BETWEEN:MS BONNETTApplicantAND:MR BONNETTRespondent
[2021] FamCA 225
•27 April 2021
FAMILY COURT OF AUSTRALIA
Bonnett & Bonnett [2021] FamCA 225
File number(s): NCC 3644 of 2017 Judgment of: CLEARY J Date of judgment: 27 April 2021 Catchwords: FAMILY LAW – PROPERTY – Where there are competing applications for adjustment of interests in matrimonial property; spouse maintenance and departure from child support assessment – Where both parties made contributions both financial and to the welfare of the family – Where both parties worked exceedingly hard to accumulate wealth – Where the parties acquired investment properties – Where the parties’ relevant properties including the family home have now been sold leaving a shortfall of funds outstanding to the mortgagee bank – Where the parties now have minimal assets – Where the only assets of significant value are superannuation interests – Where the parties have three children of the relationship – Where the two elder children have special needs - Where the husband has remarried and has another child of that relationship - Where the wife has been out of the paid workforce for 12 years since the birth of the parties’ first child – Where the wife has obvious need for support – Where the husband has capacity to provide that support – Ordered a superannuation split in favour of the wife, for the husband to carry the outstanding mortgage debt, departure from child support assessment and spouse maintenance to the wife. Legislation: Family Law Act 1975 (Cth) ss 75, 79 Cases cited: Bevan & Bevan [2013] FLC 93-545
Stanford & Stanford (2012) 247 CLR 108
Number of paragraphs: 137 Date of hearing: 11 December 2020 Place: Newcastle Counsel for the Applicant: Not Applicable Solicitor for the Applicant: Self-Represented Counsel for the Respondent: Mr Duane Solicitor for the Respondent: Evans Brandon Family Lawyers ORDERS
NCC 3644 of 2017 BETWEEN: MS BONNETT
Applicant
AND: MR BONNETT
Respondent
ORDER MADE BY:
CLEARY J
DATE OF ORDER:
27 APRIL 2021
THE COURT ORDERS THAT:
Superannuation
1.In accordance with s 90XT(1)(a) of the Family Law Act 1975 (“the Act”), whenever a splittable payment within the meaning of s 90XE of the Act becomes payable to or on behalf of MR BONNETT from his interest in the E Super Fund (“the Fund”):
1.1MS BONNETT is entitled to be paid from the Fund the amount of 100 per cent of funds calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using a base amount of $275,297; and
1.2There is a corresponding reduction in the entitlement of MR BONNETT in the amount he would have received but for this order; and
1.3Both parties, in their capacity as directors of E Pty Ltd, being the Trustee of the E Super Fund, shall do all such acts and things and sign all such documents as may be necessary to:
1.3.1Calculate, in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001, the entitlement created for MS BONNETT by these orders; and
1.3.2Pay the entitlement whenever the Trustee makes a splittable payment out of MR BONNETT’S interest in the E Super Fund.
1.4The operative time for the above superannuation splitting orders is the beginning of the 4th business day after the day on which a sealed copy of this order is served on the Trustee of the Fund.
2.The Applicant and the Respondent, in their capacity as directors of the company acting as Trustee of the E Super Fund, shall do all such acts and things and sign all such documents, including but not limited to the signing of trust minutes, rollover requests and related documents as may be necessary to give effect to these superannuation splitting orders.
3.That simultaneously with the implementation of the above superannuation splitting orders, the Applicant and the Respondent do all acts and things and sign all such documents as necessary for the Applicant to resign as director and shareholder of the E Super Fund Trust.
Other Assets
4.Subject to these orders and except for as otherwise provided, the Applicant will retain to the exclusion of the Respondent all other assets and resources in her own name, possession and control, including but not limited to:
4.1The Applicant’s superannuation entitlements in Super Fund 1;
4.2Any cash standing to the credit of the Applicant in any savings or other account funds in any bank, credit union, building society;
4.3Household contents and personal effects; and
4.4Any vehicles or other assets in her possession.
5.Subject to these orders and except for as otherwise provided, the Respondent will retain to the exclusion of the Applicant all other assets in his own name, possession and control, including but not limited to:
5.1Super Fund 2 …13 and Super Fund 3 …75;
5.2The Motor Vehicle 1 … currently registered in the Respondent’s name and in his possession;
5.3Any cash standing to the credit of the Respondent in any savings or other account funds in any bank, credit union, building society;
5.4Household contents and personal effects.
