Stroman & Stroman
[2025] FedCFamC1F 245
•17 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Stroman & Stroman [2025] FedCFamC1F 245
File number(s): PAC 2985 of 2023 Judgment of: ANDERSON J Date of judgment: 17 April 2025 Catchwords: FAMILY LAW – PROPERTY – Alteration of property interests – Where parties had a 14-year relationship – Where the husband asserts that his financial contributions were superior to the financial contributions of the wife – Where the husband made limited financial contributions to the children of the relationship in the two years and four months subsequent to separation
FAMILY LAW – PROPERTY – Alteration of property interests – Where the wife alleges waste by the husband – Where wife asserts there should be an addback of husband’s gambling losses – Whether husband’s expenditure on gambling should be regarded as waste – Where the wife asserts that there should be an addback of monies spent by the husband on his partner and on overseas holidays undertaken by the husband immediately prior to and subsequent to separation – Whether husband’s expenditure on his partner and on overseas holidays should be regarded as waste
FAMILY LAW – PROPERTY – Alteration of property interests – Where the wife alleges waste by the husband – Where wife asserts there should be an addback of cryptocurrency losses – Whether cryptocurrency losses should be regarded as waste – Net assets divided as to 80 percent in the wife’s favour – Section 75(2) adjustments made
FAMILY LAW – PRACTICE AND PROCEDURE – Where wife asserts that the husband failed to make full and frank disclosure – Section 75(2) adjustments made
Legislation: Family Law Act 1975 (Cth) ss 75(2), 79(1), (2), (4), 106A Cases cited: Bevan & Bevan (2013) 279 FLR 1
Black and Kellner (1992) FLC 92-287
Dickons & Dickons (2012) 50 FamLR 244
DJM v JLM (1998) FLC 92-816
Fields v Smith (2015) 54 Fam LR 1
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervenor) (2003) FLC 93-143
Hicks & Trustee of the Bankrupt Estate of Hicks (2021) FLC 94-006
In the Marriage of Biltoft (1995) FLC 92-614
In the Marriage of Crampton [2006] FamCA 528
In the Marriage of De Angelis [1999] FamCA 1609
In the Marriage of Rolfe [1977] FamCA 106; (1977) 34 FLR 518; (1979) FLC 90-629
In the Marriage of Wardman and Hudson (1978) 5 Fam LR 889
Kannis & Kannis [2002] FamCA 1150
Kowaliw and Kowaliw (1981) FLC 91-092
Kuzmenko & Aarne [2024] FedCFamC1F 685
Lee Steere & Lee Steere (1985) FLC 91-626
Mallet v Mallet (1984) 156 CLR 605
Money & Money (1994) FLC 92-485
Omacini & Omacini (2005) FLC 93-218
Pierce v Pierce (1999) FLC 92-844
Roverati and Roverati [2021] FamCAFC 89
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Townsend & Townsend (1995) FLC 92-569
Wardman & Hudson (1978) FLC 90-466
Watson & Ling (2013) 49 Fam LR 303
Way & Way (1996) FLC 92-702
Weir and Weir (1993) FLC 92-338
White & White (1982) FLC 91-246
Division: Division 1 First Instance Number of paragraphs: 158 Date of last submission/s: 5 March 2025 Date of hearing: 27-28 February 2025 & 3-5 March 2025 Place: Parramatta Counsel for the Applicant: Mr Livingstone Solicitor for the Applicant: Hills Family Law Centre Counsel for the Respondent: Mr Cairns Solicitor for the Respondent: Jameson Law ORDERS
PAC 2985 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS STROMAN
Applicant
AND: MR STROMAN
Respondent
ORDER MADE BY:
JUSTICE ANDERSON
DATE OF ORDER:
17 APRIL 2025
THE COURT ORDERS THAT:
In full and final settlement of all claims for settlement of matrimonial property:
1.All previous orders made under Part VIII of the Family Law Act 1975 (Cth) be discharged.
2.On settlement of the sale of the property located at B Street, Suburb C in the State of New South Wales (“the Suburb C property”), the proceeds of sale shall be applied in the following manner and priority:
(a)In payment of the agent’s commission and expenses on the sale;
(b)In discharge of the three mortgages secured against the Suburb C property;
(c)All costs and expenses of the sale including legal costs and disbursements, agents’ commission and auction expenses;
(d)The sum of $31,000 to the Trust Account of the Applicant Wife’s solicitor for and on behalf of the Applicant Wife (“the wife”);
(e)The sum of $17,923 to the Trust Account of the Respondent Husband’s solicitor for and on behalf of the Respondent Husband (“the husband”);
(f)With respect to the balance remaining in payment to the parties as follows:
(i)In payment to the wife of an amount calculated by the following formula: (80% x D)
Where:
A = $50,848, being the net value of the assets to be retained by the wife pursuant to these orders
B = $17,983, being the net value of the assets to be retained by the husband pursuant to these orders
C = The net proceeds of sale of the Suburb C property after the deduction of those amounts referred to at Order 1(a) – (e) herein;
D = The total of A + B + C
(ii)In payment to the Trust Account of the wife’s solicitor for and on behalf of the wife the sum of $4,200 being the sum outstanding for child maintenance pursuant to Orders made on 5 September 2023;
(iii)In payment to the Trust Account of the wife’s solicitor for and on behalf of the wife the sum of $10,010 being the sum outstanding for spousal maintenance pursuant to Orders made on 5 September 2023;
(iv)The balance then remaining to the husband.
3.In respect of the sum of $142,573 held in a Controlled Money Account, the proceeds be applied in the following manner and priority:
(a)In satisfaction of capital gains tax owing by the parties to the Commissioner of Taxation in respect of the sale of the property at D Street, Suburb E in the State of New South Wales;
(b)The balance then remaining in payment to the parties as follows:
(i)A sum equating to eighty (80) percent of the balance remaining to the wife;
(ii)The balance then remaining to the husband.
4.Within thirty (30) days of the date of these Orders, the parties do all acts and things and sign all documents necessary to close all bank accounts held in the joint names of the parties with the proceeds of those accounts to be transferred to a bank account as nominated by the wife.
5.Within thirty (30) days of the date of these Orders, the husband do all acts and things and sign all documents necessary to transfer one hundred (100) percent of his interest in F Cryptocurrency to the wife.
6.Unless otherwise provided:
(a)Each party shall be the sole legal and beneficial owner (as between the parties) of all other assets in their respective possession as at the date of these orders, and for that purpose, bank accounts are deemed to be in the possession of the person named as the account holder and superannuation entitlements are deemed to be in the possession of the superannuant;
(b)Each party shall be solely liable for and shall indemnify the other against any and all debts attaching or relating to the property in their respective possession, and any debts in their respective sole names, including any individual liability for tax arising out of the sale by the parties of property pursuant to these Orders.
7.In the event of any party refusing or neglecting to sign within seven (7) days of a written request to do so any document necessary to implement the terms of these Orders a Registrar of the Federal Circuit and Family Court of Australia is empowered to execute such documents on behalf of the parties pursuant to s 106A of the Family Law Act 1975 (Cth).
8.All outstanding financial applications are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Stroman & Stroman has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE ANDERSON:
INTRODUCTION
The applicant wife (“the wife”) brought these proceedings against the respondent husband (“the husband”) to adjust their property interests pursuant to Part VIII of the Family Law Act 1975 (Cth) (“the Act”) following the breakdown of their marriage on 24 November 2022.[1]
[1] Wife’s affidavit filed 14 February 2025, paragraph 5.
The wife also sought final parenting orders pursuant to Part VII of the Act in relation to the parties’ two children, namely, a female child aged thirteen (13) years, and a male child aged ten (10) years (“the children”). The parties largely compromised the parenting application on the first day of trial and with the consent of the parties, I heard an application under s 68B of the Act on the second day of the trial. The Final Parenting Orders provide for the children to live with the mother. The orders do not provide for any time between the children and their father unless it is in accordance with the children’s wishes. The children have not spent any time with their father subsequent to the parties’ separation save for a few hours in January 2023 and in the case of the male child, some limited time in April 2023.[2]
[2] Wife’s affidavit filed 14 February 2025, paragraphs 40 and 41.
The principal issues with respect to the Part VIII applications are:
(a)An assessment of the parties’ respective contributions pursuant to s 79(4)(a), (b) and (c) of the Act in relation to non-superannuation assets;
(b)Whether an adjustment in favour of the wife pursuant to s 79(4)(e) of the Act is warranted on account of s 75(2) factors;
(c)Whether the husband engaged in a course of conduct, which was designed to minimise the asset pool or acted “negligently, recklessly or wantonly”[3] with respect to the parties business;
(d)Whether the husband dissipated the parties’ assets in a manner, which was reckless and/or deliberate such that it is appropriate to award the wife the entirety of the net assets available for distribution;
(e)Whether pursuant to s 75(2)(o) of the Act, an adjustment in the wife’s favour is warranted on account of the husband’s non-disclosure of documents relevant to these proceedings.
[3] See Kowaliw and Kowaliw (1981) FLC 91-092.
For his part, the husband seeks a division of the parties’ non-superannuation assets whereby he retains fifty-five (55) percent, and the wife retains the remaining forty-five (45) percent.[4]
[4] Outline of Case Document filed by the husband on 26 February 2025, page 5 of 10.
In circumstances where each party seeks an order under s 79(1) of the Act for an alteration of interests in property, albeit to different effect, it is implicit that they concede it is just and equitable for the Court to do so, as required by s 79(2) of the Act. I agree that it is just and equitable for the Court to make an order under s 79 of the Act. Particularly, and as will become clear, there is not and will not be the common use of property by the husband and wife in the future. Further, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the severance of the marital relationship.[5] The matters identified by the plurality of the High Court in Stanford v Stanford (2012) 247 CLR 108 at [42] apply in this case.
[5] Stanford v Stanford (2012) 247 CLR 108 at [42].
For the reasons which follow, I shall order a division of the parties' non-superannuation property in the proportions of eighty (80) percent to the husband and the remaining twenty (20) percent to the wife. I make no order with respect to the parties’ respective superannuation assets.
BACKGROUND
The wife is aged forty-two (42) years.[6] She is currently unemployed and in receipt of government benefits. She has expressed a hope to return to employment as an educator in the short term and says that she will receive about $1,200 per week through such employment.[7] She has recently relocated with the children from New South Wales to Queensland.
