Baudin and Baudin

[2018] FCCA 173

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAUDIN & BAUDIN [2018] FCCA 173

Catchwords:
FAMILY LAW – Property – assessment of contributions – marriage of 21 years – where wife is primary carer of two children with disabilities – where wife alleges the husband has property and savings in (country omitted) – s.75(2) matters require an adjustment in favour of the wife – husband’s failure to disclose a transfer of assets – transfer of the former matrimonial home to the wife.

Legislation:

Family Law Act 1975, s.75(2)

Applicant: MR BAUDIN

Respondent: MS BAUDIN

File Number: MLC 12174 of 2015

Judgment of: Judge Hartnett

Hearing dates:

31 July 2017 – 2 August 2017;

10-11 October 2017

Delivered at: Melbourne

Delivered on: 25 January 2018

REPRESENTATION

Counsel for the Applicant: Mr Potter

Solicitors for the Applicant: Starke Westwood

Counsel for the Respondent: Mr Hall

Solicitors for the Respondent: Bediaga Xavier and Ramon

THE COURT ORDERS THAT:

1. Within sixty days of the making of these orders (‘the date’):-

   (a)the husband do all such acts and sign all such documents as may be required to transfer to the wife at the expense of the wife all his interest in the real property (‘the transfer’) known as Property A being the whole of the land more particularly described in (omitted) (‘the real property’);

   (b)upon the transfer the wife indemnify the husband against all and any liability for rates, taxes and other outgoings of or with respect to the real property of whatsoever nature or kind;

   (c)the husband and the wife do all such acts and sign all such documents as may be required to discharge the mortgage to the (bank omitted) at the expense of the wife and withdraw all caveats lodged by them or on their behalf at the expense of the husband.

2. Contemporaneously with the transfer there be payment of $81,250 by the wife to the husband.

3. Pending the transfer:-

   (a)the wife have the sole right to occupy the real property. During such occupation the wife pay all rates and like apportionable outgoings of the real property as they fall due;

   (b)the parties hold their respective interests in the real property upon trust pursuant to these orders;

   (c)neither party encumber the real property without the consent in writing of the other party.

4. Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:-

   (a)each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of these orders (the furniture, personal possessions and like chattels) in the real property being deemed to be in the possession of the wife;

   (b)insurance policies remain the sole property of the owner named therein;

   (c)each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;

   (d)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;

   (e)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

5. The wife make available to the husband all of his tools and jewellery that may exist in or around the former matrimonial home or any other location that same may have been placed.

6. In the event the husband refuses or fails to comply with order 1 herein, the Registrar of the Federal Circuit Court at Melbourne is appointed pursuant to s.106A of the Family Law Act 1975 (Cth) to sign any deed or instrument in the name of the husband and to do all acts and things necessary to give validity and operation to the deed or instrument.

7. In the event the wife fails to comply with orders 1 and 2 herein the husband is at liberty to seek an urgent sale of the real property on application listed at short notice and for that purpose such application shall be made to the Chambers of Judge Hartnett.

8. Otherwise all extant applications are dismissed and the matter removed from the list.

IT IS NOTED that publication of this judgment under the pseudonym Baudin & Baudin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 12174 of 2015

MR BAUDIN

Applicant

And

MS BAUDIN

Respondent

REASONS FOR JUDGMENT

1. The husband initiated these proceedings for property orders on 16 February 2016. The wife sought differing property orders in her response filed 14 April 2016, although both parties were willing for the wife to have an opportunity to remain in the former matrimonial home. The matter was initially listed for final hearing in March 2017 and then adjourned with priority to May 2017. At that time, the parties were not ready to proceed, there being some complexity caused by the wife’s allegation that the husband had real property in (country omitted). That matter was addressed at trial. At trial, the husband sought an adjustment of 65% to the wife and 35% to the husband of the parties’ asset pool, excluding superannuation, but including monies placed in the parties’ child [X]’s account. The husband sought to leave the wife’s entitlement to superannuation with the wife, and he sought no payment in that regard. The wife sought an adjustment such that she obtain sole proprietorship of the parties former matrimonial home with no payment to the husband, and that otherwise, the parties each keep that property which they held, with no account taken of the monies received  by the parties’ child, [X]. The wife sought such orders on the basis that the husband had assets of savings and/or property in (country omitted). The husband denied having any assets of any description in (country omitted).

