Cabbell and Cabbell

[2008] FMCAfam 1103

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CABBELL & CABBELL [2008] FMCAfam 1103

FAMILY LAW – Property matters – adult child maintenance – superannuation splitting order – asset pool – distribution of assets.

Child Support (Assessment) Act 1989,s.66L
Family Law Act 1975, s.117

C & C (2005) FCAFC 429
C & D (2008) FAM CAFR 44
NHC and RCH (2004) FLC 93-204
Farnell (1996) FLC 92-681
Ferrano (1993) 92-335
Figgins (2002) FLC 93-335
Gilbert EA28/2001 – 25 October 2001
Gyselman (1992) 15 FLR 219
Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
JEL R DDF (2001) FLC 93-075
SL & EHL (2005) FAMCA 132
Mallett (1994) FLC 91-507

Applicant: MS CABBELL

Respondent: MR CABBELL

File Number: BRC 4985 of 2007

Judgment of: Baumann FM

Hearing dates: 15,16 & 17 April 2008

Date of Last Submission: 17 April 2008

Delivered at: Brisbane

Delivered on: 8 October 2008

REPRESENTATION

Counsel for the Applicant: Mr Kirk

Solicitors for the Applicant: Berck & Associates

Counsel for the Respondent: Mr North

Solicitors for the Respondent: Habermann & Associates

ORDERS

1. That the Wife’s claim for adult child maintenance be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Cabbell & Cabbell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC 4985 of 2007

MS CABBELL

Applicant

And

MR CABBELL

Respondent

REASONS FOR JUDGMENT

Introduction

1. The Wife, Ms Cabbell after a twenty-five year marriage seeks at least a 55% share of the pool of assets accumulated and contributed to by herself and her Husband, Mr Cabbell.  In addition she applies for an order for child support departure and adult child maintenance.

2. The Husband opposes any Order for the child support departure or adult child maintenance, and says the pool of assets which is substantial and comfortably exceeds $9Million, should be divided as to 59% to himself and 41% to the Wife.

3. The reasons which follow seek to explain why neither parties position on the division of the pool of assets found favour with the Court.

Principles

1. The preferred or usual approach to determining property proceedings under s.79 of the Act was the subject of a succinct summary by the Full Court in Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143) at [39] where the Court said:-

   “39.  The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s79.  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 for the parties within the meaning of ss79(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 s79(4)(e), the matters referred to in s75(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:  Lee Steere and Lee Steere (1085) FLC 92-626; Ferraro and Ferraro (1993) FLC 92-335; Davut and Raif (1994) FLC 92-503; Prpic and Prpic (1995) FLC 92-574; Clauson and Clauson (1995) FLC 92-595; Townsend and Townsend (1995) FLC 92-569; Biltoft and Biltoft (1995) FLC 92-614; McLay and McLay (1996) FLC 92-667; JEL and DDR (2001) FLC 92-075 and Phillips and Phillips (2002) FLC 9.-104.”

Background

1. To provide some context to the discussion which follows about the respective contributions of the parties, the following generally uncontroversial chronology is given.  Before doing so, it is necessary to make some brief remarks about the parties’ credit.

2. I had the advantage of seeing and hearing the parties give evidence.  Both are intelligent and articulate – impressive in their own way, and for much of their relationship I suspect any observer would describe them as a dynamic combination.  Although much of their Affidavit material was critical of the other party – when in cross-examination each was given the opportunity to concede the efforts of the other – the Husband as a hardworking and assiduous [occupation omitted]; the Wife as a devoted and competent parent, homemaker and supporter who in her later life developed an impressive career through hard study and effort – they were both able to do so, and somewhat generously.

3. As a result of the earlier position taken by the Husband about the separation of business interests and marital interests and in particular an assertion by him of lack of control of the long standing corporate entities like [W] Pty Ltd (“[W]”) and The [M] Family Trust (”[M]”), the Wife’s suspicions were fuelled.  She made allegations against the Husband about use of funds and other more colourful adventures, which Counsel for the Wife had to concede lack evidentiary foundation.  Her strongly held view that he Husband was not acting fairly generated much heat but in the end, little light.

4. The Husband’s position initially was not shaped by a proper understanding of family law principles. His earlier material and correspondence could easily be categorised as “playing hard”. No doubt, in the best traditions of a [occupation omitted] in a top tier firm, such behaviour is probably common and necessary – however in the family law context, his behaviour was seen by the Wife as demeaning of her contribution and intimidating.

5. In the end, when all this “gloss” is removed, the parties presented to me as essentially honest with a perception of their own contributions which caused at times a diminution of the others, but not a dilution of their own.  This Court is often confronted with such competitive perspectives, and merely being intelligent and successful in their chosen careers is not often – and not in this case – an assurance that an objective viewpoint and common sense will prevail.  Such is the effect of an intimate relationship that breaks down.

6. In the end, few differences of factual recollection proved highly determinative of the ultimate assessment – but where I have chosen to accept one version over the other, my reasons for doing so are explained.

7. I return to the chronology as follows:-

   a)The Husband, born in 1946, was thirty-six years old when the parties married and commenced cohabitation in March 1982.  The Wife, born in 1955 was twenty-six years old at that time.

   b)At the time of marriage the Husband was a [occupation omitted] firm then known as [T]. He had joined the firm in 1975 and quickly became a partner although his best recollection of his salary at that time was about $230 per week.  Certainly I am satisfied that he did take out a loan of about $61,000.00 to increase his equity in the partnership of [T] to a equal 1/7^th share (14.285%). The Husband says this loan was paid out by 30 June 1981. I have no probative evidence of his income or benefits in 1982 or, if the partnership interest had a value, what it was at the time of marriage. It is not disputed that through a process of mergers, the Husband become a partner in the well know national firm [C]. He says he was never a “a full Brisbane equity partner”, and although he observes at paragraph 23 of his Affidavit how his “percentage” rose and fell, the Court did not have the benefit of any reliable evidence as to what these “percentages” meant in actual gross or nett income to the Husband. This was an issue raised early in the trial and, in my view, curiously unremedied. I say more about that further in the reasons.

   c)

   The Husband, clearly the major (but not sole) financial contributor to the marriage ceased as an equity partner on

