Goggin and Goggin

FAMILY COURT OF AUSTRALIA

GOGGIN & GOGGIN

[2011] FamCA 510

FAMILY LAW - PROPERTY SETTLEMENT - Where allegations of non-disclosure were made by the wife against the husband

Family Law Act 1975 (Cth)

APPLICANT:

Ms Goggin

RESPONDENT:

Mr Goggin

FILE NUMBER:

SYC

5993

2007

DATE DELIVERED:

29 June 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Fowler J

HEARING DATE:

21, 22, 23 February 2011 and 3, 4 March 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Campton

SOLICITOR FOR THE APPLICANT:

Barkus Doolan Kelly

COUNSEL FOR THE RESPONDENT:

Mr Jackson

SOLICITOR FOR THE RESPONDENT:

Moylan Family Lawyers

Notations

The following definitions apply for the purposes of these Orders:
(a)“The B Street property” means the whole of the land situate at and known as B Street, Sydney Suburb 1, being the whole of the land contained in Certificate of Title Folio Identifier …
(b)“The H Street property” means the whole of the land situate at and known as H Street, Sydney Suburb 2, being the whole of the land contained in Certificate of Title Folio Identifier … and registered in the name of Business 1
(c)“The R Street property 1” means the whole of the land situate at and known as R Street property 1, Sydney Suburb 2, being the whole of the land contained in Certificate of Title Folio Identifiers … and … and registered in the name of Mr Goggin
(d)“The R Street property 2” means the whole of the land situate at and known as R Street property 2, Sydney Suburb 2, being the whole of the land contained in Certificate of Title Folio Identifier … and registered in the name of Business 1
(e)“The debt to the New South Wales Government Agency” means the debt, including accrued interest, owing by Mr Goggin and Business 1 to the New South Wales Government Agency, estimated to be a total sum of $933,470
(f)“The St George Bank mortgages” means the monies secured pursuant to mortgage registered numbers … and …., granted by the parties and Business 1 to the St George Bank and by which the parties and Business 1 have debts owing to St George Bank as follows:
(i)Bill Facilities, estimated to be in the sum of $7,594,000
(ii)Overdraft, estimated to be in the sum of $350,000

(g)“The S Street property” means the whole of the land situate at and known as S Street, Melbourne Suburb 1 in the State of Victoria, being the whole of the land contained in Volume … Folio …
(h)“The Bank of Queensland debts” means the monies secured pursuant to mortgage registered number …, being account number … and personal loan account number … and granted to the Bank of Queensland in respect of the S Street property, estimated to be a total sum of $539,145
(i)“Business 1” means the company, Business 1 ACN ….

Orders

Subject to any necessary consent or approval required by the New South Wales Government Agency, the wife be appointed as trustee for the sale of R Street property 1; and the wife, as trustee for its sale, forthwith do all acts and things necessary to cause to be sold for the best price reasonably obtainable the R Street property 1.
Subject to any necessary consent or approval required by the New South Wales Government Agency, the wife, as director of Business 1, be solely authorised to forthwith sell for the best price reasonably obtainable the H Street property and R Street property 2.
Upon the completion of the sale of R Street property 1, the H Street property and R Street property 2 pursuant to Orders 1 and 2, the wife do all acts and things necessary to cause to be sold for the best price reasonably obtainable the B Street property.
In respect of the sale of R Street property 1, the H Street property and R Street property 2 pursuant to Orders 1 and 2, the following conditions of sale apply:
(a)the wife be at liberty to appoint such selling agents as she considers reasonable
(b) Mr L be appointed to act as the solicitor for the vendor
(c)the wife have sole responsibility, as between her and the husband, to negotiate the sale price of each property and the listing, auction, sale and advertising arrangements.
In respect of the sale of the B Street property pursuant to Order 3, the following conditions of sale apply:
(a)the wife be at liberty to appoint such selling agents as she considers reasonable
(b)the wife be at liberty to appoint the solicitor to act in respect of the conveyance
(c)the wife be at liberty to negotiate the listing and advertising arrangements
(d)the wife determine the method of sale, whether by auction or private treaty.
On the settlement of the sale of R Street property 1, the H Street property and R Street property 2 pursuant to Orders 1 and 2, the wife do all acts and things necessary to cause the proceeds of the sale of those properties to be distributed in the following order of priority:
(a)in payment of the costs associated with the sale, including but not limited to the vendor’s legal costs and disbursements, the agent’s commission, auction fees, advertising expenses and outstanding Council rates and land taxes
(b)in payment of the sum necessary to discharge the St George Bank mortgages
(c)in payment of the sum necessary to discharge the debt to the New South Wales Government Agency
(d)in the event that there is any amount remaining, such amount to be applied in discharge of the debts of Business 1 and any amount then remaining to be paid to Business 1.
On settlement of the sale of the B Street property pursuant to Order 3, the wife do all acts and things necessary to cause the proceeds of its sale to be distributed in the following order of priority:
(a)in payment of the costs associated with the sale, including but not limited to the vendor’s legal costs and disbursements, the agent’s commission, auction fees, advertising expenses and outstanding Council rates and land taxes
(b)in payment of any sum remaining necessary to discharge the St George Bank mortgages
(c)in payment of the sum remaining necessary to discharge the debt to the New South Wales Government Agency
(d)in the event that there is any amount remaining, such amount to be applied in discharge of the debts of Business 1
(e)in payment of any taxation obligations owing as a consequence of the sale of the H Street property and R Street property 2
(f)in payment of the sum equivalent to 70% of the remaining balance to the wife
(g)in payment of the sum equivalent to 30% of the then remaining balance to the husband.
Upon settlement of the sale of the B Street property the wife will, at the expense of the husband, do all acts and things necessary to cause to be transferred to the husband all of her right, title and interest in the S Street property; and that the husband indemnify and keep indemnified the wife in respect of the Bank of Queensland debts and any legal costs arising as a consequence of the proceedings commenced by the Bank of Queensland against the wife in relation to the S Street property and pay to the wife the sum of $207,161.60 which payment is charged in favour of the wife against the entitlement of the husband hereunder.
The wife be solely entitled to the following:
(a)       the Toyota motor vehicle in her possession
(b)       the household contents of the B Street property
(c)       the jewellery in her possession
(d)the monies standing to her credit in St George Account … and St George Account …
(e)       the superannuation standing in her name.
The husband be solely entitled to the following:
(a)       the Harley Davidson motorcycle
(b)       the Toyota utility
(c)       any furniture, furnishing or personal items in his possession or control
(d)       any bank accounts standing to his credit
(e)       the superannuation standing in his name
(f)        the debt owing to him by Mr P.
Upon the completion of the sale of the B Street property pursuant to Order 3, the wife do all acts and things necessary to cause to be wound up Business 1.
Each party otherwise be solely responsible for any credit card debts standing in their sole names.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5993 of 2007

