BARNARD & WELSBY
[2020] FCCA 1721
•1 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BARNARD & WELSBY | [2020] FCCA 1721 |
| Catchwords: FAMILY LAW – Spousal maintenance – final orders sought – where wife demonstrates a need – where husband asserts inability to pay – where Court finds husband has ability to pay – where duration of payments capped at four years – where parties seek coverage of health insurance for the wife on husband’s family plan – where order made providing for husband to be responsible for costs incurred for wife’s health expenditure where health insurer may exclude wife from family health insurance plan. FAMILY LAW – Costs – where costs of bifurcated property and spousal maintenance sought by wife – where Court declines to decide the costs application as proceedings with final parenting orders still on foot. |
| Legislation: Child Support (Assessment) Act 1989 (Cth) ss.116, 145 Family Law Act 1975 (Cth), ss.62G, 72, 74, 75, 79, 79A, 90XT, 106A, 117 Federal Circuit Court Rules 2001 (Cth) r 25A.07 |
| Cases cited: In the Marriage of Harris (1991) 104 FLR 458 |
| Applicant: | MR BARNARD |
| Respondent: | MS WELSBY |
| File Number: | SYC 8110 of 2016 |
| Judgment of: | Judge Morley |
| Hearing date: | 15 July 2019 |
| Date of Last Submission: | 15 July 2019 |
| Delivered at: | Sydney |
| Delivered on: | 1 July 2020 |
REPRESENTATION
| The Applicant appeared in person |
| The Respondent appeared in person |
ORDERS
That in relation to the property settlement proceedings between MR BARNARD born in 1974 (‘the Husband’) and MS WELSBY born in 1979 (‘the Wife’), the Court makes an order under section 79 of the Family Law Act 1975 (Cth) as follows:
(a)That a base amount of $59,893.40 is allocated, as required by section 90XT(4) of the Family Law Act 1975 (Cth), to the Wife out of the Husband’s interest in the Super Fund B superannuation fund.
(b)That, in accordance with paragraph 90XT(1)(a) of the Family Law Act 1975 (Cth):
(i)The Wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth); and
(ii)The Husband’s entitlement, and the entitlement of such other person to whom a splittable payment may be made to payments out of the Husband’s interest in the Super Fund B superannuation fund, is correspondingly reduced.
(c)The trustee of the Super Fund B superannuation fund (‘the trustee’) shall do all such acts and things and sign all such documents as may be necessary to:
(i)Calculate, in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001 (Cth), the entitlement created for the Wife by order (1)(a) herein; and
(ii)Pay the entitlement whenever the trustee makes a splittable payment out of the Husband’s interest in the Super Fund B superannuation fund.
(d)That this order has effect from the operative time and the operative time is no later than four weeks from the date of these orders being made.
(e)That, after service of the payment split notice pursuant to regulation 7A.03 of the Superannuation Industry (Supervision) Regulations 1994 (Cth), the Wife shall do all such things and sign all such documents as may be necessary, including but not limited to, exercising her request pursuant to regulation 7A.05 of the Superannuation Industry (Supervision) Regulations 1994 (Cth) for the creation of a new interest in the Wife’s name in the Super Fund B superannuation fund.
(f)That the Husband is otherwise the sole owner in law and in equity as between himself and the Wife of:
(i)The Motor Vehicle 1 with registration number ...;
(ii)All personal property now in his possession or control;
(iii)All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his own name; and
(iv)All furniture, furnishings and effects presently situate in his property.
(g)That the Wife is the sole owner in law and in equity as between herself and the Husband of:
(i)The Motor Vehicle 2 with registration number ...;
(ii)Her right, title, and interest to benefits as a member of the Employer C Pension Scheme;
(iii)All personal property now in her possession or control;
(iv)All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in her sole name; and
(v)All furniture, furnishings and effects presently situate in her residence.
That the Court make an order under section 74 of the Family Law Act 1975 (Cth) for the Husband pay to the Wife or as the Wife directs in writing from time to time spousal maintenance as follows:
(a)$127 per week, the first payment to be made on or before seven days after the date of this order, and continuing weekly thereafter for four years;
(b)That the spousal maintenance payable by the Husband to the Wife pursuant to order (2)(a) herein is to vary on 1 July each year commencing in 2021 by multiplying the amount payable by the percentage change (if any) in the Consumer Price Index for All Groups Sydney for the previous financial year as prescribed by the Australian Bureau of Statistics;
(c)That by way of further spousal maintenance, the Husband maintain health insurance cover for the Wife in his family health insurance cover at the level to which she was covered in the Husband’s health insurance family cover, as at 15 July 2019;
(d)That if as a consequence of the Wife being maintained as a member of the Husband’s health insurance membership, but not entitled to benefits by reason of the circumstance of their present relationship, then the Husband be responsible for payment of any costs incurred by the Wife in relation to health expenditure for herself that is unrecoverable from the Husband’s private health insurance.
That the parenting proceedings in this matter are stood over to 27 November 2020.
IT IS NOTED that publication of this judgment under the pseudonym Barnard & Welsby is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 8110 of 2016
| MR BARNARD |
Applicant
And
| MS WELSBY |
Respondent
REASONS FOR JUDGMENT
Introduction
These are final property settlement and spousal maintenance proceedings between Ms Welsby (‘the wife’ or ‘the mother’) and Mr Barnard (‘the husband’ or ‘the father’), Applicant and Respondent to these property proceedings respectively. This matter was commenced as parenting proceedings by the husband, with the wife as Respondent to that application.
The parties commenced cohabitation in the United Kingdom in 2007, married in 2008, and, according to the wife, separated in mid-2015, living separate and apart under the one roof until the husband left on 29 April 2016. The husband dates the separation from his leaving the former matrimonial home on 29 April 2016.
The parties have three children, X born in 2010, eight years of age at the time of the hearing, Y born in 2012, seven years of age at the time of the hearing, and Z born in 2015, three years of age at the time of the hearing. At the time of preparation of these Reasons, the children were nine years, eight years, and four years of age respectively.
The proceedings were commenced by the father filing his Initiating Application seeking parenting orders on 7 December 2016. The first mention of the matter was before her Honour Judge Henderson (as her Honour then was) on 6 March 2017, at which time the parties entered into consent orders that they have equal shared parental responsibility for the children, that the children live with the mother and they spend time with their father from 9:00AM until 4:00PM on Saturday each week, with all changeovers at the mother’s residence. The parties were directed to a Child Dispute Conference and directions were made for filing of Response material by the mother.
The mother filed her Response on 3 July 2017, seeking parenting orders and adding an application for both interim and final orders relating to property settlement and spousal maintenance. At the next mention on 14 July 2017, the matter was listed for 16 November 2017 for interim hearing of the father’s application for interim parenting orders and the mother’s application for interim spousal maintenance. The father was directed to file and serve a Reply and a Financial Statement. An Independent Children’s Lawyer (‘ICL’) was appointed to represent the interests of the children in the proceedings. Mr Naidovski, a very experienced child representative, filed a Notice for Address for Service as the ICL.
The matter went to an interim hearing before her Honour Judge Sexton on 16 November 2017. Each of the parties appeared on their own behalf and Mr Naidovski appeared as ICL.
In relation to property, the parties were directed to a Conciliation Conference on 9 March 2018 with a Registrar.[1]
[1] Orders made by Judge Sexton on 16 November 2017, [2].
In relation to spousal maintenance, interim orders were made for:
a)The father to pay spousal maintenance to the mother in a lump sum of $3,000 within seven days;[2]
b)The father to continue to pay private health insurance each year for the mother and the children;[3] and
c)By consent, an ongoing spousal maintenance order in the amount of $390 per month paid by the husband to the wife.[4]
[2] Orders made by Judge Sexton on 16 November 2017, [11].
[3] Orders made by Judge Sexton on 16 November 2017, [13].
[4] Orders made by Judge Sexton on 16 November 2017, [15].
In relation to parenting matters, the parties entered into further interim parenting orders, inter alia, as follows:
a)That the parties have equal shared parental responsibility for the children;[5]
b)That the children live with the mother;[6]
c)That the children would spend expanded time with the father as follows:
i)From 9:00AM to 6:30PM Sunday on the second weekend of each month;[7]
ii)From 7:50AM to 6:30PM on Saturday on “every other weekend of each month”;[8]
iii)On days as agreed between the parties during school holidays from 9:00AM until 6:30PM;[9]
iv)Special time in relation to Christmas, Easter and on Father’s Day;[10] and
d)Changeover to occur at the mother’s place of residence.[11]
[5] Orders made by Judge Sexton on 16 November 2017, [16].
[6] Orders made by Judge Sexton on 16 November 2017, [17].
[7] Orders made by Judge Sexton on 16 November 2017, [18](a).
[8] Orders made by Judge Sexton on 16 November 2017, [18](b).
[9] Orders made by Judge Sexton on 16 November 2017, [18](c).
[10] Orders made by Judge Sexton on 16 November 2017, [19].
[11] Orders made by Judge Sexton on 16 November 2017, [21].
The husband complied with the order for interim spousal maintenance in a lump sum of $3,000 by a payment in December of 2017. The father has complied with the interim spousal maintenance order of $390 per month.
The Conciliation Conference was not successful and the matter remained unsettled.
On 12 July 2018, the matter was mentioned before her Honour Judge Henderson. Her Honour set the property and spousal maintenance issues down for a final hearing on 17 April 2019 at 10:00AM, bifurcating the matter, with the parenting issues continuing without a final hearing date in the hope that the parties would settle those issues at mediation.
By a Chambers order made on 15 April 2019, his Honour Judge Monahan listed the matter for 15 July 2019, in effect vacating the final hearing date of 17 April 2019.
On 24 April 2019, by an order made in Chambers, I vacated the orders made on 12 July 2018 setting the matter down for a final hearing, and made orders setting the property and spousal maintenance issues down for a final hearing on 15 July 2019 with trial directions.
On 15 July 2019, the final hearing of the property settlement and spousal maintenance proceedings took place. The parties were self-represented and, as the Court was not dealing with parenting issues on that day, there was no appearance by or for the ICL.
An error was made in the trial directions made by my Chambers on 24 April 2019, whereby the wife was directed to file an Amended Initiating Application (instead of an Amended Response) and the husband was directed to file an Amended Response (instead of an Amended Initiating Application).
It was the Court’s intention that the wife file her material first, as she had brought the property proceedings in the first instance. However, the confusion caused by the error in the described documents likely contributed to the practical outcome whereby the husband filed his material first, on 8 July 2019, and the wife filed her material second, on 10 July 2019.