   
   31 December 2003

   – having been diagnosed with Cutaneous T Cell Lymphoma (a cancer of the blood) in October 2002. The Husband says his loss of equity “was not to be compensated”. No challenge to the Husband’s evidence in that regard was advanced and was consistent with the general thrust of the Husband’s evidence that this national firm structure operated on a “nothing in and nothing out” basis.  He returned as a “salaried partner” for a two year period from 1 June 2004 after six months special leave.  No evidence of the level of his salary during this period was offered by the Husband.  It so easily could have been offered, even with the mere production of Income Tax Returns. He left [C] on 31 January 2006. His income and work history post January 2006 is dealt with when considering the relevant s.75(2) factors.

   d)

   When the parties married, the Wife was employed full time as a [occupation omitted] and continued in that role until

   
   

   31 December 1983 – taking twelve months maternity leave to accommodate the birth of [L] in March 1984.  Although the Wife did return to [occupation omitted] in January 1985 for the reasons which she set out at paragraphs 69-71, the Wife resigned in January 1986 and devoted herself to the role of homemaker and parent.

   e)With [A]’s birth in December 1987 and despite occasional [occupation omitted] prior to his birth, the Wife essentially ceased employment (save for her occasional tutoring and lecturing) but undertook further study – culminating in being awarded her Masters of Arts in women’s studies and then commencing a PhD in September 1994 which she completed in five years (fours years full time and one year part time).  Her career thereafter is more particularly dealt with below in these reasons after her return to full time work in 1998.  During this “studying period” she also gave birth to the youngest child [S] in March 1990.

   f)Although the asset pool, which I have assessed amounts to approximately $9.5 million at trial, is spread amongst a number of different entities, no purpose is served in this chronology in detailing the methods or dates of acquisition or accumulation. They were not in issue. What is clear however is that the Husband was the financial manager and controller. Not surprisingly considering his core field [occupation omitted], the Husband was alert to strategies which protected his assets from claims of personal creditors.  In that regard as early as 1977 the Cabbell Family Trust, with a Corporate Trustee was created.  The name of the Trustee was subsequently changed to [W] and the name of the Trust was changed to The [M] Family Trust. As the pool of assets reveals below, some of the assets are apparently held in the name of [W] in its own right, and some as Trustee. 

   g)Certainly, the separation of these assets from his personal ownership (for clearly prudent commercial reasons) was manifested by a number of minutes of the entities.  For example, as the family home was owned by [W], clear records of the creation of a tenancy were maintained.  The Wife, without the intimate knowledge of these legitimate asset protection strategies, found such assertions post separation as both confusing and troubling.  As the agreement reached on both values and identity of assets (excluding corporate veils) shows, the distinction within a family law context is not the same as that applied in a commercial context.  For completeness, I accept the history of investments broadly given by the Husband in his Affidavit and that the Wife did as well, meant little of the cross-examination was directed to that history. 

   h)The Husband acknowledges that he did not originally tell the Wife of the acquisition of Unit 3, Property Y but claims he otherwise told her of “all my financial acquisitions”. The Wife was not required to guarantee “or become involved financially” in any investments by [W]. The Husband gives a plausible explanation for this approach at paragraphs 69 and 70 of his Affidavit filed 25 March 2008. In circumstances where the Wife’s allegations of nondisclosure; overseas assets and wastage are no longer contended for against the Husband, little purpose is served in saying more about those claims made by the Wife.  As a result of a number of rulings on objections, much of the Wife’s case in that regard fell away through lack of probative corroboration.

   i)Although the Court did not have the benefit of financial statements for the Husband’s superannuation interests (now held with Australian Super and agreed at trial to have a value of $4,200,990), it is clear that maximising his superannuation in this “tax friendly” environment (as the Husband described it), was a deliberate strategy. That continued after separation.  The Husband gave evidence of contributing “the maximum I could to improve my superannuation entitlements”.  In the 2004/2005 financial year that amounted to $128,000.00; in 2005/2006 $128,000.00 and he contributed $1Million in the 2006/2007 year in two separate amounts of $500,000 in October 2006 and January 2007.  The Husband opposes a superannuation splitting order for the reasons advanced in his Counsel’s submissions, and dealt with further below.  The Wife has continued to accrue superannuation benefits in a defined benefit fund, accelerated by her decision to voluntary salary sacrifice to a sum of $500 per week at present.

   j)Although the parties separated under the one roof in February 2007, the Husband did not move out of the family home until May 2007.  [A] and [S] remained then, and now, in the family home with [S] this year completing his final year of secondary education.  The parties oldest Child [L] is self supporting and resides overseas.

Pool

1. Significant pre-hearing discovery coupled with proper concessions made by the parties, guided, no doubt, by their experienced Counsel, meant that the nature and identity of the pool was essentially agreed, save for

   ·The issue of the value of Property S;

   ·Whether legal fees paid by the Husband and the Wife ought be “added back”,

   ·Whether the Wife’s liability to her Mother of $62,000 ought be included as a liability in the pool of assets.

2. Before dealing with these issues sequentially, I further note that:-

   a)Since the completion of the evidence in this trial on 17 April 2008, the Court is aware that the Australian Stock market has been volatile. The court has no evidence of any changes in value of the Husband’s Australian Superannuation entitlement; the parties share portfolios or the margin loans thereon. No application to reopen was made. I have dealt with the agreed values of those interests at trial accordingly;

   b)The case was conducted without seeking to distinguish the assets personally owned from those assets vested in either the corporate entity [W] or [M].  Evidence of the establishment and operation of these entities was provided to the Court.  There is no doubt they are the “alter ego” of the parties – particularly the Husband.  I was, in effect, invited by both Counsel to strip away the corporate veil.  I do so.

   c)Both Counsel agreed that the pool should be constructed as one pool, comprising both non-superannuation interests and those interests invested in superannuation. Although it is suggested the Husband may have had a superannuation entitlement at cohabitation, the value of same is unclear but would pale into insignificance with the current account balance. Almost the entirety of the parties’ superannuation therefore accumulated during the relationship. The Husband is aged sixty-two and as a result he could access his entitlements without income tax impediments at this time. For these reasons I agree it is a proper exercise of discretion to include the superannuation interests in one pool – notwithstanding the preferred approach recommended by the Full Court in C and C (2005) FCAFC 429. The effect of so doing, is that a separate analysis of contributions and the further adjustments for section 75(2) factors on Superannuation interests is not undertaken – but is encompassed by the overall assessment I will make shortly in these reasons.

Property S

1. At paragraphs 72 and 73 of his Affidavit, the Husband deposes to [W] (as Trustee for [M]) acquiring this unit in 1984 and that the property has been rented since its acquisition.  The Husband says, and the Wife conceded, that the Husband’s stepmother Mrs R has occupied the property for some seven years.

