Trang & Kingsley

[2017] FamCAFC 120

FAMILY COURT OF AUSTRALIA

TRANG & KINGSLEY [2017] FamCAFC 120

FAMILY LAW – APPEAL – where the trial judge determined it would not be just and equitable to alter the property interests of the husband – where the only property capable of identification and valuation was held by the husband – where the wife had failed to make full and frank disclosure of her financial circumstances – where the wife had had access to at least $250,000 in the period immediately prior to and post-separation and failed to make proper disclosure in respect thereof – where the appellant wife contended the trial judge had regard to a document she did not rely upon – where the appellant contended that the trial judge misapprehended her evidence in respect of the husband’s initial contributions – where the appellant contended that the trial judge erred in his treatment of the funds the wife had access to – where no material error demonstrated – appeal dismissed with costs.

Family Law Act 1975 (Cth)

Chang v Su (2002) FLC 93-117
de Winter v de Winter (1979) 23 ALR 211
Stanford v Stanford (2012) 247 CLR 108
Weir & Weir (1993) FLC 92-338

APPELLANT: Ms Trang

RESPONDENT: Mr Kingsley

FILE NUMBER: MLC 8207 of 2014

APPEAL NUMBER: SOA 93 of 2016

DATE DELIVERED: 6 July 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Strickland, Murphy & Kent JJ

HEARING DATE: 6 July 2017

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 19 September 2016

LOWER COURT MNC: [2016] FamCA 790

REPRESENTATION

COUNSEL FOR THE APPELLANT: Dr Smith

SOLICITOR FOR THE APPELLANT: Lampe Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Hutchins

SOLICITOR FOR THE RESPONDENT: Zeno Lawyers

Orders

1. The appeal be dismissed.

2. The appellant wife pay the costs of the respondent husband of and incidental to the appeal with such costs to be assessed in default of agreement.

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 Trang & Kingsley 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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 93 of 2016
File Number: MLC 8207 of 2014

Ms Trang

Appellant

And

Mr Kinglsey

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

Kent J

1. Mr Kingsley (“the husband”) and Ms Trang (“the wife”) commenced cohabitation in 1992, married in 1993 and separated in March 2014. Their marriage produced three children aged 18, 17 and 13 years respectively at trial.

2. On 19 September 2016 Cronin J determined property settlement proceedings between the parties pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). His Honour found that the property interests of the husband, including prepaid legal fees of $35,000, had a total value of $793,000 and constituted the entirety of the property interests of the parties capable of being both identified and valued, save for the wife’s superannuation interest worth approximately $35,000.

3. A significant issue at trial was the wife’s use of funds in the period immediately prior to separation, and in the post-separation period. The trial judge found that the total sum involved was probably in excess of $250,000.

4. Based upon findings, unchallenged on this appeal, as to the wife’s abject failure to make full and frank disclosure of her financial circumstances and likewise unchallenged findings as to the wife’s failure to provide credible evidence, the trial judge was unable to specifically identify and value the property interests of the wife, including interests in real property in Country A the wife was found to have, save for her superannuation interest.

5. His Honour determined that it would not be just and equitable to alter the property interests of the husband in favour of the wife and dismissed the wife’s application for such orders. The wife appeals from that determination. The husband opposes the appeal.

Brief summary of the parties’ financial history

1. Both parties worked during the marriage, mainly in a hotel business they acquired in 1997. Three residential properties were bought and sold during the marriage. In 2003 the husband suffered an accident precluding him from engaging in employment. From then the husband assumed the primary care role for the children. The parties ceased to operate the hotel business in 2005, and in September 2008 the hotel was sold and a capital sum of approximately $1.1million derived from that sale was held by the husband and was thereafter used for the family’s financial support. The husband also applied his inheritances from his parents totalling approximately $240,000 to the marriage. From about 2005 the wife engaged in employment accumulating funds under her own control, not applied to the family. The wife received a partial property settlement of $70,000 in January 2015 from the capital fund held by the husband.

2. Simultaneously with separation on 28 March 2014 the husband purchased B Street as a home for himself and the children from the capital fund.

3. At trial, as found by the trial judge at [77], the property interests of the husband comprised:

   B Street  $295,000

   The husband’s cash  436,000

   The husband’s pre-paid legal fees  35,000

   The Mr G loan  27,000

   Sub total  $793,000

4. As already noted the highly experienced trial judge exercised his discretion in determining that in the circumstances of this case it would not be just and equitable to make any alteration of the property interests of the husband in favour of the wife.

