Bradbury and Brabury - [2004] FMCAfam 102

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BRADBURY & BRADBURY

[2004] FMCAfam 102

FAMILY LAW – Property settlement – superannuation only asset – splitting order sought – pre-marriage contributions.

CHILD SUPPORT – Application for departure where nil assessment – husband self employed – capacity to pay.

Family Law Act 1975 (Cth), ss.44(3), 75(2), 79, 79(2), 79(4)(a), 79(4)(b), 79(4)(c), 90MT(1)

Family Law (Superannuation) Regulations 2001

Child Support (Assessment) Act 1989 (Cth), ss.117, 117(1), 117(2), 117(4), 117(5), 117(1)(b)(2), 117(2)(c)(i)

Savory v Savory (1990) FLC 92-131
Gyselman & Gyselman (1992) FLC 92-279
Hides v Hatton (1997) FLC 91-759
Hickey & Hickey (2003) FLC 93-143

Applicant:

JOY LEE ANNE BRADBURY

Respondent:

KENNETH ANDREW BRADBURY

File No:

DGM 1699 of 2002

Delivered on:

2 June 2004

Delivered at:

Melbourne

Hearing dates:

27 November 2003 & 16 & 19 February 2004

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the Applicant:

Ms Spehr

Solicitors for the Applicant:

Fiona McGregor Solicitors

Counsel for the Respondent:

Mr Scriva

Solicitors for the Respondent:

McKay Mendhelson & Round

ORDERS

Property Orders

That the base amount allocated to Joy Leeanne Bradbury out of the interest held by Kenneth Andrew Bradbury in the Asgard Superannuation Fund be $35,000 of the said fund.
Pursuant to s.90MT(1) of the Family Law Act 1975 (Cth) whenever the trustee of the Asgard Superannuation Fund makes a splittable payment to the member Kenneth Andrew Bradbury from his interest in the Asgard Superannuation Fund, then Joy Lee Bradbury be entitled to be paid the amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001.
That there be a corresponding reduction in the entitlement that would have otherwise been provided to Kenneth Andrew Bradbury but for these orders.
That order 2 be effective from the operative time and the operative time be 4 days after service of the Trustee of these orders.
That the parties and the Trustees of the Asgard Superannuation Fund have liberty to apply in relation to these orders.
That in the event the husband’s superannuation entitlements are subject to a taxation assessment paid at the time of splitting the husband’s superannuation, the amount due to the wife pursuant to these orders should not be reduced by the amount of tax assessed on the sum payable in calculation of the said sum due to the wife.
That in the event there are any fees applicable to the splitting of the fund such fees are to be split between the parties on an equal basis.
Pending payment pursuant to order 1 hereof the husband be restrained by injunction from:
(a)Dealing with and encumbering or disposing of his superannuation settlement;
(b)Committing part or any part of his lump sum entitlement to a pension or making an election which may be presently be or at some future date become available to him with the consent in writing of the wife first obtained;
(c)Taking any steps in relation to the superannuation entitlements which would otherwise have the effect of reducing the wife’s interest, including entering into a new fund without the express agreement of the wife being obtained;
That the wife serve the Asgard Superannuation Fund with a sealed copy of these order as soon as practicable.
Unless otherwise specified in these orders and save for the purposes of enforcing any moneys due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other, to property (including choses in action) in the possession of such party as at the date of these orders; and
(b)insurance policies remain the sole property of the owner named therein;
That each party be solely liable for and indemnify the other against any liability in relation to any item of property to which that party is entitled pursuant to these orders.
That all applications for property settlement be otherwise dismissed and removed from the List of Cases awaiting finalisation

Child Support Orders

That there be a departure from the administrative assessment of child support for the period 1 May 2003 to 31 July 2004 in relation to child support payable by the husband for the children Corey Adam Bradbury born 9 November 1993 and Jai Dillon Bradbury born 9 May 1995.
That for the period 1 May 2003 to 31 July 2004 the husband pay child support in the sum of $100 per week.
That the application filed 14 April 2003 be otherwise dismissed and removed from the List of Cases awaiting finalisation.
That the Exhibits be returned to the parties tendering same at the expiration of 30 days in the event that no appeal has been lodged by either party.
That all applications otherwise be dismissed and removed from the List of Cases awaiting finalisation.

