Shaw and Shaw - [2009] FMCAfam 9

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHAW & SHAW

[2009] FMCAfam 9

FAMILY LAW – Property settlement – accumulated debt – marijuana consumption – negative contributions – more arduous family contributions.

Family Law Act 1975, ss.75(2), 79(1), 79(2), 79(4)

AP v ENP (P and P) (2003) FLC 93-161
In the Marriage of Browne and Green (1999) 25 Fam LR 482
In the Marriage ofHickey (2003) 30 Fam LR 355
In the Marriage of Kowaliw (1981) FLC 91-092
Kennon v Kennon (1997) 22 Fam LR 1
Broun et al, Australian Family Law and Practice CCH Australia Limited, Sydney, 2008
Monahan, G. and Young, L. Family Law in Australia 6^th edition, Butterworths, Lexis Nexis Australia, 2006

Applicant:

MS SHAW

Respondent:

MR SHAW

File Number:

MLC 4529 of 2007

Judgment of:

Monahan FM

Hearing date:

12 November 2008

Date of Last Submission:

4 December 2008

Delivered at:

Melbourne

Delivered on:

7 April 2009

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondent:

In Person

ORDERS

That the husband retain the following property free of any claim by the wife:
a)   all motor vehicles in his possession;
b)     any monies standing to his credit in any bank or financial institutions;
c)     all furnishings and household effects in his possession; and
d)     all his estate and interest in the following superannuation schemes:
i)MTAA;
ii)MLC; and
iii)Masterkey Business Super.
That the wife retain the following property free of any claim by the husband:
a) all motor vehicles in her possession;
b) any monies standing to her credit in any bank or financial institutions;
c) all furnishings and household effects in her possession;
d) all her estate and interest in the following superannuation schemes:
i)Hesta; and
ii)[X] Superannuation Fund.
That the husband indemnify the wife with respect to all debts and liabilities in the husband’s sole name.
That the wife indemnify the husband with respect to all debts and liabilities in the wife’s sole name.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 4529 of 2007

MS SHAW

Applicant

And

MR SHAW

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by the wife seeking property orders pursuant to section 79 of the Family Law Act 1975 (“the Act”).
At the hearing both parties were self represented and each gave evidence in support of their case. The wife sought the following property orders in her ‘amended application’ filed 7 December 2007:
“5. The husband remain solely liable for and indemnify the wife against all liabilities in his name.
6. the wife remain solely liable for and indemnify the husband against all liabilities in her name.
7. the husband retain for his sole use and benefit all of his interest in the Ford Station Wagon motor vehicle.
8. the wife retain for her sole use and benefit all of her interest in the Ford Falcon motor vehicle.
9. There be a superannuation split in favour of the wife from the husband’s superannuation interests so as to result in each party retaining 50% of the total combined superannuation interests of the parties.
10. That unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:
a) Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at this date.
b) Money standing to the credit of the parties in any joint bank account is to become the property of the wife.
c) Each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other.
d) All insurance policies to become the sole property of the owner named therein.
e) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
f) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.”
At the hearing the wife subsequently withdrew her request for a superannuation splitting order.
The wife relied upon her affidavit sworn on 23 April 2007 and filed

24 April 2007
and her further affidavit sworn and filed on 5 November 2008. She also relied on her financial statement sworn and filed on

7 December 2007
.
By his ‘amended response’ filed on 31 October 2008, the husband sought the following property orders:
“7. All items of matrimonial property, including superannuation entitlements be divided in such proportions as this Honourable Court deems fit.
8. Such further Orders as this Honourable Court deems fit.
9. That the wife take on some liability for the liabilities of credit cards that the wife applied for and signed in the husband’s name, of the amount that this Honourable Court deems fit.”
In support, the husband relied upon his affidavit sworn on 1 November 2007 and filed on 12 November 2007, his financial statement sworn on 29 November 2007 (the Court assumes it was 29 October 2007) and filed on 7 November 2007 and his further affidavit sworn and filed on 31 October 2008.