Issues on appeal

1. Ground 1 of the wife’s Further Amended Notice of Appeal filed on 5 April 2017 baldly asserts that the trial judge failed to afford the wife procedural fairness.

2. As expressed, this is not a proper ground of appeal. It is devoid of particulars sufficient to identify the actual error it purports to assert.

3. Resort to the wife’s summary of argument is necessary to discover that the complaint is that the trial judge had reference to, and relied upon, the wife’s own case outline document for trial filed in February 2016, despite his Honour having expressed that it would be ignored, and thus failed to afford the wife procedural fairness.

4. Whilst the summary of argument broadly asserts that the trial judge relied upon the contents of the case outline document to inform his findings and conclusions, the sole particular for that proposition which is identified in the summary is the assertion that the trial judge relied upon the case summary document to “corroborate the husband’s allegation that he made an initial financial contribution of $55,000”. Whilst in oral argument Dr Smith of Counsel for the wife suggested that there were other respects in which the trial judge made reference to the case summary document, he acknowledged that the only material error contended for was that referred to: namely, the reference to the document for the finding in respect of the husband’s initial contribution.

5. By Ground 2 the wife contends that the trial judge misapprehended the wife’s evidence in respect of the husband’s initial contribution, purportedly in reliance upon the wife’s case outline document.

6. Ground 3 as expressed, asserts that the trial judge “erred at law in his treatment and assessment of the parties’ contributions to the assets”. It is not a proper ground of appeal as it fails to particularise or identify the error it purports to assert.

7. Again, only by reference to the wife’s summary of argument is it discovered that the complaint sought to be agitated is directed to the manner in which the trial judge dealt with the “sum of $250,000” not only in assessing the parties’ contribution based entitlements under s 79(4) of the Act, as the ground indicates, but also with respect to the trial judge’s consideration of s 75(2) matters.

8. Ground 4 is likewise directed to the trial judge’s treatment of this issue. By this ground it is contended that the trial judge erred in principle in “both ‘adding back’ $250,000 and contemporaneously making a further adjustment pursuant to s 75(2) taking into account the uncertainty about what the appellant has.”

9. In summary, the questions which fall to be answered on this appeal are:

   a)Did the trial judge err in relying upon the wife’s case outline document and in misapprehending the wife’s evidence in reaching the conclusion that the husband made an initial capital contribution of $55,000? (Grounds 1 and 2)

   b)Did the trial judge err in his treatment of the issue concerning the wife’s use of funds (a sum probably exceeding $250,000) in assessing the parties’ contributions and in considering relevant s 75(2) matters?

The trial judge’s findings concerning credit and the wife’s non-disclosure

1. It can be seen from the reasons for judgment that central to the trial judge’s determination not to alter the identified property interests of the husband in favour of the wife were the findings made as to the wife’s abject failure to make full and frank disclosure of her financial circumstances together with significantly adverse credit findings concerning the wife and her evidence.

2. These findings, unchallenged on this appeal, provide centrally important context in which the wife’s complaints on appeal fall to be considered.

3. The trial judge’s findings in this respect included findings that:

   a)The wife used supposed language difficulties to give evasive evidence; [5]

   b)Despite two opportunities to file a comprehensive picture of her financial circumstances and the financial history of the marriage, the wife acknowledged during her cross examination significant errors in her affidavit evidence; [11]

   c)The wife embellished her evidence on disputed issues of fact; [12] and [17]

   d)The wife made statements of a sweeping or broad brush nature about what she did with money she had earned and retained in an account in her sole name, and documentary evidence demonstrated the wife’s statements to be inaccurate; [13]

   e)The wife gave deliberately misleading evidence as to her ownership of property in Country A; [14]

   f)The wife gave deliberately misleading evidence as to the use of funds within her control; [15]

   g)There was little about the evidence of the wife which was reliable; [19]

   h)The wife failed to disclose documents and information, and failed to plausibly explain in evidence the total of amounts, timing and purpose of funds she transferred to Country A ([41] to [48]). The wife’s evidence on this topic was deliberately misleading; [49]

   i)In “a very short space of time prior to separation”, and in the two years since then the wife disposed of “over $250,000”, or amounts which “probably exceed $250,000”; [50]

   j)The wife’s evasiveness in evidence, unresponsiveness in disclosure and secrecy about bank accounts are all good reason to doubt that the wife has “given away” all of the money she transferred to Country A. The wife was “making up” her evidence on this topic; [52]

   k)The wife failed to disclose issues concerning her ownership of property interests in Country A: was not candid in her evidence on that topic: and the wife has property interests she has not disclosed, and the wife “does not want the Court to know about them”; [53]

   l)No explanation was given by the wife as to the use of $70,000 received by her as partial property settlement and her evidence that none of that sum remains was rejected; [75]

   m)The wife resisted the husband’s request for cooperation concerning valuation of her property interests in Country A. The wife’s property interests in Country A were incapable of identification and valuation; [85].