IT IS FURTHER ORDERED

The question of whether there should be a departure from 1 August 2004 to 30 September 2005 be reserved and the question of whether the husband should pay the wife's costs be reserved.
The husband have until 30 June 2004 in which to provide written submissions on the question of:
(a) whether there should be a departure from 1 August 2004 to 30 September 2005; and
(b) whether he should pay the wife's costs or part of them.
That a Transcript of today's proceedings be made available to the husband.
That the applicant's solicitors file a Schedule of Costs within seven days.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

DGM1699 of 2002

JOY LEE ANNE BRADBURY

Applicant

And

KENNETH ANDREW BRADBURY

Respondent

REASONS FOR JUDGMENT

Introduction

The genesis of these proceedings was an application by the husband seeking orders for variation of parenting orders made by the Family Court of Australia on 30 April 2001 and in particular variation to contact orders between the children Corey Adam Bradbury born

9 November 1993 and Jai Dillon Bradbury born 9 May 1995. Following a hearing, issues of contact were determined and orders made on 28 May 2003. In her amended response to the husband's application filed 31 March 2003 the wife sought orders by way of property settlement. However the parties were divorced by decree nisi on 14 July 2001 and accordingly the wife's application was out of time. On 17 July 2003 she filed an application for leave to proceed with her application for settlement of property.
On 7 April 2003 the wife filed an application pursuant to the Child Support (Assessment) Act 1989 (Cth) (the Act) seeking a departure from administrative assessment of child support. The hearing of that application, together with the wife's application for leave pursuant to s.44(3) of the Family Law Act 1975 (Cth) (the Family Law Act) to proceed with an application for property settlement, commenced on

27 November 2003 and evidence was given by the wife. The matter was not concluded on that date and was adjourned part heard to 11 December 2003. On the adjourned date the husband sought a further adjournment which was opposed. The outcome was that the application was adjourned but the husband consented to leave pursuant to s.44(3) of the Act for the wife to file an application for property settlement.
The wife did so in the form of an amended response, however no objection was taken to the form of the document and the parties agreed that on the adjourned date namely 6 February 2004 the matter would continue as part heard in relation to the issues of the wife's child support application and her application for property orders pursuant to s.79 of the Family Law Act.

Background Facts

The parties were married on 4 November 1989 and lived together from that date. They separated on 17 June 1999 and a decree nisi was granted on 14 July 2001. They have two children. Pursuant to parenting orders the children live with the wife and have contact with the father:-
a)each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday;
b)each Wednesday at the conclusion of school until the commencement of school on Thursday;
c)one half of school term holidays;
d)one half of Christmas school holidays; and
e)at other times on special days.
There are a number of specific issue orders in place.
At the commencement of the marriage the husband was employed doing maintenance on computer software. In 1998 the husband's company offered him a position in Silicone Valley in California earning about US$70,000 per annum and the parties moved to the United States. They separated in June 1999 when the husband left the home and commenced living with his present wife. The wife then found herself in the United States without the capacity to work and without the support of her family. Without entitlement to any social security benefits she was entirely dependent on the husband's support of herself and the children. To ensure she did not leave, the husband obtained an order which prevented the wife from removing the children from the United States.
Following their separation on 17 June 1999 and initially by agreement, the husband paid to the wife $1042 per fortnight. He made this payment until March or April of 2000 and then ceased paying. The wife then obtained an order for child support and $500 per month spousal maintenance. There was a dispute as to whether the husband regularly paid the wife or not. I accept that there were difficulties with the payment and the wife was in an invidious and vulnerable position during this time. This was compounded by her inability to leave the United States as a result of the husband's orders and the wife was considering at that time what steps she could take to return to Australia.
The husband contends that he made all the payments regularly save for one month. The Child Support Agency in Australia as a result of its bilateral arrangements with the United States, is seeking arrears from the husband. It is clear, and conceded, that the Child Support Agency in the United States takes the view that the husband was not paying regularly and that there are arrears. It is not necessary for the purpose of these proceedings to make a determination of whether there are arrears - as the Agency and the wife contend, or whether the husband had mostly met his obligations as he contends. It is obvious that the wife found herself in a difficult position in the United States as a result of her inability to work and her dependency upon the husband making payments. It only serves to highlight the vulnerability of people who find themselves trapped in another country, having gone in good faith on the basis that the marriage was intact.

