Gough and Pilkington

[2017] FCCA 859

FEDERAL CIRCUIT COURT OF AUSTRALIA

GOUGH & PILKINGTON [2017] FCCA 859

Catchwords:
FAMILY LAW – Property – whether one party is in possession or control of gold – extent of parties’ respective contributions – extent of future needs.

Legislation:

Family Law Act 1975 (Cth), ss.75, 79

Cases cited:

Stanford & Stanford (2012) 247 CLR 108

Weir & Weir (1993) FLC 92-338

Applicant: MS GOUGH

Respondent: MR PILKINGTON

File Number: MLC 4793 of 2015

Judgment of: Judge Baker

Hearing dates: 29 and 30 March 2017

Date of Last Submission: 30 March 2017

Delivered at: Hobart

Delivered on: 5 May 2017

REPRESENTATION

Counsel for the Applicant: Mr Kanavev

Solicitors for the Applicant: Mohan Yildiz & Associates

Counsel for the Respondent: Mr Altintop

Solicitors for the Respondent: Spectre Law Group Pty Ltd

ORDERS

1. The husband do all such 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 A, Victoria and being the whole of the land more particularly described in Certificate of Title Volume (omitted) Folio (omitted) (“the real property”).

2. Contemporaneously with the transfer, the wife refinance the mortgage registered No. (omitted) to the (omitted) Bank (“the mortgage”) and indemnify the husband against all apportionable rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind.

3. Contemporaneously with the transfer in paragraph 1, the wife pay to the husband the sum of $7,878.

4. In the event that the wife is unable to refinance the mortgage within 60 days of the date of these orders, then the real property be forthwith sold (“the sale”) and the proceeds of the sale be applied:

   (a)Firstly to pay all costs, commissions and expenses of the said trust transfer and the sale;

   (b)Secondly to discharge the mortgage and any other encumbrance affecting the real property; and

   (c)Thirdly the balance to be divided so to ensure that wife receives a sum equal to the value of 70 per cent of the net property and the husband receives a sum equal to  30 per cent of the net property.

5. Pending the transfer of the real property or completion of the sale, if the wife is unable to discharge the mortgage;

   (a)The wife have the sole right to occupy the real property and that during such right of occupation the wife pay all instalments pursuant to the mortgage and all rates and taxes and the like apportionable outgoings of the real property as they fall due;

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

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

6. The wife be liable for and indemnify the husband against all payments in respect to the loans and/or credit card debts that are under her name.

7. The husband retain the parties’ gold.

8. The wife retain the Toyota (omitted) motor vehicle, registration number (omitted).

9. The husband retain the Toyota (omitted) motor vehicle, registration number (omitted).

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

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

    (b)Each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other; 

    (c)Insurance policies remain the sole property of the beneficiary named therein;

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

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

11. In the event that the husband refuses or neglects to execute a deed and/or instruments in compliance with the provisions of paragraphs 1 and 2 of this order, the Registrar or Deputy Registrar of the Federal Circuit Court of Australia is hereby appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute all deeds and/or instruments in the name of the husband and do all acts and things to give validity and operation to the deeds and/or instruments.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 4793 of 2015

MS GOUGH

Applicant

And

MR PILKINGTON

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application by the wife for property adjustment orders.

2. The parties were born in (country omitted). The wife moved to Australia in 1990 with her family. The husband moved to Australia in 2007. The parties married in (country omitted) on (omitted) 2007 and separated in late 2012.

3. There are two children of the marriage, X born (omitted) 2008 (“X”) and Y born (omitted) 2012. The child X has special needs. He suffers from Attention Deficit Disorder and Global Developmental Delay. He is currently attending specialist medical practitioners about his challenging behaviour. The children live with the wife and the husband spends time during the day with them.

4. In (country omitted), the husband was a qualified (occupation omitted). When he came to Australia, he worked as a (occupation omitted) until he obtained the necessary licences to run a business called (business omitted). He gave evidence that he currently does part-time (employment omitted) only, as he has not maintained his licences since 2015.

5. The wife is a (occupation omitted) and works on a part-time basis. Her goal is to run her own business from the garage at the home, when her parenting responsibilities allow her to do so.

Evidence

1. The wife relied on her affidavits filed 7 December 2016 and 24 February 2017; her financial statement filed 28 May 2015; the affidavit of Mr Z filed 28 February 2017; the affidavit of Ms H filed 28 February 2017; and the affidavit of Mr M filed 27 February 2017.

