Ashleigh & Ashleigh

FAMILY COURT OF AUSTRALIA

ASHLEIGH & ASHLEIGH

[2007] FamCA 235

FAMILY LAW - PROPERTY SETTLEMENT - Contribution – just and equitable
FAMILY LAW - CHILD SUPPORT DEPARTURE – Proper needs of child

Family Law Act 1975 (Cth) Sections 75 & 79
Child Support (Assessment) Act 1989 ss 117 , 123 & 124

In the Marriage of Hickey (2003) 30 Fam LR 355;
In the Marriage of Coghlan (2004) 33 Fam LR 414;
In the Marriage of Omacini (2005) 33 Fam LR 134;
In the Marriage of Lenehan (1987) 11 Fam LR 615;
In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712;
In the Marriage of Zyk (1995) 19 Fam LR 797;
Mallett v Mallett (1984) 9 Fam LR 449;
In the Marriage of Ferraro (1992) 16 Fam LR 1;
In the Marriage of Shewring (1987) l2 Fam LR 139

APPLICANT:

Mrs Ashleigh

RESPONDENT:

Mr Ashleigh

FILE NUMBER:

SYF

3769

2005

DATE DELIVERED:

22 March 2007

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Judicial Registrar Loughnan

HEARING DATE:

15 & 16 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr P. Campton

SOLICITOR FOR THE APPLICANT:

Gayle Meredith & Associates

COUNSEL FOR THE RESPONDENT:

Ms L. Snelling

SOLICITOR FOR THE RESPONDENT:

Oxford Legal

Orders

1.By way of departure from the assessments of child support issued in relation to the child a son born in January 1989 for the period 11 July 2005 to 30 September 2007 the husband’s liability is fixed at $28,620.

2.The parties shall forthwith do all acts and sign all documents to cause the fund representing the proceeds of sale of the former matrimonial home be disbursed:
a)to the wife:
i)69%, by way of property settlement; and
ii)$28,324.38 minus any payments that the parties agree or the Court subsequently finds were made by the husband from 11 July 2005 to date (being payments over and above the $295.62 acknowledged by the wife at paragraph 152 of her affidavit sworn 20 October 2006) - by way of lump sum child support

and
b)to the husband the remaining balance.

3.The payment of the sum identified in 2 a) ii) above shall be deemed to be in full satisfaction of any and all assessments that issue pursuant to order 1.

4.Otherwise the husband and the wife shall each solely be entitled to the exclusion of the other to all other property and resources not already referred to in these Orders in the possession of that party at this date.

5.In the event that either party should fail to sign any document necessary for the implementation of these orders, the Registrars of this Court are appointed pursuant to s.106A of the Act to sign such document in the name of the defaulting party and to do all things to give validity to such document.

6.Leave is granted to both parties to re-list these proceedings by arrangement with the Associate to Judicial Registrar Loughnan on 7 days’ notice in relation to the form or implementation of these orders or in relation to legal costs.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3769 of 2005

Mrs Ashleigh

Applicant

And

Mr Ashleigh

Respondent

REASONS FOR JUDGMENT

After a marriage of more than 20 years the parties cannot agree on a settlement of their property. The wife seeks an order for child support departure and for payment of child support by lump sum.

Applications

By a minute handed up in the course of final submissions the wife seeks:
1. As to S. 79:
1.1That the parties forthwith do all things and give all instructions as may be necessary to cause the balance of proceeds of the sale of the [P] property held on trust for the parties by their solicitors to be applied as follows:

1.1.1In payment to the wife of an amount equivalent to 80% of the balance; and
1.1.2In payment of the balance to the husband.

1.2S. 106A order.

2. As to child support departure:
2.1That the husband forthwith pay to the wife by way of lump sum child support in respect of the child [a son] born [January 1989] for the period 11/7/05 to 30/9/07 the sum of $36,884.
2.2That the husband be restrained from doing any act or thing so as to cause any portion of monies to be received by him pursuant to Order 1.1.2 above to be disposed of or otherwise applied or expended until his liability pursuant to Order 2.1 is satisfied, and thereafter he may enjoy any balance of such monies.
2.3That in the alternative, and without concession, there be a departure from the administrative assessment of support payable by the husband to the wife in respect of the child [a son] born [in] January 1989 for the period 11 July 2005 to 30 September 2007 so that such payment be in the sum of $1,430 per month, and by way of implementation of such order the parties:

2.3.1Do all such things and give all such instructions as may be necessary to cause the monies to be received by the husband pursuant to Order 1.1.2 to be applied.

2.3.1.1As to the sum of $26,875 ($27,170 less $295) to be paid forthwith to the wife being a lump sum for the period 11 July 2005 to 28 February 2007.

2.3.1.2As to a sum of $9,714 to be placed into an account in the names of the parties with a financial institution from which the husband be restrained from withdrawal of any funds from same until after 30 September 2007, and the wife be at liberty to withdraw the sum of $1,430 from such account on the 29^th day of each month commencing on 29 March 2007 until 29 September 2007, and after 30 September 2007, the husband have the benefit of the monies (if any) in the said account.

By his Amended Response filed 25 January 2007 the husband seeks:
1.That the proceeds of sale of the former matrimonial home be disbursed as to:
(a)52.5% to the Applicant Wife; and
(b)47.5% to the Respondent Husband
2.That each party retain all items of personalty, bank accounts and the like in their respective possession or control.
3.That each party retain all their respective superannuation entitlements.
4.That the Application be otherwise dismissed.

Issues for determination
The issues for determination are:

Property settlement

Should the assessment of contributions and adjustments be made in relation to one pool of assets or should there be a superannuation pool and non-superannuation pool?
Should $12,941 ($7,921 being the shortfall on the initial progress payment to M Homes in October 2003 and $5,650 being the reported shortfall in the payment to F Air Conditioning in March 2004) be included as a notional asset and treated as a preliminary distribution to the husband?
Are the current debts of the parties or any part of them joint debts for the purposes of identifying the net pool of assets?
Was the husband guilty of waste in the nature of In the Marriage of Kowaliw in respect of his occupation and stewardship of the former matrimonial home at P from the date of separation to the date of sale?
What adjustment should there be in relation to section 75(2) matters?

Child support

Should there be a departure from child support for the period July 2005 to the date of the hearing: and
oif so for what part of that period?
oAt what rate?
Should any resultant liability be paid directly out of the funds otherwise payable to the husband for property settlement?
Is the proper rate of child support liability for the husband from the date of the hearing to September 2007 $200 per week (as the husband contends) or $330 per week (as the wife contends) or some other amount?
Should any resultant liability be paid directly out of the funds otherwise payable to the husband for property settlement, paid on a monthly basis from a secured fund or paid by way of periodic payment by the husband directly?

Short History

The wife and husband are 46 and 47 years of age respectively. They were married in May 1984, finally separated in August 2004. Their divorce became final in January 2007.

Children
The parties have two children:
A daughterwho was born in June 1987 and as at the date of the hearing was 19 years of age; and

A sonwho was born in January 1989 and as at the date of the hearing was 18 years of age

Background Facts

The wife commenced work as a teacher in 1981 and commenced contributions to her current superannuation fund.
The parties were married in May 1984. The wife was working as a teacher and the husband was a Department Head for R Hotels. The wife then had $10,000 in savings, a Ford Laser motor vehicle and some jewellery. The husband had a Ford Escort motor vehicle and a debt.
On 20 December 1984 they purchased a home at R for $95,000. The husband’s father made a gift that he intended to benefit both of the parties, by allowing them to buy the property at a discounted price. The wife contends that the effective value of the gift was $15,000 and the husband contends it was $30,000. The wife parents gave the parties $15,000. The wife contributed $10,000 pre-marriage savings. The parties otherwise borrowed $60,000 secured by way of mortgage to complete the acquisition from the Commonwealth Bank.
On 16 June 1987 the child a daughter was born. The wife left paid employment for about 4 and one half years.
This period of the history is unclear, there is a conflict on the affidavits and the wife’s evidence is internally inconsistent. It is likely that during 1988 the parties separated and the husband took up a position in Adelaide. The parties were reconciled after about 6 months and the wife and daughter joined the husband in Adelaide.
In January 1989 the child a son was born.
In November 1989 the parties sold the R home for $202,500. The proceeds of the R property were divided equally between the parties so that they each received the sum of $79,125. I assume from that fact that the parties separated at that time.
In August 1990 the parties jointly purchased the former matrimonial home, P for the sum of $250,000. The wife applied $82,000 to the acquisition. The husband contributed $69,000.
In 1990 or 1991 the family moved from Adelaide back to Sydney. The husband left his job with R hotels at that time and took up a new job with the S Hotels that he had secured before leaving Adelaide. The wife returned to a position as a teacher. They lived with the husband’s parents for six months and were able to save funds to repay the husband’s credit card debt of $10,000.
In January 1994 the parties again relocated to Adelaide and in December 1995 the family returned to Sydney.
In December 1996 the husband proposed to enter into partnership with Mr K to acquire a take away food franchise known as “[O]”. In November 1997 the husband, enters into the O franchise business in partnership with Mr K.
A loan facility of $35,000 secured by way of mortgage over the P property was established to acquire the business. The partnership in relation to the business was incorporated in the form of B Pty Ltd. In November 1997 the husband drew up an agreement between himself and Mr K for Mr K to acquire his share of the O business for the sum of $7,500.
In May 1998 Mr K commenced action seeking to recover damages arising from the husband’s conduct of the O business. In March 2000 a further claim in relation to the husband’s operation of the O business was made and it was compromised for a sum of $10,825. Those moneys were financed by way of further drawings on the home loan.
The husband says that the parties lost $48,000 on the business. As soon as they left the business, the husband obtained a job with R Company. After four years in that job he went to E Company for 12 months. Upon the closing of that section of E Company, the husband went to T Company for three years and then, in about 2003, he joined A Hotels.
In May 2003 the parties arranged for the P home to be demolished and rebuilt. They obtained a re-finance of their existing facilities with the Commonwealth Bank and further funds so as to achieve a mortgage of $400,000.
In August 2003 the parties separated.
The wife asserts that in September 2003 the husband failed to account for a sum of $7,291 in relation to the completion of the P property by M Homes and the re-finance of the mortgage facility on that property in favour of the Commonwealth Bank.
In October 2003 the parties borrowed a further $25,000 to re-finance a debt on the husband’s motor vehicle.
In December 2003 the parties reconciled.
In December 2003 $31,478 was drawn down upon the home loan in order to finalise the debts associated with the failed O business venture.
The wife alleges that in March 2004 the husband retained a sum of $5,650 from monies available on the Commonwealth Bank loan which had been earmarked to pay for air conditioning. The wife paid out the amount owing to the air conditioning contractor from her Visa card account.
In April 2004 the family re-occupied the new house at P.
In July 2004 the husband received a tax refund of between $20,000 and $25,000.
In August 2004 the parties separated for the last time when the wife and children vacated the matrimonial home at P.
In October 2004 the children ceased spending time with the husband save on one occasion when the son spent time with the husband in February 2005.
On 17 January 2005 the husband ceased making payments in respect of the re-finance of the loan facility relating to the Ford Fairmont Ghia.
The husband made his last payment on the mortgage secured upon the home at the end of January 2005. The husband contends that he “met all the mortgage payments up to that time”. The husband ceased paid employment in about March 2005 and except for two periods, one in 2005 and the other in 2006, has not had paid worked since.
On 17 July 2005 the wife applied for an administrative assessment of child support.
On 17 August 2005 the Commonwealth Bank made a demand for payment of $26,508.34 relating to the Ford Fairmont Ghia loan. The default on this loan compounded with penalty interest to a sum of $32,160 as at 11October 2006.
On 19 August 2005 the wife filed an application for property orders.
In January 2006 the husband’s partner, Ms M commenced to occupy the P home.
In February 2006 the Child Support Agency reviewed the administrative assessment of child support for the period 1^st December 2005 until a child support terminating event, by fixing the husband’s child support income at $45,000 per annum. On 22 February 2006 a Child Support Assessment issued for the period 11^th July 2005 to 30^th November 2005 in the monthly amount payable by the husband of $21.67 and for the period 1 December 2005 to 10 October 2006 at $188 per month.
On 6 June 2006 a child, Y, was born to the husband’s partner and the husband.
In August 2006 the husband and the husband’s partner vacated the P home and almost immediately, the mortgagee took possession of that property.
On 21 October 2006 a child support assessment issued in relation to the period 11 October 2006 to 12 January 2007 fixing the husband’s monthly liability at $157.67. This assessment was based on the husband’s child support income of $45,000 per annum (reflecting the February 2006 decision).
On 6 November 2006 orders were made by this Court requiring the parties to apply $15,000 from the proceeds of sale of the P home for the purposes of the husband’s legal fees and the remaining proceeds were to be invested in a controlled moneys account.
On 17 November 2006 a child support assessment issued in relation to the period 13 January 2007 to 30 September 2007 fixing the husband’s monthly liability at $26.67. This assessment was based on the husband’s child support income of $9,253 per annum (reflecting the husband’s “05/06 Provision taxable income plus any supplementary amounts”).
In January 2007 the parties’ divorce became final.
The former matrimonial home at P was sold by the mortgagee in January 2007.
Ms M earns about $80,000 per annum.
The parties’ son is in Year 12 at S College and will undertake the HSC at the end of 2007.

