Willis & Mulder
[2025] FedCFamC2F 987
•17 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Willis & Mulder [2025] FedCFamC2F 987
File number(s): ADC 883 of 2023 Judgment of: JUDGE MURDOCH Date of judgment: 17 July 2025 Catchwords: FAMILY LAW – PROPERTY –– where issue exists as to the value of the property of the parties available for adjustment –where issue exists as to the value of the payment to be made by the husband to the wife - where the wife seeks 65 percent of the property as she asserts in her favour – where the husband seeks that he achieve 75 percent of the property as he asserts in his favour- where there are evidentiary deficiencies and vacuums in the evidence adduced by each party and neither complied with their obligations of disclosure - where there is agreement as to how property is to be adjusted in specie- where neither party impressed as a compelling witness -where the material sought to be relied upon by the parties was disproportionate and unnecessary - where the husband made the overwhelming majority of the direct financial contributions directing weight to the use made of those contributions – where no orders made adjusting the contribution finding - orders made for the wife to receive 35 percent and the husband 65 percent of the found property pool. Legislation: Family Law Act 1975 (Cth) s 75(2), 79(4)
Family Law Amendment Act 2024 (Cth)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rule 1.04, 8.15
Cases cited: Bremner & Bremner (1995) FLC 92-560
Browne v Green (1999) FLC 92-873
Chang v Su [2002] HCATrans 446
Crawford & Crawford (1979) FLC 90-647
Fields & Smith [2015] FamCAFC 57
Horrigan & Horrigan [2020] FamCAFC 25
Jabour & Jabour (2019) FLC 93–898
Lee Steere & Lee Steere (1985) FLC 91-626
Lovine & Connor & Anor [2012] FamCAFC 168
Money & Money (1994) FLC 92-485
Pierce & Pierce (1999) FLC 92-844
Robb v Robb (1995) FLC 92-555
Stanford & Stanford [2012] HCA 52
Stanford & Stanford (2012) FLC 93-518
Division: Division 2 Family Law Number of paragraphs: 172 Date of hearing: 19 – 21 May 2025 Place: Adelaide Counsel for the Applicant: Mr Richards Solicitor for the Applicant: Boylan Lawyers Solicitor for the Respondent: Litigant in Person ORDERS
ADC 883 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS WILLIS
Applicant
AND: MR MULDER
Respondent
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
17 JULY 2025
THE COURT ORDERS THAT:
1. Within 90 days of the date of these Orders the Husband pay to the Wife the sum of $570,470 (“the settlement sum”).
2. Contemporaneously with the husband’s payment of the settlement sum pursuant to Order 1, the Wife shall do all things necessary at her expense to remove her caveat lodged against the property at B Street, Town C, South Australia, being the whole of land contained in Certificate of Title Volume …/Folio … (“the Town C property”).
3. In the event the Husband fails to comply with Order 1 above the parties shall do all things necessary to effect the sale of the property and for that purpose the following shall apply:
(a)The property shall be listed for sale by private treaty with such real estate agent as is agreed between the parties and failing agreement within 14 days from the date of these Orders the real estate agent will be as nominated by the then Chair of the Board of the Real Estate Institute of South Australia at the request of the parties or either of them.
(b)The list price of the property shall be such amount as is agreed between the parties and failing agreement within 14 days of the date of these Orders the list price will be as nominated by the real estate agent.
(c)The sale price of the property shall be such amount as is agreed between the parties and failing agreement any offer to buy the property that is at least eighty percent (80%) of the list price shall be accepted by the parties as the sale price.
(d)The Husband is to co-operate in every way with the real estate agent in relation to the marketing of the property for sale including making the key readily available, allowing inspection of the property at all times reasonably requested by the agent and ensuring that the property is clean, neat and in good order at the time of inspection by any prospective buyer.
(e)That upon agreement being reached for sale of the property the Husband shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to him by the agent or his solicitor.
(f)The contract of sale shall provide for completion within 30 days after the date of the contract.
(g)The Wife shall do all acts and things and sign all necessary documents to remove her caveat (dealing number …) registered against the property in accordance with the terms of the sale contract so that the sale can be effected.
(h)The Respondent shall do all acts and things and sign all necessary documents to satisfy:
(i)Mr D to withdraw the caveat (dealing number: …) over the property in accordance with the terms of the sale contract so that the sale can be effected.
(ii)E Company to withdraw the caveat (dealing number …) over the property in accordance with the terms of the sale contract so that the sale can be effected.
(iii)Ms F to withdraw the caveat over the property in accordance with the terms of the sale contract so that the sale can be effected.
(i)The proceeds of sale of the property shall be paid in the following manner and priority:
(i)in payment of the agent's commission and advertising or other expenses, if any, payable on the sale;
(ii)in payment of the legal costs, water rates, and outlays relating to the sale;
(iii)in payment of 35 percent of the balance to the wife via Boylan Lawyers Trust Account;
(iv)in payment of outstanding municipal rates; and
(v)in payment of the balance to the husband.
4. In the event that the property is not sold by private treaty pursuant to Order 3 on or before six months from the date of this Order the parties shall do all acts and sign all documents as are necessary to sell the property by auction and the following shall apply:
(a)The property shall be listed with the agent appointed under Order 3 ("the auctioneer") for sale by auction within a further 3 months.
(b)The Husband shall execute all documents requested by the auctioneer for sale of the property by auction.
(c)The reserve price of the property shall be such amount as is agreed between the parties and failing agreement being reached between the parties 21 days prior to the auction, then the reserve price shall be nominated by the auctioneer.
(d)The parties shall each pay to the auctioneer one half of any sums requested for advertising or auction expenses and if one of the parties pays all of the expenses, that party shall be reimbursed from the proceeds of sale in respect of one half of such payments before any division between the parties.
(e)The Husband shall give such instructions as are necessary to a solicitor to prepare a contract of sale and provide it to the auctioneer prior to the auction no later than the date sought by the auctioneer.
(f)The Husband shall co-operate with the auctioneer in relation to the sale by auction including allowing inspection of the property at all times reasonably requested by the auctioneer and ensuring that the property is clean, neat and in good order at the time of any inspection and on the day of auction.
(g)The parties shall attend at the auction and negotiate with the highest bidder in the event of the reserve price not being reached.
(h)The sale price of the property shall be any amount in excess of the reserve price but in the event of the reserve price not being reached the sale price of the property shall be such amount as is agreed between the parties or failing agreement any offer received after the auction to buy the property at a price that is at least 80% of the reserve price shall be accepted by the parties.
(i)The Wife shall do all acts and things and sign all necessary documents to remove her caveat (dealing number …) over the property in accordance with the terms of the sale contract so that the sale can be effected.
(j)The Husband shall do all acts and things and sign all necessary documents to satisfy:
(i)Mr D to withdraw the caveat (dealing number: …) over the property in accordance with the terms of the sale contract so that the sale can be effected.
(ii)E Company to withdraw the caveat (dealing number …) over the property in accordance with the terms of the sale contract so that the sale can be effected.
(iii)Ms F to withdraw the caveat over the property in accordance with the terms of the sale contract so that the sale can be effected.
(k)The proceeds of sale of the property shall be paid in the following manner and priority:
(i)in payment of the agent's commission and advertising or other expenses, if any, payable on the sale;
(ii)in payment of the legal costs, water rates, and outlays relating to the sale;
(iii)in payment of 35 percent of the balance to the wife via Boylan Lawyers Trust Account;
(iv)in payment of outstanding municipal rates; and
(v)in payment of the balance to the husband.
5. In the event that the property is not sold at the auction pursuant to Order 4 or within 14 days after the date of the auction by further negotiation, then the Husband shall cause a further auction of the property to be held within 4 months after the date of the first auction and for that purpose the provisions of Order 4 shall apply.
6. That the parties forthwith do all such things as are necessary to list for sale and sell jewellery in the wife’s possession and to this end:
(a)The Wife shall within seven days of the date of these orders propose to the Husband three suitably qualified agents to sell the items;
(b)Within a further seven days the Husband shall elect which of such agents shall undertake the sale;
(c)Within a further seven days the parties shall forward a joint letter of instruction to the agent undertaking the sale;
(d)The parties are granted leave to provide to the agent a copy of these orders only;
(e)The method of sale shall be as agreed between the parties in writing within 28 days, and if no such agreement is able to be reached as determined by the agent;
(f)The sale price shall be as agreed between the parties in writing within 28 days and if no such agreement is able to be reached as determined by the agent;
(g)After payment of all costs incurred by the agent for such sale including any advertising costs, the net proceeds shall be provided as to 35% to the Wife and 65% to the Husband.