2. The husband relied on his affidavit filed 4 August 2016 and his financial statement filed 4 August 2016.

Proposals

1. Each party based their property percentage division proposal on different pools, due to differing values of assets and liabilities. Both parties asserted the other has the possession of disputed gold jewellery.

2. The wife proposed that the net property on the basis of her asserted pool be divided 64.39/35.61 per cent in her favour.

3. The husband proposed that the net property on the basis of his asserted pool be divided 65.33/34.67 per cent in favour of the wife.

Issues in Dispute

1. The main dispute is whether the gold jewellery (“the gold”), gifted to the parties on their marriage, is in the possession of the wife or the husband.

Relevant Law

1. Section 79 of the Family Law Act 1975 (Cth) (“the Act”) provides that the Court may make orders in property settlement proceedings to alter the interests of the parties to the marriage in the property.

2. Section 79(2) of the Act requires that any such order must be “just and equitable”. Section 79(4) provides the matters which are to be taken into account when considering what order should be made. This sub-section provides as follows:

   (4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:

   (a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

   (b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

   (c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and

   (d) the effect of any proposed order upon the earning capacity of either party to the marriage; and

   (e) the matters referred to in subsection 75(2) so far as they are relevant; and

   (f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and

   (g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

3. The Court must satisfy the requirement of s.79(2) before it examines what order should be made pursuant to s.79(4).[1]

   [1]Stanford & Stanford (2012) 247 CLR 108.

4. Consequently, in order to determine whether it is just and equitable to make an order, the existing legal and equitable interests of the parties in the property must be identified. Having determined that it is just and equitable to make an order, a consideration will then be made about what order should be made assessing the factors in s.79(4).

Credit of the Parties

1. Whilst the wife became frustrated during cross-examination, she was a credible witness, who made concessions willingly. As examples, she conceded that the husband was a good father during the marriage and she admitted her anger towards the husband when she discovered the gold was missing.

2. I found the husband’s evidence lacked credibility. He was an unimpressive witness. He changed his evidence. His oral evidence was different from his affidavit evidence and his answers during cross-examination were self-serving. He was evasive at times. For example, he was asked about his wife wanting to use some of the gold to reduce the mortgage on the home. He answered that she wanted to buy a car or go on holiday. When he was pressed to answer the question about the wife wanting to reduce the mortgage, he answered “she had an idea like that.”

3. The unsatisfactory nature of his evidence was demonstrated when he was cross-examined about sending the gold to (country omitted) and the delivery of the gold to the wife’s sister. I discuss this below.

4. Another example of his unsatisfactory evidence was in respect of several of his bank deposits. Exhibit W3 indicates that the husband had deposited $3,000 into his (omitted) Bank (“(omitted)”) account on 12 August 2015. He said that this was an amount he received for criminal injuries compensation in respect of an incident with the wife’s brother, Mr E (“Mr E”). He was asked about the sum of $5,500 deposited into his (omitted) account on 2 July 2015. He then said that this sum was the criminal injuries compensation and the $3,000 had been given to him by a friend. He was reluctant to provide his name. He then disclosed his friend’s first name and what he believed was his surname. He believed that he borrowed the money to travel to (country omitted). There was no evidence of any repayments to his friend. He said he was repaying him $100-$150 now and then. He is not paying him any interest and he has not repaid him in full.

5. I was not satisfied that the husband presented his true financial position. In his financial statement filed 4 August 2016, he did not disclose any bank accounts in his name. He did not disclose that he had an (omitted) Bank (“(omitted)”) bank account, which was opened in 2011. When asked about this account, he said that he thought it was closed, as he does not use it. In respect of his (omitted) accounts, there was evidence of several bank statements only; his business transaction account from 21 February 2016 – 8 May 2016, and 21 May 2014 – 5 August 2014; and one statement in respect of his smart access account from 1 November 2014 – 5 January 2015 (two pages of five).

6. I  refer to what the Full Court said in Weir & Weir:[2]

   This Court has pointed out in a line of cases leading up to the recent decision of the Full Court in Black and Kellner (1992) FLC  92-287 , that it is the duty of a party involved in property proceedings in this jurisdiction to make a full disclosure of their financial affairs.  See also Giunti and Giunti (1986) FLC  91-759 , and Mezzacappa and Mezzacappa (1987) 11 Fam LR 957; (1987) FLC  91-853 .  It is clear enough from his Honour's findings in the present case that the husband had not done so and had in fact pocketed the proceeds of a substantial number of cash sales.  It is obvious that in most cases of this nature it is difficult enough for the other party to establish that fact let alone establish the quantum of what has been taken. 

