VARDY & VARDY

[2015] FamCA 430

FAMILY COURT OF AUSTRALIA

VARDY & VARDY [2015] FamCA 430

FAMILY LAW – Child Support – where the wife seeks an order for lump sum child support pursuant to s 123A of the Child Support (Assessment) Act 1989 (Cth) which seeks to capitalise child support at an amount higher than the current assessment – Where the wife has not sought to make any application for departure from the current child support assessment – Where in those circumstances a lump sum order in the amount sought by the wife would not be appropriate – Where the wife asserts an order for a lesser lump sum be made because the husband is entirely unreliable and has failed in his duty to maintain the child – Where the husband has failed to make proper disclosure of his financial position – Where the court is not satisfied that it would be just and equitable to make a lump sum order against the husband – Order made for the husband to pay all amounts due under any child support assessment within two months.

FAMILY LAW – PROPERTY – Just and equitable property alteration – Where the husband has failed to provide full and frank disclosure of his financial position and the assets held by husband are unknown – Where the court is unable to make any finding about the proportion in which net assets should be divided based on contributions – Where the court does not need to be unduly cautious in making findings about the husband’s earning capacity – Where the husband has a higher earning capacity than the wife – Order that the husband pay to the wife $200,000 by way of property adjustment – Order for the wife to sell the former matrimonial home if the husband fails to pay any sums he is ordered to pay to the wife.

Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

Bendeich and Bendeich
Black & Kellner (1992) FLC 92-287

Bolton and Bolton (1992) FLC 92-309

Briese (1986) FLC 91-713
Dwyer and McGuire (1993) FLC 92-420

Hartnett vBaker (1995) FLC 92-620

In the marriage of Anast and Anastopoulos (1981) 7 FamLR 728
In the Marriage of Bevan (1995) 19 FamLR 35
In the marriage of Pastrikos (1979) 6 FamLR 497
Livesey v Jenkins (1985) 1 All E.R. 106

Oates and Crest (2008) FLC 93-365
Oriolo & Oriolo (1985) FLC 91-653
Prpic and Prpic (1995) FLC 92-574

Weir & Weir (1993) FLC 92-338

APPLICANT: Ms Vardy

RESPONDENT: Mr Vardy

FILE NUMBER: SYC 5082 of 2012

DATE DELIVERED: 29 May 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 26 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Othen

SOLICITOR FOR THE APPLICANT: Alexanders Lawyers

SOLICITOR FOR THE RESPONDENT: Litigant in person

Orders

1. Pursuant to s 79 Family Law Act 1975 (Cth) (“the Act”) an order be made in accordance with paragraphs 4 to 7 below.

2. I dismiss the wife’s application for lump sum child support.

3. Within two (2) months the husband pay to the Child Support Agency all amounts due under any child support assessment issued in favour of the wife.

4. Within a period of two (2) months, the husband pay to the wife the sum of $200,000.

5. In the event the husband fails, refuses or neglects to pay any of the sums to the wife as referred to in orders 3 and 4 herein:

   5.1.The wife is appointed trustee of sale of the former matrimonial home situated at and known as B Street, Suburb C, in the state of New South Wales (being the whole of the land contained in Certificate of Title Folio Identifier 1/943517);

   5.2.By way of implementation of order 5.1 the husband shall forthwith do all acts and things and sign all documents necessary and required of him by the wife to enable the wife to sell the former matrimonial home as trustee pursuant to order 5.1;

   5.3.The husband shall vacate the former matrimonial home within 42 days of the date of any default by the husband under paragraphs 3 and 4;

   5.4.The wife shall forthwith sell the former matrimonial home for the best price reasonably obtainable with such agent as the wife may appoint, such sale be by way of public auction on a date not less than 8 weeks after the date of the agent’s appointment, and the reserve price to be no lower than that recommended by the agent.

6. Pending payment by the husband to the wife as referred to in orders 3 and 4 herein and pending completion of the sale of the former matrimonial home referred to in order 5 herein, the husband shall pay and bear as and when they fall due all instalments of principal and interest in relation to the said mortgage to St George Bank Limited, all water rates, land rates and other outgoing in respect of the former matrimonial home and any arrears in respect of any such payments and the husband shall indemnify the wife in relation thereto.

7. Pending payment by the husband to the wife as referred to in orders 3 and 4 herein and pending completing of the sale of the former matrimonial home referred to in order 5 herein, the husband shall be restrained from further charging or otherwise encumbering the former matrimonial home and/or dealing with the property by way of transfer, lease or any other manner, except as provided for by these orders to the contrary.

8. On settlement of the sale of the former matrimonial home referred to in order 5 herein the wife shall distribute the proceeds of sale of the former matrimonial home in the following order and priority:

   8.1.In discharge of the mortgage to St George Bank Limited secured against the title of the former matrimonial home;

   8.2.In payment of legal costs and real estate agent’s commission upon the sale;

   8.3.In payment of adjustments as between vendor and purchaser in relation to council rates, water rates and water usage;

   8.4.In payment to the wife of $200,000 together with interest thereon at the rate specific by the Family Law Rules 2004, as and from the date for payment in accordance with order 4 herein, to the date of payment to the wife;

   8.5.Payment to the Child Support Agency of all amounts due under any child support assessment issued in favour of the wife as at the date of the settlement of the sale of the former matrimonial home;

   8.6.In payment to the wife of all amounts due under costs orders made against the husband in these proceedings as at the date of the making of these orders;

   8.7.In payment of any amount outstanding pursuant to order 6;

   8.8.In payment of any balance remaining to the husband.

9. Each party be solely entitled to the exclusion of the other to all other property, chattels and superannuation in their respective names or possession as at the date of these orders and that each party indemnify the other in relation to any debt associated with any asset that is kept by each of them respectively.

10. Either party have liberty to restore this matter on 7 days notice in respect of implementation of any order.

11. If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these orders, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Act to execute such documents on behalf of such party.

12. Within a period of two (2) months, the husband pay the outstanding costs orders made by Registrar Campbell in the sum of $1,100 made 18 December 2012 and Rees J in the sum of $3000 made 13 May 2013.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vardy & Vardy has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5082 of 2012

Ms Vardy

Applicant

And

Mr Vardy

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an application by Ms Vardy (“the wife”) for an order for property settlement, for lump sum child support and enforcement of arrears of child support. The parties have been separated longer than they were together. There was one child of their relationship. Mr Vardy (“the husband”) had significant assets at the commencement of the relationship. The wife alleges that the husband has not made a full and frank disclosure of his current financial position.

APPLICATIONS

1. It is an agreed fact that in about July 2011 and March/April 2012 the wife received two amounts from the husband each of $30,000.