At the hearing, the husband submitted that he had not been granted procedural fairness as he had not had time to deal with the altered amounts sought as spousal maintenance by the wife. After discussion with the bench, to the effect that the amount sought in the application needed to be justified on the evidence in any case, it was accepted by the husband that the matter should proceed on the day and that there was no lack of procedural fairness to him in the matter proceeding.
There was discussion between the bench and the parties in relation to identification of the matrimonial assets and their value and identification of the joint or individual liabilities and their amount. This was in a context where, inter alia, the parties did not have a settled Balance Sheet for trial. Matters in issue in that regard were identified.
During the preliminary discussions, it was agreed between the parties that the husband, not the wife, was paying the children’s school fees and that the applicable amount was $93 per week, not $112 per week as asserted by the husband in his evidence. The wife indicated that her application – that the husband pay her $483.65 per week by way of spousal maintenance – should accordingly be reduced to $390.65 per week.
I explained the hearing procedure to the parties and it seemed to come as a surprise to the parties that each party was subject to cross-examination by the other party if their evidence was to be relied upon in the hearing. I asked the parties to consider their position in relation to cross-examination of the other party during a period when the matter was stood in the list. On resumption of the matter, each of the parties advised that they did not require the other party for cross-examination.
Accordingly, the matter proceeded ‘on the papers’ and on submissions.
During submissions, reference was made to a superannuation entitlement of the husband in the United Kingdom that was not reflected in the Financial Statement he identified at the commencement of the hearing as being relied upon as part of his evidence. Reference was made to this superannuation entitlement in an earlier Financial Statement filed by him in the proceedings. In consequence, the husband advised the Court in submissions that he also relied on the earlier Financial Statement so far as it indicated the existence and value of that superannuation entitlement not referred to in his later Financial Statement. The detail of this is given later in these Reasons.
The hearing took place on 15 July 2019 and these Reasons are being prepared at the start of June 2020. In consequence of this, in preparation of these Reasons, I have listened to the audio recording of the whole of the hearing, including the whole of each of the four occasions when the matter was before the Court on 15 July 2019.
Material relied upon by the parties
The wife relied on the following material:
a)Her Amended Response to Initiating Application filed 10 July 2019;
b)Affidavit of the wife affirmed and filed 10 July 2019;
c)Financial Statement of the wife sworn or affirmed 10 July 2019 and filed that day; and
d)Exhibit R1, being a copy of the statement for the period 16 January 2019 to 17 February 2019 for the husband’s ANZ Platinum credit card account ending in the numbers #...61.
The husband relied on the following material:
a)His Reply affirmed and filed 8 July 2019;
b)Affidavit of the husband affirmed and filed 8 July 2019;
c)Financial Statement of the husband affirmed and filed 8 July 2019 (‘the husband’s July Financial Statement’); and
d)Financial Statement of the husband sworn 1 March 2018 and filed that day in relation to Part J – Superannuation and, in particular, as to the existence of and value of his interest in the UK Employer D Pension Scheme (‘the husband’s March Financial Statement’).
In the husband’s March Financial Statement, the value for his interest in the UK Employer D Pension Scheme is shown as an estimated $15,415.[12] When added to the other two amounts shown on that document,[13] both payable in Australian dollars, a correct total is shown at the bottom of the page of an estimated $60,462.
[12] Husband’s March Financial Statement filed 1 March 2018, 8 [45].
[13] The husband’s asserted “Super Fund B” interest with a gross value of $40,898.00 and the husband’s asserted Employer G superannuation interest with a gross value of $4,149.00; Husband’s March Financial Statement filed 1 March 2018, 8 [45].
I only give this detail because after the description of the superannuation plan as “UK Employer D Pension Scheme” appears the words “in GBP”, obviously meaning a reference to the currency British pounds.
In submissions when referring to this asset, the husband provided an estimate of value of $12,000 to $13,000, then referred to the evidence in relation to the asset contained in his March Financial Statement and the estimated value of $15,415.
In response to a question from the Court, “How did you get that value?” the husband responded, “From a statement in British pounds converted to Australian dollars.”
Accordingly, in these Reasons, I have treated that asset as having a value of $15,415 in Australian dollars.
Each of the parties made submissions on their own behalf. In each party’s submissions, they made statements that contained material in the nature of purported evidence from the bar table. I have not accepted any such submissions as constituting evidence, except in circumstance where:
a)The parties reached agreement in relation to a matter of fact in the course of submissions; or
b)A fact or information was sought by the Court by way of questions from the bench, a response was given, and no contradiction was made, on invitation, by the other party.
The orders sought
The orders sought by the wife were, in summary, and after clarification in submissions, as follows:
a)That pursuant to section 74 of the Family Law Act 1975 (‘the Act’), the husband pay to her, as she directs in writing from time to time, spousal maintenance in the sum of $390.65 per week, with the first payment due seven days within the date of making of an order, and payable weekly thereafter for a period of five years;
b)Further, by way of spousal maintenance pursuant to section 74, the husband pay for the costs of her private health insurance at the same type and level as the family cover held by the husband at the date of the hearing;
c)That the spousal maintenance payable by the husband at $390.65 vary on 1 July each year “commencing 2017” by multiplying the amount payable by the percentage change (if any) in the Consumer Price Index for All Groups Sydney for the previous financial year as prescribed by the Australian Bureau of Statistics;
d)That a superannuation splitting order be made in appropriate terms whereby a base amount of $67,079 would be allocated to the wife out of the husband’s interest in the Super Fund B superannuation fund (‘Super Fund B’), the order to take effect from the operative time, being no later than four weeks from the date of orders being made;
e)An order pursuant to section 106A of the Act for the other party to execute any document that a party refuses or neglects to execute to give effect to the orders; and
f)That the husband pay the wife’s costs of the proceedings.
The wife also sought orders that the husband pay half of the children’s extracurricular activities, half of the children’s medical and dental costs, and that the husband pay the children’s day care fees and school fees.
No application was made to the Court for an order pursuant to section 116 of the Child Support (Assessment) Act 1989 (Cth) (‘the Assessment Act’) for leave to seek an order for departure from an administrative assessment in special circumstances.[14] No evidence was before the Court to show that the wife’s application for orders in the nature of child support assessment departure orders had been served on the Registrar of the Child Support Agency in compliance with rule 25A.07.[15]
[14] Child Support (Assessment) Act 1989 (Cth) s 116. See, generally, Child Support (Assessment) Act 1989 (Cth) div 4.
[15] Federal Circuit Court Rules 2001 (Cth) r 25A.07.
Section 145 of the Assessment Act provides that:
The [Child Support] Registrar may intervene in, and contest and argue any question arising in, a proceeding under this Act.[16]
[16] Child Support (Assessment) Act 1989 (Cth) s 145(1).
It is in consequence of that section that the requirement to serve an application seeking orders in the nature of child support orders must be served on the Child Support Registrar as required by the Federal Circuit Court Rules (‘the Rules’). It would be improper to dispense with that requirement lightly, or to allow the matter to proceed in the absence of compliance with this service requirement.
I indicated very clearly to the mother that the Court would not be proceeding with consideration of any of the orders sought by her in her Amended Response to Initiating Application that were in the nature of child support orders. The mother indicated that she sought those orders because the costs of the children exceeded the moneys received by her from the father as payment under the child support assessment, and that she was paying expenses for the children so that they would not go without by foregoing expenditure on matters for herself that the general community would accept as normal and even essential living expenses, such as clothing, shoes, hairdressing, hobbies, and entertainment.
Whilst fully understanding the mother’s circumstances and with sympathy, and with no criticism of the father, the orders sought by her in relation to payment by the husband of half or all of certain expenses for the children are in the nature of child support issues. I determined not to deal with those matters, and the wife was accepting of that ruling and proceeded with the hearing accordingly.
The husband sought orders that may be summarised as follows:
a)That he pay to the wife the sum of $90 per week by way of spousal maintenance, payable on a monthly basis at $390 per month into an account nominated by the wife for that purpose on the seventh of each month;
b)That the order for spousal maintenance payable by the husband to the wife continue for a period of three years from the date of orders or until the wife achieves a gross annual income of $70,000;
c)That the husband continue to pay private health cover at the current level (meaning that as at the date of the hearing) of cover for the children and the wife until the last child reaches the age of 18;
d)That the husband ensure that the wife is always in possession of a current private health insurance card for herself and the children;
e)That both parties retain their UK pension/superannuation earned prior to living together in 2007;
f)That the wife retain her UK pension earned between 2007 and 2013, the date on which she left the scheme;
g)That each party to pay their own personal debts, liabilities and legal costs; and
h)That a superannuation splitting order be made whereby a base amount of $34,000 would be allocated to the wife out of the husband’s interest in the Super Fund B.[17]
[17] Husband’s Reply filed 8 July 2019, 2.
As indicated, the order sought by the husband in relation to private health cover for the children and the wife was in the nature of a child support order so far as it related to the children. There was no application for a child support assessment departure order pursuant to section 116 of the Act,[18] and no evidence of the application having been served on the child support registrar as required by the Rules.[19]
[18] Child Support (Assessment) Act 1989 (Cth) s 116.
[19] Federal Circuit Court Rules 2001 (Cth) r 25A.07.
I indicated that I would not be proceeding to hear any applications for orders in the nature of child support orders. This was accepted by the husband, as it had been accepted by the wife.
Orders 5 and 6 sought by the husband both refer to a UK pension scheme in which the wife has an interest. Order 6 (detailed above at paragraph 40(f)) refers to the wife’s “UK pension earnt between 2007 and 2013, the date at which she left the scheme” and order 5 (detailed above at paragraph 40(e)) refers to the wife’s “UK pension/superannuation earnt prior to living together in 2007”.[20]
[20] See, especially, husband’s Reply filed 8 July 2019, 2.
According to the wife’s Financial Statement, her only superannuation entitlement or pension entitlement is her entitlements in the Employer C Pension Scheme in the amount of $14,203. Her Financial Statement does not indicate the nature of the scheme, as none of the options in Part J in the form are marked.
I proceeded on a basis that the wife’s “UK pension earnt between 2007 and 2013” is the same interest as the wife’s “UK pension/superannuation earnt prior to living together in 2007”, both being the same as that contained in paragraph 45 of her Financial Statement as her only superannuation entitlement, with a value of $14,203.
The spousal maintenance orders sought by the parties differ as follows:
a)The amount of spousal maintenance to be paid, being a difference of $300.65 per week. The wife seeks to be paid $390.65 per week, whereas the husband seeks to pay $90; and
b)The period of time the order will be operative. The wife seeks the spousal maintenance order operate for five years, whereas the husband seeks the order operate for three years, or until the wife achieves a gross annual income of $70,000.
