Berry and Berry
[2010] FMCAfam 542
•7 June 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BERRY & BERRY | [2010] FMCAfam 542 |
| FAMILY LAW – Property settlement – modest asset pool – initial superior financial contribution of the husband – effect of husband’s long term pursuit of study at the expense of obtaining appropriate gainful employment – husband continuing to study post separation – husband’s inability to pay child support – uncertainty of child support in the future – wife’s financial responsibility for parties 8 year old child. |
| Family Law Act 1975, ss.72 (1), 75 (2), 79 (4) |
| Applicant: | MR BERRY |
| Respondent: | MS BERRY |
| File Number: | ADC 4358 of 2008 |
| Judgment of: | Mead FM |
| Hearing dates: | 16 & 30 October 2009 |
| Date of Last Submission: | 30 October 2009 |
| Delivered at: | Adelaide |
| Delivered on: | 7 June 2010 |
REPRESENTATION
| Counsel for the Applicant: | N/A |
| Solicitors for the Applicant: | In person |
| Counsel for the Respondent: | Mr D Berman |
| Solicitors for the Respondent: | Jane Ekin-Smyth |
ORDERS
That in full and final settlement of any claim that either party may have or hereafter have against the other for settlement of property:-
(a)that on or before 30 July 2010 the husband do pay to the trust account of the wife’s solicitors on account of the wife the sum of $152,073.85 (rounded to ONE HUNDRED & FIFTY TWO THOUSAND AND SEVENTY FOUR DOLLARS ($152,074);
(b)that pending payment to the wife of the amount referred to in paragraph 1 (a) hereof the husband be restrained and an injunction is hereby granted restraining him from selling, encumbering or otherwise disposing of the property situate and known as Property B, [B] in the State of South Australia being the whole of the land comprised and described in Certificate of Title Register Book Volume [omitted], SAVE AND EXCEPT for the purpose of giving effect to the terms of paragraph 1 (a) of this order;
(c)following upon compliance with the terms of paragraph 1(a) hereof, the husband shall be entitled to retain for his sole use and benefit absolutely free of any claim by the wife the property referred to in paragraph 1 (b) hereof;
(d)that the wife do pay and discharge all monies due and owing by her as and when they shall fall due with respect to the following debts in her sole name:-
(i)[M] School with respect to [X]’s school fees;
(ii)debt to Centrelink;
(iii)HECS debt in the wife’s sole name;
(iv)[D] debt in the wife’s sole name;
(v)ANZ Visa Card debt in the wife’s sole name;
(vi)Australian Central Credit Card in the wife’s sole name;
(vii)[omitted] Credit Union debt in the wife’s sole name;
(e)that the husband do pay and discharge all mortgage payments, rates, taxes and other outgoings accruing from time to time in respect of the property at [B] aforesaid to the exoneration of the wife and shall indemnify her in respect thereof;
(f)the husband do pay and discharge all monies due and owing from time to time as and when they shall fall due in respect of the David Jones account in his sole name;
(g)the wife retain for her sole use and benefit absolutely the Toyota Paseo motor vehicle in her possession together with all household furniture, chattels, effects, shares, savings, investments, jewellery and all other personalty not otherwise specified herein for her sole use and benefit absolutely free of any claim by the husband;
(h)that the husband retain for his sole use and benefit absolutely free of any claim by the wife all household furniture, chattels, effects, shares, savings, investments, and all other personalty not otherwise specified herein for his sole use and benefit absolutely free of any claim by the wife;
(i)in the event of the husband failing to comply with the terms of paragraph 1 (a) hereof THEN the husband shall pay interest at the rate of 10% per annum on such amount that shall remain outstanding from time to time from the date of default until payment shall be made in full;
(j)in the event that the period of default shall extend for a period greater than 2 calendar months from the date on which payment is due in accordance with the terms of paragraph 1 (a) hereof THEN and in such case the said property at [B] shall be placed on the market forthwith for sale by private treaty by such licensed land agent as shall be agreed between the parties and for such price as shall be agreed between the parties, or in default of agreement as fixed by the court and the net proceeds of such sale shall be divided between the parties as follows:-
(i)as to the amount outstanding to the wife pursuant to the terms of this order together with interest at the rate of 10% per annum from the date of default until the date of settlement to the trust account of the wife’s solicitors on account of the wife;
(ii)as to the balance to the husband.
(k)In the event of the property being sole pursuant to the terms of paragraph 1 (j) hereof THEN and in such case the wife and/or her solicitors shall be at liberty to communicate with the jointly appointed licensed land agent with respect to all matters pertaining to the asking price of the property and the proper and efficient marketing of the property.
That all extant applications be otherwise dismissed.
AND the parties shall be at liberty to apply as to consequential orders.
IT IS NOTED that publication of this judgment under the pseudonym Berry & Berry is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 4358 of 2008
| MR BERRY |
Applicant
And
| MS BERRY |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr and Ms Berry are unable to decide on how to divide their property.
To determine this issue, the court must first determine the size of the parties’ asset pool.
The court must then enquire into and make findings as to the contributions of each of the parties to their assets, including not only direct financial contributions but indirect financial contributions, non financial contributions of each of the parties such as homemaking and parenting contributions, and contributions that may be made for or on behalf of the parties.
The next step in the process is to consider the parties needs taking into account the factors set out in section 75 (2) of the Family Law Act 1975 (as amended) and if appropriate, make adjustments to the findings as to contribution so as to reflect the particular needs of the parties.
The court must finally be satisfied that the orders it proposes to make effect justice and equity as between the parties.
Background
Mr and Ms Berry met in or about July of the year 2000, and commenced cohabitation in or about November of that year.
The parties’ child [X] was born [in] 2001, and the parties married [in] 2002.
Separation occurred on 19 October 2008, and an order for divorce was made on 19 January 2010. The total period of cohabitation was therefore approximately 8 years.
At the time of trial the wife was employed as a [omitted] in Victoria earning $60,499 per annum. She was also in receipt of Part A and Part B Centrelink Benefits at the rate of $93.10 per fortnight and $198.12 per fortnight respectively.
At the time of trial the parties’ daughter [X] resided with the wife and had done so from the date of separation. [X] was spending time with her father in accordance with consent orders made herein on
12 December 2008.
At the time of trial the husband was a fulltime PhD Candidate at [A] University. He deposed to income by way of Centrelink New Start Allowance in the sum of $245 per week.
Asset pool
For the purposes of trial the parties were agreed as to the value of the following assets:-
a)The former matrimonial home at Property B, [B] – $360,000;
b)Toyota Paseo motor vehicle in wife’s possession – $2,200;
c)Furniture in wife’s possession – $300;
d)Furniture in husband’s possession – $4,219;
e)Wife’s superannuation entitlements:-
i)NGS Super - $4,237;
ii)Aria PSS - $30,445;
f)Husband’s superannuation entitlements:-
i)SMF Superannuation Fund - $299;
ii)Care Super - $352
They were also agreed that at the time of trial that the following liabilities were for the purpose of trial, joint liabilities:-
Mortgage in respect of the former matrimonial home
$ 46,823
Amount owed to David Jones by way of an account in the husband’s name
$ 1,487
Amount owing in respect of outstanding [M] school fees relating to [X], in the wife’s name
$ 342
In paragraph 92 of the wife’s affidavit filed on 24 September 2009, the wife set out liabilities in addition to those to which I have referred that she asserted should be taken into account in assessing the parties’ net asset position. The first of those was a debt to Centrelink in her sole name in respect of which $2,316 was owed at the time of separation.