   It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party.  To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.[3]

   [2] (1993) FLC 92-338.

   [3] Ibid 79 593.

7. I consider that the wife’s evidence should be preferred to that of the husband where it conflicts, unless I otherwise indicate.

Evidence about the Gold

1. The wife gave evidence that during the parties’ wedding celebration, they were given the following gold:

   ·70 quarter gold coins (sovereign 1.75 grams, 22 carats);

   ·25 gold bracelets (25 grams, plain gold, 22 carats);

   ·three gold badge bracelets between 15 to 20 grams each; and

   ·a heavy gold jewellery set that included necklaces and earrings valued around $15,000. This was not valued by the valuer.

2. In addition to this, gold was given to the parties at X’s circumcision ceremony in (country omitted) in 2008, as follows:

   ·about 20 quarter gold coins (sovereign 1.75 grams, 22 carats); and

   ·three gold badge bracelets (children’s size) each about four or five grams.

3. The parties took the wedding gold to (country omitted) in 2008, so that the wife could wear it and show it to family and friends. The wife said that all the gold, including the gold given to them at the circumcision ceremony, was brought back to Australia. The parties did not convert any of it to spend. The wife had wanted to use the gold in Australia to pay for a holiday for the children or to do renovations. The husband refused to spend it. He wanted to keep it to invest in (country omitted).

4. I do not accept the husband’s evidence that in 2008, the parties sold most of the gold sovereigns and some small pieces of jewellery to pay for the circumcision ceremony and for a car for the husband’s father. His evidence during cross-examination was that the circumcision ceremony cost $5,000- $7,000, as there were 350 guests and musicians. He had not given evidence in his affidavit about the cost of the circumcision ceremony or that any of the gold had been sold. He disputed the value attributed to it by the wife. He asserted that his sister-in-law, Mr Z (“Mr Z”) obtained the entire gold gifts, which were delivered to her by his brother in May 2013.

5. The wife gave evidence that the parties did not sell any gold to pay expenses or to pay for the car. The car was purchased with savings and all the gold was brought home.

6. In or about November 2012, the wife found that the gold was missing when she was cleaning the home after the husband left the home on separation. She then discovered that the gold was taken to (country omitted) by a friend of the husband and given to the husband’s brother. The wife has repeatedly asked the husband to return the gold, but he has not done so.

7. The husband gave evidence in his affidavit that he and the wife:

   made a mutual decision in 2013 for a mutual friend to take the gold (the joint matrimonial gold), the Applicant wife was fully aware of our decision as we had made this decision together. The reason for taking the gold to (country omitted) was due to the Applicant wife in any event not wearing the gold as jewellery and us not having a safe storage facility to keep the gold in Australia that we had made this mutual decision to have it taken to (country omitted), in (country omitted) this gold was stored for safe keeping with my brother Mr H in a safe and we were going to decide in the future about perhaps making an investment in (country omitted) with this gold.

8. During cross-examination, the husband’s evidence was, contrary to his affidavit evidence, that in about May 2012, the gold was taken to (country omitted) by a person, whom he and the wife both knew. The husband refused to disclose his name, as he said it will cause problems for him and he “cannot endanger his life.” He was asked when he told the wife that the gold had been taken to (country omitted). His answer was that she was going through depression and there was not much time to talk about the gold.

9. He was asked that, if the wife agreed for the gold to be sent to (country omitted), why a disclosure about the name of the person who took the gold to (country omitted) would endanger that person’s life. He answered that because the wife’s brother had caused trouble, he was worried that “they would pick on him.” The husband’s position is that the mother now has the gold. It is nonsensical, therefore, to say that the person who took the gold would be in danger.

10. The husband gave evidence that he was threatened by his former brother-in-law, Mr E, to have his brother in (country omitted) return the gold to Mr Z.

11. In 2013, Mr E was convicted and imprisoned as result of this incident. In the proceedings against Mr E in the Melbourne Magistrates Court, the husband gave evidence that he sent the gold jewellery to his brother in (country omitted), approximately one year prior to the parties’ separation, because he and the wife had planned to invest the gold in (country omitted). He did agree that after separation, she asked for the jewellery back.