Ms Goggin

Applicant

And

Mr Goggin

Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court are proceedings in which the parties to a marriage seek orders in relation to property.
The property acquired during the marriage was acquired variously in the name of the husband, the wife and companies as trustees for certain beneficiaries.
The property included a motor vehicle industry business. The husband asserts that this business was sold to his brother and that it is presently owned by his brother and the eldest child of the marriage.
The wife asserts that the husband has not made full and frank disclosure as required. She further asserts that the evidence he has given is unreliable and that, on a consideration of the totality of the evidence, the Court should come to the view that the evidence of the wife is to be preferred where it conflicts with that of the husband or his brother.
In addition, the wife asserts that the motor vehicle industry business is held by the husband’s brother and the eldest child of the marriage in whole or in part for the husband’s benefit.
The marriage ended shortly after the husband was charged and convicted of crimes for which he was sentenced to a period of imprisonment, with a

non-parole period expiring in November this year. Those crimes attracted the attention of the NSW Government Agency and orders have been made for the repayment of a substantial sum of money. Those orders bind the husband, the wife and Business 1 of which the wife is presently the only shareholder.
During the course of the proceedings, the wife was appointed the sole director of Business 1. That company owned two of the properties and it was the trustee for the sale of a property owned by the husband. Another property is owned by the wife and the late Mr Z as tenants in common, the wife as to two-thirds. The husband asserts that, prior to his death, Mr Z transferred his interest in that property, but that he did not produce the signed transfer to the wife and as such she cannot take full title to it. At one stage, the husband asserted that in any event the property or the remaining share in it was not that of the wife.
At the time of the hearing, the husband has had weekend release from custody on licence.
This is a case of doubt, alleged non-disclosure, contradiction in evidence, lack of evidence and failure to call evidence which one would assume to be otherwise available. In the melange of disputed facts, the Court is asked to make a decision as to an appropriate division of such of the parties’ property of which it has a reasonable degree of comfort exists while taking into account the existence of property said to have not been disclosed.

The Background Facts

Where, in this judgment, I make statements of fact, they are, unless otherwise specified, my findings of fact.
In 1962, the husband was born. He is now aged 49 years.
In 1962, the wife was born. She is now aged 48 years.
In April 1987, the husband purchased, by way of mortgage, the property at

L Street, Sydney Suburb 3 (“the L Street property”).
In 1989, the parties married. Thereafter, they commenced cohabitation.
On 15 May 1990, the wife sold her G Street property for the sum of $187,500. She received net proceeds of sale in the sum of $146,240. Those net proceeds were contributed towards the joint assets of the parties.
In June 1990, the child, J (“the eldest child”) was born. He is now aged 20 years.
In July 1990, the parties purchased the property at C Street, Sydney Suburb 4 (“the C Street property”) for the sum of $235,000.
In February 1992, the husband purchased, financed by a mortgage in the sum of $856,000, the properties at R Street property 1, Sydney Suburb 2 (“R Street property 1”) for the sum of $715,000.
In July 1992, the child, B was born. He is now aged 18 years.
In July 1992, the husband sold a certain T Street property, which he had previously subdivided.
In April 1995, the husband sold to his brother and sister-in-law a certain L Street property for the sum of $350,000.
In December 1996, the child, M was born. He is now aged 14 years.
On 21 July 1997, Business 1 was incorporated.
In mid 2003, the parties purchased the property at B Street, Sydney Suburb 1 (“the B Street property”) for the sum of $3,000,000.
In February 2004, the parties sold a certain C Street property for the sum of $1,760,000.
In June 2006, the wife and Mr Z purchased the property at

S Street, Melbourne Suburb 1 (“the S Street property”) for the sum of $650,000. They held their respective interests in that property, subject to a mortgage and overdraft to the Bank of Queensland, as tenants in common, the wife as to two-thirds and Mr Z as to one-third.
In November 2006, the husband informed the wife that he intended to “buy out” Mr Z from the S Street property.
In May 2007, the husband was arrested and charged with criminal offences, including defrauding state revenue.
In June 2007, the parties separated.
On 23 August 2007, the wife filed an Initiating Application seeking parenting orders.
On 8 October 2007, the husband filed a Response.
On 17 December 2007, the husband filed an Amended Response seeking in addition property orders.
On 15 January 2008, the wife filed an Amended Initiating Application seeking property orders.
On 23 January 2008, orders were made for the sale of certain properties at X Street, Y Street and Z Street.
In early 2008, the wife caused the X Street property to be sold for the sum of $3,100,000. The net proceeds of sale were applied towards the reduction of the parties’ debt to St George Bank.
On 4 April 2008, the wife caused the Y Street property to be sold for the sum of $910,000. The net proceeds of sale were applied towards the reduction of the parties’ debts and the mortgage over that property.
On 22 May 2008, the wife caused the Z Street property to be sold for the sum of $1,800,000. The net proceeds of sale were applied towards the reduction of the parties’ debt to St George Bank.
On 21 July 2008, orders were made by the Supreme Court of NSW against the husband and Business 1 that they each pay to the Treasurer the sum of $770,000, being the value of proceeds derived from illegal activities. Since that date, interest has occurred at the rate of $189.86 per day. As at

21 February 2011, the debt is $933,470. The husband says that the wife is also liable for the amount and the wife accepts that it is properly included as a liability of the parties.
On 30 July 2008, orders were made for the sale of two R Street properties. At the date of the final hearing, neither property was the subject of a completed sale.
On 12 September 2008, orders were made in relation to the sale of R Street property 1 and a certain W Street property.
On 3 February 2010, the wife sold the W Street property for the sum of $3,780,000. The net proceeds of sale were applied towards the reduction of the parties’ debt to St George Bank.
On 17 June 2010, the matter was listed for its first day hearing before me. Directions and orders were made including that the child, M remain living with the wife. Further, the husband gave an undertaking on oath to produce the original document of transfer of the S Street property within 21 days subject to him being able to locate it.
On 6 August 2010, further orders were made in relation to the sale of Sydney Suburb 2 properties.
On 8 November 2010, the parties entered into further consent orders with the NSW Government Agency.
On 10 November 2010, contracts for the sale of R Street property 2 were exchanged with Business 2. That company is owned by the eldest child, J and it is the trustee of the Business 2 Trust.
The contracts provide for a sale price of $2,400,000 in respect of

R Street
property 2 and $2,200,000 in respect of R Street property 1, and for deposits of $120,000 and $220,000 respectively to be paid on exchange. As at the date of the hearing, notices to complete had issued in relation to those contracts.
In November 2010, the wife sold jewellery for a total sum of $15,929.40 to assist with the expenses of herself and the children.
On 7 December 2010, a decree nisi for the dissolution of the parties’ marriage was granted. It became final on 8 January 2011.
On 9 December 2010, the H Street property was listed for auction, but passed in without sale.
On 29 November 2010, the matter was listed for final hearing for four days.
Following reservation of the judgment, the matter was re-listed on the application of the wife and further orders were made in relation to the appointment of the wife as trustee for the sale of the H Street property. She had procured the approval of the NSW Government Agency to a variation of the order of the Supreme Court of NSW such that the property might be sold at a price less than $4,600,000 and sought orders that the husband execute documents necessary to give effect to the variation consented to by the other parties to the orders.
The Court noted that the husband had valued the property at the sum of $3,700,000.
The Court was also informed that the notices to complete in respect of the R Street properties had expired and that the wife was then considering a possible extension of the time for completion provided that the purchasers could produce evidence of their capacity to complete.
It is anticipated that, on 20 November 2011, the husband will be released from prison.

The Issues to be Determined

The following issues are to be determined:
(1)the nature, extent and value of the parties’ assets and liabilities
(2)the just and equitable division of the net property of the parties or either of them as between them.

