Bolivar and Bolivar

[2009] FamCA 518

FAMILY COURT OF AUSTRALIA

BOLIVAR & BOLIVAR [2009] FamCA 518

FAMILY LAW – PROPERTY – husband applicant for final orders – Failure to file evidence or appear – Undefended hearing – Contribution by TAC payment – s 75(2) factors favour wife – small asset pool – final orders

Family Law Act 1975 (Cth) s 75(2)

Jel & DDF (2001) FLC 93-075

APPLICANT: Ms Bolivar

RESPONDENT: Mr Bolivar

FILE NUMBER: MLC 634 of 2008

DATE DELIVERED: 10 June 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 10 June 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: Schembri & Co

Orders

1. That the funds standing in the name of the parties on trust with McNab McNab and Starke be forthwith disbursed as follows:

   a.90% to the solicitor for the wife, Stephen Schembri of Schembri & Co Lawyers; and

   b.the balance to the husband.

2. That within 14 days hereof the husband do all things reasonably necessary to sign and return to the solicitors for the wife all documents required to transfer registration of the Commodore motor vehicle registration number …. to the wife.

3. That in the event the husband refuses or neglects to comply with the preceding paragraph:

   a.the Registrar of the Family Court of Australia at Melbourne is hereby appointed to execute all deeds and documents in the name of the husband and do all acts and things necessary to give validity and operation to paragraph 2 hereof; and

   b.the husband in default is ordered to pay any and all foreseeable damages to the wife caused by his/her default; and

   c.the husband in default is ordered to pay all reasonable costs incurred by the wife for the purpose of enforcing this order and proving his/her damages.

4. That it shall be sufficient authority for the Registrar to act pursuant to paragraph 3 (a) hereof to have before him or her an affidavit sworn by the solicitor for the wife in which the solicitor deposes:

   a.that transfer documents were posted to the husband at his address for service; and

   b.that at least ten days have elapsed and the documents have not been returned, signed, when the affidavit was sworn or affirmed.

5. That the husband shall indemnify the wife and forever keep her indemnified in respect of all or any liabilities in respect of:

   a.the GE Finance debt in the husband’s name;

   b.the debt to St George in the husband’s name which relates to the Toyota Hylux vehicle in the husband’s possession;

   c.the BankWest Mastercard in the husband’s name; and

   d.any liability of the husband to the Australian Taxation Office, howsoever such liability arises.

6. That unless otherwise specified in these orders:

   a.each party be solely entitled to the exclusion of the other to all property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears in the bank’s record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, and superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or work in future produces the condition for the payment out of such entitlements; and

   b.each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

7. That the reasons for judgment be transcribed and a copy made available to the parties.

8. That a sealed copy of this order be served on the husband by sending it by ordinary prepaid post addressed to him at … in the State of Victoria.

9. That all applications for spousal maintenance and property orders be otherwise dismissed.

IT IS CERTIFIED

1. That pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of solicitor appearing as counsel for the wife.

IT IS NOTED that publication of this judgment under the pseudonym Bolivar & Bolivar is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 634 of 2008

MS BOLIVAR

Applicant

And

MR BOLIVAR

Respondent

REASONS FOR JUDGMENT

1. The parties were in a relationship between 1996 or 1997 and 2007, having married in 1999.  The proceedings commenced when the husband filed an application on 24 January 2008 in the Federal Magistrates Court, seeking parenting orders with respect to their two children, J, born in July 2003, and E, born in April 2006, and final property orders.

2. In a response filed on 8 February 2008, the wife sought different parenting orders and responded to the application for property.  As a result of allegations made by her, a form 4 notice of abuse was filed on 8 February 2008.  An amended notice was filed on 19 February 2008.  The amended notice alleges the father sexually abused J on three specified occasions.

3. On 11 February 2008 Burchardt FM appointed an independent children's lawyer and transferred the case to this court. He ordered that, until further order, the wife have sole parental responsibility and residence of the children, and made a number of other directions.