7. Except as otherwise provided for in these Orders, the Wife and the Husband each be the sole legal and beneficial owners of all items of all property including household contents, money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively to the exclusion of the other.
8. Except as otherwise provided for in these Orders, the parties are each solely entitled to the exclusion of the other to all financial resources of whatsoever nature and kind in their name, possession, or control and to which they are or may become entitled.
9. Except as otherwise provided for in these Orders, each party shall retain to the exclusion of the other, sole responsibility for all and any liability currently in their names.
10. 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.
11. In the event any party fails or neglects to execute any document so as to give validity and effect to these orders, a Judicial Registrar of this Court is empowered pursuant to s 106A of the Act to execute such document on behalf of the party in default upon being satisfied of such failure and neglect by way of affidavit evidence, and the party in default shall pay the reasonable costs of the party making application pursuant to this order as assessed by a judicial registrar on a solicitor client basis.
12. Save as to costs, the Application filed on 28 February 2023 as amended on 13 May 2024 and the Response filed 31 July 2023 are dismissed.
13. Should any party wish to press an application for the costs of or incidental to these proceedings, they are to file and serve within 28 days of the date of these orders an Application in a Proceeding specifying the orders sought and any affidavit in support thereof of no more than ten pages and five annexures.
14. In the event an application is filed pursuant to Order 13, each of the parties are to advise in their relief sought if they require an oral hearing as to the issue of costs. In the event no such order is sought, the application will be heard and determined on the papers in Chambers and directions will be made for the preparation of written submissions.
15. In the event that no application is filed pursuant to Order 13 then all applications for costs will be and are hereby 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MURDOCH
INTRODUCTION
Both the applicant wife and respondent husband in this matter seek orders for property adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) subsequent to the breakdown of their near 15-year marriage.
The parties commenced cohabitation in May 2005, married in 2006 and separated on a final basis on 24 June 2021. There are two self-supporting adult children of their union; Ms G and Mr H aged 21 and 20 years respectively.
Both parties were formerly married and reached property settlements with their respective former spouses. The wife has one adult child from her prior marriage who lived with the parties for approximately eight years of their relationship. The husband has three adult children from his prior marriage who never lived with the parties.
The parties agree as to how their property should be adjusted in specie. The issue is what sum is to be paid by the husband to the wife. The wife seeks that the property of the parties be adjusted as to 65 percent in her favour such that the husband pay her the sum of $1,245,000. The husband seeks to pay the wife an adjusting sum of $342,688 in two tranches.
For the reasons that follow the wife will receive 35 percent of the property identified in these reasons, being payment to her by the husband in the sum of $570,470.
THE EVIDENCE
The applicant wife relied upon the:
·Amended Initiating Application filed 13 May 2024;
·Outline of Case filed 13 May 2025 (the “Wife’s Outline of Case”);[1]
·Affidavit of herself filed 18 November 2024;
·Affidavit of Ms J filed 18 November 2024;
·Affidavit of Mr K filed 18 November 2024;
·Financial Statement filed 2 May 2025;
·Affidavit of Single Expert Mr L (the valuer of the real property of the husband) filed 18 April 2024;
·Affidavit of Single Expert Mr N (the valuer of the goods and chattels in the husband’s possession) filed 15 March 2024; and the
·Affidavit of single expert Mr M (the livestock valuer) filed 12 March 2024.
[1] Exhibit W1
Whilst not originally recorded in the Outline of Case, the wife relied upon a further affidavit of Mr L providing an updated opinion as to the value of the real property in the husband’s name filed 29 November 2024. It became apparent during the course of the hearing that this further report was not obtained jointly by the parties, and thus leave was required. Whilst opposing the granting of leave to make such oral application, upon its granting the husband withdrew his objection subject to the availability of Mr L for cross-examination.
After discussions with the husband at the commencement of the matter he relied upon the:
·Response to Final Orders filed 31 July 2023;
·Outline of Case filed 8 May 2025;[2]
·Affidavit of himself filed 4 November 2024;
·Financial Statement filed 8 May 2025; and the
·Costs Notice filed by his former lawyers on 23 August 2023.
[2] Exhibit H1.
THE DISPROPORTIONATE MATERIAL OF THE PARTIES
The wife has been represented throughout the proceedings by the same firm of lawyers. The husband has had two different firms acting for him in the proceedings prior to becoming a litigant in person on or around 14 May 2024. He was assisted throughout the final hearing by his son from his prior marriage.
The volume of material filed and proposed to be adduced into evidence by each of the parties to ground the competing relief sought by them was outrageously disproportionate and unnecessary. The wife’s trial affidavit was 412 pages including annexures. Her proposed tender bundle of six folders totalled over five thousand pages. The husband’s affidavit was 747 pages including annexures. His proposed tender bundle comprised two folders.
A direction was made at the commencement of the hearing confirming that contained within rule 8.15 of the Federal Circuit and Family Court of Australia (Family Law)Rules2021 (“the Rules”); that no annexures to affidavits or exhibited documents would be adduced into evidence until they were tendered. From the in excess of six thousand pages contained in tender bundles and annexures or exhibits, only six percent, or 353 pages, were adduced into evidence. To compound the waste, neither party made a submission directed to any of the said tendered material.
Two documents were filed by the wife; a Joint Chronology[3] and a Draft Joint Balance Sheet.[4] They were adduced into evidence absent objection. In these circumstances I will rely upon the factual assertions contained in this Joint Chronology when it is in contrast to the parties’ filed affidavit evidence. In any event, any discrepancies in dates that are asserted by the parties that conflict with the Joint Chronology (such as the date the parties commenced living together) is not material to the justice and equity of the adjustment of property between the parties.
[3] Exhibit J2.
[4] Exhibit J1.
BACKGROUND
The husband was born in 1952 and is presently 73 years of age. The wife was born in 1966 and is 58 years of age.
The husband in his youth was diagnosed with a myriad of health issues., including:
·osteomyelitis in 1958;
·asthma in 1960;
·hearing loss and tinnitus in both ears in 1972; and
·hypertension during 1980.
In 1963, at the age of eleven years, the husband was diagnosed “as a high functioning autistic dyslectic (sic).” [5]
[5] The husband’s primary trial affidavit, paragraph 112.
The husband purchased farm machinery in 1985. In 1986 the property situate at B Street, Town C (“the Town C property”) was purchased by the husband in his sole name. The husband registered the business name O Company for the purpose of running cattle on the property.
In 1987 the husband suffered a heart attack and stroke.
In late 1988, the husband transferred the Town C property to his mother, Ms P, for the sum of $295,000.
In 1990 the husband declared bankruptcy.
Q Pty Ltd was established by the husband in 1990 (“the Australian Company”).
In 1993 the husband suffered a multi-fractured wrist and elbow, restricting his movement and weight bearing strength and capacity.
In late 1993 the husband’s mother transferred the Town C property back to the husband for the sum of $350,000. The total costs of the acquisition was $364,000 (including stamp duty). To fund such acquisition the husband obtained a loan from his mother of $200,000, a loan from “R Company” secured by a mortgage against the property, and personal loans of $14,000 from unnamed family members.[6]
[6] The husband’s primary trial affidavit, paragraph 63.
In 1996 the husband’s mother declared bankruptcy. During 1996 the husband discharged the loan secured by way of mortgage over the property, refinancing by way of a loan from his aunt.[7]
[7] Ibid, paragraph 64.
In 1997 the wife’s child from a prior relationship, Ms S, was born.
In 1998 the husband was diagnosed with type two diabetes requiring daily injections and medication.
In 2000 the husband purchased Motor Vehicle 1.
The parties commenced their relationship in either 2001 or 2003.[8] Both dates are asserted in the Joint Chronology. Little turns on this factual dispute and neither party asked that I make a factual finding with respect to same.
[8] Exhibit J2.
In 2002 the wife, together with her daughter Ms S, moved into rental accommodation in Adelaide.
From mid-2003 to approximately 2012 the husband upgraded firefighting pumps, top dam pumps, underground water pipes and a firefighting system on the Town C property. The cost of these works (of an unknown quantum) was funded by the husband’s aunt.[9]
[9] Husband’ primary trial affidavit, paragraph 65.
