Vasilias & Vasilias

FAMILY COURT OF AUSTRALIA

VASILIAS & VASILIAS

[2008] FamCA 34

FAMILY LAW – PROPERTY – Determination of pool – liability claimed for loan outstanding to parents – taxation liability for period subsequent to separation

FAMILY LAW – PROPERTY – CONTRIBUTION – Husband alleges wife’s housekeeping role inadequate – evaluation of contribution at commencement of relationship – wife claimed contribution made more difficult because of husband’s violence by inference rather than specific evidence – contribution by wife subsequent to separation because of children

FAMILY LAW – SPOUSAL MAINTENANCE - Claim for lump sum where small pool – wife has capacity to work

FAMILY LAW – CHILD SUPPORT – Wife sought contribution to private school fees and health insurance where periodic assessment is monthly minimum - question of appropriateness of an order

FAMILY LAW – Fraud of parties on the Commonwealth – referral to Centrelink – difficulty created by s 128 certificate under the Evidence Act 1995

Child Support (Assessment) Act 1989 (Cth)
Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

D & W (unreported, Family Court of Australia, Halligan JR, 14 February 1997)
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143; 30 Fam LR 355
HMP Industries P/L v Robert Graham [1996] NSWSC 371 (27 August 1996)
In the Marriage of Lee Steere (1985) FLC 91-626
Kennon (1997) FLC 92-757
Malpass and Mayson (2000) FLC 93-061
Mudge and Mudge (unreported, Family Court of Australia Full Court, Ellis, Lindenmayer and Brown JJ, 13 October 1998)
P and P [Tax evasion] (1985) FLC 91-605
Pierce and Pierce (1999) FLC 92-844; 24 Fam LR 377
T and T (1984) FLC 91-588
Way and Way (1996) FLC 92-702

APPLICANT:

MRS VASILIAS

RESPONDENT:

MR VASILIAS

FILE NUMBER:

MLF

3158

2005

DATE DELIVERED:

31 January 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

14, 15, 16, 17 & 18 JANUARY 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR CANTWELL

SOLICITOR FOR THE APPLICANT:

HOGG & REID

COUNSEL FOR THE RESPONDENT:

MR MORT

SOLICITOR FOR THE RESPONDENT:

BERGER KORDOS

Orders

That the Registry Manager of the Melbourne Registry of the Family Court of Australia refer to Centrelink Investigations Unit, a copy of these reasons for judgment.
That by 4.00pm on 14 March 2008 (the due date), the wife pay to the husband the sum of $58,665 (the settlement sum).
That contemporaneously with the payment of the settlement sum on or before the due date, the husband do all acts and things and sign any necessary document to transfer to the wife, at the expense of the wife, all of his interest in the real property at …, R (the home).
Contemporaneously with the payment of the sum due, the wife do all things necessary to obtain a discharge of the ING Home Loan Saver liability and the ING Smart Home Loan encumbering the home.
That from the date of these orders, the wife be responsible for, pay and indemnify the husband in respect of all rates and utilities associated with the home.
That upon the payment of the sum due:
(a) Paragraph 6 of the orders made on 6 July 2006;
(b) Paragraphs 8 and 9 of the orders made on 7 December 2005,
are discharged.
That in the event that the wife:
(a) Fails to pay the settlement sum by the due date; and
(b)Fails to provide a discharge of the liabilities referred to in paragraph (4) of these orders,
then, the husband shall have the option to pay to the wife the sum of $174,334 by no later than 42 days after the due date. If the husband exercises the said option and makes the said payment as required, he shall be responsible for and indemnify the wife in relation to all liability concerning the ING Home Loan Saver and ING Smart Home Loan liabilities and upon the wife receiving the said sum referred to in this paragraph, she shall immediately vacate the home.
In the event that the wife fails to make the payment of settlement sum by the due date and the husband fails to make the payment referred to in paragraph (7) hereof, then the husband do all such acts and things and sign any necessary document as may be required to place the home on the market for sale with an estate agent nominated by the wife to be sold by auction as soon as practicable thereafter.
That for the purposes of the sale of the home, the wife shall nominate the legal practitioners responsible for the conveyancing.
Upon the sale of the home, the proceeds shall be divided as follows:
(a) First, to pay all costs, commissions and expenses of the sale;
(b)Secondly, to discharge the ING liabilities referred to in paragraph (4) of these orders;
(c)Thirdly, to pay to the husband, the settlement sum of $58,665; and
(d)Fourthly, to pay the balance to the wife.
That there be general liberty to apply in relation to the terms and conditions of the sale and the implementation of it under these orders.
That each party otherwise retain and the other relinquish any interest in, all of assets in their respective possession and control.
That pursuant to s 124 of the Child Support (Assessment) Act 1989 (Cth) the husband pay to the wife all of the school fees of the children at J primary school until the completion of their primary school education and the fees for the attendance of the children at the current Greek school at which they attend until they complete their primary school education referred to, such payments to be made as and when they fall due.
That the payments referred to in paragraph (13) hereof are not to be credited against any administrative assessment for child support for which the husband is responsible to make a payment.
That if at the due date, there are outstanding fees to either the J primary school or the Greek school, those sums shall be reduced from the payment due by the wife to the husband averted to in paragraph (2) of these orders and any liability still remaining pursuant to paragraph (12)(a) of the orders made on 7 December 2005 is discharged.
That if the husband’s companion Ms A removes the children … and … from her private health insurance policy covering all medical and hospital expenses of the children, the husband pay and be responsible for the expense of covering the children for private health insurance at the same level that covered them as at the time that the husband cancelled his private health insurance and any payment so made by the husband as a result of being personally responsible for the health insurance of the children shall not be adjusted against any assessment of child support.
That all extant applications of either party be otherwise dismissed save as to any application for costs by either party.
That any issue as to costs be determined upon written submission to Justice Cronin and any such application for costs:
(a)Be filed with the Associate to Justice Cronin by 4.00pm on 15 February 2008; and,
(b) Be served upon the other party by that date.
That in the event that an application is made for costs by either party pursuant to paragraph (18) hereof, that other party shall have until 4.00pm on 29 February 2008 to reply.
That if no further application by either party is filed by the date referred to in paragraph (18) hereof, all applications shall be deemed to be dismissed.
That all proceedings be otherwise removed from the list of cases awaiting a hearing.
That on 3 March 2008, all exhibits be returned to the party who produced them.
That all material produced under subpoena be forthwith returned to the recipient of the subpoena.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Cronin delivered this day will for all publication and reporting purposes be referred to as Vasilias & Vasilias.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3158 of 2005