4. In this court, the matter was assigned to the Magellan list which is why it comes before me today.  I will say something further about its Magellan history in due course. Suffice to say at this stage that orders were made on 18 July 2008, by consent, which provided for the father to commence some supervised time with the children, initially at a contact centre. If that worked he was to move to a regime of unsupervised time.  The matter was otherwise adjourned to 12 December 2008. 

5. The parties applied to use Fairgrounds Contact Service and were accepted. Subsequently, J made another disclosure of sexual abuse to staff at Fairgrounds and Fairgrounds withdrew its services. Save for that one session, there has been no contact. 

6. The parties' solicitors - at that time the father was represented - continued to work to resolve the financial aspects of the applications.  The asset position of the parties is not strong and as the dispute in relation to property was relatively small, a decision was made to keep that aspect of the applications in the Magellan list, in order to avoid duplication and excessive cost to the parties.

Application to proceed undefended

1. The applications for parenting orders have been adjourned to 9 October 2009. The competing property applications were listed before me today, by an order made on 2 March 2009.  On that day, orders were made for discovery and the parties were granted leave to issue subpoenas. Orders required the parties to file affidavits of evidence-in-chief and financial statements.

2. On 20 May 2009, the father's solicitors filed a notice of ceasing to act.  On that notice they provided a mobile phone number as the last known number of their client. 

3. The matter was listed before me for mention on 29 May 2009, to ensure it was ready for trial.  The husband failed to appear.  Indeed, the court has heard nothing from the husband since his solicitors filed the notice of ceasing to act. 

4. The evidence before me on 29 May 2009 was that the wife's solicitors last wrote to the husband's solicitors in the week of 15 May 2009; they had been involved in settlement discussions, as one would expect.  For that reason, neither had complied with the orders to prepare trial material; the solicitors hoped, not unreasonably, that the matter could be resolved and, given the small pool, that more of it would be available to the parties if legal costs were contained.  The wife's solicitors received no response to that letter; soon after, they received the notice of ceasing to act. 

5. The wife's solicitor did manage to speak with the husband on the Wednesday before the case was listed before me on 29 May 2009. The solicitor’s call was to the mobile number on the notice of ceasing to act. The husband was reluctant to discuss anything with the wife's solicitors and advised that he intended to engage another solicitor the following day.  Nothing further was heard from him.

6. Court staff made valiant efforts to reach the husband so he could have some involvement in the hearing of 29 May 2009; these attempts were summarised by me on that day. The mobile phone number was rung a number of times on the day before the listed hearing date.  It rang a few times and then cut out.  The court then obtained the phone number of the husband's mother, and contacted her.  She was requested to ask her son to ring the court, if she heard from him.  She was given direct phone numbers to named people in the court.  The court was told that the husband’s mother contacted the court just after 9 am on 29 May, which was courteous of her. She advised that she had not seen or heard from her son or been able to contact him. In those circumstances, I conducted that hearing in his absence.

7. On 29 May 2009 I extended the time in which the parties were to file affidavits to 5 June 2009.  Unfortunately, the order provided for this to be done by 6 June 2009, which was last Saturday. Realistically, this required the parties to be given an opportunity to file until yesterday, 9 June, as that was the first sitting day after 5 June, Monday being a public holiday.

8. The order of 29 May provided for the parties to include details of their current financial circumstances in that affidavit to save the expense of a separate statement of financial circumstances.  The order noted that the competing applications for final property orders remained listed for 10 am today and that the parties would be advised by telephone, on the telephone numbers on the record, if they were not to appear today but on a later date.  That note was included because this is a Magellan defended list, in which most of the trials are long, and this case was listed subject to a part-heard case.

9. A number of further attempts have been made to contact the husband on his mobile phone number.  That phone has not been answered or has been turned off.  The order of 29 May 2009 was served at the address for service of the father, which is …, in an express post envelope posted on 29 May.

10. This litigation has been on foot for a long time.  The court cannot force a party to engage in litigation.  This is a court of private law.  Its role is to determine disputes between parties.  In his initiating application, the father sought final property orders.  On two occasions, he has not appeared to press that application.

11. I am satisfied that the case should proceed in his absence today.  I will hear the wife's application for property orders, contained in her response filed on 8 February 2008.  

