Watts & Evans (No 3)

Case [2025] FedCFamC1F 197


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Watts & Evans (No 3) [2025] FedCFamC1F 197

File number: PAC 275 of 2021
Judgment of: HARPER J
Date of judgment: 26 March 2025
Catchwords: FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDING – PROPERTY – Adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) – Assessment of contributions – Where the wife sought equal assessment of contributions with a 15 per cent adjustment in her favour – Where the husband sought contributions assessed as 60/40 with a 5 per cent adjustment for overall division 65 per cent in his favour – Where both parties sought addbacks – Where the wife sought to add back large sums of “unexplained” or “unaccounted” for money transfers by the husband – Where the wife failed to establish defaults in disclosure by the husband lead to a conclusion of hidden assets – Where the mere fact expenditure over a number of years in a very large property pool are not precisely accounted for does not of itself demonstrate wanton or improper dissipation of marital assets – Where expert evidence supported the inference the net movement of funds by the husband was objectively innocent – Where funds given to adult children by the husband are added back – Where the wife failed to establish claim for spouse maintenance – Where overall contributions assessed in favour of the husband as to 54 per cent – No adjustment pursuant to s 79(4)(e) – Final division 46/54 in favour of the husband.
Legislation:

Evidence Act 1995 (Cth) ss 50, 136, 144

Family Law Act 1975 (Cth) Pt VIII, ss 4AA, 72, 75, 79, 80, 81, 95, 114

Income Tax Assessment Act1936 (Cth) Div 7A

Cases cited:

Agnarsson & Agnarsson (No 4) [2024] FedCFamC1F 407

Aitken & Aitken (2023) FLC 94-142; [2023] FedCFamC1A

69

Akbar & Gandega (2023) 67 Fam LR 593; [2023] FedCFamC1A 174

Barnell & Barnell (2020) FLC 93-961; [2020] FamCAFC

102

Benson & Drury (2020) FLC 93-998; [2020] FamCAFC

303

Berfield & Berfield (No 2) [2024] FedCFamC1F 573

Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116

Burke and Burke (1981) FLC 91-055

C & C [1998] FamCA 143

Candle & Falkner (2021) FLC 94-069; [2021] FedCFamC1A 102

Chorn and Hopkins (2004) FLC 93-204; [2004] FamCA

633

Dickons v Dickons (2012) 50 Fam LR 244; [2012]

FamCAFC 154

Director of Public Prosecutions v United TelecastersSydney Ltd (1990) 168 CLR 594; [1990] HCA 5

Dovgan & Dovgan [2021] FamCA 306

Duarte v Morse (2019) 59 Fam LR 323; [2019] FamCAFC 93

Evans & Watts (No 2) [2023] FedCFamC1F 1033

G and G (2000) FLC 93-043; [2000] FamCA 1075

Gould & Gould (2007) FLC 93-333; [2007] FamCA 609

Horrigan & Horrigan [2020] FamCAFC 25

Huang & Wen (No 3) [2025] FedCFamC1F 71

Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC

78

JEL and DDF (2001) FLC 93-075; [2000] FamCA 1353

Kartal & Templeman [2022] FedCFamC1A 46

Keehan & Keehan [2015] FamCAFC 122

Kowalski…

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Watts & Evans (No 3) [2025] FedCFamC1F 197
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[2025] FedCFamC1F 197
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CaseChat Overview and Summary

In the case of Watts & Evans (No 3), the Federal Circuit and Family Court of Australia was tasked with determining the division of assets between the parties following their separation. The wife sought an equal assessment of contributions with a 15% adjustment in her favour, while the husband sought a 60/40 assessment in his favour with a 5% adjustment. Both parties also sought addbacks for certain funds, and the wife sought spousal maintenance of $5,000 per week. The court found that neither party was entitled to an adjustment under section 79(4)(e) of the Family Law Act 1975 (Cth), leading to an overall assessment of contributions in favour of the husband at 54%. The court denied the wife's request for spousal maintenance.

The court's decision was based on the evidence presented, including expert valuations of various properties and financial reports. The court found that the wife had failed to establish that the husband's undisclosed financial activities constituted hidden assets or improper dissipation of marital funds. The court also found that the husband's contributions to his adult children did not warrant an adjustment in the wife's favour.

