Sutton and Lasko and Anor (No.5)

[2020] FCCA 2183

FEDERAL CIRCUIT COURT OF AUSTRALIA

SUTTON & LASKO & ANOR (No.5) [2020] FCCA 2183

Catchwords:
FAMILY LAW – Property settlement – uncertain asset pool – failure on the part of the applicant to make financial disclosure – applicant and second respondent not separated – concealment of assets – falsification of bank records – second respondent not separated as she claimed.

Legislation:

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

Cases cited:

Bell & Bell [2000] FamCA 1301

Chang v Su [2002] FamCA 156

Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
In the Marriage of Black and Kellner(1992) 15 Fam LR 343

In the Marriage of Mezzacappa(1987) 11 Fam LR 957

In the Marriage of Stein(1986) 11 Fam LR 353

In the Marriage of Weir(1993) 16 Fam LR 154

Jewel v Jewel [2013] FCWA 81

Stanford v Stanford [2012] HCA 52

Tate & Tate (2000) 26 Fam LR 731

Applicant: MR SUTTON

First Respondent: MS LASKO

Second Respondent: MS THOMPSON

File Number: MLC 9211 of 2017

Judgment of: Judge McNab

Hearing dates: 2, 3 & 4 March 2020

Date of Last Submission: 4 March 2020

Delivered at: Melbourne

Delivered on: 7 August 2020

REPRESENTATION

Applicant in Person

Counsel for the First Respondent: Dr Ingleby

Solicitor for the First Respondent: Berger Kordos Lawyers

Counsel for the Second Respondent: Ms Ben-Simon

Solicitors for the Second Respondent: PCL Lawyers

ORDERS

1. The Applicant forthwith do all acts and sign all documents as is required to transfer to the First Respondent the entirety of the shareholding of Q Pty Ltd  in W Pty Ltd.

2. In default of compliance with order 1 above, within seven (7) days of these orders being made (an affidavit by the solicitor for the First Respondent being sufficient evidence of same) a Registrar be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute all necessary documents to effect the transfer.

3. The Applicant by his servants or agents or otherwise (the Second Respondent being deemed to be an agent) be restrained from communicating the fact or implementation of these orders to any third party save for his legal and accounting advisors.

4. The parties otherwise retain assets in their respective possessions and the monies currently held by Bergos Kordos Lawyers in a controlled monies account pursuant to paragraph 3(c)(iv) of the orders made on 14 August 2018 and paragraph 5 of the orders made on 23 November 2018 be released to the First Respondent.

5. The Applicant indemnify the First Respondent against any debt relating to any of the entities of which he has an interest or related corporations, including without being limited to any debt which is sought to be enforced against the monies in order 4 above.

6. Paragraph 8 of the orders made on 25 October 2018 be discharged.

7. The funds held on trust by F Lawyers pursuant to orders of 16 September 2019 be paid to the First Respondent and be treated to be in partial satisfaction of a cost order made in her favour on 25 October 2019.

8. The Registrar of the Federal Circuit Court of Australia forward to the Commonwealth Director of Public Prosecutions the Reasons for Judgment delivered as well as the Transcript of the entire proceedings along with the Exhibits (relating to those proceedings) for a consideration by the Commonwealth Director of Public Prosecutions as to whether or not the Applicant should be prosecuted having regard to the findings made by the Court in these Reasons for Judgment.

9. Otherwise all extant applications be dismissed.

10. There be liberty to apply in respect of enforcement of these orders.

11. Any applications for costs be determined on the papers with submissions regarding same to be filed and served within 21 days of the date of these orders with any submission in reply to be filed 14 days thereafter.

IT IS NOTED that publication of this judgment under the pseudonym Sutton & Lasko & Anor (No.5) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9211 of 2017

MR SUTTON

Applicant

And

MS LASKO

First Respondent

And

MS THOMPSON

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

Introduction

1. The proceeding commenced on 6 September 2017, with the Applicant, Mr Sutton, seeking property and parenting orders.

2. At the time of his originating application filed 6 September 2017, there was an ongoing case in the Magistrates Court of Victoria whereby the Applicant had been charged with seven charges relating to the breach of a Family Violence Safety Order.

3. The First Respondent, Ms Lasko was the de facto wife. The parties met in 2009, commenced cohabitation in 2011 and finally separated in July 2017. There are two children of the de facto relationship, OO born in 2012 (OO) and PP born in 2016 (PP).

4. The Second Respondent, Ms Thompson was joined as a party to these proceedings by orders made on 13 November 2018.  According to the chronology prepared on behalf of the Second Respondent, she met the Applicant in 2013, they commenced living together in 2015, married in 2016 and had two children, QQ born in 2016 (QQ) and RR born in 2017 (RR).  It is then said that they separated in early 2017, reconciled and then separated on a final basis in February 2019.  For reasons that follow the Court finds that the Applicant and the Second Respondent have never finally separated.

5. The matter proceeded to final hearing on 2 March 2020 and the closing oral submissions were heard on 4 March 2020. Written submissions were subsequently filed by the Respondents. The Applicant appeared self-represented and each of the Respondents were represented by Counsel. At the final hearing, the Applicant proposed that the final hearing be adjourned on the following terms:

   1. That the Final Hearing listed for five days commencing Monday 2 March 2020 be adjourned to a date not before 1 July 2020.

   2. That paragraph 1 of the Orders made on 14 August 2018 be varied to authorise the Applicant Husband to sell up to $1,500,000 worth of shares held by Q Pty Ltd  in W Pty Ltd (“the Share Sale”) on the basis that:

   a. the Share Sale occurs within 30 days of the date of these Orders;

   b. the Applicant Husband provides full and frank disclosure of the sale, including providing the First and Second Respondents copies of all supporting documents of the Share Sale including but not limited to full details of the purchaser of the shares, sale agreements and statements of account;

   c. the sale proceeds of the Share Sale be held in a controlled monies account by XXX Lawyers in the names of the parties (“the sale proceeds”); and

   d. the sale proceeds not be disbursed without the consent of the Applicant, First Respondent and Second Respondent or Court Order.

   3. The Applicant Husband forthwith provide the First Respondent with a Pre-Approval Letter from SS Financial confirming an 85% lend for refinance of the property situated at TT Street, Suburb UU, valued at $1,850,000 (“Pre-Approval Letter”).

   4. That within seven days of the Pre-Approval Letter, the Applicant Husband and the First Respondent do all acts and things necessary and sign all documents to obtain a loan from SS Financial for refinance of the property situated at TT Street, Suburb UU, with any surplus funds from the refinance to be provided to the First Respondent by way of partial property settlement between the Applicant Husband and the First Respondent.

