Flynn & Hadley
[2022] FedCFamC2F 892
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Flynn & Hadley [2022] FedCFamC2F 892
File number(s): SYC 5827 of 2020 Judgment of: JUDGE CAMPBELL Date of judgment: 7 July 2022 Catchwords: FAMILY LAW – property proceedings – orders altering existing property interests - meaning of defacto relationship - failure to provide full and frank disclosure - deliberately hidden or fabricated evidence - where the wife made greater initial contributions - negative contribution - proceeds of sale held in trust Legislation: Family Law Act 1975 (Cth) ss 4AA, 75, 79, 90SM, 90SF) Cases cited: Chang v Su (2002) FLC 93-117
Chang v Su [2002] HCA Trans 549
Hickey v Hickey [2003] FamCA 395
Stanford v Stanford (2012) 247 CLR 108
Weir and Weir (1993) FLC 92-338
Division: Division 2 Family Law Number of paragraphs: 174 Date of last submission/s: 17 March 2022 Date of hearing: 25 – 26 October 2021, 4 February 2022, 17 March 2022 Place: Wollongong Counsel for the Applicant: Mr Apelbaum Solicitor for the Applicant: Mr Hobson Counsel for the Respondent: Mr Lo Schiavo Solicitor for the Respondent: Ms Gray ORDERS
SYC5827 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS FLYNN
Applicant
AND: MR HADLEY
Respondent
ORDER MADE BY:
JUDGE CAMPBELL
DATE OF ORDER:
7 JULY 2022
THE COURT ORDERS THAT:
1.Within 28 days of the date of these orders each party shall do all such things and execute all such documents and instruments as may be necessary to cause the wife be paid the sum of $937,483.25 from the monies held in trust by D Law Firm solicitors.
2.Within 28 days of the date of these orders each party do all such things and execute all such documents and instruments as may be necessary to cause the husband be paid the sum of $180,649.75 from the monies held in trust by D Law Firm solicitors.
3.In the event that, after the payments are made in accordance with orders 1 and 2 herein, monies remain held in trust by D Law Firm solicitors, then those remaining monies shall be paid as follows:
(a)seventy-five percent to the wife; and
(b)the balance to the husband.
4.The wife is declared to have the sole rights of ownership, as against the husband, in and to all other assets and financial resources currently in her possession or control.
5.The wife is declared to be solely liable, with respect to the husband, to all debts for which she is currently liable in her sole name.
6.The husband is declared to have the sole rights of ownership, as against the wife, in and to all other assets and financial resources currently in his possession or control.
7.The husband is declared to be solely liable, with respect to the wife, to all debts for which he is currently liable in his sole name.
8.In the event that a party refuses or fails to execute any document or instrument necessary to give effect to these orders within 14 days of a written request that they do so, then each Deputy Registrar and Judicial Registrar of the Federal Circuit and Family Court of Australia (Division One) and each Deputy Registrar and Judicial Registrar of the Federal Circuit and Family Court of Australia (Division Two) is appointed, pursuant to the provisions of s 106A Family Law Act 1975 to execute such document or instrument in the place of that party.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Flynn & Hadley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMPBELL
BACKGROUND
In these proceedings each party seeks orders altering existing property interests pursuant to s 90SM of the Family Law Act 1975 (Cth) (‘the Act’).
The applicant is Ms Flynn and the respondent, her former de facto husband, Mr Hadley. Although the parties were never legally married, for convenience I will refer to them as ‘the wife’ and ‘the husband’ respectively. The wife is 68 years of age and the husband 79. Both parties are retired and receive the age pension. There are no children of the relationship and neither party has an obligation to support any other person.
The husband asserts that the parties began a de facto relationship “in private” in 2004 with their relationship “becoming public” in 2006. The wife denies that. She agrees that the parties had an intimate relationship from 2004, but says it did not become a de facto relationship until about October 2011 when the husband moved into the wife’s home at B Street, Suburb C (‘the B Street, Suburb C house’).
At the time the parties started living together in the B Street, Suburb C house, it was owned jointly by the wife and her former husband, Mr Flynn. In October 2013 the parties obtained a loan secured by mortgage over the B Street, Suburb C house, to purchase Mr Flynn’s interest in that house for $500,000. After that, the B Street, Suburb C house was owned by the wife and the husband in equal shares as tenants in common.
During the period that the parties lived in the B Street, Suburb C house the husband carried out building work to the property that is the subject of dispute between them.
The parties separated in April 2019, but both remained living in the B Street, Suburb C house until the husband moved out in June or July 2019.
After the husband left the B Street, Suburb C house the wife repaired some of the building work done by the husband on the husband and completed the renovations. The B Street, Suburb C house was then sold. The nett proceeds of that sale, after payment of the outstanding mortgage debt, agent’s commission and costs of sale, in the sum of $1,118,133 are held in the trust account of D Law Firm Solicitors at Suburb C (‘the proceeds of sale’).
Although each party argued the case with a global asset approach, each of them sought to keep the assets in their respective possession or control and their arguments ultimately centred on how much each of them would take from the proceeds of sale.
COMPETING PROPOSALS OF EACH PARTY
By the end of the hearing the wife’s proposal was that she receive 80 per cent of the nett asset pool and the husband receive 20 per cent. I understood that proposal to reflect an assertion that the wife’s contributions were far superior to those of the husband, with some weighting in her favour as a result of the husband’s failure to provide full and frank disclosure and, what she claimed to be, his deliberate attempts to mislead the court. The wife further says there should be no adjustment for future needs of either party. Counsel for the wife suggested that this would result in the husband receiving, in addition to the property he already has, a payment of $130,000 from the nett proceeds of sale of the B Street, Suburb C house, and the wife receiving the balance of those monies.
The wife also made an alternative proposal, the reasoning for which I did not understand, and have consequently not considered.
The husband’s proposal at the conclusion of the case was that the court should assess his contributions as 45 per cent, and the wife’s as 55 per cent. With a further adjustment of five per cent in his favour to reflect his greater future needs, the husband says this would result in an overall division of 50 per cent of the nett asset pool to him and 50 per cent to the wife.
THE RELEVANT LAW IN RELATION TO THE DIVISION OF ASSETS.
In determining what order, if any, the court should make adjusting the existing interests and obligations of the parties, the court has a broad discretion to make such orders as it determines, provided those orders are just and equitable. It should not be assumed that it will be just and equitable to do so in every case.
In Stanford v Stanford (2012) 247 CLR 108 the High Court stated:
42.In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary any fatseverance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
Applying the reasoning in Stanford to the facts of this case, I have no doubt that it is just and equitable to consider making property settlement orders in this case. The parties are no longer living in a de facto relationship and they no longer have the common use of, and benefit from, the various assets and resources in the pool. They each want to change the existing arrangements so that each has financial autonomy. They each want the court to make orders that ‘will finally determine the financial relationship’ between them. Their dispute concerns not whether there should be any alteration to existing rights and obligations, but the nature and extent of the alterations that ought to be made because of the changes to their relationship.
While broad, the discretion to make orders altering the interests of the parties in property is not unfettered. It must be exercised judicially and guided by the relevant statutory provisions. In this case those provisions are found in s 90SM of the Act.
In applying s 90SM(4)(e), the court must also consider the relevant provisions of s 90SF(3) of the Act.
In this case the particular s 90SF(3) considerations that appear to be of particular relevance are:
(a)the age and state of health of each of the parties;
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.
In Hickey v Hickey [2003] FamCA 395 the Full Court of the Family Court summarised the approach a court should take in a property settlement case in terms of four steps:
39. The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), ("the other factors") including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case.
Although Hickey referred to the provisions of ss 79 and 75(2) of the Act, its reasoning is equally applicable to cases brought pursuant to s 90SM of the Act.
ISSUES
The following issues emerged from the evidence relied upon and submissions made by each party:
(a)when did the de facto relationship commence?
(b)what are the existing rights, entitlements, and liabilities of the parties?
(c)what were the contributions of each party pursuant to s 90SM(4) of the Act, and what weight should be given to them?
(d)What are the future needs of the parties pursuant to s 90SF(3) of the Act, and what weight should be given to them?
As part of the consideration of matters arising under s 90SF(3) two further issues arise for consideration under s 90SF(3)(r):
(a)has the husband failed to provide full and frank disclosure and, if so, what effect should that have?
(b)has the husband deliberately hidden or fabricated evidence in relation to certain motor vehicles, in an attempt to exclude them from the nett asset pool or reduce their value and, so, what effect should that have?
I will deal with each issue in turn.
When Did the De Facto Relationship Commence?
The husband asserts that he and the wife “met and commenced an exclusive de facto relationship in or about 2004”. The wife denies that and says that, while they had an intimate relationship from about 2004, the de facto relationship did not commence until the husband moved into the B Street, Suburb C house in October 2011.
The husband seems to concede that he moved into the B Street, Suburb C house on the date claimed by the wife, implying that he moved in seven years after 2004, and offering no evidence of a more specific date that would contest that claimed by the wife. I find that the husband moved in to the B Street, Suburb C house in October 2011.
The issue for the court to determine is whether between 2004 and October 2011, having regard to all the circumstances of their relationship, the parties had a relationship as a couple living together on a genuine domestic basis.
