CONSTABLE and CONSTABLE
[2013] FMCAfam 56
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CONSTABLE & CONSTABLE | [2013] FMCAfam 56 |
| FAMILY LAW – Property dispute – only significant assets being property in wife’s name and a business – husband boasting of dissipation of assets but later seeking to withdraw admissions – grossly insufficient evidence – both parties having significant health problems – Court doing best it can in the circumstances. |
| Family Law Act 1975, ss.79(2), 79(4) |
| Chang v Su [2002] FamCA 156 Farmer v Naidoo [2011] FMCAfam 975 Stanford v Stanford [2012] HCA 52 Erdem & Ozsoy [2012] FMCAfam 1323 |
| Applicant: | MS CONSTABLE |
| Respondent: | MR CONSTABLE |
| File Number: | MLC 7278 of 2012 |
| Judgment of: | Burchardt FM |
| Hearing dates: | 18 September, 26 October & 6 December 2012 |
| Date of Last Submission: | 6 December 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 4 February 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hoult |
| Solicitors for the Applicant: | Lander & Rogers |
| Counsel for the Respondent: | In person, save that Mr Crabtree appeared on 6 December 2012 until granted leave to withdraw |
| Solicitors for the Respondent: | Taylaw Solicitors |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 7278 of 2012
| MS CONSTABLE |
Applicant
And
| MR CONSTABLE |
Respondent
REASONS FOR JUDGMENT
Introduction
This very unusual property dispute presents very significant forensic challenges which arise in the main from the complete failure of the respondent husband, who has been self-represented (effectively) throughout, properly to engage with the curial process.
For the reasons that follow, I am going to order that the wife retain the parties’ property in Tasmania which is, to all effects and purposes, the only property susceptible of ready realisation. The parties will otherwise retain the chattels in their possession together with their superannuation. Further, the husband will be ordered to retain such debts as are in his name and to indemnify the wife in respect of any business debts that may formally obtain to her.
The procedural history
It is not possible to understand the remarks set out above without a relatively detailed description of the course of the proceeding.
On 10 August 2012, the wife filed an initiating application and affidavit. She sought a 65/35 split of the matrimonial asset pool in her favour together with spousal maintenance and costs.
As interim orders, the wife sought a number of relatively detailed matters, all of which were interrelated with a business, which I will refer to as [Y], previously operated by the husband. Relevantly, the wife sought, in effect, that her interest in [Y] be transferred to the husband and that he indemnify her from all trade creditors and the Australian Taxation Office.
The wife’s affidavit, to which I will return in greater detail later, set out the background of the relationship between the parties and detailed, as one would expect, the history of the relationship, the children of the parties and other relevant matters, including significant mental ill health on the part of the wife. The wife also set out a history of the parties’ contributions to the financial aspects of their relationship and gave an estimate of the financial pool.
She also deposed to matters supporting the interim orders she sought.
Her financial statement, lodged on the same day, showed relevantly that the wife’s average weekly income was over $100 less than her expenditure.
The husband was served on 17 August 2012. This is apparent from the acknowledgement of service filed on 30 August 2012.
The matter came before the Court on 18 September 2012 at which time the wife was represented by counsel and the respondent appeared (as he has done throughout) in person. The respondent had not filed any materials.
In the course of the proceeding, the husband revealed that he had obtained $80,000 worth of sales through the operation of [Y] since separation and he stated, in a manner which at best could be described as unrestrained and at worst as boastful, that he had spent all of that money on gambling, partying and prostitutes.
In the face of this disgraceful admission, there was but little to be done as to any extant cash assets, although the husband did refer to two vehicles in America, and at the wife’s application I made orders restraining the parties from operating the parties’ eBay accounts with [Y] and another body called [P], and ordered that the husband make full disclosure of his financial circumstances.
