Walmsley and Walmsley (No 5)

FAMILY COURT OF AUSTRALIA

WALMSLEY & WALMSLEY (NO. 5)

[2010] FamCA 1034

FAMILY LAW – PROPERTY SETTLEMENT – undefended proceedings – where the husband owed significant debt at the commencement of the relationship – where the husband made very little financial contribution during the marriage – where the wife met all expenses of the husband following separation – where it was held that the husband’s non-financial contribution had been recognised – where the husband has received significant financial benefits negating any further entitlement to a further share of the asset pool

Family Law Act 1975 (Cth) ss 75(2) & 79

APPLICANT:

Mr Walmsley

RESPONDENT:

Ms Walmsley

FILE NUMBER:

ADC

728

2008

DATE DELIVERED:

19 November 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

19 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

n/a

SOLICITOR FOR THE APPLICANT:

n/a

COUNSEL FOR THE RESPONDENT:

N/A

SOLICITOR FOR THE RESPONDENT:

In person

Orders

In full and final settlement of each of the parties’ claim for settlement of property past, present and future:
(a)within twenty-eight [28] days the husband do transfer to the wife all of his right, title, estate and interest both in law and in equity the following properties:
(i) Z1 property;
(ii) Z2 property;
(iii)Z3 property;
(iv)H property;
(v)N property.
PROVIDED THAT the wife do hereafter pay and indemnify husband in relation to monies owing pursuant to mortgages registered over the said properties.
Hereafter the wife shall retain for her sole use and enjoyment absolutely free from any further claim or demand of the husband and that he transfer to the wife all of his right, title, estate and interest both in law and in equity to the wife:
(a)       any insurance policies owned by her;
(b)       her separate savings and investments;
(c)       VK Commodore registration … and the VX Commodore registration …;
(d)       the personality of the wife;
(e)all her estate and interest both at law and in equity which she may now have or hereafter have in any superannuation scheme;
(f)any other property or financial resources of the wife not otherwise specified.
Hereafter the husband shall retain for his sole use and enjoyment absolutely free from any further claim or demand of the wife:
(a)       any insurance policies owned by him;
(b)       his separate savings and investments;
(c)       any motor vehicle presently in his possession;
(d)       the personality of the husband;
(e)all his estate and interest both at law and in equity which he may now have or hereafter have in any superannuation scheme;
(f)any other property or financial resources of the husband not otherwise specified.
The wife do indemnify the husband and keep him forever indemnified with respect to:
(a) all debts and liabilities of the wife;
(b) the wife’s legal and valuation costs.
The husband do indemnify the wife and keep her forever indemnified with respect to:
(a) all debts and liabilities of the husband;
(b) the husband’s legal and valuation costs.
The husband do provide the wife with all DV tapes showing vision of the wife and the children E, S and A and their pets from 2000 onward; or alternatively provide full copies of these tapes of family life to the wife.

Liberty to apply for consequential orders.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 728 of 2008

MR WALMSLEY

Applicant

And

MS WALMSLEY

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings for property settlement between the husband and the wife were instituted by the husband in the Federal Magistrates Court in February 2008. The matter was subsequently transferred to the Family Court pursuant to the Orders of Kelly FM in May 2008.
Initially, the proceedings involved both children’s and financial matters. The parties were able to reach agreement with regards to children’s issues. I made final Consent Orders on children’s issues on 5 May 2010. The Orders were subsequently amended on 6 May 2010 and further amended on 20 May 2010 to include various procedural and protective provisions. The financial matters however, remained outstanding.
The matter has been before the Court for a lengthy period of time. The delay in the progress of the proceedings can be attributed, to an extent, to the continual failure by the husband to abide by court orders seeking to prepare the matter for trial. The wife filed an Application in a Case on 5 July 2010 seeking that the property settlement proceedings proceed on an undefended basis. I heard argument in relation to this Application on 29 July 2010. I made orders that the property settlement proceedings proceed on an undefended basis.
The trial subsequently took place on 19 October 2010 where the wife appeared unrepresented. I reserved my judgment.