MRS VASILIAS

Applicant

And

MR VASILIAS

Respondent

REASONS FOR JUDGMENT

These are proceedings between the husband and the wife relating to property settlement, spousal maintenance and child support. Affecting all of that is an argument about Centrelink fraud. When the proceedings began, there were also unresolved parenting issues. The parties compromised their respective positions and subject to the issue of the retention of the former matrimonial home which affects the changeover, I made orders finalising all outstanding issues concerning their children. The orders I now propose to make, resolve that changeover issue.
The parties have not divorced. Throughout these reasons for judgment I shall refer to them as husband and wife.
The contentious issues between them relating to financial matters are:
(a)what assets there are presently or which should be added back to the pool for division;
(b)what contributions each party has made and in particular, how to treat a debt claimed by the husband as owing to his parents from a period prior to the commencement of the marriage;
(c)what assessment and weight to be given to the various contributions during the relationship;
(d)what adjustments should be made for the respective futures of the parties having regard to the matters set out in s 75(2) of the Family Law Act 1975 (Cth) (“the Act”); and
(e)the determination of the respective earning capacities and income such as would affect child support, spousal maintenance and any adjustment for s 75(2) of the Act.
Whilst that sets out the parties’ issues, there is the underlying issue about the Centrelink fraud.
The husband was born in February 1964. He is 43 years of age. He is currently exclusively engaged in a self-employed capacity running a transport business. Throughout the relationship, he has been in partnership in relation to a taxi business, taxi driving as a self-employed person and truck driving as an employee.
The wife was born in May 1969 and is currently 38 years of age. At the time that the parties commenced their relationship, she was working in a shop and throughout the relationship, her activities outside of the home have been predominantly in that area. During the relationship, the wife was occupied on a full-time basis as a homemaker and parent but has also been involved in the transport business conducted by the husband.
The parties began their relationship in 1982 but did not live together until they married in January 1993.
The first issue I propose to deal with relates to the question of a fraud on the Commonwealth of Australia by one or both of the parties in relation to payments received between 1999 and 2005 from Centrelink. There are other issues connected with that relating to child support but they are less important.
The husband said that he found out and for the first time, became aware at separation, that for a period between 1999 and 2002, the wife had secretly applied for a Commonwealth government pension on the basis that she was a single parent in addition to which, she applied for an assessment of child support against him but never arranged its collection. According to the husband, the wife received significant benefits from the Commonwealth over a period of years depositing them in a National Australia Bank savings passbook account about which he knew nothing until he found a passbook.
To support his contention that he knew nothing about this fraud, the husband gave evidence that when the wife attended with police to collect her belongings, he saw her kneel on the floor in front of the ducted heating vent which she pulled from the wall and removed substantial items from a cavity in the wall. Significantly, he said that two police officers whom he named, were watching this unfold. It becomes important in this case to say that this evidence was disputed by the wife. The named police were not called to give evidence. Furthermore, the husband called to give evidence Mr C. His evidence was that the day after the police attendance, he met with the husband and in sheer disbelief watched as the husband pulled from the cavity in the wall a series of documents which corroborate the existence of the fraud. In cross-examination, Mr C conceded that it may have been as late as two weeks after the police attended rather than as he had set out in his affidavit but rather candidly conceded that the husband may very well have planted the documents there himself. Mr C seemed to me to be an honest witness making appropriate concessions but in the end, his evidence was of little assistance to the husband nor of any great relevance to the case for reasons that will unfold in this judgment.
There was no evidence in the wife’s affidavit of evidence in chief including that filed in January 2008 about the issue of the fraud generally nor specifically about the document supposedly found in the cavity in the wall. When cross-examination of the wife began, it was put to her that from 1998, she received a pension. She said she did not wish to answer the question on the ground that her answer may be incriminating.
An acknowledgment by the wife to such a question may have tended to prove that she had committed an offence against Australian law because at no time in her evidence did she allege that prior to 2005, the parties had separated such as would entitle her to apply for some type of Commonwealth benefit.
This evidence was important because of two things. First, the husband was alleging that the pension money had been used by the wife for a purpose that, if accepted, would show a diminished contribution by her as a homemaker. That is, the wife had been on the telephone for long periods of time instead of doing housework and to somehow avoid the telephone bills coming to his attention by using his money, she used her ill-gotten gains. Secondly, the husband was alleging that the wife was not a truthful witness and he wanted to test that assertion no doubt arguing that the evidence was of probative value.
Both counsel were aware of the problem before the wife began her evidence so the s 128 issue did not come as a surprise. Under s 128(2), I was satisfied it was reasonable for the wife to raise the objection.
Under s 128(5), I was satisfied that:
(a)the evidence may have tended to prove an offence had been committed; and
(b)the interests of justice required that the evidence be heard.
Accordingly I granted the wife a certificate in respect of that evidence. Whilst that protects the wife, it does not protect the husband.
The effect of s 128 is to ensure that evidence given in these proceedings cannot be later used in relation to other proceedings be they criminal or civil. The purpose to which any evidence in the proceedings might otherwise be used is not a matter about which I have to be concerned.
The wife’s version could not be more starkly contrasted. She conceded that she had been involved in the scam over the period and the facts that I have just set out were quite correct. The contrast lies in the fact that she asserted that not only was the husband fully aware of what was going on but that he forced her and threatened her in 1999 to go and commence the fraud. According to the wife, he hit her, was screaming at her and threatened to take the children away. When asked why she continued it, the wife said she was scared because she thought that apart from losing the children, she would end up in gaol. This evidence came out in re-examination. In cross-examination, the wife indicated that her solicitors had been aware of the problem all along notwithstanding that it had never been mentioned in correspondence. Whilst being cross-examined, the wife was asked why the husband would bring up such a matter to the Court’s attention and she replied that she had no idea but he was implicated in the fraud. She said she did not mention the issue because of fear. Her very clear position was that the husband was responsible.
The sum of money received by the parties was significant. On the wife’s version, those funds were drawn from the passbook account and used for living expenses but more importantly, a significant proportion went towards the renovation of the home. The husband’s version was that the wife had not accounted for the funds at all but that they were used to pay for the international telephone calls associated with an affair to which I shall refer as well as significant telephone calls to a woman by the name of Ms K whom the wife met through the internet and who lived in Greece.
When the husband filed his affidavit material, he made his assertions about finding the documents. Throughout the proceedings until the hearing began, the wife had remained silent although she said that from the start, she had told her legal practitioners about the scam. When the wife gave evidence, she declined to answer questions on the basis that her answers would incriminate her. For reasons I have already mentioned, I granted her a s 128 certificate under the Evidence Act 1995 (Cth) and made orders accordingly.
The evidence upon which the wife relies about the scam is scanty. She said that she had no bank records and her counsel was very critical of the husband who produced an old bank passbook in cross-examination. The wife acknowledged that the book was hers and it showed significant transactions in 1999 and 2000. I queried how this scam would not have been picked up by the Child Support Agency and in particular, how as a pension recipient, the Agency was not collecting the payments. The wife said that that occurred because the Agency accepted that there was an agreement. Both solicitors spoke with the Child Support Agency and the agreed position was that if the parties had an agreement for the Agency not to collect, that would have been acceptable. However, I was left uncertain as to whether that was the applicable policy in 1999 or something more recent.
The wife’s evidence was that each time she went to the bank, she was accompanied by the husband. She withdrew the money from the account and gave it to him and that it went towards renovations and payment of bills. She was queried about the renovations and she confirmed that that was what the money was used for. When asked in cross-examination when the money was so used, she said that it was from when the parties had been married. When told that that was illogical because it was 1993 and the scam commenced in 1999, she said that the renovations started in 1993. She went on to repeat that the money had also been spent on bills. She was unsure when the original tenants who had lived in the matrimonial home prior to its renovation moved out but said that it was after that that the home was renovated. When re-examined, the wife said that the renovations such as a new kitchen, spa, garden and decking were all undertaken between 2001 and mid-2005.
The husband’s position about the scam was completely the opposite. He said that he found the passbook in a filing cabinet but that he had not disclosed the document. He was very vague as to where it had been.
The husband was cross-examined about the scam and it was directly put to him that he had orchestrated the scam by threatening the wife. He was emphatic in his denial of that. It was suggested to him that Centrelink would have been provided with names to obtain the pension and he acknowledged that that was so but he could not say who the names were. It was put to him that his sister was used and another person by the name of Mr N. He denied each of those persons was nominated. There was no evidence before me to give rise to that cross-examination and I do not know whether appropriate government records confirm or refute the assertions.
It was put to the husband that for a period of five years prior to separation, both parties went to the bank and withdrew the money but the husband denied that. The husband maintained his absolute ignorance of the scam.

