NT and SM - [2006] FMCAfam 303

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NT & SM

[2006] FMCAfam 303

FAMILY LAW – Property – application to bring property application out of time – application for summary dismissal declined – leave granted – where parties reside in different states – father seeks order that mother contributes to his costs of contact – father to carry costs of exercising contact.

Family Law Act 1975, ss.44, 79

Whitford v. Whitford (1979) FLC 90-612
Jacenko (1986) FLC 91-776
Kercher (1981) 7 FLR 216
Althaus (1982) FLC 91-233
Bigg and Suzy (1998) FLC 92-799
Lindon v The Commonwealth (No. 2) (1996) 70 ALJR 541
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Dyson v Attorney-General [1911] 1 KB 410 at 418
Munnings v Australian Government Solicitor (1994) 68 ALJR 196
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Coe v The Commonwealth (1979) 53 ALJR 403
Wickstead v Browne (1992) 30 NSWLR at 5
Church of Scientology v Woodward (1980) 154 CLR 25
Northern Land Council v The Commonwealth (1986) 161 CLR 1
Healey v Chapman [2001] FamCa 1554 (unreported)
Beck and Beck (2004) FLC 93-181
Pelerman and Pelerman (2000) FLC 93-037

Applicant:

Respondent:

File Number:

PAM640 of 2003

Judgment of:

Ryan FM

Hearing dates:

2 and 16 June 2006

Delivered at:

Parramatta

Delivered on:

26 July 2006

REPRESENTATION

Counsel for the Applicant:

Mr G. Gould

Solicitors for the Applicant:

Grech Partners

Counsel for the Respondent:

Mr M. Wong

Solicitors for the Respondent:

Wilson Lawyers

ORDERS

Pursuant to s.44(3) the applicant husband has leave to commence s.79 proceedings for the adjustment of property upon condition that any such application is filed within eight (8) weeks from today.
The applicant husband’s application for orders that the respondent mother pays one half of the travel costs for contact is refused.
Any costs application is to be made orally on 20 July 2006 when reasons for the above orders will be published.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM640 of 2003

Applicant

And

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by SM (“the husband”) for leave to bring a property application out of time and orders that the wife pays half his travel expenses incurred exercising contact to the parties’ son, Sammy (not his real name). NT (“the wife”) opposes both applications. Without being ordered to do so, the wife agrees to give the husband a selection of personalty he asks for in his property application. In particular the wife agrees the husband may have the kilim, tent, doona and provided she can locate it, his Mont Blanc pen set. The wife says the husband already has the framed picture referred to in his application. Concerning costs of contact, the wife says that once or twice annually she will take Sammy to Queensland for contact. Neither party suggested that in order for this to occur it is necessary that orders are made.
The hearing concluded on 16 June 2006. As I was away from the registry Federal Magistrate Henderson handed down the orders identified at the start of these reasons for me on 30 June 2006. These are the reasons for those orders.

Operative orders

On 6 February 2006 the parties reached agreement concerning most parenting issues. In summary, the orders provide that Sammy, born in 2000 will continue to live with his mother and exercise regular contact with his father. Concerning contact Sammy will have contact with his father:
·Every third weekend during school term from 6.30 pm Friday until 5 pm Sunday (or Monday on a long weekend).
·For Father’s Day from 6.30 pm Friday until 5.00 pm Sunday.
·The second half of each Christmas school holidays.
·From 4 pm Christmas Eve until 4 pm Christmas Day in each alternate year.
·For one half of the remaining school holidays upon the father notifying the mother he wishes to exercise this contact.
Having made these final orders, Federal Magistrate Henderson listed the outstanding applications for final hearing on 2 June 2006. There were three outstanding issues: Namely, the husband’s s.44(3) application; his costs of travel for contact application; and an issue concerning the child’s passport and conditions for overseas travel. When the matter was called on for hearing, the parties advised that agreement had been reached concerning travel. By consent, on 2 June 2006 the court made the following orders[1]:
[1] Exhibit A
1. The mother be custodian of the child’s passport and release the child’s passport to the father upon his providing her with a minimum twenty-one (21) days written notice of:
a) the father’s intention to travel overseas with the child Sammy born in 2000;
b) details of the time and place of departure from Australia, and the time and place of return to Australia;
c) copies of travel documentation/return tickets evidencing when the child will be returning to Australia;
d) a brief itinerary showing where the child will be travelling;
e) contact telephone numbers and addresses for the child when overseas;
2. That if the child is to travel overseas without the father (such as on holiday with the mother, or on a school excursion) the mother give the father a minimum twenty-one (21) days written notice of:
a) the child’s intended travel overseas;
b) details of the time and place of departure from Australia, and the time and place of return to Australia;
c) copies of travel documentation/return tickets and evidence of when the child will be returned to Australia;
d) a brief itinerary showing where the child will be travelling;
e) contact telephone numbers and addresses for the child overseas.
3. That the child not remain overseas for a period exceeding three weeks unless with the prior consent of the father, and the child’s overseas travel not occur during the father’s contact periods, unless with his prior written consent.
4. That if the father agrees to the child going overseas then the child would otherwise be on contact with the father, the father will have compensatory contact on such non-school days as he elects upon his giving the mother one week’s notice.
Both parties were born in Iran. At a future time, the husband envisages he may wish to travel to Iran with Sammy. The parties agree decisions concerning travel to Iran need to be taken with regard to the situation at the time. Whether or not Sammy may travel to Iran is a decision the parties will jointly explore if and when the possibility arises. Thus, the orders referred to above do not apply to travel to Iran. In addition to the orders identified in exhibit A, the parties agreed to the following preamble to the orders “Save, in respect to trips to Iran”.