Application for property orders

1. On 24 January 2008 the husband filed an application in which he sought final parenting and financial orders.  In relation to property, he sought to be excused from particularising his claim until such time as full and frank disclosure had been made by the wife.  He sought a number of interim orders, relating to the return of his tools of trade and building materials at the former matrimonial home, restraints on the distribution of chattels, the release of taxation paperwork, an injunction restraining the wife's use of bank accounts, full and frank financial disclosure by the wife and that the proceeds of sale of the former matrimonial home be placed in an interest-bearing account in the parties' names, pending further order or agreement.

2. In a response filed on 8 February 2008, the wife sought spousal maintenance in a figure deemed appropriate by the court, that the proceeds of sale of the former matrimonial home be distributed as to 90 per cent to her and 10 per cent to the husband and such further and other orders as the court deemed fit.  She sought a number of procedural orders.  The first was that he transfer to her his interest in the car which she was then (and still is) driving. She sought injunctions directed to her personal safety, the ability to pay certain debts from the proceeds of sale of the former matrimonial home and that the case be transferred to this court from the Federal Magistrates Court in which it had been filed.

3. On 11 February 2008 Burchardt FM did transfer all applications to this court.  As noted earlier, those relating to children were placed in the Magellan list. In the form 4 filed on 19 January 2008, the wife alleged that the parties' daughter, J, had made disclosures of sexual abuse by her father.  Three specific dates were noted, being 16 September, 20 November and 5 December 2007.  There was also reference to verbal abuse and threats to harm the child's dog.

4. Earlier today, when considering whether the case should proceed on an undefended basis, I outlined the bare bones of the litigation and I will not do so again.  The court determined then that the interests of justice required the wife’s application to be heard in the absence of the husband, he having elected to play no part at all in the proceedings since his solicitors went off the record earlier this year.

Background

1. The parties were in a relationship between 1996 or 1997 and 9 August 2007, when they separated.  They married in 1999.  In December 2008, a federal magistrate granted a divorce on the wife's application.  Her evidence is that the husband appeared to contest that divorce, although the file shows no response filed by him.  Whatever the basis of that application, the federal magistrate pronounced a divorce on 9 December 2008. 

2. The parties have two daughters. J will be six in July and E is three.  As would be apparent, the children were very young when the parties separated.  It is not in contention that the father has had very little contact with the children since their separation. I act on the basis he would say that is the consequence of false allegations made against him.

3. I should note that the actual separation of the parties occurred when police came to their home and removed the husband, after a complaint by the wife.  An interim intervention order was granted.  At a later contested hearing, the wife’s application for a continuing intervention order was dismissed.  On the husband's own account in his affidavit of 22 January 2008, he punched a hole in the wall on that occasion, an aggressive and violent act which, when done in the presence of small children, is potentially abusive to the children.  I can say nothing further about that.

Evidence

1. In these proceedings the wife relies on the affidavit she swore and filed on 8 February 2008 and the form 13 that she swore and filed at the same time, as well as an affidavit filed with leave today.  As the husband has elected to play no part in the proceedings, no material from him is before the court.  However, the wife also sought to rely on aspects of the affidavit he swore and filed on 22 January 2008 and the financial statement filed by him on 8 February 2008.

2. In fairness to him, in any event, the court may have looked at that material.  In the circumstances, I have done so. 

3. In her first affidavit, filed on 8 February 2008, the wife responded to many of the allegations in the husband's affidavit. I place weight on her evidence in response to those claims. 

4. The wife has given oral evidence today. In the main, that related to her contact with the husband since separation.

Parties

1. The wife is presently 35 and the husband is 34.  The wife and children live at her parents' home in W.  She has interim orders for sole parental responsibility and residence, pursuant to orders made by me on 11 February 2008.  Later orders provided for the husband to have some supervised contact with the children at a contact centre.  When J made an allegation of abuse to a worker, that contact ceased; the evidence is of only one such visit.  The husband has not had time with the children since.

2. This is not the occasion to consider and determine the allegations of sexual abuse.  I note that the husband denied those allegations in his initiating material and denied them throughout the proceedings, when he was represented.  Those applications for parenting orders have a return date later this year.  I cannot say if the husband will seek any orders at that time.

