Berlot & Thereciana
[2007] FMCAfam 472
•16 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BERLOT & THERECIANA | [2007] FMCAfam 472 |
| FAMILY LAW – Property – full and frank disclosure – undisclosed bank account opened post-separation – child support as section 75(2) factor – husband living overseas. CHILD SUPPORT – Application for departure order – application for lump sum child support. |
| Family Law Act 1975, ss.75, 79 Child Support (Assessment) Act 1989, s.116 |
| CK & SML [2004] FMCAfam 119 Kannis & Kannis [2002] FamCA 1150 Pierce v Pierce (1999) FLC 92-844 |
| Applicant: | HERMANN SIGWIN BERLOT |
| Respondent: | NETTJI THERECIANA |
| File Number: | NCM 3200 of 2003 |
| Judgment of: | Mowbray FM |
| Hearing dates: | 14, 15, 21 December 2005 15 February 2006 |
| Date of Last Submissions: | 29 May 2006 |
| Delivered at: | Canberra |
| Delivered on: | 16 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr S Austin |
| Solicitors for the Applicant: | Cunningham and Adam |
| Counsel for the Respondent: | Ms A Tonkin |
| Solicitors for the Respondent: | Blaxland, Mawson and Rose |
ORDERS
The husband pay to the wife the sum of $23,800 within 28 days.
The husband do all acts and things and execute all documents to transfer to the wife all of the husband’s right, title and interest in the property situated at 10 Havelock Street, Mayfield in the State of New South Wales, comprising Certificate of Title Lot 6 of Section F in Deposited Plan 3626.
The parties do all acts and things and execute all necessary documents to sell the property and improvements situated at 409/2 Keem Street, Trinity Beach in the State of Queensland, comprising Certificate of Title Lot 9 in Survey Plan 106699 with Title Reference 50243141 on the conditions set out in these Orders.
For the implementation of Order 3:
(a)The property be listed for sale within 14 days.
(b)The property be listed for sale by private treaty with a licensed real estate agent agreed between the parties, and in default of agreement with an agent chosen by ballot from the choices of the parties.
(c)The listing price be as agreed between the parties, and in default be the listing price nominated by the listing agent.
(d)In the event of the property not being sold within three months the property be put to auction on the following terms:
(i)The auctioneer be agreed between the parties, and in default of agreement with the auctioneer chosen by ballot from the choices of the parties.
(ii)The auction take place within six weeks of the deadline date for sale by private treaty.
(iii)The reserve price be agreed between the parties, and in default of agreement the reserve price nominated by the auctioneer.
(e)In the event of the property not being sold by auction or private negotiation within a further seven days the parties put the property to successive auctions within further six week periods until sold, upon the same terms and conditions as applied to the first auction.
Upon completion of the sale of the Trinity Beach property the proceeds of the sale be applied as follows:
(i)To pay all costs, commissions, expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of the property.
(ii)To discharge any mortgage secured on the property.
(iii)To discharge any mortgage secured on the Mayfield property.
(iv)To discharge all child support arrears and penalties in respect of the child Monika Berlot born 10 October 1995.
(v)To deposit $25,000 into an interest bearing bank account in the names of each of the parties with both parties to sign withdrawals.
(vi)To pay the balance to the husband.
If the husband fails to pay his child support obligations for Monika as assessed under the Child Support (Assessment) Act 1989 the wife may apply for an order that the arrears be paid out of the monies referred to in Order 5(v) or that all or part of those monies be applied to lump sum child support.
Subject to Order 6 the parties take all steps necessary to pay the monies referred to in Order 5(v) to the husband when Monika attains the age of 18 years.
Except as otherwise specified in these orders, each party be solely entitled to any interest in property, including any chattels, superannuation and choses in action, held in the name of that party.