Credit

In this matter, findings on credit in relation to the evidence before the Court are significant to its outcome.
Each of the parties made submissions in this regard.
Throughout the course of the litigation, the husband retained solicitors including family law experts, and briefed well-known counsel.
The husband’s evidence is that he endeavoured to be careful, accurate and truthful in giving both his oral and affidavit evidence.
The husband had had the benefit of the wife’s affidavit and exhibits for a period of three months before he swore his own, those documents having been supplied to his solicitor. He had sufficient time in which he could study them. However, he asserts that he had not been given them, nor had he read them. If that is correct, that may be a matter between him and his solicitors. But, the opportunity was properly afforded to him to consider them.
The husband’s evidence is largely unreliable.
In cross-examination, the husband conceded firstly that the dates in his affidavit “could be right or could be wrong”. He then conceded that, in part at least, they are wrong.
Further, the husband asserted that the absence of documents meant that some information was not available to him and accordingly that his affidavit drew on his best recollection. However, his recollection proved faulty in a number of respects and even simply wrong in other respects. He made errors on a number of matters which required only the broadest precision. For example, he was asked whether a property he had owned had been subdivided before or after the marriage, to which he responded that it occurred well before the marriage. Yet, it did not in fact occur until 1992 and he conceded that the blocks were not sold before the marriage.
It was not so much that the husband failed a memory test, but rather that the husband had given affidavit evidence with such certainty but without being entitled to do so. His affidavit evidence was reckless and unreliable.

The husband’s oral evidence was, in part, uncertain. He was unable to tell the Court of the destination of substantial sums of money. His recollections again were inaccurate and self-serving.
As to the financial contribution of the wife, the recollections of the husband were different to those of the wife. Having regard to the inaccuracy of his evidence generally and the supporting evidence, the Court finds that, where the parties differ on such matters, the evidence of the wife is to be preferred.
Some notable examples of the inaccuracy of the husband’s evidence are as follows:
(1)In relation to the sale of the L Street property and the husband’s related business, his evidence was uncertain.
(2)In relation to the sale of the G Street property and the net proceeds of that sale, the husband accepted that his evidence was incorrect.
(3)In relation to an alleged transaction between the wife and his brother-in-law, the husband’s affidavit evidence is that he was never consulted about that transaction which the wife asserted to be an investment by him. However, in direct contradiction, in his oral evidence, he said that he was consulted about that transaction and that he spoke to his brother-in-law about it in the wife’s presence. He conceded that his affidavit evidence in that regard was incorrect. He said that, before swearing his affidavit, he did not read every paragraph in it. When challenged on the accuracy of the document, he disclaimed authorship of it.
(4)The husband gave evidence about being responsible for and running Business 1 during the course of the marriage notwithstanding that the wife had been the sole director of that company. He also said that he was the only person who signed cheques on behalf of the company.
(5)The husband asserted that the wife had no business acumen or understanding of how to run “the empire” after he was incarcerated. He further asserted that she had no understanding of even the day-to-day activities of the company of which she was the sole director or the trust of which that company was trustee.
(6)The husband said that the wife would sign mortgage documents placed by him in front of her and not seek any advice from him as to those documents. Through his counsel, he cross-examined the wife about and put into issue the execution of documents by others on her behalf without her knowledge or consent. However, in cross-examination, he conceded that he signed documents in the name of the wife during the course of the marriage.
(7)The husband was evasive about some aspects of his relationship with Ms F. When asked whether she was residing at the Z Street property, he responded, “No”. He then said in answer to another question, “She stayed at [Z Street] part-time. She stayed on weekends only … in the past 12 months”. This was a significant qualification to the original answer that she was not residing there. Later in evidence, he was quick to deny a document evidencing the payment of costs of accommodation as one relating to the acquisition of accommodation for Ms F. Rather, he described the document as relating to a visit to the other owner of the property owned by the wife in Victoria. However, the document cannot be so described as it clearly relates to accommodation in Sydney. There was also evidence that his mobile telephone number had been called from the Z Street premises and it appeared that Ms F’s foxtel statements had been sent to the post office box of Business 1.
(8)The husband was asked to provide information as to the money spent on Ms F, but failed to do so other than by giving some very general assertions. Without anything much more in terms of detail, he claimed that he had spent no more than $10,000 on her. His anxiety in giving evidence and his quick denials made it clear to the Court that, in giving his evidence, his first priority was not to be accurate, but rather to not assist the wife’s case.
(9)In his evidence, the husband noted that Business 1 had paid for leases of motor vehicles for the company said to be owned by his brother. He said with certainty that all such payments had been repaid. He then went on to say, “We can provide you with the invoices for the receipts and everything”. When asked by whom he meant “we”, he said that he meant himself and his son, but also denied that he had any interest in the business owned by his son and his brother.
(10)The husband denied that any of the assets of the parties had been used in the payment of his costs in the criminal proceedings against him. He later backtracked by saying that some of the proceeds of sale of certain assets had been so used, but that those assets were his assets. He said that he had no knowledge of the application of the proceeds of sale by the wife of a certain Mercedes motor vehicle. The Court accepts the wife’s evidence that $20,000 of those proceeds was applied toward his costs in the criminal proceedings against him.
(11)The husband positively asserted that the tenants of Business 1 directly paid land tax to the Office of State Revenue. He gave details of how they did so. After further questioning, he said that the tenants had a liability to pay such tax, but that he did not know how they did so.
(12)The husband denied that, at the time of his arrest, his arrangements with St George Bank were in default. He said that those arrangements went downhill after the wife took control of the business upon his arrest. He denied that the bank had put any pressure on him to sell assets prior to his arrest. He said that the bank had put pressure on him to complete a building and procure a tenant. He then conceded that he contemplated selling an asset to pay down the bank prior to his arrest.
The Court finds the evidence of the husband to be unreliable and unsatisfactory. The husband sought to put forward false versions of events which favoured his case. He appeared to make guesses on a number of matters which often proved wrong. He expressed ignorance of a number of matters which it seemed should have been within his knowledge. Further, from time to time, he avoided providing any answers to questions put to him. Accordingly, where the evidence of the husband and wife conflict, the Court prefers that of the wife unless otherwise stated.
The wife’s answers were not always correct; but, she had documents to back up many if not most of her assertions and in general, her evidence is preferred unless otherwise stated. She did not evade questions. She answered questions promptly.
After judgment was reserved, the wife, pursuant to her ongoing obligation of disclosure, disclosed that she had accepted an offer for the purchase of the H Street property for the sum of $3,850,000 as trustee for its sale and that she had procured the consent of the NSW Government Agency for its sale at that price.
The wife had called on the husband to consent to the variation of the order of the Supreme Court of NSW restricting the price at which the H Street property might be sold to $4,600,000. That order was sought to be varied so as to increase the price at which that property might be sold to $3,850,000. It had been made as a result of negotiations with the NSW Government Agency which bound the husband, the wife and Business 1.
While not denying what was asserted by the wife, the husband, through his solicitors, opposed the making of any such consent order in the Supreme Court of NSW varying the terms of the original orders since he was seeking, in these proceedings, that the property be transferred to himself in specie.
The matter was re-listed on the application of the wife and orders were made requiring the husband to consent to the variation of the order of the Supreme Court of NSW.
Subsequently, an application was made that I disqualify myself from delivering judgment in the matter on the basis that I had in some way prejudged the application of the wife by saying of the husband, when talking of his desire to keep the property, that he “imagined” he would receive a sufficient sum from the property settlement to pay a deposit on it and procure finance to acquire it. In this context, by the word “imagine” is meant “believe”, “form the view in his mind that” or conjecture. The assertion that its use constitutes a prejudgment of the issues lacks any sound basis. Its use was simply a statement of fact. The application for disqualification was listed, not pursued and dismissed.

