RONALD and ROBYN MCMULLEN & ANGELA MARIE ANSPACH & PAUL MCMULLEN (Civil Disputes)

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

RONALD AND ROBYN McMULLEN & ANGELA MARIE ANSPACH
PAUL MCMULLEN (THIRD PARTY) (Civil Dispute) [2010} ACAT 70

XD 82373 of 2008

CatchwordsCivil Dispute – Debt, applicants claim against son’s  former partner for alleged joint debts, whether
  extinguished by family court property orders stated to
  end all financial matters between parties – intent of
  indemnity in those orders – meaning of the word
encumbering

List of legislation ACT Civil & Administrative Tribunal Act 2008 ACT Civil & Administrative Tribunal Procedure
Rules 2009, Rule 5, paragraph 77
Domestic Relationship Act (1994) Section 15

Tribunal Mr. P.R.Thompson, Member

Date of Orders: 8 October 2010
Date of Reasons for Decision: 8 October 2010

AUSTRALIAN CAPITAL TERRITORY ) XD 82373 OF 2008
CIVIL & ADMINISTRATIVE TRIBUNAL )

BETWEEN: Ronald and Robyn McMullen
Applicants

AND: Angela Marie ANSPACH
Respondent

AND Paul McMullen
Third Party.

TRIBUNAL: Mr. P.R Thompson, Member

DATE: 8 October 2010

ORDER

The Tribunal orders that:

1. The application is dismissed
2. There is no order for costs.

……………………………..
Mr. P.R Thompson
Member

REASONS FOR DECISION

On 9 October 2008 Mr. Ronald McMullen, the first of the above named Applicants, lodged a civil dispute application in the ACT Small Claims Court seeking the sum of $10,000.00, and which was claimed to be for debt, along with interest in the sum of $2,101.54 and costs in the sum of $112.00.
Mr. McMullen gave his address as 9 Barber Street, Yass in the State of New South Wales.
Ms Angela Marie Anspach was named as the Respondent. In the application, Ms Anspach’s address was given as 5/12 Kenyon Crescent, Monash in the Australian Capital Territory.
Under the heading “Grounds of Application” Mr. McMullen briefly set out those grounds as;
9.3.2004           IAG shares not returned
13.2.2006       Holden VR motor car not paid for                 $2,000
5.10 2006       Gas Hot Water service not paid for               $1,160
2006-2008      Council Rates Birkdale QLD not paid for     $1,754.87
22.9.2006       Credit Card paid by me   $3,695.91
Mr. McMullen went on to claim that “These amounts represent 50% of Joint Debts incurred whilst in partnership with Paul McMullen, whose share has been satisfied.”
No valuation was initially provided for the IAG shares claimed to have not been returned, by Ms Anspach.
I believe it important to note that under the heading; ‘Previous Attempts to Resolve the Dispute’ Mr. McMullen stated that the Applicant and the Respondent had attempted to resolve their dispute in the following way:
Letter to Respondent 30.10.2006:
Proposals for Settlement in Family Law Court Proceedings but rejected by Respondent.
Subsequently, a Response was filed in the Small Claims Court dated 11 November 2008 by Campbell & Co. Lawyers, signed by Peter Howarth Lewis as, Lawyer for the “Defendant” In that Response the Respondent, who is incorrectly described as the defendant on several occasions, did not admit liability and in fact disputed the Applicant’s claim on the following grounds:
a)IAG Shares were gifted to the son of the Applicant who sold them.
b)The Holden motor vehicle was given to the husband in accordance with the Family Court Property Orders.
c)There is no evidence of any loan ever being in existence.
d)The properties to which the alleged gas, rates and hot water alleged “loans” relate belong to the Applicant’s son and his daughter.
e)There is no evidence of the alleged “joint debts” which were gifts retained by the Applicant’s son.
f)The credit card remained with the son of the Applicant. Any payment is denied and was not paid during the defendant’s relationship with the Applicant’s son.
g)The wrong Respondent is named: the Respondent should be Paul McMullen and will be joined if this matter is not summarily dismissed.
h)The defendant and the son of the Applicant settled all property proceedings in the Family Court on the 29th September 2008. In those Orders, Order 9 (e) states that the husband indemnifies the wife in relation to any liability associated with any property which he is receiving. The husband received both properties subject of the Applicant’s alleged loans.
i)I deny all interest claimed.
As previously stated, Ms Anspach denied all liability, and in fact sought an order that this matter be summarily dismissed. Failing an order to that effect from the Small Claims Court, the Respondent stated that she would be joining the Applicant’s son and daughter as defendants, and also that she would be seeking that the matter be transferred to the ACT Magistrates Court, for an order for indemnity costs.
Attached to that Response was a copy of an Order made by Deputy Chief Justice Faulks in the Family Court of Australia on 29 September 2008, in proceedings between Paul McMullen and Angela Anspach. Attached in turn to His Honour’s Order, was the document containing the consent orders referred to by him, and signed by the parties on the same date. Those consent orders were stated to have been made pursuant to Section 15 of the
Domestic Relationship Act 1994.
His Honour also noted in his Order that the orders made by him on that date, also finalised all outstanding matters in relation to the parties.
On 18 November 2008 the parties were notified by the Deputy Registrar of the Small Claims Court, that the matter had been set down for a conference at 3.00pm on 14 January 2009
On 4 December 2008, Campbell & Co filed an application on behalf of their client, Ms Anspach, returnable before the Court on 16 December 2008. seeking the following orders:
a)That Paul McMullen, be joined as a defendant in the proceedings commenced in the Small claims court by Ronald McMullen.
b)That the Applicant, Ronald McMullen pay the costs of, and incidental to these proceedings.
The grounds for making such an application were basically the same as set out in the original Response, and were stated to be:
a)The Applicant herein. Angela Anspach, and the son of the Plaintiff (sic) in the originating proceedings, Paul McMullen, settled all property proceedings in the Family Court on the 29^th of September 2008. Order 9(e) states that the husband shall indemnify the wife in relation to any liability associated with any property which he is receiving. The properties referred to in the originating application are owned by the son of the plaintiff.
b)The alleged loans relate to properties owned by both the son and daughter of the Plaintiff (sic), Ronald McMullen.
c)The further grounds are as outlined in the response to the original application filed by the Applicant.
In support of their application, Ms Anspach’s solicitor’s referred the Court to the orders made in the Family Court on 29 September 2008 and the Response filed in these proceedings.
On 16 December2008 the application referred to above, came on for hearing before the Registrar, Mr. Jorgensen ordered that:
a)Respondent to file any third party notice within 7 days.
b)Third Party to file any Response on or before 23 January 2009
c)Conference date of 14 January 2009 is vacated and the proceeding is adjourned to a conference on 29 January 2009 at 2.30pm.
On file and numbered between the application itself and the order made by the Registrar, is an affidavit sworn by Mr. Paul McMullan on 15 December2008. Presumably it was either tendered in evidence, or handed up the Registrar at the hearing of 16 December 2008.
On 19 December 2008, Campbell & Co Lawyers filed a Third Party Notice on behalf of their client, against Mr. Paul McMullen, whose address was stated to be 11 Cutterbuck Crescent Oxley ACT. Mr. Paul McMullen’s correct address is 11 Clutterbuck Crescent.
Ms Anspach’s claim against the third party was set out as follows:
a) the Applicant has brought a claim against the Respondent, particulars of which are known to you but also stated in the documents served upon you with this notice.
b) The Respondent claims against the third party an indemnity in regards to the Applicant’s claim, if such claims are not dismissed.
Grounds of claim against third-party:
a) Please see response of the Respondent, Angela Marie Anspach.
b) Please refer to the Family Court Orders dated 29 September 2008,
indemnifying the Respondent.