The date by which the husband was to serve his material was 9 October 2012 but when the matter came back on the return date of 26 October 2012, the husband had not done so. What did happen was that Courtney Elizabeth Marston, solicitor for the wife, filed an affidavit sworn 5 October 2012. Essentially Ms Marston’s affidavit deposed to the completely unco-operative attitude on the part of the husband, and included an assertion by the husband that he had sold all the items previously listed on eBay by [Y] and had spent all the money.
Ms Marston deposed that he said:
“I bought drugs and had more parties. I spent $1,000 per day on hookers, it was fantastic, you should have been there.”
Although initially the husband took issue with that account when the terms of the affidavit were put to him, he confirmed that it was essentially correct. At transcript P4, the husband appeared to suggest there may have been some agreement between the parties at some point whereby they had consensually divided their property, but he initially indicated that he would not file any affidavit material no matter what the Court ordered. It emerged that there were two vehicles, apparently in the United States, but that otherwise everything had gone.
At P7-P8, the husband set out what appeared to be an account of the business and financial affairs between the parties, and he subsequently referred to rental of his business premises at $2,500 a month.
The husband also asserted at P10 that as to the two cars in the United States, he had a buyer for one but he would have to go there to put the car together.
He confirmed that the purchaser was prepared to pay $20,000.
The other car was described at P11 as a bit of a clunker but the husband said that he would probably get about $25,000 (at a guess) for that car also.
In the ultimate, I made orders that the applicant file and serve any amended application on or before 2 November 2012 and that the respondent file any response, financial statement and affidavit on or before 16 November 2012. In the event of default by the respondent, the matter would proceed on an undefended basis.
The wife did indeed file her amended application on 2 November 2012 and, by that application, sought that she receive the totality of the asset pool. She also sought that the parties do all such things as might be necessary to sell such stock as [Y] might have and to apply the moneys concerned to pay out various debts (including a debt to the wife’s son, Mr E) and that the husband effectively retain [Y] and be responsible for all of its debts.
The husband filed a response, affidavit and a financial statement on
3 December 2012, clearly well after the time provided for in the Court’s orders. Relevantly, the husband’s response sought a 50/50 split of the matrimonial assets, although it should be noted that the response also sought that the case, as it were, go back to the beginning with a conciliation conference and various valuations. This aspect of the response was not pressed at trial.
The evidence of the parties
The wife’s affidavit
Unfortunately, because of the unsatisfactory nature of the evidence given, it will be necessary to traverse the parties’ affidavit and oral evidence in some detail.
The wife deposed that she was born [in] 1968 and is unemployed as a result of medical treatment for depression and stress-related symptoms. She receives a disability pension.
The husband was born [in] 1962 and was deposed to having started a business operating as [P].
The parties were asserted to have commenced cohabitation in late November 2003, married in [omitted] 2004 and separated on 20 February 2012.
There are no children of the marriage but the wife has a daughter,
Ms K, born [in] 1989, and a son, Mr E, born [in] 1992. Both these children lived with the parties for periods of time.
The husband has a son from a previous marriage, Mr M, born [in] 1995, who lives with his mother in Hobart.
The parties separated for approximately two months from November 2010 until January 2011. On 26 November 2011, the wife endeavoured to take her life by overdosing on sleeping tablets as a result of depression.
At this stage, the parties were living in Queensland.
Final separation occurred on 20 February 2012 following an alleged assault by the husband on the wife. The parties lived separately under the one roof until 1 March 2012 when the wife moved from Queensland to Melbourne. The wife deposed that the husband was then residing at the premises from which [Y] operates in [L], Queensland.
The wife’s affidavit deposes that at the commencement of cohabitation, she owned a property in [C], Tasmania, which was sold in around August 2004 with $140,000 clear net proceeds of sale.
The wife deposed that she owned a 2000 Nissan Pulsar valued at approximately $8,000 at the commencement of cohabitation and otherwise had about $15,000 in superannuation, together with furniture and chattels in her [C] property.