General findings

The wife contended, indirectly at least, that all husband's actions were motivated by bad faith, that he had planned to put the wife in an intolerable position by non payment of his obligations, took action to prevent her from leaving the country and then sought at least on a temporary basis, some orders for custody of the children. I am not required to make a finding about these matters, but in any event the evidence does not establish that the husband set out in a deliberate way to obtain custody of the children as the wife suggested.
I do however find that the husband acted indifferently to the wife's financial plight and was unwilling to accept or concern himself with the fact that she was at times in dire financial circumstances. His desire to see the children regularly because of his employment in the United States took precedence over any consideration of whether it would be more appropriate to allow the wife and children to return to Australia. He obtained legal advice that he could prevent them from leaving and acted upon it. However this does no more in my view than highlight the difficulties inherent in such a situation. Whilst viewed individually, there is an unfairness in what happened to the wife, the position may not have been any different if they had been American citizens working in Australia and she had wanted to return to the United States with the children.
Before the wife had an opportunity to take proceedings under the Hague Convention as she apparently intended to do, the husband was retrenched, forfeited his work visa and thus he and the wife and children were required to leave the United States. The husband was retrenched in approximately December 2000.
In the intervening period in which they were still in the United States, the parties divided their assets. They planned to sell their former matrimonial home in Seville and did so. There was a dispute with the first purchaser of the property. Apparently having agreed to purchase the property the purchaser did some alterations to it and then withdrew from the contract. The wife asserts that she obtained advice that they could sue for damages thus caused, and proceeded with this action. The husband asserts that his advice was that this was not a sensible course as they had resold the house and suffered no loss, and that it is not an action that would be successful. He asserts that he was asked to sign some documents to be a co-applicant but refrained from doing so. The resolution of the matter was that costs had to be paid to the other party. The parties divided the proceeds of the sale of the Seville property equally save that the wife was required by the husband to pay the costs of the unsuccessful action out of her share.
The wife asserts that the husband was a party to the proceedings and only withdrew after the costs had been incurred. I prefer the evidence of the husband on this matter. The wife was vague about these matters and was unable to produce any corroborative evidence to support her version. She was uncertain whether it was a Small Claims Tribunal claim or whether proceedings had been commenced in a Court. She was unable to satisfactorily explain whether the matter had gone to a hearing or whether it had been settled and she was unable to explain whether they had sued the previous solicitor or the first purchasers. I find the wife incurred the expense and by distribution of the sale proceeds of the home has met the liability herself. The net proceeds were $21,961.90. The husband received $11,605.95 and the wife received $10,355.95.
After separation the wife and children remained in the rental premises but when the husband stopped his voluntary payments she could no longer afford the rent. With the proceeds of the sale of Seville and a loan from her parents she was able to purchase a property in Orange County. As a result of difficulties with payments her house was sold at a mortgagee sale shortly before she left the United States. The wife received no benefit from the sale.
