KEILOR & ADAMS

[2009] FamCA 1268

FAMILY COURT OF AUSTRALIA

KEILOR & ADAMS [2009] FamCA 1268

FAMILY LAW – PROPERTY SETTLEMENT – de facto relationship – proceedings determined pursuant to the De Facto Relationships Act 1991 (NT) – determination of the asset pool – whether credit card debts should be included in calculating the net asset pool – contributions of the parties – domestic violence – where the husband’s violent behaviour made the wife’s contributions more difficult – 70%/30% division in favour of the wife appropriate

FAMILY LAW – PROPERTY SETTLEMENT – whether the proposed order is just and equitable – where the wife would be required to pay a sum to the husband – where the wife will be responsible for a significant amount of debt – where the wife would be required to borrow further to pay the husband – where the husband’s actions have damaged the wife’s credit rating and made it more difficult for her to borrow funds – outcome not just and equitable – 75%/25% distribution of the net pool in favour of the wife appropriate

De Facto Relationships Act 1991 (NT) ss 3A & 18

APPLICANT: MR KEILOR

RESPONDENT: MS ADAMS

FILE NUMBER: DNC 35 of 2007

DATE DELIVERED: 11 DECEMBER 2009

PLACE DELIVERED: ADELAIDE

PLACE HEARD: DARWIN

JUDGMENT OF: BURR J

HEARING DATE: 17  & 19 JUNE 2009, 23, 24, 25, 28 SEPTEMBER 2009, 4 & 5 NOVEMBER 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR DAVID STORY

SOLICITOR FOR THE APPLICANT: DAVID STORY SOLICITOR

COUNSEL FOR THE RESPONDENT: MS MARY ALLAN

SOLICITOR FOR THE RESPONDENT: MARY M ALLAN SOLICITOR

Orders

UPON NOTING the agreement of the parties that the two motor cycles are the property of the two children H born … December 1997 and J born … March 2001 and are to remain in the possession of the said children

1. That in full and final settlement of any claim that either party may have against the other by way of settlement of property or variation of settlement of property:-

   (a)the husband’s estate and interest (if any) both at law and in equity in the following be and the same are hereby vested in the wife:-

   (i)the property situated at L in the Northern Territory of Australia (“the L property”);

   (ii)the wife’s personal effects, clothing and jewellery;

   (iii)the furniture and household effects in the wife’s possession;

   (iv)the wife’s Hyundai motor vehicle;

   (v)the wife’s REST superannuation benefits and entitlements.

   (b)the wife’s estate and interest (if any) both at law and in equity in the following be and the same are hereby vested in the husband:-

   (i)the husband’s personal effects, clothing and jewellery (including the gold chain);

   (ii)the furniture and household effects in the husband’s possession;

   (iii)the proceeds of sale of the Toyota Landcruiser motor vehicle;

   (iv)the husband’s tools;

   (v)the husband’s drum kit and amplifier;

   (vi)the husband’s trailer;

   (vii)the husband’s dune buggy;

   (viii)the husband’s STA and MAA superannuation benefits and entitlements.

   (c)The wife do hereafter duly pay and discharge to the exoneration of the husband the following:-

   (i)all mortgage instalments, rates, taxes and other outgoings in relation to the L property;

   (ii)the GE Personal Finance Pty Ltd Credit liability;

   (iii)the Centrelink debt;

   (iv)the National Australia Bank credit card debt;

   (v)the Commonwealth Bank Mastercard credit card debt;

   (vi)the Coles / Myer credit card debt;

   (vii)the GE Credit card debt;

   (viii)the Go credit card debt;

   (ix)the Esanda personal loan

   to the exoneration of the husband and do indemnify the husband against any liability in relation to any such payments.

   (d)Henceforth each party shall discharge without calling upon the other to contribute thereto the debts and liabilities contracted by them and henceforth each party is restrained and an injunction is hereby granted restraining the parties and each of them from pledging the credit of the other.

   (e)Each party do all such acts and things and sign all such documents as are necessary to give effect to the terms of these Orders (including if necessary the Withdrawal of Caveat number … by the husband at the husband’s expense in all respects registered on the title to the L property) PROVIDED THAT if the parties or either of them shall refuse or neglect to execute any documentation pursuant to the terms of these Orders within seven [7] days after the same shall have been tendered to him or her by or on behalf of the other party for that purpose then and in such case a Registrar of the Family Court of Australia upon proof by affidavit of such refusal or neglect is hereby appointed to execute and if in his or her opinion it shall be necessary so to do to settle the same and to do all such other acts and things and to execute such other documents as shall be necessary to give full force and effect thereto and shall execute and do the same accordingly.