Credit and Submissions

The evidence of the witnesses

The only witnesses called for cross-examination were the parties.
There are some relevant factual disputes. The parties each assert that they suffered from depression in recent years. There is some evidence to support those contentions and the fact is conceded in relation to the wife. Whether because of illness or otherwise, neither of the parties was a good witness. They are very critical of each other in their affidavits and that set the tone for cross-examination.
The wife gave inconsistent evidence. The wife would have it that the O business venture was the husband’s project and was implemented against her strong opposition. However, she readily conceded in cross-examination that she was happy about the project because she was unhappy about the frequent moves that had been necessitated by the husband’s previous employment. She also conceded that she signed the necessary documents for the finance to commence the project. The wife sought to minimise the problems associated with negotiations with the P improvements by M Homes. She sought to convey that the husband had not informed her of the issues or negotiations with M Homes but later conceded being involved in at least one conference with the solicitor acting for the parties in relation to the building dispute. The wife was pedantic in relation to seemingly innocuous questions. For example she strongly rejected the proposition that she had worked as a contractor repairing sheets. It transpired that she conceded that she had repaired sheets, she just cavilled with the description of ‘contractor’.
The husband gave directly inconsistent answers to questions. For example he said that he excluded from his contemplation the idea of retaining the P property before a conference held on about 15 December 2005 and yet he agreed that his Response filed at about that time sought orders that he retain the property. When confronted with that he said, words to the effect “I was in two minds.” An important part of the husband’s case on child support is that the son finished secondary school last year. However, he conceded in cross-examination that the son was in Year 9 in 2004 and that he had not repeated a year. That means that the son is in Year 12 in 2007.
On the other hand the husband made concessions against interest. He not only failed to challenge but readily conceded evidence given by his father and sister and the gist of evidence from the wife about SMS messages he sent her in 2005. In September 2005 the husband told his father and sister, among other things:
“I don’t care if I get nothing as long as she gets nothing”
and later in the same conversation
“…I have my home, why should I move out of it? They will get what they deserve.”
Unfortunately the conceded evidence is entirely inconsistent with his case and contradicts his evidence to the effect that he is not largely responsible for the costs and losses associated with the forced sale of the P property.
In the circumstances I am not able to simply prefer the evidence of one party over that of the other. Findings of fact, where possible, must be determined issue by issue.

Submissions

The written submissions made on behalf of the wife in relation to the case as it was finally argued are:

“7.    CONTRIBUTIONS PURSUANT TO SECTION 79(1) – (4)

Section 79(4) (a)

Financial contributions made directly or indirectly on by or on behalf of a party or a child of the marriage, to the acquisition, conservation or improvement of any property of the parties or any of them.

·Throughout the period of cohabitation, the wife applied all her income and savings for the benefit of the family.
·Throughout the period of cohabitation, the income applied by the wife to the household was substantially superior to that of the husband (W#15, 38).   The husband’s employment throughout the period of cohabitation was variable and inconsistent (W#17, 37).
·At the commencement of cohabitation, the wife contributed:
a.       A Ford Laser motor vehicle;

b.       Savings of $10,000
c.       Jewellery
d.       A superannuation entitlement. (W#39)
·At the commencement of cohabitation, the husband contributed :
a.       A motor vehicle subject to a debt (W#40).
·In late 1984 the husband’s parents contributed a $15,000 reduction in the purchase price of the parties’ first home at [R] (W#41). The husband contends that such contribution was $30,000 (H#7). The wife’s parents contributed on behalf of the wife a gift of $15,000 to the acquisition (W#41). The wife contributed her $10,000 pre-marriage savings to the acquisition.
·….
·The husband occasioned a further waste by way of recklessly, negligently and wantonly dealing with assets that otherwise would have formed part of the pool of property available for distribution between the parties subsequent to separation so as to reduce and minimise the value of such assets being:
·i.        Continuing in occupation of the matrimonial home subsequent to separation while not meeting the outgoings in respect of that property and failing to occasion a disposal of the property – waste not less that $59,177 (W#123). Such quantum will be compounded by the addition of the costs of the mortgagee in litigating to obtain possession of the property for sale
ii        The husband failed to pay the council rates in the sum of $4,500 (W128.4).
iii.By way of failing to make repayments in respect of the loan for his motor vehicle and not disposing of that vehicle – waste of $7,160 (W#125).
iv.By way of obtaining further monies by way of funding from Ford Credit secured against the Ford motor vehicle subsequent to separation. The husband did not make payments in relation to this further finance facility so that as at the 8^th March 2006 the vehicle was repossessed owing a debt of $13,099. Accordingly, the vehicle was lost without further benefit for the purposes of the marriage. (W#128.6).

·The husband further engaged in conduct affecting a pre-distribution of property which otherwise would have formed part of the pool available for adjustment between the parties and occasioned a waste in the terms as set out above being:
i.Failing to pay a sum of $7,291 from available funds to M Homes (W#99).
ii.Failing to pay $5,650 to air conditioning contractors requiring the wife to borrow same upon her credit card (W#100).
iii.Retaining a substantial tax refund subsequent to separation (W#101).

·Subsequent to the separation between the parties, the wife met without contribution from the husband substantive payments and accounts in excess of $5,000 in relation to mortgage repayments and electricity payments (W#117). The wife additionally met school fees of in excess of $20,000 (W#119).
·The wife has been the person solely responsible for the maintenance and support of the children without meaningful contribution from the husband subsequent to separation. The husband’s contributions by way of periodic support in respect of the children subsequent to separation have totalled a meagre $295,62 (approximately $1.94 per week). (W#152).
·The husband by way of orders received the sum of $15,000 towards part payment of his legal costs from the proceeds of sale of the home. The wife has received no such benefit. The legal fees paid by the wife to date have been solely sourced from her post separation earnings to which the husband has made no contribution.
·The wife has made substantial superannuation contributions to her superannuation entitlements post separation

Section 79(4) (b)

The contribution, (other than financial contributions) 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 property of the parties to the marriage.

·Throughout the period of cohabitation the wife was the person who was primarily responsible as between the parties for the maintenance and conservation of the homes in which the parties resided.

Section 79(4) (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 of the children of the marriage, including any contribution made in the capacities of homemaker and parent.

·During the period of cohabitation the wife was the person who was primarily responsible for meeting the needs of the children on a day to day basis (W#132 to 140).
·Subsequent to the separation between the parties, the wife has been the person solely responsible for the care of the children without respite from the husband (W#141 – 144).
·Throughout the period of cohabitation, the wife was the person who was responsible for the domestic tasks in and around the home for the family (W#145).

a)Section 79(4) (e)
b)
c)These are matters referred to Sub Section 75(2) as far as they are relevant:
d)

THE WIFE SUBMITS THAT HER CONTRIBUTIONS UP TO THE DATE OF HEARING SHOULD BE FOUND TO BE 75%.
9. FACTORS TO BE CONSIDERED PURSUANT TO SECTION 75(2)
Section 75(2) (a)
The age and state of health of each of the parties;
·The wife is 46 years of age.
·The wife is in good health.
·The husband is 47 years of age.
·The husband is in good health. The wife joins in issue as to any contention as to poor health alleged by the husband.

Section 75(2) (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 engaged in employment as a teacher.
·The husband contends he is unemployed.
·The wife contends that the husband has the capacity to engage in full time employment.

Section 75(2) (c)
Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
·The children of the marriage have now attained their majority.
·[The daughter] attends TAFE as a full time student and has a part time job earning $100 per week.
·[The son] is commencing Year 12 at school. He is very likely to engage in full time tertiary study. He is casually employed at [W].
·The wife will have the continuing obligation to support the children until they complete their studies.

Section 75(2) (e)
The responsibilities of either party to support any other person;
·The husband has a responsibility to support his recently born child
·The parties have a responsibility to support the children of the marriage during tertiary study.
·The prospect of the husband providing even nominal support is remote. All such support will come solely from the wife.

Section 75(2) (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;
·Neither party seeks a superannuation splitting order.
·The superannuation retained by the wife will not be available for many years. Any adjustment of property interests should take the delay in receipt of such benefit into account.

Section 75(2) (m)
If either party is cohabiting with another person – the financial circumstances relating to the cohabitation;
·The husband is residing in a de facto relationship. He receives financial benefits from the fact of that relationship. The financial circumstances of the husband’s partner are otherwise not disclosed.

Section 75(2) (na)
§The issue as to future child support is the subject of a discrete application.

Section 75(2) (o)
Any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account; and
·The wife repeats her submissions as set out above as to waste, and as to the husband affecting a pre-distribution of matrimonial property in his favour, which otherwise would have formed part of the pool to be adjusted between the parties.

