Voight & Zunino
[2025] FedCFamC1F 311
•5 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Voight & Zunino [2025] FedCFamC1F 311
File number MLC 6754 of 2022 Judgment of WILSON J Date of judgment 5 June 2025 Catchwords FAMILY LAW – APPLICATION FOR ALTERATION OF PROPERTY INTERESTS – farming concern – applicant de facto wife seeking an alteration of property interests in the sum of $3,000,000 pursuant to s 90SM – applicant contending that her contributions to the running of the respondent’s farm, while employed as a worker, entitled her to an alteration of property interests in her favour – issues central to the ratio decidendi of Stanford v Stanford canvassed – held, not just and equitable to make the alteration of property interests orders sought – s 90SM application dismissed. Legislation Family Law Act 1975 ss 79, 90SM, 90SF Cases cited Attorney-General v Worrall [1895] 1 QB 99
Babray & Babray [2019] FCCA 3514
Bevan & Bevan (2013) 49 Fam LR 387
Chancellor & McCoy [2016] FamCAFC 256
Chapman & Chapman (2014) 51 Fam LR 176
Collector of Imposts (Vic) v Cuming Campbell Investments Pty Ltd (1940) 63 CLR 619
Collector of Imposts (Vic) v Peers (1921) 29 CLR 115
Comptroller of Stamps (Vic) v Joe White Maltings Pty Ltd [1956] VLR 253
Consola & Moretto [2023] FedCFamC1A 61
Cyprus Mines Corporation v Commissioner of Taxation (1978) 36 FLR 295
Faraday & Faraday [2020] FCCA 1895
Federal Commissioner of Taxation v McPhail (1968) 117 CLR 111
Fitch & Lewis [2017] FCCA 371
Hill v Zuda Pty Ltd (2022) 275 CLR 24
Inland Revenue Commissioners v Church Commissioners for England [1977] AC 329
Irons v Smallpiece (1819) 106 ER 467
Jabour v Jabour (2019) 59 Fam LR 475
Kennon v Kennon (1997) 22 Fam LR 1
Leary v Federal Commissioner of Taxation (1980) 32 ALR 221
Macrow v Collector of Imposts (Vic) [1921] VLR 23
NHC v RCH (2004) 32 Fam LR 518
Paxton & Paxton [2016] FCCA 1689
Rannell v IRC [1964] AC 173
Re Cochrane and the Finance Act 1894 [1906] 2 IR 200
Stanford v Stanford (2012) 247 CLR 108
Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107
Teal & Teal [2010] FamCAFC 120
Whent & Marband [2018] FamCAFC 95
Woolams & Woolams (2004) FLC 93, 95
Division Division 1 First Instance Number of paragraphs 85 Date of hearing 11-12 December 2023 (Judge Kirton)
28 April 2025 and 4 June 2025 (Justice Wilson)Place Melbourne Counsel for the applicant Ms R. Stoikovska SC (11-12 December 2023) with Mr D. Meehan (11-12 December 2023 and 28 April 2025) and Mr A. Robinson (4 June 2025) Solicitor for the applicant Cosgriff Lawyers Counsel for the respondent Mr T. Puckey KC (11-12 December 2023) with Mr A. Chislett (11-12 December 2023 and 4 June 2025) and Mr C. Trim (28 April 2025) Solicitor for the respondent Beck Legal ORDERS
MLC 6754 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MS VOIGHT
Applicant
AND MR ZUNINO
Respondent
ORDER MADE BY
WILSON J
DATE OF ORDER
5 JUNE 2025
THE COURT ORDERS THAT the applicant’s s 90SM application filed 30 August 2023 is 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 Voigt & Zunino has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
INTRODUCTION
This s 90SM application for orders altering property interests in a de facto relationship raised issues central to the ratio decidendi of the High Court in Stanford v Stanford.[1] Specifically, the issues to be determined included whether the making of any order altering property interests of the parties is just and equitable in the circumstances of the case.
[1] (2012) 247 CLR 108.
As is explained below the applicant contended that she and the respondent were in a de facto relationship for about eight years. The respondent owned a sizeable farming concern in rural New South Wales on which he ran sheep. The applicant had a background in farming and in animal husbandry. She responded to an advertisement placed by the respondent for companionship. The applicant and respondent lived together although on the respondent’s version of events, he and the applicant did not share finances or otherwise mix their financial concerns. The respondent contended he employed the applicant assisting with farming activities. The applicant asserted that she provided an assortment of non-financial contributions to the running of the respondent’s farming activities entitling her to an order for the payment of over $3,000,000 representing a just and equitable division of assets. The respondent said he had already agreed to a payment of $300,000 and that in any event she had failed to properly perform her farming duties as an employee. The respondent denied any liability to pay the applicant the sums she sought and instead he submitted that this proceeding should be dismissed.