The issues

The following issues were in dispute at the hearing:
·the parties’ contributions made prior to the relationship;
·the parties’ contributions made during the relationship including the accumulation debt;
·the parties’ contributions made following the breakdown of the relationship; and
·the parties’ respective future needs and obligations.
In addition to her property claim, the wife initially sought parenting orders that in effect would allow the children to live with her on a full time basis and spend time with their father. In his amended response, the husband sought different parenting orders that would allow the children to live on a week about basis with each parent. The parties resolved the parenting dispute just prior to the commencement of the hearing and orders were made by this Court to give effect to their agreement. The orders made gave each parent equal shared parental responsibility for the children and allowed the children to live on a week about basis with each parent and spend time and communicate with each parent at such other times as the parties may agree.

Relationship history

The Applicant wife was born in 1964 and is currently aged 44 years. The Respondent husband was born in 1962 and is currently aged

46 years.
The parties commenced cohabitation in 1987. The parties subsequently married in Victoria in 1996. There are two children of the relationship, namely [E] born in 1997 and [D] born in 2000. The parties separated on 15 March 2007.
The wife is currently in good health and works part time as an administrative assistant and she is also engaged in home duties and running an ‘E-Bay business’ selling second hand goods. During the relationship she worked at the [X] Bank, but ceased her employment prior to the birth of [E] in 1997. The husband is currently unemployed but during the relationship was previously employed [in the hospitality and trade industries]. The husband suffers from severe depression which was diagnosed in September 2006. In evidence the husband admitted that he had been a chronic user of marijuana throughout the relationship and that his marijuana use had continued until the time of separation.

The law – the four steps

Section 79(1) of the Act provides that the Court may make such order as it sees fit altering interests in matrimonial property. The Court’s discretion is not unlimited and must be exercised in accordance with the factors set out in the legislation and more specifically, section 79(4). The preferred approach to the exercise of the discretion has been outlined in numerous decisions of the Full Court of the Family Court, most recently in cases like In the Marriage ofHickey (2003) 30 Fam LR 355. That approach involves four interrelated steps:[1]
“First, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Second, the Court should identify and assess the contributions of the parties within the meaning of Section 79(4)(a), (b) and (c) and determine the contribution-based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Third, the Court should identify and assess the relevant matters referred to in Section 79(4)(d), (e), (f) and (g) (the other factors) including, because of 79(4)(e), the matters referred to in Section 79 (2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution-based entitlements of the parties established at step two. Fourth, the Court should consider the effects of those findings and resolve what order is just and equitable in all of the circumstances of the case.”
[1] Monahan, G. and Young, L. (2006) Family Law in Australia (6^th edition), Chatswood, New South Wales: Lexis Nexis, Butterworths, pages 498-499.

First step – the asset pool

The parties provided the Court with an agreed statement of assets and liabilities. Consequently, the Court is satisfied that the net property pool is as follows:

Assets	Ownership	Valuation
2004 Ford Falcon SW	husband	$7,800.00 (lease commitment is $12,000.00 over 2 years)
2002 Ford Falcon Sedan	wife	$4,000.00
[X] Bank account	wife	$4,000.00
[X] Bank account	Husband	$3,000.00
SUB-TOTAL	$18,800.00

Superannuation	Ownership	Valuation
MTAA, MLC & Masterkey Business Super	husband	$30,000.00
Hesta and [X] Superannuation Fund	wife	$9,437.00
SUB-TOTAL	$39,437.00

Liabilities	Ownership	Valuation
Accumulated credit card debt	wife	$6,000.00
Accumulated credit card debt	husband	$95,000.00 - $100,000.00
SUB- TOTAL	$101,000 - $106,000.00

Clearly, the parties liabilities are greater than their assets (including superannuation):

Net Assets	$18,800.00
Superannuation	$39,437.00
Total Liabilities	$101,000 - $106,000.00
BALANCE (debt)	$82,220.00 - $87,200.00
BALANCE (debt) including superannuation	$42,763.00 - $47,763.00

