Family Property Settlement After the Respondent’s Long-Term Non-Participation: Can the Court make a just and equitable alteration of property interests by transferring the Respondent’s entire self-managed superannuation interest to the Applicant, and how are add-backs and procedural fairness determined under the Family Law Act 1975 (Cth)?

Based on the authentic Australian judicial case Vurnik & Vurnik (No 2) [2024] FedCFamC1F 34 (File No: MLC 12678 of 2018), this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds. :contentReference[oaicite:0]{index=0}

Chapter 1: Case Overview and Core Disputes

Basic Information

• Court of Hearing: Federal Circuit and Family Court of Australia (Division 1)
• Presiding Judge: Bennett J
• Cause of Action: Family law property settlement, alteration of property interests, including treatment of add-backs and superannuation splitting/rollover orders
• Judgment Date: 2 February 2024
• Hearing Dates: 14 March 2023, 13 July 2023, 25 January 2024
• Participation: Applicant self-represented; Respondent did not appear and filed no evidence beyond a notice of address for service in 2019

Core Keywords

• Keyword 1: Authentic Judgment Case
• Keyword 2: Undefended family law property settlement
• Keyword 3: Procedural fairness and service where a party disappears
• Keyword 4: Add-backs as an aspect of justice under section 75(2)(o)
• Keyword 5: Self-managed superannuation fund compliance and trustee disqualification
• Keyword 6: Section 79 just and equitable requirement

Background (No Outcome Spoilers)

This matter sits in a familiar but difficult family law pattern: a long marriage ends, one party carries the practical and financial burden of separation, and the other party disengages from the Court process entirely. The Applicant sought final property orders after years of trying to locate the Respondent, serve documents, and progress the matter. The evidence came only from the Applicant’s affidavits and exhibits. The practical centre of gravity was the parties’ assets: the Applicant’s home (with a mortgage), modest personal assets, and superannuation, alongside the Respondent’s interests including industry superannuation and a substantial interest in a private self-managed superannuation structure holding real property. A further complication was alleged unilateral removal or control of significant funds and assets by the Respondent, raising the question of whether and how the Court should account for those dealings when crafting a just and equitable final division.

Core Disputes and Claims

• What the Court was required to determine:
  1. Whether it was just and equitable to make orders altering property interests under section 79 of the Family Law Act 1975 (Cth), given the relationship breakdown and the present ownership and control of assets.
  2. Whether the terms of the proposed orders were proper, workable, and consistent with the Court’s statutory task, particularly where the Respondent had not participated and could not be located.
  3. How to treat alleged post-separation unilateral dealings with property and funds through the lens of add-backs, and how that would affect the overall division.
  4. How to resolve superannuation issues involving a self-managed superannuation fund, trustee governance, and compliance concerns, while ensuring implementation is not defeated by non-cooperation.
• Relief sought by the Applicant:
  • Orders that each party retain their current non-superannuation assets in their possession or name, except that the Respondent’s interest in the private self-managed superannuation fund be rolled over to the Applicant in full.
  • Mechanisms to ensure implementation, including appointment of a Registrar to sign documents if the Respondent failed to do so.
  • Finality notation consistent with section 81, to avoid further proceedings.
• Respondent’s position:
  • No appearance and no evidence. The Court therefore examined whether the Respondent had procedural fairness through service and notice, and proceeded to determine the matter on the Applicant’s evidence.

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Chapter 2: Origin of the Case

This is the story of a relationship that began with ordinary optimism and ended with practical abandonment, leaving one party to do the legal work, the financial work, and the emotional work.

The parties met in 1992 and formed their relationship when they were both in their early twenties. They married and lived together for more than two decades. The marriage produced two children, who were adults at the time of the final determination, but who remained living in the family home with the Applicant after separation. The household, in practical terms, remained a family home led by the Applicant, even after the marital relationship ended.

The separation occurred in February 2018 after an incident that drew police attendance to the family home in response to a family violence complaint. The Respondent left and did not return. That physical departure became something more than a separation: it became a prolonged disappearance from family life and from the litigation process.

From 2018 onwards, the Applicant’s life appears to have been defined by three parallel burdens:

1. Sustaining a stable household, including supporting the children emotionally and financially.
2. Managing and preserving multiple properties and the consequences of incomplete works and disrepair.
3. Navigating the legal system largely alone, including repeated service attempts, adjournments to gather evidence, and a careful reconstruction of property history and current values.

