Conti and Conti
[2010] FMCAfam 344
•15 March 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CONTI & CONTI | [2010] FMCAfam 344 |
| FAMILY LAW – Property proceedings – small pool – superannuation – overseas pension or benefit – spouse maintenance – husband left Australia – parenting proceedings – undefended hearing. |
| Family Law Act 1975 (Cth), Part VII, Part VIII, Part VIIIB |
| C & C [2005] FamCA 429; (2005) 33 FamLR 414 Hickey & Hickey (2003) FLC 93-143 Maciel & Maciel [2007] FMCAfam 262 In the Marriage of Clauson (1995) 18 FamLR 693 SHL & EHL [2006] FamCA 1287 |
| Applicant: | MS CONTI |
| Respondent: | MR CONTI |
| File Number: | NCC 1232 of 2007 |
| Judgment of: | Coakes FM |
| Hearing date: | 9 March 2010 |
| Date of Last Submission: | 9 March 2010 |
| Delivered at: | Wauchope |
| Delivered on: | 15 March 2010 |
REPRESENTATION
| Solicitors for the Applicant: | The wife represented herself |
| Solicitors for the Respondent: | The husband did not appear |
ORDERS:
Alteration of Property Interests
Pursuant to section 90MT(1)(c) of the Family Law Act1975, whenever a splittable payment becomes payable in respect of the Member Spouse’s interest in Australian Super the Non-Member Spouse/Applicant shall be entitled to be paid an amount calculated in accordance with the regulations using a base amount, as at the date of these Orders being 100% of the Member Spouse’s interest, and that there be a corresponding reduction to the entitlement the husband would have had in Australian Super but for this Order. Pursuant to section 90MZD of the Family Law Act1975 this Order binds the Trustee of Australian Super.
The preceding Order has effect from the operative time.
The operative time of these Orders pertaining to Australian Super is four (4) business days after service on the Trustee of the Orders made.
The Trustee of Australian Super, in accordance with the obligations set out under the Family Law Act1975 and the Family Law (Superannuation) Regulations2001 should do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of and make payment to the wife in accordance with Order 1 of these Orders.
Payment pursuant to Orders 1, 2, 3 and 4 above be made by cheque or by transfer of the relevant amount to the superannuation fund nominated by the Applicant, that fund being First State Superannuation Fund membership number [omitted].
Unless otherwise specified in these Orders and as between the parties:-
(a)Each party shall be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these Orders and that for this purpose Bank accounts are deemed to be in the possession of the person whose name appears on the Bank’s record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements; and
(b)Unless otherwise agreed herein each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
Order that in the event that either party refuses or neglects to execute any document necessary to give effect to all or any of the Orders herein within seven (7) days of submission of such document to them or their respective Solicitors the Registrar or a Deputy Registrar of the Federal Magistrates Court of Australia at Newcastle or the equivalent Court Officer in any reciprocating jurisdiction under s.124A be appointed pursuant to section 106A of the Family Law Act1975 to execute any such document in the name of the defaulting party and do all other acts and things necessary to give validity and operation to the said document or documents without further notice.
That the wife’s application for spouse maintenance is dismissed.
Parenting Orders
That the parenting Orders made in the Federal Magistrates Court of Australia at Newcastle on 19 December 2008 are discharged.
That the child [X] born [in] 1994 (“[X]”) live with the mother.
That the mother have sole parental responsibility for [X] both in relation to long term decisions and day to day decisions concerning his care, welfare and development.
That [X] communicate with and spend time with his father as is agreed in writing between the parents.
IT IS NOTED that publication of this judgment under the pseudonym Conti & Conti is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT WAUCHOPE |
NCC 1232 of 2007
| MS CONTI |
Applicant
And
| MR CONTI |
Respondent
REASONS FOR JUDGMENT
Edited from the transcript
Introduction
The mother is the applicant in these proceedings and she filed her application for final orders on 8 July 2008 in the Family Court of Australia of Newcastle. Subsequently, on 6 August 2008, the proceedings were transferred to the Federal Magistrates Court.
In her initiating application the mother, who has always represented herself, except towards the very end when she instructed solicitors in Port Macquarie, in relation to the parenting application, sought an order which she termed a financial property settlement and that she be paid 25 per cent of the husband’s [U] retirement pension for spousal maintenance.
The mother also sought consent orders that the one child of the relationship live with her, that she have sole parental responsibility for him and the father spend time with him. The mother also sought a child support order that the father pay child support as assessed by the Child Support Agency. Whilst not being critical of the mother, some aspects of her application filed at that time were not in a form in respect of which the court will be able to make orders.