4. In stark contrast to the trial judge’s findings concerning the wife, the trial judge found the husband to be a credible witness whose evidence was plausible, reliable, and was accepted in preference to that of the wife on numerous issues of disputed fact (see, for example, [18], [19], [25], [26], [48], [49] and [51]). The trial judge found that the husband was able to plausibly explain the use of money and that he generally corroborated his evidence with documents [10].

Was the trial judge’s determination as to the husband’s initial capital contribution infected by any errors?

1. The husband provided clear and unequivocal evidence in chief, via his affidavit for trial, of his initial capital contribution and the use to which it was put in acquiring the property referred to in the proceedings as C Street (paragraphs 28 and 29 of the husband’s affidavit filed 10 February 2016 and the bank statement annexed at “SWK03”).

2. More than once, prior to the wife undertaking cross-examination of the husband at trial, the wife was specifically instructed by the trial judge that if she sought to dispute the husband’s evidence about an issue she must challenge him in her cross-examination. The trial judge specifically instructed the wife that if she did not so challenge the husband it was likely that the husband’s evidence would be accepted (Transcript 4.8.16 p 4: lines 30-35 and p 7: lines 30-35).

3. The wife did not challenge the husband in cross-examination on his evidence as to his initial capital contribution and the use to which it was put. Absent that challenge, and in light of the respective credit findings already referred to concerning each of the parties, not only was it legitimate for the trial judge to accept the husband’s evidence on the issue, but any other conclusion would have been untenable.

4. The trial judge’s central findings in respect of the initial contributions of the parties and the acquisition of the first property can be found at [26]:

   26.The husband’s evidence was that he is 54 years of age and the wife 52 years of age.  The parties acquired a property in [C Street, Suburb D] in 1993 for $65,000 of which he provided $55,000 from his savings.  Curiously, right at the end of the case, the wife disputed that and said each had begun the relationship with nothing.  That flew in the face of her previous lawyers’ outline and her own evidence (paragraph 15).  She said the first house came from “savings” and that the husband had told her when they met that he was “broke”.  But the first purchase was very early in the relationship and at a time when they were both working as cleaners.  No documents were produced by the wife to dispute the husband’s assertions about the limited mortgage they obtained.  It is more probable than not that the husband had savings because the wife concedes she knew little about his affairs.  Without savings in existence before the relationship, the acquisition of the first property could not have occurred because of the limited borrowings.  I therefore prefer the husband’s version.  That amount was significant in the contribution assessment.  Ten years later, [C Street] was sold for a significant profit and at which stage, the debt had been paid.  The proceeds of $310,000 went into the reduction of the hotel mortgage.  The hotel is mentioned shortly.

5. What the trial judge recorded at [26] as quoted dispels the notion that the trial judge misapprehended in any way the wife’s evidence. The trial judge made specific reference to the wife’s evidence to demonstrate the inconsistency between the wife’s evidence and the facts surrounding the purchase of the property. More fundamentally, as [26] records, the trial judge accepted the husband’s evidence in chief on the issue. That acceptance required no “corroboration” or acknowledgement or admission on the part of the wife, whose evidence overall the trial judge found to be unreliable.

6. It is plainly evident that the trial judge made his findings on the basis of preferring the husband’s evidence to that of the wife. While his Honour observed the “curiosity” of the wife’s shifting case, including by reference to the case outline document, his Honour plainly did not rely upon any alleged concession made by the wife about the husband’s initial contributions in making the finding on that issue.

7. It follows that even if it could be demonstrated that in the circumstances the trial judge was in error in referring to the wife’s case outline document, any such error was entirely immaterial to the trial judge’s ultimate finding, based as it was upon acceptance of the husband’s direct evidence on the topic (de Winter v de Winter (1979) 23 ALR 211).