12. During the incident with Mr E, the husband said that he spoke to his brother in (country omitted) on the telephone to ask him to take the gold to Mr Z. Mr E pointed a gun at his head and told the father’s brother over the telephone that he would kill the father if he did not deliver the gold. He believed that his brother drove to Mr Z’s house, about 45 minutes away, and delivered the gold to her.

13. During cross examination, the husband said that he was restrained by the wife’s brother for “maybe one half hours, I can’t really remember.” He said he got away when he grabbed the gun and took it to the police station. He telephoned his brother in (country omitted) after he had been to the police station. His brother told him that he had taken the gold to Mr Z.

14. Mr Z gave evidence and denied that the gold was delivered to her in (country omitted). Her evidence was that she was in hospital at the time.

Evidence of Mr Z

1. Mr Z married her husband in (country omitted) in 2002 and stayed there until (omitted) 2016. She was present at the parties’ wedding ceremony in (country omitted). She personally collected the gold, gifted by the guests to the parties, and handed it to them at the end of the wedding. To the best of her recollection, the gifts at the wedding were:

   ·    25 gold bracelets;

   ·    70 quarter gold coins (sovereigns);

   ·    three gold badge bracelets, of about 15 to 20 grams each; and

   ·    gold jewellery, including a heavy set of necklaces and earrings.

1. She gave her sister a 25 gram, 22 carat gold bracelet. Her mother gave her six gold bracelets. Her uncle gave her one gold bracelet. Her brother gave her another gold bracelet. The father’s parents gave the parties six bracelets and the rest were given to them by other guests.

2. Mr Z gave evidence that she has not received any gold, gifted to the parties at their wedding ceremony and at X’s circumcision ceremony, from the husband’s brother or anyone else.

3. During cross examination, Mr Z said that she knew that the gold had been delivered to (country omitted) after the parties’ separation. She said that Mr E told her that the gold was being delivered to her. She was pregnant and at a hospital when he telephoned her. She denied that the husband’s brother delivered the gold to her. She has seen his brother only once, at the parties’ wedding ceremony.

4. Mr Z was a credible witness and she did not waiver during cross examination. I accept her evidence.

Evidence of Ms H

1. Ms H is the maternal grandmother. She was born in (country omitted) and has been living in Australia since 1990.

2. Ms H said that, on (omitted) 2007, the parties married in Australia and then had a wedding celebration in (country omitted). About 300 people attended the wedding celebration. The parties received the following gifts:

   ·    70 quarter gold coins;

   ·    25 gold bracelets;

   ·    three gold badge bracelets of about 15 to 20 grams each; and

   ·    gold jewellery including a heavy jewellery set of necklaces and earrings that would cost about $15,000 to purchase.

3. She gave the mother six gold bracelets weighing 25 grams, 22 carats each. Nine other gold bracelets were given to the parties and the rest were given by other guests.

4. Further gold was given to the parties at X’s circumcision ceremony in (country omitted). Her daughter showed her about 20 quarter gold coins and three gold badge bracelets.

5. She said that upon the husband’s arrival in Australia in (omitted) 2007, the parties lived in her house for about 20 months. They did not pay any rent, council rates or utility bills. They paid for their own grocery shopping and other living expenses.

6. During cross-examination, she was asked about whether her daughter spoke to her about the gold. She answered “of course”. Her daughter told her that the husband had taken the gold.

7. Ms H was a credible witness. I accept her evidence.

Conclusion about the Possession of the Gold

1. I do not accept the husband’s evidence about the delivery of the gold to Mr Z. I am of the view that the husband’s brother retained the gold on his behalf. I am of the view that the husband has the gold in his possession or control. I am of the view that the text message exchange between the parties on 26 August 2015 confirms that the husband has the gold.[4] I interpret the exchange to indicate that the husband was informing the wife to tell her lawyer that she had the gold, to achieve a settlement.

   [4] Exhibit W1.

Evidence of Mr M

1. Mr M is a certified practising jewellery valuer. He prepared a report for the wife in respect of the value of the jewellery. The valuation was provided from the wife’s description of the jewellery in her affidavit. Mr M made it clear that the valuation was prepared on that basis, as he had not viewed the jewellery. He valued the jewellery in total at $38,210.

2. During cross examination, Mr M agreed that his valuation was an approximate valuation, as the client had given him only the approximate weight of the jewellery.