Step 2 – contributions

This case is really about the division of debt that has been accumulated by the parties, particularly from the period leading up to, and following their separation. While it has been difficult for the Court to piece together the relevant evidence from the parties, the following paragraphs represent the financial history of the parties’ relationship.
Although not documented in either of the parties’ affidavits, it would appear that they purchased their first property in Property M for $105,000.00 in 1992. This was financed according to the wife’s evidence by joint funds of approximately $15,000.00 and a mortgage in the sum of $90,000.00 from the [X] Bank. It would appear that as the wife was then an employee of the [X] Bank the parties were entitled to a reduced interest loan for the purchase.
In 1993 the parties purchased a property in Property V (in equal shares with a family member) for the sum of $30,000.00. Under cross examination by the husband, the wife admitted that this property was sold in 1996 for $32,500.00 for which they received a half share of the net proceeds. The parties agreed that their investment in Property V was revenue neutral.
In 1997 Property M was sold for $145,000. Under cross examination by the husband, the wife agreed that the parties realised approximately $55,000.00 to $65,000.00 from this sale.
In 1997 the parties purchased a property at Property H for $161,000.00. It is unclear whether this mortgage was financed by the [X] Bank or another financial institution. What is clear is that by the time the property was sold a registered mortgage in favour of Perpetual Trustees Victoria Limited was registered. It would appear that the property was financed by joint savings and a mortgage of some $140,000.00. It was also clear, that prior to its sale, the parties raised additional monies on the security of the property. For example in October 2001, the parties borrowed the sum of $180,000 from Origin Mortgage Management Services (see letter to Permanent Trustee Company Limited from Makhul Simon Solicitors dated 5 October 2001 being an attachment to husband’s exhibit “H-1”). The manager of this loan was Tonto Home Loans. In May 2002 the parties increased the principal sum borrowed from Origin Mortgage Management Services by a further $21,120.38 (see letter to Permanent Trustee Company Limited from Makhul Simon Solicitors dated 13 May 2002, and also see letter from Tonto Home Loans to the parties dated 18 May 2002, both being an attachment to husband’s exhibit “H-1”). It would appear that these funds were used to purchase a motor vehicle. It is unclear whether this vehicle or van was used by the husband in his business or by the parties as a recreational vehicle. In September 2003 the parties increased their existing loan by $47,759.00 for the purchase of second motor car and minor home renovations (see letter to Permanent Trustee Company Limited from Hunt and Hunt Lawyers dated 1 September 2003 and letter to the parties from Tonto Home Loans dated 12 September 2003, both being an attachment to husband’s exhibit “H-1”). Under cross examination the wife alleged that the increase in the outstanding mortgage was due to lifestyle expenses, but more importantly the paying out of credit card debt.
It would appear that the property at Property H was renovated around 2004. In his cross examination of the wife, the husband suggested that the renovations to this property cost no more than $25,000.00. The wife indicated that she did not know what the renovations costed.
The parties re-financed their Property H property with Perpetual Trustees Victoria Ltd in late 2005. According to a letter from Galilee Solicitors, Melbourne dated 20 December 2005 (being attachment “4” to the husband’s exhibit “H-1”), the sum of $344,728.30 was received and was dispensed as follows:
Discharge of loans and costs and fees                $278,986.35
Insurance payment  $110.00
Payment to parties   $65,631.95
TOTAL  $344,728.30

The discharge of the loans (which totalled $270,532.02) was as follows:
Origin Cr/ Acc [Mr & Ms Shaw]  $196,522.64
Origin Cr/ Acc [Mr & Ms Shaw]  $74,099.38
TOTAL  $270,532.02

Following receipt by the parties of the sum of $65,631.95, it is clear from the transactions that appear in the wife’s [X] Bank Account No [0] (being attachment “8” to the husband’s exhibit “H-1”) that the following payments (totalling $41,190.11) were made between