Applications/Main Issues

The wife relies upon her Further Amended Response to Initiating Application filed on 20 April 2010 in which she sets out the final orders she seeks in property settlement. She also sought to rely upon a Balance Sheet which was agreed by the parties and filed on 13 May 2009. The wife also gave oral evidence.
In her Application, the wife proposes that she retain the properties which are currently held in her sole name being the property Z1 and the two properties Z2 and Z3. She also seeks that the husband transfers his interest in the jointly owned property at H and the block of land at N to her. The wife stated that there remained in total, a mortgage of $219,117.84 secured over the four properties at H and Z1, Z2 and Z3. The wife submitted that she intended on continuing to be solely responsible for the repayment of the mortgages. The wife also seeks to retain the two Commodore vehicles ($9,100) currently in her possession and the proceeds of her superannuation and personal accounts. This was on the basis that the husband will retain all the assets currently in his possession and the parties will indemnify each other in relation to all debts and liabilities. She also seeks that the husband pays the costs of and incidental to the proceedings.
The Court does not have the benefit of any recent material filed by the husband. The husband’s most update documents are his Financial Questionnaire and Case Information both filed 2 June 2009.
In his Case Information filed 2 June 2009, the husband sought final orders that the wife pay to Barnes Brinsley Shaw Lawyers (‘BBS Lawyers’) a sum of $110,000 to meet his outstanding legal fees. In return, the husband would transfer his interests in the H property and the land at N to the wife. He also sought orders that he retain his Commodore VT motor vehicle, his personal belongings and the proceeds of his superannuation and personal accounts.
At the hearing, the wife indicated to the Court that the husband’s proposals had changed numerous times since then.
The main issue at trial was whether the husband had made any contribution, financial or otherwise, which the Court should take into account in making orders for property settlement. It was the wife’s case that the husband had made no financial contribution at any stage during the marriage. The wife’s evidence is that the husband was in substantial debt when the parties married and that she had assisted him financially by making repayments towards his debts.
The husband maintained in his documents that he made non-financial contributions by way of caring for the parties’ children, making improvements to the parties’ various properties and assisted in running the wife’s businesses. While the wife acknowledged the husband’s non-financial contributions, she argued the husband had already received sufficient benefit to offset these contributions. They included expenses paid for the preparation of a property valuation, psychiatric assessment and psychological assessment. In her affidavit, the wife says that the sum of these expenses came to approximately $11,500.
The wife also argued that she continued to meet the husband’s expenses for approximately two years following separation. It is her case that for those reasons, she should receive all of the assets she sought in the proposed orders.

Relevant Background and Chronology

The husband was born in 1947 and is therefore nearing 63 years of age.
The wife was born in 1972 and is therefore aged 38 years.
The wife has the care of a daughter from a previous marriage who is now aged 16 years. She suffers from Robinow Syndrome.
The parties met in November 2000 and commenced a relationship soon after.
At the time, the husband was self employed as in design. He also worked as a photographer on the weekends.
The wife says she worked in numerous positions in the food and catering industry. She also says that she was employed as an Avon representative.
When the parties met, the wife owned unencumbered a house at R and also a Commodore VK vehicle.
The wife says that the husband had debts of approximately $40,000 which included a $20,000 car loan, credit card debts and overdraft accounts.
In February 2001, the wife sold her home at R and gained $39,020.35 from its sale.
The wife says she moved into rental accommodation at Dernancourt with her daughter and the husband. The wife says the husband did not contribute financially.
In March 2001, the wife purchased the Commodore VR vehicle for $13,000 using the proceeds from the sale of the R home.
The parties separated briefly in May 2001 when the wife became aware of the husband’s significant debt.
The parties resumed their relationship soon after.
In June 2001, the wife received the first of two WorkCover payments which was of $11,259.
In August 2001, the wife purchased a unit at F for $53,000. There was a mortgage of $30,000 over the property. The wife says she met all the expenses associated with this property without any assistance from the husband.
In October 2001, the husband commenced employment in design.
In November 2001, the parties separated briefly again.
In December 2001, the wife remortgaged the unit at F and purchased a property at Z for $57,500 with a mortgage of $59,280. The wife says that she husband did not contribute financially to this property in any respect.
The parties resumed their relationship in April 2002.
Soon after, the father sold his vehicle to repay his debts. The wife says that he used her Commodore VK instead.
In May 2002, the wife received the second WorkCover payment which was of $58,500.
In late May 2002, the wife used part of the proceeds from this payment to purchase two semi-detached properties at Z for $120,000. The wife alleges that the husband did not contribute financially to the purchase of these properties.
The parties moved into one of the Z properties with the wife’s daughter. This became the parties’ ‘matrimonial home’.
In mid 2002 the wife says she expended approximately $9,500 to renovate and improve the four properties she owned at the time.
It is alleged by the wife that the relationship was thwart with issues concerning the husband’s gambling, infidelity and alleged mental health issues.
The parties’ first daughter was born in July 2002 and is now aged 8 years.
The parties were married in November 2002.
On the 19 March 2003, the parties jointly purchased a block of land at N for $9,500. The husband financed his share by taking out a personal loan with the Australian Central Credit Union.
The wife started her own business in June 2003. It was known as “J Walmsley Services”.
The husband was dismissed by his employer in August 2003 for continuing absence and lack of reliability.
The wife says that following this dismissal, the husband did not return to work on a full time basis. Rather, she says he only undertook occasional contract work from home.
In August 2003, the wife purchased a property at H for $100,000 which was secured by the two Z properties. The wife borrowed an additional $10,000 to fund urgent repairs on the property.
The title of this property is held in joint names however the wife says that the husband did not contribute financially.
In November 2003, the husband says he commenced contract work from home for O Company.
The parties’ second daughter was born in February 2004 and is now 6 years of age.
The wife started another business by the name of V Business on 22 July 2004. It was a partnership between the parties but the husband did not contribute financially in any way. However the wife says that he did assist in labouring.
In 2006, the wife alleges that the husband began to inappropriately withdraw funds from her business and personal accounts.
The wife says that she borrowed $7,198 from her parents to meet the deficit of funds brought about by the husband.
The wife ceased all operations in the J Walmsley Services Business in December 2006.
The wife alleges that the husband gambled large amounts of marital financial assets during the marriage which ultimately led to the breakdown of the marriage.
After four years of marriage, the parties formally separated on 27 December 2006.
In April 2007, the wife sold the F property in order to repay the debt to her parents. The remainder of the proceeds were put towards the various mortgages.
The husband allegedly moved back into the matrimonial home at Z in August 2007 where he resided with the children until February 2008. The wife was not present.
Following the children making disclosures of being sexually and physically abused by the husband, the children returned to the wife’s care in February 2008.
The wife says she resided at a women’s refuge centre for the following 18 months.
The husband remained residing at the matrimonial home. He vacated the premises in June 2009. The wife says she met all outgoing expenses on the property during his occupancy without any assistance from the husband.