The parties had a Pontiac motor vehicle at separation. I find that although the husband originally contemplated selling the vehicle it was finally repossessed.
I am satisfied that when the husband worked in the United States and contributed to a pension fund, the law required that a certain number of work credits be accumulated before he was entitled to access superannuation and that in his case he did not work long enough in the United States to have an entitlement. He has superannuation from his previous employment in Australia.
The wife also had superannuation accumulated mostly prior to cohabitation. She utilised her superannuation (approximately $8000) when she relocated herself and her children to Australia. The husband was not paying child support on their return to Australia and received a nil assessment. Apart from the pension the wife had no other source of income. I am satisfied that her superannuation was utilised entirely for the benefit of herself and the children in their relocation and support. This sum should not be treated as a notional asset.
The husband returned to Australia in December 2000 and sponsored his new wife and her children. He thus put himself in a position where he became financially responsible for them in Australia. I am satisfied he applied for several positions upon his return but due to the general downturn in the IT industry was unable to obtain any employment. Within about six weeks he realised that he would have to look elsewhere for employment so he and his wife purchased a courier business which they have operated in partnership ever since.
The business has a contract with Australia Post to deliver parcels. Both the husband and his wife worked in the business and although it was initially established by the husband he subsequently transferred his directorship to his present wife. Although he holds a share, he essentially derives his income as a wage earner from the company of which his wife is a director. I accept a corporate structure was used because this was required by the contract with Australia Post.
When the husband returned to Australia and commenced his business, for a time he paid $50 per month to the wife for the support of the children. He then received a nil assessment from the Child Support Agency and ceased payments altogether. The nil assessment arose from two circumstances. The first was the husband had worked out of the country and therefore had no past history of relevant tax returns in Australia. The second was that reporting his current earnings put him below the threshold for payment. When asked how he thought the family would manage without child support, his evidence was that he assumed that the wife was doing alright without his payments and again, in my view the husband exhibited a profound indifference to the financial plight of the wife, and her responsibilities for the children.
There is some evidence however that the husband eventually came to understand the wife's difficult position. In proceedings before me in June 2003 the husband sought an increase in contact with the children. It emerged that the husband learned that because of the amount of time the children spent with him he was entitled to apply for part of the family tax benefit which the wife had been receiving. He did so and it was applied retrospectively. The result was that the wife was required to repay some of the family tax benefits which, coupled with the fact she was receiving no child support put her once more into dire financial straits. The stark reality of the difficulties for her became apparent at the hearing before me in June. Orders were made for increased contact upon the husband's undertaking not to apply for the family tax benefit as a consequence, and, following those proceedings and having gained an understanding into the wife's position the husband voluntarily commenced payments of $69 per month.