In his response, filed on 30 July 2008, the husband opposed the orders sought by the wife. The husband was represented by lawyers, Rafton Family Lawyers at Richmond. The husband raised the issue that the wife had filed her application out of time - in other words, that it was filed more than 12 months after the day upon which a divorce order became effective - and therefore sought that the wife’s application be dismissed pursuant to section 44(3) of the Act.
In relation to parenting orders, the father sought the appointment of an independent children’s lawyer, that the child live with him, that the parents have equal shared parental responsibility, and the mother spends some defined time with him. The husband subsequently filed an amended response on 23 June 2009. The significance of that application is that it followed leave being granted to the wife at the end of 2008, under circumstances to which I will refer shortly, to bring property proceedings pursuant to section 44(3).
In his amended response filed on 23 June 2009, by which time the father was representing himself and did not have the assistance of lawyers to prepare orders capable of being made - and, again, that is not a criticism of the husband - he sought an order that the wife not be entitled to any part of his [U] retainer pay, and then went on to set out reasons for that under certain United States legislation, which he identified as part of the order he sought.
On 11 December 2008 the family report which I ordered in relation to the parenting proceedings was published and made certain recommendations. It was prepared by Mr Paris, a Regulation 7 Family Consultant, and recommended that the child live with the father and spend all school holiday periods with his mother except for Christmas, which should be shared, and that the child spend other times with his mother as negotiated between his parents, and some other practical recommendations.
On 19 December 2008 final parenting orders were made by consent: namely, that the one child of the relationship, [X], born [in] 1994, live with the father to commence from 26 December 2008 and with [X] to spend time with his mother as defined in those orders: broadly, the whole of school holiday periods at the end of terms 1, 2 and 3 and for two weeks of the Christmas school holidays. Orders were made for implementation of such time and on the same day - that is, 19 December 2008 - I made an order pursuant to section 44(3) of the Act that the wife be granted leave to bring an application for alteration of property interests out of time.
Insofar as those proceedings were concerned, a divorce order had been made on 5 June 2007 which became effective on 6 July 2008. It follows that the wife was two days outside the 12-month period within which to bring such application. In all the circumstances, I decided it was appropriate that the wife be granted that leave. On 19 March 2009 a conciliation conference was held but which did not result in a settlement, as I understand it.
On 8 May 2009, when both parties appeared before me in person in Newcastle, I adjourned the matter to 13 November 2009 for a final hearing in relation to property interests, one day allowed, and made directions for each party to file and serve any amended application and amended response and affidavits and financial statements. The matter was also adjourned to an earlier date, 7 October, for a compliance check in relation to property.
On 3 October 2009, under circumstances to which I will refer later in these reasons, [X] moved from Sydney to Port Macquarie to live with his mother and has lived with his mother since that time. On 7 October 2009 a compliance conference was conducted where the mother appeared in person and the father did not appear. The father had not filed any further documents, except for his amended response on
23 June, to which I have referred. On 7 October I also made orders for the mother to issue any further subpoena she may wish to issue, to be returned on 28 October 2009.
When the matter came before me on 30 November, which was the date listed for hearing, the mother appeared in person and there was no appearance by, or on behalf of, the father. It was necessary for the mother to issue further subpoenas and I then adjourned the matter to 26 November for directions at Wauchope, an undefended hearing as to alteration of property interests and parenting orders if the father had filed no further material or failed to appear.
The matter came before me on 26 November at Wauchope when I made an order, pending further order, that [X] live with the mother and made an order for further subpoena to issue, which the mother was required to do, and otherwise adjourned the matter to 17 December at Newcastle for a directions hearing or undefended hearing. The mother had informed me that she was trying to make contact with the father.
On 17 December, when the mother was represented by Ms Kelly, there was no appearance by, or on behalf of, the father and we adjourned the matter to 21 January 2010 to list the matter for hearing. At that time the mother was still endeavouring to locate and serve the father and the matter was adjourned until 5 February for a directions hearing in relation to an application for the substituted service of documents on the husband. At that time it was thought the husband had left the country and returned to the United States and other inquiries to locate his whereabouts have proved fruitless.
The matter came before me for hearing on 1 March but was unable to be reached as a consequence of the number of matters in the list before me that day and I adjourned the matter to 10.00am on 9 March at Wauchope for final hearing. The mother appeared in person on 1 March, there was no appearance by, or on behalf of, the father. The hearing was then conducted at Wauchope on 9 March as an undefended hearing.