Background facts

The husband was born in Iran in 1958.
The wife was born in Iran in 1964.
The parties share the Baha’i faith. So as to avoid persecution, the husband’s parents sent him to live in Italy. The husband lived and worked in Italy from 1979 until 1996.
In February 1984 the wife arrived in Australia on a refugee visa. In 1987 the wife married GA. There are no children of this marriage. The wife divorced her first husband in approximately 1990.
The parties married in June 1996 at Parramatta. The husband is a medical practitioner. Because he was unable to obtain registration to practice in Australia, after the parties married, they returned to Italy where the husband continued to work as a medical practitioner. They left for Italy in December 1996 and resided in a unit in Umbria until the wife returned to Australia in March 1997. A pattern of coming and going between Australia and Italy continued until the husband was given permission to practice medicine in Australia. Basically while in Italy the husband worked and supported the wife. Until he was able to work in Australia, while in Australia the wife worked and supported the husband. It is the wife’s case that each time she returned to Australia the parties were separated. The husband denies this assertion and says this situation arose solely because of his employment difficulties. He emphasises the number of journeys made between the two countries, the wife’s continual sponsorship of his application for spouse migration and that relatively late in the period the parties had a child together. This issue received some attention during the hearing but insufficient to persuade me the wife’s version should be preferred. On balance I prefer the husband’s account of cohabitation and continuation of the marital relationship.
The wife returned to Umbria on 27 July 1997 and the parties resided together until February 1998 when the wife again returned to Australia. The husband arrived in Australia in March 1998 and in about May 1998 the parties again returned to Italy.
In June 1998 the husband applied for Australian citizenship and in September 1998 the parties again returned to Australia. At this point both parties were studying, the husband taking a bridging course for foreign doctors and the wife dental hygiene. Once again the husband returned to Italy while the wife remained in Australia.
In May 1999 the wife commenced full time employment as a dental hygienist. Not long afterwards the wife purchased a home and land package at Clayfield in Queensland. The wife paid $165,000 which she borrowed from the National Bank. It appears she entered into an informal arrangement with her brother in law for work he agreed to perform at Clayfield. Neither party obtained a valuation of Clayfield. For the purposes of this leave hearing the husband adopted the wife’s assertion in her financial statement that Clayfield is worth $360,000. Basically this means that with only the wife’s brother in laws efforts Clayfield has increased by about $200,000 in seven years. It seems likely that a considerable portion of its increased value is attributable to upwards movement in the Brisbane property market. If so, there appears an argument that this is a windfall from which both parties should benefit.
Upon completion of Clayfield’s purchase the wife had an interest in three pieces of real estate. In 1993/94 the wife and her brother PT purchased an investment unit at Northmead in equal shares. In about 1995, the wife and her brother purchased a property at Castle Hill on behalf of their parents who had recently arrived from Iran. The wife’s parents lived in this property until its sale in November 2005. The husband does not challenge the wife’s claim that he made no contribution to these properties or that her contribution to them is at best, minimal. In spite of the wife’s assertion that she believes the husband owns an apartment in Italy she produced no independent evidence which challenges his denial. The wife failed to persuade me that the husband owns or owned property in Italy. The effect of this is that when Clayfield was purchased the husband did not own any property.
The husband returned to Australia in September 1999 at about which time the parties moved into Clayfield. The husband was still unable to practice in Australia and studied while the wife worked. In early 2000 the husband returned to Italy for a few weeks during which time he sold his car. He returned to Australia a few months prior to Sammy’s birth in June 2000 and returned to Italy on 28 June 2000. The wife and Sammy joined him a few months later. They remained in Italy for two and a half months. The wife resumed full time employment in Australia in October 2000.
In November/December 2000 the husband returned to Australia, resuming cohabitation with the wife at Clayfield.
The husband resided in Italy between July 2001 and October 2001. Upon his return the husband initially resided in rented accommodation in Brisbane. After only a few weeks the parties resumed cohabitation at Clayfield.
In November 2001 the husband obtained Australian citizenship.
In December 2001 the wife became unemployed. The parties decided Sydney offered better financial prospects and in December 2001 they moved to Sydney. In Sydney the parties resided with the wife’s parents. Clayfield was rented out for $315 per week which income I infer the wife received.
On 4 February 2002 the parties separated. On separation the wife retained the overwhelming majority of the matrimonial assets. Essentially the husband left with his clothing and personal effects.
On 14 February 2003 the parties filed a joint divorce application.
On 17 March 2003 this court pronounced a decree nisi, which decree became absolute on 18 April 2003. The husband received the decree nisi at his home in Greystanes. He says he did not read the note “If a party to the marriage proposes to make any application to the Court as to property or as to maintenance of that party such application must be made within 12 months of the decree becoming absolute. After that time such an application cannot be made without first obtaining the leave of the court to do so.” I do not accept that as a tertiary educated and professionally experienced person the husband ignored notes highlighted on the front of the Certificate of Divorce. I am satisfied that from at least the time he received the Certificate of Divorce the husband was aware of the time limitation for any application for the adjustment of property.