THE WIFE SUBMITS THAT THERE SHOULD BE AN ADJUSTMENT OF 10 % IN HER FAVOUR AS A RESULT OF THE SECTION 75(2) FACTORS
ACCORDINGLY THE WIFE WOULD HAVE 85 % OF THE AVAILABLE PROPERTY”

The oral submissions made on behalf of the wife at the conclusion of the case were as follows:
·    The husband should not be accepted on credit and where he has an onus to account for something or bring evidence in support or challenge some fact and failed to do so, he must fail on that issue;
·    On the basis of the approach outlined in In the Marriage of Coghlan (2005) 33 Fam LR 414 contributions should be calculated by reference to two pools of assets, one containing the parties’ superannuation interests and the other containing the rest. It is submitted that the disparity in superannuation interests should just be taken into account and not result in any adjustment out of the tangible assets.
·    It is submitted that, in the absence of a formal valuation, the value of the wife’s Hyundai motor vehicle should be recorded as $5,000 based on the wife’s admission against interest;
·    It is submitted that the wife’s debt to her father should be included as it went towards mortgage payments and payment of a credit card debt which in turn paid out the air conditioning debt;
·    It is submitted that the initial contribution of $10,000 by the wife and her father’s injection of $15,000 warrant a finding that the overall contributions up to separation were 52.5% by the wife and 47.5% by the husband. It is submitted that the unchallenged evidence of the donor excludes any presumption that the extent to which the property at R was bought under value, was a contribution on behalf of the husband alone;
·    It is submitted that the post separation contributions were significantly imbalanced in favour of the wife and therefore her contributions overall were more like 60% compared to 40% by the husband;
·    There were losses incurred by the husband or funds not accounted for by him totalling about $120,000:
·The increase in the mortgage from separation to sale was about $69,000 ($399,998 at separation and $468,730 on 31 December 2006);
·The increase in the personal loan for the car (also secured on the home) was about $7,800 ($25,000 at separation and $32,813 on 31 December 2006)
·Unpaid rates as at date of sale of $6,029;
·The husband’s failure to account to the wife for $17,000 that he raised after separation on the security of the Ford Fairmont Ghia motor vehicle and then he permitted the car to be repossessed;
·Income tax return over more than $20,000 received by the husband in about July 2004;
·    It is submitted that the wife should retain what she has and receive 80% of funds representing the proceeds of sale of P. It is submitted that would leave the husband with 20% or about $113,000.
·    In relation to child support it is submitted that the husband had income earning capacity during the period in question – July 2005 to date. It is submitted that the proper costs of the son include the fees at S College because that was the type of education planned for the children and the husband conceded that the son was having trouble around the time he was enrolled there. It is conceded, however, that the husband was not involved in the decision to enrol the son at that school or even consulted about it.
·    It is submitted that the husband conceded in cross-examination that he should be responsible for 50% of the son’s expenses and that should be the order.
·    The wife argues that the husband should be liable for a proportion of the fees payable at S College. Without resiling from that submission an aide was prepared by counsel for the wife in relation to the quantum of child support replacing the actual fees at S College with the notional fees at M College, as follows:
Child Support Aide
Wife’s costs of meeting needs of child:
$4,442 per month (including attending [S College]
$2,362 per month without [S College] fees ([S College’s] fees $2,080 per month).
Cost of [M College] year 11 & 12
Ex 6 Fees $3,423 per annum  $ 285.00 per month
Allow books, uniforms ($50 per week)  $ 216.00 per month
  $ 498.00 per month
  $2,362 + $498 =  $2,860.00 per month
  50%  $1,430.00 per month
11/7/05 to 30/9/07
  26 months at $1,430 per month            $37,180.00
less amount paid (W#152)                  $ 295.62
  19/10/05 – 19/9/06  $36,884.00
·    Counsel for the wife conceded that the allowance he made of $50 per week for books uniforms etc was purely arbitrary.

On behalf of the husband the written submissions about the issues that were finally argued were as follows:
“The parties were married for 20 years separating finally in August, 2004. There are 2 children of the marriage, [a daughter] born [in] June 1987 (19) and [a son] born [in] January 1989 (18).
It is the husband’s case the parties both contributed to the family’s assets and income for all of the marriage. The wife worked at times part time and at other times full time, whilst the husband was in full time employment for most of the marriage. Both parties worked hard.
CONTRIBUTIONS PURSUANT TO SECTION 79(1) – (4)

Section 79(4) (a)

Financial contributions made directly or indirectly on by or on behalf of a party or a child of the marriage, to the acquisition, conservation or improvement of any property of the parties or any of them.

Throughout the period of cohabitation, the parties applied all their income and savings for the benefit of their family.
Both parties worked with the husband changing his employment a number of times including starting a business, a takeaway food outlet. The husband applied all of his income to the maintenance of the home and the day to day expenses of the family.
For 7 years from 1987 to 1994 the husband was the primary income earner and the wife cared for the children and the home and for up to 18 months at a time did not engage in paid employment, and at other times worked part time.
In late 1984 the husband’s parents contributed a reduction in the purchase price of the parties’ first home at [R]. The husband contends that the contribution was $30,000.00. as the purchase price was $95,000.00. and the parties borrowed by way of a first mortgage $60,000.00. The parties contributed approximately $5,000.00. and the husband’s parents forgave the balance of the purchase price. The wife’s parents contributed on behalf of the wife a gift of $15,000.
The wife’s claim to have made extra contributions to the parties’ property post separation, by way of payment of an electricity account and a small mortgage contribution is erroneous, the electricity bill and mortgage arrears accrued when she resided in the property and were matrimonial debts.
Allegations by the wife of a negative contribution by the husband by wastage.
……
2.
The husband continued in occupation of the matrimonial home subsequent to separation and was unable to meet the outgoings on his income. The husband sought the wife’s agreement to the sale of the property but the parties could not reach agreement as to the terms of the sale. The property could not be sold for a proper price as there were outstanding works including unformed paths, driveways, outdoor concreting, landscaping, stonework and inside the home, skirting boards and a missing internal staircase from the garage to house.
For 6 months after separation the husband paid the mortgage payments of $2,300.00. per month in full, but could not continue to pay at this rate. After 6 months of attempting to maintain the payments, the husband suffered increasing depression and became unable to concentrate at work. The husband sought medical treatment and was prescribed anti-depressant medication. The husband continues to take anti-depressants. Ultimately in approximately June, 2005 the husband became unable to work due to his depression and has not worked in paid employment since.
During the husband’s time off work he undertook the works required to finish the construction of the property to the point where only turf and concrete were required to be purchased to complete outstanding jobs. The husband was unable to purchase the concrete and turf due to lack of funds. Nevertheless his labour contributed to the home being sold for value.   The husband contributed his labour and the costs of excavations, removal of stones, skip bin fees and carpenter’s invoices [P61-63 Husb. Aff]. Whilst unable to pay the mortgage the husband contributed his labour and the cost of materials to attempt to finish the construction and landscaping of the home to facilitate its sale.
The husband arranged to refinance the mortgage on the matrimonial home on 2 occasions since separation in early 2005, in an attempt to lessen the financial burden he was carrying. The wife refused to sign any documents to facilitate a refinance.
3.Motor vehicles
The loan on the motor vehicle retained by the husband was paid for the first 6 months after separation. It was only after the husband became ill and ultimately gave up work that the loan also fell into arrears. The car was worth only $13,000.00. and selling the car would have resulted in a debt remaining.
The motor vehicle leases were benefits of the husband’s employment except for the blue Ford which was the wife’s car. All other motor vehicles were supported by motor vehicle allowances and fuel costs as benefits of the husband’s employment during the marriage.
4. Alleged misuse of construction funds;
The husband denies failing to pay a sum of $7,291 from available funds to [M] Homes as alleged by the wife, the monies were applied to the litigation against [M] when they attempted to increase the price of the fixed price contract. The litigation saved the parties in excess of $28,000.00.

Section 79(4) (b)

The contribution, (other than financial contributions) 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 property of the parties to the marriage.

·The husband undertook the home maintenance, landscaping and concreting throughout the period of cohabitation.
·Section 79(4) (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 of the children of the marriage, including any contribution made in the capacities of homemaker and parent.

·The husband was the party primarily responsible for earning the family income for at least 7 years of the parties’ cohabitation but he also contributed to the care of the children and the home.
·During the period of cohabitation the wife was the person who was primarily responsible for meeting the needs of the children on a day to day basis when she was not working full time. When working full time the husband shared the care of the children.
·Subsequent to the separation between the parties, the wife has been responsible for the care of the children without respite from the husband, due to her deliberate alienation of the children from their father.
·Throughout the period of cohabitation, the wife was the person who was responsible for the domestic tasks in and around the home for the family, assisted by the husband when available.
e)Section 79(4) (e)
f)These are matters referred to Sub Section 75(2) as far as they are relevant:
The husband submits that his contributions up to the date of the hearing are 50%.

9.FACTORS TO BE CONSIDERED PURSUANT TO SECTION 75(2)
Section 75(2) (a)
The age and state of health of each of the parties;
·The wife is 46 years of age.
·The wife is in good health.
·The husband is 47 years of age.
·The husband suffers a serious depression.
Section 75(2) (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 engaged well paid employment as a teacher.
·The husband is unemployed.
·The husband is seeking work.
·The wife therefore has an income earning capacity far superior to the husband’s.
Section 75(2) (c)
Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
·The children of the marriage have now attained their majority.
·[The daughter] attends TAFE.
·[The son] is commencing Year 12 at school. It is the husband’s case [the son] should have completed his education in 2006. If [the son] is attending year 12 in 2007 he has repeated a year. The wife has not kept the husband informed of the children’s activities and education.
Section 75(2) (e)
The responsibilities of either party to support any other person;
·The husband has a responsibility to support his recently born child a son aged 8 months.
·The parties have a responsibility to support the children of the marriage during tertiary study, although the children are able to support themselves in part time employment provided they have accommodation provided by their parents.
Section 75(2) (f)
Subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under –
(iii)any law of the Commonwealth, of a State or Territory or of another country; or
(iv)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;
·Neither party is supported by a benefit.
·Neither party seeks a superannuation splitting order.
·Neither party’s superannuation will be available for many years.
Section 75(2) (m)
If either party is cohabiting with another person – the financial circumstances relating to the cohabitation;
·The husband is residing in a de facto relationship with a partner who is in employment and he cares for their child whilst she works.
Section 75(2) (na)
§The issue as to future child support is subject to a departure application.
Section 75(2) (o)
Any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account; and
The husband submits there should be an adjustment to the wife for 75(2) factors of 2.5%.
Thus the husband seeks division of property as to 52.5% to the wife and 47.5% to the husband.
DEPARTURE APPLICATION
The mother seeks a departure from child support assessment, seeking an increase in the father’s monthly payment from July 2005 and a lump sum.
It is the father’s case, as both children are over the age of 18 years he is not liable for assessment under the Child Support (assessment) Act 1989. now or in the future.
It is the father’s case, as the children are over the age of 18 years The only application open to the wife is an application for continuing support under S.66L of the Family Law Act.
In such an application the Court must be satisfied the child/children are in need of support to complete their education.    [The son] should have completed year 12 in 2006. [He] turned 5 years old in January, 1994 and thus should have completed his schooling in 2006. The mother has never, since separation discussed [the son’s] schooling with the father, in particular, has not discussed [the son] repeating a year, or any reason for such a delay.
That part of the mother’s application which relates to the period July, 2005 to 13 January, 2007 when [the son] turned 18 years of age should be dismissed as there is no evidence as required for a finding under S 117(1)(b)(ii) of the Child Support (Assessment) Act 1989 that it is just and equitable and otherwise proper for the Court to make the order sought taking into account the following;
(a)The proper needs of the children.
(b)The income, earning capacity, property and financial resources of the children
(c)The commitments of each of the parents…that are necessary to support themselves
(d)The direct and indirect costs of the carer seeking support in caring for the child
(e)Any hardship that would be caused to;
i.the child or the carer,
ii.The liable parent, or
another person the parent has a duty to support.
The mother made a unilateral decision to enrol [the son] in a private boarding school where the fees are expensive, without consultation with the father. It was never an intention of the parties to educate the children in expensive private schools. When the parties resided together [the son] attended [M] College where the fees were minimal.
Conclusion
It is the Respondent’s case the Application for Departure from Administrative Assessment should be dismissed for the following reasons;
·Except for the part of the application which is retrospective, the children are both over the age of 18 years and thus the husband is not subject to assessment under the Child Support (Assessment) Act.
·The husband having an indefinite income in the future.
·It is not just and equitable for the husband to lose a large proportion of his property settlement, when there is no evidence as to how long the children will continue their education, how much they each earn from their current employment, and what the father will earn in the future.
For that part of the application which seeks departure for the period before [the son] turned 18 years of age;
·There is no admissible evidence before the Court in respect of those issues the Court must take into account in making an Order for a parent to pay a higher sum than assessed.
·The Respondent in the past paid child related expenses, but is at present unable to do so.
·The Respondent has a duty to support his infant son who is 8 months old. He has a de-facto partner who earns an income and supports the father and their son.
·There has been a change in the standard of living of the father he is now not earning an income.
·The father has no income and few assets with which to pay capitalised child support.
·The wife made a unilateral decision to enrol the parties’ son […] in [S] College as a boarder. It is the husband’s case the parties cannot afford the level of fees and therefore he should not be expected to pay for the wife’s unilateral decision.
It is the husband’s case, the wife’s application is unsupportable.”

