S and G

[2005] FCWA 31

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT:	Family Court Act 1997
LOCATION:	PERTH
CITATION:	S and G [2005] FCWA 31
CORAM:	PENNY J
HEARD:	23 FEBRUARY 2005
DELIVERED:	1 MARCH 2005
REASONS
PUBLISHED:	11 MARCH 2005
FILE NO/S:	PT 6539 of 2003
BETWEEN:	S

Applicant/Mother

AND

G

Respondent/Father

Catchwords:

Property settlement - de facto couple - large initial contributions by the applicant - short relationship - 95% of assets to applicant - inheritance received post separation by respondent

Legislation:

Family Court Act 1997

Category: Not Reportable

Representation:
Counsel:

Applicant:	Self Represented Litigant
Respondent:	Mr S French

Solicitors:

Applicant:	Self Represented Litigant
Respondent:	Dwyer Durack

Case(s) referred to in judgment(s):

Nil

1 The parties entered into a de facto relationship in approximately July 1999. There is one child of the union, E, born August 2000. They separated in December 2002 when the respondent left Australia to reside in England.

2 At the time he left Australia the parties had significant financial commitments, including a mortgage and lease commitments on business premises. The respondent made one payment of $690 towards the mortgage after separation. Otherwise, he made no payments towards any commitments of the parties and has paid no child support.

3 The parties have been able to agree on final orders relating to their property and in relation to the residence of E, except for the following matters which are still in dispute. The applicant states the respondent should pay to her $35,000 to reimburse her for expenses paid relating to the lease on the business and expenses that may be incurred in relation to the lease in the future. The respondent opposes this order. The applicant seeks an order that the respondent's overnight contact to E in Perth be phased in when he returns to Australia to exercise contact. The respondent opposes this and says he should have five days' contact, including overnight.

Property

4 At the time the parties commenced cohabitation the applicant was the owner of a property valued at $125,000 with a mortgage of 111,000, a share portfolio of approximately $36,000, household items; a motor vehicle; and superannuation of $48,000. The only assets of the respondent were a car valued at $1,500 and household items.

5 The applicant was also in full-time employment. She received a redundancy payout on the 10 March 2000, including a superannuation unpreserved benefit of $78,800 after tax, and long service entitlements of approximately $3,000. Around $72,000 of the payout and $3,000 from her passport account were paid directly into the mortgage account with the National Bank. The mortgage on the property was thereby reduced to $32,700. The property was sold in June 2000 and the applicant realised $117,700 from the sale.

6 The parties purchased another property, for $91,800. This property was purchased in joint names and is still owned by them. Before building a house on that property the mortgage, as a result of the sale of the previous property, was only $8,200. A house was built on the new property funded by a joint mortgage for $161,000 with the National Bank. The cost of the house was more than anticipated and the applicant had to sell shares to the value of $5,500 to cover the shortfall.

7 After the parties moved into the property she gradually sold her shares to pay for items to finish the house, including air conditioning and paving bricks.

8 In July 2001 the applicant's father died and she inherited approximately $39,000 from his superannuation. This was invested into a cafe business purchased by her which commenced trading on the 2 February 2002. The balance of the funds received by the applicant from her father's estate went towards outstanding taxation and living expenses.

9 On 20 May 2002 the parties purchased a business. To fund the purchase they took out a business loan with the National Bank for $42,000. They paid $38,000 for the business. At the same time they also consolidated outstanding credit cards and the mortgage was increased by $9,000.

10 In August 2002 the café business was closed. The business premises still had a lease at that time of 4½ years to run. The parties sublet the premises. The sublease was for two years and expired in February 2004. There was a shortfall in relation to the lease and outgoings of approximately $228 per month.

11 After the respondent left Australia the applicant still had to pay the shortfall. Those variable outgoings paid for by the applicant now amount to $143 per month.

12 The respondent left Australia in December 2002, taking with him $8,000 as a result of the applicant liquidating the last of her shares. At the time the respondent left Australia, apart from monies owing in relation to the business lease, there were also funds outstanding in relation to various household expenses including electricity, water rates and land rates, totalling $3,000. The only amount the respondent has paid in reduction of any debt, as stated previously, was $690 towards the mortgage. To date, the applicant has paid out $5,300 towards the business lease expenses.

13 The wife continued to run the newly purchased business cafe after the respondent left Australia. She had difficulty coping with this and raising two children and eventually sold some of the assets and the business itself, thereby reducing the business loan.

14 Since selling the cafe the applicant has some income from part-time work, scholarship funds and from Social Security. She has managed to maintain the payments on the mortgage, the lease and pay off business debts. The respondent has not paid any child support.

