Belperio and Vazouras

FAMILY COURT OF AUSTRALIA

BELPERIO & VAZOURAS

[2018] FamCA 240

FAMILY LAW – PROPERTY – where the only significant asset is the proceeds of sale of the former matrimonial home – where the wife seeks an adjustment of 20 per cent in her favour and the husband seeks an equal division of the asset pool – where the wife was awarded an overall adjustment of 15 per cent, with a 5 per cent adjustment for her greater contribution and a 10 per cent adjustment in consideration of her role as primary carer of an autistic child - where the overall division of assets was 65 per cent to the wife and 35 per cent to the husband.

Family Law Act 1975 (Cth)

Clauson & Clauson (1995) FLC 92-595

APPLICANT:

Mr Belperio

RESPONDENT:

Ms Vazouras

FILE NUMBER:

SYC

5692

2014

DATE DELIVERED:

18 April 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

28 – 29 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Greenway

SOLICITOR FOR THE APPLICANT:

John Spence & Associates

COUNSEL FOR THE RESPONDENT:

Ms Cotter-Moroz

SOLICITOR FOR THE RESPONDENT:

Go To Court Lawyers

Orders

Pursuant to s 79 Family Law Act 1975 (Cth), I make orders in accordance with paragraphs 2 to 4 below.
The parties do all things and sign all necessary documents to divide the net proceeds of the sale of the former matrimonial home currently held in a controlled monies account with C Lawyers as to 171,895/237,126 to the wife and 49,721/237,126 to the husband.
Each party is to be solely entitled to:
3.1.Property and superannuation in the name of that party, or being in either party’s name, in the possession of that party at the date of this order; and
3.2.Money in any bank accounts in the names of that party.
Each party is to be solely responsible for any liability incurred in that party’s name or relating to any item of property which is to be that party’s property pursuant to this order, including liabilities for borrowings, personal loans and credit card liabilities and is to indemnify the other party permanently against any such liability.
If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of s 106A of the Family Law Act to execute such documents on behalf of such party.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Belperio & Vazouras has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5692 of 2014

Mr Belperio

Applicant

And

Ms Vazouras

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

On 29 March 2018 I made final parenting orders and gave reasons for those orders which were not made by consent. The remaining part of the proceedings relates to the competing applications between the parties for property settlement orders.
The remaining pool of property held between the parties is comparatively small. Total net assets are approximately $237,000.
The wife seeks an order that she receive 70 per cent of those net assets. The husband seeks an order that there be an equal division of those assets.

DOCUMENTS RELIED UPON

The documents relied upon by the husband and wife are set out at Schedules 1 and 2 respectively.

SHORT HISTORY

The wife was born in1974 in Country E.
The husband was born in 1981 in Country E.
The parties commenced a relationship in 2001.
The parties’ child, B (the child), was born in 2003.
The parties married in 2003.
The parties separated in June or July 2014.