The relevant law for determining that issue is found in s 4AA of the Act which provides:
Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
In this case, the question of whether the parties were living in a de facto relationship at a certain time turns on the court’s determination whether, having regard to all the circumstances of their relationship, the parties at the relevant time had a relationship as a couple living together on a genuine domestic basis. As provided by sub-ss 4AA(3) and (4) the court has a very broad discretion in determining that question – a discretion guided by the factors set out in sub-s 4AA(2).
Some of the circumstances referred to in sub-s 4AA(2) are agreed.
The parties agree that some form of personal relationship started between them in about 2004, and from that time it was an intimate sexual relationship. The wife acknowledges that she sent the husband affectionate messages in cards. She also agrees that she made diary notes about her growing feelings for him. It is agreed that they travelled together on holidays, making use of discounts available to the husband as a transport worker. The wife was nominated as a beneficiary on a list maintained by the employer for which the husband worked, enabling her to access cheap flights. It is agreed that they were registered at hotels on occasion as ‘Mr and Mrs Hadley.’ It is also agreed that, while they were on holidays or when they went out together, they paid for some expenses for each other.
It also appears undisputed, however, that between 2004 and October 2011 the parties largely did not share a common residence, did not share the ownership use and acquisition of property, and did not share the care and support of children.
Apart from what is agreed above, the husband’s evidence in relation to the matters set out in sub-s 4AA(2) for the period from 2004 to October 2011 might reasonably be characterised as limited. In particular, while there is some evidence about the financial provision each of the parties made to the other, in aggregate the occasions when they did so account for only a very small portion of the totality of the time between 2004 and October 2011. The husband’s evidence does not address any financial dependence or interdependence between the parties, or their arrangements for financial support of each other, during those significant portions of the seven years between 2004 and October 2011 when the parties were not travelling together, but were instead living their day to day lives.
The husband’s evidence is also extremely limited in relation to the degree to which the parties exhibited a mutual commitment to a shared life, amounting to not much more than the statements:
Our relationship became stronger we became publicly a couple […]
and
After discussing it with Ms Flynn and because the relationship was going well and I loved her, we agreed to move in together.
The husband does not explain the ways in which their relationship became stronger or was going well.
Similarly, apart from the broad assertion that their de facto relationship became public in 2006, and the matters noted above, the husband’s evidence is extremely limited in relation to the reputation and public aspects of their relationship. In particular, he provides no evidence from his family or friends concerning their experience or perception of his relationship with the wife from 2004 to October 2011. Nor does the husband give evidence concerning his involvement with the wife’s family and friends prior to October 2011, or how they perceived his relationship with the wife. Significantly, the evidence of the only other witness called by the husband (his son Mr E – whom I expect ought to have been able to give evidence of his observations of the relationship between his father and the wife between 2004 and October 2011) is entirely silent on that issue.
In summary, apart from a number of special occasions – in particular, overseas trips – there is very little evidence from the husband showing how the de facto relationship, which he exerts existed between 2004 and 2011, was expressed in the lives lived by the parties, their interactions with each other, and their interactions as a couple with family, friends and the broader society. I accept that no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether parties have a de facto relationship during a particular period, that I am entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to me in the circumstances of the case. In this case, I am not satisfied on the evidence before the court that the parties had a relationship as a couple living together on a genuine domestic basis before October 2011. I find that the de facto relationship between the wife and the husband commenced in October 2011 when the husband moved into the B Street, Suburb C house.
What are the Existing Rights, Entitlements and Liabilities of the Parties?
On the second day of hearing many of the initial arguments concerning the existing rights, entitlements and liabilities of the parties were resolved and a balance sheet reflecting that amended position was tendered to the court. Many of the items on the balance sheet, including the most significant asset in terms of value, were agreed. Some items, however, continued to be disputed. That balance sheet provides:
Ownership Description Applicant’s Value Respondent’s Value ASSETS 1 Joint Funds in trust held by D Law Firm at B Street, Suburb C 1,118,133 1,118,133 2 Wife Motor Vehicle 1 22,350 22,350 3 Husband Motor Vehicle 2 20,000 0 4 Husband Motor Vehicle 3 7,800 0 5 Husband Motor Vehicle 4 6,000 0 6 Husband Motor Vehicle 5 8,000 0 7 Husband Motor Vehicle 6 gifted to son x 2 7,000 0 8 Wife Bank F savings #...78 As at 30/06/21 5,364 5,364 9 Wife CBA smart access account 1 #...97 As at 23/06/21 1,212 1,212 10 Wife CBA Netbank saver account 2 #...21 As at 03/07/21 9 9 11 Wife CBA Goal saver account #...48 As at 03/07/21 228 228 12 Wife Company G Shares (286) 315 Not known 13 Husband Bank H acc #...66 As at 31/07/21 267 267 14 Husband NAB acc #...08 As at 30/07/21 37 37 15 Wife Mastercard As at 25/07/21 1,341 1,341 Total $1,198,056 $1,148,941 ADD BACKS 16 Wife Funds released from trust 50,000 50,000 17 Husband Funds released from trust 50,000 50,000 Total $ 100,000 $100,000 LIABILITIES 18 Wife Personal loan for Motor Vehicle 1 6,808 6,808 19 Wife AMEX #...08 As at 10/08/21 5,555 5,555 20 Husband Bank H personal loan #...36 As at 30/07/21 4,956 4,956 21 Wife CBA Smart Access #...57 As at 30/06/21 2 2 22 Wife CBA Awards Credit Card #...82 As at 19/07/21 44 44 Total 17,365 17,365 SUPERANNUATION Member Name of Fund Type of Interest Applicant’s Value Respondent’s Value 24 Husband Mr Hadley Super Fund SMSF Nil Nil 25 Wife Nil Nil Total $0 $0 TOTAL NETT ASSETS (including Superannuation) 1,280,691 1,231,576
During the course of the hearing, information that emerged through cross examination altered the assertions of each party in relation to some of the remaining areas of dispute. For example, at the conclusion of the hearing the wife contended that the Motor Vehicle 2 had a value significantly greater than the $20,000 she had proposed. Similarly, as I understood the wife’s case, at the end of the case she no longer agreed that the husband’s superannuation entitlements had a nil value.
In summary, the disputed items in the balance sheet are the wife’s Company G shares, the Motor Vehicle 2 motor vehicle, several other motor vehicles belonging to the husband, and the husband’s superannuation entitlements. I will deal with each in turn.
The wife’s Company G shares.
In relation to the wife’s Company G shares, that dispute received practically no attention in terms of evidence and submissions during the hearing. Given the number of shares asserted, and the small value assigned to them, I consider the best course is to put them in the balance sheet at the value claimed by the wife.
The Motor Vehicle 2
In relation to motor vehicles, by far the greatest effort and amount of time during the hearing was devoted to arguments concerning the ownership and value of a Motor Vehicle 2.
Ownership
The wife’s evidence it relation to the ownership of the Motor Vehicle 2 is as follows:
29. In 2012, Mr Hadley purchased a collectors Motor Vehicle 2. He stored the Motor Vehicle 2 in the garage of our home and it was kept there until he moved out.
30. On multiple occasions throughout our relationship, Mr Hadley said to me words to the effect of “the Motor Vehicle 2 is my superannuation” and “the Motor Vehicle 2 is part of my estate.”
31. During the last year of the relationship, Mr Hadley and I had multiple conversations to the following effect:
Me: “If you can’t afford to pay the mortgage, sell your Motor Vehicle 2 or your shares.”
Mr Hadley: “I can’t do that, they’re part of my estate.”
32. Neither Mr Hadley nor his son, Mr J ever advised me that Mr Hadley had gifted the Motor Vehicle 2 to him.
33. The Motor Vehicle 2 was purchased unregistered and has not been registered throughout the relationship.
34. The Motor Vehicle 2 was insured in Mr Hadley’s name with K Insurance throughout the relationship.
I understand that the wife’s evidence in paragraph 32 to be a response to evidence by the husband in an affidavit filed on 21 October 2020 claiming that he had passed ownership of the Motor Vehicle 2 to his sons in 2013. The husband did not rely upon his 21 October 2020 affidavit in this hearing.
In support of her assertion that the husband owned the Motor Vehicle 2 up to and following separation in 2019, the wife relies on insurance documents from K Insurance. It is not disputed that those records show that the Motor Vehicle 2 was insured in the joint names of the parties up to 14 December 2019. After that date, until at least 14 December 2021, the Motor Vehicle 2 was insured in the sole name of the husband. No other person is shown in the insurance records as having an interest in that vehicle.
The wife also relies upon the evidence of a former neighbour, Mr L. In his affidavit filed 27 September 2021 Mr L says:
6. Mr Hadley kept a collectible Motor Vehicle 2 in the garage of their home throughout the majority of the time that Mr Hadley lived with Ms Flynn.
7. I sighted the motor vehicle in the garage of their home on many occasions throughout the years that Mr Hadley was living in their home.
8. I was able to sight the Motor Vehicle 2 from the street, as sometimes Mr Hadley and Ms Flynn would leave the garage door open and the Motor Vehicle 2 was in view.
