Murray and Murray (No 3) - [2019] FamCA 847

FAMILY COURT OF AUSTRALIA

MURRAY & MURRAY (NO. 3)

[2019] FamCA 847

FAMILY LAW – PROPERTY – Where each party seeks a different property settlement order pursuant to s 79 of the Family Law Act 1975 (Cth) – Where the husband conceded he had been involved in money laundering involving significant cash transactions - Where findings are made that the husband has not made full and frank disclosure in the course of the proceedings – Where adverse credit findings are made in respect to the husband’s evidence – Where the Court finds that it does not have to be too careful in making any assumptions or drawing any inferences in the husband’s favour as to what are his actual financial circumstances – Where the Court has no confidence that all assets are known and consequently no confidence in the assessment of contributions - Where an adjustment in favour of the wife in respect of s 79(4)(d)-(g) considerations is made taking into account, amongst other things, the lack of full and frank disclosure by the husband.

FAMILY LAW – APPLICATION IN A CASE – Where the wife seeks enforcement of a number of the husband’s financial obligations pursuant to interim orders – Where upon the delivery of final judgment, the majority of the orders the wife seeks are nugatory –Where there is insufficient evidence to make an order enforcing child support arrears against the husband – Where the wife’s application and the husband’s response are dismissed.

Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) Part 3, Division 1
Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) 13.01, 13.02

Al Baker & Al Baker [2016] EWHC 2510 (Fam);
Black & Kellner (1992) FLC 92-287;
Franklin & Ennis [2019] FamCAFC 91;
Jones & Dunkel (1959) 101 CLR 298;
Kowaliw v Kowaliw (1981) FLC 91-092;
Oriolo & Oriolo (1985) FLC 91-653;
Weir & Weir (1993) FLC 92 – 338

APPLICANT:

Ms Murray

RESPONDENT:

Mr Murray

FILE NUMBER:

SYC

5665

2014

DATE DELIVERED:

18 November 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

17 - 21 September 2018; 27 and 28 September 2018

(reserved 15 November 2019 after written submissions in relation to reopening )

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

COUNSEL FOR THE RESPONDENT:

Mr Dura

SOLICITOR FOR THE RESPONDENT:

Mills Oakley Lawyers

Orders

Pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) a property settlement order be made in the terms of paragraphs 2 to 11.
On or before the expiration of six months from the date of these Orders and subject to the wife complying with paragraph 3, the husband transfer his right, title and interest in the property situated at and known as B Street, Suburb C (“the Suburb C property”) to the wife.
Simultaneously with the transfer of the Suburb C property to the wife, the wife do all things and sign all necessary documents to discharge the current mortgage on the Suburb C property.
Pending the transfer in paragraph 2, the wife make all regular mortgage payments that regularly fall due from the date of these orders and in compliance with any arrangements with the mortgagor from time to time, in respect to the Suburb C property.
In the event that the wife does not comply with paragraphs 3 or 4, the parties do all acts and things and sign all documents necessary to cause the Suburb C property to be listed for sale with a Real Estate Agent as agreed between the parties and failing agreement, as appointed by the President of the Real Estate Institute of New South Wales (“the listing Agent”).
Upon the sale of the Suburb C property pursuant to paragraph 5, the parties shall do all acts and things and sign all documents necessary to cause the proceeds of sale to be distributed in the following order and priority:
(a)       The payment of the listing Agent’s commission and selling costs;
(b)       The payment of all legal fees associated with the sale;
(c)       The payment of any mortgage secured over the Suburb C property;
(d)       The payment of all council and water rate adjustments;
(e)The payment of the balance to the wife.
Pending the sale of the Suburb C property:
(a)The wife shall continue to have exclusive occupation of the Suburb C property;
(b)Neither party shall do any act or thing so as to further encumber the Suburb C property; and
(c)The wife shall pay, as and when they fall due, all rates and utilities associated with the Suburb C property.
Declaration that the wife be solely entitled to all monies currently held by H4 Pty Ltd and H5 Pty Ltd (“H Firm”) or any associated entities on behalf of the parties and that H Firm and any associated entities are directed to pay those monies to the wife.
Each party is to do all things and sign all necessary documents to transfer to the other any asset which has been distributed to either of them in the table contained at paragraph 420 in the Reasons for Judgment.
Each party is to do all things and sign all necessary documents to indemnify the other in respect of any liability for which they are responsible pursuant to the table contained at paragraph 420 in the Reasons for Judgment and in particular, the husband is to indemnify the wife in relation to any liability in respect of the Superannuation Fund 1 (including the sum of $100,000 alleged to be owed to the Fund).
Otherwise, each party shall retain any asset which is in their name or possession and indemnify the other in respect of any liability relating to that asset or otherwise in their name.
Either party have leave upon reasonable notice to seek the implementation of this order.
If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these paragraphs, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of s 106A of the Act to execute such documents on behalf of such party.
The wife’s Application in a Case filed 2 September 2019 and the husband’s Amended Response filed 25 October 2019 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Murray & Murray has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5665 of 2014

Ms Murray

Applicant

And

Mr Murray

Respondent

REASONS FOR JUDGMENT

Introduction

The parties, Ms Murray (“the wife”) and Mr Murray (“the husband”), do not agree on what property settlement order should be made. There is only one major asset left and that is the former matrimonial home at Suburb C in which the wife and children currently reside. The wife seeks to be able to retain the equity in that property.
The wife alleges that:
a)The husband has wasted a valuable asset, namely, his interest as a partner in the accounting firm H Firm, when he was forced to leave that firm having been involved in money laundering on behalf of clients;
b)The husband has repeatedly failed in his duty of timely and full financial disclosure; and
c)The husband has failed to disclose the true nature of his current earning capacity.
Upon the conclusion of the proceedings and whilst judgment was reserved, the wife filed an Application in a Case on 23 September 2019 to adduce further evidence. On 28 October 2019, I granted the wife’s application to adduce further evidence and invited written submissions from the parties as to what weight should be placed on that evidence. I reserved my reasons for that decision which I provide in a separate judgment published today.

Applications

Whilst the wife set out proposed orders in her case outline, she did not confirm during final submissions that they were the orders that she sought. Rather, the wife contended that on her balance sheet and due to “all of the unknown information and non-disclosure and wastage and future earning capacity factors”, she should receive 100 per cent of the identifiable net pool of assets.
The husband contended that on his balance sheet, the Court should make a finding of 57.5/42.5 per cent on contributions in his favour, with an adjustment that should not exceed 12.5 per cent for s 79(4)(d)-(g) considerations to the wife; a resulting adjustment of 55/45 per cent in the wife’s favour. In general terms, the husband sought that the Suburb C property be sold, the mortgage on that property be discharged and that the net proceeds distributed so as to achieve this division of the total net assets. The Minute of Order Sought by the Husband (Exhibit 53) is set out in full at Schedule 1.

Documents relied upon

The wife relied upon the following documents:
a)Her Affidavits filed 12 March 2018 (“first affidavit”) and 31 August 2018 (“second affidavit”);
b)Her Financial Statement filed 12 March 2018; and
c)Her Updated Financial Statement filed 31 August 2018.
The husband relied upon the following documents:
a)His Affidavits filed 23 February 2018 (“first affidavit”) and 31 August 2018 (“second affidavit”); and
b)His Financial Statement filed 4 September 2018.
The parties also relied upon a number of single expert valuations.

Short history

The husband was born in 1972, and is currently 47 years of age.
The wife was born in 1975, and is currently 44 years of age.
The parties commenced cohabitation in September 1999.
In 2004, the parties married.
In 2005, the parties’ first child, N, was born and is currently 14 years of age.
In 2007, the parties’ second child, O, was born and is currently 12 years of age.
The parties separated on a final basis in November 2012.