A decisive turning point was the Respondent’s refusal to engage with the proceedings. A party can decide not to contest, but that choice does not freeze the other person’s life. In family law, property settlement is not only about fairness in numbers. It is also about enabling each person to move forward with certainty and without being held hostage by the other’s silence.

The Applicant’s efforts to locate the Respondent were persistent and practical. She attempted welfare checks, communication through known addresses and channels, and formal service supported by affidavits of service. Even the parties’ adult child made a direct and emotionally urgent attempt to re-establish contact, reflecting the personal cost of the Respondent’s disengagement. Meanwhile, the Applicant continued to shoulder debt, carry repair costs, preserve asset value, and keep the household functioning.

The case became, at its core, not a contest of competing narratives, but a test of whether a Court can do justice where only one party provides evidence, and the other party’s absence is long-term, deliberate, or unexplained.

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Chapter 3: Key Evidence and Core Disputes

Applicant’s Main Evidence and Arguments

The Applicant’s case was built like a scaffold: methodical affidavits, documentary exhibits, valuations, and a timeline showing service and non-response. Key components included:

1. The initiating application and amended applications, setting out the final relief sought, particularly the superannuation rollover and implementation mechanisms.
2. Updated financial statement material, listing assets, liabilities, and superannuation balances.
3. Consolidated trial affidavit and further affidavits addressing discrete issues:
   • Property valuations of the family home and the self-managed superannuation fund property.
   • Superannuation documentation, including fund statements and the trustee compliance issue.
4. Service evidence:
   • Multiple affidavits of service over several years, evidencing posting and sending court documents to the Respondent’s last known email address and address for service.
   • Evidence of attempted welfare checks and enquiries through police.
5. Add-back narrative:
   • Evidence that proceeds of sale from a commercial property were taken and controlled by the Respondent to the exclusion of the Applicant.
   • Evidence of an unauthorised withdrawal from the parties’ private superannuation arrangements after separation, requiring the Applicant to take steps to reconstitute the fund to remain compliant.

The Applicant’s argument, in substance, was that:
– The relationship has ended, the parties’ financial relationship should be finalised, and the Respondent’s disengagement should not prevent the Court from doing so.
– The Applicant made significant contributions throughout the marriage and after separation, particularly in preserving property value and maintaining the household.
– The Respondent’s unilateral dealings should be taken into account so that the division reflects reality and avoids rewarding non-disclosure and non-participation.
– The self-managed superannuation structure required urgent resolution because trustee governance and compliance issues created real risk and complexity.

Respondent’s Main Evidence and Arguments

There was no substantive evidence from the Respondent. The Respondent filed only a notice of address for service in 2019 and did not file a response, financial statement, or affidavits, despite orders requiring that material. The Respondent did not appear at the final hearings.

The absence of evidence did not mean the Court ignored the Respondent’s interests. Instead, it shifted the analysis to:
– whether procedural fairness had been afforded through service and notice; and
– whether the Court could be satisfied on the balance of probabilities based on the Applicant’s evidence.

Core Dispute Points

1. Procedural fairness and non-appearance:
   • Has the Respondent been given proper notice and a fair opportunity to participate?
   • Can the Court proceed to determine the matter undefended?
2. Property identification and valuation:
   • What is the current pool of non-superannuation assets, superannuation interests, and liabilities?
3. Add-backs and unilateral dealings:
   • Are alleged dissipations or unilateral appropriations properly considered, and if so, how?
   • Should the Court treat the full amount claimed as a direct dollar add-back, or take a more cautious approach consistent with authority?
4. Superannuation governance and implementation:
   • How does the Court craft workable orders dealing with a self-managed superannuation fund, especially where a party refuses to sign documents or cannot be located?
   • How do trustee disqualification and compliance concerns shape the design of orders?

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Chapter 4: Statements in Affidavits

Affidavits are not just containers of facts. They are tools of persuasion that must survive the legal tests of relevance, credibility, and logical coherence. In this case, the affidavit landscape was asymmetrical: one party’s detailed narrative faced no counter-affidavit. That fact increases responsibility, not decreases it. The Applicant still needed to present evidence capable of supporting findings of fact on the balance of probabilities.