Relief sought

The Respondent claims full indemnification from the third party against all ‘claims’ brought by his father.
A copy of the Third party Notice was forwarded to the Applicant, Mr. Ronald McMullen by the Deputy Registrar on 24 December 2008.
On 13 January2009, Mr. Paul McMullen filed a Response to the Third Party Notice, disputing the Respondent’s claim on the grounds that the Claims made by his father against his former partner were “Not an encumbrance to the property’s (sic). I don’t owe anybody anything.”
On 13 January 2009, notices were forwarded to all parties advising them that the matter had been set down for a conference before a senior Deputy Registrar at 2.30pm on 29 January 2009.
On 29 January 2009 Senior Deputy Registrar Saunders ordered by consent that:
1.Each party to request discovery, if required within 7 days and discovery to be provided no later than 35 days thereafter (i.e. 12 March 2009);
2.Further and better particulars are to be requested by each party seeking them within 14 days and provided within a further 28 days (i.e. 12 March 2009);
3.Third party given leave to amend his response within 7 days;
4.The Respondent to file an amended application in proceedings amending paragraph one under ‘orders’ to reflect the actual terms of the Family Court order of 29 September 2008, within 7 days;
5.The matter adjourned for further conference to 19 March 2009 at 3.00pm.
6.On 5 February 2009, Mr. Paul McMullen faxed an amended Response to the Third Party Notice to the Court. That Response was dated 4 February 2009 and contained the following amended statement;
“The only encumbrances on properties at 29 September 2008 (the date of the court orders) were a mortgage on the Oxley property and a bank loan for the Birkdale property which was secured against the Oxley property. Both of these were paid out by me in accordance with the orders.
A further encumbrance on the Oxley property was discovered a day before the transfer was to be effected. This was in the form of a caveat placed on the property after 29 September 2008 by a party to whom Ms Anspach was in debt.
Nothing else in the claim was an encumbrance as all items had been paid for by my father. As the order states I was declared the owner of my car. Obviously because Ms Anspach had relinquished all interest in the vehicle on 6 June 2007.”
There was no Counterclaim made or set-off claimed.
On 12 February 2009, in accordance with Order 4 above, the Respondent’s solicitors filed a document headed ‘Form 6.2 AMENDED Application in proceeding’. and which contained, inter alia, under the heading “Grounds of Application” the following statements:

1.   “ The Applicant herein, Angela Anspach, and the son of the Plaintiff in the originating proceedings, Paul McMullen, settled all property proceedings in the Family Court on the 29^th of September 2008. The Family Court noted that this finalised all outstanding matters in relation to the parties. Order 9 (e) stated that each party shall be solely liable for, and shall indemnify the other against any liability encumbering any item of property top which that party is entitled pursuant to these orders. The properties referred to in the originating application are owned by the son of the plaintiff.
2.   The alleged loans relate to properties owned by both the son and the daughter of the Plaintiff, Ronald McMullen.
3.   The further grounds are as outlined in the Response to the original application filed by the Applicant.

The underlined sentence reflects the actual terms of the Family Court Orders.
On 19 March 2009, the matter came before the Registrar of the ACT Civil & Administrative Tribunal, Mr. A Morris who made the following orders:
1. Matter stood over generally, liberty to all parties to relist for a Case Management Conference on 14 days notice.
2. Order that the third Party produce the last twenty four months of national Australia bank Visa Classic statements in 28 days.
On 30 March 2009, the Applicant filed a further application in the proceedings seeking an order from the Tribunal that Robyn McMullen be joined as an Applicant to the proceedings originally commenced in the Small Claims Court by him. And further, that the Respondent, Angela Marie Anspach pay the costs of an incidental to these proceedings. Those orders were being sought on the following stated grounds:
1. Robyn McMullen was a signatory to the original claim for debt owed by Angela Marie Anspach:
2. Monies paid by the Applicant in respect of debts owed by Ms Anspach were from joint funds with Robyn McMullen and some amounts were paid by her.
The supporting material accompanying this application was an unsigned copy of a letter claimed in the application to have been forwarded to Ms Anspach, advising her of the debt and dated 30 October 2006.
The copy of the letter itself attached to the application is addressed “Dear Paul and Angela”. At the bottom in bold type was the following “Separate copies have been forwarded to each addressee”
The letter itself refers to a verbal agreement to lend a number of amounts of money to the Respondent and the third party which were stated to be repaid “when your financial circumstances improved.” After stating that at the time of the letter, i.e. 30 October 2006 that no repayments had been made, the writers (Ron and Robyn McMullen set out the following six (alleged) loans:
1.   $5,000 being a deposit for purchase of property at 11 Clutterbuck Crescent, Oxley ACT.
2.   $4,070 being for purchase of double garage at that address.
3.   $3,170 being for concrete garage floor and subsequent resurfacing.
4.   $5,000 for purchase of furniture.
5.   $1,600 for floor tiles in kitchen /family room area.
6.   $4,000 (approx) for 745 I.G.A shares. These were transferred to Paul on the understanding that he would receive any benefit of dividends during the period in which he held them and they would later be returned to his father when they were needed. They have apparently been cashed without reference to him.
Of those 6 items which in monetary value add up to $22,840.00, only item 6, the I.G.A. shares, form part of the initial claim against Ms Anspach. It should also be noted that the shares previously referred to by all parties as IAG shares are now referred to as IGA shares.
In addition to the above, the Applicant and his wife also claimed to have paid the following amounts, which were in turn claimed to be debts in the name of Ms Anspach and Mr. Paul McMullen:
1.$2,320 for purchase and installation of hot water service at 11 Clutterbuck Crescent, Oxley, ACT, paid by cheque on 5^th October 2006.
2.$6,740.35 being outstanding balance on credit cards, paid by cheque on 16^th October 2006.
3.$418.88 for rates on the Birkdale property payable on 9 November 2006. It is noted that this amount includes a penalty for late payment of previous rates.
Finally, Ronald and Robyn McMullen state that “The Holden acclaim motor vehicle which was previously owned by Ron was sold to you for an agreed amount of $4,000 which is still unpaid.” The letter finishes with a request for advice as to “when repayment of these amounts may be effected.”
The application was made returnable before the Tribunal at 10.00am on 7 April 2009.
On 6 April 2009, Lessli Strong from Strong Law Pty Ltd advised the Tribunal that they were acting for Mr. Ronald McMullen and that Ms Anspach had consented to Robyn McMullen being joined as a party in these proceeding, and requesting a consent order in the matter, along with an order that each party pay their own costs. The letter also contained the signature of Ms Anspach’s solicitor, Ms B Campbell, indicating her consent.
On 7 April 2009, the Tribunal’s Registrar, Mr. A Morris ordered by consent that Robyn McMullen be joined as a party.
On 21 April 2009, the Tribunal received a request from Mr. McMullen to set the matter down for hearing. Subsequently on 23April 2009, notices were forwarded to all parties advising that the matter had been set down for hearing at 2.00pm on 15 May 2009. A request was subsequently received on 15 May 2009 signed by both parties to vacate that hearing date, so that further negotiations could take place between the parties, and because of the complexity of the issues associated with the matter. The matter was then set down for hearing at 10am on 12 August 2009.
On 17 July 2009, Mr. Ron McMullen advised the Tribunal that he would now be self represented.
The matter subsequently came on for hearing before me on 12 August 2009 with Mr. Ronald McMullen representing himself and his wife Robyn McMullen, Ms B Campbell representing Ms Anspach, with the third party, Mr. Paul McMullen also being self represented
During the course of the hearing, the following documents were tendered and exhibited by the Applicant:
Exhibit A-Affidavit of Ms Anspach dated16 May 2007.
Exhibit B- Copy if a letter addressed to Paul and Angela dated 30 October 2006.
Exhibit C- ActewAGL quote to supply and install water heater dated
4 September 2006
The documents tendered as exhibits by the Respondent were as follows:

Exhibit 1- ActewAGL tax invoice/receipt no 70862 dated 6 September 2006
Exhibit 2-copy of Pensioner Security Account –Mr. R McMullen and copy of cheque butt

At the outset, Ms Campbell advised me of the difficulties she faced due to her barrister being rushed to hospital the day before. She indicated that whilst she wasn’t seeking an adjournment, she would seek an opportunity to make submissions on what she claimed were family law jurisdictional issues, in the event that I was minded not to rule on those issues, without such further submissions. Both the Applicant and the third party for their part, were adamant that the current proceedings were not Family Law matters.
I did however allow Ms Campbell to make an opening oral submission to me on the question of whether or not this Tribunal had jurisdiction to hear the matter now before it.
According to her submission, the evidence would be that all the alleged debts were the result of an agreement between a father (Ron McMullen), the Applicant in these proceedings, and a son (Paul McMullen), the named third party. Ms Campbell further claimed that these arrangements were made either during the relationship or after the relationship ended, and that at times her client, the Respondent to these proceedings and Paul’s partner,” was aware(of these arrangements) and was at other times, not aware.”
Ms Campbell detailed what she called long and protracted Family Court proceedings in which Paul McMullen was ably represented by Ms M Reid and various other lawyers. I note that at line 17 of page 4 of the transcript that Ms Campbell is recorded as stating that Paul McMullen had made his lawyer “aware that these debts weren’t existent.” That is obviously a transcription error. Presumably Ms Campbell stated that Paul had advised his lawyers that these debts “were in existence”. To presume otherwise makes a nonsense out of her statement.
MS Campbell then referred me to the notation made by the Family Court that the orders made by it had finalised all outstanding matters in relation to the parties and that order 9(e) had stated that “Each party shall be solely liable for, and shall indemnify the other against any liability encumbering any item of property to which that party is entitled, pursuant to these orders.”
According to Ms Campbell, all the claims now being made against Ms Anspach by the Applicant were. “.all known to the family law proceedings, not a hidden aspect on the part of the parties….”. Ms Campbell submission was that the Family Courts orders were full and final orders meant to capture or encapsulate all outstanding matters between the parties, including these matters. According to her, Paul had received all the claimed moneys and cars, not her client. Further, that the hot water system had been installed on the day her client had left the home.

Ms Campbell further submitted that all the assets of the Respondent and the third party consisted of cars, shares, a unit in Queensland and the family home. The hot water system was installed in the family home. All those assets were subsequently retained by Paul McMullen, the third party, pursuant to the orders made by the Family Court.
Ms Campbell went on to submit that these proceedings raised serious issues in that; “anybody could go to the family Court and then suddenly decide they didn’t like, or it was settled, and then they try to use the family Court proceedings in another one, with a third party, because then it’s an area of contractual law. so in that regard it is very concerning.”
When I raised the possibility that all items claimed by the Applicant could not be treated in the same manner, Ms Campbell replied; “No, they’re all –indeed, four are related to assets retained by Paul pursuant to Family Court orders. Visa card also comes under a debt, but that Visa card is actually a Visa card contract between the bank and Paul. My client was a secondary card holder, and the card was destroyed a week after separation. Her use of it was caused to cease about a week to 10 days after separation,”
Asked by me at this point to expand on his claim in respect of the alleged credit card debt by Ms Anspach, the Applicant stated that the Respondent had an authority to use his son’s credit card and had her own personal card with all previous card transactions being made from their joint bank account. Presumably he meant all previous Visa card repayments. Also, according to the Applicant, Ms Anspach had admitted that on leaving the relationship, she had withdrawn $5,500.00 from that joint account. At the time of her leaving, the Applicant claimed that the credit card debt was $6,740.35, plus outstanding interest, and that Ms Anspach; “ had full use of the credit card and has admitted this debt in the Family Court proceedings.”
When asked by me how he came to be involved in this matter, the Applicant informed me that he had paid the Visa card account because his son Paul had no means of paying it and that Ms Anspach had refused to pay the account.
In relation to the issue of the IGA shares Mr. Ron McMullen informed me that the amount claimed in respect of this item had been reduced to keep the total under $10,000.00. In fact, that is not correct. Whilst the IGA shares were included in the original application made to the Small Claims Court, no value was attributed to those shares and no mention was made in that application of any intention to abandon any claim in respect of any amounts owing by the Respondent to the Applicant, that exceeded the $10,000 monetary limit of the court.. The only mention of a monetary value for the IGA shares is that contained in the letter dated 30 October 2006 (Exhibit B). In that letter they are valued at $4,000(approximately).
In any event, the Applicant informed me that he transferred the shares to his son in order to avoid his pension being reduced, and on the understanding that Paul could keep the dividends, but would return the shares to him when “my pension position improved.”
According to the evidence given by the Applicant when stating his case, the Respondent was fully aware of the arrangement he had with his son in relation to the shares. Mr. Ron McMullen further informed me that the Respondent had previously acknowledged that she handled all the couple’s finances. He claimed that the dividends from the shares and the proceeds from their sale by Patterson Brokers were deposited into the couple’s joint account and that therefore the Respondent had derived a financial benefit from the shares.
Mr. Paul McMullen confirmed the assertion made by Ms Campbell that the shares were transferred and registered in his name and at his address, but that the proceeds of their eventual sale were paid into the account he held jointly with the Respondent.
Mr. Paul McMullen also confirmed that it was he in fact who sold the shares, and not Angela Anspach, as alleged by the Applicant. According to the third party, he sold the shares for “about $1200” in order to pay monies towards his daughter’s university costs, but he later learned that none of the proceeds from the sale went towards those costs.
In any event, I did not rule in favour of Ms Campbell’s submission at that stage as in my view, it was proper that the case should proceed. There were obviously issues, on the face of it, involving claimed debts to individuals that weren’t parties to the original Family Court proceedings, and that therefore, there may well be issues properly before the Tribunal.
I did however, inform Ms Campbell that before I made a decision on this matter, I would give her leave for further submissions to be made to me on the Family Law issue.
As background to his case, Mr. Ron McMullen informed me that the parties were in a de facto relationship until 21 September2006 and jointly owned property at 11 Clutterbuck Crescent, Oxley ACT and 8/14 Kensington Gardens Birkdale Queensland. Once more he claimed that on leaving the relationship, Ms Anspach withdrew in excess of $5,500 from the account she held jointly with his son, Paul, leaving him with an account balance of approximately $82 and numerous joint debts.
Further, according to the Applicant his son Paul did not have the funds to meet any of these debts and Ms Anspach had refused to acknowledge any liability for herself, and also refused to make any contribution to joint debts such as the property mortgage, rates and insurance.