[6] Wife’s affidavit filed 14 February 2025, paragraph 1.
[7] Wife’s affidavit filed 14 February 2025, paragraph 222.
The husband is aged forty-three (43) years.[8] He currently works for his mother’s company and earns about $450 per week as an independent contractor.[9]
[8] Husband’s affidavit filed 26 February 2025, paragraph 1.
[9] Husband’s affidavit filed 26 February 2025, paragraph 321.
The parties met in 2007, married in 2008 and separated in November 2022 when the husband went on a holiday to New Zealand without the wife or the children. Thereafter, the husband never returned to the former matrimonial home.[10] It is uncontroversial that the wife has been solely responsible for the care of the children since that time.
[10] Wife’s affidavit filed 14 February 2024, paragraph 5.
Prior to the birth of the parties’ eldest child in 2011, the wife left her employment as an educator in Sydney. Thereafter, the wife says that the parties agreed that she would be the children’s primary carer whilst the husband worked as a tradesperson in partnership with his father.[11] The husband disputed this evidence under cross-examination and says that he wished for the wife to return to employment once each of the children were of school age. For the reasons discussed below, the husband’s evidence does not alter my view about the manner in which the remaining assets of the marriage ought to be distributed.
[11] Wife’s affidavit filed 14 February 2024, paragraph 100.
Two years prior to the parties’ marriage, the wife purchased a property at Suburb G in the State of New South Wales. She paid a small deposit, and the purchase was otherwise funded by a mortgage secured by the Commonwealth Bank of Australia.[12]
[12] Wife’s affidavit filed 14 February 2025, paragraph 97.
In 2009, the parties purchased a house and land package at Suburb C in the State of New South Wales. The wife says that each party contributed to the deposit for the property.[13] The husband agrees and says that his deposit was derived from the proceeds of sale of a unit.[14] He provided no detail with respect to that assertion. The parties moved into the Suburb C property in 2010.[15] In the same year, the wife says that she sold her property at Suburb G and used the net sale proceeds to extinguish debt and to purchase some furniture.[16]
[13] Wife affidavit filed 14 February 2025, paragraph 103.
[14] Husband’s affidavit filed 26 February 2025, paragraph 12.
[15] Wife’s affidavit filed 14 February 2025, paragraph 105.
[16] Wife’s affidavit filed 14 February 2025, paragraph 106.
In 2014, the husband ceased the partnership with his father in circumstances where his father wished to retire. Thereafter, the parties took over the business and created a proprietary limited company, which for the purposes of this judgment, I will refer to as Stroman Pty Ltd. Each party was a director of the company, and each party held a fifty (50) percent shareholding.[17] The husband expanded the business beyond its primary focus to include other services.[18] The wife says that she was heavily involved in business development and promotion,[19] whilst the husband was responsible for the administration and financial management of the company.[20] The husband disputes the wife’s evidence. He says that he was primarily responsible for the operations of the company. Particularly, the husband:
(a)denies that the wife made any significant contribution to the company either financially or non-financially;[21]
(b)says that “working more than 80 hours a week put…[a] strain on [the parties’] relationship”.[22]
[17] Wife’s affidavit filed 14 February 2025, paragraph 110.
[18] Husband’s affidavit filed 26 February 2025, paragraph 26.
[19] Wife’s affidavit filed 14 February 2025, paragraph 113.
[20] Wife’s affidavit filed 14 February 2025, paragraph 117.
[21] Husband’s affidavit filed 26 February 2025, paragraph 314.
[22] Husband’s affidavit filed 26 February 2025, paragraph 38.
The husband asserts that upon the cessation of the partnership with his father, his parents transferred to him equipment for the conduct of the business, materials, a motor vehicle, an overdraft facility and a loan facility.[23] The husband made no effort to produce any evidence which would enable me to ascertain the monetary value of these contributions.
[23] Husband’s affidavit filed 26 February 2025, paragraph 26.
In 2014, the husband’s parents transferred a property from which the business operated. That property was located at Suburb E.[24] The property was sold pursuant to orders made by the Honourable Justice Riethmuller on 26 April 2024. The proceeds of sale were used to satisfy debts owing by the parties and the remaining proceeds of sale sit in a controlled monies account.
[24] Husband’s affidavit filed 26 February 2025, paragraph 314.
In 2016, the parties created a subsidiary business, which operated within Stroman Pty Ltd. It related to the provision of “certain products”.[25]
[25] Wife’s affidavit filed 14 February 2025, paragraph 112.
Whatever the quantum of the husband’s initial contribution, on 26 April 2024, the Court made an order for the appointment of a liquidator to Stroman Pty Ltd. The Court made the Order subsequent to the filing of an Application in a Proceeding by the wife in November 2023 at which time the wife expressed concern about what she described as the “mismanagement” of the company by the husband.[26] The husband in his response to the application conceded that it was appropriate to wind up the company.[27] A Statutory Report to Creditors prepared by the liquidator and published on 26 July 2024[28] identified that the following factors may have contributed to the company’s failure:
(a)High / improper cash use;
(b)Poor financial control; and
(c)Incorrect reporting to the Australian Taxation Office.[29]
[26] Wife’s affidavit filed 14 February 2024, paragraph 138.
[27] Response to an Application in a Proceeding filed 9 April 2024.
[28] Exhibit H1.
[29] Exhibit H1, page 57 of the Statutory Report to Creditors.
In addition to these factors, the husband says that subsequent to an accident in late 2023 and his diagnosis with a medical condition in late 2023[30], he became very anxious and experienced a decline in his mental and physical health. Accordingly, the husband says that he did not have “the capacity to work or focus on the company”.[31] For her part, the wife says that the company “failed due to the commencement of the Family Court proceedings”.[32]
[30] Husband’s affidavit filed 26 February 2025, paragraph 79.
[31] Husband’s affidavit filed 26 February 2025, paragraph 88.
[32] Exhibit 1, page 57.
The wife asserts that following the parties’ separation in November 2022, the husband would “not allow me to be involved in the activities of the business or provide any information to me with regards to… [the company] despite me being listed as a director”.[33] The husband denied this assertion but he did not deny that in the post-separation period, he alone was conducting the business.[34] This is consistent with the husband’s assertion that the wife made no significant contribution to the company (supra).
[33] Wife’s affidavit filed 14 February 2025, paragraph 118.
[34] Husband’s affidavit filed 26 February 2025, paragraph 261.
In 2021, the wife claims that the husband asked her to sign loan documents with the Australia and New Zealand Banking Group (“ANZ”) to refinance a loan facility in a sum of $300,000. The wife says that she subsequently learned that in fact, she was signing documents to obtain an additional sum of $564,158 bringing “the total amount owing to the ANZ to approximately $800,00”.[35] The wife says that on making an enquiry of the husband in January 2023, he said that he spent the sum of $564,158 on the “business and crypto”.[36] The husband agrees that at least some of the funds were spent on cryptocurrency.[37]
[35] Wife’s affidavit filed 14 February 2025, paragraph 127.
[36] Wife’s affidavit filed 14 February 2025, paragraph 129.
[37] Husband’s affidavit filed 26 February 2025, paragraph 266.
In November 2022, the father went on a holiday to New Zealand with his partner who he met on an online dating application. The oral evidence of the parties causes me to conclude that at that juncture, the wife did not know that the husband had in fact separated from her. As discussed below, the husband spent significant funds during the holiday, which lasted for a little over five weeks.
In June 2023, the husband took a trip to the United States of America. He claims that the trip was for “business purposes in the main”.[38] Again, he expended significant monies during his time in the United States. The husband subsequently undertook a trip to City H in April 2024, which he says was largely paid for by his parents and another trip to the United States of America in June 2024, which he says (save and except for the cost of flights) was paid for by an American.
[38] Husband’s affidavit filed 26 February 2025, paragraph 45.
In September 2023, the Court made an order permitting the wife to take possession of Motor Vehicle 1.[39] Six days after such Order was made, the husband transferred the motor vehicle to a person who he says had been conducting repairs to the motor vehicle. The husband says that he did so due to a debt outstanding to the repairer.[40] The husband was indifferent when he was cross-examined by the wife’s counsel about his preparedness to breach an Order of the Court.
[39] Orders made on 5 September 2023, paragraph 14,
[40] Husband’s affidavit filed 26 February 2025, paragraphs 291 to 294.
In December 2023, the husband arranged for the repossession of Motor Vehicle 2 used by the wife in the period subsequent to separation in circumstances where the husband says he was unable to meet financial obligations with respect to the loan secured over the vehicle.[41] The repossession occurred at the female child’s Year 6 farewell celebration ceremony. The husband was cross-examined about why a repossession had been arranged on a day of significance to the female child but whatever the scenario, the wife says that it was an event which was damaging to the children’s relationship with the husband. The disposal of the motor vehicle also occurred in circumstances where the husband was restrained from disposing of any asset absent notice to the wife.[42] The husband did not make an application to the Court to be relieved of this obligation.
[41] Husband’s affidavit filed 26 February 2025, paragraph 300.
[42] Orders made on 5 September 2023, paragraph 5.
Despite his assertion that he could not afford the financial obligations associated with Motor Vehicle 2, the husband conceded under cross-examination that in late December 2023 he paid a sum of $9,654 with respect to the hire of a motor vehicle. The husband conceded that he was not paying any child support at that time. This was in circumstances where the husband’s adjusted taxable income for child support services was assessed by the Child Support Agency at $6,485 per annum.[43]
[43] Exhibit W6.
Additionally, the wife says that as a consequence of disclosure made by the husband, she became aware that the husband spent a sum of $321,644 on a live-streaming platform.[44] The husband in his written evidence denied any improper use of the funds,[45] and under cross-examination, said that he used the live-streaming platform as a marketing tool for the business.
[44] Wife’s affidavit filed 14 February 2025, paragraphs 153-154.
[45] Husband’s affidavit filed 26 February 2025, paragraph 274.
It was the wife’s case that significant sums of money ought to be notionally added back into the parties’ pool of marital assets and allocated to the husband.
Accordingly, and in addition to the question of contributions and the parties’ prospective needs, I am required to consider the following:
(a)Whether monies realised by the husband on the sale of Motor Vehicle 1 ought to be notionally allocated to the husband and, if so, in what amount?