The parties’ eldest child, Ms G, was born in 2003. The wife took approximately seven months unpaid maternity leave and supported herself with her Centrelink entitlements, monies she had received from her prior property settlement, and financial support received by the husband of an unquantified amount.
The parties, the wife’s daughter Ms S, and the parties’ daughter Ms G commenced living together at the Town C property in 2005.[10]
[10] Exhibit J2.
The parties’ youngest child, Mr H, was born in 2005.
The parties were married in 2006.
In 2007 a storm damaged rotunda was replaced and a shed and large deck built on the Town C property, funded by the husband’s earnings.[11]
[11] Husband’ primary trial affidavit, paragraph 66.
In 2009 the husband was diagnosed with sleep apnoea requiring him to use a C-Pap unit of a night to alleviate his breathing difficulties.
In 2010 the husband inherited from his late mother furniture and jewellery.
In mid-2015 a caveat in the wife’s name was lodged against the title of the Town C property. There is a dispute as to the genesis of the registering of this caveat.
In mid-2016 the husband was diagnosed with a medical condition. At this time he underwent surgery.
In late 2016 the husband inherited from his aunt, Ms U, the sum of $2,276,250. In addition, the loan from his aunt secured by way of mortgage over the Town C property in the sum of $186,000 was forgiven. Findings as to the use and application of these monies are recorded later in these reasons.
In 2016 the husband contracted Mr V, a builder, to construct a steel shed for $265,000 on the Town C property. The cost of the construction of this shed was funded from the husband’s inheritance. The husband’s inheritance was further applied to the approximately $20,000 cost of having the property upgraded from two phase to three phase power.[12]
[12] Husband’ primary trial affidavit, paragraph 73
In 2017 the husband applied approximately $49,000 of his inheritance monies to purchase Motor Vehicle 2.
In May 2018 the wife received a sum of “$68,949.60 after legal costs”. The legal costs expended by the wife on the Family Provision Act Claim is not in evidence. It was undisputed that these monies were spent on the family and household expenditure.
In November 2019, both parties entered into a building contract with Mr V, the person who built the steel shed on the Town C property, to undertake renovations to the property. The parties and children vacated the premises for such renovations to occur in November 2019. The husband returned to the property in September 2020.
From his inheritance monies in late 2019 the husband purchased a second Motor Vehicle 3 for approximately $51,000.
In 2011 the husband incorporated Q Pty Ltd in Country W. In 2015 the husband incorporated X Company in Country W. The husband was the only shareholder and office bearer of these financial entities.
Y Company was engaged by the parties as an independent building consultant to review the additions and renovations to the Town C property. The resulting report concluded that the property has:
…a large number of minor defects…The incidents of major defects is higher than typically observed on a project of this size and budget…Major defects require immediate attention to avoid causing harm to people or ongoing deterioration to the property.[13]
The rectifications required to the Town C property have not been undertaken.
[13] Exhibit J4, page 3.
The wife undertook a twelve-month health care course in 2021 and began casual work as an allied health worker in May 2021, one month prior to the parties’ separation.
On 24 June 2021 the parties separated. The wife and children relocated to another property in Adelaide. The husband remained living at the Town C property.
The wife sold Motor Vehicle 3 in 2021 for approximately $39,000 and purchased Motor Vehicle 4 , being the wife’s current vehicle on the balance sheet below.
The husband closed the parties’ joint bank account with Z Bank on 8 July 2021.
The builder Mr V abandoned the renovations to the property in 2022. The reason for this is disputed. The building works remain incomplete. The work and construction in many areas does not comply with the Australian Standards building code. No certificate of occupancy has been provided. The renovations have cost some $1,250,000 to date.[14] It is uncontested that the funding of the renovations was sourced from the husband’s 2016 inheritance.
[14] Husband’ primary trial affidavit, paragraph 76.
In October 2022 the husband commenced receiving an old age pension. In December 2022 the husband’s carer, Mr AA, moved into the Town C property with the husband.
The wife commenced property proceedings on 28 February 2023.
In mid-2023 the wife was offered a permanent part time position as an allied health worker.
In late 2023 the husband was diagnosed with a medical condition. In late 2023 the husband underwent surgery to have a stent placed into a blocked blood vessel in his heart. In late 2023/ early 2024 he underwent further surgery.
The matter was not reached when listed for final hearing on 3 December 2024 and was marked for final hearing with priority for four days.
On 5 May 2025 the husband sold cattle by agreement with the wife.
The final hearing was heard by me over three days commencing 19 May 2025.
THE STATUTORY REGIME
The hearing of this matter was conducted prior to the amendments to the Family Law Act 1975 (Cth) (“the Act”) pursuant to the Family Law Amendment Act 2024 (Cth).
I should only make orders pursuant to s 79 of the Act if I am first satisfied that it is just and equitable to do so. It must not be assumed that the parties’ rights or interests should be different to that which already exists: Stanford & Stanford (2012) FLC 93-518 (“Stanford”).
In determining claims for alteration of property interests pursuant to s 79, I am required to:
(a)Make findings as to the identity and value of the property, liabilities, and financial resources of the parties, or either of them, at the time of the hearing and determine the legal and equitable interests of the parties in such property;
(b)Consider, identify and assess the contributions by the parties to the acquisition, conservation and/or improvement of their property, including financial and non-financial contributions and any contributions to the welfare of the family before, during and after the relationship came to an end;
(c)After consideration of altering the interests in the property pool on the basis of contributions, to consider whether there should be any further adjustment to either of the parties on account of the matters set out in s 79(4)(d)-(g) of the Act, including any relevant considerations pursuant to s 75(2) of the Act; and
(d)Ensure that the orders to be made are just and equitable in all the circumstances.
THE PARTIES’ LAY EVIDENCE
I observed the parties in person over the course of the three-day trial.
The wife was notably delayed in responses to the questions asked of her. Her response to even the most basic of questions after a long pause was “I don’t recall”, such that I paused her cross examination out of concern and queried whether she was having trouble with her recall. Whilst acknowledging the husband was a litigant in person and the implicit difficulties that often accompany such a position, it was my impression that the wife was loath to answer any questions for fear such answer may not assist her case. She did not present to me as an impressive or helpful witness.
Ms J, a friend of the wife who undertook some typing work for the husband, was cross-examined by the husband. The relevance of a significant proportion of her affidavit deposing to her providing assistance to the husband, that ceased in 2021 prior to separation, was not made apparent. Her antipathy towards the husband was palpable during her cross-examination. I had cause to comment on her smirking and laughing whilst sitting in the back of the court room as she observed the husband’s later cross-examination, and she absented herself from court. Ms J is clearly aligned with the wife. I place little weight on her evidence.
The wife submitted if the evidence of she and the husband are in conflict, “the extraordinary nature of the [husband’s] deliberate and calculated dishonesty” is such that I would in all instances accept the wife’s evidence over that of the husband. She submitted that the husband’s assertions of the “more significant” items of property, being the Town C property and jewellery being held on trust, not being property available for adjustment is “irreconcilable” and grounds a finding that the husband’s evidence:
…is a concoction of lies and deliberate misstatements contrary to the truth. Not inadvertent misstatements, not matters that can be the subject of a greater or lesser level of understanding. In light of the evidence… there is no basis made out for any of the contentions he has made. We say that what he has gone about doing post-separation, from the first document he has filed in the Court, is to distance himself from the three more significant items of value in the whole of the proceedings…
We say that the extraordinary attempt of [Mr Mulder] to deceive his former wife, deceive his own lawyers who drew that July 23 affidavit, and to deceive the Court, and continue to do so this afternoon on day three of the trial, and to have abandoned after the commencement of the trial at 10:00am on Monday, the claim that all three of these items – the cattle, the collectibles and the land – are all held by him pursuant to trusts – to abandon that in those circumstances is scandalously dishonest..
I accept that the husband has previously asserted during the course of this litigation that the Town C property and the contents therein were held by him in his capacity as trustee for two trusts; Ms P Trust No 1 and Ms P Trust No 2 and as a beneficiary he was only entitled to 1/11th share of the property in his possession or held legally by him. In 2024 the husband asserted that the trusts were created under a will and were thus testamentary trusts.