2. The wife seeks a further amount of $300,000 payment in cash to her by the husband by way of alteration of property and a further payment of $150,000 by way of lump sum child support payment. If that order is not made, the wife seeks an order for payment of any outstanding arrears of child support. In the event that the husband does not pay those amounts within 28 days, the wife seeks that she be made trustee for the sale of the property at B Street, Suburb C (“the former matrimonial home”), which is owned by the husband, and that those payments be made to her from the net proceeds of the sale that property.

3. The detailed application made by the wife is set out in Schedule 1 to these reasons for judgment.

4. The husband, begrudgingly, said during final submissions that at the very best the wife should receive $50,000 by way of alteration of property settlement and that there should be no pre-payment of child support by way of a lump sum order.

5. In his Response filed 23 October 2012, the husband seeks a declaration that in the event there is any sale of the property, the husband’s mother Ms E (“Ms E”), who was not a party to these proceedings, receive $300,000 in priority to any payment to the wife (in repayment of monies the husband asserts he owes to her).

DOCUMENTS RELIED UPON

1. The applicant wife relies on the following:

   7.1.Initiating Application filed 28 August 2012

   7.2.Case Information Document filed 27 January 2014

   7.3.Wife’s Affidavit filed 28 April 2014

   7.4.Wife’s Affidavit filed 12 April 2013 (paragraphs 1-46 only)

   7.5.Wife’s Financial Statement filed 28 April 2014

2. The respondent husband relies on the following:

   8.1.Husband’s affidavit filed 23 October 2012

   8.2.Husband’s financial statement filed 23 October 2012

SHORT HISTORY

1. The husband was born in 1971 and is now aged 44 years old.

2. The wife was born in 1982 and is now aged 33 years old.

3. The parties commenced cohabitation on 25 August 2007 and married in 2008.

4. The parties’ child D (“the child”) was born in 2010 and is aged 5 years old.

5. The parties separated on a final basis on 24 March 2011, a cohabitation of three years and seven months.

CREDIT

Wife

1. The wife on the whole gave her evidence in a straightforward manner. She was however challenged in relation to her evidence about the number of days that the child spent in the husband’s care. The wife’s evidence initially in her affidavit was that it was two nights out of seven, and sometimes on occasion it extended to three nights. When pressed however, she agreed that on occasions the child actually spent four nights a week with her father and the frequency of three nights seemed to be more than the impression that she first sought to give.

Husband

1. The husband was candid throughout most of his evidence. He conceded, for example, that he had stolen from the wife the Rolex watch that he had given the wife as a present. He said that he was holding it in a safe place and would return it to the wife on some future occasion when the parties’ relationship is at a better level than it was in the court room during the hearing.

2. In relation to his non-compliance with court directions in respect of providing financial information, he candidly admitted that he had deliberately chosen not to provide information, saying words to the effect that the reason he did not give all the documentation was because of the manner in which the documents he had provided in the past had been used against him in cross examination (in interim proceedings). The husband was not prepared to fully disclose his current financial circumstances, particularly as they related to the business which he operates under F Pty Ltd.

Conclusion

1. There were large parts of the evidence of each party which remained unchallenged. In the end, issues of credit in this matter do not play a large part except in relation to the discretion I need to exercise as to whether or not a lump sum payment is made for child support. In so far as it is relevant to that issue, I prefer the husband’s evidence over the wife’s in relation to the time the child is spending with each of the parents. The two significant areas where I had doubts about what the husband has said relate to his ownership of the motor dealership he currently operates and an amount of $300,000 he asserts was advanced by his mother, in instalments, which he says he used to renovate the former matrimonial home. I will deal with these issues more specifically below but I am not satisfied as to what the husband said in respect of those topics, absent corroborative evidence (which the husband had been given a chance to disclose but failed to provide).

DETAILED CHRONOLOGY

1. The husband was born in 1971 and is now aged 44 years old.

2. The wife was born in 1982 and is now aged 33 years old.

3. The husband asserts that he began working as a professional in 1988.

4. The husband purchased the former matrimonial home in or around 1999.

5. The parties commenced cohabitation on 25 August 2007. At the time of cohabitation, the husband also owned a property at Suburb G which was encumbered.

6. In 2008 the parties married. At this time the husband was working for H Pty Ltd as a contractor, paid through his alter ago Vardy Enterprises Pty Ltd (“Vardy Enterprises”).The wife was also working earning about $100,000 per annum.

7. For the financial year ending 30 June 2008, the husband’s salary from Vardy Enterprises was $172,500. The husbands profit from this company, above his salary, was $293,901 (from a turnover of $1,023,751). In all, the husband’s gross income was about $466,000.

8. In or about 2008 the wife’s vehicle was sold and she received proceeds of sale of $30,000 which was applied to the purchase of another motor vehicle. That new motor vehicle was sold one year later and the husband retained those proceeds of sale.

9. Also in 2008, the wife received $10,000 from a television network to appear in a television documentary.

10. For the financial year ending 30 June 2009 the husband’s annual salary from Vardy Enterprises was $192,250. The husband’s profit from this company, above his salary, was $498,118, (from a turnover of $1,354,618). In all, the husband’s gross income was about $690,000.

11. In or about 2009 the parties decided to erect a second storey on the former matrimonial home. Construction was completed by late 2010.  The parties rented alternate accommodation for around eight months during this period. To fund the construction works, the parties borrowed $250,000 in joint names. The total claimed for the work done by the principal contractor, I Pty Ltd (“I Pty Ltd”), was $338,364. The husband disputed $19,000 of that amount and I Pty Ltd later obtained judgment against him in that sum. The husband asserts the total amount paid for all the renovation work included much more than was paid to I Pty Ltd. He said the total paid overall was about $450,000.

12. There is an issue between the parties as to how much, if any, the parties received from the husband’s mother to assist in the renovations of the former matrimonial home.

13. The child was born in 2010 and is aged 5 years old. Following the child’s birth the wife took six months off work to care and nurture for her.

14. In or about October 2010 the wife returned to work as a full-time Sales Consultant.

15. At 1 January 2011 the husband owed the Commonwealth Bank $155,081 on his mortgage over the Suburb G investment property and $280,584 on the home loan over the former matrimonial home. The amount of $250,000 was also jointly owed for the renovations.

16. The wife contends the husband left his employment at H Pty Ltd shortly prior to separation in early 2011. The husband asserts this was in 2010. Nothing turns on that difference.

17. Over a period of two months from 9 March 2011, the husband withdrew $153,052 from the home loan facility, increasing the debt under that facility to about $430,000.

18. The parties separated on a final basis on 24 March 2011. Following separation the wife did not work in paid employment for approximately one year.

19. In or about mid 2011 the husband started a used car business in partnership, trading as F Pty Ltd, which operated for about one year. I infer that the husband used some of the $153,000 that he drew from the home loan to establish this new business. The husband was a director and secretary and owned two out of four ordinary shares of this company beneficially.

20. For the financial year ending 30 June 2011 the husband earned $104,639 in salary plus car allowance from H Pty Ltd. The tax returns of F Pty Ltd record a loss of $21,000 and the taxation return of the partnership shows a loss of $42,000 (Exhibit 22).

