Lynton and Lynton - [2010] FamCA 690

FAMILY COURT OF AUSTRALIA

LYNTON & LYNTON

[2010] FamCA 690

FAMILY LAW – PROPERTY SETTLEMENT – adjustment of property interests – where the husband alleges that he owed significant sums of money to various parties – where the wife alleges that the husband has significant sums of money due to him – where the husband has failed to make full and frank disclosure with regards to his financial circumstances – where the wife has significant health issues – adjustment of 5% in favour of the wife upon consideration of s 75(2) factors – asset pool divided 65:35 in favour of the wife

Family Law Act 1975 (Cth) ss 75(2) & 79
Family Law Rules 2004 r 13.01, 13.04 &13.07

Chang & Su (2002) FLC 93-117
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143
Kannis and Kannis [2002] FamCA 1150
Kennon & Kennon (1997) FLC 92-757
Reichstein & Reichstein [2006] FamCA 1422

APPLICANT:

Ms Lynton

RESPONDENT:

Mr Lynton

FILE NUMBER:

ADC

206

2008

DATE DELIVERED:

9 August 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

7-9 April 2010; 19-22 April 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Scragg

SOLICITOR FOR THE APPLICANT:

Peter Scragg & Associates

COUNSEL FOR THE RESPONDENT:

Mr Heinrich (7-9 April 2010); Mr Jordan (19-23 April 2010)

SOLICITOR FOR THE RESPONDENT:

City East Legal

Orders

In full and final property settlement it is ordered that:

The wife do retain for her sole use and benefit absolutely all her interest in the property at N in the State of South Australia being the whole of the land described in Certificate of Title Registrable Book Volume … Folio … (“the N property”) SAVE AND EXCEPT that if the husband complies with paragraphs 2 and 3 of this order the wife shall thereafter pay all monies due and payable in relation to the Westpac mortgage secured over the N property and indemnify the husband in relation to the same.
On or before 6 September 2010 the husband shall transfer to the wife all his estate and interest in the property situated at and known as P property, described as Crown Lease Volume … Folio … in Deposited Plan … (on which a dugout residence has been constructed) and all associated rights and entitlements thereto free and unencumbered with vacant possession together with all fixtures and fittings.
On or before 6 September 2010 the husband shall at his cost deliver to the wife at her solicitor’s address Peter Scragg & Associates, the six [6] large framed gemstone pictures, and the gemstone pendant/brooch.
The wife shall retain for her sole use and benefit absolutely the Rolex watch in her possession free from any claim by the husband.
Upon compliance by the husband with paragraphs 2 and 3 hereof the wife do transfer to the husband all her estate and interest in the following properties:
(a)the house property situated at Lot P2, being the land comprised in Certificate of Title Volume … Folio …;
(b)the house property situated at P3, being the land comprised in Certificate of Title Volume … Folio …;
(c)the land containing a shed being P4 property being the land comprised in Crown Lease Volume … Folio …;
(d)the three-bedroom house situated at M1;
(e)the land known as M2.
PROVIDED THAT on transfer of the properties the husband do all things necessary to secure the release and discharge of the wife from any liability pursuant to the mortgages or any debts in relation to those properties including but not limited to the Westpac mortgage loan secured over P2 and P3 properties.
The husband do indemnify and keep the wife indemnified in respect of all other debts and claims or liabilities of the husband past, present and future including but not limited to any loans or debts payable by the husband or the husband and wife to Mr A, (Mine Business), Mr A (caravan park), Mr S, Mr K and E Lynton.
SAVE AND EXCEPT as herein provided the wife do retain all real and personal property presently in her possession, power or control.
SAVE AND EXCEPT as herein provided the husband do retain all real and personal property presently in his possession, power or control.
In the event that either party shall neglect or refuse to execute any document within seven [7] days of the same being forwarded to him/her by ordinary pre-paid post to the last known address for service then in such an event upon proof by affidavit a Registrar of this Honourable Court is hereby appointed and directed to execute the document on behalf of the party so in default and if in his/her opinion it shall be necessary so to do to settle the same and do all such other acts and things as shall be necessary to give full force and effect to these orders on the basis that the party in default shall pay the other party’s costs of and in relation to such neglect or refusal.
Any costs application by either party is adjourned to a date to be fixed upon the Court receiving any request in writing from either party provided such written request is forthwith served on the other party and is made to the Court before 13 September 2010.
Each party has liberty to apply for consequential orders in relation to enforcement of the within orders.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 206 of 2008

MS LYNTON

Applicant

And

MR LYNTON

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings between the wife Ms Lynton and the husband Mr Lynton relate to the final property settlement orders sought by each of the parties.

Hearing

The trial commenced on 7 April 2010. It continued on 8 and 9 April, 19, 20, 21 and 22 April 2010. Judgment was reserved on 22 April 2010.
At the commencement of the trial the husband was represented by Mr Heinrich of counsel, however later the husband was granted leave to change counsel. Thereafter, the husband was represented by Mr Jordan of counsel. The wife was represented by Mr Scragg.
The Court received the affidavits of evidence-in-chief relied upon by each of the parties.
The wife and her witnesses, Dr H, Ms O, the parties’ daughter E and Ms F gave oral evidence and were cross-examined.
The husband and his witnesses Mr A and his partner Ms Z also gave oral evidence and were cross-examined.
At the commencement of the hearing counsel for the wife indicated that she was no longer seeking any orders in relation to the property at P registered in the name of the parties’ son J Lynton.

Main Issues

The wife maintained that the husband had substantial valuable assets which he had not disclosed. The wife did not accept the husband’s contention that he owed other people substantial sums and that he was unable to recover debts which had been owing to him.
The wife also maintained that her contribution should be considered greater due to the husband’s violent and abusive behaviour towards her.