Credit

The husband

Having carefully watched and listened to the husband giving oral evidence, I conclude that in relation to any matter where the wife puts the husband’s evidence into issue, that unless the husband’s version is supported by an undisputed piece of corroborative evidence or is inherently likely, I am unable to accept the husband’s evidence.
There were many occasions where the husband said that he did not know something or where he was unable to remember something and I concluded he was being evasive. Bearing in mind that the husband is a chartered accountant who works with figures for a living, I give the following examples:
·The husband was not able to even give a round figure as to the fees which he had generated in the 10 months prior to the hearing, a period in which he had been working with his friend Mr EE at BB Pty Limited;
·The husband was unable to say whether or not he had won, lost or broken even in his regular and extensive gambling activities, saying that he simply didn’t track them. I find that inherently unlikely;
·The husband asserted in his most recent Financial Statement, filed 4 September 2018, that Ms CC (aged 20), the husband’s current partner with whom he lives and who earns $380 per week, receives “NIL” benefit from him and that he pays no expenses on her behalf. Again, that is inherently unlikely;
·The husband’s unlikely assertion that having washed significant amounts of money (nearly $6 million in cash as asserted by the wife but certainly an unknown amount in the millions of dollars), through various bank accounts which he controlled, he received no benefit from that activity apart from keeping existing clients content. As corroborative evidence of the husband’s statement that he received no such benefit, counsel for the husband relied upon the email from the police to Mr DD (Director of H Firm) dated 12 May 2017, which said that the focus of their investigations was one of the clients of the husband and “not [the husband] personally”. The submission was that this email corroborated that the husband received no personal benefit from this activity. The difficulty with that argument is that it ignores the fact that, with the benefit of a certificate under s 128 of the Evidence Act 1995 (Cth) (“the Evidence Act”), the husband admitted that he was involved in money laundering. The fact that the police say that the husband was not a target of their investigations, in circumstances where I infer he was cooperating with their investigation, does not overcome the fact that it was inherently unlikely he received no benefit from the activity. Also, having regard to Mr R’s evidence, the police may not have taken any action in respect of any funds if they were in fact, actually the husband’s funds which he was allegedly hiding from the wife;
·Whilst the husband submitted that his “credibility and reliability as a witness has not been impugned by the Further Evidence”, the husband had not, at any stage of the substantive hearing, disclosed that his long-time friend, Mr R, had been involved in the money laundering activities on the husband’s behalf. It was only with the further evidence adduced by the wife in the reopening of the case that exposed Mr R’s involvement;
·The husband said he did not know why it might have been that the majority of multiple cash deposits made on the same date at ATMs into his account were in sums of slightly less than $10,000. He said he thought it might be because the deposits were made out of hours when the bank branch was shut. Notwithstanding the husband’s professional qualifications, the husband feigned not knowing the reporting requirements in relation to a deposit of cash into a financial institution that exceeds $10,000 (see Part 3, Division 1 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth)). The husband’s evidence flies in the face of the evidence of Mr R, who gave evidence that the husband had instructed him to make deposits of under $10,000 at a time “so that it didn’t set off any alerts”;
·Notwithstanding the contention that Mr EE had loaned rather than paid the husband $388,000 in the 10 months that he had been working for him, sometimes in regular round instalments of $10,000, the husband did not call Mr EE as a witness. I accept the wife’s submission (made pursuant to the principles in Jones & Dunkel (1959) 101 CLR 298), that Mr EE’s evidence would not have assisted the husband’s assertion that it was a loan;
·The husband’s failure to provide evidence detailing the arrangements that had been made with a firm of lawyers who had formerly worked for him in this litigation with respect to outstanding fees was unsatisfactory. The husband’s costs memo (Exhibit 26) states that:
We note that these amounts exclude any billed amounts or outstanding fees with respect to fees incurred or billed by your prior solicitors at JJ Lawyers, of which we are unaware.
This assertion was made in circumstances where Mr BG, the author of this memo and the solicitor on the record at the trial, formerly worked at JJ Lawyers and acted for the husband throughout the period of the undisclosed billings. Counsel for the husband submitted that, on his instructions, the husband had paid no monies to JJ Lawyers;
·The husband’s tardiness in providing financial disclosure generally impacts upon his credibility as a witness. The husband was also not frank as to why he had not provided a volume of documents, which the wife only discovered by issuing subpoenas. For example, the husband did not produce any records (including bank statements) in relation to K3 Pty Ltd. The husband at all relevant times was the sole director and sole shareholder of that company. As a result of the wife issuing subpoenas, she discovered, over a two year period, significant amounts of cash being deposited into these undisclosed accounts. As mentioned above, the wife asserts that the amount of cash deposited into the various accounts is in excess of $6 million. I accept that millions of dollars were deposited in cash into accounts controlled by the husband. As already mentioned, the husband asserted that none of this was his money and that he received absolutely no benefit from any of these substantial deposits. The husband goes on to assert that for this reason he did not believe that he had to disclose these accounts. I do not accept that explanation. The more powerful and logical reason as to why the husband did not disclose these accounts to the wife was he simply did not want the wife to know about the history and magnitude of the cash transactions that had occurred in these accounts;
·The husband did not disclose his account in the name of J Pty Ltd to the wife. Significant amounts of money went in and out of this account over a substantial period without explanation. Again, the husband asserted that there was no need to give these accounts to the wife because he received no benefit from the cash transactions through this account. The husband at all relevant times had control of the J Pty Ltd Trading Account. There could be no question that he should have provided this paperwork to the wife. Again, the husband’s explanation for this non-disclosure is fatuous. The husband washed money through this account at a time when he thought that an earlier vacated final hearing would have concluded and he was free to place funds in this account in the knowledge that it would not be seen by the wife in any subpoenaed documents; and
·The husband failed to fully honour a commitment he made to his partners at H Firm to cease acting for various clients (for example, he continued to act for Mr FF who was associated with a brothel) against the directions of partners.

The wife

In comparison to the husband’s evidence, the wife gave evidence in a relatively straightforward manner. Having said that, this case is primarily about the history of the husband’s financial conduct and the history of the husband’s disclosure. There was very little controversy in any of the evidence given by the wife.

Mr R

Mr R is a long-time friend of the husband who has been residing with the husband since March 2019. He was cross examined during the wife’s application to reopen the case to adduce further evidence (Whilst the wife had been self-represented during the substantive proceedings, she had obtained representation for her application to reopen). Some of Mr R’s evidence was not disputed by the husband. Having said that, Mr R was not an impressive witness. Counsel for the wife cross examined Mr R about the circumstances in which he had assisted the husband in laundering approximately $950,000 in cash in 2016 by depositing it into banks branches and ATMs in New South Wales, Victoria and Queensland.
Contained in Mr R’s police statement of … 2018 and the transcript of Mr R’s evidence in the criminal proceedings, is the assertion by him that he did not believe he was laundering money for the husband as it was his belief that the money he was depositing was the husband’s money and that the husband was asking him to deposit the cash in order to hide it from the wife. In relation to this belief, Mr R gave inconsistent evidence during cross examination, first asserting that he had become aware that the money he was handling was not the husband’s as a result of a conversation with Detective Senior Constable W after he gave his police statement in … 2018 but then stating that he had not had a conversation with any police officer from the time he gave the police statement to when he gave evidence in the other Court.
The transcript which is in evidence includes an acknowledgment by Mr R of habitual, criminal offences involving dishonesty. Further, in cross examination, Mr R quite disingenuously feigned even as at 28 October 2019, a lack of understanding of what money laundering entailed.

There is one aspect of Mr R’s evidence which is in conflict with the husband’s evidence which I do accept. I accept the husband had instructed Mr R to make deposits in sums of less than $10,000 “so that it didn’t set off any alerts”.
I also infer that the basis upon which Mr R formed the view that the husband was attempting to hide cash transactions from the wife was from statements made to him by the husband.
Otherwise, Mr R’s police statement, criminal court evidence and oral evidence were so internally inconsistent that not much weight can be placed on any version. I accept counsel for the wife’s submission that on the face of the statement that Mr R gave to police and the evidence in the criminal trial, when tested about whether or not he had been involved in a money laundering activity, Mr R expressed his opinion about that in the present tense. That is, as at … 2018 and … 2019, he was still expressing the view that he had not been involved in any money laundering. That evidence was disingenuous.