The ignorance obviously gave rise to the question of where the money went. The husband hypothesised that the wife had used the money for telephone calls of an international nature. He said that he found out about the telephone calls in December 2003 some 18 months prior to separation but said that at that time, he thought the wife was paying the telephone bills from the transport business money. He confirmed that he did not call his accountant nor was he making any assertion about the fact that money might have been missing. It was effectively put that the husband’s explanation was implausible.
The husband maintained that the renovations that the wife pointed to were done by he and some trades people largely on a bartering system. He confirmed that none of the quid pro quo work would appear in any of his income tax returns.
In cross-examination about these renovations, the husband pointed to the fact that the garage was the first major renovation and that was done in 1996. That was well before the scam commenced. It was put to the husband that the spa, pergola, decking and rendering were all done between 1995 and 2005. The husband’s evidence in relation to that was that the kitchen renovation also preceded the scam because that was done in 1997. In relation to the roof of the pergola, he said he gave the tradesmen cash for the material and exchanged labour under the bartering system. He said the landscaping was done by Mr B but he supplied the grass again using the bartering system for the work. He was asked about the granite bench tops in the kitchen but he made clear that was not part of the bartering system and that he had paid cash for those items. The other matter of some cross-examination related to the rendering of the home which changed its exterior extensively. He said that that was paid half in cash.
The husband was asked whether he had any documents in relation to these matters and he indicated that he did not have.
Counsel for the husband in re-examination produced documents that the husband had found in a “box” during either the weeks before the trial or during the trial itself. Counsel for the wife complained bitterly that this was trial by ambush. Some documents I admitted but others I refused to allow to be presented either on the basis that under Rule 13.14 of the Family Law Rules 2004, significant time had elapsed since the husband had filed his affidavit and it would have been abundantly clear that every issue associated with the finances of this particular case was disputed. However, I also ruled inadmissible some of the documents that the husband wanted to present on the basis of s 135 of the Evidence Act 1995 (Cth) because to accept them at that stage would have caused an undue waste of time because the wife would need to be recalled and/or have an opportunity to make inquiries and possibly rebut that evidence.
In addition to the bizarre facts to which I have referred, the wife alleged that the relationship with the husband was one which was affected significantly by violence. With the issue of the children’s matters concluded, I queried the relevance of the conduct matters to the financial issues that I had to determine. Counsel for the wife said that I was asked to infer because of the nature of the violence, the wife’s ability to contribute within the relationship had been significantly and adversely affected. Counsel used the word “inferred” because there was no evidence about how difficult her role as a homemaker and parent had been as a result of the violence. Ironically, the husband’s case was that the wife’s approach to homemaker duties was less than diligent and the wife was emphatic in her denials.
The wife alleged that the husband regularly threatened and denigrated her and that there were numerous occasions of physical violence. In relation to denigration and threats, when cross-examined, the husband agreed that there was the use of words such as “slut” and “whore”. His explanation was that he “retaliated”. He denied any threats otherwise. When it was put to him that the adjective “fucking” was put before the word “whore”, he denied that he used any such sort of language towards the wife. The wife asserted that this was a common theme in the marriage as did the husband about the wife. It was put by the wife that she commenced the criminal activity to which I have earlier referred as a result of the husband’s violence and threats. The husband could do no more than deny that because he said he had no knowledge of the scam until the time of separation. Either way, the finding of the fact in relation to violence within the marriage has serious consequences. The determination of those findings is covered by s 140 of the Evidence Act 1995 (Cth) and in particular, s 140(2) requires that a court may take into account the gravity of the matters alleged. That is particularly difficult in this case where the versions are diametrically opposed and there is no objective evidence to corroborate either party. In circumstances where there are broad generalisations, it is inappropriate to make any finding and in this case, I propose not to do so. However, where there are assertions with particulars as to time, place and incident, the same concern about making findings arises.
In the very first year of the marriage, the wife alleged that the husband punched her around the face as a result of which she was bruised and had a black eye that lasted for several days. She said she attended her doctor and the injuries were recorded.
The husband was asked about this incident. He was questioned whether the wife went to the medical practitioner. He said he knew nothing about it. He was asked about whether he was aware of a police incident report. He looked at a document given to him and said that he knew nothing about it. He said he could not even recall the police attending the house.
No evidence was called from the doctor or the police and it may very well be that that evidence was no longer available anyway having regard to the effluxion of time.
Of some significance however was that the next incident alleged by the wife occurred in 2002.
Counsel for the wife urged me to accept that the relevance of the evidence related to the question of the assaults affecting the wife’s contribution. He said that the second issue related to the question of the wife being threatened by the husband such as to force her commence the scam and then subsequently to continue it. The scam occurred in 1999. The wife’s evidence was that the assaults occurred in 1994 and then 2002.
She referred to a further incident in or about July 2002 where she was punched over her upper body and again attended her general practitioner to be treated for her injuries. The husband was cross-examined about this issue as well. He said he denied the assault but more importantly, said that he had no knowledge of her attending the clinic. He looked at the report of the general practitioner and was unable to remember any such injuries nor could he give any explanation as to how his wife may have sustained them. Again, there was no objective evidence to corroborate the wife’s version.
Another incident occurred in February 2003 where she was punched to the body and head and kicked. She was then whipped with an extension cord and again, upon attending the general practitioner, the injuries were recorded. As with the earlier incidents, the husband not only said that he did not do what was recorded in the doctor’s notes nor as asserted by the wife in her material but that he had never punched or kicked her. This allegation however went further because the wife alleged that she was whipped by the extension cord and he acknowledged that that actually occurred but not the way the wife described it. He said she backed into the cord to get at him at a time when he was swinging the cord that he had picked up off the billiard table. He said that he was swinging it in a lasso fashion but not over his head. The concept of how the incident occurred was mystifying and the husband was asked to explain it because he was clearly aware of it. He said the parties were having an argument and the wife hit him so he retaliated and they were at the billiard table and he was trying to keep the wife away from him and was therefore using the cord when she backed in to him. Implausible as the husband’s explanation may be, without some corroboration, I would not be prepared to find either party’s version to be accurate. There are a number of reasons for that. Primarily, I have grave doubts about the honesty and truthfulness of either party. In addition, I have the wife’s candid confession that the scam associated with Centrelink and the Child Support Agency commenced in 1999 at a time when there was no specific alleged violence. That is not to say that no violence was occurring but rather there is no evidence that I could find to support that view. Against that is the fact that the husband has convictions for dishonesty and was found guilty by a court of assault. This is not a case where I could accept the evidence of either party without some corroboration.
It becomes no less difficult when I turn to the incident that occurred in or about September 2003. What the wife alleged was that she was kicked in the mouth and ultimately required plastic surgery to her face. As is not uncommon, she made up a story to the medical practitioner that was consistent with the injuries but inconsistent with the truth. The husband’s version was completely at odds with the wife’s version but consistent with the explanation given by the wife to the hospital. He said that he was in the garage removing a bumper bar from on high and required the wife’s assistance. He said the bumper bar was tangled with some wires and when it fell, it hit the wife in the mouth. He said the wound was obvious and he immediately took the wife to the Hospital and on the basis that an indication was given that she would need to be admitted to hospital, he then left the wife there, went to a K Mart store to buy her underwear and pyjamas and then returned to take her to another hospital where she was admitted. That version was consistent with the explanation given by the wife to the hospital. The wife’s counsel put to the husband that there was a threat to the wife that gave rise to the explanation she gave and he denied that that occurred. For the reasons I have already set out, I am not convinced that I need to make a specific finding about this incident but more importantly having regard to the various explanations given by each party, I find it would be inappropriate to rely on either party’s version.