It was the wife’s evidence, contained in paragraph 93 on page 24 of her affidavit filed on 24 September 2009, that this debt arose from an overpayment to her of Centrelink benefits during the period of the marriage, and that accordingly the husband also had the benefit of those funds. The wife was not cross examined in relation to that issue.
I find that overall the wife was a witness of truth who attempted honestly to assist the court in determining the issues before it when she gave her evidence and was cross examined.
I accept that the debt to Centrelink stood at $2,316 as at the date of the parties’ separation, and was acquired during the period of the parties’ cohabitation.
I am satisfied, for the reasons given under the heading of “Contributions” later herein that the wife was the primary income earner for the parties following upon the completion of her [omitted] studies in late 2004. I accept her evidence that the Centrelink debt arose from an over payment during the course of the parties relationship and that it should be regarded as a joint liability of the parties for the purposes of assessing the net assets in this matter.
The wife also asserted that her Higher Education fees (HECS) should be included as a joint liability of the parties for the purposes of these proceedings. These stood at $13,796 as at 15 September 2008, approximately one month prior to separation.
The wife was not cross examined in relation to this issue, and in the husband’s closing address he submitted that the wife should be solely liable for those debts in her name.
The husband also submitted that he encouraged the wife to study during the period of their relationship. Questions were put to the wife in cross examination on that topic, and she conceded that the parties had talked about the issue and that the husband had said to her that she would earn better income if she undertook a course of study.
I find that the wife undertook the [omitted] studies by agreement with the husband during a time that the husband continued with his own studies. I am satisfied that immediately following upon the completion of those studies, the wife obtained employment commensurate with her new tertiary qualifications, and that thereafter for the remainder of the period of cohabitation she was the primary, and indeed almost sole income earner for the family.
In those circumstances I consider that the wife’s HECS debt should be regarded as a joint liability of the parties for the purposes of these proceedings.
In annexure “SRB2” to the husband’s affidavit filed on 18 September 2009, he refers to a HECS debt relating to himself in the sum of $16,066. That is contained in paragraph 6 on page 4 of the annexure, and in paragraph 5 (b) of the same annexure, he states that he paid his own HECS during the marriage in full without contribution by the wife.
I am satisfied that the wife’s HECS debt referred to in her evidence accrued during the course of the parties cohabitation and marriage. I cannot be so satisfied in relation to the HECS debt of the husband referred to in annexure “SRB2” to his affidavit filed on 18 September 2009.
The husband was a student for the period from the commencement of 2001 to the time of trial, undertaking some short term [omitted] work during those years and working for a period of at most 2 to 3 months in [omitted] in Canberra in the latter part of 2007. He had also been studying for several years prior to the commencement of the parties’ relationship.
He was not cross examined with respect to this issue but neither did he give any evidence detailing when the debt was incurred or submit that the court should include that amount as a liability for the purpose of assessing the asset pool.
It is unclear whether the debt relates to undergraduate studies, in which case it was accrued prior to the parties’ relationship, or post-graduate studies, in which case some or all of the debt may have been incurred during the relationship.
In the absence of any clear evidence, I am unable to include for the purposes of these proceedings any amount attributable to the husband’s HECS debt.
The wife also asserted that an outstanding debt to [D] in the sum of $1,110 should be included as a joint liability of the parties.
It was common ground that towards the end of the wife’s period of study in 2004, she applied for and accepted a [omitted] position in [W]. This had the benefit to the parties of the wife being paid an “upfront” sum of $3,000 in acknowledgement of her preparedness to accept a country [occupation omitted] position.
It was the wife’s evidence that those funds were utilised by the parties for the purpose of an overseas trip undertaken by them and [X] between October and approximately December 2004, and that thereafter the husband was not prepared to move to live in [W] resulting in a requirement that the monies be repaid to [D].
It was the wife’s evidence that although she had not wanted to return to live in [W] where she had lived earlier in her life, the only options for the country placements with the “upfront” payment were [W], [E] and [M]. She said that she accepted [W] on the basis that that was the only place that had a university and was therefore the only place the husband was prepared to move to reside.
It was the wife’s evidence that all of the funds were expended in respect of the overseas trip either by way of payment towards airfares or general travel expenses, although she was unable to be clear as to exactly how the funds were expended.
The husband was cross examined in relation to this issue, and said that he had no idea what happened to the monies which he said amounted to $2,500 and not $3,000.
The husband agreed in cross examination that the wife did not take up the [omitted] position in [W]. When he was asked his view of what had happened in respect of these issues, he said that the wife would never have gone back to [W] but that [employer omitted] was offering the money to qualified [occupation omitted] to [work] in the country. He said the options were [W], [M] and [E].
When asked whether the money was used for the overseas trip or part thereof, he replied that it was not, and said that he was unable to comment as to whether the debt to [D] existing at the time of trial was the residual of the original grant.
Mr Berry was asked whether he knew that [D] wanted the money paid back. He replied that he did, and that he knew that during the marriage. He was asked whether that was a topic of discussion between the parties during the marriage and replied that it was. He was asked whether the monies were paid back, and said that they were not. When asked why not, he said that it was not his debt. When it was put to him that it was acquired when the parties were married, he said that apparently they were but in respect to issues of finance they were two people living in the same house sharing a child.
Mr Berry cross examined the wife about the issue, and put it to her that in her affidavit she had stated that the monies from [D] were used for the purposes of the parties overseas trip. She agreed that was so and that such was still her evidence on the date of trial. She was asked whether she had any records in relation to that issue and she said that she did not. She was asked whether the monies were paid by [D] into her bank account and she agreed that was most likely as the monies were paid to her. She also agreed that the husband was not a
co-signatory for the advance of funds. Ms Berry was asked when and where she had got the money, and she said it was simply paid into her account in 2004 just before the overseas trip and she thought it was used for the purposes of the trip. She agreed that at the time of accepting the grant the options were for her to [work] in [M], [E] or [W].
Mr Berry put to the wife that she had told him that she would never go back to [W]. She replied that she had told Mr Berry at the time that she would prefer not to, but that he had said that it was the only place with a university so she agreed to accept the position in [W]. She went on to say that she would have gone there, that is to [W], for Mr Berry’s sake but that he refused to go.
I accept the wife’s evidence in relation to that issue generally.
I accept, particularly taking into account the proximity of the grant to the date of the parties overseas travel and their otherwise limited financial circumstances, that in all probability the funds were expended in some way or other towards either the cost of the fares themselves, or the parties and [X]’s living expenses, and that the current outstanding debt should be included as a joint liability of the parties for the purpose of these proceedings.
It was the wife’s evidence contained in paragraph 92 on page 23 of her affidavit filed on 24 September 2009, that the following further debts in her sole name should be included in assessing the parties’ joint liabilities for the purpose of these proceedings. Those debts were:-
a)ANZ Visa – balance at 2 September 2008 (1 month prior to separation - $3,485 – nil owing as at date of trial;
b)
Australian Central Credit Card debt – balance of $2,366.65 as at
2 October 2008 (approximately 2 weeks prior to separation);
c)
[omitted] Credit Union debt - $2,891.70 as at 17 October 2008
(2 days prior to separation);
d)Myer Credit Card - $1,049 at separation.