21. As already mentioned, in or about July 2011 the wife received $30,000 from the husband on the sale of the husband’s investment property at Suburb G. The husband received $100,000 from that sale. In or about March/April 2012 the wife received a further $30,000 from the husband upon the refinance of the former matrimonial home. The husband’s new borrowing was from St George in an amount of about $900,000. The husband paid $737,000 to the Commonwealth Bank as outgoing mortgagee and retained $133,000 for his own benefit. At this time the wife went back to work a full-time.

22. For the financial year ending 30 June 2012 the husband recorded that he received $20,855 by way of salary from F. At this time the husband ceased trading as F and took eight months off work. The husband candidly admitted that in 2012 he became a “bum” because he was upset with “the system” and he simply “put his hands up”. He said he had a good time while he was off work and he was entitled to spend his own money. I formed the view the husband was seriously affected by the separation and he decided to stop working as hard as he had been working. The husband during this period spent some time overseas and also spent money on dental work.

23. On 11 March 2013 St George issued a default notice to the husband for arrears of $24,892, showing a total due of $923,457. On 16 July 2013 the husband paid $8,000 cash, and on 13 September 2013 the husband paid a further sum of $16,000 by way of cheque, towards the arrears on this mortgage.

24. The parties divorced on 16 September 2013.

25. On 20 September 2013 the husband established F Pty Ltd. The husband is sole director of, and owns two of four ordinary shares beneficially in this company. The husband conceded that this business operated using his professional licence.  The other shareholder is Mr J, who is also company secretary, and is asserted by the husband to be a silent partner and the chief financier of the enterprise. The husband in fact says he himself has made no financial contribution towards this business. The husband also asserts that he does not control any of the finances of this business and all the finances of the business are controlled by Mr J. The husband did not choose to call Mr J as a witness in this case. He has not tendered any financial records which would corroborate what he says. I am unable to accept the husband’s evidence that Mr J is effectively the sole owner and controller of F Pty Ltd and I find that it is more likely than not that the husband owns and controls this business.

26. The husband paid $19,990 into his St George mortgage account in November/December 2013.

FULL AND FRANK DISCLOSURE

1. There is a lack of full and frank financial disclosure by the husband in this case.

2. Lord Brandon, for the House of Lords in Livesey v Jenkins (1985) 1 All E.R. 106 at page 114, said:

   …Each party concerned in claims for financial provision and property adjustment (or other forms of ancillary relief not material in the present case) owes a duty to the court to make full and frank disclosure of all material facts to the other party and to the Court. This principle of full and frank disclosure in proceedings of this kind has long been recognised and enforced as a matter of practice….

1. Justice Smithers in Briese (1986) FLC 91-713 referred to this discussion and said:

   The husband's counsel submitted that it was a matter for the wife to pursue her rights under the Family Law Regulations and that there was no positive obligation on the husband to do more than comply strictly with the Regulations and with orders of the Court.  He likened his client's position in this respect to that of a defendant in a civil action. 

   In my opinion this submission is not correct. I believe that a person in the position of the husband in this case has a positive obligation to set out at an early stage his financial position in a clear and comprehensive manner. The Regulations, and now the Rules, are not intended as a vehicle to mask the true position, or as an aid to confusion, complexity or uncertainty. They are not intended as the outer limits of the obligation of financial disclosure, but as providing avenues towards disclosure. The need for each party to understand the financial position of the other party is at the very heart of cases concerning property and maintenance. Unless each party adopts a positive approach in this regard delays will ensue with the consequent escalation of legal, accounting and other expenses, always assuming that a party has the strength to continue the struggle for information and understanding.

   …..

   Although the case relates to quite different circumstances, I believe that the conclusion in the House of Lords in the case of Livesey v. Jenkins (1985) 1 All E.R. 106 is apposite, namely that in financial proceedings between spouses each party must make a full and frank disclosure of all material facts.  In that case it was made clear that full and frank disclosure was required as a matter of principle in the light of the fact that it was the duty of the Court, taking into account a number of designated criteria, to make a decision which basically involved the exercise of a discretion.  This is quite different from common law litigation between strangers, in which such a general duty does not exist, and obligations would only exist in so far as statute or court rules required. 

   In my view it is fundamental to the whole operation of the Family Law Act in financial cases that there is an obligation of the nature to which I have referred.  Livesey v. Jenkins makes it clear that mere compliance with rules of court or practice directions does not alter the basic principle of the need for full and frank disclosure by the parties. …. There is an obligation on each party to act so as to provide a basis upon which the two of them are in a position to resolve the case by agreement, or proceed to a hearing, as expeditiously as may reasonably be done.

2. In Oriolo & Oriolo (1985) FLC 91-653, the Full Court cited with approval the above passages from Livesey v Jenkins and Briese.

3. In Black & Kellner (1992) FLC 92-287, the Full Court referred to the three aforementioned authorities with approval.

4. In Weir & Weir (1993) FLC 92-338 the Full Court again pointed to the line of cases leading up to the decision in Black & Kellner and commented that in cases of that type, “the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be fraught to provide a charter for fraud in proceedings of this nature”.

5. In proceedings to which they apply, the Family Law Rules 2004 (Cth) (“the Rules”) now emphasise the duty of full and frank disclosure.

6. Rule 13.01 provides a general duty of disclosure and rule 13.04 provides a particular duty of full and frank disclosure in financial cases.

CHILD SUPPORT

Should the wife’s application in respect of child support be considered before or after her application for a property settlement order?

1. An issue arose during submissions as to whether or not the wife’s application in relation to child support should be dealt with prior to the determination of any property settlement order. If it was to be considered first, it would be different to the order in which property settlement and spousal maintenance proceedings should be considered. That order is well settled. The Full Court in The Marriage of Bevan (1995) 19 FamLR 35 at page 39 highlighted the fact that s 75(2)(n) of the Family Law Act 1975 (Cth) (“the Act”) requires the court to take into account the terms of any order made or proposed to be made under s 79 in relation to the property of the parties when considering a spousal maintenance application (see In the marriage of Pastrikos (1979) 6 FamLR 497; In the marriage of Anast and Anastopoulos (1981) 7 FamLR 728; Oates and Crest (2008) FLC 93-365). In order to pay regard to the provisions of s 75(2)(n) of the Act a court needs to have in mind what property settlement order is proposed and consequently, in the usual course, deal with the property settlement proceedings first.

2. Arguably a child support application should be dealt with before a property settlement order because of the different wording in the relevant statutory provisions.

3. Section 79(4)(g) of the Act is in the following terms:

   In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account: 

   …

   (g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage. [emphasis added]

4. However, any application for child support requires consideration of matters set out in s117(4) of the Child Support (Assessment) Act 1989 (“the Assessment Act”). Section 117(4)(d) of the Assessment Act says:

   (4) In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:

   …

   (d)  the income, property and financial resources of each parent who is a party to the proceeding…

5. It therefore appears that when considering child support one needs to take into account any property settlement order that has been made (but not necessarily any order that is to be made or might be made).