As these reasons reveal, I am of the view that the making of an order for the payment of the sum sought by the applicant ($3,000,000 or thereabouts) is not just and equitable having regard to the nature of the parties’ relationship, the duration of the relationship and the contributions performed. I am also of the view that the applicant, having received a payment of $300,000, has been provided with an amount that in all the circumstances means that no further amount is due. She was paid for the work she performed on the farm. The applicant did not explain how she was additionally entitled to a division of the respondent’s assets having been paid for the work she performed as an employed farm worker. I dismiss this proceeding.
RELEVANT BACKGROUND
For many years the respondent has carried on a family business in rural New South Wales on farming property known as “B”. Cropping and sheep farming activities have been his main source of revenue. The respondent is and at all relevant times has carried on business as a sole trader. When he made his trial affidavit in November 2023 he was 74 years of age. He deposed to his assets standing at an amount in excess of $7,500,000. He deposed to the applicant having minimal assets when he and she commenced cohabitation (25 February 2013) made up of two trucks, a utility vehicle, savings of $2,000 and superannuation of a little over $28,000. A considerable amount of attention was devoted in the trial of this proceeding to the statement in paragraph 26 of his trial affidavit –
“The applicant made it very clear to me that we were two different financial entities, she would tell me that it was my property and if something was wrong with it then I had to fix it because it was mine.”
He deposed to never discussing finances and that at all they times operated separate bank accounts.
The applicant provided details of the manner in which she and the respondent met, the respondent not addressing that issue. She deposed in her trial affidavit made 14 November 2023 that she formed a relationship with the respondent in June 2012 and they lived together from March 2013 to November 2020 at Town B. She deposed to meeting the respondent in response to an advertisement he placed for companionship. That document was not adduced in evidence, however.
In addition to commencing this proceeding against the respondent under the provisions of the Family Law Act, the applicant also commenced a proceeding under the Fair Work Act against the respondent in which she sought recovery of sums allegedly due for breach of a contract of employment said to have inured between the applicant and the respondent. The details and ramifications of that contention are set out below.
The evidence revealed that the applicant undertook a collection of farm-related activities. Some were disputed by the respondent, as to the fact of their doing or as to the quality of their doing. In the passages below I have addressed that contention.
THE ARRANGEMENT BETWEEN THE APPLICANT AND THE RESPONDENT
The respondent did not challenge the applicant’s version of events as to her background in farming. She deposed to having worked for three years prior to meeting the respondent at a farm, that she had 30 years’ experience in the agricultural sector prior to meeting the respondent, that she qualified in 2012 from C TAFE with a certificate in agriculture and that she had expertise in farm management, machinery operation, animal husbandry, stock selection, DNA analysis, cropping, harvesting, hay making, sheep work, fencing and general farm maintenance.
The applicant gave evidence in answers to questions put to her in cross-examination – not in her evidence-in-chief – that she answered an advertisement placed by the respondent for a lifetime partner (her words).[2] She denied the advertisement stated that the respondent was seeking a labourer and companion.
[2] Transcript 11 December 2023, p. 35 line 23, p. 36 line 10 & p. 108 line 9.
The respondent was cross-examined about the advertisement he placed in the newspaper. He said he placed the advertisement three and a half years after his wife had died, that he was lonely and he wanted companionship.[3] He was not questioned about the advertisement which stated that the respondent was looking for a farm labourer.
[3] Transcript 11 December 2023, p. 100 lines 25 – 26.
The advertisement was not produced, exhibited to any affidavit nor tendered as a documentary exhibit in the trial. Whether evidence about the advertisement and its contents was part of the applicant’s case (on the basis that she maintained that underpinning her Fair Work Act proceeding was her contention that a contract of employment subsisted between the applicant and the respondent) or whether it served a forensic value of putting in a chronological context when the respondent sought companionship ultimately leading to his relationship with the applicant, was not the subject of evidence nor submissions.
Senior counsel for the applicant cross-examined the respondent asserting that the respondent invited the applicant to live with him, that she needed to terminate her then existing employment to do that but if the applicant worked on the respondent’s farm with him, she was to be what senior counsel labelled the respondent’s “help mate”.[4] That phrase was meaningless as it gave no content to the legal or contractual relationship between the applicant and the respondent.
[4] Transcript 11 December 2023, p. 101 line 23.
That said, senior counsel for the applicant pressed, and the respondent agreed, that the applicant’s best was for her to play the respondent’s partner.[5]
THE APPLICANT’S FAIR WORK ACT PROCEEDING
[5] Transcript 12 December 2023, p. 108 line 12.
On 1 September 2021, the applicant’s industrial law barrister prepared a statement of claim to be issued in a proceeding brought by the applicant in the Fair Work Act jurisdiction of Division 2 of this court. The applicant issued that Fair Work Act proceeding. It appears to have progressed between September 2021 or thereabouts and 21 March 2023 when consent orders were made staying the Fair Work Act proceeding until further order.
Several matters arose from the statement of claim from the Fair Work Act proceeding despite the proceeding being stayed by consent. They included the following –
(a)the applicant asserted that the respondent was an employer for the purposes of the 2020 Pastoral Award;
(b)in March 2013, the applicant was employed by the respondent pursuant to a contract of employment;
(c)the contract of employment was constituted by a single conversation between the applicant and the respondent in or about March 2013;
(d)the contact of employment incorporated terms to the effect that the applicant would be employed on a full-time basis for 40 hours a week performing farm duties on three farms for which the applicant would be paid $800 per week;
(e)between March 2013 and November 2020 the applicant worked full-time for the respondent; and
(f)she was entitled to be paid in accordance with the provisions of the Pastoral Award.