9. Ms M and I also attended Ms Flynn and Mr Hadley’s home on numerous occasions to assist them with work being done on the home or with tidying it. On multiple occasions, I assisted Mr Hadley with various odd jobs including shifting furniture and sighted the Motor Vehicle 2 in the garage when I was doing that.
10. I did not sight the Motor Vehicle 2 in the garage when Mr Hadley moved in initially. However, not long after moving in, the Motor Vehicle 2 was being stored in the garage and remained there until around the time that Mr Hadley moved out.
11. About 3 to 4 years ago, Mr Hadley and I were standing in front of the Motor Vehicle 2 and had a conversation to the following effect:
Me: ''What do you think it is worth?"
Mr Hadley: "It's my superannuation. It's worth about $80,000.00."
12. I recall sighting the Motor Vehicle 2 on 16 April 2019. I was assisting with laying concrete in the laundry room of Mr Hadley and Ms Flynn's home on that day.
13. Ms M and I went away for a trip in the second half of July in 2019 and it was during this time that the Motor Vehicle 2 was removed from the garage and Mr Hadley moved out of the house.
(Emphasis added)
Mr L was not challenged in cross examination concerning his evidence that, in 2017 or 2018, the husband asserted he owned the Motor Vehicle 2 and was unshaken in his evidence that the Motor Vehicle 2 left the B Street, Suburb C house around the same time that the husband did:
COUNSEL FOR THE HUSBAND: And you give some evidence about the Motor Vehicle 2 that – the car?
MR L: Yes.
COUNSEL FOR THE HUSBAND: You’ve seen that car?
MR L: On numerous occasions.
COUNSEL FOR THE HUSBAND: Do you recall when it first arrived?
MR L: No. As I said in my affidavit, it wasn’t – he didn’t bring that as soon as he moved in but, as I said in my affidavit, it was there for the majority of time that he lived there in B Street, Suburb C.
COUNSEL FOR THE HUSBAND: And you don’t recall the exact date that it left, either, then, I take it?
MR L: I was away, as it shows in my affidavit. We went away in the second half of July 2019, and both Mr Hadley and the car had gone when we got back.
COUNSEL FOR THE HUSBAND: Is it possible that it had gone before that date?
MR L: No, because, in a lot of the work we were doing on the house, it was a real painful exercise to get round it in the garage.
Mr N, a former boyfriend of the wife’s daughter, lived with the parties in the B Street, Suburb C house between September 2012 and October 2013, and for a second period between February 2017 and May 2018. Mr N was also called by the wife to give evidence concerning the Motor Vehicle 2. In his affidavit filed on 27 September 2021 Mr N’s says:
5. I sighted an Motor Vehicle 2 motor vehicle in the garage of Ms Flynn and Mr Hadley’s home while I was living there. The motor vehicle was not stored at the house initially and was later brought to the house by Mr Hadley. I cannot recall at what point the motor vehicle was brought to the home. However, I recall that once the motor vehicle was there it remained there.
6. I assisted Mr Hadley with work done to the Motor Vehicle 2. I assisted with repairs to the sill underneath the car. I assisted while Mr Hadley welded the sill. When Mr Hadley was doing work underneath the car, I assisted in retrieving tools or holding things in place.
7. I do not recall there being an engine fitted into the car. However, I recall that Mr Hadley had boxes of mechanical parts including engine parts which were stored in the garage.
8. I recall that Mr Hadley at one point said words to me to the effect of "I want to change the gearbox ratio from a four speed to five-speed."
9. I also recall that on multiple occasions during the second period I lived with Ms Flynn and Mr Hadley, Mr Hadley said to me words to the effect of “This car is my retirement. Once I fix it up I will be able to get a lot for it.”
(Emphasis added)
Like Mr L, Mr N was not challenged concerning his evidence that, between February 2017 and May 2018, the husband asserted multiple times that he owned the Motor Vehicle 2. Mr N also confirmed that the Motor Vehicle 2 was still at the B Street, Suburb C house when Mr N ceased living there in May 2018:
COUNSEL FOR THE HUSBAND: It’s the case that you lived at the residence where Ms Flynn and Mr Hadley lived for two periods of time, two distinct periods of time?
MR N: That’s correct.
COUNSEL FOR THE HUSBAND: That’s correct?
MR N: Yes.
COUNSEL FOR THE HUSBAND: And then the second period of time, had the Motor Vehicle 2 moved and not been at the residence?
MR N: Sorry. I wasn’t sure…during which period the Motor Vehicle 2 came to Ms Flynn’s – Ms Flynn’s residence. It was either the first or second period that I resided there when the Motor Vehicle 2 appeared in the garage.
COUNSEL FOR THE HUSBAND: Okay. And by the end of the second period of time, had it left?
MR N: No. It was still in the garage.
HIS HONOUR: What date do you mean by the end of the second period, Mr Lo Schiavo?
COUNSEL FOR THE HUSBAND: May 2018. Would that be the end of the second period when you resided there Mr N?
MR N: Correct.
COUNSEL FOR THE HUSBAND: And when you say it was in the garage, it was in parts in the garage, to put it…?
MR N: Sorry. Could you please repeat that?
COUNSEL FOR THE HUSBAND: It was in – it was in parts. It wasn’t complete. Like, the engine wasn’t there, no wheels on it or – you know, it wasn’t a complete car, was it?
MR N: There was a – a period where Mr Hadley was working on the car doing, you know, various things, and that would be taking various parts off or putting them back on. I remember being wheels there that you have mentioned. There were wheels on the car. There were engine parts underneath the bonnet. I don’t know whether it was a complete engine. I – I never heard the engine actually turn over, but I did see various parts of the car put together, but due to that constant changing state of the vehicle, I couldn’t be sure whether it was ever in a complete state or not.
COUNSEL FOR THE HUSBAND: And you say that you assisted Mr Hadley with his work on the car at occasions, so... and he would say, “Can you hand me a wrench”, or something like that?
MR N: Yes
(Emphasis added)
In his affidavit relied upon in these proceedings, the husband gives no evidence at all concerning the Motor Vehicle 2. His explanation for giving no evidence is that the vehicle was not his. I do not accept that explanation. The husband knew that the ownership of the Motor Vehicle 2 was a significant issue in dispute in these proceedings. Indeed, he relies upon an affidavit by his son Mr E in relation to that issue. The husband’s evidence would have been very important to the determination of that question. I infer that the husband has not given any evidence himself concerning ownership of the Motor Vehicle 2 because it would not have assisted his case if he had done so.
As I have said, instead of his own evidence, the husband relies on an affidavit by his son, Mr E, whose evidence is:
1. My brother, Mr J & I are the owners of the Motor Vehicle 2 referred to in family law proceedings as SYC5827/2020;
2. The vehicle was given to us to restore as we are more financially able to than our father.
3. The vehicle has been stored in the garage at O Street, Suburb P, NSW since purchase in 2013, apart from a period time in which it was with Mr Hadley at his B Street, Suburb C home address to complete minor rust repairs.
4. The vehicle does not have a working engine or gearbox and needs in excess of $100,000 to restore it to a roadworthy condition.
5. The vehicle was unregistered when it was purchased in 2013 and remains unregistered.
6. The vehicle was insured through K Insurance in our father’s name, Mr Hadley to reduce the premiums due to his age and ensure the vehicle was covered whilst at his home during the time he was completing the rust repairs.
7. The vehicle has been valued and I do believe it was valued at $20,000.00.
I consider the evidence of Mr E to be vague and lacking in important detail. For example, he does not say on what date the Motor Vehicle 2 was given to himself and his brother, or the precise period during which the Motor Vehicle 2 was kept at the B Street, Suburb C house. In addition to this, apart from being inconsistent with the wife’s evidence, the evidence of Mr E is inconsistent with the insurance records, and the unchallenged evidence of Mr L and Mr N concerning ownership of the Motor Vehicle 2 and the location where the Motor Vehicle 2 was garaged from time to time.
In particular, I consider Mr E’s explanation for the inconsistency between his evidence and the insurance records to be highly concerning. In part, he seems to be suggesting that he, his brother and the husband agreed to mislead the insurer as to the true ownership of the Motor Vehicle 2 in order to gain a financial advantage through lower insurance premiums. That explanation does Mr E and the husband (who put that evidence before the court) no credit. At the most fundamental level it suggests that he and the husband are prepared to lie in order to gain a financial advantage. His answers when tested on this point in cross examination were evasive and unconvincing:
COUNSEL FOR THE WIFE: Right. And you give evidence that the [Motor Vehicle 2] vehicle was insured through K Insurance in your father’s name?
MR E: That’s correct.
COUNSEL FOR THE WIFE: Say, in 2014 how much was it costing for insurance?
MR E: I don’t know. It wasn’t my premium to pay.
COUNSEL FOR THE WIFE: In 2016 how much was it costing in insurance?
MR E: Once again, I don’t know. It wasn’t my premium to pay.
COUNSEL FOR THE WIFE: In 2018 how much was it costing you in insurance?
MR E: Once again, don’t know. It wasn’t my premium to pay.
COUNSEL FOR THE WIFE: In 2019 how much was it costing in insurance?