15 After separation the respondent's mother died leaving him a half interest in her estate. This is valued at between $300,000 and $320,000. The respondent proposes the applicant retain the assets in Perth together with the liabilities, and he retain his inheritance. It appears at the present time he resides with another woman in Italy, who supports him. He has now been assessed to pay child support.

16 For the purpose of ascertaining the assets of the parties I shall exclude the inheritance received by the respondent post separation. Neither the applicant, nor the respondent, made any contribution to that asset and the respondent is yet to receive the funds.

17 Taking into account the assets set out in the applicant's schedule of assets and liabilities, and deducting from that schedule the respondent's inheritance, and from the applicant's liabilities, the anticipated debt on the business lease, which may not be realised, the applicant will retain, on the respondent's proposal, assets amounting to 95% of the total assets. The applicant would retain assets totalling $207,851 and the respondent assets amounting to $24,349.

18 In determining the division of the parties' assets, I must take into account the provisions of s 205ZG(4) of the Family Court Act 1997. The applicant has made a very significant financial contribution to the assets of the parties. From the commencement of cohabitation, she had significant funds. She also contributed the monies received by way of redundancy and the funds received by way of inheritance. In relation to non-financial contributions, both the applicant and the respondent made contributions, but the contributions of the applicant were greater. Since separation, the applicant has made a significant financial and non-financial contribution.

19 In relation to s 205ZD(4) factors, these overwhelmingly favour the applicant. The respondent now has a significant asset and the applicant is a student with limited resources and two children to raise. The applicant is confident the respondent will pay child support now he has been assessed to pay it. Taking into account all these matters, in my view, a settlement sum such that the applicant receives 95% of the assets, as proposed by the respondent, is appropriate in the circumstances.

20 The applicant says that in addition to 95% of the assets, the respondent should pay $23,000 towards the past expenses paid by the applicant for the business and a further $12,000 towards the anticipated continued expenses associated with the business premises until the lease expires in 2006.

21 In my view, the respondent should not be responsible for the past debts paid by the applicant. The applicant has claimed those by way of contribution and I accept they have been significant contributions by her. This is reflected in the percentage she has received by way of property settlement.

22 The applicant says, however, there will be a shortfall in a sum unknown until the expiry of the lease in December 2006. She seeks an order that the respondent pay the sum of $12,000 to be deposited in an account pending the determination of the lease, and that should there be a shortfall, that sum be borne by the applicant and the respondent equally. Any funds left at the conclusion of the lease will be refunded to the respondent.

23 In my view, such an order would be appropriate. The respondent now has access to capital which he has not had previously. The applicant has received no assistance from the respondent in terms of the mortgage, the lease debt on the business premises, the business loan or child support. Now he has access to capital he should, at the very least, pay half the expenses which may arise as a result of the business lease.

24 In relation to the chattels; the respondent's affidavit was struck out, therefore there is no evidence from him in relation to that issue. I am satisfied with the explanation given by the applicant as to why certain items should remain with her and the chattels to be returned to the respondent are those set out in the schedule handed up by the applicant.

25 In relation to children's issues, as I stated previously, most issues are agreed except for whether there should be a phasing in of overnight contact and also the issue of travel. The respondent proposes that he has five days at a time contact with E when he is in Perth. E is now 4 years old. She has had little contact with the respondent for the last two years. The five days contact, in my view, is reasonable. Whether it should be overnight immediately or phased in is the issue.

26 In my opinion, there should be a phasing in of the overnight contact, given the respondent's limited contact with E over the last two years, and because there will be lengthy periods between contact in the future. I intend to make orders that in 2005, if there is contact, it should be for five days, but there should only be overnight contact between the fourth and fifth day. This gives E an opportunity to get to know the respondent. In 2006 on overnight contact, there should be overnight contact on nights three and four, and in 2007, when E is older and more familiar with her father, there should be overnight contact for the five nights.

27 In relation to the travel, I can see no reason why the parties should not share the cost of travel. The applicant says she has commitments in Perth. I am sure she does, but this is only five days at a time. It is unlikely to be more than once or twice a year and, in those circumstances, it would be appropriate that the parties share the travel.

28 There is also an issue, though nobody addressed me on it, as to whether the applicant should retain sole responsibility for long- term care, welfare and development. The respondent proposes that there be a joint responsibility. Given that he is not showing any sign of returning to Australia, except to visit, it is too difficult in that circumstance for the applicant to have to contact him and get his views on various matters relating particularly to education and health. On that basis she should have sole responsibility for the long-term care, welfare and development.

I certify that the preceding [28] paragraphs are a true copy of the reasons

for

judgment delivered by this Honourable Court

Associate