The applicant sought declaratory relief as well as monetary compensation by reason of the various contraventions of the Fair Work Act that the applicant asserted.
The respondent filed a defence to the applicant’s statement of claim. In it, he raised the following broad propositions in his defence –
(a)no employment relationship subsisted between the applicant and the respondent;
(b)any work and labour performed by the applicant arose solely from the de facto relationship between the applicant and the respondent;
(c)the respondent denied that the Pastoral Award applied to the applicant; and
(d)he denied the sums allegedly due were in fact due by him to the applicant.
Self-evidently, a substantial dispute attended the applicant’s contentions in her Fair Work Act proceeding.
It must not be overlooked that up until the date when consent orders were made in the Fair Work Act proceeding staying it pending further order, that proceeding was run in tandem with this s 90SM. In other words, the applicant asserted (seemingly inconsistently with her own case in the s 90SM proceeding) sums that were due to her under federal industrial legislation premised on her status as an employee to which Family Law Act issues were irrelevant. Further, in her viva voce evidence the applicant stated she was not a labourer. It was inconsistent for the applicant to advance both pieces of litigation up to the point of the consent orders staying the Fair Work Act proceeding were made on 21 March 2023. Whether it was an abuse of process for the applicant to run both proceedings simultaneously on that basis was a matter on which no counsel addressed.
THE EARLY DAYS OF THE PARTIES’ RELATIONSHIP
It was not disputed that the applicant’s and respondent’s relationship commenced in March 2013. According to paragraph 9 of her trial affidavit the applicant deposed to contributing to the relationship a utility motor vehicle, trucks, farming equipment, furniture, horses and saddlery, savings of approximately $4,000 and superannuation of $25,000.
In answer to questions put in cross-examination, the applicant agreed that she and the respondent maintained separate finances, they did not share bank accounts, they did not jointly acquire property, they each purchased food and the respondent paid all utilities and outgoings.[6] She also acknowledged that she had the benefit of a wage being paid to her which wage enabled her to look after her horses and that she was not required to pay agistment for the horses on the farm.
[6] Transcript 11 December 2023, p. 43 lines 20 – 36.
In the period during which her relationship with the respondent subsisted, the applicant deposed in paragraph 14 of her trial affidavit to the tasks she actually performed. Those included cooking for the respondent and the farm workers, cleaning of the respondent’s house and clothing, shopping and running errands, gardening involving mowing lawns and planting trees, driving tractors for crop planting and harvesting, spraying chemicals, laying and collecting fox baits, attending to sheep often round-the-clock, sorting sheep for shearing into pens, vaccinating and drenching sheep after they were shorn, assisting with weighing the wool clip, assisting the wool classers, introducing DNA testing, riding boundary fences on a daily basis and mending fences, feeding sheep and cattle from trucks every three days, stacking and raking hay, keeping watch for pink eye in the cattle, arranging veterinary consultations, welding farm equipment and installing fences.
The respondent did not dispute that she actually performed the tasks to which she deposed above. That was explained by Mr Puckey KC on behalf of the respondent in final addresses when he contended that the court is required to take into account all contributions. Mr Puckey KC put the proposition in the following terms –
“And, your Honour, in a throwback to the language of some of the eighties cases, if she had come along and done nothing but sat in the house and did some home duties and hadn’t lifted a finger on the farm, her contributions would still be relevant and important and to be taken into account. We are not seeking to minimise or maximise those contributions; we’re simply acknowledging that they were made, and your Honour has to take them into account. So evidentiary findings about how many hours were put in, how many holidays were taken, how many days were spent on particular tasks are distracting for the court from the reality that those contributions were made, and they do need to be taken into account.”[7]
[7] Transcript 12 December 2023, p. 147 lines 37 – 46.
When expressed in terms of the applicant’s receipt of income for the tasks she performed, Mr Puckey KC submitted that the respondent structured payments to the applicant as a wage to enable him to deduct those wage payments from his personal tax. Mr Puckey submitted as follows –
“The relevance of the wage that was paid is purely to identify a different contribution that was made by my client, a direct financial contribution. And, yes, by structuring it as a wage, he was able to claim it on tax. So what? It doesn’t change the fact that he made the contribution, just the same as the fact that the wife was being paid doesn’t take away the fact that she made the contributions of labour. They’re both still relevant.”[8]
[8] Transcript 12 December 2024, p. 147 line 46 & p. 148 line 4.
In other words, no substantive dispute emerged about the fact of the applicant’s contributions, as alleged by her. That seemed consistent with the statements of principle in Jabour v Jabour[9] to the effect that the court is required to take into account all myriad of contributions. It is a separate task for the court to weigh all contributions, however.
[9] (2019) 59 Fam LR 475.