Service on the husband
I am satisfied from the affidavits of the mother sworn and filed
17 November 2009 and sworn 20 January and filed 22 January 2010 and the mother’s affidavit sworn 23 February 2010 and filed
24 February 2010 and the affidavit of the mother’s solicitor, Caroline Kelly, also sworn on 23 February and filed 24 February 2010, that every effort has been made to serve the husband with the wife’s present application and affidavits. I am satisfied from the documents produced in the response to a subpoena to the Department of Immigration and Citizenship, exhibit W4, that the husband left Australia on 15 October 2009 from Kingsford Smith Airport, Sydney, to travel to the United States of America, apparently by Virgin Airlines. I am further satisfied the husband has not returned to Australia. I am satisfied that all attempts to locate the husband have been made and that, on the balance of probabilities, the husband is aware of the wife’s current application.
At no time did the husband file a notice of change of address with the Court following the cessation of his previous Solicitors acting for him, except for his amended response, to which I have referred, and in that document he referred to his address for service of documents as Property C, New South Wales, Australia. Further, the husband has not made any communication with the Court as to any further address for service of documents upon him.
The applications
The wife’s amended application filed on 24 February 2010 firstly seeks an order by way of spousal maintenance that the husband pay the wife $US1375.03 per month for a period of four years, such sum to be increased on 1 January each year by 3.3 per cent. The wife then sets out a number of logistical orders in relation to paying those moneys and seeks an order that such order bind the US Defense Finance and Accounting Service or any body liable to pay moneys to the husband and also seeks an order that the relevant officer of the Department of Immigration and Citizenship of Australia, and the United States of America or any reciprocating jurisdiction, notify the registry of the Family Court of Australia at Newcastle of any information as comes into its possession concerning the husband’s movements into or out of Australia and the United States of America and as to provide for the Federal Magistrates Court the residential addresses given by the husband returning to residence or stay in Australia and/or the United States of America and that such information be given to the solicitors who were previously acting for the wife, Byrnes & Cox in Port Macquarie.
The wife also seeks orders in relation to the husband’s superannuation benefits, and there is a splitting order pursuant to section 90MT(1)(c) and the wife seeks a number of further orders in relation to such order. In relation to property, other property, the wife seeks an order that the husband transfer a particular motorcycle which she identifies to her and that she be declared the owner of certain model kits, including model airplanes, motor cycles, cars and tanks. The mother also seeks a number of other orders in relation to property, effectively, that each party retain the property which that party has.
The wife also seeks some parenting orders: that is, that the order of 19 December 2008 to which I have referred be discharged, that she have sole parental responsibility for [X], the father have liberal telephone conversation and the father spend time with [X], as agreed from time to time between the parties in writing.
Whilst I am satisfied, for the reasons that I have given, that the husband is aware of the proceedings and the orders the wife is currently seeking in relation to property, I am equally satisfied that the husband is aware of the superannuation order sought by the wife, in that on 16 February 2009 the wife filed an amended application for final orders and at that time she sought an order that an amount be allocated to the applicant wife out of the superannuation fund of the respondent husband with Australian Super in the amount of $20,959, being all amounts held in the husband’s super except for $1 to keep the account open. The purpose of that order was to seek the payment to the wife of the whole of the husband’s superannuation and the reference to “being all amounts held” is clear that it relates to the whole amount.
Whilst the order was defective as to its drafting, it is very clear that that is the order that the wife was seeking. Consequently, I am satisfied that the husband is aware of the order which the wife seeks in relation to his superannuation benefits.
Background
The wife is 41 years of age. She lives in Port Macquarie in rented property. She has some occasional current part-time employment, to which I will refer later, on one day a week. Her principal employment, but not presently available to her, is as [occupation omitted].
The husband is 47 years of age. Whilst he lived in Australia he worked for a number of industries to which I will refer later. His last occupation, essentially, was that of a [occupation omitted].
The parties met in Australia on or about 4 May 1992, were married at Penrith in New South Wales [in] November 1992. In September of 1993 the wife travelled to the USA to join her husband, he then being a member of the Defense Forces and, in particular, the [U], which he had previously joined in 1980 and remained a serviceman in the [U].
In September of 2000 the wife and [X] returned to Australia; the husband followed in March of 2001. The family lived in the Richmond district in New South Wales. Between March and August of 2001 the husband was not working but then subsequently obtained work, which continued until the time he left Australia.
The parties separated on 22 February 2006. An order for divorce was made on 5 June 2007, which became effective on 6 July 2007.
