Barry and Barry - [2011] FMCAfam 957

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BARRY & BARRY

[2011] FMCAfam 957

FAMILY LAW – Property settlement – arguments as to waste or secreting of funds – determination to include value of superannuation and termination payments at value received rather than current value – consideration of allegations of domestic violence and whether it increased the worth of the wife’s contribution as a homemaker and mother – request to capitalise spouse maintenance and child support – consideration of applicable principles – determination to increase amount of property settlement by capitalised sum.

Family Law Act 1975, ss.72, 75(2) (a)-(o), 79(2), (4)(a)-(c)
Child Support (Assessment) Act 1989, ss.123(1)(a), 123A, 124

Aitken & Porteous (2009) FMCAfam 783
Pastrikos and Pastrikos (1980) FLC 91-987
Whitely and Whitely (1996) 92-684
In the Marriage of Clauson (1995) FLC 92-595
In the Marriage of Ferraro (1993) FLC 92-335
In the Marriage of Lee Steere (1985) FLC 91-626
Russell and Russell (1999) FLC 92-877
D & D (2005) FamCA 356
Kowaliw and Kowaliw (1981) FLC 91-092
AB & GB (No.2) (2005) FMCAfam 402
Re NHC and RCH (2004) FLC 93-204

Applicant:

MS BARRY

Respondent:

MR BARRY

File Number:

CSC 241 of 2010

Judgment of:

Coker FM

Hearing date:

11 August 2011

Date of Last Submission:

11 August 2011

Delivered at:

Townsville

Delivered on:

8 September 2011

REPRESENTATION

Counsel for the Applicant:

Mr Victoire

Solicitors for the Applicant:

Bottoms English

For the Respondent:

In Person

ORDERS

That within 28 days of the date of these Orders, the Husband transfer to the Wife at her cost, all his interest in the property situate at Property R, being more particularly described as Lot [omitted].
That simultaneously with the transfer referred to in Order 1, the Wife discharge the mortgage in the name of the Husband attaching to the said property and indemnify and keep indemnified the Husband in relation to any such liability attaching to the property.
That in the event of the Wife not being able to effect the discharge of the current mortgage attaching to the property pursuant to Order 2 herein, then:
(a)That Christopher Wright Solicitor of Murray Lyons, Lake Street, Cairns (the trustee) be appointed trustee for sale of the said property;
(b)That the property be listed with an agent chosen by the trustee for sale by private treaty for 3 months. If not sold within that time or such other time as the trustee may decide, that there be an auction of the said property.
(c)That the trustee shall determine the listing price and the selling price after considering the valuation of the said property and the advice of the listing agent.
(d)That the proceeds of sale of the said property shall be disbursed as follows:
(i)Payment of the trustee’s costs;
(ii)Discharge of the ANZ bank mortgage;
(iii)Usual adjustments for rates and other charges;
(iv)Payment of the balance in its entirety to the Wife.
That each party otherwise retain all property in their possession or control as and for their own property absolutely.
That the Wife indemnify the Husband and keep him indemnified in relation to any future assessment of spouse maintenance or periodic child support and that this Order may be pleaded as a bar to any future claim in relation to spouse maintenance or periodic child support.
That the Wife be entitled to obtain passports for the three children, [X] born [in] 2002, [Y] born [in] 2003 and [Z] born [in] 2004, without the signature of the Husband, to enable the children to travel overseas for holiday with the Wife.
That this Order be sufficient for the purposes of the Australian Passport Act and the Passports Office to issue passports for the children only on the request of the Wife as the passports fall due for renewal.
That in the event of the Husband failing to effect the transfer required pursuant to the provisions of Order 1 herein, then the Registrar of the Federal Magistrates Court of Australia is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute such documents on behalf of such party.
Should there be any application for costs by either party, then submissions are to be filed and served upon the other party within 28 days of the date of this Order.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT TOWNSVILLE

