Watt and Watt

FEDERAL CIRCUIT COURT OF AUSTRALIA

WATT & WATT

[2016] FCCA 1715

Catchwords:
FAMILY LAW – Undefended property settlement application – overwhelming contribution by wife to management of limited family finances and acquisition conservation and preservation of assets – overwhelming homemaker and parent contribution by wife – significant unexplained withdrawals of funds from parties’ joint account to husband’s own account – failure by husband to participate in proceedings to explain withdrawals – division of parties’ assets as to 90% to wife and 10% to husband.

Legislation:

Family Law Act 1975 (as amended): ss.75(2); 79

Applicant:

MR WATT

Respondent:

MS WATT

File Number:

ADC 4667 of 2012

Judgment of:

Judge Mead

Hearing date:

12 May 2015

Date of Last Submission:

12 May 2015

Delivered at:

Adelaide

Delivered on:

8 July 2016

REPRESENTATION

Counsel for the Applicant:

No appearance

Counsel for the Respondent:

Ms West

Solicitors for the Respondent:

White Berman

ORDERS

That in full and final settlement and satisfaction of either party's claims against the other by way of settlement of property, or alteration of property both in the past, present or for the future pursuant to Part VIII of the Family Law Act 1975 as amended:
(a)within 60 days the husband do transfer to the wife his interest in the former matrimonial home situated at Property P in the State of South Australia being the whole of the land comprised and described in Certificate of Title Register Book Volume (omitted) Folio (omitted) to the effect that the wife shall thereafter remain the sole legal and beneficial owner thereof to the exclusion of the husband;
(b)that contemporaneously with the said transfer pursuant to paragraph 1.1 hereof the wife do refinance the parties' (omitted) housing loan into her sole name and that she shall be solely liable therefor and that the wife do indemnify the husband in respect of same;
(c)thereafter the wife shall retain as her sole and absolute property free from any claim from the husband all personal property then in her possession including:
(i)the said former matrimonial home;
(ii)the wife's personal effects;
(iii)the wife's furniture and household goods;
(iv)any motor vehicle then in the wife's possession;
(v)all cash, bank accounts and other investments then in the wife's possession;
(vi)all payments or benefits which have accrued or which may hereafter accrue to the benefit of the wife pursuant to any policy of superannuation that the wife has now or may have in her possession at any time in the future;
(vii)all benefits accruing to the wife by virtue of her employment; and
(viii)all other items of personal property not specifically referred to above.
(d)thereafter the husband shall retain as his sole and absolute property free from any claim from the wife all personal property then in his possession including:
(i)the husband's personal effects;
(ii)the husband's furniture and household goods;
(iii)any motor vehicle then in the husband's possession;
(iv)all cash, bank accounts and other investments then in the husband's possession;
(v)all payments or benefits which have accrued or which may hereafter accrue to the benefit of the husband pursuant to any policy of superannuation that the husband has now or may have in his possession at any time in the future;
(vi)all benefits accruing to the husband by virtue of his employment; and
(vii)all other items of personal property not specifically referred to above.
(e)that hereafter the husband shall meet payment of all of his personal debts and liabilities incurred in his own name to the complete exoneration of the wife who shall have no liability with respect thereto and the husband does hereby indemnify the wife against all claims, expenses, losses or demands incurred by her as a result of the husband's refusal, failure or neglect to so pay;
(f)that hereafter the wife shall meet payment of all of her personal debts and liabilities incurred in her own name to the complete exoneration of the husband who shall have no liability with respect thereto and the wife does hereby indemnify the husband against all claims, expenses, losses or demands incurred by him as a result of the wife's refusal, failure or neglect to so pay;
(g)each of them the husband and the wife is restrained and an injunction is hereby granted restraining them and each of them from pledging the credit of the other;
(h)that each of them the husband and the wife shall do all such things and sign all such documents as may be necessary or desirable to give good valid and binding effect to the terms of the within orders and in particular if either party shall refuse or neglect to execute a Memorandum of Transfer in the form properly registrable under the provisions of the Real Property Act 1886 as amended of his or her estate and interest in the said land within seven (7) days after the same shall have been tendered to him or her by or on behalf of the other party for that purpose then and·in such case a Registrar or Deputy Registrar upon proof by affidavit of such refusal or neglect or that the whereabouts of one of the parties is unknown to the other is hereby appointed to execute and if in his or her opinion it shall be necessary so to do to settle the same and to do all other acts and things and to execute such other documents as shall be necessary to give full force and effect thereto and shall execute and do the same accordingly.
All extant applications be otherwise dismissed.
Liberty to either party to apply as to consequential orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 4667 of 2012