Detailed chronology

The husband was born in 1972, and is currently 47 years of age.
The wife was born in 1975, and is currently 44 years of age.
In 1994, the husband founded the business, K Pty Ltd with two of his friends.
On 24 December 1997, Q Pty Ltd was registered.
On 20 October 1998, K Pty Ltd was incorporated and the husband was appointed as a director. At the time K Pty Ltd was incorporated the husband held a 10 per cent share.
On 25 February 1999, the husband ceased to be a director of K Pty Ltd.
The parties commenced cohabitation in September 1999. Both parties were employed at the accounting firm GG Firm at this time.
In 2000, the husband commenced acquiring interests in racehorses.
In December 2001, the husband purchased an apartment on HH Street in his sole name for $185,000, which was subject to a mortgage of $148,000. The husband was unable to remember if he received a Government grant as a first home buyer.
In late 2001, the parties moved into a rented apartment in Suburb NN.
On 1 June 2002, the Murray Family Trust was created pursuant to a Deed of Settlement with I Pty Ltd as the Trustee.
On 26 June 2002, I Pty Ltd was registered, with the husband as director and the wife and husband each holding a 50 per cent share.
In late 2002, the husband became an equity partner of GG Firm and had an income of $190,000.
In February 2003, the wife left GG Firm and moved to the UK to work. Approximately two to three weeks later, the husband fell from a four story building and sustained serious injuries. The wife returned from the UK to care for the husband who did not work for six months.
On 6 February 2003, the husband sold the apartment in HH Street to the wife’s mother.
In May 2003, the wife commenced work at KK Lawyers on a part time basis. The husband returned to work at GG Firm part time.
In July 2003, GG Firm merged with LL Firm and the husband became a full time, salaried partner in the new partnership and earned an income of $140,000. The wife commenced work at MM Pty Ltd on a full time basis and earned an income of approximately $90,000.
On 22 August 2003, a one third interest in the property at B Street, Suburb C (“the Suburb C property”) was purchased in the husband’s sole name for $880,000, with a mortgage to the National Australia Bank (“NAB”) of $792,000. It was originally purchased with two other people with a view of redeveloping it with an adjoining site that was ultimately not able to be acquired.
In late 2003, the parties moved into the Suburb C property.
In 2004, the parties married. The wife’s father gifted her $20,000.
In January 2004, the husband’s annual salary had increased to $200,000 per annum.
On 23 January 2004, the husband registered II Pty Ltd with Mr OO. The husband owned two thirds of the shares.
In April 2004, the parties commenced renovating the Suburb C property with the intent to sell it. A buyer was not found and the property was tenanted and the parties moved out of the Suburb C property. The wife privately managed the tenants to avoid property management fees.
In October 2004, an off the plan unit at PP Street, Suburb QQ (“the Suburb QQ unit”) was purchased for $520,000 in the wife’s sole name, subject to a mortgage of $468,000. The parties moved into the Suburb QQ unit.
In December 2004, the wife commenced maternity leave. She obtained a work license and commenced a practice at home.
In early 2005, the parties moved into the property at RR Street, Suburb C, which was owned by a friend Mr TT.
In 2005, the parties first child, N, was born and is currently 14 years of age.
In November 2005, the wife returned to MM Pty Ltd one day per week.
In 2006, the wife became pregnant, and then suffered a miscarriage and was hospitalised.
In early 2006, the wife ceased paid employment.
On 7 March 2006, the husband was appointed as director of II Pty Ltd.
On 11 April 2006, H3 Pty Ltd was incorporated.
In June 2006, the husband became 10 per cent equity partner at LL Firm, earning an annual income of $300,000.
On 13 June 2006, the husband was appointed secretary of VV Pty Ltd.
In 2007, the parties moved back into the Suburb C property.
In June 2007, the husband became 50 per cent equity partner at LL Firm, earning an annual income of $500,000.
On 2 July 2007, J Pty Ltd and J2 Pty Ltd were registered.
On 6 July 2007, D3 Pty Ltd was registered.
On 18 October 2007, the husband was appointed as director of J Pty Ltd.
On 1 November 2007, the husband was appointed as director of J2 Pty Ltd.
In 2007, the parties’ second child, O, was born and is currently 11 years of age.
On 20 March 2008, K2 Pty Ltd (which would later become K3 Pty Ltd) was registered.
On 30 April 2008, the husband invested in E Pty Ltd which subsequently failed and resulted in a debt associated with UU Pty Ltd No. 1 Pty Ltd (“UU Pty Ltd”). The husband entered into three loan agreements in respect of the UU Pty Ltd debt.
On 1 May 2008, H3 Pty Ltd changed its name to H4 Pty Ltd and H5 Pty Ltd was registered (Collectively, known as “H Firm”).
In mid-2008, the parties vacated the Suburb C property and commenced living in Suburb F in order to start a knock down, re-build of the property. The property was demolished in May 2010. The wife says she project managed the property’s new dwelling and managed all aspects of the design and build.
In June 2008, the husband became 75 per cent equity partner at LL Firm, earning an income of $600,000.
On 12 September 2008, the husband was appointed director and secretary of D2 Pty Ltd.
On 9 December 2008, the husband ceased as Director of J Pty Ltd but he was reappointed on 16 June 2009.
In 2009, the elder child had a medical episode.
In June 2009, the husband became 100% equity partner at LL Firm earning $700,000.
In December 2010, the parties moved into the completed Suburb C property.
In 2011, the elder child had a second medical episode.
On 22 June 2011, the parties separated for a brief period.
On 1 July 2011, the husband was appointed director of D3 Pty Ltd.
On 2 August 2011, the parties reconciled.
In August 2011, the wife recommenced managing and paying the household bills and keeping the household books.
On 13 September 2011, the husband ceased as secretary of VV Pty Ltd.
In May 2012, the husband took out a $200,000 loan with SS Bank (later AG Bank).
In November 2012, the parties separated on a final basis. The children were aged seven and five at the time. The husband moved into a rental property in Sydney. The wife says that the UU Pty Ltd debt balance at separation was $158,718.67.
In June 2013, the wife sold the Suburb QQ unit and received $193,820, after the repayment of the outstanding mortgage. The husband contends that the balance was retained by the wife. The wife contends that approximately $158,729 of the $193,820 was applied to the husband’s credit card debt. I accept the wife’s evidence about this.
In June 2013, the husband ceased working at LL Firm.
In October 2013, the husband commenced working as a partner at H Firm taking major clients from LL Firm with him. The husband borrowed $320,000 by way of an overdraft facility secured against the Suburb C property and loaned those funds to H Firm as working capital at an interest rate of 11 per cent. Monthly loan repayments from H Firm to the Murray Family Trust commenced.
On 20 November 2013, H Firm wrote to NAB stating that the husband’s annual income was “not less than $800,000”.
In January 2014, the wife commenced studying.
On 17 January 2014, the parties made arrangements for the children to spend each alternate weekend with the husband.
On 30 June 2014, the husband was appointed as a director of H3 Pty Ltd and was allocated 7000 out of 45,000 A class shares. I Pty Ltd was allocated 7000 D class shares. The husband was appointed as a director of Q Pty Ltd and was allocated 6 out of 38 ordinary shares. The husband was appointed a director of H Pty Ltd and H2 Pty Ltd.
Between September 2014 and March 2015, the husband cancelled the wife’s credit cards and only paid a total of $2,500 in support of the wife and the children over that period.
On 22 August 2014, the husband opened accounts with CBA in the name of K2 Pty Ltd (“the K2 accounts”). The husband did not disclose the existence of these accounts and the wife found out about them as a result of issuing subpoenas to third parties.
From 22 August 2014 to 23 May 2017, the husband made significant cash deposits in two K2 accounts. The wife asserts that these deposits totalled $1,013,265 and $1,060,430.
In the second half of 2014, the husband ceased making repayments to two out of three of the loan agreements associated with the UU Pty Ltd debt.
In September 2014, the wife could no longer afford the tax agent’s license and it expired.
On 2 September 2014, K2 Pty Ltd changed its name to K3 Pty Ltd. The husband is sole director and shareholder of K3 Pty Ltd.
In December 2014, the husband moved into rental accommodation in Suburb F.
In around February 2015, the husband stopped making regular repayments to the NAB mortgage and the overdraft secured on the Suburb C property.
On 24 February 2015, the husband withdrew $400 from the mortgage, triggering default interest rates.
On 25 March 2015, interim property, spousal maintenance and child support orders were made including that the husband be responsible for the loan repayments associated with the UU Pty Ltd debt. The husband did not comply with these orders.
On 4 May 2015, the wife commenced working part time at AY Pty Ltd earning about $32,580 per annum gross.
On 4 June 2015, the wife filed a Third Party Debt Notice to H Firm seeking recovery of spousal maintenance and child support arrears. This was not initially complied with.
On 30 June 2015, the husband’s taxable income totalled $823,419.
On 5 July 2015, the husband ceased as a director of II Pty Ltd.
On 3 August 2015, orders were made which directed income to the wife from H Firm. The monies received from H Firm were placed into a quarantined account (“the quarantined account”) and applied by the wife to mortgage repayments and rates, taxes and insurances on the Suburb C property, child support, spousal maintenance and other expenses associated with the children and the wife.
On 7 October 2015, NAB issued a Default Notice totalling $26,119.39 in respect of the mortgage against the Suburb C property. The wife paid the arrears from backdated spousal maintenance and child support payments received from H Firm in compliance with the Default Notice.
On 25 and 28 January 2016, the husband opened a number of bank accounts with CBA held by the D entities which were not disclosed to the wife. From 25 January 2016 to 29 September 2016, the husband undertook significant cash transactions from these accounts. The wife asserts that these deposits totalled $635,880 and $1,390,013.
On 4 April 2016, husband made a withdrawal of $265 from the mortgage, triggering default interest rates.
In June 2016, the wife ceased working for AY Pty Ltd in order to care for the children.
On 13 June 2016, the wife requested the husband pay a $5,000 deposit for the elder child’s enrolment in AZ School. The husband replied that he had no money. The wife used money from the quarantined account to make this payment.
On 28 June 2016, the husband made a withdrawal of $1,000 from the mortgage, again triggering the default interest rates.
In 2016, the parties divorced.
On 17 July 2016, the husband terminated the wife’s engagement with D2 Pty Ltd and on 18 July 2016, the husband emailed the wife informing her that her book keeping services were no longer required for the D and J Pty Ltd entities.
In September 2016, the wife set up a company known as AW Pty Ltd, a trustee company known as AV Pty Ltd and AX Family Trust.
On 26 September 2016, the motor vehicle 4 was sold for $20,000 and the husband unilaterally transferred $10,000 to himself.
On 29 September 2016, the H Firm Partners held a meeting to discuss with the husband issues relating to unusual cash deposits and other problems relating to his clients and practice management.
On 4 November 2016, the wife signed the Heads of Agreement in respect of the husband’s shares in K Pty Ltd for $800,000 and that amount was deposited in the NAB mortgage account.
On 31 December 2016, the husband ceased making repayments to all three of the loan agreements associated with the UU Pty Ltd debt, which was in breach of the 25 March 2015 order.
On 13 January 2017, the husband made a withdrawal of $110 from the mortgage, again triggering the default interest rates.
In February 2017, the wife had surgery.
In May 2017, the members of the Australian Crime Commission, the NSW Crime Commission and the NSW Police conducted a search of the husband’s H Firm office and seized documents in relation to their investigation of one of the husband’s clients, Y Company.
On 10 March 2017, the husband transferred funds by way of a redraw against the home loan account in the sum of $59,200.91, triggering penalty interest. The wife’s solicitors wrote to the husband demanding this money be repaid but that did not occur.
On 9 May 2017, interim orders were made permitting the husband to draw down $100,000 from the mortgage to pay legal fees and the parties were again restrained from removing any further funds.
On 12 May 2017, H Firm received an email from the NSW Police stating that “the focus of our investigation is linked to [Y Company] and its associated entities, not [the husband] personally”. Further emails were exchanged between the H Firm Partners and their legal team regarding the husband’s removal. One email from a Partner asserted that “[the husband] has simply not heeded the warnings from last year nor committed to his promises/obligations”.
On 23 May 2017, the husband closed the K Pty Ltd accounts and withdrew funds totalling $147,945.68.
On 30 May 2017, the H Firm Partners held a meeting with the husband. The minutes of those meetings include the following:
… [The husband] was to provide some additional details regarding transactions occurring in the bank account of his personal entity “K3 Pty Limited”. The issue related to significant cash deposits being made. [The husband] had previously indicated that the deposits were proceeds of personal gambling wins, however needed additional time to respond with clarity…
[The husband] advised that upon review most of the deposits were those of the former client Y Company (Mr A), who held the details of the bank account and was using it to deposit moneys into. He further noted that he regularly has significant winnings from gambling, including one of $93,000 from a $400 initial bet, with total winnings since January in excess of $400,000…
[The husband] understood the current feeling of his Partners in that the investigation may cause the Firm reputational damage, and would understand if the Partners asked him to leave.
Upon the conclusion of the meeting, the H Firm Partners unanimously agreed to remove the husband as a Partner.
On 30 June 2017, the husband ceased to be a Partner at H Firm. The husband ceased as director of Q Pty Ltd and all the H Firm entities.
On 4 July 2017, and unbeknownst to the wife, H Firm paid the husband $263,532.93 as a partial repayment of the Capital investment loan pursuant to a profit share agreement (discussed further below). The husband applied the majority of those funds to credit card debt and other post separation expenditure.
In mid-2017, the husband was served with a writ and statement of claim in respect of proceedings commenced by UU Pty Ltd in the Supreme Court of Victoria due to the husband’s default on the UU Pty Ltd debt.
From 1 July 2017 to 6 December 2017, the husband engaged in a number of private consulting jobs, earning approximately $267,745.27 during this period.
On 6 September 2017, additional orders were made in these proceedings restraining the husband from further depleting the asset pool.
On 10 October 2017, the wife paid the first term of the younger child’s school fees from the quarantined account.
In November 2017, the husband commenced employment at BB Pty Ltd and became one of two directors at the company. The other director and secretary is Mr EE.
In December 2017, the husband repaid the AG Bank loan.
In December 2017, the wife’s father lent the wife $3,000 as support for herself and the children.
On 6 December 2017, $65,000 was deposited into an account opened by the husband in the name of BB Pty Ltd.
In early 2018, the wife borrowed $6,980.58 from her father by way of the use of the father’s credit card to meet daily expenses.
On 29 January 2018, the husband leased a rental premises at WW Street in Suburb XX.
On 7 February 2018, the sum of $115,614 was deposited into the quarantined account by H Firm by way of partial payment of the husband’s profit share.
On 8 February 2018, further orders were made allowing the wife to access the quarantined account for the purpose of her and the children’s living costs.
On 9 February 2018, the wife paid $10,000 to her father in repayment of the debt she owed him.
On 14 March 2018, default judgment was entered against the husband in favour of UU Pty Ltd in the Supreme Court of Victoria proceedings in the amount of $246,028.
On 26 March 2018, the wife underwent a further surgery. The wife did not raise any issue concerning her ongoing health during the final hearing.
On 27 March 2018, the sum of $57,807 was deposited into the quarantined account by H Firm by way of partial payment of the husband’s profit share.
In April 2018, the parties were advised that CBA would be unilaterally closing the husband’s bank accounts.
On 16 April 2018, orders were made requiring the CBA funds of $79,165 to be deposited into the quarantined account.
On 25 July 2018, orders were made by consent which permitted the husband to drawdown from the mortgage $120,000 in order to partially satisfy the UU Pty Ltd debt. Orders were also made which allowed the wife access to the quarantined account that had been transferred from CBA.
On 3 August 2018, the husband entered into a Deed of Settlement in the sum of $190,000 with UU Pty Ltd by way of payment of $120,000 by 10 August 2018 and $70,000 by 30 December 2018.
On 13 August 2018, Child Support issued a debt certificate totalling $107,531.
On 24 August 2018, $120,000 was transferred from the NAB mortgage to pay the UU Pty Ltd debt.
On 17 – 21 and 27 - 28 September 2018, the final property proceedings was heard and the orders and Reasons for Judgment reserved.
On 28 October 2019, the wife’s application to re-open the final property proceedings and adduce further evidence was allowed and the following orders were made:
1. A certificate pursuant to s 128 be given to Mr R for the evidence he has given in court in these proceedings today.
2.In the wife’s Application in a Case filed 23 September 2019, leave be granted to the wife to reopen the case and adduce the following further evidence:
i)The statement of Mr R provided NSW Police Force on … 2018 which has been marked Exhibit 55;
ii)The transcript of proceedings in the NSW Criminal Jurisdiction in the jury trial of …, pages 298 – 344 which is Exhibit 54;
iii)The oral evidence of Mr R given on 28 October 2019 in the Application in a Case.
3. My reasons for making order 2 above are reserved.
4.By 4 pm 1 November 2019, the wife file and serve written submissions as to how the further evidence might affect the result she had previously sought.
5.By 4 pm 8 November 2019, the husband file and serve written submissions as to how the further evidence might affect the result he had previously sought, including responding to any submission made by the wife.
6.By 4 pm 15 November 2019 the wife file and serve any submission in reply.

