Burke and Burke - [2009] FMCAfam 462

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BURKE & BURKE

[2009] FMCAfam 462

FAMILY LAW – Property – undefended – exclusive occupation order not complied with – husband alcoholic.

Family Law Act 1975, ss.75, 79 & 114

Aleksovski & Aleksovski (1996) FLC 92-705
Cauchi and Cauchi (1993) 117 FLR 249
C & C (2005) FLC 93-220
Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93-143
In the Marriage of Clauson (1995) FLC 92-595
In the Marriage of Ferraro (1993) FLC 92-335
In the Marriage of Lee Steere (1985) FLC 91-626
Kowaliw v Kowaliw (1981) FLC 91-092

Applicant:

MS BURKE

Respondent:

MR BURKE

File number:

SYC 7165 of 2007

Judgment of:

Sexton FM

Hearing date:

28 April 2009

Date of last submission:

28 April 2009

Delivered at:

Sydney

Delivered on:

12 May 2009

REPRESENTATION

Solicitors for the Applicant:

In person

Respondent

No Appearance

THE COURT ORDERS THAT:

The applicant wife forthwith cause a sealed copy of these Orders be served by way of personal service on the respondent husband.
The wife file an affidavit of service to verify compliance with Order (1).
These orders be stayed for a period of 30 days from the date of filing of the affidavit of service in accordance with Order (2) herein.
Within 21 days, the husband file and serve any application to vary or set aside these orders with affidavit in support and Financial Statement.
By no later than 18 December 2009 the following occur simultaneously:
(a)The wife pay the husband by way of property settlement the sum of $63,899.00;
(b)The wife discharge the joint loan secured by way of mortgage on the property situated at and known as Property BProperty BProperty B, in the State of New South Wales. (“the home”); and
(c)The husband transfer the whole of his right title and interest in the home to the wife.
In the event the wife is unable or unwilling to comply with Order (5) by the due date, the wife be appointed trustee for sale and have the sole right to give effect to the choosing of an agent and/or auctioneer (if necessary), the choosing of a solicitor or conveyancer to act on the sale, the choice of the listing price, reserve price (if applicable) and, the agreed price for the sale of the former matrimonial home:
(a)The wife be empowered to sign all documents in respect of the former matrimonial home including but limited to entering into an agency agreement on behalf of both parties, entering into a costs agreement with a solicitor or conveyancer on behalf of both parties, entering into a contract and signing a transfer in respect of the said sale on behalf of the parties;
(b)Cause the former matrimonial home to be sold for the best price reasonably obtainable.
Upon completion of the sale of the home, the proceeds to be distributed in the following order and priority:
(a)In payment of agents commission and selling costs;
(b)In payment of legal costs associated with the sale;
(c)In adjustment of rates and other outgoings in accordance with usual conveyancing practice;
(d)In payment of the amount necessary to discharge the mortgage secured over the home;
(e)In payment of $3,352.00 to the husband; and
(f)In payment of the balance as to 17% to the husband and 83% to the wife.
The court notes an Order of 13 October 2008, requiring the husband to vacate the home and for the wife to have exclusive occupation of the home, remains in force.
The wife be entitled to the whole of the contents of the home with the exception of the items in Order (10).
The husband be entitled to all tools kept at the home, the Daewoo motor vehicle and the motor scooter.
Except as otherwise provided in these orders, the husband and the wife retain all other items of property currently in the possession or control of each of them respectively.
Except as otherwise provided in these orders, the husband and the wife each remain liable for any debts, howsoever arising, in their own name at the date of these Orders and in this respect shall indemnify, keep indemnified and hold harmless the other from any liability in relation thereto.
In the event that the husband or the wife fails, refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, then pursuant to s.106A, a Registrar or Deputy Registrar of the Federal Magistrates Court of Australia is hereby appointed to execute all deeds, documents and instruments in the name of the defaulting party and to do all such acts and things necessary to give validity and operation to such deeds, documents and instruments.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Federal Magistrate Sexton delivered this day will for all publication and reporting purposes be referred to as Burke & Burke.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 7165 of 2007