By way of oral submissions it is argued for the husband that contributions should be assessed by reference to only one pool of assets. It is submitted that the difference in superannuation should not just be taken into account as it would be unfair to ignore the difference in the parties’ superannuation entitlements.

The approach in proceedings under section 79

The case law reveals that there is a permissible approach to the determination of an application brought pursuant to the provisions of s 79. That approach involves four inter-related steps. First, I am to make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Second, I should identify and assess the contributions of the parties within the meaning of s 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Third, I should identify and assess the relevant matters referred to in s 79(4)(d), (e), (f) and (g), (the other factors) including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourth, I should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case. [1]

A separate pool for superannuation
[1] This summary of the effect of the authorities is paraphrased from the comments of the Full Court in In the Marriage of Hickey (2003) 30 Fam LR 355 at 370

In the Marriage of Coghlan (2004) 33 Fam LR 414 the Full Court allowed that superannuation may be included in the list of property drawn up as “the first step” in the determination of proceedings under s 79, whether or not a splitting order is sought in those proceedings. The Full Court suggests that that:
“… approach could be adopted where the parties agree that it should be adopted, or where the court is satisfied that the superannuation interest is indeed property within the meaning of the definition of property contained in s 4(1), or if the interest is not within that definition, but is of relatively small value in the context of the value of the other assets in the case, or there are features about the interest which leads the court to conclude that this would be an appropriate approach.”
None of those features apply here. The Full Court goes on at page 429 to say:
[63] However, given the conclusions we have reached above, we consider that the preferred approach to the determination of property settlement cases must be to prepare in addition to the list of items of property (which would clearly fall within the definition of that term in s 4(1)), a separate list containing any superannuation interest or interests (valued according to the regulations if a splitting order is sought in any application before the court, or if no such order is sought, valued either according to the regulations or otherwise)….
I will apply the preferred approach.

The property of the parties at the date of the hearing

The Court is required to make a finding as to the property of the parties at the date of the hearing. There are circumstances which the Court has found in other cases, to have justified the inclusion of property that no longer exists, in the pool of property for settlement. Similarly the Court has sometimes found that debts that do exist should not be included in the list that goes to make up the net pool of assets. In In the Marriage of Omacini (2005) 33 Fam LR 134 the Full Court noted:
[30]     To date, three clear categories of cases have emerged where the court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:
(a)       Where the parties have expended money on legal fees. In In the Marriage of DJM and JLM (1998) 23 Fam LR 396; (1998) FLC 92-816; [1998] FamCA 97 the Full Court said at [11.6]:
[11.6] For reasons set out in Farnell, s 117 provides that each party to proceedings under the Family Law Act shall bear their own costs unless the Court otherwise orders. Failing to add back monies expended by parties on costs frequently has the effect of defeating the policy of s 117 by permitting the pool of available assets for distribution between the parties to be diminished by any monies that either of the parties have managed to spend on their costs up to the date of trial. We are of the view that the normal approach ought be to add costs already paid back into the pool. Whilst there may be cases where that approach is inappropriate, the reasons why it is not taken ought normally be spelt out.
(b)       Where there has been a premature distribution of matrimonial assets. In In the Marriage of Townsend (1994) 18 Fam LR 505; (1995) FLC 92-569 Nicholson CJ as he then was with whom Fogarty and Jordan JJ agreed, said at Fam LR 509; FLC 81,654:
           In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the husband did was to distribute to himself an asset in which the wife had a legitimate interest. In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the husband as a matter to which regard should be had under section 75(2). It seems to me that the husband has had the benefit of that money. Had he retained, for example, the taxi licence instead of selling it, that would have been brought into account as an item of property which would have been dealt with in the same way as the remaining items of property in this case. Accordingly, I am of the view that the correct way in which to deal with the husband’s receipt of those moneys is to bring them into the pool of assets on a notional basis and make a distribution accordingly.
(c)       In the circumstances outlined by Baker J in In the Marriage of Kowaliw (1981) 7 Fam LN N13; (1981) FLC 91-092 at FLC 76,644:
           As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a)       where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b)       where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para (a) and (b) above having economic consequences is clearly in my view relevant under s 75(2)(o) to applications for settlement of property instituted under the provisions of s 79.

There is agreement about some items being read back into the list of assets, including the proceeds of sale of a boat and the legal fees paid by the parties. Dealing then with disputed claims that notional assets be included in the list of assets for division:

Shortfall in first progress payment to M Homes

In September 2003 the parties received an invoice for the first progress payment to M Homes. The first progress payment under the contract was $47,822.20 but the invoice incorrectly claimed $40,531. The whole of the $47,822.20 was drawn down into the husband’s account but only $40,531 was paid to M Homes. Ultimately, the shortfall was made up with the final payment. It is the wife’s case that the husband retained the shortfall of $7,291 and applied it to his own purposes.
The husband did not make a good start to dealing with this issue. His first answer about this in cross-examination was that he had applied the $7,000 to goods and services and tradesmen. A few minutes later he said that he paid the money to a Mr B, the solicitor who acted for the parties in their dispute with M Homes.
Although the husband’s evidence is far from satisfactory, it is difficult to reach back to a point well before separation and identify a sum that should be deemed to exist on the day of the hearing. The husband’s version of events is not inherently improbable. Mr B was paid more than $5,000. From September 2003 to August 2004 the parties were fighting on a number of fronts and had significant expenses. The wife bears the onus of establishing that this fund should be read back into the balance sheet and she has failed to do so.

Shortfall in payment to Air Conditioning supplier

The parties received an invoice from F Air Conditioning for the supply and installation of an air conditioning system in the sum of $11,749. The husband drew that sum from the bank loan on 6 February 2004 but did not pay the supplier the whole sum. A handwritten note on the original invoice dated 17 March 2004 shows “$5,650 pd 29/1”. On 20 April 2004 the wife paid a further $5,650. (There is no explanation for the fact that a bill of $11,749 was apparently satisfied with two payments of $5,650.) It is the wife’s case that the husband retained $5,650 and applied it to his own purposes. The husband said in cross-examination that he applied the balance of the draw down to plumbing supplies, carpenters, stone masons and extra excavation.
Again, although the husband’s evidence is far from satisfactory, it is difficult to reach back to a point well before separation and identify a sum that should be deemed to exist on the day of the hearing. The husband’s version of events is not inherently improbable. The parties were engaged in the completion of the P improvements and had significant expenses. The wife bears the onus of establishing that this fund should be read back into the list of assets and she has failed to do so.
I find that the assets of the parties are:

Non Superannuation Assets Value

Balance of the proceeds of sale of the former matrimonial home at P $567,946.00

Wife’s savings $1,000.00

Hyundai Accent motor vehicle $5,000.00

Wife’s household contents $3,000.00

Wife’s jewellery $1,000.00

Wife’s paid legal fees $15,437.00

Husband’s savings $10.00

Husband’s laptop, furniture and personal effects $1,500.00

Husband’s paid legal fees $18,000.00

Add back for sale proceeds of boat $5,600.00

Total $618,493.00

Superannuation Assets Value

C Superannuation Retirement Fund (W) $49,825.00

N Superannuation Fund (W) $21,000.00

Husband’s superannuation (various funds) $18,585.00

Total $89,410.00

As far as I know the agreed valuations of superannuation interests were not arrived at by reference to the Regulations.

Liabilities:

As to the disputed issues:

Wife’s debt to her father

The wife says that she owes her father $5,300 made up of $4,000 borrowed on 13 March 2005 for mortgage payments for the P property and $1,300 borrowed on 18 April 2005 for Visa Card payments. She was not challenged about the debt or the purposes for it. The $4,000 paid in mortgage payments has contributed to the equity in the P property and therefore should be included as a relevant debt. In the absence of other evidence the funds applied to the Visa debt are likely to relate to living expenses after separation and will not be included as a relevant debt.

Wife’s debt to the daughter

The wife says that she owes the parties’ daughter $3,170 made up of funds advanced for rent and funds advanced for Visa Card payments. The moneys were advanced in June and July 2005 and appear to relate to living expenses after separation. They will not be included as relevant debts for the purposes of identifying the net pool of assets.

Wife’s debt to the son

The wife says that she owes the parties’ son $170 made up of funds advanced for Visa Card payments. The moneys were advanced in March 2005 and appear to relate to living expenses after separation. They will not be included as a relevant debt for the purposes of identifying the net pool of assets.

Wife’s Visa card debt

The wife says that she owes $2,895 to Visa Card. The debt relates to living expenses after separation. It will not be included as a relevant debt for the purposes of identifying the net pool of assets.

Wife’s debt to S College

The wife owes S College $29,589 in relation to school fees for the son. The issue of school fees arises in the context of child support dealt with later in these reasons. The debt was incurred by the wife alone and should not be included as a relevant debt for the purposes of identifying the net pool of assets.

Husband’s debts to Citibank and on the Coles Myer Visa Card

The husband owes $10,400 on a Citibank credit card and $1,600 on a Coles Myer Visa Card. In cross-examination he conceded that these are debts incurred after separation. They will not be included as relevant debts for the purposes of identifying the net pool of assets.

Husband’s debt to L Pty Ltd

The husband asserts that he owes $1,000 to L Pty Ltd. The husband’s father is the principal of L Pty Ltd and it is his unchallenged evidence that no such debt is owed. There is no debt.
I find that the relevant liabilities of the parties as at the date of the hearing are as follows:

Liabilities Amount

Wife’s debt to her father $4,000.00

$4,000.00

The net non-superannuation assets have a value of $614,493 ($618,493 - $4,000). The superannuation assets have a value of $89,410.

Financial Resources

There is no evidence that either of the parties has any other financial resources.

