WELLEN & WELLEN

[2018] FCCA 2259

FEDERAL CIRCUIT COURT OF AUSTRALIA

WELLEN & WELLEN [2018] FCCA 2259

Catchwords:
FAMILY LAW – Property and lump sum spousal maintenance – Weir & Weir considerations – issues of credit – basis for add-backs – consideration of non-financial contributions by wife.

Legislation:

Family Law Act 1975, ss.79, 75(2)

Cases cited:

Dicksons & Dicksons (2012) 50 Fam LR 244

Omacini & Omacini (2005) 191 FLR 317

Shaw & Shaw (1989) FLC 92–010

Wallis & Manning (2017) FLC 93-759

Weir & Weir (1993) FLC 92-338

Applicant: MS WELLEN

Respondent: MR WELLEN

File Number: BRC 8305 of 2015

Judgment of: Judge Egan

Hearing dates: 12 March 2018 & 11 April 2018 & 16 July 2018 & 17 July 2018

Date of Last Submission: 17 July 2018

Delivered at: Brisbane

Delivered on: 20 August 2018

REPRESENTATION

Counsel for the Applicant: Ms Oakley

Solicitors for the Applicant: Damien Greer Lawyers

Counsel for the Respondent: Mr Foley

Solicitors for the Respondent: Get Real Legals

IT IS ORDERED:

1. That based upon a total asset pool of $769,059.00, the wife is to receive a distribution equalling 62.5% and the husband is to receive 37.5% of same.

2. That the wife be paid the sum of $16,700.00 by way of lump sum spousal maintenance.

3. That each party shall provide a copy of a proposed Final Order to each other party by 4:00pm on 27 August 2018

4. That the parties shall attempt to reach an agreed position in relation to the wording of the Final Order (reflecting the Reasons for Judgment) and shall send a copy of same to the Court by no later than 4:00pm on 3 September 2018.

5. That in the event the parties are unable to reach an agreed position in relation to the wording of the Final Order (and send a copy of same to the Court) within the time frame stated in paragraph (4) – the matter shall be listed for Mention and each party shall attend personally along with their legal representative (if any) on a date to be fixed by the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 8305 of 2015

MS WELLEN

Applicant

And

MR WELLEN

Respondent

REASONS FOR JUDGMENT

Introduction

1. The husband was born in 1978 and is now 39 years of age. He is a (occupation omitted) by occupation and is in good health.

2. The wife was also born in 1978 and is now 40 years of age. She works part-time as a (occupation omitted) employed in a (employer omitted).

3. The parties were married in 2005 and separated in July 2015. Cohabitation commenced upon marriage and ceased at the time of separation – a period of some 10 years.

4. There is one female child of the marriage born in 2006 – she is nearly 12 years of age and in grade 6 at school in her preparatory year. The child lives with the mother and spends substantial time with the father – namely from after school Thursday to Saturday morning each week. From October 2018 it has been agreed that the child will spend five (5) nights per fortnight with the father during school terms as well as time during school holidays. From October 2019, it has been agreed that the child will spend six (6) nights per fortnight with the husband.

5. The child suffers from severe eczema associated with food and environmental allergies. She is especially allergic to nuts and is required to carry an Epi-pen in the event of an adverse reaction resulting in anaphylaxis. She requires the application of moisturisers for her eczema on a daily basis at a cost of approximately fifteen dollars ($15.00) per week. A hypo-allergenic moisturiser is also required to be applied over her entire body twice per day, also at a cost of approximately fifteen dollars ($15.00) per week. Those costs have been met by the wife, as have the costs of immunotherapy undertaken in 2015/2016 in the amount of approximately seven hundred and eighty dollars ($780.00). The wife has paid for all of the costs of bi-annual appointments with an allergy specialist since separation.

6. The wife has paid for other extra-curricular activities for the child since separation including (hobbies omitted) at a cost of approximately seven hundred dollars ($700.00) per year. The husband pays for the child to attend (hobby) classes at Suburb F.