MS BURKE

Applicant

And

MR BURKE

Respondent

REASONS FOR JUDGMENT

Introduction

This case concerns property settlement.
The parties finally separated on 1 January 2005 after approximately
14 years of cohabitation. There are three children of the marriage, [X] and Max, twins aged nearly 14 years and [Y] aged 12 years. The wife says the husband is a chronic alcoholic.
The wife seeks an order that would enable her and the children to remain living in the former matrimonial home at Property B, until May 2015 when [Y] will be 18 years of age, should she choose to do so. She says the children are settled in the Property B area and are adamant they do not want to move from their home. She wants an option to sell the home at any time before [Y] attains the age of 18, should circumstances change. The wife contends that she cannot financially manage any more debt while the children remain dependent on her, so would not be in a financial position to pay the husband any entitlement he has by way of property settlement, at this time.
The husband has not filed any documents in the proceedings, nor has he made an appearance on any occasion the matter has been before the court.
The wife is 43 and the husband 45 years. They started living together on the date of marriage in March 1991. The parties separated in January 2005 and divorced in February 2008. Despite an order in favour of the wife for exclusive occupation of the Property B home in October 2008, and the wife’s attempts to keep the husband away from the home, the husband remains living in the home.
The wife has a permanent full time position as a corporate trainer with [omitted], a Department of the NSW Government. I accept the wife’s evidence that the husband was a full time [tradesman] until 2003, since then has worked spasmodically, but is not presently working at all. He receives a disability support pension for his physical disabilities, which include gout.

History of Proceedings

The wife commenced these proceedings for property adjustment by application filed in this Court on 15 May 2008. The matter was listed before me for the first time on 23 July 2008. On that occasion, the wife appeared on her own behalf and, despite the court being satisfied as to service, there was no appearance for the husband. The court ordered the husband to appear personally on the adjourned date and to file and serve his responding documents. The court noted on the order, that in the event the husband failed to comply with orders or failed to appear on 18 September 2008, the matter would be listed for an undefended hearing and orders may be made as sought by the wife.
On 18 September 2008, the wife again appeared on her own behalf and there was no appearance by the husband. The wife advised the court of her intention to amend her application. The wife was directed to file and serve her amended application and the husband was given further time to file his responding documents. Again the court noted that in the event the husband failed to comply with orders or failed to appear on the adjourned date, being 13 October 2008, the matter may proceed on an undefended basis.
On 13 October 2008, the wife’s solicitor, Mr Ross, appeared with and on behalf of the wife. There was no appearance by the husband. The court was satisfied the wife had complied with directions as to service of her amending documents. In relation to the property aspect of the proceedings, the court adjourned the hearing of the final application to 28 April 2009. The court ordered the husband to forthwith vacate the matrimonial home at Property B, and gave the wife exclusive occupation of the home. The court made injunctive orders restraining the husband from entering the home without the written consent of the wife, and restrained each party from removing furniture or chattels from the home without the consent of the other party, pending further order of the court.
The order requiring the husband to vacate the home was stayed until the expiry of a 12 month Apprehended Violence Order made at Sutherland Local Court on 17 October 2007[1], which prohibited the husband from living in the home. In relation to the parenting aspect of the matter, the court made orders on a final basis providing for the children to live with the wife and for the wife to have sole parental responsibility for the children’s care. The court made an order that the children spend time with the husband by agreement with the wife and on condition that the husband not consume alcohol for at least 24 hours before the time to be spent. I gave the husband an opportunity to re-list the matter in relation to parenting issues before 24 November 2008. The husband did not do so. Those parenting orders are therefore final orders.
[1] Exhibit 5
On 12 December 2008, the wife filed an application in a case seeking enforcement of the order of 13 October 2008 requiring the husband to vacate the home at Property B. The wife did not proceed with that application.
The husband did not file any documents at any stage of the proceedings and made no appearances, despite being on notice of all court events. In her affidavit sworn on 27 March 2009, the wife deposed to the husband saying “just chuck them in the bin” when she served her amended application not long before the hearing. The wife says the husband claims he will stop drinking and wants another chance.
I was satisfied the husband was on notice of these proceedings and had ample opportunity to participate, but chose not to do so. I therefore proceeded with the hearing of the property proceedings on 28 April 2009 on an undefended basis.
Unfortunately, the wife was unrepresented at hearing. I have concerns that the wife has not appreciated that final property orders are unlikely to assist her to achieve her objective of remaining in the home with the children for the next several years, and having the husband live elsewhere.
In her oral evidence, the wife impressed me as a frank and honest witness. The wife’s responses to questions were given openly and thoughtfully, even when they did not assist her case. I accepted the wife’s oral evidence in its entirety.