MR E: Once again, it wasn’t my premium to pay.
COUNSEL FOR THE WIFE: How much is it costing in insurance now?
MR E: Don’t know. It’s not my premium to pay.
HIS HONOUR: Sir, can you assist me to understand what you mean when you say it’s not your premium to pay?
MR E: The car is currently insured under my father’s name through K Insurance, not my name or my brother’s name, because it was insured that way in the beginning when my dad first got the car and we never changed it over at this point in time because we just never see the need to change it over. It was cheaper to be in my dad’s name with the insurance premium, so we just kept it that way.
Apart from the concerns I have expressed above, the answers given by Mr E in cross examination are troubling for other reasons.
That evidence confirms that Mr E and his brother Mr J have not paid the insurance premiums for the Motor Vehicle 2, either directly to the insurer or by way of reimbursement to the husband. As he says, several times: “It wasn’t my premium to pay”. This explanation for not paying the insurance premiums, or even knowing the amount of the premiums, highlights several fundamental problems with his evidence. Firstly, why would the obligation to pay the insurance premiums lie with someone who was not the owner of the vehicle rather than the owners? Secondly, if for whatever reason the obligation to pay the insurance premium remained with the husband, rather than passing to Mr E and his brother, why did the latter care whether the premiums were cheaper or not – they were not paying, or even reimbursing, them? Thirdly, if the Motor Vehicle 2 did not belong to the husband, why does he continue to pay the insurance premiums, particularly in circumstances where the husband says he is suffering increasing financial hardship? No satisfactory explanation resolving these difficulties has been put on behalf of the husband.
Furthermore, the evidence of Mr E is inconsistent with a will executed by the husband on 14 March 2014 (‘the will’) in which the husband provides:
7(a) I give to my son MR J the right to buy from my trustee my Motor Vehicle 2 motor vehicle at 75% of the market value determined by a person with knowledge of the value of restored Motor Vehicle 2s.
(b) if MR J wishes to exercise his right under this clause he shall inform my trustee in writing within eight weeks of the date of my death.
(c) if MR J exercises his right under this clause then the proceeds from the sale received by my estate shall be divided equally between my sons MR E , MR Q and my daughter MS R.
(d) if MR J does not exercise his right under this clause in the Motor Vehicle 2 shall form part of my residuary estate.
It is clear from the will that on 14 March 2014 the husband considered that the Motor Vehicle 2 was owned by him and he exhibited no intention of imminently changing that ownership, envisaging rather that he would keep it until his death. Furthermore, rather than making the Motor Vehicle 2 the subject of an absolute testamentary gift, the husband does no more in his will than give his son Mr J the opportunity to purchase the Motor Vehicle 2 (albeit at a discounted price) from the husband’s estate. This seems to me to be completely at odds with the assertion that the husband would make a gift of the Motor Vehicle 2, inter vivos. Additionally, to the extent that the husband deals with the potential ownership of the Motor Vehicle 2 in his will, it is directed toward his son Mr J alone and not to two of his sons, Mr E and Mr J. All of this is inconsistent with the evidence of Mr E.
I consider it also important to note that the husband did not deny that the document tendered by the wife was his last will and testament made on the date claimed. Rather, significantly, the husband resisted the tender of the will on the basis that it was improperly obtained. No evidence was proffered by the husband in support of that allegation. As I made clear in allowing the tender of the will, I have no concern that the document was improperly obtained. The wife was, at the time the will was executed, the husband’s de facto partner, a substantial beneficiary to his estate, and a person with whom he shared ownership (as tenants-in-common) of the B Street, Suburb C house. It is likely, I consider, that each of them made the other aware of the testamentary provisions they had made, particularly with respect to the house they jointly owned, by disclosing the contents of their will to the other. I am much more concerned that the husband had an obligation to disclose the contents of the will to the court because it provided relevant evidence concerning an issue in the case, and that he did not meet that obligation. I infer he resisted disclosing the contents of his will because they are inconsistent with the case he wished to make to the court.
Finally, I note that Mr J has not given evidence in these proceedings. I presume he could have given evidence of his alleged part-ownership of the Motor Vehicle 2, but he was not called to do so. No explanation has been provided for the absence of his evidence and I infer he has not been called because it would not have assisted the husband’s case.
I do not accept the evidence of Mr E in relation to the ownership of the Motor Vehicle 2. I prefer and accept the evidence of the wife, Mr L, and Mr N – noting a significant degree of consistency between the evidence of each of them.
I find that the Motor Vehicle 2 motor vehicle was and remains owned by the husband.
Value
Early in the case the parties obtained a valuation of the Motor Vehicle 2, which ascribed to that car a value of $20,000. That valuation was prepared on the basis that the vehicle did not have an engine and driveline components; claims which significantly reduced its value.
As noted above, the husband gave no evidence in his affidavit concerning the Motor Vehicle 2 or, in particular, whether it had an engine. Mr E’s evidence in his affidavit is ambiguous, stating that the vehicle ‘does not have a working engine or gearbox’ (Emphasis added).
Neither Mr N nor Mr L give clear evidence of seeing an engine for the Motor Vehicle 2 at the B Street, Suburb C house.
The wife’s evidence, however, is that the Motor Vehicle 2 had an engine when it was purchased, that she had seen the engine for the Motor Vehicle 2 in the garage at the B Street, Suburb C house, but she was unclear as to what had become of the engine.
The husband’s cross examination of the wife on this issue appeared intended to support a submission that the wife was mistaken, and there is no engine for the Motor Vehicle 2. For example, the following exchange occurred on the first day of hearing:
COUNSEL FOR THE HUSBAND: And this vehicle doesn’t have an engine; that’s correct?
THE WIFE: No, it doesn’t have an – well, it has an engine, yes, it does, but that wasn’t in the car.
COUNSEL FOR THE HUSBAND: Where – and where do you say the engine was kept?
THE WIFE: The engine was kept in the garage, but it wasn’t in the car.
COUNSEL FOR THE HUSBAND: Is it an engine that you’re referring to, or a box of spare parts?
THE WIFE: It was an engine and a gearbox and boxes of spare parts.
COUNSEL FOR THE HUSBAND: Do you hold any mechanical qualification?
THE WIFE: No, I’m not a mechanic.
COUNSEL FOR THE HUSBAND: The engine that you’re referring to, how do you know that it is an engine that would fit that car?
THE WIFE: Because Mr Hadley told me and I was with him when he bought it in Melbourne.
(Emphasis added)
Cross examination of the wife on this issue continued the next day:
COUNSEL FOR THE HUSBAND: Okay. In fairness to you, Ms Flynn, I have to put a particular proposition to you so I can say I’ve put it to you. The engine was never in that garage; would you accept that or reject that?
THE WIFE: Mr Hadley told me it was there and I believed what I saw was there.
COUNSEL FOR THE HUSBAND: So your – it could be another engine was there and not the engine for that car?
THE WIFE: He had car parts everywhere but I know there was an engine to that car.
COUNSEL FOR THE HUSBAND: So, in fairness, I will put that again. It’s possible that what you thought was the engine for the Motor Vehicle 2, in fact, wasn’t the engine for the Motor Vehicle 2; that’s possible?
THE WIFE: It’s possible. I did see the engine when he bought the car in Melbourne.
COUNSEL FOR THE HUSBAND: And it wasn’t in the car at that time, was it?
THE WIFE: No.
COUNSEL FOR THE HUSBAND: And you saw the engine then. Do you say it was the engine – you recognised it then as being the engine that was in the garage?
THE WIFE: Well, we are talking about a long time ago. I would have thought it was the same engine.
COUNSEL FOR THE HUSBAND: But it’s possible it wasn’t?
THE WIFE: It’s possible.
Mr N was, similarly, cross examined on the existence of an engine for the Motor Vehicle 2. It is difficult to understand the purpose of this cross examination of the wife and Mr N, other than to create doubt in the court’s mind as to whether there was an engine for the Motor Vehicle 2. Nor can I understand the foundation upon which it was put, given that the wife ultimately proved that the husband knew all along that there was an engine and gearbox for the Motor Vehicle 2, and that he knew these important mechanical components were in Melbourne because he had sent them there for a mechanical overhaul.
That proof came in cross examination, when the husband made the following concessions in relation to the Motor Vehicle 2’s engine and gearbox:
COUNSEL FOR THE WIFE: It’s the case, isn’t it, that when this car was made available to the valuer, the valuer was not shown the engine and the transmission?
THE HUSBAND: Yes.
COUNSEL FOR THE WIFE: And the valuer was left with the impression that there was not an engine and transmission?
THE HUSBAND: Well, there was none there.
COUNSEL FOR THE WIFE: So where was the engine and transmission at the time of that report?
THE HUSBAND: Melbourne.
COUNSEL FOR THE WIFE: Why?
THE HUSBAND: Been sitting for 40 years, so it needed an overhaul.
COUNSEL FOR THE WIFE: It was sent to Melbourne for some work to be done?
THE HUSBAND: Yes. It needed an overhaul because it had been sitting for 40 years without rotating.