The orders sought by the husband in relation to the period during which spousal maintenance would be paid to the wife by him is ambiguous. It is not clear whether he intends for the order to cease:
a)On the occurrence of the first of the expiration of the three years or the wife achieving a gross annual income of $70,000; or
b)On the last of the expiration of three years or the wife achieving a gross annual income of $70,000.
The duration of any order that may be made for payment of the spousal maintenance proposed by the wife will be a matter for determination in accordance with the law.
The evidence
The parties commenced their cohabitation in about 2007.[21]
[21] Husband’s affidavit filed 8 July 2019, [34]; Wife’s affidavit filed 10 July 2019, [4].
In 2006, the wife purchased a flat in City E in the United Kingdom, jointly with a friend, for £179,050.[22] The wife says that she borrowed $55,000 from her mother to fund her contribution to the purchase.[23] The husband says that he was not aware of any debt of that nature owed by the wife to her mother until the flat was eventually sold.[24] The wife asserted that she made a repayment in that sum to her mother from the net proceeds of sale of the property in 2013.[25]
[22] Wife’s affidavit filed 10 July 2019, [12].
[23] Wife’s affidavit filed 10 July 2019, [12].
[24] Husband’s affidavit filed 8 July 2019, [47].
[25] Wife’s affidavit filed 10 July 2019, [25](a).
At the commencement of cohabitation in 2007, the husband moved in with the wife at her City E flat.[26]
[26] Husband’s affidavit filed 8 July 2019, [34]; Wife’s affidavit filed 10 July 2019, [14].
The wife says that at the commencement of cohabitation, both parties were in fulltime employment, the wife employed as a customer service officer with Employer F and the husband as a manager.[27] The husband says that, at the commencement of cohabitation, he was not in employment until 2017.[28] Once he was in employment, he says that there were some months when, due to the work on which the wife was rostered, she “earnt significantly more than me.”[29]
[27] Wife’s affidavit filed 10 July 2019, [15].
[28] Husband’s affidavit filed 8 July 2019, [36].
[29] Husband’s affidavit filed 8 July 2019, [43].
In 2008, the wife’s friend ceased living at the City E flat and the husband and wife purchased the friend’s interest in the City E flat for £45,000.[30] The parties borrowed this sum in their joint names, and that loan account was secured by way of mortgage over the City E flat.[31]
[30] Wife’s affidavit filed 10 July 2019, [16]; Husband’s affidavit filed 8 July 2019, [45].
[31] Husband’s affidavit filed 8 July 2019, [40].
At the commencement of cohabitation, the wife had the following:
a)Her interest in the City E flat, subject to liabilities in the form of a loan relating to purchase secured mortgage and the debt to her mother;
b)Her furniture and contents of the City E flat;
c)Personal savings of approximately £3,000 ($5,165 in Australian dollars); and
d)Some superannuation entitlements of an unknown value.[32]
[32] Wife’s affidavit filed 10 July 2019, [17].
At the commencement of cohabitation, the husband had the following:
a)A Motor Vehicle 3 valued at £1,000;
b)$15,000 in personal savings;
c)The furniture and contents that he had in his rented property prior to the commencement of cohabitation;
d)A pension fund entitlement accrued due to contributions made from 2001 to 2006; and
e)Credit card debts in the sum of £2,500.[33]
[33] Husband’s affidavit filed 8 July 2019, [35].
The wife gives evidence that following commencement of cohabitation, she contributed her savings to a repayment of £23,000 in debts owed by the husband.[34]
[34] Wife’s affidavit filed 10 July 2019, [18].
X was born in 2010 and the wife took 12 months maternity leave.[35] The husband continued to work full time and assisted with the care of X when he was not at his employment.[36] After her 12 months maternity leave, the wife returned to work on a part time basis three days per week.[37]
[35] Wife’s affidavit filed 10 July 2019, [19].
[36] Wife’s affidavit filed 10 July 2019, [19].
[37] Wife’s affidavit filed 10 July 2019, [21].
Y was born in 2012 and the wife again took maternity leave whilst the husband continued to work fulltime.[38] The mother returned to work in late 2013 and joined the Employer F, meaning that she was away from home overnight on occasions.[39] She worked in this position for three months, consisting of four trips with overnight absences from home. During this time, the maternal grandmother assisted with the care of the children.[40]
[38] Wife’s affidavit filed 10 July 2019, [22].
[39] Wife’s affidavit filed 10 July 2019, [24].
[40] Wife’s affidavit filed 10 July 2019, [24].
In 2013, the City E flat was sold for £282,000, and after repayment of the loan account and expenses of sale and so forth, the wife netted £70,650.[41] The wife asserts that those proceeds were spent as follows:
a)£10,000 was spent on removalist costs, airfares and so forth in relation to the parties moving to live in Australia.[42] This left a net total of £60,650, equivalent to $147,000 in Australian dollars;
b)$55,000 was repaid to the wife’s mother;[43]
c)$20,000 was repaid to the wife’s sister, whom the wife asserts had loaned the parties money for their wedding;[44]
d)$26,100 for the purchase of a motor vehicle;[45]
e)$3,500 in bond on a rental property;[46]
f)$15,000 on furniture;[47] and
g)$27,000, being the balance of funds, was expended on living expenses for the family.[48]
[41] Wife’s affidavit filed 10 July 2019, [25].
[42] Wife’s affidavit filed 10 July 2019, [25].
[43] Wife’s affidavit filed 10 July 2019, [25](a).
[44] Wife’s affidavit filed 10 July 2019, [25](b).
[45] Wife’s affidavit filed 10 July 2019, [25](c).
[46] Wife’s affidavit filed 10 July 2019, [25](d).
[47] Wife’s affidavit filed 10 July 2019, [25](e).
[48] Wife’s affidavit filed 10 July 2019, [25](f).
In his evidence and in his submissions, the husband does not accept as a fact that the wife owed $55,000 to her mother or that she owed $20,000 to her sister.[49] He deposes that a sum of $25,286 was transferred from the parties’ joint account savings to the wife’s mother’s account towards paying for their wedding.[50]
[49] See, especially, husband’s affidavit filed 8 July 2019, [29].
[50] Husband’s affidavit filed 8 July 2019, [41].
As I have said, there was no cross-examination of the wife or of the husband. Accordingly, the parties’ respective direct evidence is the only evidence before the Court. Where evidence is not specifically contradicted by alternative evidence of the other party, I must accept that evidence. Accordingly, I find that the net proceeds of sale of the City E flat, being $147,000 Australian, were dispersed as proposed by the wife.
In 2013, the parties moved to Australia to live, taking up residence with the wife’s mother in her home. They paid no rent to the wife’s mother nor made contribution toward the outgoings.[51] At the time of the move, the wife was employed with Employer F and earning about $46,000 per year.[52]
[51] Husband’s affidavit filed 8 July 2019, [48]; Wife’s affidavit filed 10 July 2019, [27].
[52] Wife’s affidavit filed 10 July 2019, [28]-[29].
The husband was out of work for a short period of time, and in late 2013 he took up employment with Employer G. The evidence of the wife is that the husband earned $70,000 per year,[53] whereas the husband’s evidence is that he earned $83,000 per year.[54] It is not clear that much turns on this difference. As this relates to the husband’s employment, and he would have been in a position to have greater knowledge, I accept his evidence.
[53] Wife’s affidavit filed 10 July 2019, [29].
[54] Husband’s affidavit filed 8 July 2019, [49].
The wife asserts that in the years after the parties came to Australia, she found receipts indicating that the husband was sending money to the United Kingdom, that the husband never discussed the matter with her, and that she was then and remains now unaware as to the reason or purpose.[55]
[55] Wife’s affidavit filed 10 July 2019, [31].
As no amounts are mentioned in the evidence, I make nothing of this evidence in relation to the issue of contributions.
In 2014, the parties moved out of the wife’s mother’s home and into a rented accommodation at Suburb H. At this time, the husband was on an annual income of $110,000.[56]
[56] Husband’s affidavit filed 8 July 2019, [52].
By mid-2015, the evidence indicates that the marital relationship between the parties was breaking down.[57] The wife says that the marital relationship had broken down irretrievably by mid-2015, and that the parties remained living under the one roof until the husband left the home on 29 April 2016.[58]
[57] Husband’s affidavit filed 8 July 2019, [53]; Wife’s affidavit filed 10 July 2019, [34]-[38].
[58] Wife’s affidavit filed 10 July 2019, [38].
The husband says that separation occurred on 29 April 2016 when he left the home on the occasion of the end of the lease.[59] The wife re-leased the premises in her sole name.[60] The husband moved to another rented accommodation in Suburb H.[61] At the time of the parties’ separation, Z was a baby, having been born in 2015.
[59] Husband’s affidavit filed 8 July 2019, [56]. See also wife’s affidavit filed 10 July 2019, [49].
[60] Wife’s affidavit filed 10 July 2019, [49].
[61] Husband’s affidavit filed 8 July 2019, [56].
On the evidence of the wife, at separation the husband was employed as a manager on a salary of about $125,000 per year.[62] The wife was not in paid employment and was engaged in fulltime homemaking and parenting duties, having left work with Employer F in anticipation of the birth of Z.[63]
[62] Wife’s affidavit filed 10 July 2019, [39].
[63] Wife’s affidavit filed 10 July 2019, [39].
At separation, the parties had the following assets:
a)$20,000 savings in a Bank J bank account in the wife’s name;
b)$13,000 savings in an ANZ bank account in the husband’s name;
c)Motor Vehicle 2 valued at about $23,000;
d)Furniture and contents from the former matrimonial home valued at about $3,000;
e)The wife’s superannuation entitlements with Employer C pension scheme, with an unknown value; and
f)The husband’s superannuation entitlements in the Super Fund B fund, Employer G superannuation fund, and D Pension Scheme.[64]
[64] Wife’s affidavit filed 10 July 2019, [41].
The husband does not itemise the assets and liabilities held by the parties at separations, other than to stipulate that in the 12 months prior to the final hearing, the husband rolled his Employer G superannuation entitlements into his Super Fund B .[65]
[65] Husband’s affidavit filed 8 July 2019, [21].