Each party have liberty to apply on seven days notice on matters concerning the implementation of these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
NCM 3200 of 2003
| HERMANN SIGWIN BERLOT |
Applicant
And
| NETTJI THERECIANA |
Respondent
REASONS FOR JUDGMENT
This matter involves the distribution of the property of the parties following dissolution of their marriage in February 2004.
The orders proposed by the applicant husband at the hearing would provide for an effective distribution of the assets and financial resources in proportions of 55% to him and 45% to the respondent wife.
The respondent wife has put two alternative propositions. The first would see her receiving 70-80% of the assets. Alternatively she seeks 60-65% of the assets plus a child support departure order including lump sum child support for a discrete period.
The main issues are:
·the failure of both parties to provide full and frank disclosure
·whether the husband’s Union Commercial Bank account in Phnom Penh should be included in the property pool
·the husband’s propensity to pay child support
·whether the Court should consider making a child support departure order with a lump sum payment
·whether child support should be considered as one of the section 75(2) factors.
Background
The husband is almost 63 and the wife 43. They first met in Sumatra in Indonesia in 1993 and married in August 1994. At that time the wife had a son, Clajs known as Esa Janara who is now about 15. The husband also had a number of children from a previous marriage who were not living with him. The child of the marriage, Monika, was born in October 1995 and is now almost 12. The parties separated in October 2001 while living in Cambodia. The wife returned to Australia with Esa Janara and Monika in December 2001.
The parties lived in a number of locations during their marriage with the moves being largely due to the husband’s work:
·they were married in Cooma, New South Wales, but then spent a couple of months in Sumatra arranging visas for the wife and her son
·from their return to Australia until May 1995 they lived in Cooma where the husband was employed by SMEC International
·from May 1995 to August 1996 they again resided in Sumatra where the husband worked on a project for SMEC
·they then returned to Cooma for a number of months before the husband’s work took them to Papua New Guinea from about February 1997 to December 1998
·from January 1999 to January 2001 they resided in Francistown and Gaborone in Botswana
·this was followed by a move to Phnom Penh in Cambodia where the husband worked on a SMEC project until December 2001
·during this last period the marriage broke down.
The husband has since remarried and has two further children, Andrew who is almost 4 and Michelle almost 3. His current wife also has another daughter. At the time of the hearing the husband and his family were living in Ethiopia where he was employed.
The wife has not repartnered. She lives in Cooma with Esa Janara and Monika.
Further relevant facts will emerge in the balance of these reasons.
Relevant law
The approach to the determination of an application under s.79 of the Family Law Act1975 is well established by authority, requiring a four-stage process.
The first stage involves making a finding as to the parties' assets and liabilities – the property pool. The second stage requires consideration of the contributions of various types made by the parties, and, if appropriate, an alteration of the property interests. The third stage involves consideration of such of the matters set out in s.75(2) of the Act as are applicable and again, if appropriate, altering the interests of the parties in the property. The final stage requires an overview of the result derived from the second and third stages to determine if overall that result is just and equitable.
The wife has also sought as an alternative a departure order under the Child Support (Assessment) Act 1989. This issue is considered later in these reasons.
Full disclosure
The duty to make a full and frank disclosure of your financial position is unquestioned. This duty is discussed in some detail by Walters FM in CK & SML [2004] FMCAfam 119 from [69].
Walters FM quotes from Kannis & Kannis [2002] FamCA 1150 where the Full Court said at [51]:
Whether the non-disclosure is wilful or accidental, is a result of misfeasance, or malfeasance or nonfeasance, is beside the point. The duty to disclose is absolute. Where the Court is satisfied the whole truth has not come out it might readily conclude the asset pool is greater than demonstrated. In those circumstances it may be appropriate to err on the side of generosity to the party who might be otherwise be seen to be disadvantaged by the lack of complete candour.
