Carroll and Maybury
[2013] FCCA 288
•6 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CARROLL & MAYBURY | [2013] FCCA 288 |
| Catchwords: FAMILY LAW – Property settlement – add-backs – spousal maintenance – child support departure. |
| Legislation: Family Law Act 1975 (Cth) Federal Circuit Court Regulations |
| Stanford v Stanford [2012] HCA 52 M & M [1998] FamCA 42 C & C [1998] FamCA 143 AJO v GRO (2005) FLC 93-218 Bevan & Bevan (1995) FLC 92-600 Wilson & Wilson (1989) FLC 92-033 Clauson & Clauson (1995) FLC 92-595 Gyselman & Gyselman (1992) FLC 92-279 |
| Applicant: | MR CARROLL |
| Respondent: | MS MAYBURY |
| File Number: | MLC 10632 of 2011 |
| Judgment of: | Judge McGuire |
| Hearing dates: | 28 March 2013 and 17 April 2013 |
| Date of Last Submission: | 17 April 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 6 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Dickson |
| Solicitors for the Applicant: | Pearsons Lawyers Pty Ltd |
| Counsel for the Respondent: | Mr Hall |
| Solicitors for the Respondent: | Adams Maguire Sier |
ORDERS
That all previous spousal maintenance orders between the parties be discharged,
That within twenty-eight (28) days of the date of these orders, the husband transfer and/or vest all his right, title and interest in the following to the wife absolutely:
(i)The Ford Territory motor vehicle in the possession of the wife;
(ii)The balance proceeds of sale of the former matrimonial home held in trust for the parties;
(iii)All personalty and chattels in the possession of or under the control of the wife as at the date of these orders;
(iv)The balances of any bank accounts or like investments in the name of or to the benefit of the wife as at the date of these orders; and
(v)The wife’s [H] Superannuation entitlement and interest.
That contemporaneously with the transfer and vesting orders in Order 1 hereof, the wife transfer and/or vest all her right, title and interest in the following to the husband:
(i)The 2010 Audi motor vehicle in the possession of the husband;
(ii)All personalty and chattels in the possession of or under the control of the husband as at the date of these orders;
(iii)The balances of any bank accounts or like investments in the name of or to the benefit of the husband as at the date of these orders; and
(iv)The husband’s entitlements and interests in the following:
(a)[H];
(b)[U]; and
(c)[L] Superannuation Funds.
That within 28 days of the date of these orders, the Trustees of the [L] Superannuation Fund sign all documents and do all such things so as to transfer to the husband and/or split from the total value of the fund the wife’s beneficial interest and entitlements in the said fund.
That the husband be solely responsible for and indemnify the wife absolutely in respect of the following liabilities:
(i)Any and all liabilities incurred by the husband since separation in either joint names or in his name alone; and
(ii)Any and all liabilities attaching to any of the assets retained by the husband pursuant to these orders.
That the wife be solely responsible for and indemnify the husband in respect of the following liabilities:
(i)The loan from the wife’s mother (E$8,931);
(ii)The wife’s Coles Myer Mastercard;
(iii)Any and all liabilities incurred by the wife since separation in either joint names or in her name alone; and
(iv)Any and all liabilities attaching to any of the assets to be retained by the wife pursuant to these orders.
That an amount of $18,500 retained by the wife pursuant to these orders be deemed spousal maintenance pursuant to s.77A of the Family Law Act.
That the husband pay to the wife spousal maintenance in a sum of $450 per week payable in advance and with the first payment to be made by 4.00 pm on Thursday, 6 June 2013 and such payments to continue until 31 December 2018.
That there be a departure from Child Support assessment for the children [X] born [in] 2000, [Y] born [in] 2003 and [Z] born [in] 2006 until 31 December 2018 as follows:
(i)That the wife be entitled to obtain assessments of child support for the three children from the Child Support Registrar and that the husband pay child support as assessed;
(ii)That in addition the husband pay school fees and compulsory tuition charges as and when they become due and owing for the child [X] at [V] School until she concludes her education at that school
(iii)That in addition the husband pay school fees and all compulsory tuition charges for the children [Y] and [Z] at [W] School until the completion of Grade 6 for each child;
(iv)That in addition the husband pay the reasonable expenses incurred for the children’s text books, school uniforms, footwear and school sporting uniforms and equipment and compulsory extra-curricular activities upon the presentation to him of invoices (or receipts if already met by the wife); and
(v)That in addition the husband provide private health insurance cover for the children and each of them until they each attain the age of 18 years.
NOTATION A:
A.And it is noted that the parents do not as yet agree which secondary school the children [Y] and [Z] will attend and the wife reserves her right to seek a further departure order from child support assessment in respect of the fees and costs of such education.
B.Pursuant to Section 81 of the Family Law Act 1975 the parties intend that these orders shall as far as practicable finally determine the financial relationship between them and avoid further proceedings between them.
IT IS NOTED that publication of this judgment under the pseudonym Carroll & Maybury is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 10632 of 2011
| MR CARROLL |
Applicant
And
| MS MAYBURY |
Respondent
REASONS FOR JUDGMENT
These proceedings now concern financial issues between the husband and the wife. Specifically, those issues are the following:
a)In a distribution of the parties' tangible assets whereby the husband concedes that the wife should receive 100 per cent of the tangible pool as it now sits, whether there be an add-back of $157,489, as sought by the wife, to the property pool on account of a taxation liability paid by the husband after separation and in respect of the financial year ending 30 June 2011?
b)Whether, and if so, in what amount there be a section 77A spousal maintenance component in respect of assets retained by the wife in the property distribution?
c)The weight to be attributed various contributions and relevant section 75(2) factors in determining the parties' entitlement to a property settlement.
d)The wife's application for spousal maintenance in a sum of $1000 per week until 30 December 2018.
e)Whether there be a child support departure order, sought by the wife, until 31 December 2018 whereby the husband pay to the wife the sum of $1076 per child per month ($12,800 per child per annum) for each of the three children of the marriage whilst dependent and such amount to be varied in accordance with the consumer price index.
f)In addition to the child support cash amount, the wife seeks an order that the husband pay school fees at [V] School for the younger children, [Y] and [Z], from their respective commencement of high school education.