Mr. Ron McMullen informed me that as a result of her refusal, he paid all debts from that date until the couple’s property settlement in the Family Court on 29 September 2008.
In response to my question as whether or not he was just doing that for his son and that he didn’t have the Respondents agreement, Paul replied that his father was doing it for both of them and that they would have lost the properties if not for his father’s financial assistance.
Mr. Ron McMullen then referred to a diary note of his from 24 September 2006 in which he noted that:“she will look after the credit card and fix the bank account on Monday.” Whilst the Applicant further claimed that “Of course, that did not happen.” such a diary note has, in my opinion, very little evidentiary value
The Applicant then went on to state that his claim was only in respect of half of the monies paid by him, as his son had settled his liability in respect of these debts and that the Respondent had admitted her liability in an affidavit sworn by her on a date unknown to me. The first two pages of that affidavit were tendered in these proceedings by the Applicant (Ex A refers).
Whilst the Applicant only referred to a small part of Para 15, I think it informative to include the complete paragraph. That paragraph under the heading “Property Matters” reads as follows:
I refer to paragraph 7 of the Applicant’s affidavit, I say that the contributions for the double garage and concreting referred to in this paragraph were made twelve years ago. The payment of $5000 was a gift from the Applicant’s parents twelve years ago which we decided to spend on furniture Paul’s parents contributed some money towards the deposit for our home nine years ago. I don’t know what the amount was. The contribution for tiling was a gift to Paul and myself when we renovated our home. I agree that the following amounts paid by Paul’s parents during our separation are our joint debts:
(a)NAB Credit card  $6,740.00
(b)Replacement hot water service          $2,320.00
(c)Queensland Investment property rates   $418.88
Total  $9,478.88
Paragraph 16, which I also found to be informative and relevant in the affidavit sworn by the Respondent and subsequently not challenged by the Applicant, but which is at odds with the statement made by the Applicant above, reads as follows:
During separation I also paid the following matrimonial debts which existed at separation.

(a) GE credit line $ 1,190.04

(b) Transact $ 408.61

(d) Mobile telephone $ 44.10

(e) Telstra $ 193.29

(f) Gas $ 343.00

$ $ 3,265.60

Next, the Applicant referred me to the letter he and his wife Robyn addressed to the Respondent and their son dated 30 October.2006. That letter was subsequently tendered and marked Exhibit B
The first part of that letter (items 1-6) refers to some if not all the matters referred to by the Respondent in the initial part of Para 15 of her affidavit which appears to have been filed in the Federal Magistrates court. It is obvious that Ms Anspach did not accept that the monies involved in those items were loans as claimed by the Applicant. In any event those items do not form part of the Applicant’s claim against the Respondent. If they had become the subject of litigation between the parties, in my view those proceedings would have failed on the grounds of uncertainty, with the stated verbal conditions for when the loans were to be repaid, being rendered unenforceable for vagueness.
In any event, the letter from the Applicants and the affidavit of the Respondent, are evidence of the vast gulf that exists between the stated understandings of the exact nature of the financial dealings between the parties over a period of some 12 years.
Whilst Ms Anspach acknowledged the three debts stated to have been paid by Ronald and Robyn MC Mullen in the final part of Para 15,as “joint debts,” I do not accept the assertion of the Applicants as contained in their letter, that all three “were debts in your names.” It has already been established on the evidence and in the documents filed that the Visa credit card was issued to Paul McMullen, with Ms Anspach merely having an authority to operate on that account.
Mr. Ron McMullen then gave evidence that Ms Anspach, did not respond to the letter of 30 October 2006 which could hardly as come as a surprise to the Applicants, in view of its contents
Mr. McMullen also claimed that his son Paul had no interest in the matter now before the Tribunal, as any obligation he had had been fully satisfied. The Applicant referred me to the contents of Paul McMullen’s affidavit that had been previously lodged with the Tribunal, but had not formally tendered either in previous proceedings before the Small Claims court or in ACAT proceedings. That affidavit referred to matters, the subject of settlement conferences in the Family Court, and which were in my view, inadmissible in these proceedings. That unfortunately was a common occurrence in these proceedings with frequent references being made to inadmissible material.
The affidavit did however contain a number of statements which were later covered in the evidence given throughout the proceedings by the third party. The following statement in the concluding paragraph of the affidavit is along similar lines to the assertions made by the Applicant in this regard. The first two sentences of that paragraph read as follows;
“I have met all my obligations in this matter to my father and I have no further interest in this matter. I have no claims against Ms. Anspach.”
Mr. McMullen’s clearly shared his son’s views that all matters between his son and his former partner were settled on 29 September 2008 as indeed they were. However, he was of the firm belief that he had played no part in that process and that therefore any debts owing to him were not, for whatever reason, covered in the orders made pursuant to those proceedings.
In relation to the actual effect of the Family Court Orders, Mr. McMullen submitted that “the only encumbrance on the two properties involved was a mortgage on the Oxley Property, with a loan from the Birkdale property enclosed with that.” According to the Applicant, there were no other known encumbrances on the two properties at the time the court orders were made. There was a reference by Mr. McMullen to a caveat being placed on the Oxley property after those orders were made, but this was not an issue fully canvassed during the hearing before me and was in my view, an issue totally irrelevant to these proceedings.
There was also considerable discussion or dispute on the level of knowledge possessed by the Respondent on the various dealings between the parties and in particular dealings conducted by Paul McMullen and/or his father. During the course of the hearing, Mr. McMullen referred several times to a document prepared by Ms Anspach’s solicitors in which it is stated. “Paul acknowledges that throughout the relationship, Angela managed all the household maintenance, payment of accounts and paperwork.”
That statement caused Mr. McMullen to question a statement made in a letter from Campbell and Co dated 13 August 2008 where it is stated “Our client was always led to believe that your client’s sister paid for all outgoings associated with the unit. Apparently this is not the case and our client is now expected to pay 50% of the rates.” This conflicted with an earlier statement contained in a signed agreement, according to the Applicant.
Mr. Paul McMullen then explained the financial dealings in respect of the Birkdale property and the signed agreement referred to by his father. According to his evidence, his sister was renting the property, in respect of which the Respondent and the third party had taken out an interest only $110,000.00 loan with his sister contributing a further $110,000.00 in cash. The sister was paying all the interest on the loan and the body corporate fees. An agreement entered into between the three of them specified that Paul and Angela would pay the rates. Rather dramatically, Paul McMullen claimed that after the separation he could not afford to pay the rates and that the “unit would have gone,” been sold out from under him, if his father had not taken up payment of all the rates.
After separation, according to Paul McMullen, the unit was sold with the proceeds being distributed in accordance with the orders of the Family Court. Ms Campbell informed me that this wasn’t quite correct and that the Family Court Orders transferred the unit title to Paul McMullen and that although their was an equitable interest to the sister , they chose not to raise that interest and the sister chose not to be joined as a party. Further Ms Campbell stated, “We have no knowledge of where those moneys are, except that they would have all gone to Mr. McMullen obviously because he owned the unit.”
In relation to the issue of the rates allegedly paid by the Applicant on behalf of his son, Mr. Paul McMullen stated that “from the time Ms Anspach left to the time that it was settled, dad paid every single rates payment on that property.
In her evidence, Ms Anspach stated that during the relationship, she and Paul paid the rates, but after separation she could not obtain any documentation in respect of these payments, nor could she claim them on her tax. She presumed that Paul got the tax benefits for the unit previously claimed by her as his was the only name on the property. (after settlement)
When I put it to Paul McMullen that there was a debt owing to his father in relation to that property and that once the property had been transferred to him by virtue of the Family Court orders, the debt belonged to him, Mr. Paul McMullen stated that he didn’t acknowledge that it was his debt, but rather it was a joint debt. Mr. Paul McMullen then went on to state, that his former partner got her share out of the unit only because of the generosity of his father. According to him the bank would have been repossessed the property and his sister evicted if his father had not paid the rates. No evidence was tendered to support this rather wild statement
At this point one needs to return to the actual wording of paragraph 9 (e) of the Family Court Orders, which reads as follows.
Each party shall be solely liable for, and shall indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
Encumbrance is defined as follows.
(incumbrance)n. a general term for any claim or lien on a parcel of real property. These include: mortgages, deeds of trust, recorded abstracts of judgment, unpaid real property taxes, tax liens, mechanic's liens, easements and water or timber rights. While the owner has title, any encumbrance is usually on record (with the County Recorder or Recorder of Deeds) and must be paid for at some point.
However the word used above is ‘encumbering” not encumbrance and two on line meanings of the noun of that word, (encumber) that I could find were.