Among the documentary exhibits in this case were handwritten extracts from the respondent’s diary in the period 2013 to 2023. He exhibited 10 years’ worth of diary entries. They read as if they were a running transcript of daily events. No evidence was adduced about when the entries were made especially whether they were contemporaneous with the events described. It may not matter because they were not the subject of challenge by counsel for the applicant. The log book (exhibit “MRZ4”) appeared to record where the applicant and respondent worked on specific days or it recorded such things as the attendance of a horse dentist, the collection of a truck, the applicant attending Town D for shopping and other matters. Other entries were little more than daily life narratives such as “[Ms Voight] to [Town D]”, “[Ms Voight] to phiso (sic) in [Town D]” or “[Ms Voight] to [Town E]”, largely non-probative in this application for property adjustment orders. In any event, counsel for the respondent conceded that the applicant made contributions which must be taken into account.
The applicant complained that she was paid irregularly or intermittently. That seemed to provide context for her commencement of her Fair Work Act application.
THE DETERIORATION OF THE RELATIONSHIP
From 2019 it appeared that the civility of relations between the applicant and the respondent waned. The applicant deposed to the respondent taking a two week vacation in Country F. She said that he told the applicant that if she wanted to go she needed to pay her own way which she was unable to do so she remained behind looking after the farm. Chronologically afterwards, the applicant deposed to the respondent belittling the applicant calling her “dumb”, “lazy” and “stupid”. She said he verbally abused her. She said the respondent kicked and yelled at the animals. She said she experienced a heightened sense of anxiety and depression.
On behalf of the respondent Mr Puckey KC submitted that assertions about any cruelty to animals by the respondent were irrelevant.[10] And even if they assumed any degree of relevance (which he said they did not) any such evidence was to be contrasted with his grief upon his loss of his dog in 2014.[11] Further, as a matter of evidence Mr Puckey KC submitted that any evidence of alleged acts of cruelty to animals by the respondent was not consistent with there being admissible evidence of a violent disposition by the respondent towards the applicant. Mr Puckey KC conceded that the respondent’s language may have amounted to verbal abuse.[12] That was to be contrasted with the evidence given directly in paragraph 25 of the applicant’s trial affidavit that the respondent called the applicant “a fucking cunt” or “a lazy bitch”. Mr Puckey KC did not challenge the applicant to the effect that she exaggerated when using those words or that those words if used at all were used on a one-off basis or that some otherwise nefarious complexion should be placed on those words. The applicant described the procedure she underwent in 2020 for an illness. She described an event soon after her surgery when a sheep headbutted the area of the surgery causing the applicant considerable pain, knocking her to the ground. She deposed to the respondent doing nothing to assist although she admitted the event was an accident. She said that her son Mr G took her to a nearby hospital for stitches and treatment and that upon her return, she did not handle sheep.
[10] Transcript 12 December 2023, p. 147 line 1.
[11] Transcript 12 December 2023, p. 147 line 7.
[12] Transcript 12 December 2023, p. 147 line 4.
The applicant also deposed to an event on an unspecified day when she was assisting in the unloading of grain from a truck to a silo. She said she struggled to shut the door at the back of the truck because it was heavy and she was unable to close it. She said the respondent yelled at her, calling her names.
Without fixing a date to the event, the applicant deposed in paragraph 31 of her trial affidavit to her becoming increasingly anxious and depressed with the manner in which she said the respondent treated her. She said she told a friend of her suicidal thoughts. She said she considered leaving the respondent yet she feared that the respondent would kill her horses if she did.
She deposed to separating from the respondent on 20 November 2020.
She has since undergone more surgery.
In answer to questions put to her in cross-examination, the applicant deposed to encountering relationship difficulties with the respondent between 18 months to three years prior to her leaving in November 2020, all leading to her decision to leave.[13] She said she sold one of her horses to put her in funds to leave and move on.[14]
[13] Transcript 11 December 2023, p. 45 lines 11 – 13.
[14] Transcript 11 December 2023, p. 45 line 37.
The applicant agreed that at no stage did the respondent engage in any form of physical violence against her. She said the following –
“And he had certainly never laid a finger on you?---No.”[15]
[15] Transcript 11 December 2023, p. 55 line 31.
THE APPLICANT’S PRESENT CIRCUMSTANCES
The applicant deposed in paragraph 41 of her trial affidavit to residing with a friend, Ms H. The applicant said she (the applicant) has horses and a donkey all of which require land. She said her weekly expenses are in the vicinity of $1,148.51 and if modest additional items were included for clothing, toiletries and reading, an additional $200 should be added.
The applicant conceded that pursuant to a consent order, she received the sum of $300,000, such sum to be characterised after the trial.
ADDITIONAL WITNESSES
It seems that counsel for the parties reached an accommodation for the evidence of various witnesses to form part of the parties’ cases without the need for those witnesses to give viva voce evidence or to be cross-examined. Those witnesses were –
(a)Mr G;
(b)Ms H;
(c)Ms J;
(d)Mr K;
(e)Mr L; and
(f)Mr M.