Background
The husband is 41 years old. He is a [occupation omitted] conducting his own [business omitted] trading through the [Mr Carroll] Trust with [Mr Carroll] and Associates Proprietary Limited being the trustee company. The husband and his partner, Ms S, are the trustees. They, together with the children of the marriage of the husband and the wife are the primary beneficiaries.
The wife is 40 years of age. There is no evidence that she has re-partnered. She is a [occupation omitted] by training but has not worked in this role for some time. She works part time on four days per week in [omitted] bringing her some $340 per week.
The parties commenced cohabitation in 1998 and were married [in] 2001. Separation occurred on 17 October 2010.
There are three children of the marriage being: [X] born [in] 2000 (aged 12 years); [Y] born [in] 2003 (aged 10 years) and [Z] born [in] 2006 (aged 6 years).
[X] attends [V] School. The boys attend a government primary school.
On the first day of the trial the court was presented with a memorandum of consent orders in respect of the children providing as follows:
The Husband and the Wife have equal shared parenting responsibility for the children [X] born [in] 2000, [Y] born [in] 2003 and [Z] born [in] 2006.
The children live with the Wife.
The children spend time with the Husband as follows:
(a)During school terms:
(i) Each alternate weekend from 5:00pm on Friday until the commencement of school or 9:00am on Monday morning commencing 12 April 2013;
(ii) Each alternate week from 3.30pm on Monday until the commencement of school on Tuesday (provided that the Monday is not a public holiday or non-school day) commencing 8 April 2013;
(iii) That for the purposes of paragraph (ii) unless otherwise agreed changeover shall occur at the children’s’ schools.
(b)From 10am on 3 January until 5pm on 10 January each year.
(c)For the first week of the June/July school holidays commencing 5pm on the Friday if it would have been the Husband’s weekend or 10am Monday otherwise.
(d)Paragraph (c) be suspended from 12 noon 24 December until 12 noon 26 December each year and during that period:
(i) The children spend time with the Husband from 12 noon 25 December until 12 noon 26 December in 2013 and each alternate year thereafter;
(ii) The children spend time with the Husband from 12 noon 24 December until 12 noon 25 December in 2014 and each alternate year thereafter.
(e)From 5:00pm the day prior to Father’s Day until 9:00am on Monday morning if the children would not otherwise be spending time with the Husband that day.
(f)That time be suspended from 5:00pm the day prior to Mother’s Day until 9:00am the following Monday should Mother’s Day coincide with a weekend the children would otherwise be spending time with the Husband.
(g)For such further or other periods as may be mutually agreed.
(4)Changeover occur at school wherever applicable and the Wife shall deliver the children to the Husband at [address omitted] at the commencement of the time period and the Husband shall deliver the children to the Wife’s residence at the conclusion thereof.
(5)The parties by themselves, their servants and agents be and are hereby restrained from denigrating the other party or discussing these proceedings in the presence or hearing of the children or any of them or allowing any other person to do so.
(6)Pursuant to s.65DA(2) and s.62B the particulars of the obligations these orders create, the consequences in the event of non-compliance and the services available to assist in the event of a dispute are annexed to and form part of these orders.
Evidence
The applicant husband relied on his affidavit filed 20 March 2013 and his sworn financial statement filed 21 March 2013. He caused the following to be tendered as exhibits:
a)Ms S and Mr Carroll Trust financial statements - 30.6.2012;
b)Taxation return - Mr Carroll - 30.6.2012;
c)Taxation return - Ms S - 30.6.2012.
The wife relied on her affidavit and financial statement, filed 8 March 2013. She caused the following to be tendered as exhibits:
a)Summary of husband's taxable income - 2002-2010.
b)Series of text messages between husband and wife.
c)Information document on retraining of [occupation omitted].
d)Coles MasterCard balance statement as at 6.2.2013.
e)Application for enrolment, [V] School.
f)Confirmation of enrolment, [V] School.
Property
The parties agree the following as the current property pool inclusive of superannuation:
Item Current Legal Owner Value 1. House sale proceeds Joint $445,688 2. Ford Territory Husband $8,000 3. 2010 Audi motor vehicle Husband Nil equity Gross Current Assets: $453,688 Liabilities 4. Loan from wife’s mother Wife (E$8,931) 5. Coles Myer Mastercard Wife ($12,450) Total Liabilities ($21,381) Net Current Assets: $432,307 Superannuation 6. [H] Wife $42,286 7. [L] Superannuation Fund Wife’s account $2,926 8. [H] Husband $49,423 9. [L] Superannuation Fund Husband $90,000 10. [U] Husband $17,027 Total Superannuation $201,662 TOTAL PROPERTY INCLUDING SUPERANNUATION $633,969
The wife argues that there be an add-back of $157,489 to the pool. This relates to the husband's taxation liability for the year ending 30 June 2011. The total liability was $222,441. It is agreed that the parties physically separated on 17 October 2010 when the husband moved out of the former matrimonial home. The relevant taxation debt was paid from the proceeds of sale of the former matrimonial home and pursuant to an interim consent order of Cronin J made 20 December 2011 with a collateral order:
That the issue of whether the 2011 Husband income tax liability should be regarded as a liability of the parties, and if so, to what extent be reserved to the Trial Judge together with what other orders, if any, are appropriate in regard to this issue by way of property settlement and/or spousal maintenance.
The wife seeks a loading in her favour of 7.5 per cent of the property pool, inclusive of superannuation. She does so on the basis of an inheritance of $100,000 received in 2000. The inheritance is conceded by the husband.
In opening, and in the outline of case, the wife sought a further loading of 15-20 per cent in her favour, primarily on account of income discrepancy and her greater responsibility for the care of the children. After the evidence, and in his final address, counsel for the wife now seeks and argues for a loading of 25 per cent in respect of these relevant Section 75(2) factors.
In addition to industry superannuation funds, the parties have beneficial interests in a self-managed fund namely [L] Superannuation Fund with a total entitlement of $92,926, of which the wife's allocated interest is just $2,926. She proposes a 100 per cent split of her interest to the husband and otherwise no splitting orders in respect of superannuation entitlements.