(b)Whether monies spent by the husband on the live-streaming platform ought to be notionally allocated to the husband, and if so, in what amount?
(c)Whether monies spent by the husband on online gambling ought to be notionally allocated to the husband, and if so, in what amount?
(d)Whether monies spent by the husband on his partner in the period prior to and subsequent to separation ought to be notionally allocated to the husband, and if so, in what amount?
(e)Whether funds spent by the husband on the hire of a motor vehicle ought to be notionally allocated to the husband, and if so, in what amount?
(f)Whether monies spent by the husband whilst on holiday in New Zealand in November and December 2022 and the United States of America in June 2023 ought to be notionally allocated to the husband, and if so, in what amount?
(g)Whether monies spent by the husband on computer equipment, a luxury watch, and collectibles ought to be brought to account in the list of assets available for distribution?
EVIDENCE
In support of her case, the wife relied on the following documents:
(a)An Amended Initiating Application filed on 22 January 2025;
(b)An Affidavit in the name of the wife filed on 14 February 2025;
(c)A Proof of Evidence signed by the wife with respect to what she describes as “significant changes” in her circumstances since filing her affidavit on 14 February 2025;[46]
(d)A Financial Statement filed on the first day of trial being 27 February 2025;
(e)Some tendered documents.[47]
[46] Exhibit W1.
[47] Exhibit W1 to W24.
The husband relied on:
(a)A Further Amended Response to an Initiating Application filed on 25 February 2025;
(b)An Affidavit in the name of the husband filed on 26 February 2025. The document was filed on the eve of trial;
(c)An affidavit in the name of the husband’s mother filed on the eve of trial;
(d)A Financial Statement filed on the first day of trial being 27 February 2025; and
(e)One tendered document.[48]
[48] Exhibit H1.
LEGAL PRINCIPLES
Part VIII of the Act deals with financial matters relating to parties who are or have been married to one another. Section 79(1) of the Act authorises the Court to alter the property interests of the parties to a marriage. Part VIIIB of the Act provides specific provisions enabling the splitting of superannuation between spouses.
The major provisions relating to marital property division are contained within ss 79(1), 79(2), 79(4), and 75(2) of Part VIII of the Act. Pursuant to s 79(1) the Court is authorised to make such order as it considers appropriate in order to alter the interests of the parties to a marriage in relevant property.
Pursuant to s 79(2) the Court is actively prevented from making such an order unless it is satisfied that it is just and equitable to do so in all the circumstances prevailing. This follows from the use of the prohibitive words “shall not” in the relevant section.
Section 79(4) provides the mechanics of how a Court is to make an order altering marital property interests. It provides seven matters [in paragraphs (a) – (g)] to be considered, as relevant.
Paragraphs (a), (b), and (c) categorise contributions made by marital partners, which are relevant. Paragraph (d) directs the Court to take into account the effect of any order upon the earning capacity of either party to the marriage concerned.
Paragraph (e) directs the Court to consider a list of matters contained in s 75(2), which are germane to spousal maintenance, or the prospective positions of the parties concerned by reference to their respective financial resources, means and needs.
Finally, paragraphs (f) and (g) apply to child support and previously made parenting orders, as relevant. There is some overlap between these various provisions and not all will be applicable in every case.
Until 2012, the position in respect of the process to be applied to the resolution of matrimonial property cases was said to be well settled. The process entailed a four-step process, described by the Full Court as follows:
(a)Identification and valuation of the property of the parties;
(b)Identification and evaluation of contributions to the property (including property no longer owned by the parties) – the contribution phase – s 79(4)(a) to (c);
(c)Identification and assessment of the various matters in s 79(4)(d) to (g) including to the extent they are relevant, the matters in s 75(2) – the prospective needs phase; and
(d)Considerations of justice and equity.[49]
[49] Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervenor) (2003) FLC 93-143 at [39] and Bevan & Bevan (2013) 279 FLR 1 at [60].
The general applicability of this four-step process was recast in light of what was said by the High Court in the decision of Stanford v Stanford delivered in 2012.[50] In that case, the majority stated that:
[35]It will be recalled that s 79(2) provides that ‘[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order’. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
[36]The expression ‘just and equitable’ is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.[51]
[50] Stanford v Stanford [2012] HCA 52.
[51] Stanford v Stanford [2012] HCA 52 at [35] – [36].
Accordingly, considerations of what is just and equitable favour all applications pertaining to property settlement. What is fair is impossible to define with certitude and must depend on the prevailing circumstances. However, care must be taken to avoid conflating the stipulation contained in s 79(2) with the discretionary exercise contained in s 79(4).
In Bevan & Bevan the Full Court summarised three fundamental propositions relating to the interaction between s 79(2) and s 79(4),[52] which can be summarised as follows:
(a)Determination of what is just and equitable begins with an identification of existing property interests;
(b)The discretion provided by s 79 must not proceed on any assumption that any settlement of property should be different from those existing property interests, as determined by principles of common law and equity;
(c)However, a determination that a person has an entitlement to a division of property by reference only to s 79(4) would be wrong as it would ignore the express statutory requirement of s 79(2) or conflate the two considerations.
[52] Bevan & Bevan (2013) 279 FLR 1 at [73].
As discussed by the Full Court in Bevan, whether it is just and equitable to make any particular property order is invariably and inextricably interwoven with questions of contribution arising under s 79(4) and the parties’ financial and relationship history with one another.
The four-step approach remains a valid approach to matrimonial property cases. In Bevan the majority of the Full Court (Bryant CJ and Thackeray J) said as follows:
[65]Although the High Court did not disapprove the four step process, we accept it was not approved either...However, the High Court’s decision serves to refocus attention on the obligation not to make an order adjusting property interests unless it is just and equitable to do so.
[71]Stanford will also serve as a reminder that the four step process ‘merely illuminates the path to the ultimate result’.[53]
[53] Bevan & Bevan (2013) 279 FLR 1 at [65] and [71].
In the first step, I must ascertain what are the parties’ assets and liabilities available to be divided between them. The normal rule is that those assets are to be determined as at the date of trial.[54]
[54] See Wardman & Hudson (1978) FLC 90-466; and In the Marriage of Biltoft (1995) FLC 92-614.
In the second step, I must ascertain the contributions, which each party has made towards the pool of assets. Contributions fall into two broad categories. The first kind is contributions to the property: financial contributions and non-financial contributions, made directly or indirectly, by or on behalf of a party to the marriage to the acquisition, conservation or improvement of any of the property of that relationship. The second kind is contributions to the welfare of the family: in the words of s 79(4)(c):
the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent.[55]
[55] See Family Law Act s 79(4)(c).
It is clear from the authorities that this second kind of contribution must be given appropriate weight and is not to be treated as a token matter or as a contribution which is inherently less valuable or important than a financial contribution to property.
In its totality, s 79(4) requires the Court to examine the entirety of contributions, both financial and non-financial, to the welfare of the family, as well as to the acquisition, conservation and improvement of any asset which may be individually identified.
The task conferred is to weigh and assess contributions, which are necessarily disparate in nature. Contributions within the framework of a marriage which are different in quality and nature – that of a homemaker and parent, which is not readily quantifiable in dollar terms, and that of a wage earner; – must be compared. It has been referred to as a holistic exercise.[56]
[56] See Watson & Ling (2013) 49 Fam LR 303 at [13] per Murphy J.
As a consequence, contributions are not automatically required to be tied to the acquisition of any particular item and may be taken into account in a total sense. The exercise is not a purely arithmetical or accounting one.
EXISTING PROPERTY INTERESTS
On the final day of trial, the parties tendered a Joint Balance Sheet.[57] As discussed above, and despite my exhortations to the parties’ counsel during the trial, I was never provided with a Balance Sheet clearly identifying the parties’ existing assets. I have now attended to that task and set out below the parties’ existing assets available for division[58]:
[57] Exhibit W23.
[58] Deleting accounts, which have a value less than $1.00 (nominal value).
Ownership
Description
Wife’s value
($)
Husband’s value
($)
ASSETS
1
J
B Street, Suburb C, NSW
1,821,500
1,821,500
2
J
Funds held in controlled monies account for payment of Capital Gain
142,573
142,573
3
H
F Cryptocurrency
10,371
10,371
4
H
J Cryptocurrency
60
60
5
H
Stamps, Card Collection and other Collectibles
7,000
1,500
6
W
K Bank Account
9,292
9,292
7
J
CBA Account (ending …97)
100
100
8
J
CBA Account (ending …06)
139
139
Sub-Total:
1,991,035
1,985,535
LIABILITIES
9
J
Less Estimated Capital Gains Tax for sale of D Street, Suburb E
-110,000
-110,000
10
J
Less CBA Home Loan Account (ending …06)
-217,790
-217,790
11
J
Less CBA Home Loan Account (ending …68)
-109,751
-109,751
12
J
Less CBA Home Loan (ending …06)
-110,038
-110,038
Total
1,443,456
1,437,956
SUPERANNUATION
Member
Name of Fund
Type of Interest
Wife’s value
Husband’s value
13
W
Super Fund 1
Accumulation
69,994
69,994
14
H
Super Fund 1
Accumulation
45,562
45,562
Total
115,557
115,557
There is one dispute with respect to the existing assets of the parties, namely, the value of stamps, cards and other collectibles held by the husband. The parties did not obtain a valuation of these items nor were the items the subject of the parties’ affidavit material filed for trial.
During closing submissions, the husband’s counsel said that save and except for his stamps, he had gifted his cards and other collectibles to the children and that they are now owned by the children. It is the husband’s opinion that his stamps have a value of $1,500. For her part, the wife adopts a figure of $7,000, the value of which is derived from the husband’s Financial Statement filed on 21 July 2023.
For the purposes of this judgment, I will simply bring the stamp collection to account when I consider whether any adjustment to the wife is required having regard to s 75(2)(o) of the Act.
