Briginshaw v Briginshaw

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

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth). In addition to the use of pseudonyms for the parties, other changes have been made to the published judgment to protect the identity of a party or a witness. Such changes (other than when a letter is used instead of a name or an address) are apparent on the face of the judgment by the use of square brackets.

1. The dispute for my determination concerns an application for property settlement brought by Mrs Narvaez ("the wife") against her husband, Mr Narvaez ("the husband").
2. The major issue in the case is whether any property still exists or is likely to still exist from which a property settlement order can be made in the wife's favour.
3. The husband, who represents himself, has repeatedly failed to comply with court orders that he file a Response, a financial statement or even a notice of address for service. The wife had initially indicated a wish to proceed on an undefended basis but ultimately did not object to the husband relying on three affidavits and he was also cross-examined by counsel representing the wife. The husband did not wish to cross-examine the wife. Submissions were made by both parties.
4. The husband's case in a nutshell is that any property the wife refers to either did not exist in the first place or has been lost by him as a result of unscrupulous unidentified third parties.
5. The wife conceded that she cannot point to any proof that property continues to exist (other than some modest balances in bank accounts, two motor vehicles, and in addition some modest superannuation balances) but invited the Court to infer that it does having regard to the unsatisfactory nature of the evidence produced by the husband and the deficiency in fulfilling his obligations of disclosure.
6. The wife is represented by a solicitor and counsel. She has funded her legal costs largely from an inheritance received after separation and her legal fees and disbursements including the estimated costs for the trial are $80,000.

1. The wife and husband commenced cohabitation in 1983 and married in South Africa on [redacted] 1990. They separated in September 2022 and are not yet divorced.
2. There are two adult daughters, aged 30 and 26 years respectively. The youngest daughter suffers from schizophrenia and has been an inpatient in several hospitals since her diagnosis in 2023. The wife contends that her daughter is financially and non-financially dependent on her.
3. The wife was born in South Africa on [redacted] 1958 and is 67 years of age. She relocated to Australia in 1991 to live with the husband. She continues to support herself through casual employment as a teacher and earns an estimated income of $36,400 per annum. Following the sale of the former matrimonial home in 2022, the wife contends she lived in temporary accommodation provided by a women's refuge. She then lived in her deceased mother's home until it was sold, and she now lives in a share house. In 2024, she received $55,000 from her mother's estate, in two payments, one in January and one in September.
4. The husband was born on [redacted] 1954 in Mauritius and is 71 years of age. He relocated to Australia in 1989. The husband contends that he is currently employed as an engineer for B Pty Ltd in Brisbane. His total income from his employment in the 2024 financial year was $148,646 according to his tax return. Three pay slips produced by the husband from August, September, and October 2024 purport to record the husband's fortnightly salary of $5,353.38 from which income tax and a superannuation salary sacrifice are deducted. However, the pay slips appear to be for a month as the 'year to date' figure only increases by the $5,353.38 each month. Under cross-examination, the husband stated that he was paid approximately $2,800 fortnightly. It is unclear whether this was before or after deductions.
5. The husband established the Narvaez Investment Trust, a discretionary trust, in 1995. He is the appointor, trustee and one of the potential beneficiaries. There is no evidence that the trust has any assets or income but in the 2022 financial year it had carried forward losses of $91,196.
6. Documents relied upon by the wife suggest that the husband was awarded a Master of Engineering Management on 22 November 2018 (D University), a Graduate Certificate in Analytics on 22 July 2021 (E University), and a Doctor of Philosophy Degree on 20 June 2022 (F University). I am unfamiliar with the latter university.
7. Notwithstanding these apparent achievements, the wife deposes that:
   1. ... [The husband] has an extensive history of mental health issues including Major Depressive Disorder, Bipolar Disorder, and Antisocial Personality Disorder.
   2. During the marriage, [the husband] had a number of extramarital affairs and relationships online and transferred joint funds to several men and women who were not known to me.
   3. There were a few occasions where he had been charged with offences in national and international jurisdictions and he would require me to bail him out.
   4. He would often lie in order to protect himself and his own interests and his behaviours were at times consistent with the symptoms of his Bipolar Disorder diagnosis, which he had been prescribed medication for.
   5. He did not adhere to his treatment regime and this had implications in all aspects of his life, in terms of his ability to regulate emotions and maintain a routine.
8. The husband concedes a history of "struggling with long-term mental health issues, including Depression, Anxiety, and PTSD". The husband contends that in 2015 he was retrenched from his engineering position and the combination of his mental illness, and the economic downturn made it difficult for him to find suitable employment. The husband contends that it was only in about early 2022 that he was able to return to full-time work and that it was necessary to sell assets "as a necessary step to support my family and pursue personal development opportunities". The husband denies having any hidden assets and contends that suggestions to the contrary are unfounded and have "only added to the stress and confusion surrounding this matter". The husband concedes that his actions may have been influenced by stress and illness and states that he "deeply regret[s] any missteps [he] may have made". The husband does not identify the "missteps" to which he refers. The husband expresses "hope that God has a plan for [him] and that [he] will be able to secure [his] family's future before it's too late".
9. The husband's tax returns for the financial years 2020-2024 evidence the following taxable income:

The husband's income included wages, Newstart Allowance of $9,504 and an Age Pension of $7,499.

The husband's income included wages and an Age Pension of $23,055.