The orders sought by the wife would have her retaining the following:
Balance proceeds of sale $445,688 Ford Territory motor vehicle $8,000 Loan from wife's parents ($8,981) Coles Myer credit card debt ($12,450) Total before superannuation $432,257 Wife's [H] $42,286 Total property inclusive of superannuation $474,543
The wife proposes that the husband retains the following:
Add-back - 2011 paid taxation liability $157,489 2010 Audi motor vehicle nil equity Total before superannuation $157,489 Husband's [H] entitlement $49,423 [L] Superannuation Fund - husband's account $90,000 [L] Superannuation fund - wife's account $2,926 Husband's [U] $17,027 husband's [E] superannuation $9,005 Total superannuation he retains is $168,381 Total property inclusive of superannuation $325,870
Consequently, I calculate that the orders sought by the wife, which would give her all tangible assets, excepting the husband's Audi motor vehicle, which has no equity, would amount to a settlement of 59 per cent to the wife and 41 per cent to the husband, including the superannuation entitlements.
The husband does not concede that there should be an add-back of $155,709, or at all. He otherwise concedes the property pool set out above. He concedes that the wife should retain all of the assets and her [H] superannuation as set out above.
The husband concedes that the wife should receive a loading of 7.5 per cent on account of her superior contribution, as also set out above.
In his opening, counsel for the husband conceded the wife's claim for a loading on account of relevant section 75(2) factors in a sum of 17.5 per cent which was the median of the wife's case as it stood at that stage seeking "15-20 per cent on account of section 75(2) factors."
Given the agreed distribution of the property, including superannuation, and the apparent agreed percentage distribution after consideration of contributions and section 75(2) factors, the husband argued for the excess above her entitlement of the property received by the wife to be effectively a component of capitalised spousal maintenance within the settlement or an allocated section 77A.
The Relevant Law – Property
Alteration of property interests between parties to a marriage is provided for in section 79 of the Family Law Act 1975 ("the Act"). The High Court in Stanford v Stanford[1] sets out the approach for courts in dealing with applications under section 79. The court must, pursuant to section 79(2) of the Act, decide whether or not it is just and equitable to alter parties' rights and interests in property. The exercise of the power to make a property settlement or adjustment order must be in accordance with the principles laid down in the Act.
[1] [2012] HCA 52
Firstly, it is necessary to identify and attribute value to the property of the parties including assets, liabilities and financial resources. The Act provides that superannuation interests and entitlements are to be "treated as property" for the purposes of this exercise. It is normally appropriate to establish the asset pool and the value of its components as at the date of the trial.
The court is then to evaluate the contributions made by or on behalf of the parties as set out in sections 79(4)(a), (b) and (c) of the Act and consider the effect of any proposed orders upon the earning capacity of the parties. After a consideration of the distribution or alteration on the basis of contributions, the court must then reference the relevant matters in section 75(2) of the Act in determining whether there be any further adjustment in favour of either of the parties. Those considerations include matters such as:
·The age and state of health of the parties.
·The income, property and financial resources of each of them and their physical and mental capacity for appropriate gainful employment.
·Whether either party has the care and control of children of the marriage under the age of 18 years.
·Commitments of each of the parties necessary to support themselves, children or any other person.
·Where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable.
·The duration of the marriage and the extent to which it has affected the earning capacity of the parties.
·The financial circumstances of the parties if cohabiting with another person.
·The terms of any child support assessment or agreement.
·Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.
Section 81 of the Act obliges the Court, insofar as is it can, to make orders which finally determine the financial relationship between parties to a marriage.
Section 77A of the Act states:
(1) Where:
(a)a court makes an order under this Act (whether or not the order is made in proceedings in relation to the maintenance of a party to a marriage, is made by consent or varies an earlier order), and the order has the effect of requiring:
(i) payment of a lump sum, whether in one amount or by instalments; or
(ii) the transfer or settlement of property; and
(b)the purpose, or one of the purposes, of the payment, transfer or settlement is to make provision for the maintenance of a party to a marriage;
The court shall:
(c)express the order to be an order to which this section applies; and
(d)specify the portion of the payment, or the value of the portion of the property, attributable to the provision of maintenance for the party.
A major issue between these parties is whether or not I should add-back to the pool the sum of $157,489 being a proportion of the husband's tax liability paid for the financial year ending 30 June 2011, but paid from the proceeds of sale of the matrimonial home. The husband argues that the parties were financially intertwined, despite their physical separation, until at least 30 June 2011. He says that his earnings were paid into a single off-set bank account and that the wife had access to this bank account as well as it being utilised for the payment of the mortgage and direct payments for the support of the wife and the children.
The wife argues that the husband had a substantial income of near $600,000 gross for that financial year and had or should have had the ability to meet all of the commitments for support of himself and the family, as well as a residual ability to meet the taxation liability. She says the parties separated in October 2010 and that a simple mathematical pro-rata equation should apply and provides justice and equity by an add-back of $157,489.
Although the factual background now before me is slightly unusual in respect of the question of add backs, given that the taxation liability was paid by consent from the proceeds of sale, I must still consider the “reasonableness” of the expenditure, and in particular the husbands’ expenditure from his income during the financial year ending 30 June 2011. As the Full Court in M & M[2]said:
There seems to be no appropriate basis for notionally adding back moneys that existed at separation but which have been subsequently spent on meeting reasonably incurred necessary living expenses. Neither the Family Law Act nor the case law require that parties go into a state of suspended economic animation once their marriage breaks down pending the resolution of their financial arrangements. Parties are entitled to continue to provide for their own support.
[2] [1998] FamCA 42
And a differently constituted Full Court in C & C[3] elaborated:
Whilst not seeking to place a fetter upon the exercise of discretion of a trial judge in individual cases, it seems to us that the concept of adding monies reasonably disposed of back into the pool ought to be the exception rather than the rule. The parties are entitled to reasonably conduct their affairs post-separation in a matter which is consistent with properly getting on with their lives.
It follows that it is necessary for the trial judge to make some assessment of the reasonableness of the husband’s post-separation expenditures within the context of the taxation liability being paid[4].