Indemnities
6.That except as otherwise provided in these orders, each party shall indemnify and keep indemnified the other party for any debt, including any mortgage, credit card or loan account or debt to the Australian Taxation Office in the name of the party;
7.The husband shall indemnify the wife against all claims made against her with respect to the debt jointly owed by the parties to H Bank arising from a mortgage being H Bank Portfolio Loan … [loan numbers ending …21, …21 and …64].
Child Support Departure
8.That pursuant to s 117 of the Child Support (Assessment) Act 1989 (Cth) and by way of departure order from the administrative assessment issued by the Department of Human Services (Child Support), the husband pay to the wife by way of periodic child support for children, X born … 2008, Y born … 2011 and Z born … 2014 (“the children”) the sum of $1,500 per week, being the sum of $500 per child per week to be paid to the wife on the following conditions:
8.1Payments are calculated as and from the date of these orders;
8.2The first payment is due and payable within seven (7) days of the date of these orders;
8.3Payments are made by direct deposit into the wife’s bank account held with the National Australia Bank, being BSB … Account no. …52, or should the wife choose, through the child support agency;
8.4Payments thereafter to be made by no later than the seventh day of each calendar month;
8.5Payments are in advance monthly;
8.6The husband’s obligation to pay for each child shall terminate upon a child turning 18 years of age or when that child completes secondary schooling, whichever is the later.
9.The wife shall be responsible for all day to day costs for the children whilst in her care, including education, medical, therapeutical, private health and extra-curricular activities.
10.The annual rate payable is $78,000, such rate to be adjusted in accordance with any change in the weighted average Consumer Price Index (“CPI”) for Sydney NSW for the preceding calendar year. This increase shall come into effect, on the first anniversary of these orders and shall be increased each year thereafter.
11.The husband is to pay to the wife’s bank account all amounts outstanding for additional children’s costs pursuant to current interim orders within 30 days of these orders.
Spousal Maintenance
12.The husband shall pay to the wife the amount of $500 per week as spousal maintenance until the youngest child turns 18 years as follows:
12.1The first payment is due and payable within 7 days of the date of these orders;
12.2Payments are to be made by direct deposit into the wife’s bank account held with National Australia Bank BSB … Account no. …52;
12.3Payments thereafter are to be paid no later than 4.00 pm each Monday;
12.4The annual rate is $26,000, such rate to be adjusted in accordance with CPI. This increase shall come into effect on the first anniversary of these orders and shall be increased each year thereafter.
13.The parties’ respective applications are otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bonnett & Bonnett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
The parties to these proceedings have been in continuous dispute in this Court since an Initiating Application was filed by the wife on 22 November 2017.
There have been numerous court events.
Both parties have been variously legally represented and self-representing.
Both parties when self-represented, but more particularly the husband, have generated an enormous number of documents both annexed to affidavits and compiled in folders.
This lack of clarity and focus has made the task of determining issues in dispute much more difficult and time consuming than could have been the case.
The underlying dispute is the level of expenditure required to support the needs and special needs of the parties’ three children and the mother as their carer.
There were competing applications for adjustment of interests in matrimonial property including real estate and superannuation; and also for spouse maintenance and child support.
The matter was listed urgently by me, both parties being unrepresented, for one day on 11 December 2020 in an attempt to finalise as much as possible.
That court event was undertaken in circumstances where the parties acknowledged that the net asset pool had diminished such that there was little to divide. The husband had resisted sales in the hope of refinancing and recovering.
On the day of trial the wife continued to be unrepresented. The husband had solicitor and counsel.
At the conclusion of cross-examination of the parties, the husband’s wife, and of submissions, there was consent to orders being made for the sale of the four relevant properties.
Those orders were made.
Judgment in respect of the remaining issues was reserved.
On 23 March 2021 the matter was relisted by the Court for confirmation or otherwise that properties about which orders had been made by consent had in fact been sold.
Confirmation was provided that contracts for each property had been exchanged, with the sale of two properties yet to settle.
The parties advised the Court that the outcome was worse than anticipated. There would be no net proceeds of sale. A shortfall of funds of $122,128 would be outstanding to the mortgagee bank, H Bank.
Judgment was again reserved for reconsideration of the balance of issues in dispute.