I accept the husband’s evidence in relation to his superannuation entitlements. I otherwise wholly accept the evidence of the wife as to the assets and liabilities in the matrimonial asset pool at separation
Following separation, the wife expended her savings in the Bank J bank account on living expenses.[66] Though it is not explicit in the evidence, it may be presumed that most of the husband’s savings in the ANZ account were expended by him on living expenses following separation, and also on payment of the $3,000 lump sum interim spousal maintenance to the wife pursuant to the order made on 16 November 2017.[67]
[66] Wife’s affidavit filed 10 July 2019, [42].
[67] Orders made by Judge Sexton on 16 November 2017, [11].
The parties agree that from 21 June 2015 until January 2016, the husband gave to the wife a sum of $400 per week for family expenses.[68] On the wife’s evidence, the payments were regular from 21 June 2015 to 14 August 2015, but that there was then a period of time between 21 August 2015 and 3 September 2015 when she received no money from the husband.[69] The payments resuming on 3 September 2015 with some large payments of $1,000 per week for three weeks and then reverting to $400 per week until 11 January 2016.[70]
[68] Husband’s affidavit filed 8 July 2019, [54]-[55]; Wife’s affidavit filed 10 July 2019, [43]-[46].
[69] Wife’s affidavit filed 10 July 2019, [43].
[70] Wife’s affidavit filed 10 July 2019, [43].
In January 2016, the husband sought an indicative assessment of child support payable by him to the wife from the Child Support Agency and was advised that the assessment would be $185 a week.[71] In consequence, he reduced the amount provided to the wife each week for living expenses for herself and the children to $200 per week, increasing the payment to $250 a week from 11 March 2016.[72]
[71] Husband’s affidavit filed 8 July 2019, [55].
[72] Husband’s affidavit filed 8 July 2019, [55].
On 29 April 2016, the husband left the matrimonial home at the end of the lease. The wife renewed the lease, and the husband moved into another rental property in Suburb H.[73] The wife took up the Single Parent Payment from Centrelink as the husband ceased providing any weekly payments to the wife for household expenses. There was a four-week gap between the husband’s ceasing to provide money to the wife and the commencement of her receipt of the Single Parent Payment.[74]
[73] Husband’s affidavit filed 8 July 2019, [56]; Wife’s affidavit filed 10 July 2019, [49].
[74] Wife’s affidavit filed 10 July 2019, [51].
The husband deposes that, at this time, he had to purchase furniture, appliances, and household goods to fit out his rental premises, that he purchased those things by use of his credit cards and that, by the time of final hearing, the credit expended for that purpose had been fully repaid.[75]
[75] Husband’s affidavit filed 8 July 2019, [57].
In April 2016, the wife registered for an assessment and payment of child support and received the first payment on 6 June 2016 in the sum of $1,719.33.[76] The husband received a notification from the Child Support Agency in May 2016 that he was required to pay a sum of $2,509 per month, or $577 per week, to the wife by way of child support.[77]
[76] Wife’s affidavit filed 10 July 2019, [52].
[77] Husband’s affidavit filed 8 July 2019, [6].
The husband paid X’s school fees for 2016 and Y’s preschool fees until November 2016. After November 2016, the wife took over paying Y’s preschool fees for some weeks and then withdrew her enrolment as she could not afford to pay the fees.[78]
[78] Wife’s affidavit filed 10 July 2019, [53].
The husband sought an adjustment to the amount payable by him for child support on the basis of his payment of school fees and preschool fees described as non-agency payments. The adjustment was made by the Child Support Agency and the wife asserts that, as a result, she was required to repay to the husband an “overpayment.”[79]
[79] Wife’s affidavit filed 10 July 2019, [53].
The husband asserts that, in addition to payment of child support as required under the assessment from time to time, he has provided payments for the benefit of the children at various times. The only specific amount he refers to is $927 paid by him in December 2018 toward dental costs for X.[80] That is the amount was paid by him on a credit card, after a full health insurance refund.[81]
[80] Husband’s affidavit filed 8 July 2019, [8].
[81] Wife’s affidavit filed 10 July 2019, [87], [89].
The children spend time with their father on one occasion per week from 8:30AM until 6:30PM and on one overnight occasion in each school holidays.[82]
[82] Wife’s affidavit filed 10 July 2019, [54].
X and Y are at school. At present, X is in year 4, Y is in year 3.[83] At the time of the hearing, Z was attending Child Care Centre two days each week and was with the mother the remainder of the time.[84] He is due to commence school attendance in 2021.[85]
[83] Wife’s affidavit filed 10 July 2019, [55].
[84] Wife’s affidavit filed 10 July 2019, [56].
[85] Wife’s affidavit filed 10 July 2019, [56].
At the time of the hearing, the husband was paying the children’s 2019 school fees.[86]
[86] Husband’s affidavit filed 8 July 2019, [9]; Husband’s Financial Statement filed 8 July 2019, 11.
The wife asserts a need to retrain so that she can re-join the work force.[87] Her job skills in the area of customer service are not appropriate in the context of her being a single parent with fulltime care of the children except for the one day-time period per week and the one overnight occasion per school holidays when they are in their father’s care. The mother deposes that she intends to undertake retraining to obtain skills with computers.[88]
[87] See, eg, wife’s affidavit filed 10 July 2019, [56].
[88] Wife’s affidavit filed 10 July 2019, [61].
The mother had an overseas holiday to Country K in 2016 for 10 days as a celebration of her 40th birthday. The trip was funded by family and friends as a 40th birthday present for her.[89] The wife also had an overseas trip in 2018 for a holiday in England, paid for by a friend.[90]
[89] Wife’s affidavit filed 10 July 2019, [63].
[90] Wife’s affidavit filed 10 July 2019, [63].
The husband gives evidence of these overseas trips being taken by the wife, but does not give any evidence or assert that the wife paid for the trips herself.[91] Accordingly, I accept the evidence of the wife in relation to these trips.
[91] Husband’s affidavit filed 8 July 2019, [32].
The wife deposes that she pays about $76 per week for extracurricular activities enjoyed by the children and that she pays $75 a week after rebate for Z’s day care costs.[92] She deposes that she pays about $500 per year, or $10 a week, for the children’s school uniforms.[93]
[92] Wife’s affidavit filed 10 July 2019, [65], [70].
[93] Wife’s affidavit filed 10 July 2019, [71].
The financial circumstances of each of the parties is as set out in their Financial Statements, the wife’s being that of 10 July 2019 and the husband’s being his latest of 8 July 2019. Greater detail in relation to income and expenses is examined when considering the spousal maintenance issues later in these Reasons.
Application for property settlement
The law – property settlement
The law relating to the alteration of property interests between two parties to a marriage is governed by section 79 of the Act.[94] Relevant in this case, section 79(1) vests the Court with power to alter the interests of the parties in property,[95] and the power to make orders providing for the settlement or transfer of property, as determined by the Court.[96]
[94] Family Law Act 1975 (Cth) s 79.
[95] Family Law Act 1975 (Cth) s 79(1)(a).
[96] Family Law Act 1975 (Cth) s 79(1)(d).
However, the Court must not make an order under section 79 unless the Court is satisfied that, in all of the circumstances, it is just and equitable to do so.[97] The legislative process required by section 79 was considered by the High Court in Stanford & Stanford.[98]
[97] Family Law Act 1975 (Cth) s 79(2).
[98] Stanford & Stanford (2012) 247 CLR 108.
In that decision, the High Court held that section 79(2) requires that at the outset of the Court’s decision-making process the Court must consider whether or not, in all the circumstances, it is just and equitable to make an order under section 79(1) altering the interests of the parties to the marriage in property.
In considering the proposition posed by this first step, a Court should start by identifying items under the following categories:
a)The existing legal and equitable interests of the parties in property, according to ordinary common law and equitable principles;
b)The existing liabilities of the parties, according to ordinary common law and equitable principles and under legislation; and
c)The rights of the parties, if any, according to ordinary common law and equitable principles and under legislation, in relation to any asserted resources of the parties that may, if it is considered just and equitable to proceed with the property settlement, be taken into account in the Court’s consideration of the matters referred to in section 75(2) of the Act, to which section 79(4)(e) directs the Court’s attention.[99]
[99] Stanford & Stanford (2012) 247 CLR 108; see, especially, [37].
That the interests as described above are ‘existing’ is of importance, as the Court noted, because the text of the section gives reference to ‘altering’ the interests.[100]
[100] Stanford & Stanford (2012) 247 CLR 108, [37].
I further note the comments of the High Court in Stanford at paragraph 42 which I reproduce in full here:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).[101]
[101] Stanford & Stanford (2012) 247 CLR 108, [42].
I will examine the matrimonial asset pool and the existing interests of the parties, before determining whether it is just and equitable to make a property adjustment order.
If the Court determines that it is just and equitable to make an order under section 79, the Court must then consider what orders are appropriate to be made. In doing so, I will follow the four-step process set out in Hickey & Hickey & Attorney-General for the Commonwealth of Australia.[102]
[102] Hickey & Hickey & Attorney-General for the Commonwealth of Australia (‘Hickey’) [2003] FamCA 395, [39].
In Hickey, the Full Court of the Family Court set out a process of four inter-related steps that must be taken by a court when determining a property application:
a)First, “the Court should make findings as to the identity and value of the property, liabilities, and financial resources of the parties at the date of the hearing”;[103]
b)Second, “the Court should identify and assess the contributions of the parties within the meaning of section 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”; [104]
c)Third, “the Court should identify and assess the relevant matters … (“the other factors”) including…the matters referred to in section 75(2) so far as they are relevant…”;[105]
d)Fourth, “the Court should … resolve what order is just and equitable in all the circumstances of the case”.[106]
[103] Hickey [2003] FamCA 395, [39].
[104] Hickey [2003] FamCA 395, [39]. See also Family Law Act 1975 (Cth) s 79(4)(a)-(c):
[105] Hickey [2003] FamCA 395, [39].
[106] Hickey [2003] FamCA 395, [39].
The Full Court pointed out in Hickey that pursuant to the wording of section 79, there can only be one property settlement order at any one time, and that the one property settlement order is final, subject only to anything that may be properly done pursuant to section 79A of the Act.[107]
[107] Hickey [2003] FamCA 395, [47].
The Full Court held in Fontana:[108]
… Indeed, the authorities are consistent in finding that assessing contributions is not an accounting exercise but a holistic one (Brandt & Brandt (1997) FLC 92-758; Norbis & Norbis (1986) 161 CLR 513).[109]
[108] Fontana & Fontana [2018] FamCAFC 63.
[109] Fontana & Fontana [2018] FamCAFC 63, [27].
The Court is required to consider the parties’ contributions made on and from the commencement of their relationship, during their relationship, and following separation.[110]
[110] See, eg, Jabour & Jabour [2019] FamCAFC 78.
