Gibson and Gibson - [2007] FMCAfam 905

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GIBSON & GIBSON

[2007] FMCAfam 905

FAMILY LAW – Children − whether presumption of equal shared parental responsibility applies − property − waste through gambling − whether superannuation to be considered with other property.

Family Law Act1975 ss.61DA, 75(2)(o), 60CC

Hickey [2003] FLC 93-143
C [2005] FLC 93-220

Applicant:

MS GIBSON

Respondent:

MR GIBSON

File number:

MLM 10419 of 2005

Judgment of:

Phipps FM

Hearing dates:

10 & 11 May & 6, 7 & 8 June 2007

Date of last submission:

8 June 2007

Delivered at:

Dandenong

Delivered on:

2 November 2007

REPRESENTATION

Counsel for the Applicant:

Mr Spicer

Solicitors for the Applicant:

McCarthy Hoey

The Respondent appearing in person

Counsel for the Independent Children’s Lawyer:

Ms Brennan

Solicitors for the Independent Children’s Lawyer:

Robin Harrison & Associates

Counsel for the Intervenor:

Mr Moisidis

Solicitors for the Intervenor:

David Gibbs & Associates

ORDERS

The children A born in 1991 and S born in 1996 live with the wife and she have sole parental responsibility for the children.
The children's time and communication with the husband is reserved.
The husband do all acts and things and sign all documents as may be required to transfer to the wife at the expense of the wife all of his right title and interest in the real property situate at and known as Property D, (the real property).
The wife indemnify the husband against all payments and liability for the mortgage registered number [X] to the National Australia Bank and all apportionable rates, taxes and outgoings of or with respect to the real property.
Pursuant to s.106A of the Family Law Act1975 a Registrar of the Federal Magistrates Court of Australia is appointed to do all acts and things necessary to give validity to any documents the husband

Mr Gibson is required to execute by paragraph 3 of this order.
That pending transfer the wife have the sole right to occupy the real property.
That upon the real property being transferred to the wife the property be sold and the proceeds be paid:
(a)first in payment of the costs and expenses of the sale;
(b)second in payment of any mortgage and encumbrances over the property;
(c)third the sum of $170,000 to the second respondent’s solicitors in their capacity as the representatives of the Estate of Mr G (deceased) and that contemporaneously with the payment the second respondent cause the Caveat lodged on the title to the said property by the Deceased to be withdrawn;
(d)fourth the balance to the wife.
Otherwise each party is entitled to the exclusion of the other to all superannuation and other property owned or in the possession of that party (including, in the case of the wife, all property, including tools at the real property) at the date of these orders.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DANDENONG

MLM 10419 of 2005

MS GIBSON

Applicant

And

MR GIBSON

Respondent

REASONS FOR JUDGMENT

Introduction

Ms Gibson and Mr Gibson lived together from 1995 until

17 September 2005
. They married in January 1999. Before they commenced living together Ms Gibson had a child A born in 1991.

Mr and Ms Gibson have a child S born in 1996. All four live together as a family. Mr and Ms Gibson disagree on the living arrangements for the children and on the division of the property.
a)The children's issue is whether the children should live with their mother or father.
The specific property issues are:
a)Is the husband’s father’s estate to be repaid a loan or does it have an interest in Property D?
b)Apart from Property D, what is the matrimonial property?
c)What effect does the wife's gambling losses have on contributions?
d)How should the husband's interest in shares, his superannuation, his father's family trust and his father's estate be taken into account?