Counsel accepted that there had not been full and frank disclosure prior to the hearing by both parties. In particular:
·the husband did not disclose until under cross-examination a bank account held with the Union Commercial Bank in Phnom Penh. This account had a balance of $US42,403 or approximately $A57,000 at the time of the hearing
·the figures for the husband’s income contained in his affidavits are the base amounts without other benefits and allowances to which his employment entitled him. In all but one year they were not subject to Australian tax. This information was also only gleaned under cross-examination
·the husband has provided no financial statements for the H Berlot Superannuation Fund, a self managed fund which he administers, apart from an interest advice for the 2004/2005 financial year which was tendered at the hearing
·the wife asserted in her affidavits that the husband had paid no child support. She agreed under cross-examination that this was not only wrong but when she put it in her affidavits she knew it was wrong. On the second day of the hearing she tendered a Child Support Agency Transaction Statement of 6 December 2005 which she said she had received by post the previous evening, and a child support assessment dated 22 July 2005
·the wife disclosed at the hearing for the first time that she has an additional bank account, with the ANZ Bank, into which her wages were paid. She gave various reasons for not mentioning this earlier, including that she had not been ready to tell her solicitor as her life was very hard, she had not had time and she had a lot of things to do and could not manage. The bank statements she provided for this account were incomplete
·the wife failed to provide any statements for her Westpac account as she said she did not have any and it was too expensive to obtain them from the Bank.
Ms Tonkin for the wife submits that the wife did not have any knowledge of the husband’s financial circumstances, both during the marriage and later. The husband has not been frank with the Court. The passage from Kannis above is therefore apposite: “In those circumstances it may be appropriate to err on the side of generosity to the party who might be otherwise be seen to be disadvantaged by the lack of complete candour.” The husband not having presented a full picture to the Court, I should “make a robust decision in favour of the wife”.
Mr Austin accepted that there was no good explanation for the husband’s failure to disclose all his financial circumstances, although he had been candid from the commencement of the hearing on such circumstances. But this was “a two way street”. The wife’s credit was equally impeached by her shortcomings.
Mr Austin asserted that before I could apply the principle from Kannis I must be satisfied on the balance of probabilities that the full truth had not been revealed. The true picture had now been disclosed. Furthermore because of what had come out at the hearing there was not any significant contested factual issue on the assets which required the Court to accept one person’s word over another.
I generally agree with Mr Austin despite some lingering doubts whether I have been provided with the full picture by both parties. The behaviour of the parties, despite some extenuating circumstances on both sides, is to be deprecated. Nevertheless I think I have been given sufficient information on the major items in the property pool to make a just and equitable decision.
The property pool
There is agreement in large measure on the assets and liabilities at the date of the hearing. The one real area of contention relates to the husband’s account with the Union Commercial Bank in Phnom Penh.
Union Commercial Bank account
As mentioned earlier the husband has a bank account with the Union Commercial Bank in Phnom Penh, Cambodia. It is into this account that his salary and wages are paid. The existence of this account was not revealed until the husband was under cross-examination.
At the time of the hearing the balance was $US42,403 or about $A57,000. Between May 2003 and July 2004 the balance was relatively small. On 22 July 2004 $US10,000 was deposited. The husband said this was composed mainly of a lump sum termination payment for his accumulated entitlements when he ceased employment with SMEC in June 2004. From the end of December 2004 large deposits were regularly made into this account. The husband said these were his salary and wages.
The husband contends that most of the funds held in this account should be excluded from the property pool. He accepts that about $A8,000 of the termination payment deposited on 22 July 2004 should be included. This represents that portion of the payment which was referable to the seven years the parties were married during the husband’s eleven year employment with SMEC. As Mr Austin put it:
.. the rest of that account ought effectively be quarantined and taken out of consideration for the property settlement, because the rest of it is completely and utterly dependent or referrable on the evidence that’s been adduced to employment that he has had with either Parsons International or Renardet Consulting, both of which have entirely been beyond or after the period of separation, and in my submission the proper finding of your Honour would be that Mrs Thereciana has not made any direct or even material indirect contribution to the acquisition of those wages by Mr Berlot.
Mr Austin said that this asset should only be taken into account under s.75(2).
