C and C
[2002] FMCAfam 178
•21 June 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| C & C | [2002] FMCAfam 178 |
| FAMILY LAW – Residence – wishes of the child – expert’s opinion that the residence orders should not be in accordance with those wishes – orders made contrary to expert’s opinion – property – husband’s additional contributions as a result of injuries suffered by the wife – relevance of minimal child support paid by the husband – husband’s earning capacity and superannuation. |
| Applicant: | S J C |
| Respondent: | T J C |
| File No: | CAM 2546 of 2001 |
| Delivered on: | 21 June 2002 |
| Delivered at: | Canberra |
| Hearing Date: | 1, 2, 3 & 8 May 2002 |
| Judgment of: | Brewster FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Tonkin |
| Solicitors for the Applicant: | Campbell & Co |
| Counsel for the Respondent: | Mr Nash |
| Solicitors for the Respondent: | Chris Crowley & Associates |
FEDERAL MAGISTRATES |
CAM 2546 of 2001
| S J C |
Applicant
And
| T J C |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter concerns competing applications concerning property and the residential arrangements with respect to the parties’ child.
Background
The wife was born 20 March 1961 and is currently 41 years of age. The husband is aged 35 having been born 27 December 1966. They married on 3 December 1988. There is one child from the marriage,
J B R Cwho was born 10 November 1991. J is known as “J” and I will call him this in this judgment.
At the date of the marriage the husband was working for a car dealership in Canberra. He ceased that position in 1989 and on
4 September of that year commenced employment with the ACT Ambulance Service as an ambulance driver. Prior to being offered this employment he had obtained qualifications as a paramedic. He is still employed by the Ambulance Service. He worked full-time until this year when he changed to a part time arrangement. This was to enable him to spend additional time caring for J should his application in relation to residence be successful.
In May 1999 the husband established a sewing business called S-I-A. This is carried on in the garage of their home. It involves sewing backpacks, fire-fighting mannequins and covers for industrial equipment. This business is still in operation.
Prior to the birth of J, the wife was employed in a number of temporary jobs. She was also attending the Canberra Institute of Technology studying to become an accountant. She returned to work after the birth of J. In 1997 she obtained a position as a bookkeeper with A S A, but on 3 June 1998 suffered a car accident while travelling to work. She was unable to work for an extended period after this accident but has recently commenced work four days a week as a bookkeeper/accounts clerk with a firm called P C.
In 1991 the parties bought a block of land at 15 W Loop, G. They built a house there basically as owner/builders. This took a significant time and the construction of the house is still not fully complete.
In January 2001 the parties separated although both remained living in the G property. On 6 March 2001 there was an incident between the parties which will be discussed later in this judgment and as a result of this incident the wife obtained an order under the Domestic Violence Act which inter alia prevented the husband from remaining at the G home. J remained with the wife and arrangements for contact were somewhat ad hoc. In May 2001 the husband commenced proceedings in this court seeking that J live with him. On 28 May 2001 interim orders were made which provided that J live with the parties on a four day about basis. The reason for the four day shared arrangement, as opposed to the more conventional seven/seven pattern, was that the husband’s shifts involved four days at work and four days off.
Recently the husband has, as previously indicated, reduced his working hours and he now works for four days and has twelve days off.
The husband seeks an order that J reside with him most of the time. He proposes that J live with him for eleven days, then with the wife for five days, then with him for a further eleven days and the wife for five days and then with him for ten days and the wife for six days. This pattern then repeats.
The wife seeks that a shared regimen continue but acknowledges that a four day about arrangement is unsatisfactory and now, in light of the husband’s changed working arrangements, unnecessary. She proposes that J live with the parties on a seven day about basis.
The residence issue
The Family Law Act requires that in making a decision as to residential arrangements concerning J the paramount consideration is his best interests. The backdrop to this is section 60B of the Act, which sets out the principles and objects of the Act insofar as children are concerned. Insofar as those principles and objects are relevant to this case, they provide that children should receive adequate and proper parenting to enable them to achieve their full potential in that, unless it is contrary to the child’s best interests, that the children have a right to be cared for by both parents and to have a right of contact on a regular basis with both their parents. Section 68F(2) of the Act sets out the matters to which I am to have regard when assessing what is in J’s best interests and I will deal with each of the paragraphs contained in that sub-section in turn.