[3] [1998] FamCA 143
[4] AJO v GRO (2005) FLC 93-218
It is agreed that the gross taxation liability for the year ending 30 June 2011 was $222,441. The pro rata sought to be added back dates from separation on 17 October 2010 being a sum of $157,489. The total tax liability was paid from the sale of the former matrimonial home such to be categorised at trial. The husband’s taxable income for the relevant financial year was $628,000 of which there was a net of approximately $7700 per week. The husband’s new partner, Ms S, had an independent income.
The essence of the wife’s argument is contained in her counsel’s cross-examination of the husband as follows:
All right. Well, $7700 a week would have been enough to make ends meet, wouldn’t it?---Yes.
And you didn’t need to spend the tax money to make ends meet, did you? No need to look at your counsel?---You would – I have to honestly look at the bank statements from the time to realise what was reasonable and what wasn’t.
I’m asking you whether $7700 a week was enough to make ends meet and you said yes. It follows from that that you didn’t need to spend the tax money to cover your costs?---I didn’t spend the tax money. I didn’t look at it as spending the tax money. The money was spent.
In the relevant period being from separation until 30 June 2011 (and after), the husband was meeting the ongoing costs of the family. He paid the mortgage until the property was sold in May 2011. He paid spousal maintenance. He paid child support. He paid the oldest child’s school fees and various ancillary expenses. He had his own living expenses following separation.
It is agreed that the husband’s salary or drawings were paid into a mortgage offset account. It is agreed that the wife had open access to that account. There is no evidence before me (hence, I expect, the husband’s request in cross-examination to view the bank statements – which were not placed in evidence before me) of the wife’s direct use of that bank account, if any. There is no evidence of any excess or residual funds in that bank account as of 30 June 2011. There is no evidence of any unnecessary or significant withdrawals by the husband from that bank account or of any other account containing funds from the offset account.
In summary, therefore, there is no financial trail leading to available funds to meet the husband’s tax liability as of 30 June 2011. Both parties had unfettered access to that account. It was used to pay the mortgage. It was used to support the family. Given the authorities set out above and the facts before me, I cannot be satisfied the expenditure by the husband of his income during the relevant period was “unreasonable’ or that there were funds available to the husband to meet the tax liability and that my discretion should be exercised in favour of the wife in “adding back” the sum of $157,489 or any amount. As such, the property pool is settled in the terms of the table above at paragraph 10.
Contributions
The parties agree that the wife should receive a loading of 7.5 per cent on account of the contributions with specific reference to an inheritance received by her in the sum of $110,000 in 2000. I am satisfied that such a loading is appropriate. In other respects the husband was the major financial contributor to the family. The wife assumed the primary responsibility for the homemaker and parenting roles. The husband has contributed to the support of the wife and children since separation.
Section 75(2) factors
The wife now seeks a further adjustment of 25 per cent in her favour by reason of the relevant section 75(2) factors. Opening submissions of counsel for the wife were directed towards an adjustment of “15-20 per cent”. The husband would be prepared to concede 17.5 per cent being the percentage median of the amount originally sought.
The husband is 41 years of age. The wife is 40 years old. There is no evidence that either is in other than good health. It follows that superannuation interests will not be likely to vest for many years.
The husband’s income and earning capacity has increased substantially during the marriage. His income is distributed through a trust and trustee company. His wife is employed to manage his [business] but, on the evidence, does so on a bona fide and actual basis rather than simply as a source of income distribution. The husband’s latest financial statement discloses the gross income of the family unit to be approximately $690,000 per annum. The payment or distribution to the husband’s wife is $5742 per week. There was some lengthy cross-examination as to the justification for this amount although nothing substantially turns on it given there is no argument by the husband of a lack of capacity in respect of any spousal maintenance order.
The wife works part time in [omitted]. She earns $340 per week. She concedes the ability for some more hours from this employment. She has [omitted] qualifications which are stale but which would, in any event on the evidence before me, be of limited practical use to her whilst she has the primary responsibility for the care of young children given her probable requirement to work shift work. I am satisfied that the husband’s income and earning capacity far exceed those of the wife.
The wife has the major responsibility for the physical care of the three children of the marriage aged 12, 10 and six years. The consent orders provide that the children spend eleven nights per fortnight with the wife. In addition she has responsibility for the care for eleven weeks of their school holidays. The relevance is as to the impact of this onerous responsibility on the wife’s capacity to obtain employment.
The husband will pay child support which will contribute substantially to the children’s needs regardless of my determination of quantum pursuant to the wife’s child support departure application. The husband and his current wife have a child born in [omitted] 2011 and the husband has obvious responsibilities to the support of that child.
A reasonable standing of living for the wife is a relevant consideration. The parties enjoyed a good standard of living prior to separation. The wife was not required to pursue her employment in favour of caring for the parties’ children. The eldest child was enrolled in private school education. The parties lived in a home that was sold for $1.872 million. The wife must seek alternate accommodation. There is no evidence that she has re-partnered.
It is clear on the evidence that the wife has contributed during the marriage to the husband’s current and future earning capacity. His income increased by more than $500,000 per annum during the course of the marriage. He worked long hours and often on call. The wife’s contributions are acknowledged above. The wife’s ongoing care of the children continues to contribute to the husband’s pursuit of his career. The wife ceased working as a [omitted] in 2000 prior to the birth of the parties’ first child. She has not since worked full time. She ceased all paid employment in 2006 prior to the birth of the youngest child. The wife’s [omitted] qualifications are stale.
The wife wishes to continue in her role as primary carer of the three children and the inference I draw is that the husband has and does support her in this role. The husband has remarried. His current wife works in his [business]. I’m satisfied that there is some advantage to him in distributing income despite his wife’s legitimate role. The income discrepancy and earning capacity between these parties is notable and relevant. It is likely to be a continuing discrepancy and is relevant for their capacities in re-establishing themselves after separation.
Further, and related to this, in the primary role accepted by the wife and delegated by the husband, I am satisfied that her responsibilities for these three relatively young children would impact on her employment prospects even if she is to successfully retrain as a [omitted]. This onerous responsibility is mitigated somewhat by the husband’s payment of the child support but only insofar as actual financial support of the children.