3. What is relevant – and to this extent I rely on the family report and the DHS report before the court when the husband last appeared – are factors which relate to the children's progress.  That is a matter to which the court can have regard when considering financial matters, particularly the burden that children's difficulties and challenges can place on those charged with their day to day care.

4. To the best of the wife's knowledge, the husband continues to live in the property to which he deposed when he swore documents filed in the court and is the address his solicitors gave for him when filing a notice of ceasing to act in May this year. 

Chronology

1. When the parties commenced cohabitating, the wife was employed as a clerk and was earning around $30,000 per annum.  The husband was employed as a tradesman.  There is some dispute on the evidence as to how much work he had, the wife deposing to him having not much work and he deposing to doing quite well.  The wife's evidence is of helping him to pay off the utility he had recently purchased and she deposed that his income was significantly less than hers.

2. When they married in 1999, the wife was still employed in that role and remained so employed until 30 November 2000 when she was involved in a motor vehicle accident in which she received significant injuries.  She was unable to return to work and, save for a short attempt on a part-time basis, she has not been employed in paid work since. At the time of marriage, the husband was working as a driver. 

3. When the parties married, the wife had some $5,000 in savings and a small superannuation interest. Her evidence was that the husband had little or no savings or superannuation; he had the motor vehicle which she helped to pay off.  No doubt he brought his trade skills to the marriage.

4. As a result of the car accident, the wife sustained lacerations to her left eye for which she needed plastic surgery.  She fractured her sternum, lacerated her knees, and suffered ankle injuries.  She also suffered compression fractures of her spine, including T11 and T12 and damage to the discs.  She subsequently underwent a spinal fusion to T11 and T12 and a disc replacement.  She had nine months of intensive rehabilitation. She attempted to return to work, working part-time for three hours, three days a week, but was unable to maintain that employment due to constant back pain and the recovery time associated with each of the rehabilitation sessions she was then undertaking.

5. In May 2005 the wife received a TAC payment of $263,000, which included a loss of earnings component, together with payment for pain and suffering.  Prior to receiving that lump-sum, she received 70 to 80 per cent of her pre‑accident salary from the date of the accident until December 2002.  The wife's evidence, which is not contested, is that the TAC payment was expended as set out in the schedule SCB1 to her affidavit filed on 8 February 2008.  Funds went on a range of debts, from Amex to Citibank.  Funds were expended on payments to Car and Home Finance, Lion Finance Pty Ltd, Bonanza Shed, Total Tools, Dick Smith, Tyre Factory and on a Kawasaki motorbike, a concrete shed and towards a car.  A Wizard loan of over $180,000 was paid out, as was a Citibank debt of $6,500, and $8,000 due to Lion Finance.  The balance went on miscellaneous living expenses.

6. In or about 2001 the husband started his own business.  The wife's evidence is that he was responsible for the invoicing and an external accountant was retained to prepare BAS and other taxation returns. The husband deposed to the wife doing some of this bookkeeping.  I can say little of the tax position, save that the husband annexed to the affidavit he filed in January 2008 a copy of an ATO document, dated 23 August 2007, which was a demand for $19,495.85.  Save for interest of $740.94 which had accrued since (presumably) the last such demand, nothing was itemised. No ATO assessments were produced. I cannot say to what period those taxation debts related, or their nature.  The wife's evidence is that all then outstanding taxation debts were paid at the time the TAC payment was expended. 

1. In early 1999, prior to their marriage, the parties purchased a property at K, for about $104,000 with a mortgage of about $90,000.  They each contributed about half of the deposit.  The husband was able to do that because he had recently sold his car. In 2004 they sold that property for about $189,000, primarily to clear debts.  The mortgage by that stage stood at about $180,000.  An inference one might draw from the material before the court is that the family was living beyond its means.