7. The child also has learning difficulties, having been diagnosed as suffering from dyslexia in 2016. She requires significant daily supervision and attention in respect of her allergic conditions and eczema treatment, both of which require financial expenditure as referred to above.

8. As to the child’s learning difficulties, she has been tutored by one Ms P since the beginning of 2016 at an annual cost of approximately two thousand, two hundred dollars ($2,200.00). She had previously attended Tutoring of a Monday for six months between January 2016 and July 2016 at a cost of approximately eight hundred and forty dollars ($840.00), two hundred and fifty dollars ($250.00) of which was paid by the husband.

9. The child has also attended upon an education psychologist named Ms C since May 2015. The wife has paid at least one thousand and sixty-seven dollars ($1,067.00) for such psychology sessions.

10. The wife has continued to pay school fees for the child since separation exceeding six thousand dollars ($6,000.00) with a further payment of two thousand, six hundred and ninety-two dollars ($2,692.00) payable in respect of 2018 school fees. The wife has also paid all out of pocket school expenses such as for stationery, excursions, books, uniforms and shoes in the amount of one thousand dollars ($1,000.00) per year. A planned 2018 school trip to (omitted) as part of a year 6 camp will be paid for by the wife in the total amount of one thousand, two hundred dollars ($1,200.00) – the wife having already paid a five hundred dollar ($500.00) deposit in respect of same. School fees for the child will increase to approximately seven thousand dollars ($7,000.00) per year for the 2019 year at a School A. The wife in March 2016 paid a deposit of seven hundred dollars ($700.00) in respect of such schooling.

Beginning of Relationship – Ongoing Financial Dealings

1. The husband and wife met in about 2002 and commenced a relationship shortly thereafter. The wife deposed that at the commencement of their relationship, she had the following property:

   a)Motor vehicle – three thousand dollars ($3,000.00)

   b)Furniture – two thousand, five hundred dollars ($2,500.00)

   c)Superannuation – twenty thousand dollars ($20,000.00)

   d)Bank 1 savings – fifty thousand dollars ($50,000.00)

2. At paragraph 29 of the husband’s affidavit filed on 7 April 2017, the husband deposed that prior to marriage he and the wife had a similar amount of assets. The wife has set out at paragraphs 23 – 33 of her affidavit filed on 24 February 2018 a reliable history of financial dealings as between the parties from after the commencement of their relationship in 2002 up to the time of their separation in 2015. Specifically, the wife recorded in her affidavit that the parties purchased a unit at Property E in about 2007 for the sum of $295,000.00 although the property was registered in the husband’s sole name. The Property D property was purchased in about 2009 being a property situated at Property D. The wife alleges that such property was purchased without her knowledge in the husband’s sole name. The Property B property was purchased in the names of each of the husband and wife with them contributing equally to the purchase price of such property. I accept the respective party’s historical accounts as to the purchase of matrimonial assets in that regard.

3. It transpires that the parties have in substantial respects agreed as to the value of matrimonial assets and liabilities. Later is recorded such agreed valuations, absent agreed values and alleged liabilities in respect of motor vehicles, chattels, small loans and other alleged debts. In those respects, each party is to keep such assets as are presently in their possession and otherwise be responsible for such debts as have been respectively incurred by them.