Background and chronology

The husband was born in 1945 in Greece. He is now aged 65. The husband migrated to Australia in 1964.
The wife was born in 1948 and is aged 62.
The parties met in P in 1969 and have been residing together since approximately 1970. The parties were married in 1971.
There are three children of the marriage, E who was born in 1971, J who was born in 1974 and U who was born in 1989.
Both parties accepted that there were significant behavioural and health issues in relation to U, who although aged 20, still required assistance.
In 1980 there was a period when the husband and wife were separated for a year.
The parties and the children resided in P until 1986 when the wife and children moved to accommodation in Adelaide in order that the children could attend school in Adelaide.
The parties did not separate after the wife and children moved. They maintained their relationship with the husband visiting Adelaide occasionally.
In 1988 the parties’ matrimonial home in P was burgled. A large amount of cash and ‘rough’ gemstones were stolen. The loss was in the region of $900,000 to a $1 Million Dollars.
On separate occasions in the late 1980s E and J were involved in motor vehicle accidents resulting in significant injuries. Legal proceedings were commenced on their behalf. E’s proceedings for damages in relation to her injuries were settled in 1993. J’s personal injury claim was settled in 1995.
E was also involved in property settlement proceedings which were finalised in June 2003.
In February 2004 the wife inherited $640,000 from her mother’s estate.
There is a dispute about the date of the final separation of the parties. The wife maintains that the parties finally separated on 7 March 2004. The husband maintains the final separation was in April 2005.
Since arriving in P the husband has been involved the gem trade, mining gemstones in P and M and later dealing in gems.
The wife had employment both in P and Adelaide in various roles, including cleaning, clerical and as a library assistant.
Since June 2005 the wife has resided at the property at N which is registered in her name. She seeks to retain this property.
The husband has continued to reside in P. Since March 2008 he has been residing with his current partner, Ms Z.
The wife has not been employed since December 2007.
The husband alleged that he had not engaged in gem mining or dealing of any significance for a considerable period of time and maintained that his living expenses were paid for using money he borrowed from various people.
The wife commenced proceedings in the Federal Magistrates Court in January 2008. Various interlocutory and interim orders were made.
The parties were divorced on 1 July 2008.
The proceedings were transferred to the Family Court of Australia in June 2009.
Thereafter, there were further directions made in order to prepare the matter for trial.
Included amongst those directions was an order for the preparation of a balance sheet dealing with the assets and liabilities and financial resources to be brought into account.
The parties agreed that the following assets should be brought into account at their agreed value:
(a) P2 property (Joint)  $65,000
(b) P3 property (Joint)  $120,000
(c) P4 property (Joint – annual licence)  $10,000
(d) P1 property (Joint – annual licence)  $75,000
(e) 1998 Lexus Motor Vehicle (husband)  $15,000
(f)   2003 Nissan Pulsar (wife)  $5,700
(g) N property (wife)  $420,000
(h) Tunnelling machine (husband)  $32,000
There was a dispute as to the value of the jointly owned interest in M1 property. The wife asserted the value was $40,000 the husband says $20,000. There was also a dispute as to the value of the site at M2, the wife saying $2,000 and the husband saying $1,000.
The parties were unable to agree on the value of mining equipment, gemstone stocks, paintings and framed gemstone pictures retained by the husband and jewellery and personal effects retained by each of them.
A significant dispute between the parties related to the recoverable debts owing to the husband by associates and friends. The wife asserted that there was at least $311,500 owing to the husband. The husband maintained that the amounts due, if any, were not capable of being recovered.
The parties agreed that there was a mortgage outstanding on N property of approximately $200,000.
The wife did not agree that the husband owed substantial amounts to his friends and associates. The husband claimed that he owed substantial debts to Mr A, Mr S and Mr K. Some of the debts were incurred prior to separation and some post separation.
The husband acknowledged that the wife had made a significant contribution financially from monies inherited from her parents.
At the commencement of the trial the husband proposed that the wife should receive an adjustment of 60 per cent in her favour by way of contributions and that there be no further adjustment in relation to section 75(2) factors.
The wife maintained that the husband had significant assets which had not been disclosed and that the claimed debts owing by him were not genuinely due. Taking these factors into account together with the violence alleged to have been perpetrated by the husband upon the wife, at the beginning of the trial the wife’s counsel said that the wife was seeking 100 per cent of the known assets.
At the conclusion of trial, counsel for the wife submitted that:
(i)the wife should receive the property at P1 on which the dugout residence had been erected ($75,000) and the N property (on the basis that the wife would take over the responsibility for the mortgage over the N property) (net $220,000);
(ii)the husband retain the other real estate and indemnify her in relation to all other debts;
(iii)the husband deliver up to her the gemstone pictures, gemstone pendant and she retain the Rolex watch.
At the conclusion of the trial the husband’s counsel submitted that the wife should retain the N property and pay the N mortgage and that the husband should retain all other assets and remain liable for all other debts.

The Law

The most relevant provisions of the Family Law Act 1975 are as follows:
Section 79
(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or
(b)in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage--altering the interests of the bankruptcy trustee in the vested bankruptcy property;
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d) an order requiring:
(i) either or both of the parties to the marriage; or
(ii) the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
(2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
…
(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.

Section 75(2)
The matters to be taken into account are:
(a) the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support: and
(i) himself or herself; and
(ii)          a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)     any law of the Commonwealth, of a State or Territory or of another country; or
(ii)    any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii)    vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i)a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of the person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)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; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

The provisions of Chapter 13 of the Family Law Rules 2004 are also relevant in particular rule 13.01 sub-paragraph (1):
General duty of disclosure
(1)Each party to a case has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the case, in a timely manner.
Note Failure to comply with the duty may result in the court excluding evidence that is not disclosed or imposing a consequence, including punishment for contempt of court. This Chapter sets out a number of ways that a party is either required, or can be called upon, to discharge the party’s duty of disclosure, including:
(a)disclosure of financial circumstances (see Division 13.1.2);
(b)disclosure and production of documents (see Division 13.2.1); and
(c)disclosure by answering specific questions in certain circumstances (see Part 13.3).
(2)The duty of disclosure starts with the pre-action procedure for a case and continues until the case is finalised.