Children

Ms Gibson’s proposal for the children is that they live with her, she have sole parental responsibility and any question of the time the children spend with their father be reserved.
Mr Gibson’s proposal is that the children live with him, but only at Property D.
Mr Gibson was removed from the home by police on 17 September 2005. An intervention order, and then an order of this Court has prevented him returning since. He says that he has been excluded wrongfully, that he was the children's primary carer and that he should be caring for them. He says that this can only happen at the home, and he should be permitted to return.
The older child, A, is not the biological child of Mr Gibson. His biological father has had no part in his life. Ms Gibson says that she originally knew Mr Gibson in the 1970s as a friend and then met him again in 1992, two months after A was born. They lived separately but Mr Gibson became A's father figure.
Mr Gibson has an older daughter K. Ms Gibson moved in with

Mr Gibson in his house at B when K came to live with her father. K developed a serious drug problem, which Ms Gibson says puts a strain on the relationship.
Ms Gibson says that Mr Gibson was drinking heavily and using marijuana, both disputed by Mr Gibson. Ms Gibson also became depressed and started gambling. She drew money from the mortgage account and gambled away, she says, about $30,000. She recovered from the gambling habit by seeking help in acknowledging the problem to Mr Gibson and his parents and her friends.
Mr Gibson ceased his employment in 2004. Ms Gibson then commenced full time employment as an administration assistant and Mr Gibson stayed at home.
Mr Gibson claims that from then on he was the children's primary carer, including daily care, preparing meals and similar tasks.

Ms Gibson claims that her relationship with Mr Gibson and his relationship with the children, particularly A deteriorated because of his alcohol consumption and severe mood changes. She says there were many occasions of violence and abuse.
The first consideration is whether the presumption of equal shared parental responsibility contained in s.61DA of the Family Law Act1975 (Cth) should apply. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence, or if it is not in the best interests of the children for the parents to have equal shared parental responsibility.
Ms Gibson says Mr Gibson was a very good father when not drinking. She claims there was a pattern of abuse, particularly of A, and violence caused by Mr Gibson’s drinking and marijuana use, principally the drinking. It affected A particularly, who developed behavioural problems.
The parties separated for a short time in the middle of 2005, but once back together Ms Gibson says that the husband gradually returned to drinking alcohol and being abusive and violent and intimidating, particularly to A.
Mr Gibson denies excessive drinking, and violent or intimidating behaviour.
The parties separated on 17 September 2005. Ms Gibson says that on that occasion Mr Gibson came into the house in the evening whilst drunk and verbally attacked A. She said she pushed past Mr Gibson to protect A and he pushed her aside and continued his abuse of A. She claims he continued to abuse A for a time and then locked she and A out of the house, while he, Mr Gibson, remained inside with S.
She telephoned the police. They came and there was a significant struggle which resulted in Mr Gibson being arrested and removed from the house. He was charged and has been convicted in the State Magistrates Court of assault, assaulting police, resisting arrest and some firearms charges. Mr Gibson appealed unsuccessfully to the County Court.
Mr Gibson denies any assaults or any inappropriate behaviour. He says that he had told A to tidy his room, A had not and he was talking to A about his behaviour. Mr Gibson says that when the police arrived he was talking to S to try to comfort her because she was upset. He claims that in what followed he was defending S because strangers came into the house and he did not know who they were.
The people who came to the house were uniformed police officers.

Mr Gibson acknowledges a struggle with them. He claims he was acting in defence of S against strangers he did not know. He appears to claim that his actions were justified because he claims he was wrongly convicted. He wants access to his children because he appears to think that they can say what really happened and clear his name.
Mr Gibson’s view of what occurred is illogical. The likely explanation is that he was affected by alcohol. Ms Gibson says that Mr Gibson was in the habit of drinking in his shed, drinking red wine. She knew it was extensive because she saw the empty wine casks in the rubbish bin and she often saw Mr Gibson returning from the nearby shop with a cask.
Mr Gibson says that he would purchase one or two wine casks a week. He said other people, friends, would help drink them. That seems unlikely. Two 4 litre casks of wine a week is an average of one and a half bottles each day. I put that calculation to Mr Gibson and that some people might think that excessive and his response suggested he did not think so.
I accept Ms Gibson’s version of events on 17 September 2005 and I accept her description of Mr Gibson’s drinking and behaviour generally. It constitutes abuse of the children and the family violence so the presumption of equal shared parental responsibility is rebutted.
Apart from this, Mr Gibson’s attitude towards the children shows it is not in the best interests of the children that there be equal shared parental responsibility, nor is it even practical. The same applies to their living arrangements. They can only live with their mother. Under the consideration of the children’s relationship with their parents she is their primary carer.
Other s.60CC considerations are attitude to parenting and capacity to care for the children. Mr Gibson has refused to see the children since separation. Ms Gibson says this has distressed S, who wanted to see her father. Towards the end of 2005 Mr Gibson was living at, or at least visiting his parents home. Ms Gibson sent S to visit her grandparents at about Christmas time, both to see the grandparents and in the hope that she would see her father.
Mr Gibson arrived at the house while S was there, but left when he saw her saying he was only allowed to see her at Property D.
Mr Gibson's father died in 2006. K took S to the funeral. When