In early 2003 the wife applied to the Child Support Agency for an administrative assessment of child support. After the assessment issued she applied for a change of assessment which resulted in an increase in both her and the husband’s child support incomes. Since then child support has become an issue between the parties, with neither happy with the situation.
Later in 2003 the husband became registered to practice medicine in Australia and began work as a doctor in Gracemere, Queensland.
In 2004 the wife purchased a townhouse at Kellyville for $400,000. In order to complete the purchase the wife borrowed $50,000 from her parents and sister and $350,000 from the National Australia Bank. This is where the wife and Sammy live. About twelve months later the wife consolidated her two mortgages, reducing her total mortgage repayments to $750 each week.
In June 2004 the husband purchased vacant land at Glenhaven for $315,000. The husband borrowed the full purchase price from the National Australia Bank. Apparently the husband made this purchase under the mistaken belief he would be able to offset his taxation liability through negatively gearing.
At some stage, it is unclear precisely when, acting on his accountants advice the husband established the M and Son Trust [the trust]. The prime purposes of the trust appear to be asset protection and tax minimisation. Any income the husband earns as a doctor is received by the trust and, after payment of business expenses, is distributed to him. The husband was uncertain about aspects of the trusts operation. I am not critical of this and his inability to answer questions concerning the trusts operation does not amount to a failure to give full and frank disclosure. If the matter proceeds to a final hearing the husband may find himself in a more difficult situation and should consider calling his accountant as a witness. It appears only the husband and his accountant is involved in the trusts operation. The husband follows his accountant’s advice as to its management, including receipt and distribution of income. For family law purposes it is unarguable that the trust is the husband’s alter ego. The trusts income, assets and liabilities will thus be treated as the husband’s. Its financial statements for the period 1 July 2005 to 31 March 2006[2] show the trusts operation during the period. These reveal that for the nine month period the trust received $257,841.58 in patient fees. This is a dramatic increase from the preceding year when the trust received $42,528.34 in patient fees. The reasons for the increase appear twofold. Probably that the trust commenced operation part way through the preceding year and the husband started better paid work at a medical centre in Westbrook. Although working for another doctor, the husband pays 45% of his gross income for rooms, staff and provision of services.
[2] Exhibit D
The husband purchased for $95,000 a new 2004 BMW four wheel drive also on finance at about the same time as he purchased Glenhaven. The car forms part of the assets owned by M and Son Trust. From these transactions it seems the husband believed he was progressing financially and, excluding personalty, was content that the wife could continue to have exclusive use of the remaining matrimonial assets.
In February 2005 the husband purchased a unit at Westbrook for $260,000 which is rented for $270 per week. The unit forms part of the assets owned by M and Son Trust. The husband combined the NAB loan on his Glenhaven land with the Westbrook purchase, which resulted in total NAB borrowings of $510,000.
In March 2005 both parties again applied to change the administrative assessment. The husband’s challenge was based on high costs of contact and the wife’s on the basis the assessment did not adequately take into account the husband’s income. Following a conference on 7 October 2005 the child support review officer reduced the husband’s child support from $187.45 to $188.72 per week. Both parties feel aggrieved by the decision but neither pursued the issue further.
Some time in 2005 the husband’s former accountant broke the bad news to him concerning negatively gearing his Glenhaven property. The husband had assumed the taxation system worked in a similar fashion to Italy’s in the sense that a portion of monthly income is withheld even from self employed individuals. To his dismay the husband’s accountant advised he had a significant taxation liability. So as to address the situation, the husband immediately listed Glenhaven for sale at $290,000. Although the property is now listed for sale at $260,000 thus far he has not received any offers to purchase. He also refinanced the NAB loan with Homeside P/L and currently owes the lender $513,000.
During the hearing the husband explained he has twice sat and failed examinations for admission into the Royal Australian College of General Practitioners. He last sat in April 2006. Provided he passes third time round, which he believes he will, the husband said he is confident he will immediately find work as a doctor in Sydney. During the adjournment the husband spoke with a colleague who referred him to the Health Insurance Guidelines. These guidelines set out conditions for entitlement for a provider number and practice registration. The guidelines[3] reveal Section 19AB effectively precludes these practitioners [overseas trained doctors] from being eligible to attract Medicare benefits services they provide for a period of ten years from their first recognition as a medical practitioner as defined under the Health Insurance Act 1973 (for those doctors registered before 18 October 2001) or from when they were first granted permanency (for those doctors registered after 18 October 2001). The effect of this is the husband must continue to work under supervision until he passes his RACGP exams. Unless he successfully applies to transfer his Medicare entitlements to another area of need the husband is restricted to practice in Westbrook. There are many areas of need in Sydney. Unfortunately the husband has failed each of his applications for transfer. It seems likely the husband will continue to practice in Westbrook for the indefinite future. The wife’s claim that the husband can relocate to Sydney is correct provided one ignores the restrictions upon his capacity to work as a doctor.
[3] Exhibit G
In March 2006, the wife purchased a small Mercedes motor vehicle for $62,000. For this purchase the wife borrowed $58,000.