The only child of the relationship is the child the subject of these proceedings, [X], born [in] 1994. He is now 15 years and six months of age. Currently he is a pupil at [P] School.
The mother has not re-partnered. It would seem that the father has
re-partnered, and perhaps remarried, one Ms E.
The only current orders are the parenting orders made on 19 December 2008, to which I have referred.
The issues
Insofar as the issues are concerned, it seems to me the matters I am required to consider are these:
a)firstly, what are the contributions made by each of the parties from cohabitation until date of final separation and the weight to be attached to those contributions;
b)second, what are the contributions made by each of the parties from final separation until the time of the hearing and the weight to be attached to those contributions;
c)thirdly, what are the relevant section 75(2) factors and what adjustments are required, if any, in favour of either party;
d)fourthly, what is the appropriate matter in which to treat the proposed splitting of the husband’s superannuation benefits?
e)Another issue is whether the wife is entitled to spouse maintenance pursuant to section 72 of the Act
f)final issue is what is the appropriate parenting order to make in relation to [X]?
The evidence
In the wife’s case I have read each of the documents she has filed from the time these proceedings were commenced. As to the husband’s case, similarly, I have read each of the documents he has filed since these proceedings commenced. The mother gave sworn oral evidence before me at the hearing and, in response to my questions, gave me her current financial information.
The relevant law
Property
The court’s approach to determining property disputes is well-established. In Hickey & Hickey (2003) FLC 93-143 the Full Court of the Family Court described the approach in the following terms:
“The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of section 79. That approach involves four inter-related steps. Firstly, the court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the court should identify and assess the contributions of the parties within the meaning of sections 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the court should identify and assess the relevant matters referred to in sections 79(4)(d), (e), (f) and (g), (“the other factors”) including, because of section 79(4)(e), the matters referred to in section 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case”.
[2] C & C [2005] FamCA 429; (2005) 33 FamLR 414
At the end of 2002 the Family Law Act1975 was amended by the addition of Part VIIIB, which provides for a superannuation interest to be treated as property for the purposes of paragraph (ca) of the definition on matrimonial cause under section 4 of the Act[1]. Those amendments now enable the court to make orders with respect of superannuation interests. The Full Court’s decision in the matter of
C & C[2]suggested some practical implications for the treatment of superannuation interests. As a consequence of the decision the court has a discretion to treat the superannuation assets of the parties as part and parcel of the other property and in this case it is appropriate that I do that. There is no good reason on the material before me to consider the superannuation as a separate asset and that, in my view, is especially applicable where there are few other assets to be considered.
[1] see section 90MC of the Act
Parenting
I have regard to Part VII of the Act and the significant sections are, and to which I must have regard: section 60CA, which provides that in deciding to make a particular parenting order in relation to a child the court must consider, the main regard, the best interests of the child as the paramount consideration and must consider, in determining a child’s best interests the matters set out in section 60CC, broken down into two primary considerations. First, the benefit to the child of having a meaningful relationship with both of the child’s parents and, second, the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. There are a number of additional considerations in section 60CC(3) to which I must have regard insofar as they are relevant, and I must also have regard to section 60CC(4), and I must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent.
I must also have regard to section 60B which sets out the objects of Part VII and the principles underlying those objects. I must have regard to section 61DA, which provides for a presumption of equal shared parental responsibility when a parenting order is made, save that the presumption does not apply when there are reasonable grounds to believe there has been abuse of the child or family violence. The presumption may also be rebutted if there is evidence to satisfy the court that it would not be in the best interests of the child’s parents to have equal shared parental responsibility for the child, and this is such a case. The relevance of the presumption of shared parental responsibility where it does apply, or is found to apply, is that the court is then obliged to consider making an order, if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents.
It is unnecessary for me to consider that factor or, indeed, the alternate factor of substantial and significant time with each of the parents, given that the father is not in Australia and he has not taken part in the proceedings.