It is necessary to recite the more important aspects of the evidence in the affidavit of each.
MR G
Mr G made an affidavit on 14 November 2023. He deposed to being the applicant’s son. He said he undertook paid work at Town B in 2015 and 2016 shearing, tagging sheep, harvesting and laser levelling. He said he undertook full-time work on the farming operations owned by the respondent in June 2016. He deposed to the farming tasks he witnessed his mother actually undertaking. He deposed to what he called behaviour that amounted to acts that were to “badger and berate” the applicant by the respondent. He deposed to the episode where a sheep headbutted the applicant. He also deposed to an episode when the applicant was endeavouring to open a door on a truck while unloading grain during which the respondent called the applicant a fucking cunt.
MS H
Ms H made an affidavit on 14 November 2023. She deposed to having met the applicant over 30 years earlier through a mutual interest in horses. She said she observed the respondent kicking farm animals. She said the applicant told Ms H that the applicant wanted to kill herself.
Ms H deposed to the applicant residing at Ms H’s home.
MS J
Ms J made an affidavit on 14 November 2023. In it she deposed to having known the applicant for about 30 years, mostly in the context of a mutual interest in horses. Ms J deposed to the tasks undertaken by the applicant on the farm. Ms J deposed to the applicant being withdrawn about 18 months prior to the applicant separating from the respondent although she did not give a date against which that 18 month period was reckoned.
MR K
Mr K made an affidavit on 24 November 2023 which was relied on as part of the respondent’s case. He deposed to having worked for the respondent for 10 years or thereabouts. He said he had not seen the respondent being abusive towards the applicant. He said he had not witnessed any discontent in the applicant’s relationship with the respondent. He said the applicant commenced work at different times each day. He disputed that the applicant made Mr K his lunch.
MR L
Mr L made an affidavit on 27 November 2023 filed on behalf of the respondent. He deposed to having worked for the respondent periodically between 2011 and 2013. Mr L deposed to the work actually done by the applicant.
MR M
Mr M made an affidavit on 25 November 2023 filed on behalf of the respondent. He deposed to the applicant yelling at farm dogs and behaving sternly towards them. He said that from his observations the applicant’s main task on the farm was looking after sheep. He said he was unable to say how many hours the applicant worked.
As has already been mentioned, none of Ms H, Ms J, Mr G, Mr L, Mr M or Mr K were cross-examined.
BALANCE SHEET
This case was conducted on the basis that the assets and liabilities were as formulated by the applicant in exhibit B to her trial affidavit. It revealed the respondent’s financial circumstances in the sense that his assets and liabilities were tallied. She said the total pool was in excess of $19,000,000. It was made up as follows –
Ownership Asset/Liability Value Assets Property Respondent “[Town B]” – N Street, Town B, NSW “[Town P]” – O Street, Town P, NSW (including all water entitlements) (as per joint valuation) $14,940,000 P&E, Stock and Grain Respondent Plant & Equipment, Stock & Grain (as per joint valuation) $1,960,000 Applicant Horses & Equine Equipment (as per single valuation) $11,080 Vehicles Applicant Motor Vehicle 1 $2,500 Applicant Motor Vehicle 2 $2,500 Applicant Motor Vehicle 3 $800 Shares Respondent Q Company $31,311 Respondent Q Company $6,882 Respondent R Company $5,813 Respondent S Company $454 Respondent T Company $454 Bank Accounts Respondent U Bank Savings #...20 $11,090 Respondent U Bank Farm Saving #...77 $24,215 Respondent U Bank Every day #...38 $3 Applicant NAB Bank Account #...04 $546 Misc Respondent Loan $15,000 Total Assets $17,012,648 Liabilities Loans Respondent V Finance Overdraft #...75 $532,607 Respondent V Finance Loan #...42 $200,000 Respondent W Organisation $50,000 Respondent X Corporation $600,000 Chattel Mortgages Respondent Motor Vehicle 4 $26,871 Respondent Motor Vehicle $4,086 Credit Cards Respondent ANZ Visa #...41 $2,499 Respondent CBA Credit Card #...34 $1,808 Respondent CBA Credit Card #...59 $532 Respondent CBA Credit Card #...89 $743 Applicant NAB Credit Card $5,059 Tax Respondent GST, PAYG, Super $1,135 Misc Respondent Trade Creditors $189,465 Applicant Legal Fees $97,412.70 Total Liabilities $1,712,218 Total Net Assets $15,300,430 Superannuation Respondent Mr Zunino Super Fund $3,718,734 Applicant Super Fund 1 $109,457 Total Superannuation $3,828,191 TOTAL POOL $19,128,621 THE WAY THE PARTIES’ CASES WERE CONDUCTED
Each party relied on a case outline prior to the commencement of the trial. In addition to the contributions she said she made over more than seven and a half years in addressing sheep issues, fencing, checking cattle, spraying paddocks and the like, she asserted that those contributions were made more onerous by reason of several matters. Those included the following –
(a)following her undergoing surgery, the respondent insisted that the applicant continue with heavy labour thereby re-opening the wound and delaying recovery;
(b)the respondent habitually denigrated and belittled the applicant;
(c)the respondent controlled the applicant and restricted her social connections; and
(d)as a result of the respondent’s behaviour the applicant was diagnosed with anxiety and depression and is currently taking medication for mental health issues.