Full and frank disclosure is also required by the provisions of rule 13.04 and rule 13.07 in relation to the disclosure of documents.
Paragraphs 39 and 40 of the Full Court decision of Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 state:
“39. The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case: Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Davut and Raif (1994) FLC 92-503; Prpic and Prpic (1995) FLC 92-574; Clauson and Clauson (1995) FLC 92-595; Townsend and Townsend (1995) FLC 92-569; Biltoft and Biltoft (1995) FLC 92-614; McLay and McLay (1996) FLC 92-667; JEJ and DDF (2001) FLC 93-075 and Phillips and Phillips (2002) FLC 93-104.
40.Section 79, unlike s.78, requires the Court to consider the whole of the property of the parties, however and whenever acquired, notwithstanding that the parties may only seek an alteration of interest in some of that property. As a consequence of the first step in the preferred approach to the determination of the s.79 proceedings, each party to the proceedings has an obligation to make a full and frank disclosure of his/her financial circumstances and all matters relevant thereto: Oriolo and Oriolo (1985) FLC 91-653; Black and Kellner (1992) FLC 92-287; Weir and Weir (1993) FLC 92-338 and Tate v Tate (2000) FLC 93-047.”
In the context of this matter it is appropriate to consider the Full Court decision of Reichstein & Reichstein [2006] FamCA 1422. The Full Court said in paragraph 80:
“80.This was a case where the husband failed to comply with his clear obligation under the Family Law Rules 2004 to make a full, frank and complete disclosure of his financial circumstances in a timely manner. The need for parties in financial matters to make such disclosure is not in doubt. In the seminal passage in Briese and Briese (1986) FLC 91-713 Smithers J said at 75,180 – 75,181:
I believe that a person in the position of the husband in this case has a positive obligation to set out at an early stage his financial position in a clear and comprehensive manner. The Regulations, and now the Rules, are not intended as a vehicle to mask the true position, or as an aid to confusion, complexity or uncertainty. They are not intended as the outer limits of the obligation of financial disclosure, but as providing avenues towards disclosure. The need for each party to understand the financial position of the other party is at the very heart of cases concerning property and maintenance. Unless each party adopts a positive approach in this regard delays will ensue with the consequent escalation of legal, accounting and other expenses, always assuming that a party has the strength to continue the struggle for information and understanding.
…
In my view it is fundamental to the whole operation of the Family Law Act in financial cases that there is an obligation of the nature to which I have referred. Livesey v. Jenkins makes it clear that mere compliance with rules of court or practice directions does not alter the basic principle of the need for full and frank disclosure by the parties.
(See also Oriolo and Oriolo (1985) FLC 91-653; Black and Kellner (1992) FLC 92-287; Weir and Weir (1993) FLC 92-338 and Kannis and Kannis (2003) FLC 93-135).”
In the Full Court decision of Chang & Su (2002) FLC 93-117, the authorities in relation to full and frank disclosure of assets were discussed:
“67. The law to be applied and the approach that may be adopted in cases where, through the lack of a full and frank disclosure, the Court is unable to fully ascertain the extent of a party's wealth, is well settled (see Stein and Stein (1986) FLC ¶91-779; 11 FLR 353; Mezzacappa and Mezzacappa (1987) FLC ¶91-853; 11 FLR 957; Black and Kellner (1992) FLC ¶92-287; 15 FLR 343 and Weir and Weir (1993) FLC ¶92-338; 16 FLR 154).
68. In Black and Kellner (supra) the appellant had submitted that, absent findings as to the extent of his wealth, the order made by the trial Judge was plainly unjust. The key finding of the trial Judge was:
“... the failure on the part of the [husband] to disclose his financial position to the court and his attempts to conceal this matter from the court, which has left the court in the position of not knowing what the [ husband's] financial position is, except that he deliberately underestimated it.”'
69. Chief Justice Nicholson (with whom Ellis and Cohen JJ agreed), said in dismissing the appeal:
“As senior counsel for the wife pointed out, the first step in proceedings for a property settlement is for the court to ascertain the wealth of the parties and in this regard it is of interest to note the remarks of the Full Court in the case of Giunti and Giunti (1986) FLC ¶91-759, particularly at 75,555 where the court commented:
`It is obviously desirable as a general principle that the court should first of all identify the pool of assets available and evaluate it. If each party complies with his or her obligation to make a full and substantive disclosure of their financial affairs — see Briese and Briese (1986) FLC ¶91-713, affirmed by the Full Court in Oriolo and Oriolo (1985) FLC ¶ 91-653, there is no problem, although there may be disputes as to valuation.
However if, as here, one party fails to fulfil that obligation, is it open to that party then to rely on the absence of satisfactory evidence to prevent the making of an order against him or her which otherwise justice and equity would require? It would be simple, if that were the case, to evade the jurisdiction of this court, not by outright refusal which would attract sanctions but by obfuscation and evasion.'
The Full Court in Oriolo and Oriolo, supra, referred with approval to the remarks of Smithers J in Briese and Briese, and it is perhaps worth reiterating a portion of his Honour's statement at 75,181 where he said, after referring to the decision of the House of Lords in Livesey v Jenkins (1985) All ER 106:
`... I believe that the conclusion of the House of Lords in the case of Livesey v Jenkins... is apposite, namely that in financial proceedings between spouses each party must make a full and frank disclosure of all material facts. In that case it was made clear that full and frank disclosure was required as a matter of principle in the light of the fact that it was the duty of the court, taking into account a number of designated criteria, to make a decision which basically involved the exercise of discretion. This is quite different from common law litigation between strangers, in which such a general duty does not exist, and obligations would only exist in so far as statute or court rules required.
In my view it is fundamental to the whole operation of the Family Law Act in financial cases that there is an obligation of the nature to which I have referred.'
Regard also may be had to the decisions of this court in Stein and Stein (1986) FLC ¶ 91-779 at 75,676 and Mezzacappa and Mezzacappa (1987) FLC ¶91-853.
In the present case a similar situation arose. The assets of the parties could not be ascertained in full because of obvious non- disclosures.
It is apparent that if his income was more substantial than he claimed, then this would be reflected in the value of his practice and in this regard it is perhaps of interest to note that the wife's former husband's practice of a similar nature, was capable of being sold for a figure in 1973 terms which would if reflected in 1991 terms, represent a very substantial asset indeed. Finally, another part of a judge's obligation in cases of this nature in considering section 75(2) factors is to consider the respective incomes of the parties. Again, through the behaviour of the husband, this was something which the learned trial judge could not do.
It follows from what I have said that I do not believe that his Honour's judgment can be attacked upon the basis relied upon by the husband.''
70. In Weir and Weir (1993) FLC ¶92-338; 16 FLR 154 the Full Court (Nicholson CJ, Strauss and Nygh JJ) dealt with an appeal against the refusal by the trial Judge to make orders in respect of unascertained property because he could not quantify it. The Court said at FLC 79,593:
“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) 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.
It is true that in the case of Monte and Monte (1986) FLC ¶91-757, the Full Court said that to found jurisdiction under s 79 in relation to property other than that which had been identified, the trial judge was obliged to make a finding as to the existence and value of other undisclosed property, even though the unsatisfactory nature of the evidence made it necessary to express that finding in the most general terms both as to identify and value.
We confess to some difficulty with this proposition. We should have thought that the Court's jurisdiction to make an order going beyond the identified property arises once there is sufficient evidence to support a finding that the party has not made a full disclosure of his or her assets.
The difficulty then arises as to what order should be made. However, we are troubled by the proposition which seems to arise from Monte and Monte that if a party is either cunning enough or vague enough to cover his or her tracks sufficiently to prevent a Court making a finding as to the amount that has not been disclosed, then the other party fails. We do not believe this to be the law and in so far as the decision in Monte and Monte supports such a proposition, we do not believe that it should be followed.””'
In Kannis and Kannis [2002] FamCA 1150 (unreported) the Full court said at paragraphs 47, 49, 50 and 51:
47.There have been a series of reported cases in which the Full Court has discussed the task of a trial judge in a property case where the trial judge is unable to ascertain the extent of the pool of assets due to a lack of full and frank disclosure on behalf of one of the parties. Those cases were most recently summarised in the decision of Chang and Su (2002) Fam CA 156. …
…
49.On 5 November 2002 the High Court dismissed an application by Mr Chang seeking Special Leave to appeal from the Full Court’s decision. In the course of argument Callinan J observed:
“It does not matter what the principle might be said to be, a court has to do the best it can. It does the best it can, having regard to the evidence that is adduced and if the parties are not frank then naturally there is going to be a measure of imprecision about any findings that the court can make.”
50.Mr Ackman submitted that the cases discussed above were authority for the proposition that where there was a finding of deliberate non-disclosure the Court could act more robustly in making findings adverse to the party who had actively misled it. We do not see that the principle should be so confined.
51.Whether the non-disclosure is wilful or accidental, is a result of misfeasance, or malfeasance or nonfeasance, is beside the point. The duty to disclose is absolute. Where the Court is satisfied the whole truth has not come out it might readily conclude the asset pool is greater than demonstrated. In those circumstances it may be appropriate to err on the side of generosity to the party who might be otherwise be seen to be disadvantaged by the lack of complete candour. This is the course the trial Judge adopted. It was a course clearly open to him and one that does not merit appellate interference.
(Emphasis added)”
The wife relied upon the principles in the decision of the Full Court in Kennon and Kennon (1997) FLC 92-757 seeking to have her contribution considered taking into account the violent conduct by the husband towards her during the relationship.
At page 4 of the Full Court judgment in Kennon and Kennon (Supra) it is stated:
“Where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contribution to the marriage this is a factor which a trial judge is entitled to take into account in assessing the parties respective contributions under section 79.” (Emphasis added)