Mr Gibson saw that K and S were there he left and did not attend his own father's funeral. He takes the view that S should not have attended.
Mr Gibson says that he wants to return to the house and talk to the children because they can say what happened and that will clear his name about the events of the 17 September 2005.
Mr Gibson’s attitude is irrational. When put to him that he cannot return to the house to see the children because inevitably the house will be sold, he said he would buy the house. When asked what he would do if, say, the house burned down, he said he would see the children in the shed. His refusal to see S when she wanted to see him shows a lack of insight about how his behaviour might affect her.
The application has a long history. At one point an order was made for Mr Gibson to attend for a psychiatric assessment. That may have given some insight into his behaviour, but it did not happen.
Mr Gibson’s attitude makes it impossible to make orders which will promote the benefit of the children having a meaningful relationship with him. He says he will only see the children at the home. That is impossible. He cannot look after the children even if his mental state made that possible. After separation he said he has slept in his car and sometimes at his parents’ house. In the latter part of the hearing he said he was sleeping in a tent in the forest. Since he refuses to see the children except at the home, no orders can be made for them to spend time with the children, even if that was otherwise in the children's best interests.
Even if it was possible to see some way of the children having contact with their father, under the circumstance this would have to be carefully controlled. This is because Mr Gibson says he wants to speak to the children so that he can use what they say to the clear his name about the events of 17 September 2005. This shows a lack of insight into how the events of that day have affected the children and how an attempt by him to talk about that day would not help them.
Only one order is possible in the circumstances and that is that the children should live with their mother and she have sole parental responsibility. Questions of time and communication with Mr Gibson can only be reserved.

Property

The specific property issues are:
a)Is the husband’s father’s estate to be repaid a loan or does it have an interest in Property D?
b)Apart from Property D, what is the matrimonial property?
c)What effect does the wife's gambling losses have on contributions?
d)How should the husband's interest in shares, his superannuation, his father's family trust and his father's estate be taken into account?
The issues must be placed in the context of the four step property consideration process.[1] The steps are:
What are the assets and liabilities?
What are the parties contributions?
What are the parties future needs?
Is the order just and equitable?

Is the husband’s father’s estate to be repaid a loan or does it have an interest in 24A Property D, D?

[1] Hickey [2003] FLC 93-143. For superannuation C [2005] FLC 93-220

The parties purchased Property D in 2001 for $265,000. Mr Gibson’s father lent money to assist in the purchase. After the commencement of these proceedings Mr Gibson's father became a party because

Ms Gibson disputed the loan. Mr Gibson’s father died in the course of the proceedings so that his estate’s representative became the party.
After the proceedings commenced Ms Gibson and the estate settled the dispute. They agreed that part of the orders that should be made were that out of the proceeds of sale of the property, $170,000 should be paid to the estate.
Mr Gibson was not part of this agreement. He acknowledged that the amount provided by his father was $170,000, but he said that this meant that his father and his father's estate owned two thirds of the property, not that a loan was owing.
Mr G senior filed an affidavit before his death. He said he had made a loan, not that he had an interest in the property. Ms Gibson acknowledged that there had been a loan, but claimed that it had been forgiven, in other words that there had been a gift. She did not allege that Mr G senior had had an interest in the property.
The circumstances in which the money was advanced are straightforward. The property was purchased. Mr Gibson owned a property at B which he was selling and originally the loan, or at least the initial part of it, was intended as bridging finance. It remained as a longer term loan. The evidence showed that at the time Mr G senior advanced the money all parties intended that it be a loan. There was no trust and no interest by Mr G senior in the property.