The applicant also asserted that she has a collection of future needs within the contemplation of s 90SM(4)(d) – (g) and s 90SF(3) of the Family Law Act. She said those included –
(a)she is now unemployed having been previously in receipt of income of $60,000 pa;
(b)her health is problematic having had surgery and she is under treatment for ongoing anxiety and depression;
(c)her future employment and income prospects are limited having regard to her health and age; and
(d)the respondent will retain a multi-million dollar income generating regime.
The applicant sought an adjustment of the parties’ property interests as to 17.5% in her favour conferring 82.5% in favour of the respondent.
The respondent’s case outline advanced sophisticated factual and legal propositions about whether and if so in what manner any adjustment should be made as to the parties’ property interests. It is necessary to dissect those contentions. In it the respondent contended –
(a)each party separately contributed to assets which were not intermingled or co-owned or acquired by any financial contribution from the other;
(b)the parties maintained a strict separation of their finances throughout their short-lived domestic relationship and slightly longer period of cohabitation;
(c)the parties did not share bank accounts nor did they jointly acquire property;
(d)the parties adopted a commercial arrangement with respect to the applicant’s contributions of labour towards the respondent’s farming operations;
(e)they shared some of their living expenses and domestic duties, with the respondent meeting all outgoings benefitting the applicant and her horses;
(f)when the applicant and respondent met she was in her fifties and the respondent was in his sixties;
(g)since separation, each has maintained financial independence and a lifestyle consistent with that which they each enjoyed prior to their relationship; and
(h)their relationship has had no impact upon the financial circumstances of either party.
In his case outline, the respondent articulated his contentions about the justice and equity of orders altering property interests of the parties. The respondent relied on the observations in Stanford v Stanford[16] contending that –
(a)before making a property settlement order the court must be satisfied that it is just and equitable to do so;
(b)the court must first determine the principled reason for interfering with existing legal and equitable interests of the parties in their property;
(c)the need to be persuaded of the justice and equity in the making of a property adjustment order is not merely a threshold issue but rather it permeates the entire process;[17]
(d)in this case the parties adopted a series of stated and unstated assumptions about how their property interest should be arranged between them during the subsistence of their relationship and once their relationship came to an end; and
(e)no principled reason exists for the court to interfere with those arrangements.[18]
[16] (2012) 247 CLR 108.
[17] Woolams & Woolams (2004) FLC 93, 95 and Feal & Feal [2010] FamCAFC 120 (at [70]).
[18] The respondent called in aid decisions that included Bevan & Bevan (2013) 49 Fam LR 387, Chapman & Chapman (2014) 51 Fam LR 176, Whent & Marband [2018] FamCAFC 95, Chancellor & McCoy [2016] FamCAFC 256, Consola & Moretto [2023] FedCFamC1A 61, Paxton & Paxton [2016] FCCA 1689, Babray & Babray [2019] FCCA 3514, Faraday & Faraday [2020] FCCA 1895 and Fitch & Lewis [2017] FCCA 371.
In the passages that follow I have specifically addressed the Stanford v Stanford issue along with issues relevant to the decision in Kennon v Kennon.[19]
[19] (1997) 22 Fam LR 1.
THE STANFORD DEBATE
Before examining the factual findings that are open on the evidence before me, it is as well to narrate the more important observations to be distilled from the lead decision in Stanford v Stanford.[20] While that case was founded on s 79 of the Family Law Act, it cannot be seriously argued that the observations in that case do not apply to de facto relationships to which the provisions of s 90SM of the Family Law Act apply.
[20] (2012) 247 CLR 108.
Some preliminary observations are necessary. First, s 79(2) and s 79(4) are quite different subsections, making provision for different matters with the consequence that the requirements of the two subsections are not to be conflated. Accordingly, whatever may be the matters arising under s 79(4), in every case which a property settlement order is sought under s 79 (or s 90SM), it is necessary to satisfy the court that in all the circumstances it is just an equitable to make the property settlement order.
Next, precisely what amounts to an order that is “just and equitable” does not admit of exhaustive definition and therefore it is not possible to chart its metes and bounds.
Next, according to the three fundamental propositions that must not be obscured, whether it is “just and equitable” to make the property adjustment order is not to be answered by assuming that the parties’ rights to or interests in marital property are or should be different from those that then exist.
Next, questions between husband and wife about ownership of property that may be then or may have been in the past enjoyed in common are to be decided according to the same scheme of legal title and equitable principles as govern the rights of any two persons who (as here) are not spouses.
The question presented by s 79 or s 90SM is whether those rights and interests should be altered. To that end, no assumption exists that one party or the other has a right to have the property of the parties divided or has the right to an interest in marital property fixed by reference to the various matters set out in s 79(4). Accordingly, it is to conflate s 79(4) with s 79(2) to make an order on the basis that the matters in s 79(4) are addressed without separately considering s 79(2).
