B and B
[2001] FMCAfam 243
•9 November 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| B & B | [2001] FMCAfam 243 |
| FAMILY LAW – Property – Comparison of contributions – Wife has repetitive strain injury – Departure application ordered by consent – Expectation that children attend private fee-paying school – appropriateness of children contributing to their own educational expenses Whether just and equitable to make orders sought – Child Support (Assessment) Act, s117,123,124. |
| Applicant: | J P B |
| Respondent: | E A B |
| File No: | ZP 1568 of 2001 |
| Delivered on: | 9 November 2001 |
| Delivered at: | Parramatta |
| Hearing Date: | 29 October 2001 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Thistleton |
| Solicitors for the Applicant: | Coleman & Greig 100 George Street, Parramatta 2150 |
| Counsel for the Respondent: | Mr Kenny |
| Solicitors for the Respondent: | McPhee Kelshaw DX 26729 Springwood |
ORDERS
That the parties do everything to sell the property at S (“the home”) by private treaty on the following terms:.
(a)The asking price for the property shall be $375,000 and the parties shall accept any offer above and including $350,000.
(b)The agent shall be those agents as the parties shall agree within seven days of these orders and failing such agreement shall be as nominated by the President of the Real Estate Institute of New South Wales or his or her nominee.
(c)The solicitors acting on the sale shall be Messrs McPhee Kelshaw.
If contracts for the sale of the home are not exchanged within one month of the date of this order then the parties shall forthwith do everything to sell the home by private treaty on the following terms:
(a)The asking price for the property shall be $355,000 and the parties shall accept any offer above and including $350,000.
(b)The agent shall be those agents as the parties shall agree within seven days of these orders and failing such agreement shall be as nominated by the President of the Real Estate Institute of New South Wales or his or her nominee.
(c)The solicitors acting on the sale shall be Messrs McPhee Kelshaw.
If contracts for the sale of the home are not exchanged within six months of the date of this order then the parties shall forthwith do everything to sell the home by private treaty on the following terms:
(a)The agent shall be those agents as the parties shall agree within seven days of these orders and failing such agreement shall be as nominated by the President of the Real Estate Institute of New South Wales or his or her nominee.
(b)The solicitors acting on the sale shall be Messrs McPhee Kelshaw.
(c)The auction shall take place by no later than three months from the date of this order.
(d)The reserve price shall be that price that the parties agree to in writing within seven days of the home being listed for sale by auction but failing such agreement shall be as nominated by the President of the Australian Property Institute or his or her nominee acting as expert and not as arbitrator.
Upon the settlement of the sale of the home the parties shall do everything to distribute the proceeds of the sale of the home as follows:
(i)To discharge any mortgage thereon;
(ii)To pay the real estate and legal fees in connection with the sale;
(iii)To pay the costs of any valuation obtained to facilitate the sale pursuant to order 3 hereof;
(iv)Wife’s credit card account to $1,000;
(v)St C High School fees $3,500;
(vi)B M Council arrears of rates;
(vii)Husbands credit card debt to $2,735
(viii)To pay to the husband or as he shall direct 38% of the net then remaining;
(ix)To pay the balance then left remaining to the wife or as she shall direct.
The wife shall make available for collection by the husband from the home within fourteen (14) days of these orders the following items:
(i)Persian rug being gift from his father;
(ii)Round coffee table;
(iii)Wooden pigeon holes/bureau being a gift from the husband’s mother;
(iv)The husband’s guitar;
(v)The husband’s books;
(vi)Lead light tools materials and cupboard;
(vii)Lawn mower;
(viii)Smoker’s chair including the parts and photograph.
Commencing 1 January 2002 or on the settlement of the sale of the home whichever is the later any administrative assessment is departed from so that in addition to the administrative assessment the husband pay direct to the systemic Catholic schools the children are enrolled in one half of their tuition fees and expenses for building levy, student administration fee, sport and health fee, specific subject fees and P and F.
Order 6 terminates in the case of R on 31 December 2002 and in the case of G on 31 December 2006.
That all applications are dismissed.
That all exhibits tendered in these proceedings be returned at the expiration of one calender month unless an Appeal is lodged.
That the Solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
ZP 1568 of 2001
| J P B |
Applicant Husband
And
| E A B |
Respondent
REASONS FOR JUDGMENT
The proceedings
These are proceedings for the adjustment of property and a departure from the administrative assessment of child support.
The applications
J P B (“the husband”) filed an Application for Final Orders in the Federal Magistrates Court on 25 June 2001. This application, as amended by the minute of order attached to the husband’s practice document, it contains the orders sought by him at the hearing. In essence the orders he sought were:
(1)That the parties do everything to sell the property at S (“the home”) by private treaty on the following terms:.
(i)The asking price for the property shall be $375,000 and the parties shall accept any offer above and including $350,000.
(ii)The agent shall be those agents as the parties shall agree within seven days of these orders and failing such agreement shall be as nominated by the President of the Real Estate Institute of New South Wales or his or her nominee.