CSC 241 of 2010

MS BARRY

Applicant

And

MR BARRY

Respondent

REASONS FOR JUDGMENT

These proceedings were commenced by Ms Barry, whom I shall refer to as “the wife”. The respondent to the applicant is Mr Barry, whom I shall refer to as “the husband”.
The original application filed by the wife sought orders in relation to a property settlement to be effected between her and the husband. Additionally, it sought, on an interim basis, an order for the payment of periodic maintenance to the applicant in the sum of $300 per week.
The orders that are finally sought in relation to this matter are significantly different from those which were originally contemplated in the application filed on 28 April 2010. It is perhaps necessary to explain, by way of the orders previously made, the history in relation to these proceedings.
The application filed on 28 April 2010 was originally returnable in Cairns on 19 July 2010. On that day, orders were made with regard to substituted service. It was necessary for those orders to be made because of the difficulties that the wife had experienced in relation to effecting service upon the husband. The orders included a notation as to the attempts in relation to service and were in these terms:
1. The Court having noted:-
a) That the Respondent was served by email on 4 May 2010 with the Initiating Application, Financial Statement and Affidavit of Ms Barry all filed 28 April 2010;
b)That Ms N, the Respondent’s daughter-in-law occupying the former matrimonial home at Property R, was served on 11 May 2010 with the Initiating Application, Financial Statement and Affidavit of Ms Barry all filed 28 April 2010;
c) That the wife’s initiating documents have come to the attention of the Respondent’s son, Mr S:
It is deemed that substituted service of the Initiating application, Financial Statement and Affidavit of Ms Barry all filed 28 April 2010 has been effected.
2. In substitution of the manner of effecting service provided for in the Rules, the Applicant is to effect service on the Respondent of this Order by:-
a) Emailing a copy of the Order to the Respondent’s email address [omitted];
b) Forwarding correspondence to the Respondent at the former matrimonial home being Property R.
3. The Applicant shall also serve on the Respondent by the means indicated at Order 2 above correspondence setting out the following:-
a) That the date for a further mention of this matter is 11 October 2010 at 11:30am;
b) Advising the Respondent that he ought to take steps as he may be advised to obtain legal representation or appear in person or other means with leave of the Court, at the further Mention of this matter;
c) Advising the Respondent that if he fails to appear at Court or organize representation, the Court may, on the Application of the Applicant wife, proceed to determine her Application on an undefended basis and make Orders sought by the wife including Orders for the sale of the former matrimonial home and distribution of sale proceeds.
4. The Applicant shall further serve a copy of this Order and the correspondence referred to in Order 3 above by posting an envelope containing this Order and the relevant correspondence to Respondent’s son, Mr S at Property R, with a covering letter asking Mr S to forward the envelope to the Respondent.
5. That service of this Order and the correspondence referred to in Order 3 be taken to have been effected seven days after the steps undertaken in the above Orders 3 and 4 have been undertaken.
6. The Applicant is to serve a letter on Mr D requesting that he advise the Court of the following:
a) The email address he has been using to communicate with the Respondent;
b) The contact details (including phone number) for the Respondent.
7. Within seven (7) days of effecting service of all documents as required by these Orders, the Applicant shall file an Affidavit evidencing service as provided for in these Orders.
8. This matter be listed for further Mention on 11 October 2010 at 11:30am in the Federal Magistrates Court of Australia at Cairns.
The matter then came back before the court again on 11 October 2010, at which time the proceedings were simply adjourned to 9 November at 9.30 am so that further inquiry could be made in relation to the proceedings.
On 9 November 2010 an appearance was made by a legal representative for the husband, and orders were then made, particularly with regard to the filing of a notice of address for service, and also relating to the disclosure of documents, including documentation relating to superannuation funds held by the husband, withdrawals from any superannuation accounts, and information as to the husband’s financial circumstances. The parties were also to take steps with regard to attendance at a financial conference which was arranged for 19 January 2011 in Cairns, and for the exchange of information required pursuant to the Rules of this Court.
On 19 January 2011 the husband was no longer legally represented and, following attempts at conducting a conference, it was noted that the matter had not settled and the Registrar conducting the conference noted that it was, “unlikely to resolve without a defended hearing”.
On 31 January, then, further orders were made with regard to additional disclosure and also directions which provided for the husband to file and serve a response in relation to issues with regard to a spousal maintenance application, brought by the wife.
The matter then came back before the court again on 2 March 2011 and, at that time, Willis FM made orders pursuant to the provisions of Section 77 of the Family Court Act 1975 with regard to the payment of urgent spousal maintenance in the sum of $200 per week, commencing as and from 2 March 2011. Additionally, orders were made for the matter to be further listed to proceed. However, that does not appear to have occurred in relation to the matter, and it was listed for a final hearing which proceeded before me on 11 August 2011.
This history in relation to the matter was necessary to show, first, of course, that the matter has been on foot for a period in excess of 15 months, and also to specifically make note of the difficulties that have arisen, particularly with regard to disclosure of information and the repeated orders that were made in that regard, as well as to note the making of orders with regard to spousal maintenance and the like.
The final orders that were sought in relation to this matter are detailed in the case outline which was prepared by counsel for the wife. Those final orders were made in two parts, either that there be a transfer to the wife of the husband’s interest in the property owned by him, situated at Property R and a payment to the wife of an amount of $21,022, or, alternatively, orders with regard to the sale of that property, payment out of various debts, but then, additionally, payments of amounts in relation to both lump sum spousal maintenance and lump sum child support.
Additionally, orders were sought with regard to the wife being entitled to obtain passports for the children, [X], [Y] and [Z], though that does not appear to have been opposed by the husband.
The terms of the final orders sought by the wife were as follows:
1) That within 60 days of the date of these orders, the husband transfer to the wife at her costs, his interest in the property at Property R (Property R) being more particularly described as Lot [omitted].
2) Simultaneously with Order 1:
a. That the wife discharge the mortgage affecting Property R.
b. That the husband pay to the wife the sum of $21,022.
Alternatively
3) That Christopher Wright Solicitor of Murray Lyons, Lake Street, Cairns (the trustee) be appointed trustee for sale of the property at Property R (Property R), being more particularly described as Lot [omitted].
4) That Property R be listed with an agent chosen by the trustee for sale by private treaty for 3 months. If not sold within that time or such other time as the trustee may decide, that there be an auction of Property R.
5) The trustee shall determine the listing price and the selling price after considering the valuation of Property R and the advice of the listing agent.
6) That the husband pay any advertising fees or other costs notified by the trustee to effect the sale. Such payments to be refunded to the husband from the proceeds of sale of Property R.
7) That the husband forthwith arrange for his son and other occupiers of Property R to vacate Property R within 28 days. Failing their vacating the property within 28 days, the trustee shall take all steps necessary to remove the occupiers of Property R from the property. Any costs incurred as a result shall be costs payable by the husband.
8) Any damage caused to Property R by the occupiers shall be the responsibility of the husband.
9) Pending sale of Property R, the husband shall continue to meet the mortgage payments, rates and water charges as they fall due. Any arrears shall be his responsibility.
10) That the proceeds of sale of Property R shall be disbursed as follows:
a. Payment of the trustee’s costs;
b. Discharge of the ANZ bank mortgage;
c. Usual adjustments for rates and other charges;
d. Adjustments required by Orders 4, 5. 6 & 7 above;
e. Balance divided:
i. 74% to the wife;
ii. 26% to the husband.
Lump Sum Spouse Maintenance
11) That the husband pay to the wife spouse maintenance from his share of proceeds of sale of Property R, in the form of a lump sum of $19,690.
Lump Sum Child Support
12) Pursuant to s.124 of the Child Support (Assessment) Act 1989, in respect of the period 13/10/2009 to 13/10/2019, the husband do provide child support for the children [X] born in 2002; [Y] born 2003 and [Z] born 2004 in the form of a lump sum of $77,910.
13) The annual rate of child support payable by the husband under any relevant administrative assessment for that said period is to be reduced by 100%.
14) The lump sum child support be paid by the husband to the wife from his share of proceeds of sale of Property R and the balance required be paid at settlement of the sale of Property R.
15) That the wife be entitled to obtain passports for the three children [X] born [in] 2002; [Y] born [in] 2003 and [Z] born [in] 2004, without the signature of the husband, to enable the children to travel overseas for holiday with the wife.
16) That this order be sufficient for the purposes of the Australian Passport Act and the Passports Office to issue passport for the children only on the request of the wife as the passports fall due for renewal.
Costs
17) That the husband pay the wife’s costs of and incidental to these proceedings on an indemnity basis or alternatively in such amount as the court may determine or as assessed by the Registrar of the Family Law Courts.
The husband’s position in relation to the matter was reflected in the two responses that were filed by him on 8 November 2010 and 15 April 2011. The response of 8 November 2010 related to the issue of property settlement, it being clear that, at that time, orders were not being sought specifically relating to a capitalisation of child support, nor were there any applications, at that time, relating to the payment of spousal maintenance. The orders were in these terms:
1) The Respondent Husband obtain a valuation of the real property at Lot [omitted] (“the property”) being the property of Property R and pay to the Applicant Wife a sum equivalent to 20% of the net value of the property (less the discharge cost for any mortgage encumbering the property) by way of a property settlement (“the payment”).
2) In the event that the Respondent Husband does not pay to the Applicant Wife the payment within sixty (60) days from the date of these Orders, then the Respondent Husband shall list the property for sale and the proceeds of sale shall be distributed as follows:
a. Payment to discharge the mortgage over the property;
b. Payment of any rates including arrears owing to the Cairns Regional Council;
c. Payment of any real estate commission and expenses;
d. Payment of any legal costs for the conveyance of the property;
e. The balance then payable is to be distributed as follows:
i. 80% of the balance to the Respondent Husband;
ii. 20% of the balance to the Applicant Wife.
3. The Applicant Wife retains sole right title and interest in the Kia Carnival motor vehicle registered in her name.
4. That unless otherwise specified in these Orders and except for the purposes of enforcing the payment of any money due under these Orders:
(a)Each party shall be solely entitled to the exclusion of the other to all property (including choses in action) owned by, in the possession of or held for the benefit of such party as at the date of these Orders;
(b)Each party hereby forgoes any claim they may have to any superannuation benefits belonging to or earned by the other;
(c)All insurance policies to become the sole property of the owner named thereunder;
(d)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
Insofar as the issue of spousal maintenance is concerned, the husband, then self-represented, filed a response on 15 April 2011. The orders that he sought there related only to child support, and it is unclear whether there was specifically any application relating to orders in relation to spouse maintenance other than to dismiss any application. In any event, the orders that the husband sought, as contained within the response of 15 April 2011, were as follows:
(1) That I pay lump sum of $20,000 for child support.
(2)That the administrative assessment of child support be ignored because it was made from false information provided to them by my wife, who advised them that I was working full-time when in fact, I was unemployed and have been unemployed since July 2009.
(3)That a proper assessment be made by Child Support Agency on my capacity to pay child support.
It was a little unclear as to exactly what the husband’s position was in relation to this matter and, therefore, at the commencement of the hearing, I sought to clarify exactly what the husband proposed in relation to the resolution of this matter. His indication to me was that he offered to pay the wife an amount of $20,000, “all up”. He said that this related to a capitalised sum in relation to the payment of child support, and when I inquired as to what might be his position in relation to property settlement, notwithstanding that there was an offer of 20 per cent of the net value of the property contained within the response filed 8 November 2010, the husband’s response was to indicate that there was no entitlement held by the wife in relation to the property, it being his position to say that he has purchased the home in fact before the wife had been born, she being a considerable number of years younger than the husband, and that the liability was paid out finally from a termination payment received by the husband not long after the parties had commenced their relationship.
His position, if you like, was to say simply, that the wife had made no contribution to the acquisition of the asset, nor to its conservation or maintenance and that, therefore, she had no entitlement in relation to same. Obviously there was therefore an enormous disparity between the position taken, therefore, by the wife in relation to the matter, as opposed to the position taken by the husband in relation to the proceedings.