Findings as to Contributions

1. There is a dispute between the parties as to the contributions of each of the husband and wife during the course of the marriage. To the extent that there were differences in the evidence between the husband and wife the following findings are made:

   a)The wife since separation has been the predominant care giver in respect of the child and is likely to remain so until the child attains her majority.

   b)The husband and wife made equal contributions toward the purchase of the Property B property.

   c)The husband was supportive of the wife’s intention to complete tertiary studies and offered to pay for the cost of future tuition for same during one period of separation.

   d)The wife was the primary homemaker and her income was almost entirely applied to the benefit of the family during the course of the relationship. The wife was responsible for nearly all of the housework and gardening, sometimes receiving assistance from her father who would help in the garden with pruning of palm trees and other bushes. The husband would mow the lawn.

   e)Almost all of the physical needs of the child relating to her education and health issues, including transport, were met by the wife.

   f)The wife did nearly all of the cooking and cleaning during the course of the relationship.

   g)The wife performed minor work only in relation to the Property D property, financial details concerning that property being kept from the wife by the husband.

   h)Following the birth of the child in 2006, the wife remained on maternity leave until her return to work on a part-time basis in 2007. The wife earned approximately sixteen thousand dollars ($16,000.00) – twenty-four thousand dollars ($24,000.00) during that time. When the wife was on maternity leave and not working, the husband made all mortgage repayments whilst the wife did all usual homemaker duties including cooking, cleaning, shopping and caring for the child.

   i)The wife made financial contributions toward the purchase of the Property B property in 2012 and by paying an amount of approximately five thousand dollars ($5,000.00) for the laying of new carpet throughout the house, as well as making payment for outdoor tiles in the amount of one thousand, nine hundred dollars ($1,900.00).

   j)The Property D property was purchased during the course of the marriage in circumstances where a purported guarantee given by the wife constituted part of the security for the making of a loan enabling the purchase of the property. The wife gave evidence that she was unaware of the existence of such guarantee and that she had not executed it. A handwriting expert was called to give evidence as to whether the signature on the guarantee was a forgery or not, but such evidence was inconclusive. Nevertheless, to the extent that the guarantee constituted security, the wife must be taken to have made a non-financial contribution to the purchase of such property, and that is a matter which has been taken into account overall in the relative assessment of the contribution which each party made toward the acquisition, conservation and maintenance of matrimonial property.

   k)The Husband earned much more than the Wife. He contributed financially to a far greater extent than the wife toward the acquisition, maintenance and conservation of matrimonial property.  His earnings as set out in his Income tax returns clearly reflect the disparity in earnings between him and the wife.  The wife didn’t produce a group certificate for the year ended 30 June 2018, but relied upon her financial statement filed 1 June 2018, which included amounts for new-start allowance, family tax benefit, the newly calculated lower child support amount paid by the husband, as well as her wage. The respective taxable incomes for the financial year ending 30 June 2018, based upon the documents referred to above, are as follows:

   i)Husband         $275,269.00 (Ex 7)

   ii)Wife               $38,131 (Wife’s Financial Statement – 1 June 2018)

   l)The husband properly paid maintenance post-separation as calculated by the relevant child support agency until the agency erroneously altered his payment obligations downwards in February 2018 from about $1,300 per month to $348 per month.  (Transcript pp 162 – 164)  The husband’s evidence that he argued against such change is to be accepted. It is also to be accepted that he intends to have the amount payable by him appropriately revised after the court proceedings have concluded. The wife’s actual weekly receipts are likely to increase by about $250 when the child support payments are increased after trial, increasing her annual income to approximately $51,131.00.   

Wife’s Expenditure and Income Post-Separation

1. Since separation the wife has lived with the child of the marriage at her mother’s home. She has made ongoing payments to her mother in the low amount of approximately one hundred dollars ($100.00) per week by way of board. She pays for groceries for herself and her daughter.

2. The wife has continued to pay for the child’s medical expenses, school fees, pharmaceutical expenses and other day to day living expenses, some such expenses being covered by child maintenance payments from the husband.

3. The wife works as a (occupation omitted) at a (employer omitted) between 9.00am and 5.00pm when the child is with the father, and otherwise she works school hours, her total hours ranging from between 15 hours per week – 30 hours per week over the years since separation. As at February 2018 the wife’s income was in the amount of approximately twenty-six thousand dollars ($26,000.00) per year. The wife also receives a Family Tax Benefit of seventy dollars ($70.00) per week and a new-start allowance of one hundred and eleven dollars and fifty cents ($111.50) per week. The wife borrowed seven thousand dollars ($7,000.00) from Bank 1 in January 2018 to meet additional expenses.