8. As to that asserted error and the wife’s contentions concerning the purported use by the trial judge of the wife’s case outline document filed in February 2016, all that need be said is that in the early stages of trial, before oral evidence commenced, the trial judge made repeated references to the wife’s case outline in an attempt to elicit from the wife the orders which she actually sought, as well as in respect of items of property and values that were agreed (Transcript 4.8.16 p16: lines 5-10). The wife could not conceivably have been in any doubt about the trial judge’s use of the document. When the statements of the trial judge are considered as a whole it is tolerably clear that his Honour’s initial reference to ignoring the content of the document was in respect of orders sought by the wife as identified in the document. That is, the trial judge was at some pains to elicit from the wife the orders she sought at the outset of the trial. As is apparent, notwithstanding concerted and repeated efforts by the trial judge, the wife did not provide in advance of the oral evidence at trial proceeding any detailed orders she actually sought.

9. No error on the part of the trial judge is demonstrated in respect of the trial judge’s findings concerning the husband’s initial capital contribution. There is no merit in Grounds 1 and 2.

Did the trial judge err in his treatment of the issue concerning the wife’ s use of funds? (Grounds 3 and 4)

1. It is convenient to largely deal with Grounds 3 and 4 together as each challenge the trial judge’s treatment of the sum of “probably in excess of” $250,000 used by the wife in the period immediately leading up to and following separation.

2. Grounds 3 and 4 assert:

   3. The learned trial judge erred at law in his treatment and assessment of the parties’ contributions to the assets.

   4. The learned trial judge erred in principle in both “adding back” $250,000 and contemporaneously making a further adjustment pursuant to s 75(2) taking into account the uncertainty about what the appellant has.

3. The starting point to consideration of these complaints is to emphasise two fundamental aspects of this case. First, by reason of the wife’s failure to explain her use of substantial funds in a total amount not quantifiable, allied with the wife’s abject failure to fully and frankly disclose her financial circumstances (including as to her property interests in Country A) only property interests held by the husband were capable of identification and valuation. Moreover, as the trial judge correctly observed at [68] in considering the first question of whether it is just and equitable to make any alteration of property interests, by reference to Stanford v Stanford (2012) 247 CLR 108, “[i]n reality any alteration could only be one way because the husband did not seek any alteration of the interests of property held by the wife”. Second, as his Honour correctly identified at [64] and [65] the guidelines to the approach to be taken set out in Weir & Weir (1993) FLC 92-338 and Chang v Su (2002) FLC 93-117 were engaged.

4. The wife contends (by Ground 3 as elaborated in her summary of argument) that the trial judge “assessed contributions without taking into account the uncertain assets, which he found (the wife) to have accessed and expended”. That contention is referenced to [89] of the trial judge’s reasons.

1. The trial judge did not make a finding either at [89] or elsewhere in the reasons, that the “uncertain assets” were “expended”, and the wife’s summary of argument fundamentally distorts the findings the trial judge actually made.

2. As already referred to, by reason of the wife’s own abject failure to make full and frank disclosure and to plausibly explain her use of funds the trial judge was unable to quantify precisely the total amount used by the wife for her own purposes. As already noted, the trial judge found that the sum involved probably exceeded $250,000 in total ([50]). The “uncertain assets” referenced in the wife’s summary of argument are more accurately “the uncertain property” which the trial judge referred to as being whatever property interests, including interests in property in Country A, the wife held but failed to make full and frank disclosure about ([41]-[53]) and failed to have valued ([85]).

3. That is, not only did the wife’s failure to make full and frank disclosure render precision about the total amount of funds involved in the wife’s dealings unattainable, it also rendered the identification, and valuation, of the wife’s property interests unattainable.

4. The wife’s summary of argument on appeal ignores that on the unchallenged findings of the trial judge the wife has had the sole benefit of, and retains the product of, funds exceeding $250,000 in total used by the wife for her benefit, together with the $70,000 she received as partial property settlement.

5. To compound the distortion of the trial judge’s findings further, the wife’s summary of argument in support of Ground 3 appears to proceed on the basis that the wife is to be treated as the sole contributor to the subject funds given that they are sourced to the wife’s employment earnings and receipt of Centrelink benefits. This ignores the trial judge’s findings to the effect that it was the husband who fulfilled the primary homemaker and parenting role prior to separation ([80] and [81]) and a sole parenting role since May 2015 ([87]); and that unknown to the husband Centrelink benefits were overpaid to the wife and whilst retained by her, were repaid mainly from joint capital held by the husband ([71]). No account is taken of the trial judge’s finding that whilst the wife accumulated and retained funds in her own control, none of those funds were used for the benefit of the family in that even the wife’s own support was met from joint funds prior to separation.