DETAILED CHRONOLOGY

The wife was born in 1974 in Country E in Europe.
The husband’s current partner, Ms D, was born in 1980.
The husband was born in 1981 in Country E.
In 1996 the wife had completed a Bachelor and a Diploma which incurred a HECS debt. The wife in that year moved to Country F in Europe.
In 2001 the parties commenced a relationship in Country E.
In November 2001 the parties moved to G Town, Country F and lived rent free for two months in property owned by the wife’s mother.
In December 2002 the parties moved to the husband’s hometown, H Town and rented an apartment together.
The husband gave evidence that when the parties initially lived in Country E his parents paid for a lot of things, including payment for furniture to be moved.
The parties’ child, B (the child), was born in 2003.
The parties married in 2003 in Country E.
The parties moved to Australia in August 2003. The wife’s mother paid for the airfares for the parties from Country F to Australia. The parties resided with the maternal great grandparents and the wife’s mother at Suburb J. Upon arrival in Australia, the husband did not get employment straight away and he was unable to estimate the amount of time that he was unemployed but it was less than one year. During that period he agreed that both he and the wife were not working and were being supported by the wife’s family. The husband then commenced work with Company K. The parties opened a joint bank account together at L Bank.
In May 2004 the parties and the wife’s mother moved to new rental accommodation at Suburb M.
Between May and October 2004 the wife’s mother inherited approximately $150,000.
Between August and October 2004 the parties and Ms N Vazouras (“the wife’s mother”), jointly purchased the property at O Street, Suburb P ("the Suburb P property") for the sum of $457,500. The wife’s mother contributed $120,000 to the purchase price and the balance was financed through borrowings of the husband and wife in the sum of $340,000 from the ANZ Bank. The wife’s mother was responsible for state levies, electricity and landline telephone, while the parties were responsible for the mortgage and balance of bills.
In February 2005 the wife returned to paid employment at Company Q and the wife began depositing her income into the parties’ joint account.
Whilst both parties were at work the wife’s mother looked after the child.
In 2005 the husband commenced work with Company R.
In 2005, following specialist consultation, the child was diagnosed as autistic.
In 2005 or 2006 the husband purchased his first motorbike.
Between 2005 and 2007 the wife attended educational parenting programs and courses to obtain skills to assist her in dealing with the child’s condition.
In August 2006 the parties and the child travelled to Country E, Country S and Country F for seven weeks. This trip was partly paid for by the wife’s employer as part of what the wife did on that trip was business related. The parties visited the husband’s family in Country E and the child was christened into the Christian faith in Country F.
In 2006 the wife obtained an ANZ credit card for joint expenses.
In September 2007 the parties and the child travelled to the Middle East. All the expenses for this trip were paid by the wife’s employer other than the husband and the child’s airfares.
In 2009 the wife changed jobs and commenced working for Company T.
In 2010 the wife commenced studying public relations and a Diploma at TAFE.
In 2010 the husband opened a L Bank account in his own name, and paid contributions to the joint account from this account until 19 December 2013.
In 2010 or 2011 the wife says the parties purchased a motor vehicle for $7,500 using the wife’s ANZ credit card and that the motor vehicle was later disposed of due to a mechanical defect. The husband denies that he ever purchased this car and that it could have been one of the wife’s mother’s cars.
In April 2011 the wife changed jobs and commenced to work for Company U. The wife travelled alone to the USA for one week. The expenses of this trip were totally paid for by her new employer.
Between May and August 2011 mortgage repayments were not paid.
In July 2011 the wife completed another diploma at TAFE.
In May 2011 the wife established a business known as ‘V Pty Ltd’.
In November 2011 the wife accepted a job with the Government of Country W. The job required interstate and international travel of between two to seven days at a time.
Between 2012 and 2015 the wife travelled overseas and domestically for work on a number of occasions, leaving the child in the husband’s care.
In March 2012, the parties consolidated their debts into a single ANZ bank loan in the sum of $12,500. Mortgage repayments recommenced.
In July 2012 the wife completed a diploma in marketing at TAFE.
In 2012 the husband took out a personal loan to pay for a massage course and enrolled in that course.
In July 2012 the husband commenced contracting as a truck driver. He says he was unaware of his tax obligations which led to a tax debt accumulating.
In December 2012 the family travelled to Country E.
On 31 January 2013 the child started at X School which caters for mild or moderate intellectual disabilities, emotional disturbance, autism and challenging behavioural students.
In February 2013, the parties consolidated their debts a second time into a L Bank loan in the sum of $27,000. The husband purchased a replacement motorbike. The wife indicated that she did not agree that the husband needed to acquire a second bike but I accept his explanation that the first bike, that he had been using for the purposes of getting to his employment, had become un-roadworthy.
In 2013 the wife travelled to Country W for work, leaving the child in the husband’s care.
In June 2013, the parties consolidated their debts a third time into a L Bank loan in the sum of $29,000.
In July 2013 the wife was made redundant from her job with the Government of Country W.
In October 2013 the wife commenced work again with a former employer and commenced part-time work in retail.
In 19 December 2013, the husband paid the mortgage directly from his personal account.
Between 2013 and 2014 the wife withdrew a total of $5,000 from the joint account over time, which she kept in trust for the child.
In April 2014, the parties consolidated their debts a fourth time into a L Bank loan in the sum of $35,000.
In either April or May 2014, the wife travelled overseas for three weeks, leaving the child in the husband’s care. During this trip the wife explored employment prospects overseas.
In June 2014, the wife travelled overseas for one week, leaving the child in the husband’s care.
In June or July 2014 the parties agreed to separate under the one roof.