In April 2006, the wife purchased an investment house and land package at Sandgate in Queensland for $400,000. The wife borrowed the entire purchase price and an additional amount from her sister which she uses to pay the mortgage pending the property shortly being tenanted. When the wife purchased this property her financial statement suggests her expenses exceeded her income by $600 per week. This transaction will provide the wife with taxation relief and in the long run she views its purchase as a sound financial venture. This transaction demonstrates that the wife has considerable capacity to arrange her financial affairs so as to acquire capital assets without imposing on her day to day standard of living. The 2006 transactions, when considered in conjunction with her financial statement filed 2 June 2006 show she would be able to contribute towards the husband’s costs of contact. Whether she should is a different issue.
Presently each of the parties lives alone and other than their son, neither has any responsibility to support another person.

Relevant law – application for leave

The husband’s application for orders in relation to property is out of time by virtue of s.44(3) Family Law Act 1975, which reads:
Where, whether before or after the commencement of section 21 of the Family Law Amendment Act 1983:
(a) a divorce order has taken effect; or
(b) a decree of nullity of marriage has been made;
proceedings of the kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial cause in subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) shall not be instituted, except by leave of the court in which the proceedings are to be instituted or with the consent of both of the parties to the marriage, after the expiration of 12 months after:
(c) in a case referred to in paragraph (a) – the date on which the divorce order took effect; or
(d) in a case referred to in paragraph (b) – the date of the making of the decree.
In Whitford v. Whitford (1979) FLC 90-612, the Full Court of the Family Court said:
“On an application for leave under s44(3), two broad questions may arise for determination. The first of these is whether the Court is satisfied that hardship would be caused to the applicant or a child of the marriage if leave were not granted. If the Court is not so satisfied, that is the end of the matter. If the Court is so satisfied, the second question arises. That is whether in the exercise of its discretion the Court should grant or refuse leave to institute proceedings”.
Hardship to the applicant or a child of the parties is thus an essential pre-condition of the exercise of discretion. The nature of hardship is also discussed in Whitford. It is a comparative concept that is concerned with the consequences of the loss of the right to litigate the claim. An applicant must demonstrate that they have a reasonable claim to be heard. See Jacenko (1986) FLC 91-776. Otherwise, the applicant carries the onus of additionally explaining the delay in bringing the application. The absence of an adequate explanation, despite what was said by the Full Court in Kercher (1981) 7 FLR 216, is no more than a factor to be considered in the circumstances of the case. See Althaus (1982) FLC 91-233. It alone is not determinative of the application.
Finally, if all the above elements point to leave being given the court must balance the hardship to the respondent with the applicant’s hardship. Hardship to the respondent can result includes that the respondent has ordered his or her financial affairs assuming that no s.79 claim was to be commenced. This list is not exhaustive.