2. That all applications be otherwise removed from the pending list.

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

FAMILY COURT OF AUSTRALIA AT DARWIN

FILE NUMBER: DNC 35  of 2007

MR KEILOR

Applicant

And

MS ADAMS

Respondent

REASONS FOR JUDGMENT

The applications

1. Issues in dispute between the parties were originally both as to their two children and property matters.

2. Their children are H born in December 1997 and J born in March 2001.  Thus H is aged almost 12 years and J is aged 8 ½ years.  To their credit, the parties were able to resolve all parenting issues and on 17 June 2009 I made final Orders by consent.  The parties agreed to equally share parental responsibility for the children and for the children to live one week in every two, with each parent. 

3. Thus the issue remaining for my determination is the property dispute between them.  The parties were not married and thus the determination I must make is pursuant to the Northern Territory De Facto Relationships Act 1991.

Background

1. For ease of reference the parties, for the purposes of these proceedings, adopted the descriptions of “husband” and “wife”.

2. The wife is almost 47 years of age having been born in 1963.  The husband was born in 1966 and hence is 43 years of age.

3. The parties commenced their cohabitation in November or December of 1995 and separated some 12 ½ years later in May 2008.

4. In October 1995, prior to the commencement of the cohabitation between the parties, the wife’s former husband transferred all of his right, title and interest in the property at L in the Northern Territory, to the wife.  They had owned it jointly since about 1992.  It was agreed between the parties to these proceedings that the transfer was effected in order to avoid the possibility of the wife’s former husband being subject to an insurance or criminal injuries compensation claim from a third party.

5. In or about March or April of 1996, the wife and her former husband reached agreement on property matters.  The wife assumed responsibility for the existing mortgage on the property and borrowed further funds in order to pay an agreed settlement amount of $30,000 to her former husband.

6. At the commencement of their relationship the parties jointly purchased a caravan and lived in it at a Caravan Park.  Later they moved into the L property.

7. Both parties were employed at the commencement of their cohabitation, the husband as a painter and the wife was employed at a supermarket.

8. In December 1997 the parties’ first son H was born.  The wife returned to work but after J was born in March 2001 the wife ceased her employment for about 18 months due to a work related injury.  Thereafter she pursued altered employment conditions and received compensation payments and reduced wages.  The husband continued to work as a painter throughout their relationship until separation.

9. The former matrimonial home property provided very basic accommodation when first occupied by the parties after the wife purchased her former husband’s interest therein.  It required substantial renovation and improvement.  A significant area of dispute between the parties during the trial of these proceedings was as to the contribution made by each of them to the improvement, renovation and maintenance of the former matrimonial home property and surrounding land.

10. A further area of substantial dispute between the parties was as to the borrowings undertaken by them during their relationship.  The parties still carry significant debt.  During the course of their relationship they undertook a number of consolidation and refinancing loans from GE Money and other sources.  It was the wife’s contention that those borrowings were not just to effect repairs and renovations to the former matrimonial home property, but also to meet the husband’s unreasonable and selfish personal needs in terms of his hobbies and interests.

11. In approximately 2002 the wife received a lump sum worker’s compensation payment of $78,000 from which Centrelink recovered some funds and further from which the wife made a contribution to an account for the children’s education.

12. Subsequent to receipt of the worker’s compensation payment the wife continued to receive Centrelink payments.  Whilst the wife declined to acknowledge that she had been guilty of any social security fraud, she acknowledged that she had reached agreement with Centrelink to repay to them an amount of $27,000.  She acknowledged that it is Centrelink’s view that that figure represents an over payment made to her over time.  She said she was trying to negotiate a lesser figure with them.

13. The parties were  further unable to agree as to who made the greater contribution as homemaker and parent and as to the extent of and blame for any domestic violence.

The evidence

1. Each of the parties gave evidence in support of their respective applications.  Neither called evidence from any other person.

2. The evidence of both parties was unsatisfactory in a number of respects and I am not able to make a general finding as to preferring the evidence of one over the other.  Where issues of credit become relevant, I have identified that to be an issue when dealing with the specific topic or area.