2. The husband relied upon affidavits of evidence sworn by him on 16 February 2016, 13 July 2016, 28 February 2017 and 29 March 2017. He also relied upon a financial statement sworn by him on 5 May 2017. At trial he relied upon amendments made to his sworn material. The husband also relied upon evidence given by Mr A.

3. The wife relied upon affidavits of evidence sworn by her on 13 April 2016 and 17 February 2017 together with a financial statement sworn by her on 14 April 2016. She also relied upon affidavits of evidence sworn by:-

   a)Ms [X], the eldest daughter of the parties, sworn 1 February 2017;

   b)Mr P, brother of the wife, sworn 1 February 2017;

   c)Mr D, brother of the wife, sworn 3 February 2017;

   d)Mr M, the wife’s uncle, sworn 1 February 2017;

   e)Ms J, the wife of Mr M and thus the wife’s aunt by marriage, sworn 1 February 2017;

   f)Mr Z, former business partner of the husband, sworn 1 February 2017; and

   g)Dr K, General Practitioner, sworn 21 September 2017.

4. The parties accepted the valuation evidence of Mr W of (omitted), Certified Practising Valuer, affirmed 10 October 2017 as to the value at trial of the real property situate at and known as Property A in the State of Victoria being the whole of the land described in Certificate of Title Volume (omitted) (‘the former matrimonial home’). That valuation, an updated valuation from that earlier obtained by the parties, valued the former matrimonial home in the sum of $775,000.

5. Each of the parties witnesses was cross-examined. Statements of fact in these reasons are findings of fact on the balance of probabilities.

Background Matters

1. The husband was born in (country omitted) on (omitted) 1970 and is now aged 47 years. He resides in accommodation in (omitted) and pays a rental sum of $150 per week. He is a (occupation omitted) in receipt of income of approximately $265.50 per week (a total of $13,806 per annum gross). The husband’s income is supplemented by a Newstart allowance of $147.00 per week and rental assistance of $44.06 per week. The husband does not utilise his earning capacity. He is a very experienced (occupation omitted) in an industry where he has been able to readily obtain employment.  Alternatively, as claimed by the wife, the husband in fact earns a greater income than he declares, which is denied by him.

2. The wife was born in Australia on (omitted) 1972 and is aged 45 years. She resides in the former matrimonial home which has no outstanding mortgage sum owing. Her accommodation is thus not a cost, save as to maintenance and outgoing expenses. The wife is in receipt of a carer’s benefit and family tax benefits. Her average weekly income is $672. She is unable to earn income outside the family home by virtue of the special needs of two of the parties’ three children. The parties’ eldest daughter [X] resides with her mother and siblings and contributes to the household expenditure in the sum of $200 each week. No child support has been paid by the husband since separation. However, an amount of $58,000 was gifted to [X] by her father in 2015, as claimed by [X] and her mother, or made by the husband as a lump sum child support payment for two of the three children of the parties, together with an amount for the wife, to be applied by the wife to the support of the family whilst he was residing for some months in (country omitted), as claimed by the husband.

3. The husband migrated to Australia in November 1993. He and the wife were earlier married on (omitted) 1993, in (country omitted). The parties lived their married life in Australia. They separated between December 2014 and March 2015 after a period of cohabitation of some 21 and a half years. The husband travelled to (country omitted) in December 2014 to have a “break”. Neither party at that time thought the marriage would end. However, when the husband returned to Melbourne some three months later, he did not return to the former matrimonial home. The wife made it clear the marriage was at an end. The wife and children have continued in occupation of the former matrimonial home since that time, being some three years. This has afforded them rent and mortgage free accommodation. The husband continued to pay the instalments due with respect to the placing of solar panels on the roof of the former matrimonial home until the total sum of $2,500 was paid out.