Paragraph (a) of section 68F(2) requires me to consider J’s wishes and to consider any factors such as his maturity or level of understanding that I think are relevant to the weight that should be given to his wishes.
J has been interviewed several times by Ms Antoinette Harmer, the Order 30A expert in this case. The first set of interviews took place in May, June and July 2001 and an interview was also conducted on
27 March 2002.
Whilst at one stage there appeared to be some ambivalence in relation to his wishes, when spoken to by Ms Harmer last year J basically expressed a wish to live with his father. When the possibility of a shared regimen was broached by Ms Harmer on the basis of week about, he said that he would prefer, rather than such an arrangement, an arrangement whereby he spent two weeks with his father and one week with his mother.
When interviewed in March this year J’s wishes had not changed and he wanted an arrangement basically in accordance with the husband’s application.
I shall return to the issue of J’s wishes and the weight which they should be given later in this judgment.
Paragraph (b) requires me to have regard to the nature of the relationship with each of the child’s parents.
I am satisfied that J has a close relationship with his father. It was suggested by counsel for the wife that the fact that J idolised his father and found no fault in him indicated that the relationship was too close or, put another way, unhealthy. I do not accept this.
J’s relationship with his mother is more complex. As previously indicated the wife had a motor vehicle accident in June 1998. This had catastrophic consequences on her for some time. She suffered from chronic and debilitating pain and depression. She attempted suicide on at least two occasions. This condition did not improve for about two years. It is no criticism of the wife to say that she must have been extremely difficult to live with in that time and I suspect that it was in this period that her relationship with J became compromised. By the time J was interviewed by Ms Harmer that relationship had, in Ms Harmer’s words, “almost broken down”. There were serious and at times violent confrontations between J and the wife.
When Ms Harmer came to interview J in March this year, he described a significant improvement. He said that things in his mother’s house were “a lot better than they were by a mile – we’re not having as many fights”. J appeared to be warm and sociable with his mother when observed with her and chose to cuddle and touch his mother in a relaxed and affectionate way.
Despite this improvement I believe that there are still problems in the relationship between J and his mother. This is illustrated by an incident that occurred this year. The father planned to go fishing without J during the period when J was to be in his mother’s care. When he returned J at the end of his period of care J went into the house and asked his mother if he could go fishing with his father. She refused. J then came out and told his father that his mother had consented. His mother, who was following him, then told him in the presence of the husband that this was not the case. J became very angry and pushed his mother.
I do not believe that responsibility for the problems between J and his mother can be ascribed to the actions or attitude of the husband. As I have earlier indicated I believe that the genesis of the problems in the relationship between J and his mother was in the period when the mother was suffering chronic pain and depression. This relationship is not assisted by the wife’s opinions of the husband which she does not appear to conceal from J. J reports her as frequently calling the husband, “a prick”. Nor would it have been assisted by an incident when, while J was speaking to the husband on the telephone about his wish to come to him, the wife made a remark to the effect that J was putting another nail in her coffin.
Paragraph (c) requires me to have regard to the likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his parents.
Ms Harmer has expressed concerns if J should be separated from his mother for the period that would be involved if the husband’s application were acceded to. I will discuss this aspect of the case later in this judgment.
Paragraph (d) requires me to consider the practical difficulty and expense of a child having contact with a parent and whether this will affect the right of the child to maintain personal relations and direct contact with both parents on a regular basis. This is not an issue in this case.
Paragraph (e) requires me to consider the capacity of each parent to provide for the needs of the child including emotional and intellectual needs.
I am satisfied that both parties can equally meet J’s intellectual needs. I have no criticism of the father insofar as meeting J’s emotional needs are concerned. I have some concerns about the mother in this respect. Her speaking in a negative way about the father is an example of this.
Paragraph (f) requires me to consider the child’s maturity, sex and background and any other characteristics of the child that I think are relevant. It also deals with matters of aboriginality. This paragraph is not relevant to this case.
Paragraph (g) deals with issues of violence. Paragraphs (i) and (j) also address these issues as does section 68K and Section 43(ca).
The wife maintains the husband is prone to violence. She details a number of incidents where she says that he damaged property in a fit of anger. These are set out in paragraphs 37 to 42 of the affidavit she filed on 27 June 2001.