MR WATT

Applicant

And

MS WATT

Respondent

REASONS FOR JUDGMENT

Introduction

Mr and Ms Watt were born on (omitted) 1958 and (omitted) 1967 respectively. They married on (omitted) 1992 in (country omitted) at which time the wife was employed as a (occupation omitted) and the husband as a (occupation omitted). There were four children of their marriage namely W born in (omitted) 1992, X in (omitted) 1997, Y in 2000 and Z in 2002. The three younger children were born in Australia with W having been born in (country omitted).
The parties moved to Australia to live in 1994. The parties finally separated on 14 October 2012 although there were many occasions during the period of cohabitation where the husband spent blocks of time in (country omitted) without the wife as well as there being periods of separation in Australia, particularly between March of 2004 and July of 2004 and between late 2004 and early 2005.
In December 2012 the husband issued proceedings seeking an order for settlement of property based on a percentage division of the net matrimonial property including superannuation in favour of the husband to the extent of 65% with the balance of 35% to the wife. He filed a statement of financial circumstances and an affidavit in support of that application. In the wife’s response filed on 18 February 2013 she sought an extensive raft of orders for settlement of property with her response also being filed with an affidavit and a statement of financial circumstances. On 29 April 2013 the husband filed an amended initiating application wherein he sought parenting orders with respect to the parties’ two younger children Y and Z.
By way of order on 18 February 2013 the parties were to attend at a conciliation conference with a Registrar with respect to property issues on 27 May 2013. The conciliation conference took place but agreement was not reached. On the adjourned date of 27 May 2013 an order was made, inter alia, for the parties and the three younger children X aged 17, Y aged nearly 13 and Z aged 11 to attend a child inclusive conference pursuant to section 11F of the Family Law Act.
The mother had alleged serious domestic violence against her by the father. All three of the children told the family consultant that they did not want to spend time with their father and that they had particular concerns with respect to his open denigration of their mother. On 27 August 2013, some seven days after the child inclusive conference, the matter was adjourned to 9 October 2013 to enable the parties and their legal representatives to have an informal conference.
On the adjourned date of 9 October 2013 the father’s solicitors indicated that they were having difficulty in obtaining instructions from their client with respect to children’s issues, leading to an order being made by the court that the matter would be finalised on the adjourned hearing date of 17 December 2013 if the father did not provide instructions as required.
On 1 November 2013 the applicant filed a notice of discontinuance in respect of his application filed 6 December 2012 with respect to all of the orders he applied for. On the same day, namely 1 November 2013, he also filed a notice of address for service in his own name. On 12 December 2013 the applicant’s solicitors, Andrew Hill & Co, filed a notice of withdrawal as lawyer annexing a copy of a notice of intention to withdraw as lawyer dated 29 November 2013. The notice of intention to withdraw as lawyer directed to the applicant husband advised him that the matter was next before the court on 17 December 2013 at 10:30am at 3 Angas Street, Adelaide.
At the hearing on 17 December 2013 the husband did not attend and he was by then no longer legally represented. The court finalised children’s issues on that day making an order that the mother have sole parental responsibility for Y and Z (by then X was 17 years and 8 months old) and that the children live with her and spend time with their father in accordance with their wishes. The father’s application having been discontinued, the court otherwise dismissed the mother’s response insofar as it related to children’s issues.
The court then made an order deeming the mother’s application for settlement of property as contained in her amended response filed 2 August 2013 to be an application and adjourned directions to 17 February 2014. The court further ordered that if the father failed to attend at the directions hearing the mother’s application for settlement of property would be listed for hearing in an undefended basis.
On 17 February 2014 Mr Watt was represented again by his previous solicitors, Andrew Hill & Co, and counsel on his behalf advised that he had re-instructed his solicitors and wished to participate in the proceedings. Accordingly directions were adjourned to 24 March 2014 at which time it was further adjourned to 8 May 2014 to enable a conference between the parties and their legal representatives. On 20 May 2014 the matter was listed for trial at 10:00am on 18 March 2015 with two days allowed and trial directions were adjourned to 21 October 2014.
The matter was further adjourned to 18 November 2014 with the husband continuing to be represented but on 18 November 2014 the husband’s solicitor advised the court that he was without instructions and had been so for a considerable period. The applicant husband was not at court on that day, despite being advised of both that date and the previous hearing dates by his solicitor. The court ordered that the trial date of 18 March 2015 be maintained to the extent of the wife’s application being listed for hearing on an undefended basis. The matter eventually proceeded to hearing on an undefended basis on 12 May 2015.