On 1 November 2019, the Court received the wife’s written submissions as to how the further evidence might affect the property proceedings (which I now mark Exhibit 60).
On 8 November 2019, the Court received the husband’s written submissions as to how the further evidence might affect the property proceedings (which I now mark Exhibit 61).

Mr R’s evidence

On 28 October 2019, the wife was granted leave to reopen her case to put into evidence the following:
a)A statement by Mr R given to police dated in 2018;
b)Oral evidence given by Mr R in a criminal trial in 2019; and
c)Oral evidence given by him on 28 October 2019 in this Court.
In summary, as a result of the above evidence, the following things became apparent:
a)Mr R had acted as an agent for the husband in part of his money laundering activities, having, in general terms, deposited at the request of the husband:
i)An amount of $550,000 in cash into accounts nominated by the husband in around January or early February 2016; and
ii)A further $350,000 to $400,000 in cash approximately 4 to 6 months later;
b)That the husband had given Mr R a list of approximately seven bank accounts to deposit the cash into and had told Mr R to “Make sure you keep it under $10,000 at a time” so as to not set off any “alerts”;
c)At paragraph 17 of the police statement, Mr R notes that:
I would use the following 12 branches: … and some other places I can't remember exactly. The branches and ATM's may not have been in those exact suburbs but they would have been close to those suburbs.
d)Mr R had indicated that, in respect of the second tranche of deposits of $350,000 to $400,000 he was “pretty sure” that he had been given a Westpac bank account number; and
e)As mentioned above, Mr R’s evidence was that whilst he had not asked the husband why he wanted him to deposit the cash in this manner, he inferred that it was because the husband was trying to hide money from his wife.
Exhibit 59 is an aid memoire tendered by the wife during the hearing of her application to reopen the case. The document cross references the locations of the cash deposits which are shown in the bank statements which the wife tendered in evidence in the substantive proceedings with the locations that Mr R disclosed at paragraph 17 of his police statement. A further aid memoire was also sent as part of the wife’s further written submissions which updates Exhibit 59. The husband made no objection to the admittance of the further aid memoire and I mark that document Exhibit (62). I am generally satisfied that the summary in the aid memoire accurately records the evidence of deposits into the named branches during the time period of February to March and July to September 2016. The wife submits that the aid memoire demonstrates that out of almost $1.4 million worth of cash deposits during this time period, only $125,950 are in locations specified by Mr R in paragraph 17 of the police statement.
The wife, in her written submissions, argued the following:
50. In February 2016 there were 62 cash transactions of which Mr R’s named branches account for only 10. Of the remaining 52, 16 were at Suburb BH and 6 at Suburb C.
51. It is unlikely that Mr R would be unable to "remember exactly" that Suburb BH was one at which he had made 16 out of 55 transactions.
52. The conclusion should be drawn that the deposits for the "named" branches do not account for the bulk of the “S” deposits in the First Tranche.
53. Mr R’s “named” branches account for none of the July to September 2016 cash deposits.
54.      In that July to September period there were:
(1)      36 transactions at Suburb C;
(2)      15 transactions at Sydney;
again, the submission is that it is inherently unlikely that Mr R couldn't "remember exactly" a branch Suburb C, where he had effected such an apparently large proportion of the deposits in the Second Tranche.
55. The unaccounted for “S” deposits are assets of the Husband that ought to have been but were not disclosed by him.
56. The evidence of Mr R if accepted establishes the existence of assets apparently of significant (but unqualifiable) value not previously disclosed by the Husband.
The wife submitted that based on the further evidence of Mr R and the aid memoire, an amount of $950,000 should be added back against the husband onto the balance sheet on the basis that the Court would conclude that the husband was lying when he indicated that he received no benefit from the monies. As mentioned above, the husband’s contention was that he had received no benefit from the funds, having washed significant amounts of money, through various banks accounts which he controlled, only to keep existing clients content.
Whilst Mr R does nominate a series of locations in paragraph 17, he also concludes that there were some “other places” which he cannot remember. Mr R was not cross examined by counsel for the wife on paragraph 17 of his police statement. Further, the NAB accounts which record significant and multiple cash deposits made in this time period do not record the locations in which those deposits were made.
The husband, in his written submissions (Exhibit 61), submitted the following:
7. The Husband submits that the Further Evidence does not establish any of the contentions set out in the Wife’s Submissions. In particular, the Further Evidence does not establish:
a)the identification, whereabouts, source or value of the Alleged Further Assets;
b) that the Alleged Further Assets were assets of the Husband or the marriage;
c)that the Alleged Further Assets are assets of the Husband or the marriage;
d)that the Husband has concealed any assets or resources; or
e)that the Husband is not credible or reliable witness.
I shall take Mr R’s evidence into consideration when making findings in relation to whether the husband has satisfied his obligations of full and frank disclosure and findings in respect of his credibility. Whether the evidence, in its totality, is sufficient to place an amount of monies on the balance sheet is dealt with below (at [336] to [342]).

Full and frank disclosure by the husband

The law

A party to property proceedings is required to make a full and frank disclosure of their financial position (Oriolo & Oriolo (1985) FLC 91-653; Black & Kellner (1992) FLC 92-287 (“Black & Kellner”); Weir & Weir (1993) FLC 92-338 (“Weir & Weir”)). That case law is reinforced by the Family Law Rules 2004 (Cth) (“the Rules”), specifically, Parts 13.01 and 13.02.
In Weir & Weir, the Court stated at 79,593 that:
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.
Whilst this general statement is often quoted, it is important to engage in the particular facts of the non-disclosure and the inferences that should be drawn from them. There are those cases where a finding of non-disclosure is no more than one which complicates the fact finding process (see Franklin & Ennis [2019] FamCAFC 91 at [9]). There are other cases where the nature and extent of the non-disclosure make the approach described in Weir & Weir thoroughly permissible (also see the discussion in the English cases referred to in Al Baker & Al Baker [2016] EWHC 2510 (Fam) at [17] – [18]).

Discussion

I have already mentioned some examples of the husband’s lack of full and frank disclosure in the discussion about the husband’s credit, money laundering and other aspects of the husband’s financial circumstances. I further discuss specific issues of non-disclosure when dealing with various items on the balance sheet.
A very large amount of paper has been generated in this hearing. It is a product of the complex and diverse way in which the husband conducted his financial affairs.
The wife issued a significant number of subpoenas. She discovered many relevant documents which the husband had not provided to her.
Significantly, the wife discovered a number of bank statements which the husband had not provided her which showed significant cash deposits being made into those accounts. The husband did not put into evidence documents which would explain where the significant amount of cash that came through accounts that he controlled ended up. He simply asserted that he had not benefited from any such sums.
The wife submitted that as at December 2017, the husband had disclosed a total of four accounts held by the CBA, and after issuing a subpoena, the wife discovered a further seven accounts in the husband’s name. The wife summarised in Exhibit 35 the bank and gambling accounts which she knew were in the husband’s name. That document asserts that out of the 29 accounts, around 15 of those accounts were not disclosed to the wife and were discovered by way of subpoena. In final submissions, the wife argued that the Court should find that, on the balance of probabilities, there are other accounts which the husband has not disclosed in these proceedings.
This submission is bolstered upon the further evidence contained in Mr R’s police statement and criminal court transcript, which indicated that Mr R had thought that one of the accounts he had deposited money into on behalf of the husband may have belonged with Westpac. There was no evidence in the substantive proceedings of a Westpac account containing multiple cash deposits (see tab 59).
Significantly, the husband did not disclose at the hearing Mr R’s involvement in the money laundering activities. Mr R’s evidence raises unanswered questions which are not assisted by the husband’s financial disclosure.
Whilst the husband might claim that he eventually produced some significant primary documents, there are examples where the wife’s requests had not been complied with, in one case for four years and in another case for two years and as these reasons otherwise demonstrate, there was still a considerable fog over the husband’s financial circumstances at the time of the trial.
The wife asserted, and I accept, that she struggled throughout the proceedings to obtain complete documentation from the husband relevant to his financial circumstances. The wife picked out as an example an email that she had sent to the husband’s lawyers on 30 October 2017. That email asked for copies of all correspondence between the husband and H Firm or their authorised representative, sent or received between 1 July 2017 and the date of that letter and advice of any income earned or received by the husband or any entity controlled by him since 1 July 2017. The husband did not know whether or not he had given instructions for information and documents to be sent to the wife in response to that request. The wife called for any such response. There was no satisfactory response to that call.
Further, the wife asserts that the husband did not disclose the consultancy fees that he received in the second half of 2017. The wife discovered these payments as a result of issuing subpoenas. She filed an affidavit disclosing the husband’s source of income on 12 January 2018. The husband did not inform the wife or the Court in respect of these consultancy fees until he filed his first affidavit in February 2018.
The wife also tendered the husband’s Residential Tenancy Application for his current accommodation dated 21 December 2017 (Exhibit 28) which she obtained through subpoena. The application indicates that the husband’s weekly rent is in the sum of $1,850 per week and shows that the husband had asserted to the agent that his income at that time was $750,000 per annum. This is in the circumstances where the husband’s evidence is that he is receiving $150,000 gross per annum from BB Pty Ltd and that he has no other major income. As I discuss in further detail below (see [387] to [390]), I do not accept the husband’s explanation that the $750,000 was money related to H Firm in addition to the $150,000.
I also take into account the history of the litigation and the husband’s significant non-compliance with orders. The husband’s conduct led to an order having to be made on 3 August 2015 for monies owed to the wife by way of spousal maintenance and child support to be paid directly from H Firm when the husband’s profit share payments fell due.
On a number of occasions, Mr YY, the single expert tasked with valuing a number of the parties’ assets including the husband’s interest in H Firm, commented on his inability to verify aspects of the financial status or the dealings of entities associated with the husband (see Mr YY’s report dated 26 August 2018).
I am not confident that the assertions made by the husband in his most recent Financial Statement reflect the husband’s true financial circumstances. This is a case which invites the approach taken by the Full Court in Black & Kellner and Weir & Weir. Accordingly, I do not have to be too careful in making any assumptions or drawing any inferences in the husband’s favour as to what are his actual financial circumstances.