Taking all of the relevant section 75(2) factors into account but with emphasis on the discrepancy in earning capacity and the greater parenting responsibilities of the wife, I am satisfied that a further adjustment of 20 per cent to the wife is appropriate. Consequently, I find that the wife should receive a 77.5 per cent adjustment in her favour after consideration of both contribution and section 75(2) factors. The question is whether this percentage adjustment applies to both the tangible assets and the superannuation entitlements? The parties agree that the wife will retain all of the tangible assets. They total $432,257. Her entitlement at 77.5% would be $334,999. The excess retained by her is therefore $97,258.
I note that neither party seeks a splitting order in respect of the husband’s superannuation policies or entitlements. The contributions and section 75(2) factors remain relevant in the sense that superannuation is to be “treated as property” and it seems that at least a majority of the superannuation entitlements were accrued during the relationship. Nevertheless, I also need take into account that the superannuation entitlements are unlikely or unable to vest for many years given the parties’ young ages. There is no splitting order sought and the husband is willing to retain his entitlement from the superannuation pool with the wife to keep the tangible assets. The superannuation entitlements are relatively modest. In all of these circumstances, I am of the view there should be a discount factor in respect of superannuation, as opposed to the tangible assets. The parties appear to agree that for practical purposes, the wife will retain her [H] superannuation ($42,286) and the husband will retain the balance of superannuation policies and entitlements, including the wife’s small account with [L] Superannuation Fund ($2926) and therefore he will be retaining superannuation entitlements of $159,376. I am satisfied that it is appropriate for the wife be entitled to 60 per cent and the husband 40 per cent of gross entitlements although, of course, there will be no actual splitting order save and except for the wife’s small interest in the [L] Superannuation Fund back to the husband. At 60 per cent, the wife would be entitled to a $120,997.20. She retains $42,286 and, therefore, has a residual entitlement of $78,711.
In summary, therefore, the distribution of assets gives the wife $97,258 over and above her entitlement, whilst the distribution of superannuation interests gives the husband $78,711 over and above his entitlements if there had been a splitting order. I am satisfied that the difference being the sum of $18,500 (rounded off) should be allocated as spousal maintenance pursuant to section 77A of the Act.
Spousal Maintenance
The wife seeks an order that the husband pay to her a sum of $1000 per week spousal maintenance until 31 December 2018 which I understand to be the end of the year of the youngest child’s primary school education. The husband argues that the wife’s application for spousal maintenance be dismissed.
On 20 December 2011, Cronin J made an interim order by consent, whereby:
the husband pay the wife the net sum of $4000 per month, to be paid to her on the first day of every month, into her personal nominated bank account for her spousal maintenance.
The principles in determining whether a party has an entitlement to spousal maintenance are provided in section 72 of the Act as follows:
(1)A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c)for any other adequate reasons;
Having regard to any relevant matter referred to in subsection 75(2).
Section 74(1) of the Act states:
In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.
The process for the Court is a settled one, following the decision of the Full Court in Bevan & Bevan[5]. where their Honours held after some examination of a previous Full Court judgment in Wilson & Wilson[6] as to the “reasonableness test”, as follows:
[5] (1995) FLC 92-600 at 81,981
[6] (1989) FLC 92-033
Taken together then, we would state the law as being that an award of spousal maintenance requires:
(1)a threshold finding under section – S72;
(2)consideration of section – S74 and S75(2);
(3)no fettering principle that pre-separation standard of living must automatically be awarded where the respondent’s means permit; and
(4)discretion exercised in accordance with the provisions of S74, with “reasonableness in the circumstances” as the guiding principle.
It is important for a court, in matters concerning both property and spousal maintenance applications not to confuse the references to the section 75(2) factors. As the Full Court noted in Clauson & Clauson[7]:
Here lies the potential for the confusion which in fact occurred in this case. However, the distinction, although difficult to define with precision, has been clearly identified in this jurisdiction over many years.
Where spousal maintenance is sought in addition to a property order it becomes, in effect, the fourth step in the process. It is only to be exercised after – the three step process under S79 has been completed and it is not to be confused with the S75(2) component in that latter exercise. The reason why it must be exercised after the S79 exercise is because that latter exercise establishes the background against which S74 must operate, that is, the financial circumstances of the parties.
The result of the S79 order may be such that the applicant for maintenance can no longer be described as being “unable to support himself or herself adequately” because he or she may have sufficient assets which, with or without income arising from the investment or use of those assets, will provide an adequate level of support. It also defines the other party’s capacity to meet any order.
[7] (1995) FLC 92-595 at 81,907
The wife sets her needs out in her Financial Statement sworn 8 March 2013. At part B, paragraph 2, she totals personal expenditure at $1992 per week. Closer examination shows that this is the expenditure of the household including in respect of the children’s needs. This expenditure also includes the sum of $562 for rental which arguably could be allocated between the wife and the children. Nevertheless, I take the view that the wife must accommodate herself and the sum of $562 per week is reasonable.
In her financial statement, she also deposes to an ongoing telephone obligation of $111 per week but, in cross-examination, conceded that to be now approximately $27 per week for the household. She also has a liability of $125 per week for her MasterCard but which she admits will be paid out by her from the cash element of the property settlement. Consequently, with those adjustments and from her financial statement, I find the wife’s needs to be the following:
rent
$562
car insurance
$25
Home/Contents insurance
$11
health insurance
$41
motor vehicle registration
$11
personal expenses at part N (including telephone and total for the household of $27
$304
TOTAL
$954 per week
The wife deposes to the children’s expenditure being a further $913 per week and, of course, she has an obligation to contribute to the children’s support insofar as she is able. In this context, I must consider the amount of child support paid by the husband for which the wife seeks a departure order seeking that the husband pay $3,201 per calendar month for the three children which equates to $38,412 per annum or $738.77 per week.
The husband in these proceedings seeks an order that he bound by any assessments by the Child Support Registrar. Assuming, therefore, that the husband meets his obligation towards the children by the child support assessment or order, it falls on the wife to meet the remaining costs. This is an obligation that she has at law. It follows that she has a need or expense accordingly. In this case that “expense” would impact on the wife in a sum of approximately $175 per week thereby bringing her total expenses or financial needs to $1,129 per week.