The wife deposed that at the commencement of the relationship, the husband was bankrupt but was discharged shortly thereafter. The husband operated a cash-only business in his own name from his grandparent’s property in Tasmania.
The business was asserted to have been sold in June or July 2004 to the husband’s apprentice for approximately $200,000. The husband applied $12,500 to the purchase of a farm at Property B, [B], Tasmania, and he buried $100,000 in the chicken pen at the [B] property. The wife deposed that the husband later discovered that $6,600 of this buried cash was destroyed by rats.
The wife deposed that the husband also had a small portable cabin at his parent’s property at which he lived until the commencement of cohabitation. She deposed that it was sold to a friend of the husband for approximately $10,000.
The [B] property, already referred to, was bought for $245,000 and registered in the wife’s sole name. She deposed that she contributed approximately $125,000 towards the purchase and the husband $12,500. The balance of approximately $110,000 was borrowed.
In or about October 2006, the parties bought a property at Property M, Queensland, for approximately $465,000 upon their relocation to Queensland. The sum of $100,000 was drawn down from the mortgage against the [B] property in order to provide the deposit for the Property M property. That [M] property was sold in November 2010 following the first separation and each party received approximately $25,000 from the net proceeds of sale.
The wife deposed that the husband started [Y] in February 2011 and that she contributed $15,000 towards the start of that business from her share of the proceeds of the Property M property. She asserted that the husband did not make any financial contributions to the business, save for his tools of trade.
The wife deposed that there are a number of business loans secured against the [B] property, as well as a loan from the Commonwealth Bank in the name of Mr E.
The wife’s affidavit goes on to detail a number of the dealings with the business that seem to me to have been largely overtaken by events. It is, in the circumstances, probably appropriate to pass to the schedule of assets and liabilities set out at paragraph 25 of the affidavit. It should be noted that I have excluded from the list below all the items which the husband has subsequently sold.
Assets
[B] property – value $350,000
Less mortgage to CBA $221,647.64
Equity $128,352
Liabilities
Personal loan from CBA to Mr E $17,777
Cash advance granted to [Y] $74,988
Better Business loan account to [Y] $23,921
Business transaction account in the name of [Y] $28,000
HSBC credit card $1,779
Coles credit card $610
I have not included the two vehicles in the United States. I will return to them.
The wife deposed that her current income is $350 per week in rent from the tenants occupying the [B] property, all of which is committed, apart from $62 per month, to the monthly mortgage repayments on that loan.
Otherwise, the wife receives $844.90 per fortnight from which she expends $600 in rental payments for her home in [omitted], $76 for medical insurance, $50 for groceries and medical prescriptions, and small amounts of money for utilities and repayment of a cleaning account for [Y] together with $60 petrol. This subsumes almost all of her pension, leaving a balance of only $18 per fortnight for any other expenses.
The husband’s affidavit
The husband’s affidavit confirms the age of the parties and their children.
He further deposes that he has been a [occupation omitted] all his life.
The husband confirmed that cohabitation commenced in about November 2003, and also confirmed the sale of his former business for $200,000 in 2004, although he said the net profit was $150,000. He deposed that he further held $30,000 in cash assets, plant and equipment worth $20,000 and vehicles worth $15,000. Whether this was in 2004 following the sale of the business or at the commencement of the relationship is not indicated.
The husband deposed that the wife’s real property was sold shortly after the relationship commenced but he put the net figure from sale as $128,000. He confirmed that the property in [B] was bought for $240,000 and asserted that he contributed $13,500 and the wife $120,000.
He also deposed that he renovated/extended the property for $30,000 funded, in effect, by a labour swap with the builder. He deposed that this extension added significant value to the property.
He confirmed that the parties relocated to the Sunshine Coast in 2005 and that the [B] property is rented at $420 per week, which he asserted meets the mortgage repayments and outgoings.
The husband confirmed that the wife worked as a [omitted] throughout 2003 to 2005.
He deposed that upon relocation to the Sunshine Coast he obtained a salary of $75,000 plus super and vehicle, whereas the wife continued in work in [omitted] through to approximately 2008.
He confirmed the purchase of the Property M property in 2006 and deposed that he paid all the mortgage payments. He deposed that in 2006 he suffered three heart attacks and was unable to engage in employment, but that mortgage insurance covered house repayments for two years during “this period.”
The husband deposed that in 2008 he returned to full-time employment with a salary package of $85,000.
He asserted that he had to leave this position because of recurrence of heart issues.
He confirmed that when the Property M property was sold in late 2008 to 2009, a net balance of approximately $130,000-$140,000 was received.
He further confirmed that the parties did, indeed, separate in 2010 for a short period, and that all assets were split 50/50 with the exception of the [B] property.
He asserted that, after reconciliation in late 2010, “we started the business [Y] trading as [Y] from [L], Queensland.” He asserted that the business was operated as a partnership in premises rented for $2,400 per month. He said that both parties were responsible for the lease.
He said that the business was funded through sale proceeds of assets held by the parties and personal cash reserves on his part.
The business was by way of importing classic vehicles and motorbikes for sale on customer request.
He deposed that the sum of $20,000 had been borrowed by the wife and himself personally from Mr E, whom he described as his son (this clearly being an error). He described the asset pool in paragraph 39 as:
[B] property $410,000
Business known as [Y] and stock – work in progress $to be valued
Toyota Camry (wife’s) $15,000
Furniture and chattels (wife’s) $15,000
Bank accounts (wife’s) $to be disclosed
Bank account (husband’s) $minimal
Liabilities
[B] property mortgage $220,000
Business liabilities $125,000
Personal loan to Mr E $17,000
Husband’s superannuation $20,000
Wife’s superannuation $22,800.
The husband deposed that he had continued to trade and operate the business, [Y], until the Court ordered him to cease doing so, and he asserted that sales had been made in the ordinary course of business, during this period, in a total amount of $84,000. He said at paragraph 43:
“From these proceeds usual business liabilities including rental, insurance, shipping costs, utilities, business credit liabilities and wages have been met.”
At paragraph 69, he expanded further upon this aspect of the matter asserting that $25,000 had been spent on business rental and additional funds on business utilities in the sum of $3,000 together with fuel - $6,000, repairs - $2,000, liabilities - $12,000, wages - $30,000, materials - $3,000 and plant and equipment - $4,000. He deposed that the $31,000 allegedly left were funds from the sale of a Chevrolet used to pay all expenses for the container and shipping. He deposed that there were still two cars in the United States. It should be noted that the figures asserted to have been thus expended amount, in total, to $116,000, substantially in excess of the amount actually received by way of payments in ordinary business.
The husband deposed that he is 50 years old and in poor health and is on a disability pension of $800 per fortnight. He took issue with the valuation of the property in [B] and sought that a valuation occur.
The oral evidence – the wife
The wife adopted her affidavit as true and correct and was cross-examined by the husband.
She confirmed that she had never seen the lease on the business premises, which the husband says she is jointly liable for, and was not able to say if she was a party to it. She took issue with the husband’s assertion that he paid the entire mortgage on the Property M property. She confirmed that his mortgage insurance had paid but she said she contributed also. She stuck to her version of the assault that was alleged to have taken place at the time of separation in terms that seem to me to be entirely believable.
She confirmed that the valuation of $350,000 for the [B] property was simply hearsay of the real estate agent who had assured her that the property could sell for between $300,000 and $350,000.
She confirmed that the husband had renovated the attic of the [B] property but since it was not approved and was only a loft it was not, as she understood the matter, a lawful renovation. She deposed that the real estate agents had advised her to this effect and that accordingly, the parties would have to apply to a council to obtain retrospective approval for the renovation.
The oral evidence – the husband
The husband gave evidence-in-chief. He said he had not sold $100,000 worth of goods but only $80,000. He sought to resile from his earlier boasts about the waste of money. He confirmed that he had partied but had not spent as much as he had earlier indicated. He said that the wife was responsible for half the debts of the business and for the lease. He said he had paid $25,000 towards the lease of the business premises out of the $80,000 he had received, and had taken $15,000 out of the $80,000 to buy a ute. He asserted that he had taken out $15,000 in wages and paid bills of between $5,000 and $6,000 over 12 months.
He confirmed that $220,000 is owed on the [B] property mortgage and $125,000 approximately in respect of business debts. He said that there were two cars in the United States. One was bought for $15,000 and one for $12,000. These would have to be imported to Australia, which itself would cost another $10,000 to $12,000. He said that he seeks to retain those two cars and obtain cash payment for $20,000. He confirmed that he had borrowed money for his lawyer and paid about $9,000, and he expressed a lack of desire to pay for the wife’s costs.
All of the above statements were made from the bar table, without objection, and I treat them as though they were given under oath.
Under cross-examination, the husband asserted that he had stretched the truth about the amount he had spent partying and confirmed that he had no documents with him at all. He conceded that he had sold at least $88,000 worth of [Y] goods when confronted with paragraph 42 of his affidavit. He said he was still trading out of the warehouse and, when pressed as to why he had no relevant documentation with him, he expressed disdain. He said he had been drunk each day and had no idea what he spent on the partying.
He stuck to the proposition that he had spent $25,000 on the rent but confirmed that no money had been paid into the bank and all transactions were in cash with no receipts. He confirmed that one of the two vehicles in the United States is ready to be shipped and is at [omitted] but the other has to be put back together. He gave some details of the people having custody of those vehicles and confirmed that, if brought to Australia, they could be sold easily for $40,000 between the two cars.
He confirmed that he had not lodged a 2012 tax return and that his last BAS was nine months ago.
He repeated his assertion that the extension to the [B] property in Tasmania was, in his view, lawful and would add considerable value to the property.
The submissions by counsel for the wife
Counsel submitted that the wife should retain the [B] property and its mortgage. He submitted that stock of [Y] should be transferred to the wife and sold, with the proceeds applied the business’s debts. It was submitted that the husband should do all things necessary to get the cars to Sydney or Melbourne. He pointed out that the [B] property is registered in the wife’s sole name and made trenchant criticism of the husband’s credibility, bearing in mind the different stories he has told from time to time. Counsel submitted that it was not possible to accept anything that the husband says and that the Court should accept the wife’s evidence. It was submitted that the Court cannot even accept that the stock (estimates of which appear to vary between $80,000 and about $125,000) had in fact been sold. It was submitted that the husband still has stock of about $100,000.
Counsel submitted that the contributions of the parties were equal. It was submitted that the future needs had to bear in mind that the wife was unable to work because of her depression, and it was submitted the husband’s capacity to work was unclear.
Submissions of the Husband
The husband in final submissions confirmed, inter alia, that it is not possible for him to go to the United States to repair the car that requires mending. He repeated that he had spent about $80,000, including rent of $2,400 per month, together with sums for parts and the $15,000 for the ute which, as he put it, went into the business. He asserted that the extension puts value into the [B] property, although he was unable to quantify it. He confirmed the existence of $125,000 worth of debts.
He asserted that while the two cars in the United States could be sold for $40,000 as a pair, there was a possible buyer in the United States for one of them for $20,000, which he submitted would clear up the debt to Mr E.
He said that the wife only ever contributed one month’s work in the business and, in relation to his own employment capacity, pointed out that he is on a disability pension which requires certificates. He said he had been on that pension for some six months. He also accused the wife of being a liar.
The above is obviously only a paraphrase of the evidence given and submissions made, taken from notes and not from transcript, but it details in my view the matters that emerged that were relevant.
Things the Court has not been told
Because of the way in which the parties have approached the matter, the Court is deprived of independent verifiable evidence, including documentary evidence, in relation to a number of very important matters including:
a)the value of the [B] property (including whether or not its value is increased or not by the loft that the husband has put into it);
b)the exact status of [Y] (it appears not to be a company);
c)the extent of [Y]’s debts, including the extent to which the wife is a co-debtor (particularly in relation to the lease on the premises from which [Y] operates);
d)the value of the two vehicles owned by the parties;
e)the value of the furniture and chattels owned by each party;
f)the true nature of the debt allegedly owed to Mr E;
g)the value of the cars in the United States and the costs associated with making them saleable;
h)the extent of the stock controlled and/or owned by [Y] (bearing in mind the criticisms made by counsel for the wife as to whether or not such stock has indeed been sold);
i)any taxation liability on the part of [Y], and/or the applicant and the respondent in the event that it is a partnership rather than a business entity, arising out of its operations.
Given the husband’s evidence that [Y] only ever operated in cash without receipts, it may be thought that some of these deficiencies are inevitable. I have not acceded to the husband’s desire (as expressed in his response) to adjourn the proceedings for valuations because there is every sign that this would only have been further problematic. Indeed, as earlier indicated, no application for an adjournment was actively pressed before the Court.
In the circumstances, the Court will have to do the best it can with what it has available by way of evidence.
These circumstances seem to me to give rise to the operation of the decision of the Family Court in Chang v Su [2002] FamCA 156, which was summarised by Neville FM in Farmer v Naidoo [2011] FMCAfam 975 at [52] as follows:
“The jurisprudence to which I have referred makes plain that in circumstances where one party has not properly disclosed assets, or has otherwise made the determination of the asset pool more arduous than it should have been, the court has something of a wide discretion than it might otherwise have in dealing with the asset pool and related matters.”
At [53], His Honour relevantly continued:
“The only matter I wish to note here is the court’s quotation of comments by Callinan J in the special leave to appeal application in Chang v Su. In the course of argument, his Honour said: “It does not matter what the principle might be said to be, a court has to do the best it can, having regard to the evidence that is adduced and if the parties are not frank then naturally there is going to be a measure of imprecision about any findings the court can make.””
In my opinion, the lack of evidence here, partly through non-application by the parties and partly through non-disclosure by the husband, makes these remarks all the more apposite.
The statutory requirement of section 79(2)
In the relatively recent case of Stanford v Stanford [2012] HCA 52, the High Court made it plain that the first step in property cases is to determine the legal and equitable interests of the parties. Only once that has been done can the Court consider whether or not it is appropriate to make a property division order.
Only after that decision has been made can the Court approach the matter in the manner indicated by s.79(4) of the Family Law Act 1975 (“the Act”) which indicates matters that are relevant to the Court’s deliberations in deciding what a property order should be.
It should be noted that in this case the task of ascertaining the parties’ legal and equitable interests is rendered in part impossible cause of the lack of information, as earlier indicated.
Nonetheless, the High Court made it plain that in most cases of marital breakdown, the step of concluding that it is proposed to make a property order is one that is not likely to be very difficult. In my view, it is sufficient to say that, in this case, it is quite clear that the total breakdown of the marital relationship is one that makes it appropriate to contemplate making a property division order.
The pool
For these purposes, the marital pool is relevantly the [B] property, the parties’ cars, chattels, superannuation and the [Y] business.
There is no satisfactory evidence whatsoever before the Court as to the true value of the [B] property. There is, albeit untested, hearsay evidence as to its value. The net value of the property is somewhere between approximately $128,352 (wife’s version) and the husband’s valuation of $285,000, which would add in excess of $150,000 for the value of the extension he says he performed.
The cars appear to be of roughly equal value, and the superannuation of the parties owes nothing to the other. Likewise, the chattels are unvalued and of inconsequential value in my view. All should be excluded from the pool, except the cars in the United States.
Contribution
This is not a matter that requires a great deal of elaboration in the circumstances of this case. This was a relationship of some duration into which both parties brought assets and did their best. Counsel for the wife did not suggest any particular adjustment in respect of the contribution factors and although I think that the wife’s initial property (wholly unencumbered) undoubtedly assisted the parties, it is not possible to say with any certainty what calibration should be given to this initial contribution.
Section 75(2) factors
In my view, these matters roughly work out equal. The wife cannot work and may well not be able to work again because of her mental health issues. The husband, however, can work despite his ill health and, indeed, he asserted that he continues to operate the business, [Y]. This latter assertion is, of course, inconsistent with some of the other assertions he made.
Nonetheless, and given the uncertainties surrounding the evidence, it is not possible to make any significant adjustment in this regard.
What order is just and equitable between the parties?
I note that Walters FM (as His Honour then was) in Erdem & Ozsoy [2012] FMCAfam 1323 pointed out that there is an ongoing controversy as to the extent of what may be made of what is sometimes referred to as the fourth step in Family Law property proceedings methodology.
In my view, in this case, and doing the best I can, it seems to me that an order that gives the wife the [B] property is eminently just and equitable. It would give her something in excess of $125,000.
It should be noted that, once again doing the best I can on inadequate evidence, there is no evidence to support the proposition that the loft added by the husband would actually increase the value of the property as he says, other than his own assertion.
In this regard, I should make it plain, which I should probably have done earlier, that I entirely accept the wife’s evidence where it is in contradiction to the husband’s. The wife was a careful, thoughtful and considered witness. The husband is, on any view, a person to whom the truth apparently means but little. His initial assertions as to having blown the entire $80,000-odd that he had obtained from [Y] sales stands wholly at odds with his later endeavours to retract these boastful assertions. I am not in a position to know whether his earlier remarks or his latter remarks are correct but they cannot, on any view, have both been true.
I accept the submissions of counsel for the wife that I should approach the husband’s evidence with the greatest caution. His evidence was given in a florid and unconvincing manner.
Nonetheless, I am prepared to accept, and do accept, that it is more probable than otherwise that of the amounts of money the husband has wasted (and I accept that he has wasted money because at least that aspect of his evidence was given with boastful conviction) not all was spent on wine, women and song so to speak. It is more probable than otherwise that he has maintained the rent of the [Y] business premises because had he not done so, he would have been evicted. The same goes for other outgoings. It is also probable that he has abstracted some of the moneys by way of salary, although this does not exactly sit comfortably with the proposition that he has spent his moneys on gambling and women.
Realistically, the only assets of the relationship that remain are the [B] property and the cars in the United States.
I propose to give the cars in the United States and as much of the debt as can be given (bearing in mind that I am completely uninformed as to its extent) to the husband. He can have the business and the wife will have the property.
Whilst counsel for the wife sought that the cars in the United States be brought to Australia by Court order and be sold, the fact is that the husband will simply not comply with any such orders. He has already indicated complete disdain for the Court process. Furthermore, it is all too easy for him to subvert the orders in one way or another.
If the husband keeps these two cars at a value of $40,000, he will have achieved a net equity of somewhere between $120,000- $160,000, i.e. $80,000 plus $40,000, or alternatively $120,000 plus $40,000, depending on how much he obtained/dissipated from [Y]. This would equate to approximately half the total pool.
Against this, of course, he will have to bear such debts of the business as may be enforceable against him and although I doubt its efficacy, I will order that he indemnify the wife against any business debts in her name. In my view, this is an entirely just and equitable outcome given that it would appear that the husband totally dissipated a very substantial amount of money, albeit that I am not able to say how much. This outcome gives appropriate weight to the uncertainty of what he dissipated and what he retained.
In all the circumstances, this seems to me to be an eminently just and equitable outcome, and I will require counsel for the applicant to draw up minutes of orders to give effect to these Reasons for Judgment.
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 4 February 2013
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