I must say, at the outset, that the matter was a difficult one to determine. I make that comment without criticism of either of the parties, but note that, whilst the husband was legally represented at one stage during the proceedings, he was not legally represented at the time that the matter proceeded before me and, therefore, whilst he had the opportunity to cross-examine the wife, his questions were only of limited compass and, in fact, related more to seeking indications from the wife as to her opinions as to where certain items of furniture might have gone, when others, though not called in relation to these proceedings, had indicated that the house had been, “cleared out” by the wife.
Notwithstanding the difficulties that the husband had in relation to this matter, it perhaps was understandable that he did not cross-examine the wife to any significant degree in relation to this matter, it being clear that the positions between the two were so diametrically opposed that it was unlikely that either would be able to communicate directly with each other without there being some degree of animus that might arise.
I should indicate, however, that, having read the material in relation to the matter, including particularly the affidavit evidence that was filed by the wife in relation to the proceedings, she generally impressed me as to her circumstances in relation to this matter. The wife has not yet turned 29 years of age. She was born [in] 1982 and met the husband when she was only 18 years of age. At the time that the parties met in 2001, the husband was about 48 years of age and there was obviously a great chronological difference in relation to the two, as well as, perhaps more clearly, life and worldly experience.
In any event, the parties’ relationship blossomed and, [in] 2001, they married in the Philippines and commenced cohabitation. It is noted, however, that the first of the parties’ three children, [X], was born [in] 2002 and, therefore, there must have been an intimate relationship at least, between the mother and the father prior to the date of marriage, though, as I note, it is suggested that they did not cohabit prior to marriage.
In any event, the husband, following the marriage, returned to Australia, but the wife did not travel to Australia until after the child [X] was born. Within a year of his birth, a second child, [Y], was born [in] 2003, and the third of the parties’ three children, [Z], was born [in] 2004, only some 16 or so months later.
I make reference, particularly, to those aspects of the matter because there seems to have been a suggestion on the part of the father that the mother had not made a great contribution to the acquisition or maintenance of the parties’ assets, because of the fact that she was not generally in employment and, of course, also because of the fact that the husband brought that significant asset, the matrimonial home, into the relationship, at the time that they commenced co-habitation.
There must, of course, however, be balance in relation to the proceedings, and it is noteworthy that the husband was able to continue in employment during the period that the parties were together, albeit noting that there were, on occasions, separations between the parties, and that this occurred, particularly, noting that the wife was, it would appear, almost entirely responsible for the parenting of three very young children, which enabled the husband to continue in his employment.
It appears clear, also, that following final separation in October of 2009, the wife has continued sole responsibility in relation to the care and supervision of the children. In fact, since that time, the husband has not seen the children at all. In that regard, the husband made comment during submissions in relation to this matter that that was not his fault but had arisen as a result of the wife having taken the children away from him and telling him that he could not see the children.
It is noteworthy, of course, that that is simply not something that could be relied upon, the husband being, as I have indicated, far more worldly than the wife and having received legal advice, would no doubt have been aware of the fact that proceedings could and should have been brought by him, if he wished to participate in a relationship with the children.
No such application was made. It is significant in relation to this matter because, whilst the husband places no weight whatsoever on the responsibilities and obligations taken on by the wife in relation to this matter, she has clearly had the primary, if not almost exclusive role, in relation to the parenting of the children.
Whilst I only had limited opportunity to see the wife in the witness box, I was generally impressed by her. She was asked by counsel on her behalf about matters in relation to child support, and whilst since separation she has received virtually nothing other than $1600 voluntarily provided by the husband, and in more recent times, an amount of approximately $5000 paid by the taxation department, obviously from a seized taxation return on the part of the husband, she did not appear bitter or angry about the difficult role that she had, in relation to the parenting of the children.
She seemed more to be resigned to her role as the primary, if not exclusive, carer and provider for the children, but obviously sought some form of opportunity to provide for the future for the children, and saw that almost directly arising from an opportunity, if possible, to obtain an interest within the home at Property R, albeit with some liability attaching to it.
The wife did not appear to be overly critical of having been left behind, in some ways at least, by the husband, though I noted that when the husband indicated that he had formed another relationship and had another child, some four months old, she appeared a little more subdued in the hearing, and perhaps for the first time, recognised that the husband had moved on entirely with his life, and that she and, far more tragically, the children of their relationship, were no longer a consideration for him, in respect of the future. I thought that the wife was honest in the answers that she gave to the questions directed to her both by her counsel and also in cross-examination by the husband, and accept her evidence as contained within the various affidavits filed by her, in respect of these proceedings.
I also had the opportunity to read the affidavit material filed by the husband in relation to this matter, though I should note that there was only limited evidence available in relation to this matter, and it was necessary, obviously, for the counsel for the wife to cross-examine at some length, in relation to issues with regard to the husband and to his position in relation to this matter.
As cross-examination progressed, I was assisted in my assessment of the husband and his position in relation to this matter, though I must say that I was not overly impressed with the husband. He was an honest witness, albeit one who seemed to be totally lacking in any appreciation of what was relevant in relation to this matter. In particular, he was aware that the wife and these three young children were living in rented accommodation which was below a standard which properly accorded with their family needs.
Notwithstanding that, he indicated that his home at Property R had been rented at a below market rental to his son for some time, but then noted that since October of 2010, there had been no rent paid because his son had been unemployed, and he simply left it available for an adult son and his partner, who was in employment. It was somewhat staggering to think that the husband saw that as an appropriate use of the property over and above the needs of these three young children and their mother.
It was an indication of the husband’s lack of appreciation of his responsibilities in relation to his family, and the role that he should properly have been taking, in respect of the provision for those children, and he seemed nonplussed at any suggestion that he might not have acted in appropriate ways in relation to the parenting of these children. As I indicated, the husband, in his submissions to me, appeared almost to become distressed at the fact that the wife had taken the children away from him, without any appreciation whatsoever of his total lack of any proper parenting of the children, and of his total lack of any intent to have a real relationship with the children.
Similarly, the husband was unable or unwilling, though I am more inclined to think that he simply did not know, but more particularly, and unfortunately, did not care, what had happened with nearly $200,000 that had been received by him from termination payments and payments out of [superannuation omitted] during the latter part of 2009. He acknowledged that he had received a termination payment in excess of $21,000, as well as a payment out by [superannuation] of superannuation entitlements on 25 November 2009 of $176,000, but that of that total amount of $197,000, there was only somewhere in the vicinity of $20,000 to $25,000 remaining.