2. Shortly after that sale, the parties bought a property in L for $196,000 with a mortgage of $180,000; the equity was then very small.  The wife put over $180,000 of her TAC payment towards that mortgage but, notwithstanding that expenditure, the family remained in financial difficulties. By that stage, the wife was not in paid employment.  She was looking after the children and the home. Her evidence was that the husband was not working regularly.  Cars and motorbikes and tools were purchased with sums drawn down against the mortgage account; again, that account was drawn to its limit of $180,000.

3. When the L property was sold after separation for $322,500, the balance of funds remaining after discharge of the mortgage and other liabilities was placed in the trust account of the husband's former solicitors. It stands at $125,788.

Contributions

1. Save for income that each brought to the marriage from personal exertion, the only major financial contribution during the marriage was the TAC payment of $263,000.  The wife's father provided some assistance to them when they were together, putting some $10,000 into a car loan, and he has provided significant financial assistance, as well as emotional assistance, to his daughter since separation.

2. The wife was the primary carer for the children and played the significant homemaking role.

3. In terms of contributions of the parties, I must find that the significant financial contribution was made by the wife through the TAC payment and some financial assistance from her father.  Each of the parties contributed through income-earning activities.  Further, I find that the significant contribution to parenting and homemaking fell to the wife during the marriage and that since the end of the marriage, she has had sole responsibility for those aspects.  That is a very significant contribution and one made, she has deposed, in the face of continuing harassment and intimidation.

4. The wife gave evidence of continuing harassment by the husband. The wife's evidence is of the husband constantly driving by her parents' home, alone or with other men; of obscenities being directed at her and her mother; of the husband and others sitting on the railway bridge and hurling abuse in the direction of the home in which she and the children live.  She and the husband have not had any direct, face-to-face conversations since December 2007, shortly after separation.  The husband appeared at the Federal Magistrates Court on the day of the divorce hearing in December 2008; his attempt to thwart her application for a divorce was unsuccessful.  She said the last occasion on which he abused her and her family was about a week ago.  Such behaviour makes the role of a parent even more difficult.

5. I note the allegations the husband made against the wife and those who supported her in the affidavit he swore in early 2008. The wife denied the allegations. If he had filed further material and appeared, the court could have heard him on these issues. As it is, the wife’s denials are accepted.

6. Having read the husband's affidavit, it is clear he alleged that in the years leading up to separation, the wife fraudulently transferred money from joint accounts into accounts in her name, had her mother added as a signatory to a joint National Australia Bank savings account and made significant withdrawals which, he inferred, were spent on a frolic of her own.

7. In relation to the allegation of her mother being a signatory to the account, the wife's plausible evidence was that the account had originally been in her  name, prior to her marriage, and at that time her mother was a signatory.  Her mother remained a signatory when the husband’s name was added to the account. 

8. I have gone through all the bank statements annexed to the husband's original affidavit and noted the pattern of expenditure of which he complained, and of money being transferred, usually by phone, from one account to another account.  Documents annexed to the wife's material do not cover the whole period but show that on many occasions, payments were made in respect of the car loan and the mortgage, immediately after a phone transfer.

9. The husband's complaints go back to a time in 2006; they include a complaint about $29,000 that was withdrawn in May 2006, more than a year prior to separation. The documents annexed cannot substantiate inappropriate behaviour by the wife and those tendered by her provide an explanation. The husband’s failure to engage with the litigation means the court has no evidence on which it could find his complaints substantiated. 

10. Taking all contributions into account and accepting the husband made some (but not the primary) contributions as a parent and home-maker prior to separation, the wife’s contributions could not be assessed as lower than 75% from the time of cohabitation to trial.

Assets

1. In terms of assets, the most significant asset is the sum held in trust.  The husband deposed in his form 13, filed over a year ago, to having $17,827 in various superannuation accounts.  I have no up-to-date information about that.  As the wife deposed, the financial crisis has impacted on her own superannuation entitlements and it may well have impacted on his.  All I can say is that that is the figure to which he deposed at that time.

2. In February 2008, the wife deposed to superannuation interests of some $29,000.  Within the last six weeks, she accessed that superannuation on a hardship basis and withdrew some $10,000; she received only $7,500, the balance going on tax.  The information available to her is that her residual superannuation interest now stands at around $16,500.  It is thus not hard to see that the diminution since early 2008 and the husband's interests are likely to have been similarly impacted.