(iii)The solicitors acting on the sale shall be Messrs McPhee Kelshaw.
(2)That if contracts for sale are not exchanged within 6 months of the date of this order, the parties will do everything to sell the home by public auction on the following terms:
i)The auction shall take place by no later than three months from the date of this order.
ii)The reserve price shall be that price that the parties agree to in writing within seven days of the home being listed for sale by auction but failing such agreement shall be as nominated by the President of the Australian Property Institute or his or her nominee acting as expert and not as arbitrator.
iii)The solicitors acting on the sale shall be Messrs McPhee Kelshaw.
(3)That the proceeds of the sale of the home will be distributed as follows:
(a)to discharge any mortgage;
(b)to pay the real estate fees and legal fees in connection with the sale;
(c)to pay the costs of any valuation obtained to facilitate the sale of the home;
(d)to pay the husband 40% of the net then remaining;
(e)to pay the husband a sum equivalent to 40% of any adjustment that was made for unpaid rates due on the home at settlement;
(f)to pay the balance then left remaining to the wife.
(4)The wife shall make available for collection by the husband from the home within fourteen (14) days of these orders the following items:
(i)Persian rug being gift from his father;
(ii)Round coffee table;
(iii)Wooden pigeon holes/bureau being a gift from the husband’s mother;
(iv)The husband’s guitar;
(v)The husband’s books;
(vi)Lead light tools materials and cupboard;
(vii)Lawn mower;
(viii)Smoker’s chair including the parts and photograph.
(5)That the administrative assessment of child support be departed from so that in addition to the administrative assessment, the husband pay half of the children’s school fees direct to the systemic catholic schools they are enrolled in.
(6)That order 5 terminates in the case of R M B on 31 December 2002 and in the case of G F B on 31 December 2006.
(7)That the wife’s application be otherwise dismissed.
E A B (“the wife”) filed a response to the husband’s application for orders on 4 July 2001. On the hearing date, she filed an amended response which response identified the orders she sought at trial. In summary, the orders she sought were:
(1)That the parties do all things, sign all documents and give all consents necessary to cause the property at S listed for private treaty sale with an agent and at a listing price nominated by the respondent.
(2)That the proceeds of the sale be distributed as follows:
(a)in payment of conveyancing costs and agent’s commission associated with the sale;
(b)in repayment of the mortgage;
(c)in payment of the balance as to 75% to the wife and 25% to the husband.
(3)That the parties do all things, sign all documents and give all consents necessary to give effect to these orders.
(4)That in the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to any of these orders, within 14 days of being requested to do so, then the Registrar or a Deputy Registrar of the Family Court be appointed pursuant to section 106A, to execute such deed or instrument in the name of the said party and to do all acts and things necessary to give validity to the operation of the deed or instrument.
(5)That the husband and the wife be declared to have the sole right title and interest in:
(a)any chattels, goods, furnishings and other property which are, at the date hereof, in their possession respectively;
(b)any moneys, shares, debentures and superannuation entitlements which stand in their sole name respectively at the date hereof.
(6)That the husband pay in equal shares the school fees and school expenses including book fees and excursions costs of the children, such payment not to be lieu of any child support payable by either party.
Short history
The husband was born on 16 March 1958 and is now aged 43 years. The wife was born on 3 June 1964 and is now aged 37 years.
The parties were married on 10 March 1984 and commenced cohabitation upon their marriage.
They separated in April/May 2000.
There are three children of the marriage, M L B born 11 February 1985, R M B born 29 April 1987 and G F B born 13 October 1989.
The marriage still subsists.
The evidence
The applicant husband relied on the following evidence:
·His affidavit affirmed and filed 19 October 2001 and his oral testimony;
·His financial statement affirmed 12 June 2001 and filed 25 June 2001;
·His amended financial statement affirmed 5 October 2001 and filed 8 October 2001;
·
Affidavit of his father Z B sworn 19 October 2001 and filed
23 October 2001 and his oral testimony.
The respondent wife relied on the following evidence:
·Her affidavit sworn 5 October 2001 and filed 8 October 2001 and her oral testimony.
·Her financial statement affirmed 29 June 2001 and filed 4 July 2001.
·
Affidavit of her mother E A B sworn 9 October 2001 and filed
15 October 2001.
The husband tendered a statement from State Super that became an exhibit in the proceedings.
Background facts
The parties commenced cohabitation upon their marriage. At that time the wife was employed as a clerk with the State Rail Authority. The husband was also in full time employment. The wife earned more than the husband did. At the date of their marriage the husband owned a block of land at M which had a value of $15,000. The property was unencumbered. He also owned a Holden Torana valued at $10,000. Not long after they married, the car was damaged beyond repair. The husband received about $6,000 from his insurer for the car.
When the wife was 12 years old she was injured in a motor vehicle accident. Her damages verdict was placed into trust. Upon her marriage she had $10,000 remaining from the verdict monies. She had no other assets of value.