   5. The parties attend upon private mediation with Mr VV or another mediator agreed between the parties by no later than 1 April 2020 with the cost borne equally between the parties.

6. The Second Respondent supported the proposal that the application be adjourned to mediation. The First Respondent opposed that course. The application for the adjournment of the hearing in order for the parties to be referred to mediation was refused on the grounds that the Court had urged the parties on numerous occasions to participate in mediation in order to try and resolve or narrow the issues in the case.  Those urgings had not been heeded nor had the Applicant participated properly in the proceeding by filing trial material or providing full disclosure.

7. In cross examination by Counsel for the Second Respondent he did give evidence that if all the shares in W Pty Ltd (W Pty Ltd) were ordered to be sold, whether in one lot or in parcels overtime, the proceeds of sale should be shared between the two mothers without any allocation to him (see: line 30 on page 83 of the Transcript dated 2 March 2020). 

8. By way of summary, the First Respondent sought orders that the shares in the company W Pty Ltd be transferred to her and the funds held in trust in the sum of $125,220 be transferred to her. The Second Respondent sought orders including that the funds held in trust by the First Respondents solicitors be released to the parties equally and that the shares in W Pty Ltd be sold and divided equally between the First and Second Respondent.

Chronology

1. The Court adopts the chronology set out in the Outline of Case prepared by the First Respondent wife:

Date	Event	Proceeding
1976	The First Respondent was born
1982	The Second Respondent was born
1989	The Applicant was born
2009	The Applicant and First Respondent commence a relationship
2011	The Applicant and First Respondent commence cohabitation
2012	The second child of the Applicant and the First Respondent, OO is born
2013	The Applicant and Second Respondent commence relationship
2015	The Applicant and the Second Respondent commence cohabitation
2016	The child of the Applicant and the First Respondent, PP is born
2016	The Applicant and Second Respondent marry
2016	The child of the Applicant and the Second Respondent, QQ is born
July 2017	The Applicant and the First Respondent separate
6 September 2017	The Applicant commences Court proceedings seeking parenting orders in relation to the First Respondent.
20 September 2017	The First Respondent files Response
21 September 2017	Interim Orders
13 October 2017	The Applicant files an Amended Application for Final Orders
2 November 2017	The Applicant files an Amended Application for Final Orders
2017	The child of the Applicant and the Second Respondent, RR is born
2 March 2018	Interim orders made
13 April 2018	Interim orders made
14 March 2018	The Applicant and the Second Respondent enter into a Deed of Settlement and Release
18 July 2018	The First Respondent files an Application in a Case
31 July 2018	Interim orders made
2 August 2018	The First Respondent files an Application in a Case.
13 August 2018	The Applicant files a Response to Interim Orders
14 August 2018	Interim orders made
16 August 2018	The First Respondent files an Application in a Case
17 August 2018	Interim orders made
23 August 2018	Interim orders made
23 October 2018	The First Respondent files an Application in a Case
25 October 2018	Interim orders made
13 November 2018	The First Respondent files an Application in a Case
13 November 2018	Interim orders made
23 November 2018	Interim orders made
31 January 2019	The First Respondent files an Application in a Case
February 2019	The Applicant and Second Respondent separate on a final basis
1 February 2019	The First Respondent files an Application in a Case
1 February 2019	Interim orders made
18 March 2019	Interim orders made
25 March 2019	Interim orders made
12 April 2019	The Applicant files an Application in a Case
12 April 2019	The First Respondent files an Application in a Case
16 April 2019	Interim orders made
24 April 2019	Second Respondent files a Response
26 April 2019	The Applicant files an Application in a Case
29 April 2019	Interim orders made
19 June 2019	The Second Respondent files an Application in a Case and an Amended Application in a Case.
20 June 2019	Interim orders made
26 June 2019	The Second Respondent files a further amended application in a case.
3 July 2019	Interim orders made
9 July 2019	The Third and Fourth Respondent’s file an Application in a Case
12 July 2019	Interim orders made
5 August 2019	Interim orders made
21 August 2019	First Respondent files Application in a Case
23 August 2019	Final Hearing orders made
13 September 2019	First Respondent files Amended Application in a Case
16 September 2019	Interim orders made
14 October 2019	Mr WW (a creditor) files an Application in a Case
25 October 2019	Cost Order made for Applicant to pay First Respondent’s costs of $16,225
12 November 2019	First Respondent files Response to Mr WW’s Application
15 November 2019	Interim orders made
15 November2019	Trial directions made
25 November 2019	Mr WW files Amended Application in a Case
10 January 2020	Mr WW files Summary of Argument
22 January 2020	Orders made
24 January 2020	Funds are disbursed to Mr WW pursuant to Orders
30 January 2020	Applicant, First Respondent and the children attend upon Mr XX for an updated Family Report. No report was produced to the Court.

Orders sought

1. By his amended initiating application filed on 13 October 2017, the Applicant sought final orders, inter alia:

   a)for parenting, he sought orders in relation to spending time and communicating with the children OO and QQ.

   b)for property, he sought orders regarding the transfer of the following to the First Respondent wife:

   i)the rights to and title in the property at TT Street, Suburb UU (the TT Street, Suburb UU property); and

   ii)the shares owned by K Pty Ltd (K Group) in YY Pty Ltd.

2. On 20 September 2017, the First Respondent filed her response seeking final orders that:

   a)she have sole parental responsibility for OO and QQ, and that the children live with her;

   b)the Applicant be restrained by injunction from ingesting or using alcohol, drugs or substances for 24 hours immediately prior to any spend time with the children;

   c)the Applicant attend upon a psychologist or psychiatrist for the purpose of a psychological assessment risk evaluation and report;

   d)the Applicant undertake a men’s behavioural change program;

   e)the First Respondent retain the children’s passports and be at liberty to travel overseas with the children, with conditions; and

   f)there be an adjustment of property as between the parties.

3. The Second Respondent sought orders that in summary included that:

   a)the monies held by Berger Kordos Lawyers in a controlled monies account be released in equal portions to the First and Second Respondents.

   b)the Applicant sell 20% of the shares held by Q Pty Ltd  (Q Pty Ltd) in W Pty Ltd and that she receive 75% of the proceeds.

   c)the TT Street, Suburb UU property be sold and the proceeds divided equally between the First and Second Respondents.

4. The Second Respondent sought these orders on the claim that she made significant financial contributions throughout the relationship. At paragraph [33] of the her affidavit sworn 24 April 2019, she states:

   “I estimate that approximately $14 million was contributed both directly and indirectly throughout the relationship. Approximately $11.2 million was sourced by me from different accounts in Country B with a further approximate sum of $3 million from me directly.”