2. On 1 January 2007, which is shortly before separation, the Husband as the controller of [W] entered into a deed creating a life tenancy for

   
   

   Mrs R over the property.  The Husband says:-

   “My Mother and I discussed, due to her age and precarious health, the issue of a life tenancy for some time.  I had been of the belief that the tenancy had been created previously, but despite a search for the document evidencing this, I have not been able to locate it apart from the document date 1 January 2007”.

3. The Wife, fairly I thought, acknowledged that not only had Mrs R resided in the property for some years, but that the Husband had felt a moral obligation to provide this accommodation for his Mother.  She was aware Mrs R pays less than market rent.

4. Although I am satisfied these proceedings and the Husband’s health issues were probably a bigger catalyst to documenting the life tenancy than the tenants age and health, I am satisfied it has been validly created. I accept some inconsistency in prior Affidavits and the Minutes of [W] and the Trust, where this interest is not expressly disclosed.

5. The issue at the hearing ultimately became, not whether the impediment existed but how should it be treated.  It was agreed, on the basis of expert evidence procured, that the effect of the life interest reduced the market value of the property by $90,000 to $300,000.

6. Counsel for the Wife urged this difference be reflected in the pool – by “adding back” the sum of $90,000.  The Husband’s Counsel says I should not do so.  I was directed to the Full Court authority of Gilbert (EA28/2001 – Finn, Holden, and Warnick JJ – 25 October 2001) by the Wife’s Counsel who appeared in that case for the Husband.  In that case the Husband had used over $1.8 million to acquire a wine collection which had almost immediately reduced in value by over $500,000.  It was said to be an investment.  In examining the way in which the trial Judge treated that conduct, the Full Court said at paragraphs 47 and 48 that:-

   “47.  We are of the view that this is one of those, admittedly fairly rare, cases where the economic consequences of the Husband’s conduct ought to have been taken into account in order to achieve a just and equitable result.

   48.    They could have been taken into account in a number of ways for example:

   a) according to the Townsend guidelines; or

   b) upon a consideration of the s 75(2) factors”.

7. I think in this case the proper way to treat this issue is to include the Unit in the pool at $300,000, but to take into account the diminution in value of $90,000 in the section 75(2) factors because:-

   a)The Court should generally assess the value of assets at trial as the Court finds them – in this case with the market impediment of a life tenancy;

   b)The Husband’s actions in securing his Mother’s right of occupation was a reasonable step in the circumstances;

   c)Unlike the circumstances in Gilbert the diminution in value is less than 1% of the pool;

   d)Even though the transparency of adjustment is somewhat lost through dealing with this issue under section 75(2), that is the appropriate manner to deal with it in my view, in this case.

Legal Fees

1. The evidence is that the Husband has expended funds totalling $132,545 on legal expenses.  The Wife has expended $112,073 on legal fees – of which sum $36,096 was borrowed from her Mother.  The Wife does not anticipate that her Mother will sue for repayment.

2. The Wife has generally used her post separation income to meet her legal obligations.  The Husband has had the benefit of the control of the income and assets of the company and Trust, whilst, of course, continuing management of those assets.

3. The Full Court in NHC and RCH (2004) FLC 93-204 made it clear that “adding back” is the exception to the rule, that the Court assess the pool as it finds it at the time of the hearing. Mr Kirk SC for the Wife properly directs me to Farnell (1996) FLC 92-681 and the guidance provided by the Full Court. The underlying principle is that, where each party (absent an Order under section 117), meets their own costs, allowing a party to assess the pool of assets available at separation to pay their own legal expenses means in effect one party can be contributing to the costs of the other party.

4. Considering the size of the pool in this matter and the income of the parties post separation (including income likely to be generated by the “joint assets” available to and managed by the Husband).  I do not propose to “add back” any amount for legal expenses.  The ultimate division I have reached means, in any event, that even if added back, the relative equality of expenditure on legal expenses creates a very small variation to the entitlements of the parties.

Loan from Wife’s Mother

1. The Wife asserts that she has borrowed approximately $62,000 from her Mother – which apart from the amount of $36,096 used for legal expenses, was used for a family holiday and to repay some credit card liabilities which, as I understood from the Wife’s evidence accumulated post separation. If the Wife had substituted a joint credit card debt at separation for a loan from her Mother, it would have been proper to include the new debt in the joint pool of assets. That is not the case here. The additional payments received from the Wife’s Mother were, it must be said, used mostly for discretionary benefits. Mr Kirk SC drew my attention to the fact that the Husband has used some of the funds generated by the parties assets, post separation, to undertake overseas trips and that the Wife should not be disadvantaged in doing so.

2. Although superficially attractive as an argument, I am not satisfied that it is consistent with authority to allow a party to borrow funds for lifestyle decisions and to them impose that liability upon the other party.  The better way to deal with such issues, when the fact is that one party has access to joint assets for some lifestyle support, is to either “add back” the funds used (if extravagant or a waste of funds) or to treat the benefit received as a contribution post separation by the party who did not benefit from the access to funds.  In this case, it must again be said that the sum of money involved (some $26,000) is a small sum when compared to the size of the pool.  These factors persuade me, in the exercise of discretion, to not include the loans the Wife says she obtained from her Mother Mrs S.

3. For completeness I record that at the commencement of the trial I was asked to rule on the admissibility of certain evidence in the Father’s case which was directed to the suggestion that the Wife had an expected future inheritance from her Mother.  The Mother, Mrs S, was the subject of a subpoena to produce documents and to give evidence.  For the reasons I gave at the time, which I do not repeat, I struck out the subpoena and ruled the evidence at paragraphs 90-96 of the Husband’s Affidavit was irrelevant and therefore inadmissible.