The husband's income was comprised almost solely from an Age Pension, with a negligible amount of interest from bank accounts.

The husband's income included wages and an Age Pension of $7,051.

The husband's income included solely wages. The husband had reportable employer superannuation contributions of $13,390.

1. The wife contends that the husband sold the former matrimonial home without her knowledge and while she was away. The husband contends that the wife removed furniture and his financial records from the home prior to its sale.
2. On 18 January 2023, the husband borrowed $12,497 from G Company to purchase a car for the wife. The debt with interest at 11.6 per cent is repayable by monthly instalments of $311.63 for 59 months. The remaining debt should be about $8,708. The husband said he was committed to continuing with the repayments and there is no evidence that he is behind in his repayments. The wife still has the car.
3. A five-year protection order was made on 5 December 2019 naming the wife as the aggrieved and husband as the respondent. On 18 November 2024, the wife filed an Application to Vary a Domestic Violence Order. The varied protection order was made on 3 April 2025 and will expire on 3 April 2030.
4. These proceedings were commenced by the wife on 31 May 2024. At that time, the wife sought an urgent listing in circumstances where the husband allegedly indicated an intention to relocate overseas if proceedings were commenced by the wife. Additionally, although unrelated to the urgency, the wife contended that in 2021 the husband had transferred the sum of USD27,000,000 from a bank account in Hong Kong to a bank account in Mauritius.
5. The matter was transferred to this Court on 6 June 2024 and was adjourned three times on request before an order was made by consent on 28 October 2024 restraining the husband from removing from Australia or in any way disposing of, dealing with or diminishing the value of any assets held by him or in which he had an interest. Further provisions were included in the order regarding the husband's disclosure obligations, property valuations and document filing requirements.

1. The wife is seeking a property settlement order that within 60 days the husband pay to her the sum of $1,056.201.44 and within 30 days pay out and discharge in full the motor vehicle finance secured against the Mazda 3 motor vehicle in her possession. The precise terms of the order sought by the wife are set out in her Further Further Further Amended Initiating Application filed on 11 July 2025.
2. The husband has failed to file a Response in these proceedings despite having been ordered to do so on 4 June 2024, 28 October 2024 and 3 April 2025. He has filed two affidavits, the first on 13 November 2024 and the second on 9 May 2025. A third affidavit seemingly sworn on 7 May 2025 (though noting there were a number of dates included throughout the document) was not filed but received into evidence as Exhibit 4, along with the documents annexed to it. The husband indicated that he sought only that the wife's application be dismissed although he also indicated that he would agree to some parts of her application e.g. that they each retain their respective motor vehicles and bank accounts. It is his position that there are no significant assets remaining. The husband disputes the valuation attributed to his Toyota Landcruiser Prado by the wife and denies the existence of any gold bullion or cryptocurrency.

1. In property settlement proceedings, the Court may make such order as it considers appropriate, altering the interests of the parties to the marriage in the property of the parties or either of them, including an order for a settlement of property in substitution for any interest in the property for the benefit of the parties, and an order requiring either or both of the parties to the marriage to make, for the benefit of either or both of the parties, such settlement or transfer of property as the Court determines (s 79(1) of the Family Law Act 1975 (Cth) ("the Act")).
2. The Court must not make an order unless it is satisfied that, in all the circumstances, it is just and equitable to make the order (s 79(2) of the Act).
3. In considering what order (if any) should be made in property settlement proceedings, the Court is required, so far as they are relevant, to take into account the following (s 79(4) of the Act):

(4) ...

(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;

(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;

(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties of the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent;

(ca) the effect of any family violence, to which one party to the marriage has subjected or exposed the other party, on the ability of a party to the marriage to make the kind of contributions referred to in paragraphs (a), (b) and (c);

(d) the effect of any proposed order upon the earning capacity of either party to the marriage;

(f) any other order made under this Act affecting a party to the marriage or a child of the marriage;

(g) any child support under the Child Support (Assessment) Act 1989 (Cth) that a party to the marriage has provided for a child of the marriage.

1. The High Court of Australia in Stanford v Stanford[1] identified certain principles to be applied in property settlement proceedings. In particular, when considering whether it is just and equitable to make an order, it is firstly necessary to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.[2] Secondly, the discretion as to whether or not to make a property settlement order, although extraordinarily wide, must nevertheless be exercised in a principled way.[3] Thirdly, there is no presumption that the parties' rights to or interests in property are or should be different from those that currently exist.[4] The consideration of whether it is just and equitable to make an order should not be considered by reference only to the matters in s 79(4) of the Act. It is necessary to give separate consideration to ss 79(2) and (4) of the Act and not to 'conflate' the two subsections.[5]
2. Section 79 of the Act was recently amended, to insert the following:

(3) In considering what order (if any) should be made under this section in property settlement proceedings, the court:

(a) is to identify:

(i) the existing legal and equitable rights and interests in any property of the parties to the marriage or either of them; and

(ii) the existing liabilities of the parties to the marriage or either of them;

1. Unlike the first step in Stanford, the amendment does not qualify the identification of existing legal and equitable rights and interests "according to ordinary common law and equitable principles". The amendment also includes a requirement to not only identify "existing legal and equitable interests" but also "rights". The first step involves the identification of property not only in accordance with ordinary common law and equitable principles but also within the statutory meaning of s 79 which incorporates a broader concept of property.[6]

WHAT ARE THE EXISTING LEGAL AND EQUITABLE RIGHTS AND INTERESTS IN ANY PROPERTY OF THE PARTIES TO THE MARRIAGE OR EITHER OF THEM AND THEIR LIABILITIES?