(Emphasis added)
In my view, the failure of the husband to disclose the existence of the engine and transmission for the Motor Vehicle 2 appears to go well beyond mere omission. The husband was well aware that the valuation of the Motor Vehicle 2 was predicated on the observation of the valuer that the vehicle had no engine or transmission. At that point, the husband knew that he had information concerning the engine and transmission that was relevant to the valuation opinion expressed. Yet the husband did nothing to correct the assumption that the vehicle had no engine or transmission, even though he knew otherwise. More than that, the questions he asked the wife and Mr N in cross examination, through counsel, clearly put to them the proposition that the Motor Vehicle 2 had no engine and tested their evidence when they said otherwise. I find that the husband has deliberately attempted to conceal from the court the existence of the engine and transmission for the Motor Vehicle 2 in order to minimise the value of that asset.
As a result of the husband’s non-disclosure and his attempts to conceal the existence of the engine and gearbox, the existing valuation of the Motor Vehicle 2 is fundamentally flawed. I am left primarily with evidence from the insurance records that at the date of separation, and for the period thereafter, the husband and the insurer agreed that the value of the Motor Vehicle 2 was $80,000.
I pause at this point to note that, even in relation to the insured value of the Motor Vehicle 2 for various periods, the husband made potentially misleading submissions to the court several times.
At one point the husband submitted through counsel that “repeatedly over a number of years, [the Motor Vehicle 2] was valued at 41, 45”. I understood this to be a kind of shorthand indicating that the car was insured for $41,000 and $45,000. This submission, however, did not appropriately reflect the evidence in the insurance records which had tendered to the court without objection.
When the inconsistency between the submission of the husband and the evidence of the insurance records was highlighted by counsel for the wife, rather than withdrawing the submission, counsel for the husband persisted in saying otherwise, no doubt on instructions:
COUNSEL FOR THE WIFE: When your Honour goes through the insurance documents, your Honour will see – clearly see that the property – that the car, the Motor Vehicle 2, has an agreed value of $80,000. Your Honour will see that in multiple insurance documents.
HIS HONOUR: 80?
COUNSEL FOR THE WIFE: Yes, 80.
COUNSEL FOR THE HUSBAND: I was told 40. Your Honour, there’s 40 – your Honour can – there is – it depends which year in – there is one that, I think a multiple of maybe two, that says 80. The vast majority of them say 40. It’s – they’re – all of the documents are before the court.
(Emphasis added)
Elsewhere, it was submitted by counsel for the husband:
COUNSEL FOR THE HUSBAND: Your Honour would see that it’s repeatedly, over a number of years, valued at 45,000 not the 80,000 but if it’s ‑ ‑
(Emphasis added )
Taken as a whole, these submissions are simply untrue and had the potential to mislead me. In fact, on the clear evidence before the court, none of the insurance records say the insured value of the Motor Vehicle 2 was $40,000 or $41,000. An insured value of $45,000 is repeated for two years at most, whereas a value of $80,000 is repeated over a period exceeding six years – and possibly more, as the husband has not disclosed the current insured value of the Motor Vehicle 2. I consider this to be the exact opposite of what counsel for the husband submitted to the court.
In summary, an opportunity was provided to the husband to retract a submission that was clearly inconsistent with the evidence. No retraction was made, instead a different submission – equally inconsistent with the evidence but to the same effect – was made and the error compounded. I offer no criticism of counsel. I have no doubt counsel made those submissions on instructions from the husband. I consider them to be an extension of the husband’s attempts to withhold information and mislead the court.
I find that the husband has failed to provide full and frank disclosure to the court in relation to the value of the Motor Vehicle 2.
I find that the husband has deliberately concealed information from the court in relation to the value of the Motor Vehicle 2.
More generally, I find the husband’s evidence in relation to the Motor Vehicle 2 to be so lacking in frankness that it affects the credit I am able to give to his evidence overall. Consequently, to the extent that the evidence of the husband conflicts with that of the wife, I prefer the evidence of the wife.
In Weir and Weir (1993) FLC 92-338 the Full Court surveyed the authorities in cases involving deliberate non-disclosure and stated:
This Court has pointed out in a line of cases leading up to the recent decision of the Full Court in Black and Kellner (1992) FLC 92-287, that it is the duty of a party involved in property proceedings in this jurisdiction to make a full disclosure of their financial affairs. See also Giunti and Giunti (1986) FLC 91-759, and Mezzacappa and Mezzacappa (1987) 11 Fam LR 957; (1987) FLC 91-853. […]
It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
Those principles were confirmed by the Full Court in Chang v Su (2002) FLC 93-117. In rejecting an application for special leave to appeal to the High Court (Chang v Su [2002] HCA Trans 549), Callinan J said:
It does not matter what the principle might be seen 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.
Doing the best I can in all of the circumstances, in particular relying on the agreed insurance value, I find that the Motor Vehicle 2 has a value of at least $80,000.
The husband’s cars – other than the Motor Vehicle 2
The wife’s case is that, at the date he left the B Street, Suburb C house, the husband owned four motor vehicles, which he took with him, in addition to the Motor Vehicle 2.
The husband denies that assertion and says that he owned only one motor vehicle at the time of separation:
27. […] When I left the relationship in May 2019, I had one Motor Vehicle 3 valued at $1,000. Attached and marked “8” is a copy of my Transport Main Roads and Maritime Services history and insurance documents.
In determining that issue each of the parties ask the court to read a document produced by Roads and Maritime Services (‘RMS’). The wife also asks the court to read insurance records produced by K Insurance.
Broadly speaking the RMS document appears to confirm that the husband has a history of acquiring, owning and disposing of a relatively large number of vehicles over time, including during the period of the relationship. I was given very little assistance to understand the information conveyed by the RMS document which contains a number of obvious anomalies. For example, in a number of places the RMS document refers to a vehicle being owned to ‘31 December 2999’, almost a thousand years into the future. Clearly some of the entries are not intended to be factual but to serve some other purpose and so I have read the RMS document with a degree of caution.
The vehicles in dispute are: a Motor Vehicle 3, Motor Vehicle 4, a Motor Vehicle 5, and a Motor Vehicle 6 (‘the disputed motor vehicles’).
I will deal with each of them in turn.
The Motor Vehicle 3
A comparison of ‘VIN/chassis’ numbers in the RMS document suggests that the same Motor Vehicle 3 owned by the husband (‘the Motor Vehicle 3’) appears four times in those records, registered for different periods, bearing different number-plates, and sometimes unregistered but having an unregistered vehicle permit.
In particular, the RMS document shows the Motor Vehicle 3 was listed as registered to Mr Hadley from 12 May 2018, with license plate number …. This is the same registration number referred to by the husband in paragraph 27 of his affidavit, and I therefore conclude that the Motor Vehicle 3 referred to in the RMS document is the same vehicle as that referred to by the husband in that paragraph.
The registration for the Motor Vehicle 3 expired on 11 May 2019, around the date of separation, and was subsequently cancelled. The same Motor Vehicle 3 was then listed as owned by Mr Hadley from 25 September 2019, but bearing a different license plate number: ….
A Motor Vehicle 3 is also referred to in insurance records from K Insurance (‘K Insurance’), which indicate that a Motor Vehicle 3 was added to the schedule of motor vehicles the parties insured through K Insurance in November 2015 and remained on the policy thereafter. This accords roughly with the RMS information indicating that the husband held an unregistered vehicle permit for such a vehicle in 2016.
One of the insurance documents from K Insurance, dated 18 September 2019 and addressed to the husband after he left the B Street, Suburb C house, appears to be to make changes to the specific vehicles insured under that policy, consistent with the separation of the parties. The wife’s Motor Vehicle 1 is removed from the policy, as is a Motor Vehicle 6. The Motor Vehicle 3, however, continued to be insured under that policy.
All of this suggests that around of the time of separation in April 2019 the husband still owned the Motor Vehicle 3. More than that, it suggests that around separation the husband cancelled the registration of the Motor Vehicle 3 and shortly afterwards re-registered it with new number-plates. The insured value of the Motor Vehicle 3 at that time was $8,000.
The Motor Vehicle 4
Similarly, the RMS document indicates that a Motor Vehicle 4, bearing number-plate …, (‘the Motor Vehicle 4’) was registered in the husband’s name on 18 June 2016. That registration was then cancelled by the husband prior to separation and then re-registered in his name about a year after separation with a different registration number, ….
Insurance documents from K Insurance indicate that a Motor Vehicle 4 was added to the schedule of vehicles insured by the parties in September 2016, and removed in April 2018. Again this roughly accords with the RMS document.
This evidence suggests that before and after separation the husband still owned the Motor Vehicle 4. More particularly, it suggests that before separation the husband cancelled the registration of the Motor Vehicle 4 and about a year afterwards re-registered it with new number-plates. The insured value of the Motor Vehicle 4 in the year up to April 2018 was $8,000.
The Motor Vehicle 6
The RMS document also indicates that a Motor Vehicle 6 (‘the Motor Vehicle 6’) was first registered in the husband’s name on 1 April 2011. That registration was cancelled in March 2012 and for a period the Motor Vehicle 6 had an unregistered vehicle permit in the husband’s name. On 18 April 2018 the Motor Vehicle 6 was re-registered in the husband’s name and continued to be so until the registration was cancelled on 17 April 2020. The particular insurance documents from K Insurance referred to in paragraph 37 of the wife’s affidavit indicate that the Motor Vehicle 6 was removed from the schedule of insured vehicles around the time of separation. The insured value of the Motor Vehicle 6 at that time was $5,000.