As a result of the court's decision, the final division of the asset pool was 46% to the wife and 54% to the husband. The court issued detailed orders regarding the transfer of specific properties, the payment of settlement monies, and the winding up of a self-managed superannuation fund. The court also restrained the parties from transferring any benefits from the superannuation fund without following the specified procedures. The wife was not awarded spousal maintenance, and the husband was found to be solely liable for his personal debts and liabilities, while the wife was solely liable for hers. The parties were ordered to indemnify each other for any liabilities arising from their business operations and personal property. Any application for costs was to be filed within 28 days of the court's orders, with no order for costs if no application was filed.

Orders

Orders of the court

PAC 275 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS EVANS

Applicant

AND:

MR WATTS

First Respondent

C PTY LTD

Second Respondent

O PTY LTD

Third Respondent

ORDER MADE BY:

HARPER J

DATE OF ORDER:

26 MARCH 2025

THE COURT NOTES THAT:

Definitions

A. “L Street” means the property situate and known as L Street, Suburb M, folio identifier … registered in the name of S Pty Ltd.

B. “C Pty Ltd” means C Pty Ltd, ACN …. The respondent husband (“husband”) is the sole director and shareholder of C Pty Ltd which is the trustee of the C Trust.

C. “T Resort” means the time share units at T Resort in the United States of America under Contract Number ….

D. “CGT amount” means any capital gains tax liability arising from the sale of the sale properties.

E. “CGT estimate” means the estimate of capital gains tax payable on the sale of the sale properties obtained from U Financial Services.

F. “CGT estimate amount” means the amount that is held in the Marsdens Trust Account pending the preparation of the tax returns and financial documents for the husband, C Pty Ltd and O Pty Ltd for the financial year/s that relates to the sale of sale properties.

G. “Corporate Entities” means the following:

(a) C Pty Ltd;

(b) C Trust;

(c) S Pty Ltd;

(d) B Pty Ltd;

(e) V Pty Ltd as trustee for PP Unit Trust;

(f) O Pty Ltd as trustee for O Trust;

(g) V Pty Ltd as trustee for S Reserve Trust;

(h) S Unit Trust; and

(i) S Partnership.

H. “Due date” means twelve weeks from the date of these orders.

I. “S Pty Ltd” means S Pty Ltd, ACN …. The husband and the applicant wife (“wife”) are the directors and shareholders of S Pty Ltd.

J. “U Financial Services” means the accountants for the husband and the Corporate Entities.

K. “Marsdens Trust Account” means the trust account of Marsdens Law Group.

L. “P Street” means the property situate and known as P Street, Suburb H, folio identifier ….

M. “P Street Guarantee” means the personal guarantee provided by the wife with respect to the National Australia Bank (“NAB”) mortgages account numbers …85 and …66.

N. “P Street mortgage” means the mortgage in favour of NAB that is registered on the title of P Street, registered dealing number ….

O. “B Pty Ltd” means B Pty Ltd, ACN …. The husband is the sole director and shareholder of B Pty Ltd and it is the corporate trustee for S Unit Trust and the trading vehicle for W Company.

P. “L Street mortgage” means the mortgage in favour of X Bank registered dealing number … that is registered on the title of L Street.

Q. “Sale properties” means such of the properties and any of them, of which the husband, C Pty Ltd or O Pty Ltd is the registered proprietor, the sale of which may be necessary to comply with these orders.

R. “Settlement monies” means the payment to be made to the wife by the husband in the amount equivalent to 46 per cent of the net value of the asset pool, as determined by the Court, less:

(a) the net value of the assets and liabilities the wife retains pursuant to these orders, and subject to any adjustment in accordance with these orders; and

(b) $59,500.

S. “SMSF” means Superannuation Fund 1. The husband and wife are the sole members of Superannuation Fund 1. V Pty Ltd is the corporate trustee.

T. “Suburb R Property” means the property situate and known as Q Street, Suburb R, folio identifier … that is registered in the name of the husband.

U. “Suburb R mortgage” means the mortgage that is registered on the title of Suburb R, in favour of NAB, registered dealing number ….

V. “O Pty Ltd” means O Pty Ltd, ACN …. The husband is the sole director and shareholder of O Pty Ltd and it is the trustee of the O Trust.