6. Subsection 79(4)(g) of the Act would point in the direction of dealing with the child support issue prior to the consideration of the property settlement order. I conclude therefore that it is appropriate to deal with the issue of child support prior to dealing with the property settlement order.

7. The wife asserts that an amount of $150,000 should be provided by way of lump sum child support, on the basis that this would equate to an amount of $10,700 per annum, or an amount of equivalent value in successive years taking into account movements in the consumer price index in future years. The wife could reapply for future payments if the lump sum is expended in satisfying annual payments in accordance with periodic assessments, prior to the child’s 18^th birthday or other terminating event. What the wife proposes does not create a situation where there is a risk that the wife will be ultimately underpaid.

8. A lump sum child support order may be made under s 123A of the Assessment Act. That amount is then credited under the provisions of s 69A Child Support (Registration and Collection) Act 1988 (Cth) (“the Registration and Collection Act”).

9. Section 123 of the Assessment Act, is in the following terms:

   (1) An application may be made to a court having jurisdiction under this Act for:

   ....

   (b) an order that a liable parent provide child support in the form of a lump sum payment to be credited against the amount payable under the liability under the relevant administrative assessment.

   (2) An application under subsection (1):

   (a) may only be made if an administrative assessment is in force in relation to the child, the carer entitled to child support and the liable parent; and

   (b) may be made by the carer entitled to child support or the liable parent.

   (3) Before hearing the application, the court must hear and determine any pending application made to the court for an order under Division 3 (administrative assessments more than 18 months old) or Division 4 (departure orders) in relation to the child, the carer entitled to child support and the liable parent.

10. Section 123A of the Assessment Act is in the following terms:

    Orders for provision of child support in the form of lump sum payment to be credited against amounts payable under liability

    (1) The court may make an order that a liable parent provide child support for a child to a carer entitled to child support in the form of a lump sum payment to be credited against the amount payable under the liability under the relevant administrative assessment if:

    (a) the carer entitled to child support or the liable parent makes an application to a court under paragraph 123(1)(b); and

    (b) the court is satisfied that it would be:

    (i) just and equitable as regards the child, the carer entitled to child support and the liable parent; and

    (ii) otherwise proper;

    to make an order under this section; and

    (c) the amount of the lump sum payment equals or exceeds the annual rate of child support payable for the child under the administrative assessment.

    Note: If the court makes such an order, the lump sum payment is credited under section 69A of the Registration and Collection Act against the amount payable under the liable parent's liability (rather than reducing the annual rate of child support payable under the administrative assessment).

    (2) A lump sum payment may include a payment by way of transfer or settlement of property.

    (3) An order under subsection (1):

    (a) must specify the amount of the lump sum payment; and

    (b) must specify that the lump sum payment is to be credited against 100%, or another specified percentage that is less than 100%, of the amounts payable under the liability.

    (4) In determining the application made under paragraph 123(1)(b), the court must have regard to:

    (a) the administrative assessment; and

    (b) any determination in force under Part 6A (departure determinations) in relation to the child, the carer entitled to child support and the liable parent; and

    (c) any order in force under Division 4 of this Part (departure orders) in relation to the child, the carer entitled to child support and the liable parent; and

    (d) whether the carer entitled to child support is in receipt of an income tested pension, allowance or benefit; and

    (e) if the carer entitled to child support is not in receipt of such a pension, allowance or benefit--whether the circumstances of the carer are such that, taking into account the effect of the order proposed to be made by the court, the carer would be unable to support himself or herself without an income tested pension, allowance or benefit.

    (5) In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make an order under subsection (1), the court must have regard to the matters mentioned in subsections 117(4), (6), (7), (7A) and (8).

    (6) In having regard to the earning capacity of a parent of the child under paragraph 117(4)(da), the court may determine that the parent's earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied as mentioned in subsection 117(7B).

    (7) In determining whether it would be otherwise proper to make an order under subsection (1), the court must have regard to the matters mentioned in subsection 117(5).

    (8) Subsections (4), (5), (6) and (7) do not limit the matters to which the court may have regard.

11. If the court has made an order for lump sum child support the provisions of s 69A of the Registration and Collection Act apply in respect of that lump sum. The remaining credited lump sum is progressively reduced by ongoing child support obligations. The lump sum, or what is left of it, annually attracts notional interest by the application of an indexation factor.

Relevant case law

1. The Full Court in  Prpic and Prpic (1995) FLC 92-574 said, at 81,688:

   Capitalisation orders may well be appropriate where there are difficulties in enforcement or where it is proper to sever the financial link between the parties. However, as a general rule, given that payments of child support depend upon circumstances prevailing from time to time which circumstances cannot be predicted with any significant degree of certainty, it seems to us that the provision of child support by way of lump sum should not be considered to be a readily available alternative but one that is only exercised when there are circumstances that make it appropriate so to do.

2. Mushin J in Bendeich and Bendeich , said at 79,754:

   ... the longer a lump sum order operates the greater the chance of a change in circumstances necessitating a variation of that order, thereby making the order unjust. Those changed circumstances might be in relation to the liable parent, custodial parent or the children. Incomes may increase or decrease and children may change their living arrangements from one parent to another.

3. The cases involving difficulties in enforcement are characterised by findings such as:

   65.1.the husband is likely to manipulate his affairs to get a nil assessment - Bolton and Bolton (1992) FLC 92-309 per Cohen J at p 79,323

   65.2.the husband will do everything he can to avoid paying proper child support” - Dwyer and McGuire (1993) FLC 92-420 per Lindenmayer J at p 80,328

   65.3.the evidence establishes that the husband will not voluntarily provide any child support for the children - Hartnett vBaker (1995) FLC 92-620 per Mullane J at p 82,240

The quantum of the lump sum sought

1. The husband’s assessed rate of child support since 16 December 2013 has been $439.83 per month, which works out to be just over $5,200 per year.

2. The application made by the wife seeks a lump sum payment of $150,000 representing about $10,700 a year for 14 years from the date of her application. The child was due to begin primary school this year.

3. The effect of an order for the lump sum sought would be to make allowance for a payment of child support at a rate of $10,700 per year rather than the current rate of $5,200 per year. Counsel for the wife submits that although $5,200 is the underlying assessment, that assessment ought be double what it is.

4. The fundamental difficulty with that submission arises from the fact that the wife has not sought to make any application whether by an application to the Child Support Agency, or to this court, for departure to change the current child support assessment. As s 123(3) of the Assessment provides, the court, prior to dealing with any application for lump sum payment, would need to hear and determine any pending application for departure from the administrative assessment.