The approach to determining the appropriate percentage of the net value of property in relation to the contributions of the parties, at step two of the four-step process, requires an assessment of contributions by, or on behalf of, each of the parties in a holistic manner, rather than attaching specific contributions to a specific item of property and making a determination upon that basis. To do the latter would be to disregard the whole of the contributions made during the whole of the relevant period of the relationship by or on behalf of each of the parties.
As the Full Court said in Dickons & Dickons[111] at paragraphs 14 to 16:
[14] As is plain from earlier decisions of this Court, regard must be had to the use made of contributions of various types so as to compare the contributions made by each of the parties during the course of, and over the length of, their relationship (see, for example, In the Marriage of Pierce (1998) FLC 92-844) But that is an entirely different proposition to, as it were, causally linking contributions with their asserted financial “product” or “value”. The former recognises that the nature, form and extent of contributions made by each of the parties might differ; the latter suggests that the absence of a causal link counts as no contribution at all.
[15] The search for a causal link might be seen to come instinctively to the necessary inquiry and all the more so when regard is had to s 79(4)(a) which refers to financial contributions made “...directly or indirectly...” “...to the acquisition, conservation or improvement of any of the property ...” and goes on to also refer to the financial contribution made “...otherwise in relation to any of that last-mentioned property...” The terms of that sub-paragraph might, naturally enough, be seen to suggest a causal link between those contributions and the “financial product” which those contributions of that type are said to have produced. That same requirement might also be seen to suggest that relevant contributions of that type can be seen to be quantifiable – or, at least, conceptualised – in monetary terms, in contradistinction to contributions made pursuant to s 79(4)(c).
[16] While that apparent “causal connection” might be seen in s 79(4)(a) (and (b)), no such connection is apparent from the terms of s 79(4)(c); contributions of that latter type are not linked by the words of the sub-paragraph to the “...acquisition, conservation or improvement of any of the property...” or, indeed, to “property” at all. This is not a legislative oversight; the 1983 amendments to the Act which inserted the current s 79(4)(c) were specifically intended, relevantly, to remove any suggestion that there needed to be a causal link between contributions of that type and any particular asset or property. The Explanatory Memorandum to the Family Law Act Amendment Bill 1983 provides, at Clause 36, that a specific purpose of the re-casting of s 79(4) was, relevantly, to:
... revise sub-section 79(4) to remove the possibility of an interpretation of the sub-section requiring that there be a nexus between a spouse’s contribution and a specific item of property in section 79 proceedings ...[112]
[111] Dickons & Dickons [2012] FamCAFC 154.
[112] Dickons & Dickons [2012] FamCAFC 154, [14]-[16].
The Court is required to make a holistic value judgment in the exercise of a discretionary power of a very general kind.[113] The principle was expressed succinctly by the Full Court in the joint judgment of Bryant CJ and Ainslie-Wallace J in Fields & Smith[114] at paragraph 168:
...the task is to consider the contributions holistically over the whole period from the commencement of cohabitation to trial, and the analysis requires the Court to weight all of the contributions of all types prescribed by section 79(4) made by both parties across the entirety of the relationship until the time of Hearing, including the post-separation period.[115]
[113] In the Marriage of Harris (1991) 104 FLR 458, 464.
[114] Fields & Smith [2015] FamCAFC 57.
[115] Fields & Smith [2015] FamCAFC 57, [168].
The Full Court has been repeatedly clear that the approach to property settlement under section 79 of the Act is not an accounting exercise. Here, I note the comments of the Full Court in Grier & Malphas[116] at paragraph 129, where Murphy and Kent JJ said:
As the Chief Justice points out, with those principles in mind, the trial judge adopted a broad-brush approach to the parties’ respective expenditure. Nowhere error is established by reason alone of that approach; authority eschews “overly pernickety analysis” and section 79 demands neither an audit nor an exercise in accounting. However, when significant sums of money are said by one party or the other to have been “wasted” or to amount to a unilateral “premature distribution of property” and the evidence is suggestive of either or both, an analysis of the relevant sums and their use is needed.[117]
[116] Grier & Malphas (2017) 55 Fam LR 107.
[117] Grier & Malphas (2017) 55 Fam LR 107, [129].
The matrimonial property pool – assets
The parties did not present a Balance Sheet on hearing, but, in discussions between the bench and the parties at the start of the hearing, the composition of the matrimonial asset pool was clarified.
Neither of the parties have savings of any significant amount, the wife’s being $15 and the husband’s being $1,810. The parties do not refer to these amounts when discussing the matrimonial asset pool and I will not include those amounts in my finding of the matrimonial asset pool.
The wife has a Motor Vehicle 2 with an agreed value of $12,000. The husband has a Motor Vehicle 1 with an agreed value of $16,000, purchased by him after separation on finance. An amount of $19,046 was owing at the time of hearing on that finance.
The wife states a nil value for her household contents, and the husband states a value of $1,000 as the estimated value of his household contents. The parties did not refer to the household contents in discussions of the balance sheet and I will not include household contents in the matrimonial asset pool.
It is not that either the savings of the parties or the home contents are excluded from consideration. They have been included in consideration, and I have determined as a matter of discretion not to include them in the balance sheet when calculating the matrimonial asset pool to be divided between the parties.[118]
[118] Holland & Holland [2017] FamCAFC 266.
The wife has her entitlement to benefits in the Employer C Pension Scheme with an agreed value of $14,203. The husband has his entitlement to benefits in Super Fund B with an agreed value of $67,079, and he has an entitlement to benefits in the D Pension Scheme with an agreed value of $15,415.
I find that the assets to be considered as the matrimonial asset pool to be divided between the parties are:
a)The Motor Vehicle 2 valued at $12,000;
b)The Motor Vehicle 1 valued at $16,000;
c)The husband’s Super Fund B entitlement valued at $67,079;
d)The husband’s D Pension Scheme valued at $15,415;
e)The wife’s Employer C Pension Scheme valued at $14,203.
This provides a gross value of the asset pool of $124,697.
The matrimonial asset pool – liabilities
There are areas of disagreement between the parties in relation to some of the liabilities asserted by each party.
The parties are in agreement about the existence of the following liabilities:
a)The husband has a current debt owed by him in relation to legal fees of $1,650;
b)The wife has a current debt owed by her in relation to legal fees of $3,984;
c)The wife has a current debt to Centrelink for an overpayment in the sum of $7,878, which she is now and has been for some years paying off at the rate of $30 per fortnight. This debt relates to an overpayment in benefits in the early years after the parties moved to Australia and while they were still in cohabitation, and results from an under-estimate of the husband’s income at the applicable time. The debt began in the sum of $18,996.95;[119]
d)A sum of $19,046 is owed by the husband to L Motor Finance Ltd in relation to the purchase of the Motor Vehicle 1;
e)A sum of $6,285 is owed by the wife to the Commonwealth government under the HELP student fees assistance scheme. Whilst the husband agrees as to the amount, he does not accept that he should be made to contribute toward its payment. This submission was made by the husband during discussions identifying the matrimonial asset pool and liabilities, and he did not make further submissions beyond that in support of his contention. The wife would not be required to make any repayments for this debt until she is earning in excess of $50,000 per annum;
f)The parties have a joint indebtedness in relation to a Bank M overdraft account in the sum of $2,500. At some time after separation, the wife was contacted by Bank M seeking collection, but the husband has not been so contacted.[120] The wife has not heard from the bank for some time and there would appear to be no current action on behalf of the bank or anybody to whom the debt may have been assigned to make recovery;
g)The husband has credit card debts, one for $4,800 with an ANZ Platinum credit card and the other for $1,555 on a UK Bank M card. The wife does not deny the debts are owing, but contests the amounts asserted to be owing;
h)The wife asserts that she owes a sum of $22,000 to her mother. She gives evidence that the money has been provided to her by her mother at various times to enable her to make payments on behalf of the children and for payment of legal fees. In her submissions, it was mentioned that the legal fees component of the debt was $17,500. The wife did not make denial of that contention. The husband asserts that the wife stated at a previous court appearance that the debt was composed of the $17,500 for legal fees, and $4,500 provided for payment of school fees for the children in 2017.[121]
[119] Wife’s affidavit filed 10 July 2019, [78].
[120] Wife’s affidavit filed 10 July 2019, [82].
[121] Husband’s affidavit filed 8 July 2019, [28].
In the calculation of the matrimonial asset pool available for distribution between the parties, I find that it is appropriate to include the following:
a)The husband’s car loan of $19,046; and
b)The wife’s debt to Centrelink of $7,878.
I find that none of the other asserted liabilities are appropriate to be included in the calculation of the matrimonial asset pool. I do so for the Reasons that follow.
Liabilities not included in the joint matrimonial asset pool
The husband asserts that he has credit card debts from his ANZ Platinum credit card and his UK Bank M card in the amount of $4,800 and $1,555 respectively, totalling $6,355. The husband asserts that the expenses on the ANZ Platinum credit card relate to dental costs for X, and X and Y’s 2018 school fees.[122]
[122] Husband’s affidavit filed 8 July 2019, [12].
These amounts are disputed by the wife.
The wife asserts a debt to her mother of $22,000, being monies given to her by her mother for the benefit of the children and for some of her own costs, in particular, for legal costs.
If a greater part of that sum is composed of moneys provided by the wife’s mother for legal costs, then imposing that debt on both parties by making it part of the calculation of the matrimonial asset pool for division between the parties creates a de facto costs order against the husband, without having gone through the statutory considerations under section 117 of the Act.
I apply the same reasoning to the husband’s debt for legal costs of $1,650 and the wife’s debt for legal costs of $3,984.
Having considered each of the asserted liabilities, I find that it is appropriate to leave the husband’s credit cards to the husband for payment without including them in calculation of the net matrimonial asset pool, to leave the wife’s debt to her mother of $22,000 to the wife without including it in the calculation of the net matrimonial asset pool and to leave each of the parties’ debts for unpaid legal fees to the party who owes without including it in calculation of the matrimonial asset pool.
I will not include the Bank M overdraft debt of $2,500 in the calculation of the matrimonial asset pool, as the evidence suggests it may not be property repaid by either party. On the evidence, it is a joint debt and if payment is obtained from one party, the other party is entitled to seek contribution.
The wife’s debt of $6,285 to the Commonwealth government under the HELP student assistance scheme is not immediately repayable. On the wife’s submission, the sum will become repayable once she earns over $50,000 per annum. There is nothing to indicate that the wife will or will not achieve earnings in that amount. Furthermore, the debt relates to a course in which the wife enrolled to attend but, in the circumstances, did not attend, but for which fees were paid by the Commonwealth, giving rise to the debt. I leave that debt to the wife to repay, if payment becomes due in consequence of her earnings, without including the liability in my calculation of the net matrimonial asset pool distribution between the parties.