He indicated that he had approximately $4000 in an access account, and about $20,000 remaining in an investment type account, but he was unable to explain what might have otherwise happened with an amount in excess of $173,000 over a period of 23 months. The best he could explain in that regard was that it had been spent on, “living expenses,” though when pressed to explain what they might have been, was unable to indicate other than a payment of rent in the Philippines, he having re-partnered and living there generally with his new partner and their four-month-old child, had spent another $1700 to $1800 a week, over a 20 month period.
It appears that the husband has either invested unwisely to the detriment of the wife in these proceedings, because, of course, she does have an entitlement in relation to some proportion of those moneys, having been together with the husband for a period of some eight or more years during the time that the husband was in employment and, therefore, contributing to superannuation schemes as well as enabling the husband to continue in employment, because of the significant role that she took in relation to the parenting of the children.
Additionally, I was troubled by the attitude of the husband in relation to any responsibilities that might be held toward the children of this relationship. The husband simply had no appreciation whatsoever that he, as the children’s father, had responsibilities in relation to the children, not only with regard to the issues of the parenting and rearing of the children, but also with respect to the payment of support and provision for the children, now and into the future.
It was clear that the husband had no intent to make such payments and, in fact, apart from a payment made shortly after final separation, in the latter part of 2009, there was no other voluntary payment made whatsoever. As noted, additionally, orders were made for the payment of spousal maintenance in the sum of $200 per week from the orders of 2 March 2011, but no payment whatsoever had been made in that regard, and the husband seemed somewhat bemused that he should have any responsibilities in relation to the provision for the wife or to provide any proper explanation as to what might or might not have been the circumstances that led to the expenditure of such a significant amount of money over a period of some 20 months or so following separation.
As well, there was a total lack of any appreciation by the husband of what might have been a far more appropriate utilisation of the home at Property R, other than to make it available to his son and his partner at a reduced rental, and then, for a period of perhaps six or eight months, to have sought no payments whatsoever from the son so as to enable the son to, in some way, accumulate other funds, to purchase a property of his own.
He seemed to have no recognition at all of the fact that this allowed there to be a continuing depreciation in the total amount of the assets of the relationship between he and the wife, and as I say, appeared entirely bemused at any suggestion that she might have any entitlements in relation to the property, which included both the home at Property R, and the moneys received by the husband immediately following separation, from superannuation entitlements, and from termination payments.
Unfortunately, my final assessment in relation to the husband was that he was somewhat cunning in his position in relation to this matter. I did not think that he was as uninformed as he attempted to show in relation to the expenditure of moneys or the use of such funds. He seemed somewhat reluctant to suggest that there would be any information as to what might have been used by him in respect of moneys overseas, including providing only limited information as to the investment in various businesses in the Philippines.
I gained the distinct impression that the husband was particularly reluctant to answer any questions in relation to such matters, and unfortunately, I gained the impression that the information provided, including his information as to what funds might remain or what assets were owned by him or on his behalf overseas, was limited to what he knew had already been found, including, of course, information as to moneys held in bank accounts totalling in the vicinity of about $25,000.
Otherwise, the husband provided little, if any, information in relation to this matter, and it led to particular difficulties in respect of the assessment of what might be an appropriate resolution of property matters as between the husband and the wife.
I turn then to the law in relation to property distribution to be effected between parties.
Section 79 of the Family Law Act defines the court’s powers in determining applications for property settlement. Subsection (2) of section 79 provides that:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Section 79(4) sets out the matters the court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters include:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The approach to the determination of an application under section 79 is well established by authority (see, for example Pastrikos and Pastrikos (1980) FLC 91-987; In the Marriage ofLee Steere and Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage ofClauson (1995) FLC92-595 and In the marriage of Whitely and Whitely (1996) 92-684). The process ordinarily involves a multiple part procedure.
The court must first identify the assets, liabilities and financial resources of the parties and attribute a value to all assets, usually at the time of the hearing. Thereafter it must evaluate the contributions made by each of the parties as defined in section 79(4)(a) to (c). Finally, the court must consider the financial resources, means and needs of the parties, and other matters set out in section 75(2) in so far as they are relevant. An adjustment of the amount due to each party by way of contribution is then made by reference to the section 75(2) factors. It is not essential, however, that such an adjustment be made. Generally speaking, an adjustment is made because one party has greater needs and the other has stronger means. Section 75(2) is concerned with the process of arriving at a just and equitable result.
In determining what order the court should make under section 79, the court must be satisfied, in all the circumstances of the case, that the order to be made is just and equitable – not simply that the underlying percentage division of the net value of the parties is appropriate. In other words, in consideration of whether the overall result of the order in the property settlement proceedings, is just and equitable (see section 79(2)). It is the justice and equity of the actual orders that the court must consider Russell v Russell (1999) FLC 92-877.
Section 75(2) of the Family Law Act sets out the matters which must be taken into account by the court when determining applications with respect to maintenance. This is the prospective element of the determination of the application for property settlement. The assessment of contributions during the marriage is the retrospective element.
In the Marriage of Ferraro the Full Court said:
A now well established line of authority in this Court indicates the approach normally to be taken in the exercise of the discretion in s79 proceedings. That approach is firstly to ascertain the property of the parties at the time of the hearing, then to consider “contributions” of the parties within paras (a) to (c) of s79(4), and then to consider the matters in paras (d) to (g), more especially para (e) which takes up by reference the provisions of s75(2) and which are generally referred to as the “section 75(2) factors”.
There is, however, another issue that needs to be considered. The reason that it needs to be considered, is that it is an argument in relation to the possible wastage or improper expenditure of the matrimonial property, as the wife alleges, by the husband. If the wife is successful in that argument, then there would be a considerable change in the assets and, more specifically, significant alteration to any distribution.
I am mindful of the decision of his Honour, Baker J in Kowaliw and Kowaliw (1981) FLC 91-092, where his Honour specifically turned his mind to issues in relation to the position with regard to the possible wastage of matrimonial assets and, if found to be the case, responsibility in respect of same.
Baker J said, at page 76,644 of the decision in Kowaliw, the following:
As a statement of general principle, I am firmly of the view that financial losses incurred by parties, or either of them in the course of the marriage, whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally), except in the following circumstances:
(a)where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b)where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.