THE COURT ORDERS THAT:

1. C Pty Ltd and O Pty Ltd be joined as parties to these proceedings.

P Street

2. On or before the due date the wife will do all acts and things and sign all documents necessary to transfer to the husband all of her right, title and interest in the P Street property.

3. Simultaneously upon the wife's compliance with Order 2 the husband will do all acts and things and sign all documents necessary to:

3.1 Discharge the P Street mortgage.

3.2 Release the wife from the P Street Guarantee.

T Resort

4. On or before the due date the husband will do all acts and things and sign all documents necessary to transfer to the wife all of his right, title and interest in T Resort.

5. The wife shall indemnify the husband from all current, past and future liability with respect to the T Resort.

Suburb R Property

6. On or before the due date the husband will do all acts and things and sign all documents necessary to:

6.1 Discharge the Suburb R mortgage.

6.2 Transfer to the wife all of his right, title and interest in Suburb R.

Corporate Entities

7. The husband is declared the sole owner of the following, both in law and in equity of the Corporate Entities and on or before the due date the wife will do all acts and things and sign all documents necessary to:

7.1 Resign all positions that the wife holds in the Corporate Entities.

7.2 Transfer to the husband all of the wife's shareholdings in the Corporate Entities.

7.3 Transfer to the husband any other rights or entitlements the wife may have in or against the Corporate Entities including the benefit of any loan accounts.

Capital Gains Tax

8. Within 7 days from the date of these orders the husband will do all acts and things necessary to obtain the CGT estimate from U Financial Services.

9. The husband, C Pty Ltd and O Pty Ltd will do all acts and things and sign all documents necessary to cause their respective tax returns and financial documents to be prepared and lodged for each financial year that relates to the sale of the sale properties and such tax returns and financial documents are to be lodged by no later than 30 December.

10. The husband cause a copy of the tax returns and financial documents for himself, C Pty Ltd and O Pty Ltd for each financial year that relates to the sale of the sale properties to be provided to the wife within 7 days of them being lodged.

11. The husband will do all acts and things and sign all documents necessary to:

11.1 Cause a copy of the Notice of Assessments for each financial year that relates to the sale of the sale properties to be provided to the wife.

11.2 Cause the CGT amount to be paid from the funds held in Marsdens Trust Account.

Sale Properties

12. That within 14 days from the date of these orders the husband, C Pty Ltd and O Pty Ltd will do all acts and things and sign all documents necessary, to cause such of the sale properties to be sold as are necessary to produce the settlement monies, and for the purposes of this order:

12.1 Y Real Estate will be appointed as the agent to act on the sale (“agent”).

12.2 E Solicitors is appointed as the solicitors to act on the sale (“solicitors”).

12.3 The sale properties will be listed for sale by any method and price as recommended by the agent to ensure the realisation of sufficient net proceeds to make good the payment of the settlement monies to the wife.

12.4 The husband will elect the order of priority of sale of each property that makes up the sale properties and cause a Contract for the Sale of Land to be executed for each of the properties that are to be sold.

12.5 The husband will instruct the agent and the solicitors to supply to the wife all information reasonably required by the wife in relation to the sale and will execute any necessary authority in writing for that purpose.

13. For the purposes of Order 12 the husband, C Pty Ltd and O Pty Ltd will each cooperate in every way including (without limiting the generality of the foregoing):

13.1 Making the keys available.

13.2 Allowing inspections at all reasonable times requested by the agent.

13.3 Doing or saying nothing that will prevent a sale being affected.

13.4 Signing all documents requested.

14. Upon the completion of the sale of the sale properties which are required to be sold the husband, C Pty Ltd and O Pty Ltd will do all acts and things and sign all documents necessary to authorise the sale proceeds to be applied as follows:

14.1 In payment of all costs and disbursements referrable to the sale.

14.2 In payment of all amounts as are necessary to discharge any mortgage encumbering the property.

14.3 In payment to discharge any outstanding council and water rates and land tax liability.

14.4 In payment of the CGT estimate to Marsdens Trust Account.

14.5 In payment of the settlement monies to the wife, subject to Orders 15 and 16.

14.6 In payment of the balance then remaining to the husband.

15. If the sale properties sell collectively for more than the amounts used to calculate the settlement monies then the amount paid to the wife shall be increased by 46 per cent of the increase in the sale proceeds.