Contributions

The obligations placed on the Court by s 79 call for an assessment of the respective contributions of the parties. The manner of assessing contributions has been the subject of previous decisions. The contributions of a parent and homemaker are to be assessed, not in any merely token way, but in terms of their true worth to the building up of the assets[2]. There are said to be risks in taking an overly technical approach to the assessment of the respective contributions of the parties in that the Court can become involved in questions of the quality of contributions which go far beyond the real world expectations of parties[3].
[2] Mallett v Mallett (1984) 9 Fam LR 449; In the Marriage of Ferraro (1992) 16 Fam LR 1
[3] In the Marriage of Shewring (1987) l2 Fam LR 139
As to whether the Court should assess contributions asset by asset or globally the authorities have it the latter approach is preferred, in appropriate circumstances either approach is permissible and sometimes the asset by asset approach is best. See In the Marriage of Lenehan (1987) 11 Fam LR 615; In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712; In the Marriage of Zyk (1995) 19 Fam LR 797.
In In the Marriage of Coghlan the Full Court says that where the list of assets is divided into superannuation and non-superannuation assets, the assessment of contribution must be undertaken in relation to each list:
[64] Then for the reasons we earlier gave, whether or not a splitting order is sought on either party’s application, the parties’ contributions to both the property (as defined in s 4(1)) and also to the superannuation interests should be assessed. The other factors in s 79(4)(d), (e), (f) and (g) would then need to be considered. Specifically in the context of s 79(4)(e), that is the s 75(2) factors, any division of the property (as defined in s 4(1)) and any “division” of any superannuation interest (in the sense of an allocation of the base amount) based respectively on the assessments of the parties’ contributions to the property and to any superannuation interest, would then be considered. Similarly, the parties’ future superannuation prospects (be they in capital or income form) would also need to be considered. The overall justice and equity of the ultimate award (including any proposed splitting order or the need for such an order) would then be considered

Contributions to Non Superannuation Assets

Section 79(4)(a) Contributions

The wife brought $10,000 into the marriage. The husband had a debt.
On 20 December 1984 the parties purchased a home at R $95,000. The husband’s father made a gift that he intended to benefit both of the parties, by allowing them to buy the property at a discounted price. The wife contends that the effective value of the gift was $15,000 and the husband contends it was $30,000. In any event by virtue of the unchallenged evidence of the donor, this was a contribution on behalf of both parties.
The husband had paid employment for most of the marriage. He worked in hotels and in the laundry and dry cleaning field in administrative capacities and in other positions. He worked in the chicken business for 18 months.
The unchallenged evidence of the wife as to income from paid employment is as follows:

Year ending Income

Wife Husband

1985 $22,000 $22,000

1986 $22,000 $22,000

1987 $22,610 $22,626

1988 $10,169 Nk

1989 0 Nk

1990 $14,389 $33,085

1991 $14,584 $27,231

1992 $26,803 $35,679

1993 $25,800 $41,404

1994 $19,797 $14,889

1995 $20,405 $4,271

1996 $25,581 $27,948

1997 $44,793 Nk

1998 $46,000 Nk

1999 $56,459 $32,165

2000 $61,162 Nk

2001 $62,186 $62,301

2002 $64,210 $53,571

2003 $66,339 $35,360

2004 $72,346 $15,685

2005 $81,833 $8,897

2006 $82,000 Nk

$861,466.00 $459,112.00

Although I have included totals, the figures do not permit a precise comparison of the respective incomes of the parties. The figures do show that each of the parties made a very significant contribution by way of paid employment. At times the husband’s income was greater than that of the wife and at times the wife’s income was greater than that of the husband. The wife was asked in cross-examination about there being any cash income from the O business but she made no such concession and there is no evidence from the husband on this issue.
If I assume that the husband’s income for the 5 years for which there is no figure available was the same as the average of the other years up to and including 2004, then his aggregate gross income during the years that span the parties’ cohabitation was of the order of $600,000. That can be compared with about $700,000 earned over those same years by the wife. It may be that the wife’s income from paid employment was greater than that of the husband.

Section 79(4)(b) contributions

The husband deposes to the following contributions:

Moved soil along the fence line to fill the area between the ground and the fence and he removed soil from the site;
Filled the passageway with soil and laid contour steps of sandstone from the front to the rear of the house;
Removed rubble and raked over and levelled out the area around the door;
Laid electrical conduit for the rear garden alone a sandstone feature wall, backfilled the trench and laid a garden along the wall. This including digging a trench 60 cm deep and 8 metres long;
Moved sandstone blocks from the rear of the P property to the front to allow the stone masons to build a front perimeter wall, steps and garden beds;
Erected gates on both sides of the property to secure fill and made contour steps for the electrical meter box;
Constructed sandstone steps at the side entrance to the laundry, undertook general landscaping and hired and supervised tradesmen.

The parties lived with the husband’s parents for six months and were able to save funds to repay the husband’s credit card debt of $10,000.
In 2003 the parties lived for a period with the husband’s sister.
There is no evidence of the wife in relation to non-financial contributions except in relation to her contributions as parent and homemaker.
The husband made the greater non-financial contribution.

Section 79(4)(c) contributions

There are two children of the marriage. The parties separated for periods before their final separation in August 2004. On each occasion the children lived with the wife. Sadly there was a level of alienation between the children and the husband. It is likely that the wife made the greater contribution as parent and homemaker. The wife had some time out of paid work and other periods of part-time work and was thereby able to devote more time to the children.
The wife deposes to feeding and dressing the children. She changed their nappies, attended to them when they woke at night. The wife concedes that the husband assisted in these tasks about 5% of the time. She attended the children’s sporting events and parent teacher meetings. The wife conceded that the husband attended one such meeting at M College, for the son. The wife organised birthday parties, visits and sleepovers. The wife organised social gatherings with other family members. She signed permission notes and made the school lunches. She took the children to private Maths tuition and music lessons and paid for the tuition and lessons. She got the children ready for primary school and collected them after school. The wife was and remains an active member of the Parents and Friends Associations for each school the children attended and did tuckshop duty. She also took the children to church.
The wife was responsible for most of the household tasks such as the household laundry, shopping for food, preparation of family meals and paying bills. She concedes that the husband cooked barbeque meals about once a month, sometimes hung out the washing and brought it in and occasionally vacuumed the carpets.
Since separation the children have lived with the wife and have not lived with the husband at all.
I am satisfied that the wife was the primary care giver of the children and the main homemaker. Indeed the only evidence of any contributions of this type by the husband comes in the form of admissions against interest by the wife. The wife made the greater contribution as parent and homemaker.

Conclusion on Contribution

The husband argues that the parties’ contributions were equal. The wife argues that the wife’s contributions and those made on her behalf were greater than those made by the husband. In the case outline it is submitted that the contributions favour the wife in the proportions 75% compared to 25% by the husband. In learned counsel’s oral submissions the proportions were put as 60% by the wife and 40% by the husband, with a small differential at the date of separation but a significant imbalance of contributions after separation.
After separation the husband remained in the former matrimonial home whereas the wife occupied rental accommodation. The rent for her three bedroom apartment is currently $450 per week.
The wife’s contributions overall exceeded those of the husband. The wife’s financial contributions were probably greater than those of the husband with her making a greater initial contribution and earning as much income as the husband, and probably more. The only non-financial contribution was made by and on behalf of the husband. The wife made the overwhelming contribution as parent and homemaker. For virtually the entire period of each separation, including the period from August 2004 to date, the wife has been responsible for housing the children.
In a case where the period of cohabitation spans more than 20 years and contributions have been made over more than 23 years, care is needed in identifying the extent of the disparity of contributions. The wife variously argues for a finding that her contributions were 60% or 75%, compared to 40% or 25% by the husband. In my view the difference in the contributions of the parties over 23 years cannot be 20%. A proper figure, reflecting the contributions made in various ways is 55% by the wife and 45% by the husband.

Contributions to Superannuation Assets

Section 79(4)(a) Contributions

The wife brought into the marriage an interest in superannuation dating from the commencement of her contributory service as a teacher. The wife continued to make contributions to her superannuation after the parties’ final separation.
Otherwise the parties made direct contributions to their own superannuation from time to time.

Section 79(4)(b) contributions

There is no evidence of indirect financial contributions to superannuation.

Section 79(4)(c) contributions

During the marriage and particularly for the periods when the parties were separated and for the periods when the wife was out of the paid workforce, her contributions as parent and homemaker allowed the husband to make provision for his superannuation.

Conclusion on Contribution to Superannuation Assets

The wife’s contributions to superannuation were greater than those of the husband, particularly because of contributions made before and after the period of cohabitation. The wife’s contributions to superannuation should be seen as 60% compared to 40% by the husband.

The other matters in Section 79

In the passage of In the Marriage of Coghlan quoted above (para 64) the Full Court went on to say that once contributions have been assessed in relation to each of the superannuation and non-superannuation assets, the other factors in section 79(4) need to be considered
Dealing with the matters identified in the legislation:

Section 79(4) (d)

Pursuant to s 79(4)(d) I am required to take into account the effect of any proposed orders on the earning capacities of the parties. There is no such effect.

Section 79(4)(e) - Section 75(2) Factors

The relevant matters in Section 75(2) would seem to be paragraphs (a), (b), (d), (m) and (o).

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

First, as to the age and state of health of each of the parties. The wife is 46 years of age and the husband is 47. It is an agreed fact that the wife suffered from depression about the time of separation. There is no other evidence about the wife’s health. The husband says that he also suffered from depression and from time to time he has been prescribed anti-depressant medication. The wife is in the paid workforce and the husband says he can return to it when these proceedings are over.

(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’s income is $1,728 per week made up of her salary as a teacher at the P School of $1,664, Family Tax Benefit A of $42 and Family Tax Benefit B of $22. There is a Child Support Assessment but the wife has received virtually no child support payments. The wife lives with the parties’ children. The daughter earns about $100 per week and the son earns about $20 per week.
The wife’s expenses are as follows:

Expense Amount

Income tax $540.00

Rent $540.00

Private health insurance – Australian Health Management $36.00

Motor vehicle registration – Hyundai Accent motor vehicle SPY 597 $16.00

Minimum payments on Commonwealth Bank Visa card $25.00

Living expenses $1,228.00

Food $150.00

Household supplies $39.00

Gas $15.00

Electricity $15.00

Telephone $50.00

Petrol $50.00

Motor vehicle maintenance $50.00

Fares and parking $7.00

Clothing and shoes $50.00

Children’s activities $8.00

Medical dental and optical $10.00

Entertainment and hobbies $29.00

Holidays $70.00

Education expenses including school fees $550.00

Chemist pharmaceuticals $26.00

Repair of furnishings and appliances $5.00

Dry cleaning $3.00

Books and magazines $27.00

Gifts $34.00

Hairdressing toiletries $40.00

$1228.00

Total $2,385.00

The wife apportions the living expenses as to $208 for herself, $764 for the son and $256 for the daughter. Evidence about the wife’s assets and liabilities is set out earlier in these reasons. The wife intends to keep working.
The husband has no income. He lives with his partner and their child Y. The husband’s partner earns $1,540 per week. The husband does not know how much she contributes to his living expenses and he gives no evidence about his living expenses. The husband’s fixed expenditure is as follows:

Expenditure

Amount

Repayments on Coles Myer Visa Card $32.00

Repayments on Citibank credit card $25.00

Total $57.00

Evidence about his assets, liabilities and resources is set out earlier in these reasons. When asked about the future, the husband said that he will seek to return to paid employment when these proceedings are over. He expects to return to the area of work fitting his qualifications and experience – as an executive in the laundry / dry cleaning field.

(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;

The son has attained the age of 18 years so this factor does not apply.

(d) commitments of each of the parties that are necessary to enable the party to support:

himself or herself; and
a child or another person that the party has a duty to maintain;

(e) the responsibilities of either party to support any other person;

I have dealt with the wife’s commitments for herself and for the children. She was not challenged in relation to the need for or the amount of those commitments. There is no evidence about the husband’s commitment in relation to Y.