Ms Tonkin for the wife on the other hand wants the Phnom Penh account included as an asset. It should not be isolated but rather considered in terms of the parties’ contributions.
I agree with Ms Tonkin. This asset is clearly part of the property pool at the time of hearing and available for distribution. The question of relative contributions will be considered later in these reasons.
Ms Tonkin put the Australian value of this account at roughly $59,000 and Mr Austin at $55,000. Based on the exchange rate at the time of the hearing I am including it in the pool at $A57,000.
Net property and superannuation pool
Both parties have included the husband’s superannuation entitlement in the property pool and want it treated with the remaining assets.
I propose to do so.
Noting my conclusions on the Union Commercial Bank account, as well as the items agreed by the parties at the hearing, I find that the parties’ assets and liabilities including superannuation at the date of the hearing are as set out in the table below:
| Assets | $ |
| Mayfield property (husband) | 290,000 |
| Trinity Beach property (husband) | 205,000 |
| Union Commercial bank account (husband) | 57,000 |
| Savings (husband) | 1,500 |
| Household contents (husband) | 4,000 |
| Household contents (wife) | 1,400 |
| Motor vehicle (wife) | 1,500 |
| ANZ Cooma account (wife – add back) | 3,000 |
| Superannuation (husband) | 107,407 |
| Total assets | 670,807 |
| Liabilities | $ |
| ANZ mortgage (husband) | 137,994 |
| Total Liabilities | 137,994 |
| Net asset pool | 532,813 |
I therefore find that the net asset pool including superannuation is $532,813.
Contributions
The parties married in August 1994 and separated in October 2001. Their marriage was thus for just over seven years.
The husband says that he had a motor vehicle worth $5,000 and savings of $5,000 at the commencement of their cohabitation. The husband also had almost $25,000 in superannuation entitlements in the SMEC Superannuation Plan. The wife accepts this and thus that the husband brought about $35,000 into the relationship. She concedes that she made no financial contribution at this stage.
The husband worked in full time employment with SMEC throughout the relationship with a gross income increasing from$A54,500 to $A80,000. He was the sole breadwinner for the family, including Esa Janara and Monika after her birth. His wages were the sole source of income for the family. Esa Janara’s father provided no assistance.
Although the husband provided some minimal assistance in household duties – he helped with shopping because he looked after the finances – it is not in dispute that the wife was primarily responsible for these duties and the care and supervision of Monika, as well as Esa Janara. She was assisted by a live in housemaid in Sumatra from May 1995 to August 1996 and a housemaid who attended daily from February 1997 to December 1998 in Papua New Guinea.
Thus for about three of the seven years of marriage the wife had significant household help. The husband suggests that this entitles the wife to reduced weight being given to her contributions as primary homemaker and care for the children.
I do not agree largely for the reasons given by Ms Tonkin. For most of the marriage they lived in isolated, developing communities. The husband was not always home. The wife was supporting his career and caring fulltime for the children.
I assess the contributions between cohabitation and separation as equal.
Over four years elapsed from separation until the hearing. During this period the husband:
·has lived overseas working with SMEC on projects in a number of countries until he lost his job in May or June 2004
·subsequently obtained other overseas employment with two periods of unemployment
·at the time of the hearing was employed in Ethiopia
·remarried and had two further children
·made gratuitous payments to the wife of $270 each fortnight for rent from December 2001 until June 2004
·made child support payments of about $1,860 over a 28 month period – approximately $15 per week
·maintained the Mayfield property from which the husband says there was no excess of revenue over expenses
·maintained the Trinity Beach property which the husband says made a loss. The revenue only covered outgoings other than the mortgage. He has made approximately $49,000 in mortgage repayments since the property was purchased in 2001
·increased his superannuation entitlements by about $27,000
·built up a $57,000 bank account in Phnom Penh of which about $8,000 could be attributed to the marriage years.
Mr Austin points out that in straight dollar terms this amounts to a financial contribution of around $96,000 over four years.