In July or August 2014 the husband announced that he wished the wife and the child to relocate with him to Country E and on 29 August he purchased three one-way tickets to Country E departing on 26 December 2014. The wife thereafter took steps to place the child on the airport watchlist.
In September 2014, the husband moved into the garage at the Suburb P property.
The husband says he lost his job. He ceased to make mortgage repayments.
On 24 October 2014, the wife began to make mortgage repayments.
In November 2014 the wife continued to explore the possibility that she might take up a job outside Australia.
In December 2014, the husband vacated the garage at the Suburb P property. After the physical separation, the wife claims that the husband has made no contribution towards the payment towards the child’s living expenses and she has been solely responsible for them.
Between 18 January and 5 February 2015 the wife travelled to Country F to seek employment in Country F. On 6 February 2015 the wife was offered a job to work for Company Z in the Country F office.
In February 2015, the husbands told the wife he will only be paying his share of one third of the mortgage repayments.
In February 2015 the wife entered into an agreement with Y Finance (for ANZ credit card debt of $15,000) at $25 per week.
In February or March 2015, the husband ceased to make payments on the mortgage. The wife applied for a reduction in mortgage payments based on hardship grounds.
On 9 February 2015 the wife commenced work at Company Z.
On 22 May 2015, the husband obtained his personal belongings and possessions from the home.
In 2015 the wife travelled overseas for a number of weeks leaving the child in the maternal grandmother’s care.
On 13 June 2015 the husband attended the Suburb P property to collect more of his things from the garage.
On 30 June 2015 the wife commenced working from home in Australia for Company Z on the understanding with her employer that she would, at some point, be able to relocate to Country F.
On 28 September 2015, the mortgagee commenced proceedings seeking possession of the Suburb P property.
Between 10 and 31 May 2015 the wife travelled to Country F to work at the Country F office of Company Z. At that point she had planned to return with her mother and the child to live in Country F so she could continue that employment. The husband agreed that he initially encouraged the wife to accept the position in Country F but then changed his mind. He said if she wanted to go to Country F to work he would have happily looked after the child in Australia.
On 18 November 2015 Company Z terminated the wife’s employment.
The husband and Ms D, the husband’s current de facto partner, travelled to Country E together in 2015. Ms D funded her trip. The husband used tickets that he had purchased when he had proposed that the family take a trip to Country E in July/August 2014.
On 14 March 2016 orders were made for the sale of the Suburb P property.
On 19 April 2016 the parties instructed a real estate agent to place the matrimonial home on the market for sale. The parties received an appraisal of the value of the property at about $700,000. The agent suggested that works might be carried out to the property to improve its appeal to increase its value. The wife’s solicitors wrote to the husband’s solicitors requesting his assistance with those improvements but the husband’s solicitors advised that the husband could not afford assistance with any improvement costs.
Between March and July 2016 the wife attended to improvements to the property in accordance with the agent’s advice.
On 23 May 2016, the mortgagee of the Suburb P property obtained judgment in the Supreme Court to repossess the Suburb P property.
On 2 June 2016 the wife bought tickets for herself and her mother and the child to travel to Country F but on 14 June was advised the husband had placed the child on the airport watchlist and she was unable to take him from Australia.
On 4 July 2016, enforcement proceedings were commenced by the husband in relation to the sale of the Suburb P property asserting the wife was being tardy in pursuing the sale.
In July 2016 the child began to exhibit particularly troubling behaviour at school.
In 2016, AA, child of husband and his partner Ms D, is born.
On 20 August 2016, the Suburb P property sold at auction for $785,000. The mortgage is $344,799. The net proceeds were held in trust by C Lawyers.
In October 2016 the wife, the child and the wife’s mother rented a three bedroom apartment together at Suburb P and continue to reside at that apartment.
On 5 November 2016 there was a major incident involving the child on a train at Suburb BB whilst he was travelling with the wife which ended in the security closing one of the carriages and paramedics attending upon the child.
Between June 2015 and October 2016 the wife experienced a weight gain of approximately 30 kilograms and became insulin resilient. On 16 November 2016 the wife underwent gastric sleeve surgery in accordance with medical advice that she had received. In order to fund that surgery she withdrew her superannuation funds in the approximate sum of $23,000.
In December and January the wife was involved in seeking specialist advice from different professionals in relation to the child’s behaviour and in February 2017 the parties and the child had five or six sessions together with a psychologist.
The wife’s mother was initially a party to these proceedings. Her claim against the parties was settled in December 2016 with the parties agreeing that she should receive $110,000 from the sale proceeds of the former matrimonial home. The husband claimed during cross examination that the wife’s mother had compromised her claim by $10,000 because “she admitted the strata arrears were her fault”. I am unaware of any other evidence about that topic.
In August 2017 the wife received a tax refund of $1,500 for non-used superannuation.
On 6 September 2017 the wife received a refund from the Australian Tax Office in the sum of $5,903. The wife did not recall the reason why she received this amount of money from the ATO nor did she produce any documents that would have shed any light on the basis upon which she had received that deposit into her account. Exhibit 17 shows that tax was withheld in November 2016 when the wife withdrew funds from her superannuation account. The amount withheld seems to be about $4,300 but I am unable to say whether or not this has any connection with the unexplained refund.
Between 17 January and 1 February 2018 the wife, the wife’s mother and the child travelled to Country F. The wife used her tax refund to assist in the payment of airfares.