Present Applications

Child support

At the present time there is a nil assessment of child support. The wife’s application which was filed on the 19 May 2003, seeks a departure pursuant to s.117 of the Child Support Assessment Act and in particular relies upon s.117(2)(c)(i) to contend that the nil assessment is unjust and inequitable as a result of the husband's income earning capacity, property and financial resources. Upon the opening of the wife’s case she indicated through counsel that she sought an order that the husband pay $200 per week apportioned equally between the two children.
The precise orders sought were not particularised when the wife’s case closed. Two child support assessments were tendered by the wife. One related to the period from the 1 July 2002 to the 30 April 2003, and the second related to the period 1 May 2003 to the 31 July 2004. Both are nil assessments.
As the wife did not particularise any claims to depart from the earlier period, I propose to treat her application as applying to the period from the 1 May 2003 to the 31 July 2004. Further ,her application was not filed until after the second period had commenced.

Relevant law relating to child support

The provisions of s.117 of the Act empower a Court to make an order for departure from administrative assessment in special circumstances.

Section 117(1) provides as follows:
i)"that in special circumstances of a case one or more of the grounds for departure outlined in s117(2) exist before a Court can make an order for departure;
that under s117 (1)(b)(2) it would be just and equitable, as regards to the child, the carer entitled to the support and the
ii)liable parent; and
iii)that it would be otherwise proper to make a particular departure order."
If these three conditions are satisfied then the Court should make the departure order sought. In Savory v Savory (1990) FLC 92-131 Kay J said that:
“Special circumstances –
were –
facts peculiar to the particular case which set it apart from other cases.”
In Gyselman v Gyselman (1992) FLC 92-279 the Full Court of the Family Court said as follows in relation to the phrase “special circumstances”:
"Whilst it is not possible to find with precision the meaning of that term, as a generality it is intended to emphasise that the facts of the case must establish something that is special or out of the ordinary. That is, the intention of the legislature is that the Court will not interfere with the administrative formula result in the ordinary run of cases.
Section 117(2) of the Act sets out the various grounds of departure. After considering the various bases for departure and whether or not in the special circumstances of the case it is appropriate for a departure order to be made, the Court must then consider s117(4) of the Act which deals with the circumstances in which it is just and equitable to make the departure order sought.
Finally, it is necessary for the Court to consider s117(5) and determine whether or not it is proper to make a departure order."
In Gyselman (supra) the Full Court of the Family Court said at page 240:
"As we have already indicated the exercise under s117 involves three steps. The first, which we have already examined is whether one or more of the grounds in sub-s(2) has been made out. The legislation then requires the Court to consider whether any proposed order is 'just and equitable' and otherwise proper."
It is therefore clear that each of these steps must be addressed by the Court as a separate issue mainly:
a)whether or one or more of the grounds of departure in s.117 is established; if so:
b)whether it is just and equitable within the meaning of s.117(4) to make a particular order;
c)whether it is otherwise proper within the meaning of s.117(5) to make a particular order.
Further, from a consideration of Hides v Hatton (1997) FLC 91-759 it is clear that the Court must follow this three stage process in respect of each year for which a departure order is sought.

Income and earing capacity of the parties

The wife derives her income from a single parents pension and Family Tax Benefit. Her income from these sources is approx $420 per week and she pays rent of $190 per week. In 2001 and 2002 she undertook a course of study in individual counselling and therapy. She then applied and was accepted into the New Enterprise Incentive Scheme which enabled her to receive a wage from the scheme while she set up a counselling business. The business she set up was called “One Step Forward”. She stopped operating the business in late 2003 because she did not have the funds to pay insurance for and psychology training. The option to continue with that business is at present a future proposal only.