Encumber Meaning and Definition

1.(v. t.) To impede the motion or action of, as with a burden; to retard with something superfluous; to weigh down; to obstruct or embarrass; as, his movements were encumbered by his mantle; his mind is encumbered with useless learning
2.(v. t.) To load with debts, or other legal claims; as, to encumber an estate with mortgages.

The second definition is from the Oxford on line Learners Dictionary and is as follows:
Encumber somebody/something (with something) to make it difficult for somebody to do something or for something to happen. The police operation was encumbered by crowds of reporters. The business is encumbered with debt.
Ms Campbell was of the firm view that the word encumbered as used above did not have any special legal meaning and that; “it includes everything associated with any property. It might mean a ticket, you know, a parking ticket associated with a car even, but certainly it relates to any property maintained by a party. They are solely responsible for all aspects of that property including, we might say, that Paul may have sold that unit for a vastly increased sum of money than we have spoken (sic). We can’t go back and say “Hang about, that’s ours too.” So, it works both ways.”
It was Ms Campbell’s submission that the order was meant to cover items such as those now before this Tribunal and in fact she went on to state that she agreed with my proposition that it was the intention of the Family Court, when it made the orders, to put an end to all proceedings between the parties. In fact, she submitted that his Honour had stated at the end of the proceedings that the orders had concluded all property matters between Mr. McMullen and Ms Anspach.
At this point I informed Mr. Paul McMullen that in my view the Family Court would have envisaged that if there was any liability or any action attached to that property, then it would become his responsibility following the Family Court orders. Mr. Paul McMullen gave voice to a differing view and that was that order 9 (a) didn’t cover monies owing to his father, including the rates.
Nothing that was later given in evidence or submitted in this matter, has caused me to change my mind, and that is, that the intention of Order 9(e) was to indemnify Ms Anspach against any liability or debts attached to any items that were to become the property of the third party to these proceedings. In my view it covers the debt owing to Mr. Ronald McMullen in respect of the moneys he paid for rates on the Birkdale property, which became a debt payable solely by Paul McMullen.
Notwithstanding my views expressed during the hearing on this issue, clearly any real dispute between Angela Anspach and Paul McMullen as to the actual effect or meaning of any Family Court order should properly be referred to that Court as this Tribunal is not the appropriate forum to resolve such a dispute.
It should also be noted at this stage that Ms Anspach’s evidence was that she was not aware initially that Mr. Ronald McMullen had paid the rates and there was certainly no contract between the Applicant and the Respondent whereby Ms Anspach agreed that she had entered into a loan agreement with the Applicant.
On this issue, as previously stated Mr. Ronald McMullen was adamant that there was a signed agreement covering the rates. He further stated that the couple paid the first installment of rates and then Ms Anspach later refused to acknowledge any liability on her part for any debts, despite the contents of her affidavit of 16 May 2007, admitting liability for joint debts

In any event, I found Ms Anspach to be a credible witness and .from the evidence given by her, I am in no doubt that when she signed off on the Family Court orders, she believed that her settled agreement with her former partner covered all financial matters between them including any joint debts they may have had, including those specifically referred to by her in her affidavit..
Attached to the Submissions filed by Ms Campbell on behalf of her client on 7 October 2009 was a document filed by or on behalf of Mr. Paul McMullen in the Canberra Registry of the Family Law Courts on 29 August 2008. That document is headed “MINUTES OF ORDERS SOUGHT BY THE APPLICANT”. Paragraph 6 of those proposed orders provides that the Applicant (Paul McMullen) assume liability and indemnify the Respondent (Angela Anspach) in respect of all monies due to the Applicant’s father, Ronald McMullen.
Despite Mr. Paul McMullen’s assertions, made on several occasions that Ms Anspach or her solicitors rejected the Applicant’s offer of indemnity, there is simply no evidence before me to back up such a claim. On the contrary, I find it implausible that the final orders signed off on by both parties, had not taken into account all such alleged debts when arriving at and settling the wording of Order 9(e), and in calculating the amount of money to be paid by the Applicant to the Respondent, in full settlement of her share of the couples joint assets less the value of any joint debts. If that didn’t happen, then someone, in my view, was negligent
It was also obvious to me from statements made by the Applicant, Mr. Ronald McMullen that he was under a complete misapprehension as to the real meaning and effect of the Family Court orders worked out jointly by the parties and their legal advisors and then signed off by his son and the Respondent.
Order 9 (e) quite clearly states that each party shall be solely liable for, and shall indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders. The word “property” is not defined, but in its common usage would include, a hot water system and/or a motor vehicle as well as the unit at Birkdale in Queensland. The word was not intended to refer only to the matrimonial home or the unit referred to above. Then, one would presume, the term real property would have been used.
Two definitions of property taken from ARD, an on line dictionary, are as follows;

Property

Definition: The exclusive right of possessing, enjoying, and disposing of a thing; ownership; title.

Property

Definition: That to which a person has a legal title, whether in his possession or not; thing owned; an estate, whether in lands, goods, or money; as, a man of large property, or small property.