For their first year following their marriage the parties lived rent free at the husband’s parent’s home at S H. They lived in a converted garage. Together they purchased a home at B. The husband sold the land at M and after sale costs, applied the balance of $14,000 towards the purchase price of the B property. Some or all of the $10,000 held by the wife from her damages verdict was applied towards the deposit. The purchase price was $52,000 and the shortfall was funded by way of a mortgage from the Commonwealth Bank. The parties agree that the entirety of the wife’s damages verdict was spent to the betterment of the family.
Shortly prior to the birth of their eldest daughter, the wife took leave from her employer. She took one year maternity leave and returned to the State Rail Authority in early 1996, (six weeks of her maternity leave was paid leave and the remainder unpaid). When the wife returned to work at the end of her maternity leave, the husband stayed at home for one year caring for the child. The parties had agreed to do this because the wife was earning more than the husband was. In early 1987 the wife resigned her employment.
In 1987 the husband was employed as a district officer with the Department of Community Services. That year they sold the B property and purchased "the former matrimonial home" at S. The B property was sold for $45,000 and the purchase price for S was $72,000. The shortfall on the purchase price was met from a mortgage in the sum of $25,000 from the Commonwealth Bank.
In 1994 the parties extended the mortgage, borrowing an additional $50,000 from the Commonwealth Bank to extend the former matrimonial home.
In October 1988 the wife returned to work, working part time with the Lands Department. She was employed on an oncall casual basis with the Department of Community Services, working not more than one day per week. She withdrew from the paid workforce on the 12th October 1989 the day before their youngest child was born. The wife remained at home caring for the children and studying until October 1995. She then commenced employment as a sound recorder with the Attorney General’s Department.
In January 1997 the wife suffered an injury in the course of her employment, an overuse repetitive strain injury to her neck and arms. She continued in her employment with the Attorney General’s Department, receiving either workers compensation or part workers compensation and salary until May 1999. During that time she attempted to retrain undertook light duties and attempted to return to her work as a sound recorder. Her attempts were not successfully and in May 1999 she was assessed as medically unfit and was medically retired. She continued to receive workers compensation until May 2000. In mid 1998 she was awarded $16,350 from which after paying medical expenses she received $15,423.85 in the way of workers compensation. The amount related to pain and suffering. She paid $10,000 to the Commonwealth Bank on 2 July 1998 to reduce the mortgage. Approximately $5,000 was used on renovations at the matrimonial home, particularly the veranda and new cupboards.
On 9 November 2000 the wife finalised her workers compensation claim. She received an additional payment of $17,500 by way of commutation payment was in addition to those already received. From this she repaid a debt of $2,000 to her mother, purchased a car for $1,500 that she allowed Jason Hopkins to use, bought another car for $1,600 and spent $2,400 on living expenses. The remaining $10,000 is held in a cash management account in the wife’s name.
In July 1999 the husband received $7,339 from his grandmother’s estate.
In 1999 the wife enrolled in a Bachelor of Arts Degree majoring in psychology at Monash University as a correspondence student. She has also enrolled at TAFE studying for a Diploma in Welfare. In three months she will complete her Diploma in Welfare. The TAFE diploma has enabled her to reduce the length of her bachelor’s degree by two years. She will finish her university studies in two but no later than two and a half years.
The parties separated on 8 May 2000. Since separation the wife and children have lived in the former matrimonial home and the husband has lived in rented accommodation. At separation the parties reached agreement about the management of their joint liabilities and child support. They agreed that each party would be responsible for paying one half of the mortgage payments, half of the medical insurance and one half of the school fees. The husband would be responsible the entirety of these payments because in lieu of child support he would make the half payment on the mortgage and school fees that would otherwise have been the wife’s responsibility.
After separation the husband came to the home three evenings a week to share an evening meal with the children. The wife prepared the evening meal and then left the home. On each second weekend she vacated the home and the husband returned to it for the purpose of spending time with the children. He continued taking R to ballet and G to her drama classes.
Eventually the arrangements whereby the husband regularly returned to the home and the wife vacated it broke down.
The husband made his last mortgage payment in November 2000. The mortgage was substantially in advance until July 2001.
On 6 July 2001 Blue Mountains City Council issued a Statement of Claim against the parties for outstanding council rates.
On 1 August 2001 the Commonwealth Savings Bank issued a notice of intention to take possession of the property. The wife has entered an arrangement with both the council and bank to make continuing payments in respect of the latter and to pay the council upon the completion of the sale of the home.
At separation the husband reduced his superannuation contributions to two percent. Between September 2000 and March 2001 he made payments of $87 per month. In April 2001 he increased his superannuation contributions to 7% of salary paying $310 per month.
At separation the parties divided the contents of the former matrimonial home between them.