20 December 2005 and 22 December 2005:
Tax Office payments  $4,765.00
Aussie Credit Card  $2,000.00
HSBC Credit Card  $2,000.00
CML Source Card  $10,658.17
Citybank Credit Card  $14,277.23
Buyers’ Edge Credit Card  $7,489.71
TOTAL  $41,190.11
Property H was finally sold in October 2006 for $565,000.00. At the time of the sale the outstanding mortgage to Perpetual Trustees Victoria Ltd in the amount of $343,367.72 was discharged (see letter from Devola Property Conveyancing to the parties dated 22 January 2007, being exhibit “W-2”). The parties ultimately received the amounts of $166,994.22 (balance settlement moneys; see wife’s [X] bank Account No [8] transaction on 1 February 2007 being attachment “5” to the husband’s exhibit “H-1”) and the further sum of $41,357.88 being the net proceeds of the 10% deposit held by the real estate after deduction of commission and costs (see letter from Buxton (Hampton East) Pty Ltd to the parties dated 20 December 2006 being exhibit “W-1”). In other words, the parties received the combined sum of $208,352.10 following the settlement of the sale of their Property H property by February 2007. It is, of course, around this time that the parties moved to Coffs Harbour and spent a considerable sum of money while they were there.
Following separation, it appears that the parties divided their joint funds with each receiving $75,000.00. Certainly the husband in his affidavit filed on 31 October 2008 at paragraph 14 acknowledges this payment. Regrettably, neither party submitted any relevant bank statements and the like to evidence this division of funds or provide any real explanation as to the relevant subsequent dissipation of these monies. The wife does however in her evidence state that she has been the main financial provider for the children since separation and in this context the husband acknowledges that he only pays the minimum amount of child support for the children.
The available evidence appears to indicate that the parties dissipated around $50,000.00 - $60,000.00 in their ill-fated move to Coffs Harbour that resulted in their separation. Regrettably, there is little or no documentation that has been produced to explain this large expenditure.
Despite the significant re-payment of credit card debt, it is fairly clear that the parties amassed in the husband’s name a considerable credit card debt during the later years of their cohabitation and by the time of their separation and beyond. At the Court’s insistence, the husband tendered a number of credit card statements relevant to the approximate time of the parties’ separation and the following table consolidates the relevant closing balances:

Credit Card Statement Period	Closing balance
[X] Visa Gold credit card - 16 March 2007 to 16 April 2007 Exhibit “H-2”	$11,950.96
[X] Visa Gold credit card - 16 June 2007 to 16 July 2007 Exhibit “H-2”	$11,915.82
[X] Visa Gold credit card - 17 July 2007 to 15 August 2007 Exhibit “H-2”	$11,492.15
HSBC Low Rate credit card – 1 March 2007 to 28 March 2007 Exhibit “H-3”	$14,275.79
City Bank Platinum Card – 19 March 2007 18 April 2007 Exhibit “H-4”	13,146.79
Coles Myer Source Mastercard – 13 May 2007 to 12 June 2007 Exhibit “H-5”	$10,062.70
Aussie Mastercard – 10 December 2007 to 9 January 2008 Exhibit “H-6”	$12,218.95
Buyers Edge GE Capital Finance Australia - 1 May 2007 to 30 May 2007	$5,212.63
SUB-TOTAL	$90,275.79

Overall, the Court is satisfied that the parties have equally contributed to the property pool that was in existence up until late 2006-2007 when the former matrimonial home was sold. It is clear from the time that the parties commenced cohabitation, and until they sold the former matrimonial home at Property H, that each of the parties had contributed to the acquisition, conservation and improvement of the property and in relation to the family. It is clear that at the time the parties sold the former matrimonial home at Property H their gross assets totalled approximately $208,000.00. As previously stated, what happened to the parties’ money from early 2007 until the time of separation is clouded in some mystery. What is clear is that the parties expended a considerable sum of money in their short-lived relocation from Melbourne to Coffs Harbour. The other relevant factor must be the costs associated with the husband’s marijuana consumption.
Both parties clearly shared the benefit of the lifestyle they enjoyed during the relocation to Coffs Harbour. While the Court is not suggesting that this period was a particularly happy one for either party, the cost of the relocation together with the cost of their housing and living expenses would have been considerable. Regrettably, as previously stated, neither party tendered any specific evidence in relation to these specific costs.
In property proceedings, a party may submit to the Court that the other party has made a ‘negative’ rather than a ‘positive’ contribution to the assets thereby ‘wasting’ rather than increasing the value of the net asset pool. Negative contributions, like positive contributions, should be taken into account where relevant. The principle case is In the Marriage of Kowaliw (1981) FLC 91-092 where the Court determined that financial losses incurred by the parties or by either of them during the course of marriage, where such losses result from a several or joint liability, are generally shared by the parties, although not necessarily equally. [2] In Kowaliw Baker J said that the general principle of joint liability does not apply in the following circumstances: [3]
“(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para. (a) and (b) above having economic consequences is clearly in my view relevant under sec. 75(2)(o) to applications for settlement of property instituted under the provisions of sec. 79.”
[2] Broun, M.et al, Australian Family Law and Practice CCH Australia Limited, Sydney, 2008 at 28,794.
[3] In the Marriage of Kowaliw (1981) FLC 91-092 at 76,654.

