MALLOYE & MALLOYE

In the Family Court of Australia, Stevenson J considered a property settlement and child support dispute between a husband and wife. The parties had been together for approximately five years and had two children. The husband had introduced assets of significantly greater value into the relationship than the wife. A key point of contention was a property registered in the husband's name, along with two others, which the husband claimed was held on trust for his mother. The wife, however, alleged the husband had a beneficial interest in this property, which the court ultimately treated as a financial resource.

The court was required to determine the division of the parties' assets, including the disputed property and their superannuation interests, and to consider the wife's application for a child support departure order. The property division involved a two-pool approach, with the non-superannuation assets initially assessed at 70 per cent to the husband and 30 per cent to the wife. The court also had to assess whether the factors under section 75(2) of the Family Law Act 1975 warranted an adjustment to this division. Regarding child support, the court needed to decide if the wife had discharged the onus of proof required to obtain a departure order, given contradictory evidence about her income.

Stevenson J applied the principles of property division under the Family Law Act 1975, including the consideration of financial resources and the application of section 75(2) factors. The court found that the circumstances warranted a 15 per cent adjustment in favour of the wife for the non-superannuation pool. The wife's application for a child support departure order was dismissed as she failed to adduce sufficient evidence to discharge the onus resting upon her.

Consequently, the wife's application for a child support departure order was dismissed. The net proceeds of sale of the G Street property were to be distributed with a specific sum paid to the husband and the balance to the wife. The wife was also ordered to indemnify the husband against all liabilities relating to the H Street property. Furthermore, a base amount of $100,430 was allocated to the wife from the husband's interest in Super Scheme 1, with a corresponding reduction in the husband's entitlement. Otherwise, each party was declared solely entitled to property in their possession or control.