Once the party’s agreement for the provision of child support had broken down, the wife sought an administrative assessment of the husband’s liability from the child support agency. On 2 December 2000 an administrative assessment issued requiring the husband to pay $998.58 per month child support. Because of a delay in the payment being forwarded by his employer arrears accrued and as at 3 September 2001 the husband had arrears of $1,772.32. Thereafter he paid $479.31 per fortnight by way of child support and as at the date of the hearing had arrears due of $845.30.
At separation the wife had taken responsibility for repaying one half of a joint bank card debt. After she had not paid her one half share the parties had further discussions about the debt. They agreed that the wife would pay the remaining school fees, about $1,800, and take responsibility for the balance outstanding to Centrelink that had arisen from an overpayment. The amount due to Centrelink was $689.10. In lieu, the husband agreed to pay the balance of the bankcard debt.
No school fees have been paid to St C in 2001. When M celebrated her 16th birthday she became eligible for a youth allowance. She receives $158 per fortnight. The wife’s supporting parents benefit reduced by $80 per fortnight once M started receiving her youth allowance.
I find that the assets, liabilities and financial resources of the parties as at the date of hearing are as identified in the following table.
Assets as at the date of hearing | $ |
| S property (agreed) | 350,000 |
| Household effects (H) (agreed) | 1,500 |
| Sigma motor vehicle (W) (agreed) | 1,600 |
| Volvo motor vehicle (W) (not noted by h) | 3,000 |
| Household effects (W) (agreed) | 3,000 |
| Husband’s motor vehicle (agreed) | 2,500 |
TOTAL ASSETS: | 361,600 |
| Liabilities as at the date of hearing | $ |
Mortgage secured against S property | 51,000 |
| Wife’s credit card (agreed) | 1,000 |
| St C High School fees (agreed) | 3,500 |
| B M Council (Arrears of rates) agreed | 1,000 |
| R B (Wife’s debt to daughter) agreed | 1,000 |
| Avco | 759 |
| Husband’s bankcard debt | 2,735 |
| TOTAL LIABILITIES: | 60,994 |
TOTAL NET ASSETS: | 300,606 |
| Financial resources as at date of hearing | $ |
| Wife’s superannuation as at 30 June 2001 | 5,248.23 |
| Husband’s superannuation as at 30 June 2001 | 85,263.52 |
Both parties agree that the monies held by the wife in her Commonwealth Cash Management Trust Account should be dealt with pursuant to Section 75(2). I agree.
Relevant Law
The approach to the determination of an application under Section 79 is well established by authority (In the Marriage of Lee Steere and Lee Steere[1]; In the Marriage of Ferraro[2]; In the Marriage of Clauson[3] the process ordinarily involves a multiple part procedure. Firstly, identifying the property, liabilities and financial resources of the parties at the time of the hearing. Secondly, evaluating the contributions made by the parties as defined in section 79(4)(a) to (c) and the effect of any proposed order upon the earning capacity of either party. The court must then evaluate the matters contained in section 75(2) insofar as they are relevant, any other order made under the Act affecting a party or child and any child support under the Child Support (Assessment) Act 1989 that a party to the marriage is to provide, or might be liable to provide in the future, for a child to the marriage.
[1] (1985) FLC 91-626
[2] (1993) FLC 92-335
[3] (1995) FLC 92-595
In determining what order the court should make under section 79, the court must be satisfied in all the circumstances that it is just and equitable to do so [Section 79(2)]. It is the justice and equity of the actual orders that the court must consider. Russell v Russell[4].
[4] (1999) FLC 92-877
Section 79(4) determining contributions
I have already made findings about the assets and liabilities held by each party at the commencement of cohabitation. Both parties were in full time employment and the wife was earning more than the husband was. The husband’s assets at the commencement of cohabitation were greater than the wife’s. The husband made a significant financial contribution in the nature of gifts advanced by his father between 1994 and April 2000 totally $19,700. Three thousand dollars of these monies were given to the children and the balance received by the family. They applied it to the betterment of the family. Similarly, in 1999 the husband received an inheritance as I have already found. These monies were used for joint matrimonial purposes.
When the wife received a compensation distribution in 1998, she applied the entirety of the $15,423.85 to matrimonial purposes. Significantly she made a capital payment towards the mortgage and the balance remaining was spent on improvements to the former matrimonial home.
Other than for one year, the husband was in full time employment throughout the course of the marriage. During the early years of their marriage when she was in the paid workforce, the wife was able to earn more by way of salary than the husband did. Thereafter during the periods when she was working part time and in receipt of workers compensation she earned less than the husband. The salary relativities as between the parties are unclear during the period October 1995 until January 1997. The wife worked full time with the Attorney General’s Department.
On balance the husband’s financial contribution, direct and indirect, exceed those made by the wife when evaluated comparatively.
The husband worked hard maintaining and improving the S property. During the 16 years that he lived at the former matrimonial home he undertook substantial renovations and improvements to the property. He agreed that the wife did some painting of the front gable and that she may have stained the rails around the bottom deck. Otherwise he carried out the renovations and improvements identified in paragraph 17 of his affidavit. When the rear extension was carried out, the husband, assisted to a small degree by his father and the wife’s brother opened the back wall to the home and removed the soil and rubble from the bedrock.