4. As at the date of physical separation on 11 December 2014, there was a balance in the known (by the wife) bank account of the husband of $5,580.81. Within a matter of days several deposits were made into the account increasing the balance to $74,863.94 with the following deposits:-

   a)$39,875.32 on 16 December 2014 from (bank omitted) Term Deposit Proceeds;

   b)$157.81 on 16 December 2014 being credit interest redirection from  Account No. 063-595 50208544; and

   c)$30,250.00 on 16 December 2014 being a cash deposit.

5. The parties have three children in relation to whom the wife has been, mostly, and continues to be in respect of the younger two, the primary carer. They are:-

   a)[X] born on (omitted) 1994 (‘[X]’), who is now aged 23 years;

   b)[Y] born on (omitted) 1999 (‘[Y]’), who is now aged 18 years; and

   c)[Z] born on (omitted) 2001 (‘[Z]’), who is now aged almost 17 years.

6. The parties’ daughter [X] is a (occupation omitted). She received the sum of $58,000 into her account from her father, who had deposited such funds into the account of his brother, Mr F, on 27 January 2015, when he was in (country omitted). These monies derived from the $74,863.94 sum deposited in the husband’s bank account. Her evidence was that such monies are a gift from her father to be applied in the purchase by her of her first home. She has retained such monies in a bank account in her name. She was not a party to the proceedings, but rather a witness for her mother. Whilst the husband does not seek a return of these funds, he requires them to be taken into account on the wife’s side of the ledger. He claimed variously that such monies were given to [X] to appease her and her mother whilst he was in (country omitted), in his pursuit of a continuation of the marriage, and that such monies represented his response to his wife’s request that he send $20,000 for each of the younger two children, and $20,000 for herself, to assist in their support. The husband’s further evidence was that the monies were placed in [X]’s account so as not to impact upon the wife’s receipt of Centrelink benefits. The wife’s evidence was that she in fact requested a sum of $50,000 for each of the two younger children and herself (a total of $150,000) to see if her husband would show his love for her. He failed to do so. 

7. The parties’ daughter [Y] has an intellectual disability, autism, ADHD, skeletal syndrome, hip dysplasia and scoliosis. She requires full time care and has had, amongst other difficulties, ongoing debilitating and painful surgery to her left hip and knee and will require same in respect of her right hip and knee. Her necessary care is provided by her mother. She has been medically diagnosed as having Fragile X syndrome with an associated intellectual disability.

8. The parties’ son [Z] has spina bifida occulta and recurrent lower back pain. He is missing two ribs. He also requires, to a lesser extent than [Y], his mother’s care.

9. None of the parties’ three children have an ongoing relationship with their father. This has been the case since the parties’ separation. The only real dialogue which has occurred was that between [X] and her father when [X] requested monies from him generally, including those which she claimed he had promised her.

10. The husband’s health is reasonably good. The wife’s health is as described by Dr K in his affidavit of 2 September 2017. That evidence was essentially unchallenged by the husband. Whilst the wife’s prognosis for the short term is uncertain, her prognosis for the long term is “optimistically reasonably good”.  The wife suffers, in the main with, “generalised epilepsy with photic sensitivity and depression related to situational stress”.  Her depression has resulted in her being on a mental health plan over a number of years, and her being prescribed anti-depressants. Her reported difficulties with her husband’s ongoing absences was reported by Dr K to have commenced in May 2007, with the wife reporting “episodes of crying that she found hard to stop and associated chest pains. She reported limited support from family and friends”. The wife’s epilepsy and photic sensitivity stabilised on Epilim. Her stress and depression, Dr K opined may improve “from the resolution of her marital separation”. The wife’s capacity for gainful employment in the short and long term was however, according to the evidence of Dr K, restricted “by her mental health being affected by her stress and depression, by side effects of the medication epilim and by her commitment as the primary carer for her adult child with disabilities”. Dr K’s opinion was further that the wife, in the longer term, “may be able to perform part-time work at her own pace and tolerance in an environment that can support her restrictions”.