Subpoena
A number of subpoena were issued and a number of documents were subsequently exhibited as a consequence of those proceedings, and they are as follows.
a)Exhibit W1: correspondence from [O] in relation to the husband’s employment.
b)
Exhibit W2: documents in relation to the husband’s employment with [B], which reveal that the husband commenced employment with that company on 3 January 2006 and terminated on
6 October 2009 by way of resignation. That is consistent with the information in exhibit W4 to which I have referred, that the husband left Australia on 15 October 2009. It is noted that no retrenchment or long service leave was paid out and the husband is a member of the Australian Retirement Fund, to which contributions by his employer were paid.
c)Exhibit W3 were documents from [B] in relation to the husband’s payroll details.
d)Exhibit W4, to which I have referred, are documents produced in response to a subpoena to the Australian Government Department of Immigration and Citizenship evidencing the husband’s departure from Australia on 15 October 2009 from Kingsford Smith Airport in Sydney, via carrier or vessel Virgin Airlines or Virgin Atlantic, to the United States of America.
e)Exhibit W5 are documents produced in response to a subpoena to St George Bank in relation to a personal loan the husband had, and continues to have, with the St George Bank, evidencing a loan to the husband of $30,000 on 2 October 2007, which included an establishment fee, and subsequent repayments. The husband’s address is shown as Property O, New South Wales, with a change of that address to Property C, in about March of 2009. As at 5 September 2009 the balance outstanding was $23,093.46. A supplementary document indicates that payments ceased at about the beginning of September 2009 and that the outstanding balance as at 5 November 2009 had increased to $23,650.85.
f)Exhibit W6 are documents produced in response to a subpoena to Australian Super evidencing the husband’s superannuation benefits as at 25 November 2009 of $24,369.53, said to be an estimate of the husband’s then current benefit, but there could be outstanding deductions for contributions tax, insurance or administration fees.
g)
Exhibit W7 is a child support assessment made in favour of the wife, dated 19 December 2009, in respect of [X] and on the second page clearly refers to the amount payable by the father,
Mr Conti, to the mother for the period 1 January 2010 to
31 March 2011 in an amount of $594.58 per month.
h)Exhibit W8 is a letter of 21 January 2010 from Australian Super confirming that it has no objection to the making of orders sought by the wife in relation to a splitting order for the husband’s benefits with Australian Super.
Property
Sworn evidence given by the mother was to the effect that the Chrysler Neon motor car she had at separation was subsequently traded in by her in June of 2008 for $300 against the purchase of a 2004 Kia Rio motor car, which she currently has. The mother told me that insofar as her superannuation benefits with First State Super, as disclosed in her financial statement, which has flowed from her employment with [omitted], that approximately 50 per cent arose from pre-separation contributions and about 50 per cent from post‑separation contributions. Contributions by the husband to his super fund are greater post-separation than those pre-separation, as can be determined from the contributions shown in exhibit W6, but it is not possible for me to determine how that has affected the present value of the superannuation, if at all.
The wife, in her financial statement, had included in part J superannuation, an interest which she described as “American Social Security Administration, $US4939,” but on closer examination of a document which the wife produced it seemed to me that the wife was mistaken as to it being a superannuation interest and I find on the evidence before me that it is not a superannuation interest but, rather, an amount of money which the wife contributed whilst she was working in the United States by way of Social Security Administration, more like an impost as opposed to contribution to a fund from which one would eventually receive a benefit.
Insofar as debts are concerned, the wife has a current debt to Mr P of $20,000, which was accrued entirely post‑separation, and there is an affidavit filed by Mr P. The wife also has a debt of $9000 for various purposes, all of which, she told me during her evidence, were incurred during the marriage. One was for her stepdaughter to visit Australia from the United States, an amount was for the loan of a car and another amount was a loan for surgery, and together totalling $9000, which amount remains outstanding. The husband’s established, or proven, debt is the debt to St George Bank in the amount of $23,650.95 to which I have referred.
The husband, in his financial statement sworn 11 March 2009, refers to liability to the St George Bank of a little more than that amount, an amount of $7419 owed to Vertigo Mastercard, an amount of $8859.69 to a [U] personal loan, which the wife gave evidence to me was acquired post-separation and Rafton Family Lawyers bill, $5518.50.
The husband failed to appear at the hearing and has filed no further documents. I do not know the status of any of those debts and I do not propose to take any of those into account, with the exception of the St George Bank in the amount to which I have referred. The reason I do not bring those into account is that the father adduces no independent corroborative evidence to support those liabilities and it is feasible that the husband discharged those liabilities prior to leaving Australia.
Summary of property
Given the evidence before me, the following assets are those available at the time of the hearing, listed below:
a)the wife’s ANZ bank account at [S] - $3;
b)the wife’s 2004 Kia Rio motor car - $5600;
c)furniture and furnishings wife - $2000;
d)furniture and furnishings husband - $2000;
e)husband’s 1997 Honda CBR motor bike - $4000;
f)husband’s 1994 Honda motor bike - $1000;
g)husband’s plastic and metal model cars, planes, tanks and motorcycles - $5000;
h)husband’s shares in Metalcorp (53 disclosed in financial statement) - value not established. Out of that: trade-in value by wife of Chrysler Neon motor car - $300;
i)wife’s superannuation benefits with First State Super - $7530;
j)husband’s superannuation benefits with Australian Super - $424,369.53.