Accordingly, I find that the net matrimonial asset pool is $97,773, as follows:
| NET MATRIMONIAL ASSET POOL | ||
| Motor Vehicle 2 | Wife | $12,000 |
| Motor Vehicle 1 | Husband | $16,000 |
| Employer C Pension Scheme | Wife | $14,203 |
| Super Fund B entitlement | Husband | $67,079 |
| UK Employer D Pension Scheme | Husband | $15,415 |
| SUBTOTAL | $124,697 | |
| Debt to Centrelink | Wife | -$7,878 |
| Car loan | Husband | -$19,046 |
| SUBTOTAL | -$26,924 | |
| TOTAL | $97,773 | |
Is it just and equitable to make property settlement orders?
In current circumstances, the husband has in his current possession and control the Motor Vehicle 1 and both of his superannuation entitlements, a total value of $98,494. He has a personal liability that I take into account for calculating the pool of $19,046 for his car finance, giving him a net holding in relation to the assets and liabilities I am considering in the pool of $79,448.
The wife has in her possession or control her Motor Vehicle 2 and her superannuation entitlements, giving her assets of $26,203, and has the liability for the Centrelink of $7,878, being the liability I am taking into account in calculating the pool, giving her a net holding of $18,325.
If no order is made pursuant to section 79 of the Act, then the husband would hold 81.26 per cent of the available net asset pool and the wife would hold 18.74 per cent.
The wife has made contributions well in excess of 18.74 per cent. She is in a weaker financial position than the husband, consequent upon the difference in their income, their earning capacities, and the wife’s ongoing care and control of the three children of the marriage, one of whom will not commence school attendance until 2021.
In circumstances where the parties’ marital relationship has broken down completely and they have been separated now for a period of four years, to not proceed with a property settlement between the parties, would work a particular injustice between the parties.
Accordingly, I find that it is just and equitable to proceed to make property settlement orders under section 79 of the Act.
Contributions
The wife made contributions at the commencement of the parties’ cohabitation of her equity, whatever that was, in the City E flat, furniture and contents, her savings of £3,000 and her then superannuation entitlements.
The husband made contributions at the start of the parties’ cohabitation of his Motor Vehicle 3, his savings of £15,000, his furniture and contents, and his pension fund and superannuation entitlements, whatever they may have been. The husband had debts at that time in some amount in relation to which I cannot make a finding on the evidence, the husband asserting £2,500 and the wife asserting up to £23,000.
The wife had purchased the City E flat in 2006 with her friend, contributing $55,000 Australian dollars to the purchase price received on loan from her mother, and borrowing the rest. The wife would have made some repayments in relation to the borrowing between 2006 and commencement of cohabitation between the parties in 2007. What equity the wife may have had in the property by way of increase in market value, if any, and repayment of principal on loan, if any, I cannot find as there is no evidence to assist.
The parties purchased the wife’s friend’s interest in the City E flat for £45,000 in 2018, 17 months after they commenced cohabitation. They jointly borrowed and jointly contributed to repayment of that amount.
I cannot make a finding that the initial contributions by the parties were anything other than equal, given that the available evidence is imprecise.
The husband was in full‑time employment through most of the parties’ cohabitation, except for a period between the commencement of cohabitation and 2017 and a period between the parties coming to Australia in 2013 and obtaining his employment with Employer G in 2013. While the parties were in the United Kingdom, the wife on occasions “earned significantly more than the husband”.[123] However, the wife took occasions of maternity leave for the birth of her children and there is no evidence as to whether or not she received income of any nature during maternity leave.
[123] Husband’s affidavit filed 8 July 2019, [43].
After the birth of the children, the wife’s return to employment was largely by way of part‑time work.
The wife was principally responsible as between the parties for the homemaker role and for the day-to-day care and parenting of the children. She was available for those roles for the greater part of the time whilst the husband was engaged in full‑time employment through most of the parties’ cohabitation.
At separation the parties had savings between them of $33,000, with $20,000 held in an account in the wife’s name and $13,000 held in an account in the husband’s name. Those moneys have been expended, with $30,000 spent on living expenses and $3,000 paid to the wife by the husband in compliance with the interim spousal maintenance order.[124]
[124] Orders made by Judge Sexton on 16 November 2017, [11].
Following separation, as between the parties, the wife has been virtually solely responsible for the ongoing parenting of the children, given that the children spend one day per week from 8:30AM to 6:30PM with the father, and one overnight occasion with him in the school holidays.
Both parties have contributed to the financial support of the children following separation. The husband pays child support as assessed and voluntarily pays school fees and some other costs for the children, and the wife meets all other costs for the children not covered by the husband’s payments.
I find that the contributions made by the parties up to the time of separation are equal. By reason of her ongoing parenting of the children, I find that the contributions made by the wife following separation are in excess of the contributions made by the husband.
Overall, and taking a holistic view of the contributions of the parties from the commencement of their cohabitation to the date of hearing, I find that the contributions of the parties are 60 per cent by the wife and 40 per cent by the husband.
Section 79(4)(e) – matters referred to in subsection 75(2), so far as they are relevant
At the time of the hearing, the wife was 39 years of age and the husband 45 years of age. They are now 40 years and 46 years of age respectively. There is no evidence that either enjoys anything other than good health.[125]
[125] Family Law Act 1975 (Cth) s 75(2)(a).
The husband is physically and mentally capable of engaging in appropriate gainful employment and does so.[126]
[126] Family Law Act 1975 (Cth) s 75(2)(b).
The wife is physically and mentally capable of engaging in appropriate gainful employment, but does not do so at the present time only in consequence of her day-to-day responsibility for the care of the parties’ young children who are aged eight, seven, and three years of age. The youngest child, Z, will not commence full‑time school attendance until 2021.
The wife is unable to reengage in her previous career as a member of Employer F, a field in which she has experience and skills, given her responsibility for the day-to-day care of the children. The wife proposes to retrain so as to equip herself with skills to engage in appropriate gainful employment with a view to seeking financial self‑reliance and independence.
The property of each of the parties has been discussed earlier in these Reasons in the findings in relation to the matrimonial asset pool, both in reality and as considered for distribution between the parties, as with the liabilities.[127]
[127] Family Law Act 1975 (Cth) s 75(2)(b).
There is no evidence that either party has any financial resources outside of their entitlement to superannuation benefits which for the purpose of these proceedings are defined as property.[128]
[128] Family Law Act 1975 (Cth) s 75(2)(b).
The income of each of the parties is as set out in their Financial Statements and, not having been subject to cross‑examination, their evidence stands as stated. The husband has a gross income of $150,000 per year or $2,884 per week.
The wife has an income derived from Centrelink payments by way of a Single Parent Payment of $397.15 a week and Family Tax Benefit of $145 a week. To these payments is added the sum of $577 a week received as child support payments from the husband and $89.75 received as spousal maintenance payments from the husband, pursuant to the interim spousal maintenance order.
The payment of spousal maintenance is being reconfigured in these proceedings and, in accordance with the authorities, spousal maintenance is a matter for consideration after determination of the property settlement appropriate between the parties. At the current time, and subject to whatever determination may be made in relation to the spousal maintenance issue, the wife’s income is $1,208.90 per week.
The husband is five years older than the wife. His employment life, and therefore his accumulation of employer compulsory contributions to superannuation, may reasonably end five years earlier than that of the wife. In the wife’s current circumstances on the evidence, her employment life such that she begins to again accumulate superannuation benefits or employer compulsory contributions is unlikely to be of any significant amount for much of the next five years. Accordingly, I find there is no adjustment to be made between the parties on the basis of the difference in their age.[129]
[129] Family Law Act 1975 (Cth) s 75(2)(a).
There is patently a disparity between the parties of both their current income and their earning capacity at the present time and for the foreseeable future. I find that it is appropriate that there would be an adjustment in favour of the wife for this consideration.[130]
[130] Family Law Act 1975 (Cth) s 75(2)(b).
The wife has full‑time care of the children of the marriage except for one day per week, and one overnight occasion in school holidays. The husband’s application for final orders is for the children to spend time with him during school terms:
a)From the end of school on Friday until 5:30PM on Saturday or from 5:30PM on Saturday to 5:30PM on Sunday each week; and
b)From the end of school on Tuesday to the start of school on Thursday each week, being three nights per week, and half of school holidays.
Whether or not there is, ultimately, an increase in the time the father spends with the children is not yet known. The final parenting proceedings between the parties is yet to be determined, either by the parties and settled by consent, or determined in a final hearing.
I find that, on the basis of current circumstances, and even taking into consideration the final orders sought by the father, the mother will still have principal responsibility for the care of the children. Accordingly, I find it is appropriate to make an adjustment in favour of the mother on that consideration.[131]
[131] Family Law Act 1975 (Cth) s 75(2)(c).
The commitments of each of the parties necessary to enable them to support themselves and to support the children when they are in their respective care are as set out in their Financial Statements. I have considered those expenses carefully, as I must for the purpose of deciding the spousal maintenance issue later in these Reasons.
I find that given the contributions by the father toward the financial support of the children and the mother’s day-to-day financial support of the children, there is no adjustment to be made between the parties in this consideration.[132]
[132] Family Law Act 1975 (Cth) s 75(2)(d).
Neither of the parties are responsible for the support of any person other than the children.[133]
[133] Family Law Act 1975 (Cth) s 75(2)(e).
The father is not eligible for any pension, allowance, or benefit under the law of the Commonwealth or a state or a territory or of another country.[134] He is not eligible, currently, under any superannuation fund or scheme within or outside Australia, subject to the real nature of his entitlement in the UK Employer D Pension Scheme, in relation to which I have no evidence.[135]
[134] Family Law Act 1975 (Cth) s 75(2)(f)(i).
[135] Family Law Act 1975 (Cth) s 75(2)(f)(ii).
As I have already found, I treat that entitlement as I would an interest of the husband in an accumulation fund superannuation entitlement, and as such it would form part of the asset pool considered for distribution between the parties.
The wife is entitled to a pension allowance and benefits under the laws of the Commonwealth, being the Single Parent Payment and Family Tax Benefits.[136] She is not currently entitled to any pension, allowance or benefits under any superannuation fund or scheme within or outside Australia.[137] I have already found that there is an adjustment to be made between the parties in consequence of the disparity in their income, and I find that this matter is a part of that consideration.