16. If the sale properties sell collectively for less than the amounts used to calculate the settlement monies then the amount paid to the wife shall be decreased by 46 per cent of the decrease in the sale proceeds.

SMSF

Real Estate

17. Within 28 days of the date of these orders the parties will in their capacity as directors of the corporate trustee of the SMSF do all things and sign all documents necessary to cause L Street to be sold and for the purposes of this order:

17.1 Y Real Estate is appointed as the agent to act on the sale (“agent”).

17.2 E Solicitors is appointed as the solicitors to act on the sale (“solicitors”).

17.3 The method of sale will be sold by private treaty, or as otherwise in accordance with the agent's recommendation.

17.4 Both parties will sign all documents required by the agent and solicitors to facilitate the sale, including but not limited to agency agreement, cost agreement and contract for sale.

17.5 Neither party can confer on any agent without the consent of the other party, any right to any sole or exclusive agency agreement in respect of L Street or to any commission.

17.6 The parties shall each cooperate in every way with the agent including but not limited to:

(i) Making the key available to the agent.

(ii) Allowing inspection of L Street at all reasonable times as requested by the agent.

(iii) Doing or saying nothing to the agent that will prevent a sale being effected.

(iv) Ensuring L Street, including the grounds, are in a neat and clean condition at the time of inspection by the agent and prospective buyers.

18. In the event L Street is not sold by private treaty within a period of 3 months of the date of being listed for sale, then the parties as directors of the SMSF, shall forthwith do all acts and things necessary to cause the said property to be listed for sale and sold by public auction at the earliest possible date with the same agent and at a reserve price to be agreed upon between the parties and, failing agreement as to a reserve price for more than 14 days, at a reserve price to be determined by the listing agent whose decision shall be final and binding upon the parties AND such sale shall be subject to the following terms and conditions:

18.1 The auction shall take place at the earliest date recommended by the agent;

18.2 Both parties shall attend at the auction and in the event that the property is passed in they shall negotiate with the highest bidder and shall accept any offer to purchase the property at no less than 97.5 per cent of the reserve price.

19. In the event L Street does not sell at auction or does not sell by private treaty within 2 weeks after the date of the auction, then the husband will relist the property for sale by auction at intervals of no more than 6 weeks upon the same terms and conditions as set out herein until the property is sold.

20. Upon L Street being sold in accordance with these orders, the parties will do all acts and things necessary to immediately distribute the proceeds of such sale in the following order and priority:

20.1 In payment of any amount to discharge the mortgage in favour of X Bank that is registered on the title of L Street, registered dealing number ….

20.2 In payment of the agent's commission and advertising expenses and legal expenses of the said sale.

20.3 In payment of the solicitors’ costs associated with the sale.

20.4 In payment of costs incurred, if any, in relation to determination of value or selling price of L Street.

20.5 In payment of any adjustments, inclusive of council and water rates; and

20.6 In payment of the balance then remaining proceeds (“L Street proceeds”) to be deposited in the SMSF, NAB account number …01 (“SMSF Account”).

Restraints

21. Save for the purposes of giving effect to these orders, the parties be and are hereby restrained both in their personal capacity and that of director of the SMSF from otherwise requesting rollover and/or transfer of any transferrable benefits to another fund or to make any further payment from the SMSF or SMSF Account.

Wind up of SMSF

22. Within 14 days of the L Street proceeds being deposited in the SMSF Account, the parties will in their capacity as directors of the SMSF do all such acts and things necessary to:

22.1 Engage U Financial Services to prepare any audits, outstanding taxation returns and the final taxation return for the SMSF; and

22.2 Instruct U Financial Services to pay existing tax liabilities for the SMSF from the funds presently held in the SMSF Account; and

22.3 Ensure that any insurance policies presently held by the SMSF are cancelled; and

22.4 Pay any outstanding accounting fees owing to U Financial Services for the preparation of the tax returns for the SMSF from the funds presently held in the SMSF Account; and

22.5 Instruct U Financial Services that subject to the preceding orders hereof to deregister and wind up the SMSF and share in all costs associated (including any ASIC related fees) the same.