How the Applicant’s Affidavits Built a Persuasive Case

The Applicant’s affidavit strategy can be understood as four deliberate layers:

1. Chronology with purpose:
   • The Applicant did not merely recount events; she tied events to legal questions: separation, attempts to contact, service, non-compliance with orders, and asset management.
2. Document anchoring:
   • The Applicant’s factual claims were supported by exhibits: valuations, fund statements, service documents, police records, and financial materials. This reduced the risk that the Court would treat the claims as uncorroborated assertion.
3. Practical consequences:
   • The affidavits described the lived consequences of the Respondent’s non-participation: repairs, mortgage servicing, preservation of property, and ongoing household costs. This material was critical to contribution analysis and to the Court’s understanding of justice in context.
4. Compliance and implementation focus:
   • The Applicant’s affidavit evidence highlighted why implementation provisions were necessary: the Respondent’s history of silence, lack of disclosure, and likely refusal to cooperate.

Comparing “Expressions of the Same Fact” in an One-Sided Evidentiary Field

Where there are two sets of affidavits, differences in language often reveal the boundary between contested truth and advocacy. Here, the contrast appeared differently: between the Applicant’s careful specificity and the Respondent’s silence.

That contrast still reveals a boundary:
– Specificity tends to be believed when it is supported by documents and fits a coherent timeline.
– Silence, while not proof of wrongdoing, can leave the Court with no alternative narrative and no evidentiary basis to reject plausible, corroborated evidence.

The Applicant’s affidavits also demonstrated an important self-agency principle: a party who prepares evidence carefully increases the Court’s capacity to act decisively. In undefended property cases, preparation is power.

Strategic Intent Behind Procedural Directions About Affidavits

The Court’s management approach, including allowing adjournments to obtain documents and organise evidence, served a procedural justice function:
– It increased the reliability of the evidentiary record.
– It reduced appeal risk based on alleged procedural unfairness.
– It ensured the Court could make proper, workable orders rather than vague or speculative ones.

For practitioners, the lesson is direct: when the other party disappears or defaults, the Court’s priority becomes the integrity of the record. Procedural fairness is secured not only by service, but by the Court’s confidence that it is deciding on a sufficiently robust evidentiary foundation.

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Chapter 5: Court Orders

Before final orders, this matter involved procedural directions and orders designed to progress a stalled case and preserve assets, including:

• Service and notice directions, including service by post and the repeated use of affidavits of service to evidence compliance.
• Interim arrangements dealing with management and sale of property, including orders facilitating the sale of a jointly owned property and directions about preparation of that property for sale.
• Orders requiring financial disclosure and the filing of responses and affidavits, which were not complied with by the Respondent.
• Listings for hearing on an undefended basis, coupled with express warnings that the Court may proceed in a party’s absence if the party fails to attend or defaults in filing.
• Case management adjournments, sometimes driven by the Applicant’s need to obtain valuations and compliance documentation, and sometimes by court availability.

These orders illuminate a practical truth: litigation is not only about final hearing drama. It is about building a pathway that makes a final decision possible, especially when one party refuses to walk the path.

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Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

Process Reconstruction: Live Restoration of the Evidentiary Contest

This was not a conventional cross-examination battle. The “ultimate showdown” here was between:

• A coherent, documented narrative presented by the Applicant; and
• The Respondent’s prolonged absence, non-disclosure, and non-participation.

In that environment, the Court’s discipline becomes the battlefield. The Court must:
– apply the statutory framework step-by-step;
– avoid assuming facts not proven; and
– ensure fairness is maintained, even when only one party speaks.

The Applicant’s submissions and affidavits functioned as both evidence and argument. The Court scrutinised whether the Applicant’s claims were plausible, consistent, and properly supported. The Court also evaluated whether the Respondent had been given enough procedural opportunity to contest the material, because an undefended hearing is still a hearing with consequences.

Core Evidence Confrontation: The Decisive Materials

The decisive evidence clusters included:

1. Service and notice history:
   • Multiple service documents over years demonstrated that the Respondent was repeatedly informed of proceedings and had opportunity to appear.
2. Asset valuations:
   • Valuation of the family home and the self-managed superannuation fund property created a credible basis for identifying the pool.
3. The add-back story:
   • Evidence of proceeds of sale and unilateral control, and a separate alleged unauthorised withdrawal from superannuation structures, raised the question of how to account for those dealings without overreaching beyond what the evidence established.
4. The superannuation compliance problem:
   • The trustee disqualification notification and compliance risks made this case more than a simple property split; it required practical orders capable of implementation.

