B and B - [2000] FMCAfam 46

FEDERAL MAGISTRATES COURT OF AUSTRALIA

B & B

[2000] FMCA fam 46

PROPERTY ORDERS – s79 FLA

Applicant:

J B

Respondent:

T J B

File No:

ZM 3221 of 2000

Delivered on:

4 October 2000

Delivered at:

Melbourne

Hearing Date:

18, 19 & 20 September 2000

Judgment of:

Hartnett FM

REPRESENTATION

The Applicant in person.

Counsel for the Respondent:

Dr Ingleby

Counsel for the Child Representative:

Mr Mort

ORDERS

During the course of the proceedings the parties reached agreement concerning the husband’s contact with the child of the marriage C J B born 27 May 1998. Accordingly orders were made by consent on 19 September 2000 in terms of the engrossed sealed copy orders accompanying this judgment.
On 19 September 2000 it was ordered until further order that the husband be restrained by himself, his servants and/or agents from withdrawing, disposing of or dealing with in any way the sum of approximately $18,000.00 deposited by him in the SGE Credit Union in Melbourne.
On 20 September 2000 it was ordered that until further order the husband be restrained by himself, his servants and/or agents from selling alienating encumbering or dealing with in any way whatsoever the real property known as and situate at 13 O Road, M P in the State of Victoria.
On 20 September 2000 it was further ordered that the wife provide to the Court and the husband as soon as is practicable a copy of the St George car loan statement.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

ZM3221 of 2000

J B

Applicant

And

T J B

Respondent

REASONS FOR JUDGMENT

Transfer

Proceedings between the parties as to matters of a property adjustment and the husband’s contact to the parties son C J B born 27 May 1998, were transferred on 31 July 2000 by the Honourable

Mr Justice Guest to the Federal Magistrates Court of Australia for hearing and determination.

Orders

During the course of the proceedings the parties reached agreement concerning the husband’s contact with the child of the marriage C J B born 27 May 1998. Accordingly orders were made by consent on

19 September 2000 in terms of the engrossed sealed copy orders accompanying this judgment.
In addition, during the course of the proceedings, I made interim orders as follows:
(1)On 19 September 2000 it was ordered until further order that the husband be restrained by himself, his servants and/or agents from withdrawing, disposing of or dealing with in any way the sum of approximately $18,000.00 deposited by him in the SGE Credit Union in Melbourne.
(2)On 20 September 2000 it was ordered that until further order the husband be restrained by himself, his servants and/or agents from selling alienating encumbering or dealing with in any way whatsoever the real property known as and situate at 13 O Road, M P in the State of Victoria.
(3)On 20 September 2000 it was further ordered that the wife provide to the Court and the husband as soon as is practicable a copy of the St George car loan statement.
With reference to the statement that was to be provided in (c) above, Counsel for the wife indicated that as at 22 October 2000 the amount required to pay out that loan was in the sum of approximately $10,375.53.
The remaining matter for me to determine then is the question of a property adjustment as between the parties and the wife’s claim for capitalised and/or periodic spousal maintenance.

Proceedings

The applicant husband relied upon the following documents:
a)His amended Form 7 Application filed on 9 June 2000 in which he sought that between the parties there be a fair and equitable division of all matrimonial property pursuant to Section 79 of the Family Law Act1975. The husband in closing submitted to the Court that the wife’s application should be dismissed and that the parties should each retain the property currently in their respective possession;
b)His Order 30 Affidavit filed on 9 June 2000;
c)His Form 17 Financial Statement filed on 9 June 2000 and the handwritten amendment dated 18 September 2000 and signed by him, marked Exhibit A;
d)The Affidavit of his father F B filed on 9 June 2000.
The wife relied upon the following documents:
a)Her Form 7A Response filed on 2 March 1999;
b)Her Order 30 Affidavit filed on 18 May 2000;
c)Her Statement of Financial Circumstances filed on 18 May 2000; and
d)The Affidavit of Mr D filed on 20 September 2000.