4. As a result of these rulings the Pool at the hearing I found to be as follows:-

DESCRIPTION	OWNER	VALUE
REAL PROPERTY
Property P	Husband	$500,000
Property W	[W]	$1,100,000
Property T	[W]	$290,000
Property S	[W]	$300,000
Unit 2, Property Y	Wife	$500,000
Unit 3, Property Y	[W]	$390,000
Unit 4, Property Y	[W]	$365,000
Other fixed assets	[W]	$11,443
TOTAL REAL PROPERTY INTERESTS	$3,456,443

DESCRIPTION	OWNER	VALUE
EQUITIES & CASH
Westfarmer & Telstra Shares	[M]	$12,852
Suncorp Cash Management	[M]	$915,349
Share Portfolio (Less Margin Loan)	Wife	$74,762
Share Portfolio (Less Margin Loan)	Husband	$548,896
200 Caltex Shares	Husband	$2,760
Suncorp Account [6]	Husband	$26,717
Suncorp Account [1]	Husband	$16,324
Joint Suncorp Account	Husband/[W]	$9,607
NAB Account (Debit)	Husband	-$139,182
Tax Refund	Husband	$18,144
Teachers Credit Union Account	Wife	$16,341
TOTAL	$1,502,270

DESCRIPTION	OWNER	VALUE
FURNITURE, JEWELLERY, MOTOR VEHICLES
Lexus	Husband	$44,000
Saab	Husband	$800
Furniture	Wife	$30,570
Husband	$12,295
Jewellery	Wife	$9,120
Husband	$35
TOTAL	$96,820

DESCRIPTION	OWNER	VALUE
SUPERANNUATION INTERESTS
Australian Super	Husband	$4,200,990
Q Super (Accumulation)	Wife	$29,702
Q Super (Defined Benefit)	Wife	$303,565
Unisuper	Wife	$1,116
TOTAL	$4,535,373

DESCRIPTION	VALUE
SUMMARY
Real Property	$3,456,443
Equities & Cash	$1,502,570
Furniture, Jewellery and Motor Vehicles	$96,820
Superannuation Interests	$4,535,373
TOTAL	$9,591,206

Contributions

1. Even though this relationship spanned twenty-five years until separation, the Husband contends for an overall contribution based entitlement of 55% to 57.5% to the Husband, “having regard to the substantial initial contributions and their use and the Husband’s contribution to the Wife’s earning capacity and qualifications”.

2. The wife says based on her submissions “we have justified a division of not less than 50% to the Wife, no matter what approach is taken.  Had the Wife been no more than the primary homemaker and parent, she would have achieved this without doubt.  But as Your Honour is aware, she was so much more than that…”

3. I am satisfied that the Husband’s initial contributions were superior to those of the Wife.  The Husband had interest in the legal partnership.  He owned (through [W]) the unit at Property S which was purchased before the marriage for between $25,000-$35,000 (little turns on the difference now) which had a mortgage estimated by the Husband to be $11,000. He also introduced a property at Property E which had a mortgage of $5,000 and although its market value at the time of marriage is uncertain, I accept it materialised in a gross benefit of approximately $80,000 in February 1984 when it was sold.  Additionally I accept the Husband had furniture, a motor vehicle and a motor cycle and some savings he says amounted to $10,000.  He claims a superannuation interest as well without any corroboration.

4. The Wife claims, again without any corroboration, that she “had savings of $20,000 and a motor vehicle”.  Even if I accepted that level of initial contribution the Husband’s contributions initially were superior.  However that was now over twenty-five years ago.  I do not ignore that the unit at Property S is still owned by [W] – over twenty-five years it has appreciated to $290,000.  But although not a significant asset in the pool as now exists, it shows that some of the improvement in the asset pool reflects a strategy of not selling, (or being forced to sell) properties acquired during the relationship.  Most are longer term holdings.  For example, the “family home” at Property W was acquired in 1983 and the investment units in Property Y in 1988.  Some speculative property investments were carried out from time to time.

5. It is the Husband’s case principally, that the springboard for the parties current asset position was:-

   ·The Husband’s income as a partner in a number of legal firms;

   ·His “interest” in the partnership of [T] held at commencement.

6. When confronted with the clearly obvious query – “where is the evidence of the Husband’s actual income?” – Mr North SC says I can be satisfied it was “substantial” because the resultant asset pool speaks for itself.  In the absence of evidence however, whilst satisfied the income was probably greater than the average Queensland Solicitor, I can not be satisfied that the income falls within that rare range, where extraordinary professional qualities or capabilities have created an extraordinary level of income.  In so saying, I would not wish to minimise the apparently highly regarded professional reputation

   
   

   Mr Cabbell deserved.  However even his own Counsel had to concede the evidence did not establish a “special contribution” within the meaning described in cases such as Ferraro (1993) 92-335, Figgins (2002) FLC 93-335 and JEL & DDF (2001) FLC 93-075.

7. The Husband did however use the income prudently it seems.  The Wife concedes he was the financial controller – she would say, at times, somewhat frugally.  His experience in the area of banking, finance and (I infer) property allowed him to continue to grow the asset base.  It is impossible to say with certainty (in the absence of financial statements for the entries or Income Tax Returns either personally or for the entities) to apportion the improvement in the capital base to:

   ·Income from his personal exertion as a partner;

   ·Property speculation of an investment character;

   ·Assiduous debt reduction and even debt leveraging (e.g. the margin loan for share portfolios for both parties);

   ·The cumulating effect of rentals;

   ·Efficient management, resulting in tax minimalisation and superannuation increase strategies.

8. What can be safely said however is that it was these areas of endeavour for which the Husband is entitled to claim credit, that represents his contribution.  Before turning to the Wife’s contribution however, I do not ignore the Wife’s support of the Husband’s practice demands – the long hours; the regular overseas travel and other absences for work and no doubt his emotional non availability (at times) through the stress of his work (exacerbated by his diagnosis of cancer and more recently his sight difficulties).

9. Suffice to say that the Court can readily accept the Wife’s evidence that generating a good income in the profession of [omitted], brings with it a number of time and family sacrifices.

10. To this end, the Wife’s contribution as homemaker and parent to the three children was clearly greater than the Husband’s actual (through available capacity) contribution in this role.  It is no longer an issue in doubt, that a long line of higher authority compels a trial adjudicator to give “substantial and not merely token” recognition to a Wife’s contribution as homemaker (Mallett (1994) FLC 91-507). The Wife combined these duties with initially full time employment; then a period of casual or intermittent employment before concentrating on her studies which resulted in a return to full time employment in 1998 in the [omitted] area.

11. It should be remembered that in 1998 the Children were still young and needing of support and attention. [L] was 14; [A] was turning 11 and [S] was 8 years of age. I accept the Wife’s evidence that although the Husband helped when he could, the major share of duties fell on the shoulders of the Wife. She did have domestic assistance, as she concedes, from time to time. [A], because of his diabetic condition, required additional management. Just as I acknowledged the Husband’s superior direct financial contributions, but do not ignore the Wife’s financial contributions, I do not ignore in my assessment the Husband’s contribution as a parent.  Simply it was less, and significantly so because of his work commitments, than that of the Wife.