Apart from Property D what is the matrimonial property?

The applicant's final submissions assessed the matrimonial property this way.
Property D$400,000
less mortgage $43,500
estate$170,000
selling expenses $10,000
net equity $176,500
Holden (w) $3000
Jeep Cherokee (h) $8,000
Holden (h) $800
Tools $2,000
Proceeds of sale AMP shares (h) $4,136
[C] Shares (h) $26,432
The value of the house and amount of the mortgage at the time of hearing is agreed. I have made a finding about the $170,000 owed to the estate.
Mr Spicer, who appeared for Mr Gibson, used the husband's financial statement dated 21 April 2006 for some of the assets and their values. The financial statement was filed at a time when the husband was represented. The financial statement lists a Jeep Cherokee at $8,000 and Holden: $800. It lists tools and equipment $2,000 and 2000 shares in “[C] Employee Share Plan”. It gives the names of the owners as “Mr Gibson and [C].” and estimates 80% as "your % share". Mr Spicer's submission uses the current value of $16.52 for the shares and takes 80%.
Mr Gibson did not file an up-to-date financial statement. His constant complaint throughout the hearing was that he had been denied access to his computer and documents and he could not prepare for the hearing. His documents remained in the house when he was removed by police. At the hearing some documents, obviously the husband's, were produced from the possession of the wife's solicitors. Mr Gibson produced a letter which was a standard solicitors letter asking for payment of some $600 for photocopying documents.
I adjourned the hearing and made an order to permit inspection of those documents by Mr Gibson. On the resumption, Mr Gibson's complaints about his lack of access to documents continued. He said in evidence that he had only 1000 [C] shares. He gave no explanation why 2000 appeared in the financial statement. His financial statement shows superannuation with a [C]. fund. Perhaps that is the explanation. The best evidence I have is the financial statement prepared at the time

Mr Gibson was represented. I find that he has [C] shares valued at $26,432.
Ms Gibson values her Holden at $3,000. As best as I can determine

Mr Gibson does not dispute this.
Mr Gibson acknowledges that he sold 544 AMP shares for $4,836 after separation. He says he spent the money on the expenses because he had no income and no means of income, particularly since the tools and equipment he could use to earn income were at the D home. The amount should be added back into the property pool.
Mr Gibson values the tools at $2,000. The tools are still in the house at D. One of Mr Gibson's complaints throughout the hearing was that he could not pursue his business and earn money because he did not have the tools nor access to the house. The business involved made little money and seems an unlikely source of income now for Mr Gibson.
The wife's proposal in the property orders is that Mr Gibson retain the tools and they be valued at $2,000. I think it is unlikely that Mr Gibson would collect the tools. Since he does not have a residence they cannot be delivered to him. The house must be sold and the tools will have to be disposed of. The only realistic course is to leave the tools with

Ms Gibson. She can then sell them. She can sell them to a second hand dealer, or have a clearance or garage sale. There is no evidence of what they might be worth sold in this way. I consider the only realistic option is to take the tools into account as another circumstance pursuant to s.75(2)(o) of the Family Law Act1975.
The husband's financial statement discloses two superannuation plans, [C] Super Plan 261, $62,250, and K (AMP), $117. During the hearing a superannuation benefits advice from [G] Superannuation Fund for

Mr Gibson was tendered showing an amount of $16,993.27 at 1 July 1991. Ms Gibson’s total superannuation is $34,024.
Therefore the party's assets and liabilities are:
Property D $400,000
less mortgage $43,500
estate$170,000
selling expenses $10,000
net equity $176,500
Holden (w) $3000
Jeep Cherokee (h) $8,000
Holden (h) $800
Proceeds of sale AMP shares (h) $4136
[C] Shares (h) $26,432
Total$218,868
Superannuation is:
Husband
[C] Super Plan 261, $62,250
K (AMP)_, $117
[G] Superannuation Fund $16,993.27
Wife, $34,024
The evidence of the [C]. and K (AMP) superannuation is contained in Mr Gibson’s financial statement dated August 2006. He states the amounts as estimates. The G amount date is the middle of 1991.

