her mother and the husband’s parents, who were again visiting from Country W, and who helped looked after Mr U and Mr V for approximately six to nine months, whilst the husband and wife worked. After they returned to Country W, the wife’s mother alone looked after the children during the working hours of their parents and when the children were not in childcare. The husband continued to work full time.

8. Commencing in late 1999, the husband and wife lived with the wife’s parents in their home for approximately six months. The wife’s parents funded the husband and wife’s living expenses during this time. The wife’s mother shopped and cooked for them every day. Otherwise, and in the many years ahead, the wife’s parents looked after the children whilst the parties were at work, and/or renovating the matrimonial home and/or otherwise engaged. The parties did acknowledge the maternal grandparents’ contributions and themselves made some limited cash payments to them to assist them including for the purchase of a new car ($20,000), and following separation, a sum of $10,000 for the wife’s mother’s father’s funeral. The parties also gave some $4,000 to the husband’s parents in Country W to assist them.

9. The husband worked full time managing the family business, BB Pty Ltd. He generally managed the finances of the business and undertook ordering parts from Country W, including arranging payment. He operated BB Pty Ltd bank accounts, as did the wife, and organised contracts and commercial relationships. He also undertook the hiring and payment of staff. He worked very hard.

10. Over time, the wife’s role in the BB Pty Ltd business increased. The wife continued also to carry out the majority of parenting tasks, including organising, feeding, bathing, and shopping for the children. Her working hours were governed by the pickup and drop off the children to and from school and by her need to prepare the dinner for the family. The husband took the children to their music classes over some years, and to their weekend sporting activities on a Saturday before later travelling with Mr V to national competitions, and to training sessions and events where Mr V excelled. He took the parties’ sons to sport lessons for three years. He tutored them in mathematics when they were young, and later, when Mr U was admitted to a selective high school, he took him to tutoring in English and mathematics on a Sunday. The parties also paid private school fees in respect of a part of each of their children’s education. Both parents worked at night, at times after the children were in bed. By separation, when the children were working at BB Pty Ltd, the wife worked five and a half days per week in a sales role. The wife also worked very hard.

11. The wife handled the household administration, including the payment of household bills on her credit card. The wife’s credit card was paid off using the husband and wife’s joint Bank G account.

12. In early 2016, when the husband was diagnosed with a medical condition, the wife cared for the husband and began working additional hours for BB Pty Ltd.

13. Between 2016 and separation the husband and wife each contributed to the operations of BB Pty Ltd and to the welfare of the family. They each were involved in the acquisition of further real property as described above.

    Post-separation

14. Each of the parties continued to work until their respective cessations as earlier described.

15. Both the wife and husband claimed that the other party drained or diverted money from the asset pool. Both have in fact done so.

16. The husband continued to reside in the former matrimonial home rent and mortgage-free for a period of approximately two years following the wife departing the home and taking up residence in her parent’s home where she was living at trial.

17. Prior to orders dated 1 November 2022, the husband managed the upkeep and maintenance of the Suburb C warehouse property, the E Street property, and the Suburb J property. This included paying council rates, and some water, gas and energy bills in the total sum of approximately $8,955. The consent orders made on 1 November 2022, provided for the expenses of the parties’ investment properties to be thereafter paid from their joint ANZ Account.

18. Overall, I find that each of the husband and the wife made significant and equal contributions as described in s 79(4) of the Act, with those contributions being otherwise as set out in the relevant factual findings. They worked together to advance the welfare of their family, and to provide for the future of their children, emotionally, socially and economically. The parties were each engaged in the care of their children, and when the wife was more so, she was working fewer hours than the husband, albeit paid equally. The parties acquired numerous properties, domestic and commercial, and carried out improvements to some of those as outlined in the factual findings above. They commenced, and operated, a successful business over many years until their mutual behaviours caused the liquidation of the business. The parties set up their own self-managed superannuation fund and contributed to it such that their sons benefitted, and they each left the marriage with similar superannuation entitlements. The parties worked together, respecting each other, to advance the family unit financially and socially. Their efforts were enormous and displayed great dedication to the family and its members advancement.