1. The parties agree that the table below represents property and liabilities of the parties or either of them at the value assigned. Where the value is not included, I will consider each item in the table seriatim. In addition, the wife seeks to notionally add back the proceeds of sale of the former matrimonial home and to attribute a value to gold bullion of $30,000 which the husband denies ever existed. I have not included the latter two items in the table but will discuss them later in the reasons.

2004 Toyota Landcruiser Prado registration number [redacted]

National Australia Bank ("NAB") Cheque Account #9262 (account closed)

1. In relation to item 2 in the above table, the wife asserts that the husband's 2004 Toyota Prado motor vehicle has a value of $20,000 whereas the husband asserts it has a value of $5,000. There is no valuation for the vehicle. At best, it could be included in the table at a value of $5,000 based on the husband's concession.
2. In relation to item 16 in the above table, the wife asserts that ANZ Bank account number #1489 had a balance of $500 as at 31 May 2024 whereas the husband asserts he was told by ANZ to close the account and that he wrote to ANZ Bank to seek an explanation but "they refused to give details". A subpoena to the ANZ Bank issued at the wife's request on 12 August 2024 and documents were produced on 4 September 2024. The wife did not tender any documents from the ANZ Bank. There is no evidence that any funds are held in an account in the husband's name or under is control with the ANZ Bank.
3. In relation to item 17 in the above table, the husband contends that the only account he had with N Bank was a loan account which was paid out upon the sale of the former matrimonial home. The wife disclosed a bank statement for this account on 22 December 2023 for the period 1 January 2020 - 30 June 2020. The statement is referred to in her 'disclosure documents schedule' as "[N Bank] Mortgage ... Account". It would appear from this description that it was a loan account.
4. As to item 18 in the above table, the husband contends that the only account he had with N Bank was a loan account which was paid out upon the sale of the former matrimonial home. The wife disclosed a bank statement for this account on 22 December 2023 for the period 1 January 2020 - 30 June 2020. The statement is referred to in her 'disclosure documents schedule' as "[N] Mortgage ... Account". It would appear from this description that it was a loan account.
5. As to item 19 in the above table, the husband contends that the only account he had with N Bank was a loan account which was paid out upon the sale of the former matrimonial home.
6. I note that in the husband's 2023 tax return, gross interest of $3.79 from the N Bank is disclosed. The former matrimonial home was sold in the 2022 financial year. The information contained in his tax return suggests that he did have a savings account with N Bank after the sale of the former matrimonial home but as the gross interest was only $3.79, I infer that the balance was modest. I note that it is conceded at item 15 in the table that the husband has a N Bank account number #1472 in which there is a nil balance.
7. On 12 August 2024, a subpoena issued at the request of the wife to the N Bank and documents were produced on 2 September 2024. No documents were tendered by the wife from the N Bank and the husband was not cross-examined about any N Bank account. There is no evidence that there are any funds held in an account in the husband's name or under his control with N Bank.
8. The existing property of the wife according to ordinary common law and equitable principles comprises her bank account balances of $30,599 and a car valued at $7,500. The existing property of the husband according to ordinary common law and equitable principles comprises his bank balances of $4,981 and a car to which I can only attribute a value of $5,000. The wife has existing liabilities of $27,438 and the husband has existing liabilities of $44,520. There is no net property. The wife has a superannuation balance of $59,293 and the husband has a superannuation balance of $24,488 in his AMP Super but there is no mention in the evidence of any balance he may have in '[Super Fund 4]'. This latter superannuation account appears to be related only to his recent employment which, according to his tax returns, he commenced in the 2023 financial year. The husband's 2024 tax return contained reference to a reportable superannuation contribution in that tax year of $13,390. His payslips reference an employer superannuation contribution of $615.64 per pay period. I infer that any current balance would be modest.

1. The wife submits that having regard to the unsatisfactory evidence from the husband about what he did with the proceeds of sale of the former matrimonial home, the net settlement proceeds of $1,022,044.44 should be treated as though they still exist for the purposes of s 79 of the Act.
2. In the wife's evidence in chief, she deposes as follows:
   1. [The husband] and I separated in or around 16 September 2022 when he hired a removal van and removed joint furniture, contents and effects from the matrimonial home to a rental in his sole name where he was listed as a tenant.

...

1. ... [the husband] decided to sell the matrimonial home from under us, while [Ms C] and I were in [Town O] to care for my elderly mother, prior to her death.

...

76. On 4 May 2022, [the husband] sold the [Suburb Z] property for $1,550,000.

1. While [Ms C] and I were travelling, he enabled access to the matrimonial home and negotiated the terms of sale without my knowledge.

2. We did not know about the sale of the matrimonial home until we returned from our travels.

79. [Ms C] and I were left homeless.

...

