Cryall and Peterman

FAMILY COURT OF AUSTRALIA

CRYALL & PETERMAN

[2010] FamCA 831

FAMILY LAW – PROPERTY – Settlement in relation to marriage – significantly higher earning capacity of husband – significant post-separation contributions by husband, who has the ongoing care of the three children of the marriage – wife unable to adequately maintain herself by reason of lack of training – retraining of the wife required to gain financial independence – husband to provide maintenance for a limited period whilst the wife undertakes such retraining

Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth)

APPLICANT:

Ms Cryall

RESPONDENT:

Mr Peterman

FILE NUMBER:

SYC

5885

2007

DATE DELIVERED:

17 September 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

2-3 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Shaw

COUNSEL FOR THE RESPONDENT:

Mr North, SC

NOTATIONS

The Court notes the following definitions:

Assets

A.“CC Corp” means CC Corp Pty Limited ACN … of which there are 20 ordinary shares, 10 of which are beneficially held by the husband and 10 of which are beneficially held by the wife and of which the husband and the wife are both directors and the wife is the secretary and which is the Trustee of the M Unit Trust and the Peterman Family Superannuation Fund.
B.“D Nominees Pty Limited” means the husband’s investment in AA Pty Limited ACN … held via D Nominees Pty Limited ACN ….
C.“husband’s bank accounts” means any accounts in the husband’s name with any bank, credit union, building society or financial institution.
D.“husband’s car” means the 2006 Alfa 159 motor vehicle registration number … registered in the husband’s sole name.
E.“husband’s interest in GG Firm” means the husband’s interest arising from his being a partner in the professional firm known as GG Firm and its associated entities.
F.“husband’s personal effects” means all personal effects in the husband’s possession and/or control including but not limited to watches.
G.“husband’s Peterman Superannuation” means the husband’s member entitlement in the Peterman Family Superannuation Fund and any other fund or policy.
H.“husband’s shares” means any shares the husband has in any publicly listed company.

“IAG shares” means the 224 shares in IAG Limited owned jointly by the parties.

J.“joint bank accounts” means any accounts with any bank, credit union, building society or financial institution in the joint names of the parties.
K.“Peterman Family Superannuation Fund” means the Peterman Family Superannuation Fund established by Deed dated … February 2002 with CC Corp as the Trustee.
L.“T Stret property” means the property situate at and known as T Street in the State of New South Wales, being the whole of the land comprised in Folio Identifier … together with the improvements, fixtures and fittings erected thereon or attached thereto and registered in the sole name of the wife.
M.“N Street property” means the property situate at and known as N Street in the State of New South Wales, being the whole of the land comprised in Folio Identifier … and … together with the improvements, fixtures and fittings erected thereon or attached thereto and registered in the sole name of the husband.
N.“T Street contents” means the furniture, furnishings and effects contained at the T Street property including the items specified in Schedule “A” hereto.
O.“N Street contents” means the furniture, furnishings and effects contained at the N Street property.
P.“wife’s bank accounts” means any accounts in the wife’s name with any bank, credit union, building society or financial institution.
Q.“wife’s car” means the 2006 Honda Odyssey motor vehicle registration number … registered in the husband’s sole name.
R.“wife’s personal effects” means all personal effects in the wife’s possession and/or control including but not limited to jewellery.
S.“wife’s Peterman Superannuation” means the wife’s member entitlement in the Peterman Family Superannuation Fund and any other fund or policy.
T.“wife’s shares” means any shares the wife has in any publicly listed company including Telstra FPO shares.
U.“M Unit Trust” means the unit trust fund known as the M Unit Trust established by Deed dated June 2005 with CC Corp as the Trustee.

