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Non-disclosure of assets: Gould and Gould

Whether a party's contribution assessment can be discounted for non-disclosure of assets – Adequacy of reasons as to Section 75(2) adjustment –

Non-disclosure of assets: Gould and Gould

(2007) FLC ¶93-333.

The Full Court finds that an error was made in taking non-disclosure of assets into account in assessing contributions.

Whether a party's contribution assessment can be discounted for non-disclosure of assets - Adequacy of reasons as to Section 75(2) adjustment

An appeal by the husband against orders by a trial judge for property settlement and costs. The trial judge divided the net assets of the parties equally, after finding that the parties had made equal contributions to the net assets and that he should make no adjustment on account of s 75(2) of the Family Law Act 1975.

The trial judge held that the husband had not been open and frank as to his personal financial affairs and applied the principles in Kannis and Kannis (2003) ¶FLC 93-135 and Weir and Weir (1993) ¶FLC 92-338, in not being unduly cautious about making findings in favour of the wife as to the net assets of the parties.

In accepting the net asset pool as proposed by the wife, the trial judge held that the husband had made a greater financial contribution, but took into account the husband's non disclosure in his determination that the contributions of the parties were equal.

Despite the trial judge's decision to make no adjustment on account of s 75(2) factors, His Honour said that had he found that the husband's contribution was greater than that of the wife, he would have made an adjustment under s 75(2) so that the overall entitlements were equal.

Held: Appeal allowed

1. The trial judge erred in taking into account an irrelevant consideration, being the husband's non disclosure, in his assessment of the parties' contributions.

2. The appropriate approach would have been to increase the asset pool to take into account non disclosure by the husband or alternatively or in addition, some adjustment in favour of the wife on account of the husband's non disclosure pursuant to s 75(2)(o).

3. The trial judge erred in failing to take into account the parties contributions to a six-year period during which the trial judge found that the parties were separated under one roof.

4. Had the trial judge held that the husband had made a greater financial contribution, in any adjustment on account of s 75(2) factors, His Honour would have needed to explain why the s 75(2) matters identified by the trial judge would have favoured the wife.

Full text of judgment below

Attachment
GOULD and GOULD - (2007) FLC 93-333

What is done for you, let it be done, what you must do, be sure you do it, as the wise person does today that what the fool will do in three days - Buddha
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