The wife currently rents a home for herself and the children at $562 per week. Her evidence is that if she is to purchase a home then that ongoing expense in the form of a mortgage payment would rise to $665 per week plus rates and insurance, an increase of $103 plus per week. Counsel for the wife argued that it was reasonable and prudent for the wife to purchase a property noting that the husband and his new wife had themselves purchased a home. However, in cross-examination of the wife the following exchange took place:
Okay. Now, tell me this. You’ve told us the plans are a bit flawed in terms of where you’re going to live, what you’re going to buy, whether to rent and so on?---Correct.
Are those plans any firmer now? Do you know whether you’re going to go and buy straightaway?---Now, that I have an extra $125 a week?
Now, that you’ve got $445,000. Now that you know what you’re getting in terms of capital, are you going to go and buy a house? Is that the plan?---Not with $445,000, no.
All right. Okay. The reality is, isn’t it, that you haven’t made any inquiries about borrowing money from a bank account other than doing the calculator attached to your affidavit? Is that right?---Correct.
And the reality is, isn’t it, that on your current income from personal exertion $340 a week you would struggle to get a mortgage? Do you agree?---I would struggle? Yes.
Yes. And the reality is that you won’t get a mortgage until you are in a job that is paying you the more predictable, solid and significant amount of money each week. That’s right, isn’t it?---That is right.
Yes. Do I take it from that – and given your evidence that there’s no immediate plans to do anything other than what you’re doing now, you might do a few extra hours and so on, I take it from that then that there’s no immediate plans to take on a mortgage because you won’t be able to. That’s right, isn’t it?---It is right.
So given that evidence, the plan must be, I will put to you, to continue renting for a while?---Yes.
Invest the money, earn some income on it, and keep renting for a while. Is that the plan?---Correct.
You say that’s just your reality?---It’s my reality.
Given this evidence and the general fettering principle, I am not convinced that the wife has an intention or need to purchase a home for herself and the children immediately.
The wife earns $340 per week from her current part-time employment in [omitted]. This employment fits well with her needs to care for the children in out of school hours. The work does not encompass school holiday periods. She does this work for about forty weeks per year giving her approximately $13,600 per annum.
In cross-examination the wife agreed that she may be able to achieve six per cent return on a prudent investment of the cash element of her property settlement which, after payment of some liabilities and the legal costs, would be at least $360,000 and she did not dispute that she may achieve an income of $21,500 gross per annum from the interest. I had no evidence in a formal sense of market interest rates or investment opportunities.
The wife was cross-examined as to whether she could increase her hours at [workplace omitted]. She agreed that she had available to her to work for another day per week bringing an extra $85 each week for forty weeks of the year being a further $3400 per annum. The indication from the wife was that she, in fact, intended to increase her hours on days in her current position and take up that extra day.
Further in her evidence the wife volunteered that she could start earlier in the position that she currently holds. She currently starts at 9.30 am. She drops the children off by 8.30 and could therefore work for an extra hour per day for five days per week which at $18 per hour is an extra $90 per week for 40 weeks a year or $3,600 per annum bringing her to a total income to $42,100 per annum or $810 per week gross if allocated over the entire year.
The wife seeks spousal maintenance until the youngest child starts high school. She says that she wants to be available to care for the children in out of school hours including school holidays and this precludes her from most other alternative employment including retraining as a [omitted] which would involve a period of full time employment whilst retraining and then shift work.
The husband says that the wife has received spousal maintenance either by interim order or informally since separation in October 2010 with the implication being that she should by now have put herself in a position where she could attend to her own financial needs. At paragraph 48 of his trial affidavit the husband says:
That I entered into agreement regarding spousal support as I wished to honour my agreement reached with [Ms Maybury] at the mediation sessions at Relationships Australia. Those mediations occurred in August and September 2011 and we concluded with an agreement that I pay periodic child support of approximately $3,200 per calendar month as well as education and other expenses. I also agreed to pay [Ms Maybury] the sum of $4,000 per month for her own maintenance and that this would be for a period of 12 months after the separation followed by $3,000 per calendar month for a further 12 months and thereafter the agreement to pay spousal maintenance to [Ms Maybury] would cease completely. I honoured that agreement as it was a reflection of my acknowledgement that [Ms Maybury] was the primary carer of the children and that our youngest child, [Z], at the time of separation was not yet at school and in fact did not commence school until 2012 and therefore, it provided for [Ms Maybury] to obtain [omitted] work in the year 2012 when [Z] had commenced school.
The formal order of interim spousal maintenance of $4,000 per month was made on 20 December 2011.
In her initial Response filed 16 December 2011 the wife did not seek a final order for spousal maintenance. She sought an interim order for spousal maintenance of $7,200 per month. Just over a week later the consent orders of $4,000 per month were made. In an amended response filed 22 August 2012 the wife sought a final spousal maintenance order and open ended in the following terms:
The husband pay the wife the sum of $5,200 per calendar month to be paid to her on the first day of each month into her personal nominated bank account for her spousal maintenance.
She then sought a further interim order in the same terms despite the ongoing order of Cronin J from 20 December 2011.
The husband argues that the wife could use her qualifications to obtain employment as a [omitted] and hence support herself. I am satisfied that the wife’s qualifications are stale. She has not worked in her profession for many years. The parties agree that a decision was made during the marriage that the wife would not work and so as to care for the young children. The wife now seeks to continue that role until the youngest child attends high school. The Act, of course, recognises the right of a parent to prioritise the care of children. The youngest child will commence high school in 2019.
For the wife to bring her [omitted] qualifications up to date would require further full-time education and employment during that retraining period. I am satisfied that the hours would be inconsistent with the children’s school hours. Further, if the wife was to obtain employment as a [omitted] then the [omitted] positions would be likely to require shift work which would again be inconsistent with her obligations to the children’s care such obligations delegated to her during the marriage.
The wife’s evidence is that she does intend to return to the workforce until all children are at high school. She concedes that she has not actively sought employment outside of her current [omitted] position although this employment, with the extra hours and extra day that she intends to work, would occupy her five days per week during the children’s school hours and leave her available to care for them in out-of-school hours and during school holidays.