5. The Second Respondent deposed at paragraphs [14]-[16] and [27] of her affidavit sworn 24 April 2019 that the various businesses ventures that she and the Applicant set up together were set up with the money that she loaned to the Applicant. In particular she gave evidence in relation to the following businesses:

   a)L Pty Ltd was a business that the Second Respondent states her and the Applicant set up in 2015. She states at [14] that:

   “From time to time Mr Sutton would ask me to loan him money for this business, which I did throughout the course of the relationship.”

   b)W Pty Ltd was a business that the Second Respondent says she and the Applicant set up in or around 2016. She repeats herself and states at [15] that:

   “From time to time Mr Sutton would ask me to loan him money for this business, which I did throughout the course of the relationship.”

   c)X Pty Ltd (X Pty Ltd) was a business that the Second Respondent states she and the Applicant set up from in or around September 2016. She states at [16] that:

   “Mr Sutton and I have gone to significant lengths to set up X Pty Ltd including sourcing staff.”

   d)GG Pty Ltd was a business that the Second Respondent states she and the Applicant set up in or around December 2018. She states at [27] that:

   “Mr Sutton and I thought that this was a potential business opportunity in the future. As Mr Sutton was my husband I took no issue at that time with having Mr Sutton as the director and shareholder. At no stage did either Mr Sutton tell me or that it came to my attention that Ms Lasko had made any financial contributions to these businesses.

6. The Second Respondent further deposed at paragraph [29]-[30] that after she and the Applicant separated allegedly in February 2019, the Applicant transferred his shares and directorship of X Pty Ltd and GG Pty Ltd. At [30] the Second Respondent stated that:

   “As we had separated I wanted Mr Sutton to transfer his interest in the businesses to me so that I could continue to operate them without his involvement”.

A brief summary of the interlocutory applications

1. These proceedings have been the subject of numerous interlocutory applications. Principally, those applications have dealt with seeking to ascertain the asset pool of the parties, dealing with the interests of third parties and applications to set aside transactions. In summary, these interlocutory applications included:

Interim applications

a)An application in a case filed by the First Respondent on 18 July 2018 seeking orders:

i)to restrain the Applicant from disposing of assets;

ii)for business valuations of the Applicant’s businesses;

iii)regarding the sale of the property at ZZ Street, Suburb AAA; and

iv)for the payment of school fees, spend-time with the children and the Applicant attending upon a psychiatrist for assessment.

b)An application filed on 16 August 2018 by the First Respondent regarding joining N Pty Ltd as a party to the proceeding.

c)An application filed on 25 October 2018 by the First Respondent relating to Enduring Power of Attorney authorisations and seeking orders that the proceeding be transferred to the Family Court of Australia.

d)A further application filed by the First Respondent on 13 November 2018 seeking payment by the Applicant from rental income and seeking orders that certain caveators be joined as a party to the proceedings.

e)A further amended application in a case filed 28 June 2019, where the Second Respondent sought orders regarding C Pty Ltd (C Pty Ltd) and Mr Finch. Those parties were at times joint venturers in an agricultural scheme with the Applicant and associated entities. The Second Respondent sought orders setting aside a transfer of the Applicant’s interest in that scheme and the agricultural properties of C Pty Ltd and Mr Finch. She discontinued that application.

f)An application in a case was filed on 21 August 2019 and amended on 13 September 2019, whereby the First Respondent sought orders:

i)for the transfer of funds into a controlled monies account;

ii)that the Applicant direct third parties to return all funds received from the Westpac Business One Account; and

iii)the Applicant be restrained from withdrawing funds from multiple corporate accounts.

g)On 14 October 2019, a caveator, Mr WW, made application to be paid the sum of $399,800.37 out of funds held from the proceeds of the sale of properties. This application was amended on 25 November 2019.

h)On 2 March 2020 Mr BBB (on the first day of the final hearing) filed an application in a case to be joined as a party to the proceeding on behalf of CCC Pty Ltd  (CCC Pty Ltd) and DDD Pty Ltd (DDD Pty Ltd) which related to funds allegedly lent by those companies to the Applicant and his associated entities. That application was refused and separate reasons for that refusal were given extempore.

1. The details of each of these applications are not material other than to set the picture of a number of parties affected by the Applicant and his business activities and where otherwise referred to in this judgment. The course of the proceedings has seen what appeared to be substantial assets dissolved as third parties and creditors moved to protect or claim their respective interests. It appears that the only known asset that is not fully encumbered is a company, W Pty Ltd, which is not valued. No evidence was placed before the Court regarding the state of the mortgage on the TT Street, Suburb UU Property but I assume given the parlous financial state of the Applicant and his businesses, I assume that it is fully encumbered. Submissions were made that the property has an estimated value of between $1,250,000 and $1,300,000 and a mortgage balance as at 17 December 2019 of $1,318,403.16.

2. These applications are not material to the resolution of the central questions facing the Court. The approach the Court will take in this matter is the preferred four-step process in property matters under the Family Law Act 1975 (Cth) (‘the Act’) which was identified by the Full Court in Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143. That approach requires the Court to:

   a)identify the pool of assets and liabilities generally, and usually at the time of the hearing;

   b)assess the relative contributions of both the financial, non-financial, direct and indirect nature as specified by section 79(4) of the Act;

   c)consider the factors as are relevant contained in section 75 (2) of the Act; and

   d)determine whether the order that the Court proposes to make is just and equitable to both parties.

3. This approach to property matters was approved in the High Court decision of Stanford & Stanford (2012) HCA 52.

4. A central question in this matter is whether the Applicant has failed to make financial disclosures such that the Court should make findings in favour of the Respondents in relation to the asset pool.

The asset pool

1. The financial picture presented by the Applicant was that he Applicant was involved in a wide range of commercial enterprises, start-ups and farming ventures.

2. Neither the Applicant nor the Second Respondent have provided proper or complete financial statements.

The asset pool contended for by the First Respondent

1. The First Respondent’s asset pool summary is as follows:

Legal Title	Description	Value	Comments
ASSETS
BB Pty Ltd (Husband sole director)	TT Street, Suburb UU	E$1,800,000	Property currently on the market for sale. Mortgage in default
Husband	Husband’s interest in various companies	$NK	Orders made for joint valuations to be prepared however this has not occurred
Joint	Funds held in Controlled Monies Account by Berger Kordos Lawyers	$125,220	Balance of sale proceeds from the sale of various properties
First Respondent Wife	Funds received pursuant to Orders on 16 September 2019	$75,937.35	To be categorised
Joint	Funds held by F Law pursuant to Orders made on 16 September 2019	$15,000	Funds were transferred to F Law by the Husband in breach of the injunction
Joint	Funds held by Ms H (Husband’s Mother)	$15,000	Enjoined funds transferred by Husband to Ms H. Ordered to return pursuant to 16 September 2019 Orders. This has not occurred
Joint	Funds paid to G Lawyers by Husband from enjoined funds	$36,000	Husband’s legal fees
Husband	J P/L/W P/L CBA term deposit	$44,000
Second Respondent Wife	Funds paid to Second Respondent by Husband from enjoined funds	$53,000
Husband	Funds held in Country B Bank Accounts	$NK
TOTAL	$NK
LIABILITIES
BB Pty Ltd (Husband sole director)	Westpac Mortgage secured against TT Street, Suburb UU Property	E$1,320,000
TOTAL	E$1,320,000

Non-disclosure by the Applicant

1. As may be observed from the background which sets out in a summary way the large number of interim applications that have been dealt with by the Court, the time of the Court has been largely occupied in seeking to ascertain the asset pool, dealing with claims by third parties who have an interest in the asset pool and restraining the Applicant from dealing with the asset pool.