PROPERTY

APPROACH

In this matter my task is to:
97.1.Identify according to ordinary common law and equitable principles and then value the property, assets, financial resources and liabilities of the parties;
97.2.Determine whether it is just and equitable to make an order altering those interests and if so;
97.2.1.Identify relevant contributions and assess them;
97.2.2.Consider relevant matters referred to in s 79(4)(d) – (g) of the Act;
97.3.Determine what order adjusting the property, assets and liabilities of the parties is just and equitable.

BALANCE SHEET

Both parties approached the matter on the basis that there would be only “one pool” of assets and that the husband’s superannuation entitlements should be included in that pool.
The settled balance sheet is set out below. Where values are not agreed they appear in bold as determined by me. The reasons for each determination are set out under item numbers following the table.

Assets
Item no.	Title	Description	H value	W value	Agreed/ Determined	Value
1	J	Net proceeds for sale of former matrimonial home held in trust C Lawyers	$221,616	$221,616	Agreed	$221,616
2	W	ANZ Bank … 091	$57	$57	Agreed	$57
3	H	NAB bank account	$20	$20	Agreed	$20
4	H	L Bank account	$0	$0	Agreed	$0
5	H	Motorbike	$3,000	$4,900	Determined	$3,000
6	W	Household contents	$0	$0	Agreed	$0
7	H	Household contents	$500	$500	Agreed	$500
8	H	Super 1	$31,068	$31,068	Agreed	$31,068
9	H	Super 2	$285	$285	Agreed	$285
10	H	Super 3	$1,900	$1,900	Agreed	$1,900
Total assets			$258,446
Liabilities
Item no.	Title	Description	H value	W value	Agreed/ Determined	Value
11	W	Y Finance consolidation loan	$0	$17,820	Determined	$17,820
12	W	HECS	$0	$12,000	Determined	$0
13	H	Personal loan	$3,000	$3,000	Agreed	$3,000
14	H	Personal loan	$500	$500	Agreed	$500
Total liabilities			$21,320
Total net assets			$237,126

The husband’s motorbike

In his financial statement sworn 10 November 2017 the husband asserts that his current motorbike has an estimated value of $3,000. Although the wife asserts a higher figure, there is no evidence of the value of this motorbike and I resolve the issue by accepting the husband’s admission as to its value.