5. Counsel for the wife submitted that whilst no assessment was provided to the court, one must look at the tax returns the husband has filed, showing a large income from 2008-2010 and then a minimal income in 2013 of about $21,000. I cannot accept that submission, which is made only in the context of an application for a lump sum order, with no application made for variation of the current administrative assessment.

6. In those circumstances, a lump sum order in the sum sought would not be appropriate.

Should an order for a lesser lump sum amount be made?

1. The wife submits that in the alternate, I should exercise my discretion to provide her with a lump sum order for a lesser sum based upon the current assessment because I would conclude that the husband is entirely unreliable in terms of making payments to the wife of child support.

2. The wife points to a number of defaults by the husband which are:

   73.1.Existing arrears of child support in the sum of approximately $11,000;

   73.2.A cost order made by Registrar Campbell in the sum of $1,100 on 18 December 2012 which remains unpaid;

   73.3.A cost order made by Rees J in the sum of $3,000 on 13 May 2013 which remains unpaid.

3. Section 123A(1) of the Assessment Act provides that the court must be satisfied that it would be just and equitable as regards the child, the carer entitled to child support and the liable parent, and otherwise proper to make the order.

4. Counsel for the wife submitted that the husband has a duty to maintain the child and has failed to do this.

5. The husband has failed to make proper disclosure of his financial position and his income and has demonstrated an unwillingness to maintain the child in accordance with the assessment.

6. In submissions, counsel for the wife referred to s 117 (7B) of the Assessment Act (the husband’s current earning capacity) saying that the court should not rely upon the husband’s oral evidence that he is currently only earning about $2,300 per week. I accept that submission.

7. The court is aware that the husband has a corporate interest in F Pty Ltd, but knows nothing about how much that company is making, if anything. This information is very much in the husband’s hands and would indicate a sound basis for the court concluding that the husband is actually earning more than the said $2,300 per week

8. I have found that there has been a lack of full and frank disclosure by the husband in this case. That lack of full and frank disclosure would certainly be relevant to the question as to whether or not the current level of assessment of periodic child support is just and equitable. I accept that a lack of full and frank disclosure is also of some relevance to considering whether or not a lump sum order should be made based on the current assessment.

9. In considering the proper needs of the child, Counsel for the wife submitted that there is no evidence to suggest that the child has needs that are any different from what the Child Support Agency allows for in its assessment for the child. Although the wife submitted that it was the intention of both parties for the child to attend a private school in the future, there is no evidence of the cost of that or any particular agreement about it.

10. In determining what hardship exists, counsel for the wife asserted that there is risk in the husband in the past having had and spent amounts of $443,000, $300,000 (of his mother’s) and $70,000. It was also submitted that neither the wife nor the Child Support Agency have been able to thus far successfully enforce payment of the assessment by the husband. Counsel for the wife submitted that providing a lump sum payment to the wife now would be the best opportunity to save hardship not just for the wife, but importantly for the child. It was submitted that hardship would also be minimised by providing the wife with a lump sum payment, removing the need for the wife to have the husbands corporate interest investigated in order to have the assessment varied.

11. As mentioned above, in about July 2011 and March/April 2012, the wife received from the husband approximately $60,000 in two amounts, $30,000 each. The wife was not particularly explicit about how that money had been expended except to say that she had expended those funds upon the development costs of a business venture which was currently on hold. The development of this enterprise involved at least one trip to Hong Kong, one trip to Las Vegas and photo shoots whilst the wife was overseas. The husband made a submission to the effect that given the experience with the amount of $60,000 which the wife has expended on a yet unfulfilled business venture, he fears that any lump sum provided to her ahead of time will be quickly expended and not apportioned over the years towards the child’s needs.

12. The wife did not make any detailed submission about whether the orders sought would be otherwise proper other than this requirement would be satisfied if the order was otherwise just and equitable. I accept that is so.

13. There is no doubt that the husband is very antagonistic in terms of the wife’s claim against him, particularly in relation to alteration of property. I am less than convinced however that the husband will not pay child support for the child as the years go on. The wife may have to have his level of income tested by way of an application for a departure from the administrative assessment. It is unlikely however that the husband, given his obvious close relationship with the child, would abandon her. It is unlikely that the husband would leave the Sydney area and divest himself of all assets in order to not pay child support.

1. The husband has been a very hard and diligent worker in the past. He in fact says that he is presently working seven days a week. Clearly there was a period of time after the separation where, on his own admission, he became a “bum”.

2. Subject to the making of a property settlement order, the husband will continue to have equity in the former matrimonial home.

3. I am not satisfied that it would be just and equitable to make a lump sum order against the husband in relation to the payment of child support for effectively the next 13 years.  

4. It is appropriate however, for an order to be made that all amounts due under any child support assessment issued in favour of the wife as at the date of the making of the orders be paid by the husband within two months and in default, the wife be appointed as trustee for the sale of the former matrimonial home.

APPROACH TO PROPERTY SETTLEMENT ORDER

1. In this matter my task is to:

   89.1.Identify according to ordinary common law and equitable principles and then value the property, assets, financial resources and liabilities of the parties;

   89.2.Determine whether it is just and equitable to make an order altering those interests and if so;

   89.2.1.Identify relevant contributions and assess them;

   89.2.2.Consider relevant matters referred to in s 79(4)(d) – (g) of the Act;

   89.3.Determine what order adjusting the property, assets and liabilities of the parties is just and equitable.

BALANCE SHEET

1. The balance sheet is set out below. Because the husband failed to effectively participate in the development of the balance sheet, I am left with items and values asserted by the wife which I, on the whole, accept. Because there was not any explicit agreement on most matters, I will discuss them in order. The values I have determined are as indicated in bold in the right hand column, for the reasons set out below:

Pool 1
Assets
Item no.	Title	Description	Husband	Wife	Agreed/ Determined	Value
1	W	Interest in K Pty Ltd	Nil	Determined	$0.00
2	W	Savings	$69.00	Determined	$69.00
3	W	Household Contents	$5,000.00	Determined	$0.00
4	H	5, B Street, Suburb C	$1,500,000.00	Determined	$1,500,000.00
5	H	Motorbike	$12,500.00	Determined	$12,500.00
6	H	Interest in F Pty Ltd	Not Known	Determined	Not known
7	H	German motor vehicle	Not Known	Determined	Not known
8	H	Motor vehicle 1	Not known	Determined	Not known
9	H	Other undisclosed assets	$443,000.00	Determined	Not placed on the balance sheet
10	H	Household contents	$15,000.00	Determined	$0.00
11	H	Interest in Vardy Enterprises	Not Known	Determined	Not known
Total assets						$1,512,569.00
Pool 2
Assets
Item no.	Title	Description	Husband	Wife	Agreed/ Determined	Value
12	W	One Path Superannuation	$40,586.16	Determined	$40,586.16
13	H	BT Super	$5,815.42	Determined	$5,815.42
14	H	Australian ERF	$4,743.54	Determined	$4,743.54
15	H	MTAA Super	$2,124.52	Determined	$2,124.52
Total assets						$0.00
Liabilities
Item no.	Title	Description	Husband	Wife	Agreed/ Determined	Value
16	W	Balance of Motor Vehicle Loan	$25,000.00	$25,000.00	Agreed	$25,000.00
17	W	St George Credit Card	$5,100.00	Determined	$5,100.00
18	W	St George Credit Card	$2,000.00	Determined	$2,000.00
19	W	State Debt Recovery Office (no evidence)	$3,000.00	Determined	$0.00
20	W	Energy Australia (no evidence)	$500.00	$0.00
21	J	I Pty Ltd	$19,000.00	$19,000.00	Agreed	$19,000.00
22	H	Mortgage over Suburb C	$900,000.00	$900,000.00	Agreed	$900,000.00
23	H	Loan to Macquarie Bank	$50,000.00	Determined	$0.00
24	H	Tax Liability	$30,000.00	Determined	$0.00
25	H	CBA Credit Card	$40,000.00	Determined	$0.00
26	H	St George Credit Card	$10,000.00	Determined	$0.00
27	H	Loan to husband's mother	$300,000.00	Determined	$0.00
Total liabilities						$951,100.00
Total net assets over all pools						$561,469.00