To supplement her income the wife is working as a house cleaner on a casual basis and earns about $225 per week most of which goes to pay the expenses. She works approx 9 hours per week. Last year she was hospitalised and I find that that the wife is fully exercising her income earning capacity.
The two children are under the age of 18 years are living with the wife. She is responsible for their day to day care and for the present time she is caring for them with little support from the husband. Her capacity to work, to the extent that she has any, is limited by her obligation as primary care giver for the children.
On his return to Australia, the husband and his new wife commenced a courier parcel business in late April 2001 and obtained an Australia Post contract. The requirement was that the business be operated under a corporate structure, presumably so that the contractors would be independent contractors. The husband was originally the shareholder and director of the company but when his new wife obtained the capacity to work and earn money in Australia, the directorship was transferred to her.
The company, Richbury Holdings Pty Ltd (the company) was incorporated in April 2001. In its first year of operation it earned $3000. The husband’s evidence was that because they did not know what earnings the company would make, they set low wages for the two employees, namely the husband and his wife. In the first year of operation they took $16,000 by way of wages, being $8000 each.
The company has no other employees and in the 2002/2003 financial year, the documents for which the husband had not completed at the time of hearing, the husband said that $24,000 had been taken as wages. The profit and loss statement for 1 July 2002 to 17 May 2003 was produced. This is not a document that was produced for submission to the Taxation Department and was in effect an electronic record of the company’s cashbooks. The gross income for 10 and a half months is $47,857.11. After deduction of expenses, including expenses for two motor vehicles, a net of $2,125.13 remains. The expenses included wages of $22,697.73.
Interestingly, the financial statements for year ending 30 June 2002 indicated that revenue for the company was $49,942, similar sum to the subsequent year. The director’s fees of $17,000 appear as an expense but otherwise no wages were paid in that 12 month period. A Notice of Assessment from the Australian Taxation Office for the husband for the year ending 30 June 2002 indicates that his taxable income was $8,500. All of the documents to which I have referred, with the exception of the husband’s tax assessment notice were documents, which were tendered by the wife. These documents which would normally be expected from the husband, were not produced by him.
The company owns two vehicles, a Ford Transit Van 1997 model and a Ford Metro. The Metro is used for some private expenses. The husband and his wife work out of home and 15 per cent of his telephone and electricity is deductable.
The husband lives in a property at 39 Timms Avenue, Kilsyth which is registered in the joint names of the husband and his present wife. In December 2001 his wife was diagnosed with breast cancer and had a Life Policy which included critical illness upon which she was entitled to make a claim. In November 2002 liability was accepted and in January 2003 a house was purchased using these funds. They borrowed $154,000. The husband said that his present wife was working full time with him and drives a vehicle and they both work 8 hours a day and that she does most of the book work. The husband said that two vehicles had been written off and the company had liability as a result.
During the course of his evidence, the husband indicated that the previous week he had commenced studies in a 2 year computer course. He said he would work in the mornings to earn a bit of income and in fact was now earning $400 to $500 per month. In his financial statement sworn 15 May 2003 he had deposed to receiving salary from the business $279 per week. He said that he intended to work, but he thought that his income would be significantly reduced.