That evidence suggests that the husband owned the Motor Vehicle 6 at the time of separation.
The Motor Vehicle 7
I have taken the reference in the balance sheet to a Motor Vehicle 5 to be a typographical error. The insurance records from K Insurance and the RMS document indicate that, until May 2019, the husband owned a Motor Vehicle 7 with an insured value of $6,000 (‘the Motor Vehicle 7).
The husband gives no evidence of owning these vehicles but he also does not dispute the contents of the RMS document or the insurance records from K Insurance. Indeed, he relies upon the RMS document partly in support of his own case. The husband provides no evidence and makes no submissions refuting the contents of those records.
In his Financial Statement filed on 27 September 2021 (‘the husband’s Financial Statement’), the husband’s evidence is that he does not at that date own any motor vehicle. In that document the husband also gives no evidence of having disposed of any motor vehicle in the 12 months prior to separation or since separation - except for a motor vehicle that he gave to Mr N which the husband says had scrap value only. In particular, the husband gives no evidence concerning any disposal of the Motor Vehicle 3, the Motor Vehicle 4, the Motor Vehicle 6, or the Motor Vehicle 7.
I consider that it is particularly significant that the husband does not explain why he cancelled the registration of some vehicles prior to separation, only to re-register them in his name with different number plates some time afterwards.
I do not accept the husband’s evidence that he does not own any motor vehicle. In view of the totality of the evidence, I find that the husband has failed to provide full and frank disclosure in relation to his ownership of the disputed motor vehicles, or his disposal of them.
I find that at the date of separation the husband owned the following vehicles:
(a)the Motor Vehicle 3;
(b)the Motor Vehicle 4;
(c)the Motor Vehicle 6; and
(d)the Motor Vehicle 7.
Doing the best I can in the absence of adequate disclosure, I also find that the husband is currently the owner of those motor vehicles.
I consider that the husband’s failure to provide full and frank disclosure in relation to the Motor Vehicle 3, the Motor Vehicle 4, the Motor Vehicle 6, and the Motor Vehicle 7, supports the credit finding I made above in relation to his evidence.
As a result that failure by the husband to provide full and frank disclosure, evidence in relation to the value of those cars is, like the Motor Vehicle 2, far from adequate. In circumstances where the husband did not disclose ownership of the disputed motor vehicles, they could not be valued. Given the husband gives no evidence of disposal of the disputed motor vehicles, the sum obtained on disposal, if any, cannot be used as the basis for determining their value.
Consequently, I must again do the best I can in determining the value of the vehicles in the light of the husband’s non-disclosure. Again, I intend to rely upon the agreed value in the insurance records from K Insurance. I therefore find that the Motor Vehicle 3 has a value of $8,000, the Motor Vehicle 7 $6,000, the Motor Vehicle 4 $8,000, and the Motor Vehicle 6 $5,000.
The husband’s superannuation entitlements.
It appears to be agreed that the husband’s superannuation entitlements were the subject of a self-managed superannuation fund, the trustee for which was ‘Mr Hadley Super Pty Ltd.’
The husband’s evidence is that, sometime before late 2018, all of his superannuation monies had been spent. The husband’s affidavit is silent as to the amount of superannuation the husband had at the start of the relationship and during the relationship. His financial statement, at paragraph 45, repeats the husband’s assertion that he has no superannuation entitlements at the time of hearing.
The wife’s evidence is that she does not know what superannuation entitlements the husband has had in the past, or has at the current time.
In cross examination, however, the husband conceded that (despite his earlier absolute denials) that his superannuation fund did, in fact, still own shares with a value he estimated to be $2,300.
Beyond that, given his occupation as a transport worker, his assertion that he earned substantial sums of money through that employment during the relationship, and the fact that he states such employment ended during the period of the relationship – and given that by virtue of his age, or his employment ending, his superannuation entitlements are likely to have vested – the husband had an obligation to disclose to the court, and to the other party, the details of his superannuation entitlements. In particular, he ought to have disclosed what his superannuation entitlements were at the start of the relationship, at the time he ceased employment, and at the date of separation. The husband also ought to have disclosed, precisely what he did with his superannuation entitlements if they were diminished over the course of the relationship, or after separation. He did not do so.
I find that the husband has deliberately failed to disclose to the court his superannuation entitlements and precisely what he did with them. This too supports the credit finding I made above.
I find that the husband has superannuation entitlements worth at least $2,300 and I will add that sum to the balance sheet.
The Nett Asset Pool - Conclusion
Given my findings above, the assets, liabilities and superannuation entitlements of the parties can be summarised as set out in the following table:
Ownership Description Value ASSETS 1 Joint Funds in trust held by D Law Firm at Suburb C 1,118,133 2 Wife Motor Vehicle 1 22,350 3 Husband Motor Vehicle 2 80,000 4 Husband Motor Vehicle 3 8,000 5 Husband Motor Vehicle 7 6,000 5 Husband Motor Vehicle 4 8,000 6 Husband Motor Vehicle 6 5,000 7 Wife Bank F savings #...78 As at 30/06/21 5,364 8 Wife CBA smart access account 1 #...97 As at 23/06/21 1,212 9 Wife CBA Netbank saver account 2 #...21 As at 03/07/21 9 10 Wife CBA Goal saver account #...48 As at 03/07/21 228 11 Wife Company G shares (286) 315 12 Husband Bank H acc #...66 As at 31/07/21 267 13 Husband NAB acc #...08 As at 30/07/21 37 14 Wife Mastercard As at 25/07/21 1,341 Total $1,256,256 ADD BACKS 15 Wife Funds released from trust 50,000 16 Husband Funds released from trust 50,000 Total $100,000 LIABILITIES 17 Wife Personal loan for Motor Vehicle 1 6,808 18 Wife AMEX #...08 As at 10/08/21 5,555 19 Husband Bank H personal loan #...36 As at 30/07/21 4,956 20 Wife CBA Smart Access #...57 As at 30/06/21 2 21 Wife CBA Awards Credit Card #...82 As at 19/07/21 44 Total 17,365 SUPERANNUATION Member Name of Fund Type of Interest Applicant’s Value 24 Husband Mr Hadley Super Fund SMSF 2300 25 Wife Nil Total $2300 TOTAL NETT ASSETS (including Superannuation) 1,341,191
I find that the total nett value of the parties’ assets and superannuation, adding back the funds each of the parties received from the sale proceeds of the B Street, Suburb C House and deducting their various liabilities, is $1,341,191. Of that amount, I find that the wife has nett assets, including the funds previously released from the proceeds of sale, worth $68,410. I find that the husband has nett assets, including ‘add-backs’ and superannuation, worth at least $154,648. The balance is the sum of $1,118,133 held in trust from the proceeds of sale of the B Street, Suburb C house.
What were the contributions of each party, and what weight should be given to them?
What contributions were made by the husband?
The evidence of the husband concerning the contributions he made pursuant to s 90SM(4) of the Act is very limited. In many respects the evidence the husband does give lacks quantification, or a sufficient degree of detail, to assist the court in assessing the weight to be given to the contributions alleged.
In relation to the assets and entitlements the husband had at the start of the relationship, his evidence overall implies that he had savings, shares and superannuation entitlements but he gives no details as to type, quantity or value – save to say that such assets and entitlements were entirely depleted by late 2018. Furthermore, although the husband does not refer to them, the RMS document relied upon by each party and the insurance records of K Insurance suggest that the husband owned the following vehicles at the commencement of the relationship:
(a)a Motor Vehicle 8;
(b)a Motor Vehicle 9 ;
(c)a Motor Vehicle 6; and
(d)a Motor Vehicle 10.
The wife’s evidence is that the husband owned eight collectible cars at the date cohabitation commenced.
For reasons that are not clear to me, the husband does not mention these vehicles in his own evidence, offers no evidence of their value, and gives no evidence concerning what became of them. In particular, if they were sold, he does not tell the court the price for which they were sold and what he did with the proceeds of sale. I note that the insurance records include information concerning the agreed insured value for each of the vehicles, except the Motor Vehicle 8. In the absence of any disclosure at all by the husband in relation to these vehicles I am not prepared to accept those values to remedy his deficiency. This lack of evidence necessarily limits the weight I can give to the cars as a contribution made on behalf of the husband but they will be taken into account by me in assessing the respective contributions of each party.