Background

The parties married on 14 November 1997. They separated on

10 January 1999. Prior to their marriage and for a period of approximately three months they spent most of their time (when the husband was in Melbourne, two weeks out of four) with each other either in the home of the husband or in the unit in R then rented by the wife. The wife continued to pay rental on her unit until after the marriage and on her evidence remained in her unit for part of September and October 1997 following an accident at the husband’s home which resulted in the demise of her dog. I do not deem this period preceding the marriage as one of cohabitation. After their separation and between May and November of 1999 the parties attempted to reconcile and during that process they spent most of their days together and some of their nights although each maintained separate residences. They determined in November 1999 that they were unable to reconcile their differences and so cohabitation did not resume. It was a thus a marriage of short duration being for a period of approximately fourteen months.
The husband was born on 10 October 1961 and is aged 38 years. The wife was born on 30 October 1971 and she is aged 29 years. The husband described himself in his Amendment to his Form 17 as currently unemployed although he then went on to say, in that Statement, that his earnings were between $100.00 - $300.00 per week, and in his evidence during cross-examination that his earnings averaged $300.00 per week as a labourer. The wife is mostly engaged in home duties and otherwise working sporadically as a casual receptionist. She has the care of the parties’ son. The husband is currently not making payments of child support.
The parties have one child namely C J B born 27 May 1998 who resides with the wife in rented accommodation. The main source of the wife’s income is her pension entitlement.
The husband is residing in a home of which he is the sole registered proprietor at 13 O Road, M P in the State of Victoria (hereinafter referred to as the M P property).

Evidence

Each party swore an Affidavit and was cross-examined. The wife relied on an Affidavit sworn by her god father, Mr Joe D and although the husband required the said Mr D to present for cross-examination the husband did not challenge the contents of Mr D’s Affidavit. Indeed, the stated purpose by the husband of the attendance of Mr D at Court was for the husband to show that Mr D lent money to family members in the way “that families do” and in that manner operated in a similar way to his own family. Accordingly I accept in its entirety the evidence of Mr D and in particular that he loaned to the wife on or about 15 May last year the sum of $6,000 for the wife to purchase a motor vehicle.
The husband relied upon an Affidavit sworn by his father and his father was cross-examined as to the contents of that Affidavit. Following cross-examination of the father by Counsel for the wife, the wife conceded that Mr F B had indeed advanced his son the sum of $30,000.00 to assist in the purchase of the M P property. The wife did not concede that that money was due and owing as Mr B Senior’s evidence was that he had made no demand with respect to its repayment until trial. Mr B presented as an honest witness. He gave a straightforward account of his financial dealings with his son and of his perceptions that his son and daughter-in-law were wasting money during the course of their marriage. In particular he was critical of his son. I accept Mr B’s evidence that he did lend the money to his son and did not give it to him and that, at the time of the advance, being 24 January 1996, he required what he described as an “official document” to establish that the advance was in fact a loan. The said document was a statutory declaration by the husband dated

25 January 1996. On 5 March 1996 the husband became registered as the sole proprietor of the M P property.
Findings of fact on disputed issues are made on the balance of probabilities. In these reasons statements of fact should be taken as findings of fact.

Husband

Loans

The husband continues to reside at 13 O Road, M P. The agreed value of the home is in the sum of $195,000.00, that value deriving from an Affidavit filed on behalf of the wife by Mr Baxter, valuer. The husband did not seek to challenge that valuation. The real property is encumbered by way of mortgage to the Bank of Melbourne in the sum of $124,953.00 as at 30 June 2000 and in addition there is secured by the property a further personal loan in the sum of $18,874.00 making the encumbrance with respect to the property in the total sum of $143,827.00 or approximately $144,000.00. There is thus an equity in the home of approximately $51,000.00.
In August 1997 and just prior to the parties’ marriage the husband borrowed a further sum of $30,000.00 secured over the home. The wife alleges that $20,000.00 of these $30,000.00 were expended on the home. She details renovations consistent with those given in the husband’s evidence but provides no evidence as to the cost of same save a rather vague assertion. The husband’s evidence is that perhaps $5,000.00 – 7,000.00 of those funds were applied to the home and that the monies were used to paint the house; refurbish C’s bedroom; pave the backyard (which the husband and his friend did, he believed, for about $1,000.00); place central heating in the home; add a roller-door and sand and polish the floor boards (which he believed was a cost of about $700.00). I accept the husband’s evidence as to the renovations carried out at that time and his estimate of their cost. The Bank of Melbourne statements tendered in evidence as to this loan show amounts were withdrawn for daily living expenses. In addition, the parties’ evidence was that some of these monies were also applied to the cost of the wedding although they differed as to the quantum. The wife’s mother also made a contribution to the wedding but in what sum I am unable to determine. The remaining $10,000.00 approximately, or more precisely the sum of $9,847.00, was transferred to a Bank of Melbourne account of the husband's leaving only $19,732.70 of the $30,000.00 borrowings being available for expenditure by the parties.
On 2 April 1998 and some four months into the parties marriage the husband borrowed a further $20,000.00 by way of personal loan again secured over the M P property. $19,992.50 was deposited in his Bank of Melbourne account. Those monies in their totality were also expended by the parties on general living expenses and/or on the husband’s own admission, his gambling. The husband said that his father knew that he and his wife had “blown the money” and again the Bank of Melbourne account number 73332033 in the name of the husband details various withdrawals made from the account, none of which appear to go to the maintenance and/or renovations of the M P property. By way of one example the husband on 27 April 1998 withdrew $1500.00 at the Crown Casino, on 30 April 1998 he withdrew a further $1,000.00 and on 9 May 1998 he withdraws a further $1,000.00 at the Crown Casino (total: $3,500.00).