The husband continues to acknowledge the wife’s primary role for the children. His own work commitments dictate that the wife’s responsibility is perhaps more onerous than is the norm given the limited school holiday period that the husband seeks to spend with the children.
In all of these circumstances, I am satisfied that the wife is currently employed to her capacity given her responsibilities for the care of the children and the lack of immediate available professional options for her. I am satisfied that it is reasonable for her to continue prioritising the children’s care until the youngest child commences secondary education in 2019.
Consequently, I find that the wife has needs or reasonable expenses of $1129 per week. I find that she has an income or income potential of $810 per week, leaving a shortfall of $319 per week. I must, however, factor into the equation the section 77A order which effectively provides lump sum spousal maintenance to the wife of $18,500, which if theoretically also invested at six per cent interest would bring her a further $1100 per annum or $21 per week, or if mathematically divided weekly over the five and a half years that the wife seeks spousal maintenance until the end of 2018 and exhausted then she would be able to draw approximately $60 per week.
Potentially therefore the wife could have income from all sources of up to $870 per week. She would however be subject to taxation on her income. No evidence was put before me by either party as to this aspect. I conclude however that some taxation would be payable and it would not therefore be just or proper simply to consider the wife’s income in its gross form. Consequently, with no particular science in the calculations, I will estimate that the wife will have available nett income to her if she works to her potential of approximately $670 per week allowing a deduction of $200 per week for the taxation liabilities and contingencies.
I find, therefore, that the wife has needs over and above her income capacity. I am satisfied that the husband has the capacity to meet any spousal maintenance order, as his counsel properly conceded. I am satisfied that the spousal maintenance order should continue until 31 December 2018. I am satisfied that a quantum of spousal maintenance, the sum of $450 per week, is appropriate considering the wife’s reasonable expenses/needs and her own ability to attend to those needs.
Child Support and Other Matters
The wife seeks an order for departure from child support assessment by the Child Support Registrar. She asks for an order until 31 December 2018 and that the husband pay a sum of $1067 per child per month (being $12,800 per child per annum, or a total of $38,400 per annum, varied with reference to the Consumer Price Index annually). In addition, she asks the husband to make the following payments:
a)School fees and all compulsory tuition charges for [X] to the completion of year 12 at [V] School and for [Y] and [Z] to the completion of grade 6 at [W] School. The husband agrees to make these payments.
b)School fees and all compulsory tuition charges for [Y] and [Z]’s secondary schooling at [V] School or such other private secondary schools the parties may mutually agree. The husband opposes this order;
c)The cost of the children’s textbooks, school uniforms, footwear, sporting uniforms, school sporting equipment, compulsory extracurricular costs and any other agreed extracurricular costs.
d)Medibank Private health insurance cover for the children at the level of cover that applied to them as at 1.10.2010 until they each attain 18 years.
e)The husband proposes a child support regime for the three children as follows:
(1) that the husband pay child support as assessed by the Child Support Agency;
(2) that in addition to child support as assessed, he also pay:
f)private health insurance for the children;
g)private school fees at [V] School for [X] until she concludes her education at that school;
h)an additional $300 per month over and above any periodic assessment as contribution to the costs of:
i)school uniforms;
ii)school excursions/incursions;
iii)school books and stationery;
iv)any school levies;
v)extracurricular activities, including all costs for all activities the children participate in by agreement between the parties.
There is, therefore, a preliminary question as to whether the husband be committed by order to pay for the school fees for the children, [Y] and [Z], at [V] School for the duration of their secondary schooling. The boys currently attend a government primary school. [Y] is in grade 4 and will commence high school in 2016. [Z] is in grade 1 and will commence high school in 2019.
The husband argues that there should be no “child support” order as sought by the wife in respect of school fees for [Y] and [Z] as there is no agreement or Court order that the boys attend [V] School for their secondary education or, indeed, any particular school. The husband says that such an order would be premature. He points to the fact that on the first day of this trial consent parenting orders were made and did not include an order as to where [Y] and [Z] attend high school. He says that he does not at this time consent to them being enrolled in that school. As such, any order for him to pay fees at a particular school must come only after any decision as to which school they attend. In this respect, I agree with the husband. It would not be appropriate to commit the husband to payment of school fees at [V] School when there is no agreement or order that they attend that school and it being a number of years before that issue becomes relevant. The husband remains uncommitted as to any particular secondary school for these two boys. The issue of where these boys go to high school is not agreed between the parents but is not litigated now before me. Consequently, I am not persuaded that any documents that [Mr Carroll] may have previously signed should be given any weight given that the attendance of [Y] and [Z] at high school is not imminent.
The Court has the jurisdiction to entertain the wife’s departure application pursuant to section 116(1)(b) in that the husband and the wife are parties to an application pending in this Court having jurisdiction under the Child Support Assessment Act 1989.
Section 117 of the Child Support Assessment Act gives the Court the power to make departure orders in special circumstances. Subsection (1) provides:
(1) Where:
(a) application is made to a court having jurisdiction under this Act for an order under this Division in relation to a child in the special circumstances of the case; and
(b) the court is satisfied:
(i) that one or more of the grounds for departure mentioned in subsection (2) exists or exist; and
(ii) that it would be:
(A) just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(B) otherwise proper;
to make a particular order under this Division;
the court may make the order.
Subsection (2) provides:
(2) For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:
(a) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:
(i) the duty of the parent to maintain any other child or another person; or
(ii) special needs of any other child or another person that the parent has a duty to maintain; or
(iii) commitments of the parent necessary to enable the parent to support:
(A) himself or herself; or
(B) any other child or another person that the parent has a duty to maintain; or
(iv) high costs involved in enabling a parent to spend time with, or communicate with, any other child or another person that the parent has a duty to maintain;
(aa) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of the responsibility of the parent to maintain a resident child of the parent (see subsection (10));
(b) that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:
(i) because of high costs involved in enabling a parent to spend time with, or communicate with, the child; or
(ia) because of special needs of the child; or
(ib) because of high child care costs in relation to the child; or
(ii) because the child is being cared for, educated or trained in the manner that was expected by his or her parents;
(c) that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
(i) because of the income, earning capacity, property and financial resources of the child; or
(ia) because of the income, property and financial resources of either parent; or
(ib) because of the earning capacity of either parent; or
(ii) because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.