What effect does the wife's gambling losses have on contributions?

Mr Gibson purchased a property in Property B in 1981 for $35,750

Ms Gibson purchased a unit at Property L in January 1994.
The parties had known each other in 1970 as friends and they met again in December 1991 when Mr Gibson became A’s father figure. They continued close relationship until early 1995 when Mr Gibson's daughter K wanted to live with him. Ms Gibson and A moved into the B property so that she could care for K, as Mr Gibson was working night shift. K was about 14 at this stage. Ms Gibson gave up her full-time job and after that undertook only part-time employment.
The party's child, S was born in 1996.
The B property was extended in 1996 using a loan of $50,000. M'sGibson’s L property was rented from the time Ms Gibson moved in with Mr Gibson. The L property was sold in February 1998. The net proceeds of about $40,000 was put towards the loan on the B property.
They purchased the D property in 2001 for $265,000. Settlement was in October 2001. The parties borrowed $155,000 from the National Australia Bank. The balance was provided by Mr G. In their affidavits the parties differ about the amount provided by Mr G. That dispute has been settled by the agreement already described. Shortly after settlement of the purchase of D the sale of the B property was completed and the net proceeds of, according to Ms Gibson, $134,661 were paid off the home loan. According to Mr Gibson that left a balance of about $10,000. On Ms Gibson figures it was about $20,000.
Ms Gibson commenced gambling in early 2000. She says she became depressed as a result of K's heroin addiction and the deterioration in her relationship with Mr Gibson caused, she says, by his heavy drinking and use of marijuana. She obtained the money for gambling by drawing down on the mortgage account over the D property. She concealed her drawings and gambling from Mr Gibson. She eventually realised what was happening and sought professional help. She confessed to gambling to Mr Gibson, his parents and her friends.
She calculates that she lost some $30,000. She made this calculation by sitting down with her brother and going through bank accounts.

Mr Gibson claimed during the course of the hearing that the amount was $200,000. The bank accounts are in evidence. I accept that

Ms Gibson's calculation of some $30,000 is reasonably accurate. The consequence was that the mortgage grew to $50,000.
Ms Gibson alleges that for about a year after this Mr Gibson supplied her with only $300 a month for food and to run the house for four people. She says her mother provided financial assistance of about $5,000 a year.
Mr Gibson worked until June 2004 with [C] Ltd. He received a lump sum payment when he left. Mr Gibson says it was $23,000, Ms Gibson says $31,592. She says he spent $25,000 on the Jeep Cherokee. He says he spent $3,000 on a swimming pool and purchased the Cherokee motor vehicle using, he says about $11,400.
After this, Ms Gibson commenced full-time work and has been the source of the family's income since. She has made the mortgage payments since.
In early 2004 Ms Gibson received an inheritance of $76,000. She applied it to family living costs except for $12,000 for her own orthodontic treatment. Ms Gibson's mother bequeathed $82,000 as a trust fund for the two children. Ms Gibson and her brother are joint trustees. Some funds have been applied for educational costs.
Mr Gibson's initial contribution was the B property and Ms Gibson’s the L property. The contribution from these properties to the D property was $40,000 paid off the B property when Ms Grenda's B property was sold in 1998 and $134,661 paid off the D property in late 2001 using the proceeds of Mr Gibson’s B property. The B property had been improved by the $50,000 borrowings in 1996. There is no evidence of how this improved the value of the property, and there is no evidence of its value in 1998 when Ms Gibson's $40,000 was contributed. In addition to this $40,000, rent from MsGibson’s L property contributed to the family finances until 1998.
Ms Gibson's gambling losses are waste or negative contribution, but they are offset by the inheritance from her mother in 2004. Mr Gibson's lump sum payment at the end of his employment in 2004 has to be taken into account. Prior to this employment ending Mr Gibson was earning $70,000 a year. In terms of recurrent income, he made the greater contribution, but until then Ms Gibson performed the major homemaker and child-care role. Mr Gibson then performed a homemaker role until separation and Ms Gibson became the sole income earner.
Leaving aside superannuation, I consider that the party's contributions to the acquisition improvement and maintenance of their property were equal.