2. The Applicant has consistently failed to comply with his obligations for full and frank disclosure despite numerous Court orders for him to do so. The Applicant’s conduct demonstrates an abject lack of credit.

3. There are legitimate concerns that the Applicant has or may have transferred significant sums of money out of his accounts and/or accounts of the relevant entities to the Second Respondent to dissipate the asset pool.

4. The Applicant has been charged with criminal offences, including fraud, delivering documents containing false information, acting as an agent without being registered and driving offences.

Falsification of bank records

1. When these proceedings commenced, the First Respondent alleged that the Applicant had an interest in six residential properties being:

   ·TT Street, Suburb UU (the TT Street, Suburb UU Property) with that property being owned by a company called J Pty Ltd;

   ·EEE Street, Suburb UU (the EEE Street, Suburb UU Property) owned in the name of the company K Group;

   ·FFF Street, Suburb GGG owned by two associated entities of the Applicant;

   ·HHH Street, Suburb JJJ owned by the company K Group;

   ·KKK Street, Suburb LLL owned in the name of the Applicant; and

   ·a farm in Town MMM purchased in 2015 for about $560,000.00 to which substantial improvements had been made.

2. It was also alleged that the Applicant had an interest in a business that is conducted by K Group and an interest in a business known as the YY Pty Ltd in Suburb UU.

3. In the Applicant’s affidavit affirmed 10 August 2018, he gave evidence in relation to his businesses as follows at [20]:

   (a) L – L is the trading name of an entity formerly known as U Pty Ltd ATF U Trust, now known as L Pty Ltd.

   (b) W Pty Ltd - this business is conducted via J Pty Ltd trading as W Pty Ltd, whose shares are beneficially held by Q Pty Ltd  ATF NNN Trust as set out in my previous and updated financial statement. This is a farming business.

   (c) X Pty Ltd - this business is conducted via X Pty Ltd, whose shares are again beneficially held by the NNN Trust.

   (d) P Pty Ltd - I previously held a 50% interest in P Pty Ltd via the NNN Trust. This is a farming business conducted from premises owned by me in Town OOO, South Australia. I had a dispute with my former business partner as a result of which my shareholdings were transferred to him. The business was running at a significant loss and I wished to dispose of my shares to mitigate my proportionate share of these losses.

4. At [22] – [25] he deposes in relation to the receipt of funds in about 2012/2013 from the sale of a business which traded as PPP.

   oz

    

   [22] I have historically used the real properties acquired by me prior to meeting the [First] Respondent to fund business ventures from time to time. My first business, which traded as PPP, was a Country QQQ-based company which was purchased by a Country RRR-based company. The sale occurred in approximately 2011 and settled in 2012. I have had significant difficulty in obtaining source documents from the sale given the length of time that has now elapsed.

   [23] I sold the business for approximately $11,000,000 and net funds of approximately $9 million were received by an entity I established known as T Pty Ltd (T). My previous Country QQQ bank, ANZ Country QQQ, are no longer in operation in Country QQQ and I have been unable to obtain copies of bank statements evidencing my initial receipt of these funds.

   [24] I refer to paragraph 17 of the Wife's affidavit and say that my lawyers have previously advised the Respondent's lawyers that the Country QQQ loan is an inter-entity loan reflecting the monies advanced by my Country QQQ entity to my Australian entities via a private company incorporated by me, known as Y Pty Ltd.

   [25] I have caused my lawyers to provide to the Respondent's lawyers those documents that I have been able to obtain, to verify the funds received from the sale of PPP. The sale occurred well prior to me even meeting the (First) Respondent. This includes a transaction summary for a Westpac Rewards saver account conducted by me disclosing a balance of $4,200,000 as at August 2013. I have also provided ledgers documenting funds sent from Country QQQ to Australia over the 2016 and 2017 financial years. I have not retained ledgers from earlier financial years. The net proceeds received by me of $9,000,000 were gradually repatriated back to Australia over a period of five years between 2013 and 2017.

5. In the First Respondent’s affidavit affirmed 11 July 2018 she stated at paragraph [17]:

   I have been seeking for several months that the father make disclosure of the circumstances of a loan that one of his businesses T Pty Ltd has recorded it owes called ‘T’ loan account. This loan apparently owed $3,343,322.99 on 30 June 2017.

6. In the course of the proceedings the Applicant disclosed a copy of a Westpac Reward Saver account statement. That statement was annexed as S-9 of the Applicant’s affidavit affirmed 29 April 2019. That statement:

   a)is for account number ...86 in the name of Mr Sutton;

   b)is numbered statement 19 (at the rear of the page);

   c)is for the period from 7 April 2013 to 9 September 2013; and

   d)shows two deposits into the account on 8 August 2013 for $2,100,274.82 and $2,100,000 (statement produced by the Applicant).

7. Subsequently, the First Respondents solicitors inspected the documents produced pursuant to a Subpoena filed on 9 August 2018. The produced documents included a copy of the Applicant’s statements for the Westpac Reward Saver account. One of the subpoenaed Westpac Statements produced was:

   a)for account number ...86 in the name of Mr Sutton; and

   b)numbered statement 19 (at the rear of the page);

8. However, the subpoenaed statement:

   a)is for the period from 7 April 2017 to 9 October 2017; and

   b)shows the same two deposits shown in the Applicant’s Statements occurring on 8 August 2017 being $2,100,274.82 and $2,100,000.

9. The subpoenaed document and the statement produced by the Applicant are therefore the same save for the dates with the Applicant’s document purporting to be for a period from 7 April 2013 to 9 September 2013 and the Westpac document being from 9 April 2017 to 9 October 2017.