Liabilities

A.“husband’s car loan” means the hire purchase loan between the husband and LL Financial Services as Trustee for the LL Unit Trust advanced to the husband in respect of the husband’s car.
B.“husband’s credit card liabilities” means any liabilities that the husband has for any credit cards including Mastercard and Visa card and charge cards.
C.“husband’s GG Firm liability” means the husband’s liability from time to time arising as a consequence of his being a partner in the professional firm GG Firm and its associated entities including the funds advanced by the National Australia Bank Limited to the husband in order for the husband to finance his capital account with GG Firm.
D.“husband’s taxation liabilities” means all current and future tax liabilities as assessed as payable by the husband.
E.“NAB Flexi account” means the NAB Flexi account LOC issued to the husband, account number …687.
F.“T Street mortgage A” means the mortgage advanced by the National Australia Bank Limited to the husband and wife and which is secured on the T Street property, mortgage reference number …049 and is contained in account number …877.
G.“T Street Mortgage B” means the mortgage advanced by the National Australia Bank Limited to the husband and wife and which is secured on the T Street property and is contained in account number …079.
H.“N Street mortgage” means the mortgage advanced by the National Australia Bank Limited to the husband and which is secured on the N Street property.

“wife’s car loan” means the hire purchase loan between the husband and LL Financial Services as Trustee for the LL Unit Trust advanced to the husband in respect of the wife’s car.

J.“wife’s credit card liabilities” means any liabilities that the wife has for any credit cards including Mastercard and Visa card and charge cards.
K.“wife’s legal fees” means the legal fees paid and unpaid to the wife’s solicitors Meyer Pigdon and Hal Ginges & Co. in connection with these proceedings.
L.“wife’s taxation liabilities” means all tax liabilities as assessed as payable by the wife as and from 1 July 2007 and onwards.

Orders

The interim spouse maintenance Orders made by this Honourable Court on

19 March 2008 are discharged from the date to which they stand paid.
Within 28 days of the making of these Orders:
(a)the wife do all acts and things and sign all documents necessary so as to transfer her right, title and interest in the T Street property to the husband, subject to all encumbrances
(b)the wife shall provide vacant possession of the T Street property taking with her the items on Schedule “A”
(c)the husband shall upon compliance with Order 5 herein and upon transfer of the T Street property to the husband pay or cause to be paid to the wife or as she may direct the sum of $919,296.
(d)
in the event that the husband does not tender the sum referred to in Order 2(c) hereof within the time hereby limited or such further period as may be agreed by the parties or allowed by the Court the wife is to do all acts and things and sign all documents necessary to effect a sale of the T Street property, such sale to be effected in the first instance by private treaty at a listing price of not less than $2,700,000 and that for the purpose of the sale, the wife appoint as exclusive selling agent,

L Estate Agents and that upon completion of the sale of the T Street property the proceeds be applied in payment:
(i)to the National Australia Bank of the amounts presently secured by way of mortgage on the T Street property and other fees of and incidental to procuring the discharge of the loans on the mortgage secured on the T Street property
(ii)of agent’s commission which will be charged at a rate of not more than half a percent (0.5%) of the sale price (excluding GST)
(iii)of conveyancing costs and disbursements of and incidental to the sale and
(iv)of the sum of $919,296 to the wife and
(v)of the balance (if any) to the husband.
(e)the husband and wife do all acts and things and sign all documents necessary to procure from the National Australia Bank a release in favour of the wife from all liabilities in respect to the T Street mortgage A and the T Street mortgage B and to enable the husband to re-draw under T Street mortgage B to pay the sum in Order 2(c)
(f)the husband and wife do all acts and things and sign all documents necessary to close all joint bank accounts and transfer the balance of such accounts to such accounts as the husband directs and if there is a negative balance in any such account the parties equally pay to the bank one-half of such shortfall
(g)the husband and wife do all acts and things and sign all documents necessary to transfer the wife’s car to the wife and the wife is to indemnify the husband in relation to the wife’s car loan
(h)the husband and wife do all acts and things and sign all documents necessary so as to transfer to the wife the IAG shares
(i)
the husband and the wife do all acts and things and sign all documents necessary so as to transfer to the husband the wife’s units in the

M Unit Trust
(j)
on or before 28 days from the date of these orders the parties are to do all things and sign all documents necessary to roll over the wife’s Peterman Superannuation fund as at the date of these orders to such complying superannuation fund as the wife nominates within

14 days of the date of these orders.