4. The wife is studying a (course omitted) to better her education and employment prospects, having commenced those studies in 2017. That Diploma is due to be completed at the end of 2018 after which the wife is hopeful of moving straight into second year of a (omitted) degree. That Degree will attract a HECS obligation in due course, the extent of which is presently unknown.

Husband’s Financial Dealings and Income Post Separation

1. The husband continued in the position of a (occupation omitted) for (employer omitted) subsequent to separation. Financial statements filed by the husband in the proceedings recorded his income as follows:

   a)Financial Statement filed 20 June 2017     $5,255.00 per week

   b)Financial Statement filed 16 February 2018  $5,907.00 per week

   c)Financial Statement filed 26 March 2018 $5,907.00 per week

   d)Financial Statement filed 27 March 2018 $5,907.00 per week

   e)Financial Statement filed 31 May 2018     $5,967.00 per week

2. The husband purchased a property at Property A in 2017. He has demonstrated that he has a capacity to purchase further property based upon his having earned considerable income in the past from his (employment omitted) activity.

Husband’s Non-Disclosure During the Course of Proceedings

1. The husband on numerous occasions failed to comply with Court orders requiring appropriate disclosure of his financial situation. For example:

   a)The husband failed to file a Response consequent upon service upon him of the wife’s Initiating Application, such application having been filed on 20 December 2016.

   b)On 8 March 2017 Judge Baumann (as he then was) ordered that the husband file and serve a Response by 7 April 2017, but the husband failed to do so.

   c)On 21 April 2017 Judge Baumann made a further order that the husband file and serve a Response within 21 days and make full disclosure of a range of documents within 30 days. The husband filed a Response on 16 February 2018, one month before the scheduled trial date of 12 March 2018. The husband otherwise failed to make full disclosure.

   d)Following letters sent by the wife’s solicitor dated 1 and 2 March 2018 requesting urgent disclosure, the husband made limited but incomplete disclosure on 7 March 2018.

   e)On 12 February 2018 the husband swore a financial statement which failed to comply with his disclosure obligations – namely, the husband failed to disclose the fact that he had in December 2017 become the registered owner of a property situated at Property A. The fact of such ownership was communicated to the husband’s solicitor on the evening of 7 March 2018 by letter from the wife’s solicitor, but as at the close of business on Friday, 9 March 2018 (three days before the date set for the commencement of trial) the wife’s solicitor had not received any documentary evidence from the husband or the husband’s solicitor in respect of such property.

   f)The trial was listed for hearing on 12 March 2018 but was adjourned because of the husband’s material non-disclosure, a fact admitted by his then Counsel. On 11 April 2018 it was ordered that the costs thrown away as a result of the adjournment of the trial ought to be paid by the husband. It was also ordered that the hearing of the quantification of such costs be adjourned to 16 April 2018. The husband did not appear on 16 April 2018, at which time an order was made in respect of the adjournment of the trial that the husband pay the wife’s costs fixed in the amount of seventeen thousand, seven hundred and seventy-five dollars and five cents ($17,775.05) on or before 4.00pm on 16 May 2018. The costs of the appearance on 16 April 2018 were reserved.

2. The husband’s demonstrated material non-disclosure falls within conduct countenanced in Weir & Weir (1993) FLC 92-338 where the Court found that in circumstances of clear non-disclosure by one party a Court should not be “unduly cautious” in making findings in favour of the other party where appropriate.

Credibility of Witnesses

1. The wife presented as a truthful person who during the course of cross examination impressed as a witness of credit.  Her answers were clear and responsive and her demeanour was appropriate

2. The husband presented as a witness lacking in credibility. He was evasive when under cross examination and on a number of occasions would only answer questions upon the Court directing him to do so. To the extent that there was a conflict of evidence between the husband and wife, the wife’s evidence is mostly to be preferred.