Gambling

The husband conceded in evidence that he had a gambling problem and referred to a sum of approximately $1,500.00 which had been paid by his former employer, DHS, to a foundation to help with his problem of gambling. The wife’s evidence was that the husband’s gambling problem prevailed throughout the marriage and that the husband was secretive as to bills rendered to the parties and monies received by the husband including the hiding by the husband of cash sums under a mattress. I accept this to be the case and that the husband’s gambling problems far exceeded any problem that he alleged the wife may have had which was certainly contained and not of any significant consequence during the course of the marriage. On the other hand, the husband’s difficulties seem to have reached very significant and disturbing proportions. His evidence was that he had probably won $70,000.00 on Melbourne Cup Day last year but then given about $80,000.00 back to the track.
Likewise, I accept Mr B Senior’s evidence that around the time of January 1999, he did not trust his son as he believed that his son was “spending a bit too much money” and that there were “too many debts around”. His evidence was that he paid some of the parties’ bills. He closed an account wherein he had deposited money on behalf of himself and his wife but to which his sons, W and J, were signatories. The father became anxious about those funds and anxious about his son’s spending and the prospect of a separation between the parties. Accordingly he transferred the money to W and the money was then placed under the control of W, his father and mother.
The wife herself has gambled when depressed but limits it to a period post separation. The wife conceded that she had gambled approximately $1250.00 between 12 November 1999 and 17 November 1999 and I am really unable to reach any conclusion as to the extent of her gambling currently or post separation. Although the husband alleges the wife had a gambling problem during the marriage the husband largely controlled the income of the parties and on the odd occasion the wife gambled she did so in the company of the husband and with the approval of the husband in small sums as determined by the husband.

Settlement Monies

The husband was asked on entering the witness box whether he wished to make any amendments to his Statement of Financial Circumstances. He indicated that he did so, that amendment being that he was now unemployed although his income was between $100.00 - $300.00 per week. In cross-examination he gave evidence that his average income each week is $300.00 as a labourer. He referred to, and I quote:
“the settlement pay-out from my previous employment has been my main source of income.”
The husband did not enlarge as to this matter of his settlement and when I referred him to the property section of the Statement of Financial Circumstances he indicated that he had nothing further to add. In cross-examination he gave evidence that he received approximately $30,000.00 from his previous employer, the Department of Human Services (hereinafter referred to as “DHS”), and that he now has a balance of approximately $18,000.00 in his SGE Credit Union account which in fact his Statement of Financial Circumstances indicated was overdrawn in the sum of $2,000.00. The wife was required to subpoena documents from DHS before the husband disclosed his receipt of these monies. The amount currently remaining in the SGE Credit Union account is in the sum of $17,118.85. Deposited into that account on
31 July 2000 (being the scheduled day of hearing of this matter before it was aborted because of the husband’s ill-health) was the sum of $30,000.00. In between that date and the matter getting a hearing in this Court in September the husband has disposed of some $13,000.00 without the knowledge or consent of the wife.
The husband’s evidence as to his pay-out was that he received approximately $28,000.00 together with holiday pay making a total of approximately $30,000.00 some time toward the end of June 2000. Until the hearing of the matter the wife was unaware of this payment. The husband’s evidence as to his expenditure of this sum was as follows: (a) that he had paid two months of mortgage payments in the sum of a total $2,000.00; (b) that he had paid car repayments totalling $1200.00; (c) that he had paid rates back to 1999 which were due in April 2000 totalling approximately $800.00; (d) that he had paid his brother $10,000.00.