Issues

The approach to the determination of an application under section 79 of the Family Law Act 1975 is well established by authority[2], and involves consideration of these questions:
[2] In the Marriage of Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage of Clauson (1995) FLC 92-595; Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93-143
a)What were the assets, liabilities and financial resources of the parties and their values at the time of hearing?
b)What were the financial and non-financial contributions made directly or indirectly by or on behalf of each party to the acquisition, conservation or improvement of the property of the parties?
c)What was the contribution made by each party to the welfare of the family including contributions made in the capacity of homemaker or parent?
d)What is the effect, if any, of any proposed order upon the earning capacity of each party?
e)What matters referred to in sub-section 75(2) of the Act are relevant and what adjustment, if any, should be made as a result of these factors?
f)Have there been any other orders made affecting a child or either party and is child support payable or likely to be payable in the future for the children of the marriage?
g)After consideration of these matters, is it just and equitable to make the actual orders?

What were the assets, liabilities and financial resources of the parties at the time of hearing and their values?

I accept the unchallenged evidence of the wife in relation to the values of the assets and liabilities held by each party at the date of hearing.
Where the wife tendered documents to verify the values, I have included the exhibits as footnotes. In relation to the home, the wife says she has estimated its value by comparing the sale prices of properties which have sold in the area.
On the basis of the wife’s evidence, I am satisfied the known assets and liabilities of the parties available for division between them are as identified in the following table:

Assets and liabilities at the date of hearing	$
Property B (joint names)	720,000.00
Westpac Bank Account (wife’s name)	Negligible
Nissan Trail motor vehicle (wife’s name)	18,000.00
Daewoo Motor Vehicle (husband’s name)	negligible
Motor Scooter (husband’s name)	2,500.00
Household contents (joint)	15,000.00
Tools (husband)	3,500.00
Westpac Superannuation (wife) [3]	34,079.00
Virgin Superannuation (wife) [4]	14,927.00
RAMS mortgage (joint names) [5]	(363,839.00)
Debt on motor vehicle (wife’s name)	(14,000.00)
Citibank Overdraft (wife) [6]	(6,129.00)
AMEX Credit Card (wife)	(10,991.00)
Debt to orthodontist (wife)	(1,875.00)
Other assets held by husband	Not known
Total known net pool including superannuation	411,172.00