10. As was noted by the First Respondent at [56]-[58] of her affidavit sworn 31 January 2019.

    [56] “Upon closer inspection of the Husband’s statement it appears the left side date column has been altered to change the date from 2017 to 2013. This is evident from the “13” not lining up with the rest of the date of entry.

    [57] My solicitor also inspected the Westpac Reward Saver account statement produced by Westpac for the date range of 9 April 2013 to 9 October 2013. There are no transactions during this period and the statement number is 11.

    [58] It appears that the Westpac Statement provided by the Husband has been tampered with to support his assertions that the sale of PPP occurred prior to the commencement of our relationship. The Subpoenaed Statement shows that $4,200,000 was deposited into the Husband’s account in August 2017, one month prior to the Husband initiating these court proceedings. This, together with the Husband’s lack of full and frank disclosure throughout these proceedings, make me deeply concerned that the Husband is trying to conceal money from me.

11. Extracts of those two statements are attached to this judgment and marked “Annexure A” (being the Applicants document bearing the 2013 date) and “Annexure B” (the document subpoenaed from Westpac bearing the 2017 date).

12. The question of what happened to this alleged sum of $9,000,000 (referred to by the Applicant at paragraph [23] of his 10 August 2018 affidavit and extracted at paragraph [30] of this judgment above) became a major focus of the proceeding and no proper explanation has been provided by the Applicant.

13. In the course of the proceedings the First Respondent raised the discrepancy between the two documents and on 25 March 2019, the Court made orders that amongst other things, that the Applicant respond to the allegations raised by the First Respondent in relation to the documents in paragraphs [48] to [58] of the affidavit sworn on 31 January 2019.

14. The Applicant provided a response by an affidavit filed on 29 April 2019.  At paragraph [56] of that affidavit he:

    a)denied altering the dates on the 2017 bank statement numbered ...86; and

    b)gave evidence about email exchanges with Mr A, a CPA who was an employee of the business conducted by the Applicant and Second Respondent.  The effect of his evidence at [47] – [56] is that in May 2018 he requested Mr A and two other employees to send to him the Westpac bank statements and that Mr A did this. That request was made by email. Subsequently the Applicant forwarded those statements to his solicitors and they were subsequently provided to the First Respondent’s solicitors.  He had since said that he had not retained a copy of the email exchange but obtained copies of same through a Microsoft service called “track and trace”.  He gave detailed evidence of this process at [51] and the electronic properties of the document at [53].

15. At [54] – [56] of his 29 April 2019 affidavit the Applicant states:

    [54] I cannot recall whether I read either the PDF or Westpac statement sent to me by Mr A before I forwarded same to SSS Law Firm, but I think it unlikely that I would have done so.

    [55] In retrospect, I should have been more careful and reviewed my personal banking records myself, before relying upon this document and disclosing it as true and correct. I conceded that I have inappropriately relied on third parties to undertake things which I should have prioritised and executed personally

    [56] I agree that the PDF and the Westpac statement record transactions that actually occurred in 2017 and not 2013.  The dates, transaction descriptions and amounts in the PDF the Westpac statement exactly mirror those on the subpoenaed documents, save for the year.  I did not alter the year on the former documents or cause any other person to do so.

16. The Applicant is effectively laying the blame for the differences in the documents on other people. He is saying that he asked Mr A to produce the bank record, the bank record is altered but he did not alter it. Mr A swore an affidavit on 2 August 2019 which deals directly with the allegations and assertions made by the Applicant regarding the exchange of emails purporting to request the provision of the Westpac Bank statement and the statements themselves.

17. At [72(e)] of his affidavit sworn on 2 August 2019, Mr A refers to an email from the Applicant to Mr A which was then altered and which appears as annexure S-8 of the Applicant’s affidavit affirmed on 29 April 2019. Annexure S-9 of that affidavit is the Westpac bank statement with the account ...86.

    a)Mr A email annexed as -36 of his 2 August 2019 affidavit states:

    Subject:

           Re: Account of Mr Sutton

    
    Date:

                   Thursday, 31 May 2018 at 1:14:56pm

    
    From

    :              Mr A

    
    To:

                       Mr Sutton

    
    Attachments:

        PaymentReceipt-42.pdf

    Attached

    -----------------------------------------------------------------

    From:

    Mr Sutton

    
    Date

    : Thursday, 31 May 2018 at 12.59pm

    
    To:

    Mr A

    
    Subject:

    Fwd: Account of Mr Sutton

    Can you pay this asap?

    b)The Applicant’s version of this email annexed as S-8 of his affidavit from 29 April 2019 states:

    From:

    Mr A

    
    Subject: Re: Accounts of Mr Sutton
    Date:

    31 May 2018 at 1:14:55 pm AEST

    
    To:

    Mr Sutton

    Attached

    -----------------------------------------------------------------

    From:

    Mr Sutton

    
    Date

    : Thursday, 31 May 2018 at 12.59pm

    
    To:

    Mr A

    
    Subject:

    Fwd: Account of Mr Sutton

    Can you send westpac statements asap

18. Mr A states at [72(e)] of his affidavit:

    “Sutton never emailed me a request to “send westpac statements asap”. The annexures in Sutton’s affidavit at S-7, S-8 and S-9 are not true copies of those documents.

    (inadmissible conclusion not included)

19. Mr A also deposed in that affidavit that:

    a)he had never been asked by the Applicant to provide the Westpac banking records;

    b)the other employees who are said to have been asked to provide the records did not work in the Applicant’s business in May 2018; and

    c)there was evidence of the Applicant previously falsifying electronic records: see Mr A affidavit of 2 August 2019 at [72(h)].

20. On 23 August 2019, the Applicant was ordered to provide an affidavit responding to the evidence raised in the affidavit of Mr A.  No response has been forthcoming.  At trial, the Applicant was advised that Mr A was available for cross examination.  Neither the Applicant nor counsel for the Second Respondent sought to cross examine him.  His evidence was unchallenged. I accept the evidence of Mr A that he was never asked by the Applicant to forward the bank statements which were subsequently produced to the Court by the Applicant and which bore altered dates.

21. On the basis of the evidence of Mr A and indeed on the evidence of the Applicant I find that the Applicant deliberately falsified documents in the course of these proceedings and gave false evidence in relation to them. The Applicant has failed to make disclosure and has never provided any explanation of the whereabouts of the funds that were deposited into his bank account in August 2017.

Relationship with the Second Respondent

1. The question of whether the Applicant and the Second Respondent are in fact separated is an issue to be determined.  It was a live issue at the final hearing having been raised in interlocutory proceedings. The evidence given by both the Applicant and the Second Respondent regarding their relationship and whether it is ended is confusing and ultimately unconvincing.