The husband concedes to causing some of the damage detailed by the wife. He does not concede that all of this was deliberate. I accept his evidence in this respect and his explanations. I do not consider these incidents sufficiently serious to have an impact on the decision I make in this case.
There was a violent incident between the parties in March 2001 which precipitated their physical separation. I accept the husband’s version of what happened on that occasion. It involved the wife striking him and him striking the wife. It led to the wife calling the police and the husband being charged with, and pleading guilty to, assault.
Whilst violence cannot be condoned, my impressions of the husband are that he is not by nature a violent man. I believe that this incident was out of character for him. The same can be said of the wife. Again I do not believe it should have an impact on the decision as to J’s residential arrangements.
Paragraph (h) requires me to consider the attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents.
I am satisfied that the husband has adequately discharged his responsibilities insofar as parenthood is concerned. I am satisfied that, whilst I believe he has certainly not discouraged J from giving vent to his wish to spend more time with him and has discussed the matter with J, he has not attempted to influence that wish. I am satisfied that he has not sought to undermine the wife’s relationship with J. For example when, in the presence of Ms Harmer during one of her interviews last year, J threatened to run away from the wife, the husband discouraged this and told J that if he did so he would be returned to his mother immediately. Also in this respect I was impressed by his actions in relation to the “fishing” incident previously referred to. When J pushed his mother on that occasion, the husband’s response was to tell J that if he engaged in this sort of behaviour it would be a long time before he was taken fishing again.
Overall I am satisfied that the wife has also adequately discharged her responsibilities in this respect. My reservations concerning this involve the report by J that she calls the husband a “prick” in J’s presence and the “coffin nail” incident.
Paragraph (k) requires me to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
In my opinion an order that did not reflect J’s wish to spend more time with his father could have within it the seeds of further litigation. This was recognised by Ms Harmer who, whilst recommending that J’s wishes not be acceded to at this stage, acknowledged that when he is older he should be entitled to effect an alteration in the residential arrangements if he wished. I believe there is potential for instability if J is forced into a residential arrangement contrary to his wishes and this could result in further litigation between the parties.
Paragraph (k) is a catch all provision enabling me to take into account any other matter I consider relevant. Any such matters will be addressed in what follows in this judgment.
Conclusion
For some twelve months now the pattern in relation to J’s residence has been to spend equal time with his father and his mother. Whilst the four day about arrangement is agreed by all parties to be less than the ideal pattern, it would be possible to maintain the status quo of a shared arrangement with the seven day changeover proposed by the wife. The fact that there has been a shared arrangement for this period of time is a significant factor in this case. I recognise that a change to this status quo should not be made unless sufficient reasons exist to do so.
Notwithstanding my reservations about the mother and notwithstanding the problematical relationship between her and J, I do not believe that anything in the matters discussed concerning paragraphs (b) to (j) of section 68F(2) would justify changing the present shared arrangement.
Paragraph (k) would, as I have indicated, favour a change in the status quo so that the risk of future litigation would be minimised. This is related to what I consider to be the key aspect of the case which is J’s wishes.
J has expressed a clear wish to spend more time with his father. He is now some ten and a half years of age. Those wishes must be, and must be seen to be, given significant weight. They should not be considered in isolation or in only an abstract manner. To force a child to live in a residential arrangement contrary to that child’s wishes may have an impact on that child’s happiness. The court must have regard to children’s happiness and contentment when deciding on issues of residence (see K v Z (1997) FLC 92-783). I am satisfied that J would be happier if he spent more time with his father.
Ms Harmer recommends that the present shared arrangement should continue. She says that she is of the “confident opinion that J’s expressed wishes are unreliable and should not be given significant weight at this time.” She has also expressed concern, that if J were to spend less time with his mother, his relationship with her might be affected and she goes as far as to maintain that there is a possibility of parental alienation syndrome occurring if the status quo were significantly altered.