The Allegations of Non-Disclosure by the Husband

The husband initially denied that Business 1 at separation was paying for cars leased by his brother for his brother’s business. In cross-examination, however, he subsequently agreed that Business 1 had made such payments and he then gave an account of an arrangement for repayment. The husband’s brother gave evidence that he had no knowledge of either of those propositions.
The husband failed to file a Financial Statement from 17 December 2007 to the last day of the trial on 23 February 2011.
The husband failed to give full and frank disclosure of the payment of his legal fees including by whom and from which funds those fees had been paid. He asserted that his legal fees had been paid by means of “loans from the family” which he will repay from income earned upon his release from imprisonment. There is no evidence of any requirement for the repayment of any such loans. The evidence on this matter is general and the Court cannot rely upon it given its lack of specificity.
The husband made a claim as to taxation liability for the 2008 and 2009 tax years. In cross-examination, he denied that he had received income in those years. He said that the lodged tax returns showing him to have received rent were incorrect and that he intended to file an amended tax return. He said that he had given his accountant no instructions to prepare a tax return and that he had no knowledge of how the sums therein were calculated. The husband’s brother, who is a director and alleged part owner of Business 3, who is the lessee said to have paid the rent, said that he had no knowledge of any such rent having been paid to the husband.
The wife asserts that Business 3 is a company of which the husband has been and continues to be the beneficial owner. The husband has denied the assertion that he has any beneficial interest in the company.
The wife also submits that the evidence comfortably supports a finding that the husband had had and continues to have a beneficial interest, entitlement or resource in both Business 3 and the Business 2 Trust. She says that the husband has failed to disclose that interest, entitlement or resource.
Some relevant parts of some of the evidence in support of that submission are as follows:
(1)The husband’s brother gave evidence that Business 3 and the Business 2 Trust are the same.
(2)It was noted that the husband’s brother, notwithstanding his position as a director of Business 3 since 2006, as a person promoted by the husband to manage Business 1 and as a person with some 25 years experience as a company director, did not know that the eldest child had three shares to his two in the company. He initially asserted with confidence that they were equal shareholders.
(3)The husband’s brother denied making any rent payments to the husband despite the husband’s tax returns and the company’s accounts suggesting the contrary.
(4)The husband’s brother confirmed that he paid no monies to take over the husband’s business.
(5)The husband’s brother did not know the correct name and identity of the corporate entity conducting the motor vehicle industry business.
(6)The husband’s brother did not know the quantum of wages paid to the husband prior to his incarceration. He said that the husband had not been paid any wages since his incarceration. However, the husband, in his Financial Statement, revealed that he received the benefit of an amount of $1,100 per week from the eldest child as an “expense paid by others”. This was the approximate after tax amount paid by Business 3 to the eldest child as a wage.
(7)The husband’s brother said that he worked on a full-time basis at his motor vehicle industry business in WW Street and that he only attended Business 3 occasionally.
(8)The husband’s brother did not know the name of the bookkeeper. He did not know the quantum of the manager’s wages. He did not receive a benefit except an amount of $15,000 at a time he was unable to recall.
(9)The husband’s brother said that he had not seen any management or financial account of the company for more than a year.
(10)The husband’s brother was aware that the eldest child had not paid for his shares.
(11)The husband’s brother could not identify the name of the entity that had acquired the option to purchase the property as a nominee of Business 3. His evidence was “[Part of the full name of Business 2] or something like that”.
(12)By interim order, the husband was permitted to lease premises at Sydney Suburb 2 to Business 3, but he in fact created a lease with an option to purchase. To challenge on this, his response was that the interim order did not expressly prohibit him from doing so. However, the lease gave an option to purchase outside of the terms of the interim order. Such an option would have been for the benefit of the tenant as opposed to the parties.
(13)The husband was disingenuous in maintaining the independence of the Business 2 Trust. That trust was settled and the deed drawn by the husband’s accountant. Under its terms, the power of appointment rested with the trustee. The trustee was controlled by the eldest child. The terms of the trust were such that he was, as it was originally framed, a potential object for distribution both as to income and capital. He asserted that this was incorrect and this had been changed, but no documentary evidence to that effect has been produced.
(14)This company had entered into an agreement to purchase property at R Street. There was no clear evidence as to the source of the funds for the purpose of the deposits for the acquisitions amounting to some $340,000. The husband gave evidence of a financier for those acquisitions, but there was no evidence of an approved finance arrangement in relation to their purchase.
(15)The eldest child is a full-time student with no qualifications relevant to the running of a motor vehicle industry business. He has only attended, on a part-time basis, on Business 3. The husband was paid money by his son, but he failed to disclose such payments until the swearing of his affidavit of February 2011.
(16)The eldest child’s evidence would have been significant to the issue of the ownership of property. He would not have been prohibited from giving such evidence in these proceedings since he is over the age of 18 years. However, he was not called to do so, nor did he file any affidavit. In the Court’s view, the failure to call the eldest child leads inescapably to the conclusion that his evidence would not have helped the husband’s case. Yet, if the husband’s assertions were correct, the eldest child’s evidence might well have supported them.
(17)The wife asserts that the husband has continued to act at every available opportunity in a way designed to frustrate her efforts to preserve the property of the parties. She asserts that he has been obstructive to the process of disposal of commercial assets which he wished to retain in specie. He has caused contracts to be exchanged, for example with the Business 2 Trust, which have not proceeded to completion. Perhaps not unsurprisingly, banks have declined to advance the requisite $4,200,000 in finance to the eldest child, a full-time student notwithstanding that it was asserted that the rental payable would service the loan.
(18)The husband called Ms B, an accountant. She produced certain documents, including statements of account of Business 3. Although identifying one of those documents as being the accounts of the company for 2008, in cross-examination, on the voir dire, she said that she had not prepared that document. She also said that she had no capacity to vouch for its accuracy.
(19)Ms B gave evidence that she had been instructed as an accountant for Business 3 since 2009 and that she had also received instructions to act as an accountant for the husband during the same period.
(20)Ms B gave evidence that the family treated the accounts of Business 3 and the Business 2 Trust as being a “family package”. She said that the books of account showed a debit loan account in the name of the eldest child in the sum of “$460 odd thousand” which she thought likely to be deemed to be a dividend. It was said that the income of the company was decreased by allowing rent to be debited and the debit loan account to be credited, and that the husband would receive the rent and then apply it towards the debit loan account. It was clear that these transactions were not formal transactions, but rather journal entries. Ms B described them as being “all lumped together”.
(21)
Ms B said that it was possible for the husband to lodge amended tax returns for the period and that, if he did so, the eldest child might have a tax liability in relation to a deemed dividend and the company then might have to pay higher taxes, not having the benefit of the rental payments as an offsetting expense against income. There has been no evidence from the eldest child as to what he did with the money allegedly loaned to him. Even if these transactions were genuine, there would still have been a balance in the debit loan account which