Total Assets: $51,802.53.
Liabilities
Mr P - personal loan to wife - $20,000; wife’s miscellaneous personal loans - $9000; husband’s loan from St George Bank - $23,650.85.
Total Liabilities: $52,650.85.
It seems to me that I should disregard the value of the wife’s present Kia motor car and her post-separation liabilities to Mr P, for the reason that such asset and liability has come into existence and were incurred post-separation and, on the evidence before me, did not flow from property brought into being as a consequence of the relationship and the liability did not arise from liabilities in existence at separation.
Relevant Assets
Consequently, I find the relevant assets, for the purposes of considering division of property, or alteration of property interest, $46,202.58 and the relevant liabilities to be $32,650.85. This results in net property of $13,551.73.
The child, [X], told his mother, and of which the mother gave oral evidence at the hearing:
“Dad sold everything so that he didn’t have to pay you”.
Doing the best I can, the husband has had the benefit of the two motor cycles, the Metalcorp shares, the plastic and metal model cars, planes and tanks and furniture and furnishings.
Husband’s financial resource
The husband disclosed in his financial statement filed 11 March 2009 his [U] income of $529.38, which is described, in annexure C to his affidavit sworn 25 July 2008 and filed 30 July 2008, as [U] retirement pay. There is no evidence before me as to the period for which such retirement pay is paid and the husband does not adduce any evidence as to the period for which it will be paid but it is clear on the evidence before me that it continues to be paid to the husband. It is likely that since the husband has retired from the [U] it is more in the form of a retainer and, indeed, the husband describes as “[U] retainer pay” in his financial statement to which I have referred.
The issue arose as to how such [U] retainer, or pension - if it is a pension - should be treated. It seems that the husband joined the [U] in about 1980 and retired in about 2001, when he came to Australia. In the document annexed to his affidavit sworn 20 October 2008 the husband discloses that he retired from [U] on 31 January 2001. And whilst the documents annexed to the husband’s affidavit refer to retirement pay, it seems akin to a pension flowing from a period of employment which qualifies the husband for such retirement pay benefits.
On the evidence before me, I find that Part VIIIB in relation to superannuation benefits is not applicable to such benefits which the husband receives, as it is not an “eligible superannuation plan” as defined in section 90MD of the Act. Consequently, I find on the evidence that the husband does not have a superannuation interest by virtue of the retirement pay he receives from the [U].
The question of how the husband’s retirement pay or benefits should be considered seems to me to involve a consideration of how an overseas pension or retainer arising from previous employment should be considered. Baumann FM in Maciel & Maciel[3] concluded that the husband’s [U] pension and US Social Security benefits in that case were financial resources to be considered under section 75(2) of the Act. His Honour concluded that the pension was not an eligible superannuation plan. His Honour found that that approach was consistent with the Full Court decision in SHL & EHL[4], where the Full Court approved the trial judge’s treatment of the wife’s interest in two French superannuation funds as a “financial resource.”
[3] [2007] FMCAfam 262
[4] [2006] FamCA 1287
Later, in Allen & Allen[5], Baumann FM again found that the appropriate manner in dealing with pension entitlement, in that case of a husband from a British employer, was as a financial resource and, therefore, under section 75(2) and not as a superannuation interest. It seems to me, therefore, that I am bound to treat the husband’s [U] retainer or pension benefits in the same fashion.
[5] [2008] FMCAfam 18
Contributions
There is very little evidence before me, from either party, as to the contributions made by each of them during the course of their relationship. In response to my questions, the wife told me there is no property, of which she is aware, in the United States and when they left to move to Australia there were no significant assets that were available to them. Equally, the wife told me during her oral evidence that the parties did not acquire any significant assets in Australia and lived in rented premises in Penrith or Richmond for the whole of the time after they had returned to Australia until separation.
The husband worked and made a financial contribution to the household, both in America and in Australia. The wife had some part-time employment in America and part-time employment on return to Australia and the wife was otherwise involved in playing the role of parent and made a significant contribution in that capacity, and as a homemaker, during the course of the relationship, both in America and in Australia.
Post-separation the wife made a significant contribution as a parent until such time as [X] moved to Sydney to live with his father at the end of December 2008. Upon [X] returning to live with his mother in October of 2009, the mother is now making a very significant contribution as a parent with no assistance from the husband. Doing the best I can on the evidence before me, which is somewhat sparse, it seems to me that when I come to weigh the pre-separation and post-separation contributions which I have described, contributions which each of the parties has made to the assets, to the time of hearing, is equal: that is, 50 per cent.