Ms Tonkin says that:
·there is some doubt over what the husband received in rent and incurred in outgoings for both the Mayfield and the Trinity Beach properties because of the paucity of evidence and the husband’s inadequate disclosure
·the husband has had the sole benefit of these properties since separation although the wife was entitled to a share of those benefits
·the wife has been the sole financial and non-financial contributor to Monika’s welfare over the four years, save for the rent and child support payments
·the husband has had no contact with Monika.
The wife contends that having regard to these matters the contributions of both parties have been equal. The wife has made a greater and significant contribution to the welfare of the family following separation. During this period “Mr Berlot made no non financial contribution to the child [and] made a minimal financial contribution to the child in circumstances where he had a very significant income.”
The husband says that having regard to pre cohabitation, pre separation and post separation contributions, his contributions are superior to those of the wife and warrant an adjustment in his favour in the range of 55-60%, but probably closer to 60%.
I am not persuaded by either party’s suggestion. The husband made a not insignificant initial contribution of $35,000. It should be weighed with all other contributions (Pierce v Pierce (1999) FLC 92-844). But it was in 1991 and no one has suggested that it provided any real springboard. Contributions for the seven years between cohabitation and separation are equal. Over the four or so years from separation to trial the wife has provided the very important caring role in difficult financial circumstances with some assistance from the husband. His contributions have solely been financial and not as generous as could have been expected. About $A49,000, or just under 10% of the parties’ net assets – all but $A8,000 of the amount in the husband’s Phnom Penh bank account – is derived solely from the husband’s post separation income.
Accordingly I assess the contributions as being 55 per cent for the husband and 45 per cent for the wife. The pool is in the order of $533,000. This then is equivalent to about $53,000 between the parties’ entitlements on a contribution based division.
Section 75(2) factors
The husband is now almost 63. He has been employed mainly overseas for many years in skilled jobs as a civil engineer from which he has earned an income well above average – in recent years of the order of $100,000. While employed overseas his income has attracted minimal Australian tax although he says he may have an overseas tax liability.
The husband’s contract in Ethiopia was due to end in February 2006. He hoped however that this work would “continue for a few more and then I will be out of work”. This evidence was provided by affidavit in March 2006 after I agreed to a limited reopening of the case.
The husband has modest superannuation entitlements to which he is not entitled until he is 65. He is solely responsible for the financial support of his current wife and their two very young children.
Mr Austin asserts that although at the time of the hearing the husband was well paid his working future and income level are far from assured. This is because of the tenure of his job, his work history in a number of different positions overseas and in unemployment, and his age. He says I should not conclude that he is likely to be a good income earner for a long period of time. However I note that following his dismissal by SMEC he relatively quickly obtained employment with Parsons after which he had a longer period out of work before joining Renardet.
The wife is 43, Indonesian born, with no formal qualifications and imperfect English. She has employment as a housemaid at a hotel from which she earns as much as $280 a week. This work is not full time but more seasonal. She earns more during the busy winter period.
She also received Centrelink benefits.
The wife’s working opportunities are consequently limited. At the time of the hearing she was undertaking some training in English and computers at TAFE. She also proposes to move to Newcastle where she sees the opportunity for a better job and higher pay.
The wife of course has sole care of Monika, the child of the marriage, who is now almost 12 and Esa Janara, about 15 and a child of an earlier marriage. The wife’s responsibility for Monika will extend another six years – or almost eight years from the hearing.
Child support
Child support is one of the more contentious issues between the parties. Unfortunately much of the evidence on it is confusing and less than helpful.
The wife deposes in two affidavits that the husband had never paid any child support for Monika. She agreed under cross-examination that this was not only wrong but when she put it in her affidavits she knew it was wrong. On the second day of the hearing she tendered a Child Support Agency Transaction Statement of 6 December 2005 which she said she had received by post the previous evening, and a child support assessment dated 22 July 2005. The husband and his lawyers had never seen these documents.