Background

After the parties came to Australia in 1994 with W they were in receipt of Centrelink benefits until 1998. During that time the husband completed courses at (omitted) School to gain recognition for his (country omitted) qualifications. The parties’ child X was born in 1996 and shortly thereafter the parties purchased a property at Property S. The parties and their then two children spent most of the first half of 1998 visiting family in (country omitted) and then, upon their return to Australia, the husband lived in Sydney between August and October of 1998 attempting to find work.
The husband obtained employment at (employer omitted) in October 1998 and then worked for about six weeks at (employer omitted) in (omitted) of 1999 before injuring his back. He did not work in (omitted) of 1999 but worked at (employer omitted) in both (omitted) that year. In June 2000 the husband undertook some (employment omitted) for about two weeks at (employer omitted) before going to (country omitted) for a two month holiday at the end of 2000. In 2001 the husband worked as a (occupation omitted) at (omitted) for (omitted) but not work further until 2010.
In July 2001 the parties purchased land at Property H and in 2002 the parties purchased a property at Property A. Between 2002 and 2004 the wife earned income from having boarders in the matrimonial home. The parties’ two younger children Y and Z were born in (omitted) 2000 and (omitted) 2002 respectively. In 2003 the parties sold their Property S property which they had purchased in 1996 and reduced the mortgage over the property at Property A.
The wife alleged that on 6 January 2004 she was assaulted by the husband. The parties continued to be in significant conflict for most of 2004, resulting in a restraining order issuing against the husband for two years on 18 November 2004. In April 2005 the parties reconciled following counselling, during which the wife agreed to lift the domestic violence restraining order.
The Property A property was sold in June 2006. After paying the costs of sale, credit card debts and the mortgage still owing on the land purchased by the parties at Property H in 2001 the balance net proceeds of sale were invested.
In September 2006 the parties purchased the former matrimonial home at Property P. In July 2007 the land they had purchased in 2001 at Property H was sold and the mortgage over the Property P property was significantly reduced. In late 2010 / early 2011 the husband re-commenced (employment omitted) as (occupation omitted). The parties had lived on Centrelink benefits and the wife’s income from her work as a (occupation omitted) since approximately the end of 2003.
It was the wife’s case that the husband gambled heavily from at least when the parties moved to Australia to live in 1994 until separation. The wife disposes in paragraphs 73 and following of her trial affidavit to the husband’s regular visits to (omitted) in Sydney and to regular withdrawals of cash in and about the (omitted). She said the husband treated any earnings of the marriage as “his” to do with as he liked including what he considered to be “his” share of Centrelink payments received by the family. She said the husband used most of the monies that he withdrew from their joint account on personal expenses, travelling and gambling (paragraph 83 trial affidavit). The wife deposes in detail to her concerns as to the husband’s gambling and withdrawal of significant amounts of funds used by him for his own purposes in paragraphs 57 – 119 and then 248 – 295 of her trial affidavit. It was the wife’s case as set out in paragraph 295 of her trial affidavit that between 27 August 1988 and December of 2012 the husband withdrew $188,563 that she could ascertain from their joint account to use as he saw fit.
It was the wife’s case that the assets of the marriage for the purposes of these proceedings were as set out in paragraph 320 of her trial affidavit. She relied on a valuation of (omitted) to ascribe a value of $600,000 to the former matrimonial home at Property P. The wife deposed to having a Kia Carnival motor vehicle in her possession with scrap value of $950 and to the husband having a (omitted) Nissan Patrol motor vehicle with a valuation of $6100. It was the wife’s evidence that the husband’s jewellery had been valued by (omitted) at $70. Although the matter was heard on an undefended basis, in an affidavit filed by the husband on 7 August 2013 and in particular in paragraph 201 of that document he set out his evidence as to the composition of the asset pool. He was agreed with the wife as to the value of the former matrimonial home, the value of her Kia Carnival motor vehicle and his Nissan Patrol motor vehicle.
He said the wife had a Holden (omitted) registered in her name worth $10,000. It was the wife’s case that the parties’ daughter W had paid for that vehicle and although it was registered in her name it was actually owned by W. The husband did not participate in these proceedings such as to challenge that evidence. I accept the wife’s evidence in that regard and do not include that vehicle as an asset.
The husband deposed to an estimated value of $10,000 for the furniture in and about the former matrimonial home retained by the wife. It was the wife’s evidence that the contents of the former matrimonial home had been valued by (omitted) at $2,866. I accept the wife’s evidence and include that amount in the calculation of the asset pool.
The husband alleged that the wife had $10,000 worth of jewellery. The wife’s evidence in that regard was set out in paragraph 340(e) of her trial affidavit where she deposed to having jewellery with a value of $70. I accept the evidence of the wife in that regard in the absence of any convincing evidence to the contrary.
The wife deposed to the husband having savings as at 14 October 2013 of $8,503 (paragraph 340(j) of her trial affidavit). The parties separated in October 2012. The husband filed a statement of financial circumstance on 6 December 2012. He deposed to savings in the (omitted) Bank Account in his name in the sum of $7675. I accept that amount for the purposes of these proceedings in circumstances where the amount the wife attributes to the husband’s savings are, on her evidence, an amount in his account almost 12 months after separation.
It was the wife’s case that she retained $8,000 at separation. The husband deposed to the wife having $18,684 savings at separation. The wife conceded in paragraph 340(l) of her trial affidavit that she did have $18,000 in savings in a term deposit account in the name of the parties’ son Z at separation. It was her case however that $10,000 of those funds were funds the parties’ child W had received by way of an accident claim in 2002. I am satisfied taking into account the matters contained in paragraphs 140 – 144 of the wife’s trial affidavit that the appropriate amount to include for a calculation of the parties’ assets is $8,000.
It was the wife’s evidence that the husband retained the sum of $37,000 upon the sale of the parties’ block of land at Property P (paragraph 340(k) of the wife’s trial affidavit). The wife’s evidence about this issue was contained in her trial affidavit in paragraphs 233 – 244 inclusive. On the wife’s evidence the block of land was sold some five and a quarter years prior to the parties’ final separation. Annexure “I” to the wife’s trial affidavit evidences the payment into an account in the husband’s sole name of $37,000 by way of transfer from another account together with a further deposit on the same day of $2,000 by way of an internet banking transfer from another account. It was the wife’s case that if this amount was not included as an asset available for distribution between the parties it should be “added back” as effectively a premature distribution of assets between the parties. I find that it is more appropriate to consider, pursuant to section 75(o) of the Family Law Act 1975, what I accept was an unexplained use by the husband of the $39,000. Accordingly I find the parties’ assets to be taken into account for the purposes of these proceedings to be as follows:

Asset	Value
Former matrimonial home at Property P	$600,000
Wife’s Kia Carnival motor vehicle	$950
Husband’s Nissan Patrol motor vehicle	$6,100
Wife’s jewellery	$70
Husband’s jewellery	$70
Wife’s furniture in formal matrimonial home	$2866
Husband’s savings at separation	$7,675
Wife’s savings at separation	$8,000
TOTAL	$625,731

It was the wife’s evidence that the husband had superannuation with (omitted) at the time of separation. Annexure “R” to the wife’s trial affidavit is a valuation of the husband’s superannuation entitlements with (omitted) as at 26 November 2014 in the sum of $32,348. I find that is the appropriate amount to take into account for the purposes of these proceedings. Annexure “S” to the wife’s trial affidavit is a summary of her superannuation benefit as at 31 March 2015. I accept for the purposes of these proceedings a valuation of the wife’s superannuation entitlements in the sum of $1265.70.
Accordingly the total amount of the parties’ assets for the purposes of these proceedings is $659,344.

Liabilities

It was the wife’s evidence that the mortgage owing over the former matrimonial home at the time of trial was $198,000. That was the same amount attributed to the outstanding mortgage by the husband in his affidavit filed 7 August 2013 (paragraph 202(a)). In the absence of any other evidence to the contrary I accept that the only liability to be taken into account in assessing the net assets of the parties is the mortgage in the sum of $198,000.
Accordingly, for the purposes of these proceedings I find the net asset pool to be $461,344.