Accordingly, these reasons relate to the adjustment of interests in mortgage debt and superannuation funds, together with consideration of child support for the parties’ three children and spouse maintenance for the wife
SHORT HISTORY OF MARRIAGE
The parties began living together in 2001 and married in 2008.
In September 2008 the wife took maternity leave.
Birth of first child
In 2008 the parties’ first child was born. He is now 12 years. Prior to his birth the child suffered a stroke. At birth he had, and continues to have, complex special needs arising from the stroke in utero. He has cerebral palsy.
The wife did not return to work and has now been out of the paid workforce for twelve years.
Birth of second child
In 2011 the parties’ second child was born. She is now ten years. The child has been diagnosed with a Generalised Anxiety Disorder and a Communication Disorder.
Birth of third child
In 2014 the parties’ third child was born. She is now seven years and in good health.
Separation
The parties separated in 2017. The husband left the home.
The relationship had endured for sixteen years. The parties were divorced in September 2018.
Parenting orders were made by consent after a Judicial Settlement Conference in June 2020. [1]
THE PARTIES
[1] Orders made by Justice Stevenson on 24/06/2020.
The Applicant Wife
The wife is currently 45 years of age. She is not in paid employment and is a homemaker and student. She lives in City G, New South Wales (“NSW”).
Post separation the wife lived in the former family home in J Street, Suburb K, which has now been sold.
The household of the wife consists of herself and the parties’ three children, living in rented accommodation.
The wife denies a current relationship.
The Respondent Husband
The husband is currently 47 years of age. He is employed as a professional. He lives in South Eastern Queensland.
The husband remarried in 2018. There is one child of that marriage born in 2020.
The household of the husband consists of himself, his current wife and their child.
The husband has lived in the property at Suburb B in Queensland since early 2019. Previous to the husband and his current wife moving to live there, there had been rental income from the property. It had originally been the parties’ holiday house. Settlement was due to take place on in early 2021.
THE APPLICATIONS
The Applicant Wife[2]
[2] Exhibit 1.
The wife proposed that the interests of the husband in three superannuation funds be transferred to her. [Order 20]
The husband proposed that each party otherwise retain the assets and resources in their respective names and indemnify each other with respect to relevant claims and debt. [Orders 24-27]
That there be a departure order from current Child Support Assessment to $500 per child per week until each child turns 18 or completes secondary schooling. [Orders 28-31]
That there be an order for spouse maintenance in the sum of $750 per week until the youngest child turns 18 years.
The Respondent Husband[3]
[3] Exhibit 2.
The husband proposed that there be a split in the E Super Fund in favour of the wife using a base amount of $165,000. [Orders 14-18]
That the parties otherwise retain assets and resources in their own names with indemnity for claims and associated debt.
That the departure application of the wife be dismissed OR that the husband pay up to $15,600 per annum for expenses for the children in addition to child support amount as assessed.
That the application for spouse maintenance be dismissed. [Order 25]
That arrears of child support and spouse maintenance owed by the husband pursuant to current orders be dismissed. [Orders 26 and 27]
EVIDENCE
The documents relied on were are as follows:
The Applicant - Ms Bonnett
(a)Initiating Application filed 22/11/2017; superseded by orders proposed in Outline of Case (pages14-22 inclusive) document dated 24/10/2020;
(b)Affidavit of the wife filed 12/10/2020;
(c)Financial Statement of the wife dated 12/10/2020;
The Respondent – Mr Bonnett
(d)Response filed 13/08/2018; superseded by orders proposed in Minute of Proposed Orders document dated 1/07/2020;
(e)Affidavit of the husband filed 2/10/2020;
(f)Financial Statement of the husband filed 2/10/2020;
(g)Affidavit of the husband’s wife, Ms N, filed 2/10/2020.
ALTERATION OF INTERESTS IN PROPERTY, SPOUSE MAINTENANCE AND CHILD SUPPORT
In considering applications for alteration of property interests and transfer of property the Court must:
(1)Identify the existing legal and equitable interests of the parties in property;[4]
(2)Consider whether it would be just and equitable in the particular circumstances to make an alteration;
(3)If an alteration should be made, to consider the matters contained in ss 79(4) and 75(2) of the Act in coming to an adjustment; and
(4)Analyse and consider whether the adjustment under consideration would be just and equitable.
[4] Stanford & Stanford (2012) 247 CLR 108; Bevan & Bevan [2013] FLC 93-545.