Y Finance consolidated loan

Whilst there was no agreement in relation to whether or not this loan should be placed on the balance sheet, the parties agreed that this amount is owed by the wife. I accept that this amount was partly accumulated during the relationship and partly accumulated since the parties separated by the wife expending money on living expenses and it is proper that this amount should be added back to the balance sheet.

The wife’s HECS debt

The wife has a $12,000 HECS debt. This was a debt incurred by her before the parties commenced their relationship. It is a debt which will be paid back over time dependent upon the wife’s future income. It is a matter to be taken into account as a s 79(4)(d) – (g) consideration rather than as an amount which should be placed on the balance sheet and I will mark it as nil on the balance sheet.

WHETHER AN ORDER ALTERING INTERESTS SHOULD BE MADE

The parties have separated and their partnership has ended. After the separation, there was no longer a continuing commitment to the mutual use of assets and a shared responsibility for liabilities.
The bulk of the parties’ net assets are currently sitting in a controlled monies account and both parties seek a property settlement order seeking different distributions of those funds.
I find that in all the circumstances, it is just and equitable to make an order altering property.

CONTRIBUTIONS

The wife contends that there should be a 10 per cent adjustment in her favour based on the respective contributions made by each of the parties. The husband asserted that based on contributions the assets should be divided in his favour so that when the wife received an adjustment for s 79(4)(d) – (g) considerations, the overall division of the assets between the parties would be equal.
Neither party had significant assets at the commencement of the cohabitation.
The parties commenced their relationship in January 2001 and in November 2001 had the advantage of rent-free accommodation of a property owned by the wife’s mother in Country F for a short period of time.
The parties had some assistance from the husband’s parents when living in Country E.
The wife’s mother paid for the costs of the airfares for the parties to travel to Australia. She also paid for the costs associated with the husband’s immigration application.
Upon arrival in Australia, the parties had the benefit of rent free accommodation in the wife’s grandmother’s home for eight months.
The wife assisted the husband in making the necessary arrangements for him to obtain his Australian temporary and permanent residency visas.
It is not a matter of controversy that the husband, over the course of the parties’ cohabitation, earned more than the wife and the wife makes no complaint about the way in which the husband was engaged in paid employment whilst they were together.
As indicated, in 2004 the parties and the wife’s mother jointly purchased the Suburb P property for $457,500 and the wife’s mother contributed $120,000 to the purchase price. The parties received the First Home Owners’ Grant and stamp duty exemption as first home owners. Although the parties settled the claim by the wife’s mother by a payment to her of $110,000 in December 2016, the wife argues that this initial infusion of capital by the wife’s mother into the Suburb P property provided the parties the “springboard” to be able to acquire the equity in the property that was realised upon its sale in August 2016. The husband submits that the wife’s mother had the benefit of the occupancy of the property from the time it was purchased until the time it was sold.
The property increased in value from $457,500 to $785,000 in that period. In that time the borrowing that the parties made upon the acquisition of the property did not decrease, although as described in the chronology, the parties for most of the time serviced at least the interest on that borrowing.
I accept that the wife sold many of the items that were in the former matrimonial home upon its sale and did not get any significant funds from the sale.
Prior to re-entering the workforce in February 2005 the wife received Centrelink benefits which she contributed towards the payment of household expenses. Other than for a three month period from July 2013 the wife primarily worked full-time but also worked part-time during the period October 2013 to May 2015. The wife applied the whole of her income from employment to the joint expense of the family.
The wife primarily undertook the parenting and homemaking role although she was assisted in that endeavour by her mother. The husband assisted in providing care for the child when he was not working.
The parties were able to enjoy overseas holidays partly as a result of the wife’s employment.
From time to time the parties used a motor vehicle owned by the wife’s mother. There is an issue between the parties, which I do not need to resolve, as to whether in 2010/2011 the parties purchased their own motor vehicle.
The wife attended to the household finances and was responsible for paying all the bills from the parties’ joint account.
During the relationship the husband supported the wife in the studies that she undertook.
After the separation the wife has borne the brunt of the costs of maintaining the child. It was agreed that the last time the husband paid any child support was February 2015.
From March 2015 until the sale of the matrimonial home in October 2016 the husband did not make any financial contributions towards the mortgage, council rates or insurance.
The wife undertook aesthetic and cosmetic improvements to the matrimonial home in preparation for its sale. The husband was unable to make any comment about what preparation the wife had made to the Suburb P property to prepare it for sale. The husband said the wife had not allowed him to come to the property.