Attempting to understand the history of the husband’s financial circumstances

The husband’s borrowings from Mr EE

The wife took the husband to tab 50 of her second affidavit which contains the statements for the husband’s CBA account ending #...81 for the periods of December 2017 to April 2018. The husband agreed that this was the account into which his remuneration from BB Pty Ltd had been paid. The account shows the receipt of regular income per month of $7,992 from BB Pty Ltd. In addition, the husband also received, in that four month period, payments from BB Pty Ltd of $8,000 on 21 December; $10,000 on 31 January; $10,000 on 6 February; and $10,000 on 21 March. The husband gave evidence that these regular amounts were not income received from BB Pty Ltd but loans from BB Pty Ltd’s director and secretary, Mr EE. The husband’s rent was also being paid directly by Mr EE. There is another credit of $2,500 on 3 April 2018 which is marked “loan repayment”. The husband did not know what the words “loan repayment” meant. This may be a small part of the amount of money that Mr EE has alleged to have lent the husband which he says is now at $388,000. Mr EE was not called as a witness by the husband. As discussed elsewhere, I do not accept the husband’s evidence about his debt to Mr EE.

Money Laundering

J Pty Ltd accounts

On the fifth day of the hearing, the husband was taken to a number of statements of the J Pty Ltd’s NAB account #...63 (tab 110 of the wife’s first affidavit) which showed the following cash deposits:

*Date*	*Amount*	*Date*	*Amount*	*Date*	*Amount*
8.1.16	$45,000	14.1.16	$40,000	18.1.16	$60,000
19.1.16	$8,000	21.1.16	$20,000	27.1.16	$10,000
3.2.16	$19,800	12.2.16	$15,000	17.2.16	$5,000
19.2.16	$9,500	19.2.16	$10,000	23.2.16	$5,300
23.2.16	$9,750	23.2.16	$9,800	3.5.16	$9,550
3.5.16	$9,600	3.5.16	$9,700	4.5.16	$9,800
5.5.16	$9,900	6.5.16	$9,850	12.5.16	$9,700
12.5.16	$9,800	12.5.16	$9,850	16.5.16	$9,900
19.5.16	$9,500	19.5.16	$9,900	23.5.16	$9,750
23.5.16	$9,800	24.5.16	$9,250	13.7.16	$10,000
10.10.16	$9,800	13.10.16	$9,900	14.10.16	$9,600
17.10.16	$9,700	19.10.16	$9,850	20.10.16	$9,350
21.10.16	$8,850	21.10.16	$9,750	27.10.16	$2,390
2.05.17	$3,000

The NAB account statements do not record which locations the ATM cash deposits were made. The cash deposits in the wife’s reconciliation at tab 111 are in excess of $500,000. It is clear from the above table that there are about 40 transactions, the majority of which are for slightly less than $10,000.
The wife asserts at paragraph 371 of her first affidavit that between 25 January 2016 and 29 September 2016, deposits totalling $677,429.67 (and all but $5,000 by way of cash) were made into a CBA account (#...53) in the name of J2 Pty Ltd. Looking at those account statements, the deposits have been made at 23 locations (See tab 107). Money was then transferred out to unidentified recipients.
The husband conceded that a large amount of money had been deposited in cash into his accounts and had been transferred out electronically. The husband asserted that these monies were “not related” to himself and confirmed that any cash deposited into the account in this period was not part of the ordinary trading activities of J Pty Ltd. When asked what the monies were for, consistent with earlier answers, the husband indicated that he did not wish to answer questions about the entries on the bank statement as they were “under the subject of investigation”. At that point, I indicated I wished to ask the husband whether or not the entries on that page were “a form of money laundering?” The husband was afforded the protection of a certificate under s 128 of the Evidence Act.
Upon receipt of a s 128 certificate, the husband conceded that, it was at least substantially true, that the cash deposited into the J Pty Ltd account from January 2016 was associated with money laundering. The name that the husband gave for the person who was providing all of this cash was Mr U who was alleged to be a property developer. The husband asserted that from January 2016 to July 2017, he had no idea that he was involved in a money laundering operation. When asked why, as an accountant, he did not think this activity was strange, the husband replied that he did think it was “weird” but was merely acting “per the client’s instructions”. I do not believe the husband did not understand the nature of these deposits at the time.
The wife took the husband to a document entitled “Questions for [the husband] to respond to” which was prepared by the H Firm Partners in preparation of a meeting between them and the husband in September 2016 (Exhibit 38, page 148). At that time, H Firm had not grasped the full extent of the amount of money going through the husband’s accounts. The document contains the following question:
Your company [J Pty Ltd] made two payments to the [ZZ Trust] (an entity associated with [Mr U]), one for $63,000 on 21/1/16 and another for $61,200 on 9/3/2016. You had previously said that these were loan repayments, yet the [ZZ Trust] accounts show no evidence of a loan to you or your entities.
The husband confirmed in cross examination that he had made those two payments. The wife took the Court to what she identified as to be the last withdrawal associated with the money laundering in the J Pty Ltd account in the sum of $500,000 on 4 July 2017. It is clear from the above table that the transactions continued even after the H Firm Partners questioned the husband about the suspicious activity.
Exhibit 38, contains further questions that H Firm asked of the husband in September 2016 regarding his compliance, governance, debts and “unusual ethical and legal behaviours”. They include enquiry into two cash deposits made by the husband into the firm’s trust account of $50,000 and $5,000 and why he directed a senior member of staff to make a cash deposit of approximately $15,000 via an ATM into a client’s bank account.
H Firm were also aware of the “litany” of examples of multiple cash deposits to ATMs in bank accounts across the Y Company Group in June 2016, being on 23 June 2016, 10 separate ATM transactions totalling $91,400; on 23 June 2016, 3 separate ATM transactions totalling $29,900; on 28 June 2016, 9 separate ATM transactions totalling $82,200; and on 20 June 2016, 5 separate ATM transactions totalling $49,860.
Y Company is a company which provides property maintenance services. Mr A and Mr Z were two of the directors of Y Company. Mr R, who is around 47 years of age, currently says he works at Y Company as an apprentice.

The H Firm Partners asked the husband to explain why the client made deposits to ATMs and not over the counter (see page 149 of Exhibit 38). They also raised with the husband why he had given Mr A of Y Company, security car parking access to the H Firm’s building premises. The husband’s explanation was that he had just come in one time and it wasn’t unusual (that flies in the face of the H Firm Partners seemingly being concerned about its unusual nature).
It took the husband three months to formally respond to the questions raised by the H Firm Partners in September 2016 in a document entitled “H Firm Governance Review – Responses from [the husband] (20 Dec 16)”. Contained in the document are the following entries:
[Question]: You have advised that a director of Y Company has indicated that the cash has come from clients who pay cash in the [building] game. If that is the case, how have the cash bankings been treated inside the books of Y Company – as either revenue or a credit to a debtors account to offset invoices already raised? If not, please explain how they have been treated.
[The husband’s response]: The cash has been treated as revenue in the books of the accounts of Y Company.
[The H Firm Partner’s further questions/comment]: Question answered, but does not really explain why a [building] client is receiving large sums of cash.
H Firm also noted that the husband gave no answers to their questions about the two cash deposits through the trust account.
As mentioned above, in September 2016, the H Firm Partners enquired as to why the husband requested a senior member of staff to deposit an amount of $15,000 in cash into an ATM on behalf of a client. The husband’s explanation was that it was cash received from a client who was in a hurry and the staff member agreed to go and do the errand. The husband denied that he had told the staff member to put it into an ATM.
The husband, when asked for an explanation as to why Y Company might be using ATMs to deposit amounts just under $10,000, speculated that it may have been because it was before or after hours and the bank was closed. The husband denied being aware of the reportability of a $10,000 amount in cash. The husband protested that he did not know what was happening in his client’s account at that time. I do not accept the husband’s protestation.
The husband accepted that the H Firm Partners had warned him against continuing to act for certain clients but said that he had, in fact, ceased to act for certain clients. These answers were particularly vague. The information contained in Exhibit 38 evidences the H Firm Partners continuing and ongoing concerns about the husband not heeding warnings that the partnership had given him.
I find that in September 2016, the H Firm Partners raised concerns about Y Company depositing large sums of cash in amounts less than $10,000. At the same time, the husband himself was receiving and transferring large sums through his J Pty Ltd account. I do not accept the husband’s evidence that he was not, at that stage, aware that the purposes of these transactions were connected with money laundering. I find by the time the H Firm Partners raised this issue with the husband in September 2016, he was well aware that money laundering was involved. As indicated, I do not accept that the husband had no idea that these transactions involved money laundering until early 2017.