12. It is hard to imagine the challenges the family faced in managing at different times:-

    ·The Husband’s work commitments;

    ·The Wife’s work (post 1998) and study commitments;

    ·The Husband’s diagnosis and treatment for cancer;

    ·The pressures on the Husband as his partnership equity began reducing;

    ·The management not only of three children, but one with a special medical condition.

13. In the post separation period, a relatively short period of time when compared to the totality of the relationship, the Wife has had the benefit of residing in the family home although the majority of the emotional and physical needs of the children have been met by her.  The Husband had the benefit of access to the investments; has spent time overseas; during most of the post separation period has had less income from personal exertion than the Wife; has been grappling with, he would say, less than optimistic career options as well as the ever present uncertainty of his eye condition.  He has, without credit to him, sought a reduction in Child support.

14. During submissions I was directed to the case of SL & EHL (2005) FAMCA 132 and the careful analysis of the “true nature of the assessment of contributions under section 79”, where His Honour Warnick J identified two aspects of the process;-

    a)Firstly “the value” given to a role, of itself; and

    b)Secondly “the assessment of the quality with which a particular role was performed”.

15. In that case the Husband, unlike the Husband in this case, was found by the trial Judge not to have, prior to cohabitation, “laid down a base of qualifications and experience which in a direct and significant way produced wealth during the subsequent cohabitation”.  However it also seems, unlike the Wife in this case, that Mrs L during the thirty-five year relationship had suffered psychiatric illness and was the primary homemaker and parent, but made limited direct financial contributions.  As can be seen, the facts of this case are quite distinguishable.

16. When I weigh up all the contributions; one against the other; financial and non-financial; direct and indirect; over a relationship of twenty-five years, I cannot conclude that the Husband’s contributions outweigh the Wife’s or that the Wife’s outweigh the Husband’s.

17. Although in no way starting in equal positions, I have come to the conclusion, on the evidence overall, that the contributions are of equal value at the time of the hearing before me.

Section 75(2) Factors

1. As I will explain further in these reason, whilst a few of the s.75(2) factors have application in this case, the most contentious both on the evidence and in submissions became subsections (a) and (b) being:-

   “(a) The age and state of health of each of the parties;

   (b) 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”.

2. My findings on the whole of the evidence about each of the parties, on these two critical factors follow.

Husband

1. The Husband is now sixty-two years old.  On any test even in perfect health his capacity to obtain gainful employment as a [omitted] in the highly competitive field of [omitted] (which was his area of practice) is in my view limited.  I make this finding based on:-

   a)The evidence of the Husband.  I got a sense that after many years of arduous toil, he no longer demonstrates the hunger or passion for achievement that I infer was present twenty-five years ago.  This is hardly surprising.  He is at the end of his career as a result of his age.  He does not command a “client base” which he can bring with him to a new employer.

   b)

   The evidence of [occupation omitted] specialist Mr T. I do not find that Mr T’s evidence should be given little weight as contended by the Wife. Whilst it is true that his evidence (in Affidavit form) was shaped by the Husband’s desire to ensure the Affidavit contained information that assisted the Husband, that does not mean, and I do not find the identification of those (fairly obvious) issues by the Husband amounts to the evidence being biased. Mr T has been in [occupation omitted] since 2000. He exposed himself to the rigours of cross-examination by the Wife’s Senior Counsel and was not shaken in his opinion that “someone without a mobile client base over the age of fifty is not employable”. He conceded that a position as a “consultant” was “a possibility” but the level of income for such a position is uncertain. The best indication might be the level received by

   
   

   Mr Cabbell of the limited position (part time) with [X] – of $12,000.00 per annum “terminable on one (1) months notice by either your or the firm”. That consultancy ended on 7 January 2008.

   c)The evidence of Mr L who, was not required for cross-examination, and deposed to accompanying the Husband on a business trip to Singapore in October 2004 to assist [omitted] firms who had a relationship with [C]. A further trip, when the Husband was a consultant with [X] occurred to China in July 2006. The evidence does not suggest that the Husband’s more recent exposure to these overseas firms is likely to lead to the Husband being either employed or otherwise retained. The Husband says he circulated his Curriculum Vitae but no prospects arose for employment. Whilst Mr T said that Mr L was to become a partner with top tier firm [D], and the close relationship with the Husband might result in some employment for the Husband with that firm, that seemed to me to be mere speculation.

2. Of course, the Husband is not “in perfect health”.  Although his cancer, on the evidence as a whole, seems to be in remission he maintains regular check ups.  He says that with this type of cancer, 50% of people are dead within five years.  He is in the “other 50%”.

3. Although significant effort was exerted in securing expert evidence by both parties on the current prognosis and effect of the Husband’s eye condition, in the end, the difference of opinion between Dr D (for the Husband and his treating consultant) and Professor L (for the Wife), was marginal, as exhibits 12 and 13 reflect.

4. Dr D estimated the Husband’s loss of function in the left eye as slightly higher at 60-70% than Dr L at 50%.  Dr D also assessed the Husband’s “currently normal right eye developing glaucoma” to be higher that 7% as opined by Dr L.  I accept the evidence of Dr D that although the Husband is able to legally drive and is able to read and thus work:-

   “…his ability to read comfortably for prolonged periods may be jeopardised by his left eye disease and its treatment.  The duration of a normal individuals ability to read varies considerably due to variables such as corneal surface status, concentration, ocular alignment etc.  Mr Cabbell’s left eye may be subject to discomfort from his previous and future surgery, as well as suffer surface irritation from his topical medication.  Also as he adapts to a more monocular reading situation, ocular fatigue may impact on prolonged reading”.

5. This diagnosis is consistent with the Husband saying that he can read “but not comfortably”. Further surgery was scheduled in the month after the hearing. When all these factors are considered, I do not find that the Husband has any real prospect of returning to a high level of remunerative employment or consultancy. My view is that his future financial progress, post division of this pool is reliant on his business acumen and awareness of the financial markets. However, I am entitled to observe, such environment is filled with uncertainties and challenges at this time. It seems clear however he has proved successful in these pursuits in the past.

Wife

1. In many ways, the Wife is at an exciting stage of her career which really began some ten years ago – post the attainment of her PhD.  The Wife says that her PhD “had been deliberately targeted in the public policy field as it opened up a variety of opportunities in government work for me”.  Her strategic position proved correct.