Ms B said would likely be treated as a deemed dividend to the eldest child.
(22)The Court, unfortunately, did not have the benefit of Ms B’s working papers to shed light on a number of matters despite all of her files having been requested. In her defence, she said that she had not seen any such request and that she had relied upon staff to produce the relevant documents.
(23)Ms B said that she received the instructions for the purposes of undertaking accounting work from Mr J, the manager of the company. He was also, significantly, not called.
(24)Ms B disclaimed any role as a checker of the instructions and simply accepted them as being accurate. She had not seen any document which would have explained the entries in relation to the debit loan account in the name of the eldest child, but she said that she could have had access to those documents if she had asked. No such documents were produced by the husband or the company during the course of the trial.
(25)Ms B was taken through the entries in relation to the loan accounts of the corporate entity and she agreed that approximately $405,000 had been taken out of the corporate entity.
(26)Ms B said that the husband had authorised the lodgement of his tax return showing income he now disclaimed. This contradicts the husband’s evidence that he gave no such instructions. Ms B said that she believed that the transactions had been made and that, if the husband and the company lodged amended tax returns, the husband would not have a tax liability, but the eldest child and the company would have one.
(27)Ms B identified a document prepared in her office as being a statement of position to assist the eldest child or the company in the procurement of finance, showing some profits which the husband’s brother said did not exist. That document was signed by the eldest child who, I repeat, was not called in the proceedings.
(28)Ms B gave evidence that the Business 2 Trust was settled on instructions from Mr J, the manager of the company who again was also not called in the proceedings. She said that it was Mr J who had provided the names of the trustee and the beneficiaries, and that it was the company which had met the costs of the creation of the trust deed and the trustee.

The husband submits that the Court cannot make an order in relation to Business 3 or the Business 2 Trust absent the Court finding that the property of those entities is beneficially that of the husband. The Court takes the view that, in this case, all it must do is make a determination as to whether it is more probable than not that the husband has had and continues to have beneficial interests in those entities. It is not necessary for the Court to determine the full nature, extent and value of those interests.
No order is sought against those entities by the wife. All the Court is asked to do by the wife is to take into account that the husband has unquantified beneficial interests in those entities and that he has failed to disclose those interests.
The lacunas in the husband’s evidence and the failure on his part to adduce evidence which would have been available to him makes the balance of probability tip significantly in favour of a finding in accordance with the findings sought by the wife. Taking into account the whole of the evidence, the Court so finds.

The Relevant Law

The first step that I must undertake is to identify the property of the parties or either of them available for division between them.

The Balance Sheet

During the proceedings, a balance sheet was tendered and marked as exhibit “4”. It was later updated as set out below. From this document, the parties made their submissions. Contained therein are a number of items in dispute as was said by each party to be the result of partial disclosure by the other party.

Assets	Wife’s Value ($)	Husband’s Value ($)
1.	[B Street, Sydney Suburb 1] (w)	4,000,000	4,000,000
2.	[R Street property 1, Sydney Suburb 2] (h)	2,200,000	2,200,000
3.	[S Street, Melbourne Suburb 1] (100%) (w)	750,000	750,000
4.	[H Street, Sydney Suburb 2] ([Business 1])	3,900,000	3,700,000
5.	[R Street property 2, Sydney Suburb 2] ([Business 1])	2,400,000	2,400,000
6.	Toyota […] (w)	12,000
7.	[…] Harley Davidson Motorcycle (h)	20,000	0
8.	[…] Toyota Utility (in the eldest child’s possession) (h)	20,000	20,000
9.	Household Contents of [B Street, Sydney Suburb 1] (w)	Nominal	30,000
10.	St George Account […] (w)	1,617	1,617
11.	St George Account […] (w)	3,286	3,286
12.	CBA Term Deposits (not beneficially held) (w)	Nil	Nil
13.	David Jones Shares (w)	Sold	Nil
14.	IAG Shares (w)	Sold	Nil
15.	CBA Accounts (h)	Not Known
16.	Jewellery (w)	7,500	65,000
17.	Diamond (w)	35,000	35,000
18.	Jewellery (h)	Not Disclosed	Nil
19.	Loan to [Mr P] (h)	55,000	Not Known
20.	Husband’s Beneficial Interests in Shareholding and Equity of [Business 3] (h)	Not Disclosed	Nil
21.	Husband’s Beneficial Interests in Shareholding and Equity of [Business 2 Trust] (h)	Not Disclosed	Nil
22.	Corrective Services NSW Bank Account (h)	Not Known	120
Total	$13,404,403	$13,205,023

Addbacks	Wife’s Value ($)	Husband’s Value ($)
1.	Wife’s Paid Legal Fees (w)	140,869	140,869
2.	Husband’s Paid Legal Fees (h)
2.1	[NSW Government Agency]	60,000	60,000
2.2	Criminal Proceedings	330,000	0
2.3	Family Law Proceedings (including funds in trust)	159,605	159,605
3.	Mercedes (w)	Nil	101,000
4.	Withdrawals (w)	Nil	250,000
Total	$690,474	$711,474

Liabilities	Wife’s Value ($)	Husband’s Value ($)
1.	Two Mortgages to Bank of Queensland over [S Street, Melbourne Suburb 1] (w)	539,145	539,145
2.	St George Bank Bill Facilities ([Business 1])	7,594,000	7,594,000
3.	St George Overdraft […] (limit $350,000.00) ([Business 1])	E350,000	E350,000
6.	Debt to [NSW Government Agency] (including accruing interest at 10% from 15 October 2008) (h & [Business 1])	933,470	933,470
7.	CGT on Sale of [R Street property 1, Sydney Suburb 2] ([Business 1])	Nil	800,000
8.	Personal Debts as per Paragraph 16.3 of the Affidavit of the Wife filed on 14 January 2011 (w)
8.1	Energy Australia	205
8.2	[Security 1]	E1,850
8.3	[Electrical Co 1]	1,364
8.4	Mastercard	4,051
8.5	Coles Myer Credit Card	725
8.6	David Jones American Express	690
8.7	[Mr LL] Gardener	27,000
8.9	Legal Costs Outstanding to BDK (as at 31 January 2011) (w)	35,148
9.	Personal Loan to [Mr S] (w)	34,554
10.	[School 1] (w)	8,044	8,044
11.	Debts owing as at 21 February 2011 ([Business 1])
11.1	Land Tax	112,275
11.2	[Business 4]	3,410
11.3	[Surveyors 1]	4,675
11.4	[Tax Consultants 1]	2,750
11.5	Greg O’Mahoney Barrister	3,344
11.6	[Business 5]	69,650
12.	Loan – Legal Fees (h)	Nil	300,000
13.	[R] – ANZ (h)	Nil	100,000
Total	$9,726,350	$10,624,659

Superannuation	Wife’s Value ($)	Husband’s Value ($)
1.	MLC Super (h)	51,000
2.	MLC Super (w)	40,000
Total	$91,000

If the Court comes to the conclusion that either party has failed to give full and frank disclosure and the evidence points to the holding of undisclosed assets, then the authorities are unequivocal as to its consequent power. Such disclosure must be as to the position of a party in the present and in the foreseeable future. It extends to whole or partial ownership or control of property; contingent interests in property; any income earned by a legal entity which is wholly or partially controlled by a party including that which is paid or assigned; and financial resources. On the authorities, it is equally clear that the Court should not be unduly cautious in making findings against a party who has failed to fulfil their duty of disclosure.
Taking into account the whole of the evidence, the Court finds that the husband has failed to discharge his duty of disclosure.
I will now deal with the issues arising from the balance sheet in turn.