More recently, Federal Magistrate Ryan, as she then was, in AB & GB (No.2) (2005) FMCAfam 402 considered a number of previous decisions of the Full Court, including the more recent decision of the Full Court of the Family Court in Re NHC and RCH (2004) FLC 93-204 and drew additionally on the ex judicial writings of Justice Boland of the Appeal Court to distil a more comprehensive set of principles. Those principles were as follows:
(i)“The principles in Kowaliw is not a fixed code.
(ii)Kowaliw is a useful guideline for dealing with cases involving lost assets or income.
(iii)In cases involving waste there must be a proper reason for adopting a non Kowaliw approach.
(iv)If the losses occurred in the course of the pursuit of the objectives of the marriage then such losses should be shared by the parties although not necessarily equally.
(v)The economic consequences of waste must be dealt with in a just and equitable manner.
(vi)The economic consequences (loss) may be treated as a premature distribution of the asset pool and notionally added back as the asset of the party who had its sole benefit.
(vii)Taking the premature distribution into account in a general way pursuant to s.75(2)(o) and applying the cumulative outcome of the s.79(4) and s.75(2) findings to the smaller depleted asset pool may offend s.79(2) notions of justice and equity.
(viii)Where the asset pool had been seriously depleted it may be that only by giving the premature distribution is full dollar value that justice can be given.
(ix)The premature distribution concept is not restricted to post separation transactions.
(x)Where the monies have been shown to have been reasonably disposed of the notional add back approach should be the exception and not the rule.
(xi)Notional adjustments are not limited to wasted assets but may also include property that has been bona fide disposed of.
(xii)The source of the funds is relevant.
(xiii)Notionally included assets may include unascertained assets, even if the precise value is not known.
(xiv)Even if it does not involve waste, the economic consequences of a significant reduction in the asset pool must be considered”.
The set of principles outlined by Federal Magistrate Ryan, address comprehensively those matters which were raised by Justice Baker in Kowaliw, over 20 years ago. As Federal Magistrate Ryan appropriately noted in the fourteenth point of the set of principles:
“Even if it does not involve waste, the economic consequences of a significant reduction in the asset pool must be considered”.
I shall return to this matter later in these reasons.
Accordingly, there is a four step process to be followed, and the first is to, as best as one can, assess what the assets of the parties are. Normally, such an assessment is done as at the time of trial, but here, there is a real difficulty in that regard, as whilst there remains the property at Property R, with, it would appear, a value of about $310,000, a Kia Carnival motor vehicle with a value of about $21,000 and some furniture and other items of only limited value, there is also a need to, in some way, consider what is the position with regard to superannuation and the lump sum that has been received by the husband.
It should, in my view, though it cannot be traced, be included in relation to these proceedings, because to do otherwise would be to fail to recognise what appears to be wastage or dispersal of the moneys without any explanation or recognition of their significance in relation to these proceedings. In that regard, therefore, I find that the total assets of the parties, including the property and motor vehicle as well as superannuation entitlements and termination payments, is $528,000.
Deducted from that, of course, must be the existing mortgage on the home which, again, as best can be assessed in relation to this matter, is approximately $42,000, which leaves an equity for the purposes of distribution in this case $486,000.
The second step is to consider the issue of contribution and it must be recognised, and I think is recognised on the part of the wife, that there has been a very great initial contribution by the husband in relation to these proceedings. The home, as best one can assess at the time of the commencement of the relationship, had a value of about $210,000 and was subject to a mortgage of approximately $20,000. The initial contribution, therefore, in relation to those assets was about $190,000 plus some value in relation the husband’s superannuation entitlements, though it is a little difficult to make any assessment there other than to note, as was recorded by counsel for the wife, that as at 20 June 2004, some three years or so after marriage, that the husband’s [omitted] superannuation entitlement was $73,218.34 and as at June 2003, some two years or so after marriage, that the husband’s [superannuation omitted] entitlement was $38,000.
The total of those is approximately $100,000 but unfortunately there was no information available as to what might have been the actual value at the time of commencing the relationship. Certainly, it would appear that if the superannuation entitlements were approximately $176,000, as at November of 2009, when they were attained by the husband, they had a value of at least one half of that, about $85,000 as at the commencement of the relationship. Accordingly, the husband’s contribution at the commencement of the relationship was virtually 100 per cent of the total value of the matrimonial assets at that time.
The wife acknowledged in her material that she had brought little, if anything, into the relationship and that, perhaps, is a reflection not only of her lack of skills, but also of her very tender years, only being some 18 years of age at the time of commencing the relationship with the husband, and in fact, not even having turned 19 by the time the parties married.
That initial contribution is significant but it must be weighed against the contributions that were made subsequent to the marriage. The wife’s contribution as a wife, homemaker and mother cannot be undervalued, and in that respect, it takes on an enormous quality in light of the fact that the husband provided little, it would seem, in relation to assistance for the care and supervision of the children, though the husband certainly suggested that as they got older, he had been responsible for transporting them to school and spending time with them when he returned from work.
More particularly, of course, since separation, the wife has continued the role of mother of the children to the total exclusion of the husband, and that is a choice that has been made by him and must again be a factor that is significantly considered in relation to these proceedings.
It is difficult, therefore, to look at the balance to be taken in relation to the contributions made by the parties, it being acknowledged on the part of the wife that the husband had brought in virtually the entirety of the assets as at the commencement of the relationship, but that the wife had then made a significant contribution as a wife, homemaker and mother during the relationship and subsequent to separation, leading up to the time of hearing.
It was submitted on the part of counsel for the wife that the appropriate division when considering those factors of contribution was in a proportion of 70/30 in favour of the husband. The husband did not specifically address me in relation to that particular aspect of the matter, but as I indicated at the commencement of these reasons, his position was certainly to say that, in relation to the financial aspects of the relationship, he had made the entire financial contribution and that therefore, the wife was not entitled to any property.
There must be, obviously, a recognition of the financial contribution at the commencement of the relationship by the husband, but just as clearly, as I have indicated, there needs to be balance looked at in relation to the wife’s role in respect of the relationship, both maintaining and improving the property, she setting out in the material the works that she performed upon the home, including particularly landscaping works as well as that enormous role taken by her in relation to the parenting of the children.
Having as best I can considered all in that regard, I am very much of the view that there must be a weighting in favour of the husband, because of that initial contribution by him and that an appropriate distribution of property, when one considers the contributions of the parties up to the time of trial, would be 80/20 in favour of the husband.
In passing, though not necessarily determinative in relation to this matter. I note that the husband in the response filed initially on