K2 Pty Ltd (later known as K3 Pty Ltd as at 2 September 14)

The husband is the sole director and shareholder of K3 Pty Ltd. The wife complains that the husband has not disclosed any financial statements or tax returns for this entity and that she only discovered the bank accounts associated with K3 Pty Ltd through subpoena. Whilst the wife had the account statements for the CBA accounts, she did not have the ANZ statements for K3 Pty Ltd.
The wife asserts at paragraph 421 and 423 of her first affidavit that upon issuing a subpoena to CBA she discovered two accounts under the name of K2 Pty Ltd / K3 Pty Ltd which recorded numerous transactions and significant cash deposits and withdrawals. The wife put to the husband (as she recorded at page 47 of Exhibit 35) that he had opened three ANZ accounts under the name K3 Pty Ltd (being business premium saver account #... 29, business extra account #...82 and a business online saver account #... 02). These accounts had not been disclosed by the husband. The husband at first could not say whether he was a signatory to those accounts but then indicated that the ANZ accounts were opened when the CBA had removed their banking services following police raids associated with money laundering. Those CBA accounts (being business transaction account #...85 and business online saver account #...93) were also not disclosed to the wife and were discovered by way of subpoena.
From 22 August 2014 to 23 May 2017, CBA account (#...93) under the name of K2 Pty Ltd/ K3 Pty Ltd records multiple cash deposits, mostly under the amount of $10,000, at 26 locations.
The second CBA account (#...85), shows further, multiple cash deposits from locations in 30 locations.
The husband was unable to give any indication as to the magnitude of the amounts of money that he had moved from the CBA to the ANZ accounts upon the closing of his bank accounts with CBA.
The husband asserted he obtained no benefit from these accounts (and the accounts associated with D Group which is discussed below), stating at paragraph 32 of his second affidavit:
The transactions made in the … accounts were not related to activities of those companies under which the accounts were opened. Further I do not hold a beneficial interest in any of the bank accounts listed … nor did I receive any benefit from the funds that moved in and out of those accounts.
For reasons which I discuss elsewhere, I am not prepared to accept that that is so.

D Group accounts

The wife asserts at paragraph 402 of her first affidavit that the various bank statements associated with the D Group record significant cash deposits and other transactions. She records at paragraph 405 that between 25 January 2016 and 29 September 2016, deposits were made into a CBA account held by D2 Pty Ltd (#...96) totalling $635,880; that $461,233.64 of that $635,880 was transferred to another CBA account in the name of D2 Pty Ltd (#...88); and that in total (including the $461,223 transferred between CBA accounts) $1,390,013.64 was deposited in CBA account #...88.
Tab 121 (account #...96) shows multiple cash deposits mostly under $10,000 made in 3 locations.
Tab 123 (account #...88) shows further, multiple cash deposits mostly under $10,000 made in 19 locations.
When looking at the two D Group accounts (#...96 and #...88), the dates and locations of the cash deposits line up with the dates and locations of the cash deposits in the J Pty Ltd account at tab 107 (for example, the J2 Pty Ltd account at tab 107 and the D2 Pty Ltd account at tab 121 both show monies deposited at Sydney on the same date).
As mentioned above, the husband asserts (but I do not accept) that he did not receive any benefit from these funds and that the entirety of the cash transactions in these accounts were not related to the activities of D Group.

The ANZ deposit of $100,000 in December 2017

The husband was asked questions about the documents behind tab 64 of the wife’s second affidavit. Those documents show that the husband opened a bank account in the name of the Murray Family Trust on 5 December 2017. On that day, $100,000 was deposited into that account (seemingly in cash). On 12 December 2017, three withdrawals were made from this account (again, seemingly in cash) in the sums of $15,000, $25,000 and $60,000.
The husband discusses these transactions (at a time when he was aware that the wife had discovered this account by way of subpoena; the husband had not voluntarily disclosed this account) in paragraph 33 of his second affidavit as follows:
(a)On 5 December 2017, a deposit of $100,000 was made into this account. This money was provided to me by way of gift from a client. I connected this client with a buyer with respect of an off-market property sale. In early December 2017, I had a conversation with the client to this effect:
Client: [Mr Murray], I was very grateful for your assistance. I would like you to have a gift of $100,000 as a token of my appreciation.
Me: There’s no need, but thank you.
(b)On 12 December 2017, I withdraw $100,000 from this account by way of three separate withdrawals of $15,000, $25,000 and $60,000. These withdrawals were associated to the affairs that are the subject of Other Proceedings. I informed a representative from the relevant police agency of my intention to make the withdrawals and subsequently confirmed with them that I had made the withdrawals.
So in the one paragraph the husband asserts that he was given a gift of $100,000 as a bonus for services rendered but on the other, that the deposit was part of a money laundering operation seemingly distinct from other transactions relating to money laundering discussed elsewhere.
At the trial, the husband denied that he was responsible for the transactions, saying that they were made by somebody other than him. He would not give any further details, sighting the ongoing police investigation and reiterating “none were for myself or for my benefit”. Given my inability to accept what the husband says, it is not possible to make an assessment of what interest the husband had in the deposit of $100,000 (and in other cash deposited to accounts in his name).

Other ANZ Accounts

Overall, the wife asserts that she discovered six ANZ accounts that were not disclosed by the husband. As can be seen from the discussion above, the husband did not provide much information about the undisclosed ANZ accounts (see tab 60 and tab 62 of the exhibits to the wife’s second affidavit). In addition to the husband’s wages from BB Pty Ltd and the deposits from Mr EE, there are also deposits which look like gambling wins. I accept the husband did not give these accounts to the wife and I conclude he didn’t want her to see them. They do not assist me in understanding the history of the husband’s financial transactions.

The husband’s personal loans

In the husband’s most recent Financial Statement filed 4 September 2018, the husband asserts that he owes, by way of personal loan, Mr AS the sum of $20,000 and Mr A the sum of $50,000.
However, in the husband’s answers to the H Firm Partners’ email dated 20 December 2016, he gave the following answer to the question about whether or not he borrowed money from clients either directly or indirectly over the past three years:
“[Mr AS] $50,000 – now repaid; [Mr A] $20,000 – now repaid”
So, the husband asserts in his most recent Financial Statement that the amounts that he told the H Firm Partners he had repaid have been re-borrowed but those amounts are exactly the reverse of what he first said they were.
I have little confidence in the husband’s assertion that he owes money to Mr A and Mr AS in the sums now asserted absent any corroborative evidence that that is so.

The husband’s involvement with Mr EE in J Pty Ltd

I deal generally with the valuation of the interest in J Pty Ltd in the discussion at items 5 and 6 of the balance sheet (see below). The husband’s disclosure about his involvement with Mr EE in this development meant that the conclusions I have reached are only on the information provided by the husband.
By the end of the hearing, I had no confidence that I knew the true story about the extent of the husband’s financial interest in the J Pty Ltd and his relationship with Mr EE in that regard.

The husband’s interest in D Group

The valuation of this interest is dealt with in the discussion at item 7 of the balance sheet. As noted below, Mr YY struggled to get consistent information from the husband when attempting to value this asset.

Mr YY’s valuation of the husband’s previous interest in H Firm

The valuation of the husband’s interest in H Firm was made by Mr YY on the limited information obtained from H Firm. This led to a situation where, ultimately, the parties agreed upon what the value of this interest would have been had the husband remained at H Firm (see discussion at balance sheet item 10 below).

Conclusion about the history of the husband’s financial circumstances

Notwithstanding the volume of paper the wife has collated, particularly from third parties, I accept that she, even with her training, has been unable to successfully unpick the detail of the history of the husband’s financial dealings. I have been equally unsuccessful and, in the end, the husband’s failure to provide full and frank disclosure made the task unachievable.

The circumstances in which the husband left H Firm

As already mentioned, the husband ceased to be a partner at H Firm on 30 June 2017. Whilst the husband joined H Firm in October 2013, subsequent to the parties separating on a final basis, his position as partner was secured through the clients he brought from LL Firm, which he had built during the period of the relationship with the wife and $320,000 loaned to H Firm as working capital obtained by way of an overdraft facility secured against the Suburb C property. Contained in Exhibit 38 is a “Notice of Removal from Partnership” dated 7 June 2017 signed by six H Firm Partners which outlined the following reasons for the husband’s removal:
a)Suspicious cash transactions without adequate explanation (concerning K3 Pty Ltd, D Pty Ltd and Y Company);
b)Placing the partnership in serious jeopardy and/or disrepute by acting for persons against the direction of Partners and after giving an undertaking to no longer act;
c)Inadequate practice management including that Y Company owed the partnership $264,061; and
d)Lack of good faith by failing to exercise good judgment and otherwise engaging in improper conduct.
Subsequent to the husband leaving H Firm, he was entitled to the return of his working capital and the profit shares. This was an amount, according to Mr YY’s report (see paragraph 292) of $551,228. As noted elsewhere, the amount that the husband received did not take into account the clients the husband took with him when leaving H Firm. It did, however, take into account the Y Company debt which the husband had agreed would be taken from his overall entitlements upon his departure from H Firm (see [232] – [236]). Mr YY records, at paragraph 292 of his report, that the amount deducted was $240,056 (as opposed to the $264,061 as mentioned in the Notice of Removal above).

Clients the husband may have taken with him from H Firm

When the husband left H Firm he brought five clients with him to BB Pty Ltd. The husband has been working with three of these clients, namely, Company AA, Company AB and Company AC for over ten years. The husband has been reluctant to disclose what level of fees were generated on an annual basis from these clients. That reluctance started in response to specific questions made by Mr YY in writing in an attempt to obtain details for his report.
On 16 August 2018, Mr YY, amongst other things, asked for “the approximate quantum of the annual fees paid to H Firm by those three clients and whether or not there would be … any material variation in the amount that would be paid annually to BB Pty Ltd.” On 21 August 2018, the husband’s solicitors responded that “The husband does not know and cannot provide an approximate quantum of the annual fees with respect to those three clients. Accordingly, the Husband cannot provide an opinion as to the [sic] whether there is likely to be any material variation of the fees that would be paid annually to BB Pty Ltd”.
Similarly, the husband in the witness box tried to downplay the value of these clients on a continuing basis saying he was unable to estimate current levels of fees generated by work being done for them. The husband conceded initially that it would have taken him 20 minutes to work out the answer to Mr YY’s question but he said on reflection Mr YY’s question was probably asked after he left H Firm and therefore, he didn’t have the ability to look at his billings or management reports to provide an accurate answer. The husband denied the suggestion by the wife in cross examination to the effect that it is a key performance indicator in an accounting firm such as H Firm to track fees rendered from time to time.
Contained in an email sent by the husband on 20 December 2016 (Exhibit 38, page 316) are his responses to the questions asked of him by the H Firm Partners. One question the husband was asked was “what pressing client matters do you currently have on foot and anticipated timelines to complete?” In the course of answering that question, the husband gave details that the majority of the work that he was doing was for the three main clients Company AB, Company AA and Company AC saying, that “These are the 3 key clients which would make up 80% of my fees”. There is a note that “my fees” should be read to mean the husband’s time (Exhibit 38, page 167).
Whilst the husband confirmed that he had taken those three clients to BB Pty Ltd, he asserted that he no longer does work for Company AA.
The wife submitted that if the husband was achieving the minimum fee requirement of H Firm of $2.5 million and 80 per cent of that was attributable to these three clients, then the husband would have taken around $2 million worth of fees/time per annum to BB Pty Ltd. From the information that Mr YY had available, he inferred that the husband had achieved his minimal fee targets in 2014 and 2015.
Contained in the H Firm Partners’ response to the husband’s answer (Exhibit 38, page 167) is the following analysis of the value of these three main clients in fee generation to the team which the husband managed:
In 2016 the fees for each of these clients was $702,311 [Company AB], $494,835 [Company AA] and $169,161 [Company AC] respectively.
Total [the husband’s] group fees for 2016 were $2,816,568. Therefore above 3 clients account for 48.5%...
2016/2017 YTD time input on [the husband’s three main clients] is $450,110 [Company AB], $317,865 [Company AA] and $147,148 [Company AC] respectively. Total YTD time on all [of the husband’s] clients = $1,926,789. Therefore above 3 clients account for 47.5% of total [the husband’s] fee.
It is clear from the above evidence that the husband brought to BB Pty Ltd from H Firm clients that generated significant income (at least $900,000 to $1.3 million based upon the 2016/2017 figures). Handwritten notes on Exhibit 38 from the meeting between the husband and the H Firm Partners dated 20 December 2016, indicate these fees could have been as high as $2,450,000. Notwithstanding that the husband now asserts he is no longer working for one of these clients, he is still providing fees for BB Pty Ltd which far exceed his current stated income of $150,000 gross per annum.