[3] Exhibit 2

[4] Exhibit 1

[5] Exhibit 3

[6] Exhibit 4

Contributions

The court must consider all the contributions, both financial and non-financial to the acquisition, conservation and improvement of the parties’ assets, as well as to the welfare of the family before and after separation. The Full Court said in Aleksovski & Aleksovski (1996) FLC 92-705[7]:
It is therefore necessary…[to] weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation and then translate such assessment into a percentage of the overall property of the parties
[7] At 83,437
Given the relatively modest asset pool, I find it appropriate in this case to adopt an integrated approach to the superannuation and non-superannuation assets of the parties. The majority of the Full Court in C & C [8] said there is no binding principle as to the exercise of the Court’s discretion in deciding which approach should be adopted:
Nothing we have said in this judgment would prevent a Court in the exercise of its discretion from including a superannuation interest as an item of property in the list of property which is drawn as ‘the first step’ in the determination of proceedings under s79, whether or not a splitting order is sought in those proceedings.
[8] (2005) FLC 93-220
Financial contributions. The wife gives a short financial history of the marriage in her affidavit sworn on 24 April 2008 and I accept her unchallenged evidence. The wife deposes to the husband contributing in 1991, at the time of marriage, equity in excess of $20,000 in a block of land, a boat with unspecified equity and a motor vehicle of modest value. At that time, the wife herself contributed superannuation entitlements of approximately $3,000 and a motor vehicle of modest value. In addition, the wife says she paid a number of mortgage instalments on the husband’s block of land before the marriage.
In July 1991, the parties jointly borrowed $100,000 to erect a home on the land.
In December 1993, the wife paid an $11,000 redundancy payment she received to the mortgage account.
The wife worked throughout the marriage, apart from very short periods after the children were born. The wife worked 3 days a week until March 2004, when she says “it was necessary to work full time.” [9] The wife contributed her income to the expenses of the household, the parties and their children.
[9] At paragraph 11 of the wife’s affidavit sworn on 24 April 2008
Between December 2003 and July 2004, the parties separated and the wife moved with the children to rental accommodation in [J]. She says she paid her rent and expenses for herself and the children with some minor short term financial assistance from the husband. The husband paid the mortgage instalments on the home for 3 months. In February 2004, the wife says she received a redundancy payment of $42,000 and from that time, she met all the mortgage instalments on the home in which the husband was living alone at the time, and the whole of the rent for the home in which she was living with the children. During this period, the husband withdrew $8,000 from the joint loan account for his own use.
The husband worked full time as a [tradesman] until 2003. The wife estimates he spent 30% of his income on alcohol and 70% on the family up until that time. Since early 2004, the husband has not worked consistently and the wife has continued to meet all the mortgage repayments and most of the other expenses for the family. In February 2004, the wife paid $2,000 for the husband’s petrol account at
Property B service station and a further $2,000 on the husband’s behalf for work expenses he had incurred with [C]. At separation, the wife paid to discharge arrears on 3 of the husband’s credit cards which she is still repaying as part of her debt to Citibank.
Non-financial contributions including tasks associated with the care of the children. Although the husband gave her some assistance with the children and performed household tasks from time to time, I am satisfied the wife carried the majority responsibility for the day to day tasks of the household and the majority care of the two children during the whole of the marriage. In approximately 1999, the husband was diagnosed as an alcoholic. I accept that the husband’s ability to care for the children was seriously compromised by his excessive use of alcohol. The wife says[10]:
…on a couple of occasions… I returned home to find the husband was drunk and incapable of looking after the children who are [sic] fending for themselves.
[10] At paragraph 23 of the wife’s affidavit sworn on 24 April 2008
When heavily intoxicated, the husband regularly abused and physically attacked the wife and the children. The wife says he used to yell loudly at them “you’re fuckwits, you’re dumb fucks, assholes”.[11]
[11] At paragraph 24 of the wife’s affidavit sworn on 24 April 2008
I am satisfied the wife made significantly greater overall non-financial contributions during the course of the marriage.
After separation. Since separation in early 2005, the husband has worked “spasmodically”, while the wife has worked full time. The husband’s excessive use of alcohol has worsened and the wife has carried the responsibility for the household and for the children. With the exception of minor financial contributions from the husband, the wife has met all mortgage payments and all other necessary expenses for the household.
In February 2006, a year after separation, the wife received a further redundancy in an amount of $7,000 which she deposited to the loan account.
The wife is presently earning a gross income of $77,000 per annum and in addition receives 9% of her income by way of a compulsory superannuation payment from her employer. The wife salary sacrifices the maximum of $9,000 to which she is entitled by her employer, to contribute to mortgage repayments. She receives a carer’s allowance of $203 per fortnight for two of her children who suffer from attention deficit hyperactivity disorder and an estimated $400 a fortnight in family tax benefits. The wife has been in her present employment since November 2008 and has a permanent full time position. I accept that the wife contributes the whole of her income to the expenses of the household, herself and the children and has managed her income to make all mortgage repayments, repay credit card debt, meet substantial orthodontic debt for two of the three children, school fees and other necessary expenses. In the past 6 months, the husband has contributed only $400 to the household.