The section 75(2) factors
The wife is 41 years of age and enjoys reasonable health. The husband is 47 years of age, I do not know his present state of health.
During the course of her evidence the wife updated her financial circumstances by reference to her financial statement filed on 14 September 2009. The wife no longer receives income as an [occupation omitted]. That work finished at the end of last year and there is no current demand. She has looked for similar work but is unable to find any and to work for Medical Health or other New South Wales bodies she requires accreditation, which she currently does not have. There may be work available to her in the second semester this year.
Any employment the wife currently has is as an administrative assistant one day per week employed by [omitted], where she works on Monday, for which she is paid $100 per week. She otherwise relies upon Centrelink benefits in the form of Newstart and Tax Benefit A and B. Her Newstart benefit is $214 a week and a combined Tax Benefit A and B is $126.50 per week. Consequently, her household income from all sources is $446.50.
She pays rent of $210 a week and, whilst readily conceding that there were some areas in calculation of expenses in her financial statement, thinking that these related more to monthly expenditure, it is clear that, whiles she is no longer paying income tax or a loan in respect to RentSmart for a laptop or $50 a week to Mr P, she has a continuing liability for the other fixed overheads to which she refers and personal weekly expenditure for herself and [X] of a recurring nature and in the order of not less than $200 per week.
The wife has no financial resources and she has a modest amount of superannuation, to which I have referred. I am satisfied that the wife has the mental capacity and the physical capacity for appropriate gainful employment.
As to the husband, there is no evidence before me as to his income, other than his [U] retainer pay or pension. There is no evidence before me as to the husband’s property or financial resources or his physical or mental capacity for appropriate gainful employment but taking into account that the husband was in regular employment in Australia, which continued until he gave notice just prior to leaving the country.
The wife has the care and control of [X], who is now 15 and a half years of age. That responsibility will continue until he is 18.
The wife has commitments to support herself and [X].
The wife is not responsible for supporting any other person.
The wife is eligible for, and receives, Social Security benefits in the form of Newstart and Tax Benefit A and B
Subsection (g) has no relevance to these proceedings, bearing in mind the very small amount of property that is available for division between the parties.
The wife is seeking spouse maintenance, to which I will refer later. I am not satisfied that if such maintenance were paid it would increase the wife’s earning capacity. As it is, the wife is existing at a subsistence level from day to day with barely enough money to support herself and [X].
The order I propose to make - just on the effect of the wife’s liability to her creditors - and insofar as the husband is concerned, it is his liability to St George Bank. I do not know what arrangements he has made, if any, to pay such amount but it seems likely that the debt continues to exist.
The order I propose to make in relation to the husband’s superannuation would not affect, on the evidence before me, the right of St George to proceed against the husband in his private capacity, as his superannuation benefits would not ordinarily be attachable for such a debt, but most significantly, there is no evidence before me that the
St George Bank has commenced any proceedings against the husband.
The wife has contributed to the husband’s income earning capacity, property and financial resources.
The marriage continued for some 13 and a half years or thereabouts.
The mother continues to be effectively the sole parent to [X].
The mother is not cohabiting with any other person, on the evidence before me, and the husband has re-partnered and perhaps remarried but nothing is known of his partner’s present financial circumstances.
I propose to make a splitting order, as sought by the wife, in relation to the husband’s superannuation benefits.
The wife has obtained an assessment for child support in her favour but the husband is not paying any child support.
There is none.
There is no evidence of any financial agreement before me.
Conclusion as to property
This is not a case where, in my view, it is appropriate to assess the section 75(2) factors in percentage terms alone. Rather, it is the real impact in money terms which, it seems to me, governs the appropriate division of property between these parties and which, in my view, is ultimately the critical issue[6]. In my view, a very significant adjustment is called for in this case, both because of the paucity of assets and because of the very significant imbalance in future child care responsibilities which the wife has, with little or no prospect of receiving any financial assistance from the husband.
[6] . In the Marriage of Clauson (1995) 18 FamLR 693
Further, I find on the evidence that the prospect of the wife obtaining significant employment is remote and, in making such finding, I take into account not only her age but also her skills. Insofar as her care of [X] is concerned, it is not just the day to day care of him but it is the fact that she will be required to bear all the costs for him. And whilst his mother told me in evidence that he has recently obtained some part-time employment [in the hospitality industry], that is not a significant factor insofar as financial needs are concerned.