The final incident occurred on the day of separation. At this time, the wife said that she was asleep and the husband had taken her mobile telephone and gone through her phone messages. She asserted that the messages were totally innocent but when she awoke, the husband was abusive accusing her of being a “whore”. She said he was screaming and becoming wilder and more volatile. I found this evidence difficult to understand having regard to what the wife had asserted about her knowledge of her violent husband because she then said that she had gone to “grab” the telephone from his hand and he slapped her across the face. Thereafter, she said there were threats that he was going to kill her as a result of which she telephoned the police on a cordless telephone and in an ugly scene that followed, she fell on a bed upon which their son was sleeping and the husband began to strangle her. It seems that the message had got through to the police who attended with a number of officers. With the assistance of the police, the wife left with the children.
I digress here to point out that the husband acknowledged that the wife did leave with the police but had he known what “the law was” at that time, he would have allowed the wife to leave but would have insisted that the children remain. I am not entirely sure what he meant by that but it epitomises the nature of the relationship between the husband and the wife.
Needless to say, the husband had a different version of what occurred. He said he came home very late and found his wife asleep on the couch with all of the lights in the house on. He said he turned the lights off at which point, there was a text message came on the phone and he grabbed it at which point, the wife awoke. To that extent, the parties seem to have a common agreement as to the incident. Having grabbed the phone, he said the wife chased him. To some extent, there is a common agreement about those facts. The husband said that he ran into the ensuite not knowing that his son was asleep on the bed. In the ensuite, he shut the door. He said the wife then kicked in the door. To corroborate that, he tendered a photograph which he said he took the following day as evidence. I admitted this document into evidence over the objection of counsel for the wife. Counsel for the wife said that the document had not been produced at any stage until the commencement of the trial and there was debate amongst the lawyers as to whether it had been ever produced before. Notwithstanding I admitted it on the basis that it may have some relevance, I am not able to find that the damage depicted in the photograph was in any way consistent with what the husband said. I only have his version of facts and for the reasons I have already set out, I have grave difficulty in accepting his version of what occurred.
No evidence was called from the police who interviewed both parties that night and presumably, they would have only heard the same versions that I have.
The husband’s response to all these assertions was simple. He said:
I deny that I was violent or verbally abusive towards the wife and say it is she who is the aggressor.
The issues of violence were not the subject of cross-examination and appalling though they may be if true, the issue for me relates to the question of whether the course of violent conduct by the husband if accepted, has been demonstrated to have had a significantly adverse impact upon the wife’s contribution to the assessments that I have to make[1].
[1] See Kennon (1997) FLC 92-757
I place significant emphasis on the word “demonstrate”. I do not accept that it is appropriate to infer from the allegations even if serious and accepted to be true, that the wife’s role in a contribution sense was made significantly more difficult. Accordingly, there is no relevance to the financial proceedings of those issues.
In addition, for the reasons that I have articulated, I do not accept that the wife commenced the scam under any pressure or threat or duress by the husband.
Additionally, I do not accept the husband’s asserted ignorance of the scam. His credit was very much under scrutiny. I have little confidence in anything he told me to be true for the reasons set out hereafter.
On 7 December 2005, Guest J made orders. Those orders were consented to by the parties both of whom was represented. The orders provided for each party to be restrained from discussing the court proceedings or denigrating the other in the presence of or within the hearing of the children. The orders provided for the husband to pay the Medibank Private family health insurance cover for the wife and the children. They also provided for the husband to transfer a motor car to the wife and to obtain a refund paid by the wife for car registration. The husband was to pay arrears of school fees and most importantly of all, the husband and the wife were each restrained from further drawing down on the ING Home Loan Saver and the Smart Home Loan account encumbering the home. It is significant to note that the order was made by consent of the parties.
The husband breached that order by continuing to draw down on the mortgage subsequent to the order. The husband initially said that he did not do so but in a letter dated 8 November 2007 from his solicitor to the solicitor for the wife in response to a direct question, he acknowledged three payments in June 2006, August 2006 and November 2006 all of which sums of money went to his former solicitors. Whilst he indicated that there had been a mistake, no evidence was produced to indicate that that was so.
On 6 July 2006 in a contested proceeding, Mushin J found the husband had breached the orders of Guest J and required that he enter into a bond for a period of 12 months to be of good behaviour and obey all court orders. An order for costs was also made. The breach found proved related to denigration.
There were other breaches including the taking of chattels, the failure to refund a car registration fee and the failure to provide the code to the parties’ safe. In respect of the registration fee and safe code, the husband maintained that it was all the fault of his former solicitor who over a space of many months, did not do anything about the matter. Had that occurred on one occasion, the explanation might have been plausible. Notwithstanding the husband was in dispute with his solicitor who had been reported to the Legal Services Commissioner, there was no explanation why the husband did not take up the issue himself and resolve the matters directly with the wife or her practitioners. In addition, the husband said in cross-examination that his former solicitor had retained a lot of his documents. However, the court records showed that the solicitor had received a subpoena and under cover of objection, had produced his file. The covering letter indicated that he produced all documents and the parties were then given an opportunity to inspect those documents. No subpoenae had been issued subsequently to that solicitor requiring him to give evidence as to the whereabouts of any documents that were still said to be missing.
In addition to the dramas associated with this case, the husband conceded that he had been found guilty of 13 counts of dishonesty and had been fined by a State court. He said that he had taken responsibility for other people. To support that assertion, he said the fine was paid by instalments by either he or NW or RW. NW and RW are twin brothers. NW gave evidence before me. He was asked about the question of penalty payments on behalf of the husband. He said he had no knowledge of the matter. He was asked whether he recalled that his brother had been involved in a conspiracy to defraud people and he said that he had absolutely no knowledge of that nor that the husband had been convicted of 13 counts of dishonesty. The contradiction from the husband’s own witness is damaging to the husband’s credibility.
The wife annexed to her affidavit, a copy of an application for finance by the husband purporting to indicate his financial position at the time that the application was made. The husband said that it had been prepared by someone else showing motor cars worth $70,000. He said that no such cars existed. He was asked whether his signature was on the document and he said that it was not his and that the document was a forgery. There was also an indication in the loan application of owning furniture worth $100,000 and he conceded that he did not have that. Mention was made of $40,000 worth of shares and he denied having those. The document went so far as to suggest that his income at that time was $54,588 and the husband’s response was that that was wrong because he did not even work for the company there named. The document went on to show that he had superannuation which at all times, the husband denied. The husband said that the document was provided to ING to enable him to obtain finance but that it was prepared by his financial adviser who ironically enough, was the person who the wife nominated as the broker who would obtain the necessary finance for her should she be obliged to pay the husband some amount of money under any orders that I made. The husband was questioned whether this was the same gentleman and he replied that it was. Curiously, notwithstanding that the wife’s affidavit was filed in June 2007, the husband had never raised the fact that the document was a forgery. Things did not improve from there however because the husband made a further application for finance concerning a motor car. This time, it was to A Financial Services. It was a purchase agreement for a motor car. Interestingly, much of the same financial data seems to have been used. He showed himself as a single man without dependents and confirmed that he signed this application personally. It was executed about four months after separation. Again the superannuation details appeared. He said that he didn’t even read it because a Mr J prepared it and that person was confident that the finance would be approved. He confirmed that the details about the employment situation were not correct. It was unashamedly put to him that this was contrived to enable him to obtain finance and he agreed.