1. In 2000, after a senior policy role at the [A] for two years, the Wife moved to employment with the Queensland State Government and obtained a principal officer position at a commencing salary of around $65,000.00 per annum.  Over the next six years the Wife worked in various positions across the Department of [omitted] in order to reach a senior officer position on a salary of approximately $100,000.00 gross per annum.  At the time of trial, the Wife was employed under a contract with the Department, as a Public Servant and at Senior Executive 2 Level, on an annual gross salary or $133,507 together with the benefit of a salary packaged work vehicle.

2. At fifty-two years of age, and even allowing for the uncertainties of continual employment at that level, (which is subject to the vagrancies of both performance and government policy), the Wife has every reason to be confident that her hard work and study (supported by the Husband) will continue to provide her with an income stream, I believe of not less than $100,000 per annum.  She does not have anything of a health concern likely to impede a productive working life as a public servant to at least the age of sixty, or beyond.  How her investments produce additional income and capital might ultimately influence her desire to maintain employment.

3. I assess in a personal exertion role, the Wife’s opportunities into the future are superior to those of the Husband.  Whether however the Husband’s greater both business acumen; financial management skills and opportunities (not being distracted by the pressures of daily employment) balance the Wife’s is difficult to access – but my view is that little difference will occur between them, when the other factors taken below are weighed in.

4. This comparative assessment was made more difficult by the deficiencies in the case of the Husband, that may have allowed me to better understand, assess and possibly predict what were the relative sources of income and capital growth between:-

   ·Personal exertion income;

   ·Investments in equities;

   ·Investments in property.

5. Moving from these primary factors, I also take into consideration the following findings:-

   a)The Husband has the “financial resource” of $90,000 which vests upon the death of his Mother, or the earlier termination of her life interest in the Property S Unit;

   b)The Wife sought an order of adult child maintenance and departure of child support. For reasons which I give, I have dismissed the application for adult child maintenance.  The order sought for departure of child support by the Wife will be made, but ceases to have effect when [S] completes his secondary education in about eight weeks time.  Whilst it is my view the Husband will contribute to, (and certainly has the capacity), the reasonable needs of his adult sons, it is possible he will be seen by the Wife as less generous then herself.  The boys are likely it seems to remain living with the Mother – the time they choose to spend with their Father is limited, but at their age and with the interests they probably have, that is not surprising.  The Wife has no legal “duty” to maintain these Children in the absence of an order to do so.  I do not ignore that the Wife, has been the primary carer and whilst the boys live with her she is likely to be their just target for any required assistance.

   c)The division of the available pool proposed by me, ensures that the parties can each maintain a reasonable standard of living.

   d)As already mentioned – both parties can be shown to have contributed to the income and earning capacity of the other party:-

   ·    The Wife through her efforts as a full time Mother and, even when working, the primary carer and homemaker.  She supported the Husband as a personal partner, entertaining business associate as required.

   ·    The Husband particularly through his efforts in supporting the Wife’s studies from the undergraduate degree to the PhD.

   e)Neither party is cohabitating with another – save for the Children continuing to live at home.

   f)The terms of the order I propose to make will reflect a mix of real property; superannuation and liquid and assessable investments.  How the parties choose, once vested, to manage that mix will be a matter for their discretion.  Clearly sales of properties that are used (other than a principal residence) creates possible capital gains tax liabilities.  I do accept that the Husband, at his age, is able to access his superannuation interests “tax free” – which converts any superannuation into virtually cash in his hands.  This maximises his options for investment beyond those of the Wife who, is likely to have preserved superannuation.  The Wife, is likely to remain employed for some years, and absent organising a “transition to retirement” pension, if available, from age 55, she will be unable to access her superannuation with the same flexibility as the Husband.  I also accept that as the Wife will continue to work, her capacity for continued accrual of benefits (both salary sacrificed and employer contributions) is superior to the Husband.

6. It can readily be discerned that some of these factors favour a slight adjustment to the Husband and some favour a slight adjustment to the Wife. 

7. The Court cannot ignore the real effect of even a 1% adjustment on a pool of over $9,500,000.

8. In final submissions, Counsel for the Husband (having earlier contended for a contribution adjustment of up to 7.5%) concluded by urging an adjustment of 5% to 10% overall.  The Wife through her Counsel says an adjustment of 5% to the Wife is justified.

9. In my view no adjustment to the contribution based entitlements of the parties is proper.

Just and Equitable

1. Having concluded that an equal division of the available pool is appropriate, the Court must then consider what order achieves justice and equity for the parties.  In this case, the issues which arise from the competing minutes of order (being that filed by the Wife as “Minutes of Final Order” and that contained in the Husband’s Amended Response), include:-

   a)Should there be a superannuation split in the Wife’s favour in respect of the Husband’s Australian Super entitlements.

   b)Should the Wife be required, as the Husband proposes, to accept transfers of Units 3 and 4 Property Y and Property T.

   c)How should the “cash” be apportioned.

2. It becomes readily apparent that the pool of $9,591,206 comprises little debt at all (save for margin loans) but classes of assets are as follows:-

Real Property Interests of	$3,456,443
Equities and Available Cash of nett	$1,502,570
Furniture, Jewellery and Motor Vehicles	$96,820
Total Superannuation of	$4,535,373
TOTAL	$9,591,206

1. Some allocations are agreed, namely that the Wife be entitled to a transfer from The [M] Family Trust of the former matrimonial home at Property W and the Wife agrees that the Husband retains (and the Husband wishes to retain) his current residence at Property P and Unit 2 Property Yand the unit occupied by his Mother.

2. Because of the Husband’s age and his state of retirement, it was conceded that funds available to the Husband in his Australian Super account are accessible now.  That is, those funds retained (even in superannuation) are essentially available cash, whilst the Wife (as a result of both her age and her desire to continue gainful employment) cannot access her share – either already accumulated in her name or resulting from a superannuation splitting order in her favour.

3. Subject to issues further dealt with below, each party is entitled, on my assessment, to a share of the pool equivalent to $4,795,603 approximately, but how the mix of assets should then be distributed remains an issue.