Item 1 – Interest in K Pty Ltd

1. The wife, on her evidence, has invested $60,000 into this venture. She said the venture is “on hold”. I accept that it does not have any current value.

Item 2 – Wife’s savings

1. The wife produced evidence that her savings were $69.

Items 3 and 10 –Household contents

1. Both parties have household contents. Neither party has provided any evidence as to their actual value. I do not intend to take them into account on the balance sheet.

Item 4 – B Street, Suburb C

1. Exhibit 3 is a market appraisal provided by the wife that assesses the value of the former matrimonial home in a range of $1,480,000 to $1,520,000. That is the best evidence I have. The husband seemed to grudgingly agree that the former matrimonial home would be worth about $1,500,000 and I will accept that as the value for the purposes of these proceedings.

Item 5 – Motorbike

1. On 29 January 2014 the husband estimated that the value of his motorbike, which is six years old, was in the range of $12,000 - $13,000. I will adopt a midpoint in relation to the valuation of the motorbike, namely $12,500.

Items 6 and 11

1. For reasons that I have referred to elsewhere, it is not possible to value the husband’s interest in F Pty Ltd or in Vardy Enterprises. The husband has also indicated in oral evidence that F Pty Ltd has opened a café (I infer on the premises from which F Pty Ltd conducts its operation).

Items 7 and 8

1. The husband asserted that the German motor vehicle and motor vehicle 1 were stock of the business. I am unable to say whether that is so. The husband has provided no evidence of the value of items 7 and 8. I will mark the values as not known on the balance sheet.

Item 9 – Other “undisclosed assets”

1. Counsel for the wife asserted that the husband had available to him $443,000 as a result of drawings by the husband which were not adequately explained. That amount is calculated in the following way:

   98.1.$153,000, which was the increase in the home loan to the Commonwealth Bank over the former matrimonial home between 1 January 2011 and 9 March 2011.

   98.2.$57,000 taken from CBA facility between March 2011 and February 2012 (increasing the indebtedness from $430,451 in March 2011 to $487,288 in February 2012).

   98.3.$100,000 from the sale of the Suburb G property.

   98.4.$133,000 from the refinance of the mortgage in March/April 2012.

2. I find the husband received these amounts. The husband has not provided any coherent explanation as to what has happened to these monies. The wife wants the amount “added back” to the balance sheet. Given that I am uncertain about the current existence of these funds, I shall not put these monies on the balance sheet. It is likely the husband expended some of the funds when he opted out of the workforce in 2012 and 2013 and expended some of the funds on his current motor dealership. I will take the funds the husband received into account when considering the contributions made by the parties.

Items 12, 13, 14 and 15 – Superannuation

1. The value of the superannuation of the parties as asserted by the wife is substantiated by Exhibits 4, 5, 6, 7.

Items 17 and 18 – St George credit cards

1. The amounts in relation to the two credit cards the wife has with St George are verified by Exhibit 8. I shall infer that the wife has used these amounts for living expenses and I will include them on the balance sheet.

Items 19 and 20

1. Counsel for the wife conceded during final submissions that there was no evidence for items 19 or 20 and those items will be marked nil on the balance sheet.

Items 23 to 26

1. In relation to these items, I accept that the husband has those liabilities. The husband was cross examined in relation to those liabilities and conceded in relation to each of them that they were not liabilities for which the wife should liable in any way. I will accordingly mark them nil on the balance sheet.

Item 27 – Husband’s asserted loan to his mother

1. In relation to item 27, one central issue of contention in this case is the assertion by the husband that an arrangement was entered into between his mother and the parties for his mother to sell her home at Suburb L to assist in the financing of the renovations that were carried out to the former matrimonial home in 2009 and 2010. The husband says an amount of $300,000 was received from his mother and it was part of this arrangement that his mother would receive accommodation at the renovated former matrimonial home. It was also envisaged that she would be able to assist in looking after the child in the event that the wife returned to work.

2. The wife’s solicitor’s caused a letter to be sent to the husband’s mother (and also the husband’s solicitor) which notified the husband’s mother of the wife’s application to have the former matrimonial home sold and which indicated that the husband’s mother had a right to intervene in the proceedings and should immediately seek independent legal advice. The letter also set out the two future hearing dates that were scheduled. I am satisfied that the husband’s mother was given notice of these proceedings and has chosen not to seek to become a party to them.

3. The wife conceded in cross examination that there was a plan that the husband’s mother would sell her house and some of the money from the sale of the house would go towards paying for some of the renovations, which would accommodate the husband’s mother as well.  She however asserted that she was unaware of any financial arrangement between the husband and his mother, and she stated she did not know if the plan in respect of the provision of funds from the husband’s mother to the husband was ever put in place.

4. It also seems to be an uncontested fact that Suburb L was in fact sold by the husband’s mother and she did in fact come and live at the former matrimonial home. What is a matter of dispute is whether or not any money was provided by the husband’s mother to the husband from the proceeds of the sale of Suburb L.

5. On 29 January 2014 I made the following direction:

   21.  As soon as possible, the husband provide to the wife’s lawyers copies of any bank statements showing any payments made to the husband by his mother together with any documents his mother received from her solicitor at the time the [Suburb L] property was sold.