Since separation, the wife has maintained the former matrimonial home.
The husband’s non-financial contributions significantly exceed the wife’s when evaluated comparatively.
Other than for the periods when she was in paid employment, the wife devoted herself to the care of the children and as the home maker. The parties agree that they divided responsibilities in the family such that the husband was primarily responsible for maintaining their home while the wife was primarily responsible for taking a traditional home maker and parent role. When the husband was working on the property the wife cared for the children. The husband complimented the wife’s care of the children. The wife has never held a driver’s licence and the husband did such driving as was necessary to take the children to social and extra curricular activities.
They lived nearby to the shops and train line and the demands upon him were not as great as he inferred. When both parties were in full time work home maker responsibilities were divided between them although I am satisfied that the wife was more substantially involved in the day to day running of the home than was the husband. Since separation the children have lived with the wife and exercised regular contact with the husband. He drives the children to their social activities and exercises regular contact to them. The wife’s contribution as home-maker and carer significantly exceed the husbands.
The orders I propose will not affect the earning capacity of either party.
The husband pays child support at $998.58 a month. The parties agree that all three children should complete Year 12 at St C High School. Thus the husband will pay child support for at least one and a half years, three and a half years and six years respectively. In addition to the child support that he is assessed to pay, he agrees that there should be a departure order. Thus he will contribute in addition to the assessed child support, to the private school fees.
Both parties have incurred legal fees. The husband has borrowed about $4,000 from his father towards his costs. The mother's fees are entirely outstanding and I infer will be paid from her share of the nett proceeds of sale. Each will have responsibility for their own indebtness.
Assessment of contributions
I find therefore, that the parties total contribution should be assessed as 53% by the husband and 47% by the wife. I accept the husband’s submission that his greater initial financial contribution, the contribution of his inheritance as well as the gifts made by his father to the family must, in the context of this marriage, have considerable significance. The gifts from his father were quite substantial and must have made a real difference to this families quality of life. I do not accept the submission that without the monies derived from the sale of the M land the parties would not have been able to acquire their first home. It may have delayed its acquisition, or increased the mortgage that they needed to complete the purchase.
The wife's contribution as a home-maker and parent exceeds that made by the husband. It must be given real and proper weight. Importantly the contribution of her first workers compensation settlement must be weighed properly, coming as it did late in the marriage. Both parties have made a contribution since separation to the welfare of the family. The wife has had the care of the children and maintained the home. Her post separation contributions have, overall exceeded the husbands. Although the wife's counsel pressed the court to make a finding that the parties contributions were equal, the evidence does not justify the finding. It would undervalue the husbands clearly greater contributions.
Section 75(2) factors
a)The husband is 43 years old. He has been depressed since separation and consulted a counsellor initially fortnightly, then with 4 – 6 week breaks between appointments and recently fortnightly. He has been depressed, which depression has varied in its severity. He has a form of dyslexia known as “Irlen Syndrome”. This is a genetic, perceptual dysfunction that causes him discomfort and difficulty reading. His reading and performance and eye comfort have improved with the use of Irlen lenses. He has a stutter, which like his ability at reading, fluctuates in intensity with stress. He manages back and neck pain by Alexander technique movement. The husband adequately manages his health difficulties. I am not satisfied that they impact upon his capacity for paid employment. As a result of her work injury, the wife has an injury to her neck, which means that she cannot sit for long periods at a time and if she does, suffers from headaches, pins and needles. Her arms can become painful and she has limitations to her hand fine motor skills and excessive arm movements. Repetitive movement exacerbates the symptoms as do long periods of sitting.
I make an adjustment in favour of the wife pursuant to the sub section.
b)The husband works full time as a caseworker with the Department of Community Services. He plans to continue to work full time. Other than occasional opportunities for higher duties on a temporary basis, he does not anticipate future promotion. I accept that this is so. He earns $1,042 per week or $54,184 per annum salary. He has no other source of income. I have already made findings as to his property and financial resources and do not repeat them. He has the physical and mental capacity to continue in full time employment, remunerated at least to his current level of remuneration until he reaches retirement age and wishes to retire. The wife’s income is derived from social security payments, $10 per week interest derived from her cash management trust and child support of $250 per week. M pays $40 per week either to her school or as board. Her repetitive strain injury materially limits her capacity for appropriate employment. Her use of a computer keyboard is severely restricted and carrying out repetitive work that requires the use of her hands or sitting in the one position for any length of time is contraindicated. Once she completes her Bachelor of Arts Degree she will have relevant professional qualifications that will enable her to work as a social worker or professional equivalent. When she completes her Diploma of Welfare she has the capacity to work as a community worker in a hospital. It is reasonable that she regards employment as a youth worker as inappropriate given her physical limitations. I am satisfied that for at least the next 2 to 21/2 years, the wife’s capacity for paid employment is significantly impaired. The parties agree that the monies held by the wife in her cash management account should be treated as an additional factor taken into account pursuant to the sub section. These monies have been acquired by her subsequent to separation and to compensate her for the injury. I make an adjustment in her favour pursuant to the sub section.