Assets

Item 4: The H Street Property

In relation to the H Street Parade property, the wife asserts a value of $3,900,000 and the husband asserts a value of $3,700,000. The wife says that she has accepted an offer to purchase in the sum of $3,850,000. However, there is no evidence of an exchange of contracts at that price.
The Court intends to make orders for the sale of the H Street property. Accordingly, much of the debate as to whether the offer to purchase could be accepted as evidence of the value of that property is redundant since its value will be determined by its sale. In any event, the Court finds that its value is probably somewhere between that proposed by the wife and that proposed by the husband.

Item 7: The Harley Davidson Motorcycle

The husband asserts the Harley Davidson motorcycle as having a value of $15,000, the price for which it was sold and the proceeds of which were used to defray the husband’s legal costs. The wife, however, asserts a value of $20,000.
No expert evidence as to the value of the motorcycle having been adduced, the Court accepts the husband’s valuation of it and that amount received by him should be added back to the balance sheet to his credit.

Item 8: The Toyota Utility

It was argued by counsel for the husband that there is no evidence that the husband ever owned the Toyota Utility and therefore it should be excluded from the balance sheet. This submission is contrary to the weight of the evidence that the husband sold the motor vehicle post-separation.
In his evidence, it seemed that the husband accepted that he was the owner of the motor vehicle.
The husband was asked, “So, it is the case that you sold the [Toyota Utility] to [Business 3] in 2007?” to which he responded, “Yes”.
He was then asked, “How much did [Business 3] pay you for the [Toyota Utility]?” to which he responded, “18,000.00”.
He was then asked, “And of that 18,000.00 you gave [J] $13,000.00 on a credit card … Is that right?” and “… you paid the rest by way of legal fees?” both questions to which he responded, “Yes”.
The Court will add back the sum of $13,000.00 to the balance sheet to the credit of the husband.

Item 9: The Household Contents of the B Street Property

In cross-examination, the wife was not tested as to either the household contents now located at the B Street property at which she resides or their value. It is noted that, in her Financial Statement, she admitted to ownership of household contents to a value of $15,000. This will be taken as an admission against interest. The submissions prepared on behalf of the husband do not assist the Court otherwise as to the value of the household contents. The Court will note the household contents of the B Street property as having a value of $15,000 in the balance sheet.

Item 16: The Wife’s Jewellery

No formal valuation evidence was adduced by either side in relation to the wife’s jewellery. The wife concedes that she sold certain items of jewellery for the approximate sum of $15,929 and that she has unsold items of jewellery of a value of $7,500 and an unsold 4 carat diamond of a value of $35,000. It was submitted by counsel for the husband that the unsold jewellery should be ascribed a value in the order of $100,000. There is no expert evidence to support such a valuation and, being an admission against interest, the Court accepts the figures provided by the wife as the best indication of the value of her jewellery.

Item 19: The Loan by the Husband to Mr P

In his Financial Statement sworn in 2007, the husband revealed the existence of the loan by him to Mr P.
Counsel for the husband submitted that, during his incarceration over the last four years, the husband has lost track of the debtor. Counsel for the husband said that the husband’s evidence is that he could pursue the matter upon his release and that it is expected that he will be released in November this year. However, it is not certain when he will be released.
Counsel for the husband submitted that the husband should be treated as unlikely to be able to recover the amount and that it should be excluded from the balance sheet. This submission is contrary to the husband’s evidence that he would pursue and would be successful in pursuing the recovery of the amount. The Court will therefore include the amount in the balance sheet as an asset in the hands of the husband.

Add Backs

Item 1: The Wife’s Paid Legal Fees

The Court will not add back the wife’s paid legal fees to the balance sheet; but rather take them into consideration under s 75(2).

Item 2: The Husband’s Paid Legal Fees

It is asserted by the husband that the only asset sold for the purpose of paying his legal costs in these proceedings was the Harley Davidson motorcycle. As set out above, the sum of $15,000, the amount for which it was sold, will be added back to the balance sheet to the credit of the husband.
The husband says that the balance of his legal costs in these proceedings was paid from borrowings which he will be responsible for repaying. Accordingly, the balance of his legal costs will not be added back to the balance sheet.

Item 3: The Proceeds of the Sale of the Mercedes Motor Vehicle

The husband submits that the proceeds of the sale of the Mercedes motor vehicle, $20,000 of which was applied towards his costs in the criminal law proceedings, should be added back to the balance sheet. The Court accepts the wife’s evidence that, after the payment of the sum of $20,000, the proceeds were reasonably applied towards expenses and debts, and that the wife behaved prudently in her dealings with the parties’ assets. The husband’s submissions to the contrary are rejected and therefore the balance will not be added back.

Item 4: The Wife’s Withdrawals

It is noted that the husband does not seek an add back of sums withdrawn by the wife from accumulated funds. In any event, it seems that those sums were necessarily and prudently spent.

Liabilities

Item 6: The Debt to the NSW Government Agency

It was submitted on behalf of the husband that the original debt to the NSW Government Agency should be treated as a liability of the parties. There is no opposition by the wife to this submission.
It is proposed by the wife and opposed by the husband that interest accruing on the original debt should be treated as a liability of the husband alone. The Court will not so find. The wife was a party to the arrangement with the NSW Government Agency and she was bound by its terms. Her consent to the arrangement means that she assumed a liability for the interest as well as the capital. As between the parties, the benefits giving rise to the repayment were within the assets available to them during the marriage and the liability should also be taken into account. The parties have had the benefit of the deferral of the payment of the sum and the cost of that deferral in a real sense is the interest charged. The total amount of the debt will therefore be included in the balance sheet as a liability of the parties.

The Husband’s Taxation Liability

It was submitted on behalf of the husband that a taxation liability, which arose in his name as a result of the lodgement of tax returns claiming rent received by him, should be included in the balance sheet as a liability of the parties.
The fact is that the husband’s evidence, and that of his brother, is that the rent was not paid to him, and that he gave no instructions as to the lodgement of the tax returns as lodged. It was acknowledged by his accountant that he could lodge an amended tax return.
The liability raised on the assessment has not been met. The husband’s evidence is that he will lodge an amended tax return and do so immediately on the basis that he did not receive the sum. The income comes from a company in which the husband has asserted that he has no interest. The effect of the inclusion, on the evidence of the accountant, is that the parties would in those circumstances be shouldering a liability that properly is that of the company.
In the face of the evidence, notwithstanding that the liability arises on assessment, it is not the Court’s intention to include it in the balance sheet as a liability of the parties given the facts referred to above. Alternatively, if it had been so included, a corresponding asset in the nature of a claim for reduction in the same amount would also be included.

Item 7: The Capital Gains Tax Liability of Business 1

There is no precise evidence of an expert nature which casts significant light on this matter. The wife asserts that there were capital losses within Business 1 which could be offset against capital gains, and it was pointed out that there were significant improvements to property which would need to be taken into account. Ultimately, there is no evidence upon which the Court could rely, notwithstanding the provision of some information calculated on information provided by the husband to his accountant and which the Court does not accept as being authoritative.
If there is such capital gains tax, then it will be an expense of Business 1 and it will be paid by it. Equally, there may be some tax payable on the property held by the husband and subject to orders for sale. I will take into account in considering matters under s 75(2) the fact that there is a possibility of an unquantified liability for capital gains tax in the hands of the husband.