The reasons Ms Harmer has, in effect, discounted J’s wishes and my comments on those reasons are as follows:
a)As indicated, she believes that a reduction of time spent with J’s mother might marginalise his relationship with her. I do not share these fears. The proposal put forward by the father would involve J spending significant time with his mother. The orders I propose to make will involve him spending slightly more time with the wife than is envisaged in the husband’s proposal. I am not concerned as to the relationship between J and his mother if he were to spend less time with her. On the contrary I have some concerns that if, contrary to his wishes, he were forced to spend more time with her at the expense of time with his father this may engender some resentment towards her. I believe he would be happier spending more time with his father and that this contentment may assist his relationship with his mother.
b)As indicated, Ms Harmer is concerned that there may be some parental alienation at work in this case. I discount this also. In my opinion the father is not a person who would permit J to become alienated from his mother. I believe he is committed to J having a good relationship with his mother and will work to ensure that this is the case. The relationship between J and the wife has improved over the last twelve months. I do not believe this would have happened if the husband had been undermining that relationship.
c)Ms Harmer believes that some pressure, whether deliberate or otherwise, has been brought to bear by the father in relation to J’s wishes. As I have previously indicated I do not share this belief. I have seen the father in the witness box and I believe I have been able to draw certain conclusions in relation to his ability to properly discharge his duties as a parent. As I have already indicated, I believe the husband may have permitted J to discuss with him his wishes from time to time. However I do not accept that he has deliberately sought to influence those wishes. Whether allowing J to discuss his wishes involves a degree of unconscious influence I do not know, but I do not accept that his wishes should be disregarded by reason of any such inadvertent influence.
d)Ms Harmer discounts J’s expressed wishes because of what she perceived to be an incongruence between those expressed wishes and the interaction she observed between J and his mother. It is true that the manner in which J at times talked about his wishes and the impact that giving effect to them might have on the wife was not entirely congruent with Ms Harmer’s observations of the interaction between J and his mother. However I do not conclude from this that his wishes as expressed are therefore unreliable.
I believe J’s wishes are a result of his having a closer, more comfortable and more secure relationship with his father than he does with his mother. As I have indicated, I believe the origins of this lie in the period from 1998 to 2000. I do not believe there is a sufficient basis for concluding that J’s wishes are unreliable or should not be respected and given effect to.
This however does not mean that I must necessarily adopt the father’s proposal. It involves a complicated arrangement and if strictly applied would not provide equal weekends with J for each parent. I believe that equal weekends are desirable. The husband proposes that there be some flexibility in the arrangement to enable this to occur but I am not convinced that this is appropriate and I am not certain how workable this would be.
My preference is to put in place a residential arrangement where J spends more time with his father than his mother but where the arrangement is based on a simple fortnightly sharing with J spending nine nights with his father and five nights with his mother. This would be similar to the arrangement proposed by the father insofar as the percentage of nights spent with each party is concerned. It has the advantage that, without modification, it would enable each party to have equal weekends with J.
The main argument put as to why such an arrangement should not be preferred to the husband’s proposal is that under the husband’s proposal J would not have to spend as much time in child care as he would if an arrangement such as I propose were implemented. I am not convinced that J spending some time in childcare is necessarily a negative factor. I am not prepared to make the assumption (at least in relation to a child of J’s age) that parental care is always and at all times to be preferred to childcare without evidence to support this. If a nine/five regimen were adopted it would allow J to spend plenty of time with his father during week days and it may be that spending some time in child care during other weekdays, with the opportunity that would exist to socialise with other children, would be in J’s best interests.
For these reasons I propose to make orders that will involve J living with the husband for nine nights each fortnight and with the wife for five nights a fortnight. I propose to order that holidays be shared equally.
With this degree of sharing of responsibility a degree of cooperation and communication will be required. I propose to order that the parties use a communication book for this purpose.
I will not take out formal orders at this stage so as to enable the parties to discuss an appropriate day for the hand-over and any other matters such as Christmas, birthdays etc which were not ventilated at the hearing.
Ms Harmer recommended that if J were to spend more time with his father that there be put in place some relationship therapy to assist his relationship with his mother. I believe that this would be desirable and indeed would have been even if I had not altered the status quo. I do not anticipate however that the parties will require court orders to effect this. If this assumption is misplaced I will hear them further in this respect.
Property issues
I propose to approach this part of the case using the usual three stage process. The first stage involves making findings as to the parties’ property, liabilities and financial resources. The second stage involves a consideration of the matters set out in section 79(4)(a)(b)(c) and (d). I will call these the contribution factors. The third stage involves a consideration of the matters set out in paragraphs (e), (f) and (g) of Section 79(4). Those which are relevant to this case are contained in paragraph (e) which incorporates section 75(2) and for convenience I will refer to these as the section 75(2) factors.