23. That upon payment of all the tax liabilities and accounting fees referred to in Order 22 hereof, within 7 days the wife and husband will both do all acts and things and sign all documents necessary to cause the remaining funds held in the SMSF Account, at the point of winding up, to be disbursed as follows:

23.1 The wife's allocated SMSF entitlement to be rolled over into such superannuation fund as the wife directs in writing.

23.2 The husband's allocated SMSF entitlement to be rolled over into such superannuation fund as the husband directs in writing.

24. For the purposes of Orders 17 to 23 the parties will do all such acts and things and sign all such documents as may be required, including but not limited to the signing of the SMSF trustee minutes, rollover requests and any related documents that may be necessary to transfer each of their respective member account balances and member entitlements out of the SMSF and into another complying superannuation fund established by each of them in their respective names.

Z Pty Ltd

25. That the parties within 28 days do all acts and things and sign all documents required:

25.1 To cause S Pty Ltd to release Z Pty Ltd (ACN: …) and the wife from any and all liability associated with the lease between S Pty Ltd and Z Pty Ltd for the property at L Street; and

25.2 To release the wife from the personal guarantees provided by her or Z Pty Ltd to X Bank in relation to the mortgage held by V Pty Ltd as trustee for Superannuation Fund 1 with X Bank in respect of the property at L Street; and

25.3 To release the wife from the personal guarantees provided by her or Z Pty Ltd in relation to the chattel mortgage held by B Pty Ltd with X Bank; and

25.4 To cause S Pty Ltd to indemnify and keep indemnified Z Pty Ltd and the wife from and against all actions, claims, suits or demands howsoever made against Z Pty Ltd and the wife in relation to or arising out of any liability associated with the operations of S Pty Ltd and the husband.

Declarations

26. Except as otherwise provided for in these orders the husband is declared the sole legal and beneficial owner of the following:

26.1 All funds standing to the credit of the husband in bank accounts held in the husband's sole name;

26.2 All of the husband's interest in life insurance policies in his sole name;

26.3 All of the husband's superannuation member entitlements in his sole name;

26.4 All items of furniture, furnishings, contents, electronic equipment and personal effects currently in the husband’s possession, custody or control at the time of the making of these orders; and

26.5 All other personal property of whatsoever nature and kind in the possession of the husband at the date of the making of these orders.

27. Except as otherwise provided for in these orders the wife is declared the sole legal and beneficial owner of the following:

27.1 All funds standing to the credit of the wife in bank accounts held in the wife's sole name;

27.2 All of the wife’s interest in life insurance policies in her sole name;

27.3 The wife’s superannuation member entitlements in her sole name;

27.4 All items of furniture, furnishings, contents, electronic equipment and personal effects currently in the wife’s possession, custody or control at the time of the making of these orders; and

27.5 All other personal property of whatsoever nature and kind in the possession of the wife at the date of the making of these orders.

Indemnities

28. As between the parties, the husband shall be solely liable for all debts and liabilities in his sole name however and whenever arising and he shall indemnify and keep indemnified the wife in relation to any liability associated with him, his business operations in B Pty Ltd and any liability in connection with the Corporate Entities.

29. As between the parties, the wife shall be solely liable for all debts and liabilities in her sole name however and whenever arising and she shall indemnify and keep indemnified the husband in relation to the same.

30. The parties hereby release the other from all actions, proceedings, claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter or thing.

Ancillary Orders

31. The parties shall do all acts and things necessary and give all consents and execute all documents and writings to give effect to these orders in the time periods prescribed.

32. In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, the Registrar of the Court be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.

33. The parties have liberty to apply to relist the proceedings on 7 days’ notice for the purpose of any further orders necessary to implement these orders.

34. All outstanding applications are otherwise dismissed.

Costs

35. Any application seeking an award of costs is to be filed and served with an affidavit in support within 28 days of the date of these orders, and in the event no application is filed within the time specified, there shall be no order as to costs up to and including the date of these orders.

THE COURT FURTHER NOTES THAT:

W. At the date of these orders, based upon the values of the net assets of the parties as found or agreed at the date of judgment delivered on 26 March 2025 the amount calculated as payable to the wife is $8,668,680, subject to adjustments made in accordance with these orders.