Judicial Reasoning: How Facts Drive Result Under Section 79 and Section 75(2)(o)

The Court applied the recognised section 79 structure:
– Identify property interests (including superannuation).
– Determine whether it is just and equitable to make an order.
– Assess contributions.
– Consider section 75(2) factors, including section 75(2)(o) as the home for add-back reasoning.
– Stand back and confirm the orders are just, equitable, and proper.

This is where the case becomes empowering: the law is not magic. It is a sequence. A party who presents evidence that fits the sequence gives the Court a safe bridge to finality.

Judicial Original Quotation Principle (Determinative Dicta)

Context: The Court had to decide whether the Applicant’s evidence was reliable enough to support findings, given the Respondent’s non-participation.

“Her evidence was well ordered, supported by appropriate documentation and plausible.”

Why this mattered: In an undefended property matter, credibility and documentary support are the foundation stones. This statement explains why the Court could safely proceed to make findings of fact on the balance of probabilities, and why the Applicant’s self-prepared case achieved legal traction.

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Chapter 7: Final Judgment of the Court

The Court made final property orders that, in practical effect:

• Required the Respondent to do acts and sign documents necessary to resign as a member of the relevant self-managed superannuation fund and to transfer to the Applicant the Respondent’s interests associated with the corporate trustee structure and member entitlements.
• Required rollover of the Respondent’s member entitlements in the self-managed superannuation fund to the Applicant.
• Imposed a short timeframe for signing and return of documents sent by email.
• Appointed a Registrar under section 106A of the Family Law Act 1975 (Cth) to sign documents on the Respondent’s behalf if the Respondent refused or neglected to cooperate, with proof mechanism via the Applicant’s affidavit.
• Ordered that the Applicant retain specific non-superannuation assets, including the family home, her bank monies, her vehicle, and her own superannuation.
• Otherwise ordered that each party retain to the exclusion of the other any property and superannuation in their name or possession, subject to the superannuation rollover effect.
• Included technical superannuation splitting provisions, including an order that effectively provided for 100 per cent of the Respondent’s splittable payment entitlement in the relevant fund to be paid to the Applicant (subject to statutory valuation limits), and compliance steps for the Applicant as trustee/director.
• Provided indemnities and compliance directions in relation to liabilities and taxation associated with the self-managed superannuation fund.
• Reserved liberty to apply regarding implementation.
• Dismissed all extant applications and removed the matter from the list.
• Noted the intended finality pursuant to section 81.

From a self-agency perspective, the result demonstrates that a party’s refusal to participate does not confer veto power. The Court can craft orders that are both fair and executable.

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Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

Special Analysis

This judgment is jurisprudentially valuable for one primary reason: it demonstrates how the Court protects the integrity of property settlement outcomes when one party disengages, while still adhering to principle, evidence, and procedural fairness. The case also shows how the Court designs implementation mechanisms to prevent non-cooperation from defeating justice, particularly through section 106A signing provisions.

A second unusual feature is the intersection of family law property adjustment with self-managed superannuation fund governance and compliance risk. The presence of a disqualified trustee/responsible officer is not merely background colour. It informs urgency and practicality. The Court’s response is not to punish but to structure lawful transfer and ongoing compliance responsibilities clearly.

Judgment Points

1. Undefended does not mean unexamined:
   • The Court still required evidence, still applied the statutory sequence, and still made findings based on balance of probabilities. The Applicant’s success was not automatic. It was earned through preparation.
2. Procedural fairness is secured through service and opportunity, not participation:
   • The Court treated repeated service and notice as sufficient procedural fairness where the Respondent chose not to engage.
3. Add-backs are treated cautiously:
   • The Court used authority to avoid simplistic dollar-for-dollar add-backs. Instead, it treated unilateral dealings as part of the marriage history and used section 75(2)(o) to reach a just outcome.
4. Contributions can be amplified by post-separation preservation work:
   • Rectification, debt servicing, property preparation, and maintaining tenancy income were treated as meaningful contributions, especially when the alternative would have been deterioration and forced-sale risk.
5. Implementation design is part of justice:
   • Orders were engineered so that the Respondent’s non-cooperation could not block transfer. Section 106A was used as a legal lever to convert a “paper entitlement” into real-world implementation.
6. Symmetry as a fairness tool:
   • The Court adopted a practical symmetry: each party keeps what they have, but the private superannuation interest is transferred to the Applicant. This reduces future conflict and simplifies enforcement.
7. The Court avoided speculative future-needs adjustment:
   • Even though the Applicant had responsibilities and the Respondent’s circumstances were uncertain, the Court did not add a further section 75(2) adjustment, emphasising disciplined restraint.
8. Finality is treated as a public and private good:
   • Section 81 finality was expressly noted, reflecting the policy that parties should be enabled to move on without repeated litigation.