Asset pool at trial

1. The assets, liabilities and superannuation of each of the parties at trial was as follows:-

Item	Value
Current Assets	Wife	Husband
1	Former matrimonial home	Agreed value of $775,000
2	Husband’s assets in (country omitted)	$600,000+ is claimed by the wife	Nil is claimed by the husband
3	Wife’s (omitted vehicle)	Agreed value of  $7,700
4	Husband’s (omitted vehicle)	Agreed value of  $4,500
5	Wife’s jewellery (as per affidavit of valuer Mr P Sworn 17 February 2017)	Agreed value of  $13,380
6	Husband’s jewellery	Not in his possession nor says the wife, in her possession. No value ascribed.
7	Wife’s credit card at separation	$3,000 debit.
8	Monies held in Husband’s (bank omitted) account at separation	$74,863.94. These monies were accessed by the husband whilst in (country omitted). On 16 December 2014 he withdrew the sum of $68,280. On 22 January 2015 the husband paid, out of this sum, an amount of $58,000 to [X].
9	Household contents	Each have in their possession with no value ascribed.
Superannuation
(omitted superannuation fund)	$23,494 for wife	Nil for husband

Contribution

1. When the husband came to Australia to reside, he commenced to reside with the wife and her parents in her parents’ home in (omitted). Neither of the parties had any assets of any significance. The parties resided in (omitted), rent free, for approximately two years, and then commenced to pay to the wife’s parents a subsidised rental of $100 per week for a further approximately two and a half years. The wife’s parents returned such rental receipts to the wife in a lump sum of approximately $13,000 to be applied by the wife for her everyday needs. The husband had no knowledge of this gift from the wife’s parents. The wife used such monies to supplement the family’s income until 2008 when the monies were fully expended. Whilst residing with the wife’s parents, the parties were in receipt of unemployment benefits, and in receipt of income. The wife worked at a (employer omitted) as a (occupation omitted) for initially between 20 to 30 hours each week, and then for a greater number of hours, in excess of 40 hours each week but otherwise not able to be determined on the evidence. The husband provided primary care, on the wife’s evidence, to the parties’ eldest child, while the wife worked. The husband also obtained various forms of employment with differing employers with periods of unemployment between those jobs. Included in such jobs were two periods with differing (employer omitted) wherein the husband was employed variously as (occupation omitted). The obtaining of these skills led to his subsequent employment which provided the main income for the family from 1998 onwards.

2. The parties savings from their employment and Centrelink benefits, and the assistance provided by the wife’s parents, in their provision of funds including for food, some of which was provided directly by them, and household expenses, together with accommodation, enabled the parties to purchase the former matrimonial home in March 1998. The parties placed an amount of $50,000, being savings accumulated by them, albeit placed in an account in the wife’s name only, toward the purchase price of $142,000 plus costs and borrowed the balance, in the sum of $92,000 plus costs by way of mortgage to complete the purchase of the former matrimonial home. The parties and their children lived frugally over a five to six year period to repay the mortgage sum in its totality. From 2004, the parties owned the former matrimonial home outright. In 2012 the parties expended further savings on significant renovation works to the former matrimonial home. They did not need to borrow any funds to complete the renovations. The cost was approximately $180,000 on the husband’s evidence and $100,000 on the wife’s evidence. The husband was an owner-builder. He controlled every aspect of the building including its cost. The wife was not so included. The wife however, at around the time of commencement of the renovation had seen a bank statement in respect of an account in the husband’s name. It had a $100,000 credit. The wife’s position at trial was that she had no idea they had so much money, and they certainly had no more, and that the quantity and quality of the work performed in respect of the renovation was not in excess of $100,000. The Court had insufficient evidence before it to determine which of the parties accurately stated the position. An amount of at least $100,000 was expended on the renovation was the only conclusion open in the absence of any corroborating evidence.