    Relevant s 75(2) matters

19. The husband has no income. He asserted that he has limited income earning capacity, due to his age and poor health in the context of the nature of his skillset being in warehouse work. His age is a consideration in the context of any future income earning capacity.  He has, however, a skillset which also includes significant managerial experience, which his health would not preclude him from engaging in and being renumerated for that work. The issue for the husband is that he does not wish to seek out further employment. He has worked all his life and suffered from significant ill health. Any income he might earn now would be modest. He continues to receive ongoing preventative treatment for his earlier medical diagnosis and wishes to enjoy life with the funds available to both he and the wife by way of property adjustment.

20. The husband had employment as the manager of BB Pty Ltd until its liquidation, ongoing employment which was not held by the wife. The wife sought to lease out the Suburb C warehouse property to generate income which the husband refused until mid-2023. The wife has had no source of income since August 2022.

21. The husband has more recently lived without income because he has had access to part-property payments, and because he is assisted financially by the support provided to him by his cohabitating partner. The husband was vague about matters pertaining to this cohabitation and claimed that his partner’s support of him extended only to the payment of some rent and day to day expenses. He failed to put before the Court, sufficiently, the financial circumstances relating to the cohabitation to enable the Court to properly consider that matter.  The husband claimed that his mother had provided him with approximately $30,000 between October 2022 and February 2023, to assist in his living expenses. He made that claim because, after the wife had discovered the Bank QQ account, the husband had to explain cash deposits into that account. The husband further claimed that such monies were transferred to him (on behalf of his mother) through his “girlfriend’s friend”.  This evidence of the husband was not credible evidence, and I do not accept it. Such funds probably derived from monies held by the husband as previously owned by the parties. The husband also gave evidence that his son Mr U provided to him, in 2024, alleged earlier borrowings as advanced to him by his father in August 2021 (in the sum of $47,000) and that the husband applied those funds toward his living expenses. As indicated earlier in these reasons, the husband was not credible in the giving of this evidence.

22. The wife has no income. She also claimed to have limited income earning capacity. She is five years younger than the husband, and does not have his health issues, but she has also chosen not to work, and since her termination by the provisional liquidator, has not done so. The wife could readily engage in administrative work that would be only modestly paid, and she too may wish to enjoy her life by application of her share of the parties’ asset pool. She is assisted by her parents in their provision of a home to her, and she pays them a weekly sum in return for such support. The wife has received part-property settlement monies and some retained cash from the operations of BB Pty Ltd to fund her living expenses since her cessation of employment.

23. The parties’ children are now adult and have been generously provided for by each of their parents over their lifetime. They have financially benefited from the liquidation of BB Pty Ltd, in their acquisition of stock, but they have certainly not benefited from the breakdown in their parents’ relationship and cessation of their family life as they knew it. Their frustration and lack of patience with their parents, and abhorrence of being entangled in the BB Pty Ltd deadlock amongst the directors, was evident. They exited BB Pty Ltd. It is not disputed that they are estranged from their mother. There is no evidence, save for the payment of legal costs in the sum of approximately $57,000 (as paid by MM Pty Ltd), that they are a financial resource to their father. The parties’ sons have an existing relationship with their father. The parties’ sons are intent on building their own fortunes and are not prepared to have their parents intrude further in their working lives, and nor are they prepared to make financial provision for them unless necessary.

24. The parties’ self-managed superannuation fund interests are relatively equal on either parties valuation, and the evidence was inconclusive as to which figures were more accurate. No adjustment of those interests shall be made. The wife has additionally a further approximately $26,000 in superannuation entitlements, and the husband sought no superannuation adjustment orders with respect thereto. In my view, that was appropriate as between the parties. The wife will be unable to access her superannuation entitlements for a period of approximately five years after the husband shall have such access to his entitlements.  Any adjustment would not be significant in the context of the parties’ net assets, and to leave the parties’ superannuation entitlements unadjusted as between them is, I find proper, just and equitable.

25. Each of the parties will have significant capital to provide comfortably for themselves after having worked industriously over many years.

26. The wife urged the Court to look at the matters raised in the case through the prism of s 75(2)(o) of the Act. I do so below and incorporate the relevant factual findings above.

27. The central issues which arose for consideration as demanded by the wife were those factual matters which occurred following the parties’ separation. The wife argued that there was a just, equitable and proper basis for altering the parties’ interests significantly in favour of the wife by examining that which she did not raise in the liquidation proceedings in the NSW Supreme Court. At that time, she did not oppose the liquidation of BB Pty Ltd.