The law

1. As I said earlier, the relevant piece of legislation is the Northern Territory De Facto Relationships Act 1991. The provisions of the Act apply to de facto relationships as defined in Section 3A of the Act. The parties agree, and I am satisfied from the evidence before me, that they were at all relevant times engaged in and committed to a de facto relationship as defined.

2. Section 18 of the Act sets out the matters relevant for my consideration in determining the property dispute between the parties.  It is expressed in the following terms:-

   “18(1) [Relevant contributions]  The order which a court may make under this Division with respect to the property of de facto partners or either of them is such order adjusting the interests of the partners in the property as the court considers just and equitable having regard to –

   (a)    the financial and non-financial contributions made directly or indirectly by or on behalf of the partners to the acquisition, conservation or improvement of any of the property or to the financial resources of the partners or either of them; and

   (b)    the contributions (including any made in the capacity of homemaker or parent) made by either of the partners to the welfare of the other partner, or to the welfare of the family constituted by the partners and one or more of the following:

   (i)a child of the partners;

   (ii)a child accepted by the partners or either of them into the household of the partners, whether or not the child is a child of either of the partners; or

   (iii)any person dependent on the partners who has been accepted by the partners or either of them into the household of the partners

   18(2)  [Declaration of title or rights]  A court may make an order in respect of property whether or not it has declared the title or rights of a de facto partner in respect of the property.

Assets and liabilities

1. It is first necessary for me to identify the relevant net asset pool for distribution between the parties.  The parties were able to agree upon the identity and value of a significant number of their assets, as follows:-

   21.1.Former matrimonial home property at L                $395,000.00

   21.2.Wife’s Hyundai motor vehicle  $12,000.00

   21.3.Proceeds of sale of a Toyota Landcruiser

   received by the husband  $19,424.00

   21.4.Husband’s gold chain  $1,000.00

   21.5.Total   $427,424.00

2. The parties were further able to agree the value of two motor cycles at $2,300, but acknowledged that those two motor cycles were the property of and were to remain in the possession of the two children.

3. Those matters in respect of which they were not able to agree value, and which oblige me to make findings, are as set out hereunder.  Doing the best I can on the evidence that was led before me, I am satisfied that the relevant values of those items are as follows:-

   23.1.Former matrimonial home contents

   in the wife’s possession  $2,000.00

   23.2.Husband’s tools  $700.00

   23.3.Husband’s drum kit and amplifier (as

   demonstrated in Exhibit 10)  $900.00

   23.4.Husband’s trailer  $800.00

   23.5.Wife’s jewellery collection  $2,500.00

   23.6.Husband’s dune buggy  $300.00

   23.7.Total   $7,200.00

Superannuation

1. The parties were further able to agree as to the existence of and value of their respective superannuation entitlements as follows:-

   24.1.Husband’s STA superannuation  $3,606.00

   24.2.Husband’s MAA superannuation  $35,170.00

   24.3.Wife’s REST superannuation  $31,064.00

   24.4.Total superannuation  $69,840.00

2. At the hearing before me on 19 June 2009, the parties indicated that neither was seeking a splitting order in relation to the superannuation.

3. Thus the gross total of assets and superannuation is $504,464.00.

Liabilities

1. The parties were able to agree upon the extent of a number of liabilities but were in disagreement as to how I should treat those liabilities in my calculation of their respective entitlements.  The figures agreed were as follows:-

   27.1.Australian Central Credit Union mortgage

   on the former matrimonial home premises                 $98,000.00

   27.2.GE Personal Finance Pty Ltd Credit liability              $88,000.00

   27.3.Centrelink debt  $27,000.00

   27.4.Total  $213,000.00

2. The parties were further in dispute as to both the extent of the wife’s credit card indebtedness and the manner in which it should be treated.  The wife owes money on five credit cards held by her with GE Money, Go (another GE credit card), National Australia Bank, Commonwealth Bank and Coles/Myer.  It is the wife’s contention that the relevant liabilities to be taken into account by me as a joint liability of the parties in respect of those credit cards are as follows:-

   28.1.National Australia Bank credit card  $11,060.00

   28.2.Commonwealth Bank Mastercard  $9,267.00

   28.3.Coles / Myer credit card  $4,073.00

   28.4.GE Credit card  $3,796.00

   28.5.Go credit card  $3,673.00

   28.6.Total  $31,869.00

3. In addition the wife asks that an Esanda personal loan be taken into account in the sum of $9,800.00, thus making the total of the liabilities $254,669.00.