NOTIONAL PROPERTY
The notional property, which the wife asserts ought to be included in the list of marital assets is described as follows:
ADDBACKS
Notional Asset
Wife’s value ($)
Husband’s value ($)
Motor Vehicle 1
90,000
45,000
Money expended by the husband on live-streamers and a live-streaming platform
321,644
255,029
Money expended by the husband on M Pty Ltd
30,954
30,954
Money expended by the husband on N Company
23,100
23,100
Money expended by the husband on
his partner54,925
54,925
Debts incurred by the husband on his Credit Card in New Zealand between November 2022 and December 2022
81,480
35,000
Debts incurred by the husband on his ANZ Business Card in New Zealand between November 2022 and December 2022
12,928
12,928
Debts incurred by the husband on his ANZ Business Card in New Zealand in late January 2023
4,827
4,827
Money obtained by the husband from his cryptocurrency account
627,090
627,090
Sum expended by the husband on the purchase of a watch
7,000
7,000
Debts incurred by the husband on his ANZ Business Card in the United States of America between early June 2023 and late June 2023
67,569
35,284
Debts incurred by the husband on his CBA Personal Mastercard in the United States of America between early June 2023 and late June 2023
11,715
7,092
Debts incurred by the husband on his CBA Mastercard on collectibles
16,860
16,860
Monies spent by the husband on the hire of a motor vehicle
9,654
Total
1,359,746
1,155,089
It will be apparent to a reader of this judgment that save and except for a sum of about $80,000, the addbacks contended for by the wife represent the entirety of the existing assets available for distribution.
Motor Vehicle 1
On 1 September 2023, the Court made an Order with respect to Motor Vehicle 1 in the following terms:
The Applicant Wife is permitted to take possession of [Motor Vehicle 1]…and the Respondent Husband shall do acts and things to execute this order including:
(a)Providing the keys of the vehicle to the Applicant Wife;
(b)Providing the details of the Mechanic that is currently responsible for repairs to the vehicle to the Applicant Wife; and
(c)Transfer the vehicle to the Applicant Wife, if requested, to enable her to effect a sale.
At the conclusion of the hearing on 1 September 2023, the wife drove to a mechanical repair business. She says that from prior experience, she knew the location where the husband arranged for Motor Vehicle 1 to be serviced and repaired, and that the owner of the business was “a very good friend” of the husband.[59] The wife says that the mechanical repair business was closed by the time that she arrived.
[59] Wife’s affidavit filed 14 February 2025, paragraph 183.
Four days after the hearing on 1 September 2023, the parties attended before a Senior Judicial Registrar to receive judgment with respect to competing interim applications. At that juncture, the husband’s legal representative advised the Court that the husband owed the mechanical repair business a sum of $48,000 in respect of repairs undertaken on Motor Vehicle 1. After the conclusion of the hearing, the husband’s solicitors advised the wife’s solicitors that the husband had transferred Motor Vehicle 1 to the mechanic in early September 2023 to repay the outstanding debt, thus breaching Order 5 of the Orders made previously.[60]
[60] Wife’s affidavit filed 14 February 2025, paragraphs 187 ad 189.
As a consequence of subpoenas issued by the wife, the wife ascertained that:
(a)Motor Vehicle 1 was transferred to the mechanical repair business for a sum of $35,000;
(b)The motor vehicle was insured for an agreed value of $90,000 in circumstances where the vehicle “has a number of modifications and extras”.[61]
[61] Wife’s affidavit filed 14 February 2025, paragraphs 193 and 194.
The wife tendered a tax invoice from the mechanical repair business dated March 2023, which identified that extensive works had allegedly been performed to the vehicle.[62] However, I was not able to verify the extent of the works (if any) because the husband elected not to call the repairer to give evidence.
[62] Exhibit W20.
The wife raised an interesting point – namely, if works to a value of $48,000 had been performed to the vehicle and the vehicle was insured for a sum of $90,000, why did the husband simply transfer the vehicle to the mechanic for a sum of $35,000? The husband was not able to provide a satisfactory answer under cross-examination.
For these reasons, I find that at the very least, some of the value of Motor Vehicle 1 was “wasted” in the sense that the husband dissipated property absent the consent or knowledge of the wife: (Kowaliw and Kowaliw (1981) FLC 91-092 at 76,644 (“Kowaliw”).
Monies expended by the husband on a live-streaming platform and live-streamers
The wife says that during the period June 2020 to June 2023 the husband expended a sum of $321,644 on a live-streaming platform and live- streamers,[63] whereas the husband concedes a sum of $255,029 only. The wife described the platform as a “live streaming service”, which streaming includes “people playing video games, music broadcasts, creative content and in real time streams”.[64]
[63] Exhibit W4.
[64] Wife’s affidavit filed 14 February 2025, paragraph 154.
There is a further dispute between the parties about whether the monies were expended for a genuine business purpose, namely, marketing or whether, as the wife’s counsel asserted on several occasions during the trial, the husband expended the monies for his own titillation. Her counsel’s cross-examination on the subject and his constant use of the word “titillation” suggested that on the wife’s case, the husband was paying performers on the live-streaming platform for prurient interests.
Given the significance of the topic and the quantum of the addback claimed by the wife it is remarkable that the wife’s affidavit addressed the issue in three short paragraphs consisting of five sentences only.[65] The husband’s written evidence was similarly deficient.
[65] Wife’s affidavit filed 14 February 2025, paragraphs 153 to 155,
Insofar as the husband says that the use of the live-streaming platform was for business interests, the wife gave the following oral evidence:
(a)The company paid for the services of a media consultant; and
(b)The role of the media consultant was “to market to the US clientele [of the business] via social media platforms”.
The husband under cross-examination agreed with each of the above propositions. In addition, the husband agreed that the media consultant was paid a sum of $9,000 per annum and agreed that the said sum represented the total advertising budget. Indeed, the advertising expenses for the company for the year ended 30 June 2021 were in the amount of $9,026.[66] It does not appear, from any of the evidence tendered, that the significant sums spent on the live-streaming platform were claimed as a tax deduction. When I asked the husband about this curiosity, he was unable to provide a reasonable explanation.
[66] Exhibit W13.
Cross-examination of the husband revealed the following:
(a)On the husband’s assessment, ninety percent of expenditure on the live-streaming platform related to business purposes with the remaining ten percent relating to the husband’s own interests;
(b)Various females performing on the live-streaming platform were paid significant sums of money. For example, the husband paid monies to a female named “Ms L” who he agreed had no expertise in the automative industry whatsoever. However, the husband said that “Ms L” and other female performers, to whom he paid money, were within the top one percent of performers on the live-streaming platform who at any given time, had about five thousand people viewing their respective performances. The husband said that on making a payment to a female performer, the logo for the company would “flash up” on the screen for a minute or less and it was the husband’s hope that this would generate interest in the products offered by the company;
(c)The husband did not have what the wife’s counsel described as “metrics” with respect to any relationship between the performance of the business, sales made by it and the monies paid to performers on the live-streaming platform. It is my assessment that the husband had no idea whatsoever whether the use of funds on live-streaming and/or performers on that platform were generating any sales for the business; and
(d)The husband did not advise the wife that he was spending money on particular performers on the live-streaming platform from time to time nor did he seek her consent to do so.
The husband says that the wife approved of the marketing strategy recommended by the consultant in the United States. The wife’s oral evidence at the very least supports a finding that she knew of the marketing consultant and knew that the company was paying monies to him. It was also the husband’s uncontested oral evidence that the wife would, together with him, meet the marketing consultant on at least one occasion per year when the parties would travel to the United States for business purposes. I am troubled, however, by the following:
(a)The husband did not advise the wife as his co-director when he proposed to spend significant funds or on whom and for what purpose he was spending significant funds;
(b)The husband did not advise the wife how much he spent on the live-streaming platform from time to time. As an example, the husband agreed that he did not advise the wife that he spent a sum of $118,000 on the live-streaming platform in the 2020 financial year;
(c)In the 2020 financial year, the company tax return identifies the total cost of sales as being in the amount of $114,795[67] whereas the expenditure on social medial alone was in excess of $120,000;[68]
(d)In the 2021 financial year, the advertising budget was in the amount of $9,026[69] whereas expenditure on the live-streaming platform and performers exceeded $145,789.[70] The husband provided no explanation whatsoever about how this inconsistency might be explained. On one view, it supports the wife’s contention that the husband used the live-streaming platform for his own prurient interests as opposed to marketing of the business;
(e)In the 2020, 2021 and 2022 financial years, the husband spent sums in the amount of $118,825, $137,565 and $50,534 respectively on the live-streaming platform despite the fact that in each financial year the business made losses.[71] For example, in the 2022 financial year, the losses of the business were in the amount of $120,657.[72] On my assessment, the fact that the husband spent significant sums of money on the live-streaming platform whilst the business made significant losses supports the position of the wife’s counsel that the husband had no idea whatsoever whether there was any correlation between expenditure on the live-streaming platform and sales of the business. Certainly, I have formed a view that the husband spent the money in a reckless manner;
(f)The husband did not adduce any evidence from the marketing consultant based in the United States despite giving evidence that he communicated with the marketing consultant during the week prior to trial and indeed, on the first day of trial; and
(g)The husband says that he still owes money to the marketing consultant despite the fact that the consultant did not lodge a Proof of Debt Form for the purposes of the liquidation of the company.[73]
[67] Exhibit W9.
[68] Exhibit W4.
[69] Exhibit W13.
[70] Exhibit W4.
[71] Refer to Exhibits W9, W10 and W11.
[72] Exhibit W11.
[73] Exhibit H1.
In defence of his expenditure, the husband said that the wife had access to the accounts and “books of the company” at least in the financial years ending 2018 to 2020 in circumstances where the wife was responsible for submitting applications to the Australian Government for the receipt of grants. This is irrelevant with respect to the financial years ending 30 June 2021 to 30 June 2023 (inclusive). In any event, under cross-examination by the husband’s counsel, the wife’s evidence was that after 30 June 2020, she did not access what she described as the “books and records” of the company because she was not making applications for grants. Further, and even in respect of the financial year ending 30 June 2020, I am not persuaded that the evidence as presented by the husband enables me to find that:
(a)The wife had actual knowledge or advanced knowledge with respect to the expenditure of funds on the live-streaming platform or the performers. Certainly, there is no evidence, which would enable me to conclude that the husband sought the wife’s consent prior to spending significant sums of money on female performers; or
(b)The wife had constructive knowledge of circumstances that would put her on inquiry with respect to the use of funds.
At the very least, I find that in respect of some of the monies, the husband was reckless as to whether the monies expended were achieving any benefit for the company. He has also conceded that at least ten percent of the monies expended by him on the live-streaming platform related to his personal entertainment. Having regard to a document tendered by the wife’s counsel with the consent of the husband’s counsel, ten percent of expenditure across the course of these four financial years would equate to about $31,000 in any event.