Upon compliance by the parties with their respective obligations under Order 2 the wife shall do all acts and things and sign all documents necessary to:
(a)resign all directorships, all positions and all offices in CC Corp but shall first if called upon to do so, vote at any meetings of members and directors thereof in favour of such resolutions as the husband may direct
(b)execute in favour of the husband a transfer of the whole of her right, title and interest in her shares in CC Corp
(c)assign all her right title and interest in any loan account with CC Corp to the husband.
Except as any of Orders 3(a) to 3(c) inclusive provide to the contrary, the husband shall indemnify and keep indemnified the wife against any liabilities of any nature which the wife may have at any time arising in any way in respect of CC Corp, whether from her position in the company, her receipt of any money from the company or any liability of the company or otherwise.
The wife shall be permitted to remain in occupation of the T Street property until the earlier of 28 days from the date of this Order or the date of transfer of the title of that property to the husband or in the event that it is sold the date of settlement of the sale provided that:
(a)she shall terminate with immediate effect any license to reside at the premises she has provided to any person including but not limited to any international students on home stays
(b)she shall keep the premises in a reasonable state of repair and in reasonable decorative order at her expense
(c)she shall reasonably maintain the T Street contents and
(d)the husband shall be permitted to inspect the premises and contents on a date and at a reasonable time to be notified to the wife in writing at not less than 24 hours’ notice prior to making the lump sum payment referred to in Order 2 and if the T Street property is not in a reasonable state of repair and/or is not in reasonable decorative order, or if any of the T Street contents to be retained by the husband are absent or are not in a reasonable condition then:
(i)the husband shall pay such reasonable sum as is agreed to be adequate to rectify the defect or defects noted on his inspection into a controlled monies account with Barkus Doolan Kelly Family Lawyers from the cash provision to the wife to be made pursuant to Order 2
(ii)if the husband and wife cannot agree on an appropriate allowance to reflect the alleged defects to be made good within 7 days of the husband’s inspection then the parties shall instruct Mr JA to assess the allowance properly payable to the husband in relation to the T Street contents, and/or K valuers in relation to the T Street property, such costs to be paid equally by the parties
(iii)forthwith upon the allowance being agreed or assessed, the husband shall instruct his solicitors to divide the funds in the controlled monies account as to himself, the allowance, to the expert or experts instructed pursuant to this clause, their fees, and to the wife, the balance, provided the wife has otherwise complied with her obligations pursuant to Order 2.
The husband indemnify and keep the wife indemnified against all actions, claims and demands as may be made against her in relation to:
(a)the T Street mortgage A
(b)the T Street mortgage B
(c)the N Street mortgage
(d)NAB Flexi account
(e)the husband’s car loan
(f)the husband’s credit card liabilities
(g)the husband’s GG Firm liability
(h)the husband’s taxation liabilities
(i)all other liabilities in the husband’s name or for which he is responsible, excluding any liability incurred by the wife in the husband’s name without his express written authority.
The wife indemnify and keep the husband indemnified against all actions, claims and demands as may be made against him in relation to:
(a)the wife’s credit card liabilities
(b)the wife’s taxation liabilities
(c)the wife’s legal fees
(d)the wife’s car loan
(e)all other liabilities in the wife’s name or for which she is responsible, excluding any liability incurred by the husband in the wife’s name without her express written authority.
Except as is specifically provided for by these Orders to the contrary, the husband is the sole owner of and the wife has no interest in:
(a)the T Street contents except those items on Schedule “A”
(b)the N Street property
(c)the husband’s bank accounts
(d)the husband’s interest in D Nominees Pty Ltd
(e)the N Street contents
(f)the husband’s car
(g)the husband’s shares
(h)the husband’s personal effects
(i)the husband’s interest in GG Firm
(j)all other assets of whatsoever nature in the husband’s title possession and/or control.
Except as is specifically provided for by these Orders to the contrary, the wife is the sole owner of and the husband has no interest in:
(a)the items on Schedule “A”
(b)the wife’s bank accounts
(c)the wife’s shares
(d)all other assets of whatsoever nature and kind in the wife’s possession and/or control.
Each party shall do all acts and things and sign all documents necessary in compliance with these Orders and to put them into effect.
The husband will pay to the wife weekly and every week the sum of $1,000 by way of maintenance and support for the wife the first of such payments to be made one week from the earlier of 28 days from the date of this Order or the transfer of the Title to the T Street property to the husband and thereafter weekly until the expiration of a period of 104 weeks from the date of the making of these orders.
It is the intention of the Court that the making of these orders should so far as is possible end financial arrangements between the parties and avoid further proceedings of this nature between them.
In the event that either party refuses or neglects to sign any documents, instruments or writings so as to give effect to these Orders within a period of fourteen (14) days from the date of being served with a copy of these Orders and any such document, instrument or writing the Registrar of this Honourable Court may pursuant to Section 106A of the Family Law Act 1975 (Cth) do all acts and things necessary to give validity and operation to the said document, instrument or writing so as to effect compliance with the Orders and the costs of obtaining due execution shall be borne by the party in default.