In oral evidence, the wife updated her expenses as set out in her Financial Statement sworn on 24 April 2008. The wife pays $600 a week in mortgage repayments, $250 a month in health insurance premiums, payment on a loan of $14,000 for the recent purchase of a second hand car and school fees of $160 per month for the children. The wife has a debt to [X]’s orthodontist of $1,875.00, having just repaid orthodontic fees for [Y].
Since separation, the wife has purchased furniture for the children, bedroom furniture for herself and a lounge.
The wife does all the domestic work in the home and has full responsibility for the care of the children, made significantly more difficult because of the husband’s abusive and reckless behaviour.
The wife says the husband’s alcoholism and consequent behaviour has seriously worsened in recent years. She deposes to the husband being arrested for drink driving in 2006 when he was taking [X] to the orthodontist. She deposes to the husband repeatedly using appalling language to her and the children while drinking heavily, saying “you’re a bunch of lazy pricks” and “you’re a fucking lazy bitch”.[12] The wife observes the children being very anxious around their father. The wife says the children ask on their way home in the afternoons whether their father will be drunk. They will say “I don’t want to go home.” [Y] has said to the wife “when I’m 18 I’m going to punch dad.”[13]
[12] At paragraph 26 of the wife’s affidavit sworn on 24 April 2008
[13] At paragraph 26 of the wife’s affidavit sworn on 24 April 2008
In 2007, the wife says the husband was seriously drunk 3 to 4 times a week. He has promised to stop drinking many times but never keeps his promises. He spent a week in rehabilitation but discharged himself before completing the programme. On 11 September 2007, the husband was so drunk when the wife returned home from work with the children that he could not hold himself upright. The husband was then re-admitted to the same rehabilitation programme for 3 weeks. In October 2007, the police obtained an Apprehended Violence Order for the protection of the wife and children[14]. The wife says[15]:
On the night of the Court hearing we came home and he had still not vacated the premises [as ordered] and threatened us that if he was “not allowed to live here then neither would we”. The kids were terrified when he said that, that something would happen to us when we least expected it, they were all crying. He disappeared for the night then returned the next day and the children begged me not to ring the police, so since that date, he has resided in the matrimonial home.
[14] Exhibit 5
[15] At paragraph 31 of the wife’s affidavit sworn on 24 April 2008
On 13 June 2008, the children telephoned the wife to say “dad is in the gutter outside the house, drunk. What should we do?” Earlier in the day the husband had rung the wife to say he had hit the real estate agent’s car, while under the influence and asked her what he should do. On 13 October 2008, after appearing at this court and obtaining an order for exclusive occupation of the matrimonial home, the wife describes what happened when she arrived home[16]. She says the husband agreed to leave the home. Then a week later, on 21 October, when he had not yet left, the husband terrified the wife and the children when he exclaimed[17]:
The only way I will be leaving [the] house is with 4 boxes behind and I will burn the house down rather than let you live there.
[16] Affidavit of wife sworn on 19 March 2009
[17] At paragraph 6 of wife’s affidavit sworn on 19 March 2009
On 26 November 2008, the local ambulance officers told the wife that the husband had arrived at the ferry wharf inebriated and was being taken to hospital. The children were in his company on the ferry.
The wife has repeatedly requested the husband’s parents or family to help for the sake of the children, but says that help has not been forthcoming.
In December 2008, when the wife gave the husband sealed copies of her application in a case seeking enforcement of the exclusive occupation order, the husband went into a “screaming rage” and said, “I’m going to burn the house down before you get to live here.”
On 4 February 2009, the husband rode a razor scooter down a steep hill and crashed after he had been drinking. He was taken to hospital by ambulance. Police and fire brigade attended. The husband had emergency surgery. Despite the wife’s request to the hospital that the husband be discharged to alternative premises, the husband returned to the Property B home on 9 February 2009.
The wife describes an incident a week or so before hearing when, after “4 days of solid drinking” the husband collapsed on the verandah of the home at 10 a.m. on a Sunday morning. Ambulance, police and fire services attended and the husband was taken to hospital. Later in the day, the wife says the doctor rang from the hospital. The wife explained that the husband could not return home because she had an exclusive occupation order. She gave the doctor the telephone numbers for the husband’s brother and mother. The following day, the wife says the husband re-appeared at the home.
The wife remains hopeful that the husband’s parents might take him to their home at Byron Bay to obtain medical help. The wife says she has been unable to change the husband’s behaviour even though he has periods of sobriety when she tells him how frightening he can be.
I am satisfied the wife has cared for the children since separation without physical or emotional assistance from the husband. I am satisfied the husband’s presence has made the wife’s role much harder than it would otherwise be. I am satisfied the wife has taken sole responsibility for the expenses of the children and the household in which the husband is living, despite court orders prohibiting the husband from living in the home. I accept that the wife has chosen not to enforce the apprehended violence order or the sole occupation order, as a result of the husband’s threats to kill her and the children and burn the house down.
I am satisfied that the wife made almost all, if not all of the overall contributions to the assets of the parties, since separation.
The orders proposed by the wife do not affect either party’s earning capacity.
On an assessment of each party’s contributions during the period of cohabitation and since separation, I am satisfied the wife is entitled to 70% and the husband 30% of the overall superannuation and non-superannuation asset pool.