In relation to contributions during the relationship the husband gives evidence of the total income he received from employment, including tax returns, for the period from 2007 to 2018:
23.Between 2007 and 2018 through various employment incomes, tax refunds, I receive the following:
a. Employment $1,166,483
b. Tax refunds $26,725.90
The husband supports that assertion with income tax Notices of Assessment for the relevant period. I make the following comments and observations concerning that evidence. Firstly, given my findings concerning the date of commencement of cohabitation, I will only take into account the income attributable to the period of cohabitation. Secondly, although the husband refers to income received by him, the number he refers to is in fact the total taxable income attributable to him for the specified period not the income he actually received. The actual amount he received is significantly less when the tax he paid is taken into account. Considering the notices of assessment annexed to the husband’s affidavit, the amount I have attributed to the husband for income received over the relevant period is based on his taxable income less the tax he paid. That information comes directly from his Notices of Assessment. Thirdly, it follows from the second observation that any inclusion of an additional amount for tax returns is unnecessary, as such amounts are merely an adjustment between the tax that was deducted from the husband’s pay and the actual tax he was required to pay. Since it is the second of these that I have used to calculate his nett income, consideration of tax refunds is superfluous. Fourthly, as my finding concerning the date of commencement of cohabitation does not neatly coincide with the commencement of a financial year, I have calculated the husband’s nett income for the 2011/2012 financial year on a pro rata basis of 75 per cent reflecting a period of nine months from October 2011 to the end of June 2012.
Given the foregoing, and otherwise accepting the husband’s evidence concerning his nett income during the period of the relationship, I find that the husband’s income from the date of commencement of cohabitation to the date of separation to be $521,403, calculated as follows:
YEAR Gross income Tax payable Nett income 2011/12 (at 75%) 98,231 29,160 69,071 2012/13 148,575 45,720 102,855 2013/14 158,315 49,961 108,354 2014/15 195,571 48,402 147,169 2015/16 Nil Nil Nil 2016/17 56,202 10,779 45,423 2017/18 61,056 12,526 48,530 2018/19 Nil Nil Nil TOTAL 717,950 196,548 521,402
I find that the husband’s total nett income from employment during the relationship was $521,402.
I understand by this evidence of income that the husband seeks to infer that this income was used to make direct and indirect financial contributions to the acquisition, conservation or improvement of the property of the parties, or either of them. The husband’s evidence concerning the uses to which he put his income during the period of cohabitation, however, is limited in scope and detail.
The husband says that for a period of 12 months between about May 2012 and May 2013 both parties contributed to living expenses. The husband also says that, while he was living at the property, he paid for repairs to be carried out but does not specify what those repairs were, when they were made or how much they cost. The husband further says that he supported the wife “with cash, payment of insurance premiums, and payment toward other living expenses, renovations, household items and utilities” but does not particularise or quantify those contributions, how often that support was provided, or indicate what proportion of his income was directed to such support.
Perhaps the clearest assertion of contribution by the husband is in relation to the purchase of Mr Flynn’s share in the B Street, Suburb C house and payment of the mortgage instalments on the loan they obtained to do that. The husband says in that regard that he paid the sum of $1,244.43 for the transfer of the B Street, Suburb C house into the joint ownership of himself and the wife. He also claims that he alone met the mortgage payments of $1,210 per fortnight from 16 October 2013 until the date he left the matrimonial home. In cross examination, however, the husband was uncertain whether he had in fact solely met all of the mortgage payments during that period.
I accept, however, that the husband alone paid the great majority of the home loan payments. Roughly speaking, all of the repayments of the home loan add up to about $174,000. Counsel for the husband told the court that the principal owing decreased by about $37,000 over the life of the loan, while counsel for the wife estimates a figure closer to $46,000.
Apart from the foregoing, the husband asserts he made contributions by virtue of discounted flights and holidays made available through his employment as a transport worker. He also claims a contribution in relation to motor vehicles purchased, registered and insured by him which he provided for the use of, or as gifts to, the wife, her daughters and their boyfriends. Again, the husband gives no particulars of the vehicles to which he is referring, their value, what became of them, or the period of use. It is consequently difficult to know how much weight to give to this contribution claimed by the husband.
In cross examination, the husband seemed to assert that he made significant contributions in the form of physical work renovating the B Street, Suburb C house. In his affidavit, however, the husband gives minimal evidence concerning any renovation work he carried out. Indeed his evidence appears to be that he paid tradesmen to do such work because he was physically unable to do so himself.
The wife alleges, however, that the husband did carry out some building work on the B Street, Suburb C house while living there – particularly in the early days of their relationship. She says that, prior to obtaining the mortgage in 2013, the husband started to renovate the B Street, Suburb C house in a way she did not agree with and to which she objected. The wife says the husband intended to convert the rear of the house into a separate residence. According to her evidence, the husband removed architectural features that changed the heritage character of the property and made other “massive changes” to the property. She says he removed a custom-built desk, shelving and wardrobes and reinstalled them in other areas of the B Street, Suburb C house that they were not designed for. The wife also says that the husband “ripped out” the main large bathroom leaving it as a shell, removed the ceiling of the bathroom, and knocked out a heritage window which she says, he then boarded it up. The husband removed walls and dumped the debris in the garden, the wife says, and raised the floor in the rear of the house using MDF sheets, which subsequently had to be removed and replaced by tradesmen. The husband also built, she says, a square structure in one of the rear rooms of the B Street, Suburb C house which was intended by him to be used as a laundry/bathroom, which similarly had to be removed. More generally, the wife says:
42.Mr Hadley started one job and then move [sic] onto another before finishing it. The result was that there were gaping holes left throughout the property.
In particular, the wife says that one was able to see possums walking along the framework of the house where the bathroom ceiling was missing.
The husband denies these allegations.
I consider that the totality of the evidence, including photographs taken before and after these defects in the B Street, Suburb C house were rectified, supports the wife’s allegations. To the extent the husband challenges this evidence, for the reasons expressed above, I prefer the evidence of the wife over that of the husband.
In relation to contributions, the husband also gives evidence of shares that he sold prior to March 2011. As the disposal of such shares pre-dates cohabitation and no evidence is given by the husband in relation to the use of the proceeds of sale, or that the value of the shares sold persisted in some form following the commencement of cohabitation, I give no weight to it for the purposes of assessing contributions in this case.
I find that the husband made the following contributions:
(a)monies obtained from pre-cohabitation savings, sale of shares and superannuation entitlements with an unknown value;
(b)payment in the amount of $1,244.43 for the transfer of the B Street, Suburb C house from Mr Flynn into the joint ownership of the parties;
(c)payment of almost all of the instalments for repayment of the mortgage debt in relation to the B Street, Suburb C house up to the date he left that property;
(d)payment of some household living expenses and renovation expenses with an unknown value;
(e)providing motor vehicles to, or for the use of, the wife and her family; and
(f)the provision of discounted flights and accommodation with an unknown value.
I also find that the husband carried out renovation work to the B Street, Suburb C house which was inappropriate, incomplete and poorly done, resulting in a requirement for significant remedial works.
What contributions were made by the wife?
The wife’s evidence is that, at the commencement of the relationship in October 2011, she had the following assets:
(a)an unencumbered one half share in the B Street, Suburb C house;
(b)$115,000 in savings;
(c)a Motor Vehicle 12 of unknown value; and
(d)superannuation entitlements worth $300.
The value of the wife’s share in the B Street, Suburb C house in October 2011 is not known. The husband annexes to his affidavit, however, two valuations of the B Street, Suburb C house ascribing to it values of $980,000 and $990,000, respectively, as at May 2012. For the purposes of this case, averaging those two valuations, I find that the value of the B Street, Suburb C house at the date the relationship commenced in October 2011 was $985,000. I further find, therefore, that the value of the wife’s un-encumbered one half share in the B Street, Suburb C house was $492,500.
I find that the total value of the assets brought into the relationship by the wife was $607,500.
The wife also gives evidence that throughout the relationship she was employed, earning approximately $50,000 per annum.
The wife’s evidence concerning her financial contributions during the relationship was not effectively challenged by the husband. Rather, in his affidavit, the husband gives evidence which I understand to be intended to diminish the weight I should give to the wife’s financial contributions:
26.From disclosure documents provided by Ms Flynn (which were not complete and many bank statements were missing) between January 2000 and August 2021 she spent $1,357,217.22 on personal expenditure this amount may be greater had I been provided all the disclosure. Ms Flynn during this period may deposits of $1,170,081.01 into various accounts which is at odds with the approximate $416,000 that she would have earned during this period.
In support of that assertion the husband relies upon a spreadsheet ‘with data direct from disclosure documents of Ms Flynn’s spending’. At the hearing I was given no assistance in understanding that document or the husband’s evidence in that regard. I was not taken to any of the source documents used to create the spreadsheet, and it seemed to me that the assertion was not seriously pressed. I give it no weight.
In relation to the way in which the wife’s assets and income contributed to the acquisition, conservation or improvement of the assets of parties during the relationship, the wife says that during the first two years of the relationship she and the husband shared the cost of rates and utilities, and she paid the cost of groceries. Although they shared payment of some household expenses, the wife says that she and the husband did not pool their incomes and kept separate accounts throughout their relationship.
The wife goes on to say that, after the parties bought out Mr Flynn’s share in the B Street, Suburb C house for $500,000, which they borrowed from Bank F, the way in which they shared household expenses changed. From that time until the end of the relationship, the wife says, the husband paid the mortgage instalments, she paid for groceries and other household expenses, and they both shared the cost of rates and utilities. The wife also says that she and the husband shared the cost of holidays. She acknowledges that the husband obtained discounted flights through his work as a transport worker, but says that they shared the cost of accommodation and spending money. She also provides some details of the holidays they took: five trips to City S to visit the husband’s son, and then travel around the Country T, and one trip to Country U.