3. It is probable the bulk of the parties’ superannuation accrued during the marriage. The husband’s entitlements may have grown since separation.

4. The husband has some tools of trade.  This was a bone of contention in early 2008 and numerous letters passed between solicitors.  The wife's evidence was that the husband’s tools of trade were packed up from the shed at the property and collected, in the presence of police, on 3 August and 16 December 2007.  She has none of them.  His evidence, which she contested in her subsequent affidavit, is that many items were not returned to him and that some of those which were returned, were damaged.  It is clear his case then was that this had impacted on his earning capacity and was a matter of significant concern to him.

5. The husband did not include any tools in the financial statement he swore in early 2008.  I cannot say whether that means he thought they had no value or whether it was an inadvertent omission. 

6. Before me, the wife estimated their value at $7,500.  The court cannot find their value but can find that the husband has at least some of the tools of his trade.

7. The parties each drove a car at the time of separation.  The wife drove a Commodore and what happened in respect of that is a sorry saga.  In his initiating affidavit, the husband complained that he had found, after separation, that the wife had transferred the Commodore into her name without his consent. He arranged to have it transferred back to his name.  Her evidence is of speaking to someone at VicRoads after separation and transferring the vehicle into her name after ascertaining that she could avail herself of a concession on the registration if that occurred, given her Centrelink status. She paid to transfer the car and, through solicitors, sought that the husband sign the transfer. Her solicitors received no response to their request.  The car has remained in the wife's possession since separation.  She has been responsible for registration, insurance, maintenance and petrol. That situation needs to be normalised.

8. The wife tendered a document from K Ford dealership which suggests the car would have a maximum wholesale value of $7,000 to $8,000, and less if she sought to trade it in. 

9. The husband was in possession (and the wife assumes he still is) of a Toyota Hilux vehicle.  That was purchased with finance and registered in his name but the wife was a party to the finance agreement.  When they were together, the wife arranged payments on both the house mortgage and the car finance. 

10. The wife estimated the Toyota to be worth around $20,000.  That is an estimation, nothing more.  When the husband filed his form 13 in early 2008, he estimated its value at $16,000, an admission against interest.  What is outstanding on the loan, the court cannot say.  The wife’s evidence was that it might be as high as $25,000 but she cannot say.  The Toyota has remained in the husband’s possession.  He has had the use of it since separation.  It was used in his business activities and is no doubt a tax-deductible asset in his hands. I can say nothing more. It may have no value, or a negative value.

11. The wife deposed to the husband taking a number of trailers and a motorcycle.  She estimated the combined worth of those objects at some $6,500.  Again, that is an estimation.  The court can say little, other than to accept her evidence that they were in the husband's hands after separation.  Where they are now or what they are worth, the court cannot say.

12. I have earlier referred to the husband’s debt to the Australian Taxation Office which, to the best of the wife's knowledge, is in his name.  It does not appear a company was ever incorporated to operate any business conducted by the husband. 

13. The wife has deposed to a number of other debts faced by her, including a significant debt, of over $35,000, to her father.  After separation, her father put considerable sums into the mortgage, in order to keep her in the family home until it was sold.  He also made numerous other contributions to her for her financial support and financial support of the children.  She has not sought that that be treated as a joint debt but it is a contribution made on her behalf, to which the court must have regard and remains a debt. It was not put that her father was pressing payment. 

14. The wife's evidence is of receiving some child support through payments to March 2008.  She has received nothing since.  There is no Child Support Agency assessment before the court. Whatever enforcement is envisaged, it has not yet borne fruit.  If the husband still owes money to the ATO, it is unlikely the wife will receive arrears from a tax refund coming his way. The court must proceed on the basis it is unlikely she will receive any sums or any significant sums by way of child support for the parties’ daughters.

15. The wife presently contributes about $200 per week to the upkeep of her parents' home, usually through the purchase of food.  She pays school fees for J at S Primary School of some $800 per year. J’s uniform costs were around $900 this year.  Both girls do swimming, which costs $960 a year.  In the absence of child support, the wife has total responsibility for financially supporting the children. Her parents assist where possible but they are not wealthy.