6. No documents were provided by the husband at all in that regard.

7. The only relevant documents that are before the court are those that were provided during discovery at the time when the husband was legally represented. Exhibit 11 is a letter written by solicitors who were then acting for the husband dated 7 February 2012. That letter asserts that the husband’s mother sold her property in Suburb L in December 2010 for an amount of $350,000 and lent $300,000 to the husband, “on a mortgage secured by a caveat to [the husband] to pay [I Pty Ltd] to renovate and thus enable [the husband’s mother] to live there and help mind [the child]”. Attached to that letter are two documents, the first is a mortgage dated 1 February 2012 which on its face appears to be signed by the husband’s mother. It is accompanied by a caveat dated 3 February 2012 signed by the husband’s solicitors on behalf of the husband’s mother. The husband conceded during cross examination that both documents were drawn by his solicitor and that his mother had no independent legal advice. A title search was annexed to both the husband’s affidavit filed 23 October 2012 and the wife’s affidavit filed 28 April 2014. The encumbrances on the former matrimonial home are a mortgage to Westpac Banking Corporation, a caveat by the wife and a caveat by I Pty Ltd. It appears that the mortgage to the husband’s mother was never registered on title nor was the caveat lodged. The mortgage and the caveat were drawn well after the separation of the parties and not at the time the husband’s mother allegedly lent $300,000 to her son.

8. I am unclear on the face of the evidence as to whether or not the husband’s mother continues to reside in the former matrimonial home. The wife asserts in paragraph 63 of her affidavit filed 28 April 2014 that six months prior to that time her former mother-in-law moved out of the former matrimonial home and at that time lived at Suburb M with a friend whilst she awaited government housing. The husband did not seek to ask the wife any questions about those assertions.

9. The husband also conceded during cross examination that he may not have received the whole $300,000 from his mother. The husband indicated that not all the money his mother received from the sale of her Suburb L property was given to the parties for renovations. His mother kept and spent some playing the poker machines.  

10. Even taking into account the parties’, and particularly the husband’s extravagant lifestyle, given the large amount of money that the husband earned by personal exertion during the 2009 and 2010 financial years, and the fact that the parties borrowed $250,000 for the renovations, I have grave doubts as to whether the husband needed any money from his mother in order to complete the renovations to the former matrimonial home.

11. The husband’s failure to call his mother as a witness and to produce any documentation to support his claim that his mother provided him with funds from the proceeds of the Suburb L property, whether for renovations or otherwise, means that I am left in the position where I cannot accept his assertions in that regard and consequently I will discount them entirely.

12. Accordingly I will record the husband’s debt to his mother as nil.

WHETHER AN ORDER ALTERING INTERESTS SHOULD BE MADE

1. The parties have separated and their partnership has ended. After the separation, there was no longer a continuing commitment to the mutual use of assets and a shared responsibility for liabilities. As the balance sheet set out above demonstrates, the known assets and liabilities (excluding superannuation) remaining with each party are $612,500 in assets held by the husband, $19,000 in joint liabilities, and $35,531 in liabilities in the wife’s name.

2. I find that in all the circumstances, it is just and equitable to make an order altering property (including adjusting liabilities).

CONTRIBUTIONS

1. When the parties commenced living together the husband was the manager of H Pty Ltd and was earning about $300,000 per annum. The husband’s assets and debts comprised of:

   118.1.The former matrimonial home, and a mortgage secured over that home of approximately $500,000;

   118.2.The unit at Suburb G worth $300,000, and a mortgage secured over that property of about $200,000;

   118.3.A luxury motor vehicle worth about $100,000, and a motor vehicle lease of $100,000; and

   118.4.Credit card liability to the Commonwealth Bank of approximately $100,000.

2. At the commencement of cohabitation the wife was working full time as an interior designer and was earning about $100,000 per annum. The wife’s assets and liabilities comprised of:

   119.1.A German motor vehicle worth approximately $40,000;

   119.2.Approximately $10,000 in savings;

   119.3.Credit card liability to St George of $40,000;

   119.4.Jewellery worth $30,000; and

   119.5.Household items, furniture and furnishings worth approximately $20,000. (At around this time the wife received the majority of the estate of her former partner. The estate included items of furniture, household items and electronics.)

3. I have set out above some relevant facts in relation to the financial history of the parties during the period of three years and seven months the parties were together.

4. Following the child’s birth the wife took approximately six months off work to care and nurture for her. The wife again took time off work again following separation for about one year to care for the child.

5. The wife says she used her savings of about $10,000 to decorate the former matrimonial home, and she spent a further $5,000 on additional furnishings when she moved in. The wife asserts she made monetary contributions towards groceries, a number of holidays, and entertainment on a weekly basis. At home, the wife says she performed all homemaker and parent duties throughout the marriage.

6. Both the parties indicated that the husband’s mother was also of a great assistance to them in caring for the child.

7. After the separation, as referred to above, the husband had the benefit of $443,000 worth of cash drawn down against security on the former matrimonial home and from the proceeds of the sale of the Suburb G property. I infer a good deal of the money the husband drew down after the separation has gone into his new business ventures and the court has not been provided a full disclosure by the husband as to what the current situation is in respect of those ventures.

8. I have already referred to the fact that the wife received from the husband approximately $60,000, in two amounts of $30,000 each, and has largely expended those monies on a yet unfulfilled business venture.

9. The husband also paid for the wife’s motor vehicle after the separation for a period of time.

10. The husband gave evidence that in 2012 a motor vehicle which he had financed through Macquarie Bank, and which was insured, was written off. He received $70,000 from the insurance company by way of a payout but did not at any time finalise his obligations to Macquarie Bank and still has an outstanding liability of $50,000. I have not included that liability on the balance sheet.

11. There is no doubt that the husband had significant earning capacity and assets coming into the cohabitation and marriage. During the period of time the parties were together the parties contributed as best they could in their respective roles ,and since the separation both parties have played their part in caring for the child. The wife has also contributed towards the child’s pre-school costs and health insurance.

12. On 20 July 2012, the parties signed a parenting plan which actually provided that the child would be with the husband eight nights a fortnight. That has not been adhered to by the parties and the parenting has been shared reasonably equally.

13. Given the unknown value of the assets held by the husband there is little point in making any finding about the proportion in which net assets should be divided based on contributions.

FUTURE NEEDS - SECTION 79 (4)(d) - (g) MATTERS

1. The wife is 33 years old and the husband is 44 years old.  There is no evidence before me that either party is other than in good health. Both parties are actively involved in the care of the child, with the time the child spends with the husband varying from 3-4 nights per week.

2. During the hearing the husband asserted that he was not currently making a large amount of money and on some occasions and during some periods his outgoings exceeded his income.  I am unable to accept the husband’s protestations absent him properly providing documentation to establish what he was asserting. The husband has significant experience in his profession and has the benefit of having a professional license. The most reliable objective guide as to the husband’s earning capacity are the earlier financial years when his income was set out in his tax returns. His 2008 and 2009 income from his work as a dealer is probably some guide as to his current earning capacity. Counsel for the wife argued that the husband’s disclosure obligations and his failure to meet them mean that I do not need to be unduly cautious about making findings about the husband’s earning capacity which are favourable to the wife.