In my view those two definitions when used to give meaning to the effect of Order 9 (e) capture the rates for the Birkdale property and any debt in respect of the hot water system, as debts to which the third party is legally required to indemnify the Respondent.
In relation to that hot water system, the facts of the matter according to Mr. Paul McMullen’s affidavit were that the hot water unit blew up shortly before Ms Anspach left the relationship in 2006 and was subsequently replaced. Mr. McMullen claimed to have an understanding that an arrangement had been made by the Respondent with the supplier for a two year interest free loan agreement. He received the account very soon after the Respondent’s departure and then discovered that the supplier was not aware of any time payment agreement and then Ms Anspach refused to pay half the account after being requested to do so. According to Paul McMullen, his father then paid the account in full.
According to the evidence given by Mr. Ronald McMullen, the payment he made for the gas hot water system related to the property owned at the time by his son and the Respondent at Oxley, ACT. He further stated that the unit was installed before 6 September2008, which was the date of issue of the account, and whilst the Respondent was still residing in the property. According to him, and this was not backed up by any other evidence, the account was not found until after the Respondent’s departure. Mr. Ronald McMullen claimed that Ms Anspach obtained the quote for the hot water system and then refused to pay half of the amount for which she was “of course” responsible.
From the documents tendered in evidence, I can state that the quotation for the hot water system from ActewAGL is dated 4 September 2006 and is addressed to Mr. McMullen at 11 Clutterbuck Street, Oxley. ACT (Exhibit C refers) The account from ActewAGL which is actually a tax invoice / receipt is also addressed to Mr. McMullen at the same address dated 6 September2006. The total cost including GST for the supply and installation of a Rinnai Infinity 26 hot water system with 2 controllers was $2,320.00.
The payment terms were specified as “Payment due on completion” Endorsed in handwriting across the top of the invoice was the comment, “RECEIPT REQUIRED PLEASE – NOT REC’D”. (Exhibit 1 refers).
Also tendered in evidence by the Respondent was a document which was obviously a copy of a page of Mr. Ronald. McMullen’s Commonwealth Bank pensioner security account showing that his account was debited with an amount of $2,320.00 on 6 October 2006. Photocopied onto the same page is a copy of an entry in what I accept to be the stub of Mr. Ronald McMullen’s cheque book. That notation was to the effect that the cheque was used to pay for the hot water installation and was dated 5 October 2006. (Exhibit 2 refers) For the record the date Ms Anspach left the matrimonial home was either 21 or 22 September 2006, with the couple themselves settling on 22 September 2006, but Mr. Ronald McMullen maintaining that the parties separated on 21 September 2006.The relevance of that date or its importance was lost on me.
According to the evidence given by Ms Anspach, the hot water system was breaking down just before she went to Queensland and was replaced whilst she was still away. When asked who got the quote she replied that it was Paul who obtained the quote .Ms Anspach also confirmed that there were some negotiations with ActewAGL in relation to an extended payment scheme but maintained once again that it was Paul, and not her, who carried out those negotiations. It was her understanding that they were going to get the system on a two years interest free loan.
Mr. Paul McMullen was anxious to confirm that the hot water system was installed weeks before his former partner left, and that both of them had signed documents to submit for an interest free loan, which according to him could be submitted up to 28 days after installation. Evidently, the documents were never submitted, but could have been still at Mr. McMullen’s home. They were in any event not produced during the hearing.
If the third party has given a correct statement of the time frame to submit such an application, then he had some eight to ten days after Ms Anspach left to submit his application. His failure can hardly be sheeted home to his former partner, who obviously had other things on her mind.
When asked by me what it was exactly that she had been required to do in relation to the hot water system she replied that she had no idea. Neither she nor Paul signed anything in relation to an extended payment plan for the hot water system. Ms Anspach also confirmed that she didn’t know that Paul’s father had paid for the system until her solicitor told her during the Family Law proceedings. Ms Anspach also stated that she had “agreed to pay all moneys owing, all bills, in settlement it would all be covered when we divvy up all the properties, the houses and everything, there’d be a final…...”
Although Ms Anspach was cut short by her lawyer at that point, she did manage to get into evidence that there was always going to be a final lump sum payable to her, presumably after all these matters were taken into account.
On this issue Ms Campbell informed me that the matter had been set down for hearing but then settled with a consensual arrangement between the two barristers, with the final sum encapsulating everything including joint debts, so as to finalise all matters between the parties.
When I suggested to Mr. Paul McMullen that the Oxley property was now his, as was the hot water system, he stated that they both had the hot water system which was installed before Ms Anspach left. He claimed that he didn’t ask her to leave and he couldn’t pull the hot water system out. His answers on this issue were in my view, indicative of the blinkered approach both he and his father took to each of the debts allegedly incurred by Ms Anspach, and the circumstances surrounding each of those matters.
When Ms Anspach was questioned in relation to the circumstances surrounding her leaving the matrimonial home, she stated that after arriving home following a dinner for their daughter’s birthday, everything started to fall apart so she decided to leave, but stayed after the children became upset, trying to calm them down. Paul had then demanded she leave, which she did. Also, according to her evidence Paul took her “pin card” on their joint account, but she still had the credit card.
Mr. Paul McMullen’s views on the circumstances surrounding the subsequent alleged debt incurred by Ms Anspach to his father were expressed as follows: “The credit card that’s the humdinger, the credit card, I think you should hear that one.”
Mr. Ronald McMullen advised me that he paid his son’s credit card balance in full on 16 October 2006. Evidently, according to Paul McMullen, Ms Anspach had charged some of Ms Campbell’s bills to the card, and that his father “had to pay the credit card.” When I put it to him that his father didn’t have to pay anything and that he choose to pay it, Paul McMullen stated he did both Ms Anspach and himself a favour, as the properties were owned by both of them.
According to the evidence given by Mr. Ronald McMullen, all payments for previous card transactions were made from the couple’s joint bank account Ms. Anspach would later refute this allegation, claiming that she in fact made the payments from her own account. As previously stated earlier in this Decision, Mr. Ronald McMullen also claimed that Ms Anspach admitted withdrawing $5,500.00 from the joint account leaving a negligible balance and a debt of some $6,740.35, plus outstanding interest. No evidence was given to support the claim about the large withdrawal and it was not put to the Respondent being cross-examined by the Applicant. After hearing Ms Anspach state that her ‘pin card’ to the joint account was taken from her the night she left the relationship, I have cause to doubt the truth of that allegation.
In his affidavit of 15 December 2008, Mr. Paul McMullen states that when the Respondent left the relationship, he found that his credit card had a very large debt which he could not pay, and that his father paid the total amount and also, a following account for outstanding interest. According to Mr. Paul McMullen and later not denied by Ms Anspach, she was an authorized user or supplementary card holder on Paul’s account Mr. Paul McMullen goes on to state in his sworn affidavit that Ms Anspach refused to contribute in any way to this account. Statements made by Mr. Paul McMullen in relation to alleged undertakings by Ms Anspach’s father have been discounted by me as they are not backed up in any way by any concrete evidence.
Mr. Paul McMullen did later concede that on the night she left, Ms Anspach paid for their dinner using his credit card as “Angela pays for that as she did with all finances.” Obviously, in the normal course of events, Ms Anspach had Paul’s full permission to use his credit card account, of which he was the primary holder, with Angela Anspach being issued with a secondary card. Mr. Paul McMullen also confirmed under cross examination that he ceased her card about ten days after they separated.
Ms Anspach’s evidence was that although she had her own bank account all their joint funds were in the joint account that Paul had denied her access to by taking her ‘pin’ card. She used the credit card to stay at the Embassy hotel on the night of 23 September 2006 as she had nowhere else to go. Paul had cancelled her secondary card within seven to ten days of her leaving the relationship.
Under cross examination as to whether or not payments for the credit card were made from the joint account, Ms Anspach advised the Tribunal that prior to 22 September 2006 she made those payments from her account, which was the one her pay went into. She had no claim on the joint account as that was where Paul’s income went. She also acknowledged that prior to separation, she accepted responsibility for half of the household debt.
Under further questioning from her former partner, Ms Anspach agreed that she had attended the former matrimonial home about ten days after the separation and whilst acknowledging being handed a copy of the credit card statement by Paul, stated that she was prevented from taking that copy when she left.

On being questioned by me on this issue and in view of affidavit by her acknowledging this debt, as to why she hadn’t done something about paying it, Ms Anspach replied that the reason was that Paul would not let her “have the bill to sort out what it was’. By that I presume she meant that she was prevented from working out just what part of the bill was hers. Evidence in relation to that particular issue was never introduced during the entire proceedings.
My follow up question was to ask her what she thought happened to the debt she had acknowledged owing on that credit card. Ms Anspach responded that because she wasn’t allowed the bill to pay it, it was eventually included in the settlement. She wasn’t sure how it was going to be worked out or how settlement would be done in the end, because she never did a break down of the figures. She was however aware of the claims being made by Mr. Ronald McMullen at all times in the proceedings, and agreed that it was her understanding that those claims were taken care of in the eventual settlement.
I accept Ms Anspach’s evidence on this issue, in that it was always her intention to pay her share of the credit card bill, even though she had no legal liability outside of the Family law proceedings to do so. She was initially prevented from doing so by Paul’s refusal to allow her access to the bills contents. Subsequently she had to use moneys she had put aside to pay the bill, to properly house herself. She was also clearly of the firm opinion that the settlement agreement took into account at least some of the various claims being made by Mr. Ronald McMullen. To my mind that was a reasonable assumption to make in the circumstances, and in fact, I believe that is what happened.
The issue of the actual debt run up by the Respondent was however, a matter requiring further consideration, as I intimated during the proceedings. Not because of any legally liability on the part of Ms Anspach, created as a result of the Applicant paying the account, because such a liability does not exist, but because of a perceived moral obligation imposed upon a person who incurs a debt, to repay that debt, and the obvious fact that Order 9(e) did not cover this claim.