The Law

The Family Law Act 1975 sets out specific provisions in relation to property settlement proceedings. The relevant provisions in this matter are:
Section 79
(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a)     in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or
(b)     in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage--altering the interests of the bankruptcy trustee in the vested bankruptcy property;
including:
(c)     an order for a settlement of property in substitution for any interest in the property; and
(d)          an order requiring:
(i)    either or both of the parties to the marriage; or
(ii) the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
…
(2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)     the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)     the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)     the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)     the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)     the matters referred to in subsection 75(2) so far as they are relevant; and
(f)     any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Section 75(2)
The matters to be taken into account are:
(a)     the age and state of health of each of the parties; and
(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; and
(c)     whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(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; and
(e)     the responsibilities of either party to support any other person; and
(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; and
(g)     where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(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; and
(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; and
(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; and
(l)     the need to protect a party who wishes to continue that party's role as a parent; and
(m)   if either party is cohabiting with another person - the financial circumstances relating to the cohabitation; and
(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; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i)a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of the person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(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 to the marriage; and
(q)     the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

Discussion

This matter comes before me as an undefended hearing however in any event, the Court is required to make orders which are ‘just and equitable’ in all the circumstances guided by the factors provided in the abovementioned provisions.

Assets and Liabilities

The wife provided updated values for certain items on the Balance Sheet. They included values attributed to various mortgages, vehicles and furniture and effects.
Assets
The following assets are taken into account at the following values:
(i)H property (Joint)   $150,000.00
(ii)N property (Joint)   $25,000.00
(iii)Z1 property (wife)   $150,000.00
(iv)Z2 property (wife)   $160,000.00
(v)Z3 property (wife)   $165,000.00
(vi)Commodore VX (wife)   $5,000.00
(vii)Commodore VK (wife)   $100.00
(viii)Calais VT motor vehicle (husband)   $9,500.00
Total assets which can be brought into account   $664,600.00
Liabilities of the parties to be brought into account
(ix)Mortgage over H property (Joint)  $91,278.41
(x)Mortgage over Z1 property (wife)  $50,160.55
(xi)Mortgage over Z2 property(wife)  $38,839.44
(xii)Mortgage over Z3 property(wife)  $38,839.44
Total liabilities  $219,117.84
(xiii)Older documents on the file show that the husband alleged that he had various overdrawn accounts, credit cards and debts and owed his former solicitors considerable amounts
The present debts of the husband are unknown.
The net assets to be taken into account are therefore $445,482.16 (being $664,600 less liabilities of $219,117.84).
The evidence of the wife indicated that she now has modest superannuation accounts with Host Plus and Statewide, together worth $5,913.91. The husband had superannuation worth approximately $9,387 which is spread over three accounts with Host Plus, Spectrum Superannuation and Eligible Rollover Fund.