Findings in respect of disputed debt

1. Counsel for the husband had no issue with the mortgage and GE debts being treated as a joint liability and eventually conceded that the Centrelink debt could be treated in the same fashion.

2. Counsel for the husband also contended that the relevant figure for the wife’s credit card debts was the total that existed nearer separation and as disclosed in her Financial Statement filed 4 June 2008.  The total indicated therein was $25,500.00, some $6,370.00 less than now.

3. However, I am satisfied from the wife’s evidence that the increase in credit card debt is as a consequence of legitimate expenditure on clothing and school clothing for the children, the children’s school fees, new clothes (although purchased second hand) for herself to replace those ruined by the husband, maintenance of the former matrimonial home property and proper living costs.  It is appropriate, in my view, to take account of the current credit card liabilities in calculating the net asset pool.

Net asset pool

1. The net asset pool for distribution between the parties therefore amounts to $249,795.00.

Contributions

1. The parties agreed at the outset that a global assessment of their respective contributions was appropriate.

2. The wife made a significant financial contribution at the outset of the parties’ relationship which ought to be recognised in calculating the parties respective entitlements.  She owned the former matrimonial home property at L although the payment made to her former husband to settle any of his property claims, was not made until some months after the parties had commenced cohabiting.  I am satisfied that:-

   35.1.at the time that the wife’s former husband transferred his estate and interest in the L property to the wife, it had a value of between $135,000 and $140,000 (Exhibit 16);

   35.2.at the time of that transfer the amount owed by the wife and her former husband to the Australian Central Credit Union was an amount of $44,535 (Exhibit 13);

   35.3.some months later the wife borrowed a further sum of $30,000 to pay to her former husband making the total debt due then to Australian Central Credit Union an amount of $80,114 (Exhibit 14);

   35.4.the equity in the property, and hence the contribution made by the wife at that time, was therefore in the order of $55,000.

3. Further significant financial contributions were made by the wife during the course of the parties’ relationship.  For the majority of the relationship she worked and earned wages.  For a period of some 18 months when she was unable to work due to her work related injury, she received worker’s compensation payments.  Ultimately in about 2004 she received a lump sum worker’s compensation payment of $78,000.  Centrelink recovered about $24,000.00 from that amount and from the balance the wife contributed $10,000 to an account for the children’s education. I am otherwise satisfied that she contributed the balance of that sum to the joint finances of the parties and to the general benefit of the family.

4. Although the evidence is not clear as to the timing, I am also satisfied that the wife contributed $14,000.00 from the sale of shares to the benefit of the family.

5. I am further satisfied that the husband remained in employment throughout the relationship and earned a good income as a painter in various businesses.  I am not though satisfied that he contributed all of those funds to the general benefit of the family.  I am satisfied that he expended significant amounts on motor cycles, go-karts, dune buggies and general hobbies and leisure activities.  I am satisfied that he did so in the face of quite clear opposition at times by the wife.  I am further satisfied that large components of the indebtedness incurred by the parties and which is still owed by the wife, was as a consequence of the husband’s use of those moneys for his own personal pursuits and pleasure rather than seeking to reduce the ever increasing indebtedness being experienced by the parties.

6. Originally the husband asked that I hold the wife solely responsible for the Centrelink indebtedness of $27,000.  He argued that it was her fraudulent conduct that resulted in that debt being accrued.  However, I am satisfied that he was aware, certainly in the latter stages, that the wife was improperly claiming amounts from Centrelink to which she was not entitled and further that he enjoyed the benefits of those Centrelink payments in being a willing recipient of the finances which flowed to the family from that source.  I am satisfied it should be their joint responsibility to bear.  That was a position ultimately conceded by Counsel for the husband during final addresses.

1. The husband maintains that he undertook significant work on the former matrimonial home property.  Despite working in full time employment five days per week, I accept that he worked hard around the property both after work and on weekends.  The wife was reluctant to concede that he made a significant contribution in that regard.  However I am left in no doubt that he did so.  At the point of occupation by the parties, the former matrimonial home property afforded only the most basic of accommodation.  It was essentially a storage shed with no plumbing, no insulation, no floor coverings and few internal walls.  The activities and renovations undertaken by the husband included as a minimum:-

   40.1.substantial external and internal plumbing, including securing running water to the house, installing drainage, a shower and a toilet;

   40.2.rectifying damage to the property inflicted by the wife’s former husband;

   40.3.installing insulation;

   40.4.erecting internal walls and generally gyprocking and lining the property;

   40.5.installing air conditioning;

   40.6.erecting a water tank, digging trenches, laying piping and installing a hot water service;

   40.7.establishing gardens and lawns;

   40.8.painting;

   40.9.concreting;

   40.10.establishing irrigation and reticulation systems;

   40.11.preparing an area for a swimming pool and associated landscaping, plumbing and fencing;

   40.12.converting the front verandah to another room;

   40.13.converting a back verandah to a bedroom for the two boys;

   40.14.mowing, slashing and gardening.