How should the husband's interest in shares, his superannuation, his father's family trust and his father's estate be taken into account?

Mr Spicer for Ms Gibson submitted that the parties’ superannuation, except for the [G] Superannuation, should be treated as part of the property pool. He then submitted that the wife should receive the net value of the D property and retain her Holden car and superannuation. This would give her:
value of property $176,500
Holden $3,000
superannuation $34,024
total $213,524
The husband would then receive:
Jeep $8,000
Holden $800
Tools $2,000
Proceeds AMP shares $4836
[C] Shares $26,432
Superannuation $62,332
Total $104,400
This gives the wife 67.16% of the asset pool, and the husband 32.84% of the assets if the tools are included at $2,000 and they go to the husband.
Mr Spicer's submission used the [G] superannuation, the interest in

Mr Gibson’s Father estate and the family trust as resources which when combined with contributions, he submitted, more than justified the percentage split of the assets.
This approach does not make a separate assessment of contributions which must be done, and it requires consideration of how superannuation should be treated.
Current valuations of Mr Gibson's superannuation were not available at the hearing. Nor is evidence of valuations at the commencement of cohabitation, or the commencement of the relationship. Whether one party or the other should have rectified this is not now to the point. I need to do the best I can.
The husband was born in 1956 and is now aged 51. The wife was born in 1957 so she is nearly 50. Mr Gibson is not working and has not worked since 2004. He is unlikely to work again so is retired and can access the superannuation at age 55, in a little under five years time. Neither party has applied for a splitting order. The circumstances justify treating Mr Gibson's superannuation as property together with the other property. The submissions for Ms Gibson treat her superannuation in the same way. This does not disadvantage

Mr Gibson. That means that the circumstances justify treating all superannuation as property together with the other property.
The [G] Superannuation was $16,993.27 on 1 July 1991. Since the [G] is a large and well-known business a reasonable inference is that the superannuation fund has been well managed and invested. An average return of 7% means that the superannuation would now be at least $50,000. Using this valuation and the valuations contained in