16. There is some evidence of the effect of the February bushfires on her parents’ home.  The wife’s evidence is that the bulk of the contents of the matrimonial home were in a shed at her parents' property at W, and were destroyed during those bushfires on 7 February 2009.

17. The only items the wife had sold prior to that fire were the children's beds and her bed, for which she received $900, which went into the mortgage.  She also sold the billiard table in the former matrimonial home and the proceeds of that went towards another mortgage payment.  The wife did her best to keep the mortgage payments up-to-date until forced to sell that home. 

Section 75(2) factors

1. I have already made findings about the mother's health.  She hit another hurdle recently when, following a fall, she suffered an undisplaced crack fracture anteriorally in the right eleventh rib.  The medical evidence is of concern that there could be a line of fractures extending in that area.  As a result, she contracted pneumonia and was hospitalised for a period; she is still receiving treatment for that medical condition.  I have had an opportunity to observe the wife in court today and she has a very bad cough.

2. I can say nothing of the husband's health.  Nothing in his affidavit filed in 2008 suggests he has experienced any health problems.  I have no up-to-date material.

3. The wife lives on Centrelink payments and her parents’ generosity.  She should be receiving child support and is not.  There was no interim hearing of her spousal maintenance application and, realistically, she has not pressed that application today.  The court must find it highly improbable that the husband will voluntarily make any financial contributions to her or to the children in the future.

4. Nothing in the evidence suggests the husband is not still capable of gainful employment.  On the other hand, the wife's evidence is that he was not in regular employment during the marriage.  She concedes that he worked hard on occasions but it was not, on her evidence, sustained full‑time work for the whole of the marriage.  I cannot say what his position is. 

5. I am satisfied on the evidence before me that the wife does not have the capacity for gainful employment.  The court cannot rule out her finding some form  of paid work that could result in a modest income, but it would need to be commensurate with a serious back injury and the demands of two young children, one of whom has special needs.

6. I take into account the fact that the mother presently has sole parental responsibility for the children and is solely responsible for their financial and emotional support.  The question of long term parental responsibility will be determined in due course.

7. The court has a number of reports before it which relate to the children, including a Department of Human Services report dated 11 April 2008, a family report of Mr N which was released to the parties on 23 May 2008, and an updated family report of Mr N of 2 December 2008.

8. In his second report, Mr N wrote of speaking to J’s kindergarten teachers, to Mr Y at Fairground Contact Centre and to J’s play therapist, Mr C.  It is Mr C’s expert opinion that J satisfies the clinical diagnosis of post‑traumatic stress disorder.  She presents as a child who has been traumatised and is fearful of her environment.  She demonstrated regressive behaviours and association with violent fantasy.  She was avoidant of stimuli and had recurrent nightmares.  In his opinion, J has been the victim of an elaborate grooming process, where she had been told what might happen to her or her mother as a threat.  Alternatively, she could have been exposed to other scenarios, such as violent movies.

9. The family consultant made attempts to engage the father at that time but without success.  Mr N concluded that while J had not made disclosures to police or the Department of Human Services, the evidence was of disclosures to family members and to a worker at Fairground and that she is a much traumatised child.  It was his recommendation that J continue to engage in therapy, that the father, too, engage in therapy and that the matter be reviewed in about 12 to 18 months. It was pursuant to that recommendation the application for parenting orders were adjourned to October 2009.

10. The mother's evidence is that J is still seeing Mr C.  It is to be hoped she is improving. The evidence satisfies me that, at the moment, J has special needs.  That imposes considerable demands on the person who is primarily responsible for her care, being the wife.

11. In terms of financial commitments, the wife has the usual commitments to support herself and to repay debts.  I assume the husband does, too.  There is no evidence either party has repartnered.  They both have the responsibility to support their children, a responsibility only the wife is fulfilling.  There is no evidence either has a responsibility to support any other person.

12. The wife is in receipt of Centrelink entitlements to which she has deposed.  I have summarised the very modest superannuation interests of the parties.