3. Also in 1998, the husband and wife (as equal owners as to one half) commenced a (omitted) business operation with the husband’s cousin Mr Z. The business, in leased premises, was called (omitted). The cost to the parties was approximately $54,000. The parties applied approximately $1,000 of their savings to the establishment of this business and borrowed the remaining sum of $40,000 from the (bank omitted) and possibly a relative. It was all required to be repaid. The husband and Mr Z operated this business for sixteen years until its sale in 2014. One half of the net sale proceeds in the sum of approximately $16,000, was money belonging to the parties and retained solely by the husband. Throughout the operation of this business, the income, being 50% of the profits, derived by each of the partners in this business was relatively modest, as declared to the Australian Taxation Office. The husband’s taxable income for the financial year ended 30 June 2012 was $23,336; for the financial year ended 30 June 2013 was $19,270; and for the financial year ended 30 June 2014 was $8229. In the years prior to the financial year ended 30 June 2012 the husband’s evidence and that of his business partner, Mr Z, was that the income earnt was approximately $15,000 to $20,000 a year. It was income which was “liveable. Not much” said the husband. The wife’s income after returning to part-time work in 2008 was also very modest. In the financial year ended:-

   a)30 June 2012, her income was $12,500;

   b)30 June 2013, her income was $8,948; and

   c)30 June 2014, her income was $9,822.

1. In March 1999 the wife had ceased working anticipating the birth of [Y]. The wife continued to seek some financial support from her parents for living expenses. The husband sent “a few hundred dollars from time to time” to his mother in (country omitted). The wife returned to work in 2008, returning to her previous employer to work on a part-time/casual basis for 15 hours each week. She ceased this employment in November 2014 as a result of [Y]’s special needs.

2. Given the parties’ very small income, and support of their children, it is difficult to see how the parties managed to repay the total capital and interest payments with respect to the mortgage encumbrance on the former matrimonial home in a five to six year period; undertake renovation works at a total cost of $100,000 or $180,000; travel to (country omitted) in 2004 for an extended holiday; and repay their (omitted) business loan. The husband’s evidence and that of Mr Z, as allegedly told to him by the husband, was that the husband was making commissions at the (business omitted) by way of additional income. The husband’s further evidence, not appearing in any affidavit evidence and not previously claimed by him was that he received considerable monies from his successful and continuous gambling activities. He claimed the cost of renovations of $180,000 was funded by gambling. He otherwise claimed to have worked as a (occupation omitted) in a limited capacity, which the Court accepts, and to have been able to save those Centrelink benefits paid to the wife.

(country omitted)

1. During the period of operation of the (omitted) business, with income receipts considerably less than the average weekly wage, the evidence of the wife and many of her witnesses, including Mr Z, was that the husband was sending money to (country omitted) to be held in the account of his brother, Mr F (‘Mr F’). Such transfers were made in cash via the agency of Mr Z’s father and others, who were travelling to (country omitted), and otherwise through the bank accounts of third parties. Mr Z gave evidence that in about 2010, the husband told him he had in (country omitted) USD$600,000 in a term deposit; two apartments; and a building apartment complex as a joint venture with his brother Mr F. In subsequent years, the husband allegedly told Mr Z that he had sold the apartment complex and bought another block of land and was drawing up plans for a larger project.

2. The evidence of Mr P and Mr D, both brothers of the wife, was to the same effect as that of Mr Z, namely that the husband told them he had money in (country omitted). Mr D’s evidence was that the husband told him that he had both real estate and savings in (country omitted), and in conversations had between them in December 2014 and January 2015, being a time when the husband was seeking a continuation of his marriage, the husband claimed such monies to be savings of approximately $400,000 which he then reduced in quantum to $300,000. Mr P’s evidence was that the husband transferred the sum of $25,000 to his brother Mr F’s bank account in (country omitted), with the assistance of Mr P, the husband depositing such monies into Mr P’s bank account for transfer to the husband’s brother in (country omitted). Mr P’s evidence was that he did not tell his sister of such request from the husband or of the transaction. This conflicts with the husband’s evidence which is that such transfer of funds did occur, and on 18 June 2008, but that the wife had knowledge of the transfer made by her brother Mr P to Mr F. Such funds, the husband claimed, were a repayment of monies loaned by the parties from Mr F. The loan was advanced, the husband claimed as USD$15,000, whilst the parties and their children were holidaying in (country omitted) in 2004 for three and a half months. By 2008 Mr F needed his loan repaid, and the parties did not have the funds. They used Mr P’s monies, and the parties then repaid him in instalments, over a period of approximately two and a half years between 2008 to 2011. Mr P denied this. The evidence of Mr P is preferred to that of the husband. The husband’s evidence if far-fetched and convoluted and not supported by any of the other evidence nor any documentary evidence. It is entirely implausible.