Legal Basis

The legal architecture of the reasoning rested on:

• Family Law Act 1975 (Cth), section 79:
  • Identification of property interests, including superannuation as property for the purposes of alteration.
  • The just and equitable threshold and the requirement that orders be proper.
• Family Law Act 1975 (Cth), section 75(2), including section 75(2)(o):
  • Consideration of relevant future-looking factors and “any fact or circumstance” justice requires, providing the statutory home for add-back reasoning.
• Evidence Act 1995 (Cth), section 140:
  • The civil standard of proof, balance of probabilities, framing how the Court could make findings on the Applicant’s evidence.
• Family Law Act 1975 (Cth), section 106A:
  • Mechanism enabling a Registrar to execute documents on behalf of a party who refuses or neglects to do so, ensuring orders are not defeated by obstruction or disappearance.
• Superannuation splitting framework:
  • Statutory and regulatory structure for splitting/rolling over superannuation interests, particularly in relation to a self-managed superannuation fund and a corporate trustee.

Evidence Chain

Victory in this matter was built through an evidence chain with clear links:

• Link 1: Relationship history and separation facts established the context and the end of the marital relationship.
• Link 2: Service record and non-participation timeline established procedural fairness and justified proceeding undefended.
• Link 3: Valuations and financial statements established the pool and supported a rational division.
• Link 4: Detailed narrative of repairs, mortgage, and preservation work established post-separation contributions and explained why the Applicant’s share should reflect real effort and risk.
• Link 5: Documentation about the self-managed superannuation fund, including governance and compliance issues, justified urgent and practical orders and informed implementation mechanisms.
• Link 6: Add-back evidence linked unilateral dealings to the justice task, providing a principled basis to prevent unfair advantage through unilateral control.

Judicial Original Quotation Principle

Context: The Court articulated the core statutory sequence and the lens through which it must decide property settlement.

“The court has to be satisfied that it is just and equitable.”

Why this was determinative: This statement is the gate through which every property order must pass. It frames the entire analysis as a justice exercise grounded in evidence, not merely arithmetic, and it explains why the Court could not simply make orders because the Respondent defaulted. The Applicant needed to prove enough to satisfy the just and equitable threshold and the propriety of the terms.

Analysis of the Losing Party’s Failure

The Respondent’s failure was not merely tactical. It was structural, and it had predictable legal consequences:

1. Non-disclosure created evidentiary vacuum:
   • Without a financial statement or affidavit evidence, the Respondent left the Court to rely on the Applicant’s best available evidence. In civil proceedings, silence rarely helps when the other party presents coherent documents.
2. Failure to comply with orders undermined credibility by conduct:
   • The Respondent’s history of non-compliance with filing directions and absence from hearings supports the Court’s conclusion that proceeding undefended is fair.
3. Loss of narrative control:
   • Even if the Respondent had explanations for financial dealings, living expenses, asset disposal, or fund governance, those explanations were not placed before the Court. The Respondent therefore ceded control over how the history would be characterised.
4. Implementation resistance anticipated and neutralised:
   • The Court did not rely on voluntary cooperation. It used section 106A and affidavit proof mechanisms to prevent obstruction from succeeding. In effect, the Respondent’s pattern of non-response shaped orders that removed the Respondent’s ability to delay.
5. Unilateral dealings increased the justice pressure:
   • Allegations of unilateral control of proceeds and withdrawals heightened the Court’s attention to fairness. Even with cautious treatment, such conduct tends to be weighed against a party under section 75(2)(o) when justice requires.
6. Absence prevented any competing contribution narrative:
   • Contributions assessment is comparative. Without evidence, the Respondent could not argue equal or greater contributions, nor could the Respondent challenge the Applicant’s post-separation preservation work.

Key to Victory

The successful party’s most critical elements were:

• Careful, credible affidavit evidence supported by documents.
• Persistence in service and procedural compliance, building procedural fairness protection.
• Valuation evidence allowing the Court to quantify the pool reliably.
• Detailed evidence of post-separation preservation and repair work, translating lived burden into legally recognisable contributions.
• Clear, implementable orders drafted to deal with likely non-cooperation.
• Strategic use of section 75(2)(o) framing for add-backs, aligning with authority rather than overclaiming.