It was the wife’s evidence contained in paragraph 96 on page 25 of her affidavit filed on 24 September 2009, that the ANZ Visa debt related to the purchase of carpet at the family home and part of the renovations to the house after it had been damaged by tenants during the period of time the parties and [X] resided in Canberra. The wife gave further evidence about this issue in paragraphs 53 and 56 of her affidavit filed on 24 September 2009. That same evidence in part related to the debt in her name in respect of the Australian Central Credit Card as referred to in paragraph 97 of the said affidavit.
The wife was not challenged in respect of that evidence, and I am therefore satisfied that those two amounts should be included as joint liabilities of the parties for the purpose of these proceedings.
The wife’s gave evidence in respect of the debt owing on her Myer Credit Card as contained in paragraph 99 of her said affidavit. It is unclear if the television and cabinet are those referred to in Annexure “B” to the wife’s affidavit filed on 24 September 2009 evidencing household contents in her possession, and I am unable on the evidence to find that that debt should be included as a joint liability. The husband refers to this issue in annexure “SRB2” (paragraph 5 (g) to his affidavit filed 18 September 2009 where he says the wife retained the television and he was not challenged in that regard.
As to the debt owing to the [omitted] Credit Union Card. The wife deposes in paragraph 98 of her said affidavit to the debt in respect of that card at separation being attributable to pre-separation expenses, including relocation expenses to and from Canberra. The wife gave further evidence in relation to that issue in paragraph 11 of her said affidavit and again, in the absence of any challenge to this evidence by the husband and taking into account my earlier comments as to her credibility, I accept the wife’s evidence in relation to this issue. I find that the debt owing in respect of that credit card as at the date of separation should be included as a joint liability of the parties.
In annexure “SRB8” to the husband’s affidavit filed on 18 September 2009, he claimed that a debt of $500 to his mother should be included as a joint debt of the parties. Annexure “SRB8” is a copy of a receipt dated 18 December 2008 with respect to the sum of $500 allegedly advanced by the husband’s mother by way of cheque for a “fridge”. The date of the receipt post-dates the parties separation by some 2 months and I am not satisfied that it should be included as joint debt of the parties.
The husband also asserted in paragraph 6 of annexure “SRB2” to his said affidavit, that he retained debts in respect of a Commonwealth Bank Mastercard in the sum of $500 and an Adelaide Bank Visa Card in the sum of $2,500.
The husband was cross examined about those debts, and it was his evidence that at the time of trial he owed $2,800 in respect of his Visa Card. It is unclear from the husband’s evidence as to when those debts were incurred and for what purpose and accordingly, I am unable on the evidence to find that they should be included as joint liabilities of the parties for the purpose of these proceedings.
Taking all of those matters into account, I find that the assets and liabilities of the parties for the purposes of these proceedings are as follows:-
Assets
Former matrimonial home
$360,000
Toyota Pursao motor vehicle (wife)
$ 2,200
Furniture in wife’s possession
$ 300
Furniture in husband’s possession
$ 4,219
Total non-superannuation assets
$366,719
Superannuation Assets
Wife’ superannuation entitlements
$34,682
Husband’s superannuation entitlements
$ 651
Total superannuation assets
$35,333
Liabilities
Mortgage with respect to former matrimonial home
$46,823
David Jones account (husband’s name)
$ 1,487
[M] school fees (wife’s name)
$ 342
Centrelink debt (wife’s name)
$ 2,316
HECS debt (wife’s name)
$13,796
[D] debt (wife’s name)
$ 1,640
ANZ Visa debt (wife’s name)
$ 3,485
Australia Central Credit Card (wife’s name)
$ 2,366
[omitted] Credit Union debt (wife’s name)
$ 2,891
Total
$75,146
The parties net non-superannuation assets therefore total $291,573.
Their superannuation assets total $35,333.
Contributions
At the time the parties commenced cohabitation the husband owned a house property at Property B, [B] which he had built in or about 1978 upon land he had purchased in [B]. He was however living in rented accommodation in [F] at the time of the commencement of cohabitation as the [B] property was tenanted.
The wife was employed on a part-time basis as a [omitted] and the husband was studying for his Masters Degree.
In paragraph 15 of the husband’s affidavit filed on 5 November 2008, the husband asserted that the value of the property at [B] would have been approximately $150,000 in mid 2001, with a mortgage of some $55,000 at that time.
In paragraph 64 of the wife’s affidavit filed on 24 September 2009, she responded to that evidence and said it was her belief that the property would have been valued at approximately $130,000, but she agreed that the mortgage was $55,000 at that time.
The property was valued retrospectively by Mr B of [W] Pty Ltd as at the date of marriage, at $200,000. This was of little assistance as the parties commenced cohabitation in late 2000 and moved into the property in about March 2001.
The significance to the husband of the valuation figure at the date of marriage became clear in his final submissions, when he argued that the value that the court should ascribe to the former matrimonial home when assessing contributions for the purpose of these proceedings was $160,000. This was the agreed value of the property at the time of trial less $200,000.
In his closing address, Mr Berman conceded the husband’s estimated value of the property at $150,000 at or about the time cohabitation commenced.
Mr Berry submitted in closing that although he had the property at the commencement of cohabitation he had no idea how much it was worth at that time and did not rely on his evidence contained in his affidavit filed on 1 November 2008. I do not accept that submission, which I find was made for the purpose of deflecting the court from a finding as to the value of the property at the commencement of cohabitation.
Taking into account the husband’s evidence in his affidavit filed herein on 1 November 2008, the concession made by the wife in favour of the husband and the retrospective valuation as at 22 September 2002, I find that there was equity of some $95,000 in the husband’s [B] property on or about the time cohabitation commenced.
I find that the parties otherwise had very modest assets at the commencement of cohabitation, consisting of some basic household furniture and motor vehicles of modest value. The wife also had superannuation entitlements, and in paragraph 67 of her affidavit filed on 24 September 2009, she estimated the value of those benefits at the commencement of cohabitation to be about $15,000, having contributed to superannuation from the age of 15 years. She was aged 37 years at the commencement of cohabitation.
In September 1998 the wife filed a debtors petition and became bankrupt, being discharged from that bankruptcy on 9 September 2001. Her evidence was that the bankruptcy had arisen as a result of the breakdown of a previous marriage and her assumption of responsibility for marital debts that were in her sole name.
After living in rented accommodation for a few months, the parties moved into the former matrimonial home, and resided there until early 2005. They lived in the United Kingdom for 3 months or so at the end of 2004.
In early 2001 the wife ceased her part time work at [omitted] and commenced studying for a [omitted] degree on a full time basis at [A] University. This course of study was completed by her in or about December 2004.
During these years the wife’s income consisted of Austudy and Centrelink Benefits. [X] was born in 2001.
In December 2002 the husband graduated with a Master of [omitted] Degree which he had commenced in 1997. In February 2003 the husband commenced studying a Bachelor of [omitted] Degree at the University of [omitted].
It was the wife’s evidence that at all times from the commencement of cohabitation until the end of 2004 the husband paid the mortgage payments in respect of the former matrimonial home as well as some of his credit card bills and that the wife paid the other household expenses including but not limited to food, groceries and clothing. It was her evidence that some of the expenses were put on to credit cards which she is still repaying. This evidence is contained in paragraph 75 of the wife’s affidavit filed on 24 September 2009.
It was the husband’s evidence contained in paragraph 3 of his affidavit filed on 18 September 2009 that during the period February 2001 to December 2004 the wife was in receipt of Austudy payments and that her financial and what he describes as “in kind contributions” were minimal. He deposed to being solely responsible for the upkeep of the household and payment of the bills.
