Written by
Madison Elle Reinhardt
Richardson Murray recently obtained a judgment for final property orders in line with our client’s position. The Court accepted our argument that gold and silver bullion still existed and should be included in the property pool, despite the other party claiming it no longer existed.
The relevant facts of the matter were the following:
- Richardson Murray acted for the Applicant wife;
- The parties separated after a 14-year marriage and have two children, both in their pre-teen years;
- The relationship involved domestic and family violence, with a protection order in place naming the Wife as the protected person;
- The parties jointly owned a business and a unit;
- The main issue in dispute was the existence of the gold and silver bullion;
- If the bullion was included, the property pool was $1,867,623; if not, it was $813,188.
The Husband denied that any gold and silver bullion still existed, despite it being held during the relationship. He claimed that between May 2022 and November 2022, he developed a gambling addiction and sold all of the gold and silver to various people for about $380,000, without keeping any receipts.
The Full Court in Shinohara & Shinohara [2025] FedCFam1CA 126 has made clear that items of notional property, including items formerly referred to as add backs’, are not to form part of the balance sheet and are most appropriately dealt with under section 79(4) with respect to assessing contributions.
In circumstances where the Wife could no longer rely on the gold and silver being treated as an add-back’ to the property pool, our approach was to focus on the evidence and ask the Court to draw an adverse inference that the assets still existed, so they could be included in the property pool.
Our evidence on behalf of the Wife included:
- Receipts showing all gold and silver purchases during the relationship, including one post-separation purchase, totalling approximately $440,000;
- The Husband’s significant failure to provide full and frank disclosure during the proceedings;
- The timing of the Husband’s alleged sales coinciding with a period when gold and silver prices were at their lowest;
- A notice to admit and produce was served on the Husband, but he was unable to provide any sale receipts or evidence of gambling losses; and
- Audio recordings legally taken by the Wife in which the Husband stated he had not gambled it away and that it remained his property, with the Wife also making a report to police consistent with that position.
In respect to the Husband’s non-disclosure, Counsel of the Wife relied on the full court’s decision in Massoud & Massoud (2016), which relatively set out:
“it needs to be observed too that it is well recognised that there is a difference between circumstances where there is inadequate disclosure which suggests the existence of undisclosed assets and where it does not (see HDM & MM and Anor [2006] FamCA 47). This is particularly relevant to this case where it was not suggested to the husband that his failure to produce the trust deed was reflective of undisclosed assets or benefits…”
Counsel of the Wife argued that a party should not be able to take advantage of their own non-disclosure. In Weir (1992) 16 FAM LR, the Full Court held that the Court should not be unduly cautions in making findings in favour of the other party where there is clear evidence of non-disclosure.
To assist the Court in making its determination, our firm on behalf of the Wife obtained a report from an independent valuer providing an expert opinion on the current value of the gold and silver that, on the Wife’s evidence, still formed part of the property pool. The report indicated that the value of the gold and silver was almost double the amount originally spent during the relationship, reflecting the increase in value since purchase.
Her Honour found that the Wife’s evidence supported that, throughout the relationship, the Husband had exclusive control and use of the gold and silver. Her Honour also found that the Husband’s claim that the funds were lost or used through gambling was not supported by any documentation.
Her Honour accepted the Wife’s proposed valuation and included the gold and silver in the property pool. This resulted in the Wife receiving a cash settlement of approximately $247,000, as well as retaining all rights and ownership of the business and the property.
Madison Reinhardt of Richardson Murray acted on behalf of the Wife.