2. At [17] of the Applicant’s affidavit sworn 5 September 2017 he states:

   “I’m currently legally married to Ms Thompson but we have never cohabitated.  I now consider the marriage to be over and there is no prospect of reconciliation.  There is one child of my marriage to Ms Thompson namely QQ aged 10 months having been born in 2016.”

3. In her affidavit affirmed 24 April 2019, the Second Respondent deposes that she met the Applicant at the end of 2013, they commenced a relationship in 2014, were married in 2016 and separated in February 2019.  She says that in about 2015 she and the Applicant began residing together in a two-bedroom apartment in Suburb TTT with her paying the rent.

4. She gives evidence that she was not aware of the Applicant’s relationship with the First Respondent when she married the Applicant in 2016 and only became aware of that relationship after the birth of her daughter in 2016.  She says that she arranged to have the Applicant followed by a private investigator who located him living in the TT Street, Suburb UU Property with the First Respondent and their two boys.

1. She says that she had a fight with the Applicant in about December 2016 over infidelity and as a result of that she moved out of the Suburb TTT property and began sleeping in the office in Suburb UUU.  She states that in or around January 2017 she moved into rental accommodation in Suburb VVV and that the Applicant moved back in with her at that time.  She then became pregnant with her second child, RR, in 2017.  She states that she continued to be actively involved in the management of businesses with the Applicant and in fact set up a number of businesses with him.

2. She stated in or around February 2019 they separated due to the Applicant’s infidelity, financial issues that they were having together and the stress of these proceedings.  She said that at present (when she affirmed the affidavit on 24 April 2019) the Applicant was living with the children in the apartment in Suburb VVV and that she had vacated those premises in about February 2019 and that she had moved in with a friend because the Applicant did not have any alternative accommodation.  She said that she would spend time with the children every night after she finished work for the day.

3. In oral evidence before the Court at the final hearing, the Applicant gave evidence that the children spend every night at the Applicant’s house in Suburb VVV. The Second Respondent gave evidence that he sees the children every day and to quote her evidence (see: line 15 on page 152 of the Transcript dated 3 March 2020).

   “(he) sees the children everyday but he didn’t spend all the time with the children. So during the day he goes to work and I spend time with the children. When he finished work he – he comes back to the children to sometimes – some nights pick up the children to look after the children. Some nights I spend the night with the children.”

4. The Applicant gave evidence (which was unchallenged) that the children QQ and RR live with him (see: line 20 on page 67 of the Transcript dated 2 March 2020) at Suburb VVV and are in his full time care. He said the Second Respondent lives with a friend.

5. The Second Respondent gave evidence that she lives with a friend ‘Ms E’ in a two bedroom apartment. In her 24 April 2019 affidavit she said that the children live with the Applicant because she had moved in with Ms E. She says that she lives in the apartment, the children live with her and sleep in her bed. She said that they had not moved in with her when she first moved into the apartment because she needed to bring furniture, clothes including for the children and window blinds into the apartment. She said at the hearing “they have lots of stuff. You need days, weeks, maybe - maybe months” (see line 10 on page 165 of the Transcript dated 3 March 2020).

Administrative Appeals Tribunal decision

1. The issue of where the Second Respondent lived and indeed whether she was separated was raised in X Pty Ltd. That is a decision of the Administrative Appeals Tribunal (the AAT) dismissing an application for review of a decision of the relevant authority to cancel the registrations of X Pty Ltd and whose Chief Executive Officer was the Second Respondent.

2. In the AAT decision, the Second Respondent put on a witness statement dated 3 July 2019 and gave oral evidence in support of submissions that if a stay of a decision of the Authority made on 20 May 2019 to cancel the registration of X Pty Ltd as a registered organisation was not granted, she would lose her house. This evidence, outlined below, is in direct contradistinction with the evidence put by the Second Respondent in this Court regarding her living arrangements.

3. The AAT noted at [63] that the Second Respondent’s witness statement made the following statements:

   2. We have invested our life savings in X Pty Ltd. It is very much our family business and the sole source of income for our family (mine and Mr Sutton’s) family

   12. As security for the above commitments, we have re-mortgaged our family home in ZZ Street, Suburb AAA which the primary place of residence for me, my husband, our four young children and my ageing parents for whom we are also financially responsible. Attached as annex “L” is true copy of the second mortgage loan documents.

   13. In addition to the above, we have committed to our new tenancy for 10 years at $180,000 per annum plus GST plus outgoings which equates to around $2,120,000. A copy of our new lease is attached as annex “M”.

   14. When all investments is made, we will have invested $3,158,875 into X Pty Ltd with a rental liability of $2,120,000 for the duration of the lease we have entered into and personally guaranteed, a combined $5,278,875.

   23. If the cancellation of our license went in effect, or if we are unable to operate the business over the coming months, that would likely mean the end of our license and personal bankruptcy for me and my husband …

   24. We would lose all our investments to date. The security we have provided for the money we have borrowed to invest would likely be enforced. We would not be able to repay these debts. We would need to declare bankruptcy. We would lose our family home. Eight people, including our four young children and my two elderly parents, would lose the only roof over their heads.

   (emphasis added in original decision)

4. At [64] the AAT emphasised that the Second Respondent had stated the end of the statement under the signature:

   “all the facts and circumstances contained in this statement are true and correct to the best of my knowledge and belief.”

5. At [65] the Member considered the following exchange that took place at the stay hearing during cross-examination of the Second Respondent.

   COUNSEL FOR Authority: In your statement, you say you’ve re-mortgaged your family home and that if a stay is not granted — so, you refer to re-mortgaging it at paragraph 12 and you say that the family home could be lost. Is that the family home at ZZ Street, Suburb AAA? — Yes, Suburb AAA.

   Do you live there? — Not at the moment

   Right. So, you don’t live there and it’s on the market, isn’t it? — On the market, yes.

   So, you can’t lose something that you’re already not living in and that you have sale? Ms Thompson, you’ve said they will — eight people will not have a roof over their head because you will lose your family home at ZZ Street, Suburb AAA and that is not true, is it, because you’re not living at ZZ Street, Suburb AAA and it’s already on the market isn’t it? — It is on the market. It’s for sale, regarding the Family Court things and at this moment, it is still our house.

   Okay? — Yes.

   What do you — when you say “Lose a roof over their heads”, because you will lose your family home, that’s not true, because it’s not the roof over your head, is it? — It is, technically.

   Who owns that house then? You don’t own it, do you? — Not under my name.

   Well that’s exactly what ownership means.

   MEMBER: Ms Thompson, who owns the house? — My husband.

   COUNSEL FOR Authority: No, that’s not true either. Who owns the house, Ms Thompson? — K Group.

   Thank you Ms Thompson? — Yes.

   That’s now correct, and this is another company. That’s right, isn’t it? — That’s a company that holds the properties.