The Full Court in In the Marriage of Browne and Green (1999) 25 Fam LR 482 rejected the proposition that the above statement from Baker J was a principle; however the Full Court did acknowledge that it was a “well accepted guideline.” [4]
[4] In the Marriage of Browne and Green (1999) 25 Fam LR 482.
Consequently, if a Court finds that a party to a marriage has wasted assets, that party may receive a lesser proportion of the net property pool. However, it is also possible that the relevant party may also be given the sole responsibility of a debt which arose because of that party’s particular actions. [5]
[5] Broun, M., et al, Australian Family Law and Practice CCH Australia Limited, Sydney, 2008 at page 28,803.
This Court is not satisfied that there is any evidence that the husband in this case (by either his ongoing marijuana use or his desire to relocate the family to Coffs Harbour) had embarked on a course of conduct to reduce the worth of the matrimonial property. Similarly, this Court is not satisfied that the husband acted “recklessly, negligently or wantingly” in relation to the matrimonial property. While his ongoing marijuana use clearly had a negative financial impact, it is difficult to conclude that such were reckless actions per se.
That having been said, the husband’s marijuana use is not irrelevant. The husband conceded that he was a regular marijuana user throughout the relationship and that his habit was possibly in the order of $100.00 per week in more recent times. The wife in her evidence disputes this and asserts that the husband’s marijuana use was costing the parties upwards of $300.00 a week. The husband also admitted under cross examination by the wife that he had not initially informed his medical practitioners of his marijuana use and that it had an impact on the success of his anti-depression medication. Indeed the husband conceded in cross examination that his marijuana use had had a “dramatic effect on how the medication was working on me.” In other words, his arguably excessive marijuana use had an impact on both the parties’ financial circumstances and also contributed to the husband’s illness and inability to work in the latter stages of the relationship and into the future.
In his psychiatric evaluation of the husband, prepared as part of the parenting case now settled, Dr E reported that the husband:
“smoked up to one hundred bongs of marijuana a day at the time he ceased taking it in the context of the break-up of his relationship…” [6]
Later in this context, Dr E commented that following his decision to give up marijuana, the husband:
“threw away $1000 worth of hits.” [7]
[6] See Affidavit of Dr E sworn 13 November 2007 and filed 16 November 2007, Exhibit “TJE-1” being his psychiatric assessment of the husband dated 3 October 2007, page 2.
[7] Ibid, page 3.
Had it not been for the husband’s problems with excessive marijuana use the Court would have more likely concluded that the overall contributions by the parties to the acquisition, conservation and improvement of their property (including debt), and their contributions to the family formed by the relationship, were equal. Moreover, each party ‘enjoyed’ the benefits of the expenses associated with the move to Coffs Harbour. However, there is an issue with respect to the husband’s excessive marijuana use that the Court suspects is in part related to his decision to relocate the family to Coffs Harbour in early 2007.
In Kennon v Kennon (1997) 22 Fam LR 1 Fogarty and Lindenmayer JJ stated in their judgment: [8]
“Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79. We prefer this approach to the concept of “negative contributions” which is sometimes referred to in this discussion.
In the above formulation, we have referred only to domestic violence…but its application is not limited to that.
[8] (1997) 22 Fam LR at 24.
Later their Honours went on to make this comment: [9]
“It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect…”
[9] Ibid.
In the case of AP v ENP (P v P) (2003) FLC 93-161, his Honour Federal Magistrate Walters applied the rationale expressed by the Full Court in Kennon in the context of a husband’s excessive consumption of alcohol. In this latter case, his Honour found that the amount of money spent by the husband on alcohol consumption, and his associated behaviour, had an adverse economic impact on the welfare of the family. At paragraph 93 of his judgment, Walters FM states: [10]
“Taking into account the whole of the evidence before me, I am satisfied that the husband's behaviour did indeed have "a discernible impact upon the contributions of the other party". The wife's ability to keep house (or assist the husband in keeping house), work efficiently and with focus in an attempt to improve the economic circumstances of the parties and to provide a happy, secure and supportive environment for this small family comprising the husband and herself was significantly affected by the husband's at times selfish and thoughtless behaviour. Further, having regard to the amount of money spent by the husband on alcohol, I find that the husband's behaviour had an adverse economic impact on the welfare of this small family. Overall, I find that the wife's contributions were significantly more arduous than they ought to have been, had the husband behaved in a fair and responsible manner.”