28. The wife submitted that the husband was the cause of BB Pty Ltd being in deadlock. The wife also submitted that the Court should find that the husband had either intentionally or recklessly caused the dissipation of a significant asset and ongoing financial resource belonging to the parties, namely BB Pty Ltd. She argued that the Court ought to consider this when looking to s 75(2)(o) of the Act, and consider whether in fact BB Pty Ltd was profitable, contrary to its liquidation, for the purposes of making a 15 per cent adjustment of an asset pool of over ten million dollars in her favour.

29. I find it clear, on the evidence, that the husband was not solely the cause of the deadlock. Rather, each of the three directors were jointly and severally the cause. The wife in these proceedings cannot avoid her contributory responsibility for the implosion of the business. She cannot sheet home blame to the husband because he managed BB Pty Ltd. The family business, which provided them all with a lot of money, and provided for the parties working sons, could not continue to be profitable in the face of the parties’ various actions, many of which are set out in these reasons for judgment. They included the receipt of, and failure to properly account for, cash in the running of the business. Once the husband returned to the workplace following his illness, disagreements between the husband, the wife and Mr Q surfaced and continued, unabated and increasing in degree of acrimony until the parties’ sons were dragged into the dispute. Each family member in the workplace did not trust certain others.  Indeed, the liquidator of the company opined, in his Statutory Report to Creditors dated early 2023, that the reasons for the failure of the company were directly related to the breakdown in the relationship between the parties, and the ongoing dispute between them and Mr Q for the two years before his appointment. He was not called by the wife to be challenged as to that opinion. He was not called by the wife to be challenged as to any action taken or not taken by him throughout the process of the liquidation and its aftermath.

30. The husband felt that the wife and her brother “ganged up” against him in his ongoing management of the business. On the evidence, they did so, with the parties’ sons then supporting their father. The wife and her brother quite properly commenced to exercise specific directors’ powers, but as a challenge to, and in conflict with, the husband’s management of the business. They claimed they were unaware they were directors of BB Pty Ltd before the separation of the parties, albeit they had signed cheques and/or documents as directors of the company over the many years before. I find that they probably did know they were directors, and certainly the wife conceded that she knew that the cheques for bonus payments as made to her, the husband and her brother, were only made to directors of BB Pty Ltd.

31. The wife never sought to operate the business in any way other than as directed by the husband, prior to separation, and she did not seek to involve herself in the obligations of a director beyond those which the husband and/or the company accountant required her to perform, until 2020. There was no need. The business was profitable and run well by the husband over many years. She trusted him to benefit their family. The directors each had their sphere of operations in the running of the company which satisfied them. The separation occurred however, and the behaviour of each of the directors toward each other (which had already commenced to some extent) lacked the harmony of the earlier years. They lost confidence in each other and in the way the company affairs were being conducted by each of them. Regular procedures, which had earlier ensured the orderly running of the business, were abandoned by each of the directors. Some of what followed included: arguments about wages, bonuses, and cash payments and their storage; third parties working in the workshop as approved by Mr Q and opposed by the husband; conduct, one toward the other, which resulted in numerous police attendances; the accessing of company money by each of the husband and wife because of mutual mistrust and, in the husband’s case, the placing of it away from the company accounts and in an account in his name and controlled by him without notifying the other directors; the wife recording the cash she withheld in a cash book which she failed to provide to the liquidator; the failure of the company to pay the rental on the Suburb SS premises; the wife and Mr Q claiming that no stock was being delivered to the factory where they worked from June 2020, which was altered by Mr Q to a claim that domestic stock arrived, but that no stock arrived from Country W in larger containers, a matter I do not find; and those other matters as set out in each of the parties and Mr Q’s affidavit evidence, as unchallenged, going to the complete breakdown of the relationship of the parties, are all matters which went to the establishment of the deadlock and appointment, as a consequence, of the provisional liquidator. 