3. The husband called his sister in support of his assertion that he had been loaned money by his sister in the amount of eighty thousand dollars ($80,000.00) which remained due and outstanding at the time of trial. The sister did not present as a creditworthy individual. She failed to produce any document evidencing any such loan, nor did she produce bank statements or other financial records which would tend to constitute evidence of any such loan, notwithstanding that she had, by letter, been asked to do so. The amount of the alleged loan is not insubstantial, and one would have expected a person in the position of the husband’s sister to be able to point to the source of such funds allegedly lent by her to her brother. That she did not do so, and that the husband’s lawyers did not produce any such documents when such documents could have been produced, gives rise to the Court drawing an adverse inference against the husband’s sister’s evidence in respect of such failure.

4. The husband called his father in support of his assertion that he had been loaned money by his father in the amount of one hundred thousand dollars ($100,000.00), and which he claimed remained due and outstanding at the time of trial. The father did not impress as a witness of credit either. No documentary evidence of the alleged cash loan by him to the husband – from a “family nest egg” - was produced when it could have been. No bank statements were produced to verify payment into any particular account in respect of any such alleged loan money. The Court is not prepared to accept the evidence of the husband’s father for the same reasons as advanced for its failure to accept the evidence of the husband’s sister. The husband’s father was also evasive when giving evidence and, on occasions, only answered questions directly put to him after having been told by the Court to do so. 

1. In those circumstances, the Court finds that the husband has failed to satisfy the evidentiary onus of proof of his having been advanced monies which were said to be repayable as alleged by either his sister or his father.

Husband’s Undertaking Given to the Court on 12 March 2018

1. On 12 March 2018 the husband, by his Counsel, undertook to the Court “not to further encumber any of the Respondent’s properties or otherwise to reduce the matrimonial pool of assets.”

2. Since the giving of such undertaking the husband has failed to continue to make full monthly mortgage repayments in respect of three properties such that the mortgage indebtedness in respect of such properties had increased up until July 2018 as follows:

   a)Property B property        Increase of $4,205.00

   b)Property C property            Increase of $7,752.00

   c)Property D property            Increase of $7,827.00

   Total  $19,784.00   

3. The husband has not advanced any credible reason for his failure to make full mortgage repayments subsequent to 12 March 2018 in respect of the three properties last referred to. His income enabled him to make such payments before March 2018 and such income has not substantially changed since then. It is appropriate that the sum of $19,784.00 be added back to the asset pool by reason of the husband’s failure to maintain and conserve the net asset value of such properties, or alternatively on the basis of wastage.

Wife’s Other Claims for Add Backs

1. a)The wife has alleged in paragraph 3 of her affidavit filed on 4 April 2018 that the husband has made large and unexplained transfers in the amount of $157,633.00. That matter was addressed in cross examination (pages 152-158 of the transcript) where the wife’s case was put and denied by the husband. Evidence of withdrawals was established but there is insufficient evidence to support the contention that the husband made illegitimate use of those funds or otherwise sought to hide such funds from the wife. The wife’s claim for an addback in that regard has not been proven.

   b)The wife has alleged in paragraph 37 of her affidavit filed on 11 April 2018 that the husband made withdrawals totalling the sum of $59,620.00 over a period between 27 July 2017 and 5 March 2018 and that such withdrawal were in addition to regular purchases at supermarkets, petrol stations, clothing stores, restaurants, cinemas and the like. At transcript page 152.25 the husband referred to his habit of withdrawing money from his Bank 2 account in cash and depositing such sums into his Bank 3 account from which he would make payments for various legitimate outgoings. The husband swore to that practice at paragraph 6 of his affidavit filed on 9 July 2018. At paragraph 8 of that affidavit the husband explained how it was only his Bank 3 account which had been set up for internet transfers and that withdrawals from the Bank 2 account in the amount of approximately $53,000.00 had been so deposited into the Bank 3 account. The husband’s evidence in this respect ought to be accepted as truthful, notwithstanding that the husband’s unorthodox practice, on its face, constituted a doubling up of human endeavour to achieve the payment of a single bill. The husband’s evidence, closely scrutinised on this aspect of the case, was genuine. Those withdrawals totalling $59,620.00 as alleged by the wife ought not to be added back to form part of the property pool.