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

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

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.

Background

Background to the litigation

By the conclusion of the trial, each party sought to retain P Street. The wife sought an overall property adjustment giving her 60 to 65 per cent of the net asset pool. In broad terms, she contended that the parties’ contributions should be assessed as equal, but she should receive a substantial adjustment of up to 15 per cent under s 79(4)(e) because of the husband’s failures in disclosure. The wife also sought spouse maintenance of $5,000 per week. The husband argued that contributions should be assessed 60 per cent in his favour, together with an adjustment of up to 5 per cent under s 79(4)(e), awarding him up to 65 per cent of the asset pool.BACKGROUND The wife was born in 1964 in New Zealand and is currently 61 years of age. She became an Australian citizen in 1985. The husband was born in 1966 in Australia and is currently 59 years of age. The wife and the husband both served in the Australian Defence Force. The wife served for seven years as a ranked officer and was promoted thereafter. The husband served for three years as a ranked officer. In 1995 the husband commenced full-time study for a degree. He graduated in 1997 and began work as a health professional. In 1996 the wife became a public servant. She served in this position until 2007. As mentioned, there was dispute about the dates the parties met, commenced cohabitation and whether they entered a de facto relationship before marriage. It is convenient to make findings about this dispute at this point. In order to explain some elements of the dispute it is necessary to record here that in late 1997 or early 1998 the wife purchased a property at 2 CC Street, Suburb H (“2 CC Street”) for $148,000. She paid the $20,000 deposit from her savings and funded the balance of the purchase price with a mortgage with National Australia Bank (“NAB”). The parties moved into the property after settlement. The wife contends the parties met in 1991 and commenced a de facto relationship from mid‑1993. This is consistent with the date of formal recognition of a de facto relationship between the parties by the Australian Defence Force. The wife said the parties commenced cohabitation in 1994 at a unit at Suburb DD. The lease was in the wife’s name and she paid the rent, although she received full reimbursement from the Australian Defence Force on account of the parties’ recognised de facto status and consequent entitlement to married quarters for Defence personnel. The wife said the property was 40 minutes from where she worked but was chosen for the husband’s convenience as it was close to DD Hospital where he gained practical experience during his degree. The husband denied he lived with the wife in married quarters provided by the Australian Defence Force from 1994 as he did not commence his degree until 1995, though he agreed he was working as a health professional at DD Hospital. He said he lived separately until the parties moved into 2 CC Street in 1998. He claimed that the wife lived at EE Street, Town FF in 1995 and 1996. He tendered a copy of the wife’s public service questionnaire in which she gave this property as her home address as early 1996.