He expects to receive Austudy while he is studying. He anticipated that he would earn between $250 and $270 per week from the courier business and Austudy. He said that studying would not make a big difference to his present earning capacity that he would keep the business going and his wife would continue to run it at least until the Australia Post contract ran out in June 2005.
The documents produced by the husband in relation to his financial circumstances were unsatisfactory. Notwithstanding this hearing concluded in February 2004, the husband did not produce completed profit and loss statements for the year ending June 2003. However, from the documents produced it appears that the husband and his wife are each drawing wages of $279 per week or $558 in total. This amounts to $29,016 per annum. The evidence supports the conclusion that the business is likely to earn $52,207 to the end 30 June 2003.
Whilst the husband intends to study it is difficult to say exactly what his income is likely to be. However, even if he chooses to study this should not entitle him to reduce his income or to successfully argue that he has reduced his earning capacity by reason of a wish to obtain other qualifications when he has obligations to the support of his children. However, upon a careful consideration of the evidence, I am not satisfied that even with the study being undertaken by the husband his income will reduce much. I find he has capacity to generate income from the business by him and his present wife of at least $52,000 per annum.
I accept that the husbands present wife works the business with him driving a van and doing the bookwork and that she is entitled to draw a wage commensurate with his. I do not think this is a case in which it would be appropriate to attribute all of the income to him.
The Child Support income amount for the period 1 May 2003 to 31 July 2004 which is the current relevant assessment period, assesses the husband’s child support income amount to be $8,500 which is his 2001/2002 taxable income. It is accepted that this amount is not the amount that he receives in the relevant period.
Attributing to the husband an income of $15,000 as his financial documents suggest, will result in an annual payment of child support for the two children of about $725. This equates to a weekly amount of about $14. The husband is presently paying $69 per month and offered to continue to pay that sum. I am therefore satisfied that there are special circumstances pursuant to s.117 of the Child Support (Assessment) Act 1989,justifing a departure. The difficulty in this case, as in similar matters is to establish what sum the husband should be paying.
The wife’s application does not particularise the period in which a departure is sought. The applications seeks the following order:
There be a departure from administrative assessment from Child Support in relation to the children of the marriage Corey Adam Bradbury born 9 November 1993 and Jai Dylan Bradbury born 9 May 1995 at such sum as this Honourable Court deems just and equitable in all of the circumstances.
It is clear from the evidence that the husband earned more than $3237 in the period 1 July 2002 to 30 April 2003. However, even imputing to him an income of $15,000 during that period the child support payable would have been less than $20 per week. The husband has no funds from which to meet a lump sum liability that would be created by departing from the period commencing July 2002. Whilst there are special circumstances under s.117 to provide a basis for doing so, I do not consider in all the circumstances it is just and equitable as regards the husband, and I intend to treat the application by the wife, although not particularised, as one to depart from the current nil assessment from the 1 May 2003 to 31 July 2004
I do not consider that $15,000 per annum is an accurate reflection of the husband’s income. The husband did not produce documents which I would have expected, in the form of completed Financial Statements for the twelve month period from July 2002 to June 2003 nor did he produce any statements in the 2003/2004 financial year although there was already seven months trading available .The husband derived his income from his self employment and therefore the wife was restricted in the documents that she could obtain independently. In light of the failure of the husband to produce the documents which would more accurately set out his financial position, I am sceptical that the income he says he earns is the entirety of his income. My reservations are also based on the following:
d)the husbands past history of disregard for his obligations to support the wife and children;
e)the fact that the husband sponsored his present wife and her two children to Australia and that their support from the income in the husband’s household is treated as a priority over the support of his own children;
f)the husband’s lack of corroborative evidence regarding his financial position and particularly the company;
g)the mortgage of $154,000 which the husband and his wife felt they could undertake in early 2003;
h)the fact that the husband claims to be making the entirety of the mortgage payment from his income;
i)whilst discretionary expenditure on one particular day is not necessarily indicative of a life style, the fact that documents produced by the wife indicate expenditure on CD’s and at Liquor Barns suggest that the husband’s position is not as parlous as presented by him.
I am unable to identify with any precision, a figure which can be directly attributed to the husband’s income from the business on the material presented, however I take account of the above matters. In the circumstances I propose to order that the husband pay $100 per week by way of child support.
I regard this as an inadequate sum for the support of the children, but in the circumstances the evidence does not allow me to reach a conclusion that the husband could pay more. It is more than the sum he is offering and has been paying recently.
I will make a departure order for the current child support period 1 May 2003 to 31 July 2004 which will create some arrears payable to the wife. I will raise with the parties for their consideration whether I should make an order an order which will cover the next fifteen month period.
I am satisfied that the order is just and equitable as between the parties. Whilst I am not entirely satisfied that it is “otherwise proper” in terms of the Act in the sense that the wife will still be dependant upon the pension for the support of herself and the children, the evidence does not permit me to make a different order.