(1) WHAT ARE THE LEGAL AND EQUITABLE INTERESTS OF THE PARTIES
The parties’ interests were set out in the Balance Sheet tendered into evidence.[5] It was not a joint Balance Sheet but was the best available evidence.
[5] Exhibit 3.
The Balance Sheet is set out below for historical background.
Ownership Description Applicants value Respondents value ASSETS 1. J J Street, Suburb K NSW (folio identifier …) $ 1,010,000 $ 1,010,000 2. J L Street, Suburb M QLD
(folio identifier …)
$ 426,250 $ 426,250 3. H C Street, Suburb B QLD
(folio identifier …)
$ 392,875 $ 392,875 4. W Household Contents $ 5,000 $ 5,000 5. H Household Contents $ 5,000 $ 5,000 6. W Motor Vehicle 2 $ 7,650 $ 7,650 7. H Motor Vehicle 1 (Lease vehicle - formerly registered in NSW as …) $ 55,300 $ 55,300 8. W CBA …46 $ 143 $ 143 9. W NAB …52 $ 1,135 $ 1,135 10. W NAB …85 $ -30 $ -30 11. W NAB …59 $ closed $ closed 12. H NAB …33 $ -350 $ -8 13. H NAB …09 $ 0 $ 0 14. H NAB …27 $ 0 $ 0 15. H NAB …26 (Shared Account with Ms N) $ 0 $ 207 Total $1,902,973
$1,903,522
ADDBACKS 16. H Repayments to ANZ Credit Card in the name of Ms N $ 11,423 $ 0 17. H Repayments to P Bank Loan – post separation
engagement ring
$ E16,000 $ 0 18. H Rental income retained by Husband from separation to date ($185,685 – E122,273.64 paid to investment property mortgages) $ 63,411 $ 0 19. H Insurance payout for the J Street property retained by the Husband $ 8,789 $ 0 20. H Overdue Children’s Expenses pursuant to Departure Order $ 17,004 $ 0 21. H Funds used from H Bank sub-loan account …21 on 12.02.19 to pay Husband’s liabilities under Orders agreed to in writing on 12.02.19 $ 6,566 $ 0 22. H Payments made from H Bank sub-loan account …21 on 31.01.19 to meet Husband’s liabilities pursuant to the Orders 22.02.19 agreed to in writing on 31.01.19 $ 42,682 $ 0 23. H Payments made from H Bank sub-loan account …21 on 07.03.19 to meet Husband’s liabilities pursuant to the Orders 22.02.19 agreed to in writing on 12.02.19 $ 3,254 $ 0 24. H Sale proceeds of Motor Vehicle 3 retained by Husband (rec 11.08.17) $ 15,318 $ 15,318 25. H Q Company bonus retained by Husband on 08.11.17 and not applied to matrimonial property $ 78,283 $ 0 26. H Husband’s legal fees $ 70,250 $ 0 27. H Salary deductions – Lease & Assets Finance & Novated Lease $ 36,536 $ 0 28. H Salary deductions – Staff debtor $ 1,682 $ 0 29. H Payments made to CBA finance for Motor Vehicle 1 Post separation $ 12,786 $ 0 30. H Lease payments for Motor Vehicle 1 from October 2019 to date $ NK $ 0 31. W Wife’s legal fees $ 0 NK 32. W Sale proceeds of car retained by wife $ 25,000 $ 25,000 Total $ 408,984 $ 40,318 LIABILITIES 33. J H Bank …21 $ 464,423 $ 447,298 34. J H Bank …21 $ 46,108 $ 45,386 35. J H Bank …64 $ 353,271 $ 354,181 36. J NAB …45 $ 441,954 $ 441,120 37. J NAB …98 $ 168,000 $ 169,974 38. J NAB …16 $ 84,000 $ 83,911 39. J NAB …35 $ 276,000 $ 274,934 40. J NAB …84 $ 86,000 $ 85,677 41. J Strata Levies outstanding on L Street, Suburb M $ 18,425 $ 18,425 42. J Council and Water Rates outstanding on L Street, Suburb M $ 5,583 $ 5,583 43. H Westpac Credit Card …24 $ 0 $ 23,285 44. H NAB Credit Card …22 $ 0 $ 14,986 45. H O Bank Credit Card …07 $ 0 $ 32,329 46. H Loan from father $ 0 $ 25,000 47. W HECS Help Debt $ 2,452 $ 2,452 48. H Motor Vehicle 1 Lease $ 0 $ 50,327 49. H Outstanding balance of loan from Ms N – to pay lump sum spousal maintenance $ 0 $ 18,794 50. H Loan from Ms N – to pay child support during period of unemployment $ 0 $ 10,743 51. H Loan from Ms N – to pay legal fees $ 0 $ 0 Total $ 1,946,216 $ 2,104,405 SUPERANNUATION Member Name of Fund Type of Interest Applicants value Respondents value 55.