3. The husband did not obtain his own valuation. He did not make the gold available to enable it to be valued.

4. I accept Mr M’s evidence about his estimate of the value of the jewellery.

The Parties’ Interests in Property

Agreed Property

The matrimonial home at Property A       $300,000 (H&W)

Toyota (omitted) motor vehicle              $7,750(W)

Toyota (omitted) motor vehicle           $7,000 (H)

Furniture      $5,000 (W)

Total   $319,750

Agreed Liabilities

Mortgage secured on home              $169,000(H&W)

Personal loan   $12,000 (W)

Total   $181,000

Net Property  $138,750

Superannuation    nil

1. The gold has a value of $38,210. I find that the parties have property and liabilities worth $176,960.

2. I consider that having regard to the property of the parties, it is just and equitable to order a property adjustment. The home and the mortgage secured over the home are in the parties’ joint names. The wife is seeking a transfer of the property into her sole name.

Contributions

1. The wife worked in (occupation omitted) at (employer omitted), where she remained for about two and a half years after the parties’ engagement. She went to (country omitted) for six weeks to marry the husband. After the wedding she returned to Australia and helped him obtain a visa so that he could follow her approximately one week later. She immediately recommenced her job at (employer omitted). She continued to work full-time during the marriage until the birth of X.

2. The husband asserted that, at the commencement of cohabitation, he brought $20,000 cash from (country omitted). He said that he had converted the cash from (country omitted) currency to Australian currency whilst in (country omitted).

3. The husband asserted that he used the cash towards a deposit for the purchase of the matrimonial home. There was no evidence of this contribution or of the details of the purchase price of the home or the amount of the mortgage.

4. The wife denied that the husband contributed this sum. The wife gave evidence that the parties purchased the home in 2008. They both contributed to the deposit on the purchase. They received a first home buyer’s grant of $15,000.  During cross-examination of the husband, he conceded that the parties obtained around $10,000 – $15,000 for a first home buyer’s grant.

5. Nevertheless, there was no evidence, apart from his assertion, to persuade me that the husband contributed cash of $20,000 at the commencement of the relationship.

6. Approximately four weeks after arriving in Australia, the husband became ill and required an appendix operation. The wife said that he had various complications and required further operations. I accept the wife’s evidence that he was unable to work for around seven months, during which time, she was the sole contributor for the support of the family. After a seven-month period, the wife said he started working three days per week as a (occupation omitted) on a low income.

7. After the husband obtained his licences, he commenced his own business. The husband said that he worked hard in the business to provide for the family. The husband contributed income by working during the marriage. The wife confirmed he was totally focused on the business.

8. The wife made financial contributions by working part-time during the marriage after the birth of the children, when she could.

9. The wife’s mother provided the parties with rent free accommodation for around 20 months after the parties married. This enabled them to save funds to enable them to purchase a home in 2008. They rented the property for around one year before they moved into it.

10. The wife reduced her working hours upon becoming pregnant with the parties’ first child. She ceased working when she was six months pregnant. X was premature and was required to stay in hospital for approximately eight weeks. There were ongoing complications and she could not return to work until he was approximately one and a half years old. She found a flexible casual position as a (occupation omitted) three days per week.

11. During the marriage, the wife was the primary care-giver to the children. She was the home maker and undertook all domestic duties. The husband assisted with their care.

12. The husband contributed by renovating a garage at the home, so that the wife could use it as a (business omitted). He did the tiling and arranged the water and electric connections to the garage.

13. After separation, the husband did not contribute to the mortgage payments. The wife rented the property from late 2013 until March 2016. The rental income covered the mortgage and agent’s fees, but not the rates.

14. The wife has had the benefit of living in the home with the children since March 2016.

15. After separation, the wife has continued to be primarily responsible for the children, with little practical or financial assistance from the husband. He did not spend time with them for periods, including the times he was in (country omitted). Over the last two years, he has travelled to (country omitted) twice for extended periods.

16. Final parenting orders were made in December 2016, which provided for the children to spend alternate weekends and half the school holidays with the husband. He has not spent time with them in accordance with the orders. He currently spends day time with them at weekends when the wife is working. He spends time with them from around 2:00 p.m. until around 6:00 p.m. - 8:00 p.m.