A decision to grant or refuse leave is, in the end, discretionary.

Relevant law - dismissal application

As I indicated to the wife during the hearing, I am ruling against her application for summary dismissal. In Bigg and Suzi (1998) FLC 92-799 the Full Court of the Family Court applied Kirby J’s well known judgment in Lindon v The Commonwealth (No. 2) (1996) 70 ALJR 541 at 544 to an appeal against summary dismissal of a property claim. In this judgment Kirby J set out the principles governing the exercise of the discretion in a summary dismissal case. His Honour held:
"The approach to be taken by the Court to the Commonwealth's application for summary relief is not in doubt:
1. It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief, whether under O26, r18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided; [General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128f; Dyson v Attorney-General [1911] 1 KB 410 at 418.
2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action [Munnings v Australian Government Solicitor (1994) 68 ALJR 196 at 171f, per Dawson J] or in advancing a claim that is clearly frivolous or vexatious; [Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91.]
3. An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant termination. [Coe v The Commonwealth (1979) 53 ALJR 403; Wickstead v Browne (1992) 30 NSWLR at 5-7.] Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment;
4. Summary relief of the kind provided for by O26, r18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of a demurrer. [Coe v The Commonwealth (1979) 53 ALJR 403 at 409.] If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts;
5. If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. [Church of Scientology v Woodward (1980) 154 CLR 25 at 79.] A question has arisen as to whether O26, r18 applies to part of a pleading. [Northern Land Council v The Commonwealth (1986) 161 CLR 1 at 8.] However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr Lindon's statement of claim; and
6. The guiding principle is, as stated in O26, r18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit."
In Healey v Chapman [2001] FamCa 1554 (unreported) without disagreement from Ellis and Holden JJ, Justice Lindenmeyer held that a summary dismissal application could only succeed if the person making the application can satisfy the Court that the other party, who is the instigator of the substantive proceedings, cannot possibly succeed in the application which he or she has brought”.
Even more recently in Beck and Beck (2004) FLC 93-181 adopted Justice Holden’s statement of principles drawn from Bigg v Suzi and Pelerman and Pelerman (2000) FLC 93-037. Holden J summarised the applicable principals as:
·“The power for summary dismissal is a discretionary one.
·Relief “is rarely and sparingly provided”
·The parties seeking summary dismissal must show that the application is “doomed to fail” or as has been otherwise described “that the opponent lacked a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious”.
·A weak case or one that is unlikely to succeed is not “sufficient to warrant termination”.
·If there is a serious legal question to be determined, it should ordinarily be determined at a trial.
·If notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a Court will ordinarily allow that party to reframe its pleading.
Concerning the proper approach to be followed Holden J held [at 13] “In determining an application of this nature I accept that the rule to be extracted from the authority is that if a version of the facts put forward by the respondent is not inherently incredible, then in the absence of any opportunity for cross-examination it is incumbent upon the court to proceed on the basis that the respondent's version will ultimately be accepted at the trial of the action (see Webster v Lampard (1993) 177 CLR 598 at 608.” The Full Court agreed with this statement of principle and went on to quote Mason CJ, Dean and Dawson JJ in Webster v Lampard, noting in particular that the power in relation to summary judgment must only ever be exercised with “exceptional caution” (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125), and should only real ever be exercised in the event that “it is clear that there is no real question to be tried” (Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87).
These are the applicable principles which I must apply to the wife’s application that the husband’s s.44(3) application should be dismissed. The only qualification arises by virtue of the parties being afforded an opportunity for cross-examination which places the court in a slightly better position with which to make a preliminary assessment of the husband’s merits.