(sic)W E Super Fund Self-Managed $ 163 $ 163 56.
(sic)W Super Fund 1 Accumulative $ 65,866 $ 65,866 57.
(sic)H E Super Fund Self-Managed $ 251,261 $ 276,559 58.
(sic)H Super Fund 2 Accumulative $ 113,793 $ 99,914 59.
(sic)H Super Fund 3 Accumulative $ 14,069 $ 18,041 Total $ 445,152 $ 460,543
The parties have been separated for almost four years and are divorced. The husband has re-married.
The parties have both wished to sever the financial relationship between themselves. They have been unable to agree on how to achieve that financial separation.
The parties held real estate in joint names, now sold.
The orders made by consent contemplated discharge of all mortgage debt, reduction of the husband’s credit card debt and a payment to the wife of not less than $200,000.
Ultimately debt exceeded equity. The anticipated shortfall owed to the mortgagee is $122,218.
The financial position of the wife is precarious as a result.
(3) CONSIDERATION OF SS 79(4) AND 75(2) OF THE ACT IN ORDER TO COME TO A JUST AND EQUITABLE ADJUSTMENT
Contributions under Section 79(4)
At commencement of cohabitation:
The parties were in their mid-twenties when they began living together in mid-2001. The husband was in a stronger financial position through income level than the wife.
The husband had recently purchased for $70,000 an investment property in Suburb R QLD (“the Suburb R QLD property”) with equity of $15,000. He had a leased Motor Vehicle 4 with a value of $70,000, household goods which furnished the parties’ residence and two super funds with a combined value of about $72,000. He was a professional with an income of $110,000 per annum.
The wife had a Motor Vehicle 5. She bought a property in City S QLD (“the City S property”) for $125,000 which the parties then lived in. The wife paid the deposit. She received a First Home Owners Grant. The parties were joint borrowers for the bank loan which financed the balance of purchase price. The wife was a professional with an income of $29,000 per annum.
During the relationship
Over the course of the sixteen year period of living together (2001-2017) the parties both made contributions, both financial and to the welfare of the family.
In the early years the parties were keenly focused on generating wealth. They acquired several investment properties negatively geared against the income of the husband.
Within two or three months of the parties’ shared life beginning, they moved from City S to City T QLD. The husband obtained similar employment with a $20,000 drop in salary. The wife too obtained employment but her salary increased by $22,000.
The City S property was leased and rental income was applied to the mortgage.
In February 2002 the parties jointly purchased a property in U Street, City T QLD (“the City T property”) for $166,000. The salary of the husband and a 2 per cent subsidy was applied to the loan.
In April 2003 the husband was promoted and his higher salary package included company accommodation.
The parties leased out the City T property. The rental income was applied to the mortgage.
In November 2003 the parties jointly purchased three investment properties in City V QLD at a combined cost of $342,500. The properties were leased and rental income applied to costs.
In the first quarter of 2004 the husband received a bonus of $10,000. He was then made redundant and given a payout of $110,000.
Half of the combined funds ($60,000) was used as a deposit for the joint purchase of a property at Suburb W QLD (“the Suburb W property”). The Suburb W property was purchased for $450,000.
In the second quarter of 2004 the husband found employment in City G. The parties moved to live in City G. The wife also took up work in that city. Their combined salaries were about $220,000 plus bonuses for the husband.
In mid-2004 the parties sold the City T property. The gross profit was $13,000.
Also in that year, 2004, the parties jointly purchased a property in Suburb K City G (“the family home”) for $575,000. They lived in the home together for 13 years until separation. The wife and three children of the marriage continued to live there. The husband moved to live in the parties’ holiday house in Queensland.
The husband applied $19,000 from the sale of a vehicle to reduce debt on the family home.
In late 2005, the income of both parties rose to: $100,000 per annum for the wife; and $180,000 plus bonuses for the husband.