   c)The wife has alleged in paragraph 26 of her affidavit filed 20 May 2018 that there were cash withdrawals made by the husband in the amount of $38,500.00 from the husband’s Bank 2 Internet banking account between 9 April to 26 April 2016. Those transactions had been the subject of recent disclosure prior to trial. The husband has satisfactorily explained such expenditure in paragraphs 14 - 16 inclusive of his affidavit filed on 9 July 2018, namely that such monies had been withdrawn either in respect of living expenses, car expenses, or for the payment of legal fees. The husband’s explanation in that regard was reasonable and ought to be accepted. However, to the extent that such payments represented payments for legal fees in the amount of $26,900.00, such fees should be added back as constituting part of the property pool (Omacini & Omacini (2005) 191 FLR 317).

   d)The wife has alleged in paragraph 6 of her affidavit filed on 20 May 2018 that expenditure by the husband on a medical procedure of a personal nature in the amount of $2,500.00 ought to be added back. The procedure in question was for a small sum of money and was a “one off” expenditure. It falls into the category of de minimus expenditure which ought not to be the subject of an add-back.

   e)The wife has alleged that the husband used rent monies of $450.00 per week in respect of the Property B property to pay the total sum of $21,150.00 to his sister Ms S between 28 April 2017 (see Exhibit 6) and 26 March 2018 (that being the date of filing of a Financial Statement by the husband wherein at item 29 the husband recorded a weekly expenditure of $450 being paid by him to his sister Ms S in respect of legal fees). In the light of earlier findings that there was no evidence probative of any loan having been advanced by the husband’s sister to the husband, and further in the light of the husband providing no reasonable explanation as to why he would divert rent monies payable in the respect of the jointly owned Property B property to his sister, the amount of $21,150.00 should be added back in to the property pool.

   f)The wife has alleged that the sum of $10,000.00 ought to be added back as wastage in respect of the decrease in value of the Property A property purchased in December 2017 for the sum of $430,000.00 but which, at the time of trial, was valued in the amount of $420,000.00. It is appropriate that the sum of $10,000.00 be added back. The husband unilaterally entered into a financial transaction which has resulted in a loss due to no fault of the wife.

   g)The wife has alleged that though the husband purchased the Property A property in December 2017, such property has not been rented or otherwise resulted in any financial return to the asset pool. She claims that the amount of $9,600.00 had been expended between December 2017 and the date of trial based upon the husband’s itemised weekly expenditure of $300.00 in respect of that property as particularised in item 21 of the husband’s Further Updated Financial Statement filed on 31 May 2018. The husband unilaterally has caused such loss and the sum of $9,600.00 properly ought to be added back into the property pool.

Property Adjustment Orders

1. The husband has made financial contributions which have substantially exceeded those of the wife. He has, however, been able to make higher financial contributions because the wife was largely responsible for the maintenance and conservation of the family home and the care of the one child of the marriage. Had the wife not been in a position to do so, the husband would not have been able to earn the money which he did, both during the course of the marriage, and subsequently.

2. It has been held in a number of cases that a spouse’s contribution as a homemaker or parent may be recognised by an order under section 79 of the FLA even though such contribution may have no direct connection with any particular jointly owned property of the parties to the marriage or property owned by either of them. (see Shaw & Shaw (1989) FLC 92–010 at 77,292; Dicksons & Dicksons (2012) 50 Fam LR 244; Wallace & Manning (2017) FLC 93-759).