Whilst pursuing his assertions at to the holding of property on trust for the near two years of litigation in this court, and appearing to maintain this view during cross-examination when referring to the existence of his late mother’s will as supporting the existence of a testamentary trust, the husband was clear in his oral evidence that he had abandoned any trust contention because he was unable to produce documents to support it. The husband gave unchallenged evidence that the trust documents and records were destroyed in a flood in the Suburb T property after a “large hot water service exploded in the ceiling”, which “probably” occurred in 2016, “when Aunt [Ms U] was alive.” Further, his trial affidavit, filed prior to that of the wife, does not mention a trust in any form. The Draft Joint Balance Sheet, tendered without objection, does not record any assertions as to the existence of any trusts.
Having observed him in the witness box read out his mother’s will and give evidence as to his understanding of the contents, I am not satisfied on balance that I could find that the husband, whilst unable to provide any evidence to support his assertions, did not believe them. I am thus not satisfied that the wife has established to the requisite degree that the husband was untruthful or fabricated his evidence as to his belief of the existence of a trust. The blanket credibility finding sought by the wife is not established. The evidence of the parties when in conflict of relevant issues will be determined on a consideration of the evidence and submissions directed to that issue.
As to the balance of the husband’s oral evidence, he had difficulty at times in containing his evidence to responding to the question asked of him, taking the opportunity instead to try and give evidence supporting his position. I found him to be evasive in his answers. Whilst his evidence was unchallenged that he has “holes” in his memory, his answers were unhelpful and I did not find him to be an impressive witness.
DISCLOSURE FAILURES
The husband conceded in cross-examination that he had not provided to the wife any documents relating to his purchasing and selling of cattle, nor a bank statement received by him from BB Bank last year as “he didn’t think the account [was] current – it’s dead”.
The husband also conceded that he has not provided to the wife any documents relating to the receipt by him in July 2021 and March 2022 of funds into his bank account. He said that the reason he has not done so was because they were not requested of him. This evidence was not challenged.
The husband deposes:
50. I received into the [Q Pty Ltd] holding account on the 7th July 2021, a Swift […], funds transfer from the [Country CC] totalling $45,850.00. These funds were for parties within [Country DD], were offset against funds as retained by [Mr EE] and [Mr FF] in respect of the [Country CC] endeavour.
51. On the 26th August 2021, I received via a Swift. […] from [GG Company Country CC] totalling $50,000. for [Mr EE] and [Mr FF] in [Country DD], were offset against monies as retained by [Mr FF] in respect of the [Country CC] endeavour.
52. The monies received into the account from principals based in [Country CC] were off set, I receiving a fee of $5,000.
53. On the 2nd March 2022, I received from [HH Pty Ltd] an Osko payment on behalf of [Mr JJ], being repayment investment totalling $40,000.
54. On the 22nd October 2022, I received an Osko payment from [HH Pty Ltd].from [Mr JJ], of $50,000 being recorded as a gratuity.
In cross-examination the husband deposed that post-separation he has not received any income for the provision of advice to persons outside Australia; he has received back funds lent by him with interest, and a “reward” from profits received by a third party after he and his brother and son contributed funds towards the venture. The “reward” of $50,000 was “shared out” between himself, his brother and son. The husband was unable to recall the manner and proportion in which this sum was distributed.
The extent of the wife’s submissions as to the findings that ought be made arising from the husband’s disclosure failures were that:
·“As to income, we say…There are substantial sums which have come to [the husband] and which he has expended on himself in their totality.” I accept that the above evidence deposes as to monies received by the husband post separation. I do not accept that the sums received by him have been substantial. This will be considered later in any adjustment to the contribution finding.
·The “history of allegations of non-disclosure that has been recorded over and over again on the court file… and [the husband] has a bank account in Country W that he has chosen not to disclose... there is enough material here...to draw the inference that the non-disclosure has been wilful and calculated.”
It is clear that the wife was aware of the existence of this account as she complained of the husband’s lack of disclosure of “his BB Bank account” in her Trial Affidavit. I rejected the proposed tender by the wife of a document headed the “BB Bank” as it appeared to be in the Country KK language and was not translated. There is no evidence as to how the wife came into possession of the said document.
Whilst the husband made the above concessions, the evidence does not enable me to make a finding as to the husband’s knowledge of his disclosure obligations. He responded on several occasions that his failure to produce specific documents was because he was not asked to. The husband’s awareness of any specific orders to provide documents was not explored, nor the husband’s mandatory obligations pursuant to the Rules.
It is important to engage in the particular facts of the non-disclosure and the inferences that should be drawn from them. The wife made no clear submission as to the findings sought on this subject matter. She did not submit that a finding should be made as to the property of the parties not being identified on the balance sheet save for the husband’s jewellery and an account with BB Bank. The former has been the subject of a finding. As to the latter, I am not satisfied to the requisite degree on a consideration of all the evidence that BB Bank account contains anything other than a nominal amount. The wife did not submit that the husband’s disclosure failures prevented an understanding of the use and application of his funds post separation.
The husband submitted that the items of personalty in the wife’s possession should be on the balance sheet as he attempted to have them valued but the wife refused, despite the fact that the husband’s items were subject to valuation. During cross-examination, the wife could not answer why there was no valuation undertaken of her chattels, however later conceded that she has musical instruments in her possession to a value of $20,000 (the value of which was agreed by the husband) and stated through her counsel in submissions that the goods and chattels in her possession were not valued as “it is her position that it was not economic to value.” The value of the musical instruments as conceded will be placed onto the Balance Sheet as recorded below.
The wife’s position is extraordinary having regard to the significant focus in these proceedings by her of the husband’s non-disclosure and the valuing of approximately 237 items in the husband’s possession including, among other trivial items:
·An “old office chair” valued at $15;
·A “painting in frame” valued at $125;
·A “reproduction painting” valued at $40;
·A “mini sketch of kitten” valued at $30;
·“Assorted nick nacks”;
·A “small lamp” valued at $5;
·An “vacuum (not working)” valued at $10;
·A “Reproduction Victorian style waste bin” valued at $5; and
·A sandwich press and toaster oven.
I am satisfied and find that the wife also has property that she has not disclosed and has thus not been the subject of valuation.
Callinan J in Chang v Su [2002] HCATrans 446, a special leave application, succinctly summed up the dilemma facing the court in this matter, saying:
“It does not matter what the principle might be said to be, a court has to do the best it can. It does the best it can, having regard to the evidence that is adduced and if the parties are not frank then naturally there is going to be a measure of imprecision about any findings that the court can make”.
The failure by both parties to fulfil their mandatory obligation to provide a continuing full and frank disclosure of their financial circumstances means there are significant issues with my ability to determine the true value of the parties’ superannuation property and non-superannuation property. Contrary to clear orders and directions made by this court, valuations have not been obtained of those items of property that are the subject to a dispute as to their value. Despite this issue being clearly raised by me several times during the course of the final hearing, neither party sought an adjournment to allow further disclosure or the obtaining of valuations.
This matter has been on foot since February 2023. Trial Directions were made in the matter on 20 May 2024 and were amended on 26 November 2024 and 3 December 2024, when the matter was not reached. The parties have had ample opportunity to ensure the evidence that grounds the relief they each seek is before the court. Having regard to the overarching purpose of the Court to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible pursuant to s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and Rule 1.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, I will simply have to determine the superannuation and non-superannuation property of the parties as best I can in the circumstances of the manner in which the parties have conducted the litigation.
THE PROPERTY OF THE PARTIES
Concessions Made
By the conclusion of submissions various concessions and agreements were reached as to the draft Balance Sheet recording the property of the parties available for adjustment:
·The two items of jewellery gifted to the wife by the husband during the relationship a pendant and a ring will be sold and after selling costs the proceeds will distributed in the same proportion as the overall percentage adjustment to be made to each of the parties. The item will be removed from the balance sheet.
·The value of the wife’s motor vehicle was agreed at $5,000.
·Motor Vehicle 2 in the husband’s name and the plant and equipment on the husband’s property are included in the valuation of the husband’s household contents and will thus be removed.
·The listing of the livestock will be removed as they have been sold.
·The wife conceded that O Company, a business name only registered to the husband, should not be on the Balance Sheet and will be removed.