Conclusion on contributions

During the period the parties were together, they fulfilled their respective roles to the best of their abilities. The parties each made a myriad of different types of contributions.
The wife emphasises two particular aspects in support of her contention that an adjustment should be made in her favour in respect of an assessment of contributions. The first is the “springboard” effect of the capital introduced by the wife’s mother at the time of the acquisition of the Suburb P property. I accept that to some degree the wife can point to that infusion of capital as a contribution made on her behalf by her mother but obviously one that is to be heavily discounted given the payment of $110,000 to the wife’s mother in 2016. The wife’s mother received no amount for the increase in the capital of the property into which she had invested and the parties currently jointly share the benefit of that increase in capital. I accept the wife can rely upon that as being a contribution made on her behalf by her mother.
The other aspect upon which the wife relies is the fact that since the separation she has had little financial support from the husband in paying for the child’s needs. I accept that is so. Also to some degree, the wife’s ability to return to the workforce between the date of the separation and the date of hearing has been tempered by a need for her to attend to the child’s needs.
I conclude that, based on contributions looked at on an overall basis, the wife should receive a 5 per cent adjustment of the net assets.

FUTURE NEEDS - SECTION 79(4)(d) - (g) MATTERS

The wife asserted, based upon an assumption she would receive a 10 per cent adjustment on contributions, that there should be a further 10 per cent adjustment in her favour based on the considerations set out in s 79(4)(d) – (g) of the Act.
As already indicated, the husband conceded an adjustment of some sort in the wife’s favour for these considerations but submitted that they were offset by contributions, particularly financial contributions, made by him during the cohabitation.
The wife is 44 years of age. The husband is 36 years of age.
The wife contended that she lost the opportunity of a well-paid position with Company Z in Country F because the husband changed his mind about giving her permission to relocate with the child. I place little weight on that submission. Whatever the husband’s attitude was at a particular point in time, he ended up forming the view that it was best for the child if the child remained in Australia and part of the final parenting orders which I made were by consent and to that effect.
The wife gave evidence that part of the reason why she has not sought to re-enter the workforce was the focus that she had upon this litigation. She indicated that once proceedings were over, she anticipated re-entering the workforce in employment that would be consistent with her continuing obligations as the primary carer of the child. The wife estimated that she expected to be able to receive an income in the vicinity of over $50,000. When she worked for Company CC she was leading a team of 35 people in Country F. The wife has an Degree with a number of diplomas and is finishing a further Bachelor Degree.
The husband and his new partner have been living together since January 2015. She is on after tax income of $1,845 a fortnight and pays child care of $915 per fortnight. The husband has intermingled his finances with his new partner and they have a joint account. The husband contributes money on a weekly basis (about $560) to that account. The husband pays the rent, food and any other needs of his new family unit (including Ms D’s children). Ms D pays for some household expenses.
The husband and Ms D have a 20 month old child.
Ms D currently has no significant assets apart from a motor vehicle worth about $3,000 or$4,000. She has no significant debt apart from a liability to Centrelink of $1,800. Ms D has not received child support from the father of her elder children since October 2016.
I take into account in the wife’s favour, the significant assistance provided by the wife’s mother in looking after the child to free both parties to pursue employment during their cohabitation.
The wife wishes to continue her role as caregiver for the child who has a significant disability.
The wife produced medical records (exhibit 16) which established to my satisfaction the requirement for her to undertake surgery in November 2016. Exhibit 16 contains a document completed by a medical practitioner relating to the early release of superannuation on specified compassionate grounds. The doctor certifies that gastric sleeve surgery was required for the wife’s condition of untreated morbid obesity which potentially could have long-term complications and even be life-threatening. The wife accessed all her superannuation on hardship grounds to pay for her surgery and I accept that it was appropriate for her to do so.