Other

The husband’s Statement of Financial Circumstances deposes to him having furniture, furnishings and household effects in the sum of approximately $2,000.00 and personal property which in evidence he described as “jewellery” in the value of approximately $1,000.00. In evidence the husband conceded that he has recently made a claim with respect to an alleged burglary at his premises wherein, in his estimate, an amount of furniture and tools was stolen in the replacement sum of approximately $10-15,000.00. That claim is being processed but the insurance company have indicated that various items including television, sound system, computer, tools and other like chattels are being provided to him as a result of this burglary. In addition there is an unquantified amount to be received by him in the form of jewellery which the husband provided no further evidence as to.
The husband has a 1995 Ford EF model motor vehicle (he values at $18,000.00) which is subject to a lease with Ford Credit in a sum the husband alleges of approximately $20,000.00 leaving no equity in the vehicle.
The husband has a financial resource in the form of his superannuation entitlements pursuant to the Vic Super New Scheme with the Victorian Superannuation Board. His commencement date with this scheme is 1992 and currently his immediate voluntary retirement is in the sum of $7,858.00 gross.
The husband also alleged in his Statement of Financial Circumstances and in evidence that prior to the marriage and currently he owed his brother W B the sum of $50,000.00 less $10,000.00 recently paid; and his father F B the sum of $30,000.00. Mr W B was not called by the husband in these proceedings and the husband’s evidence was most unsatisfactory in respect to the advances made by his brother and his alleged repayment of such advances which I shall detail further hereunder.

Monies Owed to W B

The husband annexed to his Order 30 Affidavit an agreement dated
12 November 1997 between himself and his brother W B. In that agreement it was alleged that W had lent his brother J the sum of $50,000.00 between the period of 1 July 1995 and 14 November 1997, the latter date being the date of the parties’ marriage. The alleged purpose of the said advance of funds was to allow the husband to maintain and renovate his property at M P. There was no stamp duty affixed to the document.
There was no evidence before the Court that W had made any demand with respect to repayment of the said monies. There was no evidence before the Court that the sum of $50,000.00 had been expended on maintaining and renovating M P between 1 July 1995 and 14 November 1997 or any like amount. At best the evidence was that the sum of perhaps, on the husband’s evidence, $5 - 7,000.00 had been expended in painting, inserting ducted heating, the laying of some pavers in the backyard and the stripping and sanding of the floor-boards. The source of such funds were borrowings from the Bank of Melbourne.
The husband’s evidence was that W had never made a request for any part of the sum of $50,000.00. Despite the lack of a demand the husband’s evidence was that when he received the sum of $30,000.00 from the Department of Human Services, he paid to his brother the sum of $10,000.00 in a lump sum. Subsequent to this the evidence of the husband was that he had in fact paid his brother the sum of $10,000.00, but that the payments were made over a three month period in varying amounts in lots of $500.00 to $1,000.00 including an amount of $1,000.00 on 13 July 2000 from his Credit Union account leaving that account in credit in the sum of $26,646.00. He estimated that in this manner he had repaid his brother approximately $10,000.00. The husband’s evidence was further that monies owing to his brother accrued during the late 1980s and early 1990s which was directly in contrast to the agreement placed in evidence by him wherein the loan was said to have arisen as a result of borrowings in the period between July 1995 and 14 November 1997. The husband’s evidence was that W had been providing him with money over the last five years and that he had provided W with money over the last fifteen years.

I do not accept that there are monies owing from the husband to his brother W so varied were the accounts of those advances and repayments given by the husband. I cannot accept his evidence. He did not seek to call his brother to corroborate any matters to which he deposed nor produce any documentary evidence to support the alleged borrowings. I am satisfied that this is not a genuine debt owed by the husband. The husband further stated in evidence that prior to May 2000 he had repaid his brother the sum of $1,500.00 by the handing over to his brother of his motor-bike. Likewise I simply cannot accept this evidence.