The parties jointly purchased for $331,000 two units in a property at Suburb AA, City S QLD (“the Suburb AA property”).
In June 2006 the parties demolished and rebuilt the family home at a cost of about $420,000. They moved out and rented elsewhere for 12 months whilst the work was done.
In the first quarter of 2007 the parties sold two of the City V properties for a total of $475,500. These funds were applied to the building cost for the family home and to reduce debt.
In the second quarter of 2007 the parties jointly purchased for $595,000 a property at Suburb M QLD (“the Suburb M property”).
By 2007 the parties had combined salaries of $338,000.
In mid-2007 the Global Financial Crisis emerged although its effects were not felt by the parties until the following year.
In July 2007 the parties jointly purchased for $600,000 four units in a property at Suburb BB in City S QLD (“the Suburb BB property”). The purchase was fully funded by bank loans.
In November 2007 the husband sold his Suburb R QLD property for $238,000. The net proceeds of $150,000 are said by the husband to have been applied to the construction cost of the family home. This evidence is at odds with his evidence that two of the City V properties were sold in January 2007 and the proceeds of sale applied to covering all of that construction cost.
Early in 2008 the wife became pregnant with the parties’ first child.
The parties spent $135,000 on installing walls and fences at the family home.
In March 2008 the parties purchased for $412,000 a unit in Suburb K, City G. The loan was secured on the family home.
When the first child was born later that year and his medical problems were revealed, the wife took a redundancy and has not returned to paid work.
The career and income of the husband flourished. The parties maintained the portfolio of property buying and selling from time to time.
In 2011, the year the parties’ second child was born, the husband was earning $345,000.
The wife lost all enthusiasm for investing in property and high levels of personal spending. The husband did not.
Over the years to 2017 a further $100,000 was applied to improvements to the family home.
In April 2017 when the youngest child was three, the husband moved out of the home and the marriage ended.
Since separation in April 2017 contributions have been made as follows:
Relevant factors under section 75(2)
The factors in Section 75(2) of the Family Law Act 1975 (Cth) (“the Act”) are relevant both to property and spouse maintenance.
The age and state of health of each of the parties
The wife is aged 45 years. She was diagnosed with a heart condition in 2018 and has since had a cardiac ablation to modify the condition.
The wife is also medicated for anxiety and depression.
The evidence suggests that the stress of caring for the three children without close family support is having a detrimental effect on the physical and mental health of the wife.
The husband is 48 years old. There is no evidence to suggest that he is not in good health.
The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
The wife receives Centrelink income, and child support from the husband for the children.
The parties do not have assets, they have residual debt after sale of real estate.
After a period of unemployment between July 2018 and early 2019 the husband again found well remunerated work for a company in Region CC.
The husband has a weekly gross weekly income of $4855 (net $3089). He has a net rental loss of $500 per week from geared investment property which will cease in the short term future.
The husband has superannuation interests in three funds with a total value of approximately $400,000.[6] The wife has interest in two funds with a total value of $46,000.[7]
Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
[6] Financial Statement of the husband filed 2/10/2021.
[7] Financial Statement of the wife filed 12/10/2021.
The wife has always had the primary care of the children. The parties agreed that the wife would remain at home and care for the three children born over two and a half years (2008-2011). The arrangement continued after separation in 2017 and was confirmed by final parenting orders made in 2020.
The wife is occupied meeting the needs of the children including the special needs of the eldest child. She may return to paid employment. If she did, it would be even more unlikely that she could earn the type of substantial income she had before the children were born.
The responsibilities of either party to support any other person
The wife has a duty to support the parties’ three children.
The husband has a duty to maintain the three subject children and the child of his current marriage.
The husband’s current wife is not supported by the husband. She has supported the husband by lending him money to meet his child support and spouse maintenance obligations and to pay legal costs.
Subject to s 75(2)(3), the eligibility of either party for a pension, allowance or benefit under: (i) any law of the Commonwealth, of a State or Territory or of another country; or (ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party
The wife is supported by various Commonwealth benefits on a weekly basis of: Carers Allowance of $132; Family Allowance A and B of $147; Disability Carers Pension of $472 per week; totalling $751 per week.
Where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable
The wife and children remained in the family home for almost four years after separation until the property was sold. They are now living in rented accommodation.
The wife has advocated strongly with NDIS for funding for the elder children to maintain the therapies and activities which assist them.