For these reasons, I am satisfied that the monies spent by the husband on the live-streaming platform and the performers meets the definition of “waste” as so described by the Full Court in Kowaliw at 76,644 (supra). This is because the husband was acting negligently and/or recklessly with respect to monies of the parties.
Monies expended by the husband on online gambling
The wife asserts and the husband agrees that during the financial years ended June 2021 to December 2023, the husband expended a sum of $30,685 with the lottery agency, M Pty Ltd.[74] She also asserts, and the husband agrees, that during the period June 2021 to May 2023 he spent a sum of $23,100 with the gambling agency, N Company.[75]
[74] Wife’s affidavit filed 14 February 2025, paragraph 156.
[75] Wife’s affidavit filed 14 February 2025, paragraph 162.
During cross-examination, the husband:
(a)Conceded that the expenditure on online gambling was not business expenditure despite the fact that funds for the same were being withdrawn from the business account; and
(b)Made no suggestion that the wife had knowledge of or consented to the use of joint funds for gambling purposes.
The quantum of the funds spent by the husband on gambling is about $53,000 or 0.03 percent of the existing assets available for distribution. Nevertheless, I consider the husband’s expenditure of funds in this case to be significant given that:
(a)the existing assets available for distribution as calculated by me are modest;
(b)there is no evidence to cause me to conclude that the husband’s expenditure on gambling ought to be balanced against monies spent by the wife on her own forms of entertainment;[76]
(c)on the husband’s own evidence, at least some of the gambling occurred during a period when he says:
(i)he was unable to work as a consequence of an accident;[77]
(ii)he had been declared unfit work;[78]
(iii)he had been struggling to complete projects on behalf of the company;[79]
(d)the gambling occurred during a period when the wife asserts that an audit of the company by the Australian Taxation Office identified “a number of significant failures of the financial management of the company”.[80] Whilst this assertion was not tested under cross-examination, the audit did give rise to a tax liability and fringe benefits tax. These consequences can only rest at the feet of the husband in circumstances where, as discussed above, he says that the wife made no significant contribution to the company either financially or non-financially;
(e)at least some of the gambling occurred during a period when the wife received no payments by the husband by way of Child Support. I discuss this topic in further detail below.
[76] For example, see In the Marriage of Crampton [2006] FamCA 528; In the Marriage of De Angelis [1999] FamCA 1609 at [76]; Kuzmenko & Aarne [2024] FedCFamC1F 685.
[77] Husband’s affidavit filed 26 February 2025, paragraph 75 and onwards.
[78] Husband’s affidavit filed 26 February 2025, paragraph 88.
[79] Husband’s affidavit filed 26 February 2025, paragraph 88.
[80] Wife’s affidavit filed 14 February 2025, paragraph 122.
For these reasons, I am satisfied that the monies spent on gambling meet the definition of “waste” as so described by the Full Court in Kowaliw at 76,644 (supra). This is because the husband was acting negligently and/or recklessly with respect to monies of the parties in circumstances where he was not otherwise attending to the affairs of the business.
Monies expended by the husband on Ms O
When considering this topic, it is important for a reader of this judgment to remind himself/herself that the parties separated when the husband travelled to New Zealand in November 2022, never returning to the former matrimonial home.
The wife asserts that during the period, September 2022 to January 2024, the husband transferred to his partner, Ms O, monies with a combined value of $54,925.[81] The husband concedes the same. By reference to these transactions, the husband agreed that his relationship with Ms O commenced prior to his separation from the wife. He also agreed that he concealed his relationship with Ms O from the wife.
[81] Wife’s affidavit filed 14 February 2025, paragraph 161.
The husband’s oral evidence was that he met Ms O on a dating website, which purports to match a “Sugar Daddy” with a “Sugar Baby”. He agreed that the purpose of the website was to enable women to engage with men of wealth and have them share that wealth with them. The husband also agreed that companionship and sex was another purpose of the website and that these experiences were not necessarily “binded to money”.
The first transfer to Ms O was a sum of $4,000 in September 2022. Since that date, transfers to Ms O occurred on an almost monthly basis until January 2024.[82]
[82] Exhibit W15.
The monies were being paid to Ms O in circumstances where:
(a)The husband initially advised the Court that he had “intermittently paid $300 per week for the children”[83] between separation and October 2023 but later conceded that the account into which he paid the monies was a joint account held with the wife from which he also made withdrawals. This being so, the husband conceded that the wife did not consistently receive a sum of $300;
(b)The husband conceded under cross-examination that he had not paid any child support to the wife since August 2023;
(c)The husband breached orders made on 5 September 2023 requiring him to pay a sum of $715 by way of spousal maintenance and a further sum of $300 per week by way of child support.[84] By 25 November 2024, the arrears were in the order of $4,500 on account of child maintenance and $10,725 on account of spousal maintenance. The Court ultimately made an order that these arrears be met from the sale of the Suburb E property with the result that the wife in fact paid for her own child maintenance and spousal maintenance from capital;[85]
(d)The husband filed a Financial Statement on the first day of trial advising the Court, at Item 31, that he was paying to the wife a sum of $450 per week on account of child support and spousal maintenance when, in fact, he was not paying anything and had not done so for in excess of twelve months. At the time of trial, the husband owed the wife the sum of $10,010 on account of spousal maintenance and the sum of $4,200 on account of child maintenance.[86] The husband disputed the quantum of the arrears but did not produce any evidence to support an alternate position.[87]
[83] Husband’s affidavit filed 26 February 2025, paragraph 228.
[84] Orders made on 5 September 2023, paragraphs 3 and 4(e).
[85] Orders made on 25 November 2024, paragraphs 2(a)(ii) and 2(a)(iii).
[86] Wife’s affidavit filed 14 February 2025, paragraph 58.
[87] Husband’s affidavit filed 26 February 2025, paragraph 234.
In Omacini & Omacini (2005) FLC 93-218, the Full Court identified a non-exhaustive list of categories in which it may be appropriate to treat property which is no longer in existence as though it were available for adjustment as between the parties. Those categories were:
(1)Where the property in question had been “wasted” – including the destruction, diminution or dissipation of property (Kowaliw at 76,644);
(2)Where there had been a premature distribution of property to one of the parties (Townsend & Townsend (1995) FLC 92-569 at 81,654); and
(3)Where money has been spent on legal fees (DJM v JLM (1998) FLC 92-816 at [11.6]).
I find that the conduct of the husband in the circumstances of this case was not reasonable and that the monies expended by him for Ms O fall into the first of the three categories referred to above, namely, waste, as that expression was defined in Kowaliw at 76,644:
As a statement of general principle, I am firmly of the view that financial losses incurred by the parties or either of them in the course of the marriage whether such losses result from a joint and several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a)where one of the parties has embarked upon a course of action 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.
It beggars belief that the husband could have reasonably considered that such expenditure on Ms O was appropriate in circumstances where:
(a)He was still in a relationship with the wife at the time he transferred a portion of the monies to Ms O;
(b)The husband found himself in breach of orders made by this Court for the payment of child maintenance and spousal maintenance; and
(c)As referred to above, he was not attending to the affairs of the business. If in fact, the company was struggling as asserted by the husband during his oral evidence then again, it defies commonsense to spend monies on a “sugar baby” as in fact the husband chose to do. The husband’s behaviour is particularly egregious in circumstances where he did not otherwise provide financially for his two young children.
Monies expended by the husband during a holiday to New Zealand
The wife asserts that in November and December 2022, the husband travelled with Ms O to New Zealand. Cross-examination of the husband suggested to me that in addition to airfares for each of him and Ms O, the husband spent with cheerful abandon monies on clothing for himself and Ms O, rental care hire, restaurant meals and leisure activities. With respect to expenditure on an credit card, the husband agrees that he spent $35,000 on expenses associated with his holiday whilst the wife contends that the accurate figure is $81,480. The evidence as it was presented does not enable me to find that the entire sum of $81,480 was spent by the husband on the holiday. Indeed, and under cross-examination, the husband gave some evidence that during the relevant period he bought an iPad for the female child and a laptop for the female child. On the second day of trial, the husband was asked to carefully consider the statements for his credit card and having done so, the husband’s evidence was to the effect that only a sum of $35,000 related to the holiday. Although the husband conceded that none of the expenses related to the company, I am unable to make a finding as to the precise quantum of expenditure.
The husband was also asked about debts incurred on his ANZ Business Card whilst in New Zealand. The husband conceded that for a period of three days in late November 2022 when he was in New Zealand, he charged his ANZ Business Card with expenditure of $12,928[88] but denied that the expenditure was personal.[89] The husband maintained the same position with respect to charges made by him on his ANZ Business Card when he returned to New Zealand for a second time for a period of five days in early January 2023. Those charges were in the order of $4,827. The husband was not challenged with respect to this evidence.
[88] Wife’s affidavit filed 14 February 2025, paragraph 158.
[89] Husband’s affidavit filed 26 February 2025, paragraph 276.
Having regard to the above analysis:
(a)I conclude by reason of the husband’s concession that as a minimum and between November and December 2022, the husband spent a sum of $35,000 on travel related expenditure;
(b)The true quantum of the monies spent by the husband is likely to exceed $35,000. This is because although some expenditure was placed on a business card and ostensibly not for personal expenses, the liquidator appointed to the company expressed a view in his Statutory Report to Creditors that high and/or improper cash use contributed to the failure of the company.
Whatever the scenario, I find that as a minimum, the husband recklessly spent a sum of $35,000 (but probably more) in a very short period of time in circumstances where the husband was only intermittently making payments of child support to the wife.
Money obtained from cryptocurrency account to personal account
The wife asserts that over the period June 2021 to June 2023, the husband “deposited a total of $343,393.92 into cryptocurrency and withdrew the amount of $627,090.52 into his personal account”. Save for this assertion, the wife did not undertake any analysis as to the manner in which the funds were expended. It was also submitted that as at August 2015, the value of F Cryptocurrency held by the husband had a value of $1,030,000[90] whereas by the time of closing submissions, the currency had a value of $10,371. Cross-examination of the husband by the wife’s counsel was to the effect that the husband had withdrawn the cryptocurrency and “cashed it in” for his own benefit. A submission in similar terms was made in respect of J Cryptocurrency held by the husband.