2. Equally the husband was reluctant to concede that the wife undertook the majority of the homemaker and parent contributions.  He argued that it was a joint exercise.  I do not accept his evidence in that regard.  I am satisfied that he left those tasks largely to the wife.  I am satisfied that, given my finding that he did significant work around the property in improving and maintaining it, he simply could not have had, and did not have, the time to also contribute significantly in the homemaker and parent role.  I acknowledge that he participated in mutually enjoyable activities on the weekends with his two sons and at times with the wife, but I am further satisfied that most of the responsibilities of parenthood and in attending to the various housekeeping and homemaking needs, fell to the wife.  Since June 2008 parenting duties have been shared, confirmed now by consent Orders made by me on 17 June 2009.

3. I am satisfied too that the wife’s post separation contributions have been greater than those of the husband, especially in relation to the GE loans secured by the parties at various times to refinance and consolidate debt.

4. The husband, in evidence, admitted that:-

   43.1.he agreed to meet the repayments on the GE loan whilst the wife attended to the mortgage and other debts;

   43.2.prior to 2008, he met all payments;

   43.3.in 2008, he paid only 7 of the 18 instalments required by GE;

   43.4.he made no payments at all after 16 May 2008 which coincided with the time of separation;

   43.5.he did not tell the wife that he had stopped the payments;

   43.6.as a consequence a large amount of arrears accrued;

   43.7.GE took Court action against both to secure repayment;

   43.8.the wife discharged all the arrears.  It was the wife’s evidence, which I accept, that she borrowed $20,000.00 from a friend (which amount is still owing) and paid $1,200.00 per month to GE to bring payments up to date;

   43.9.his actions in that regard were unfair.

5. I am further satisfied that subsequent to separation the husband attended at the former matrimonial home without notice to the wife and in her absence and removed a significant quantity of household furniture, effects and appliances.  He also deliberately effected damage to a lot of her clothing.

Domestic violence

1. The parties are well known to police in Darwin.  The toxic nature of their relationship required the police to attend at the former matrimonial home property on many occasions to deal with domestic disputes and defuse volatile situations.  The parties agree that there were at least 28 occasions on which the police were required to attend at their property.  Many of the police incident reports relating to those incidents and events are Exhibits before the Court (Exhibits 18 – 26 inclusive).

2. What those police incident reports reveal is that there were a number of very confronting and violent episodes which occurred between the parties.  They also revealed that the wife was intoxicated on a number of occasions that the police were required to call.  She acknowledged that she was drunk on a number of those occasions but quibbled over a description of her as having been “intoxicated”.  It was her view that to qualify for the description of “intoxicated” she would have needed to have been unable to stand up or function in a normal way.  She acknowledged that almost all of the disputes between the parties were “alcohol fuelled”.

3. Nonetheless I was satisfied on the evidence that the husband was guilty of significant manipulation and intimidation of the wife and of threatening and abusive behaviour towards her.  He frequently locked her from the premises.  I am satisfied that he manufactured a number of situations that resulted in the wife being unfairly treated at the hands of the police in that he made the telephone calls to the police requiring their response at times when the wife was intoxicated and likely to respond irresponsibly towards the police.

4. I am further satisfied that on a number of occasions the husband was guilty of assaulting the wife, causing her injury and pain and requiring her to be hospitalised.  Each secured domestic violence orders against the other.

5. The husband’s violence made the wife’s tasks of contributing to the benefit of the family both financially and in her homemaker and parenting role, that much more difficult.

Summary

1. As identified by me earlier, the net asset pool for distribution between the parties totals $249,795.00.  It was the contention of Counsel for the wife that the wife’s contributions ought to be recognised by her receiving 80% of the net pool, namely a figure of $199,836.00.  By the conclusion of his final address, Counsel for the husband conceded that the wife was entitled to a greater share of the net pool than the husband but capped at 65% which is $162,367.00.  Thus 20% and 35% to the husband would be represented respectively by the figures of $49,959.00 and $87,428.00.