3. In her affidavit the wife says she is presently on a salary of $80,000 per year plus commission (although her pay slip is some indication her salary may be less than that). Her earning capacity is significantly less than the husband’s. The wife asserts to be currently paying off the balance owing to the child’s previous day-care provider, ongoing pre-school fees, rent at $380 per week, debts to the State Debt Recovery Office and Energy Australia and an overpayment of parenting payments from Centrelink.

1. The husband has not complied with his obligation to pay child support for the child and is in arrears of over $11,000. An order shall be made to secure the payment of child support arrears at the date of judgment. I find that there is reasonable prospects that the husband will comply with his child support obligations after the litigation is concluded.

2. The child will continue to primarily live with the wife into the future and the costs of meeting her needs will undoubtedly increase as she grows older.

3. I am comfortably satisfied that the husband has an interest of significant value in F Pty Ltd which he has failed to disclose.

JUST AND EQUITABLE

1. Counsel for the wife did not attempt to do any analysis in percentage terms based on contributions and s 79(4)(d) – (g) matters. I am also unable to do this.

2. The pool of known assets is $561,000. Counsel for the wife submits that a just and equitable outcome would be for the wife to receive a sum of $300,000. I do not think that would be just and equitable considering the wife did not really make any contribution to the former matrimonial home. The husband purchased this property in 1999. The husband also made a far greater financial contribution during the years of the marriage. The evidence suggested that the husband seemed to pay for the majority of expenses during the marriage.

3. The wife continues to earn income in a gross amount of $1,900 per week.

4. The husband asserted his ability to raise funds was something which was dependent upon how much he was ordered to pay the wife. He did however say in evidence that it might be possible to raise monies to enable him to retain the former matrimonial home and that his silent business partner, Mr J, was an old sickly man who was of some substance.

5. Accordingly, it would be appropriate to give the husband a period of time to pay the wife the amount ordered. That period of time will be two months.

6. The husband showed a great reluctance to pay the wife any sum of money more than that which he has already given her.

7. It is appropriate in the circumstances of this case, given the husband’s attitude towards paying any money to the wife, that if he defaults after a period of two months, the wife should be allowed to sell the former matrimonial home and it would be appropriate for her to be the trustee of that sale.

I certify that the preceding one hundred and forty-three (143) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 29 May 2015

Associate: 

Date:  29 May 2015

SCHEDULE 1

AMENDED MINUTE OF ORDER SOUGHT BY THE APPLICANT WIFE

1. That the Husband shall within 28 days of the date of these Orders pay to the wife:

   a.        By way of property adjustment order the sum of $300,000.00;

   b.By way of child support in the form of a lump sum under section 123A of the Child Support (Assessment) Act 1989 the sum of $150,000, such sum to be credited against 100% of the husband's liability under any relevant administrative assessment;

   c.If order 1(b) is not made, then all amounts due under child support assessments issued in favour of the wife as at the date of the making of these Orders; and

   d.All amounts due under costs orders made against the husband in these proceedings as at the date of the making of these Orders

2. That in the event the Husband shall fail, refuse or neglect to pay any of the sums to the Wife as referred to in Order 1 herein:

   a.The wife is appointed trustee of sale of the former matrimonial home situate at and known as B Street, Suburb C in the state of New South Wales (being the whole of the land contained in Certificate of Title Folio Identifier 1/943517);

   b.By way of implementation of order 2(a) the husband shall forthwith do all acts and things and sign all documents necessary and required of him by the wife to enable the wife to sell the former matrimonial home as trustee pursuant to order 2(a);

   c.The husband shall vacate the former matrimonial home within 42 days of the date of the making of these Orders;

   d.The wife shall forthwith sell the former matrimonial home for the best price reasonably obtainable with such agent as the wife may appoint, such sale to be by way of public auction on a date not less than 8 weeks after the date of the agent's appointment, and the reserve price to be no lower than that recommended by the agent;

   e. On settlement of the sale of the former matrimonial home the wife shall distribute the proceeds of sale of the former matrimonial home in the following order and priority;

   i. In discharge of the mortgage to St George Bank Limited secured against the title of the former matrimonial home;

   ii. In payment of legal costs and real estate agent's commission upon the sale;

   iii. In payment of adjustments as between vendor and purchaser in relation to council rates, water rates and water usage;

   iv. In payment to the Wife of $300,000.00 together with interest thereon at the rate specified by the Family Law Rules 2004, as and from the date for payment in accordance with Order 1(a) herein, to the date of payment to the Wife;

   v. In payment to the wife of the sum of $150,000 pursuant to order 1(b), if applicable;

   vi. In payment to the wife the sum referred to in order 1(c), If applicable;

   vii. In payment to the wife the sum referred to in order 1(d); and

   viii. In payment of any balance remaining to the Husband.

3. That pending payment by the Husband to the Wife as referred to in Order 1 herein and pending completion of the sale of the former matrimonial home referred to in Order 2 herein, the Husband shall pay and bear as and when they fall due all instalments of principal and interest in relation to the said mortgage to St George Bank Limited, all water rates, land rates and other outgoings in respect of the former matrimonial home and the Husband shall indemnify the Wife in relation thereto.

4. That pending payment by the Husband to the Wife and pending completion of the sale of the former matrimonial home referred to in Order 2 herein, the Husband shall be restrained from further charging or otherwise encumbering the former matrimonial home and/or dealing with the property by way of transfer, lease or in any other manner, except as provided for by these Orders to the contrary.

5. That each party shall be solely responsible for payment of any liability in their sole name, including credit card debts and each party shall indemnify the other in relation thereto.

6. That the Husband be solely liable for any debt owed by the parties to I Pty Ltd Constructions Pty Limited and the Husband shall indemnify the Wife in relation thereto.

7. Unless otherwise specified in these Orders, that the Husband retain and is declared to be the sole legal and beneficial owner of all his right, title and interest in and to:

   a.        All cash at bank and other monies invested by him;

   b.        Any interest in a corporation or business that he may have;

   c.        Any shares held by him;

   d.        All and any superannuation entitlements he may have;

   e.        Any motor vehicle and/or motor bike he may own;

   f.         Furniture and furnishings in his possession; and,

   g.        All personal effects in his possession.

8. Unless otherwise specified in these Orders, that the Wife retain and is declared to be the sole legal and beneficial owner of all her right, title and interest in and to:

   a.        All cash at bank and other monies invested by her;

   b.Any interest in a corporation or business that she may have;

   c. Any shares held by her;

   d.        All and any superannuation entitlements she may have;

   e.        Any motor vehicle she may own;

   f.         Furniture and furnishings in her possession; and,

   g.        All personal effects and jewellery in her possession.

9. In the event that either party refuses or neglects to execute any deed, document or instrument required to give effect to these Orders a Registrar of the Court or their appointee, pursuant to section 106A of the Family Law Act, may execute such deed, document or instrument in the name of such party and do all such acts and things necessary to give validity to the operation of such deed, document or instrument.

10. That the Husband pay the Wife's costs of and incidental to these proceedings.