The property pool
Ultimately, the parties agreed that the pool is as follows:
Assets
The matrimonial home $190,000
The husband’s Holden motor vehicle 7,400
The wife’s Astra motor vehicle 7,800
NRMA shares in the name of the husband 3,708
NRMA shares in the name of the wife 2,962
The husband’s Sew It All business 2,280
Credit with Australian Scholarship Group (wife) 4,550
Credit with Australian Scholarship Group (husband) 4,550
Total 223,250
Liabilities
ANZ home loan: $89,327
Supplementary ANZ loan 8,296
Bank overdraft 1,563
Loan on wife’s Astra 6,045
School fees 2,720
Husband’s credit cards 9,243
Total 117,194
Net property $106,056
Financial resources
Husband’s superannuation $55,398
Wife’s superannuation 4,923
The husband’s credit card debt was significantly less at the date of separation. I will address this later in this judgment.
The debt for school fees is only an approximation. Now that the husband’s income has reduced the school J attends will charge him less than hitherto. However the precise figure is unknown so for the purpose of the section 79 exercise I propose to use the figure set out above.
Contribution factors
As I understand the parties are in agreement that, with respect to the period up until 1998, there is no basis for ascribing greater significance to the husband’s contributions than to those of the wife or vice versa.
From June 1998 however onwards I am satisfied that the injuries suffered by the wife in the motor vehicle accident in that month severely restricted her capacity to assist in relation to household and parenting tasks. Her condition did not improve until after April 2000. At this time she took a trip to Northern Queensland and was away until July of that year. During this period she made no contributions either financially or as a parent or homemaker. On this trip she was diagnosed as suffering from chronic fatigue syndrome. It was following this diagnosis and her beginning a regime of herbal medicine that her health began to improve. Her contributions as homemaker and parent increased but she had not fully recovered by the date the husband left the G home. Indeed she has still not fully recovered.
Up until February 2001 the wife was in receipt of worker’s compensation payments and so was still able to bring an income into the household. For the first six months these payments were equal to her pre accident her salary, but after this period those payments reduced.
Whilst some assistance was received from friends during the time the wife was incapacitated, I am satisfied that the bulk of the domestic and parenting tasks were performed by the husband.
The question arises as to the extent to which these additional contributions should be recognised in a contribution based adjustment in favour of the husband. I will discuss this later in this judgment.
The husband has paid very little child support since separation. There has of course been a shared regimen in relation to J’s care. There is no evidence that the wife contributed more financially to J’s upbringing than did the husband and I assume that their contributions in this respect were approximately equal.
The question then arises as to whether or not I should have regard to the fact that almost no child support was paid by the husband.
Both paragraph (g) of section 79(4) and paragraph (na) of section 75(2) refer to child support but neither of those paragraphs requires the court to have regard to non payment of child support. If a party has a child living all or the majority of the time with him or her and the other party is paying inadequate or no child support then the fact that the “residence” parent has made all or most of the financial contributions towards maintaining the child will be taken into account. However this is not the situation in this case. In my opinion the fact that the husband has paid little child support can only be a relevant factor if contributions are not to be measured in absolute terms but are to be somehow weighted to reflect the capacity of each party to make his or her contributions. If this is the law then the fact that the wife received an income less than that of the husband and that she must therefore have found it difficult to provide for J without child support to assist her will be taken into account.
The same issue arises when considering the impact that the wife’s disabilities after June 1998 should have on the contribution based division. I am satisfied that her contributions as, for example, a homemaker were minimal for at least two years after her accident and restricted thereafter. But I am sure that such contributions as she was able to make were very arduous. Should regard be had to this?
Support for such a proposition might be able to be found in the Full Court case of Kennon (1997) FLC 92-757. That case concerned domestic violence. It is authority for the proposition that if domestic violence inflicted by one party on the other has the effect that the contributions made by the victim were made in circumstances of difficulty and were made more arduous then a contribution based adjustment should be made in favour of the victim.