[10] (2003) FLC 93-161 at 78,633.
His Honour’s comments certainly have application in the present case. As previously stated, it is clear from the evidence that the husband’s prolonged marijuana use had a detrimental effect on the couple’s financial security and was in part responsible for the decision to sell the former matrimonial home and relocate the family from Melbourne to Coffs Harbour. In addition, it is clear that the husband’s prolonged use of marijuana has had an impact on his overall health and his ability to work.
It is difficult on the limited evidence before this Court to determine whether the husband and/or the wife should shoulder more responsibility for the considerable expenses that the parties incurred during their relationship, but particularly following their relocation to Coffs Harbour in early 2007. What is clear is from the evidence is that the husband’s marijuana consumption was a constant factor for many years during the parties’ cohabitation.
Much of the husband’s presentation of his case was taken up by his assertion that the wife had forged his signatures to obtain the credit cards in issue (or to obtain increases in the credit limits for these credit cards) and that, as a result, the wife had either misused the funds charged to these credit cards or siphoned the funds off to her own advantage. In support of his assertion, the husband attached to his affidavit filed 31 October 2008 a report from Mr D, a forensic document examiner dated 23 April 2008 (being annexure 3 to the husband’s affidavit). The wife did not specifically object to the husband’s use of this report.
After considering a sample of the husband’s signature as against his signatures on the relevant credit card applications Mr D drew the following conclusions:
“a. Application for Shell MasterCard, dated 12/10/1998…I came to the conclusion that this questioned signature is not consistent with being written by the same writer as the specimen signature…
b. The Pre-Approved Acceptance National Visa Gold Card form…dated 22/7/2002…I came to the conclusion that the questioned signature is not consistent with being written by the same writer as the specimen signatures…
c. Financial Table of GE Capital Finance Australia, dated 3/3/2003…I came to the conclusion that this questioned signature is probably by the same writer…
d. HSBC VISA Credit Card Identification Reference From dated 30/12/2004… I came to the conclusion that the questioned signature is not consistent with being written by the same writer as the specimen signatures…”
Under cross examination by the husband, the wife admitted that she had PIN (Personal Identification Number) access to the relevant credit cards which she used to obtain cash. When she was asked by the husband to explain why, she gave the following response in her evidence:
“I had access to some of them [referring to the credit cards] because you [referring the husband] gave me the PIN number, because you can't buy marijuana on EFTPOS, you need cash, and you can't feed your children when you've spent all your money on drugs. You need cash advances to buy food.”
The husband also stated:
“Did you use the cards for purchases and cash withdrawals?”
The wife responded:
“Not for purchases, no, because I didn't have the signing authority. You gave me the PIN number to get cash withdrawals. If you look back on the statements, all the purchases that were ever made on the cards were signed by [the husband] to purchase paint, petrol, whatever [the husband] got for his work, and I assume he hasn't brought any of those relevant statements in today for the credit card.”
The wife was consistent in her evidence that the husband had signed the relevant applications associated with the credit cards. That having been said, the wife confused her evidence somewhat when asked by the husband in cross examination:
“Could you remind the Court which card you signed on my behalf?”
she responded:
“I couldn’t tell you, no.”
This response appears to confirm that the wife had indeed signed an application on the husband’s behalf.
Regardless of whether the wife had signed any relevant credit card applications, it is clear that the cards were used by the parties to provide for their living expenses and most likely the husband’s ongoing marijuana use. While the husband asserted that he cannot recall signing for some of the relevant credit cards applications, this could have been due to his recollection being effected by his prolonged marijuana use. Alternatively, it could be that the wife did sign one or more of the credit card applications on the husband’s behalf. In this respect, the husband produced no evidence that the wife had misused these relevant credit cards in any way or had siphoned any monies by way of cash advances. While it appears that the husband has referred this issue to the Victoria Police for consideration, the wife asserts that she has not been interviewed by the police let alone charged with any criminal activity associated with the obtaining of these credit cards or their use.