High costs involved in enabling parent to care for a child
(2B) A parent’s costs involved in enabling the parent to care for a child can only be high for the purposes of subparagraph (2)(a)(iv) or (2)(b)(i) if the costs that have been or will be incurred, during a child support period, total more than 5% of the amount worked out by:
(a) dividing the parent’s adjusted taxable income for the period by 365; and
(b) multiplying the quotient by the number of days in the period.
(2C) If a parent has at least regular care of a child, then the only costs that can be taken into account for the purposes of subsection (2B) are costs related to travel to enable the parent to spend time with, or communicate with, the child.
The Full Court considered the term “special circumstances” in the judgment in Gyselman & Gyselman[8]. holding:
Whilst it is not possible to find with precision the meaning of that term, as a generality it is intended to emphasise that facts of the case must establish something that is special or out of the ordinary, that is, the intention of the legislature is that the Court will not interfere with the administrative formula resulting in the ordinary run of cases.
[8](1992) FLC 92-279
The Court in Gyselman & Gyselman (supra) summarised the process for the Court at page 79,078:
As we have already indicated, the exercise under s.117 involves three steps. The first, which we have already examined, is whether one or more of the grounds in sub-section (2) has been made out. The legislation then requires the Court to consider whether any proposed order is “just and equitable” and “otherwise proper”.
Each of these three steps must be addressed as a separate issue and separately in respect of each period for which a departure order is sought noting that the wife seeks the departure order for some five and a half years until 31 December 2018.
Child support is usually payable on an assessment made pursuant to a formula with ingredients including the payer’s income, the payee’s income, the number of children, the needs of the children, and the responsibility of the payer for support of other dependent children. The wife seeks to depart from this formula in what she says are the special circumstances of this case. She does so on a number of grounds and in respect of particular factual platforms as follows:
i)Seeking Orders that the husband pay the school fees for [X] at [V] School and for [Y] and [Z] for the duration of their secondary schooling over and above any periodic child support. She relies on:
a)s.117(2)(b) of the Child Support (Assessment) Act 1989 being that, in the special circumstances of the case, the costs of maintaining these children is significantly affected;
b)s.117(2)(b)(ii) – because the children are being cared for, educated or trained in the manner that was expected by her parents.
c)[X] has attended [V] School since the beginning of primary school and hence prior to the parties’ separation and I infer, therefore, as a result of agreement between the parents. The husband concedes and consents that he will meet [X]’s continuing school fees until she completes her secondary education at [V] School. The wife also seeks an order that the husband pay the secondary school fees for [Y] and [Z] at [V] School. As mentioned above, there is no agreement or court order that they attend that school. As such, any such departure order in respect of the younger two children would be, in my opinion, premature.
ii)Pursuant to section 117(2)(c) of the Act, the wife argues that, in the special circumstances of this case, the husband should pay for the three children in the sum of $1067 per child per month or $12,800 total per annum. She says that the assessment procedure would result “in an unjust and inequitable determination of the level of financial support to be provided by the husband for the children” because of the income, property and financial resources of the husband. The wife argues that the husband’s gross income achieved through his Family Trust is at least $600,000 per annum and on the evidence will consistently be so.
However, the difficulty with the wife’s argument is that child support is not, and should not be, calculated solely on the income of one of the parties, namely the payer. As set out above, there are a number of variables or considerations to be taken into account in applying the formula. The wife in her evidence conceded that her recent learning of the extent of the husband’s income has influenced her arguments in respect of both spousal maintenance and child support departure. In respect of the latter, however, it is important to emphasise that child support assessments or orders must take into account the needs of the children and other factors and not simply be an increasing scale of payment dependent upon the income of the payer.
In this matter it is true that the husband can distribute his income and does so to his current wife. However, that income is substantial and remains transparent as to its source despite the use of the Trust. The husband and his current wife themselves have a child and this is a factor that should be brought into consideration. The wife must establish that the assessment procedure produces an unjust or inequitable result. She says that the husband’s ability to distribute his income has this potential. I do not agree given that the husband’s income remains very high even considering the evidence as to recent trust distributions. The wife’s argument is based only on the extent of the husband’s income and his ability to distribute it through the Trust. However, on my understanding, there is no “cap” on the payer’s income in respect of the formula. The assessment is calculated not just on income but on the other variables including, importantly, the needs of the children which will serve in itself to produce a “cap” which would not be so if the sole criteria was the income of the payer. As such, acceptance of the wife’s argument may well, in my view, itself create injustice and inequity in respect of child support. Consequently, the wife’s application to depart from child support assessment for periodic payments fails.
Finally, the wife seeks additional orders as follows:
a)That the husband also pay the costs of the children’s text books, school uniforms, footwear, sporting uniforms, school sporting equipment, compulsory extra-curricular costs and any other agreed extra-curricular costs;
b)That the husband pay Medibank Private health insurance cover for the children at the level of cover that applied to them as at 1 October 2010 until they attain 18 years.
My understanding of the husband’s case is that he concedes to paying private health insurance for the children and, that being the case, it is proper that he continue to do so at the level of cover that applied at the date of separation in 2010.
The husband’s proposal in respect of additional education and extra-curricular costs for the children is that he pay a set sum of $300 per month over and above his periodic assessment of child support being $3600 per year. I have no evidence as to the particulars of these expenses other than the simple estimates given at Part N of the wife’s financial statement and whether $3600 per annum is anticipated by the husband to cover all or only a part of those costs in question. In those circumstances, and given the husband’s concession that he would meet or contribute to those costs, and given my findings as to the relative financial positions of the parties, I favour the wife’s position which is that the husband meets such costs but without a cap. Obviously, this will involve the wife providing the husband with the accounts for purchase of school uniforms, shoes, sporting uniforms and equipment and extra-curricular costs and the concept of “reasonableness” will apply. However, on the evidence before me, the husband has not shown himself to being reluctant or frugal in support of his children and I am confident that he will respond reasonably upon being provided with accounts on invoices for his children’s extra needs.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge McGuire.
Date: 6 June 2013
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Family Law
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