Contribution

It was the wife’s case that she made the overwhelming contribution to the acquisition and preservation of the parties’ assets both financial and non-financial.
The wife’s evidence contained in paragraph 29 of her trial affidavit was that neither party had any assets or liabilities of significance at the commencement of the marriage. The husband did not participate in these proceedings to dispute that assertion and I find therefore that was the case.
Following upon the parties’ marriage in (omitted) 1992 the first child W was born in (country omitted) in (omitted) 1992 and the parties moved to Australia to live in September 1994. It was the wife’s case that the parties had their personal belongings and a small amount of savings when they arrived in Australia. Subsequent to their marriage the wife worked in (country omitted) for a short period of time. It was her evidence that despite the fact she wanted to work until shortly before the birth of the parties’ first child in circumstances where they had very little income, that was not permitted by the husband, who required her to be engaged in full time home duties. She deposed to him being constantly critical of her efforts in that regard.
The parties applied for and received Centrelink benefits upon their arrival in Australia, which monies were paid into a joint account. It was the wife’s case that the husband completely controlled those monies until 1998 during which time she had no access to the account other than with the husband’s approval and control.
Neither the wife nor the husband had any paid employment until 1998 and initially rented accommodation in Sydney for some 8 months before moving to (omitted) where they rented for a year. The husband studied in 1996 and 1997 to have his (omitted) qualification recognised in Australia with the family continuing to be in receipt of family Centrelink benefits.
Between 1994 and 1998 the husband went back to (country omitted) 3 or 4 times according to the wife, paid for by the parties’ Centrelink benefits, with the parties and W and their second child X who had been born in Australia going to visit family in (country omitted) between approximately February and June 1998. It was the wife’s case that she and the children were financially supported by her family during that time, with the husband obtaining some funds for a trip to (country omitted) without the wife and children by way of a (omitted) Bank credit card. It was the wife’s case that upon the parties’ return to Australia her father paid the credit card debt in full.
The wife said that upon returning to Australia the husband frequently travelled to Sydney and while there regularly visited (omitted) and spent substantial amounts of the parties’ funds gambling. I have previously referred to her evidence contained in paragraph 295 of her trial affidavit where she has calculated that between August 1998 and December 2012 the husband utilised the sum of approximately $188,500 without explanation to the wife.
It was the wife’s case as contained in paragraphs 81, 82 and 83 of her trial affidavit that the husband spent little if anything of the money he withdrew from the parties joint accounts from time to time on joint family expenses with the wife being responsible for maintaining most of the joint expenses, household bills, house payments, rates, taxes and groceries from what was left in the joint account and anything that she was able to save from monies paid by students boarding in the family home and from the child care she provided in the family home.
It was the wife’s case that the husband had a few months’ work between (omitted) in 1998 and the end of 2000 and then for (omitted) in 2001. It was her case that he did not obtain paid employment again until he started doing some part time (employment omitted) in 2010.
The wife deposed to the husband having another two month trip to (country omitted) on his own at the end of 2000 and a further trip to (country omitted) on his own for approximately two months in early 2004.
The wife alleges that the husband assaulted her on 6 January 2004 by sandwiching her legs between the family car and another car when she was assisting him with reversing into a carpark. She said that she did not report the incident to police or any insurance company but that she sought medical advice and at the time of trial was still suffering long term effects as a result of injuries to her knee.
The wife said that in April 2004 the husband went to Sydney until approximately late July 2004 having already been in (country omitted) for two months in the first four months of 2004. She alleged that the husband removed funds from the parties’ joint account on 14 April 2004 when he was in Sydney such that she was left with $2.96 in the family account. It was the wife’s case that she received financial assistance from her brother and then on 30 April 2004 arranged for her own (omitted) Bank account into which her Centrelink payments where thereafter made.
It was the wife’s case that she managed the household finances very tightly, saved any money that she could and continued to make whatever payments she could whenever she had any “spare cash” towards a reduction of the parties’ liabilities.
The wife deposed to her income at that time consisting of earnings from her (omitted) work as well as Centrelink benefits and a very small amount of child support from the husband on occasions totalling approximately $100 for the last two months of 2004.
The wife alleged that on 24 July 2004 the husband apologised to her in front of friends at their home for his previous behaviour towards her but later that day pushed her over during a further argument causing her to fracture her arm. Again she did not report this incident to the police but did to her doctor as a result of the medical assistance she required. It was the wife’s evidence that for the balance of 2004 she and the husband slept in separate rooms and she supported the family financially without any contribution or assistance from the husband.
On 18 November 2004 a restraining order issued against the husband for a period of two years. With the assistance of the parties’ church priest they agreed to undergo marriage guidance counselling. The husband promised the wife that he would cease his aggressive and violent behaviour towards her and the wife thereafter on the husband’s request agreed to have the restraining order withdrawn. This was effected in approximately February 2005. In late 2004 the husband again went to (country omitted) for approximately two months and it was the wife’s case that on his return she paid a credit card debt of $2,000 that he had incurred in relation to the trip and also repaid $3,500 to a friend from whom she had borrowed money whilst the husband was away to support the family.