c)The children are 16, 14 and 12 years respectively. They all live with the wife and will continue to do so. The husband exercises regular contact with them and will continue to do so. All children plan to complete year 12 secondary school. I find that this subsection requires an adjustment in the wife’s favour
d)Both parties have a duty to maintain the three children of the marriage. Each has the commitments identified in their financial statement. These commitments are modest and will only enable them to have a modest standard of living. The wife’s commitments include the cost of caring for the three children. It is appropriate to make an adjustment in the wife’s favour pursuant to the sub section.
e)Other than the children, neither party has a responsibility to support any other person. The wife has established a close relationship with J. They do not live together and have no plans at present to do so. I make no adjustment under this sub section.
f)The wife is in receipt of a parenting allowance and family payment from Centrelink. She receives $320 per week. Both parties have superannuation benefits. The husband’s superannuation entitlement substantially exceeds the wife’s. Although it will be more than 20 years before he is able to receive his superannuation benefits, it is appropriate to make an adjustment in favour of the wife pursuant to the sub section.
g)The parties live a modest life. Both have struggled since separation to maintain a reasonable standard of living. Both have endured a reduction in their standard of living to that which they enjoyed during cohabitation. I make no adjustment pursuant to this sub section.
h)This issue does not arise.
j)This issue does not arise.
k)This issue does not arise.
i)The wife’s evidence which I accept, that she does not intend to return to paid employment until she completes her Bachelor of Arts degree. By this time the children will be 18½, 16½ and 14 years old. I have already taken into account her absence from the paid workforce for the next two and a half years. As a consequence of the children’s age when she proposes to return to the paid workforce it would be inappropriate to make further adjustment in her favour. I make no adjustment pursuant to the sub section.
j)This issue does not arise.
k)The parties agree that the former matrimonial home must be sold. It must be sold quickly because the B M City Council have commenced proceedings for the non payment of rates and the mortgagee has indicated a desire to take action to sell the property as a consequence of non payment of the mortgage. The wife will receive a greater share of the proceeds of sale than will the husband. They will both have the opportunity to re-enter the property market in a modest way. Both will need to raise a mortgage to do so. The husband will need to borrow more than the wife will and because of his greater income, he has the capacity to do so. Both will remain in the foreseeable future in modest financial circumstances. I make no adjustment pursuant to the sub section.
na) The husband will pay a significant percentage of his salary to the wife by the way of child support. He will significantly make a contribution to the children’s private school fees. His liability will continue for at least the next 6 years, reducing as each child reaches 18. I make no adjustment pursuant to this sub section.
l)This does not arise.
m)This does not arise.
Having regard to all of the Section 75(2) factors I find it appropriate that there should be an adjustment in the wife’s favour having regard to sub section 75(2)(a),(b),(c),(d) and (f). The appropriate adjustment to make in the wife’s favour is 15 per cent.
Section 79(2) — Is this a just a equitable outcome?
I find following the parties’ 16 years cohabitation that their contributions during cohabitation were 53% by the husband as compared to the wife's 47%. The husband made a greater initial financial contribution and his financial contributions throughout the course of the marriage exceeded the wife’s. Other than for a period of 12 months the husband was continuously engaged in paid employment and utilised his earnings for the benefit of the family. In addition he made a non-financial contribution to the maintenance of the matrimonial home and in his role as home-maker and parent. His father provided 12 months accommodation without cost to the parties.
The wife made an initial financial contribution, in a smaller amount than the husband did. She was engaged in paid employment during the co-habitation, but for a lesser period than the husband was. When she was not working in paid employment she was primarily engaged in attending to domestic tasks and the care of the children. This contribution was greater than that made by the husband and must be taken into account in a real and substantial way.
The wife will have the primary ongoing responsibility for the care of the children one of whom is not yet in high school. The husband has secure and well paid employment. The wife has a repetitive strain injury that restricts her capacity for appropriate gainful employment. She has undertaken university and TAFE study that will enable her to return to well paid full time employment in about 2.5 years. I am satisfied that she will do so. I have made detailed findings concerning the application of 75(2) and otherwise do not repeat them. Balancing all these factors, I find it appropriate that the parties net assets should be divided to 62% to the wife and 38% to the husband.
The husband will have the benefit of his financial resources namely, his superannuation. Its value is not great but will develop as a consequence of his employment with the Department of Community Services. The wife will have the capacity to return to the workforce when she completes her degree.