Just on the basis of those matters to which I have just referred, I could have little confidence in anything that the husband told me to be true.
The credibility of the wife suffers a similar fate. She was prepared to be involved in the Centrelink and Child Support Agency scam.
In addition, the wife filed an affidavit by Ms K. The purpose of this evidence was to establish that between June 2001 and September 2003, there were international telephone calls between the two women and that the wife covered those costs by a payment received from Ms K. That money was said to have been sent to the wife’s post office box. However, at the commencement of the trial, counsel for the wife conceded that Ms K was no longer available. When giving evidence, the wife indicated that Ms K was not prepared to give evidence because her family would not let her do so. The husband was cross-examined along the lines that he had threatened or frightened Ms K off. The husband denied this. No other evidence about currency exchange transactions or where the funds were banked was produced by the wife. The wife conceded that she had spoken to Ms K only days prior to the commencement of the hearing. I place no reliance on the affidavit of Ms K.
Much of the husband’s case was directed to the fact that the wife did not make a reasonable contribution in the latter part of the marriage in her accepted role as a homemaker. His argument was that she spent an enormous amount of time on international telephone calls and to a large degree, the evidence of her time on the telephone was corroborated by the telephone bills. However, the husband went further and asserted that the time on the telephone was also involved in a nefarious telephone relationship with a man named “[G]”. The wife denied that she had any such contact in Greece. She was cross-examined at some length about this person. A photo said to have been found on the family computer depicted a man whom the husband said was “[G]”. The wife denied any knowledge of the photo or of G.
Her cross-examination continued into the second day of the hearing when text messages in Greek were put to her as being from a man named G. She maintained that they were not from any such person but from Ms K. She was unable to say who the relevant telephone numbers belonged to other than that she could identify one as Ms K’s. It was put to her that of 40 entries with the one number, she was unable to shed any light on who it might be and she said that the only person she had ever spoken to was Ms K and that it might have been her old number. It was not until after considerable cross-examination that she made mention of the fact that Ms K’s husband’s name was G. Why she had left that until the end of that particular topic escapes me but it did little to convince me that she was generally truthful about any issues.
Notwithstanding the s 128 Certificate I have granted, I am left with an unusual dilemma which is that the parties have benefited from the Commonwealth unreasonably, inappropriately and presumably, illegally. I find therefore that directly or otherwise, the parties’ current financial circumstances are such that they have assets which they may not otherwise have but for that inappropriate conduct. Leaving aside any question of criminal conduct and its consequences, I am being asked to divide up the financial resources of the parties including an unquantifiable sum that should not belong to them. The husband’s position was not to do anything about it because it was nothing to do with him. The wife’s position was to urge me to do nothing because of the modest asset pool and the circumstances she urged me to find that gave rise to the parties obtaining the Commonwealth funds.
The difficult issue with the Centrelink fraud is the apparent conflict between providing a certificate under s 128 of the Evidence Act 1995 (Cth) and its consequences of potentially precluding the Commonwealth from recovering in any criminal or civil action because of s 128(7)(a) and (b).
S 128(7) reads:
In any proceeding in an Australian court:
(a)evidence given by a person in respect of which a certificate under this section has been given; and
(b)evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence;
cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.
With the benefit of hindsight, this Court might in future have to consider the prospect contemplated by Young J in HMP Industries P/L v Robert Graham [1996] NSWSC 371 (27 August 1996). In that case, the judge was concerned that the issuing of an s 128 certificate in relation to an affidavit would impede criminal proceedings. His Honour said:
..it seems to me that these orders [in relation to the issuing of an s 128 certificate] should also be brought to the attention of the prosecuting authorities, as it may be they would wish to be heard as to whether it would be better to have no affidavit which might impede the investigation of criminal proceedings. If they take that view then I think that all copies of the affidavit may have to be destroyed. They are not parties to the proceedings, but I think in the public interest I should hear them as amicus curiae.
In Durieu and Wiggins (unreported 14 February 1997, Family Court of Australia), Halligan JR (as he then was) issued a party with a s 128 certificate in relation to evidence of tax evasion but did not make any finding on the issue but referred the matter to the taxation authorities saying:
I emphasise again, though, that I am not finding, at this stage, that the facts that she sought to prove are established, and I emphasise also that in referring the matter, as I intend to do, to the taxation authorities, it is a matter entirely for them as to what they do, if anything, in relation to it.
In that case, the taxation authorities would have to grapple with s 128(7)(b).
The duty to report however is also a vexed question leaving aside the consequential s 128 problem. The Full Court (Nicholson CJ, Murray and Kay JJ) in Malpass and Mayson (2000) FLC 93-061 said that the Court clearly has the power to report an offence against a Commonwealth law to the relevant authorities and that this had been generally accepted since Simpson and Bartlett SJJ said in T and T (1984) FLC 91-588 at 79,746:
In our opinion there can be no doubt (leaving aside any statutory prohibition) that where the evidence or other material discloses breaches of Commonwealth laws a judge … is entitled to bring these breaches to the notice of the Commonwealth Attorney-General.
However, after reviewing the authorities the Full Court in Malpass and Mayson (above) expressed the view that there is not always a duty to report a breach, saying:
Questions of degree must be relevant. There are many cases where minor irregularities are revealed in relation to taxation, social security and other issues. We think it unreasonable for the court to burden itself with a duty to report all of these matters. Different considerations may apply in relation to more blatant and substantial irregularities.
The Full Court declined to make a definitive conclusion saying: “We leave the determination of this issue to be determined in a case where the point arises directly”. Simpson and Bartlett SJJ in T and T (above) said at 79-747:
It might even be suggested, if his Honour had not brought such blatant tax evasion to the notice of the authorities, that he had failed in his public duty.
Later Lindenmayer J said in P and P [Tax evasion] (1985) FLC 91-605 at 79,925:
… I am of the opinion that this court, as a federal court exercising the judicial power of the Commonwealth, has a duty to protect the revenue of the Crown in right of the Commonwealth. That duty extends to requiring this court to take such steps as it is able to take to ensure that the revenue laws of the Commonwealth are not defrauded or evaded by litigants or others who come before it.
Where, as in this case, the evasion is by a party and has already occurred, the steps which the Court might take in fulfilment of its duty are limited … In practical terms, the only course of available to the Court is, when giving judgment, to order or direct the referral of the papers in the case to the Attorney-General …
Is there an alternative? One possible solution would be to quarantine an amount from the pool and direct that it be returned by the parties to Centrelink. Without knowledge of the quantum which must include interest and penalties, that course of action would be inappropriate. Another solution would be to adjourn the proceedings to enable the issue to be clarified by the relevant Commonwealth authorities. However, having regard to s. 128(7)(b), that would not be a course of action permissible because it would require the court to some degree to ignore the certificate it had granted.
In this case, I do not see that there is any alternative other than to report the matter and as has been said previously, the authorities can do what they will with the material that they have got. Having regard to the circumstances that I have outlined, I may not be able to ensure that the Commonwealth recovers but I would be failing in my duty if I simply ignored the problem.
I agree with what Lindenmayer J said in P and P [Tax evasion] (above):
If people wish to avail themselves of the services of this court in such cases, then I see no reason why they should be able to do so with complete impunity so far as their past financial behaviour is concerned. In any event, as previously noted, the right of a litigant to invoke the protection of the rule against self-incrimination provides some protection.
With the credit of both parties in tatters, I then turn to the property issues that are required to be determined.
Considerable attention was paid to the period prior to the marriage because it was during that time that the home was purchased. The home is the major asset of the parties and a contentious subject because each party wishes to retain it.
The husband’s position became clear in re-examination when he said that he wanted the house for two reasons. The first was “strictly business” and the second was to pay his debts and refinance so that there would be a legacy to leave behind for his children.
Counsel for the wife had expressed concerns at the start of the case that the husband owed his lawyers a significant amount of money in costs and that as part of fulfilment of his obligations to him, some security would be taken over the home.
The picture became clearer however when the husband’s current female friend gave evidence. She was asked whether there had been some discussion about the R home bearing in mind that she lived on the opposite side of the city of Melbourne. Ms A said that there had been a discussion and that the husband had indicated he would rent the house out, live with his parents and certainly not live with her in the northern suburbs of Melbourne. That certainly supports the husband’s first issue of treating the house as a commercial venture.
The wife’s position was that if she had to pay cash to the husband, she would obtain funds from her parents and obtain a loan and that her broker friend said he would help. This is the same broker I have already mentioned. The wife’s position was that her parents were willing to give upwards of $30,000 to help her but the wife’s mother indicated that $30,000 would be the limitation. The wife otherwise thought that she had “pretty good potential” to work more than the current three days per week in the services industry and that she could make more money working full-time.
The question of who should have the house will depend entirely upon the respective entitlements under the orders that I propose. Of the husband and wife however, the wife has been resident in the home since being returned there pursuant to an exclusive occupancy order and she houses the children on a full-time basis.
The husband’s view about that was that the wife could get a house anyway and whilst that may very well be right, the difficulty is that she has the dilemma of caring for the children in a settled environment with limited physical and financial support from the husband. It seems to me more important for the children to be settled in the location that they currently live. However, that will depend entirely upon the wife being capable of paying the sum to which the husband is entitled under the orders.
There are two children of the marriage, a daughter born in April 1987 and now aged 10 years and a son born in September 1998 and therefore now aged 8 years. Under the orders that I was requested to make by consent of the parties, those children will live with the wife and spend time with the husband on alternate weekends together with an evening meal in every second week.
Child support is contentious. The husband currently has an assessment based on his income of $27 per month but he is paying $50 per month. One of the questions is whether or not that is adequate having regard to the needs of the children and the capacity of the husband to pay.
I queried counsel for the wife about just exactly what orders he sought. He said his instructions were to accept the assessment of the Child Support Agency but otherwise his client wanted orders in relation to the payment of school fees and sufficient to cover health insurance. It goes without saying therefore that what the wife was seeking was orders that the husband pay private school fees and that they not be permitted to be substituted for any assessment. The concern I have about that is that the husband’s current assessment is $27 per month and on the basis that I have just set out, the wife seems to accept that that is appropriate. It means therefore that whilst the husband is pursued to pay private school fees, unless the assessment changes, the wife’s continued receipt of social security benefits means that the bulk of the financial expense associated with the care of the children would be borne by the tax payers of Australia. That is a subject about which I expressed concern on the basis that to exercise any of the powers under the Child Support (Assessment) Act 1989 (Cth) requires me to be satisfied that it is proper to do so.
The wife wanted the children to attend a Catholic school and also receive some cultural benefit from attending at a Greek school. The husband’s position was that there was a cheaper alternative in respect of the Greek cultural teaching and that there was no reason why the children should not be attending the state school system.
Although it is not clear from the wife’s application, this is an application under Division 5 of Part 7 of the Child Support (Assessment) Act 1989 (Cth). Section 123 of that Act says that an application may be made that a liable parent provide child support other than in the form of periodic amounts. Section 123(2) says:
(2) An application:
(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.
I am therefore dealing with the application made by the wife in circumstances where there is an administrative assessment in force.
There is no other application under Division 3 pending.
To be satisfied that it is appropriate to make an order, the Court must be satisfied that it is just and equitable as regards the child, the carer entitled to child support and the liable parent and otherwise proper.
Section 124(2) requires that a court have regard to:
(a)the administrative assessment in force in relation to the child, the carer entitled to child support and the liable parent; and
(aa)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
(b)any order in force under Division 4 (departure orders) in relation to the child, the carer entitled to child support and the liable parent; and
(c)whether the carer entitled to child support is in receipt of an income tested pension, allowance or benefit or, 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; and
(d)the effect that the making by the carer entitled to child support of an application under section 128 (Pensioners entitled to apply to have assessed child support not reduced by more than 25%) would have on the order proposed to be made by the court (and any statement included in the order under section 125).
I have considered all of those matters. Although the wife is a pension recipient, this is not a case in which the amount sought relates to the assessment. Notwithstanding the reservations I have about the assessment, that is no doubt a matter that can be resolved by the Agency of its own accord.
Section 124(3) says that in determining whether it would be just and equitable as regards the child, the carer and the liable parent, I am required to take into account the matters set out in s 117. I have taken those matters into account noting that the amounts sought are not significant by comparison to the income and earning capacity of the husband.
The husband told me that his income is currently limited but given an opportunity to get these proceedings out of the way and get on with his financial life, he could expect to make something in the vicinity of $60,000 or more and that it would only be some months before that could occur. He said he had a good business and it was just a question of getting on with it.
More importantly, taking into account the matters set out in s 117(4), it is important to note that the husband has been paying the mortgage on the former matrimonial home and as a result of my orders, he will no longer have that responsibility. In addition, on his evidence and that of his girlfriend, he pays no board to his parents with whom he lives but manages to be involved in social events on a weekly basis including restaurants and movies. He says that he shares those with Ms A but having regard to his assessed child support obligation, I have little doubt that he can afford to pay the sort of fees which in total amount to about $3000 per annum.
These children have attended this school and are settled there. It was clearly the intention of the parties that that occur. Both parties have a Greek cultural background and the language is something that they both speak. Accordingly, the continuation of the attendance at the Greek school is important for the children.
During the marriage, the children were covered by family health insurance. On 7 December 2005, the husband was ordered to ensure that protection continued. By some rather odd circumstance, the husband was able to cancel his insurance and have the children covered under the policy of Ms A notwithstanding that he and Ms A do not live together. I was assured the cover still exists notwithstanding the lack of a domestic relationship and thus, the wife’s concerns about the insurance may be allayed. If that changes, on the evidence, I find that the husband has the capacity to pay the appropriate level of insurance as it was before the husband cancelled it.
I am satisfied that on the wife’s evidence, she would not be able to afford to contribute towards those payments in a significant way having regard to the other obligations she has for the support of the children but that the husband has the capacity or the income or both that would enable him to do so.