   Right and —

   MEMBER: Sorry, a company that hold properties? — Yes.

   So it’s an investment property company. Is that what you mean by that? — N, it’s a family trust set up to hold all the properties.

   Okay? — Yes..

   [66]  Counsel for Authority sought to ascertain from Ms Thompson why the company that owned the ZZ Street, Suburb AAA property could not obtain loans from banks and needed to go to private financiers (at a significant cost). The Tribunal notes Ms Thompson’s response to this inquiry and the exchange that followed:

   COUNSEL FOR Authority: You just explained the reason you had to have unfavourable loan terms was because you couldn’t obtain a second mortgage from a bank — or the company that owns ZZ Street, Suburb AAA? — That’s the situation about Family Court issues cause everything, yes. I don’t know if it’s proper to mention in this court, but obviously [?] … the K Group company got issues, so I have to borrow money from other finance companies with this high interest.

   Are you a director of K Group? — No.

   Okay, so you don’t own that house. K Group owns it and you’re not a director of K Group? — No.

   [The land title search for the ZZ Street, Suburb AAA property was tendered into evidence by Authority]

   MEMBER: Is it — just to short cut things — is that the trustee of the family trust for — Ms Thompson, is Authority? — It’s owned by Mr Sutton.

   The company is. So, he’s the sole shareholder of K Group. Yes, so it’s a private company, its not a trustee for a family trust? You said before, a family trust to hold properties. What did you mean by that? Is K Pty Ltd a trustee for your family trust? — I think that’s Mr Sutton’s company who — —

   His private company? — Yes, as a private company set up for holding all the properties that he owns, yes.

   Okay. So, your best understanding is that K Pty Ltd is a private company? — M-mm.

   Of which Mr Sutton owns 100 per cent of the shares? — Yes.

   And when you’re referred before to Family Court proceedings, are you still — do you remain married to Mr Sutton? — We are separating at the moment.

   So, you’re separating right at the moment? — Yes.

   Okay and does Mr Sutton still live in the property at ZZ Street, Suburb AAA? — No.

   No, So, neither of you live there anymore. Is it being rented? — No

   COUNSEL FOR Authority: Ms Thompson, you’ve moved to a new address. That’s right, isn’t it? — Yes.

   When you said in your statement that you would lose the only roof over your head, you have a different roof over your head now, don’t you? — Which needs renting properties. Renting properties.

6. At [68] –[69] the tribunal held:

   [68] Ms Thompson has sought to give the Tribunal the impression if the Tribunal does not order a stay, it would result in Ms Thompson and her seven other family members being turned out of their family home onto the street. Based on the evidence outlined above, the Tribunal considers this to be far from the case.

   [69] Firstly, the re-mortgaged property to which the Tribunal was referred in Ms Thompson’s statement is not occupied by any of Ms Thompson’s family members, including Mr Sutton. In any event, that property is not owned by either Ms Thompson or Mr Sutton (it is owned by a private company, related only to Mr Sutton). It is currently vacant and being marketed for sale.

   Ms Thompson and Mr Sutton now live separately in rental accommodation. Ms Thompson made a statement that the business of X Pty Ltd was the only source of income for their family. The financial reports indicate that this business has only ever operated as a considerable loss. Ms Thompson gave evidence that she does not draw a salary from X Pty Ltd. Ms Thompson also gave evidence that Mr Sutton was not being paid any fees by X Pty Ltd. If the Tribunal is being asked to accept this evidence, it would be inconsistent for the Tribunal to accept as true Ms Thompson’s statement that X Pty Ltd was the sole source of income for her family as in fact, the evidence revealed that X Pty Ltd has provided no income for her family and this has been the case since 2017.

7. Whilst the Tribunal stated that the Second Respondent and the Applicant now live separately in rental accommodation, given the uncertainty of the evidence given by them in this proceeding and the Second Respondent’s propensity to mislead in a blatant way as was found by the Tribunal at [71] – [72] of its decision, the Court does not accept that these parties have in fact separated. I provide reasons for this conclusion below.

8. The Second Respondent’s response to the Court in questions from her Counsel in relation to a statement of the AAT was:

   Okay.  There was a paragraph from transcript of AAT proceedings put to Mr Sutton in which you were quoted as saying that you were in the process of separating?‑‑‑Yes.  That was me – corrected the affidavits in court in front of the judge.

   You corrected the affidavit?‑‑‑Yes.

   What do you mean by that?‑‑‑Because of – that affidavit was drafted by one of the solicitors who’s trying to save X Pty Ltd’s licence, so he just drafted this affidavit for me.  I just signed on it and when it had come to the court – the tribunal then I found out that it wasn’t described correctly.  So I corrected the situation in front of the judge.  I said we are separating.

   Right.  What do you mean by “separating”?‑‑‑Because of this case – it has not finished here so I was still separating, not separated.

   (see: line 30 on page 152 of the Transcript dated 3 March 2020).

9. I do not accept this as a reasonable explanation for the evidence given before the AAT and I do not accept that a witness can “correct” sworn evidence by simply saying “what I said previously was drafted by someone else.” I presume that the witness statements filed by the Second Respondent in the AAT proceedings were made on instructions and no evidence was led to suggest that not to be the case.  The Second Respondent has professional qualifications from a leading Australian university and she has the capacity to understand what she signs.

10. The combination of factors and the unreliability of the evidence of the Second Respondent lead me to conclude that I am not satisfied that she has in fact separated on a final basis from the Applicant.  I find this for these reasons:

    a)contradictory and unsatisfactory evidence is given about where she and her children live and how much time they actually spend with her and the Applicant;

    b)the false evidence that she gave the AAT;

    c)she has not actively sought to ascertain the true position regarding the asset pool.  Although the Second Respondent did make an application to set aside the transfer of farming interests from the Applicant to Mr Finch, that application was discontinued;

    d)the Second Respondent gave sworn evidence that she has either directly or as a medium for others sourced about $14,000,000 which has been provided for use in businesses associated with the Applicant.  She has taken no active role, save for making the application referred to above which she discontinued, in seeking to protect her interests or to ascertain the asset pool or to ascertain what has happened to those funds;

    e)the fact that the Applicant and the Second Respondent’s business interests appear to be so closely intertwined does strongly suggest that they have not finally separated particularly when considered with the other factors in combination.  Mr A gave evidence that the Second Respondent was very closely involved in the running of businesses associated with the Applicant and this evidence was not challenged.  Mr A also gave evidence that from his own knowledge he was aware that both the Applicant and the Second Respondent created false invoices and false documents in the course of running the various businesses they are associated with.  That evidence was not challenged by either the Applicant or the Second Respondent; and

    f)the Second Respondent is not a truthful witness (as was found by the AAT) and similarly the Applicant is not a truthful witness. I do not accept their evidence on any matter of substance without it being verified by some other credible means. The Second Respondent’s house mate could have been called on as a witness in relation to the living arrangements of the Second Respondent but was not.