As indicated, the husband currently does not pay child support for the child and has not done so since 19 February 2015. The wife asserts that the husband was in a position to pay child support given that he travelled overseas in June 2015 and intends to travel overseas again this year. The husband’s evidence in relation to his non-payment of child support in recent years was unsatisfactory. The husband asserted he simply had not paid child support because he hadn’t been assessed to pay child support. His current financial statement shows gross income of $1,000 per week. He asserted that he would pay whatever he was assessed from time to time but the fact is he has made no contribution by way of periodic payment of child support since February 2015. He said he would start paying again once he had done his tax returns and further said that the wife had never actually asked him for any child support and that she earned as much as he did. He said he had no idea what was going on with child support. I accept the wife’s submission that there is uncertainty as to what payments she will receive from the husband in the next three years for the support of the child.
The wife says that the court should take into account the fact that $41,000 was released from the proceeds of the sale of the former matrimonial home to pay off “consolidated loans” that the husband acquired during the relationship. The wife contends that she was not consulted in relation to the loans and that the husband informed her about these loans after he had obtained them. The wife asserts that because no documents have been produced by the husband substantiating what the monies borrowed were used for then the payment of $41,000 to extinguish these loans should be a circumstance which counts against the husband. The husband asserts that the reason for the refinancing from time to time was as a result of the parties not having sufficient income between them to adequately service the mortgage repayments and other living expenses. I am unable to find, as the wife submits I should, that the husband used loan monies for his own purposes and there is no evidence to indicate that these loans did anything other than finance the parties’ living expenses during the marriage. The wife contends that she was not consulted in relation to the loans and that the husband informed her about these loans after he had obtained them. I do not place any weight adverse to the husband arising from his refinancing of debt.
The wife currently lives in subsidised rental accommodation and the rent is shared between herself and her mother who is also on Government benefits.
The husband asserts that pursuant to s 75(2)(o) of the Act, certain adjustments would be made to the husband from the wife’s share in the sum of $19,463.50 made up as follows:
144.1.The amount equivalent to the increase in the mortgage between 10 March 2016 and 22 August 2016 being $17,476;
144.2.An amount equivalent to the cost of the husband replacing his passport being $472;
144.3.An amount equivalent to the costs of the husband replacing his birth certificate being $60;
144.4.An amount equivalent to the costs to the husband for replacing his citizenship certificate being $190;
144.5.Enforcement costs in relation to the possession proceedings being $995.50.
The husband points to the benefit that the wife’s mother had of occupancy during the period of time she lived in the property. The husband says the wife (and to the extent that the wife claims that a contribution has been made on her behalf by her mother, the wife’s mother) has made a “negative contribution” to the increase in the mortgage on the Suburb P property by failing to properly service that mortgage in circumstances where the husband asserts the wife and her mother had the capacity to do so.
These claims by the husband are all made based on his contention that the wife procrastinated in the process of selling the Suburb P property and as a result, achieved an advantage for herself in being able to occupy that property for a longer period of time.
The wife said that she made as many payments as she could given her difficult financial position. It was put to her that up until December 2015 she was receiving $5,000 a month from Company Z. Whilst the wife agreed with that proposition she said that that amount was a gross amount as she was working as an independent contractor and had to pay her own tax out of that. The wife agreed that her mother was also in receipt of Centrelink benefits and when the wife ceased paid employment, she also was on Centrelink benefits. I accept the wife paid what she could off the mortgage.
The wife further points to the advice given by the selling agent in relation to attending to the presentation of the property prior to it being sold.
The evidence does not allow me to place any weight on the husband’s assertion that there should be some weighting of around over $18,000 in his favour because of how the wife went about attending to the sale of the Suburb P property.
There were also arrears of strata levies which, as mentioned above, the husband asserts were accounted for in a lower payment to the wife’s mother.
The wife has HECS debt in the sum of $12,000 which she will have to pay back in accordance with the conditions which apply to that debt and dependent upon her future income from time to time.