Whether or not he does so, the husband is in a financial position through his income, and perhaps that of his wife, to obtain finance for the purchase of a property to live in.
The effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant
After all sales of real estate have settled the parties will owe a debt of $122,000 to the mortgagee, H Bank. The wife has no capacity to contribute to paying off the debt.
The husband will probably borrow to repay.
The extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party
The wife made a substantial contribution to the acquisition of assets through her income.
Her full time care of the children as each one was born enabled the husband to work full time in order to support both parties and the children.
Her need for support was properly acknowledged by counsel for the husband in submissions.
The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration
The relationship between the parties endured for about 16 years.
Before the birth of the parties’ first child the wife was employed in a national professional role, working long hours, travelling interstate and overseas and earning an executive salary.
The disability of the oldest child and the psychological disorder of the middle child have placed demands on the wife which she has willingly met with unfailing care. One consequence is that she no longer has the strong earning capacity she had until 2008.
The wife has been studying through an online course for a Masters of Teaching. If the wife is able to do so she may in future teach in schools.
The need to protect a party who wishes to continue that party's role as a parent
The wife requires financial support to enable her to maintain her role as parent.
If either party is cohabiting with another person - the financial circumstances relating to the cohabitation
The husband has the financial and personal support of his current wife. Her income as a professional working part-time is $98,000 per annum.
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
In February 2018 a Child Support Departure Order was made by this Court requiring the husband to pay $41,444 per annum plus a maximum additional sum of $41,600 per annum, for expenses on provision of receipts or quotes.
The husband had difficulty with those orders during his eight month period of unemployment in 2018/19 and relied on his current wife for assistance.
More recently the husband has been paying $858 per week in child support as subsequently assessed by Child Support, and for additional expenses.
The departure order now made, provides for an increase in child support to $500 per week per child with annual CPI increases. The former additional order for expenses to up to a maximum amount is abandoned due to the administrative paper work and emotional burden on the wife with an adjustment of the overall amount.
In his financial statement the husband claimed $270 per week for the needs of the infant child of his current marriage. The application of the wife is reasonable and well supported by her evidence of their needs.
Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
The parties now have minimal assets. The wife has a car. The husband has a leased vehicle as part of his employment package. Both parties have some personal and household effects.
The interests in the parties’ self-managed superannuation are a resource for the future and a splitting order is made by these orders to provide the wife with a share equivalent to an overall division of 70 per cent of the superannuation assets to the wife.
The outstanding debt will be carried by the husband. The husband will carry the debt and indemnify the wife. That has an impact on his capacity to pay spouse maintenance in addition to child support.
It is for that reason that the application by the wife for $750 per week has been reduced to $500 per week.
(4) ANALYSIS OF WHETHER THE ADJUSTMENT CONTEMPLATED IS JUST AND EQUITABLE
In the first seven years of their relationship the parties both worked exceedingly hard to accumulate wealth, mainly through application of their respective incomes to investment in property and the establishment of a family home.
After the birth of the first child in 2008 a point of difference emerged between the parties. The wife wanted to sell all investment properties. The husband did not.
The wife was unable to return to paid employment due to her commitment to meeting the very different needs of the parties’ three children. She has been primarily responsible for the care of the children since their birth. She is now living in rented accommodation without the contingency fund of $200,000 which both parties contemplated she would have after the sale of the four pieces of real estate. Other than government support she is impecunious.
The husband has in the past opposed ongoing support of the wife, but the wife has obvious need for support in the circumstances and the husband has the capacity to provide that support.
ADJUSTMENT OF INTERESTS
The only assets of significant value are superannuation interests with a total value of $449,526.
The wife should retain her own interests with a value of $46,505. The husband should retain his two superannuation funds with a combined value of $127,724.
A splitting order for the self-managed E Fund of 100 per cent to the wife, delivers a fund with a present value of $275,297. This provides the wife with a total fund for the future of $321,802.
The division represents an approximate split 70/30 in favour of the wife. It reflects her contributions during the marriage and future needs. It also reflects the superior financial position of the husband even after he meets ongoing obligations pursuant to these orders to pay child support and spouse maintenance
CONCLUSION
Orders in respect of adjustment of interests in chattels, superannuation and joint debt; spouse maintenance, and child support are made for the reasons above.
I certify that the preceding one hundred and thirty-seven (137) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cleary. Associate:
Dated: 27 April 2021
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Remedies