11. I do not rely on the photographs showing the Applicant and the Second Respondent and their children together at a Christmas party and visiting the Suburb WWW Shopping Centre on dates after February 2019 to establish that they are not finally separated. The scenes depicted could have occurred whether or not the parties were finally separated.

12. Given the serious discrepancies in the evidence given by them as to when the relationship is said to have concluded and the fact that their interests are so closely intertwined in relation to the various businesses that they run makes it more probable than not that they have not separated and that the Second Respondents claims are largely designed to undermine the claims made by the First Respondent.

13. I do not accept the evidence of the Second Respondent in relation to her level of contributions to enterprises conducted by the Applicant.  The claims by the Second Respondent to matrimonial assets and in particular to the business W Pty Ltd are unsubstantiated. Her claims to have invested substantial sums of money (at one point she claimed to have invested directly or on her own behalf or on behalf of others about $13 million into enterprises conducted by the Applicant and her) are unsubstantiated and unless her own evidence is verified by some other credible source I would not accept anything that she said. The evidence of the Second Respondent regarding contributions to the farming businesses given after her records had been examined by an accountant was that she has made direct financial contributions of $171,000 (see: affidavit of Second Respondent sworn 21 August 2019 at [5]). She had previously sworn that she had contributed about $3,000,000 (see affidavit of the Second Respondent sworn 1 July 2019 at [15] – [16]).

14. The only assets that appear to be available to be distributed between the parties are the shares in W Pty Ltd and the sum of $225,200 held in trust by the First Respondent’s solicitors. The shares in W Pty Ltd are currently held by Q Pty Ltd, which is a company of which I am told the Applicant is a director.[1]. The Applicant gave evidence that the shares are valued at about a dollar each and Q Pty Ltd owns 7,360,000 shares.  Given the amounts of money flowing in and out of accounts controlled by the Applicant, there may be other funds or assets which are to be the subject of orders in this Court but they have not been discovered nor is it possible for the Court to properly ascertain what they are, largely because of the conduct of the Applicant.

    [1] No company search was produced to the Court in relation to that company.

15. The Applicant’s evidence about the value of those shares is unreliable and it may be the case that the shares are without value. The Applicant gave evidence that he is the creator of the intellectual property to be utilised by the company and the driving force behind it. I expect that any investor invited to invest in this business will do their due diligence and discover the Applicant’s extremely poor record across a range of businesses, some which have properly been the subject of media comment. I also expect that they will conduct a search of corporate records and discover the number of businesses that he has had some involvement in which have been wound up in insolvency or are subject to external examination. It may well be that the shares held by Q Pty Ltd are of negligible value and I take that into account in considering whether the orders made are just and equitable.

Relevant authorities – consequences of non-disclosure

1. Following the Full Court decision in Chang v Su [2002] FamCA 156 (Chang v Su), the Court should not be ‘unduly cautious’ about making findings in favour of the innocent party and in circumstances where there has not been full and frank disclosure of financial circumstances by a party, it is open to a Court to find that an indeterminate undisclosed amount is held by one of the parties and to make property orders without reference to the overall pool: In the Marriage of Stein(1986) 11 Fam LR 353 (1986) FLC 91–779; In the Marriage of Mezzacappa(1987) 11 Fam LR 957 ; (1987) FLC 91–853 ; In the Marriage of Black and Kellner(1992) 15 Fam LR 343 ; (1992) FLC 92–287 and In the Marriage of Weir(1993) 16 Fam LR 154 ; (1993) FLC 92–338 .

2. In this case I find that the Applicant has deliberately failed to make full and frank disclosure of his financial circumstances and has put the First Respondent to a substantial expense in seeking to either ascertain the relevant assets or to restrain the Applicant from disposing of them in breach of the orders. This is a case where Chang v Su should be applied in favour of the First Respondent.

Contributions and Future Needs

1. The Applicant has made contributions to the welfare of the family and his young children. The Applicant accepts this will become greater as the children get older.

2. The First Respondent has significant future needs as she has the care of the two young children without financial support from the Applicant.  The Applicant gave evidence that she was working as a customer service officer and in receipt of a modest income. The First Respondent needs to provide accommodation for herself and her children. There is no evidence that the First Respondent has re-partnered or has other financial supports. Notwithstanding the large sums of money passing through the Applicant’s hands he does not pay child support. It is likely that she will have to find alternative accommodation given the state of the mortgage on the TT Street, Suburb UU property where she resides with her children.

3. She has been put to great cost in these proceedings and it would appear from the evidence that the Applicant has failed to make full and frank disclosure of all assets that he does have and I assume that there are assets available which have not been disclosed.  I also find that the Second Respondent has in fact not separated from the Applicant and is still closely involved in business enterprises with him and in those circumstances it is not appropriate for there to be a property division in her favour.  I find that because they are still in a relationship that she will receive the benefit of the nondisclosure by the Applicant and that she will have access to those assets that the Court presumes have not been disclosed by the Applicant in these proceedings.

4. Given that the assets in W Pty Ltd such as they are the only assets available I will make orders in the terms sought by the First Respondent on the basis that those orders are just and equitable. It is the only asset available and the likelihood is that it is worth far less than the value placed on it by the Applicant.

5. In relation to the sums which were the subject of orders made on 16 September 2019 in particular:

   a)funds held by Ms H in the sum of $15,000, which were ordered to be repaid to G Lawyers, both the Applicant and First Respondent agree that those funds should be treated as having being retained by the Applicant; and

   b)funds held by F Lawyers, both the Applicant and First Respondent agree that orders shall be made that those funds be directed to be paid to the First Respondent in partial satisfaction of a costs order made in her favour on 25 October 2019.

6. Given the conduct of the Applicant as disclosed through the course of these proceedings and in particular his conduct in falsifying documents and providing false evidence I will make orders that the Registrar of the Federal Circuit Court of Australia forward to the Commonwealth Director of Public Prosecutions the Reasons for Judgment delivered as well as the Transcript of the entire proceedings along with the Exhibits (relating to those proceedings) for a consideration by the Commonwealth Director of Public Prosecutions as to whether or not the Applicant should be prosecuted having regard to the findings made by the Court in these Reasons for Judgment.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate:

Date: 7 August 2020

Corrections

1. Paragraph 72, line 7 – amend ‘property being’ to ‘properly been’.

“Annexure A”

(Annexures omitted)

“Annexure B”

(Annexures omitted)