·The husband conceded various liabilities in his name, being a Visa card debt of approximately $2,000, Health Insurance of $1,574, outstanding council rates of $6,900 and a debt to LL Organisation of $1,200, in addition to his legal fees and disbursements of $89,800, should not be on the Balance Sheet. All items will be removed from the Balance Sheet and considered in any adjustment to the contribution findings as recorded below.
Neither party conceded as to the savings asserted by the other - $57 for the wife and $113 for the husband. No submissions were made as to same. I have removed them from the balance sheet as their value is de minimis.
Balance Sheet Findings
Thus, the joint balance sheet identifying the property of the parties with the disputed items in bold and the determinations as to same are recorded below:
Ownership
Description
Wife’s
Value
Husband’s
Value
Determination
ASSETS
1
Husband
Town C
$1,650,000
$1,425,000
$1,650,000
2
Husband
Jewellery
NK
Removed
3
Wife
Motor Vehicle 4
$5,000
$5,000
$5,000
4
Husband
Household contents, plants and machinery,
Motor Vehicle 2
$93,950
$93,950
$93,950
5
Husband
MM Company shares
$2,627
$2,627
$2,627
6
Wife
Musical instruments
$20,000
$20,000
Total
$1,771,577
$1,526,577
$1,771,577
LIABILITIES
Ownership
Description
Applicant Value
Respondent Value
Determination
7
Wife
HELP Debt
$3,253
$3,253
$3,253
8
Husband
Loan from Mr D
Nil
$58,500
Removed
9
Husband
NN Company Loan (livestock)
Nil
$5,000
Removed
10
Husband
OO Company
Nil
$3,449
Removed
11
Husband
PP School Fees
Nil
$15,538
$14,435
Total
$3,253
$85,740
$17,688
SUPERANNUATION
Member
Name of Fund
Type of Interest
Applicant Value
Respondent Value
Determination
12
Wife
Super Fund 1
Accumulation
$33,299
$33,299
$33,299
Total
$33,299
$33,299
$33,299
NET TOTAL PROPERTY (excluding superannuation)
$1,768,324
$1,440,837
$1,753,889
NET TOTAL PROPERTY (including superannuation)
$1,801,623
$1,474,136
$1,787,188
Item 1: B Street, Town C, SA 5251
The Town C property has the following caveats listed against it:
·Beneficiary: Ms Willis (Dealing Number …): lodged in June 2015 by QQ Law Firm to protect the wife’s asserted interest in the property.
·Beneficiary: Mr D (Dealing Number …): lodged in July 2023 to secure the funds advanced to the husband by Mr D.
·Beneficiary: E Company (Dealing Number …): the husbands’ prior legal representatives for unpaid legal costs which are excluded from the balance sheet.
·A judgement in the favour of Ms F: the unpaid fees to NN Company recorded in item 18 of the balance sheet.
Two valuations were obtained by the real property expert of the Town C property. As the second updating valuation was obtained solely on the instructions of the wife leave was required for the wife to rely upon same. The husband’s original objection to leave being granted was later withdrawn conditional on the real property expert being available for cross examination and leave was thus granted to the wife to rely on the later valuation.
On the joint instructions of the parties the property was valued “as is” on 26 September 2023 at $1,425,000 (“the September 2023 valuation”).
The second updating valuation of 11 November 2024 valued the property “as is” at $1,650,000 (“the November 2024 valuation”).
The likely value of the property if the building works were completed is “somewhat subjective given the uncertainty of costs involved”.[15] That said, the expert opined that a likely range of the property value could be in the order of $1,850,000 to $2,000,000. As a detailed cost estimate from a suitably qualified person as to the likely cost to remedy the defects had not been provided, the expert made an allowance for rectification costs “in the order of $200,000 to $300,000.”[16]
[15] Affidavit of Mr L filed 29 November 2024 page 54
[16] Ibid, page 57
On the instructions of the wife, the expert did not undertake a further inspection of the property and relied upon its presentation being consistent with that observed in September 2023. In her letter of instruction, the wife provided various “comparative sales for your consideration when revising the valuation on the above-mentioned property.” Appropriately, the expert did not rely upon these asserted comparable sales, opining in any event that they were not generally comparable to the subject property. He instead relied on his own sales comparisons that he considered, in his expertise, to be the most appropriate when determining the current value.
The wife accepted the value of the property as opined in the November 2024 “as is” at $1,650,000. The husband asserted that the property value should be $1,425,000 as opined in September 2023.
The real property expert was cross-examined by the husband. Whilst asserting that the value of the property should be as opined by the expert in September 2023, the husband submitted that “foundation” of the increased valuation was flawed “in respect of the investigation by the valuer at the time of the valuation” as the expert had not inspected certain aspects of the property including the fences, paddocks to the rear, the creek, the dam and the windmill when undertaking the September 2023 valuation. It was not put to the expert that the value ascribed to the property would be reduced because of the failure to physically inspect those aspects of the property.
The expert did not agree that the potential costs of rectification as allowed for by him had to be detracted from the ascribed opined current value of $1,650,000. He confirmed in his oral evidence that the value of $1,650,000 was the market value of the property “as is” and he had considered such defects recorded in the Y Company Report, including that the improvements, whilst in their current condition, presented a risk to a potential purchaser, when opining as to its current value.
The husband’s challenges to the expert’s opinion as to value of the property were not made out. I find that the current value of the Town C property is $1,650,000.
Item 2 – Jewellery in the Husband’s Possession
The wife gives detailed evidence as to the existence of a jewellery collection in the husband’s possession and stored in a worn case during the relationship which included watches, rings and a brooch. The wife deposes to have been unaware where the jewellery had originated from and that the husband was “very secretive” about it. Over the course of the relationship the husband gifted the wife two pieces of jewellery from this collection; one piece for Christmas and another for her birthday. This evidence was not challenged by the husband and I so find. Those two items are on the balance sheet and are to be sold as recorded above by agreement between the parties.
It was uncontested that the husband also gifted Ms J and Ms S a piece of jewellery each of their choosing from the collection in the bag. Ms J also gives written evidence that the husband brought a “worn material suitcase” out at a birthday celebration at the parties’ home:
30.…Inside the suitcase were calico bags containing numerous pieces of jewellery, each individually wrapped in clear plastic bags.
31.The collection included gold rings adorned with [precious gems], necklaces, bracelets, and watches . [Mr Mulder] claimed some pieces were family heirlooms from his father and others were valuable collectibles.
Ms J was not cross-examined by the husband on her evidence as to the jewellery collection and it is accepted.
The only mention of any jewellery in the husband’s written evidence is as follows:
27. Before cohabitation and during my marriage with the Applicant I entrusted and provided the Applicant with items of jewellery to a value of $80,000.
…
69. My mother, died in [Suburb RR], [in] 2010. Under her last Will and Testament, I received a small inheritance, being furniture and jewellery approximately worth about $5,000.
While the husband’s trial affidavit was filed prior to the wife’s, orders were made for valuations of contested items, clearly including the jewellery, on multiple occasions:
·On 5 April 2023, orders were made that a single expert be appointed pursuant to Rule 7.04 to value any disputed asset, with a joint letter of instruction to be sent no later than 17 April 2023;
·On 12 July 2023, the matter was listed for Conciliation Conference. Notation F recorded that
The Court is informed that all issues as to valuation will have been attended to.
·On 13 September 2023, orders were made with a notation that issues regarding valuation in the asset pool remain at large, despite the above orders.
·Notably, on 31 January 2024 the parties were directed by the court to undertake a valuation of various items of jewellery, including the “extensive collection of jewellery stored in a carry on wheeled bag. These pieces include precious gems in the form of rings, pendants, necklaces stored in separate calico bags according to the jewellery type.”[17]
[17] Orders of 31 January 2024.
The husband has not provided an itemisation of these items, nor made them available for the purposes of valuation for these proceedings. He has not addressed why he has not done so, nor has he provided evidence as to his position on the existence of the jewellery in his possession in his affidavit. The wife deposes that the husband asserted by way of correspondence dated 29 February 2024 that he has no knowledge of the current location of those items, and he presumed that the wife had collected them on one of her trips to the property. The husband conceded in the course of cross-examination that “one or two bits” of the jewellery contained in the “cloth bag” originated from the estate of his great aunt Ms SS in mid-2023. There was otherwise no further questioning of the husband as to the jewellery in his possession.
The husband conceded from the bar table just prior to submissions that he holds jewellery in his possession to the value of $10,000.