Reference to Comparable Authorities

• Bevan & Bevan (2013) FLC 93-545
  Ratio focus: Notional add-backs are not automatically “property” under section 79; the Court must treat unilateral disposals carefully and can use section 75(2)(o) to achieve justice.

• GVC v HPC (1998) FamCA 143
  Ratio focus: Add-backs should be the exception rather than the rule; parties may reasonably get on with life post-separation, but unreasonable depletion may be considered.

• Marker v Marker (1998) FamCA 42
  Ratio focus: It is generally inappropriate to add back monies reasonably spent on necessary living expenses; reasonableness is assessed by the trial judge.

• AJO & GRO (2005) FLC 92-218
  Ratio focus: Recognised categories for add-backs include legal fees, premature distribution of assets, and reckless or deliberate diminution of matrimonial assets.

• SMB & MFB (2006) FamCA 46
  Ratio focus: Add-backs require a proper basis; without findings of reckless, wanton, negligent, or deliberate diminution conduct, notional add-backs may be flawed.

Implications (Empowering, Practical, Open-Minded)

1. Silence is not a shield, but preparation is a sword.
   If the other party disappears, your strongest protection is not outrage. It is evidence: documents, timelines, valuations, and a clear explanation of what you want and why it is fair.

2. The Court rewards clarity, not drama.
   A well-structured affidavit with exhibits can carry enormous weight. It gives the Court permission to act decisively and safely.

3. Implementation is part of your strategy, not an afterthought.
   If you suspect non-cooperation, ask for orders that still work when the other party refuses to sign. A workable order is a form of self-protection.

4. Add-backs are not a shortcut; they are a justice tool.
   Do not treat add-backs as a simple reclaim of every dollar. Treat them as a principled argument about fairness, supported by evidence and anchored to section 75(2)(o) and authority.

5. Finality is not just legal closure; it is personal recovery.
   A property settlement is not only a division of assets. It is the legal step that allows you to rebuild your life without ongoing financial entanglement.

Q&A Session

1. If the other party does not show up, will the Court automatically give me everything I ask for?
   Not automatically. The Court still requires evidence and applies section 79 step-by-step. However, if you provide credible documents and a fair proposal, the Court can make final orders even in the other party’s absence.

2. How do I prove the other party has been given procedural fairness if they claim they never knew?
   The strongest approach is consistent formal service supported by affidavits of service, using the last known address for service and email address, and ensuring notices include hearing dates and the warning that orders may be made in absence. Keep records of every attempt.

3. What makes an order “workable” if the other party refuses to sign documents?
   Orders that include a statutory signing mechanism, such as section 106A appointment of a Registrar to sign on the defaulting party’s behalf, and a practical proof pathway such as an affidavit confirming documents were sent and no response was received.

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Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case

• Case Subtype: Family Law Property Settlement involving self-managed superannuation fund governance, add-backs, and undefended determination after long-term non-participation
• Judgment Nature Definition: Final Judgment

2. Self-examination of Core Statutory Elements

The following core standards are for reference only. Outcomes tend to be determined by the specific evidence, the credibility of documents, and the Court’s assessment of what justice requires in the particular circumstances.

① De Facto Relationships & Matrimonial Property & Parenting Matters (Family Law)

This case belongs to Category ①. The dispute concerned matrimonial property settlement under section 79, including future-looking section 75(2) considerations and add-backs under section 75(2)(o). Parenting orders were not the focus in the final determination, but the household and care responsibilities remained relevant context.

Core Test: Existence of De Facto Relationship — Section 4AA (If Relevant in a Different Case Context)

When a case involves a threshold question about whether a de facto relationship exists, section 4AA requires the Court to consider the circumstances of the relationship as a whole. Each factor should be addressed carefully and evidentially:

1. Duration of the relationship
   The general rule often focuses on whether the relationship existed for at least 2 years, subject to statutory exceptions. Evidence typically includes timelines, travel records, correspondence, and third-party confirmations.

2. Nature and extent of common residence
   The Court examines whether the parties lived together, whether cohabitation was continuous, and what the practical household arrangements were. Evidence may include leases, utility accounts, shared addresses, and witness statements.

3. Whether a sexual relationship exists or existed
   This factor is not determinative by itself. Evidence tends to be indirect and handled with sensitivity, often through admissions, correspondence, or contextual household arrangements.

4. Degree of financial dependence or interdependence, and any arrangements for financial support
   The Court looks at shared accounts, transfers, payment of bills, shared liabilities, and financial planning. Evidence includes bank statements, loan documents, and financial records.