1. The mother's evidence is confusing. On the one hand, she contends that she was still living in the matrimonial home on or about 16 September 2022 when the husband hired a removal van and removed furniture and effects from the matrimonial home, yet elsewhere in her affidavit she concedes that the matrimonial home was sold in May 2022. Although not mentioned by the wife, I note that in the contract for sale of the former matrimonial home the buyer agreed to rent out the property to the seller for $650 per week until 3 September 2022 with an option to extend to 3 December 2022. I can only assume this is what occurred. The wife does not disclose how long she was away "travelling", or when she discovered the former matrimonial home had been sold or when she moved out of the former matrimonial home.
2. The husband signed a contract for the sale of the former matrimonial home on [redacted] 2022 for $1,550,000. A deposit of $50,000 was to be paid to the real estate agent's bank account and presumably the agent's commission was deducted from this sum. There is no evidence that any balance was paid to the husband after deduction of the commission.
3. On 4 May 2022, the settlement proceeds from the sale of the former matrimonial home amounting to $1,022,044.44 were paid into a NAB account number #1674 in the name of the husband as Trustee for Narvaez Investment Trust. The balance of this account prior to the deposit of the settlement proceeds was $4,346.10.
4. It is not in contention that the husband withdrew the entire proceeds of this account between 4 May 2022 and 7 July 2022 save for $4,682.93.
5. On 4 May 2022, the sum of $292,961.24 was withdrawn in two separate transactions. The smaller sum of $4,346 was transferred to another Narvaez Investment Trust linked account. I assume the reference to it being a linked account indicates that it was another NAB account. In relation to the larger sum, the husband produced a telegraphic transfer application customer copy dated 4 May 2022 (part of Exhibit 4). This document records the transfer of AUD288,615.24, to the P Bank, account number [redacted], account name, Q Pte Ltd in Singapore. The document records the purpose of the transfer was the "release of consignment engineering equipment". When cross-examined about this transfer the husband gave a most unsatisfactory and confusing account of where the money went. He denied acquiring any engineering equipment suggesting that he had been duped by unscrupulous third parties. The husband conceded that he had made no complaint to any authority such as police.
6. On 11 May 2022, the sum of $368,444 was withdrawn by the husband. The husband produced a telegraphic transfer application customer copy dated 10 May 2022 (part of Exhibit 4). This document records the transfer of AUD368,444 to the R Bank in Hong Kong, account number [redacted] in the name of S Limited. The purpose of the transfer is recorded on the form as "engineering equipment". When cross-examined the husband denied that he had purchased engineering equipment "as such" and proceeded to give a most unsatisfactory and confusing account of where the money went. The husband variously said, "it went to an agent" and "they told me to put it as engineering equipment" and "it was a business to lease an assignment". The husband conceded that he had made no complaint to any authority such as police.
7. Between 6 May 2022 and 18 May 2022, the husband transferred $200,800 to Narvaez Investment Trust linked accounts. Again, I assume the reference to linked accounts indicates other NAB accounts.
8. On 12 August 2024, a subpoena issued to NAB at the request of the wife and documents were produced on 17 October 2024. The only document tendered by the wife was a bank account statement for the NAB account number #1674 for the period 8 January 2022 - 7 July 2022. The husband was not cross-examined about transfers to 'linked accounts'.
9. Two further transfers occurred on 18 May 2022, each for $10,000, one recorded as "loan" and the other as "Westpac".
10. Between 19 May 2022 and 28 June 2022, the husband transferred further sums totalling $71,370 to Narvaez Investment Trust linked accounts. As noted above, a subpoena issued to NAB at the request of the wife and documents were produced on 17 October 2024. Other than the account statement for the relevant period, the wife did not seek to tender any documents from NAB and the husband was not cross-examined about any linked accounts.
11. Between 20 May 2022 and 7 July 2022, the husband transferred to linked accounts or other accounts or withdrew $272,604.54. The two largest withdrawals included in this total were $29,150.24 on 30 May 2022 and $97,245.30 on 31 May 2022. The husband produced telegraphic transfer records in relation to these two sums. The first one was paid by telegraphic transfer to an indecipherable bank account in Hong Kong, the beneficiary of which is illegible, with an accompanying message - "[The husband] business to [illegible] liquidating machinery expenses". The second one was paid by telegraphic transfer to an indecipherable bank account in Hong Kong to an account, the name of which is illegible, with an accompanying message "[The husband] business to [illegible] liquidating machinery expenses". It was put to the husband in cross-examination that the beneficiary for both transfers was T Ltd (the spelling of which was not confirmed). The husband conceded that what was written in the messages pertained to liquidating machinery expenses; however, he contended that "[t]here [was] no liquidating of any machinery because this doesn't exist. [He had] been told to put that in so that the money can move on, otherwise there [would] be questions". There is no other evidence about these transfers.
12. It is apparent from other documents produced by the husband that he travelled to Spain in May 2022. Some of the documents are illegible and others are in Spanish. The documents are summarised in the table below.