(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:

any law of the Commonwealth, of a State or Territory or of another country; or
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;

Neither of the parties seeks a splitting order.
The wife’s contributions to superannuation were 60%, compared to 40% by the husband. I note that the wife’s superannuation interests are agreed at $70,825 and the husband’s at $18,585. Thus the parties currently hold their superannuation in the approximate proportions 80% held by the wife and 20% held by the husband. The husband’s contributions would justify him having 40% of the parties’ superannuation interests but he holds only about 20% of the superannuation. Albeit that these interests are not accessible by the parties and will not be available until the terms of the relevant schemes have been met, the difference between the husband’s interest and his entitlement based on contributions is about $17,200 in dollar terms.
The parties will be able to add to their interests. Despite the husband’s plans to return to the paid workforce upon the conclusion of these proceedings, the speed with which that return is achieved and the extent to which he can return to an income of the order of that which he had during cohabitation is not certain. In other words the wife’s capacity to add to her superannuation interest is more assured than that of the husband.

(g) where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;

There is little evidence in relation to the standard of living of the parties during the marriage. Each of the children of the marriage attended at a non-government school.

(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;

The wife obtained two masters degrees during the marriage. One in 2000 and one in 2004. The wife studied part-time and that involved her studying on weekends and at night. The wife grudgingly conceded that at times the husband took up the load while she studied although she says that the grandparents assisted. However, there is no evidence that those qualifications enhanced the wife’s earning capacity.

(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;

(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;

(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;

The wife gave up paid employment for some periods when the children were young but as much because of moves to Adelaide as for that reason. The wife had significant periods of part-time work. Nevertheless, there is no evidence to the effect that the marriage adversely affected her earning capacity.

(l) the need to protect a party who wishes to continue that party's role as a parent;

Neither of the parties says that their income earning capacity is adversely affected by their roles as parents.

(m) if either party is cohabiting with another person — the financial circumstances relating to the cohabitation;

There is little evidence about this. The wife has borrowed money from the children and she contributes to their financial support at the rates referred to above.
The husband has no income and is fully supported by his partner.

(n) the terms of any order made or proposed to be made under section 79 in relation to the property of the parties;

(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

There is a current child support assessment. The husband is in arrears. He proposes to return to paid employment when these proceedings are over. The issues of child support departure and substitution orders fall to be determined in these proceedings and are dealt with below.

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

Waste

The wife says there were losses incurred by the husband or funds not accounted for by him totalling about $120,000:
·The increase in the mortgage from separation to sale was about $69,000 ($399,998 at separation and $468,730 on 31 December 2006);
·Unpaid rates as at date of sale of $6,029;
·The husband’s failure to account to the wife for $17,000 that he raised after separation on the security of the Ford Fairmont Ghia motor vehicle and then he permitted the car to be repossessed;
·The increase in the personal loan for the car (also secured on the home) was about $7,800 ($25,000 at separation and $32,813 on 31 December 2006)
·Income tax return of more than $20,000 received by the husband in about July 2004;

Dealing with those matters:

Lost equity in P through non payment of mortgage instalments

The mortgage debt increased after separation by nearly $70,000. The husband cannot account for making no real effort to meet the mortgage instalments after separation. When his new partner moved into P in January 2006, she was relieved of a rental obligation of about $280 per week. The husband says he did not ask her to contribute to the mortgage because that would not be fair because he was not paying anything towards it. He gave no explanation why rent paid to him by tenants was not applied to the mortgage. Those facts rule out financial necessity as a basis for the husband’s conduct. The sentiments expressed in the SMS messages of 26 July 2005 (exhibit 17) and the conversations with his father and sister, reveal a more sinister reason - his intention to cause financial loss to the wife. The husband conceded in cross-examination that he had some capacity to contribute to the mortgage and that he chose not to contribute. A case might be argued that the husband’s conduct was the result of his depression. The husband does not seek to make that case and does not have the evidence to do so.
The wife received communication from the husband about re-financing proposals. He proposed keeping the property afloat with interest only loans. She seeks to understate her opportunities in this regard. Nevertheless the husband could not account for his failure to take up his solicitors advice given on 15 December 2005 (exhibit 11) to immediately move to sell the property and to vacate it; his father’s offer, made in September 2005 (affidavit of the husband’s father sworn 9 February 2007) to cover the mortgage and fund the completion of the property, if the husband he vacated the property and arranged an orderly sale; nor to surrender possession of the property after the section 57(2)(b) notice was received. In the latter case he says that he was in negotiations with the bank about an orderly sale. Accepting that last proposition for the moment, he took the odds to incurring further costs for the parties, without involving the wife. That gamble failed.
There is evidence in the form of an affidavit of attempted service relied on by the Commonwealth Bank in its proceedings against the parties in the Supreme Court of New South Wales, that in March and April 2006 the husband was ‘keeping house’ and otherwise avoiding service of process in those proceedings. Ultimately the bank obtained a judgment for possession of the property on 4 September 2006. Again the husband’s conduct was consistent with the sentiments he expressed to the wife and his father and sister, to the effect that he was intent on causing financial harm to the wife. He is responsible for the resultant loss.

Unpaid rates as at date of sale of $6,029

The husband had the use and occupation of the former matrimonial home to the exclusion of the wife from August 2004 until August 2006. He had the opportunity to sell the property in an orderly way prior to the mortgagee sale in January 2007. He had the opportunity to apply funds to the rates. The communications with the wife and with his father and his sister suggest an intention to cause financial harm to the wife. The outstanding rates bill represents waste by the husband.

Income tax return of more than $20,000 received by the husband in about July 2004;

I cannot make a finding about the disposition of the income tax refund. It is the wife’s evidence that in about July 2004 the parties had a conversation about the refund. She says that the husband refused to put the money into the joint account. These are events more than 12 months before separation and at a time of considerable disputation between the parties and of considerable cost. I cannot find that the proceeds of the refund were wasted by the husband in the since of Kowaliw.

Lost value of the Husband’s Ford Fairmont Ghia

At separation the husband retained a Ford Fairmont Ghia motor vehicle. That motor vehicle had been originally acquired using borrowed funds that became part of the debt secured on the P property. When the property was sold the debt was paid out. In early 2005 the husband raised a further $17,000 from Ford Credit on the car. On or about 14 December 2005 the car was repossessed by Ford Credit and the debt was apparently satisfied thereby. Nevertheless the husband has never accounted to the wife for the loss of $17,000. The husband concedes that the $17,000 was not applied to the mortgage instalments or to child support. On the basis of the approach in Townsend referred to above, the $17,000 could be read back into the pool of assets and treated as a preliminary distribution to the husband. However, the submission on behalf of the wife is one based on waste. I accept that the husband obtained $17,000 of joint funds after separation and has not accounted for those funds. In effect, he wasted the value of the motor vehicle.

The increase in the personal loan for the car (also secured on the home) was about $7,800 ($25,000 at separation and $32,813 on 31 December 2006)

This again is a consequence of the fact that the home was not sold by the parties as soon as practicable after separation and in any event, prior to the mortgagee sale. For the reasons outlined above, the husband is largely responsible for that delay.

Losses associated with the O business venture

There was an initial argument that the husband alone should be responsible for the losses associated with the O business venture. Ultimately this argument was not pressed in the wife’s case. At the end of the day it was a joint venture.

(p) the terms of any financial agreement that is binding on the parties.

There was no binding agreement made between the parties.

Section 79(4)(f)

There are no relevant orders.

Section 79(4)(g)

This is referred to above and is the subject of child support departure and substitution proceedings.

Conclusion

It is agreed that there should be an adjustment in favour of the wife. There is a dispute as to the extent of the adjustment. The wife submits it should be 10% and the husband argues for a 2.5% adjustment. The relevant matters arising from the remaining elements of s 79, which include the s 75(2) factors referred to above are:
Ø The parties are at a similar time of life;
Ø The wife suffers from depression and the husband has been prescribed anti-depressants but they both expect to be in paid employment;
Ø The husband lives with his partner who has paid employment;
Ø The husband and his partner have a very young child;
Ø The wife has the care and control of the son but he will complete secondary education this year;
Ø Albeit that they are not immediately accessible the wife’s superannuation interests are greater than the amount warranted by reason of contribution alone, by about $17,200. The corollary is that the husband’s interests are about $17,200 less than would be the case based on his contributions.
Ø The husband was responsible for wasting family assets. He was largely responsible for quantifiable waste of the order of $100,000. It is likely that his actions resulted in further loss to the extent to which the price achieved on the mortgagee sale was less than the market value of the property;

In my view the adjustment by virtue of the other matters in section 79(4) should be 7.5%. The factors balance out to some extent. The wife has a secure income stream and a relatively short time while the son completes secondary schooling. The husband will need to re-establish himself in paid employment and may take time in achieving a proper level of remuneration. He has a very young child. On the other hand he has that most valuable of resources, a new partner who has paid employment. The key differences are the imbalance of superannuation interests and waste. The husband was responsible for most if not all of $100,000 wasted from the assets of the parties and some other losses. In this case $100,000 represents about 14% of the net assets.

Just and Equitable

Based on their contributions and the other matters in s 79 the appropriate division of non-superannuation property is a division that is about 67.5% to the wife and 32.5% to the husband. Finally, I must consider whether it would be just and equitable within the context of s 79 if the net assets of the parties were divided in those proportions.

The net non-superannuation assets have a value of $614,493 ($618,493 - $4,000). The outcome of that division would be that the wife receives $414,782 and the husband $199,710.
The wife has or has had the benefit of:

Non Superannuation Assets Value

Wife’s savings $1,000.00

Hyundai Accent motor vehicle $5,000.00

Wife’s household contents $3,000.00

Wife’s jewellery $1,000.00

Wife’s paid legal fees $15,437.00

Wife’s debt to her father -$4,000.00

$21,437.00

In order to bring her to 67.5% she would need to receive a further $393,345 from the fund representing the net proceeds of sale of the home. She would owe her father $1,300, the daughter $3,170, the son $170, $2,895 to Visa Card, S College $29,589 and any unpaid legal fees for these proceedings. Her solicitor estimates the unpaid fees at $19,382. She will retain her superannuation interest:

Superannuation Assets Value

C Superannuation Retirement Fund (W) $49,825.00

N Superannuation Fund (W) $21,000.00

$70,825.00

That would leave the husband with the benefit of:

Non Superannuation Assets Value

Husband’s savings $10.00

Husband’s laptop, furniture and personal effects $1,500.00

Husband’s paid legal fees $18,000.00

Add back for sale proceeds of boat $5,600.00

The balance of the fund representing the net proceeds of sale of the home $174,601.00

$199,711.00

He will owe $10,400 on a Citibank credit card and $1,600 on a Coles Myer Visa Card and any unpaid amount of his legal fees in these proceedings. His solicitor estimated the unpaid fees at $5,225. He also has superannuation interests totalling $18,585.

Conclusion under Section 79

The effect of the orders will be to divide the fund which represents the proceeds of sale of the former matrimonial home. So as to deal with any increase in that fund through interest earned I will order a division by percentage. At the hearing the fund had an agreed balance of $567,946.00. The amount foreshadowed as the appropriate payment to the wife - $393,345 is 69.257% of that amount. Rounding out to the nearest whole percentage I will order that the fund be divided in the proportions 69% to the wife and 31% to the husband. The parties will otherwise retain what they have. In my view the outcome I have foreshadowed would be just and equitable pursuant to s 79.

Child Support

The wife seeks a child support departure with the liability met by way of lump sum. Section 117 of the Assessment Act deals with departure and sections 123 & 124 deal with substitution orders - the payment of child support in a form other than periodic payment. Section 123(3) requires any departure application to be addressed prior to a substitution application. There is a nice argument that section 141 authorises a lump sum order in proceedings under section 117 itself but I will address sections 117 and 123/124, in turn. Section 123 of the Child Support (Assessment) Act 1989 provides among other things that departure proceedings must be determined before any application under Section 124.