On closer examination however the issue became quite clear. The legal liability to repay the financial institute for any debt incurred on the credit card rested with Paul McMullen and Paul McMullen alone. Whilst I am not aware of the exact details or conditions upon which Mr. Ronald McMullen agreed to pay the debt in full on behalf of his son, that decision did not include any discussions with or agreement on the part of Ms Anspach.
The simple fact that the Applicant paid the account, did not give rise to a debt action against the Respondent on the part of the Applicant. Mr. Paul McMullen did however, have a legitimate claim against his partner in respect of what could, for the purposes of Family Law proceedings, be regarded as a joint debt. It was therefore entirely proper for Ms Anspach to acknowledge that debt and others in her Affidavit.
It is also obvious to me that the Family Court orders were intended to, and in fact did. extinguish all claims that Mr. Paul McMullen had against Ms.Anspach, at the time the orders were made. Any remaining claim in respect of Mr. Ronald McMullen’s payment of the Visa account is purely a matter between him and his son, Paul.
The two remaining claims were in respect to an alleged loan for a Holden motor vehicle and an alleged debt as the result of a claimed conversion of IGA shares on the part of the Respondent. Because of the confusing way in which the evidence was led in respect of the various motor vehicles involved, I have dealt with the issue of the IGA shares first
The evidence given by Mr. Ronald McMullen in relation to how he came to believe that Ms Anspach was indebted to him in relation to the IGA shares has already been set out earlier. Basically that evidence was that he transferred the shares to his son to avoid his pension being reduced. He claimed that unbeknown to him Ms Anspach arranged their sale through a broker. In his affidavit Mr. Paul McMullen claimed that Ms. Anspach was a party to the arrangement to transfer what he described as I.A.G shares, with the divided cheques and the later sale proceeds, being deposited into their joint account.

Ms Anspach gave evidence that she believed that the shares were a gift, given to them so that Mr. Ronald McMullen’s pension entitlements weren’t reduced with the couple being entitled to claim the dividends whenever they came through. Asked by me to confirm that it was her understanding that the shares were not hers to dispose of, she informed me that it wasn’t her that disposed of them. According to her evidence, Paul had informed her towards the start of 2006 that his mother had informed him that if he needed the money he could sell the shares. She further stated that she was not privy to any conversations but was only told by her former partner.
According to her, Paul told her he was going to sell the shares to pay for their daughter Amy’s accommodation in Wollongong. Further, that Paul rang a broker and sold the shares, with the proceeds being deposited into the joint bank account. Ms. Anspach believed that subsequently Paul wrote out a cheque for between three and four thousand dollars, which was then used to pay the daughter’s accommodation.
I prefer the evidence on this issue given by Ms Anspach. No documentary evidence was produced at the hearing in relation to any share transaction, but I believe that the shares were transferred into Paul McMullen’s name alone, therefore it could only be Paul who arranged their sale, not Ms Anspach as claimed by Mr. Ronald McMullen. To suggest that the Applicant has a claim against Ms Anspach because she somehow gained a benefit from the proceeds of the sale is clearly absurd. Does a bank have a right to sue the beneficiaries of a loan taken out by its client and then distributed to others, in the event of default by its client? Of course not, and it is not open to me to hold otherwise.
The Applicant may well have an action in respect of what he claims was a breach of his trust and an unauthorized sale of his IGA shares, but that action is not against Angela Anspach.
The remaining item to be decided is the claim for $2,000.00 for what Mr. Ronald McMullen described in his application as “13/2/2006. Holden VR Motor Car not paid for.” and which I presumed to be around a 1993-1994 Holden Commodore sedan. As I said earlier, the evidence in relation to this claim was confusing in the extreme. Ms Campbell was to later call this evidence, ‘convoluted’
In her Response filed on18 November2008, Ms Anspach claimed that the Holden motor vehicle was given to the husband in accordance with Family Court Property Orders (Para 2 refers). Order 4 of the Orders signed by the parties on 29 September2008 states that the Applicant is the sole owner of his 1992 VR Commodore. (1992 Commodores were VP series).