What matters referred to in sub-section 75(2) of the Act are relevant?

I have considered each of the relevant factors listed in section 75(2) of the Act.
The wife is 43 and the husband is 45 years of age.
The wife is earning a good income, but bears all the expenses for herself and the children and for the household, which include mortgage payments and school fees. The wife faces significant additional future dental expenses of an estimated $15,000 for the child [X]. [Y] requires special education as a result of suffering ADHD and has expenses beyond those of a normal child and in excess of the carer’s allowance the wife receives for him. The wife can expect no financial assistance from the husband. The wife carries the full responsibility, for the parties’ three sons without respite and without assistance of any kind from the husband. I find this situation is likely to continue long term.
I make a significant adjustment in the wife’s favour for this factor.
The husband suffers from a physical disability as a result of an accident while he was intoxicated, which resulted in a broken ankle earlier this year, as well as high blood pressure and gout. The husband may also suffer from a mental health problem manifest in his alcoholism. However, given the husband adduces no evidence, I make no adjustment in his favour on the basis of these factors. I am not satisfied the husband is taking any steps, medically or otherwise to address his health issues, which is likely to be the reason he is does not earn income as a [tradesman], as he once did.
I have regard to the wife’s need to consult a counsellor at a cost to her, given the stress she suffers as a result of the husband’s conduct.
I am satisfied the husband has wasted a substantial proportion of his income during the course of the whole marriage on excessive quantities of alcohol. Even before he stopped work in 2003, the wife says the husband spent 30% of his income on alcohol. I am persuaded this proportion has markedly increased in recent years. His Honour Justice Baker in Kowaliw v Kowaliw[18] held that:
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a)where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b)where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
[18] (1981) FLC 91-092
This is a factor to which I give significant weight.
Neither party has re-partnered.

Have there been any other orders made affecting a child or either party and is child support payable or likely to be payable in the future for the children of the marriage?

I am not satisfied the husband is ever likely to contribute to the children’s expenses, nor share in their care. I make a significant adjustment in favour of the wife as a result of this factor.
In assessing the section 75(2) factors, having regard to the factors I have addressed and to the modest size of the net asset pool, I am satisfied a just and equitable result requires the wife to receive by way of adjustment in her favour a further 13% of the matrimonial assets. The wife will therefore receive 83% overall of the known net assets of the parties.

Is the result just and equitable?