Step 3 - section 75(2) and related factors

The parties are both aged in their forties. The wife is in good health and in addition to home duties and running a small E-Bay business, she is currently working as a part time administrative assistant for [B]. In evidence, the wife indicated that she would like to increase her work hours in the foreseeable future. In contrast, the husband is still suffering from depression and this has impacted upon his opportunities to work. Although there was some disagreement about whether the husband was currently working, it is clear that he was only paying the minimum amount of child support.
In his psychiatric evaluation of the husband, prepared as part of the parenting case now settled, Dr E stated that in his opinion:
“Mr Shaw is struggling at the present time to re-establish himself. It will be important for him to find work and to earn a living. Slowly in that context, with continuing treatment, he will emerge from his longstanding depressive illness. His pre-existent personality issues appear to have been tempered in the context of the loss of his wife and his current separation from his children. He says that he recognises his folly and is in cognizance of what it has cost him. If that is the case, then it bodes well for the management of his previous unresolved anger and the difficulties it caused him.”
In light of the fact that both parties will be caring for the children on a week about basis, and given the uncertainty surrounding the husband’s current employment capacity, the Court is satisfied that no adjustment in favour of either party under section 75(2) is warranted given the parties’ circumstances into the foreseeable future.

Final step – justice and equity

Section 79(2) of the Act provides that:
“The Court shall not make an Order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the Order.”
Taking into account the various aspects of the parties’ contributions, previously discussed, and bearing in mind that the information presented at the hearing was extremely limited, the Court concludes that the husband should retain all property currently in his possession, free of any claim from the wife. This would include his motor vehicle (albeit subject to a lease arrangement), any monies standing to his credit in any bank or financial institution, any furnishings and household effects in his possession and all his estate in his relevant superannuation schemes.
Similarly, the wife should retain all property currently in her possession, free of any claim from the husband. This would include her motor vehicle, any monies standing to her credit in any bank or financial institution, any furnishing and household effects in her possession and all her estate in her relevant superannuation schemes.
In relation to the husband’s credit card debts, the Court finds the husband primarily responsible for its accumulation. The wife’s responsibility should be limited to no more than 10% of the credit card debt owing at separation (i.e. approximately $9,000.00 - $10,000.00).
The Court does not require the wife to make any financial payment to the husband to effect a just and equitable division given that the husband will be retaining all his interest in his superannuation policies (which the parties agree is worth three times the value of the wife’s superannuation). This translates to a notional payment by the wife to the husband of approximately $10,000.00 in forgone superannuation (i.e. on the assumption that a superannuation splitting order had been made on the basis of equal contribution and division).
Consequently, each party will be required to indemnify the other with respect to any debts and liabilities standing in that party’s sole name. This means that the husband will have to shoulder responsibility for the large number of credit cards in his name and the current debt applicable to them.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Monahan FM

Associate: Shani Drogemuller

Date: 3 April 2009