13. The court is required to take into account a standard of living that in all the circumstances is reasonable.  As I said earlier, the evidence supports an inference that the parties lived beyond their means when together.  They have paid a financial price for that.  I have little evidence of the husband's standard of living.  The wife is in her parents' home.  She makes no complaint about that and has the support of her parents. It is important that any drop in standard of living is not borne disproportionately.

14. There is no evidence that the wife is able to consider a course of education or training to establish herself in some other form of employment.

15. I am satisfied that the wife's acceptance of the primary role of homemaker did enable the husband, after they had children, to work as he did in the business.  There is a dispute as to the amount of work done and the time he put into the business. Nevertheless, the wife agreed he was involved in personal exertion and brought income from that into the home.

16. This was a marriage of some eight years, after a period of cohabitation.  It is not the marriage itself which has impacted on the wife's earning capacity but the accident suffered during the marriage. 

17. It is important to protect the wife's role as a parent as she has, at the moment, sole parental responsibility for two children.

18. I take into account the wife’s evidence of receiving no child support since March 2008.  Nothing in the evidence could satisfy the court that that situation is likely to change.

19. I have already determined that, in the interests of the wife and children and in the interests of justice, this litigation must come to an end in relation to financial matters.  The husband initiated the litigation; he has elected not to pursue it.

20. I am satisfied that the wife's needs significantly outweigh those of the husband.  They are of an age, but they are not similarly placed in terms of health, earning capacity or parental responsibility. The wife is significantly disadvantaged in all those respects. At least a 20% adjustment in her favour would be warranted, even were the pool significantly larger.

21. This is a very small asset pool.  As found, it is hard to quantify assets in the parties’ hands but they are not significant. An argument could be made that the wife should receive the whole of the sum in trust, having regard to the size of the pool, the nature of her contributions, the improbability the husband will ever make any meaningful financial contribution to the children's welfare, the significant health problems she experiences which impact on her earning capacity and her child-rearing responsibilities.  Nevertheless, 90 per cent is sought.  Ninety per cent is what the husband could reasonably believe she sought, as set out in her response.  Having filed no amended response, it is a sensible decision by the wife's solicitors to leave her claim at 90 per cent of that asset. 

22. I am satisfied the wife should receive 90 per cent of the funds in trust. Each of the parties will retain their respective superannuation interests and chattels in their present possession, including any sums in bank accounts.  Orders will provide that the husband be responsible for the GE Finance debt in his name, the BankWest MasterCard debt in his name and any debt, if there is one still, to the ATO in his name, and indemnify the wife in respect of those debts.  He is also to indemnify her in respect of the debt on the Toyota Hilux.

1. I will order that the husband do everything necessary to transfer the Commodore into the name of the wife. If he fails to do so, a registrar will be authorised to sign the documents, on viewing an affidavit from the wife’s solicitor, deposing to the husband’s default.

2. The court’s obligation is to make orders which are just and equitable. The asset pool can not be quantified with any precision. The car the husband drives may have no equity or a negative equity; he has – or has disposed of and kept the proceeds – trailers and a bike. The car in the wife’s possession has a modest value. She has recently taken $10,000 from her superannuation, to support herself and her children, in circumstances where the husband has failed to do so. Her remaining superannuation is minimal; it is probable his is, too. Most matrimonial chattels were destroyed in the February fires; it was reasonable for the wife to sell the beds and billiard table to put towards mortgage repayments. Each of the parties has debts; the husband’s debtors are likely to be more pressing than those of the wife.

3. As noted by Holden and Guest JJ in Jel & DDF (2001) FLC 93-075 at 88,332 the application of percentages does not necessarily result in a just and equitable result; it is the real impact in money terms which is ultimately the critical issue.

4. The court cannot conjure evidence from thin air; he is responsible for the fact it can say little of the husband’s present financial position. The order preposed are, I am satisfied, just and equitable on the evidence before the court.

5. Orders will provide that the husband be served with a sealed copy of these orders at his address for service. 

6. The court will take out the orders.  It will also provide a copy of these reasons for judgment.

I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Brown 

Associate: 

Date:  19 June 2009