Evidence

Evidence Before The Court

The documents tendered and received into evidence are set out in Schedule 1 to these reasons.Expert evidence A number of single experts were appointed in this matter. Ms AS of AT Company provided three reports, including an updating report dated 12 December 2024, valuing a number of the entities in the asset pool. Ms AS was cross‑examined. Mr AU of AV Valuers was appointed to value 1 P Street. He provided a report dated 8 November 2024. Mr AU was cross-examined. Mr AW of AV Valuers was appointed to value a number of properties. Of these valuations, the only one in contention was Mr AW’s valuation of JJ Street. The registered proprietor is B Pty Ltd, so the value of this property is important for the overall value of B Pty Ltd. On 10 January 2025 the husband filed an affidavit annexing a different expert valuation of JJ Street as at 9 January 2025 from Mr AR. The husband was given leave to rely upon this evidence because it had been foreshadowed, an order had earlier been made on 6 November 2023 permitting evidence from Mr AR. Both Mr AW and Mr AR were cross-examined. Mr BQ of AV Valuers provided a report valuing AH Street at $21,600,000 as at 29 October 2024. Mr BQ was not cross-examined. On 6 January 2025, one week before the commencement of the trial, the wife filed an Amended Application in a Proceeding seeking leave to rely upon the expert reports of Mr AM, Mr AX, Ms AY, Mr AZ and Ms BA. In relation to Mr AX, the wife in the alternative sought leave to rely upon schedules prepared by Mr AX as summaries pursuant to s 50 of the Evidence Act 1995 (Cth) (“Evidence Act”). Mr AM of BC Lawyers swore two affidavits. The first, filed 13 December 2024, annexed two reports. These reports gave his expert opinion on several issues. It is not necessary to mention them all here. The second affidavit, filed 28 December 2024, annexed a report by Mr AM concerning the liability of the husband and a self-managed superannuation fund to capital gains tax if certain properties were sold. The husband objected to paragraphs 86 to 92 of the first report dated 2 December 2024, which answered a number of specific questions. The impugned paragraphs responded to the following question:Question 7Your assessment of the balance of the Division 7A loan between [B Pty Ltd] and the Husband in:The 2019 Financial Year Special Purpose Financial Report; andThe 2023 Financial Year Special Purpose Financial Report when the 2023 [B Pty Ltd] Dividend was declared (or just prior to the dividend being deemed if possible). I rejected these paragraphs for two reasons. Firstly, Question 7 put to Mr AM seeks an “assessment” of a Division 7A loan of $2,582,376 owing by the husband and appearing in the balance sheet of B Pty Ltd for the financial year ended June 2019. It is unclear what expertise was brought to bear upon this loan in making an “assessment”. Secondly, the reasoning process of Mr AM exposed in paragraphs 86 to 92 involved making a number of assumptions, including the assumption that the loan was made pursuant to a Facility Agreement dated 30 June 2011. In substance Mr AM was invited to, and did, engage in speculation about the loans on the basis of his assumptions, despite noting in relation to the 2019 loan, “the manner in which the accounts have been cast makes it difficult to determine whether the minimum repayment in respect of each year's loan has been made” (paragraph 91). He assessed the 2023 loan using the same assumptions. Objection having been taken, in my view the paragraphs were inadmissible for these reasons.

Decision

Reasons for decision

The task of the Court under s 79 is to assess contributions and future needs, not compensation. It is not the purpose of the matters set forth in s 75(2) of the Act to compensate one party for the alleged poor conduct of the other. Even if it be accepted that in some circumstances egregious conduct could be taken into account under s 75(2)(o), the wife here has not shown the conduct of the husband was such that it should be taken into account in delivering to her a higher percentage of the matrimonial pool as opposed to being taken into consideration if any application for costs is made. In my view, in the ordinary course, complaints about conduct are more properly taken into account if a party applies for a costs order in their favour. This does not mean that a costs application made on such a basis would succeed, because the question of costs is separate to adjusting property interests and may be affected by a range of considerations unconnected with disclosure or the conduct of a party during proceedings.Conclusion I am not satisfied there should be any adjustment under s 79(4)(e) for either party. Consequently, the parties’ assets should be divided 46 per cent to the wife and 54 per cent to the husband.SPOUSE MAINTENANCE In her proposed Minute of Orders (Exhibit V), the wife sought spouse maintenance of $5,000 per week from the date of making final orders as and until the earlier of:a.The Respondent Husband’s complete compliance with the terms of these orders; or b.The expiry of the period of 2 years from the date of these orders. She held concern about the husband’s compliance with final orders because of his alleged dissipation of funds from the marital pool. She claimed that if the husband delayed any required sales of property she would not receive payment for 6 to 12 months, though no evidence was provided that the husband held such an intention were such orders to be made. Counsel for the wife submitted that the husband will continue to have access to financial resources in the intervening period between the reserve of judgment and compliance with final orders, but the wife will not. She relies on her weekly gross Superannuation Fund 2 of $2,641 and has an estimated $7,462 in weekly expenses, including some costs for the children. She has large outstanding debts for litigation funding. She claims that since separation she has been unable to maintain the same standard of living because the husband has controlled, and enjoyed the benefit of, the majority of the marital assets. The husband denied the wife has need for spouse maintenance and claimed he does not have capacity to pay it. He pointed to a $40,000 increase in the wife’s expenses for a counselling course which the wife does not intend to utilise for paid work, and submitted this is not a proper basis for spousal maintenance or reason for him to account for the increase in her needs. He also submitted that the wife’s proposed order sought spouse maintenance until the husband’s “complete compliance” with the final orders, and suggested this form of order was adverse to the duty to bring finality to proceedings. The husband was not cross-examined about spouse maintenance.

Ratio Decidendi

Legal Principle Established

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