5. Ownership, use and acquisition of property
   The Court considers whether property was acquired together, held jointly, used as shared property, or improved by joint effort. Evidence includes title searches, purchase contracts, renovation receipts, and insurance policies.

6. Degree of mutual commitment to a shared life
   The Court assesses whether the relationship was casual or committed, including future planning, mutual support, and life integration. Evidence includes joint plans, correspondence, social media history, and statements from friends and family.

7. The care and support of children
   The Court looks at whether the parties raised children together or supported each other’s children, including day-to-day care and shared parental responsibilities. Evidence includes schooling records, medical records, and caregiving schedules.

8. Reputation and public aspects of the relationship
   The Court examines whether the parties presented as a couple publicly: invitations, events, holidays, community perception. Evidence includes photographs, messages, witness statements, and social context.

9. Registration of the relationship under a law of a State or Territory
   If the relationship was registered, that can be a powerful evidentiary indicator. Evidence includes registration certificates and official records.

A practical self-agency approach is to treat these as an evidence checklist: you do not “argue” a relationship into existence; you prove it through consistent, real-world markers.

Property Settlement — The Four-Step Process (Section 79 Framework in Practice)

1. Identification and Valuation: Determine the net asset pool
   • Identify all assets, liabilities, and financial resources (including superannuation).
   • Gather valuations: real property, vehicles, businesses, superannuation balances, and any significant items such as tools or collections.
   • Confirm liabilities: mortgages, credit cards, taxation debts, personal loans.
   • If the other party does not disclose, you should compile the best available evidence: title searches, bank statements you can access, subpoena material where appropriate, and historical records.
2. Assessment of Contributions
   Contributions are usually assessed over the whole relationship, including:
   • Financial contributions: initial assets, income, payments toward mortgages, deposits, inheritances used for family purposes.
   • Non-financial contributions: renovations, property maintenance, unpaid labour that increased asset value.
   • Contributions to welfare of the family: homemaker duties, parenting, caring for family members, managing household logistics.
     Post-separation contributions may carry substantial weight where one party preserved assets, serviced debt, or prevented deterioration.
3. Adjustment for Future Needs (Section 75(2) Factors)
   The Court considers matters such as:
   • Age and health
   • Income and earning capacity
   • Care of children
   • Financial responsibilities and commitments
   • Standard of living that is reasonable in the circumstances
     The adjustment tends to be evidence-driven and non-absolute. Parties should avoid assuming an automatic percentage shift and instead demonstrate the real practical impact of future circumstances.
4. Just and Equitable: The final sanity check
   The Court must stand back and decide whether the proposed outcome is fair in all the circumstances. This is where:
   • non-cooperation,
   • asset control realities,
   • implementation feasibility,
   • and the need for finality
     often become decisive.

Parenting Matters — Section 60CC of the Family Law Act 1975 (Cth) (If Relevant in a Different Case Context)

Primary Considerations:
– The benefit to the child of having a meaningful relationship with both parents
– The need to protect the child from physical or psychological harm, noting that protection from harm is given greater weight

Additional Considerations:
– The views of the child, depending on maturity and understanding
– The capacity of each parent to provide for the child’s needs
– Practical difficulty and expense of the child spending time with and communicating with a parent
– Any family violence considerations and the impact on safety and wellbeing

Even when parenting is not litigated, the reality of caregiving responsibilities can influence property outcomes through section 75(2) and through the Court’s understanding of contributions.

3. Equitable Remedies and Alternative Claims

Even in family law property proceedings, equity can sometimes matter, particularly when:

• legal ownership does not reflect practical contributions; or
• a party has manipulated control structures to frustrate fair adjustment.

These are not guaranteed pathways. They tend to be determined by the evidence and the Court’s assessment of conscience and fairness.

Promissory or Proprietary Estoppel (If Statutory Avenues Are Limited or Ownership Is Misaligned)

• Was there a clear and unequivocal promise or representation, such as assurance that an asset would be shared or transferred?
• Did the other party act in detrimental reliance, such as paying debts, renovating, forgoing other opportunities, or contributing labour?
• Would it be unconscionable for the promisor to resile from the promise?

Result reference: Even without a formal written agreement, equity may restrain a party from going back on their word where reliance and unconscionability are proven.