6. As already referred to, the trial judge found that the husband’s initial capital contribution was significant in terms of the use made of it. Also, relevant to the worth of the husband’s property interests totalling $793,000, the trial judge found that the husband had contributed funds inherited by him from the respective estates of his parents totalling $241,192 ([84]). The trial judge accepted the husband’s evidence, not disputed by the wife, that during the marriage the wife sent $190,000 to Country A ([83]). Up until its sale in 2008 the parties operated a hotel business but for many years prior to separation the husband was unable to work due to an accident and the family relied upon capital from the sale of the hotel business for support ([70] and following). The husband’s homemaking and parenting contribution and sole parenting contribution from May 2015 was identified as a significant contribution by him ([87]).

7. Thus, the trial judge summarised his ultimate conclusions concerning contribution in [88] and [89] as follows:

   88.I am satisfied that the contributions by the husband are overwhelming greater than the wife.  His initial contribution gave the parties a huge start in life that ultimately ended in the sale of the hotel.  The parties would not have had that benefit had it not been for the initial savings.  The inheritance is significant in this case because it was a large sum of money in both cases in the context of the current assets.  All of that money went towards the support of the family which means that otherwise, the capital sum upon which the husband was living would have been less.

   89.There is no doubt that both parties worked as a unit in respect of the business until it came to an end and fulfilled various tasks in respect of homemaker and parent roles.  The wife’s role in that business culminated in the profit from the sale to which she must be seen to have made a contribution.  It is important to recognise that, subsequent to separation, all of the physical support for the children has been as a result of the efforts of the husband.  Similarly, the financial support for the children has been entirely from capital to which the wife has made an indirect contribution because of her role in the hotel.  On any view, the contribution by the husband outweighs that of the wife and I would assess that as to 65 per cent to the husband and 35 per cent to the wife.  In so doing, I have not taken into account the uncertain assets to which I earlier referred.

8. It is asserted by the wife that his Honour effectively double counted “$250,000” by adding that sum back and also by having regard to it when making a further adjustment pursuant to s 75(2) of the Act.

9. The wife further asserts that, in engaging in the assessment his Honour undertook at [94], the trial judge effectively added back the sum of $250,000 and, in doing so, should have considered the uncontroversial source of these monies: being income and Centrelink payments to the wife. Paragraph [94] records:

   94.Because of the obligations of the husband to support the children, the slowly reducing capital which will no doubt be whittled away further, the lack of child support from the wife, the wife’s better employability than that of the husband and ultimately, the uncertainty about what she has, in my view there is a justification for a further adjustment of 10 per cent in favour of the husband.  That would mean that on a view of both a known and a notional list of assets, the husband should have 75 per cent and the wife 25 per cent.  Twenty five per cent of that total would leave the wife with effectively what she has or had and the husband with what he currently has.  If such an order was made, albeit the wife purported to say that she had nothing, she is debt free, has an earning capacity, has land in [Country A] and potentially the unexplained money.  For his part, the husband simply has the capital sum and the unencumbered home.  The unencumbered home is clearly a modest value and the capital sum will run out in due course.  Having regard to all of those factors, it is just and equitable not to make any adjustment of the husband’s assets at all in favour of the wife. 

10. There is no substance in the wife’s contention. Paragraph [94] reflects that the further adjustment was made, conventionally, by reference to relevant s 75(2) matters.

11. Ground 4 is readily disposed of as it proceeds on a fundamental misunderstanding of his Honour’s reasons. The trial judge does not add back the sum of $250,000 in his assessment of the contributions of the parties. Rather, his Honour records the difficulties with this approach at [60] and [61]. The approach adopted by his Honour is as set out at [64]:

    64.The difficulty arises in cases associated with absence of plausible explanation as to what has happened to money.  Some insight as to how that issue is to be approached can be seen from the Full Court determination in Chang v Su (2002) FLC 93-117 where Kay and Dawe JJ said [at 89,195] said that an order could only be just and equitable if it was measured against the whole of the available assets of the parties. The available assets of the parties in this case are those that are known including the assets in [Country A] but to achieve justice for both parties, the Court has to deal as best it can, with what the wife had and has disposed of and thus, the justice and equity of any order must be measured against both the known and potential notional figures.

12. That is the exercise his Honour then engaged in: assessing the justice and equity against both the known and potential notional figures.