In cross examination, the husband said that at the end of 2000 when the parties commenced cohabitation he was not in paid employment as he had just returned from overseas. He confirmed that he was enrolled in a Master of [omitted] Degree in 2001 at [A] University, but said although he was enrolled on a part time basis he was studying full time and had no outside employment. It was put to him that when [X] was born in 2001 she commenced attendance at [A] Day Care Centre, and he replied that for the first few months she went with him to his office and then commenced attending at the Child Care Centre. It was put to him that [X] had commenced attendance at the Child Care Centre when she was 6 weeks old but in reply he said that she was 8 to 10 weeks old at the time she commenced that attendance.
The husband was cross examined as to whether the wife had paid employment during the time she undertook her [omitted] degree. He said that she [worked] on Saturday mornings. He agreed that the parties pooled their resources between 2001 and 2004. He confirmed in cross examination that he did not work at all during that period.
The husband gave no evidence to the court as to his income during the period from the commencement of cohabitation to the beginning of 2005.
In paragraph 52 of the wife’s affidavit filed on 24 September 2009 she refers to the husband paying the mortgage from his Centrelink benefit when they were living in the family home prior to her commencing work in early 2005.
In paragraph 74 of the same affidavit she refers to the husband receiving Centrelink benefits until the parties moved to Canberra in 2005. In paragraph 75 she says that from the commencement of 2001 to the end of 2004 the husband received a Newstart Allowance.
I am satisfied that for the period from the commencement of 2001 until approximately October 2004 when the parties travelled overseas to the United Kingdom, there was limited household income comprising of Centrelink Benefits. This income was used by the parties for the benefit of the family generally, with the husband making the payments in respect of the mortgage and his credit card from his account and the wife contributing by paying [X]’s child care fees and household expenses generally.
I do not accept the husband’s evidence that the wife’s financial and “in kind contributions” between the period early 2001 to October 2004 were minimal. I find both parties contributed to family expenses equally.
The wife finished her studies in or about October 2004, and shortly thereafter the parties travelled overseas to the United Kingdom with [X] for approximately 3 months.
In cross examination the husband confirmed the wife’s evidence that during the time they were in the United Kingdom between October and December 2004 or thereabouts, the wife worked as a [omitted] and that [her workplace] provided housing. When asked whether the wife earned approximately 4,000 pounds during that time, Mr Berry said he could not comment. When it was put to him that she earned enough to pay for the trip he said that he disputed that evidence
Mr Berry confirmed in cross examination that he did not work whilst the parties were in the United Kingdom.
The parties returned to Australia in or about late 2004 or early 2005, and in approximately March 2005 the wife accepted a [omitted] position in Canberra. This was a full time position.
In or about February 2005 the wife and [X] moved to Canberra to live and in or about March 2005 the husband joined them in Canberra.
The husband said in cross examination that upon moving to Canberra he enrolled in [B] University as a part time [omitted] Student. It was put to him that from March 2005 until the end of that year he had no paid employment. He agreed with that proposition.
In cross examination the husband said that during 2006 he worked for somewhere between 2 and 4 weeks as a [omitted], and that in 2007 he [occupation omitted] per week for the first semester (a period of approximately 5 months), and also [occupation omitted] for one day. He further said that he had worked in Canberra during 2007 in [workplace omitted] between August and the end of September that year and for [workplace omitted] between September and mid December of that year. It was his evidence that during these periods of time he was earning approximately $600 per week net.
The house at [B] was rented out while the parties lived in Canberra and from those monies the husband paid the mortgage payments in respect of the former matrimonial home.
The husband was cross examined at length about income that he may have received during the 2005, 2006, 2007 and 2008 financial years. He was asked whether he had any group certificates in relation to the various income years. He replied that he didn’t and that they were with his accountant. He said he did not have any copies of those documents and wasn’t sure whether the documents had been discovered because he had been legally represented. He confirmed that he had done nothing himself in that regard. When asked why nothing had been done in relation to producing financial information, he replied that it didn’t appear to have been needed because it had been presented to court in November 2008. When he was asked why this was so, he replied that it was part of the process.
When the wife’s counsel put to Mr Berry that he did not understand his evidence, and did he mean that he had obtained all of his taxation documents from his accountant at that time, he replied that this was not what he meant. When asked again what process he was referring to in November 2008, he said that he believed that the documents had been requested by Ms B.
When asked whether he had given his accountant authority to release information upon request, he replied that he did not recall, and when asked whether his accountant had rung him to ask whether he was prepared for that accountant to give his financial documents to someone, he said that he thought that conversation may have happened.
When questioned as to who he dealt with in his accountant’s office in [omitted], he replied “[first name omitted]” and said that he didn’t know [first name omitted]’s last name. When asked how long he had been dealing with “[first name omitted]”, he said that it was in 2008 from about August of that year. When asked whether he had confidence in “[first name omitted]”, he said that he seemed reasonable, and when asked whether he had given “[first name omitted]” all of his historical taxation records, he replied that he had. Mr Berman asked the husband whether “[first name omitted]” had asked him for his historical taxation records. He replied that he had done so and that you can’t put in a taxation return without those documents. Mr Berman then asked if the husband’s financial documents were with “[first name omitted]” in [G], and Mr Berry replied that they were but he didn’t have any copies.
It was put to the husband that it was important for the court to know his income during the 2006, 2007 and 2008 years, and he agreed.
It was then put to Mr Berry by the wife’s counsel that the only person who would know details about his income were himself and “[first name omitted]”. He replied that that was not strictly true because the wife would know as well. When asked whether he was saying that the wife had copies of his taxation returns and the like for the 2006, 2007 and 2008 financial years from the husband, he replied that “she was aware of it”. When asked whether he was saying that the wife had knowledge of those details, he replied that this was the case.
It was then put to the husband by the wife’s counsel that if the wife was saying that in the years ending 30 June 2006, 30 June 2007 and 30 June 2008 his income was minimal would he agree. He replied that he did but there was also rental income.
He was then cross examined as to the rental income. He said the rental income was paid to him, and from that he paid the mortgage, [X]’s school fees, the David Jones credit card, and payments in respect of his Visa Card and Mastercard as well as power bills and telephone bills. He said the funds were paid into his Commonwealth Streamline Account. He agreed the wife had no access to that account and said that he also paid from that account expenses in relation to the [B] property such as rates, taxes and general maintenance expenses.
He was asked whether there was a surplus of income over expenses in relation to the rent he received and the [B] house expenses. He confirmed in cross examination that the rental was in fact collected by an agent who took a fee of 8%, paid the expenses in relation to the property and that he then received the net fees.
When asked what net income he received in each of the relevant financial years or an aggregate of those years, Mr Berry replied that it was approximately $250 per week or $1,000 per month as far as he could estimate, but that various “things had to be fixed”.
Mr Berry agreed that if the court and the wife’s legal representatives had the taxation returns for the three relevant financial years, all of that information would be available.
Mr Berry was asked whether, when he signed off on the tax returns for those years, he recollected the details in the documents. He replied that he didn’t and that he just signed “it” to get a return of over $4,000.
He was asked whether it was fair to say that the net surplus of rent was negligible. He replied that that was not accurate.
When asked whether he agreed with the wife’s case that there had been no advantage to the family at all by renting out the property during the 2005, 2006 and 2007 financial years, he replied that he totally disagreed with that position. When it was put to him that he was unable to specify what benefit there was to the family, he replied that he had done so.
