By Craig Nicol and Keleigh Robinson
Property – Business valuation – No error in changing one element of valuation without changing others – Jones v Dunkel inference inapplicable as there was no evidence from which an inference could be drawn
In O’Cleary & Vukasin [2025] FedCFamC1A 56 (3 April 2025) the Full Court (Aldridge, Howard and Christie JJ) heard an appeal from a decision of Campton J in relation to the valuation of a business.
At first instance, Campton J found that the business was worth $33,833,373 whereas the appellant said it was worth $39,433,373. The Court found that while the business was likely to renew its lease in 2025 at a higher rent, there was no evidence that the increased rental cost would be passed on to customers ([1]).
The Full Court said (from [17]):
“It is true … that the question raising the increased rent concerned just one integer of the many used to derive the value. There is, however, nothing objectionable about that course. Experts are frequently questioned by asking them to express opinions on assumptions that are put to them, which may or may not be established by the evidence. …
[18] Whether or not such an answer carries weight is a different matter. …
[19] It is also a different matter what weight is to be given to a valuation where just one element (such as rent) is changed…
[20] … [O]pinions can be sought from experts raising matters subsequent to the valuation… Whether taking that matter into account leads to a valuation that carries weight is a matter for the court. …
( … )
[27] There is no doubt that an adverse inference may be drawn where a witness is not called (Jones v Dunkel [1959] HCA 8 … ) and where a witness who is called does not give evidence on particular subjects in chief (Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11 …
( … )
[33] Here there is no evidence at all on the topic. There is nothing from which an inference can be drawn and the principle cannot apply. To use it to find that prices would increase or costs decrease is in fact to create evidence, which cannot be done.”
The appeal was dismissed and the appellant was ordered to pay the respondent’s fixed costs of $40,000.
Property – Husband’s estate unable to pay wife’s entitlement in full – Majority of wealth held in family trust – Application by wife and adult children for joinder of trustee of family trust dismissed – Trustee was not a party to the order that created wife’s entitlement
In Filip [2025] FedCFamC1F 35 (30 January 2025), Carew J heard an application for joinder in proceedings where property orders were made by consent between a husband and wife and their adult children in 2022.
The husband died unexpectedly in 2023 but had not discharged his obligation to pay the wife and two children pursuant to the 2022 orders.
The wife and two children sought to recover the unpaid amounts from D Pty Ltd (a trustee for the Filip Family Trust which was one of the entities forming the E Group). The trustee resisted the application for joinder. The wife sought enforcement and orders for variation pursuant to s 79A ([22]).
Carew J said (from [52]):
“These proceedings raise an interesting conundrum. At first blush it would seem inconceivable that the wife and [the children] could not recoup that which they are owed pursuant to the 2022 property order, but … [t]here must be a principled legal basis … identified in the pleadings. …
( … )
[54] As to the claim for relief pursuant to … ss 79A(1)(b) or (c) of the Act [the Court must be satisfied that] … the pleadings identify a factual and legal basis for a variation or a setting aside … so as to … make the trustee or the E Group liable for the payments due to the wife and [the children] … when neither the trustee nor the E Group were parties to the 2022 property order…
( … )
[57] … [I]t is not in dispute that a new trustee is bound by the obligations of the old trustee but the distinction in this case is that the husband was not the trustee. If it is to be contended that s 90AG of the Act has some broader application … the pleadings would need to articulate the factual and legal contentions.”
Her Honour concluded (from [60]):
“The wife and [the children] have failed to establish … that the trustee is a necessary party to the proceedings. …
[61] I propose to dismiss the application to join the trustee …”
Children – Applicants fail in seeking parenting orders for child born overseas pursuant to commercial surrogacy arrangement – Applicants referred to Director of Public Prosecutions as commercial surrogacy is a criminal offence in Queensland
In Lloyd & Compton [2025] FedCFamC1F 28 (28 January 2025), Carew J heard an application for parenting orders for a child born as a result of an overseas commercial surrogacy arrangement.
The applicants were a married couple from Queensland. The child was born in Cyprus in 2024. The surrogate mother resided overseas and filed a submitting notice.
Carew J said (from [4]):
“Under ss 54 and 56 of the Surrogacy Act 2010 (Qld) … it is a criminal offence punishable by up to three years imprisonment for persons usually resident in Queensland to enter into a commercial surrogacy arrangement outside Queensland. It is curious, to say the least, why the applicants have filed an application which will leave them … open to potential prosecution.
( … )
[48] In relation to children born under surrogacy arrangements, s 60HB of the Act applies …
[49] A prescribed law for the purposes of s 60HB of the Act is … one pursuant to s 22 of the Surrogacy Act. … An application for a parentage order cannot be made if the surrogacy arrangement is a commercial surrogacy arrangement… Accordingly, neither applicant is a parent within the meaning of s 60HB of the Act.
( … )
[55] While … it might be thought uncontroversial … that the applicants are persons concerned with the care, welfare and development of the child, it seems to me that before that fact can be established there would need to be evidence before the Court …
[56] In the absence of such evidence, I am not satisfied that the applicants are persons concerned with the care, welfare and development of the child pursuant to s 65C(c).
[57] The applicants do not have standing to bring an application for a parenting order.”
The documents filed in the proceedings were referred to the Director of Public Prosecutions as to whether the applicants should be prosecuted and also referred to the NSW Legal Services Commissioner to investigate whether the solicitor who filed affidavits on behalf of her clients had breached her obligation to provide competent legal services.
Children – Reversal of care – Mother so fixated in her belief that their biologically male child was a transgender girl, her primary care without her following gender affirming treatment for the child would be very difficult, if not impossible, in practice
In Re: Devin [2025] FedCFamC1F 211 (3 April 2025), Strum J heard competing parenting applications in respect of a 12 year old biologically male child (“Devin”) where each parent sought orders for sole decision-making and that the child live with them.
Although no treatment orders were sought in relation to Devin’s gender identity, the responsibility for medical decisions and whether Devin should be administered Stage 1 puberty blocking medication were key issues in the case.
Strum J said (at [131]):
“In circumstances where, inter alia:
- Dr N did not undertake a comprehensive biopsychosocial assessment of the child … ;
( … )
- the mother … established the narrative that informed subsequent interactions by Dr N with the father … ;
- Dr N’s … concession that … the child’s view of gender identity may have been influenced by the mother;
( … )
- the mother … primed Dr N … reinforcing … the mother’s own view that the child is transgender and suffering from distress and dysphoria …
( … )
… I am not satisfied that the mother has proved … that the child is … gender incongruent or gender dysphoric… ”
His Honour concluded (from [353]):
“ … [G]iven the mother’s inability or unpreparedness to work collaboratively with the father … I consider it to be in the child’s best interests for the father to have sole parental responsibility for the child …
( … )
[354] … I find the mother so entrenched, convinced and fixated in her unwavering belief that the child is, beyond doubt in her mind, a transgender girl, that for her to primarily care for the child without following the gender affirming treatment pathway offered at CHGS would be very difficult, if not impossible, in practice.”
Orders were made for Devin to live with the father, for him to have sole decision-making responsibility and for Devin to spend time with the mother.