[136] Family Law Act 1975 (Cth) s 75(2)(f)(i).
[137] Family Law Act 1975 (Cth) s 75(2)(f)(ii).
The parties are separated. The standard of living that in all the circumstances would be reasonable for the wife is a standard of living somewhat in excess of that which she enjoys currently on her evidence.[138] Her evidence is that, currently, she is unable to make expenditure on some of the basic necessities of life such as purchasing for herself clothing, shoes, hairdressing services, books, magazines, entertainment or holidays.
[138] Family Law Act 1975 (Cth) s 75(2)(g).
I also find that the standard of living enjoyed by the husband is in all the circumstances less than is reasonable. This is in consequence of the splitting of his income between his own independent support and the support of his children, and a spousal maintenance order which, currently, is on an interim basis only, but with the prospect of a further spousal maintenance order on a final basis. I find that there is no adjustment to be made between the parties on this consideration.
The making of proposed orders would not have any effect on the ability of any of the creditors of the parties to recover their debt.[139]
[139] Family Law Act 1975 (Cth) s 75(2)(ha).
The wife has contributed to the income earning capacity and property of the husband overall to a greater degree than he has contributed to those factors for her.[140] This is in consequence of her undertaking the principal role as homemaker and parent, and not being engaged in full‑time employment through the period of cohabitation or at all following separation. This, in turn, has freed the father from his responsibilities in relation to homemaker duties and care and control of the children, and enabled him to participate in full‑time employment, thereby maintaining, developing, and increasing his skills and consequent value in the employment marketplace. I find that there is an adjustment to be made in favour of the wife on this consideration.
[140] Family Law Act 1975 (Cth) s 75(2)(j).
The duration of the parties’ marriage, and their cohabitation overall, has affected the earning capacity of the wife.[141] She ceased full‑time employment for reasons already elaborated in these Reasons, and, in consequence has had a reduction in her value in the employment marketplace. I find that there is an adjustment to be made in favour of the wife on this consideration.
[141] Family Law Act 1975 (Cth) s 75(2)(k).
I now turn to consider paragraph 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”.[142]
[142] Family Law Act 1975 (Cth) s 75(2)(o).
I find that I should take into account the repayment by the wife over time of the debt owed by her to Centrelink. This debt arose consequent upon the parties’ miscalculation of the husband’s income, and the resultant overpayment to them of benefits during their cohabitation. The wife has reduced the amount owing to the current agreed amount of $7,878.
The debt, though at law a liability of the wife, was a debt incurred by the action of both parties in relation to the information supplied to the Centrelink authorities. The overpayment received to which the debt relates was enjoyed by both parties. Accordingly, I find that the justice of the case requires the wife’s part repayment up to the time of the final hearing of that debt to be taken into account and to ground an adjustment to favour the wife.
Overall I find that it is appropriate to make an adjustment to the percentage finding to the contribution basis by an adjustment of 20 per cent in favour of the wife.
Accordingly, I find that the appropriate division of the matrimonial asset pool considered for distribution between the parties is as to 80 per cent to the wife and as to 20 per cent to the husband.
The result in relation to property settlement
Having found that the appropriate division of the net matrimonial asset pool under consideration for distribution between the parties is as to 80 per cent to the wife and as to 20 per cent to the husband, I must determine what orders are appropriate.
Both parties seek that their property settlement be effected by only a superannuation splitting order pursuant to section 90XT of the Act.[143] Each otherwise seeks to keep the assets they individually own or in relation to superannuation entitlements to which they are entitled.
[143] I note here that the husband has expressed his order sought as pursuant to section 90MT(4), which does not appear in the Act.
I have found that the husband has:
a)His motor vehicle with a value of $16,000;
b)His superannuation interest with Super Fund B with a value of $67,079; and
c)His superannuation interest with UK Employer D Pension Scheme with a value of $15,415;
being a total of $98,494.
I found that he will remain responsible for his car loan (valued at $19,046), giving him a net figure of $79,448.
I have found that the wife has:
a)Her motor vehicle valued at $12,000; and
b)Her superannuation benefits with Employer C Pension Scheme valued at $14,203;
being a total of $26,203.
I have found that she will remain responsible for the balance of the Centrelink debt in the amount of $7,878, giving her a current net holding of $18,325.
From a net matrimonial asset pool, considered for distribution between the parties with a value of $97,773, 80 per cent thereof is $78,218.40. Accordingly, the wife needs a superannuation split from the husband’s Super Fund B Superannuation Fund of $59,893.40 to achieve a division as to 80 per cent to the wife and 20 per cent to the husband of the net matrimonial asset pool considered for distribution between the parties.
I will make a superannuation splitting order in favour of the wife out of the husband’s interest in the Super Fund B for the base amount of $59.893.40.
Application for spousal maintenance
The law – spousal maintenance
The husband is liable to maintain the wife, to the extent that the husband is reasonably able to do so, if, and only if, the wife is unable to support herself adequately by reason of having the care and control of the three children, by reason of any physical or mental incapacity for appropriate gainful employment or for any other adequate reason, having regard to, and only to, any relevant matters referred to in subsection 75(2) of the Act.[144]
[144] Family Law Act 1975 (Cth) s 72.
The Court’s powers in spousal maintenance proceedings are set out in section 74 of the Act. The Court may make such order as it considers proper for the provision of maintenance in accordance with Part VIII of the Act.[145] In making that order, the Court must take into account only the matters referred to in section 75(2) of the Act.[146]
[145] Family Law Act 1975 (Cth) s 74(1); Family Law Act 1975 (Cth) s 72.
[146] Family Law Act 1975 (Cth) s 75(1). See also Hall & Hall (2016) 257 CLR 490, [3]-[10], [52]-[58].
There is no fettering principle that the pre-separation standard of living must automatically be awarded. Reasonableness in the circumstances is the guiding principle.[147]
[147] See In the Marriage ofBevan (1993) 120 FLR 283.
In In the Marriage of Bevan,[148] the Full Court of the Family Court of Australia summarised the pathway to an order for spousal maintenance as follows:
1. A threshold finding under section 72;
2. Consideration of sections 74 and 75(2);
3. No fettering principle that pre-separation standard of living must automatically be awarded where the Respondent’s means permit; and
4. Discretion exercised in accordance with the provisions of section 74, with “reasonableness in the circumstances” as the guiding principle.[149]
[148] In the Marriage ofBevan (1993) 120 FLR 283.
[149] In the Marriage ofBevan (1993) 120 FLR 283, 290
The financial position of the wife – does the wife have a need?
In assessing whether the wife has a need for spousal maintenance from the husband, by reason of being unable to support herself adequately, by reason of having care and control of the children of the marriage, or for any other adequate reason, I must first determine her financial position.
The wife is not in paid employment. She derives her income from Centrelink payments ($542.15 per week), and receipt of child support payments from the husband ($577 per week), a total of $1,119.15.
From 16 November 2017 until final hearing (presumably continuing thereafter), the wife asserts that she was in receipt of $89.75 per week by way of spousal maintenance. The husband asserts she was in receipt of $90 per week by way of spousal maintenance. These payments were made pursuant to interim orders made on 16 November 2017.
I will not consider that the amount paid by the husband to provide for spousal maintenance under the interim order, as this is a fresh consideration of spousal maintenance on a final basis.
Pursuant to section 75(3), I must disregard any entitlement of the wife to an income tested pension, allowance or benefit in considering whether she is entitled to an order for spousal maintenance payable by the husband.[150]
[150] Family Law Act 1975 (Cth) s 75(3).
In considering the expenses of the wife when assessing her financial circumstances, so as to assess her need for spousal maintenance, I will disregard those expenses that she indicates in her evidence are relevant exclusively to the needs of the children, and accordingly I will disregard as her income the amount of child support paid by the husband being $577 a week.
For the purposes of the consideration required for spousal maintenance proceedings, the wife has no income.
In her Financial Statement, the wife asserts that she has weekly expenses of $1,608 being the combined totals of Parts G (‘Personal expenditure’) and N (‘Orders for maintenance, child support, financial enforcement’) of the Financial Statement.
From that amount, I deduct the amount that the wife proposes in part N of the Financial Statement relates to the expenses of the children, being $511. I note that the sum of $93 which is stated by the wife in her Financial Statement to be an expense for school fees and is conceded by her to be paid by the husband is in the column for the expenses of the children, and is therefore included it in the $511.
There was no cross-examination of the wife, and accordingly I accept her evidence in relation to income and expenses. On consideration of the expenses asserted by the wife in her Financial Statement, I find that there is no reason to question or disallow any amount other than I have already indicated.
Accordingly, I find that the wife’s excess of expenses relevant to her own support exceed her income by $1,097.
The financial position of the husband – does he have an ability to pay?
A spousal maintenance order should only be made requiring the husband to contribute toward the maintenance of the wife – if she is found to be unable to support herself adequately – if it also found that the husband is reasonably able to do so.
The financial circumstances of the husband are set out in his July Financial Statement.
I have already determined the husband’s income when considering the factors pursuant to section 79. His gross income is $150,000 per year or $2,884 per week.
In Part G and Part N of his July Financial Statement, the husband asserts that his weekly expenses are $3,218.
There was no cross-examination of the husband. Matters were put by the wife in submissions, as well as in her affidavit, particularly at paragraph 98.[151]
[151] Wife’s affidavit filed 10 July 2019, [98].
At item 20 in Part G of his July Financial Statement, the husband states that he pays some $274 per week to Super Fund B by way of superannuation contributions.[152] The wife asserts that the sum should only be there if the husband is making additional payments over and above the contributions made by his employer under the Employer Compulsory Superannuation legislation.
[152] Husband’s Financial Statement filed 8 July 2020, [20].
I find that the matter goes further than that. If the sum of $274 represents employer compulsory superannuation contributions, then it does not belong in that place in the Financial Statement unless if it has also been included in the husband’s statement of his income at $2,884 a week. There is no evidence to that effect. If it represents a compulsory employer contribution, then it should not appear at item 20. If it is not a compulsory employer contribution, but is a voluntary contribution to superannuation made by the husband, then I find that it would not be a necessary and unavoidable living expense, but rather a voluntary expenditure undertaken by the husband in full knowledge of his possible liability for payment of spousal maintenance under the terms of the Act.
Accordingly, in either case, I will disregard the sum of $274 as expenditure of the husband.
At item 30 of his July Financial Statement the husband says that he pays a sum of $100 per week to repayment of the debit balance owing on his ANZ Platinum credit card. In a note in Part O, he indicates that he is attempting to pay the balance owing on the card off during a 12 month interest free period.