Later in cross examination it was put to the husband that a copy of his 2008 taxation return had been discovered showing income of $15,726. He was asked whether that sounded accurate and said that he could not comment because the documents were not before him, they were with Ms B and that he owed her $10,000.
Mr Berry then agreed, upon being shown a copy of his 2008 taxation return, that his taxable income for that year had been $15,726. He agreed that in looking at pages 2 to 5 of that income tax return he was assisted in identifying that he had obtained income during that period from [workplace omitted]. He also agreed, in looking at page 5 of the income tax return headed “Rental Property Schedule”, that the document suggested the property had been rented out between 1 July 2007 and 1 January 2008 and during that time had generated income of $3,650 against total expenses for the same period of $7,130. He agreed that it showed there had been a net loss from the property of $3,480 during that period.
Mr Berry was asked whether that helped him recollect whether the exercise of renting out the [B] property over the years that the parties lived in Canberra had produced a loss rather than a profit, and he replied that that was wrong. When asked whether that was at least the position when looking at the figures relating to the period 1 July 2007 to 1 January 2008, he replied that it was not correct because the tenants had defaulted on their payment of rent for a period of 3 months. He then confirmed that for whatever reason in 2008 there had been a net loss in respect of the rental of the former matrimonial home, with
Mr Berry saying that had occurred in the last 6 months of that year.
When it was put to the husband that the 2008 taxation return was in fact the first return he had filed in relation to his personal income during the period of his relationship with the wife, he agreed that that was the position.
Mr Berman then put to the husband that he had been asked questions in relation to his taxation returns and had said in reply that he didn’t have them with him but that “[first name omitted]” did have them at [G]. He was reminded that he had told the court that he believed it was unnecessary to have them at court at this time as Ms B had used them in these proceedings in November 2008 and was asked why he had not told Mr Berman during the course of any of that questioning that it would not matter whether or not his instructor contacted “[first name omitted]” at [G] Accountants because there was no information to be obtained. Mr Berry replied that he had not been asked that question.
It was then put to him by Mr Berman that direct questions had been asked of him in relation to taxation returns for the relevant years, that he had said the information in relation to those issues was with “[first name omitted]” at [G], and why hadn’t he just said there had been no taxation returns filed before the 2008 return. He said he had not said that because it wasn’t true. When asked by the court whether for the period from 2000 to 2008, there were any taxation returns prepared for him other than for the 2008 financial year, he replied that there were not.
When the wife’s counsel suggested to the husband that no taxation returns had been filed by him during that time because his income was less than the threshold that required the filing of a taxation return, he replied that he had never thought of that but it was possible – but he just didn’t bother.
Mr Berry said in answer to further questions from the wife’s counsel that he understood that a taxation return needed to be filed for each financial year, and that if one wasn’t filed there had to be a reason. When he was asked why he had not filed taxation returns for the financial years ending June 2000 to June 2007 inclusive, he replied that it was because his income was negligible but it was always going to be “sorted out” when he got back to Adelaide as a rental property was involved.
I am satisfied that the major financial contribution to the parties living expenses from the beginning of 2005 to the time of the parties return to Adelaide at the beginning of 2008 came from wages earned from the wife’s employment as a [omitted] in Canberra. I find that during this period of time the husband received rental income in respect of the [B] property which was utilized to pay the mortgage on the property on the basis of the information contained in the husband’s 2008 taxation return, I am satisfied that it is unlikely that during those years there were any surplus funds available from the rental income to contribute towards the parties expenses.
I also find that the wife’s income during this period was not sufficient to meet all of the family expenses and that some of those expenses were paid by credit card. I have referred to this more in assessing the asset pool.
I find that the husband earned no income from employment during the calendar year 2005, that he earned some very minimal income over 2 to 4 weeks of limited employment in 2006, and limited income in the first half of 2007 [occupation omitted].
I find that in the latter part of 2007 between approximately August and December he did have employment, and that wages earned were used towards various household and family expenses.
I make these various findings on the basis of the wife’s evidence and the concessions made by the husband in cross examination.
Although I am satisfied that the wife made the greater financial contribution to the parties expenses during the period from the commencement of 2005 to the commencement of 2008, I find that both parties contributed what they were able to contribute. The wife may have been unhappy that the husband continued with his studies and did not seek paid employment but that was the basis on which the parties conducted their domestic arrangements.
When the parties returned to South Australia to live at the commencement of 2008 the husband was not in receipt of any income, and it was conceded by him that from then until the parties separated in October of 2008 the wife paid the mortgage and other household outgoings for the family. During this period of time [X] was attending at school and the husband was continuing his doctoral studies.
At the time of [X]’s birth in 2001, both parties were students at [A] University.
I find that [X] commenced full time attendance at Day Care at [A] University when she was about 2 months old.
It was the wife’s case that the husband at no time took any particular responsibility for or shared to any significant extent the care of [X]. In paragraph 57 of her affidavit filed on 24 September 2009 she refers to herself as the sole home maker and parent both prior to and since separation.
These were issues about which the husband gave little evidence. They were also issues on which he was not cross examined. The husband did not challenge the wife about any aspects of [X]’s care arrangements prior to the time the parties resided in Canberra.
The parties both gave evidence about the day to day arrangements for [X] whilst they were resident in Canberra, during which period she attended firstly at child care and then at school.
I accept, on the basis of the evidence before the court as to the parties financial arrangements whilst resident in Canberra, that the majority of [X]’s child care fees and school fees would have been met from the wife’s income.
I accept the husband’s evidence that during this time he played a greater role than suggested by the wife in terms of delivering [X] to and collecting her from school in particular, as the wife’s working hours made that difficult for her.
I find myself unable, on the state of the evidence, to make a finding as to other then equality with respect to the contributions made by the parties to home making and parenting roles from the time of the commencement of cohabitation to the date of separation.
There is insufficient evidence before the court for me to make findings as to whether one or the other of the parties made greater contributions to domestic duties, although I have already noted the wife’s unchallenged evidence in that regard which I found to be in rather general terms.
Both parties were students from the commencement of 2001 to the end of 2004. The wife worked full time from the commencement of 2005 to the time of separation. The husband continued studying during this period of time during most of which [X] had commenced attending at school.
I find that the wife has had the overwhelming primary responsibility for [X]’s care both physically and financially since the parties separation in October 2008, but I have considered this matter in more detail when assessing the relevant section 75 (2) factors.
I have set out in more detail than I would usually when delivering judgment the evidence given by the husband in cross examination. This is because overall I found the husband to be evasive with respect to informing the court of details of his financial contributions during the period of cohabitation and marriage, as illustrated by much of that evidence.
I find that this was an attempt on the part of the husband to minimize the importance of the wife’s direct financial contributions and to create confusion as to the extent of his contributions. This was the very clear tenor of his closing submissions to which I will return in due course. It was also the effect of the evidence contained in paragraphs 3 & 4 of his affidavit filed on 18 September 2009.
I find for the reasons set out hereunder that it is appropriate to consider the issue of the parties contributions towards the non-superannuation assets separately to the issue of their contributions to the superannuation assets.
I find, taking into account:-
a)the husband’s initial contribution of the equity in the former matrimonial home;
b)the finding as to equality with respect to the parties home making and parenting roles during the period of the parties cohabitation;
c)the parties financial contributions during the period of cohabitation and marriage consisting of contributions by way of Centrelink benefits on the part of both parties, wages on the part of the wife and the husband’s rental income during the period that the parties lived in Canberra which maintained the mortgage payments over the former matrimonial home;
that the parties contributions to their non-superannuation assets should be assessed as to 70% thereof to the husband and 30% thereof to the wife.