Discussion and findings

(a) Debts owing to other persons

Paragraphs 34, 35, 36, 37 and 38 of the husband’s affidavit filed on 16 February 2009 (document 19) state:
“34.Towards the end of my relationship with [the wife], we owed the following people money:
34.1[Mr V] - $230,000.00;
34.2[Mr A] - $150,000.00;
34.3[Mr S] - $20,000.00; and
34.4There were also other debts.
35.Upon [the wife] selling her parents’ property in Queensland, the debt to [Mr V] was paid. This debt was an accumulation of monies that we had borrowed over a number of years to subsidise both the working of my business and the family expenses in Adelaide.
36.The debt to [Mr A] is still outstanding. [Mr A] loaned me the money in cash to both purchase the [gemstones] and also to assist me financially generally. In exchange, I gave him two cheques to hold, one for $100,000.00 on the 20^th October 2004 and one for $50,000.00 on the 17^th April 2005. I gave him these cheques for security in the event that anything should happen to me. The latter payment was to assist the family following the purchase of the property at [N].
37.The debt to [Mr S] was primarily owed because we had rented his property for 2 years in […] and had not paid any rent.”
The bank loan application which is annexure ‘A’ to the affidavit dated 18 March 2005 describes the husband as a gemstone dealer. It is signed by him. It refers to him as “person 1” and that he had gemstone worth $100,000. The document says that the husband owed monies to Lend Lease of $45,000 and no other loans of any significance.
The Westpac Loan application signed by both the husband and wife in April 2007 describes the husband as a self-employed gemstone buyer with a gross annual income of $100,000, a wage or salary after tax of $6,700 per month. Under “assets” for both the husband and wife there is a brief description recorded as “personal effects and household items” including furniture, electrical goods, clothing, jewellery etc., $100,000; stock $150,000 and jewellery $100,000. The only debts are the mortgage in relation to the N property and a CBA Mastercard with $2,000 owing.
The affidavit does not explain the discrepancy between the document signed and given to the bank in March 2005 and the debts the husband now alleges were owing.
In his oral evidence the husband was asked about the loan application, in particular the description of $100,000 of gemstones. His unsatisfactory reply was “I just sign it”. He gave a similar answer to questions about the information contained in the Westpac Loan application signed by him on 19 April 2007 (Exhibit 21) in which he is again described as a gemstone buyer, owned $150,000 of stock and $100,000 jewellery. There was no mention of loans or other liabilities beyond a small credit card and Westpac mortgage over the N property.
In the Financial Statement filed by the husband on 25 February 2008 (document 5) the loan described was to “[Mr A] $150,000”. In the Financial Statement filed on 10 February 2009 (document 16) the loan to Mr A was $190,000. Under “other personal liabilities” the following appears “unpaid rent house [Mr S], [M property] personal loan, [Mr A] (caravan park) $40,000.” This is a reference to another Mr A who also resides in P. There is further under “personal business liabilities” “personal loan – [R Lynton] (brother) $15,000”.
Annexed to his Financial Statement filed on 15 November 2009 is a document headed “[Lynton] Debtors and Creditors”. Under the line of creditors there are the following:
Creditors
1.     [E Lynton]  $90,000
2.     [Mr L]  $20,000
3.     [Mr A] (1)  $80,000
4.     [Mr A] (2)  $150,000
5.     [R Lynton]  $15,000
6.     [Mr B]  $13,000
7.     [Mr S]  $20,000
8.     [Mr K]  $200,000
Total:  $588,000