That the outcome of the application of Section 79(4) and Section 75(2) has resulted in a distribution favourable to the wife 62% as to the husband’s 38% I am satisfied is just and equitable within the meaning of section 79(2). The reason for that is that the section 79 exercise requires that I give proper weight to the wife’s contribution as a home-maker and parent, her financial future having regard to the care of the children and her impaired health. The orders will distribute the proceeds of the sale of the home which property the wife must maintain pending its sale. This includes making instalment payments for the mortgage as and when they fall due.
The wife has assets valued at $7,600 while the husband has assets valued at $4,000. The wife's cash management account is put to one side for the purpose of this exercise. The parties agree that the former matrimonial home is valued at $350,000 and that it is to be sold. Given its agreed value the wife will take $178,775.72 from the proceeds and the husband will take $110,230.28. Both will have small liabilities, the wife will still owe money to her daughter and the husband will have a small debt to Avco. Should the home sell at a price other that its agreed value the percentage distribution does not change.
The husband pressed the court to take into account aspects of the parties respective indebtedness when ordering the sale of the property. He particularly asked that the court address the payment of outstanding rate, arrears of school fees and credit card debts. This is desirable. Because the proceeds will be apportioned in percentage terms the wife will make a greater contribution towards these outstanding liabilities. It is reasonable that she do so. She has had the benefit of the property and has not paid the rates. She has allowed the mortgage to be unpaid and had the advantage of advance payments accrued prior to separation. His contributions to the 2001 school fees and the wife's credit card debt balance her contribution to the husbands bankcard debt. To the extent that liabilities continue to accrue from the date of these orders, the party responsible for it will pay the debt. It will be paid from that person's share of the proceeds of sale.
The husband will receive a few items of furniture sought by him in his application. The evidence concerning the issue is scant. The wife agrees that he should have all items sought other than the smokers chairs and its accoutrements. It would seem he has taken a few possessions and items of furniture. There was no evidence called as to why he should not have the chair and I will order that he have it. A matter of fine distinction.
Conditions for sale of the former matrimonial home
The parties dispute the conditions for the sale of the home. Because of their financial circumstance the husband seeks an early sale. The wife wishes to have the opportunity to market the property at a higher than acceptable sale price, without using sale signage. This is because the children are upset by the prospect of the sale of their home and she believes the higher price might attract a higher sale price. She is targeting buyers from the Sydney market.
Although the loss of their home is distressing for the children, they understand that it is inevitable. Signage on a property is an important marketing tool and maximises the number of people who know that the property is available. These parties have received notices from their bank and legal action has been started by the local council. The wife's strategy vis signage is not sensible in these circumstances. She should have the opportunity to attract a buyer using the proposed $375,000 selling price. However, unless this strategy has attracted a buyer and resulted in an exchange of contracts within 6 weeks, then the lower price proposed by the husband will become the published selling price. His price accords with the advice provided by the local selling agents, including Green real estate who are retained by the wife.
Child support departure application
On 2 December 2000 the husband was administratively assessed for the payment of child support. He is assessed to pay $998.58 per month, which liability started on 1 May 2000[5]. The wife seeks to depart from the assessment so that in addition to the periodic payment of child support, the husband will also pay one half of the children’s private school fees and school related expenses. She has not objected to the assessment. However, she is entitled pursuant to section 115(c)(i) and (ii) to bring her application within the context of these proceedings. The husband consents to the court exercising its jurisdiction and agrees that there should be a departure ordered. The parties have prepared the proceedings anticipating that the court would be satisfied that the application would be heard and determined. There is an obvious nexus between the primary property application and the departure application. I am satisfied that it is in the interests of both parties that the departure application is determined in these proceedings.
[5] Annexure G Wife’s affidavit
Relevant law
The obligation to pay child support is created by the provisions of the Child Support (Assessment) Act 1989. Section 3 contains the obligation that parents maintain their children. The objects of the Act are found in section 4. Each of the objects needs to be borne in mind when deciding an application under the Act. Section 4(3) of the Act recognises the desirability of parents reaching agreement for the financial support of their children. When interpreting the Act, the section requires that “the Act should be construed, to the greatest extent consistent with the attainment of its objects".
Section 117 of the Child Support (Assessment) Act 1989 sets out a three stage process for determining departures from child support assessments. Section 117(1) requires the court to be satisfied that "in the special circumstances of the case" one or more of the grounds for departure outlined in s 117(2) exist before the court can make an order for departure and that under s117(1)(b)(ii) it would be just and equitable as regards the child, the carer entitled to the support and the liable parent and that it would be "otherwise proper" to make a particular order.
This is the genesis for the three-step process described in Gyselman[6]. Thus the court must address each of the steps as separate issue namely:
·Whether one or more grounds of departure in s117 is established. If so,
·Whether it is just and equitable within the meaning of s117(4) to make a particular order,
·Whether it is otherwise proper within the meaning of s 117(5) to make a particular order.
[6] (1992) FLC 92-279
In Lightfoot and Hampson[7] and Wild and Ballard[8] the principles established in Mee and Ferguson[9] are identified as relevant to a departure application that concerns costs associated with attendance at a private fee paying school.