Y Company Security debt of $240,056

Part of the calculation of the amount owed to the husband by H Firm upon his departure (the figure of $551,228), was arrived at after the husband had agreed that the partners would deduct an amount of $240,056 as a debt from Y Company which the partnership was not prepared to absorb as a bad debt.
As mentioned above, Y Company provides property maintenance services.
The husband indicated that initially H Firm was attempting to collect the debt. The wife took the Court to an email from H Firm, in response to a number of questions asked by her, which stated:
We have been undertaking a process to recover debts on clients previously managed by [the husband]…
[The husband’s] procrastination and delay in attending to our requests is increasing the risk of non-recovery of the debt, and delaying our ability to finalise the calculation of entitlements.
The debt has now been attributed to the husband and if recovered, it will come directly to him. The husband has made no attempts to recover this debt personally. The husband gave evidence that this was because, at the time, H Firm had done everything they could to recover the debt, including starting court proceedings (which he said would cost him $100,000 in legal fees to chase). He gave some evidence that there had been an offer of $20,000 which the husband told H Firm that they should not accept.

Whilst the husband’s deciding to go voluntarily may have salvaged some of the value that he had in H Firm, his wanton conduct has caused a significant loss. Counsel for the husband, in final submissions, submitted that this was not a case which attracted the principles that had been discussed in Kowaliw v Kowaliw (1981) FLC 91-092 (“Kowaliw”). I find that the husband’s behaviour, particularly in respect to money laundering, was reckless and was the primary reason the H Firm Partners were going to move against him. The husband’s behaviour falls well within the test discussed in Kowaliw. As earlier indicated at [264], the evidence allows a quantification of the loss in the order of $782,560 (Mr YY’s valuations less what the husband received). This loss is diminished by the unquantified value of the clients who have followed the husband to his new employment but no value has been put on the balance sheet in respect of those clients.
As also previously discussed, the value Mr YY put on the husband’s share in H Firm was reduced by $240,000 because of a “bad debt” to Y Company. As discussed above, the amount the husband ultimately received from H Firm upon his departure was reduced by the sum of $240,000. The husband said that on leaving H Firm he allowed H Firm to continue to attempt to collect the bad debt from Y Company. The husband was unable to explain why the debt simply wasn’t assigned to him so he could attempt to collect the debt personally. The most significant contact the husband seems to have had with Y Company was through Mr A. Mr A is a person for whom the husband had laundered some funds (although the husband says the majority of the funds that were laundered were for Mr U). Mr R works for Y Company. I find that it is likely the husband has not fully disclosed the arrangement that he has made with Mr A in relation to this debt and I do not need to be unduly cautious when I infer that some arrangement to the husband’s advantage has been made in respect to this debt.
I also take into account, as noted above, the husband’s loss of monies as a result of the lack of proper management of the UU Pty Ltd debt.
I accept the husband shall be left with some tax liability but I am unable to say what it might be.

Conclusion in relation to s 79(4)(d) – (g) considerations

The wife argues, and I accept, that the lack of full and frank disclosure, which I have found exists in this case, has a prospective as well as a retrospective effect. Not only has it not been possible to understand what has happened with all the monies that have gone through the husband’s hands, but also I have not been able to understand what is the income earning capacity of the husband now and into the future.
The main prospective considerations are:
a)Those that flow from the finding of lack of full and frank disclosure by the husband in respect of his future earning capacity;
b)The assets that the husband might hold having regard to the income that has passed through his hands as earlier discussed; and
c)Monies the husband lost as a result of his involvement in money laundering which led to the loss of his interest in H Firm.
The s 79(4)(d) – (g) considerations discussed above point in the direction of a significant adjustment in favour of the wife. I find that the wife is entitled to an adjustment of in excess of 22.5 per cent for s 79(4)(d) – (g) considerations.

Just and equitable

Based upon the findings as to contributions and s 79(4)(d) – (g) considerations, there should be a division of assets in excess of 72.5 per cent in the wife’s favour, and less than 27.5 per cent to the husband.
The wife seeks to retain the Suburb C property which is encumbered. If that property and, as between the parties, the mortgage, was transferred to the wife and the parties otherwise respectively retain their own assets and liabilities, a potential distribution of assets and liabilities is demonstrated by the following table:

Husband receives 26.8%

Assets

Item No.

Description

Percentage

Value

2

Motor vehicle 1

100%

$20,000

3

Motor vehicle 2

100%

$72,000

5

J2 Unit Trust

100%

$145,863

7

D Group

100%

$8,118

8

Murray Family Trust

100%

$84,300

13

Items in husband's possession

100%

$580

27

NAB cheque a/c #...25

100%

$7,976

31

AF Bankcash management a/c #...44

100%

$1

32

AF Bank cash management a/c #..12

100%

$61

34

ANZ a/c #...63

100%

$4,729

43

Rental bond held by AN Real Estate

100%

$7,400

47

Partial property payment for legal costs

100%

$100,000

53

Unauthorised withdrawal of NAB mortgage funds

100%

$37,200

54

Unauthorised allocation of H Firm return of capital

100%

$180,000

55

Superannuation Fund 1

100%

$14,744

Liabilities

Item No.

Description

Percentage

Value

60

UU Pty Ltd No. 1 a/c #...042

100%

$70,000

74

AF Bank leasing chattel mortgage

100%

$69,600

Net Assets

$543,372

Wife receives 73.2%

Assets

Item No.

Description

Percentage

Value

1

B Street, Suburb C

100%

$2,250,000

4

Motor vehicle 3

100%

$50,000

11

Jewellery

100%

$14,530

12

Household contents at Suburb C

100%

$8,450

14

NAB Traveller card a/c #...96

100%

$49

15

NAB Classic banking a/c #...79

100%

$1,585

16

AF Bank cash management a/c #...20

100%

$130

17

NAB Smart rewards saver a/c for N #...09

100%

$6

18

Account for O #..88

100%

$2

19

S Bank savings a/c #..83

100%

$3

20

S Bank everyday a/c #..55

100%

$694

21

NAB trading a/c #..93

100%

$2,041

22

AJ Ltd shares

100%

$4,987

23

S Bank savings a/c #..88

100%

$67,356

24

S Bank savings a/c #..44

100%

$8,389

48

Interim property settlement

100%

$50,000

49

Payment to wife to be applied towards legal fees

100%

$170,000

56

Superannuation Fund 2

100%

$11,091

57

Anticipated balance of profit share payment from H Firm

100%

$57,807

Liabilities

Item No.

Description

Percentage

Value

58

NAB home loan #..73

100%

$1,164,742

65

Motor vehicle lease

100%

$49,334

Net Assets

$1,483,044

As can be seen, this would lead to a result where the wife would receive 73.2 per cent of the known assets and the husband would receive 26.8 per cent of the known assets. Standing back, I consider that outcome to be just and equitable and otherwise appropriate.

Conclusion / Orders

The wife’s application seeks an order that she be able to retain the Suburb C property on the basis that she discharges the current mortgage on that property and takes over from the husband within a period of 12 months. The wife’s Financial Statement, filed 31 August 2018, shows that the wife’s current income is $281 per week. That income is based on a very small amount of interest from the AF Bank Management Trust, the NAB and S Bank accounts ($15 per week), dividends ($1 per week) and Government benefits of $265 per week. The wife in her Financial Statement does not disclose any income being received from the husband on the basis she asserts that although there are orders that she receive significant amounts from the husband on a weekly basis, those amounts have not been currently paid. The wife’s expenses on the face of her Financial Statement are $8,679 per week. They include a payment on the mortgage on the Suburb C property in the sum of $1,762 per week. That amount is a principle and interest payment. The wife asserts that she is confident that she will be able to convince a financial institution to refinance the current mortgage on an interest only basis and hopes to reduce the mortgage payments to $800 per week. The wife’s current shortfall is $6,636 before the mortgage ($8,679 – $281 – $1,762). If the mortgage payments are $800 per week then that brings it up to $7,436 per week.
The wife says that she will initially fund the mortgage payments out of the S Bank accounts. The wife then speculated that she would be able to reduce her living expenses substantially so that the first priority would be keeping the Suburb C property. The wife identified some of her expenses in Part N of her Financial Statement which could be eliminated or reduced (the wife nominated house repairs of $750 per week and education expenses at $1,985 per week). I find that there are other amounts making up the wife’s weekly expenditure of $6,200 which could be substantially cut. In addition, under the orders which have now been made, the wife will receive $4,000 per month by way of child support which is $920 per week. The wife also suggested her father might help her out or the person with whom she has formed a new relationship might buy in. The other option that might be more viable was the wife’s suggestion that she and the children move back to her parents’ home and that they rent the property out on a short term basis, presumably until she got herself on her feet in a new business.
In seeking that order, she would consent to any order to the effect that if she misses a regular payment of the mortgage (in accordance with any arrangements that she might negotiate with the bank from time to time), then the property would be immediately placed on the market for sale.
The husband submits that no findings could be made in the wife’s favour that would lead to a just and equitable result where there would be any possibility that the wife could retain the home and consequently, an order for its sale should be made.
Counsel for the husband, based upon the husband’s figures as asserted for the balance sheet, demonstrated that it is unlikely that the wife could be able to keep the home. I have not accepted the husband’s figures.
I note that in recent times the mortgage has been paid on an interest only basis.
I do not find that it is impossible for the wife to continue to service the mortgage and given time, discharge the husband’s responsibility for it. The wife shall be given 6 months to renegotiate the mortgage or refinance the mortgage on the Suburb C property so that the husband has no continuing liability in respect of that debt. The wife shall be responsible for paying the mortgage payments in the meantime. A default in mortgage payment arrangements prior to the husband’s liability being discharged, whatever they might be after the wife negotiates with the bank, shall trigger a sale.
If there is a problem with compliance in the Superannuation Fund 1 it is of the husband’s making. I have accepted that in reality there is only $14,744 in the superannuation fund excluding a debt owed by the parties. I shall make an order that the husband indemnify the wife in respect of any irregularities and non-compliance in respect of the superannuation fund and leave the superannuation fund with him.