[90] Exhibit W16.
Under cross-examination, the husband said that he has spent the proceeds of cryptocurrency in “various ways”. There was thereafter no investigation by the wife’s counsel as to the precise manner in which these funds were expended.
During closing submissions, the husband’s counsel said the following with respect to the sum of $627,909.52:
My client takes $627,000, thereabout, from the crypto earnings, and he acknowledges that. When I get to the balance sheet, your Honour, I will go on to say that there’s a lot of double dipping in the amounts set out there, but my client takes that amount…and uses part of that throughout those years to pay for the social media exposure through [a live-streaming platform] or various presenters, whatever it might be.
In other words, the husband’s counsel submitted that some amounts withdrawn by the husband from cryptocurrency were already represented in the list of proposed add backs as it related to expenditure by the husband on a live-streaming platform and performers(supra).
The husband’s counsel also submitted that:
(a)Some of the expenditure was prior to separation and some of it was subsequent to separation. This being so, it could not be ruled out that the wife and/or the children benefited from at least some of the funds;
(b)Some of the expenditure related to reasonable expenses of daily living. I was not assisted by either counsel to determine the quantum of the same;
(c)Some of the expenditure related to monies spent on the husband’s partner (supra). To this extent, it was submitted by the husband’s counsel that it would be erroneous to include amounts spent on the husband’s partner twice.
The evidence does cause me some concern that if I did add back a sum of $627,090, I would be “double dipping” with respect to other add backs contended for by the wife. The evidence was simply not presented in a manner, which would enable me to form a view about the manner in which the sum of $627,090 was expended.
Purchase of a watch
The husband conceded that prior to separation, he purchased a watch for a sum of $14,500 although for the purposes of trial, the parties agreed to a figure of $7,000.
For reasons not explained, the parties included the watch as an add back although it was the husband’s evidence that he remains in possession of the same. This being so, I will consider the watch as an asset of the husband and reflect the same when dividing the asset pool.
Money expended by the husband on a trip to the United States in June 2023
The wife asserts that in June 2023:
(a)The husband spent a sum of $67,569 on an ANZ business card in the United States. The husband says $35,284;
(b)The husband spent a sum of $11,715 on a CBA personal card in the United States. The husband says $7,092.
The wife asserts that she does not consider these sums to represent “a legitimate business expense”.[91] For his part, the husband says that the trip “was for business purposes in the main”.[92] He says that his partner attended with him and says that the purpose of the trip was to “meet with suppliers following a long period of Covid-19 lockdown” and to “strengthen [his] business relationship with the suppliers”.[93]
[91] Wife’s affidavit filed 14 February 2025, paragraph 165.
[92] Husband’s affidavit filed 26 February 2025, paragraph 45.
[93] Husband’s affidavit filed 26 February 2025, paragraph 50.
As discussed, the husband conceded that about $42,376 was expended during travel to the United States whereas the wife says that the amount expended was almost double that sum. Cross-examination of the husband and the evidence tendered did not enable me to form a view about the accuracy of the position advanced by either party.
Monies spent on collectibles
The wife says that during the period May 2023 to June 2023, the husband used his CBA personal credit card to purchase collectibles. Particularly, she says that during this period, the husband spent a sum of $16,960 on purchases in stores in the United States. In response to this assertion, the husband acknowledges purchase of collectibles but denies that the purchases were made using company funds.[94]
[94] Husband’s affidavit filed 26 February 2025, paragraph 279.
The collectibles were not the subject of any valuation. The husband was not cross-examined with respect to the purchase of collectible items by him. On its face, the collectibles ought to have been included in the list of existing assets but absent better information, I am unable to do so. Accordingly, I will consider the sum of $16,960 when I come to consider whether an adjustment on the wife’s favour is required under s 75(2)(o) the Act.
Funds spent by the husband on the hire of a motor vehicle hire
The husband conceded under cross-examination that for a period of eight days in late December 2023 he paid a sum of $9,654 to hire a motor vehicle. As discussed above, the husband conceded that he was not paying any child support at that time and for the purposes of Child Support, Services Australia had assessed his adjusted taxable income at $6,485.[95]
[95] Exhibit W6.
I view the husband’s expenditure as part of a continuum whereby the husband spent monies in a frivolous and reckless manner whilst at the same time:
(a)Avoiding his obligations to his children. I particularly note my comments above together with the husband’s concession that he has not paid child support since August 2023 (supra);
(b)Operating the business in a manner such that it was necessary to wind up the same.
For this reason, I consider that the husband’s use of monies constitutes waste as that expression was defined in Kowaliw at page 76,644 (supra).
Treatment of add backs claimed by the wife
In Stanford v Stanford (2012) 247 CLR 108, the High Court, in its first proposition, indicated that in determining whether it was just and equitable to make any particular property order, it was necessary to identify the existing legal and equitable interests of the parties in the property. The High Court itself emphasised the word existing.[96] Further, the authorities to the effect that the court ascertains the value of property at the date of the hearing are beyond question.[97]
[96] Stanford v Stanford (2012) 247 CLR 108 at [37].
[97] For example, refer to In the Marriage of Wardman and Hudson (1978) 5 Fam LR 889.
In my view, this proposition must have implications for how the court approaches the concept of add backs, which necessarily come into relief, in both the court and the parties’ deliberations, only when the task arises to tabulate a balance sheet of potential matrimonial assets and liabilities, prior to a consideration of the matters arising under s 79(4) and s 75(2) of the Act. This is because such add backs exist only in a notional sense. As noted earlier in this decision, I was never provided with a Balance Sheet clearly identifying the parties existing assets and expressed concern that absent the undertaking of this task, neither party properly understood the parameters of the dispute between them.
I have concluded that a holistic approach is required to be taken with respect to the topic of add backs contended for by the wife, particularly given the difficulty of making definitive findings as to what precise monies have gone through the husband’s hand and what precise monies represented genuine personal and/or business expenditure.
I must bear in mind that the task I must undertake is not one of strict accounting. It has the potential to create injustice if a particular sum of money, which now no longer exists, is added back and credited to one party, without some corresponding allowance being made against the other party in respect of some expenditure which is inchoate or not so easily discernible.
In Watson & Ling [2013] FamCA 57 (“Watson & Ling”) at [32] – [35], Murphy J said as follows:
Where the Court has determined that it is just and equitable to make an order pursuant to s 79(2) or s 90SM(3) and there is clear evidence that one party has engaged in conduct and, but for that conduct, the legal and equitable interests of a party or the parties (or the value of those interests) would have be significantly greater, justice and equity may require recognition of the unfairness inherent in those circumstances in the terms of the orders to be made.
How might that be recognised? First, consistent with existing authority, it can be recognised pursuant to s 75(2)(o) (cf s 90SF(3)(r)) (see, for example, Omacini & Omacini (2005) FLC 93-218, Browne & Green (1999) FLC 92-873 and Cerini). Secondly, it might be contended that it might be recognised within the assessment of contributions. This Court has long eschewed the notion of “negative contributions” (see, for example, Antmann & Antmann (1980) FLC 90-908). Nevertheless, it might be argued that the “non-dissipating party” can be seen to have made a disproportionally greater indirect contribution to the existing legal and equitable interests (for example to their preservation) if it is established that, but for the other party’s unilateral dissipation, those existing legal and equitable interests would have been greater or had a greater value.
The assessment of the circumstance under discussion is, ultimately, a matter of discretion (see, for example, Cerini at [46] and Townsend at 81,654). Equally, however, authority dictates that it will be “the exception rather than the rule” (Cerini at [46]) that a direct dollar adjustment equivalent to the amount of the alleged dissipation of the pool is made to the otherwise entitlement of a party. It may be that aspects of the erstwhile treatment of legal fees pre-Stanford (see, for example, NHC & RCH (2004) FLC 93-204) will require further consideration in an appropriate case.
Importantly, of course, as has been emphasised in many authorities including those cited above, not every dissipation by a party can be seen to involve an affront to justice and equity; again the circumstances of the individual relationship must be assessed.[98]
[98] Watson & Ling [2013] FamCA 57 at [33] – [34].
As Murphy J pointed out in Watson & Ling, s 75(2)(o) of the Act provides a mechanism for the recognition of behaviour by one party which has had the consequence of disadvantaging the other party concerned and which would otherwise not be considered pursuant to the provisions of s 79(4).
For the reasons described above, and although I have concluded that the husband has engaged in financially wasteful conduct, I am concerned about the following:
(a)I am unable to identify a precise sum to add back to the list of existing assets given the vagaries associated with the precise sums expended by the husband (supra); and
(b)The quantum of the funds (even to the extent conceded by the husband) would significantly distort the Balance Sheet of assets available for adjustment between the parties. As discussed above, and save and except for a sum of about $80,000, the add backs contended for by the wife represent the entirety of the existing assets available for distribution.
Having accepted that the husband’s conduct plainly meets the definition of waste, I will return to this subject matter when I consider the parties’ respective contributions and s 75(2) considerations.
ASSESSMENT OF CONTRIBUTIONS
The various and different contributions of the parties must be assessed against the background of a relationship of fifteen years’ duration (2007 to 2022). The parties cohabited for fourteen of those years.[99] The parties’ contributions must also be assessed against the background of a relationship, which produced two children aged thirteen years and ten years respectively.
[99] Wife’s affidavit filed 14 February 2025, paragraph 3.
The husband by his counsel’s Case Outline Document says the following with respect to the topic of contributions:
Both parties made direct financial contributions. The far larger amount coming from the husbands [sic] exertions through the company. The mother worked during this period and was also primarily responsible for the care of the children.[100]
[100] Outline of Case Document filed 26 February 2025, page 5 of 10.
The husband’s counsel also made a written submission in the following terms:
Having regard to the initial contributions of the parties. Their respective contributions during the course of the marriage. An additional higher percentage to the husband as a result of bringing the business and the […] factory unit into the matrimonial pool.[101]
[101] Outline of Case Document filed 26 February 2025, page 5 of 10.
Having made a submission in these terms, the husband’s counsel submitted that contributions ought to be assessed on a 65:35 basis in favour of the husband.
As discussed above, the husband gave no evidence whatsoever as to the quantum of initial contributions made by him. He did give an opinion about the same[102] but he produced no evidence to support his assertions (supra).