13. Indeed his Honour records at [66] the assertions as to the contributions to these monies:

    66. I find that but for her disposal of significant funds under her control, the wife would have had much more than she now asserts and whilst it is open to speculate that the Court might not have altered her entitlement to those funds on the assumption that she had kept them separate from the husband and he had been content with that, including the [Country A] land, what the wife has taken and/or retained, would still have been taken into account in any ultimate adjustment. The justification for that approach lies in s 79(4)(e) and (f) and in respect of the former, s 75(2)(n) and (o) …

14. His Honour’s consideration of the factors enumerated in s 75(2) can be found from [90]. Specifically, his Honour records the following factors sound in an adjustment in favour of the husband:

    a)That he has the care of the parties’ children and will for a number of years have sole responsibility for them including for their financial provision;

    b)That he does not have the capacity to engage in employment;

    c)That there was no evidence to suggest that the wife did not have the capacity to enable her to return to the workforce and that she is more than capable of obtaining employment.

15. His Honour considered the treatment of the “uncertain” assets of the parties, including the sum of $250,000 disposed of by the wife and the real property held by her overseas and from [91] records:

    91.The real issue in respect of s 75(2) lies in how the Court deals with the uncertain assets. It is open to speculation as to exactly what the wife has. She clearly has land in [Country A] and has not been forthcoming in respect of proper valuations. Valuations could not be undertaken by the husband because he did not have the legal authority to do so. The wife had had ample opportunity to obtain that information and failed to do so. No doubt her position was made more difficult to undertake those valuations in circumstances where she denied the ownership which I now accept she has. Significant sums of money have been spent by the wife not only in respect of her family as I have described but also on legal fees. Her legal fees substantially exceed those incurred by the husband and no explanation has been given as to why what was so. Furthermore, she received a $70,000 partial property settlement in the early stages of the litigation. On any view, the wife has had access to and expended more than $250,000 and has the land in [Country A].

    92.If the Court assumes that the wife has unaccounted for or given her family a large sum of money, it cannot be ignored.  To give the wife 35 per cent of the known assets on top of what she already has, or had, would not be just and equitable to the husband.

    93.It is an imprecise science but if for example $250,000 was added to the known assets described above, the Court would be dividing something just over $1 million.  It may be higher depending upon the value of the [Country A] land.

    94.Because of the obligations of the husband to support the children, the slowly reducing capital which will no doubt be whittled away further, the lack of child support from the wife, the wife’s better employability than that of the husband and ultimately, the uncertainty about what she has, in my view there is a justification for a further adjustment of 10 per cent in favour of the husband.  That would mean that on a view of both a known and a notional list of assets, the husband should have 75 per cent and the wife 25 per cent.  Twenty five per cent of that total would leave the wife with effectively what she has or had and the husband with what he currently has.  If such an order was made, albeit the wife purported to say that she had nothing, she is debt free, has an earning capacity, has land in [Country A] and potentially the unexplained money.  For his part, the husband simply has the capital sum and the unencumbered home.  The unencumbered home is clearly a modest value and the capital sum will run out in due course.  Having regard to all of those factors, it is just and equitable not to make any adjustment of the husband’s assets at all in favour of the wife. 

16. There is no substance in the contention that his Honour was in error in his treatment of the wife’s use of funds either in the assessment of contributions or in consideration of relevant s 75(2) matters. There is thus no merit in Grounds 3 and 4.

Conclusion

1. There being no merit in any of the grounds of appeal the appeal ought to be dismissed.

Costs

1. In the event of the appeal being dismissed, the husband sought an order that the wife pay his costs of and incidental to the appeal. In my judgment within the meaning of s 117 of the Act there are justifying circumstances in this case for an order for costs to be made in the husband’s favour. The wife has been wholly unsuccessful in the appeal and in my view the appeal was devoid of merit. In terms of the parties’ circumstances whilst the Court is aware of the financial circumstances of the husband, at least from the reasons for judgment of the trial judge, the true financial position of the wife remains unknown. That is due to the wife’s abject failure to make full and frank disclosure of her financial circumstances. For these reasons I would order that the appeal be dismissed and I would further order that the wife pay the husband’s costs of and incidental to the appeal to be agreed or assessed.

Murphy J

1. I agree that the appeal should be dismissed for the reasons given by Justice Kent. I also agree that the wife should pay the costs of and incidental to the appeal for the reasons given by his Honour.

Strickland J

1. I agree with the orders proposed by his Honour and the reasons provided therefor.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Murphy and Kent JJ) delivered on 6 July 2017.

Associate: 

Date:  11 July 2017.