The husband has chosen to put no current evidence before the court as to his circumstances and I find therefore that the only appropriate solution is for the wife to receive the whole of the husband’s superannuation benefits. In my view, that is the only just and equitable outcome. It is not appropriate for the wife to pay any part of the husband’s St George Loan liability. That remains the husband’s responsibility which he can repay from overseas.
Parenting
As to section 60CC, there is a considerable benefit to [X] in continuing to have a meaningful relationship with his mother and the mother gave sworn evidence that [X] has had no contact with his father since
15 October 2009 and has not been able to make any contact with his father by telephone and otherwise and does not have a current telephone number for him and does not know where he is living. [X] told his mother recently, she told me in evidence:
“I don’t care what he is doing. Let him get on with his life”.
The mother gave evidence that [X] is now in Year 10 at [P] School, the same school which he previously attended before moving to live with his father at the end of 2008. He is apparently doing quite well at school and has met up with some of his old friends and has not found it necessary to speak to the school counsellor.
During the hearing I expressed some concern that [X] may be suffering some grief at the loss of the relationship with his father and the circumstances under which it suddenly came to an end and that it would be appropriate to consult with a grief counsellor, for example Interrelate, if the mother thought that was necessary. [X] has told his mother that he did not wish to talk to anyone. [X] has been able to maintain contact with his half-sister, the father’s daughter by a previous relationship, Ms C, who is now married and living in Kentucky. They correspond by email every couple of months or so.
[X] has dual nationality, that is, American and Australian, and has an expired passport for each country. The mother described [X] as having a really good relationship with members of her family and that the mobile telephone in the mother’s household has not changed, should the father wish to make contact with [X] at any time.
Whilst there would be a considerable benefit for [X] to maintain a relationship with his father, the father appears to have, nevertheless, abandoned him.
Subsection (b) of section 60CC(2) has no application.
As to section 60CC(3), whilst there is no evidence before me of [X]’s expressed view, he has little choice but to live with his mother and there is no direct evidence before me of his expressed views. As to the remaining matters under section 60CC(3), I am satisfied that [X] has a good and loving relationship with his mother and that the mother would like [X] to have a relationship with his father but is precluded from putting that into place, for the reason the father has failed to disclose his whereabouts.
There has been a significant change in [X]’s circumstances since he returned to live with his mother, consequent upon his father leaving Australia, but he seems to have adapted to that change, on the limited evidence before me.
There is a considerable practical difficulty and expense if [X] were to spend any time with his father but there is no immediate proposal by the father for that to occur.
I am satisfied the mother has the capacity to provide for [X]’s emotional and intellectual needs, as well as his day to day physical needs. I am not able to make the same finding in respect of the father, who has clearly abandoned [X] upon his leaving Australia to return to the United States.
The mother has displayed an entirely appropriate attitude to the responsibilities of parenthood. The same cannot be said of the father, who appears to have abrogated his responsibility as a parent, especially given the fact that [X] went to live with him as a consequence of [X]’s expressed wish to live with his father.
It seems to me that the mother should have sole parental responsibility for all matters concerning [X]. It seems to me, further, that [X] should be able to communicate with his father as can be arranged, but I do not propose to make any orders in that respect. It remains for the father to make contact with [X] and disclose where he is living or at least a line of communication for [X] to resume communication with his father. For those reasons, I make the orders as to parenting referred to in the mother’s further and amended application filed 24 February 2010, subject to the following amendment.
Before doing so, I refer to the wife’s application for spouse maintenance. The right of a spouse to maintenance is set out in section 72(1) of the Act, the effect of which is that the liability of the respondent to pay maintenance depends upon two basic matters:
a)the need of the applicant for maintenance; and
b)the ability of the respondent to pay maintenance.
There is no doubt that the wife can establish a need for spouse maintenance, both by reason of having the care and control of the one child of the relationship who is not yet 18 years of age and by virtue of the matters to which I have referred in section 75(2) of the Act. The difficulty in this case is that there is no evidence before me as to the husband’s present financial circumstances or his ability to pay maintenance. The only evidence before me is of his [U] retainer or pension which, on any interpretation, is not a significant amount of money. In all the circumstances, there is insufficient evidence before me to make any finding that the husband has the ability to pay the amount of maintenance sought by the wife which, in effect, is the whole of his [U] retainer. Consequently, the wife’s application for spouse maintenance is dismissed.
I make the following Orders.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Coakes FM
Associate: Angela Scott
Date: 12 April 2010
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