It might be thought that such a principle can only be in the nature of a minor premise and be but one example of a wider principle. It could be argued that that principle must be that contributions are not to be measured on absolute terms but are to be looked at with reference to the capacity of a party to make such contributions or the degree of difficulty a party may have in making such contributions. Thus if for some reason a party’s capacity to make a contribution of a particular type is reduced and, by reason of this, that party finds the making of the contribution more arduous a contribution based adjustment in favour of that party is appropriate, even though the extent of that contribution might be no more than that made by the other party. If this be so then logically it should follow that where a party’s ability to contribute in a particular way is reduced and those particular contributions are thereby reduced, but the reduced contributions were arduous, some allowance should be made to take account of this.
I am not attracted to such a proposition. In my opinion contributions should normally be measured in absolute terms and, when making a contribution based adjustment, there should normally be no weighting to reflect the difficulty or otherwise that a party had in making a contribution of a particular type. The exception to this proposition occurs when domestic violence makes a contribution more difficult or arduous. I am bound by the ratio in Kennon and it would be presumptuous of me to discuss the jurisprudence involved in that ratio. However I am not required to seek out and follow any wider principle than is specifically expounded in that case.
I believe that an adjustment in the husband’s favour is justified by reason of his financial and non financial contributions in the period June 1998 to March 2001. I do not believe any adjustment in the wife’s favour should be made by reason of the minimal child support she has received.
After the husband left the matrimonial home in April 2001 he continued for some time to pay the mortgage instalments. These totalled $8,400. This is a matter which must be recognised in his favour. On the other hand his credit card debt totalled only $4,960 at separation and much of the increase in that liability has been indirectly referable to his payment of mortgage instalments. By this I mean that he funded the shortfall in his income as compared to his commitments, including mortgage payments, by use of his credit cards. It would be inappropriate simply on the one hand to reduce the wife’s contribution based share of property pool by reason of the husband’s making mortgage payments and at the same time to reduce the pool from which that share is to be paid by reason of the debts he incurred in consequence of making those mortgage payments. The end result is that, although the husband will be given credit for having made payments towards the mortgage post separation, the extent of the adjustment will be reduced to take account of the resultant increase in his credit card debt.
In all the circumstances I believe that a contribution based adjustment whereby the husband receives an extra fifteen per cent of the parties’ property is appropriate. This will be achieved by making a seven and a half per cent adjustment in his favour.
Section 75(2) factors
The first matter I propose to address under this heading is the income earning capacity of the parties.
The husband’s basic salary when he was working full-time was in the order of $52,000 per annum. However, I am satisfied that, with allowances, he would, if he worked full-time, be able to earn in the vicinity of $60,000 per annum.
His income working part-time however is significantly reduced. He says his basic salary will be $26,454 per annum gross although he hopes to be able to add about $2,000 per annum to this by reason of overtime allowances. He believes that he will be able to generate an income from Sew It All of some $5,700 per annum. He hopes to do some casual work from which he estimates he could earn about $2,400 per annum.
I am satisfied that the husband’s decision to reduce his working hours was made for proper reasons. It would be inappropriate to regard him as having the capacity to engage in full-time employment for some time yet. However, he does have permanent employment with the Ambulance Service. There is no reason to believe that this employment is not reasonably secure. It can expected that he will be able to return to full-time work with the Ambulance Service in the future. J will be 11 at the end of this year. At the end of 2009 he will be 18. There is no reason why the husband should not be able to return to full time employment by this date at the latest.
The husband was cross examined with a view to establishing that his sewing business had the potential to be a source of significant income. I do not accept this and believe the husband’s estimates of its earning potential to be reasonably accurate. Nevertheless it does enable him to earn some additional income and there is no reason to assume that this will be not be a continuing financial resource. I do not overlook the fact that when he returns to work full time he may not be able to devote as much time to the business as he is now able to do and there may be a “swings and roundabouts” issue to some extent.
The wife is a qualified bookkeeper and is working in this field. She works four days a week. Her salary from this employment is about $30,000 per annum. She also earns a small amount of money from selling Tupperware. In due course I imagine she will be able to work full-time but her health at the present precludes this. It is uncertain when she will be able to engage in full-time work.
The wife had been studying accountancy but had to give this course up when she was pregnant with J. She hopes to be able to return to studying accountancy but expects it will take between six and ten years before she would be able to complete this course. For my part I am not convinced that she will ever complete such a course. There are a number of matters that give rise to this doubt, not the least of which is a doubt about her capacity, in the light of her health, to work and study at the same time.