8 November 2010, had made reference to an entitlement of the wife of an amount equivalent to 20 per cent of the net value of the property and whilst that obviously was reflective of other factors in relation to the matter, there was, at least at that time, some recognition of some entitlement held by the wife, in relation to property settlement.
The third step in relation to any property determination is to consider issues with regard to those matters arising pursuant to the provisions of section 75(2) of the Family Law Act. In particular here, there is a clear need to consider matters that arise pursuant to the provisions of section 75(2)(a) - (o) of the Family Law Act. Section 75(2) is in these terms:
(2) The matters to be so taken into account are:
(a) the age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party's role as a parent; and
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.
Obviously here, the age and state of health of each of the parties is a relevant consideration. The wife is young and clearly makes no suggestion that she is not in good health, both mentally and physically. From the husband’s perspective, he certainly suggests that his age is a significant barrier to future employment and in his submissions to me in relation to this matter, suggested that there was little, if any, prospect for him, as a man over 55 years of getting remunerative employment.
It is a factor to be considered but it needs to be balanced against the fact that the husband appears, certainly for the last two years or so, to have not taken any real steps to seek employment, nor has he provided any evidence as to medical impairment in that regard. I am inclined, unfortunately, to the view that the husband has been determined to limit his employment or to exclude employment altogether from any considerations in relation to this matter and it is clear that that circumstance needs to be taken into consideration, particularly when it has had such a direct influence on the provision of support for the children of the relationship.
The income, property and financial resources of each of the parties and their capacity to obtain appropriate gainful employment has also been commented upon by me in relation to this matter, as is the concern that I have with regard to wastage of assets of the parties by the husband. The clear inference that can be drawn from the unexplained dissipation of an amount in excess of $170,000 in less than two years is that the husband has either wasted those moneys or has disbursed them in a manner that has meant that they had been unable to be located in relation to this matter. It is a factor of some significance, particularly when one considers the future needs in respect of this matter.
Additionally, consideration needs to be given to the fact that the husband has taken no role whatsoever in relation to the care or control of the three young children of the relationship and has not sought any involvement in their lives. Balanced against that is the fact that the wife has had total responsibility in relation to these children, not only since separation but it would seem almost entirely during the whole of the children’s lives, the father having taken little real involvement in that regard.
There must be consideration of that obligation and responsibility on the part of the wife and it is a factor which needs to be considered in relation to these proceedings.
Additionally, and perhaps in favour of the husband, needs to be consideration of the commitments that each party has, and whilst the wife has the responsibilities for providing for the children of this relationship, it would not be appropriate to fail to recognise that the husband now has another child of his current relationship, a baby of only four months of age, and that that needs to be considered in relation to these proceedings. The husband has a commitment in relation to the provision for that child, though, of course, he, like the wife in these proceedings, has a similar obligation and responsibility in relation to the maintenance and support of the three children of this relationship and the husband has generally failed in any real respect to meet those responsibilities with regard to the children.
It is unclear what entitlements the husband might have in relation to other pensions or benefits, though his financial statement filed on