The Transaction Statement showed that the husband had paid $1,860 over a 28 month period from February 2002 to June 2004 – approximately $15 a week. The husband contended that he had paid child support when he was aware there was an assessment, but only until June 2004. This was when he lost his job with SMEC and was unemployed for a period. Consequently child support stopped as did his payment of $270 a fortnight which the wife used for rent. These gratuitous payments used for rent totalled about $18,000.
The husband has maintained that he never received documentation from the Child Support Agency because he was located in remote places, most recently Ethiopia. However after the hearing he was informed by the Child Support Agency that it had issued a Departure Prohibition Order. As a consequence I allowed the case to be reopened for further affidavit evidence and submissions limited to the child support issues.
As a consequence the husband tendered further documents from the Child Support Agency which he received in late December 2005 which showed:
·between January 2002 and December 2005 his child support debt including penalties had grown from $982 to $49,317
·this debt appeared to relate to two cases involving two children, not just Monika
·the debt to the wife in December 2005 excluding penalties was $40,304
·new child support assessments made for three periods – 3 July 2004 to 30 November 2004, 1 December 2004 to 2 October 2005 and 3 October 2005 to 2 January 2007
·there were two assessments for 3 October 2005 to 2 January 2007, the second reducing the liability from $1,452 to $312 a month as a result in a drop in the husband’s child support income from $124,045 to $48,000
·on 21 December 2005 the husband made a payment to the Child Support Agency of $20,000 using a bank loan
·at 15 January 2006 the husband’s child support debt including penalties was almost $30,000 with it appears over $20,000 still owing to the wife
·the husband deposed to his intention to pay a further $5,000 in May 2006 and the balance in regular lump sum payments “subject to my ability to do so”.
In her supplementary affidavit the wife said that she had not received notification from the Child Support Agency of the $20,000 payment. However $18,774 was deposited in her Westpac account on 17 January 2006 which she used to pay outstanding debts. In early April 2006 she deposed that she had not received any further lump sums nor any advice from the Child Support Agency that the husband was making regular child support payments.
Ms Tonkin says that the child support issue can be handled in two alternative ways: as just another of the section 75(2) factors under s.75(2)(na) or through the departure order and lump sum mechanisms in the Child Support (Assessment) Act 1989.
The wife’s preference is for the second:
·the husband has failed to pay child support in accordance with his income and income earning capacity, including failure to make any child support payments for almost 20 months prior to the hearing
·following his dismissal by SMEC in June 2004 he remarried and lived and worked overseas
·at the time of the hearing he was working in Ethiopia
·the husband’s earning capacity was about $100,000 per annum, although there was a brief period for which he had been unemployed
·the wife was in receipt of an income tested pension supplemented by a modest income
·following the issue of the Departure Prohibition Order the husband apparently provided the Child Support Agency with an income estimate of $48,000, an estimate which the wife says was contrary to the evidence given to the Court
·the income, property and financial resources of the husband were not properly disclosed to the Court
·it is unlikely that while the husband is overseas that he will make any child support payments
·there is no evidence that the husband has any ties to anyone in Australia or that he would return to Australia from time to time.
The wife contends that it is consequently in her interests as the carer of the child for me to hear and determine her application for a departure order at the same time as determining the property proceedings.
The husband opposes the Court making a departure order:
·the wife after saying the husband had not paid child support tendered a retrospective assessment from the Child Support Agency which showed there had been a nil assessment prior to March 2004
·no explanation was given for this nil assessment from December 2001 when the wife returned to Australia
·nevertheless the husband had paid an aggregate of almost $20,000 in child support and voluntary payments up to June 2004 – well in excess of the child support in the March 2004 assessments – although the assessments were calculated on a very low income for the husband
·thus the husband was paying well in excess voluntarily than he was mandatorily required to do
·the wife also produced at the last minute another assessment made on 22 July 2005 for 3 October 2005 to 2 January 2007. This was based on the husband’s current income being $124,000, considerably in excess of the evidence. No explanation was given for the hiatus in assessments between July 2004 and October 2005
·as there was thus in place an assessment based on an income exceeding that of the husband, any departure order would be to reduce the assessment
·the husband gave evidence that he would like to make less frequent periodic payments, say quarterly or half yearly.