Contributions

The wife repeatedly emphasised throughout her filed material and her oral evidence that the husband made no financial contribution and contributed very little in other ways during the parties’ relationship. It is her submission that since separation the husband has accepted virtually no financial responsibilities. Moreover, it is her position that the husband has already received benefits which were greater than his contributions during the marriage and should therefore not receive any further benefit by way of property settlement.
The wife says that she was the sole income earner throughout the marriage. She held many positions which enabled her to acquire numerous properties. She gave evidence of the husband’s employment history and stated that the husband ceased full time work when the parties married and subsequent to that, only undertook occasional contract work from home. The wife alleged in her affidavit that the entirety of the husband’s income was used to meet his personal outgoings which included his personal expenditure and repayment of his debts.
Central to the wife’s case is her allegation that the husband did not make any financial contribution during the marriage and in particular to the properties identified in the asset pool. The sole exception is N property. In that case, the wife conceded that the husband funded half of the purchase price of $9,500 through a personal loan with the Australian Central Credit Union. That loan has since been discharged.
In relation to the H property which is held in the parties’ joint names, the wife’s oral evidence was that the purchase of this property was funded by mortgaging the two properties situated at Z which were previously purchased by the wife. She said that the husband’s name was added to the Certificate of Title as a “token” of the parties’ marriage.
The wife also gave evidence of the costs she had incurred in renovating and repairing the various properties which were acquired during the parties’ relationship and during their marriage. In her affidavit, the wife said that in mid 2002 she spent in total $9,637.95 on renovations on the four properties she owned at the time. Those properties were situated at F, Z1 and Z2 and Z3. The wife also says that a further sum of $10,699.33 was spent on urgent repairs to the property at H when it was purchased in 2003. The wife says that the mortgage of $113,000 which was taken out for the purchase of the H property took into account the costs of carrying out these repairs. It was the wife’s submission that she met the entirety of these costs without any financial assistance by the husband.
The wife also placed particular emphasis on her contention that she met all the living expenses of the parties during the marriage. In her oral evidence, she identified these expenses which included utility bills, vehicle expenses, insurance expenses, accountancy expenses related to her business in addition to education and all other associated expenses for the parties’ children.
In relation to the period following separation, the wife also alleges that she continued to pay the husband’s expenses both when he resided in rental accommodation and also when he returned to the matrimonial home. In her affidavit, she calculates the expenses which she has paid as approximately $48,000.
The wife’s evidence was that while the husband resided in rental accommodation, she paid for his telephone expenses and also provided funds to meet his daily living expenses. From August 2007 to February 2008 when the husband resided at the former matrimonial home with the children, the wife met all the household expenses which included food, telephone bills, gas and electricity bills, mortgage repayments, council and water rates, emergency services levy, insurance in addition to all other expenses associated with the other investment properties. The wife also says that she paid for the children’s education in addition to child care fees.
The wife says that the husband has not abided by the orders made on 26 November 2008 and 2 November 2009 and the sum of $1,173.51 still remains outstanding to be paid by the husband to the wife.
The wife alleges that her company J Walmsley services ceased operation due to the husband’s ongoing inappropriate expenditure of funds from the company’s business accounts. The wife says that she was forced to borrow money from her parents to meet the deficit caused by the husband’s expenditures. The wife borrowed a total of $7,198.19 in 2006. She repaid this debt in May 2007 using funds from the sale of the F property.
In her oral evidence, the wife acknowledged that the husband had made non-financial contributions by way of carrying out limited maintenance on some of the properties.
The wife acknowledged the husband’s contribution caring for the children for a short period, but noted that she had paid for all outgoings for both the husband and the children during this time. Additionally, she also argued that the children were placed in child care for a substantial period of the time they were under the care for the father. The wife alleges she was billed for the children’s child care expenses without her knowledge or consent.
The wife sets out in her trial affidavit details of what she alleges to be “Court ordered partial property settlement” awarded to the father. It reads
“140. During the course of the proceedings a number of ‘partial property settlements’ were made to the father including:
1.   Property valuation on 12^th August 2008               $2,694.50
2.   The father’s psychiatric assessment on
16^th October 2008  $2,970.00
3.   Psychology family assessment
Feb 2009$5,808.00
Total of partial property settlement already
awarded to father  $11,472.50”
The issues of costs in relation to the property valuations and psychiatric assessments were subject to various orders made in the Court.
The orders of Justice Burr expressly provide that the sum of $2,970 to meet the costs of the husband’s psychiatric assessment were to be considered as a partial property settlement. The remaining $8,502.50 will be construed as a financial contribution made by the wife. I accept the evidence of the wife that she met all repayments of the mortgages from which the funds were obtained.