Property proceedings

The wife seeks a splitting order in relation to the husband's superannuation entitlement. Following the amendments to the Family Law Act and the coming into effect of the Family Law (Superannuation) Regulations 2001 superannuation is to be treated as an asset of the parties when considering the net pool of assets. The order that she seeks is that she receive a base amount of $37,832.96 which is essentially the entirety of the husband's superannuation. The husband opposes that order and contends that the assets of the parties have been divided in an appropriate way. The husband's position is that there should be a splitting order but that the wife should receive $30,000 of the superannuation and he should retain the balance.

Relevant law relating to property

The approach to be followed in property settlement cases was restated in Hickey & Hickey (2003) FLC 93-143 where the Full Court of the Family Court said [at para 39]:
“The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case”.

The asset pool

The parties agree that the husband's superannuation as at 30 June 2003 had a value of $38,235.21.
The net proceeds of sale of the former matrimonial home are $21,961.90 divided as to $11,605.95 to the husband and $10,355.95 to the wife.
The wife contends that the equity in the Pontiac motor vehicle should be included but I am satisfied that the vehicle was repossessed.
The only other asset of the parties is a caravan which they purchased 12 months prior to going to the United States. I find they paid between $2,500 and $3000 for the caravan. They used it for a short time and then arranged to leave it at the wife's parent's place where it has been unused for three years. The wife's evidence was that when she returned from the United States the parents had been storing things in it and it had become water damaged. She sold it to her sister for $1000 and used that sum to support herself and the children.
The husband contends that the proceeds of the caravan should be brought into account. He contends that the caravan was in a reasonable situation when the parties left and that if it deteriorated then that was because it was not looked after properly. He further contends that the sale is suspicious in the sense it was not at arm's length. Neither party produced any evidence of valuation and I note that the caravan was not expensive when it was acquired. The parties paid nothing for storage and nothing can be inferred in my view from the fact that the vehicle did deteriorate over a period of three years. I find that the wife did sell the caravan to her sister for $1000 and that she was not receiving any child support or spousal support in Australia. I do not propose to bring into account the sum that she received for it.
I find therefore the assets to be the proceeds of sale of the former matrimonial home and the husband's superannuation. The husband contends that the wife's superannuation should also come into account however I do not intend to bring it into account for the reasons already expressed. It was an amount which the wife acquired largely prior to cohabitation from her pre marriage employment and she utilised it on relocating herself and the children back to Australia. Her husband did not assist her with her relocation expenses or those of the children.

Assets

Husband’s Superannuation	$38,235.21
Wife’s share of property of former matrimonial home	$10,355.95
Husband’s share of proceedings of former matrimonial home	$11,605.95
Total	$60,197.11

Contributions

I find that at the commencement of the marriage the wife had savings of approximately $15,000. It is conceded that $10,000 was contributed by the wife from pre marriage savings to the purchase of the property in Seville. I further find that the husband contributed approximately $4500 to the marriage from the sale of a property which he had owned with his brother pre marriage. The property was sold about 12 months after the marriage. The husband had made some contributions to his superannuation fund prior to the marriage of the parties. The wife and her family assisted in renovations to the property owned by the husband and his brother prior to its sale.
The wife worked for a short time after their marriage but once the children were born she was a full time parent to the children and there is no dispute that the wife was the primary caregiver and the husband was the major financial provider for the family. Little evidence was directed to issues of contributions and the parties accepted that other than the initial contributions to which I have referred, the parties contributed equally in their respective spheres.

Given the length of the marriage, the contributions of each of the parties and the mother's contributions of the pre marriage savings, I find that at the end of this marriage the parties have contributed equally to the acquisition, conservation and improvement of the assets including the husband’s superannuation.

Section 75(2) factors

b)The husband and wife’s financial positions have already been described. Both appear to be in good health. They are aged 36 and 37 respectively.
c)Each of the parties commitments is set out. The children live with the wife and she has the responsibility of caring for them, and for their financial support. The husband is contributing to the support of his present wife’s two children and their household.
d)The wife is entitled to a Centrelink pension and she derives a small income from house cleaning.
e)The wife is significantly disadvantaged when compared to the husband. She has no funds from which to purchase accommodation of her own whereas the husband is living in a jointly owned property with a value in excess of $200,000.
f)The husband’s present wife is working and contributing to the income of the household.
g)The only order that can be made is a splitting order that in relation to the husband’s superannuation entitlement, which both parties agree will not provide any immediate funds for the wife.
h)Pursuant to orders that I propose to make for Child Support the husband should be paying $100 per week by way of child support. It is a relevant factor that the wife will, not withstanding the Child Support Order be providing the majority of the financial support for the children.

Conclusion

Having regard to the matters in s.75(2), in my view there should be an adjustment in favour of the wife of a further 25%. I take into account the modest size of the asset pool and the fact that the money will not be available to the wife for some considerable time. The husband’s better financial position will continue to advantage him in the ensuing years when the wife has no access to the funds. If I provide a splitting order where by the wife has $35,000 it will produce an overall percentage to her when added to the funds received from the former matrimonial home of approximately 75%. This in my view is a just and equitable result in all the circumstances.
I am satisfied from sighting a letter of the 22 December 2003 sent by the wife’s solicitors to Asgard Superannuation that the Trustees of the said funds have received a copy of the Orders sought by the wife and thus have been accorded procedural fairness.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Bryant CFM

Associate: Peter Smith

Date: 2 June 2004