I am satisfied, grounded on the above recorded reasons, that the husband has an unknown quantum of jewellery in his possession that he has not disclosed to the wife. The wife submitted that the husband’s concession during the hearing would be “a general manner under submission without further quantification”. Given the absence of agreement as to the value, and an obvious lack of expert valuation to attribute some monetary value, the jewellery in the husband’s possession will be removed from the Balance Sheet. It will be considered later in these reasons pursuant to s 75(2)(o) of the Act.
Item 8: Loan from Mr D
As recorded above the husband asserts he owes monies to Mr D who lodged a caveat against the Town C property post-separation, recording that he claims:
An estate or interest as charge pursuant to an agreement in writing made between the caveator and the caveatee wherein the caveatee agreed to charge their estate and interest in favour of the caveator dated 11 July 2023.
The existence of the loan and advancement of any funds is contested by the wife.
There is a loan agreement in evidence (Exhibit H15) dated 11 July 2023 executed by the husband only. The husband’s Financial Statement merely indicates at “Part G (Personal Expenditure) – Mortgage payments/rent” that a loan is owing:
NAME OF LENDER/LANDLORD [Mr D]
Loan $50,000 @ 6% per annum fixed payable upon discharge see annexed documents […]FS 3
(As per original)
The wife deposes that in correspondence dated 29 February 2024 the husband indicated that:
·He did not hold a countersigned copy of the loan agreement and Mr D was not in Adelaide for him to request same;
·Non-capital purchases of $15,728 between July and October 2023 were paid for by loan funds from Mr D; and
·The repayment date for the loan was varied by verbal agreement.
Whilst the husband’s evidence was not challenged in cross-examination, he bears the evidentiary onus to establish on the balance of probabilities a credible foundation as to the existence of this loan and its terms. The husband has been unable to produce a loan agreement executed by both himself and Mr D. The caveat placed on the property by Mr D was lodged post the parties’ separation. There is no record or reconciliation of such funds received by the husband, nor as to how such funds were expended. Mr D did not give evidence in the proceedings. I am not satisfied that the husband has met his evidentiary burden to ground a finding as to the existence of any such loan. It will be removed from the Balance Sheet.
Items 9 and 10: NN Company (Livestock) and OO Company Loans
Both loans relate to the purchase of livestock and livestock feed. The wife accepts that the total sum of $8,449 remains owing but submits that these liabilities should not be brought to account as matrimonial debts. I accept this submission in circumstances where the husband appears to have engaged in buying and selling livestock, either for himself or on behalf of his son Mr H as he asserts, subsequent to the parties’ separation. There is no accounting as to how these debts arose. They have arisen post separation. It will be removed from the Balance Sheet and considered in any adjustment to the contribution findings.
Item 11: PP School Fees
The parties’ children attended PP School on the husband’s funding. After being shown an outstanding invoice from PP School recording an outstanding debt of $14,434.99 (Exhibit J5) for Mr H’s school fees, the wife conceded in cross-examination that this is the sum owing but asserts that it should not be on the Balance Sheet, submitting that during the relationship the parties had an implicit agreement that the husband would be responsible for paying the children’s school fees. Having regard to their respective financial positions, she submits it would have been appropriate for him to pay as and when they fell due. The husband submits that this liability should be paid by the wife as both parties contracted with the school to be joint and severally liable for the school fees, and he has paid his half.
This is a liability that arose in respect of one of the parties’ children during the course of the relationship, and as such it is a matrimonial liability, despite the repeated submissions of counsel for the wife that the liability arose on the husband’s “absolute insistence.” It will remain on the Balance Sheet as a debt owed by the parties jointly and will be rounded to the nearest dollar.
Conclusions as to the Balance Sheet
The value of the found parties’ non-superannuation property is $1,753,889.
I find that the value of the superannuation property is $33,299.
The total value of the known non-superannuation property and superannuation property of the parties is $1,787,188.
The total value at law of the found property held by the wife prior to any adjusting order is $55,046.
The total value at law of the found property held by the husband prior to any adjusting order is $1,732,142.
THE COMPETING PROPOSALS
The wife seeks orders that:-[18]
[18] Amended Initiating Application filed 13 May 2024
·Within 60 days the husband pay the wife $1,245,000 (“the settlement sum”).
·In default of payment of the settlement sum, the husband effect a sale of the property by private treaty in the first instance and failing that by way of auction and upon sale the proceeds of sale to be applied to make the following payments:
·agent’s commission and advertising or other expenses;
·legal costs, outstanding municipal and water rates, and outlays relating to the sale;
·any expenses to be reimbursed for ensuring the property is clean, neat and in good order;
·The sum of $1,245,000 to the wife’s solicitor’s trust account; and·the balance to the husband.·If a default sale is to occur, the husband do all things to satisfy his debt with Mr D in order to effect the withdrawal of the caveat over the property and the wife remove her caveat over the property.
·A further order is again sought that the husband pay the wife’s costs on an indemnity basis together with an order that the husband pay the wife the sum of $1,237.50 “by way of reimbursement of valuation costs.”
·Each party otherwise retain all property and superannuation interests currently in their name, power, possession or control.
·The wife retain her superannuation entitlement to the exclusion of the husband.
·The husband pay the wife’s costs on an indemnity basis.
The Husband seeks orders that:-[19]
[19] Outline of Case document filed 8 May 2025
·The valuation in the sum of $81,000 of the jewellery in the wife’s possession of a Mr TT dated 21 July 2023 be accepted as the value of same.
·The valuation of the Town C property of $1,425,000 prepared by UU Company be accepted as the value of the property.
·The wife remove the caveat over B Street, Town C at her own cost.
·The husband pay the wife $171,344 within 90 days, and a further $171,344 within 180 days (to total $342,688).
·The husband be permitted to utilise the Town C property as security.
·The wife return to the husband all jewellery and furniture in her possession as removed by her from the property.
·The wife discharge her debt to PP School and indemnify the husband with respect to same.
·The wife to be declared to hold no interest in the business and potential operations of O Company.
·The husband discharge his indebtedness to:
·Mr D;
·NN Company; and
·VV Law Firm
and indemnify the wife regarding same.
·Each party otherwise retain all superannuation property and non-superannuation property in their name.
·Each party pay their own costs.
WHETHER AN ORDER ALTERING PROPERTY INTERESTS SHOULD BE MADE
I should only make orders pursuant to s 79 of the Act if I am first satisfied that it is just and equitable to do so. It must not be assumed that the parties’ rights or interests should be different to that which already exists: Stanford & Stanford [2012] HCA 52 (“Stanford”).
I find that the requirements identified in Stanford are satisfied in this matter as:
·The majority of the known property is in the name of the husband. The current legal interest of the parties needs to adjusted when consideration is given to the contributions made by the wife as recorded later in these reasons; and
·Both parties invoke s 79 of the Act seeking orders for property adjustment.
It is therefore just and equitable in all the circumstances to make orders pursuant to s 79 of the Act adjusting the financial interest of the parties.
THE ASSESSMENT OF CONTRIBUTIONS
The wife deposes with limited detail the property held by her at the commencement of the parties’ cohabitation, bar that at the start of the relationship in 2001 she owned a second-hand motor vehicle, furniture, nominal superannuation and two musical instruments that had been valued at $4,000 on 4 July 2021. Such valuation is not in evidence. The wife continues to have musical instruments in her possession with a value of $20,000.
The wife was an educator on a casual basis between two and four days per week earning $36 an hour. By the commencement of the parties’ cohabitation the parties’ eldest child, Ms G, was just over eighteen months of age.
At the commencement of the parties’ cohabitation the husband held:
·His interest in the Town C property subject to the loan secured against the property and the loans from his mother and aunt. The husband did not contest the wife’s assertion that this property was not in a good state of repair at this time.
·Motor Vehicle 1 subject to a car loan.
·Old farm machinery being a tractor, slasher, mechanical auger, tractor carry all, tools and workshop items.
·Furniture.
At the time of cohabitation the husband was a professional of an Australian company. He was also the company secretary of a company “YY Company”. There is no evidence as to how much money the husband was drawing from this company nor are there tax returns indicating income.