Next, an order interfering with existing legal and equitable interests of the parties will only be justified if a principled reason exists.
Next, the just and equitable requirement will be readily satisfied if, as a result of a choice made by one or both parties, the husband and wife are no longer living in a marital relationship. In such a situation, it will be just and equitable to make a property settlement order because there is not and will not thereafter be the common use of property by the husband and the wife. No less importantly, that applies where the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship and the assumption that any adjustment of those interests could be effected consensually as needed or desired is brought to an end.
What order, if any, should then be made is determined by applying s 79(4) or its equivalent for de facto relationship parties.
In accordance with statements of principle concerning the doctrine of precedent in such authorities as Trident General Insurance Co Ltd v McNiece Bros Pty Ltd[21] and in Hill v Zuda Pty Ltd[22] a trial judge in my shoes is bound to apply the learning in a particular field as propounded by the highest court in the appellate hierarchy, relevantly here, the High Court of Australia. Intermediate appellate courts are likewise bound. In view of the unmistakeable force of the observations of the court in Stanford v Stanford, I am of the view that statements of principle in that case bind me, irrespective of observations made by intermediate appellate courts insofar as any discrepancy in the application of the High Court principle may be evident.[23] I adhere to the observations I made when sitting as a member of the Federal Circuit Court of Australia in Paxton & Paxton[24] about the correct application to be conferred on Stanford v Stanford. That decision is as correct today as it was in 2016.
[21] (1988) 165 CLR 107.
[22] (2022) 275 CLR 24.
[23] Bevan & Bevan (2013) 49 Fam LR 387, Chapman & Chapman (2014) 51 Fam LR 176, Whent & Marband [2018] FamCAFC 95, Chancellor & McCoy [2016] FamCAFC 256 and Consola & Moretto [2023] FedCFamC1A 61
[24] [2016] FCCA 1689.
Against that statement of legal principle, it is possible to now express certain factual findings as they are relevant to the determination of aspects of this proceeding.
First, prior to the applicant and the respondent forming a romantic relationship, the respondent was a man of considerable means. Conversely, the applicant owned assets of modest values, consisting mostly of motor vehicles, saddlery and horses.
Next, even upon the commencement of their romantic relationship, the applicant and the respondent did not share their assets in any way beyond the respondent permitting the applicant to use those assets by, for example, using tractors or equipment in the daily discharge of her farm duties.
Next, at no stage did the applicant and respondent share their finances in any shape or form.
Next, at no stage did either party use her or his personal assets in such manner as to acquire assets jointly for the benefit of the two as a joint endeavour.
Next, during the currency of the relationship between the applicant and the respondent the applicant kept her assets wholly separate from the respondent and at the termination of their relationship, no change was evident in the use of the applicant’s assets separately for her own use and benefit.
Next, the stated and unstated assumptions by the applicant and the respondent about the arrangement of their property interests during the subsistence of their relationship did not change upon the breakdown of the relationship between the applicant and the respondent. In other words, no change was manifested in the way each behaved towards the assets of the other either during the relationship or upon the termination of the relationship.
Next, by reason of the choice made by them, the relationship that existed between the applicant and the respondent has come to an end.
SHOULD AN ORDER ALTERING PROPERTY INTERESTS BE MADE AT ALL?
In those circumstances the question became whether an order was appropriately made under s 90SM of the Family Law Act pursuant to which the rights of the parties in property were to be altered. The respondent submitted that no such order should be made. In reliance upon Stanford v Stanford at paragraph 39 of the court’s reasons for judgment, the respondent contended that questions between the applicant and the respondent about ownership of property were to be decided according to the same scheme of legal titles and equitable principles that govern the rights of any two persons who are not spouses. Underpinning his contentions in that regard was the recognition that –
(a)the applicant performed work and labour at the farm in accordance with a contract of employment for which she was to be, and was in fact, remunerated in the manner provided for in the contract of employment; and
(b)by reason of her performing tasks under her contract of employment the applicant did not thereby acquire some entitlement to maintain a claim to the respondent’s property interests in his overall wealth.
To my way of thinking, there is considerable validity in those contentions.
To that must be added that pursuant to orders made by a judge of Division 2 of this court, the sum (by consent) of $300,000 was ordered to be paid by the respondent to the applicant, its proper characterisation being a matter for me. It is important to observe that the sum of $300,000 was not described in the relevant order as a part property settlement. In final addresses, Mr Puckey KC on behalf of the respondent described the sum of $300,000 as an add back on account of legal fees, thereby enlivening the application of the principle in cases that include NHC v RCH.[25] The use to which the $300,000 was applied was different to the characterisation of that sum. It seems inescapable that the consent order for the payment of $300,000 was made and that the applicant benefitted from such payments. Whether it makes a difference to categorise the payment as a part property settlement was not the subject of debate.[26]
[25] (2004) 32 Fam LR 518.
[26] In the opening of counsel for the applicant (transcript 11 December 2023, p. 6 line 20) it was put that the applicant has already received $300,000 “by way of settlement” and that such sum had to be acknowledged as a sum received by the applicant. That was an assertion in opening, however.