The wife also gives evidence that the parties were generous toward their respective children during the relationship. She says that, early in their relationship, the husband gave his son Mr Q $109,000 to help fund Mr Q’s study and accommodation in the Country T. In addition to that, the wife says that each of the parties provided accommodation and board to some of their respective children, and Mr Q, for various substantial periods during the relationship. The husband’s evidence is silent in that regard, except to note the assistance the wife provided to some of her children. To the extent that the husband disputes any of the evidence of the wife concerning the assistance they provided to their respective children, I accept the wife’s evidence in relation to those matters.
There is one further financial contribution raised on the wife’s evidence. Initially the wife sought to include as a balance sheet item an alleged debt to her sister Ms V in the amount of $60,000. The wife’s case was that she sought to borrow that sum from her sister to help her fund the repairs and restoration work at the B Street, Suburb C house. As it turned out, the monies she borrowed were not for future expenses to be paid but reimbursement of past expenses paid by the wife. On that basis I did not allow the alleged debt as a balance sheet item but indicated that the expenses for repairs and restoration of the B Street, Suburb C house might be taken into account as a financial contribution.
In my view, the totality of the evidence supports the wife’s assertion that she spent approximately $60,000 for tradesmen, labour and materials to repair and restore the B Street, Suburb C house after separation. To the extent that the husband challenges that evidence, for the reasons set out above, I prefer the evidence of the wife.
Apart from direct and indirect financial contributions, the wife gives evidence of the non-financial and home maker contributions of each of the parties. She says that she washed the clothes of herself and the husband, cooked meals each night (except when her daughter Ms W cooked), cleaned the home, and did the gardening. The wife says that the husband stacked the dishwasher after dinner, occasionally vacuumed and attended to small repair jobs around the house. For the reasons expressed above concerning my preference for the evidence of the wife over that of the husband, and given the husband provides little evidence in relation to these assertions and they are largely unchallenged, I accept the wife’s evidence in that regard.
In addition to the sum of approximately $60,000 the wife paid toward repairing and restoring the B Street, Suburb C house, the wife’s evidence is that she also made significant non-financial contributions in that regard. She says that, in August 2019, she took leave from work so that she could attend to the restoration works full-time. The wife’s evidence is that she was the ‘project manager’, arranging assistance from family, friends and neighbours to help in the work. She also sought and obtained assistance from her former husband, Mr Flynn, who is a tradesman by trade. Her affidavit details the substantial works carried out both before and after the husband left the property and the role she played in getting that work done. The totality of the evidence, including the before and after photographs, support the wife’s assertions. To the extent the husband challenges that evidence – in particular saying that only minor rectification works were necessary – I prefer the evidence of the wife, for the reasons set out above.
The value of the wife’s financial and non-financial contributions towards restoring and repairing the B Street, Suburb C house are demonstrated by the contents of a valuation commissioned by the husband’s son, Mr Q, in May 2019 and the price for which the property sold in November 2019. The May 2019 valuation, which includes photographs of the various building defects evident at that time, indicates that the value of the B Street, Suburb C house in May 2019 was $1,300,000. Six months later, in November 2019, with the repair and restoration works complete, the B Street, Suburb C property sold for $1,775,000. I am unable to conclude that the repair and restoration works were the sole cause of the increase in value in the B Street, Suburb C house between May and November 2019, but I think it is likely that the repairs and restoration contributed significantly to that increase in value.
I find that the wife made the following contributions pursuant to s 90SM(4) of the Act:
(a)a direct financial contribution of assets brought into the relationship by the wife, including an unencumbered half share in the B Street, Suburb C house, with a total value $607,500;
(b)an indirect financial contribution from her nett wages over the course of the relationship toward household expenses in an unknown amount;
(c)contributions as homemaker, substantially greater over the course of the relationship than the contributions of the husband in that regard;
(d)a direct financial contribution toward the restoration and repair of the B Street, Suburb C house in the sum of approximately $60,000;
(e)a direct non-financial contribution toward the restoration and repair of the B Street, Suburb C house by organising and managing that work, and undertaking some of the work herself.
What weight should be given to the respective contributions of each party?
On the evidence before the court, in relation to their contributions during the relationship – that is, other than their respective contributions in relation to the assets each of them brought in at the start of the relationship and the contributions made by the wife toward the restoration and repair of the B Street, Suburb C house – I am unable to determine that one party made greater contributions than the other, except for one thing which I will deal with in due course. Generally, it appears that the husband made the greater direct and indirect financial contributions from his income – but only marginally so. The wife made the greater non-financial and homemaker contributions.
As I said, I would consider the contributions of the parties during the relationship to be equal if it were not for one thing – that is, my finding that during the relationship the husband carried out renovation work to the B Street, Suburb C house which was inappropriate, incomplete and poorly done, resulting in a requirement for significant remedial work to be done on that house. I consider that to be a ‘negative contribution’ which must affect the weight I give to his other contributions.
Apart from the contributions made by the parties during the relationship, significant weight must be given to the wife’s substantially greater initial contributions. In that regard I note that the total value of the wife’s initial contributions, which I found to be $607,500, is just short of 50 per cent of $1,218,133.93, which was the amount of the nett proceeds of sale of the B Street, Suburb C house in November 2019. But I recognise this is not an accounting exercise. Some weight must be given to the husband’s initial contributions even if they are poorly particularised and their value unknown. The weight to be given to the wife’s initial contributions has, I think, diminished with the passing of time. Such diminution in this case is likely to be small, however, because the relationship was only of moderate length and the central major component of the wife’s initial contributions (the unencumbered half share in the B Street, Suburb C house) remained a significant component of the assets of the parties throughout the relationship, and continues to be so in the nett asset pool subject to these proceedings.
I also consider that substantial weight must be given to the wife’s financial and non-financial contributions in restoring and repairing the B Street, Suburb C house. Were it not for those contributions the B Street, Suburb C house may not have been sold for the price it ultimately achieved.
Considering the matter holistically, and weighing all of my findings in relation to the various contributions of each party, I assess the respective contributions of the parties of all kinds pursuant to s 90SM(4) of the Act to be 75 per cent to the wife and 25 per cent to the husband.
What are the future needs of the parties, and what weight should be given to them?
In this case the particular s 90SF(3) considerations that appear to be of relevance are:
(a) the age and state of health of each of the parties;
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment, and
(c)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.
In this case, my findings concerning the husband’s significant failure to provide full and frank disclosure and his attempts to deliberately conceal information from the court, fall within the third consideration.
I will deal with each of those in turn.
The age and state of health of each of the parties
Each of the parties are well beyond retirement age. The wife is 68 years old, and the husband 11 years older at 79.
Each of the parties claim to have significant health issues. Neither of them, though, provides the court with admissible evidence, from a qualified treating expert, about their diagnosis, prognosis and consequent health needs that would permit the court to make findings in relation the way in which their health affects their future needs.
The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
Each of the parties has retired from gainful employment, and each of them suggest that their age, together with declining health, precludes them from gainful employment in the future. I accept that is so.
The wife’s sole source of income is the age pension and Centrelink rental assistance in the sum of $529 per week. The husband’s sole source of income is also the age pension, for which he receives the sum of $543 per week.
The principal distinguishing feature between the parties in considering their future needs is that a division of assets based on their respective contributions is likely to result in the wife receiving a share of that property with a significantly higher value than that which the husband will receive. In other circumstances I would consider this to be a factor justifying an adjustment for future needs in favour of the husband.
Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.
Given my findings that the husband has failed to provide full and frank disclosure to the court to a significant degree, and that he deliberately concealed information from the court, I do not think that this is a case in which any adjustment should be made for future needs on the basis described in the paragraph above.
In particular, in the light of the husband’s actions, I cannot be confident that he does not have significant other assets or financial resources that have not been disclosed to the court.
Consequently, I will make no adjustment for the future needs of the parties.
DECISION
For the reasons set out above I intend to make orders that will, in effect, provide that the wife receive 75 per cent of the nett asset pool and the husband 25 per cent of that pool.
I have previously found that the nett value of that asset pool is $1,341,191.
Consequently, the wife will receive assets which, after taking into account her liabilities, have a net value of $1,005,893.25. As she already has, or has had the benefit of, assets and liabilities with a nett value of $68,410, the wife will receive from the proceeds of sale of the B Street, Suburb C house, held in trust by D Law Firm solicitors, the sum of $937,483.25.
The husband will receive assets and superannuation entitlements which, after taking into account his liabilities, have a nett value of $335,297.75. Given that I have found he already has, or has had the benefit of assets, superannuation entitlements and liabilities with a nett value of $154,648, the husband will receive from the monies held in trust by D Law Firm the sum of $180,649.75.
As I do not know whether the sum held in trust by D Law Firm has increased in value since those monies were placed in trust, I will also order that 75 per cent of any residual sum remaining in trust be paid to the wife and the balance paid to the husband.
I certify that the preceding one hundred and seventy-four (174) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Campbell. Associate:
Dated: 7 July 2022
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