The affidavit of Mr A filed on behalf of the husband on 10 February 2009 (document 17) says in paragraph 10:
“10.As far as I am aware, [the husband] now owes me the sum of $150,000.00. This money was loaned to [the husband] and in exchange [the husband] gave me two blank cheques as security for the money loaned to him. I have loaned [the husband] a further $50,000 in the 7-8 months.”
Paragraphs 53 and 54 of the husband’s affidavit sworn on 29 March 2010 (document 73) states:
“53. During the marriage I borrowed from the following people:
(i)$380,000 from [Mr K] of which $180,000 was repaid before the separation in two instalments, $80,000 and $100,000. The balance of $200,000 is, from memory, recorded in the partnership accounts;
(ii)$400,000 from [Mr I] in Hong Kong but repaid before our separation;
(iii)$150,000 from [Mr A] who owns a [business] in [P];
(iv)$200,000 from [Mr V] which loan was documented. The loan bore interest at $15,000 per year and was repaid before the separation as previously referred to;
(v)[E Lynton] as hereinafter referred to.
54.In addition to loans, we owed [Mr S] $20,000 for the rent of [his] property.”
The husband claimed that at separation the liabilities that existed were:
“balance of my Lexus car loan, private loans of $350,000, [E Lynton] of $90,000.” (Paragraph 64 of document 73).
In paragraph 65 of his affidavit sworn in March 2010 the husband sets out a list of borrowings he has made since separation.
Later in his affidavit under the heading “[E’s] Loans” the husband admits that in about 1993 E paid $130,000 into the Westpac bank account of the wife and the husband by way of a loan which was used for gemstone transactions. He claims that $40,000 was paid back to her at her request to purchase items for a business. He further claims that in 1998 he gave E $40,000 for her and her husband to put a deposit on a house. He said “this money was not a loan repayment but a gift to help [E] and her husband to get established”. At paragraphs 96, 97, 98 and 99 the husband states:
“96.In about 2001 at [E’s] request I attended the auction of a house at […] with her instructions to buy it. I purchased the house for $325,000 and I paid a deposit of $16,500 at the time (by cheque). My brother was visiting from Greece and he delayed his return to renovate the house (the owner had given possession before the settlement for the renovations to take place). I paid for some of the renovation costs. [E] and her husband arranged a bank loan but they did not have enough money to complete the purchase (they had about $30,000). The wife and I paid the further sum of $88,500 towards the settlement. I therefore say that our contribution to the purchase of her house more than repaid [E] for the 1993 loan.
97.I say that in about 2003 [E] received money from the sale of [the] property, her marriage having broken down. She paid $195,000 by way of loan into the wife’s bank account. After that there were a number of requests from [E] for funds. [E] was a drug addict at the time. I paid the following amounts in cash:
(i)$20,000 to [E] personally to repay “friends” at a time when she was living at Murray Bridge;
(ii)$20,000 to [E] to fund her then boyfriend […] to start trading in motor vehicles;
(iii)   $6,000 to “[…]” for drugs that [E] had not paid for.
98.I say that the wife repaid further funds to [E] independently of the repayments above. The wife kept a book to record these (and other) transactions. The wife told me that there was $90,000 left owing to [E].
99.I made other financial arrangements and contributions for the benefit of [E] which included:
(i)     the purchase of a new Holden Camira for $16,000;
(ii)     the purchase of a new Ford Telstar for $26,500;
(iii)the cost of her training as a beauty therapist, naturopath, and homeopath;
(iv)the cost of a holiday and living expenses for a one year holiday in Greece; and
(v)the cost of her Greek boyfriend’s travel to Australia.”