I have already raised the question of whether or not it is proper to make such an order but having regard to the fact that the husband’s earning capacity is now much clearer, the Child Support Agency should have little difficulty in making a proper assessment that I have not been asked to make. On that basis, notwithstanding that the wife is a beneficiary of benefits from the Commonwealth of Australia, I find that it is appropriate and proper to make an order.
The wife also made an application for lump sum spousal maintenance but was unable to quantify that having regard to the fact that it depended upon the outcome of the property proceedings.
Section 72 of the Act requires a party to maintain their spouse if they are reasonably able to do so if and only if, the claimant is unable to support herself or himself adequately by reason of the matters set out in that section.
The law has been clear for some time that there is a threshold that the wife must meet namely her own inability to support herself adequately by reason of the care and control of children or some other adequate reason. In this case, the wife in evidence said that she had greater capacity than she was currently exercising. That evidence was in the context of the wife reassuring the Court that she had the capacity to borrow funds to pay out the husband and service a mortgage. She was optimistic about the future potential of her service business. The evidence is very scanty but I could not find that there is a sufficient basis for me to say that the wife is unable to support herself adequately by reason of caring for the children. Even if that were not so, I could not be satisfied either that the husband has the capacity to pay bearing in mind the obligations to support himself and the obligations he will have for the support of the children but also by virtue of the capital sum that he will have access to as a result of the orders that I propose to make. On that basis, I could not find any evidentiary basis upon which an order for spousal maintenance in a lump sum could be justified.
I turn then to the question of the property matters.
The four-step process in my view, is best set out in Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 at 78,386; 30 Fam LR 355 at 370 where the Full Court said:
Firstly, 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. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.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. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s.79(4)(e), the matters referred to in s.75(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. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case.
As will be abundantly clear, much of the debate in this case was about credit but directed to two main issues. They were:
(a) what assets existed for division; and
(b) who made what contribution.
In respect of the pool of assets, the wife sought to include some shares and savings accounts that were in the hands of the husband at the time of separation. She also wanted included in the pool the sum of $45,760 that was recorded to be a credit in a Westpac banking account at the time of separation. Furthermore, she wanted the Porsche motor vehicle purportedly owned by the husband to be included at the sum of $45,760.
Finally, she said that vehicles, jewellery, tools and chattels should be included.
One of the contentious issues from the wife’s perspective was the fact that the mortgage had substantially increased subsequent to separation and that that should be adjusted to reflect what the husband had taken.
The husband’s position was much simpler. He said that the house was the major asset and the mortgage and his taxation liability were the liabilities to be taken off the gross value of the assets.
I propose to deal with each of those in turn.
The former matrimonial home is valued at $335,000. That is an agreed value. The parties differed marginally about the mortgage but as at the end of December, it was almost $100,000. Accordingly, I propose to put into the pool of assets the sum of $235,000 being the equity in the home.
The second asset is the amount to be added back being in the increase in the mortgage referred to above but which is entirely attributable to the husband. I find that that sum is $29,890. At the time of separation, the two loans totalled approximately $47,000. Subsequent to separation, there was an increase in three categories. The first related to the sum of $23,110 which was paid to the Australian Tax Office and drawn down against the mortgage. I shall turn to the tax liability in a moment but I find that that was a joint responsibility.
The second category relates to the sum of $19,600 which was paid to the husband’s former solicitors. Those sums were conceded as being paid between 5 July 2005 and 30 August 2006 and referred to in a letter from the husband’s solicitors. There can be little argument about those as the concession was made on 8 November 2007.
The other increase arose from explained and unexplained payments totalling $13,928. Those sums related to either “debts” paid, utilities on the house or just living expenses. In some weeks, there were payments of significant sums that were unexplained but clearly taken by the husband. It is important to understand that during the period that these payments were drawn against the account, the husband was not only working in paid employment but was also living in the former matrimonial home. I have little doubt that the husband had access to the funds and used them without reference to the wife and she accordingly, should not be responsible for that increase in the mortgage.
The mortgage is currently approximately $100,000 and it was $47,000 at the time of separation. As I have indicated, the only amount of increase that I can see as the responsibility of both parties is the $23,110 that went towards the Australian Taxation Office liability of the parties. Those two amounts total $70,110 and therefore the increase is $29,890. That broad-brush approach takes into account interest and fees that would otherwise not have been payable had the husband not accessed the account and used it the way he did. In my view therefore, the appropriate amount to add back to the pool of assets is $29,890.
The taxation issue was a vexed one. The husband’s case opened on the basis that he had a liability of $44,000 and the wife at one point produced a document showing that at separation his liability was around $11,000. During the hearing however, the integrated client account was produced from the taxation office. This account shows all of the liabilities both personal and business together with penalties, interest and payments.
It is clear that as at 25 June 2005, the husband’s liability according to the integrated account was almost nothing. Thereafter, there were significant penalties added together with back taxes as a result of unlodged returns and business statements. Those unpaid taxes attracted interest. However, the husband drew down on the ING mortgage account two payments totalling $23,110 to reduce his liability. There were three other payments but the husband was unable to explain where they came from. When one tracks through the entire integrated client account, I find that most of the penalties and interest were in fact remitted. Leaving aside clear obligations after separation, as at 17 January 2008, the husband owed $15,206. From the integrated account, it is clear that all of that has occurred subsequent to separation. Taking into account all of the debits and credits and making the adjustments where remission of penalties and interest has occurred, it is obvious that as at the date of separation, the real obligation was about $700.
Having regard to the fact that the husband had an income and access to funds, I do not propose to allow him any credit in the pool of assets for any taxation liability. All of his current taxation liability seems to me to be associated with his activities subsequent to separation in June 2005.
The benefit that the husband does receive however, is that his obligation of increasing the mortgage is reduced by the $23,110 that came from the ING account.
The wife also sought to include in the pool a number of bank accounts that the husband had at the time of separation but in her material, she concedes that he also had credit cards totalling $1500. The personal accounts seem to be about $1530 and the credit card about $1500 so I propose to ignore all of those sums.
The wife points to a business account at that time which was also in credit. I do not know whether that sum in the bank was ultimately income or capital nor do I know what the liabilities were at the point at which separation occurred. I do not propose to take that sum into account at all.
The next very big dispute between the parties related to a motor car. The wife had filed an affidavit of a Mr S who was a spray painter who used to work with a business where the husband stored and/or restored this motor car. His evidence was to have been challenged by cross-examination but at the commencement of the case, I was informed by counsel for the wife that Mr S had refused to give evidence. Counsel subsequently cross-examined the husband on the basis that he had “got at” Mr S but there was no evidence of that. The husband’s evidence was that the motor vehicle was in parts and was sold to a Mr G. The evidence of Mr G according to his affidavit was that in “mid to late 2005” the husband sold the motor vehicle to him for $4000 which was paid in cash. Mr G was required for cross-examination but at the point at which he was to be called, I was informed that his father had just died only minutes before.
Without Mr S and Mr G, I am left entirely with the evidence of the husband and the wife. The wife’s evidence was limited because she could not say what condition the car was in nor more importantly, what it was worth. She had produced a valuation by Shannons but they had not seen the vehicle for the purposes of that valuation. Doing the best I can, bearing in mind the onus of proof being on the wife, the amount that I propose to put into the pool is the sum of $4000 on the basis that it is an admission against interest by the husband.
The husband conceded in cross-examination that he received the proceeds of the sale of some shares and had retained some others. Those totalled approximately $1000 and I propose to put that sum which I think is near enough to the actual amount.
There was also some debate about the wife’s motor car. I propose to do the best I can bearing in mind that there was no other evidence and place that in the pool at the sum of $2000.
The husband’s car was agreed as being worth $18,000 but on the evidence, there was an encumbrance to the finance company of $23,000. Notwithstanding there is a shortfall of $5000, I do not propose to put that into the pool either as an asset or a liability on the basis that the husband unilaterally chose to finance the vehicle that way.
Another asset that the wife wanted included in the pool was the sum of $45,760 which was in a Westpac business cheque account at the time of separation in the name of the husband. This issue was also a vexed one. The husband maintained that that account was a business account that belonged to RW. He said that he had made an arrangement with RW to open an account and although he was a signatory, the money was owned by RW. The wife obviously had to rely upon the documents that she was presented and on the face of it, the husband appeared to be the owner. However, RW presented himself for cross-examination and maintained that the money was clearly his and that he was able to produce banking records to show that despite the fact that the husband’s name was on the account, they had never got around to changing it but he alone had been the one to draw against it. A rather incredulous counsel for the wife put to RW that this was all nonsense and that the money belonged to the husband and that there were no documents to support his contention but RW pointed out that most of his dealings were on a handshake basis and usually in cash. He said he dealt in significant sums of cash each day. He is in the same sort of business as the husband. RW said that if the husband ran off with the money and he lost it, that was just a fact of life.
Whilst the evidence of RW was very unusual and one might be sceptical about it, it is the only evidence I have and on that basis, I accept on the balance of probabilities that the money does belong to RW.
RW and his brother NW have had a business association with the husband for a number of years. RW’s evidence was that he owned one business name and the husband another and as a result of certain football allegiances, they swapped business names but that no money changed hands. The wife’s evidence was that there had been a sale of the relevant business entity by the husband to RW for the sum of $50,000. She claimed that $25,000 had been paid prior to separation and that there was still $25,000 owing. The wife produced no evidence to support that contention. There was no evidence of what happened to the $25,000 she asserted had been received by the husband nor was there any evidence of RW paying that sum.
When RW was cross-examined, he emphatically denied that there was any such contractual arrangement nor any sale and reiterated that the husband’s position about the exchange of business names was right. He emphatically denied that he owed the husband any sum of money.
As I have indicated, the evidence of RW was very unusual but on the balance of probabilities, it being the only evidence that I have, I accept that it is correct and accordingly, I cannot add into the pool the sum sought by the wife.
Accordingly, I find the pool to be as follows:
Former matrimonial home  $335,000
Less   E100,000
Net  235,000
Add-back mortgage attributable to the
Husband  29,890
Sale of motor car  4,000
Wife’s car   2,000
Shares (approximate)  1,000
Total  $271,890
I now turn to the second step in relation to the question of contribution.
Notwithstanding the size of the pool in this case even factoring in the disputed sums to which I have referred, a significant amount of time and effort went into what was in my view a relatively modest argument.
In their association prior to marriage, the parties acquired the home at R. There is no question about the fact that the property was acquired in the name of the husband.
The parties differ markedly as to the circumstances under which the title was constructed.
Both parties agree that the purchase price was $127,000 and that the settlement occurred on 29 May 1989 some four years prior to the marriage.
The husband and the wife gave evidence as did the husband’s father and the wife’s mother.
The husband’s version was that his parents lent him $30,000 and he had $10,000 “savings” which he contributed. That was the description in his affidavit sworn 13 July 2007. On the very last day of the hearing, the husband produced a document for the first time, showing that at around the time that the deposit was paid, he drew down from a term deposit, a sum of money which was in his savings. It was not consistent with his affidavit evidence. I indicated that I was prepared to admit the document over the objection of counsel for the wife on the basis that it was no more than evidence of savings in the hands of the husband. I was not prepared to accept the quantum as of any significance. The husband maintained that he borrowed $101,000 from the Commonwealth Bank.
In respect of the mortgage, the wife’s evidence was that she was a joint borrower but did not set out how much was borrowed. No documents exist one way or the other to support either party’s contention but in cross-examination, the wife agreed the mortgage had been $101,000.
The wife’s evidence was that the husband’s parents had made a gift of $15,000 by way of a deposit and she put in $10,000 from her savings and a lesser contribution was made by the husband from his savings. She went on to say that initially, the husband’s parents had offered to give an unconditional gift of $30,000 upon the basis that her own parents put in the same sum. She said her parents were not in the position to provide such a large sum and accordingly, the husband’s parents reduced what was otherwise going to be a gift of $30,000 to the sum of $15,000.
The husband denied the wife’s version.
The husband’s parents had sought to intervene in the proceedings in October 2007 on the basis that they had a signed loan agreement albeit undated, in which they lent the husband $30,000 and that that sum was repayable at call. When I heard the matter on an interlocutory basis, I refused to allow the intervention and indicated that at best, the parents could be witnesses for the husband. That is what occurred.
The husband’s father gave evidence. He is an elderly man who is clearly unwell. He had heart problems. There was some suggestion that he might not even be able to attend court but he did so and subjected himself to cross-examination. It was quite clear that he claimed, almost as a mantra, the fact that he had made a payment of $30,000 to his son to go towards the home and a further $15,000 which went towards a taxi. He was unable however with the assistance of an interpreter, to advance the issue much beyond the fact that he insisted that the $30,000 had been paid in cash from his own resources. It was sad to see a man of that age and with that health being brought to court but his answer that whatever his son said would be right epitomised the problem. His evidence was of little probative value.
The wife’s mother gave evidence. She said that her daughter asked her to put $15,000 into the matrimonial property but when she found out that the husband was doing the wrong thing by her daughter by not including her in the title to the home, she declined. She was questioned about the process that she followed and gave an unconvincing piece of evidence that had to mean that inquiries had been made after the purchase and issuing of the title had been completed.
The parties also had a dispute about motor cars. The wife said that at the commencement of the relationship, she owned a Toyota and in cross-examination, it was put to the wife that the husband bought her a car and she denied that. The husband’s evidence was that at the time of the marriage, he bought the wife a Toyota and himself, a Mazda. He was able, albeit during the trial itself, to produce photos of the Mazda which he thought were probably taken in 1988, five years before the marriage. It is therefore inconsistent that at the time of the marriage he bought the wife a Toyota.
The wife’s mother in her affidavit, said that she provided money to the wife for various things but made no mention of a motor car. In evidence in chief however, she said that the Toyota had been bought by her for the wife when the wife was 18 years of age. She said she paid $5000 cash for the car and subsequently purchased a second car for $7000.
Consistent with the wife’s mother’s evidence about the car being purchased when the wife was 18 which was in 1987, it seems that the wife brought into the marriage a motor car. The evidence of the husband that he purchased the car five years prior to the marriage on one version and five later on the other version, makes me think that the wife’s version is correct. However, I have taken into account that the wife brought in a motor car to the marriage in 1993 so this evidence makes little difference to the determination.