Unjust Enrichment or Constructive Trust (When One Party Receives Benefits Without Fair Compensation)

• Has one party received a benefit at the expense of the other, such as labour, funds, or asset improvement?
• Is it against conscience for that party to retain the benefit without accounting?
• Is there a reliable evidentiary basis to quantify or identify the benefit?

Result reference: The Court may order restitution or recognise a beneficial interest through a constructive trust-like analysis in appropriate contexts, though family law statutory powers often already address the fairness objective through section 79 and section 75(2)(o).

Procedural Fairness (When Non-Participation or Administrative Blockage Affects Outcomes)

While procedural fairness is often discussed in administrative law, family law also requires fairness of process:
– Was the absent party given notice and a real opportunity to participate?
– Were service methods reasonable and consistent with orders?
– Has the Court taken appropriate care to ensure the evidentiary record is robust?

Result reference: If procedural fairness is established, the Court tends to be willing to proceed to finality rather than allowing strategic disappearance to stall justice.

Ancillary Claim Framing (Strategic Reframing When One Argument Fails)

• If an add-back claim is too blunt or cannot be proven as a direct figure, can it be reframed as:
  • a section 75(2)(o) justice factor grounded in the history of the marriage; and
  • a contribution narrative showing imbalance in preservation and benefit?

This approach tends to reduce legal risk by aligning with authority cautioning against simplistic notional property.

4. Access Thresholds and Exceptional Circumstances

This section highlights the “hard thresholds” and “exceptional exemptions” commonly encountered in family law property matters. These are not absolute guarantees and tend to be determined by evidence and jurisdictional facts.

Regular Thresholds

• Jurisdiction and relationship threshold:
  • Marriage generally establishes jurisdiction for section 79 property proceedings.
  • For de facto relationships, jurisdictional thresholds often involve duration and statutory exceptions.
• Time limits:
  • For married parties: property proceedings are generally required to be commenced within 12 months of divorce becoming absolute, unless leave is granted.
  • For de facto parties: time limits commonly apply from separation, subject to jurisdictional provisions.
• Disclosure expectation:
  • Each party has a duty of disclosure. Non-disclosure tends to increase judicial scepticism and may influence outcomes and costs.

Exceptional Channels (Crucial)

• De facto relationship less than 2 years:
  • Exemption may be available pursuant to section 90SB if there is a child of the relationship, or if the applicant made substantial contributions and failure to make an order would result in serious injustice, or if the relationship is registered.
• Time limit relief:
  • If time limits have expired, leave may be granted in appropriate cases where hardship would be caused. This tends to require careful affidavit evidence explaining delay and prejudice.
• Disappearing or unlocatable party:
  • Substituted service, service by post, and other court-ordered methods can allow proceedings to continue, provided procedural fairness is protected through notice and opportunity.

Suggestion: Do not abandon a potential claim simply because you do not meet a standard time or condition. Carefully compare your circumstances against statutory exceptions and the Court’s discretion pathways, as those may be the key to accessing a fair hearing.

5. Guidelines for Judicial and Legal Citation

Citation Angle:
– It is recommended to cite this case in submissions involving:
– undefended property hearings where a party fails to participate;
– superannuation splitting involving implementation difficulties and trustee governance concerns;
– add-back treatment under section 75(2)(o) with authority-based caution;
– section 106A mechanisms to ensure documents can be executed despite non-cooperation.

Citation Method:
– As Positive Support:
– When your matter involves repeated service, documented procedural fairness, and a need for workable implementation orders, citing this authority can strengthen the argument that the Court may proceed to finality and craft section 106A execution mechanisms.

• As a Distinguishing Reference:
  • If an opposing party cites this case, you should emphasise unique differences such as:
  • genuine engagement and disclosure by both parties in your matter;
  • materially different asset structures;
  • different evidence on living expenses affecting add-back treatment;
  • absence of trustee disqualification or compliance urgency.

Anonymisation Rule:
– Do not use the real names of the parties in publication. Use procedural titles such as Applicant and Respondent, consistent with the judgment’s header structure and privacy requirements.

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Conclusion

This judgment shows that family law property settlement is not defeated by disappearance, silence, or strategic non-participation. The Court’s power is anchored in evidence, fairness of process, and workable orders. Your strongest self-protection is disciplined preparation: build a clear evidence chain, ask for implementable relief, and frame fairness through the statutory sequence.

Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

Disclaimer

This article is based on the study and analysis of the public judgment of the Federal Circuit and Family Court of Australia (Vurnik & Vurnik (No 2) [2024] FedCFamC1F 34), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

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