The husband’s section 44(3) application

The husband’s entitlement to bring a s.79 property application as of right expired on 18 April 2004. His application for leave thus seeks an indulgence in excess of two years. The husband contends that his delay in bringing such an application can be contributed to a number of factors. As I have earlier indicated I do not accept the husband’s evidence that he was unaware of the time constraints which followed upon the parties divorce. Apart from the factors earlier referred to, in his change of child support assessment application lodged with the Child Support Agency on 11 June 2003[4] the husband said “After divorce became effective on March 2003 I did not take any legal action regarding to property in Brisbane, car, and home contents.
[4] Annexure C wife’s affidavit filed 2 June 2006
I left all those assets to her and my son, for which by law should have been divided in 2 or 3 parts. What I took was my personal belongings.” Coupled with the notice on the Certificate of Divorce I am satisfied the husband knew of the time restrictions and consciously decided against bringing a property application within the time allowed as of right.
The husband’s motivation in now commencing his application appears linked to the wife’s quest for child support, his costs of contact and his inability to accrue capital assets. Basically the husband appears to have been willing to forgo any entitlement to capital matrimonial assets, if as he hoped, he managed to re-establish himself financially. The wife’s counsel properly conceded the husband’s motivation in bringing this applicant is probably irrelevant per se. In this situation however, it does assist in understanding his delay.
During the hearing there was a strong emphasis on the parties financial contributions, in particular the husband’s financial contributions to Clayfield. With respect to the parties I felt this was an inappropriately narrow focus. Section 79(4) requires that the court look at the entirety of the contributions, both financial and non-financial, to the welfare of the family as well as the acquisition, conservation and improvement of those assets. Contributions are not required to be tied to the acquisition, conservation or improvement of a particular asset and are to be taken into account generally as contributions in a total sense.
The husband deposes that in addition to applying his income earned as doctor while working in Italy to joint matrimonial purposes that is the parties day to day living expenses while in Italy he also sent money to the wife when she was in Australia. From discussions with her he understood she used a portion of these monies as the deposit on Clayfield. It appears he may have been mistaken as to her use of the funds. What is beyond dispute is that the husband did transmit money to the wife from Italy. Exhibit B and C comprise a selection of the parties joint Commonwealth Bank statements. Those showing code 4747 are funds the husband sent to the wife from Italy. Usually the husband transmitted about 500,000 Lire at a time. The transactions marked orange on exhibit C are payments I accept the husband deposited into the account from Italy. Commencing April 1999 and until August 2001 the husband deposited $19,255.07 into this account. In addition the husband says he deposited about $8,000 in small sums into exhibit B. Exhibit B discloses a significant number of small cash deposits, which for the purpose of this hearing corroborates this aspect of the husband’s claims. About $3000 of these funds went towards the husband’s applications for medical registration in Australia. The wife disputed the husband’s claim that he had about $30,000 in car, savings and personalty at the commencement of cohabitation. There is no doubt the husband did have items of this nature but what is uncertain is their value. These are always difficult issues and in this case the difficulty is compounded by the problem the items were in Italy and all have been sold. The wife’s counsel agreed that on the summary dismissal application the court must analyse the husband’s case at its highest. With this concession in mind, the husband’s evidence is not so far fetched it should be disregarded.
There is another factual dispute concerning the amount for which the husband sold his Italian car. It appears entirely credible that with both parties unemployed the husband returned to Italy, sold his remaining possessions and returned with the proceeds to Australia. The wife says the car was not worth more than $300 but gives no reliable basis for her opinion. With respect to her there appears no good reason why on this issue the court should prefer her evidence.
Contrary to her affidavit evidence, during cross examination the wife conceded the husband cared for Sammy after she returned to full time work and until the parties finally separated. The wife’s mother also helped out, the extent to which is unclear. If the wife’s parents resided at Castle Hill it is difficult to see how the wife’s mother helped with Sammy’s care while the parties lived in Clayfield. The most likely scenario appears to be that the husband cared for Sammy while the parties lived in Clayfield and the wife worked but when the family came to Sydney the wife’s mother assisted. Comparatively during this period the husband’s contribution to the families welfare exceeded the wife’s. It must be taken into account in a real way.
I am persuaded that during the parties years together the husband made financial and non financial contributions. In Parshen (1996) FLC 92-720 the Full Court said the court should presume monies earned during a marriage are used for joint matrimonial purposes.