Section 79(2) provides that:
The Court shall not make an Order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the Order.
The Court must be satisfied that the actual orders provide for a just and equitable distribution of the property of the parties.
This is a modest asset pool of $411,172.00.
For the wife to receive 83% of the net pool, the wife will receive $341,273 overall. If she receives the former matrimonial home, subject to mortgage, items of property in her possession, debts in her name, and her superannuation entitlements she will receive $405,172 which is $63,899 more than 83% of the overall pool. The husband will receive his scooter, his Daewoo, his tools and any assets he has which have not been identified by the wife. The assets and liabilities each party will receive are set out in the following tables:

Assets to be retained by wife	$
Former matrimonial home at Property B	720,000.00
Mortgage to Rams	(363,839.00)
Nissan motor vehicle	18,000.00
Bank proceeds	Negligible
Household contents	15,000.00
Virgin super	14,927.00
Westpac super	34,079.00
Debt on motor vehicle	(14,000.00)
Debt to Citibank	(6,129.00)
Amex Credit card	(10,991.00)
Debt to orthodontist	(1,875.00)
Payment to husband	(63,899.00)
TOTAL	341,273.00
Assets to be retained by husband	$
Motor scooter	2,500.00
Tools	3,500.00
Daewoo motor vehicle	Negligible
Payment from wife	63,899.00
All other assets held by the husband	Not known
TOTAL	69,899.00 + NK

As already noted, the wife asks for an order enabling her to remain in the former matrimonial home until the parties’ youngest child [Y], is 18 years. She says she cannot afford to meet any more debt at present, while the children all remain dependent on her and attend private schools. The wife does not wish to sell the Property B home in the immediate future, because she and the children do not want to leave their home or the area in which they are settled. The wife wants the option of retaining the Property B home until 2015 and then paying out the husband. Otherwise she seeks an order that the Property B home be sold by no later than May 2015, and after payment of certain debts and payment to her of certain amounts by the husband, that the net proceeds be divided equally. I note here that the court does not have jurisdiction to make the orders the wife sought concerning children’s expenses, because they are child support orders. The effect of the orders sought by the wife is that the husband may wait nearly 6 years before receiving funds to which he is entitled by way of property settlement. I am not satisfied such an arrangement would result in a just and equitable outcome for the husband.
I have determined that the wife should have a much shorter period to pay the husband his entitlement to property settlement, or else the home will be sold. I have decided until the end of this year is a reasonable period. In the event the home is sold, the net proceeds of sale will be divided such that the wife receives 83% of the overall pool and the husband 17%. Excluding the home (and mortgage loan), the total value of the net assets, including superannuation, is $55,011.00. For the husband to receive 17% of this amount, he must receive $9,352.00. He will retain his scooter and tools with a value of $6,000. This means that upon settlement of the sale of the home, after payment of the usual sale costs and the discharge of the mortgage loan, the wife will pay the husband $3,352.00 before the balance is divided 83:17 in favour of the wife.
The wife also seeks an order that the husband be arrested without a warrant, for failure to comply with the order made by this court on
13 October 2008 to vacate the home.
The wife did not seek police assistance as she was entitled to do, to enforce the 12 month apprehended violence order of October 2007 providing for the husband to vacate the home at Property B, nor did she seek to extend the duration of that order. The wife said she was frightened of the husband’s likely reaction, in light of his threat to burn the house down with her and the children inside. The wife did not proceed with an application for contravention of the order made by this court in October 2008 for the husband to vacate the home. The wife tells the court she believes the enforcement of an order of this court, being a civil order, is unlikely to provoke the husband in the same way as the enforcement of an apprehended violence order, because it is a ‘criminal order.’ I told the wife at hearing the court did not have the power to make the order she seeks.
In Cauchi and Cauchi[19] his Honour Justice Kay held that while a power of arrest automatically attaches to injunctions made for the personal protection of persons under s.114AA, there is no other power under the Family Law Act1975 to otherwise attach a power of arrest to an injunction. In this case, the court has granted an injunction under section 114 of the Act relating to the use and occupancy of the matrimonial home. It has not granted an injunction for the personal protection of a person, nor has it been asked to do so. Even in cases where an order is made, the police have a discretion as to whether or not to arrest a respondent without warrant.
[19] (1993) 117 FLR 249
I gave consideration as to whether the operation of the orders should be stayed. I have decided to stay the orders for a period of 30 days to give the husband a final opportunity to file any application to vary or set aside these orders within 21 days.
I am satisfied that the orders set out at the beginning of these reasons are just and equitable.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for judgment of Sexton FM.

Associate: Skye Owen

Date: 12 May 2009