Assessment of the contributions

In summary, the significant factors to be brought into account in assessing the parties’ contributions are:
1)The wife was the sole financial contributor to the purchase and subsequent maintenance of all the properties save and except N property;
2)The substantial debts owed by the husband at the commencement of cohabitation;
3)The wife’s contribution to the family’s daily living expenses both during the marriage and following separation;
4)The husband’s failure to comply with previous Court Orders requiring that he pay $1,173.51 to meet utility expenses of the Z properties;
5)The wife’s greater contribution to the care of the children and the welfare of the family;
6)The husband’s minor contribution in carrying out maintenance and renovations on the parties’ properties.
7)The Court ordered expenses of $8,502.50 which the wife paid.
Following separation, the wife has provided for the husband in a manner which far exceeds his contributions during the marriage.

Section 75(2) Factors

(a) the age and state of health of each of the parties; and
(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;

The wife is 38 years of age and has no current health issues. She is employed as a Support Worker. She currently works night shift. The evidence of the wife was that she was pursuing other employment opportunities within the same organisation which would allow her the flexibility to work around the children’s school hours.
I have set out the properties which the wife owns. She derives a rental income from three of these properties. In her Financial Statement of the 11 October 2010 she says that she receives $450 per week in rent.
The wife also gave evidence regarding the husband’s current employment status. She says that the husband is currently employed full time at O Company. At the hearing, the wife provided a letter of assessment from the Child Support Agency dated 30 August 2010 in which the husband’s child support liability was assessed on the basis of his 2010 taxable income of $56,486. It was the wife’s submission that the husband had a far greater capacity to earn a superior wage than her as he did not have the care of the children.

(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(ii) a child or another person that the party has a duty to maintain; and

The wife has the care of the parties’ two children and also her daughter from her previous marriage, all of whom are under 18 years of age.

(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

In her Financial Statement 11 October 2010, the wife says that she receives $302.50 per week from Family Tax Benefit and also a Single Parent Pension.
(ha)the effect of any proposed order on the ability of a creditor of a part to recover the creditor’s debt, so far as that effect is relevant; and
In the Balance Sheet as agreed between the parties, the husband lists his debts which were owing to various financial institutions. His legal fees owing were $102,404.46 at April 2009.

(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

At the hearing, the wife also brought to the Court’s attention the Child Support Agency’s intention to pursue action against the husband for unpaid child support. The wife alleges that the husband stopped paying child support in May 2010 and is now in arrears of approximately $3,082.20. The wife alleged that the husband was continually declaring a lower income to avoid paying child support. The husband in his Financial Questionnaire deposes of having paid $107.78 per week in child support for the children. However this figure is not consistent with any of the Child Support Assessments which are before the Court.

(o) any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

During her submissions, the wife also alleges that the husband has been receiving a half share of the compensation received via tax returns for the losses which have been made on the investment property at H. She submitted that the husband will have received approximately $8,500 in total for the years 2008, 2009 and 2010. I accept the evidence of the wife.
Furthermore, the wife says that in addition to the initial debt of $40,000 which the husband brought to the marriage, he continued to accrue debts through persistent gambling throughout the marriage which she alleges, in combination with other factors led to the breakdown of their marriage.
The other criteria set out in sections 79 and 75(2) are not relevant in the determination of this matter.

Conclusions

Taking into account both contributions and section 75(2) factors it is appropriate to make the orders sought by the wife.
Consideration of whether the orders are just and equitable in the circumstances
It was the wife’s proposal that the parties retain their respective superannuation funds and they were not to be included in the asset pool.
The wife proposed that the parties keep their respective vehicles and I propose to make orders that the husband retain his Commodore VT worth $9,500.
The husband has received $2,970 by way of partial property settlement.
I accept the evidence of the wife in relation to her submissions with regards to the Child Support payments. The husband is currently in arrears of $3,082.20 in child support payments.
I accept the evidence of the wife that following separation the husband has received $8,500 by way of compensation of the losses on the H property through his tax returns over the past three financial years.
I propose that the husband retain his Commodore VT motor vehicle, his personal belongings, superannuation and proceeds of his personal accounts.
The husband has already received significant financial benefits therefore the orders which will not entitle the husband to any further share of the asset pool are just and equitable in all the circumstances.

I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 19 November 2010.

Associate:

Date: 19 November 2010

[2010] FamCA 1034

19 November 2010

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Remedies

Costs

Res Judicata