The husband moved back into the former matrimonial home in approximately February 2005 and the parties remained effectively living separately and apart until approximately August 2005 when they again set up a joint bank account.
I have already referred to the parties’ various real estate transactions under the heading of ‘Background’. Upon the sale of the parties’ block of land at Property H in or about July 2007 the parties were left with net proceeds of $34,000. It was the wife’s case that those funds were deposited into their joint account in which there was already a few thousand dollars that she had saved. She said that upon Centrelink payments coming into the account in early December 2007 the husband transferred the total sum of $39,000 from that account into an account in his own name. She said that the husband had exclusive use of those funds. Again, in circumstances where the husband elected not to participate in these proceedings I accept the wife’s evidence in relation to that issue, particularly into taking into account Annexure “I” to the wife’s trial affidavit.
The husband went to (country omitted) for a further three months between January and April 2008 with the parties’ son X. It was the wife’s case that the family income throughout 2008 consisted of Centrelink benefits paid into the joint account and that from those funds the wife met payment of all household expenses. She tried to save additional money from her (omitted) work income. She said that the husband continued to transfer funds from the joint account to his own personal account even during times that he was overseas.
By August 2009 the wife, according to her evidence contained in paragraph 257 of her trial affidavit, had saved a further $9,500 in the joint account. Approximately $8,000 was used for the wife and the parties’ child W to travel to (country omitted) for some 8 weeks between November 2009 and January 2010.
It was the wife’s evidence that she stopped working in 2010 and the parties and family continued to be support by way of Centrelink income.
The husband commenced working as a (occupation omitted) in early 2011 with his wages being paid into a (omitted) Bank account in his own name. The wife deposes in paragraph 266 of her trial affidavit to the husband receiving $16,494.10 net by way of salary between 7 February 2011 and 22 December 2011.
During 2012 the husband continued working as a (occupation omitted) almost full time according to the wife in paragraph 270 of her trial affidavit, with the wife not working and with the husband travelling to (country omitted) again for 2 months in January 2012.
It was the wife’s case contained in paragraphs 279 and 280 of her trial affidavit that he applied little if any of the monies that he earned from his employment to family or joint expenses with the wife meeting all of the mortgage repayments, household bills, living expenses for herself and the children from her income and Centrelink benefits throughout the marriage.
Between December 2012 and mid-February 2013 the husband travelled to (countries omitted).
Throughout the parties’ marriage the children all attended at private schools by agreement between the parties. The parties were always entitled to discount of school fees because of their low income which made the school fees relatively affordable. It was the wife’s case that the husband paid some of the school fees just prior to separation but not all, notwithstanding that in September 2012 he received a taxation return in the sum of $4,430.50. The parties ultimately separated on 14 October 2012 with one of the major sources of dispute being what the wife perceived to be the husband’s lack of financial contribution towards the family.
The wife’s evidence as to the payment to her of child support by the husband is contained in a detailed explanation of that issue in paragraphs 318 – 339 inclusive. There effect of the wife’s evidence is that the overwhelming financial responsibility for the children post separation has fallen on the shoulders of the wife.
In the absence of explanation to the Court from the husband as to the utilisation of the sum of $188,500 withdrawn from the parties’ joint account by the husband over the years of the marriage, the source of funds for his frequent and lengthy trips to (country omitted) and the utilisation of the funds he earned whilst (employment omitted) during the marriage, I accept the evidence of the wife that the husband engaged in gambling at a significant level. I find that the wife’s careful management of the remaining Centrelink income and income earned from boarders and her (omitted) work resulted in the family acquiring and maintaining assets that the parties would otherwise not have been in a position to so acquire or maintain. I also find that it was the wife who made the major non-financial contribution to the acquisition and preservation of the parties’ assets both as a manager of the parties’ finances and as the major homemaker and parent. She was of course sole homemaker and parent during the husband’s trips to (countries omitted) or otherwise to Sydney.
I accept the wife’s evidence that the husband gambled significant funds during the course of the marriage to the detriment of the parties and the family generally, and further that the husband has provided no explanation for the utilisation of $39,000 removed from the parties’ joint account and placed into his own account in July 2007.
Taking all of those matters into account I find that there should be significant weight in favour of the wife with respect to the contributions of the parties during the period of the marriage. Post separation the children remained in the care of the wife. At the time of separation the parties’ children were aged nearly 20 years, 16 years, 12 years and 10 years.
I find taking into account the matters deposed to by the wife as to child support in paragraphs 318 – 339 inclusive of her trial affidavit that the wife has met virtually all of the costs for the parties’ three children X (until he obtained the aged of 18 years in (omitted) 2014), Y and Z.
In addition the children have spent little to no time with the father since separation such that the mother has been almost solely responsible for the physical care of the children.
In those circumstances I find that her post separation contribution has been substantially greater than that of the husband. Taking those matters into account I find that the parties’ contributions both during the marriage and post separation should overall be assessed at 80% in favour of the wife and 20% in favour of the husband.