€64.026,85 (the conversion to Australian dollars is handwritten on the document although it includes three other small sums €7,35 McDonalds, €5,90 Starbucks and €20 for unknown purchase)

It appears from the document that the husband purchased euros

€438 (the conversion to Australian dollars is handwritten on the document)

€4.934 (the conversion to Australian dollars is handwritten on the document)

€1.259 (the conversion to Australian dollars is handwritten on the document at an exchange of 1.78 euro to one Australian dollar)

€5.500 (I have used the exchange rate on the previous document to estimate the conversion to Australian dollars)

€5.000 (I have used the exchange rate on the previous document to estimate the conversion to Australian dollars)

The cheques were purchased in Spain €5.336 (the conversion to Australian dollars is handwritten on the document)

It appears from the document that the husband purchased euros

€999 (the conversion to Australian dollars is handwritten on the document)

1. The husband produced two boarding passes for air travel for himself. One is dated 26 May but no year is apparent, and it is unclear whether he was travelling to or from Dubai. The other boarding pass is dated 27 May, but no year is apparent and again it is unclear whether he was travelling to or from Brisbane. As the receipts produced by the husband and referred to in the table above indicate expenditure in Spain prior to the dates on the boarding passes it would seem the boarding passes are not from 2022 unless of course he returned to Australia after 20 May 2022 and again travelled overseas on 26 May 2022. The husband gave no evidence about his travel and was not cross-examined about it.
2. The documents produced by the husband, excluding the references in the NAB account number #1674 to transfers to 'linked accounts', provide some explanation for expenditure of $942,640.43 of the $1,022,044.44 sale proceeds deposited on 4 May 2022 summarised in the below table:

Telegraphic transfer to P Bank "release of consignment engineering equipment"

Husband denies receiving any engineering equipment

Telegraphic transfer to R Bank "engineering equipment"

Husband denies receiving any engineering equipment

Telegraphic transfer to bank in Hong Kong "liquidating machinery expenses"

Telegraphic transfer to bank in Hong Kong "liquidating machinery expenses"

1. Other documents disclosed by the husband purportedly explaining his use of the sale proceeds predate the receipt of the sale proceeds. Nevertheless, the documents evidence the following expenditure:

Undisclosed but paid by telegraphic transfer from H Bank Account number #2946 in husband's name to the U Bank in Singapore to an account in the name of V Pte Ltd

Undisclosed but paid by telegraphic transfer from H Bank Account number #2946 in husband's name to the U Bank in Singapore to an account in the name of V Pte Ltd

Undisclosed but paid by telegraphic transfer from H Bank Account number #2946 in husband's name to the U Bank in Singapore to an account in the name of V Pte Ltd

Undisclosed but paid by telegraphic transfer from H Bank Account number #2946 in husband's name to the W Bank to an account in the name of X Ltd

Undisclosed but paid by telegraphic transfer from a NAB account number #9262 to the Y Bank to an account in the name of LL (difficult to decipher this word) Construction Company

1. The total sum withdrawn from the NAB account number #1674 during the period 4 May 2022 to 7 July 2022 was $1,188,809.78. During the same period deposits into this account, mostly from "linked accounts", totalled $167,100.
2. In the absence of any explanation for a failure to tender any bank statements produced by NAB in response to the subpoena (other than the one statement for the account number #1674), I infer that none of the linked accounts reveal any current credit balances.
3. The husband was born in Mauritius and worked there for a period. He still has a bank account in Mauritius into which he receives a AA Pension Fund payment of MUR1,209 (i.e. Mauritian rupees) per month. The most recent bank statement from the BB Bank ("BBB") is for the financial year ended 30 June 2024 and the balance in local currency was 60,165.29. A conversion to Australian dollars is handwritten on the 2023 statement when the balance was MUR44,056.07 or AUD1,421.16. Using that conversion rate, in the absence of any other evidence, the balance was AUD1,940.82 for the financial year ended 30 June 2024.
4. When asked about some of the various telegraphic transfers the husband's explanations were bizarre and the wife invites the Court to infer that the husband still has the funds somewhere. However, given the husband's history of mental illness and in particular his history of manic behaviour during their marriage as described by the wife which included him transferring funds to people he met online, I am unable to be satisfied that any of the funds still exist.
5. Further, I cannot imagine that the husband would have borrowed $12,497 on 18 January 2023 to purchase a car for the wife, or returned to employment in his 70's, if he still had access to funds from the sale of the former matrimonial home.

1. The wife asserts that on an unspecified date the husband showed her gold bullion after he returned from working in Western Australia at an unspecified time. The husband admits working in Western Australian for about six to eight months at an unspecified time but denies ever having gold bullion. The wife asserts that one of their adult children, Ms C, told her, on an unspecified date, that she had seen the gold bullion at the husband's home. The husband asserts that Ms C told him she denied telling the mother she had seen gold bullion at his home. There is no evidence from Ms C.
2. Even if I were persuaded, and I am not, that the husband at some unspecified point in time had gold bullion in his possession, I am unable to find that it still exists or that it has the value as asserted by the wife.

1. The wife invites the Court to infer that the husband has cryptocurrency which he has failed to disclose.
2. The husband denies owning any cryptocurrency. He contended during cross-examination that he had invested about $2,000 in cryptocurrency mining "before the crash". The husband conceded that he has not disclosed any document corroborating his investment of $2,000 in cryptocurrency. The husband has disclosed several documents relating to cryptocurrency which are part of Exhibit 2.
3. A document disclosed by the husband in relation to cryptocurrency is what on its face appears to be a letter to the husband dated 14 May 2024 from Ms CC, compliance department head, Certik. It is unsigned. The letter rejects the husband's request for a fee waiver.
4. A second document disclosed by the husband, is his response to the compliance department on 14 May 2024 in which he states the following:

...

I have been for a while trying to recuperate some of my fund that I believe have been stolen from me by scammers, criminals or organisations that have unfortunately been able to steal from vulnerable individual like me in this instant.

In this case I have been approach by Cirtek.