Conclusions in relation to s 79(4)(d) – (g) matters

The wife will receive a 5 per cent adjustment based on the findings I have made in respect of contributions.
The husband’s current earnings are about the same as what the wife confidently predicts she might get paid if she returns to work. Nevertheless, the most weighty consideration is the wife will have the bulk of the continuing ongoing responsibility for the care of the child. The husband’s track record in assisting with the payment of child support is poor.
The pool of assets to be divided between the parties is small. The 10 per cent adjustment that she seeks is the equivalent of about $23,500 and creates a further difference between the parties of about $47,000. I find that a 10 per cent adjustment in favour of the wife for s 79(4)(d) – (g) considerations is appropriate.

JUST AND EQUITABLE

The Full Court in Clauson & Clauson (1995) FLC 92-595, said that the real impact in money terms of the adjustment being contemplated is ultimately the critical issue.
The wife contends that there should be an overall adjustment of assets 70/30 in the wife’s favour. The husband contends there should be an even division of the assets.
Based on my findings in relation to contributions and s 79(4)(d) – (g) considerations, the adjustment between the parties on an overall basis would be 65 percent to the wife and 35 per cent to the husband.

Husband gets 35 per cent
Assets
Item No.	Description	Value
1	Net proceeds for sale of former matrimonial home held in trust C Lawyers	$49,721
3	NAB bank account	$20
4	L Bank account	$0
5	Motorbike	$3,000
7	Household contents	$500
8	Super 1	$31,068
9	Super 2	$285
10	Super 3	$1,900
Liabilities
Item No.	Description	Value
13	Personal loan	$3,000
14	Personal Loan	$500
Net Assets		$82,994
Wife gets 65 per cent
Assets
Item No.	Description	Value
1	Net proceeds for sale of former matrimonial home held in trust C Lawyers	$171,895
2	ANZ Bank …91	$57
6	Household contents	$0
Liabilities
Item No.	Description	Value
11	Y Finance consolidation loan	$17,820
12	HECS	$0
Net Assets		$154,132

Standing back I consider that the distribution of assets and liabilities produces a just and equitable outcome, particularly having regard to the small size of the pool of net assets, and I shall make orders accordingly.
Given that there may have been some interest earned on the monies in the controlled monies account, those monies will be divided as to 171,895/237,126 to the wife and 49,721/237,126 to the husband.
The husband also sought orders that the wife provide him with funds to set up a trust account for the child. He of course is at liberty to do so if he wishes but it is not appropriate that I make an order in those terms.

I certify that the preceding one hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 18 April 2018.

Associate:

Date: 18.4.2018

SCHEDULE 1

Documents relied upon by the husband

Affidavit filed 23 October 2017;
Financial Statement filed 10 November 2017; and
(Oral evidence was given by the husband’s partner Ms D).

SCHEDULE 2

Documents relied upon by the wife

Affidavit filed 27 February 2018; and
Financial Statement filed 2 February 2018.

[2018] FamCA 240

18 April 2018

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Remedies

Costs

Injunction