The affidavit of the daughter E Lynton confirms that in 1993, after her injuries claim was settled she provided $137,000 to the husband on the basis that he would use it to buy and sell gemstones and that he would repay her with interest.
Paragraphs 27, 28, 29, 30, 31, 32 and 33 (document 61) and the oral evidence of E Lynton under cross-examination confirmed that the sum of $242,000 remained outstanding and payable by the husband to E.
E’s evidence and cross-examination confirmed her affidavit and in particular confirmed that she did not consent to her father now claiming to set off gifts he had made to her during her lifetime and cost of maintaining her during her lifetime against the debt which he owed her.
The oral evidence of Mr A confirmed that he now held two cheques signed by the husband, one for $100,000 and one for $50,000 and that he held these cheques as security for the payment of the monies he had lent to the husband.
Exhibit 30 is a photocopy of the two cheques signed by the husband, both dated 17 November 2009, one for $50,000 and one for $100,000 made payable to cash. These are alleged to be cheques that Mr A holds as security for his debt. The oral evidence suggested that the inconsistent dates (affidavits sworn in February 2009 referring to blank cheques and exhibits showing cheques for particular sums dated much later, in November 2009) could be explained by the cancellation of the first set of cheques and later issue of fresh cheques.
The exhibits included various bank statements about which the husband was cross-examined.
The husband’s evidence was on many occasions inconsistent. He also frequently expressed a lack of knowledge about significant matters. He answered many questions with “I don’t know”. He was resistant to providing any useful information to support the alleged debts to various people including Mr A. His reduced ability to read and write was not an adequate explanation.
Consideration of the affidavits, oral evidence and exhibits supports the allegation put by the wife that the husband continued to trade in gemstones and that he had significant dealings.
The husband himself confirmed that most of the monies he had borrowed from Mr A and others were never banked but kept by him in cash.
Whilst the loan to Mr A of $150,000 owing at the time of separation was a loan supported by the evidence of Mr A the whereabouts of the monies borrowed and what became of the assets, if any, which were purchased with this money has not been established to any satisfactory degree.
The loan allegedly due to Mr K of $200,000 was conceded by the wife as have been owing to Mr K at one time in the past. The wife points to the repayment of $100,000 in April 2003 and does not concede that at the time of separation there was any other money still owing to Mr K. He was not called and no other proof was provided by the husband to substantiate any amount owing at the time of separation or now to Mr K.
In relation to the evidence concerning E’s money, the Court prefers the evidence of E as to the amount borrowed by the husband and arrangements made for repayment. The Court accepts her evidence in particular that the monies were provided to the husband by his daughter and used by the husband for him to trade in gemstones and other activities.
The evidence of E establishes that the husband owes E $242,000.
It is not appropriate to attribute any share of this debt to the wife, notwithstanding that at one time there was a partnership in existence between the husband and wife for which the wife prepared the accounts.
The use of the money by the husband both in relation to Mr A, Mr K and E was completely controlled by the husband without any consent or control at all on the part of the wife.
The husband has not explained satisfactorily how this money was used and what has become of it. Whilst the debt to E is established, the wife has also established sufficient inconsistencies about the husband’s evidence and assets to suggest that the husband has failed to disclose significant assets now in his possession which had been acquired with the use of monies borrowed from E and other persons.
The husband claimed that there was a joint debt to Mr S of $20,000 for unpaid rent. He claimed that this was due to Mr S for the period of time the family lived in a house owned by Mr S. The husband claims that $200 per week was payable.
The wife however claims that during the two years that they resided in Mr S’s property they maintained the house and garden to the property and did so on the basis that otherwise their time at the property would be rent-free.
The husband did not call Mr S.
Due to his failure to call the relevant witness and considering the quality of the evidence given by both the husband and the wife, the Court prefers the evidence of the wife. The husband has failed to establish that monies are owing by either the husband or the wife to Mr S.
For the above reasons the Court does not include as liabilities to be considered in the overall assets and liabilities of the parties any of the debts claimed by the husband to be owing (to either of the two Mr A, Mr S, Mr K or E Lynton). This is on the basis that the Court is satisfied that the husband owes E $242,000 but that offset against that debt and any other possible debts due by the husband are undisclosed assets or benefits received by the husband.
The husband claimed to have other significant debts which have been incurred post-separation, being further debts to Mr A and his brother.
The wife has also had significant borrowings from friends and other debts owing which have been incurred since the separation.
Whilst the evidence concerning the debts owed by the wife is not significantly challenged, the evidence about the post-separation debts of the husband is also subject to criticism of a similar nature to that concerning his other debts.
The Court will take into account that since the separation both parties have incurred debts. The evidence of the wife’s witnesses, Ms F and Ms O established the loans provided by them to the wife and in particular, will be factors to be brought into account when considering the parties current financial circumstances.

(b) Jewellery and paintings

The wife claimed that the husband had in his possession valuable wrist watches, including two Rolex.
The husband maintained that one had been sold and the other had been given to J. He also maintained that other jewellery to which the wife referred had been given to other people, such as the gemstone pendant and a ring, which had been given to a friend for security for another $10,000 loan.
The wife claimed that the husband also retained her gemstone pendant/brooch which had considerable value.
The husband maintained that it was “cracked” and of no value.
When cross-examined about gemstone paintings which the wife claimed were valuable, the husband said that he had arranged for Mr A to store them for him because they did not fit in the safe. At the same time he said that they were of no value.
Again, the evidence of the husband concerning the whereabouts and value of the various items of jewellery and gemstone stock was unsatisfactory and so inconsistent to be not reliable.
The Court however is unable to put a value upon the items in the husband’s possession or control.
The wife has retained a Rolex watch. The value is given as “$3,500 to $5,000” (see Balance Sheet). The wife seeks to retain the watch, particularly if the other Rolex watches are not brought into account. The husband wanted the Rolex returned to him.

(c) Monies owing to the husband

The wife maintained that the husband had significant amounts of money owing to him as a result of loans he had made to friends and associates.
The wife says that the husband has over $300,000 due to him from various persons.
The husband says that at the date of separation there were only three people “who still owed me money, [Mr D] ($3,000), [Mr N] ($20,000 less repayments made to the wife) and [Mr R] ($86,000))”. He claims that the debts are not capable of being recovered and that there is no prospect of repayment.
The wife does not accept the assertions by the husband. She maintains that there are substantial other amounts due and payable and that the husband has deliberately refrained from taking steps to recover the sums because of the Family Court proceedings.
It is not possible on the husband’s evidence, and in particular because of the poor quality of his evidence, to make a finding that the debts which he admits were owing are now not recoverable.
However the wife has been unable to establish on a sufficient standard that all the loans claimed by her exist. The Court is therefore not able to include them as assets for the purposes of these proceedings.