Certik introduce themself to me by revealing details of the fund by pointing out details of these fund. To make sure I did ask them the details of each incident they reported accordingly, and I did on my side gave them in return the details to match.

In there presentation to me they specified the total amount that they have recuperate and confirmed also that the total is US$345,000.00 (three hundred and forty five US Dollars thousand. First they say that they will return me this amount without any upfront cost to me then they said in writing that a 0.5 commission (1725 US$) will have to be paid before they are able to send me the fund in question.

I am very suspicious about this because I have been caught before after paying such amount they come up with further cost in the like that foreign exchange fee, bank fee etc. and the list goes on until I cannot pay, fortunately I stop there and never heard from them again.

In the case of CERTIK now after telling them that I am over 70 years old ( which I had to make proof of it) and that I do not own anything, That I do not earn much I am renting and struggling to make end meat, they ( I believe it is a diversion) asked me to supply 3 months banks statement records to show my financial account so that I can apply for a "Declining Fee Waiver Request"

Within 45 minutes of supplying further details to the Waiver, Mrs [CC] -

Compliance Department Head responded the response were as follows:

We appreciate your recent request for a fee waiver and your cooperation in providing the necessary details for our review. After careful examination of the information provided, we regret to inform you that your request for a fee waiver has been declined.

Basically, it appear that whatever I say similar to previous experiences, the moto is to get the so call commission in end and do the very same thing. So how does this work you are telling me that you are holding 345,000 thousand US $ of mine, so that if I do not sent the 1725 US$ you will not send me my money.

I authorise you to deduct the expenses plus the commission and send me the balance. If you are not able to do such that mean your motive is not to get me my fund. It start to sound I believe the same tactics of the previous criminal, scammers who are going around steeling from the most vulnerable people who are battling to leave in this unprotected individual that has been paying tax all their life.

I certainly believe that what goes around come around and their days is minimise I wish them bad luck as the law will catch up with them soon. I curse these lower of the lowest scammers let hope they suffer dearly from their act either they are or helping/ contributing to these criminal act.

(As per the original)

1. A further email in similar terms is also disclosed.
2. A fourth document disclosed by the husband, is described on its face as a "payment plan agreement". Under the agreement, on letterhead entitled "Certik" at an address in New York, which purports to have been signed by Ms DD, described as "Service Provider", on 27 May 2024, and unsigned by the husband, the husband is required to pay at total fee of USD1,725 "for the technical services rendered in connection with the recovery of $345,000 USD" in cryptocurrency.
3. During cross-examination, the husband contended that he was contacted by "these people" who told him that he had cryptocurrency worth "so much" and that he had to send them $4,000 but then they asked for more money. He contended that they wanted to charge him an administration fee and that he kept phoning them and asked them for emails and then on WhatsApp and they are "nonsense people". "The criminals say I do own crypto".
4. There is no evidence that Certik is a real organisation or that the person, Ms DD, exists.
5. I am not satisfied that the husband owns cryptocurrency.

1. The wife invites the Court to infer that an apparent transfer of USD27,400,000 from an account in the husband's name in Hong Kong in 2021 supposedly to an account in his name in Mauritius is likely to be legitimate and explicable by the possible sale of patents in the husband's name. The wife seems to suggest that the Court should be more comfortable in granting the relief sought by her because that the husband is likely to have funds in overseas bank accounts.
2. The evidence about an alleged transfer of USD27,400,000 from a bank account in the husband's name in Hong Kong to an account in the husband's name with BBB account number [redacted] is most curious indeed.
3. The husband produced several documents (or the wife may already have had possession of them), that has led the wife to believe the funds exist or existed. The documents form part of Exhibits 1 and 5.
4. The first document is typewritten dated 13 January 2021 headed "SRV Prints QNI" signed "David". It appears to be a text message reporting a transfer from the GG Bank to the husband's account with BBB in Mauritius account number [redacted] of USD27,400,000.00.
5. The husband conceded receiving this document from "them" but denies the funds were ever received. The husband stated that he worked in Mauritius for eight years (at an unspecified time) and only had one bank account being the account referred to in the document.
6. The second document is typewritten on letterhead for the "Department National Treasury Republic of South Africa, South African Reserve Bank, The Banking Association of South Africa" dated 1 July 2021 entitled "Payment Approval Notice". The document purports to acknowledge "the receipt of your Funds to be transferred to your account (The [BB] Bank Ltd ...) through the South African Reserve Bank" to an account in the husband's name and to his account number [redacted]. The document purports to be signed by Dr FF, "Director of foreign Operations".
7. The husband contends that he worked in South Africa for 11 years and that he engaged a lawyer in Pretoria to "investigate" but has had no satisfactory response. The husband doubts the information is "real".
8. The third document is undated and typewritten, the author of which is not apparent on its face, stating the following:

The fund has been in Hong Kong for a while and I am moving it to Mauritius where I come from.

The funds where in the [GG Bank] in Hong Kong account "[redacted]"

These are other details of my account detail in HK

MULTI CURRENCY ACC: [redacted]

HKD SAVING ACC: [redacted]

Note there were a few accounts, those are some of them!!

NB: On the 20/11/21 - HK account "[redacted]" activated ... By HK Attorney!

...