With respect to the issue of superannuation, although there was no objective documented evidence before the court as to the value of the wife’s entitlement to superannuation at the time of the commencement of cohabitation, I accept that she had by then been in the paid workforce for some 22 years. Taking into account my findings as to the credibility of her evidence overall, accept that those benefits would have totalled approximately $15,000 at the commencement of cohabitation.
The husband has effectively acquired no superannuation during his lifetime.
As will become clear later in these reasons when considering the issue of the husband’s physical and mental capacity for appropriate gainful employment, I find that he has that capacity. He has had high level tertiary qualifications for many years. I accept the evidence of the wife that he has chosen not to pursue employment commensurate with his tertiary qualifications, but rather has preferred to continue to pursue a lifestyle of a full time student, even at those times when he has been enrolled on a part time basis and when, on his own evidence, has had a capacity to undertake paid employment.
There is no evidence that during the time the wife has been employed on a full time basis during the period of the parties relationship and therefore accruing superannuation entitlements, that the husband has played a greater role as a home maker and parent to assist her and facilitate her ability to undertake full time employment.
I find, taking into account the evidence overall that the husband has made only a minimal contribution to the wife’s superannuation entitlements, and I assess that contribution at 10%.
Section 75 (2) factors
At the time of trial Mr Berry was aged 56 years and Ms Berry 46 years. Neither party referred to any health problems in their evidence in chief. The husband however said in cross examination that he suffers from petit mal seizures for which he is on life long medication and that he also has hearing problems.
In cross examination, the husband put to the wife, when asking questions about her alleged support for his undertaking studies to obtain his PhD, that he had said to her it would be best for him to undertake these studies so he could have an opportunity to [work] at [omitted] which would be best for him in light of his medical situation with respect to seizures and taking into account his age, his health and lack of hearing.
The wife said in answer that she was aware he was taking medication, but it was her understanding that he had not suffered a seizure since he was a young man.
The husband did not adduce any medical evidence with respect to these issues.
I am not satisfied on the evidence that the court is in a position to find that there are any significant health issues in respect of either party that are required to be taken into account for the purpose of assessing the parties needs.
The property of the parties which is the subject of these proceedings is modest, as set out earlier herein. The wife has greater superannuation benefits but is only aged 46 years. The husband is aged 56 years. Neither party are likely to acquire sufficient superannuation to fund their retirement.
The husband’s only income is by way of Centrelink benefits, with the wife earning a good income, but again an income that could only be described as modest. There is no evidence of either party having any other financial resources, although the husband conceded that on occasions his mother has assisted him financially. I do not find that this equates to a financial resource of the husband.
I am satisfied that both parties have the physical and mental capacity for appropriate gainful employment, and note that the wife has been in fulltime employment as a [omitted] since the commencement of the 2005 school year. She obtained her [omitted] qualifications in or about October 2004. She also worked as a [omitted] in the United Kingdom for 2 or 3 months at the end of 2004/early 2005.
At the time of trial the husband was continuing his PhD studies in which he was enrolled on a part-time basis at [A] University. In cross examination he said that he had commenced those studies in 2006 at [B] University and that his doctoral thesis must be submitted by December 2013. When asked whether there was any likelihood of him finishing his studies earlier, he replied “of course”, and when asked if he could give his best guess at an earlier finishing time, he replied “how long is a piece of string”. When asked whether he was able to say whether it was more likely than not that he could complete his studies earlier than the December 2013 date, he replied “no”, and when asked whether it would be unreasonable if the court made a finding that he was unlikely to finish his thesis before 2013, he replied “no”.
The husband’s evidence in cross examination was that the work load for the course was heavy, but when asked whether he undertook other work, he replied that he did and that it was [omitted]. When it was put to the husband that this was [occupation omitted], he replied that he was doing that but not now because it was for a short term. He was then asked in cross examination what he was doing at the time of trial by way of paid employment and said “none”. When asked if his work load precluded that, his evidence was that it was very demanding. When he was asked whether it was therefore unlikely that he would undertake paid employment before the end of December 2013, he replied that he didn’t know but it was possible.
Mr Berry was asked whether he planned to look for work and said that he did. When asked what sort of work he would be looking for, he said it would be in [workplace omitted] because it is highly paid and he plans to move to [B] University. He was asked when he was going to apply for such employment and replied that he was making applications right up to the time of trial. When asked whether any of the applications had been successful, he replied that they had not.
In response to a question from the court as to how many hours per week he could work to maintain his current study level, he replied that he could do 35 hours per week of paid work. When asked by counsel for the wife whether that was the nature of his applications, he replied that it was, but that he did not keep a folio of his job applications. He was asked if he brought copies of his job applications to the court and replied “no”. When asked why not he said he didn’t think it was needed.
It was put to the husband in cross examination that a significant part of the issue for the court to determine at trial was the ability of the husband to undertake paid employment. He replied that he understood that to be the case. He agreed that he would have anticipated that he would be asked questions in relation to the issue of paid employment, and that he was aware that it was a “live issue”.
It was put to Mr Berry that if he had made one hundred applications for employment and had rejections for those applications, it would be a different position for the court to consider than if he had made no applications for employment and accordingly received no rejections. He replied that such a proposition was only supposition on the part of the wife’s counsel.
It was also put to Mr Berry that without information from him in relation to any job applications and/or rejections he had made or received, it was hard to ask questions of him in relation to that important issue and he replied “is it”.
He was then asked what jobs he had applied for, and said he had applied for one job at [workplace omitted] about 3 weeks previously and that that was a fulltime position. He had not been successful with that application. He also said that some 2 weeks previously he had applied for a job at [workplace omitted] as and had not heard back with respect to that application, but it was full time employment with a pay range between $48,000 and $55,000. He said he had applied for employment at [workplace omitted] some 4 weeks previously, but had been unsuccessful in that application.
Mr Berry also told the court in cross examination that he had applied for a [omitted] job at [workplace omitted], which application was “still in the pipeline”.
It was his evidence that he had to look for jobs that he could do because he had medical and hearing problems in that he suffered petit mal seizures, was on lifelong medication in respect of that problem, and also had a lack of hearing.
When Mr Berry was asked whether there was any coincidence in that the job applications to which he referred all seem to have been made within the last month leading up to trial, he replied that there was none.
It was the wife’s evidence that the husband had been a student throughout the period of their cohabitation and marriage, studying at [A] University from 2001 to the end of 2004, at [B] University during 2005, 2006 and most of 2007, and returning to study at [A] University in early 2008.
I find that during the period of cohabitation and marriage, the only paid employment undertaken by the husband was some very limited [omitted] and some employment in the latter part of 2007 in Canberra in [omitted]. I find that from the time of separation to the time of trial, the only paid employment undertaken by the husband was some limited [omitted].
By the time of trial the husband already had tertiary qualifications to the level of Master of [omitted], he had completed part of a [omitted] Degree and had undertaken study for some 3 years in both Canberra and Adelaide towards his doctorate in [omitted]. It was his evidence that he was enrolled in that course of study on a part-time basis, and that he had the capacity to undertake 35 hours per week of paid employment and still maintain the level of study required for his doctoral degree
The husband did not provide any evidence to the court of efforts to obtain appropriate gainful employment for any of the period from at least the end of 2002 when he obtained his Master of [omitted] Degree until the time of trial.