17. The report dated 1 March 2016 from Dr L, a consultant community paediatrician, indicates the challenging behaviours of X that the mother has had to cope with, with little support from the husband. Under the heading “Conclusion”, the report reads:

    As of 23 August 2013, X has SEVERE BEHAVIOURS. He is currently undergoing assessment at the (omitted) Hospital, Child and Mental Health Service and have been deemed eligible as having behaviours severe enough to warrant tertiary support. It is likely in my opinion that he will fulfil criteria for ADHD and oppositional defiant disorder. X’s behaviour due to poor impulse control and throwing often large objects, his inability to share, desire to abscond, puts himself, his carers and peers at DAILY RISK…

18. Under the heading “Mental Health”, the report reads:

    X’s extreme and challenging behaviours are seen as developing in the the context of early childhood attachment disruption and trauma. X’s behaviours occur in all settings. He frequently displays unpredictable reactions to relatively minor stressors, for example, being given an instruction, being denied a request or losing a game. His reactions are deemed inappropriate for his age and involve screaming and crying, destroying property and physically attacking others. He displays inappropriate and over-familiar behaviour towards other adults and a lack of awareness of physical boundaries. A speech assessment is pending to look at the contribution of receptive language concerns to his behaviours. The conclusion is the recommendation for added support at school as X’s behaviours are extreme and place him, other children and staff at risk of harm unless he is given significant, on and off adult support and supervision… Other recommendations An up-to-date speech and language assessment and help from a speech therapist.

19. I am of the view that the contributions of the parties favour the wife to an extent of 60 per cent.

20. This will result in the wife receiving property to the value of $106,176     and the husband to the value of $70,784.

21. I turn to discuss s.79(4)(e) and the matters referred to in s.75(2) so far as they are relevant.

Relevant s.75(2) Matters

1. The wife earns an income as a (occupation omitted) on a part-time basis. She works on Saturdays and Sundays. She receives around $200 per week after tax. She also receives a parenting payment of around $600 per week.

2. She has the care and control of two young children, one of whom has special needs. She has a capacity to increase her income when the children are at full-time school. She intends to work from home.

3. The wife has weekly mortgage and personal loan expenses to the (omitted) Bank of $400.

4. The husband pays child support of $14.99 per week to the wife. The wife has the main financial burden of maintaining the children.

5. Neither party has superannuation entitlements.

6. The husband has not maintained his trade licences since September 2015. He said that he works part-time as a (occupation omitted). He said that he earns an income of between $265 and $320 per week from his business (omitted). He also receives a New Start Allowance of around $120 per week. He could not explain satisfactorily why in 2015, his business was advertised on the internet, when he could no longer undertake such work without licences. His turnover for a three month period from 21 May until 5 August 2014 was around $12,000 and between 21 February and 8 May 2016 he received payments amounting to $2,830.[5]

   [5] Exhibit W3.

7. The husband was diagnosed, by a psychologist in 2014, with major depressive disorder, generalised anxiety disorder and chronic post-traumatic stress disorder. He asserted that his capacity to earn an income has been affected by his psychological state, which he attributed to the assault by Mr E. He annexed to his affidavit a report from his psychologist dated 20 February 2015. His psychologist did not give evidence. He is not currently attending counselling, as he said he was tired of it. I am not persuaded that he cannot currently work on a regular basis as a result of his psychological health.

8. I am of the view that it is likely that the husband has the capacity to earn an income greater than he indicated. He has been able to afford to travel to (country omitted) for several months on each occasion over the past few years.

9. As a result of my findings as to contributions, the wife will receive property to a value of $106,176 and the husband will receive property to a value of $70,784. The wife should be able to retain the home for the children to live in.

10. I consider that there should be an adjustment of 10 per cent in favour of the wife for the s.75(2) factors.

11. The effect of the order I intend to make is that the wife will receive the following:

    The matrimonial home    $300,000

    Toyota (omitted) motor vehicle     $7,750

    Furniture   $5,000

    Total   $312,750

    Less mortgage secured on home $169,000

    Personal loan (omitted) Bank   $12,000

    Cash payment to husband    $7,878

    Total   $188,878

    Total received by the wife    :                                        $123,872       

12. The husband will receive the following:

    Gold    $38,210

    Toyota (omitted) motor vehicle    $7,000

    Cash from wife  $7,878

    Total received by the husband    $53,088

13. The wife should be able to retain the matrimonial home for the children to live in with her. I shall give her 60 days to refinance the mortgage. If she is unable to refinance, the home will be sold.

14. The husband will have cash and gold to invest. Each party will have a motor vehicle.

15. I consider that this is a just and equitable settlement.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Baker

Date:  5 May 2017