Whilst I accept, as submitted by the wife, that the evidence does not permit a finding as to the value of the property held by the husband at the commencement of cohabitation, the Town C property remains in specie and is the only real property of the parties. The machinery held by him is still in situ at the property, including a tractor and attachments, a ride on mower and other assorted hand and power tools.[20] It is the husband's direct contribution of his interest in the Town C property that housed the parties and their children during the relationship. These contributions weigh in favour of the husband.
[20] Affidavit of Mr N filed 15 March 2024.
The wife took maternity leave after the birth of each child. Subsequent to her return to work after each birth she recommenced work. After Mr H’s birth this was up to two days per week. She ceased paid employment in 2018 and recommenced in February 2020 working as an educator once a week for half a day but again ceased this work in September 2020. During the relationship she contributed her income to the family.
The husband was self-employed throughout the relationship. The husband conceded during the course of cross-examination that he had executed his personal tax returns as set out above but continually asserted that he could not remember the contents of any of the documents as his “accountants did all that.” The husband deposed he was not required to file personal returns for the financial years 1988-1990, 1998 -1999 and 2001 - 2006 as he did not earn a sufficient income. His taxable personal income otherwise ranged from nil to $82,635. I find that the husband’s personal income was not significant during the relationship. The financial documents in evidence for Q Pty Ltd records that the company generally ran at a loss.[21] I accept and find that the financial entities did not earn a significant income for the parties.
[21] Exhibit W7.
The parties agreed that the wife would pay for the groceries and the husband paid all other outgoings of the family including office rent, utilities, council rates, the maintenance of vehicles, cattle fees and fuel. The husband was responsible for and paid all school fees for the children of the marriage as required, save for the amount outstanding to P School in the sum of $14,435.
In 2018 the wife contributed monies received by way of a Family Provision Act Claim of $68,949.60 to family and household expenditure. This is a factor weighing in her favour.
In 2010 the husband received by way of inheritance the jewellery still retained by the parties. The value of this is unknown as recorded above.
The most significant direct financial contribution in this matter is the receipt by the husband in December 2016 the sum of $2,276,250 plus forgiveness of the loan secured by way of mortgage over the Town C property and some furniture. It was unchallenged that the husband’s inheritance was applied in the following manner:
Construction of a shed on the property $265,000
Renovations to the Town C property $1,260,000
Purchase of Motor Vehicle 2 $39,000
Purchase of a Motor Vehicle 3 $51,000
Construction of water tanks and system $52,000
Power upgrade $20,000
Purchase of Motor Vehicle 5 $40,000
School fees for Mr H for six years $125,000
School fees for Ms G for five years $75,000
Travel to Country KK $40,000
Legal representation $20,000
Funds used by the wife $97,000
The wife correctly submitted that there no basis to determine the value of the Town C property prior to the renovations being undertaken. She further submitted that “the best inference that Your Honour can draw I would’ve thought is that there is no basis to attribute the renovations with having contributed in any way to an increase in the property.” She further submitted that “the matter was pushed ahead at the insistence of the [husband]” and the husband’s greater financial contributions are:
…counteracted by the historical balancing exercise per the accepted authorities.
It is balanced and compromised by the complete lack of evidence as to whether the more recent contributions to that property after 2019 from the building works has had any effect on the value of the property at all. The best inference is, is that it hasn’t. But there is certainly no basis for Your Honour to find that any of that expenditure from the inheritance – agreed – so the contribution is to the acquisition, conservation and maintenance of assets.
It is well established that there is no requirement for a contribution to produce a positive result (Browne v Green (1999) FLC 92-873). I find that the renovations to the property were the product of a joint enterprise. The wife executed the building contract. The funds advanced towards the renovations were to better the property that the parties occupied, irrespective of how it eventuated. While it is unfortunate that the renovations did not eventuate in the manner expected, the wife’s dissatisfaction with same does not eradicate or diminish the contribution made by application of the husband’s inheritance to the value of Town C property. The submissions of the wife on this subject matter were a disingenuous post separation forensic device, and are rejected.
The wife additionally inferentially contended that waste was occasioned by the husband on the subject matter of the renovations, submitting that the husband, as the registered proprietor, has “done nothing whatsoever to take action against the builder for defect.” It was the unchallenged evidence of the husband that he had investigated the issue of making a claim under the builder’s Indemnity Insurance and it was decided that he could not afford to pursue it further. When this proposition was put to the wife in cross-examination she deposed she could not recall the reason for not advancing a case against the builder. The wife conceded during submissions that she had never made an application to this court that she be able to pursue this avenue and later submitted that:
…is in acceptance of the circumstance that, as he portrays his position, [Mr Mulder] doesn’t have the funding. Certainly, on his deposition as to his position, he would not have had and doesn’t have the funding that would be required to finance the litigation and work proposed by [ZZ] Lawyers.
The implicit contention of the wife as to waste is not established.
The value of the inheritance received by the husband is higher than the current total known property (both superannuation and non-superannuation) of the parties. It weighs significantly in the husband’s favour.
The wife made a submission as to the husband’s payment of the school fees of the children of the relationship and the wife’s child from a prior relationship that conflated contributions made to the parties’ children and a 75(2) consideration as to the wife’s child from a prior relationship (Robb v Robb (1995) FLC 92-555):
He couldn’t possibly have made any meaningful contribution, and that is a matter that has got to be balanced against the inheritance. The inheritance has produced payment of platinum level school fees for the children, which outside of the inherited funds were clearly unaffordable. That was the position my client took, in asserting that these were expenses were incurred at the Respondent’s absolute insistence. And she is now, as she did the best she could, supporting herself on a very modest basis.
….
But there is certainly no basis for Your Honour to find that any of that expenditure from the inheritance – agreed – so the contribution is to the acquisition, conservation and maintenance of assets. The expenditure on living expenses, on high level school fees at the insistence of the Respondent - yes, modestly and again, at his insistence we say, and not challenged. When they couldn’t otherwise be afforded with respect Your Honour. The parties did not have the means to do it. But it is not a contribution to the acquisition, conservation or maintenance of the assets. My client could never have contemplated sending her child to [WW School] or any of those others. The money has been spent with ongoing exercise of poor judgement.
The submission is not accepted so far as it relates to the children of the marriage. The wife’s only evidence as to the children’s attendance at school was that the husband wanted Ms S and Ms G to attend the same school together “in keeping with his older daughters and not to cause any difficulties between the girls due to different schooling.” [22] Nowhere does the wife depose that the husband insisted on the attendance at such schools, or that the said expenditure was clearly unaffordable nor that the wife could never have contemplated sending her child to this school. The husband denied in cross-examination that he so insisted. This submission was made absent any evidentiary foundation.
[22] Wife’s Affidavit, paragraph 147.
The contribution by way of school fees was a contribution within the marriage dynamic that having regard to the husband’s periodic income was likely, by inference, sourced from his inheritance.
It was unchallenged that the wife’s inheritance in 2018 in the sum of $68,949.60 after legal costs was spent on the family and household expenditure. On the wife’s approach, if accepted, this would not be considered a contribution.
I find that the husband made significantly higher financial contributions than the wife.
Whilst the husband asserted in his affidavit that he and the wife substantially shared domestic tasks, the husband concedes that the wife made the greater non-financial and homemaker contributions to the parties’ two children. I accept on the wife’s unchallenged evidence that this contribution was significant as the parties lived on a rural property and included:
·Maintaining the house block to minimise the risk of fires. This involved repairing fences and cutting the grass during the growing season with a whipper snipper and a hand pushed mower.
·Hand watering all the gardens.
·Undertaking the transportation for the children to both school and their numerous extracurricular activities. This would require the wife to wait for hours for the children to finish their co-curricular activities.
·The husband travelled overseas on business approximately four times a year for one to two weeks at a time whilst the wife stayed home and cared for the children.
It was undisputed that the wife was responsible for and attended to supporting the husband’s medical needs including coordinating his hospital visits and appointments.
As at separation Ms G was 17 years and 7 months of age and Mr H was 16 years of age. Ms G lived with the wife for a few months after separation. Mr H lived with the wife until 21 September 2024. The husband paid minimal Child Support for Mr H from 6 December 2021 to 10 October 2023. This weighs in the wife’s favour.
The husband has continued to live in the Town C property. The wife has lived in rental accommodation, paying rent of over $69,740 subsequent to separation. This weighs in her favour.