8 November 2010 indicated that he received no salary or wages, but was receiving income from the rental of the Property R property, though, as I noted before, that appears to have stopped, he says, in October of 2010, though he swore on 8 November 2010 that it was still being received.
It, again, is an indicator of the concerns that I have with regard to veracity of the evidence generally given by the husband, in relation to this matter.
It is noteworthy that section 75(2)(g) requires that consideration be given and account taken of each party being able to maintain a standard of living that in all circumstances is reasonable. It is a relevant consideration because, whilst there is little information as to what might or might not be happening in relation to the husband’s life, it is clear that the wife and the children have lived in circumstances which have been less than appropriate whilst the husband’s interest in the home and the wife also held an interest in the home at Property R, has not been facilitated, nor has there been any real provision made in respect of ensuring the children’s needs and, collaterally the needs of the wife have been met, such that they had been required to live in circumstances which had been less than reasonable, in all consideration of the matter.
Child Support and spouse maintenance had been required to be paid in relation to this matter, and other than the one payment to which I referred of $1,600, in or about the latter part of 2009, as well as the seizure and holding of a tax return of $5,000 by the Child Support Agency, no child support has been paid, nor has the husband made any attempt whatsoever to meet the obligations that arose in relation to the payment of spouse maintenance.
It is a matter I will come to later in these proceedings, but it is clear that it is a factor which needs to be looked at in relation to any adjustments in respect of contributions, including future contributions because there is little likelihood of any assistance voluntarily being provided by the husband to the wife, to meet the needs relating to these children.
The duration of the relationship was not enormously long. It would appear that it was one of about eight years, though the consequences, particularly for the wife, have been dramatic. As a young woman of 18 years of age, she married and within a period of three or so years thereafter was the mother and since 2009 at least, the sole provider for three young children, at the present time only nine, eight and seven years of age. It is a factor of very real consequence because whilst the marriage is not long, as I have said, the consequences of the marriage have long term effects in relation to the wife.
She wishes to continue her role as a parent to these children but also needs to recognise, as she does, the obligations to provide for the children, and to that end sought spousal maintenance to enable her to provide for herself, into the future. The husband has not provided that assistance and it makes the contribution by the wife, when it is recognised that she has had to take on that sole responsibility in relation to providing for the children, even more significant.
All in all, there are a number of factors which weight heavily in relation to a significant adjustment being affected in favour of the wife pursuant to the provisions of section 75(2) of the Family Law Act. Whilst there may be some matters that need to be considered in favour of the husband, I am of the view that it is appropriate that there should be an adjustment in the vicinity of a further 20 per cent in favour of the wife, such that, in the final wash up, the appropriate entitlements to the matrimonial assets is a 60/40 distribution subject to any other considerations that need to be addressed.