(d) Machinery and gem stocks.

The wife provided photographs and other evidence in her affidavit and oral evidence suggesting that the husband has retained significant machinery and gemstone stocks.
The husband’s attempt to explain these items, the whereabouts and value, was again not satisfactory. However, the Court is not able to place specific values on these items but notes that the husband retained machinery and that in the past had significant gemstone stock ($100,000 in the Westpac document signed by the husband in April 2007 – Exhibit 21).

(e) Other factors

The wife received her inheritance of $640,000 using some of the money to purchase the N property. After she received her inheritance she gave the husband $230,000 on 12 February 2004 for the purpose of paying a debt, which was then owed to Mr V. The wife also gave the husband $80,000 to use as operating capital in the gemstone dealing business.
The husband in his affidavit filed on 9 June 2009 (document 32) at paragraph 178 admits that the inheritance money was used to pay the debt of $230,000 to Mr V in 2004, but claims it was “a debt [the wife] and I had together”. He admitted receiving a further $80,000 from the wife in 2005 from her inheritance.
Item number 6 in the Balance Sheet is the jointly owned three-bedroom house situated at M1, “Value not agreed”. The Court accepts the value of $20,000 by Mr W in his report which is annexed to the affidavit of the husband’s solicitor, Ms Tucker. However the Court also notes the evidence of Mr W that when he was asked to carry out a valuation of the campsite in June 2008 he was informed that the leases had ceased and the parties no longer had any ownership of the same.
The Court therefore takes into account that there is a basis for the wife asserting that there is a greater value to be attributed to this property.
The same applies to item number 7 in the Balance Sheet, the jointly owned M2 property which the wife asserts is worth $2,000 and the husband $1,000. The property will be included at $1,000 taking into account the difficulties referred to by the valuer.
Therefore include M1 at $20,000 and M2 at at $1,000.

Conclusion on Assets and Liabilities

Assets

The following assets should be taken into account at the following values
(i)       Jointly owned P2 property  $65,000
(ii)     Jointly owned P3 property   $120,000
(iii)  Jointly owned P4 property (annual licence) $10,000
(iv)     Jointly owned P1 property (annual licence)  $75,000
(v)The husband’s Lexus motor vehicle  $15,000
(vi)The wife’s 2003 Nissan Pulsar   $5,700
(vii)N property (in the wife’s name)  $420,000
(viii)Husband’s tunnelling machine  $32,000
(ix)Gemstone mining equipment, gemstone stock, gemstone pictures, jewellery and personal effects including pendant and brooch retained by the husband   Unknown Value
(x)Husband’s second Rolex watch in the wife’s possession
value to be brought into account   $3,500
(xi)Jewellery and personal effects of the wife which the wife asserts
have no value (there is no evidence to support any significant value)
(xii)Loans due to the husband from associates   Not established
(xiii)Household contents in the possession of each party conceded to be negligible.
(xiv)M1 property  $20,000
(xv)M2 property  $1,000
Total assets known and which can be brought into account            $767,200
Liabilities of the parties to be brought into account
(i)Mortgage over N property   $200,000
(ii)Joint Westpac Equity Access Loan for property at P                   $75,000
(iii)Joint site licence for M2 property   $1,441
(iv)Total debts to be brought into account (acknowledging
that there is a significant debt due by the husband to E)
total liabilities   $276,441
Net assets to be taken into account, $767,200 less $276,441 equals $490,759.
The Court also acknowledges other debts owing by the parties which have accumulated since separation and some of significance which are still owing, including a Westpac Mastercard debt of the husband in excess of $24,000.
The evidence of the parties indicates that the wife has a small Statewide Superannuation account worth approximately $541. The husband has no superannuation interest.