I am satisfied this is the case here. While the wife may have made greater contributions, her contributions are not so overwhelming that the husband’s claim for property adjustment is trivial or insignificant.
Post separation both parties financial circumstances have improved, with the husband earning the income identified in the trust’s financial statements and the wife in her financial statements. Although the trust statements disclose about $132,000 undistributed income, I was left uncertain that this represents cash at bank upon which the husband is able to draw. I would need more evidence on this point before I could be satisfied about what this entry means.

I am not persuaded the post separation events wipe out the husband’s property claim. At least at this leave level he makes out a proper case to be heard. To summarily deprive him of the opportunity to bring it would fly in the face of the authorities referred to above.
This raises then the hardship issue. The wife says she relied on the husband’s representations to her that he would not pursue a claim for property adjustment against her. With this in mind she has purchased two additional properties and combined Clayfield’s mortgage with Kellyville. As to this, the wife agreed that she maintains accurate financial records which enable her to distinguish between transactions on each property. The wife strikes me as financially astute and ambitious and if she hoped to persuade me that she would not have purchased additional property if she thought the husband would claim property adjustment, she failed to so do. It seems to me the wife will have no difficulty separating out the various transactions she has undertaken, with the pre-post separation dichotomy being quite plain. The wife claims hardship if she is required to pay the husband any money. She also points out that she may incur costs associated with refinancing and capital gains tax if Clayfield is sold. As to the later, any CGT liability has already accrued the only difficulty is a sale brings this liability forward. I do not regard this as hardship. Concerning the former these costs are likely to be insignificant and have only marginal relevance at best.
The hardship to the husband is clearly that he will be denied the opportunity to pursue a legitimate property claim. Other than personalty the wife left this marriage with all items of value. This is not a case where the parties completed an informal property settlement which one party later perceives is unjust. The husband took his personal belongings and hoped that he could leave his more valuable interest in Clayfield for the wife and his son. Although he claims he relied upon the wife’s advice that he would not succeed in any claim against Clayfield, this is inconsistent with his advice to the CSA which indicates he knew he could bring a property claim. Concerning the competing hardships, on balance hardship to the husband if leave is refused outweighs hardship to the wife if it is granted.
For these reasons the husband’s application for leave is granted. So that the situation does not continue indefinitely the husband must bring his application in a timely way. The time limit identified in the orders strikes the right balance between giving the husband time to prepare and file relevant documentation without unduly prolonging the process.

The husband’s application in relation to costs of contact

With respect to the husband he quite misled the court about a key element of this aspect to the case. The husband claimed that after separation the wife took Sammy and moved to Sydney. Thereafter he says he incurred high costs of contact, which basically involve flight, hotel and hire car costs foe every contact occasion. He conceded the parties moved together to Sydney and that the decision to return to Queensland was his alone. Before he returned to Queensland the husband lived in Sydney, a fact obvious from his address on the Certificate of Divorce.

The husband now lives in Westbrook which is 130 kilometres from Brisbane. Each calendar year he will have 12 school term contacts plus school holiday contact. For the foreseeable future this involves the husband flying to Sydney. At some stage he will return with Sammy to Westbrook and the time will come when Sammy may fly alone. The later scenario is quite some time away. I accept the husband’s evidence that annually he will incur air travel costs of $4,573. In addition, should he decide against staying with his family in Sydney, he will have extra expenses. The husband is able to stay with his family and additional unusual expenses are unnecessary.
The husband claims the wife can afford to give him $43.80 each week towards these expenses. I accept his counsel’s analysis that by minor adjustments to her expenses paid for entertainment, gifts, dry cleaning and holidays the wife can easily afford to make this contribution. However, I am also strongly satisfied the husband can afford to meet his costs of contact without any contribution from the wife. Firstly he has been doing so. Secondly, he has still been able to travel to and from Italy. Only recently he spent $4,000 on a new television. It appears the husband’s income is closer to $3,400 each week rather than the $2,525 identified in his financial statement. Although the husband pays child support, the wife carries a considerable financial burden meeting Sammy’s day to day expenses and appears to do so to a considerably extent than the husband. With these factors in mind there is no good reason to order her to share the husband’s travel costs.
For these reasons I make the orders identified at the start of this judgment.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate: S. Mashman

Date: 26 July 2006