The wife’s Application in a case filed 2 September 2019

On 2 September 2019, the wife filed an Application in a Case seeking orders enforcing a number of the husband’s financial obligations pursuant to interim orders which she alleged have not been complied with. The husband sought that the wife’ Application in a Case be dismissed.
The wife’s Application in a Case sought nine orders. Order 1 sought that the husband immediately authorise H Firm to transfer outstanding funds to the quarantine fund. That application becomes nugatory in circumstances where, as a result of the property settlement order, H Firm are to pay those funds to the wife.
Order 2, as sought by the wife, is an order that authorises her to use funds from the quarantine monies for certain purposes. That application is made as a consequence of the wife being successful in relation to Order 1. Order 2 is, therefore, nugatory.
Order 3 as sought is an order requiring the husband to pay the ongoing mortgage and arrears on the Suburb C property. Part of the property settlement order deals with that issue.
Order 4 seeks that the husband’s ongoing liabilities in respect of child support be enforced. The wife gave evidence that the husband was in arrears pursuant to the orders that were made by consent on 17 September 2018. In her affidavit filed 2 September 2019, the wife alleges that there are arrears of child support of about $8,559.29. The terms of the application filed by the wife are general and an order made in the terms sought by the wife would not achieve any enforcement. Also, the wife has not indicated whether or not the right of enforcement of child support currently rests with the Child Support Registrar and whether the Registrar has been served with the application. I do not intend, on the basis of the limited information provided by the wife in relation to arrears of child support, to deal with the application and I will dismiss it. This does not mean, however, that the wife cannot bring a further application that properly sets out the relevant requirements for enforcement of a child support order.
Orders 5, 6 and 7, as sought by the wife, are predicated on the assumption made by her that the husband had been the subject of bankruptcy proceedings. The husband has indicated that he has not been the subject of bankruptcy proceedings and those applications are, therefore, otiose.
Orders 8 and 9 as sought relate to orders for further disclosure by the husband for financial information. Given that a final property settlement order is to be made and that I will dismiss the current application for enforcement of child support on the basis of inadequate information that has been provided (but on the understanding that the wife is at liberty to refile a new enforcement application), Orders 8 and 9 do not relate to any ongoing proceedings.
The wife’s Application in a Case filed 2 September 2019 shall, accordingly, be dismissed as shall the husband’s Amended Response filed 25 October 2019.

I certify that the preceding four hundred and thirty-seven (437) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 18 November 2019.

Associate:

Date: 18 November 2019

SCHEDULE 1

Minute of Order sought by the Husband (Exhibit 53)

That within 28 days of the date of these orders the parties shall do all acts and things and sign all documents necessary to cause the former matrimonial home known as and situate at B Street, Suburb C (“the former matrimonial home”) to be listed for sale with a listing Real Estate Agent as agreed between the parties and failing agreement as appointed by the President of Real Estate Institute of NSW (“the listing Agent”) at a listing price as agreed between the parties and failing agreement as recommended by the listing Agent.
That upon the sale of the former matrimonial home as provided for in the preceding order, the parties shall do all acts and things and sign all documents necessary to cause the proceeds of sale to be distributed in the following order and priority:
2.1.The payment of the Listing Agent’s commission and selling costs;
2.2.The payment of all legal fees associated with the sale;
2.3.The payment of mortgages secured over the former matrimonial home;
2.4.The payment necessary to discharge the balance of the UU Pty Ltd debt;
2.5.The payment of the husband’s taxation liabilities including for the financial years ended 30 June 2017 and 30 June 2018;
2.6.The payment of all council and water rate adjustments;
2.7.The payment of $100,000 to the Superannuation Fund 1;
2.8.The payment of 50% of the balance then remaining to the wife; and
2.9.The balance then remaining to the husband.
That pending the sale of the former matrimonial home:
3.1.The wife shall continue to have exclusive and occupation of the former matrimonial home;
3.2.Neither party shall do any act or thing so as to further encumber the former matrimonial home;
3.3.Neither party shall do any or thing that causes the outstanding balance of the mortgage in favour of the National Australia Bank to increase beyond its current debit balance as at the date of these orders; and
3.4.The wife shall pay as and when they fall due all mortgage repayments, outgoings, rates and utilities and all other associated with the former matrimonial home.
That in the event that the wife fails to comply with orders 3.3 and 3.4 above that results in arrears of such liabilities as at the date of settlement of the sale of the former matrimonial home, then such arrears are to be satisfied from the wife share of the proceeds of sale provided for in 2.8 above prior to the wife receiving her said entitlement.
That within 28 days from the date of these orders the wife shall do all acts and things and sign documents necessary to transfer and/or assign to the husband any and all interests, shares, beneficial entitlements and all other interests in the Murray Family Trust.
That except as otherwise provided for by these orders, the husband shall retain sole ownership in law and in equity, to the exclusion of the wife, to the following:
6.1.Motor vehicle 1 bearing registration number …;
6.2.Motor vehicle 2 bearing registration number …;
6.3.His interest in D2 Pty Limited;
6.4.His interest in J2 Capital Pty Limited;
6.5.His interest in I Pty Ltd;
6.6.His interest in I Pty Ltd Trust;
6.7.The funds standing to his credit in all accounts held in any financial institution currently in his name or to which he has an entitlement;
6.8.The rental bond held by AN Real Estate;
6.9.Any entitlement remaining from the 2017 profit share from H Firm;
6.10.All entitlements in any superannuation fund in which he has an interest; and
6.11.All other items of property, personalty and/or financial resources in his name, possession and/or to which he is entitled.
That the husband shall be solely responsible for, and shall forever indemnify the wife, with respect to the following liabilities:
7.1.All credit card debts currently in his name;
7.2.The AF Bank Leasing chattel mortgage in his name; and
7.3.All other personal liabilities of the husband however and whenever arising.
That except as otherwise provided for by these orders, the wife shall retain sole ownership in law and in equity, to the exclusion of the husband, to the following:
8.1.Motor vehicle 3 bearing registration number …;
8.2.The funds standing to her credit in all accounts held in any financial institution currently in his name or to which he has an entitlement including but not limited the S Bank account bearing account numbers #...83, #...88 and #...44;
8.3.The AJ Ltd shares currently in her name;
8.4.Her interests in AW Pty Limited (as trustee for the AX Family Trust);
8.5.Her interest in the business known as AK Pty Ltd;
8.6.All entitlements in any superannuation fund in which she has an interest; and
8.7.All other items of property, personalty and/or financial resources in her name, possession and/or to which she is entitled.
That the wife shall be solely responsible for, and shall forever indemnify the husband, with respect to the following liabilities:
9.1.Any amounts owing by the wife by way of HECS fees;
9.2.The motor vehicle lease currently in her name; and
9.3.All other personal liabilities of the wife however and whenever arising.

Other

In default of either or both of the parties doing all such things and executing all such documents as may be needed to comply with these orders, a Registrar of the Family Court of Australia Sydney Registry or such other person as may be appointed by the court be authorised pursuant to s 106A of the Family Law Act to do all such acts and things and execute all such documents on behalf of either or both of the parties; and in the event that neither party procure compliance with these orders by obtaining execution of documents pursuant to these orders, then the party procuring such execution of documents be indemnified by the party for his or her costs and expenses incurred in obtaining such compliance.

Husband receives 26.8%
Assets
Item No.	Description	Percentage	Value
2	Motor vehicle 1	100%	$20,000
3	Motor vehicle 2	100%	$72,000
5	J2 Unit Trust	100%	$145,863
7	D Group	100%	$8,118
8	Murray Family Trust	100%	$84,300
13	Items in husband's possession	100%	$580
27	NAB cheque a/c #...25	100%	$7,976
31	AF Bankcash management a/c #...44	100%	$1
32	AF Bank cash management a/c #..12	100%	$61
34	ANZ a/c #...63	100%	$4,729
43	Rental bond held by AN Real Estate	100%	$7,400
47	Partial property payment for legal costs	100%	$100,000
53	Unauthorised withdrawal of NAB mortgage funds	100%	$37,200
54	Unauthorised allocation of H Firm return of capital	100%	$180,000
55	Superannuation Fund 1	100%	$14,744
Liabilities
Item No.	Description	Percentage	Value
60	UU Pty Ltd No. 1 a/c #...042	100%	$70,000
74	AF Bank leasing chattel mortgage	100%	$69,600
Net Assets		$543,372
Wife receives 73.2%
Assets
Item No.	Description	Percentage	Value
1	B Street, Suburb C	100%	$2,250,000
4	Motor vehicle 3	100%	$50,000
11	Jewellery	100%	$14,530
12	Household contents at Suburb C	100%	$8,450
14	NAB Traveller card a/c #...96	100%	$49
15	NAB Classic banking a/c #...79	100%	$1,585
16	AF Bank cash management a/c #...20	100%	$130
17	NAB Smart rewards saver a/c for N #...09	100%	$6
18	Account for O #..88	100%	$2
19	S Bank savings a/c #..83	100%	$3
20	S Bank everyday a/c #..55	100%	$694
21	NAB trading a/c #..93	100%	$2,041
22	AJ Ltd shares	100%	$4,987
23	S Bank savings a/c #..88	100%	$67,356
24	S Bank savings a/c #..44	100%	$8,389
48	Interim property settlement	100%	$50,000
49	Payment to wife to be applied towards legal fees	100%	$170,000
56	Superannuation Fund 2	100%	$11,091
57	Anticipated balance of profit share payment from H Firm	100%	$57,807
Liabilities
Item No.	Description	Percentage	Value
58	NAB home loan #..73	100%	$1,164,742
65	Motor vehicle lease	100%	$49,334
Net Assets		$1,483,044