Contributions

The affidavit evidence of the wife sets out a history of physical, verbal and psychological abuse by the husband towards the wife over a long period. The affidavit also describes the significant issues in relation to U. The wife was cross-examined briefly about the allegations of violence but was not significantly challenged in her evidence.
The wife’s psychiatrist, Dr H, provided reports and gave oral evidence. During the cross-examination she was pressed concerning the diagnosis which attributed the wife’s Severe Post Traumatic Stress Disorder to domestic violence. Dr H’s evidence also confirmed that the wife’s Chronic Pain Disorder was worsened by psychological factors.
When cross-examined, it was put to Dr H that the wife’s condition, or at least part of it, may relate to difficulties concerning U’s health and development. She maintained however that her observations and diagnosis was based upon her full knowledge of the wife’s history. She confirmed that the violence and abuse by the husband formed the basis of the wife’s Post Traumatic Stress Disorder.
Dr H gave her evidence in a straight-forward, professional manner. Her diagnosis was not challenged.
In particular the Court relies upon that part of Dr H’s report of 29 January 2009 which states:
“I have diagnosed [the wife] as having Severe Post Traumatic Stress Disorder resulting from years of physical and verbal abuse by her husband and more recently her son. She is depressed and anxious … She has major difficulties functioning on a day to day basis, almost unable to complete any paperwork, and lately has needed to flee her home sleeping in her car or at friends. Her prognosis is grave, and current issues are to do with her personal safety and assisting with her state of general emotional breakdown.”
In the report of 17 March 2009, Dr H concludes:
“Her psychological/psychiatric diagnosis is of Post-traumatic Stress Disorder secondary to domestic violence. She also has a Chronic Pain Disorder worsened by psychological factors.
Due to the severity and longevity of her above conditions, I would asses her prognosis as poor. She will require long-term psychiatric treatment and multiple medications.”
The husband denied the allegations of violence and abuse. He admitted on one occasion pushing the wife as a result of which she fell over.
The husband’s counsel emphasised the failure of the wife to report the violence and abuse to her friends until many years later.
The evidence of the parties’ daughter, E, both by way of affidavit evidence and oral evidence, supported the wife’s evidence of abuse by the husband.
In particular her affidavit referred to recalling “many episodes where my father physically and verbally abused my mother, particularly in [P]”. She gave particular examples.
Some of the examples referred to events whilst the parties were living together in P, but included incidents which occurred whilst the parties were living at Mr S’s property and later.
Taking into account the evidence of the husband and wife, and their daughter E, and taking into account in particular, Dr H’s evidence, the Court finds that during the relationship the husband’s abusive behaviour towards the wife significantly contributed to the current psychiatric and psychological difficulties suffered by the wife.
The evidence of the wife was that in spite of the husband’s behaviour she continued to provide for the family, she maintained the house, cared for the children, attended to the book-work and provided the special care required for U and E.
The Court is satisfied that the wife has established the violent conduct, however the evidence has not established on the necessary standard of proof (balance of probabilities) that this violent abusive conduct by the husband had a “significant adverse impact” upon the wife’s contribution to the marriage. In fact, the evidence supports the conclusion that notwithstanding the violent and abusive conduct by the husband, the wife continued to make substantial contributions to the household and in particular the welfare of the family.
The evidence of the wife and the daughter E establishes that since 1986 the wife has been almost solely responsible for the care of the children. I accept the evidence of the wife and E (which was not significantly challenged) that the husband only occasionally visited Adelaide after 1986.
The husband remained in P providing for the family through his gemstone business, leaving the wife to provide the day to day care and emotional support for the children.
The husband acknowledges the significant financial contribution made by the wife from her parents’ estate, following the sale of her mother’s home.
The wife’s mother died in November 2002. The estate was wound up and the real estate sold in late 2003. The monies were received in 2004.
The parties disagree about the time of separation. The wife says it was March 2004. The husband has given various dates at various times. In his affidavit filed on 25 February 2008 he said the date of separation was “about April 2005”. In the Divorce Application he filed he said the date of separation was 31 October 2003.
The wife received $640,000. Some of the money was used to purchase the N property.
In February 2004 the wife says that she lent the husband $230,000 to pay off the debt to Mr V and later lent him an additional $80,000, which he said he required to purchase gemstones.
The contribution of the proceeds from her mother’s estate is a significant contribution from the wife taking into account the known assets, and the relatively recent receipt of the substantial funds.
After the N property was purchased the husband made payments of the mortgage on N property.
The husband says in his affidavit that there was an arrangement that he would pay the mortgage on the N property, but he says that the agreement was based upon him retaining the properties at M and P. He says that as a result of the wife commencing proceedings he “could not financially continue with this agreement”.
The husband says that he paid the mortgage until August 2008. The monthly rate was either $1,450 or $1,600 per month.

Assessment of contributions

Significant factors to be brought into account in this matter are:
(1)The length of the marriage;
(2)The contributions of the husband and wife to the operation of the business which earnt income and acquired assets during the marriage;
(3)The wife’s greater contribution to the care of the children and the welfare of the family;
(4)The failure of the husband to convince the Court that he has disclosed all assets;
(5)The debt which remains owing by the husband to his daughter E;
(6)The substantial financial contribution by the wife from her late mother’s estate.
Considering all of the relevant contributions, both financial and otherwise, the Court is satisfied that an adjustment of 60 per cent to the wife and 40 per cent to the husband is appropriate.

Section 75(2) Factors

(a) The age and state of health of each of the parties; and

(b)The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;

The husband is now aged 65. His age coupled with his limited literacy skills and ongoing residence in P restrict his future earning capacity. His only possible future income is likely to be from gemstone trading.
The wife is aged 62. The evidence of the wife and Dr H indicate that she has serious health issues and is unlikely to be able to obtain future employment.
The property and financial resources of each of the parties have been discussed earlier.

(c)Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself, and
(ii)a child or another person that the party has a duty to maintain;

The children are now over the age of 18. The wife however has a significant ongoing role in relation to U in particular.

(e) The responsibilities of either party to support any other person;

Apart from the adult children the only other person to be considered is the husband’s new partner, Ms Z. Ms Z is aged 43, healthy and capable of supporting herself and assisting the husband.

(f)Subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party;

The husband has only recently made application for Social Security pension. The eligibility of either party for government assistance is not a significant factor in this matter.

(m)if either party is cohabitating with another person – the financial circumstances relating to the cohabitation;

Ms Z is aged 43. She has been living with the husband since March 2008. She has never been married and has no children. Prior to commencing cohabitation with the husband she had employment.
Her affidavit indicates that she has been in receipt of unemployment benefits in the amount of $210 per week. She claims to have no assets of any significance.
The other criteria set out in sections 79 and 75(2) are not significant in the decision required to be made in this matter.

Conclusions

The wife’s health is a significant factor. The husband has the continuing capacity to engage in gemstone dealing if the market improves. He has the benefit of a defacto relationship with Ms Z.
Considering all of the relevant criteria a further adjustment of 5 per cent in the wife’s favour is appropriate.

Consideration of whether the adjustment is overall just and equitable in all the circumstances

Sixty-five per cent of the assets and liabilities which are brought into account (net $490,759 is $318,993).
The wife wishes to retain the N property, subject to the mortgage ($420,000 less $200,000, net $220,000), the Rolex watch, $3,500, the Nissan Pulsar $5,700, making a total of $229,200.
The wife also sought as part of her claim the property at P1 which is currently valued at $75,000.
This makes a total of $304,200 or 62 per cent of the net assets.
In closing submissions the wife sought to retain the N property and have transferred to her the P1 property.
The wife also sought orders that the husband provide to her the gemstone pendant/brooch and framed gemstone pictures. The husband claims that these have no significant value. These items should therefore be transferred to the wife.
The value of the assets to be retained or transferred to the wife will therefore be close to 65 per cent.
The husband will retain his interest in the remaining real estate at P and what other savings, assets, cash and stock he has in his possession.
The overall orders which would provide for the wife to retain the net interest in N property, the P1 property and the other personal property as discussed are just and equitable in all the circumstances.

I certify that the preceding one hundred and sixty three (163) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate:

Date: 9 August 2010