1. Further, there is no evidence to the necessary standard of proof that the parties’ sons represent an ongoing financial resource to their father as asserted by the wife. There is evidence that they want no involvement in their parents’ dispute, and feel they have been harassed and unfairly treated, “a pawn in these proceedings”. It was not put to the parties’ sons that they acted in “knowing concert” with their father to sabotage the value of BB Pty Ltd and to have the provisional liquidator appointed. Even if it can be said such matters were put to the sons, they denied any such activity, with Mr U denying being involved in the application for a provisional liquidator with a plan to suppress the value of BB Pty Ltd and take it over. I make no adverse finding of credit against the parties’ sons as to these matters.

2. As is detailed in the factual findings above, each of the parties’ sons worked for some years, and industriously, in the family business. They had appropriate skills and/or qualifications to excel in the field, and indeed each had ceased tertiary studies to work for BB Pty Ltd. The parties’ sons were exposed to the operations of the business, and to the suppliers of the business. They were provided with significant experience in the running of such a business and were operating within the business independently, as indeed required by their parents. Their contribution was important to the operations of the business, and even more so after COVID‑19. The sons knew that their mother, father and uncle were directors and shareholders of BB Pty Ltd at all relevant times. They themselves, did not seek to join the company in any capacity. They were aware of the increasing and ongoing conflict between the directors, which had started in all probability following the husband’s return to the workplace after his illness. They were aware of arguments between the directors and their suppliers. They wished to avoid that conflict but, in a practical sense, whilst working for BB Pty Ltd, could not. The sons understood that their mother, from at least January 2022, did not trust them with BB Pty Ltd’s cash receipts, monies which she determined in January 2022, to place in her handbag in her motor vehicle instead of the company safe at the workplace which might be accessed by them. The husband was also removing cash from the business around this time. There is no evidence that he was not using most of such funds for the company. The cash nature of parts of this business, undeclared, was something each of the husband and the wife wanted to control. The parties’ sons saw MM Pty Ltd and UU Pty Ltd as a way for them to get out of the toxic environment in which they worked, establish businesses of their own.

3. In essence, the deadlock which occurred between the directors of BB Pty Ltd required the parties’ sons to set up their own businesses. Not surprisingly, given their experience and skills, and contacts as developed by them whilst working for BB Pty Ltd, they were well positioned to take up the opportunity to secure their financial futures as had been intended by their parents since the sons commenced to work for BB Pty Ltd where they added value over several years.

4. In essence, what the husband did do, however, and which I consider pursuant to s 75(2)(o) of the Act as a relevant matter, was take funds out of BB Pty Ltd, and out of the parties’ bank accounts, and provide such funds to the parties’ sons and to himself in far greater measure than the wife. He then sought to hide and/or deny those matters. An adjustment in the wife’s favour when looking to the totality of the s 75(2) matters is required.

   CONCLUSION

5. I have determined that a s 75(2) of the Act matters adjustment in the wife’s favour of four per cent should be made.

6. I have also determined, pursuant to s 75(2)(o) of the Act, that the justice of the case requires that the Suburb C warehouse property should not be sold or retained by the husband as sought by him but should be transferred to the wife as sought by her. It will provide to the wife ongoing income as needed by her to greater extent than the husband. It is a property also, that should not be made available to the husband, for him to provide to the parties’ sons, nor placed on the open market available to be purchased by the parties’ sons, in the circumstances of the wife seeking retention of the property and in the context of the facts of this case.

7. In dollar terms, on the existing net asset pool as above, the husband shall receive $4,583,594 and the wife $5,380,740, a differential of $797,146. The wife will receive the Suburb C commercial property, which is valued at $1,750,000, and otherwise retain those items already allocated to her. The husband will retain those items as allocated to him in the net asset pool. A payment from the wife to the husband will need to be made to reflect an overall adjustment of the parties’ net assets, excluding superannuation, of 54 per cent to the wife and 46 per cent to the husband. That payment may be impacted by the sale price of the Suburb J property. The wife seeking a 15 per cent adjustment in respect of s 75(2) of the Act considerations, was simply not supported by the facts of this case.

8. The parties’ superannuation has been dealt with as described in [186] above.

9. I am satisfied that in all the circumstances of the case it is just and equitable, and proper, to make orders adjusting the parties’ property interests in the manner I have described herein.

I certify that the preceding two hundred and two (202) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett.

Associate:

Dated:       14 May 2025

Annexure “A” & Annexure “B”

Omitted to comply with Part XIVB of the Family Law Act 1975 (Cth)