As for the evidence of the wife’s mother, she was not able to show in any document form, where money came from nor where it went. Her evidence was unconvincing.
A small issue related to an accusation by the wife in her evidence in chief that the husband had a “garage full” of tools which she “estimated” to be worth $10,000. The subject received little attention. In final address, the wife’s counsel conceded that there was no evidence upon which I could rely to determine a value and I propose to ignore that issue completely.
Returning then to the question of how the parties purchased the former matrimonial home, a significant document resolved the problem. During the trial, the husband produced Exhibit W1 which is a letter from S Kourkoulis and Associates, Barristers and Solicitors dated 30 May 1989. Notwithstanding the obligations of parties to produce all relevant documents to each other, this document did not surface until during the trial. It was all the more bizarre having regard to the fact that Mr Kourkoulis represented the husband’s parents who had sought to intervene during 2007. This document was quite enlightening. It showed that a sum of $12,700 had been paid by way of a deposit to the agent but that the balance up to $127,000 together with stamp duty which was agreed at less than $3000, came entirely from the Commonwealth Bank. On that basis, the hypothesis of either party was implausible. Had the husband’s evidence been correct, the borrowing from the bank would have only have been somewhere in the vicinity of $90,000.
Had the wife’s evidence been correct, the parties would have only borrowed the sort of money that ultimately was provided by the Commonwealth Bank but the mathematics still did not make sense.
The husband and his father were both cross-examined about the fact that the only money provided other than by the Commonwealth Bank was the deposit and each said that that had been paid but there was no documentary evidence to support any actual payment.
The production of documents in this case was appalling and the parties required the Court to rely entirely upon issues such as credit in the difficult circumstances to which I have already referred. The first mention of a deposit of $12,700 was made during cross-examination of the husband. The husband said that money came from his parents but he could not remember the details. He thought it was paid to an estate agent and the balance of the $30,000 he claimed his parents gave was given either to the agent or the solicitor. That evidence of course, leaving aside the issue of the husband’s recollection, was inconsistent with the Kourkoulis settlement letter I have just mentioned. If the husband’s parents, the husband and the wife all put in money, where did it go?
Counsel for the husband pointed to the fact that there was a consistency between the deposit funds to which I have already referred and the draw-down from the term deposit. The dilemma that that creates is that if it is evidence of the fact that the deposit was paid by the husband, what happened to the $30,000 asserted by the husband to have been paid by his parents or $15,000 accepted by the wife as having been paid by them.
The problem became more confusing because of the husband’s production of an unsigned loan agreement. Both husband and wife agreed that the husband’s parents put in money but the debate was whether it was a gift or a loan.
On the issue of contribution, in my view it makes little difference.
The loan agreement to which I have referred was the subject of cross-examination of the husband’s father. It was put to him that he had never made any claim for a repayment nor for interest and he conceded that that was right. It was put to him that he had no intention of making any future claim and he conceded that as well. The parties have expended an enormous amount of legal costs and energy on this issue in my view unnecessarily.
Accordingly, I am unable to find on any view of the evidence just who paid what. More importantly, such a contribution by either or both parties was made 18 years ago and in my view, for reasons to which I shall turn shortly, it makes little difference and I give it little weight.
Most importantly, in so far as the husband’s parents may claim to be owed money by their son pursuant to the written agreement, I find that it is most unlikely that the debt will ever be called up for payment having regard to the evidence of the husband’s father.
In the Marriage of Lee Steere (1985) FLC 91-626 the Full Court said at 80,078:
The strength of a contribution made at the inception of a marriage is eroded, not by the passage of time but by the off-setting contribution of the other spouse.
In Way and Way (1996) FLC 92-702 the Full Court said:
We regard the law in this area as now settled by the statement of Fogarty J in Money (and subsequently accepted by all members of the Full Court in Bremner) that an initial substantial contribution by one party may be eroded to a greater or lesser extent by the later contributions of the other party even though those later contributions do not necessarily at any particular point outstrip those of the other party.
In Pierce and Pierce (1999) FLC 92-844; 24 Fam LR 377 the Full Court said:
28.In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.
In Mudge and Mudge (unreported 13 October 1998) Full Court comprising Ellis, Lindenmayer and Brown JJ said:
In considering the weight to be attached to an initial contribution, one should not lose sight of the subsequent use of such contributions. In the instant case, the substantial benefits which flowed have been identified in the wife’s submissions and by the trial judge.
In this case, I find that it is impossible to determine with any clarity just who made what contributions having regard to the state of the evidence. Even if there was a contribution by one party greater than the other, it has to be weighed against the subsequent contributions over a period of many years in which both parties worked and/or raised their family. In respect of the question of the use to which that contribution was put, having regard to the limited amount as a percentage of the total amount of money that went towards the acquisition of the home, I find that the initial contribution by whomsoever it was made, was not significant.
In respect of the issue raised by the husband of his family having provided to him a sum of $15,000 to acquire a taxi, no documentation was provided which would corroborate what the husband said. Without some corroboration, I would not accept what the husband said. In relation to the evidence of the husband’s father, his position was unashamedly adopted on the basis of what he was told by his son and is not the sort of corroborative evidence that I would rely upon or require to support the husband’s contention. Even if there was some substance to the evidence, having regard to the matters that I have just set out in relation to the question of the weight to be given to those contributions, I find that they would have not been significant. Accordingly, I do not intend to take that into account as a contribution of any significance.
To all intents and purposes otherwise, during the relationship, the husband worked long hours in the taxi industry. His evidence which was really not challenged by the wife was that he worked from early in the morning until late at night. He added that when he was able to do so, he assisted the wife with the children. On the basis of those two facts, it is not difficult to see that the role the husband would have played in the care of the children in their early days would have been limited. Conversely, the role that the wife played was significant.
The wife for her part, made a contribution to the husband’s business by assisting with some recording of documents in relation to the business. There was dispute between the parties as to the extent of that work but I find for the same reasons that I have already set out, it is difficult to determine what the truth is and in my view, it makes little difference. Both parties contributed in their own way.
Save for the issue to which I now turn, the roles that the parties respectively played during the marriage were otherwise unremarkable. To that end, there was no distinction between contributions save for the one to which I shall refer. This family approached the matter on the basis of a traditional division of labour with the husband taking primary responsibility for the breadwinner role and the wife taking the primary responsibility for the home and the children. In his role, the husband worked long hours and assisted not only with the care of the children when he was available but also did the traditional tasks on the outside of the home. He also used his tradesman-like talents to do things that are no doubt reflected in the value of the home but also in respect of the maintenance of the parties’ cars. In this case, the husband rebuilt and spray painted at least one motor vehicle which was something he seemed to enjoy doing and in the long run, there may have been an argument about the necessity for that to be done anyway. Presumably, in one form or another, the parties both got some benefit out of those activities even if it was only seeing the satisfaction of the end result. In the period of time when their relationship was a committed one these various roles which the parties seem to have accepted as being equal, defy quantitative valuation. That makes the issue of assessing the quality of the wife’s homemaker duty roles when they are challenged as here, very difficult.
A significant amount of time was spent by the husband endeavouring to highlight and prove that the wife spent an exorbitant amount of time on international telephone calls during which time she “neglected her homemaker duties”. There was no evidence that she neglected the children in any way.
To support his argument about this issue, the husband produced the telephone records which he obtained by a variety of means and they unashamedly show long periods of discussion. I have already canvassed that issue in relation to the pension question.
The husband points to the fact that as a consequence, the wife’s role as a homemaker was severely disrupted. As evidence of that, he produced a bundle of photographs of the home which he said were taken by him on the day after separation. Notwithstanding the protestation by counsel for the wife that these were raised at the last moment, I allowed them to be admitted into evidence. The wife looked at the photographs and when asked to describe the condition of the home, she described it as “disgusting”. However, cobwebs on windows, dirty bathroom basins and untidy floors and laundries are not matters about which this Court should be unduly critical. This is a very subjective area into which judges should be cautious about treading. The quality of a homemaker role is an issue of contribution about which an assessment has to be made and weight given. However, over a period of the length of a relationship such as this with all of its incumbent problems, in my view, it is dangerous to draw broad assertions from a series of photographs even if they did depict a home that was “disgusting”. Contrary to the assertion that this was consistent with her behaviour and effort all of the time, the wife maintained that she was a very proud homemaker. There is no evidence that the children were adversely affected by it and certainly no evidence that it in someway diminished the value of any property.
In a case in which the husband has worked extraordinarily long hours to earn a limited amount of income, it is difficult to make an assessment as to whether that absence from home contributed to what might otherwise attract criticism for the homemaking role of the wife. In my view, that comparison would be completely inappropriate.
In the circumstances, I do not propose to distinguish between the husband and the wife in respect of the period of time that they were together during the marriage.
Contributions do not cease when the relationship comes to an end. Parties contribute in their own ways subsequent to that time. In this case, the wife took on the very significant role of the care of the children which she had clearly done well during the relationship itself. Her role was not made any easier by a number of matters about which I have already criticised the husband relating to the return of monies for the registration of the car and the issue of chattels. Most significantly, subsequent to separation, the husband has contributed very little by way of financial support for the children albeit that he has contributed to the mortgage. In so doing however, he has clearly protected his own financial position.
Rather than take the post-separation contribution of the wife into account by virtue of the lack of child support, I shall certainly take it into account as a matter that I am required to consider under s 75(2) of the Act.
Accordingly, I find that for the purposes of s 79(4) of the Act, the parties have contributed equally.
I then turn to the question of the factors as they apply to each party as set out in s 75(2) of the Act. That provision says:
2)The matters to be so taken into account are:
(a)the age and state of health of each of the parties;
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain;
(e)the responsibilities of either party to support any other person;
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party;
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
(l)the need to protect a party who wishes to continue that party's role as a parent;
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation;
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i)the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party;
(na)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; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties.
I am satisfied that the parties both enjoy good health and are still at an age where they have the capacity to work to support themselves into the future.
Each party has a modest income not withstanding my reservations about exactly what each is earning. Each party has an ability to earn an income to enable them to support themselves to differing degrees. In the case of the husband, it was made clear that subsequent to the conclusion of these proceedings, the husband will be able to get on with his business life and make a reasonable living. The wife for her part, saw the need to be able to establish that she had the capacity to pay for and service a mortgage so that she could retain the home. In so doing, she conceded that her capacity to work longer hours was available and she was optimistic about her financial future.
There is no question that the wife has the responsibility for the care of two very young children and will have into the future. There was a significant debate at the commencement of the proceedings about children’s issues which as I have said, was resolved. What must be taken into account is that the wife will have the substantially greater portion of that responsibility for the physical care of the children whilst at the same time endeavouring to support herself by conducting her service business. The husband’s role in the lives of the care of the children will be limited and on that basis, the wife’s future earning capacity must be seen to be affected in a greater way than the husband.
I have taken into account the commitments that each party has to support themselves. I have been troubled about the financial position and the evidence became clear that the husband has the benefit of his parents who charge him no board enabling him to enjoy a reasonably pleasant social lifestyle with his partner. The wife for her part has to support herself but she has chosen to do so from her own business rather than working as an employee. To her credit, she gave evidence about the fact that she had other options open to her so I am satisfied that on the basis of what she put in her financial statement, she will have the capacity to support herself.
I have taken into account that each party has a similar living standard now to that which they enjoyed whilst they were together. The wife remains in the matrimonial home and the husband enjoys the support of his parents and the company of his girlfriend. To that extent, the parties have continued to live reasonably well notwithstanding that they have had to cut their cloth according to their means.
I am obliged to take into account the effect of any proposed order on the ability of a creditor recover a creditor’s debt. For reasons I have already set out, I do not know what attitude the Commonwealth will take in respect of the matters to which I have referred. However, for reasons that I have articulated, the parties each have the necessary resources to cover that eventuality and I see no reason to make any finding to the contrary.
The section also requires that I take into account the extent to which a party has contributed to the income, earning capacity, property and financial resources of the other party. Although that particular provision refers to “maintenance”, s 79(4) requires a court to take into account all of the matters set out in s 75. In this case, the wife has supported the husband’s development of his business by if nothing else, the care of the children. On that basis, I find that the wife has made a significant contribution towards the husband’s future earning capacity.