Wife

Car

The wife has, in her possession and registered ownership, a 1992 Mitsubishi Magna acquired post separation with a value of approximately $4,000.00. The purchase price of this vehicle was in the sum of $7,200.00 in the period between May and November of 1999. The wife concedes that the husband contributed to the purchase price in the sum of $3,000.00 and that the balance of $4,200.00 plus costs was paid by her godfather J D. The husband’s evidence was that he had contributed the entire purchase price although he gave no indication as to from whence the source of such funds might have derived. Indeed the husband’s case was that he was facing considerable debt in that period and that there was no surplus income. I accept the evidence, unchallenged, of Mr D and I accept the evidence of the wife in relation to the purchase of this motor vehicle. I find the husband’s contribution to same was in the sum of $3,000.00. The wife is required to repay to her godfather Mr D the said sum of $4,000.00 which is the current value of the motor vehicle. I accept that these monies are outstanding to the said J D as is the further $8,000.00 as attested to by him and I accept that the wife has a current obligation to her godfather in the sum of $12,000.00 which he has advanced to her for the purposes of the purchase of a motor vehicle and the payment of her legal fees. I accept the unchallenged evidence of Mr D that these funds are required to be repaid.

Debts

The wife has some household items purchased with borrowed funds. There is currently a debt to a company known as P in the sum of $9,700.00 relating to goods purchased for approximately $5,000.00, the balance being interest payments due with the instalment repayments.
There are monies owing by the wife to St George in relation to a Toyota RAV motor vehicle hire-purchase agreement entered into by her in or about 19 October 1995. There is now agreement between the parties that during the wife’s pregnancy the said motor vehicle was sold by the husband and there remains a short-fall with respect to the sale proceeds of the motor vehicle being applied in reduction of that debt and the current outstanding sum due pursuant to the hire-purchase agreement. However, the husband’s evidence was that the vehicle was sold for $21,000.00 and that he applied the sale proceeds towards the reduction of the lease. The statement from St George indicates that, in fact, the husband only applied the sum $17,700.00 of the sale proceeds, leaving the balance of $3,300.00 unaccounted for by the husband.
I accept the wife’s evidence that although she signed the necessary transfer papers to relinquish possession of the vehicle that the husband controlled the sale and that the cheques were made out to the husband. I accept that she was unaware of the application of those funds by the husband and that she did not discover until post separation that there was then outstanding an amount with respect to that loan. Neither of the parties has made any attempt to repay this loan save for one amount in the sum of $1,000.00 in October 1999 paid by the husband to St George. The husband’s evidence is that as the debt is in the wife’s name it is her responsibility and he seeks to avoid the repayment of it. On the other hand the parties both had the use of the motor vehicle for some short time during the marriage and they agreed to effect a sale of the vehicle in an attempt to eradicate that debt. I accept that due to the extent of the husband’s gambling problem that the wife did not know about the financial state of the parties at that time and that she was not informed by the husband of any short-fall in the sale proceeds required to repay the loan. This debt is a debt of the parties and must be met to stem their losses. I propose to order that the debt be repaid out of the monies currently available to the husband in his Credit Union account.
The wife has a debt to AGC in the sum of approximately $1,800.00 being bond and rental in advance monies which she was required to pay to secure accommodation for herself and the parties son C. The wife’s evidence as to her inability to obtain chattels post separation was that the husband had changed the locks and obtained a restraining order against her. I accept this evidence and place weight upon it in the sense that the wife was then required to obtain housing for herself and the parties’ child, C, as well as some basic items of furniture. It was therefore not unreasonable that she entered into the agreement she did with P to obtain such furniture.
Although in her affidavit material she sought a number of chattels, at trial the wife sought to reduce those such that she asked for items personal to the baby C and personal to herself being and as referred to in her affidavit: (e) two champagne glasses in pewter; (f) one long gold chain; (g) assorted gold trinkets; (h) a gold hand-made ring (large smoky quartz stone); (i) a plain gold cross (baby); (j) a gold cross with red stone (baby); (k) large rocking horse.
The husband retained for his own use and benefit almost all of the chattels in the former matrimonial home. Whilst he had a number of items prior to the marriage the wife brought in some small number of items and items were provided to the couple upon their marriage. The large rocking horse was purchased during the course of the marriage and as a result of the burglary the husband appears to have, on the minuscule information provided to the Court by him, significant replacement furniture. One wonders why it is that he could not concede to the handing over to the wife of any items. His evidence was that the above referred to items still exist and remain in the former matrimonial home and I intend to order that the husband forthwith make available for collection by the wife or by an agent of the wife within seven (7) days at a mutually appointed time those items of jewellery and chattels described above. They are personal to the wife and the child C.