The wife tendered into evidence the husband’s ANZ Platinum credit card statement for the period 16 January 2019 to 17 February 2019 and same was admitted into evidence and marked as exhibit R1. The document indicates that the balance owing by the husband as at the close of the period was $4,883.08. It also indicates that the “minimum monthly payment” required by the bank was $97. The husband’s decision to pay $100 a week, which equates to $433 per month by way of payment of the credit card account, is a voluntary payment over and above that required by the bank, in the sum of $336 per month or $78 per week.
Accordingly, I will disregard $78 worth of the $100 the husband asserts he pays toward the ANZ Platinum credit card each week.
The husband includes in his expenses an amount of $90 per week that he pays pursuant to the interim spousal maintenance order made 16 November 2017. In effect, that order will cease on the making of final orders, whether or not a final order for spousal maintenance is made. Accordingly, I will disregard that sum of $90 per week.
In Part N of his July Financial Statement, the husband includes an expense of $112 per week for education expenses for the children, being their school fees. The parties agree that the proper figure paid by the husband per week for the children’s education expenses by way of school fees is $93. Accordingly, I will disregard the difference of $19 per week.
In paragraph 98(d) of the wife’s affidavit, she asserts that in addition to the required payment by the husband on his ANZ Platinum credit card being $22 per week and not $100 per week, she asserts that the “payment” on his Bank M credit card is $11 per week, not $25 per week as asserted by the husband at item 30 in his July Financial Statement.
I do not have any evidence to substantiate the wife’s assertion in that regard, unlike in the circumstance of the husband’s ANZ Platinum card. Accordingly, I cannot accept that an adjustment must be made.
In paragraph 98(c) of her affidavit, the wife asserts that the husband has listed his telephone expenses twice in part N of his Financial Statement, once beside the item “telephone” as $23 and again under “other necessary commitments” with reference to a note in Part O that he expends $10 per week on his mobile phone.
I have no evidence as to whether or not the husband has a landline phone based on which he pays $23 per week. In the absence of evidence as to how many phones are maintained and paid for by the husband, I accept his claimed expenses for telephones of $23 per week and $10 per week.
Accordingly I have found that deductions should be made from the husband’s claimed expenses of $3,218 per week, of:
a)$274 – the superannuation contribution;
b)$78 – the ANZ Platinum credit card payment;
c)$90 – interim spousal maintenance paid by the husband; and
d)$19 – the difference in school fees paid by the husband;
providing an adjusted weekly expenses amount of $2,757.
The husband was not cross-examined on his Financial Statement, and the wife did not take issue in submissions or in her evidence with any of the other income or expense evidence surrounding either of the husband’s Financial Statements.
I find that the husband’s income is $2,884. I further accept that his expenses are $2,757 per week. Accordingly, the husband has an excess of income over expenses of $127 per week.
Matters to be taken into consideration in relation to spousal maintenance
In exercising jurisdiction under section 74 in relation to the making of a spousal maintenance order, the Court must take into account only the matters referred to in subsection 75(2).
At the time of the hearing the wife was 39 years of age and the husband was 45 years of age (now 40 years and 46 years respectively). Each party is in good health.[153]
[153] Family Law Act 1975 (Cth) s 75(2)(a).
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 has been examined in my consideration of their financial positions above, and earlier in these Reasons in relation to property settlement issues.[154] I find that it is appropriate to give this consideration weight.
[154] Family Law Act 1975 (Cth) s 75(2)(b).
Each of the parties has commitments necessary to enable them to support themselves and the children of the marriage.[155]
[155] Family Law Act 1975 (Cth) s 75(2)(d).
The wife’s ability to engage in appropriate gainful employment is affected by her current employment skill levels and her ongoing responsibility for the day-to-day care and control of the children of the marriage who are under 18, being eight, seven and three years of age at the time of hearing (nine, eight and four years of age currently).[156]
[156] Family Law Act 1975 (Cth) s 75(2)(c), (d).
Neither party is responsible for the support of any other person other than the children of the marriage.[157]
[157] Family Law Act 1975 (Cth) s 75(2)(e).
The husband has no entitlement to or eligibility for a pension, allowance or benefit under Commonwealth, state or under a superannuation fund or scheme inside or outside Australia.[158] The wife does have an entitlement to benefits from the Commonwealth which she receives through Centrelink as Single Parent Payment and Family Tax Benefit payment.[159] Though it is mandated that the Court take the wife’s eligibility to such benefits into account under section 75(2), this is subject to subsection (3) which mandates that the Court disregard those entitlements.[160] I do disregard them.
[158] Family Law Act 1975 (Cth) s 75(2)(f).
[159] Family Law Act 1975 (Cth) s 75(2)(f).
[160] Family Law Act 1975 (Cth) s 75(3).
The parties have separated, and neither party enjoys a standard of living that is ideal.[161] As between the parties, the husband enjoys a better standard of living than the wife.
[161] Family Law Act 1975 (Cth) s 75(2)(g).
While the standard of living of the wife can be raised by the making of a spousal maintenance order, it can only do so to the extent that the husband has an ability to pay that spousal maintenance. By its nature, the making of that order would cause some depreciation, of unknowable extent, to the husband’s standard of living.
The payment of spousal maintenance by the husband to the wife will have the effect of, to some degree, increasing her earning capacity by enabling her to undertake a course of training or education, to enable herself to re-enter the workforce and obtain an income adequate to enable her to be financially self-sufficient.[162] In reality, this may not be to any great extent, but it will be to some extent.
[162] Family Law Act 1975 (Cth) s 75(2)(h).
An order that the husband pay spousal maintenance to the wife from his excess of income over expenses, when part of that excess has come from reducing the amount available to him to repay to ANZ on his ANZ Platinum credit card debit balance, will affect the amount that he does pay to that creditor.[163] However, this does not affect ANZ’s ability to recover the debt over time.
[163] Family Law Act 1975 (Cth) s 75(2)(ha).
The duration of the marriage affected the wife’s earning capacity to her detriment, in that she was not able to engage in full-time employment throughout.[164] The husband was able to engage in full-time employment throughout the duration of the marriage, except for two short periods of unemployment.[165]
[164] Family Law Act 1975 (Cth) s 75(2)(k)
[165] Family Law Act 1975 (Cth) s 75(2)(j), (k).
The terms of the order that I have already indicated I propose to make under section 79 of the Act relates solely to an adjustment of ownership of property between the parties by way of a superannuation splitting order.[166] Neither party is of an age or in circumstance where they are entitled to call for their superannuation entitlements, even with tax penalty. Accordingly, that order under section 79 will not having any effect on the income, expenses, or earning capacity of the parties.
[166] Family Law Act 1975 (Cth) s 75(2)(n)(i).
The husband pays child support in the sum of $577 a week pursuant to an assessment.[167] I have left that sum in the calculation of his expenses.
[167] Family Law Act 1975 (Cth) s 75(2)(na).
Will a spousal maintenance order be made?
Having found in my consideration of the matters set out in section 75(2), and only those matters (my consideration of the financial position of the husband and the wife being matters under section 75(2)(b) and (d)) I find that the husband is liable to maintain the wife by a payment of spousal maintenance in the sum of $127 per week.
This is in consequence of:
a)The husband being reasonably able to make such spousal maintenance payment;
b)The wife being unable to support herself adequately, by reason of having care and control of the children of the marriage who have not obtained 18 years of age; and
c)For the reasons as set out above in my consideration of the issue of spousal maintenance in these Reasons.
I now must consider the appropriate duration for any spousal maintenance order.
The wife seeks that a spousal maintenance order continue for five years from the date of an order, with Consumer Price Index adjustments under the All Group Sydney index on 1 July each year. The husband seeks that any spousal maintenance order continue until the happening of either the first or the second of (it is unclear) three years from the date of an order, or the wife achieving a gross annual income of $70,000.
The wife gives evidence of her intentions in relation to retraining, and I note here her ongoing obligations for the care and control of the children of the marriage, the youngest of whom will only commence kindergarten in 2021. In these circumstances, I find that a period of four years is an appropriate period of time for the husband to make spousal maintenance payments.
I also find that it is appropriate to increase the amount paid on 1 July each year commencing in 2021 by multiplying the amount total by the percentage (if any) in the Consumer Price Index of All Groups Sydney for the previous financial year as prescribed by the Australian Bureau of Statistics. Were I not to make an order to this effect, inflation would erode the effectiveness of the spousal maintenance order.
Both parties seek an order that the husband maintain private health cover for the wife at the level of cover in place for the wife “at the date of these orders” on the wife’s application or “at the current level of cover for [the wife] until the last child reaches the age of 18” on the husband’s application.
During the hearing, I warned the parties to make their inquiries as to the circumstances in which the husband’s current health insurance body would no longer cover the wife within the husband’s family health insurance coverage, even if she were nominated as a family member of the husband. I leave that to the parties, having thrown out this hint.
I take judicial notice of the fact that the rules of health insurers may bar a person from being entitled to benefits, even though they are nominated as a member of family under a family plan, where there are circumstances of separation or divorce.
In consequence of this reality, I will make an order that by way of further spousal maintenance, the husband maintain health insurance cover for the wife at the level to which she was covered in the husband’s health insurance family cover as at the date of the hearing, 15 July 2019.
I will also make an order that where the wife is maintained as a member of the husband’s health insurance membership, but is not entitled to benefits by reason of their relationship circumstance, then the husband will be responsible for payment of any loss thereby occasioned to the wife in relation to unrecoverable health expenditure as a further element of spousal maintenance.
Application for costs
In her Amended Response, the wife seeks a final order at order 32 therein “that the husband pay the wife’s costs of and incidental to these proceedings”.
The proceedings are not concluded and will continue in relation to final parenting issues. Accordingly, I will not determine the wife’s costs application at the present time.
In relation to the proceedings, I note that on 7 November 2019 an order was made pursuant to section 62G of the Act for preparation of the family report by a family consultant. The matter has been listed for further mention directions following the release of the family report at 11:30AM on 27 November 2020.
If the parties are able to resolve their parenting issues on a final basis, whether through person-to-person negotiation, with the assistance of the ICL, or with the assistance of a family dispute resolution practitioner, they remain at liberty to submit consent orders to the Court.
Accordingly I make the orders as set out at the start of these Reasons.
I certify that the preceding two hundred and forty-eight (248) paragraphs are a true copy of the reasons for judgment of Judge Morley
Associate:
Date: 1 July 2020
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party …
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party …;
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage … including any contribution made in the capacity of homemaker or parent; …
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