3. [X] gave evidence that her father, in 2004, and when she was 11 years of age, took her to see a property whilst the family were travelling in (country omitted), and said to her “this is our apartment”. [X] claimed further that her father showed her land her father claimed (to her) to be building a home on. [X]’s evidence is further that in 2013, her father told her he had “up to a million dollars in savings overseas” and promised to provide her with monies to purchase her own home. She claimed there were photos of a building said to be the husband’s, but none were produced by her.

4. Mr M and Ms J are the uncle and aunt of the wife. Their evidence was that they were in regular contact with the parties and their children during the course of the marriage. Both of them gave evidence that they were aware that the husband was transferring monies overseas. On one occasion the husband requested of Ms J that she assist him in transferring funds overseas and she refused. Her husband’s evidence was that the husband, in 2010, told him that the husband had USD$600,000 in a term deposit in (country omitted) together with two apartments, one of which was in the name of his brother Mr F.

5. Both Mr M and Ms J gave evidence that in early December 2014, the husband came to their home before his departure for (country omitted) and gave to Ms J “a very large bundle of money for her to hold for him for 24 hours”. The money was returned to the husband. Mr M’s further evidence was that the husband told him, in 2013, he was involved in prostitution and as a consequence had managed to send the sum of $100,000 to his brother Mr F in (country omitted), through the agency of an Asian woman with whom he was involved in the prostitution business. Mr M and Ms J were impressive, candid witnesses and their evidence is credible and preferred to that of the husband.

6. On the wife’s evidence, the husband told her he had monies; apartments and a block of land in (country omitted). The wife claimed when he departed the home in December 2014 he “left with a plastic bag containing bundles of monies and saying “I don’t need my clothes, I’ll take this $30,000 and buy new ones”.” The husband initially left an amount of $45,000 in a (bank omitted) account for the wife’s use, but shortly thereafter withdrew approximately $40,000 and deposited that sum in his bank account referred to in paragraph 9 above.

7. The wife discovered, post the husband’s departure, three transfer fund documents evidencing a transfer of funds from Australia to (country omitted) on 13 September 2007; 16 June 2008; and 18 June 2008 and for transfer of monies of $50,000, $25,000 and $25,000 respectively from the wife’s brother Mr P and from Mr A to the husband’s brother Mr F. The wife had no knowledge of such transfers. Nor did she think the parties had any monies available to them, beyond that on which she had struggled to provide for the household and the children.

8. The international transfers of 13 September 2007 and 16 June 2008 totalled $75,000. The evidence of the husband and Mr A was that such funds belonged to Mr A, and not the husband. Mr A claimed to have transferred such monies to Mr F in (country omitted) as a result of Mr A entering into a business venture with Mr F that was spectacularly unsuccessful. Mr A sent the funds to (country omitted) and never saw them again. He sent the second transfer, having no idea as to what had happened to the first transfer of monies some nine months earlier. These monies Mr A claimed, were the accumulation of cash sums, saved by him over some years and kept in his home. He claimed that he had cash monies in small denominations that he was able to swap into larger denominations at local shops. Whilst he had his own bank account, he elected to carry two large sums of cash, across town, to deposit same in the bank account of the husband for transfer to Mr F. The husband was present on each occasion. The applicant for the international transfer was said to be Mr A.