The approach in proceedings for Child Support Departure

Section 116 of the Assessment Act provides:
[CS s 116]         s 116 Application for order under Division
116       (1)       A liable parent or a carer entitled to child support may, in respect of an administrative assessment of child support for a child, apply to a court having jurisdiction under this Act for an order under this Division in relation to the child in the special circumstances of the case if:
(a)       all of the following apply:
(i)        the Registrar has, under section 98E or 98R, refused to make a determination under Part 6A in respect of the administrative assessment;
(ii)       an objection to the refusal has been lodged under section 80 of the Registration and Collection Act;
(iii)       the Registrar has disallowed the objection; or
(b)       both of the following apply:
(i)        the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act;
(ii)       the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case; or
(c)       in the case of a liable parent—the administrative assessment of child support payable by the liable parent for the child is made under subsection 66(1).

There is no evidence before me that the requirements of section 116(1)(a) have been met but I am satisfied that the requirements of section 116(1)(b) have been met. The payer and payee are parties to proceedings under section 79 of the Family Law Act and sections 123 & 124 of the Assessment Act and I am satisfied that it would be in the interests of the liable parent and the carer entitled to child support for the court to consider whether a departure order should be made in the special circumstances of the case.
Section 117(1) provides:
117(1) Court may make departure order Where:
(a)application is made to a court having jurisdiction under this Act for an order under this Division in relation to a child in the special circumstances of the case; and
(b)the court is satisfied:
(i)that one or more of the grounds for departure mentioned in subsection (2) exists or exist; and
(ii)that it would be:
(A)just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(B)otherwise proper;
to make a particular order under this Division;
the court may make the order.
Special circumstances are facts peculiar to the particular case that set it apart from other cases.

The Exercise of Discretion

The wife seeks departure in respect of the son for the period 11 July 2005 to 30 September 2007 in the sum of $36,884. In the alternative she seeks that the husband’s liability for that period be fixed at $1,430 per month and paid:
a)As to the period 11 July 2005 to 28 February 2007 forthwith in the lump sum of $26,875 ($27,170 less $295);and
b)As to the period from 1 March 2007 to 29 September 2007 by the sum of $9,714 being placed into an account in the names of the parties from which the wife alone is permitted to draw the sum of $1,430 on the 29^th day of each month commencing on 29 March 2007 with the last payment made on 29 September 2007, and after 30 September 2007, the husband have the benefit of the monies (if any) in the said account
I take it that the order is broken up that way for no reason other than the date of the hearing, separating the retrospective and prospective aspects of the application. There is no evidence that the period that is the subject of the departure application should be otherwise broken up by reason of any change in the financial circumstances of either of the parties or in the needs of the child. Indeed there is no detailed evidence about any changes in the relevant financial circumstances throughout the period in question. Subject to the matter of past and future payments I will deal with the departure application as if there is one child support period.
The wife also seeks injunctions to give effect to those orders.
The husband formally seeks that the application for departure be dismissed. With respect I think the husband’s case and to some extent the submissions made in that case are founded on an error of fact. For reasons that the husband could not account for, he thought the son left school in 2006. During cross-examination the calculation of the years of the son’s secondary education were put to the husband and he did not cavil with the conclusion that the son is in Year 12 in 2007. That mistake led counsel to submit that there was no jurisdiction to make a departure order with effect beyond the son’s 18^th birthday. That would not account for the fact that the Registrar issued an assessment to 30 September 2007 but there it is. While section 12 of the Assessment Act includes as one of the terminating events, the subject child turning 18 years of age, section 151B(1) of the Act provides:
s 151B Application for assessment/agreement to continue beyond child's 18th birthday
(1) If a child turns 18 during a year in which the child is in full-time secondary education, a carer entitled to child support for the child may apply for an administrative assessment, or a child support agreement, in relation to the child to continue in force until the last day of the secondary school year in which the child turns 18.
I am satisfied that there is jurisdiction to order departure for the period of the current assessments.
Going to the merits of the claim, in cross-examination the husband conceded that he should be responsible for 50% of the son’s costs since separation but excluding school fees. His case is not quite as simple as that. His counsel submitted that $200 per week is a proper figure for the husband’s liability on the basis that the formula result based on his average salary for the last few years of $45,800 would be more like $100 per week. I do not follow the latter calculation.
I believe a fair summary of the husband’s position is that he seeks that the application be dismissed but if the Court intends to grant the application, a proper figure for the husband’s weekly liability is no more than $200.
The objects of the child support scheme include:
4(1) The principal object of this Act is to ensure that children receive a proper level of financial support from their parents.
(2)Particular objects of this Act include ensuring:
(a)that the level of financial support to be provided by parents for their children is determined according to their capacity to provide financial support and, in particular, that parents with a like capacity to provide financial support for their children should provide like amounts of financial support; and
(b)that the level of financial support to be provided by parents for their children should be determined in accordance with the legislatively fixed standards; and
(c)that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings; and
(d)that children share in changes in the standard of living of both their parents, whether or not they are living with both or either of them; and
(e)that Australia is in a position to give effect to its obligations under international agreements or arrangements relating to maintenance obligations arising from family relationship, parentage or marriage.
Many of the findings required in relation to child support are made above in the property reasons.

The assessments

The Court’s jurisdiction arises from the existence of child support assessments. The relevant assessments are as follows:

Assessment dated Period Monthly Rate Husband’s child support income

22 February 2006 11 July 2005 to 30 November 2005 $21.67 $8,897

22 February 2006 1 December 2005 to 10 October 2006 $188.00 $45,000

21 October 2006 11 October 2006 to 12 January 2007 $157.67 $45,000

17 November 2006 13 January 2007 to 30 September 2007 $26.67 $9,253

The grounds

In my view two grounds are made out. They relate to the husband’s earning capacity (section 117(2)(C)(i)) and to the son’s expenses in the form of school fees (section 117(2)(B)(ii)). For the reasons set out above I am satisfied that for most if not all of the period since separation, the husband has failed to exercise his earning capacity. From 11 July 2005 to 30 November 2005 and from 13 January 2007 to 30 September 2007 the assessments are based on a child support income for the husband that is well below his average salary. As to the entire period the assessment issued on 22 February 2006 arose from the decision of 17 February 2006 of Senior Case Officer Wootten. The decision resulted in the husband’s child support income for a period from December 2005 being fixed at $45,000. It was no part of that decision that the son’s expenses were increased by the school fees. Thus it cannot be said that the subject assessments contemplated the additional costs associated with school fees for the son.
There is a dispute in relation to the extent to which the parties expected the son to be educated at a school as expensive as S College but the parties clearly intended that he attend a non-government, fee paying school.
I am satisfied that in the special circumstances of the case, the current assessments would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the children because of the husband’s income, earning capacity, property and financial resources [s 117(2)(c)(i)]. That is a circumstance out of the ordinary.
In addition, I am satisfied that in the special circumstances of the case, the costs of maintaining the son are significantly affected because the parties expected that he would be educated at a fee paying school.

Just and equitable

Pursuant to section 117(4) the Court must have regard to certain matters. Firstly:
“(a)the nature of the duty of a parent to maintain a child (as stated in section 3); “
Section 3 is self explanatory:
“3(1) The parents of a child have the primary duty to maintain the child.
(2)Without limiting subsection (1), the duty of a parent to maintain a child:
(a)is not of lower priority than the duty of the parent to maintain any other child or another person; and
(b)has priority over all commitments of the parent other than commitments necessary to enable the parent to support:
(i)himself or herself; and
(ii)any other child or another person that the parent has a duty to maintain; and
(c)is not affected by:
(i)the duty of any other person to maintain the child; or
(ii)any entitlement of the child or another person to an income tested pension, allowance or benefit.”

Secondly the Court must have regard to:
“(b)the proper needs of the child;”
In considering the proper needs of the child section 117(6) says:
“(6)Matters to consider for purposes of paragraph (4)(b) In having regard to the proper needs of the child, the court must have regard to:
(a)the manner in which the child is being, and in which the parents expected the child to be, cared for, educated or trained; and
(b)any special needs of the child.”
It is submitted that the wife spends $4,442 per month on the son. That is said to be made up of his living expenses identified in her Financial Statement ($3,310 per month), together with one third of the cost of her household health insurance premium ($52 per month) and one third of the rent ($780 per month). There are some problems with that, not the least of which is that I can only make that calculation total $4,142 per month. As was submitted on behalf of the husband, the marginal cost of the son living with the wife is probably less than one third of the rent. However, the unique feature of this case is, sadly, that the husband has no accommodation costs associated with the son. If not one third, then a proper allowance must be made to the wife for the fixed accommodation costs associated with the son. I will allow 20% of the rental and 25% of the health premium. The only challenge made to the wife’s claim for living expenses was the claim for private school fees. Apart from school fees the wife spends $2,362 per month on the son. She was not challenged in relation to the fact of that expenditure or the need for it.
I am satisfied that the parties intended that the son be educated in a non-government school. Indeed both children were educated in non-government schools. That is not to say that the parties expected that the son would be educated at S College. The wife concedes that the husband was neither consulted about nor did he consent to the change of school from M College to S College. There is a significant difference in the charges of the respective schools. The charges at S College amount to $2,080 per month. The charges at the son’s former school for senior students are $285 per month. The school chosen by the parties for the daughter, L College, ($9,655 for Year 12 in 2004) charged more than M College but nothing like the fees at S College. Whatever one might say about the justification for or the benefits of the decision made by the wife to enrol the son at S College, it would not be just and equitable for the husband to be responsible for those fees except to the extent of the level of fees payable at M College. He should not be responsible for a cost that is not essential, without the courtesy of being involved in the decision to incur that cost. In addition to fees the wife seeks that an allowance be made of $50 per week for books and uniforms. It is conceded that the $50 is just an estimate. The submission for the husband is that the claim is excessive. There is no objective evidence to assist with this calculation. I will allow $20 per week. The proper monthly costs of the child in this context therefore are:

Expense Monthly Amount

Rent (20%) $468.00

Health Insurance premium (25%) $39.00

Living costs (without school fees or expenses) $2,362.00

Notional fees for M College ($3,423 pa) $285.00

Allowance for uniforms books etc (say $20 pw) $87.00

Total $3,241.00

Thirdly, the Court must have regard to:
(c)the income, earning capacity, property and financial resources of the child;
The only evidence about this is that the son earns about $20 per week. The wife was not challenged on that evidence and there were no submissions in this regard. One might take judicial notice that Year 12 is not usually the year when children are able to maximise their income from paid employment. There is no evidence of the son having any assets or financial resources. $20 per week is more in the nature of pocket money than a significant supplement to living expenses.
Fourthly, the Court must have regard to:
(d)the income, property and financial resources of each parent who is a party to the proceeding;

Findings about the wife’s financial circumstances are made earlier in these reasons. As to her asset position after the orders proposed above, she will have:

Non Superannuation Assets Value

Wife’s savings $1,000.00

Hyundai Accent motor vehicle $5,000.00

Wife’s household contents $3,000.00

Wife’s jewellery $1,000.00

Payment from the fund representing the net proceeds of sale of the home $393,345.00

Wife’s debt to her father -$4,000.00

$399,345.00

She also owes her father a further $1,300, the daughter $3,170, the son $170, $2,895 to Visa Card, $29,589 to S College and $19,382 in unpaid legal fees. I accept that the $29,589 to S College directly relates to the issue child support.
The wife has the following superannuation interests:

Superannuation Assets Value

C Superannuation Retirement Fund (W) $49,825.00

N Superannuation Fund (W) $21,000.00

$70,825.00

The husband’s current financial circumstances are set out earlier in these reasons. As to his earning capacity: when asked about the future, the husband said that he will seek to return to paid employment when these proceedings are over. There is no credible evidence as to why he could not have done so before now. There is no medical evidence going to his capacity. Given that he says he will return to paid employment now, Y would not seem to be a reason for him not returning to paid employment. He expects to return to the area of work fitting his qualifications and experience – as an executive in the laundry / dry cleaning field.