Child support

As to his departure from DHS the husband’s evidence was that he had not been coping well, had found it hard to work with children and the opportunity was there at the time to leave and that such opportunities don’t come up that often. It also gave him the opportunity to start a business in the building industry, which he had been interested in, since May 1999. The husband indicated that although he was working for a window company until the Friday preceding the commencement of this hearing, he was no longer working for that company as the company did not have the work any more. Subsequently he gave conflicting evidence that he had ceased this employment as he was endeavouring to establish a business which may have operated in competition with his former employer. Subsequently and once again the husband gave conflicting evidence, that he had placed advertisements in the paper last week and that “that’s why I’m not working at C W”. As at the date of hearing no advertisements had in fact been placed in the papers.
The husband ceased his employment with DHS approximately one month prior to the first scheduled hearing date in this matter. He ceased his most recent employment just prior to these proceedings commencing. I am satisfied he did so to present to the Court as unemployed at the time of trial.
Turning to the question of child support, the husband has paid none in the past few months. He says there is a current dispute wherein he has applied to have the sum of $7,200.00, being the purchase price of the wife’s motor vehicle, as a non-agency payment credited to him. The Agency have determined his application and have disallowed his objection in full. The husband says that he has not been in receipt of a regular income in recent times and has had no capacity to pay. His evidence was that he had been using the monies received by him in the lump-sum of $30,000.00 to pay his mortgage and lease on his motor vehicle, these being repayments about which he had no choice. However he clearly thought he had a choice as to the payment of child support, and determined to make no payments.
I accept the evidence of the wife that as to child support in the period from May to November 1999 the husband paid none in periodic amounts but that she advised the Agency that he was in fact paying her directly. However, I do not accept her evidence that he provided no financial assistance to her of any description. I accept - as the wife had to concede when shown petrol receipts - that the husband paid some petrol bills on behalf of the wife, a creche bill and of course he gave her $3,000.00 to assist in the purchase of her car.

