Tartabull & Tartabull and Ors

In the matter of *Tartabull & Tartabull and Ors*, Coleman J of the Family Court of Australia considered a dispute concerning the division of property between a husband and wife. The wife sought to establish that a third party had advanced a loan to the husband, which would impact the pool of assets available for division. The husband owed substantial child support, and the wife bore the greater burden of caring for their four young children.

The primary legal issues before the court were whether a loan from a third party to the husband had been proven, and consequently, how the parties' assets, including modest liquid assets and superannuation entitlements, should be divided. The court was also required to determine the appropriate orders regarding child support liabilities and the distribution of funds held by the Supreme Court of New South Wales.

Coleman J found that there was no reliable evidence presented to support the existence of a loan advanced to the husband by a third party. In the absence of such evidence and any explanation for its absence, the court drew an inference, applying the principle in *Jones v Dunkel*, that any such evidence would not have assisted the third party's claim. Consequently, the court ordered that the funds held by the Supreme Court of New South Wales be paid to the husband and wife, with the husband receiving $25,000 and the wife receiving the balance, including accrued interest. The court further declared that no other person or entity had any right to these moneys. The wife was to receive all of the parties' modest liquid assets. The court also ordered that the wife indemnify the husband for any child support liability up to and including 27 August 2007. In the circumstances, no splitting order was made in relation to superannuation entitlements pursuant to Part VIIIB of the *Family Law Act 1975* (Cth). The parties were ordered to execute all necessary documents to give effect to these orders, with the Registrar authorised to sign on behalf of any defaulting party. Each party was declared the sole legal and beneficial owner of property in their possession, and all other outstanding applications were dismissed, with no order for costs.