4. If I accede to the stated, and not opposed, proposals of the parties then:-

   a)The Wife shall obtain or retain:-

a transfer of Property W	$1,100,000
her share portfolio	$74,762
her bank account	$16,341
her contents and jewellery	$39,690
her current superannuation benefits	$334,383
TOTAL	$1,565,176

b)The Husband shall obtain or retain:-

Property P	$500,000
Property S	$300,000
Unit 2 Property Y	$500,000
His contents, jewellery and motor vehicles	$57,130
His share portfolio (including Caltex,   Westfarmer and Telstra Shares)	$564,508
Other fixed assets of [W]	$11,443
TOTAL	$1,933,081

Adopting this methodology, the amount for distribution, otherwise in dispute, is $6,092,949 ($9,591,206 - $1,565,176 - $1,933,081) which comprises:-

REAL ESTATE
Property T	$290,000
Unit 3 Property Y	$390,000
Unit 4 Property Y	$365,000
Total	$1,045,000
EQUITIES & CASH	$846,959
SUPERANNUATION	$4,200,990
TOTAL	$6,092,949

1. The considerations which I regard as relevant to weigh up when considering the manner of distribution of these remaining interests include:-

   a)During the course of the relationship and as a clear investment strategy, the parties invested in real property.  The property at Property T was owned by [W] since the time of marriage.  The Husband seeks to transfer that asset to the Wife.  The Husband at paragraphs 74 to 78 of his Affidavit gave details of the acquisition of Units 2, 3 and 4 Property Y used for the last twenty years as variously for rental or holiday purposes. The Husband concedes the acquisition of Unit 3 was achieved without the Wife’s knowledge.  It seems to me that it was the Husband, more than the Wife, who has demonstrated an interest in acquiring and retaining those investment properties at Property Y.  I regard it as fair that he do so now – rather than, as he proposes, to “pick” the better unit (Unit 2) for himself to retain and require the Wife to accept Units 3 and 4 to offset a greater interest in either the cash of superannuation.  I regard it as fair for the Wife to receive a transfer of the Unit at Property T as proposed by the Husband to share in the joint endeavour of investing in realty.

   b)On this basis, the Husband would retain a total of $2,066,443 in real estate interests (including the [W] “fixed assets” associated it seems with the Property Y units), whilst the Wife would retain $1,390,000 in real estate interests.  The difference from nearly equality, is that the Husband properly retains the unit occupied by his Mother, rather than the Wife accepting a transfer.

   c)On one basis of analysis, if the Wife retained the real property interests of $1,390,000 together with the other undisputed interests referred to above, this would amount to $1,855,176 leaving a balance to the Wife, to be comprised of cash and a split of the Husband’s Australian Super of $2,940,427.

   d)Continuing on this analysis, the Husband would receive or retain cash and superannuation of $2,107,522.  For the reasons already advanced, the Husband’s access to superannuation is the equivalent to access to cash for him – save of course he loses the benefit of his earnings on his interests in superannuation being taxed at the concessional rate of 15%.

2. Before considering the taxation implications of any proposed order, the actuality of the order I propose, could effect the following distribution:-

WIFE
Property W	$1,100,000
Property T	$290,000
Wife’s share portfolio, bank account, contents, jewellery and superannuation	$465,176
Total	$1,855,176
Share of remaining cash say	$500,000
Superannuation split of Husband’s Australian Super	$2,440,427
TOTAL	$4,795,603

HUSBAND
Property P	$500,000
Property S	$300,000
Units 2,3 and 4 Property Y	$1,255,000
Husband’s share portfolio	$565,508
Husband’s contents, jewellery and motor vehicles	$11,443
Total	$2,688,081
Share of remaining cash	$346,959
Retirement Australian Super (post splitting order)	$1,760,563
TOTAL	$4,795,603

1. Does an order which achieves this effect do justice and equity to both parties and are there any further anticipated effects that have not been taken into account?  The issues that arise in this discussion include:-

   a)As noted already, save for the differential for the unit retained by the Husband in which his Mother has a life interest, in my view the distribution of real property is fair, and almost equal.  It would not be appropriate for the Wife to be required to obtain a transfer of two units, or to retain the one held currently in her name, which the Husband said the Wife holds as a bare Trustee.

   b)If the Wife is a bare Trustee, as the Husband claims, for [W] than no capital gain tax would seem to arise from a transfer by the Trustee to the intended beneficiary.  Thereafter the Husband, who will continue to operate and control [W] as he has throughout the relationship, would control the three units at Property Y.

   c)As the advice of Pitcher Partners dated 11 April 2008 opines (see exhibit 1), a transfer from [W] Pty Ltd as Trustee for The [M] Family Trust of the house at Property W and Property T, has no adverse capital gains tax implications as both are deemed to be a “pre-CGT asset”.  Furthermore, no capital gains tax liability would be created on a subsequent sale to a third party, because the Wife would gain the benefit of the automatic rollover relief.

   d)The fact that the transfer of Units 3 and 4 Property Y to the Wife would incur CGT liabilities (see paragraph 3.2 of the Pitcher Partner Report), thus slightly reducing the pool, further persuades me not to order a transfer to the Wife.

   e)There are no tax implications which seem to arise from the rollover by the Wife, post a superannuation splitting order, of her created interest in the Husband’s Australian Super.

   f)I am not certain, on the evidence offered to the Court, how a distribution to the Wife of say $500,000 from The [M] Family Trust, (Suncorp Cash Management account) would be treated for tax purposes.  If it were a distribution, allowable under the Deed of Trust, of capital there may be no tax implications.  If as seems possible, the Funds in the Family Trust may represent some loans made by the Husband over the years, then a return to him of capital introduced might have no income tax implications.  Clearly if the distribution by the Family Trust to the Wife was deemed to be income, that would be a serious consequence.  It seems to me, at least on this scenario, I would need further submissions from the parties before I could pronounce an order which I can be satisfied is just and equitable.  It may be that his “cash” component is better drawn by the Husband from his remaining superannuation.

   g)If however there are no adverse income tax liabilities generated, and accepting that the Husband could be able to access his superannuation tax free, then at his discretion on the distribution contemplated he would have available to him cash and or liquid marketable assets of:-

Superannuation	$1,760,563
Share of Remaining Cash	$346,959
Share Portfolios	$565,508
TOTAL	$2,673,030.00

1. Such a calculation, of course, is based on the National Australia Bank loan of $139,182 being repaid.  There is no evidence that the Husband is anticipating selling any of the real estate interests and so a concern about the incidence of CGT does not at this time arise.