In his affidavit which was filed by Mr. Paul McMullen prior to the matter coming on for hearing, he stated that in early 2006 he and Ms Anspach obtained an 11th month 1994 Holden Series II commodore Acclaim motor car from his father on the understanding that the couple would pay him the sum of $4,000.00 after the sale of another vehicle, but that the $4.000.00 was never paid. According to Mr. Paul McMullen’s affidavit, the car was registered in their joint names with Angela as the principal operator, However on 6 June 2007, Ms Anspach relinquished all right to the motor vehicle by way of written advice to the ACT Transport Authority.
Mr. Paul McMullen then went on to state that he then became the sole registered operator, and therefore this vehicle could not be given to him at the time of settlement as it was his vehicle and Ms Anspach had no right to it. His stated view was that the order simply stated and confirmed that the car was his, with the wording specifying ‘his’ car, not ‘their’ car. and that unlike other items in the order, no time limit was imposed for any perceived transfer of ownership.
In his evidence, Mr. Ronald McMullen stated that the Respondent had incorrectly described the motor vehicle which was the subject of his claim. His vehicle and the one he allegedly sold to the couple was a 1994 Holden Commodore Acclaim not a 1992 VR Commodore His evidence was similar to that contained in his son’s affidavit and that Angela had relinquished all title to the vehicle, although he claimed the date as being 6 January, 2007.
The Applicant further claimed that the Family Court order declaring his son the sole owner of “his 1992 VR Commodore “cannot be right”
Evidently, according to the Applicant, in 2006, Ms Anspach was the registered owner of two Holden motor vehicles, one of which she had listed and described as a 1992 Holden Commodore. Mr. McMullen further claimed that this vehicle was purchases in 1997 after his son had received a redundancy package. The Applicant went on to state that the 1992 vehicle had been disposed of well before 29 September2006.
Mr. Ronald McMullen then went on to state that Ms Campbell was well aware of the fact that her client had relinquished her interest in the Holden Acclaim and therefore neither vehicle should have been considered in that settlement’s final orders.
To my mind those statements display a complete lack of understanding on the part of the Applicant of the powers of the Family Court and the possible outcome of any settlement proceedings in that. Court, as well as being a misrepresentation of the true facts surrounding the decision of Ms Anspach to transfer the registration.
Next, Mr. Ronald McMullen stated that the Respondent’s intentions to pay him for his motor vehicle could be confirmed by the circumstances surrounding the purchase of her former work car. His evidence on this matter was basically to the effect that Ms Anspach’s work car, a Ford Falcon station wagon had become available for her to purchase at a cost of $4,001.00, and that she had requested him to lend her the money.
Her stated purpose for the purchase, according to the Applicant, was to then resell the vehicle for around $10,000.00, which would recoup the cost of the loan, pay for the Commodore Acclaim, with any resultant profit going to Ms Anspach.
The Applicant also stated that he was advised by Ms Anspach that the seller had stipulated that the Falcon was to not to be registered in the ACT. According to the Applicant, the Respondent then requested that she register it in her name at the Applicants address in NSW. Mr. McMullen went on to state that he advised her that he did not think this was legal and then agreed to purchase the vehicle in both Applicants’ names.
The vehicle was subsequently sold by the Applicant for $5,000.00. After informing me of this, the Applicant stated that this sale in no way affected the obligation by Paul and Angela to pay him for the Holden acclaim.
In her evidence in relation to the all the various cars, Ms Anspach stated that she was not consulted when a car described as a ‘gift’ was given to Paul by his father in 2005. At the time she had a work car and Paul drove a 1992 car which was the family car prior to her having the work car. She claimed that the car was purchased by Paul and her. That car was subsequently given to their son on his 18^th birthday after Paul had acquired his mum and dad’s car. The Respondent stated that she was unaware of what arrangements had been made in respect of that car.
Ms Anspach also informed me that the Applicants former car was registered by her as she did all the paperwork and that Paul didn’t like going down to the shop, so she went to register it in his name, but wasn’t allowed to as the person fronting at the counter registering the vehicle had to be one of the persons on the record.
In my experience, this would be the correct position.
Ms Anspach also acknowledged subsequently transferring the vehicle to the third party three to six months after the separation.
Under cross examination on this issue, Ms. Anspach denied that she had received the car from the Applicant, asserting that Paul had received the Acclaim from his father, but conceding that it had been registered in both names. She signed a statement relinquishing title because the car was not in her possession and agreed with my question as to the reason being that she did not want to be liable for any speeding or parking tickets.
Ms Anspach also denied any knowledge of any outstanding monies in relation to that vehicle or any knowledge of the original arrangements. Under cross examination she also denied asking the Applicant for a loan to buy her work car or of informing him that it was her intention to sell that car to obtain funds to pay for the Acclaim.
Questioned by me on this issue, Ms Anspach stated that she could not recall asking the Applicant for that money or of ever asking him for money to pay debts or for any other purpose.
In relation to the cars ,Ms Anspach stated that she obtained a new work car after her company decided to sell her existing car. According to her evidence, she had nothing to do with it. Paul wanted to buy the car as he could see a financial opportunity, so he made an agreement that his dad would pay for the car. Evidently, according to the Respondent, Paul’s parents had the money to buy it The Applicants subsequently purchased the car, registering it in NSW. Later, they sorted out that they would sell it, which they eventually did.
Overall on this issue, I prefer the evidence of the Respondent as being far more plausible than that given by the Applicant, Mr. Ronald McMullen and his son Mr. Paul McMullen. Further, I seriously doubt that Ms Anspach was ever consulted in relation to the possible purchase or gifting of the Holden Acclaim from the Applicants to their son. The actual initial registration papers would contain an agreed purchase price, if ever such a price was agreed upon, but once more, no documentation of any agreement in relation to this transaction was produced during the hearing.
Obviously, the description of the motor vehicle as contained in the Family Court orders is incorrect as it was obviously meant to refer to the car Paul had in his possession, but it is not open to me to amend the records of that Court. In any event, if there was a debt owing to the third party by the Respondent in respect of that vehicle, then that debt was extinguished by the orders made by that Court in reaching a final settlement between the parties.
Further if there is a debt owing to the Applicants in respect of the motor vehicle formally owned by the Applicants, then they need to look to their son for payment.
Before turning to the submissions filed by the parties pursuant to the orders I made on 12 August 2009, I do wish to comment on some of the evidence given to me during the course of the proceedings. Some of the assertions made as to the Respondents involvement in the various dealings between the Applicants and their son were clearly wrong, and one suspects, made solely to, in some way, make her appear liable for debts that were never hers, or were extinguished by the Family Court orders.
The other matter of concern, was the assertion contained in the documents filed in the Tribunal and maintained throughout the proceedings, that the third party had repaid his half share of the debts incurred with his parents. This was patently untrue and only admitted towards the end of the hearing. I do however accept that there is an agreement in place for their eventual repayment, but that is not an issue for this Tribunal.
At the conclusion of the proceedings, I made the following orders:
1.      Copy of transcript to be obtained by the Registry with copies to each party.
2.      Respondent to file submissions on jurisdiction and the effect of the Family Court agreement on or before 7 October 2009, with copies to be served on each party.
3.      Submissions on evidence to be filed by both parties within a further 14 Days.
On 7 October 2009, submissions were filed by the Respondent’s solicitors in accordance with my orders. In the main, I agree with the thrust of those submissions, although I am not sure that the submissions in relation to the Holden car are correct. I don’t believe any funds were ever advanced to the third party by the Applicant to purchase that vehicle. There may have been a loan however, if the car was not in fact, gifted.
I also agree that in line with the legislative intention of Section 14 of the Domestic Relationships Act 1994(ACT) the Family Court made orders which were intended to put an end to the financial relationship between the parties and thus avoid all further proceedings between them
It is clear to me that the orders achieved that end. In the event that this statement is disputed and that result was not achieved, then the proper forum to air that dispute is the Family Court of Australia, and not ACAT.
I don’t intend to expand further on the submissions made by the Respondents solicitors, as the bulk of the issues raised therein have already been addressed by me. In any event, they are on file and the parties have copies.
On 27 October 2009, Mr. Ronald McMullen filed his Response to those Submissions. Whilst I have taken note of the contents of that Response, those contents have not in anyway caused me to alter my views, as expressed herein. I understand and take into account that Mr. McMullen is not a lawyer and therefore at some disadvantage when filling a response to a submission and in addressing the evidence given in this matter
With this in mind I have given him so latitude, but nevertheless it is not open to him to introduce new evidence in this manner or question the truthfulness of evidence given by the Respondent which was not tested under cross examination at the time of the hearing. I have also not taken into account any of the additional documentary material forwarded with the response but not tendered into evidence during the hearing. It is, in my view simply not open for me to do so, without re-opening the whole case. The Respondent has not had an opportunity to test that material or object to its tender. It is simply not admissible.
I accept that Mr. Ronald McMullen paid some debts on behalf of his son that at some stage were joint debts of the Respondent and the third party. I do not accept that the Respondent was ever indebted to the Applicant in respect of the credit card debt or the sold IGA shares, no matter how hard the Applicants wish to argue to the contrary.
Further, I do not accept the interpretation put on Order 9(e) by either the Applicants or the third party that, that order somehow only relates to a mortgage on a property. My reasoning is set out elsewhere in this Decision. Clearly, in my view, any debt or joint debt that the Respondent had to, or with the third party, was extinguished by the orders made by the Family Court.
Simply put, most if not all of the claims made in this matter against the Respondent are wrong headed, with several of them having no basis in law.
Paragraph 77 of Rule 5 of the ACT Civil and Administrative Tribunal Procedure Rules 2009 provides that;
1.       The Tribunal may enter judgment in favour of:
(a)     Respondent who included a third party against the third party: or
(b)     The third party against the Respondent
On the evidence in this matter, I have decided to dismiss the application in its entirety and further, that there is no basis for entering any judgment in favour of the Respondent against the third party.

FINDINGS:

That the Respondent is not indebted to the Applicants in respect of any of the items claimed by the Applicants in the original application.
That in so far as I am able to interpret the extent of any orders made by the Family Court, I find that the orders made in that Court on 29 August 2008 were intended to and in fact did extinguish any joint debts of the parties and bring an end to the financial arrangements between them.
That in accordance with the indemnity provisions of the Family Court orders, in my view, any remaining debt is solely an issue between the third party and his parents.
That the proper forum to amend any defect or resolve any outstanding issues in respect of the orders made on 29 august 2008, is the Family Court of Australia and not this Tribunal.

……………………………….
Mr. P.R Thompson.
Member.

[2010] ACAT 70

8 October 2010

Key Legal Topics

Areas of Law

Civil Litigation & Procedure

Legal Concepts

Appeal

Standing

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