I have taken into also the duration of the marriage but in this case, it has not affected the wife’s earning capacity.
The wife has also made it very clear that she wishes to continue her role as a parent and having regard to the position adopted by the husband in respect of his future care of the children, that position is quite appropriate. It will certainly mean that she will have to taper her business enterprise activities to fit around the needs of the children.
Section 75 also requires me to take into account whether either party is cohabiting with another person, the financial circumstances relating to that cohabitation. I am quite satisfied that there is no person with whom the wife is cohabiting. As for the husband, the evidence is quite clear that he is not cohabiting with the woman who is a significant part of his life and there would appear to be no definite proposal for that to occur in the future. However, he is clearly living with his parents and has their support and that is a significant advantage that the wife does not have.
Under the terms of the orders that I propose to make, neither party will end up with significant assets. This is a case in which there are very modest resources to be divided. Those resources may be further eroded if the Commonwealth of Australia takes action to recover any money owed by the parties. What is important however is that in justifying any adjustment, I take into account that every percentage point in one party’s favour is swinging the pendulum significantly away from the other. In a case where the pool of assets is very small, any percentage point is of significance and that is certainly the case here. The smaller the pool of assets, the greater there is a justification for a significant percentage where there is a justifiable need. However, the unusual position here is that the wife has an optimistic view about her earning potential in the future.
An important consideration is also what child support is provided or might be provided in the future. The particular provision does not refer to an assessment but rather what is being paid. To his credit, the husband is paying $50 in circumstances where his assessment is $27. However, that assessment must change having regard to the fact that his earning capacity will increase and his obligation to pay the mortgage will cease. I have also made provision for the extra payments to be made in respect to school fees but on what I expect the husband will be earning, that will not have a significant impact.
In my view, there is a justification for an adjustment between the parties having regard to the disparity of earning capacity, the obligations to support the children physically and the fact that the wife is eligible for and will continue to receive Commonwealth benefits. On the basis of that, in my view, there is a justification for a 15 per cent adjustment in favour of the wife.
Accordingly, combining the second and third steps referred to, I would make an adjustment of the property as to 65 per cent to the wife and 35 per cent to the husband.
The fourth and final step in the process is to make a determination based upon all of those matters to the extent that I am satisfied that the outcome is just and equitable. It must be just and equitable to both parties. What must be determined is the underlying value of the property that each party receives rather than the percentages themselves.
By virtue of what I have already indicated about the need for the wife to have the home, I propose to make an order that she have the home transferred to her on the basis that she takes over the obligations under the mortgage and discharges the husband’s liability thereunder and on the calculations I have done, she will need to make a payment to the husband of $60,270.
On the basis of the husband retaining the motor car and the shares and taking into account the mortgage advance that he had the benefit of which I have added back to the pool, he is taking $34,890 from the pool. Thirty five per cent of the pool of $271,890 is $95,162. Accordingly, he needs to receive a further $60,272.
The wife’s entitlement of 65 per cent of the pool is $176,729. By the time she takes the net equity in the home and her motor car, she needs to pay to the husband $60,272 to satisfy the percentages and the just and equitable outcome of these proceedings.
Accordingly, looking at the adjustments to which I have referred, I say that that is a just and equitable outcome.
Before leaving that however, I am also obliged to take into account that as a result of the proceedings before Mushin J to which I have already referred, the husband was ordered to pay the wife’s costs of $1606 at the time that the settlement of property occurred. That money must come out of the husband’s share and I propose to discharge the costs order but reduce the amount of money that the husband is to receive from the wife accordingly. In those circumstances, I will be ordering the wife to pay $58,665.
Ultimately, the wife will only be able to retain the home if she is able to discharge the mortgage and pay out the husband. She was confident that she could do that. Should she not be able to do so, the home will be sold and I see no reason why the husband should not have the first opportunity to buy the property at the value ascribed to it by the parties during the proceedings. I propose to give him the option to do that if the wife is unable to satisfy the orders that I have just proposed. If the husband does not exercise the option to buy the property within 14 days after the wife’s deadline for payment, the property can be sold on the public auction system and no doubt, the pool will be somewhat reduced by the sale costs.

I certify that the preceding One Hundred and Ninety Six (196) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 31 January 2008

[2008] FamCA 34

31 January 2008

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