2. The Wife’s position would be that she would have available cash and liquid marketable assets of:-

Distribution of Cash	$500,000
Share Portfolios	$74,762
Bank Account	$16,341
TOTAL	$591,103

1. She would of course have a significant total superannuation benefit of $2,940,427 (a combination of her current interests and the super split).

2. Is this disparity in cash assets fair?  It must be immediately recognised that it may be open to the Husband to draw down the entirety of his Australian Super entitlements and, after doing so pay to the Wife a share of those funds.  If, now that the proposed division amongst the mix of assets is known, the parties wish to be heard on a variation to the mix of assets, I regard it as procedurally fair to do so.

3. In this respect it becomes apparent that the contest, within the parameters of a equal division, becomes:-

   a)Should the Wife be required to take, as part of her share all the real estate interests not otherwise sought to be retained by the Husband.  My answer, for the reasons set out, is no.

   b)Where the Wife submits that:-

   “The Wife here seeks that she receive $3Million from the super split and the balance of her entitlement in cash.  However, if must be said that the Wife would take a greater proportion in cash as she has a few years left to make contributions (up to $150,000per annum) to her superannuation fund”.  A share of superannuation by super split of $2,440,000 is within the Wife’s range.

   c)The Husband proposed no superannuation split as such, proposing instead (at order 7) that:-

   “…the Husband shall pay to the Wife such sum of money as hall in addition to the [other property] bring the share of the Wife to 41% of the net assets available for division between the parties.  Such sum shall be paid to the Wife within twenty-eight (28) days of the making of these orders or such further reasonable time as the Husband may require to withdraw funds sufficient to comply with this order from his account in Australia Super”

4. This proposed order suggests the Husband saw no difficulty in withdrawing funds to “bring the share of the Wife” at least to 41%.

5. I will hear further submission from the parties as to the form of order consistent with these reasons.  Many of the orders in the Husband’s Amended Response as to how to achieve the distribution, were obviously carefully drawn, and should be adopted in a final order.

Chattels

1. During the Hearing, Mr North SC draw the Court’s attention to the order sought by the Husband as paragraphs 8(v) (“the Lacrois watch); (8xv); 8(xvi); 8(xvii); 8(xviii) and 8(xix) of the Amended Response filed 25 March 2008. There was an exchange at the conclusion of the hearing between Counsel relating to the Husband, by arrangement, attending at the former matrimonial home to collect some items. It is unclear to me whether those arrangements dealt with all the items mentioned by the Husband in the paragraphs of his Response earlier referred to. I require further submissions from the parties if they did not.

Child Support

1. At paragraphs 22 to 26 if the Wife’s Minutes of Order, the Wife sought a departure of Child Support – the effect of which, at that time, was to seek that the Husband, as the Father of [S] (who has already turned 18, but remains at secondary school at least until the end of November 2008) pay:-

   ·$200 per week

   ·half of [S]’s education costs, fees and expenses, including school fees at [school omitted].

2. The Husband in his evidence asserted that no order was necessary as he agrees (and clearly has the capacity) to pay 50% of school fees. He also says his contributions to the household have continued to be made by him irrespective of a clearly low child support assessment (based it seems on the Husband’s income) without reference to the available property of the payer Father. Mr Kirk SC says, and I accept, that his client has satisfied the appropriate three stage process set out in Gyselman’s case (1992) 15 FLR 219, to establish in the special circumstances in this case, the current assessment should be departed from as a result of the Father’s access to property and resources, and that it is otherwise proper and just and equitable to do so within the meaning of those terms in section 117(4) and section 117(5) of the Child Support (Assessment) Act 1989.

3. In circumstances where I have decided to make no order for adult child maintenance, I question the utility of making an order for, at best eight weeks or if to 31 December 2008, then for twelve weeks. I invite further submissions in that regard.

Adult Child Maintenance

1. The Wife sought, and pressed at the hearing, for an order pursuant to section 66L of the Family Law Act 1975, that:-

   “27.  That the Husband pay to the Wife the sum of $200 per week by way of adult child maintenance for the Child [A] born December 1987, while the said Child continues at University undertaking and completing his primary degree on a full time basis.

   28.    That the Husband pay to the Wife the sum of $200 per week by way of adult child maintenance for the Child [S] born March 1990, while the said Child continues at University undertaking and completing his primary degree on a full time basis.

2. The Wife during the hearing, varied the order sought, in indicating she had no objection to the Husband paying the sum of $200 per week per Child to the adult Child directly.

3. The evidence did not raise any concerns that the Father would not support his adult children – although his encouragement to “stand on their own two feet” is demonstrated, the Wife says, by adopting controlling and frugal behaviour.  The difficultly I have with the Wife’s claim (on behalf of the sons) which she is entitled to make stems from:-

   a)The lack of any evidence from them which evidences their support of such an action.  In the absence of such evidence it is open to me to infer both [S] and [A] did not support the Application (see C and D (2008) FamCAFR 44 at [76]).

   b)The Court must take into account “the income, earning capacity, property and financial resources of the Child” (section 66J(1)(c)), and the evidence of the Mother is scant in that regard.  For example I have little evidence of [A]’s income save that he earns $150 per week, which he uses for his own entertainment.  [S] is still at school, and it is premature to really speculate what his income or earning capacity may be.

   c)Although the expenses estimated by the Wife, for the Children, could not be regarded as exorbitant, they do include a arrange of discretionary expenses (e.g. holidays), which do not meet the description of “proper needs” for the purposes of s.66J(1)(b).

   d)The Children are not estranged from their Father.  There is evidence, which I accept, that the Husband has assisted [A] recently with books.  The Father, in cross-examination says he will consider any reasonable request from his sons.  I expect when this highly conflictual litigation between the parents is at an end, the Husband will do so.

   e)[S]’s future education direction is uncertain – awaiting, as all final year students must, for his results and any offers for tertiary placement.  It is speculative at this stage to estimate his needs and his capacity to earn and therefore the required level of support (if any) that both parents have a moral obligation to meet equitably.

   f)The Wife seeks, consistent with the objects of section 66B of the Act, to convert this “moral obligation” into a “legal duty”, but she has failed to discharge the evidentiary onus imposed upon her – made, again I say, more difficult by the lack of any evidence from either [A] or [S].

4. In the exercise of my discretion, I dismiss the Wife’s claim for Adult Child Maintenance accordingly.  I would not regard this decision as an estoppel to the child themselves seeking an appropriate order if they believe they can justify such a claim, at a later time.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Baumann FM

Associate:  P Miller-Ibos

Date:  8 October 2008