[7] (1996) FLC 92-663
[8] (1997) FLC 92-771
[9] (1986) FLC 91-716
The wife relies on section 117(2)(b)(ii) to establish a ground of departure. At all times the parties have agreed that their children should receive a private Catholic school education. The children were enrolled at their current schools prior to separation and both parties are in firm agreement that they should complete their education to year 12 at their current schools.
The special circumstances of this case and a ground for departure?
I am satisfied that the children are being educated in the manner expected by their parents. The parties have always agreed that the payment of schools fees were an integral part of their arrangements for child support. The issue remains outstanding between them subsequent to the wife’s election to claim an administrative assessment. This reinforces the special circumstances of this case. Thus I am satisfied that the applicant has made out a ground for departure in the special circumstances of the case pursuant to section 117(2)(b)(ii).
Is it just and equitable to make a departure order?
Neither of the two younger children receive an income, nor do they have any earning capacity, property of financial resources. M receives a youth allowance of $158.00 per fortnight. The husband’s concession in relation to the departure application, is that it should be limited to R and G. M, he argues, should use her youth allowance to provide for payment of school fees.
I have already made findings about the income, property and financial resources of the parties. I do not repeat them. Both parties submit, in effect, that they would suffer hardship if an order were made (the respondent) or refused (the applicant). M has been able to contribute $80.00 per fortnight towards either her board or school fees. She retains the balance as personal spending money. In the financial circumstances that these parties are in, which takes into account the payments made pursuant to the administrative assessment, it is reasonable that M and subsequently her sisters should contribute half of their youth allowance towards the cost of their schooling. Indeed, meeting school expenses is partially the rationale for the youth allowance. I am not satisfied that structuring the departure order so as to provide a contribution by the children from their youth allowance to school expenses causes hardship to either the mother or to the children. Until the younger children become eligible for a youth allowance the husband agrees that he should meet the costs of one half of their school fees. This will ameliorate, in a meaningful way, hardship that might otherwise have been suffered by the mother. Making the orders proposed by the husband will ensure that the children can continue their education as intended by the parties.
Is it proper to make a departure order?
Both parties have an obligation to maintain the children. The wife did not complete paragraph 54 of her financial statement sworn 4 July 2001. Thus I cannot make findings as to the contribution she makes to the children’s necessary expenses with particularity. Having regard to the totality of her evidence, however, the ages of the children and the younger children’s lack of income I am satisfied that she makes a significant contribution to the children’s necessary expenses from her income. So does the husband. He pays $250.00 per week to the applicant which she undoubtedly spends on the children’s needs. Because the wife did not complete paragraph 54 of her financial statement, I cannot make findings about the specific costs that would be incurred by the husband were the departure order made as she sought. In addition to one half of the school fees, she asks that he be ordered to pay half school expenses including book fees and excursions. Although the husband has a greater income than the wife does, this does not mean he must make an overwhelmingly greater contribution to the costs of meeting the children’s expenses. R’s school fees are $215.00 per term, approximately $860.00 per annum. G’s fees are $223.00 per term or $892.00 per annum. To the extent to the apparently mandatory fees are identified in Annexures D and E to the wife’s affidavit the husband will be ordered to meet one half of those fees. These additional fees will be limited to P and F, building levy, student administration fee, sport and health fee, specific subject fees. Once M completes her schooling, R’s education is then subject to the family building levy and P and F Association charges, the father contribute to these.
Increasing the level of child support payable by the husband will impact upon the Centrelink benefit received by the wife. The evidence does not suggest that making the order as sought by the wife, or indeed the husband, will effect the children’s entitlement to a youth allowance. I am not satisfied that I should order, as the wife seeks, that the husband pay additionally excursion costs and book fees or expenses that are not identified and quantified on the evidence.
Thus, I am satisfied that there should be a departure from the administrative assessment, to make provision for a contribution by the husband to the children’s school fees and expenses. The departure order will operate until each child becomes eligible for a youth or equivalent allowance. Once the children are receiving their allowance, it is proper that they contribute to their own fees and expenses. The husband will maintain the periodic child support payments pursuant to the administrative assessment and has moved quickly to address arrears that developed through delay by his employer.
I am satisfied that the orders I make will give effect to the objects of the Act. They are just and equitable and otherwise proper within the meaning of s117 and s124. I have already made findings pursuant to s117 and do not repeat them for the purpose of the s124 exercise. The form of order is one that is for non-periodic payments. That is for payment to be made directly to the school. The orders will include the prospect that the children’s place of education may change. This does not give the wife authority to change the place and manner of the childrens education without the husbands consent. In this respect the parenting order is the relevant order. The non-periodic payments will be in addition to the periodic payments. In the special circumstances of this matter, this outcome is just and equitable as between the parties and the children.
For these reasons I make the orders identified at the commencement of this judgment.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date: 9 November 2001
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