[102] Husband’s affidavit filed 26 February 2025, paragraph 26.
In Pierce v Pierce (1999) FLC 92-844 after a consideration of the decisions in Way & Way (1996) FLC 92-702, Lee Steere & Lee Steere (1985) FLC 91-626, Money & Money (1994) FLC 92-485 and White & White (1982) FLC 91-246, the Full Court summarised the treatment of an initial superior financial contribution made by one of the parties in the following statement:
28.In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weight the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home: …
(citations omitted)
The difficulty with the husband’s submission is that although the business, which the parties took over from the husband’s parents in 2014 was the vehicle through which the husband earned an income, the initial contributions came to nought because in April 2024, the Court made an order for the appointment of a liquidator to Stroman Pty Ltd. The Suburb E property was sold in the same year to satisfy debts owing by the parties (supra).
Further, and save and except as a means through which the parties earned an income, the parties did not leverage any asset of the business to purchase their property at Suburb C. Instead, the evidence of each party is that they paid a nominal deposit and that the balance was financed by way of a mortgage.[103] That debt remains on the existing list of assets and liabilities. This being so, it cannot be said that beyond the provision of an income, the parties utilised the business to develop their wealth. As it stands, the only remaining asset of any value is the equity in the former matrimonial home.
[103] Husband’s affidavit filed 26 February 2025, paragraph 254; Wife’s affidavit filed 14 February 2025, paragraph 103.
Further, the submissions made by the husband’s counsel ignore long established authority to the effect that when assessing the contributions of a party to a marriage, the duties of a homemaker and parent ought to be afforded significant weight. Chief Justice Evatt explained this point in In the Marriage of Rolfe as long ago as 1977 when (albeit in the context of the traditional division of roles) her Honour said:
The purpose of s 79(4)(b), in my opinion, is to ensure a just and equitable treatment of a wife who has not earned income during the marriage, but who has contributed as a homemaker and parent to the property. A husband and father is free to earn income, purchase property and pay off the mortgage so long as his wife assumes responsibility for the home and the children.[104]
[104] In the Marriage of Rolfe [1977] FamCA 106; (1977) 34 FLR 58n; (1979) FLC 90-629 at 78,272 to 78,273.
The Chief Justice then continued:
Because of that responsibility she may earn no income or have only small earnings, but provided she makes her contribution to the home and to the family, the Act clearly intends that her contribution should be recognised not in a token way but in a substantial way.[105]
[105] In the Marriage of Rolfe [1977] FamCA 106; (1977) 34 FLR 58n; (1979) FLC 90-629 at 78,273.
Further, to accede to an adjustment in the terms sought by the husband would be to significantly devalue the role of the wife as a homemaker and parent. The authorities dictate that I would fall into error by doing so.[106]
[106] Mallet v Mallet (1984) 156 CLR 605 at 623 per Mason J; Fields v Smith (2015) 54 Fam LR 1.
With the exception of the question of wastage, I would have assessed the parties’ respective contributions at the time of separation pursuant to s 79(b) and (c) of the Act as being equal.
The period since the parties separated has been one of financial vicissitude for the wife. She has had the primary care of the children and as discussed above, the husband has spent extremely limited time with the children.
The wife assets that at the time of separation, mortgage repayments were “being directly debited from a joint bank account with the CBA”. However, she says that the husband “cancelled the direct debit facility and there have been insufficient funds in the account to cover the payment”.[107] The husband did not respond to these allegations and similarly, neither party was cross-examined on this topic. In any event, the property at which the children have lived for the entirety of their lives to date has been sold.
[107] Wife’s affidavit filed on 14 February 2025, paragraph 223.
The evidence with respect to the payment of child support causes me to arrive at the following conclusions:
(a)Between the date of separation and August 2023, the husband paid intermittent child support into an account from which he also withdrew funds. Having regard to cross-examination of the husband on this topic, I conclude that the wife did not consistently receive a sum of $300per week as so asserted by the husband;
(b)The husband conceded that he has not paid any child support to the wife since August 2023;
(c)Despite the expenditure of considerable sums of money on his partner, international holidays and the hire of a motor vehicle, the husband found himself in breach of orders made on 5 September 2023 requiring him to pay spousal maintenance and child support (supra). In respect of each of these heads of maintenance, the wife only received arrears in a sum of $15,225 as a consequence of orders made on 25 November 2024 and even then, the wife was paid from the net proceeds of sale of the Suburb E property. Cross-examination of the husband gave me the impression that the husband considered himself having met his obligations to the mother. This is not the case by any means and it is surprising that the husband was not disabused of such a view prior to commencing his evidence;
(d)The husband is currently in arrears of spousal maintenance and child support in a sum of $14,210 (supra). As discussed, and despite disputing the quantum of the arrears, the husband did not produce any evidence to support an alternate position.
At the time that the wife commenced proceedings in June 2023, her Financial Statement indicated that she was only in receipt of Family Tax Benefits in a sum of $234 per week.[108] It follows that this must have caused the wife considerable financial hardship, particularly in circumstances where she was charged with the care of two young children. As an example of her hardship, the wife says that in April 2023, she asked the husband to provide her with $800 to purchase winter clothes for the children. The husband says that at the time he was facing financial hardship.[109] That assertion, however, must be seen against the following background:
(a)In late 2022 and early 2023, the husband on his own version of events spent a sum of $35,000 on a holiday to New Zealand;
(b)The ongoing transfer of monies to Ms O until January 2024 (supra). Indeed, a document tendered by the wife’s counsel identifies that in April and May 2023 the husband transferred monies in the amount of $5,230 to Ms O. In June 2023, and whilst the husband and Ms O were in the United States, the husband transferred to Ms O a sum of $8,500. The husband did so despite his acknowledgment under cross-examination that Ms O earned monies through her employment as a carer;
(c)In December 2023, the husband spent a sum of $9,654 on the hire of a motor vehicle.
[108] Financial Statement filed 14 June 2023.
[109] Wife’s affidavit filed 14 February 2025, paragraph 53; Husband’s affidavit filed 26 February 2025, paragraph 231.
The husband’s expenditure of funds must also be seen through the following prism:
(a)The wife says that the husband stopped paying her funds from the company in about February 2023.[110] This assertion is not expressly denied by the husband;
(b)The wife says that the home internet was disconnected, and she began receiving demands for payment from the local council and utility providers.[111] The husband does not deny this assertion; and
(c)At one juncture, the wife asked the husband to pay for petrol. In response, the husband allegedly said “[m]aybe you should get off your fat arse and get a job”.[112] Again, this assertion was not denied by the husband.
[110] Wife’s affidavit filed 14 February 2025, paragraph 219.
[111] Wife’s affidavit filed 14 February 2025, paragraph 220.
[112] Wife’s affidavit filed 14 February 2025, paragraph 220.
As the Full Court in Roverati and Roverati [2021] FamCAFC 89 at [33] restated (citing Dickons & Dickons (2012) 50 FamLR 244 at [23] - [26]):
[33]…the assessment of contributions is not a mathematical or accounting exercise, and even more importantly, it is an holistic undertaking with all of the contributions of the parties of whatsoever nature being taken into account.
Bearing in mind all the circumstances referred to above, including the recognition to be given to the contributions made by the wife in the period subsequent to separation, I assess the wife’s overall contributions as being superior in a range of around five (5) percent, leading to the parties’ various contributions, in percentage terms, being assessed at 55:45 in the wife’s favour.
SECTION 75(2) – THE PROSPECTIVE NEEDS OF THE PARTIES AND CONSIDERATION OF A FURTHER ADJUSTMENT IN FAVOUR OF THE WIFE ON ACCOUNT OF WASTAGE AND NON-DISCLOSURE
The wife was an educator at the time the parties met in 2007, a career which she expresses a desire to return to on a full-time basis in Queensland. She hopes to receive an amount of $1,200 per week.[113]
[113] Wife’s affidavit filed 14 February 2025, paragraph 222.
In July 2024, the husband’s mother registered a new company which for the purposes of this judgment, I shall describe as P Pty Ltd. The husband’s mother is the sole director, secretary and shareholder of that entity.[114] In August 2024, P Pty Ltd purchased most of the equipment of Stroman Pty Ltd.[115] P Pty Ltd has relaunched the subsidiary entity previously operated by the parties.[116] The husband is a contractor to the company. He works about fifteen (15) hours per week and he is paid about $450 per week for his services.[117] The husband’s mother says that the husband’s “role involves the production of […] various products for the company, including but not limited to design, installation, operating machinery and undertaking labour intensive roles”.[118] The husband’s mother conceded under cross-examination that the products manufactured by P Pty Ltd are similar to the products manufactured by Stroman Pty Ltd. She says that she expects P Pty Ltd to generate a loss of ten (10) percent in the 2025 financial year, and then operate at a profit.
[114] Wife’s affidavit filed 14 February 2025, paragraph 146.
[115] Wife’s affidavit filed 14 February 2025, paragraph 147.
[116] Wife’s affidavit filed 14 February2025, paragraph 148.
[117] Husband’s affidavit filed 26 February 2025, paragraph 321; Affidavit of the husband’s mother filed 26 February 2025, paragraph 18.
[118] Affidavit of the husband’s mother filed 26 February 2025, paragraph 19.
In addition to his engagement by P Pty Ltd, the husband’s mother advised the court that in the second half of 2024, the husband worked two jobs as a factory worker but the job “wore him out” and as such the husband resigned from his employment after only a few months. The husband failed to advise the Court about this employment by his affidavit filed on 26 February 2025. Additionally, he did not provide any disclosure of the same to the wife during these proceedings and as a result, the wife’s counsel made a call for production of the husband’s employment contract and payslips during trial.
As it stands, the husband has no legal interest in P Pty Ltd. Further, it was his mother’s evidence that she wishes to retain the business for the indefinite future because it is in effect her superannuation. Notwithstanding this, I have some expectation that once this litigation is concluded, the husband will increase his hours at P Pty Ltd and in a manner similar to Stroman Pty Ltd, the business will generate significant revenue.
It weighs on me that the wife will bear financial responsibility for the parties’ children for the foreseeable future. This task will be made more arduous on account of the quantum of the wife’s wage and her need to find suitable long-term accommodation for her and the children. According to the wife’s Proof of Evidence tendered at the commencement of trial, her weekly rental expense is in the amount of $1,000.[119]
[119] Exhibit W1.