As a result of the orders foreshadowed above the husband will have has the following property:

Non Superannuation Assets Value

Husband’s savings $10.00

Husband’s laptop, furniture and personal effects $1,500.00

Payment from the fund representing the net proceeds of sale of the home $174,601.00

$176,111.00

He will owe $10,400 on a Citibank credit card and $1,600 on a Coles Myer Visa Card and any unpaid amount of his legal fees in these proceedings. His solicitor estimated the unpaid fees at $5,225.
The husband has superannuation interests totalling $18,585.
In summary, the husband has no income and the wife’s salary from teaching is $1,664 per week and she has some Tax Benefits. The wife will have net assets of about $240,000 compared to about $158,000 held by the husband. Her superannuation interests are $70,800 compared to his, $18,500.

Fifthly, the Court must have regard to:
(da)the earning capacity of each parent who is a party to the proceeding;
There is nothing to suggest that the wife has any unexercised earning capacity. As to the husband, he has chosen not to exercise his earning capacity. At various periods of the marriage the husband maintained an income of similar order to that of the wife. It is difficult to be certain about this because the husband will need to secure paid employment after a considerable period out of the workforce. He is 49 years of age and we do not live in times of full employment, particularly among older people. His earning capacity is probably less than but approaching that of the wife. Having said that, given the conduct of the husband, there is no reason to make inferences in his favour on this point.

Sixthly, the Court must have regard to:
(e)the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:
(i)himself or herself; or
(ii)any other child or another person that the person has a duty to maintain; and
The wife’s commitments are referred to earlier in these reasons. The husband has not disclosed his commitments.

Next the Court must have regard to:
(f)the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and
I have made findings about the wife’s expenses. The husband has no expenses in relation to the son.

Finally, the Court must have regard to:
(g)any hardship that would be caused:
(i)to:
(A)the child; or
(B)the carer entitled to child support;
by the making of, or the refusal to make, the order; and
(ii)to:
(A)the liable parent; or
(B)any other child or another person that the liable parent has a duty to support;
by the making of, or the refusal to make, the order.

There will be some hardship in a relative sense whatever order is made. The parties live is separate households and therefore their costs have increased over those applicable to an in tact family. The child support scheme recognises the need for a sensible relationship between the financial capacity of the parents and the needs of the children. There will be hardship for the parties and for the son if the overall level of child support is excessive or the share of that support borne by either party is out of proportion to the capacity of that party.

Conclusion

The husband formally seeks that the application for departure be dismissed. In the course of cross-examination the husband conceded that he should be responsible for 50% of the son’s costs since separation but excluding school fees. His case is not quite as simple as that. His counsel submitted that $200 per week is a proper figure for the husband’s liability on the basis that the formula result based on his average salary for the last few years of $45,800 would be more like $100 per week. I do not follow the latter calculation.
I believe a fair summary of the husband’s position is that he seeks that the application be dismissed but if the Court intends to grant the application a proper figure for the husband’s weekly liability is $200.
The proper costs associated with the son are $3,241 per month. The wife is in a stronger position than the husband in respect of income, assets and superannuation. Doing the best I can it would be just and equitable for the wife bear two thirds of the son’s costs and the husband one third.
One third of the son’s proper costs is $1,080 per month.

Otherwise proper

Section 117(5) focuses on the balance of support carried between the parents on one hand and the tax payer on the other. Pursuant to the subsection, in determining whether it would be otherwise proper to make a particular order the court must have regard to certain matters.
Firstly the Court must have regard to:
(a) the nature of the duty of a parent to maintain a child (as stated in section 3) and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child;
This is self explanatory.
Secondly the Court must have regard to:
(b)      the effect that the making of the order would have on:
(i)       any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or
(ii)      the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.

No submissions were made on this point. The thrust of this provision is that the level of a benefit may be affected by the level of child support. Therefore the orders proposed may change the balance of the costs of supporting the child that are met by the parties and by the taxpayer. Here the wife is in receipt of Family Tax Benefit A in the sum of $42 and Family Tax Benefit B at $22. The tax benefits are not included in the relevant definition in Regulation 12A of the Family Law Regulations 1984 – nor in the incorporated definition of a social security pension or a social security benefit within the meaning given by subsection 23(1) of the Social Security Act 1991. If the wife was to be in receipt of an income tested pension, allowance or benefit then the effect of the decision I propose will be to increase the husband’s liability for the period in question and if anything that will retrospectively and prospectively, reduce the income tested benefit.
Therefore it would be otherwise proper to make the order proposed.

Conclusion on departure

The husband’s liability for the period 11 July 2005 to 30 September 2007 should be $1,080 per month.

Substitution Orders - Payment of Child Support in a form other than periodic payment

Section 124 of the Child Support (Assessment) Act 1989 provides as follows:

124 (1) Where:
(a)a carer entitled to child support or a liable parent makes an application to a court under section 123; and
(b)the court is satisfied that it would be:
(i)just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(ii)otherwise proper;
to make an order that the liable parent provide child support for the child otherwise than in the form of periodic amounts paid to the carer entitled to child support;
the court may make the order.

The wife seeks that payment of the husband’s child support liability in a lump sum. The husband seeks the dismissal of that application. In cross-examination he confirmed that he wished to make any payments ‘weekly’.
The wife’s case in this regard is that the husband had the capacity from time to time to pay proper child support and he did not. Given that the property proceedings will identify a capital sum in the hands of the husband and that he has intentionally wasted assets to harm the wife, it would be sensible to order that the husband meet that liability by way of a lump sum.
Child support is generally intended for recurrent expenses associated with a child and not for capital expenditure. The circumstances of a child and of the payer and payee can change. For those reasons the courts have been reluctant to order lump sum payments for future support. A track record of non-payment, the existence of a capital fund and the fact that the departure is only for a short time into the future are reasons why lump sum support has been ordered. Sometimes a half-way house is identified being the isolation or securing of a capital fund which is paid out by instalments to the payee. In that way the body of the fund is not disbursed until the expenditure is actually incurred and if something changes the Court can intervene.
There is no reason why the past liability should not be met by lump sum. As to the future there is only 6 months left until the child support obligation will cease. The husband cannot be relied on to make periodic payments. The only question is whether the husband’s liability to 30 September 2007 should be held in a fund and paid out periodically or paid forthwith. Given the short period involved, the inconvenience to the parties outweighs the protection afforded by that arrangement. I am satisfied that it would be just and equitable and otherwise proper for the entire payment to be made in a lump sum.
The total liability from 11 July 2005 to 30 June 2007 is 26.5 months @ $1,080 = $28,620.
The unchallenged evidence of the wife is that as at 20 October 2006, when she swore her affidavit, the husband had paid a total of $295.62 in child support by payments made between October 2005 and September 2006.
I will order that prior to the distribution of any funds to the husband from his share of the fund representing the net proceeds of sale of the home, the wife receive $28,324.38 ($28,620 minus $295.62) minus any other payments that the parties agree or the Court subsequently finds were also made. That payment will be in full satisfaction of the husband’s child support liability under any assessments issued as a result of these orders, for the period 11 July 2005 to 30 September 2007 in respect of the son.

I certify that the preceding two hundred and seventeen (217) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Ian Loughnan.

Associate:

Date: 22 March 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as ASHLEIGH & ASHLEIGH

[2007] FamCA 235

22 March 2007

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Appeal

Jurisdiction

Remedies

Costs

Non Superannuation Assets	Value
Balance of the proceeds of sale of the former matrimonial home at P	$567,946.00
Wife’s savings	$1,000.00
Hyundai Accent motor vehicle	$5,000.00
Wife’s household contents	$3,000.00
Wife’s jewellery	$1,000.00
Wife’s paid legal fees	$15,437.00
Husband’s savings	$10.00
Husband’s laptop, furniture and personal effects	$1,500.00
Husband’s paid legal fees	$18,000.00
Add back for sale proceeds of boat	$5,600.00
Total	$618,493.00

Superannuation Assets	Value
C Superannuation Retirement Fund (W)	$49,825.00
N Superannuation Fund (W)	$21,000.00
Husband’s superannuation (various funds)	$18,585.00
Total	$89,410.00

Liabilities	Amount
Wife’s debt to her father	$4,000.00
$4,000.00

Year ending	Income
Wife	Husband
1985	$22,000	$22,000
1986	$22,000	$22,000
1987	$22,610	$22,626
1988	$10,169	Nk
1989	0	Nk
1990	$14,389	$33,085
1991	$14,584	$27,231
1992	$26,803	$35,679
1993	$25,800	$41,404
1994	$19,797	$14,889
1995	$20,405	$4,271
1996	$25,581	$27,948
1997	$44,793	Nk
1998	$46,000	Nk
1999	$56,459	$32,165
2000	$61,162	Nk
2001	$62,186	$62,301
2002	$64,210	$53,571
2003	$66,339	$35,360
2004	$72,346	$15,685
2005	$81,833	$8,897
2006	$82,000	Nk
$861,466.00	$459,112.00

Expense		Amount
Income tax		$540.00
Rent		$540.00
Private health insurance – Australian Health Management		$36.00
Motor vehicle registration – Hyundai Accent motor vehicle SPY 597		$16.00
Minimum payments on Commonwealth Bank Visa card		$25.00
Living expenses		$1,228.00
Food	$150.00
Household supplies	$39.00
Gas	$15.00
Electricity	$15.00
Telephone	$50.00
Petrol	$50.00
Motor vehicle maintenance	$50.00
Fares and parking	$7.00
Clothing and shoes	$50.00
Children’s activities	$8.00
Medical dental and optical	$10.00
Entertainment and hobbies	$29.00
Holidays	$70.00
Education expenses including school fees	$550.00
Chemist pharmaceuticals	$26.00
Repair of furnishings and appliances	$5.00
Dry cleaning	$3.00
Books and magazines	$27.00
Gifts	$34.00
Hairdressing toiletries	$40.00
$1228.00
Total		$2,385.00

Expenditure	Amount
Repayments on Coles Myer Visa Card	$32.00
Repayments on Citibank credit card	$25.00
Total	$57.00

Assessment dated	Period	Monthly Rate	Husband’s child support income
22 February 2006	11 July 2005 to 30 November 2005	$21.67	$8,897
22 February 2006	1 December 2005 to 10 October 2006	$188.00	$45,000
21 October 2006	11 October 2006 to 12 January 2007	$157.67	$45,000
17 November 2006	13 January 2007 to 30 September 2007	$26.67	$9,253

Expense	Monthly Amount
Rent (20%)	$468.00
Health Insurance premium (25%)	$39.00
Living costs (without school fees or expenses)	$2,362.00
Notional fees for M College ($3,423 pa)	$285.00
Allowance for uniforms books etc (say $20 pw)	$87.00
Total	$3,241.00