(As per the original)

1. The fourth document is a form entitled - "Diaspora Account Reactivation Form" - on letterhead for the GG Bank (Hong Kong) Limited. The form is filled out in handwriting and discloses the following information:

DIASPORA CUSTOMER DETAILS

ACCOUNT NAME [the husband]

ACCOUNT NUMBER Bank of Hong Kong A/c N: [redacted]

ID/PP NUMBER ... No [redacted]

TELEPHONE NUMBER ...

E-MAIL ADDRESS [redacted]@outlook.com.

VERIFICATION DETAILS FOR THE LAST 3 TRANSACTIONS

Date Transaction Details Amount

1 Other a/c Details

2 # Multi-currency A/c No [redacted]

3# HKD Savings A/c No [redacted]

Other information

Next of KIN: Mr HH Relationship: Brother ...

..

Applicant's signature

[the husband's signature?] Date: 16/11/2023

(As per the original)

1. The husband conceded that he filled out the form because he could not make enquiries about the account unless he applied to reopen it. None of his enquiries indicate that these were legitimate transactions.
2. The fifth document is a purported email from the husband to an unidentified recipient on 29 January 2025 requesting information about a transfer on 13 January 2021, from an account in the husband's name with Hong Kong Bank account number [redacted] being transaction reference number [redacted] of USD27,400,000.00 to "my overseas account". In the email the husband requests, among other things, information about where the funds are currently located and why there has been delay in the funds reaching his account.
3. The husband conceded having had an account with the "[GG Bank] HKD account" and deposed as follows:

Based on the information I have been able to gather, the funds in question, which were solely in my name, originated from a separate account and were likely consolidated into a single offshore account. After significant effort, expense, and negotiation, I obtained documentation confirming the transfer of these funds to a Mauritian account. (This documentation has been provided.)

Prior to closing the account, I intentionally left a balance of US$300,000. Subsequently, I transferred this remaining amount to my ANZ account in [Town JJ] Queensland, Australia. I recall receiving an email from ANZ alleging suspicious activity and requesting that I visit the branch. Upon speaking with a bank representative, I was instructed to close the account and was provided with a balance of only a few hundred dollars. When I questioned this decision, I was informed that the instructions came from head office. A subsequent conversation with another bank representative resulted in accusations of criminal activity, which I vehemently denied. I explained that I had initiated the transfer and expressed regret for not having warned the bank beforehand, as such actions were entirely out of character. Despite my explanations, the bank representative maintained their stance based on the report they had received.

I have contacted the [GG Bank] in Hong Kong to inquire about the return of the funds, but unfortunately, the account closure has hindered this process.

I have repeatedly attempted to communicate with ANZ to address this issue, but it appears they are avoiding the matter. I believe that a mistake may have been made, and the bank is now attempting to cover it up.

1. The husband speculated that perhaps his grandfather had left him "a lot of money". He suggested that his father had told him that he had been left money, but the husband said he did not know if that was true. The husband's grandfather used to design machines in Mauritius.
2. The statements from an account in the husband's name with BBB in Mauritius account number [redacted] for the period 4 January 2021 to 28 June 2024 record that the only deposits into that account during that period were the [AA Pension Fund] and some small interest payments.
3. At the wife's request a subpoena issued to the ANZ Bank on 12 August 2024 and documents were produced on 4 September 2024. The wife did not seek to tender any documents produced by ANZ.
4. The wife made a valiant attempt to identify a legitimate basis for the husband receiving such a large sum of money by suggesting that he had sold patents in his name. The husband agreed that he had 13 engineering patents registered in Australia in his name but denied he had ever sold any or that they have any value. There is no evidence to substantiate the suggestion that the husband has become rich from selling patents and no evidence that the patents have any value.
5. It seems fanciful that he received payment of USD27,400,000.

1. In Walters & Walters,[7] the only existing property at the time of trial was a small equity in an apartment. The husband had superannuation but was at least 15 years away from retirement. This case was decided before superannuation could be split. The trial judge ordered the sale of the apartment and payment of the entire proceeds to the wife. The wife appealed, arguing that the trial judge should have ordered the husband to borrow funds to pay her a settlement. Lindenmayer J with whom Joske, Gunn JJ agreed, said:

In support of his submissions in relation to this aspect of the appeal, counsel for the wife referred to and relied upon certain passages from the judgment of the Full Court, constituted by Asche, Fogarty and McGovern JJ., in the case of Collins and Collins (1977) FLC 90-286 at pp. 76,536 and 76,539. I have read those passages and indeed other passages in that judgment, and in my opinion none of those passages assist counsel for the wife's argument in this case. Those passages do not assert, nor is there any other authority, of which I am aware, which so asserts that this Court in exercising its power under sec. 79 of the Family Law Act has power to make an order for the payment of a lump sum when there is neither property available from which such a sum could be raised, either by sale, mortgage or otherwise, nor any fund of money existing from which it could be paid, but only a capacity to borrow in the future. A capacity to borrow money is not property and counsel for the wife did not submit to the contrary.

...

The wording of sec. 79(1), itself, in my opinion, clearly limits the application of the Court's power to property existing at the time of the hearing...[8]

(Emphasis added)

1. In Tomaras & Tomaras[9] the Full Court said at [208]:

As a general proposition an order cannot be made under s 79 requiring a party to create property where no property exists, to satisfy the order (for example by borrowing). However, it is well settled that an order can permissibly be made under s 79 which provides one party pay the other a lump sum cash amount even though property in that form does not currently exist. It is not possible for that lump sum order to exceed identified, identifiable or quantified assets (or assets that would have existed had it not been for the actions of one of the parties) unless that inability to identify or quantify assets is brought about by a party's non-disclosure.