Assets and liabilities

The asset pool of the parties is thus as follows:
a)M P property, value $195,000.00;
b)Monies in SGE Credit Union account, $17,118.85;
c)Furniture in husband’s possession, estimate $10,000.00 - $15,000.00;
d)Jewellery of husband, unknown;
e)Husband’s motor vehicle, 1995 Ford ES, $18,000.00;
f)Mitsubishi Magna of wife, value $4,000.00;
g)Financial resources - husband’s superannuation, gross $7,858.00.
Liabilities:
a)Mortgage with respect to the M P property, $144,000.00;
b)Monies owing to Mr F B with respect to the purchase of the M P property, $30,000.00;
c)Ford motor car loan, $20,000.00;
d)Mitsubishi car loan of wife, $6,000.00;
e)St George loan, $10,368.75;
f)AGC loan of wife, $1,800.00;
g)P loan of wife, $9,700.00;
h)Parties’ respective legal fees and loans and/or monies owing with respect thereto.
Other assets and liabilities :
a)The equity in the former matrimonial home being the M P property is thus $21,000.00;
b)There is no equity in either parties’ motor vehicle;
c)There is a debt to St George in the sum of $10,368.75 and for the reasons stated above shall be paid out with the monies in the SGE Credit Union leaving a surplus of $6,750.10;
d)There is furniture in the respective possession of each party with the wife’s purchase of furniture having attached to it a debt of $9,700.00;
e)The wife has an $1,800.00 liability to AGC for her bond and rental in advance;
f)There is an amount of approximately $13,000.00 which the husband has expended prior to the trial.
Looking to the matters to be taken into account pursuant to Section 79(4)(a)(b) and (c) of the Family Law Act 1975 (hereinafter referred to as “the Act”), I find that the husband’s financial contribution to the M P property far exceeded that of the wife’s. He had purchased the property and was in occupation prior to the marriage and the marriage was of very short duration. Approximately $40,000.00 of further borrowings were secured over that property during the period of the marriage with such funds being expended by the parties. Those borrowings did not relate to the acquisition, conservation or improvement of the M P property, save as to perhaps $5,000.00 - $7,000.00. Gambling by the husband appears to have used up a not insignificant amount of these funds. Of course I am mindful that he is left to repay these borrowings. The wife’s contribution was in the application of her income during the period in which she was employed to the living expenses of the husband and wife including the mortgage repayments. When not in gainful employment, the wife made an indirect contribution in her care of the parties’ son C and both parties attended to general household duties.
Any orders which I shall now make will not effect the earning capacity of either party. I am required pursuant to Section 79(4)(e) of the Act to take into account those matters referred to in subsection 75(2) of the Act so far as they are relevant and also pursuant to Section 79(4)(g) to take into account any child support that the husband has provided, is to provide, or might be liable to provide in the future, for the parties’ son C.
The wife has the care of C who is two years of age. She is in receipt of a pension. She resides in rental accommodation with minimal furniture whilst the husband resides in the M P property with not inconsiderable furniture. The wife wishes to continue in her role as a parent engaged in the full-time care of the parties’ son, save for some small periods of employment.
Although the wife was required to obtain borrowings to assist her relocation she has had opportunity in the intervening period to repay that loan. She herself has gambled funds which could more appropriately have been put towards the repayment of the AGC loan. Her evidence was a little evasive as to her level of gambling post-separation and her concessions were made only after the husband had produced bank statements corroborating his claim in part. I am of the view that the wife has had the capacity to attend to the repayment of the AGC debt and I do not believe that the husband should be responsible for the repayment of this debt.
The matter of the wife’s debt with respect to the P loan falls into a different category. The circumstances surrounding her departure from the former matrimonial home were violent and I accept that she did not have the opportunity to take with her any of the furniture contained in the former matrimonial home. Even to the present time she has been unable to obtain items of a personal nature for herself and C. I am of the view that the husband should make a contribution to the payment of this debt and that his contribution should be in the sum remaining in his Credit Union account, namely $6,750.00.
The husband’s contribution to the $30,000.00 received by him from DHS is more difficult to ascertain. The husband was evasive as to the existence of this sum and as to its basis. He described some part of it being holiday pay and none of it being superannuation. It appears to have been a settlement sum in relation to an employer-employee dispute and/or a termination payment. In any event, the husband has already expended $13,000.00 of the said sum and it is not unreasonable that the joint debt to St George be met with part of the balance of funds and the remainder be applied by the wife to pay out P.
The husband has made some repayments with respect to his motor vehicle and the M P property out of the $30,000.00 settlement sum. He has otherwise expended approximately $10,000.00 of the monies without regard to meeting any of his child support obligations. His gambling problem continues. The husband’s evidence did not lead me to conclude that he would make regular payments of child support in the future.
I am satisfied in all the circumstances that it is just and equitable to make an adjustment between the parties as to the husband’s interest in the M P property which I find to have an equity of approximately $21,000.00. The husband’s contribution to the acquisition, maintenance and improvement of the property is significantly in excess of any contribution of the wife but the needs of the wife in the support of herself and the parties’ son C are significantly in excess of those of the husband. The asset pool is small. I intend to order that the husband shall pay to the wife the sum of $10,500.00 within 90 days and failing the making of the payment that there be a sale of the real property and a payment out to the wife in the sum ordered together with any interest that may thereby accrue.

Wife’s maintenance

The husband’s capacity to pay spousal maintenance to the wife is non-existent at the present time and I do not propose to make any order for spousal maintenance. The property orders that I shall make of course do not contain any component of capitalised spousal maintenance and the wife is at liberty to bring an application should same be appropriate at some future point in time.

Costs

The husband did not disclose his receipt of $30,000.00 until same was discovered by the wife’s Legal Advisers. He required a witness to attend whom he had no intention of cross-examining. He was less than honest about his partial expenditure of the $30,000.00 requiring more lengthy cross-examination. In this manner, he put the wife to additional unnecessary legal expense. I propose to order that he contribute the sum of $1,000.00 toward payment of her legal costs.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Hartnett FM

Associate:

Date: