Farbitnik and Nigey - [2008] FMCAfam 618

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FINCH & NASH

[2008] FMCAfam 618

FAMILY LAW – Application for a response to be dismissed – failure by the respondent to comply with orders made on three separate occasions – respondent’s knowledge of the presence of the orders – absence of any reasonable excuse in relation to the non-compliance with the orders.

Family Law Act 1975

A v Z (2006) FAMCA 179
Prince v Prince (1984) FLC 91-501

Applicant:

MR FINCH

Respondent:

MS NASH

File Number:

BRC 26 of 2007

Judgment of:

Burnett FM

Hearing date:

17 March 2008

Date of Last Submission:

17 March 2008

Delivered at:

Brisbane

Delivered on:

17 March 2008

REPRESENTATION

Counsel for the Applicant:

Mr Crisp

Solicitors for the Applicant:

Burchill & Horsey Lawyers

The Respondent appeared on her own behalf

ORDERS

That the response be dismissed.
The BMW 323I should be transferred from the matrimonial pool to the applicant, as receiver, to realise the asset and, in turn, repay the debt to his parents.
I make a declaration that the BMW X5 belongs to the applicant's parents.
I make an order that the sum held in the solicitor's trust account be transferred to the applicant's solicitor's trust account, to the applicant as receiver, to pay to his parents.
I make a declaration that the sum of $140,000 and the sum of $28,000 are loans by the applicant's parents to the matrimonial estate.
I order that all costs, including reserve costs, be paid by the respondent, to be assessed, on a standard basis.
I direct the respondent retain in her possession and keep safe to deliver up to the possession of the applicant or his authorised agent, upon demand, a 1999 BMW 323I sedan, registration number 190 JKI.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC 26 of 2007

MR FINCH

Applicant

And

MS NASH

Respondent

REASONS FOR JUDGMENT

At this stage of the proceeding, the applicant has made an application in standard for the response to be dismissed, pursuant to p.13 rule 13.03 of the Court's rules. The rule provides in these terms: that the Court or the rule will apply if a party fails to comply with an order of the Court and provides that, subject to any other order, the Court may, on the application of another party in the proceeding, make an order to end the proceeding or dismiss a response.
In this case, an application is made by the applicant to dismiss the response. Rule 11.02 of the Family Court Rules provides that one of the options open to the Court is to dismiss all or part of a case and proceed to determine the case as if it were undefended. The applicant here submits that, in the event that I exercise the Court's power to dismiss the response, that I proceed to hear the application on an undefended basis.
The applicant relies upon three orders made on three separate occasions, in respect of which it is said there has been a failure by the respondent to comply with. The first is an order which was made by J Registrar Smith on 3 April 2006, in particular O.2 on that occasion, which was an ex-parte order made directing the wife be restrained and an injunction granted restraining the wife from doing any act or thing to remove, charge or encumber or otherwise deal with any moneys being the proceeds of sale of property at Property M, which is described as lot [1] on SP [2] in the County of [X], Parish of [Y].
The evidence demonstrates that sometime prior to 23 February 2006, a contract was entered into between the respondent and an entity [I] Proprietary Limited, as the purchaser of the property. The transfer document which was prepared for the purposes of the registration of the conveyance indicates that it was executed by the respondent's solicitor as solicitor for the transferor or vendor on 1 March 2006 and was executed by the purchaser, [I] Proprietary Limited as transferor, by its representative on 7 March 2006 and subsequently the historical title search from the Department of Natural Resources indicates that at the Titles Office the transfer was lodged for registration on 20 March 2006.
From the schedule dealing with easements, encumbrances and interests, it can be seen that not only was the transfer lodged on 20 March 2006 but on that date also there was released a mortgage which was the mortgage held by the Australia and New Zealand Banking Corporation Limited which, when initially produced would seem, on 5 January 2004, which roughly coincides with the date of purchase by the transferor or respondent in this proceeding. Also on that date there were duly released or discharged, I should say, two writs. One expects they were writs filed by debtors in support of judgments which had been obtained by them and which were, themselves, then to be the subject of enforcement proceedings in the event the property had not been sold. It is not contentious in this case that as at the date of settlement, it would see there was approximately $160,000 repayable to the ANZ as mortgagee and no doubt there were other sums payable to discharge the writs which had also been lodged against the title deed.
It would seem further, from an affidavit which was filed in the proceeding by the respondent that on settlement she received five cheques totalling approximately $100,000 and that at least as at 8 May, 2006 she held three of those cheques. At paragraph 32 of her affidavit, filed on 9 August 2006, she deposed to having obtained special answers on three of those cheques on 8 May, 10 May and 5 July 2006. All up each cheque being, I am informed, for a sum of $20,000, that would total $60,000. In addition, the respondent confesses that she had knowledge of the orders made by the Court at the time that she sought those special answers. I will come to the issue of her explanation in a short time but for present purposes it seems that the applicant is able to satisfy me that there has, indeed, been a breach of the order made on 3 April and that, prima facie, I should give consideration to his application or its application.
The second breach contended for concerns an order made on 12 July 2006 and, in particular, an order made that until further order the respondent pay all proceeds of the sale of the former matrimonial property situated at Property M, into the trust account of the husband's solicitors and that those solicitors be authorised to pay the wife the sum of $500 per week for her reasonable living expenses, the first such payment to be made on 21 July 2006. As was debated between myself and counsel for the applicant, the order with respect to the J Registrar is one that I think probably ought not to have been made because the evidence quite clearly before me is to the effect that the moneys had already been paid out in discharge of various debts and there was no evidence to suggest that the moneys could be reasonably recovered.
In that regard I refer particularly to Spry's Equitable Remedies, Third Edition, at page 389, where the learned author there deals with the issue of the impossibility of compliance or futility of compliance in respect of orders for injunctive relief. In that regard the author there notes: "If impossibility of compliance or futility is certain, and the ground of specific relief is pointless, an injunction should ordinarily be refused." So, as to impossibility, it was, on one occasion, said by Kulwich J, "I think it would be wrong to enjoin a company or an individual from permitting that to be done which is really beyond his control. Not beyond his control in this sense, that there is a major or act of God paramount, but beyond his control in the sense that he cannot, by any precaution or by any works, with reasonable certainty, comply with the order that is sought."
Again, as to futility, it was observed by Long Innes J that it is contrary to the practice of the Equity Court to grant an injunction in cases where the party enjoined can, by his own volition, and without committing any wrongful act, at once render the injunction nugatory and futile. If, however, the effect of the injunction is not certain and there is simply a greater or lesser probability that it will be either futile or unable to be complied with, a greater difficulty exists. Here it is necessary to balance the possibility that the injunction will not achieve its purpose with the need of the plaintiff for protection and of all the other considerations tending for and against the ground of relief.
The consequence of the possibility that the purpose of the particular injunction in question will not be achieved depends, therefore, on other circumstances of the case. Sometimes it is decisive against the grant of the relief. In this case it seems to me that the evidence would have demonstrated that the moneys had been dissipated. Accordingly, the object of an injunction, in those circumstances, would have been futile, and it seems to me that, having regard to that matter, it is difficult. Although it is appropriate to claim that there might be a failure to comply with the order, it is difficult to hold that failure against the respondent in these circumstances. I will not proceed any further with that matter.
The third complaint complained of is that by order made 9 August 2006 it was directed that until further order the wife be restrained and an injunction be granted restraining the wife from dealing in any way or seeking a refund of a sum of $11,000 prepaid to Dr M, a dentist of [S], in respect of dental work. Again, the respondent has confessed to having drawn down that sum or sought its repayment, despite her knowledge of the orders made against her in that respect. And prima facie I am satisfied that there is a breach there which warrants calling upon the respondent, at least in a prima facie sense.
Having regard, then, to those matters, the principles to be applied are succinctly articulated in a decision of the Full Court in A v Z (2006) FamCA 179 where, particularly, at paras.122 through to 139 the Court dealt with issues of this kind. And without reciting all the relevant passages into the record, I will move directly to the real test to be addressed in this case, and that is to be found at paras.136 to 139 where there the Court noted:
“In both Malpass and Mayson and Fahmi the facts seemed indicative of contravention, without necessarily amounting to contempt, though as indicated the term “contempt” was used in discussing the application of the “rule”. However, as later discussed, at least in Malpass and Mayson there may be support for the proposition that, while to invoke the rule it may not be necessary that contempt is shown on a prima facie basis, something more than contravention, albeit without reasonable excuse, is required, before the remedy of stay or dismissal can be invoked. Arguably, there must be an element of challenge to the authority of the court, or at least the contravention must be in circumstances that impede the delivery of justice in the primary proceedings, to the applicant for stay. Alternatively, perhaps the remedy may be invoked in respect of any failure of compliance, leaving the character of the failure as a factor to be considered in the exercise of discretion. Finally, I think it is clear from the provisions of ss.112AC and 112 AD, read with ss.112AB and 112AP and consistent with the passage earlier quoted from the reasons of Romer J in Hadkinson, that any evidence of “reasonable excuse” for a failure to comply with an order, must be considered by the judge hearing the application for stay.”
In essence the real issue to be resolved in this application is whether or not there has indeed been any reasonable excuse proffered by the respondent for the failure and, in part, that involves also a consideration of whether, indeed, her conduct overall challenges the authority of the Court.
Dealing first with the first complaint, the respondent acknowledged that she had notice of the orders made. The sums involved were sizeable, $60,000. The moneys were allegedly disposed of in the discharge of debt. There is no particularisation as to how the debt was made up, whether the debts were her own debts, personally, or whether they were debts of the marriage but, in any event, the funds were dissipated. When called up on to provide an explanation for why the funds were dissipated, the best that the respondent could come up with was that she did not know which way she could go. She claimed that she was essentially a new Australian citizen and that she did the best she could, to paraphrase her circumstances. She had not sought legal advice at the time, nor did she consult the solicitors for the applicant. It is, in my view, frankly unsatisfactory.
When this application came on it was clear that the parties were embroiled in a significant dispute involving the sale of the principal asset of the marriage. There has, and there was to this time, a significant debate concerning contributions made to the assets, particularly by third parties. It seems part of the funds which were discharged were applied to the discharge of a debt in respect of a BMW motor vehicle which continues to remain in the possession of the respondent. In all of the circumstances, I am not satisfied that there is, indeed, a reasonable excuse in relation to the intentional contravention of the Court's order.
As to whether there was an element of challenge to the authority of the Court, it is, to my mind, a matter that goes without saying and that is, in part, addressed at paragraph 137 by the Court that made this observation:
“Arguably, there must be an element of challenge to the authority of the court, or –“
and I emphasise
“– at least the contravention must be in circumstances that impede the delivery of justice in the primary proceedings, to the applicant for stay.”
In this case, dissipating a sum of $60,000, which represented, by and large, the balance of equity available in the property, without consulting the other party, clearly, in my view, was a contravention that was designed to impede the delivery of justice in the primary proceedings. Again, for those reasons I am not satisfied that there has, indeed, been a reasonable excuse. It seems to me that in the circumstances there should be a dismissal of the response on that basis alone.
In any event, as I have indicated, there is the third complaint which arises, and that concerns the dissipation of the $11,000, which was the prepayment made to the dentist. Again, looking to the principles which are provided for in A v Z, when asked about an excuse, the respondent, in this instance, admitted she did not ask her solicitor for any advice. She was aware, she says, that she should not have done what she did, but says she did so because she had no choice and complained, for instance, that there had been a failure by the applicant to pay child support. Again, frankly, it is not an acceptable. We have a rule of law and a legal process for good reason. It is there to resolve disputes between parties who cannot come to an agreement between themselves. It is not for the parties to take the law into their own hands and simply proceed to ignore orders made by the Court. In my view, the excuses proffered on this occasion were not reasonable excuses.
Furthermore, when one looks at the second point that the Court suggests should be considered, that is whether there be an element of challenge to the authority of the Court, again, addressing that point in the context of the Full Court's reasons at paragraph 137 in A v Z, the contravention, in the circumstances, again, to my mind, did impede the delivery of justice in the primary proceedings by the dissipation of another asset which was otherwise available for consideration as part of the property pool. Again, I am not satisfied there is any reason why the respondent undertook that conduct and, in my view, she should be admonished for it.
In all of the circumstances I think it is appropriate in this case, having regard to the quantum of the estate, having regard to the orders that were made, having regard to the knowledge of the respondent of the presence of the orders, having regard to the absence of any reasonable excuse in relation to the non-compliance with the orders, and having regard to the manner in which the non-compliance with the orders has served to dissipate the principle assets available for distribution between the parties and, by its effect, has rendered, to a large extent, the delivery of justice in the primary proceedings for the applicant a nullity and nugatory, it is, in this case, appropriate that the response be dismissed.
The applicant, who is the husband, seeks orders pursuant to s.79, for settlement of the property affairs. In his amended final orders he seeks orders that the net value of the parties' property be adjusted in the proportion of 55 per cent to the wife and 45 per cent to the husband. For reasons that I will not rehearse now, I have earlier determined that this application proceed to be resolved in a undefended way, having regard to the conduct of the respondent wife and, in particular, her non-compliance with Court orders.
By way of background, the parties are both Russian in ethnicity, the applicant husband having been born in 1980 and the respondent wife in 1972. Each of them came to Australia sometime in the 1990s, ostensibly to study at University, where they met in about 1999, and shortly thereafter commenced cohabitation. In 2002 they married and in 2005 the parties had a child, [A], who now lives with the wife and will be the subject of separate orders following this proceeding. The parties lived together until 19 July 2005, when they separated. The marriage was, by all accounts, a short marriage, including the relationship lasting not more than about seven years.
The value of the matrimonial property pool is not significant. It is summarised in the outline, which was filed by the husband and broadly was alleged to be made up as follows. The assets are:
a)ANZ Bank account in the wife's name – $5;
b)BMW 323i motor vehicle – $20,000;
c)BMW X5 motor vehicle – $60,000;
d)Cash in solicitor's trust account – $9,000; and
e)Household effects – $4,000.
That is giving a total of $93,005.
In addition to those assets there were two further assets, made up of superannuation benefits. A sum of $5,000 in the husband's favour with QSuper; and a sum of $1,015 for the wife which, when added to the other assets, gave a total pool value of $99,000 odd. If I need to I will correct the arithmetic later on.
The liabilities which were for two loans, one made by the applicant's parents – or said to have been made by the applicant's parents in or about October 2001 in the sum of $140,000, and another loan from the applicant's parents made in or about 2006 for $28,000, again made by the applicant's parents.
In so far as the estate is concerned, if one takes account of the assets and liabilities, the estate has a negative value of approximately $70,000.
In so far as the makeup of the assets are concerned, there was a contest concerning the inclusion of the BMW X5 in the net matrimonial pool and there was a contest concerning the liabilities and their inclusion in the matrimonial pool.
Dealing first with the BMW X5 motor vehicle, the husband's evidence was that this vehicle was a vehicle which was acquired by his parents and loaned to him by them, and was not his vehicle and, accordingly, should not be include in the pool. In an affidavit filed by the applicant's mother today, she swore, at paragraph 13, that she had purchased an X5 BMW motor vehicle, which was loaned to the respondent and that they subsequently took the vehicle back or repossessed the vehicle on separation. She swears that in no way was the vehicle every owned by the respondent and/or the applicant, her son. I have no reason to disbelieve that evidence. It follows, in my view, that the BMW is not a matrimonial asset that should be included in the matrimonial pool and, accordingly, it is removed from the calculations of the net estate.

The next matter in contest between the parties concerned the value of loans made by the applicant husband's parents to the parties. The first concerned a loan of about $140,000, which was made to the parties, or alleged to have been made to the parties in or about October 2001. The date, in my view, is significant when one has regard to the chronology in this case. At that time the parties had only been living together for a short time and had not married. It was not until approximately some eight to nine months later that the parties did marry, and in those circumstances it does strike me as somewhat odd in passing that the sum of $140,000 would simply have been gifted to the parties in a joint sense, having regard to their status at that time as students, and/or having just completed university studies and they not having been married, albeit that they may have been cohabiting.
In the affidavit material filed by the applicant's mother, she says, in respect of that loan, that a sum of $140,000 was transferred by her and her husband between 12 October 2001 and 24 October 2001 to enable her son and the respondent to purchase a unit at Surfers Paradise. She said that the unit was subsequently sold. The sum of $140,000 was not repaid as they had purchased another property. She says that she understood that the proceeds of the sale of the Surfers Paradise property were used to purchase a new property and to pay off debts, in particular credit card debts. Finally she says, at paragraph 19, that for the purpose of the proceedings she is happy for the Court to order any money to be returned to her son and she will arrange privately with him for the repayment of the $140,000 and other loans that were made by her to him. The clear inference from the affidavit by the applicant's mother is that the sum advanced was a loan and was not a gift and that there was an expectation that the money would be refunded. That is consistent with the affidavit filed by the applicant in the proceedings, saying that a sum of 140 was provided to him to assist in the purchase of the first property.
On balance, I am satisfied that the sum of $140,000 was an advance made by the applicant's mother to the applicant and the respondent to enable them to purchase their first property, but that it was never intended as a gift and that, accordingly, that sum was returnable or refundable upon, if not the sale of the first property, at some time which was to be later agreed between the parties. Although not the subject of express agreement at the time that the loan was advanced, it should be included as a liability of the matrimonial pool.
The second loan concerns a loan made by the applicant's parents in the sum of $28,000, which was a loan made in approximately early 2005 to assist with the acquisition of a video store. The sum was advance to allegedly purchase or to enable the purchase of a business, including its renovations and stock in trade.
Again, that matter is addressed in the affidavit material of the husband, who swears that the funds were advanced to fund the acquisition of the video shop and that his parents provided all funding for that venture.
In her affidavit, at paragraph 11, the applicant's mother swore that throughout the relationship her son had indicated to her, that being the mother, that the respondent wife wished to start a business. She says, and I quote, "We therefore agreed to fully fund the [R] business, and I provided to her the sum of $28,000 to start the business." In the next sentence she says, "The respondent did not advise us in any way that she was closing that business or selling any of the stock. We did not receive any funds from her on the sale of that stock."
Again, the clear inference is that there was an expectation that the funds would be repaid. In other words that the funds had only been advanced for the purpose of acquiring the business as seed capital to enable that acquisition to be undertaken, but that the sum of $28,000 was not provided by way of gift, but rather an advance which was expected to be repaid.
In the circumstances, I am satisfied, on the balance of probabilities, that the $25,000 is also a liability to be included in the matrimonial property pool.
Having regard to those matters, it seems to me that the assets of the property pool totalled $69,020 and the liabilities $168,020. In other words there was about $100,000 deficit of assets over liabilities. The matrimonial pool was clearly, in a technical sense, insolvent.
Notwithstanding that matter I am still required, I think, for the purposes of completeness, to consider an appropriate apportionment, if I can describe it as that, of the pool between the parties, having regard to the s.79 considerations.
Before doing so I should just make an observation in passing that, consistent with the principles summarised by Everett CJ in Prince v Prince (1984) FLC 91-501 at 79076, when considering the overall value of the pool, the Court can make allowance for a particular liability if it is appropriate to do so. For reasons that I have earlier noted, particularly having regard to the time at which the various advances were made, the length of the relationship and the nature of the advances, in other words the purpose for which the advances were made, it is appropriate to have regard to those advances in a discrete manner.
Going then to s.79, I am required to consider first and foremost the financial contributions made by each party, either directly or indirectly. In this case there was a limited financial contribution made by each party at the outset. During the course of the marriage there was, perhaps, a greater direct financial contribution made by the husband, who undertook full-time employment for a significant part of that time, with the Australian Army. There was also some direct financial contribution by the wife, who undertook employment in various capacities, including that of waitress and as a real estate sales person.
The direct contribution made by each of those parties, in part, was directed to the acquisition, conservation and improvement of a number of properties, the first being a property at Surfers Paradise, which was acquired, improved, turned over for profit and, in turn, invested into a subsequent property, which was acquired, improved, subsequently turned over, but unfortunately at a loss when one has regard to the initial purchase price.
There was, perhaps, a slightly greater direct financial contribution made by the applicant to the acquisition, conservation and improvement of those properties, but I think, overall, there was an equal indirect contribution by those parties to that matter.
The next question is of contribution of a direct or indirect nature in relation to other than financial contributions to the conservation or improvement of any property. In that regard I take particular cognisance of the fact that the respondent wife was, for a good period of time through the course of the marriage, the homemaker, and in that regard was involved principally in the maintenance of the property and by that I mean she, as a housekeeper, would have kept the property in good and reasonable repair, such that the parties could have enjoyed preservation of the value of the asset. There is probably less likelihood of there having been a greater indirect contribution by the husband through that period and by reason of those matters, particularly because he was in full-time employment.
In terms of contributions made by the parties to the welfare of the family constituted by the parties, particularly in their capacity as homemaker or parent, it is quite clear that overall the contribution made by the wife was probably greater than that of the husband, having regard to her involvement as the principal caring parent, particularly having regard to the husband's observations and his statements that, as a member of the Australian Army, he no doubt will have been deployed on numerous occasions on various exercises and other taskings consistent with his employment in that regard. No doubt on those occasions, the more significant burden of administering, particularly Property M which, at that time, would have been subject to a rental arrangement, fell upon the wife and, in addition to that, her responsibilities as homemaker or parent would have been immeasurably larger than that of the husband and, overall, that matter weighs in favour of the wife.
In terms of s.75(2) factors, I take into account the relative respective ages of the husband and wife, which I have earlier noted; the fact that both are in good health; there is no impediment for the prospects of employment by both parties in the future; they are both tertiary educated; and, to my mind, have equal capacity for employment. The wife has the ongoing care of the child, [A]; however that should not and, in more recent times, does not appear or should not have limited unduly her employment capacity, although I note in the last 12 months she says she has been unemployed but as at the hearing date she has since secured employment.
I note that since separation there has been more than adequate provision for care for her and [A] from the proceeds of sale of property on a matter I will touch upon in a moment, that I should have touched upon earlier, in relation to add-backs, and that there has been a payment of most allowances, although there was some debate about child support for a period of time during which the wife had removed herself, or at least her known whereabouts, from the husband, which made it difficult for him to deal with or to make appropriate arrangements in relation to the child.
I take into account the general eligibility of the wife for allowances provided by the Commonwealth, together with the general issues of contribution to the income earning capacity, property and financial resources of the applicant, which, in this case, are in a negative sense, having regard to the manner in which the wife has prematurely drawn upon the value of the estate by reason of the premature dispositions which are allowed for by way of add-backs.
Just before I finally deal with all of these issues, I should just make two observations in passing. First in relation to add-backs it was submitted that there has been post-separation expenditure by the wife from proceeds of the sale. I should explain that, on a strict accounting analysis of the circumstances of the parties, it would appear that as at about March 2006 Property M was sold, leaving a sum of approximately $300,000 available following the sale. $160,000 odd was applied to the discharge of the mortgage on the property. Various other sums were applied otherwise, to the discharge of debts, including the payout of the lease on a BMW motor vehicle, but all up it appears the entire $300,000 has been exhausted by the wife. It would seem that she had $100,000 available to her on settlement, which was paid to her by way of five cheques, each of $20,000 in value, meaning that there was about $40,000 applied to other matters which have not been accounted for.
It was submitted, in that regard, by the applicant, that the respondent had dissipated the proceeds of the sale in part by at least seven items, there being:
a)a sum of $3268 which was the balance of the deposit, which remained unaccounted for;
b)an unaccounted amount of $4331, which is the difference between proceeds received by the respondent from the sale of the property and her estimated expenditure;
c)a sum of $20,000 paid by the respondent for her Citibank Visa Card;
d)an amount of $2730.96 for childcare expenses;
e)an amount of $1000 for a gold watch and cufflinks;
f)an amount of $5507 for clothing; and then
g)an unknown amount for debts of the business.
The sums above total $36,838.96, which broadly equates with the sum which I earlier noted was not accounted for following the sale, when one accepts that on a gross sale price of about $300,000 after discharge of a $160,000 mortgage and $100,000 made up of five $20,000 cheques, left about $40,000 unaccounted for.
It does not seem to me, having regard to the circumstances of the parties, that those funds can be said to have been reasonable, having regard to the overall state of the parties' circumstances, particularly when one has regard to an expense of $1000 for a gold watch and cufflinks, $5500 for clothing, and $20,000 for a Citibank Visa Card, the expense which had not been particularised. All expenditure was, I should say, made in the circumstances of what appeared to me to be fairly unsatisfactory explanation and very poor disclosure, albeit that there had been a failure by the applicant himself to pursue disclosure more vigorously, as one expects it ought to have been. But despite those matters it still seems to me that the expenditure was, overall, unreasonable, and accordingly I think it is appropriate that there be an add-back for that sum of $36,838.
The other matter I should comment which I meant to comment upon concerned contributions. I make the general observation that in addition to the earlier contributions, the husband did make a contribution toward the respondent's university fees.
Coming back then to the resolution of the matter, it seems to me that having regard to the s.79(4) factors, it seems to me that overall there was probably a slight weighting in favour of the husband, as I see it, and accordingly there would be, in my view, a 55 per cent contribution by the husband to a 45 per cent contribution by the wife. When one takes into account the need for future care, there is, in my view, a need to allow something approaching 10 per cent of the overall estate for the wife, to allow for her ongoing care for the child. All up it then seems to me that, having regard to those two matters, there would be a 45 per cent split in favour of the husband and a 55 per cent split in favour of the wife.
As to whether that split is just and equitable, it seems to me:
a)having regard to the nature of the initial contributions;
b)having regard to the length of the marriage;
c)having regard to the negative contributions made by the wife, particularly in relation to the assets of the marriage;
d)having regard to the wife having the child of the marriage and continuing to have the child of the marriage, which will no doubt be an ongoing obligation, having regard to the proposals made in respect of the child which will see the child live with the mother and really spend time with the father on limited occasions. In other words she will have the bulk of the responsibility for the child;
that overall a 45/55 split of the property is appropriate.
As I say, the split is someone artificial when one has regard to the fact that the estate is insolvent and the first call upon the assets of the matrimonial estate will be to discharge the debts of the estate, and that orders will be crafted in those terms. But, as I say, the orders are made for completeness.
Now, the orders so far as the children's matters are concerned are appropriate and I will make orders in those terms.
This is a case where I have proceeded to hear the application on an undefended basis because of a failure by the respondent to obey Court orders of a substantive kind made on two occasions in relation to the issue of injunctions. The effect of the disobedience of those orders was significant. It saw the dissipation of at least $70,000 of matrimonial property in favour of the wife and effectively has denied the applicant husband any remedy, in a real sense, in these proceedings. It seems to me that in those circumstances the husband, having been put to the expense of having to run to trial in order to have these matters finalised, has been unduly disadvantaged and should be afforded at least the benefit of a costs order.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Burnett FM

Associate: Beverley Schmidt

Date: 16 June 2008