The Approach Taken
Neither party made any submissions as to a departure from the generally preferred position of a global approach to the assessment of contributions. Neither party seeks a superannuation splitting order and the value of the superannuation property is modest in comparison to the non-superannuation property. I will thus assess the respective contributions in line with what appears to be the parties’ agreed position: a global approach applied to a single pool of property of both superannuation and non-superannuation.
The Full Court in Horrigan & Horrigan [2020] FamCAFC 25 at [35] reinforced the holistic approach espoused in Fields & Smith [2015] FamCAFC 57 and stated that the proper approach to the assessment of contributions is:
…not a mathematical exercise, but rather involves the identification and assessment of all of the parties’ respective contributions, in a holistic way across the course of the relationship and in the post separation period to the point of assessment…
Conclusion as to Contributions
The wife sought a contribution finding in her Outline of Case of 65 percent. The contribution finding sought was not clarified during final submissions. After several questions by me as to the contribution finding and any adjustment thereto sought by the wife, counsel’s ultimate submission was that:
What we say is that we don’t need to confine ourselves to a strict percentage on contribution on the one hand and s 75(2) adjustment on the other, and we say that a 65/35 adjustment overall regardless of apportionment meets the requirement for justice and equity.
This unorthodox approach runs contrary to both the legislation and all authority. It does little to assist me in applying the applicable principles to determine a just and equitable adjustment of property between the parties.
The husband did not address the findings he sought as to contribution and any adjustment thereto, but he is a litigant in person. In his Outline of Case the husband seeks a contribution finding in his favour of 75 percent.
It is well established that a party bringing significant property into a relationship is a very important consideration. This disparity in contributions may be diminished by the length of the relationship and the contributions of the parties during the course of the relationship.[23] The weight to be attached to initial contributions must be assessed against the rubric of all financial and non-financial contributions made by the parties throughout the relationship as a whole.[24] For the most part, the known property of the parties was directly contributed by the husband and remains in specie. The Town C property is the most valuable item of property on the balance sheet. It is clear that the husband’s financial contributions significantly outweighed that of the wife. The wife made significant non-financial contributions as homemaker and parent and contributed her income to the family.
[23] Crawford & Crawford [1979] FamCA 38; (1979) FLC ¶90-647; Lee Steere & Lee Steere [1985] FamCA 57; (1985) FLC ¶91-626; Money & Money [1994] FamCA 54; (1994) FLC ¶92-485; Bremner & Bremner [1994] FamCA 116; (1995) FLC ¶92-560.
[24] Pierce & Pierce [1998] FamCA 74; (1999) FLC ¶92-844; Jabour & Jabour [2019] FamCAFC 78; (2019) FLC ¶93–898.
The evaluation of contribution “inevitably involves value judgments and matters of impression” as opposed to a mathematical exercise (see Lovine & Connor & Anor [2012] FamCAFC 168 at [40] to [41]). Adopting a holistic approach which requires all the contributions identified in these reasons to be weighed collectively and not by way of compartmentalising one against the other, I assess the parties’ contributions as 35 percent to the wife and 65 percent to the husband.
By way of cross-check in dollar terms this equates to the wife receiving property to the value of $625,516 and the husband $1,161,672; a differential of $536,156.
ADJUSTMENT TO THE CONTRIBUTION FINDINGS
The wife is 58 years of age and is employed as a permanent part-time allied health worker working approximately 36 hours per week. She earns an annual salary of $58,572. She plays some musical instrument performances at events earning not more than $2,000 annually.
The husband is 73 years of age. He in receipt of a Commonwealth old age pension. Of significant issue in the proceedings was the income and financial resources of the husband. I have found above that the husband has received monies post separation. By way of contribution finding, the husband will have the benefit of property of $536,157 greater value than the wife. He has liabilities totalling $18,123 not recorded on the balance sheet. I do not propose to take into account his unpaid legal fees as the wife’s are not taken into account.
Both the parties will in addition receive proceeds from the sale of the wife’s jewellery.
Both children of the marriage are of age. Neither party has a responsibility to support any other person. Neither party is cohabiting with another person.
The wife’s daughter with her previous husband, Ms S, lived with the parties from the date of their cohabitation until 2013, when she moved to live with her father; a period of 8 years. Ms S’s father did not pay any child support nor provide any financial support for Ms S’s whilst she lived with the parties. The husband financially provided for Ms S, not only in the holistic sense demanded by a functioning family unit and household, but significantly through the payment of her private school fees. Ms S attended WW School prior to commencing at XX School in 2010. From 2013 Ms S received a scholarship for a 50% reduction in her school fees. The husband continued to pay Ms S’s school fees even after she returned to live with her father.
The wife failed to disclose goods and chattels in her possession to enable a valuation of same to be undertaken. The husband failed to disclose the jewellery in his possession to enable a valuation of same to be undertaken. Each of the parties’ disclosure failures prevent a finding to be made of the entirety of the property and financial resources available for adjustment or to be taken into account.
The only submission made by the wife as to any adjustment to be made to the contribution finding, after conceding that a 10 percent adjustment to the wife would not be appropriate having regard to her engagement in part-time employment and the husband being in receipt of a pension, was that:
The only reservation, and it’s difficult for Your Honour as it is for us, is that we say is that there is evidence he is earning and not disclosing, it is a balancing item, but he has his own s 75(2) issues to deal with.
The parties would both be in modest circumstances.
Whilst the husband sets out his assertions as to his future needs he does not in his Outline of Case seek any adjustment in his favour; thus seeking an overall adjustment of 75 percent to him and 25 percent to the wife.
Holistically and weighing up all of the above considerations I am not satisfied that any adjustment should be made to contribution findings made above. Whilst the husband has health issues, he will receive property of a higher value than the wife. Both parties are of modest means. Both have failed to comply with their mandatory disclosure requirements.
JUST AND EQUITABLE
The wife is to receive property to the value of $625,516. The wife will retain superannuation and non-superannuation property as found with a total value of $55,046. She is thus entitled to a settlement sum of $570,470.
The husband is to receive property to the value of $1,161,672. The husband will retain property with a value of $1,732,142. He is to pay to the wife the settlement sum of $570,470.
The parties will therefore receive:
PROPERTY
Wife
Husband
B Street, Town C SA
$1,650,000
Motor Vehicle 4
$5,000
Household contents, plants and machinery, Motor Vehicle 3
$93,950
Musical instruments
$20,000
MM Company shares
$2,627
Super Fund 1 Superannuation interest
$33,299
Receipt of the Settlement sum
$570,040
Total Property
$628,769
$1,746,577
LIABILITIES
HELP Debt
$3,253
P School Fees
$14,435
Payment of the settlement sum
$570,470
Total Liabilities
$3,253
$584,905
NET TOTAL
$625,516
$1,161,672
OTHER MATTERS
Whilst there is no evidence before the court as to the ability of the husband to finance a loan to pay to the wife her settlement sum so that he can retain the Town C property, the wife agreed to the husband being afforded a “defined period of time” in which to attempt to do so prior to a sale being ordered to enable the said adjustment. Whilst the wife seeks an order on default that the husband vacate the property for its sale, no evidence was proffered nor submissions made to ground such an order and it will not be made. No submissions were made as to the form of sale of the property and I thus make orders as sought by the wife. The parties agreed at the hearing that in the event a sale was ordered, a percentage division would be the equitable manner of division of the net proceeds to take into account the sale price achieved. In the event a sale is ordered the husband will be required to do all things necessary to give clear title save for the caveat lodged by the wife after she receives her settlement sum.
It is premature to deal with any costs application or issue at this time. It is appropriate for the parties to have an opportunity to agitate their relief sought as to costs within a prescribed time frame specifying the terms of any orders sought. If no Application in a Proceeding is filed specifying the quantum of any costs sought as prescribed, all outstanding applications for costs will be dismissed.
No submissions were made against a registrar executing documents upon being satisfied that a party has failed or neglected to do so pursuant to these orders. Orders will be made to that effect.
Leave will not be granted for a party to apply on seven days notice to the other party as to implementation or enforcement of the orders or as to “consequential Orders with respect to property settlement matters only”. In the event a party seeks enforcement of these orders they can make the appropriate application, and it will be listed in the usual manner.
CONCLUSION
Standing back and looking at the proposed adjustment of property, for the above reasons I am satisfied that it is just and equitable.
Orders will be made accordingly.
I certify that the preceding one hundred and seventy-two (172) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Murdoch. Associate:
Dated: 17 July 2025
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