I am satisfied that the husband has the physical and mental capacity for appropriate gainful employment. I find that he has not satisfied the court that he has any genuine intention of seeking such employment at least until he completes his doctoral thesis.
The parties child [X] is in the primary care of the wife and resides with her in Victoria. She is aged 8 years. She has done so since approximately December 2008, some 2 months after the parties separation. [X] spends time with her father primarily during school holiday periods. I am satisfied that the primary responsibility for her day to day care has been with the wife since the date of separation. This responsibility extends to the sole financial responsibility for her care.
The wife has commitments to support herself and [X]. I am satisfied that the wife is able to meet those commitments from her income by way of maintaining a modest budget in respect of average weekly expenses as set out in paragraph 60 of her statement of financial circumstances filed on 24 September 2009.
The husband has a commitment to maintain himself and the child [X]. He currently does not pay Child Support and has not done so since the parties’ separation. The expense incurred by the husband in respect of [X]’s care are limited to costs associated with the time she spends with him pursuant to the existing court orders. His expenses exceed his income. It was his evidence that he has occasional financial assistance from his mother but otherwise meets the shortfall by way of credit cards.
Neither party has a responsibility to support any other person.
The husband is in receipt of a Centrelink Newstart Allowance at the rate of $245 per week. The only superannuation entitlements that the husband has are with the SMF Fund in the sum of $299 and Care Super in the sum of $352.
The wife is in receipt of Family Tax Benefit Part A and Family Tax Benefit Part B totalling $145 per week. She has superannuation entitlements with NGS in the sum of $4,237 and with the Public Service Superannuation Scheme in the sum of $30,445. The wife’s superannuation entitlements arise as a result of her being in either full time or part-time paid employment from the age of 15 years other than between the years 2001 and 2004 inclusive when she was studying fulltime.
The level of the husband’s paid employment over the years of the parties relationship and prior thereto is reflected in his limited superannuation entitlements.
Since separation, the husband has remained living in the former matrimonial home and has maintained the mortgage repayments and other outgoings and expenses with respect to that property. I am satisfied that although the husband’s income is limited to Centrelink payments, his standard of living is reasonable in circumstances where he has elected to study and not undertake any paid employment.
The wife has lived in rented accommodation since separation and I am satisfied that although she has the sole financial responsibility for [X] and herself, she has managed by way of a modest lifestyle to maintain a standard of living for [X] and herself and in the circumstances is reasonable. Her evidence was that she has also had to resort to borrowed funds on occasion, particularly to re-establish [X] and herself post separation. I accept that without Child support assistance from the husband she will continue to experience financial pressure in maintaining a reasonable standard of living for the child and herself.
Section 75 (2) (h) is in the following terms:-
“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;”
It was the husband’s evidence, contained in paragraph 4 of his affidavit filed on 18 September 2009, that the decision that he pursue a career in academia was made after agreement was reached between he and the wife. It was his evidence that the agreement was reached taking into account his age, his health and his expected earning capacity upon completion of his studies, and that the wife had given her unconditional support to him when making that decision. He further said in evidence that he was expecting to complete the PhD in 24 and 30 months, with the wife’s continued financial support.
It was the wife’s evidence, contained in paragraph 35 of her affidavit filed on 24 September 2009, that the husband is a “perpetual student”. It was her view that the husband’s current studies would be unlikely to make any difference with respect to the amount of money he was capable of earning, that he had been a student for decades, and had studied on a part-time basis to fit in with his lifestyle. It was the wife’s evidence that the husband chooses not to work and that such a choice is a lifestyle choice as there are no restrictions on his time and he is not responsible for the care of anyone other than himself.
The wife went on to say in paragraph 36 of her trial affidavit:-
“I never undertook to support [Mr Berry] to do a PhD. He told me he was doing his PhD and I asked him to do [omitted] work to bring in money. He gave me no choice. He did [omitted] work for about a terms but gave up and did not pursue [omitted]. He was offered [omitted] jobs but never pursued them. We were always short of money and our finances were always going “backwards”.”
In cross examination, Mr Berry asked the wife whether she was able to categorically state that she had never once said she would support him whatever he decided to do so long as he was happy. She replied that her support in that regard was on the proviso that he found work through [omitted] so that they could afford to live.
The husband already has a Masters Degree in [omitted]. That qualification was obtained by him by the end of 2002. There is no evidence of him having utilised that qualification to obtain employment, and accordingly there is no evidence before the court as to what income he could earn if he obtained employment commensurate with that level of qualification.
When it was put to the husband in cross examination that the evidence before the court with respect to his financial circumstances suggested that he was “going backwards all the time”, he replied “your point is?”. When asked what his plan was to redress the situation, he replied that the answer to that question was easy and that he would simply get on with his PhD and then set up a Centre for [omitted] at [B] University. He was asked whether he and a Dr L has exchanged letters or proposals in relation to the issue, and he replied that they had had conversations about the idea and he would be able to put a proposal to Dr L after he had completed his PhD.
When asked how sure he was in relation to that issue he replied “one hundred percent – I have self belief.”. He agreed that he had nothing from [B] University to support his evidence.
I am not satisfied on the evidence that the husband’s earning capacity will necessarily be increased by enabling him to undertake his current course of education.
I am satisfied on the evidence that historically the husband does not have a pattern of utilising his ever increasing level of tertiary qualifications to actively seek employment commensurate with those qualifications, or that he will necessarily do so in the foreseeable future.
This is not to say that there is no benefit in the husband achieving those higher qualifications for which he is currently studying, but I am satisfied that those higher qualifications could be achieved if the husband so wished concurrently with him being employed at a level commensurate with his qualifications.
It was this issue that underpinned the orders sought by the husband in his amended application filed on 25 June 2009, wherein he sought an order that the wife make payment to him of $250 per week in a lump sum representing reasonable spousal maintenance. This was repeated in paragraph 5 of Part A of Annexure “SRB2” to the husband’s affidavit filed on 18 September 2009.
Mr Berry submitted in his closing address that this was a relevant issue for the court to address when addressing section 75 (2) factors. He told the court that he wished to continue with his PhD studies, that he wanted to be an academic and that that would lead thereafter to full time employment where he could earn some $90,000 to $100,000 per year.
He submitted that this would result in him being in a position to be able to pay Child Support such that [X] would not have to worry about financial security and that she would be taken such good care of when he had finished his doctoral studies that “all this will disappear into obscurity”.
For the reasons given, I do not find that the payment of maintenance to the husband would increase his earning capacity by enabling him to undertake a course of education or training to obtain an adequate income.
As to other relevant section 75(2) factors, the husband put to the wife in cross examination that she was cohabiting with Mr N. The wife told the Court that Mr N was her boyfriend, and that he lives in his own unit.
Mr Berry put to the wife that Mr N lives with her, that he works in [Victoria], has a house in Western Australia and [occupation omitted] in [Victoria]. She denied that Mr N lives with her.
I accept the wife’s evidence that she is in a relationship with Mr N. I have no doubt that he stays at her home on occasions.
I am satisfied however on the evidence before the Court that the wife is solely responsible for her own support and that of the parties’ child [X].
The other relevant factor for the Court to consider in respect to section 75(2) factors is that relating to the issue of child support.
Section 75(2)(na) of the Family Law Act 1975 (as amended) is in the following terms:-
“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;”.