2. In preliminary remarks I addressed to Counsel at the conclusion of evidence but prior to final addresses, I indicated that I felt that a 70 / 30 division in favour of the wife might be appropriate.  That would be represented respectively by figures of $174,857.00 and $74,939.00 to the wife and the husband.

3. I am satisfied that such a loading in favour of the wife appropriately recognises the respective contributions of the parties but the greater contribution of the wife in:-

   52.1.making a significantly greater financial contribution at the outset by provision of the former matrimonial home property with an equity in the region of $55,000.00;

   52.2.paying the worker’s compensation balance and share sale proceeds into family coffers;

   52.3.meeting household needs and debt despite the husband using significant portions of his income for personal leisure activities;

   52.4.undertaking the predominant homemaker and parenting role prior to separation;

   52.5.terms of meeting all of the parties’ indebtedness post separation, especially in light of the husband’s abrogation of his agreed responsibility to meet the GE loan payments;

   52.6.making her contributions in the face of and despite the husband’s violence towards her.

Just and equitable

1. Any Order I make pursuant to Section 18(1) of the Northern Territory De Facto Relationships Act 1991 must be considered by me to be just and equitable.

2. The husband has in his possession or control:-

   54.1.Toyota Landcruiser proceeds  $19,424.00

   54.2.Gold chain  $1,000.00

   54.3.Tools  $700.00

   54.4.Drum kit and amplifier  $900.00

   54.5.Trailer  $800.00

   54.6.Buggy  $300.00

   54.7.STA superannuation  $3,606.00

   54.8.MAA superannuation  $35,170.00

   54.9.Total  $61,900.00

   That figure represents 25% of the net asset and superannuation pool.

3. By contrast, the wife would have or control:-

   55.1.Former matrimonial home  $395,000.00

   55.2.Hyundai motor vehicle  $12,000.00

   55.3.Household contents  $2,000.00

   55.4.Jewellery  $2,500.00

   55.5.REST superannuation  $31,064.00

   55.6.Gross total  $442,564.00

   The wife however bears responsibility for the totality of the debt load of $254,669.00, leaving her with net assets and superannuation totalling $187,895.00 which represents 75% of the net pool.

4. An adjustment on a 70 / 30 basis in favour of the wife would thus require her to pay to the husband approximately $13,000.00.

5. The wife would need to borrow that sum.  She already carries an enormous debt load of $254,669.00.  That sum does not include the $20,000 she more recently borrowed from family to ward off legal action by GE.  She wishes to keep the former matrimonial home which she has owned in part or solely since 1992.  The children live with her there for 50% of the time.  Any additional borrowings would place enormous strain on her limited resources.  She earns a modest income as a carer and has had to borrow from family to meet the parties’ financial commitments.  She has done so to date, not only without any assistance from the husband, but in the face of a deliberate and deceitful abrogation of his acknowledged and agreed responsibility for the GE loan.  His actions, or inaction, without notice to the wife resulted in her facing stressful legal proceedings taken by GE, significant arrears and extreme action to appease GE.  He further damaged her credit rating and has made it more difficult for her to borrow further funds.  By contrast the husband has the capacity to earn significantly more than he does.  He acknowledged in evidence that he is not working anywhere near full capacity and would have no difficulty in doing so.

6. Obliging the wife to borrow a further $13,000.00 to pay to the husband would not, in my view, represent a just and equitable outcome.  Further to that, the borrowings of the parties in the past were based on their joint incomes.  Any borrowings that she now needs to pursue would necessarily be based upon her modest income alone.  Thus her borrowing capacity is severely curtailed.

7. I therefore consider an appropriate settlement between the parties to be represented by a 75 / 25 distribution of the net pool in favour of the wife.  That would result in each party retaining what they have and the wife bearing responsibility for all the debts, a situation to which she is well accustomed.

8. The wife indicated that she was negotiating with Centrelink to seek to reduce her indebtedness to them presently fixed at $27,000. There was some discussion with Counsel at the end as to whether it was appropriate for the husband to gain a percentage benefit from any reduction negotiated by the wife.  However, given all the matters considered by me above in satisfying myself as to the just and equitable nature of the outcome and particularly the debt owed by the wife of $20,000 to family, which debt was not factored in by the parties to the total of the liabilities estimated above, I deem it inappropriate to make any provision for the husband in that regard.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr.

Associate: 

Date:  11 December 2009