Section 75(2)(b) requires me to have regard to the income earning capacity of the parties and I do so. Section 75(2)(k) requires me to take into account the duration of the marriage and the extent to which it has affected the earning capacity of a party. This paragraph is not applicable because it is not the duration of the marriage that has affected the wife’s earning capacity but the impact of the birth of J. Nevertheless, I do not believe I should interpret this paragraph by reference to the maxim of statutory construction expressio unius est exclusio alterius. I believe that it would be unjust to ignore the fact that, by reason of the wife being forced to give up her accountancy course because of the birth of J, her income-earning capacity has very likely been reduced. I propose to have regard to this fact under section 75(2)(o).
By reason of the orders I propose to make in relation to the residential arrangements for J the husband will have the responsibility for caring for J for the majority of the time. It may seem somewhat unfair that I should take this into account in his favour seeing the wife would happily assume an equal part of his upbringing. Nevertheless this is a matter which I am required to take into account and I do so.
The husband has significant superannuation entitlements. In due course he will be able to return to full-time work and significantly increase those entitlements. He is 35 years of age, more than five years younger than the wife. He should be able to return to full-time work in his early forties and still have more than twenty-five years to build up a significant superannuation entitlement. The wife is aged 41 and only has a small amount of accrued superannuation. She also has a more limited capacity to accumulate superannuation. These are significant matters. They require a significant alteration in the parties’ interests in the property pool.
In summary the matters which I take into account under section 75(2) are as follows.
In favour of the husband is the fact that he will bear the greater part of the responsibility for the upbringing of J. My calculations indicate that the wife would be liable to pay only a very small amount, if anything, by way of child support so it is likely that he will have to bear a greater financial burden in relation to maintaining J than will the wife.
The following factors operate in favour of the wife:
a)While her short term income earning capacity is not greatly different to that of the husband, her long term capacity is likely to be less than his. I also take into account the fact that the marriage has impacted on that capacity.
b)Her accumulated superannuation is less than that of the husband.
c)Her age will mean that she will probably have a shorter working life than will the husband. This coupled with her income earning capacity means that she will be unlikely to be able to accumulate savings and superannuation to a degree comparable to the husband.
In my opinion the matters referred to in the previous paragraph are such as to require a substantial adjustment in favour of the wife. This must be put in context. The net property pool is not large. The husband’s accumulated superannuation is equivalent to more than half the value of that pool. The additional income he can expect to earn, together with the superannuation he can expect to accumulate, over his working life will, in all probability, be many times larger than that pool.
That having been said I must have regard to the guidelines laid down by the Full Court in Robb (1995) FLC 92-555. In that case the Full Court reiterated that, whilst where there is only a small pool, section 75(2) factors play a large role and these factors should not normally dominate the court’s consideration such as to deprive a party who has made substantial contributions of any significant share of the property of the parties.
In my opinion an adjustment in favour of the wife of 35% is appropriate having regard to the above matters.
The husband also sought that he be given certain tools presently in the G home. He wishes to use them to supplement his income. The wife wishes to retain them to complete the home. I am sceptical of her ability to utilise these tools for that purpose. I propose to order that they be given to the husband.
Conclusion
The end result is that the property of the parties is to be divided 77.5% to the wife and 22.5% to the husband. It will be recalled that the pool amounts to $106,056. The wife’s 77.5% share of this amounts to $82,193.
If she retains her motor vehicle, her NRMA shares and her credit with the Australian Scholarship Group and continues to be responsible for her car loan she will have net assets of $9,267.
This leaves $72,926 payable.
The equity in the home is $92,377 assuming that the bank overdraft will not have to be paid out from any sale. $72,926 is equivalent to 79% of this equity.
If the wife wishes to and is able to retain the home she can do so by paying to the husband 21% of its equity or $19,400. On this basis the husband would retain the balance of the property but be responsible for the bank overdraft and the school fees. If the home is to be sold she would receive 79% of its net proceeds.
As with the residence issue, I propose to defer taking out formal orders and to invite the parties to submit a minute of orders consistent with this judgment. If they are unable to reach agreement as to the form of those orders they may re-list the matter for submissions.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of FM Brewster
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