Mr Gibson's financial statement does not disadvantage him.
Next that there must be an assessment of contributions to superannuation. The party's cohabited for 10 years and 11 months. Some of the superannuation of both accumulated prior to cohabitation commencing, but I have no evidence of how much. I have to do the best I can in exercising the discretion in assessing contributions.
Much of Ms Gibson's superannuation comes from the employment with National Australia Bank where she finished working once cohabitation commenced in early 1995. However, investment income, in a period of high returns, has continued since then. Its value was probably half or less at the commencement of cohabitation. The reasonable inference is that the [G] superannuation was about half what it is now at the commencement of cohabitation. The [C] superannuation must have had a value of half or less at the commencement of cohabitation.
Mr Gibson's superannuation, using his financial statement valuation for $50,000 for the [G] superannuation, is now $112,250. If I assume half or less at the commencement of cohabitation that is about $65,000. Half of Ms Gibson's superannuation at the commencement of cohabitation is $17,000.
The superannuation is about 30% of the property pool. When I combine all these factors, value of superannuation at the commencement of cohabitation, its current proportion of the property pool and a ten year nine month cohabitation with the party's equal contributions to other property, I conclude that there should be a 5% adjustment in favour of the husband. This is when all property including superannuation is assessed for contributions in the second step of the process. That makes the husband's contribution 55% and the wife's 45%.
One of the applications made in the course of the proceedings was an application by one of the executors of the estate of Mr Gibson's father. The application was for him to be joined to represent the estate following the death of Mr G Sr.
The affidavit in support of the application was sworn by Ms S, a solicitor. Ms Gibson refers to it in her trial affidavit and I treat it as part of the material for the purposes of the trial.
Mr Gibson is one of the executors named in Mr G senior’s will. Ms S’s affidavit describes the efforts made to attempt to attain Mr Gibson's cooperation in an application for probate. Ms S statement that “it is extremely difficult to deal with a person who will not seek legal advice, will not reveal his address and will not respond to telephone calls" accurately summarises the history Ms S gives. It reflects the difficulty there has been in dealing with Mr Gibson during the hearing.
Ms S annexes to her affidavit a copy of the will and a copy of the inventory of assets and liabilities. The total assets are $1,210,198.56 and the total liabilities $290.92. The will bequeaths to the trustees of the will two ordinary fully paid shares in [L] Pty Ltd trustee of the Gibson family trust. The will expresses the wish that the trustees of [L] Pty Ltd, in exercising any discretion given by the trust settlement, to give priority to the needs of the testator’s wife during her lifetime. It then expresses the wish that upon her death the assets of the trust be divided in equal shares between Mr G’s five children, including the husband in this case.
I have no evidence of the value of the family trust. The only indications I have are the size of Mr G's estate and the fact that the $170,000 lent to the parties came from the family trust. Mr Spicer submits that I should take into account Mr Gibson's failure to disclose his interest in the family trust and his failure to disclose the potential value of the interest. However, on the wife’s side the trust accounts could have been subpoenaed. In the absence of any evidence, I cannot make any definite finding about the size of the family trust, other than it must be a significant amount of money.
The evidence describes Mr Gibson being at his parents’ home. From that evidence I can safely infer that they owned the home, and that

Mr Gibson's mother is now the sole owner. Mr G's estate is valued at $1,200,000. It does not include any share in the family home. The value of the property pool is $375,000. I consider a safe assumption is that Mr Gibson's potential share in his mother's estate and from the vesting of the family trust exceeds that amount of money. In undertaking the third step, the parties future needs, I have to take into account Mr Gibson’s potential share in the vesting of the family trust on the death of his mother and his potential share in his mother's estate.
Currently Ms Gibson earns $500 a week. She will retain the tools which you can sell. She receives minimal child support. She has to support S, the child of the marriage. She has to support A. She has the benefit of her mother’s trust fund to give some assistance. D will be sold so she will either have to borrow money to purchase it herself or find somewhere else to live.
Mr Gibson is not working and is unlikely to resume working. However, I have to take into account the substantial financial resource he will ultimately receive. I consider that all the circumstances justify a 25% adjustment in Ms Gibson's favour for the factors under section 75(2) of the Family Law Act 1975. This makes the distribution 70% to

Ms Gibson and 30% to Mr Gibson.
The result is:
Property D $400,000
less mortgage $43,500
estate$170,000
selling expenses $10,000
net equity $176,500
Holden (w) $3000
Jeep Cherokee (h) $8,000
Holden (h) $800
Proceeds of sale AMP shares (h) $4,136
[C] Shares (h) $26,432
Superannuation:
Husband
[C] Super Plan 261, $62,250
K (AMP)$117
[G] Superannuation Fund $50,000
Wife, $34,024
Total $375,142
The wife's share, 70%, is $262,600. The net value of the house plus her Superannuation and car is $213,524, less than this. Ms Gibson applies for transfer of the house to her, subject to the agreement for sale of the house so as to pay $170,000 to Mr G's estate. She does not apply for any part of the husband's superannuation or his motor vehicle or for transfer of any of the [C] shares. The house will have to be sold to pay the $170,000, this being agreed between Ms Gibson and the estate.

Mr Gibson is unlikely to cooperate, so transfer of the house to her, as she seeks, is just and equitable.
Ms Gibson has applied for an order that transfer documents be signed by a registrar. Mr Gibson is unlikely to cooperate, so such an order is inevitable eventually. It is better to make it now.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate: Jan Smith

Date: 31 October 2007