3. It is appropriate, and just and equitable in this case, for the wife to receive the benefit of a 62.5% - 37.5% property adjustment order in her favour considering the wife’s contribution both as a homemaker and parent as well as her direct financial contributions during and after the course of the marriage. The wife earns substantially less than the husband and is unlikely to ever match his earnings in the future. The 62.5% - 37.5% is based upon a 50% - 50% property split in respect of the 10 year marriage, but with the wife receiving a 12.5% uplift by reason of her ongoing care for the child of the marriage as well as having regard to her ongoing and future needs which have been the subject of section 79(4)(e) and section 75(2) consideration. The wife remains living with her mother for very low rent and is likely to remain doing so for a number of years.

4. Further, as to the specific matters to be addressed in section 79(4) of the FLA:

   a)The husband, by reason of his greater earning capacity, was able to ensure that assets acquired both pre-marriage and during the course of the marriage were maintained and kept as required. He managed the financial affairs during the course of the marriage. The wife did not have ready access to financial accounts or have a specific understanding of the amount of money paid on a monthly basis by the husband to meet mortgage repayments. Her suspicions as to the husband not having spent all of his earnings in either the acquisition, conservation or maintenance of the matrimonial assets during the course of the marriage, however, have not been proven. The husband is to receive the benefit of findings that he made substantially higher financial contributions in respect of matrimonial property than the wife.

   b)Each of the husband and the wife made non-financial contributions toward the acquisition, conservation and improvement of matrimonial property. The wife’s contributions in that regard were not as great as the husband’s because she was the primary carer for the one child of the marriage. That is not a criticism of the wife, nor is the fact that the mother was the child’s primary care giver and homemaker a criticism of the husband.

   c)The wife’s contribution as a homemaker and caregiver to the child was enabled by, and supported by, the husband, who worked hard throughout the marriage. The husband was able to make a greater contribution toward repairs and maintenance of the real properties because the wife was caring for the child. They each supported each other in a practical sense.

   d)The husband’s earning capacity will not be adversely affected by the making of the orders as proposed. Neither will the wife’s earning capacity be affected. The wife will be better able to manage financially in circumstances where she already has, for a considerable period of time, had the benefit of living at very little personal cost with her mother.

   e)Both parties are of a similar age, are in good health and each are in gainful employment. The wife intends to undertake tertiary study in a (employment omitted) context which is likely to enable her to earn substantially better income in the future. The child is presently almost 12 years of age. The wife is likely to be in a position where she is able to live largely independently in six years’ time after the child finishes secondary school. There is no reason to believe that the husband will not continue to appropriately pay child maintenance during that six year period. He is likely to continue to spend substantial time with the child during that period, spending money on her at the same time. It is likely that during that six year period, each of the husband and the wife will be able to re-partner with the chance that their respective financial circumstances may improve thereby.

   f)The wife is likely to continue to be able to receive a new-start allowance as well as a Family Support payment, both of which sums will further enhance her financial position.

   g)Each of the husband and wife will be able to maintain their reasonable pre-separation standards of living notwithstanding the making of the orders as proposed.

   h)The wife does not receive any maintenance payment from the husband apart from child support as referred to above. The wife intends to study (omitted) and seeks lump sum maintenance in the amount of $33,400.00. In that regard, the husband has, in the past, indicated that he is prepared to support the wife in relation to her future study intentions. The wife does not presently have the financial capacity to meet the cost of such future education. The estimated cost of future study as contained in annexure W-13 to her affidavit filed on 24 February 2018 was the subject of criticism during the course of cross examination as being an overstatement of the cost of the proposed study. The actual payment required to be made in respect of such (omitted) study was unclear. Bearing in mind that the wife does have an entitlement to delay payment of tuition fees by reason of the HECS scheme, and further by reason of the uncertainty associated with what fees are actually payable in respect of the (omitted) degree intended to be undertaken, I consider that in all respects it would be just and equitable, and reasonable, for the wife to receive lump sum maintenance in the amount of half of what is claimed, namely the amount of $16,700.00. Such amount is reasonable on the added basis that it is a payment soon to be made in respect of a future expenditure. The result of such a distribution will enable the wife to fund any future tertiary studies which are likely to result in her obtaining work in the future as a (occupation omitted) earning a reasonable income.