Further, and as discussed, the husband is in significant arrears of child support. I am able to find that the past payment of child support suggests that the amount which the wife is likely to receive in the future will be modest and potentially unreliable. All of these factors warrant a further adjustment of the parties’ net assets in favour of the wife.
A significant issue is the treatment of the monies wasted by the husband and described above. On the wife’s view, the husband’s wastage was almost equivalent to the net value of the parties’ existing assets. On the husband’s case, the quantum of possible addbacks amount to a sum of $527,999 or say thirty-seven (37) percent of the existing assets.[120] Clearly, and whatever the sum, a significant adjustment in the wife’s favour is warranted on account of the husband’s wastage.
[120] I do not include the sum of $627,090 being monies obtained from cryptocurrency for the reasons described above.
However, and before I conclude, there is one further matter which warrants consideration. That relates to the topic of disclosure. Particularly, and by her affidavit filed on 14 February 2025, the wife complained that the husband failed to respond to requests for disclosure made by her in July 2023.[121] The husband denied that assertion.[122] Notwithstanding this assertion:
(a)The wife’s evidence-in-chief was to the effect that the husband had not provided any detail of what cryptocurrency was acquired or when or whether such currency had been converted into Australian dollars;
(b)When asked whether he had documents in relation to J Cryptocurrency, the husband said “I have documents somewhere”;
(c)The husband conceded that he had not produced any information in relation to the decline in the value of his F Cryptocurrency from $1,030,000 to about $14,000 (or $10,000 as it ultimately found form in the Balance Sheet tendered on the last day of trial);
(d)On the second day of trial, the wife’s counsel called for the production of any documents in the husband’s possession relating to F Cryptocurrency and/or J Cryptocurrency. The wife’s counsel also called for production of Profit and Loss Statements for the business for the period 30 June 2019 to 30 June 2023. I was told that the documents were provided to the wife’s counsel at 7.00am on the third day of trial;
(e)The husband failed to produce any documents with respect to monies allegedly paid to the marketing consultant in the United States;
(f)At one point during the course of the trial, I made an order directing the husband to firstly, enter all necessary passwords to access his cryptocurrency accounts and secondly, produce the accounts to the wife’s legal representatives for inspection. As a consequence of those orders, the husband’s counsel expressed that he was impressed that the husband could “pull up” the relevant information with such expedition. That is not the point. The husband’s dexterity with technology is irrelevant. The point is that the husband should have disclosed well prior to the fourth day of trial, all documents which demonstrated how over time the value of the cryptocurrency reduced from $1,030,000 to $10,000. As a consequence of the late disclosure, the wife’s counsel advised me that by the time of closing submissions, the wife was still not satisfied that various amounts had not been sold from the cryptocurrency accounts for the husband’s own benefit.
[121] Wife’s affidavit filed 14 February 2025, paragraph 179.
[122] Husband’s affidavit filed 26 February 2025, paragraph 289.
As a consequence of calls for the production of documents by the wife’s counsel, the husband’s legal representatives by days two and three of the trial appeared to be swimming under a sea of paper and barely able to keep their heads afloat. Piles of paper accumulated around them with the husband on several occasions asserting that he would be able to obtain certain documents.
It is well established under the principles that arise from Black and Kellner (1992) FLC 92-287 and Weir and Weir (1993) FLC 92-338 (“Weir”) that in circumstances where there has been non-disclosure “the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature” (Weir at 79,593). This statement has long been cited as the salient principle on what follows from the failure of a party to make full and frank disclosure and has been cited and applied by the Full Court in Hicks & Trustee of the Bankrupt Estate of Hicks (2021) FLC 94-006 at [87]–[88].
Upon the establishment that there has been non-disclosure, the Court is empowered to make adverse findings against the party who failed to make adequate disclosure, and such findings include that an asset pool is greater than demonstrated, as set out in Weir at 79,593:
The court’s jurisdiction to make an order going beyond the identified property arises once there is sufficient evidence to support a finding that the party has not made a full disclosure of his or her assets.
Further, in Kannis & Kannis [2002] FamCA 1150, the Full Court said at [51]:
Whether the non-disclosure is wilful or accidental, is a result of misfeasance, or malfeasance or nonfeasance, is beside the point. The duty to disclose is absolute. Where the Court is satisfied the whole truth has not come out it might readily conclude the asset pool is greater than demonstrated. In those circumstances it may be appropriate to err on the side of generosity to the party who might be otherwise be seen to be disadvantaged by the lack of complete candour.
Given the husband’s failure to make full and frank disclosure of key documents relating to the decline in value of his Cryptocurrency account and other documents relevant to these proceedings, I am inclined, in the words of the Full Court, to “err on the side of generosity” with respect to any assets in the name of the wife.
I therefore propose to grant the wife an additional 25 percent as a consequence of my assessment of the s 75(2) factors of the Act.
Accordingly, I have concluded that it is just and equitable to divide the parties’ pool of assets, as I have calculated it, 80 / 20 percent in the wife’s favour. The major components of this assessment reflect the superior contributions made by the wife in the post-separation period, her ongoing financial responsibility for the parties’ children without aid of the husband, the likelihood that the husband will not contribute to the financial needs of the children for the balance of their minority, significant wastage by the husband and uncertainty with respect to the existing assets available for distribution on account of the husband’s failure to make full and frank disclosure particularly with respect to the diminution in value of the cryptocurrency held by him. The adjustment also recognises that I had no evidence whatsoever, which would have enable me to form a view about the value of stamps retained by the husband or other collectibles purchased by the husband.
As discussed above, the property at Suburb C has sold for a sum of $1,821,500. Despite asking for it, counsel were unable to provide me with a draft Settlement Statement.
THE FORM OF ORDERS
In Steinbrenner & Steinbrenner,[123] Coleman J observed as follows at [234]:
[234]Given that the evaluation of contribution-based entitlements inevitably moves from qualitative evaluation of contributions to a quantitative reflection of such evaluation, there will inevitably be a “leap” from words to figures. That is the nature of the exercise of discretion, whether it be in the assessment of contributions in the matrimonial cause, assessment of damages in a personal injuries case, or determination of compensation in a land resumption case.
[123] See Steinbrenner & Steinbrenner [2008] FamCAFC 193.
I must now make a leap and turn to the topic of what each party will receive, particularly how and in what form. This leap from abstraction to the concrete must be undertaken in terms of what is just and equitable to each of the parties concerned.
In order to address the husband’s lack of disclosure with respect to his cryptocurrency, the husband’s counsel asserted that it would be possible to transfer fifty percent of the remaining cryptocurrency “shares” to the wife. He also conceded that it would be possible to transfer one hundred percent of the shares to the wife. I shall adopt that approach.
On 21 January 2025, a Senior Judicial Registrar made an order that the husband pay the wife’s costs fixed in a sum of $12,076.41 with such costs to be payable at the conclusion of trial or final settlement of the matter. That costs order related to the Application in a Proceeding filed by the husband on 6 September 2024. I was invited to set those costs off against monies in a sum of $30,000, which ought to have been paid to the husband pursuant to Order 1(l)(v) of Orders made on 25 November 2024. As the Suburb C property only sold shortly prior to trial, the interim payment had not been made. Accordingly, I will reduce the sum payable to the husband such that he receive only a sum of $17,923.
In addition, I will make an allowance in favour of the wife in a sum of $14,210 on account of child support and spousal maintenance arrears.[124] Otherwise, I was not invited to continue the orders for the payment of the same made on 25 November 2024 and accordingly, I will discharge those orders.
[124] Wife’s affidavit filed 14 February 2025, paragraph 58.
Given no evidence was tendered, I cannot make a precise allowance for agent’s fees and conveyancing expenses. Accordingly, the only assets available for distribution will be as follows:
Description
Value ($)
B Street, Suburb C, NSW
1,821,500
Funds held in controlled monies account for payment of Capital Gain
142,573
F Cryptocurrency
10,371
J Cryptocurrency
60
K Bank Account
9,292
CBA Account (ending …97)
100
CBA Account (ending …06)
139
Sub-Total:
1,984,035
Less Estimated Capital Gains Tax for sale of D Street, Suburb E
110,000
Less CBA Home Loan Account (ending …06)
217,790
Less CBA Home Loan Account (ending …68)
109,751
Less CBA Home Loan (ending …06)
110,038
Total:
1,436,456
With respect to the monies held in the controlled monies’ account, I will make an order directing that the capital gains tax in respect of the Suburb E property be paid from that sum with any balance then remaining to be divided on an 80:20 basis in favour of the wife. It follows that absent the monies in the controlled monies account and the associated liability, the net non-superannuation assets available for distribution have a value of $1,293,883. That amount will be diminished by $50,923 on account of:
(a)The payment of a sum of $31,000 to the wife pursuant to Order 1(l)(iv) of the Orders made on 25 November 2024;
(b)The payment of a sum of $17,923 to the husband pursuant to Order 1(l)(v) of the Orders made on 25 November 2024 albeit varied to take into account the order for costs made on 21 January 2025.
Having regard to the parties’ existing property interests, and in addition to the monies to be received by the wife on the sale of the Suburb C property, the wife will retain non-superannuation assets with a net value of $50,848 calculated as follows:
Description
Value ($)
F Cryptocurrency
10,317
K Bank Account
9,292
CBA Account (ending …97)
100
CBA Account (ending …06)
139
Monies owing to the wife pursuant to Order 1(l)(iv) of the Orders made on 25 November 2024
31,000
Total:
50,848
In addition to monies to be received by him on the sale of the Suburb C property, the husband will retain the following:
Description
Value ($)
J Cryptocurrency
60
Stamps and other Collectibles
Value not known
Monies owing to the husband pursuant to orders made on 25 November 2024 but varied to take into account the order for costs made on 21 January 2025
17,923
Total:
17,983
The wife sought a superannuation splitting order pursuant to s 90XT(1)(a) of the Act. The husband did not do so. The wife has accumulated superannuation assets with a value of $69,994 whilst the husband has accumulated superannuation assets with a value of $45,562. For the reasons referred to above, I will not disturb the parties’ superannuation interests.
CONCLUSION
I am satisfied that overall, this is a just and equitable outcome of these proceedings. For the reasons referred to above, the Orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and fifty-eight (158) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson. Associate:
Dated:17 April 2025
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