Section 75(2) Factors

Although both parties were (occupations omitted) prior to coming to Australia in 1994 it was only the husband who had his qualifications registered in Australia. I am satisfied that the husband has an ability to earn a greater income than the wife. For the year ended 30 June 2012 his gross income was $31,401, for the 2013 financial year $46,841 and for the 2014 financial year $32,041 (Annexure “O” to the wife’s trial affidavit).
The wife at the time of trial was working as a (occupation omitted) earning $350 per week. I am satisfied that the wife would find it difficult to earn income at the level that the husband can achieve. Other than knee problems arising from the alleged assault of the wife by the husband in 2004, the wife is otherwise in good health.
The wife has had almost the sole responsibility for the care of the children physically and financially since the parties’ separation, with all four children including the two now adult children remaining in her care at separation. The amount of child support paid to the wife has been minimal and I accept the submission of counsel for the wife that the husband is able to minimise his income by taking short term casual employment and not filing his tax returns promptly. I find that the wife has neither received nor is likely to receive in the future any significant payments of child support.
The wife and the children have remained living in the former matrimonial home and the wife has appropriately maintained payments in respect of the mortgage. The wife is in receipt of Centrelink benefits in addition to the income earned from her employment. Taking all of those matters into account I find there should be a further adjustment in favour the wife of 10%.

Conclusion

I find that overall there should be a division of the net assets of the parties between them such that the wife retains 90% thereof and the husband 10% thereof. The net assets total $461,344.00. That of course is inclusive of the parties’ superannuation entitlements. 90% of that amount is $415,209.00. 10% amounts to $46,134.00.
The wife has retained in her possession or control the following:
a)Former matrimonial home  $600,000.00
b)Kia Carnival motor vehicle   $950.00
c)Jewellery  $70.00
d)Furniture  $2,866.00
e)Savings  $8,000.00
f)Superannuation  $1,266.00
Total  $613,152.00
She has liabilities with respect to the mortgage in the sum of $198,000.00 resulting in her net assets inclusive of superannuation totalling $415,152.00.
The husband has retained in his possession or control as at separation the following:
a)Motor vehicle  $6,100.00
b)Jewellery  $70.00
c)Savings  $7,675.00
d)Superannuation  $32,348.00
Total  $46,193.00
The effect of a division of the parties’ assets in these terms will be that the wife remains living in the former matrimonial home with the children, assumes full responsibility for the mortgage over the property and otherwise retains all items of personalty in her possession. The husband will retain all items of personalty in his possession and transfer his interest in the former matrimonial home to the wife. I am satisfied in the circumstances of this case that such an order effects justice and equity as between the parties.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Mead

Date: 8 July 2016

[2016] FCCA 1715

8 July 2016

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Injunction

Remedies

Costs