9. Mr A was not an impressive witness. The Court does not accept the evidence of the husband and Mr A as to the sum of $75,000 being monies belonging to Mr A and finds such monies were monies of the husband. As submitted by Counsel for the Respondent, it is completely implausible that Mr A progressively converted small cash amounts put aside here and there into $100 and $50 denominations by exchange at “the shops”, in order to accumulate $75,000. Likewise it is improbable that he took $50,000 of his own money, in cash, in $100 and $50 notes, from his home in (omitted) to the (bank omitted) in (omitted) (near where the husband worked in (omitted)) and deposited that cash with the bank in order to send it to (country omitted). Mr A had no documentary evidence at all to support any part of his story.

10. Further Mr A had a very remote relationship with Mr F, and no plausible reason to commence a business with him. To suggest that he sent a further sum of $25,000 to Mr F having had no return or explanation as to the whereabouts of his earlier $50,000 sum forwarded, is utterly implausible.

11. The husband denied each and every of the allegations made by the wife’s witnesses, as to him having taken money to (country omitted) in 2014; having sent money to (country omitted) over many years and/or saying to anyone that he had monies and/or real property in (country omitted). The husband produced in evidence an official title search from the (country omitted) Land Registry Office which indicated, that as of March 2017, the husband did not own any real estate properties in (country omitted). The wife had conducted her own search, at a cost of $1000, to also discover the husband had no recorded real property in (country omitted) in his name.

Conclusion

1. The s.75(2) of the Family Law Act 1975 (Cth) (‘the Act’) matters significantly favour the wife. Her needs are overwhelming in circumstances where the husband is able to work and earn a superior income. For the reasons given above, a significant adjustment is required on this basis. No such adjustment is required on a contribution basis, both parties having made approximately equal contributions both during the marriage and after, for the husband in his provision of accommodation to the family and in [X]’s retention of $58,000 which the Court shall take into account as a payment by the husband for the support of the family in the intervening period. Additionally, the husband made a contribution of considerable previously unexplained income, which he now attributes to gambling winnings.

2. The Court accepts that the husband has said that which he is alleged to have said. But there is limited evidence to support the validity of the content of such statements. Certainly the Court does find the husband transferred $100,000 to (country omitted) together with other cash amounts of indeterminate sum up to $10,000. The question for the Court is how to take this into account. The Court considers the income of the parties over the years of their marriage to be, as declared, almost subsistence level. It is clear that the husband obtained considerable cash sums from another source. He did however diligently save those in Australia and applied them to firstly, the eradication of the former matrimonial home mortgage, followed by expenditure on a trip to (country omitted). He then commenced to save over the following eight years a further sum of $100,000 or $180,000. He then applied these monies to the renovation of the former matrimonial home. He also, over sixteen years, repaid the business loan. Both parties have a modest car; the wife, jewellery; and at separation there was in excess of $75,000 in savings. All of this goes to the Court concluding that most of the parties’ assets are in Australia and the husband has not the assets claimed by him, or others, in (country omitted). There must of course be, added to the asset pool, a sum of at least $100,000 which the husband has transferred to (country omitted). There are other amounts, their application unknown. In circumstances such as this, where there is some non-disclosure by the husband, the Court must carefully consider its satisfaction, in all the circumstances which include this fact, as to the justice and equity of making the orders that are made. The Court considers an amount of approximately $150,000 is monies the husband has already received via his transfer of funds. That sum, notionally added to the value of the former matrimonial home is $925,000. An adjustment favouring the wife on a consideration of s.75(2) matters (as set out in these reasons), together with a further small adjustment relating to the uncertainty the husband’s non-disclosure results in an apportionment to the husband of 25% of $925,000 which is $231,250 of which the husband has $150,000. Thus $81,250 should be paid to the husband for his interest in the former matrimonial home. The remaining assets can remain in whose possession they now are. They are of modest value. The husband received the greater sum of the parties’ savings and received the net proceeds of the sale of the (omitted) business. He will be able to re-build his financial life in a way not possible for the wife. The Court is satisfied it is just and equitable to make the orders which it does.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 25 January 2018