Item 8: The Wife’s Personal Liabilities

The husband submits that a debt to the wife’s gardener should not be included in the balance sheet as a liability of the wife since there is no evidence of any demand for its repayment over a period of years. The wife produced documentary evidence of this outstanding debt and the Court accepts her evidence that it is to be repaid on her having the ability to do so which will be on the realisation of assets following the completion of these proceedings.
The husband pointed out that the wife’s debts for legal costs in respect of certain proceedings she had initiated opposing the imposition or assessment of land tax would, if those proceedings were successful, likely be wholly or partly reimbursed from an order for costs made in her favour. The Court will take that possibility into account in considering matters under s 75(2) as a potential financial resource of the wife.
Expenses otherwise claimed by the wife were the subject of some attack. The Court does not find those arguments to be convincing. The wife, whom the husband alleged had no skill in certain matters, properly consulted professional advice in relation to accounting, the sale of property and the like, and nothing authoritative has been put other than the husband’s opinion that the amounts for fees are considered excessive. The Court does not so find.
It was claimed by the husband that a personal loan to the wife from a family member noted as the Mr S personal loan on the balance sheet was one which should not be included therein on the basis that it is unlikely, on the wife’s evidence, that the family member would sue her for it. Likely action in courts is not a test of the existence of the obligation created by a loan, but rather only a means of enforcing the obligation. The Court accepts that the wife has the obligation to repay it and it is properly included in the balance sheet as a liability of the wife. The Court will take into account the likelihood of it not being repaid in its consideration of the matters under s 75(2).
It is noted that the husband concedes that his legal costs should not be a charge on the matrimonial pool as a liability.

Conclusion on the Balance Sheet

Having regard to the above findings, the Court determines the assets and liabilities of the parties to be as follows:

Assets	Value ($)
1.	[B Street, Sydney Suburb 1] (w)	4,000,000
2.	[R Street property 1, Sydney Suburb 2] (h)	2,200,000
3.	[S Street, Melbourne Suburb 1] (100%) (w)	750,000
4.	[H Street, Sydney Suburb 2] ([Business 1])	3,800,000
5.	[R Street property 2, Sydney Suburb 2 ([Business 1])	2,400,000
6.	Toyota […] (w)	12,000
7.	Household Contents of [B Street, Sydney Suburb 1] (w)	15,000
8.	St George Account […] (w)	1,617
9.	St George Account […] (w)	3,286
10.	CBA Term Deposits (not beneficially held) (w)	Nil
11.	David Jones Shares (w)	Sold
12.	IAG Shares (w)	Sold
13.	CBA Accounts (h)	Not Known
14.	Jewellery (w)	7,500
15.	Diamond (w)	35,000
16.	Jewellery (h)	Not disclosed
17.	Loan to [Mr P] (h)	55,000
18.	Husband’s Beneficial Interests in Shareholding and Equity of [Business 3] (h)	Not disclosed
19.	Husband’s Beneficial Interests in Shareholding and Equity of [Business 2 Trust] (h)	Not disclosed
20.	Corrective Services NSW Bank Account (h)	120
Total	$13,279,523

Addbacks	Value ($)
1.	[…] Harley Davidson Motorcycle (h)	15,000
2.	[…] Toyota Utility (h)	13,000
Total	$28,000

Liabilities	Value ($)
1.	Two Mortgages to Bank of Queensland over [S Street, Melbourne Suburb 1] (w)	539,145
2.	St George Bank Bill Facilities ([Business 1])	7,594,000
3.	St George Overdraft […] (limit $350,000.00) ([Business 1])	E350,000
6.	Debt to [NSW Government Agency] (including accruing interest at 10% from 15 October 2008) (h & w)	933,470
8.	Personal Debts as per Paragraph 16.3 of the Affidavit of the Wife filed on 14 January 2011 (w)
8.1	Energy Australia	205
8.2	[Security 1]	E1,850
8.3	[Electrical Co 1]	1,364
8.4	Mastercard	4,051
8.5	Coles Myer Credit Card	725
8.6	David Jones American Express	690
8.7	[Mr LL] Gardener	27,000
9.	Personal Loan to [Mr S] (w)	34,554
10.	[School 1] (w)	8,044
11.	Debts owing as at 21 February 2011 ([Business 1])
11.1	Land Tax	112,275
11.2	[Business 4]	3,410
11.3	[Surveyors 1]	4,675
11.4	[Tax Consultants 1]	2,750
11.5	Greg O’Mahoney Barrister	3,344
11.6	[Business 5]	69,650
12.	Loan – Legal Fees (h)	Nil
13.	[R] – ANZ (h)	Nil
Total	$9,691,202.00

Superannuation	Value ($)
1.	MLC Super (h)	51,000
2.	MLC Super (w)	40,000
Total	$91,000

Consideration of the s 79(4) Contributions

Initial Contributions

The evidence in relation to initial contributions lacks some certainty; but, in any event, it was conceded that, if there was an imbalance in the initial contributions of the parties, that imbalance would only marginally be in favour of the husband. In all the circumstances and having regard to the time at which initial contributions were made, the Court takes the view that any such imbalance as may have existed is not of substantial weight given the contributions since made.
At the date of the commencement of the cohabitation of the parties, the wife contributed the G Street property subject to a mortgage in the sum of $17,500. That property was sold within 12 months of the marriage for the sum of $187,500, of which the wife received net proceeds in the sum of $146,240 on completion of the sale. The wife also had a Honda motor vehicle of an approximate value of $10,000 and savings between $1,500 and $2,500.
At that same date, the husband had a motor vehicle industry business known as

Business 6. The husband also had an interest in the property at T Street, Sydney Suburb 5 subject to a mortgage, and an interest in the property at

L Street, Sydney Suburb 3 subject to a mortgage. The wife asserts that the husband had very little equity in respect of these properties. Counsel for the husband submitted that “notwithstanding the accepted accuracy of the wife’s evidence, the husband was marginally in front in 1989 in relation to his initial contributions”.

Contributions to Date of Separation

It is beyond dispute that there was a significant growth in the parties’ asset pool between the date of marriage and the date of separation, a period of some 18 years. The husband does not claim any special contributions on his part during this period. He concedes that the wife made the greater homemaker and parent contributions.
The husband asserts that, to the date of separation, the contributions should be assessed as being in the order of 55% to the husband and 45% to the wife. It is suggested that this reflects the husband’s alleged marginally greater initial contribution and the weight of his direct contribution to the acquisition, conservation and improvement of the assets.
It is clear that the husband could not have made the contribution that he did make, as he conceded, had the wife not fulfilled her primary role as a homemaker and parent. It is also evident that the wife was utilised in the process of accumulating assets as director of companies and owner of properties.
The Court finds that the contributions of the parties to the date of separation should be regarded as equal and so finds.

Contributions Post-Separation

The separation was a sudden and dramatic event. The wife, who on the husband’s evidence was ignorant of business matters, was cast into the role of management of many of the parties’ assets with not inconsiderable value. She rose to the challenge while fulfilling all the responsibilities she also had as a homemaker and parent. It is true that she consulted experts to assist her. She could not do otherwise having regard to her experience.
The wife’s attempts to limit the damage to the parties’ asset pool were the subject of intervention by the husband. Not all of that intervention was to the detriment of the asset pool, but some of it was.
Certainly, during the period since the separation, the wife’s contributions have exceeded those of the husband by a substantial margin. She has been the subject of financial pressures from the debt due to the NSW Government Agency and the high level of bank debt. She has conducted a programme of realisation and repayment which has been all that has been reasonably available to her. The husband has protested that refinancing could have taken place and the assets kept, but even his own experience and that of his eldest son indicate that such a process is problematic.
It seems to the Court that, given those weightier contributions of the wife during the period post separation and to trial, the contributions of the parties should be reassessed and the recognition of the wife’s contribution increased from 50% to 60%.