The test in s.116 of the Child Support (Assessment) Act for determining whether an application for a departure order should be considered by the Court in circumstances such as this in conjunction with a family law matter requires the Court to be satisfied whether it is in the interests of the parties “in the special circumstances of the case”.
I am not so satisfied. The child support evidence in this case is a muddle of contradictions and gaps. Some of it is based on clearly incorrect information. On other matters there is no helpful evidence before the Court. Unfortunately, as is often the case, much of the documentation from the Child Support Agency is close to incomprehensible. Explanations are lacking.
In these circumstances it would not be in the interests of the parties for me to determine the wife’s departure application. If she wishes she can make such an application in the normal way.
In the result I propose to consider the child support evidence outlined above, to the extent I can, as a factor under s.75(2)(na).
Adjustment for section 75(2) factors
The husband submits that on the evidence an adjustment for s.75(2) factors “is not necessarily called for, but an adjustment in favour of the wife of about 5% would not be regarded an error”. The wife wants an adjustment of 20 to 30%.
In my view 5% is far too small. Having regard to all the considerations set out above, in particular the wife’s ongoing responsibilities for Monika until she is 18, the relative earning potentials, but noting the husband’s age and job uncertainty for both, and the child support confusion, the s.75(2) factors clearly favour the wife by a more significant margin. An adjustment in her favour of 15% is warranted.
Overview
For this exercise I am not concerned with precise figures. The end result of examination of the contributions and s.75(2) factors is that an adjustment should be made in favour of the wife whereby she receives 60 per cent of the pool of property and superannuation and the husband 40 per cent. In money terms this results in the wife receiving in the order of $320,000 and the husband 213,000, a difference of $107,000.
The wife seeks the transfer to her of the Mayfield property as she wishes to move to Newcastle where she believes she will have better prospects. I propose to give effect to her wishes.
The question of child support has been considered at some length.
I propose that the husband’s share of the proceeds from the sale of the Trinity Beach property be applied to discharging all child support arrears including penalties in respect of Monika. I can not be sure of the exact amount, but at January 2006 it appeared to be of the order of $26,000.
The wife has concerns about the husband’s commitment to meet his child support obligations and her ability to enforce them as a result of his overseas living arrangements. The husband has indicated his preparedness to meet those obligations. I propose to secure child support payments with assets the husband will retain in Australia.
I will require the husband to keep $25,000 in Australia which can be accessed if he fails to meet his obligations. Should Monika cease to live with the wife he can apply to have my order discharged. When Monika is 18 the monies can be returned to him.
Taking all matters into account, and in particular the relative contributions and the fact that the wife will have the far greater responsibilities for care of Monika until she is 18, I am satisfied that the orders I propose are just and equitable within the meaning of s.79(2).
Conclusions
The pool including an add back is $532,813. The wife's 60 per cent of this amounts to $319,700. The husband's 40 per cent is equivalent to $213,113. The property currently held by the wife amounts to $5,900. The property, superannuation and liabilities of the husband amount to $526,913.
This means that if I order the transfer of the Mayfield property – worth $290,000 – to the wife, she will be entitled to a further $23,800.
The husband is to pay this to the wife within 28 days.
I also will order that:
·the Trinity Beach property be sold as sought by both parties
·before any disbursement to the husband, the proceeds from the sale of the Trinity Beach property be applied by the payment of any child support arrears and penalties for Monika plus $25,000 into an interest bearing account to secure future child support payments
·the husband keep his superannuation in its entirety
·each party be sole owner of all other assets in their respective names or possession.
The orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Angela Kelly
Date: 16 July 2007
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