The total assets for distribution, as I have calculated previously, is $486,000 and therefore the wife’s entitlements in relation to same of

40 per cent would be quantified as $194,400.
The wife retains the motor vehicle to which I have referred, valued at about $21,000 and thereafter there is little of any real value, each party acknowledging that the chattel items and white goods were not of very great compass, and in fact there appears to be little information whatsoever as to what might be a figure placed on the value of those particular assets. There should therefore be a cash adjustment in favour of the wife of $173,400.
Before turning to an assessment of whether any order to be made in relation to this matter would be just and equitable, there needs of course, to be consideration of two other matters that arose in relation to this matter. The first to the question of whether there has been wastage of the assets, and in that regard I have unfortunately found that there has clearly been a lack of information, such that at the very least, the husband has either recklessly or wantonly decreased the value of the assets, by dissipating almost in its entirety, monies received with regard to both termination payments and superannuation entitlements. I am more inclined however to find that there has been a knowing dispersal of such funds, such that they were unable to be located.
It is a factor which needs to be looked at in relation to this matter, because the wife has received no benefit of any real nature whatsoever in respect of those assets and they should, in my assessment, be entirely attributable to the husband when it comes to any receipt by him in relation to entitlements. As I have included such sums in their full value in relation to calculations, no further adjustment is required.
I note also that the argument put on the part of the wife is to suggest that there should be an adjustment made to her, because of what she says was ongoing family violence at the hands of the husband throughout the relationship, except for a period when a domestic violence order was in place, and that therefore there should be a further adjustment to take into consideration the difficult circumstances which needed to be looked at, in relation to her contribution as a result of domestic violence perpetrated by the husband.
In this situation, however, I’m not necessarily enamoured of such a finding being able to be made. It would appear that the wife continued her role primarily as wife, homemaker and mother and whether or not there was during the relationship domestic violence, and of course it was specifically denied by the husband, there appears to be little evidence that would suggest that the wife’s performance of her role within the relationship was in any way hampered as a result of domestic violence, and therefore it is not appropriate, in my assessment, for the there to be any adjustment made as to the value of the contribution made by the wife as a result of being required to deal with issues of domestic violence within the relationship. In that respect I do not intend, therefore, to adjust the figures in relation to this proceeding.
I am satisfied otherwise, therefore, that a distribution of the entirety of the matrimonial assets on a basis of a 60/40 adjustment in relation to the matter in favour of the husband would be appropriate and that that is reflected in the receipt by the wife of $173,400 and retention of the Kia motor vehicle.
Additionally, however, and needing to be considered in relation to this matter, is the issues that arise with regard to capitalisation or payment of lump sum spouse maintenance and lump sum child support. In relation to spouse maintenance, it is contended on the part of the wife that there should be a payment by way of lump sum spouse maintenance of $100 per week from 2 March 2011, that being the date when the urgent order was made for $200 per week and onward, for a period of four years, so as to enable the wife, as best she is able, to retrain herself and to re-establish herself.
It is suggested that it would be an appropriate sum, and in light of the fact that the parties married when the wife was very young, that three children were born in quick succession, and that the wife has taken on the responsibilities in relation to the children, it is not, in my view, unreasonable to expect that there should be some contribution made with regard to provision for spouse maintenance, and the amount sought at $100 per week for a period of four years, so as to enable the wife to, as best she can, retrain and provide for the future, is an appropriate payment.
It is suggested, however, that in light of the fact that no payment whatsoever in relation to spousal maintenance has been made, notwithstanding the orders of Willis FM of 2 March 2011, that it is appropriate that there should be a consideration of a lump sum payment being required and using the table of multipliers from the Institute of Actuaries of Australia and an interest rate of three per cent per annum, that this would be a lump sum of $19,690.
In my view, the argument is virtually unanswerable, and whilst the husband’s position was simply to say that the wife was entitled to nothing, I am far more inclined to the view that the husband acknowledges that there is a need for the wife to have some spouse maintenance paid, she needing to retrain and provide for herself and the children into the future. Whilst the husband says that he has no funds available, I have little confidence that that is the case, and in any event, would think that the husband has many skills that could be utilised with regard to obtaining employment both within Australia and within the Philippines, if he chose to do so, and that it has been his determined choice not to seek employment pending, at least, the determination of these proceedings.
I am satisfied, therefore, that when one considers the matters that are set out, specifically in section 72 of the Family Law Act relating to a liability of a spouse to pay maintenance, that there is a need shown on the part of the wife, and a capacity, if properly applied, on the part of the husband, to provide support, such that the order, including the capitalisation for a period of four years is appropriate in all the circumstances.
Additionally, I note that there is, specifically, an application seeking a capitalisation of child support payments in relation to the children. Here, there have been orders made and an assessment attended to in relation to the payment of child support. Notwithstanding that, there has only been one instance when the husband has voluntarily made a child support payment, and one instance where the husband has effected a further payment as a result of the seizure by the Child Support Agency of a tax return. It would appear that it was for the year 2008, the husband indicating that that was the last return that he had made in relation to arrangements, now and into the future.
I am satisfied that there is a basis upon which there is that rarely exercised power under the provision of the Child Support Assessment Act to make a lump sum order in relation to the Child Support Assessment. In that regard, I was referred specifically by counsel for the wife to the decision of Lindsay FM in Aitken & Porteous (2009) FMCAfam 783 where Lindsay FM specifically gave consideration to the powers that were available pursuant to the provisions of section 124 of the Child Support Assessment Act. At paragraph 22, Lindsay FM said:
Section 124 deals exclusively with the “old” power to order non-periodic child support. As already noted, the criteria for making the order, and in particular the picking up by reference of most of the s.117 departure order criteria, are near identical to s.123A.
His Honour then went on at paragraph 27 to say:
There now exists a statutorily created distinction between non-periodic orders which are to be credited against the existing assessments and those which have no such limitation. The “old” power enables an order to be made in non-periodic form and a concomitant reduction to be made to the amount payable under the assessment. Special circumstances need to be found for the non-periodic payment to be in addition to that provided for the existing assessments. Clearly the power is intended to provide for the making of a non-periodic order, independent of the state of and terms of any administrative assessment. The exercise of the power involves more than merely changing the form of the obligation – it can be changed substantively. There is no need to go through a preliminary process of departing from the order.
Counsel for the husband then confirmed that the application made with regard to a capitalisation, in other words, a payment of a lump sum by way of child support, was made pursuant to section 123(1)(a) of the Child Support Assessment Act, and noted that there was a significant number of factors to be considered in relation to determining whether or not it is appropriate for there to be a non-periodic order made, in relation to the payment of child support.
Counsel for the wife argued here, that it was probable and should be found that the husband will, as best he can, continue to reside overseas to avoid the payment of child support, and that appears to be reinforced by the fact that the husband has now formed another relationship with a woman residing in the Philippines, and that there is a four-month-old child of that relationship. The husband’s own evidence was to the effect that he would more than likely return to the Philippines to continue his relationship with his new partner, and that there was no clear indicators whatsoever of what otherwise might be his future intent.
I am certainly of the view that the husband’s intent, is to avoid in all ways possible his responsibilities with regard to provision for the children of this relationship and that there is every likelihood that he would, therefore, continue to reside overseas, so as to avoid the payment of child support. Counsel for the wife, therefore, submits that it is only appropriate that an order be made, pursuant to the provisions of section 124 of the Child Support Assessment Act for a payment of lump sum child maintenance.
The husband contends that any assessment in relation to child support has been brought about as a result of false information provided by the wife to the child support agency, and that he has no capacity to earn. However, in cross-examination, he acknowledged that he had certain skills, including, for a number of years, working in a role as a CEO within a [omitted], and in that regard, had management skills which were not easily acquired by young people. It may not be that the husband is able to obtain as “high flying” or remunerative a role as that which he might previously have had, but I have little doubt that the husband could, if he chose to do so, obtain employment, and it was acknowledged by him that if he sought and obtained employment it would be, certainly, a situation where he would be able to earn a reasonable income and, using the basic wages available, an amount of, one would think, at least $50,000 per annum.
Counsel for the wife has utilised that figure as one for the purposes of calculation of child support, and noted that upon that basis, and with the wife not receiving any income at all other than various family benefits, that the payment of child support for the three children the subject of these proceedings, would be fixed at a rate of $159 per week. If that were the case, then payments for the children, calculated as best one could over time, and using a table of multipliers, would mean that from 13 October 2009, which is a date one week after final separation on 6 October 2009, until 13 October 2020, would be an appropriate period for calculation, as the middle child, [Y], would then be 17.5 years of age. The older of the three children, [X], would be 18.5, and the youngest of the children, [Z], would be about 16.5 years.
Using the three per cent table, again, there would be a lump sum payment of $77,910, though I note, of course, in that regard, that there have been payments made, one voluntarily, and one of a non-voluntary nature, totalling $6600 and, therefore, if there were to be a lump sum payable in relation to this matter, and I consider that it is one of those rare occasions where a calculation needs to be done and a lump sum figure attached in relation to these proceedings, then the appropriate sum to use would be a sum of $71,310, taking into consideration the payments that have already been made.
Accordingly, there would be a total, therefore, of $91,000 to add on to amounts to be received by the wife by way of property settlement over and above that amount to which I have already referred. In my assessment, it is proper that that should occur in relation to this matter. It is one of those rare occasions where there is no confidence that the husband will make any payments in relation to either spousal or child maintenance, notwithstanding orders and assessments to that effect, and in fact, will determinedly avoid any capacity to make such payments, including continued determination to live outside the jurisdiction of the Commonwealth of Australia, so as to avoid such arrangements.
I am satisfied, therefore, that the final sum that should be used in relation to any calculation here would be an additional $91,000, and that needs to be taken into consideration in relation to these proceedings.
It would mean that the total amount to be received by the wife inclusive of any entitlement to property and capitalised spouse maintenance and child support would be $264,400.
The Property R property has a nett value of $268,000 and in light of the amount to be received by the wife, I am satisfied that it would be just and equitable for the husband to transfer to the wife his interest in the Property R property, subject to the wife indemnifying the husband in respect of the current mortgage of $42,000.
I am asked to make orders in relation to either the transfer of the property at Property R, with an adjustment in relation to the entitlements of either party in relation to this matter and consider that to be appropriate. As well, I am asked to make orders with regard to the issue of passports. At least insofar as the issue of passports for the three children are concerned, there appears to be no objection taken by the husband in that regard, and I intend to make such an order.
I am asked also to consider the issue of costs in relation to this matter, however intend to order that if costs are to be sought, that written submissions be made by either party within 28 days of today. Otherwise however, the orders of the court will be:

I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of Coker FM

Date: 8 September 2011