Conclusion on the s 79(4) Contributions

All in all, I assess the contributions of the parties to the marriage, to the date of the hearing, to the acquisition, conservation and improvement of the property of them or either of them, including that which is no longer the property of them or either of them, to be 60% to the wife and 40% to the husband.

Consideration of the s 75(2) Matters

It has been asserted by counsel for the husband that the wife’s contribution during the period of cohabitation was minimal other than her contribution as a homemaker and parent which the husband was prepared to fully acknowledge. The husband has scorned the wife’s financial and business acumen. He has denigrated her efforts in the management and preservation of the parties’ assets. He has asserted that his capacity to succeed is far greater than hers. He says that it is his efforts which have directly procured the pool of wealth now available to the parties.
The wife has asserted that the parties’ affairs were in financial disarray at the time of the husband’s incarceration and that she was obliged to bring order to a measure of chaos. The husband puts those assertions in issue and says that, in any event, the wife only made such contributions for 4 years out of a total of 22 years.
The husband had an admitted drug use habit and some of the parties’ assets were used to fund that habit. He had taken a mistress and some of his funds were used to the benefit of that affair. He also engaged in criminal conduct which caused his incarceration. The Court accepts that, pursuant to s 75(2)(o) and in keeping with the authorities, it can take into account that the contribution of the wife has more value than that of the husband since it was made in a situation of difficulty created by him. The husband says, and it may well be true, that the amount spent by him on these pursuits was small compared to the overall value of the asset pool. However, the impact of them on the value of the wife’s contribution in the circumstances is of greater weight.
The wife, it is said by the husband, is a qualified clerk. She, however, has not worked outside the family structure for more than 20 years. She has, it is said by the husband, the experience with the management of the parties’ assets following his incarceration, albeit, he says, that it was not particularly well undertaken.
The wife has undertaken some TAFE clerical courses and she is seeking employment; however, her evidence is that she has undertaken between thirty and forty interviews without procuring employment. Given her age, limited experience and qualifications, it is said, that the wife’s further employment is likely to be modestly remunerated.
The wife is now aged 48 years and her evidence is that she is in fair health. She describes a number of complaints, including difficulty sleeping, migraines and headaches, and neck and back pain. She has also said that she is depressed and scared for her future.
The husband is now also aged 48 years. There is no evidence that he is not in good health. The husband has extensive experience in the conduct of business. His evidence is that he is assured of employment on his release from gaol. His past experience involves maintaining a business. The extended family of the husband is a clear resource. His income earning capacity is assessed by the Court as being significantly greater than that of the wife. He informed the Court of his intention to purchase one of the properties for a sum in excess of $3,700,000.
It appears that the youngest child will be in the care of the wife until he is

self–supporting. It is asserted that the husband will be in gaol for at least a further five months. The parties to the marriage have the responsibility of supporting themselves and their children.
On the realisation of the parties’ assets and the wife rehousing herself, it appears that she may be entitled to an income tested pension from the Commonwealth Government. It is noted that she currently receives family tax Part A and B benefits which are said to amount to $160 per fortnight.
During cohabitation, the parties enjoyed a high standard of living which has significantly reduced since the separation. It is difficult to see how the wife, even with her available assets from a settlement, will be able to restore her standard of living to that level, although the same prospect does not attend the husband.
It is the wife’s contention that she will be primarily responsible for the financial costs of the youngest child’s upbringing. That contention is, however, contrary to the husband’s evidence that he will share the costs of the youngest child’s upbringing.
The wife contends and the Court accepts that the husband has failed to make a full and frank disclosure of his financial affairs and that such disclosure as he has made has been riddled with negligent and deliberate inaccuracy.
It is asserted that the husband’s arrest and incarceration, in the community in which she lives (the … community), has caused the wife embarrassment, pain, distress, depression, social isolation and public humiliation. She says that this impact of his conduct will continue to the detriment of feelings of confidence on her part for some time.
The wife has a liability to a family member. The wife’s evidence in relation to that liability is set out above. While it will continue to be included in the balance sheet, I take into account, in my considerations under this section, that there is a possibility of it not being repaid.
The Court has considered the fact that there is a possibility of an unquantified liability for capital gains tax; and the possibility that the wife’s debts in costs in respect of certain proceedings she had initiated opposing the imposition or assessment of land tax, if those proceedings were successful, will likely be wholly or partly reimbursed from an order for costs made in her favour. The Court has also considered the wife’s payment of legal fees.

Conclusion on the s 75(2) Matters

For all the reasons referred to above and in the circumstances where the wife is clearly going to be at a financial disadvantage in income earning capacity and wealth development compared to the husband, it is appropriate that a further allowance be made to the wife. The Court proposes that that allowance be a sum of 10% of the net assets found above.

The Overall Division of the Assets

The above determination will see the wife receive 70% of the parties’ assets and the husband receive 30% of those assets.

The Just and Equitable Requirement

The overall division of the parties’ assets would see the wife receive the majority of the parties’ known assets net of their known liabilities, having regard to the matters referred to above and, in particular, the husband’s failure to give full and frank disclosure.
In the circumstances of this case, I determine that result to be just and equitable. Accordingly, the division of those assets not required to be sold will produce the result set out above.

The Orders to be Made

It is proposed that R Street property 1, the H Street property, the R Street property 2 and the B Street property be sold. Orders will be made that the proceeds of the sale of the R Street properties and the H Street property be applied firstly towards the costs associated with their sale and then towards the discharge of the St George Bank mortgages, the debt to the New South Wales Government Agency and the debts of Business 1. Orders will also be made that the proceeds of the sale of the B Street property be applied firstly towards the costs associated with its sale and then towards the payment of any sum remaining necessary to discharge the St George Bank mortgages, the debt to the New South Wales Government Agency, the debts of Business 1 and any taxation obligations owing as a consequence of the sale of the H Street property and R Street property 2.
It is then proposed that any remaining proceeds of the sale of the R Street properties and the H Street property be paid to Business 1, and that any remaining proceeds of the sale of the B Street property be divided between the parties, 70% in favour of the wife and 30% in favour of the husband.
It is further proposed that the wife retain the Toyota motor vehicle in her possession, the household contents of the B Street property, the jewellery in her possession, the monies standing to her credit in St George Account … and St George Account …, and the superannuation standing in her name; and that the husband retain the Harley Davidson motorcycle, the Toyota utility, any furniture, furnishing or personal items in his possession or control, any bank accounts standing to his credit, the superannuation standing in his name and the debt owing to him by Mr P.
It is noted that the wife has sought orders, to which the husband has agreed, that she transfer to the husband all of her right, title and interest in and to the S Street property. Orders will be made to that effect and, in addition, that the husband indemnify and keep indemnified the wife in respect of the Bank of Queensland debts and any legal costs arising as a consequence of the proceedings commenced by the Bank of Queensland against the wife in relation to the S Street.
In order to effect a division of the whole of the property of the parties which is 70% in favour of the wife, it is proposed that the husband pay to the wife the sum of $207,161.60.

I certify that the preceding one-hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on 29 June 2011.

Associate:

Date: 29 June 2011

[2011] FamCA 510

29 June 2011

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Property Law

Legal Concepts

Remedies

Costs

Injunction

Charge

Fiduciary Duty