In debate on 4 June 2025 (upon my requesting the parties to appear for the purpose of debating the legal significance and character of the $300,000 paid) Mr Chislett submitted that the $300,000 payment was not a part property payment but was instead a gift[27] or a payment of costs in the nature of litigation funding. Mr Robinson of Counsel submitted that the characterisation of the sum of $300,000 depended on the wording of the application in a proceeding pursuant to which it was paid. The order did not state that the payment was as to costs or as to any other basis as claimed. In those circumstances I derived little assistance in ascertaining how the sum of $300,000 was to be characterised. It was not characterised as a part property order, however. To my way of thinking the payment of $300,000 was likely a gift or the payment of sunk costs.
[27] Irons v Smallpiece (1819) 106 ER 467, Attorney-General v Worrall [1895] 1 QB 99, 104, Re Cochrane and the Finance Act 1894 [1906] 2 IR 200, 201, Collector of Imposts (Vic) v Peers (1921) 29 CLR 115, Macrow v Collector of Imposts (Vic) [1921] VLR 23, Collector of Imposts (Vic) v Cuming Campbell Investments Pty Ltd (1940) 63 CLR 619, Comptroller of Stamps (Vic) v Joe White Maltings Pty Ltd [1956] VLR 253, 270, Rannell v IRC [1964] AC 173, Federal Commissioner of Taxation v McPhail (1968) 117 CLR 111, Inland Revenue Commissioners v Church Commissioners for England [1977] AC 329, 347, Cyprus Mines Corporation v Commissioner of Taxation (1978) 36 FLR 295 and Leary v Federal Commissioner of Taxation (1980) 32 ALR 221.
The applicant sought an order for the payment to her of an amount in excess of $3,000,000 as a property adjustment order. She cast her case on the basis that the relationship between the applicant and the respondent lasted nearly eight years in respect of which the applicant provided substantial contributions.
The applicant propounded a 12 to 12.5% adjustment in her favour. She argued that the duration of the de facto relationship was medium and that the applicant’s needs going forward were significant.
THE KENNON ARGUMENT
The applicant devoted considerable time in her final address to her health issues. It was not disputed that the applicant had undergone surgery, that she was mid-sixties in age and that farming is an arduous occupation calling for significant physical input. The applicant alleged that she was under the care of a mental health counsellor. She also relied on an argument founded in Kennon v Kennon[28] to the effect that her contributions were made all the more arduous by reason of the respondent’s conduct towards her in his exhibition of family violence. The respondent denied the existence of family violence. He also denied the existence of circumstances approximating Kennon’s Case so as to enliven the observations in that case about the arduous nature of contributions based on family violence.
[28] (1997) 22 Fam LR 1.
The Kennon argument advanced by the applicant was not well considered or formulated. It seemed to proceed on the basis that the respondent was uncharitable towards the applicant in his tone and in the words he used towards her. The applicant said he swore at her, called her names and was insulting towards her. No evidence emerged to the effect that the impact of the respondent’s words spoken towards the applicant impaired in any way the discharge of her duties as a farm worker. At its height, on the day the applicant left the relationship, she seemed to take the view that she would not tolerate the respondent’s verbal exchanges so she left and took herself and her horses to Ms H’s residence. I was unable to detect in the evidence anything that demonstrated that the applicant’s tasks of contributing to the relationship were made more arduous by reasons of the respondent’s poor language towards her.
In my view, the applicant’s assertions as allegedly founding a Kennon claim were not proved.
IMPERMISSIBLY CONFLATING THE ELEMENTS OF THE CASE
In Stanford v Stanford the High Court warned that a court must not merge the concepts in s 79(4) with the broader notion in s 79(2). In my view, the applicant’s case is premised on doing precisely that. She has erroneously identified several discrete issues, all grounded in one component or another of s 79(4) or its de facto equivalent and concluded that she is entitled to a property adjustment order by reason of the presence of those discrete issues, without separately addressing s 79(2). For example, the applicant has identified that she made contributions. There can be no doubt she did. Mr Puckey KC conceded as much. Then the applicant asserted that she has significant future needs by reason of her relatively modest means, her mental health issues, her age and her health generally, she having undergone surgery. However, in the process of addressing and advocating for those discrete components in s 79(4), she conflates the notion that it is, as a stated fact, just and equitable to make an order under s 79(2) without separately engaging in the deductive analysis required by Stanford v Stanford as has been surveyed above. That is especially the case when one has regard to the fact that no intermingling of the parties’ property interests was undertaken. They lived as economic silos, never mixing their assets. Yet in the face of that reality, the applicant argued that she wanted the court to make orders altering property interests of the parties in such manner that $3,000,000 was paid to the applicant. Such a result is not just and equitable. I refuse to make such an order.
The applicant has had $300,000 and superannuation. She was salaried while working for the respondent. It is not just and equitable for her to be paid anything further.
OUTCOME
I dismiss her s 90SM application.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson. Associate:
Dated: 5 June 2025
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