   i)The wife, by undertaking the role of homemaker and caregiver to the child as referred to above, enabled the husband to earn the money that he did. Accordingly, the order for spousal maintenance in the amount of $16,700.00 properly reflects her contributions in that regard.

   j)The marriage was one of relatively short duration. Both parties are of an age where they can re-partner and increase their educational qualifications. It is probable that had the parties’ marriage been of a shorter duration, the wife would have undertaken some study earlier. She has, by reason of the marriage, had her earning capacity adversely affected to an unascertainable extent.

   k)The wife will continue to care for the child of the marriage and the proposed alteration of property interests reflects, in part, that reality.

   l)The wife is not in another relationship. The husband has been in a relationship of short duration. I do not consider that there are any financial circumstances which adversely impact upon either the husband or the wife in that regard.

   m)The proposed property adjustment orders will have an effect on ownership of matrimonial property registered in either joint names or in the name of the husband solely because some property will need to be sold for the wife to receive a distribution. That is a necessary concomitant to family law property proceedings in cases such as the present.

   n)The husband will continue to meet his obligations pursuant to the provisions of the Child Support (Assessment) Act 1989. That is a circumstance which has been in place for a number of years since separation and is not a novel one. It will not be effected by the making of the order for lump sum maintenance as he is likely to continue earning good money in his (occupation omitted) position into the future.

Unpaid Costs Order

1. On 21 May 2018 it was ordered that execution of costs orders made on 11 April 2018 and 16 April 2018 be stayed. The orders of 11 April 2018 and 16 April 2018 are, by amended notice of appeal filed on behalf of the husband, subject to appeal.

2. On discretionary grounds I consider that the stay order ought to remain either pending appeal or the resolution of the appeal by consensus. The orders intended to be made will facilitate the payment of money to the wife in the near future such that her need for early payment of any costs order is no longer a pressing issue.

Asset Pool

1. Based upon the above findings, the asset pool in respect of the parties is as follows:
   Property         Net Value
   Property B property                     $310,795.00

   Property C property  ($87,752.00)
   Property D property  $109,173.00
   Property A property  $76,000.00
   Super Fund 1 – Husband   $197,414.00
   Super Fund 1 – Wife   $45,322.00
   Super Fund 2 Super – Wife   $30,673.00
   
   
   Sub-Total  $681,625.00
   
   

   Plus Addbacks
   Non-payment of Mortgages                   $19,784.00
   Bank 2 withdrawals re legal fees           $26,900.00
   Property B rent paid to sister    $21,150.00
   Property A wastage                  $10,000.00
   Property A Mortgage                   $9,600.00
   
   Sub-Total        $87,434.00
   
   Assets             $681,625.00
   Add-backs       $87,434.00
   Total                 $769,059
    

2. The wife has sought to have taken into account as liabilities the following:

   a)a personal loan in the amount of $6,136.00.

   b)an alleged loan from her mother in the amount of $10,000.00.

   c)a VET debt in the amount of $4,150.00.

   d)a Bank 1 credit card debt in the amount of $1,239.00.

3. It has been consistently held that the making of property adjustment orders ought not to be attended with an overly mathematical approach. The claimed liabilities last referred to are in the same nature, albeit to a smaller extent, than similar liabilities faced by the husband. To the extent that each of the husband and the wife are similarly indebted, the responsibility for repayment of debt by each of them ought to be on the basis of each party being respectively liable for their own debts. Alleged debts owing to family members as found by the Court to have not been proven have not been taken into account.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 16 August 2018