It is common ground that the husband has not paid child support since the parties’ separation in October of 2008.
The husband gave no evidence in chief in relation to the issue of child support.
He was cross examined on that topic.
When he was asked what the current level of child support was that he was paying, he replied that it was nil. When asked what child support he had paid since separation he replied that he had paid none.
It was put to Mr Berry that he would understand that he had a financial obligation to pay to support [X], and he agreed with that suggestion.
When it was put to him that he had not done that for the past year he also agreed.
Mr Berry was asked whether he had a plan such that he accepted that he really ought to be paying child support and that he needed to work as his study was not providing money to support [X]. He replied that he couldn’t provide child support at this time.
When it was put to him that it was unlikely that he would be in that position until at least December 2013, and that he would be unlikely to pay any substantial child support until that date, Mr Berry said that he completely disagreed with the wife’s counsel.
When asked to tell the court when he would see himself being in a position to pay child support, Mr Berry said that he was applying for positions all the time. I have already made findings in this regard when considering the issue of the husband’s capacity for employment.
When asked whether he had applied for employment over the last twelve months he replied “of course” and when asked whether he was unsuccessful in relation to all applications, he replied “no”. When asked whether he had received offers of employment he also replied “no”.
When asked whether he was casting the net wide enough for potential employment, he replied that he applied for positions for which he was qualified.
When asked whether he was not concerned as to the issue of child support, he replied that he could not be at this time.
Mr Berry agreed in cross-examination that his total expenses as stated in his financial circumstances statement exceeded his income by a long way. When asked how the gap in his living expenses was met, he replied that he was very frugal.
When asked whether his finances would be going “backwards” he responded that he had a Visa card with a growing debt, and when it was put to him that he was living on his credit card, he agreed with that suggestion.
It was the wife’s case that since the parties’ separation the husband had not paid child support for [X], and it was unlikely that he would do so in the future.
It was the wife’s evidence that notwithstanding she has not received any child support since separation, she has in fact contributed the cost of one half of [X]’s airfares between Melbourne and Adelaide and return to facilitate [X] spending time with her father.
I am satisfied, taking into account the history of the husband’s almost continual study over many years and lack of any significant paid employment for the entirety of the period of cohabitation and marriage and post-separation up to the time of trial, that this is the most relevant factor for the court to take into account when assessing section 75(2) issues.
I accept that the wife has the sole financial responsibility for [X], and I find that she is likely to do for the foreseeable future.
I am not satisfied that upon completion of the husband’s doctoral studies there is a likelihood of him paying any significant sum by way of child support. I find that it is unlikely that he will pay any amount by way of child support pending the completion of his doctoral studies.
Both parties have an obligation to financially support [X] until she reaches the age of 18 years, or at such time earlier than that that she might undertake employment and become self-sufficient.
I find that the orders sought by the husband in his amended application filed on 25 June 2009 are reflective of the husband’s attitude overall to his responsibility to contribute to the costs of [X]’s day to day living and education.
In making that finding, I am mindful that it is the parties’ responsibility jointly to provide for their children and that any adjustment in favour of the wife to take into account section 75(2)(na) must also take into account the wife’s responsibility in that regard and her capacity to support [X].
Taking all of these matters into account, including:-
a)the fact that the husband is ten years older than the wife;
b)the wife’s superior income position but the husband’s choice to pursue higher education at the expense of obtaining appropriate gainful employment;
c)the wife’s major responsibility for the care and control of the parties’ 8 years old child;
d)the complete lack of child support payment by the husband to date;
e)the likelihood that any child support received by the wife in the future may be several years in coming and uncertain in terms of the extent of such payments in light of the husband’s employment history to date;
I find that there should be a further adjustment to the wife of 15%.
I am reminded in making the adjustment of 15% in respect of the section 75 (2) factors that this is a matter in which the size of the asset pool is modest. I find that an adjustment of a lesser percentage in the wife’s favour taking into account the particular circumstances of this matter would not achieve a meaningful outcome such as to give effect to my reasons.
Conclusion
My finding overall as to issues of both contribution and section 75(2) factors result in a division of the parties non superannuation asset pool as to 55% to the husband and 45% to the wife.
I have found that the wife’s superannuation asset should be divided as to 10% to the husband and 90% to the wife, and I am satisfied that this would not require any order for superannuation splitting, but can be effected by reducing the amount the husband is required to pay to the wife by the sum of $3,468 (rounded to $3,470).
A division of the parties non superannuation assets as determined herein would result in the wife retaining net assets, after payment of debts in her sole name as referred to in the asset pool section of this judgment, in the sum of $131,207.85.
Taking into account the amount of those debts, and the fact that the wife already has assets to the value of $2,500, a payment will be required to be paid to her by the husband in the sum of $155,543.85. That sum however will be reduced by the sum of $3,470, being the 10% distribution of the wife’s superannuation entitlements to the husband in accordance with the findings made herein. Overall this results in a payment to the wife by the husband of $152,073.85.
The husband is entitled to retain net non superannuation assets to the value of $160,365.15, being 55% of those net assets.
Taking into account his retention of the former matrimonial home at $360,000, and his furniture and effects at $4,219, and further taking into account outstanding debts in his name in the sum of $48,310 and a payment to the wife of $152,073.85, this will result in him retaining assets to the total value of $163,835.15, being 55% of the net non superannuation asset pool ($160,365.15) together with the superannuation adjustment in his favour in the sum of $3,470.
In the event that the husband is unable or unwilling to borrow funds sufficient to satisfy the terms of this order, then it will be necessary for the former matrimonial home to be sold and the net proceeds of sale to be divided so as to reflect the terms of this order. The wife will of course thereafter assume sole responsibility for the liabilities in her name and the husband assume the sole liability for the amount outstanding to David Jones and the mortgage over the former matrimonial home. I find that it is appropriate that he retain the modest superannuation entitlements he has accrued.
I find that such an outcome affords justice and equity as between the parties, particularly taking into account the choices the husband has made with respect to pursuing ever higher education at the expense of seeking paid employment commensurate with his existing high level tertiary qualifications, and the impact that such a course of action has had and will continue to have on the wife in terms of her responsibility to provide for the parties young child [X]. She has a modest income which is commensurate with her level of education, and I find it unlikely to increase significantly in the foreseeable future.
For the reasons addressed herein when considering section 75 (2) factors, I am not satisfied that the husband has made out a claim for spousal maintenance in the sum of $250 per week or in any other sum.
Section 72 (1) of the Family Law Act 1975 (as amended) is in the following terms:-
“A party to a marriage is liable to maintain the other party, to the extent that the first mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:-
(a)by reason of having the care and control of the child of the marriage who has not attained the age of 18 years;
(b)by reason of age or physical and mental incapacity for appropriate gainful employment; of
(c)for any other adequate reason;
(d)having regard to any relevant matter referred to in sub section 75 (2).”
The husband does not have the care and control of a child of the marriage under the age of 18 years.
I have found that there is no physical or mental incapacity on the part of the husband for appropriate gainful employment, and I am further satisfied for the reasons stated earlier herein that there is no other adequate reason, having regard to the relevant matters referred to in sub section 75 (2) such that the wife could be found to be liable to maintain the husband to any extent at all.
For those reasons I make the following orders which are contained at the commencement of this judgment.
I certify that the preceding two hundred and twenty-five (225) paragraphs are a true copy of the reasons for judgment of Mead FM
Associate: P M Malone
Date: 4 June 2010
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