(Footnotes omitted)

1. While it might be suggested that the obiter in Tomaras supports the order sought by the wife in the current case, in my view the Full Court was saying no more than what has been well established by cases such as Townsend & Townsend,[10] Kowaliw & Kowaliw,[11] Weir & Weir,[12] and Black & Kellner.[13] Such cases support the Court taking a "broad brush approach"[14] when formulating a just and equitable order from existing property in circumstances where there has been a premature distribution of property (Townsend) or a reckless waste of property (Kowaliw) or where a party has failed to comply with their disclosure obligations such that the Court "should not be unduly cautious about making findings in favour of the innocent party" (Weir).
2. In a recent case of Wei v Xia (No 5),[15] Harper J provides a helpful analysis of the Court's exercise of power when a party fails to meet their disclosure obligations. His Honour said at [175]:

The line of authority concerning non-disclosure in financial proceedings under Pt VIII of the Act has also tended to concentrate upon the consequences of non-disclosure for ascertaining the property of the parties to the marriage. In other words, it is a specific type of inferential reasoning which comes into play for the purposes of identifying property of parties to a marriage, and then in justifying a robust approach to making just and equitable orders dividing that property. If there is persuasive evidence supporting a reasonably plausible conclusion of the existence of other undisclosed assets, it may be open to the Court to make a finding that such assets exist, or take account of the likely existence of other assets under s 79(4)(e) of the Act. ...Thus, the Court may be persuaded that it would be appropriate to make an order beyond the ascertained property; provided that any order made on this basis can be seen to achieve substantial justice relative to the subject non-disclosure ... or all known assets should be awarded to the innocent party, on the basis that the party who refuses to disclose the assets is in fact hiding them ... But also the authorities show any inference that a defaulting party is hiding property must be founded upon established facts. Concluding that other assets exist is, like any other fact, a finding, or requires findings, of fact about which the Court must feel "an actual persuasion".

(Citations omitted)

1. Unfortunately, the wife is unable to identify any property other than as set out in the table at paragraph 29 above. While there is no doubt the husband disposed of the sale proceeds of the former matrimonial home, a notional add back is just that. It is not property that exists. Notionally adding back property may be a useful approach only if there is other property that exists from which a property settlement order can be satisfied. While the husband's disclosure has been less than helpful at times e.g. producing documents that were in parts illegible, he was not challenged on his evidence, and the wife did not deny, that she had removed his financial records when she left the former matrimonial home. It seems to me that the husband has attempted to obtain documents that might explain the inexplicable. Notwithstanding the weird and wonderful facts in this case, I feel no "actual persu[16]ion"16 that property exists other than as identified.
2. The wife specifically eschewed an order for the sale of the husband's car, or for a superannuation splitting order nor did she seek an order that the husband withdraw his superannuation balance and pay it to her. Given his age, it seems to me that may have been an option, but it is a modest sum.
3. In addition to the payment of a lump sum the wife also seeks that the husband pay out the loan on her car; a general 'catch all' provision that they each retain what they have in their name and possession; 'catch all' indemnities to each other in relation to liabilities in their respective names; general 'template' provisions about transfers and stamp duty which have no application to this case; a provision requiring the parties to do all acts necessary to cause the wife to relinquish her rights or interests as a discretionary beneficiary in the Narvaez Family Trust and for the husband to indemnify the wife in relation to any liabilities including taxation liabilities; and to restrain the husband from making any distribution to her from the Narvaez Family Trust.
4. No submissions were made about the utility or necessity for any order in the terms sought. The Full Court in Hickey & Hickey said that "'catch all' orders are essentially ineffectual if they do not effect an alteration of interest".[17] The Full Court went on to say that they did not disagree with the desirability of such provisions to provide "certainty, finality and assurance to the parties that all the property has been dealt with and to confirm the resolution of any doubts arising from any preliminary distributions and the separation of jointly held property."[18] However, in this case the proposed terms do not address such matters and certainly not as part of a property alteration or settlement order.
5. It is apparent from the evidence before me that the wife knows the identity of the accountant for the Narvaez Family Trust. Communication from that accountant received by the wife on 15 June 2022 advised that the trust had $91,196 in losses carried forward which appear to have been offset against the capital gain on the sale of the former matrimonial home in the 2022 financial year. The capital gains tax of $27,068 was apparently paid by the husband. There is no evidence that any distributions have been made to the wife from the trust. There is no evidence the trust has any assets or income.

1. Unfortunately for the wife, there is no existing or likely to exist property from which a property settlement order can be made. The wife's application pursuant to s 79 of the Act will therefore be dismissed.

I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew.

[6] Dovgan & Dovgan [2021] FamCA 306 at [268]- [274].

[7] [1986] FamCA 8; (1986) FLC 91-733.

[10] [1994] FamCA 144; (1995) FLC 92-569.

[11] [1981] FamCA 70; (1981) FLC 91-092.

[12] [1992] FamCA 69; (1993) FLC 92-338 ("Weir").

[13] [1992] FamCA 2; (1992) FLC 92-287.

[15] [2023] FedCFamC1F 679; (2023) 67 Fam LR 421.

[16] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361.

[17] [2003] FamCA 395; (2003) FLC 93-143 at 78,387.