SCHEDULE “A”

Wife’s clothing and personal effects
Lounge suite of the wife’s choice located at the T Street property
Dining table and chairs located at the T Street property
Main bedroom suite located at the T Street property
The barbeque located at the T Street property
One plasma screen television located at the T Street property
The refrigerator located at the T Street property
The computer and monitor used in the kitchen of the T Street property
2 tallboys located at the T Street property
1 set of outdoor table and chairs
Table tennis table

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5885 of 2007

MS CRYALL

Applicant

And

MR PETERMAN

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings before the Court are proceedings for the alteration of the parties’ interests in property and for an order sought by the wife for spousal maintenance.
The proceedings come at a time following long, expensive and fraught litigation between the parties as to the parenting arrangements for their children.
Those parenting issues were adjudicated by a decision of Justice Stevenson and her Honour’s judgment was delivered on 29 July 2009.
Whilst the issues between the parties at the outset of this Application were many, following discussion between counsel they reduced in number. To the credit of counsel in this matter, this was a demonstration of their skill in attuning their minds to diminishing the conflict.
The parties, notwithstanding their prior dispute, agreed on a balance sheet of assets and liabilities and financial resources for the purpose of these proceedings.
The parties agreed that, as a result of that agreement, it was not sought that the Court take the parties’ paid legal costs into account. It was conceded that the Court would have regard to the fact that each of the parties would be left with debts as to their legal costs.
It was agreed between the parties that if the proceedings had been determined at the date of the parties’ separation an equal division of the assets would be hard to gainsay.
The issues which remained were:
a)What was a division of assets which reflected, in an appropriate way, the post separation contribution of the husband, the maintenance and support of the children and his contribution to their welfare? The wife suggested a division in the order of 57.5% to the husband and 42.5% to the wife, and after a consideration of factors under section 75(2) of the Family Law Act 1975 (Cth) (“the Act”) proposed a division of 42.5% to the husband and 57.5% to the wife. The husband suggested a division in the order of 62.5% to the husband and 37.5% to the wife.
b)The issue then was by what amount, if any, should the division based on contribution be varied to reflect those matters required by the Court to be taken into account in a consideration of the various issues under the provisions of section 75(2) of the Act.
c)The husband argued that balancing the factors which favoured the wife - namely his significantly higher earning capacity as a partner in a large professional firm – these were offset by other factors. At the time the husband was earning an annual income in excess of $1,000,000 which he said was not necessarily certain for the rest of his working life, and it was his evidence that his earning capacity is likely to diminish due to a sacrifice in unit entitlement required in 2008 and a projected decrease in unit value in the 2010/11 financial year.
d)The husband’s income for the year ended 30 June 2010 was $1,417,539 and which excludes a final $100,000 instalment on the husband’s sign-on-fee and a bonus of $400,000. In the previous year the husband’s income was $1,339,863 and which excludes the $100,000 instalment on the sign-on-fee paid in that year. It is the husband’s evidence that his projected income for the year ended 30 June 2011 is dependent on the firm’s performance against budget. The husband believes his income is likely to be between $1,003,174 and $1,290,389, for reasons which he set out in his affidavit filed 28 July 2010. The husband’s evidence was further that in relation to the financial year ending 30 June 2010 he received a number of special drawings that increased his monthly income, but that these sums were largely expended to pay the husband’s liabilities, including to his solicitors and accountants.
e)The bonus of $400,000 as referred to above was received by the husband on 20 July 2010 for the year ending 30 June 2010. Upon receipt of those funds the husband deposes to having paid taxation on this amount and other amounts referable to the quarter of $315,361 and paid amounts in respect of his legal fees.

f)Having said that, the husband through his counsel conceded that his earning capacity would always exceed that of the wife by a significant margin and that even if his present earnings were to be some 20% less, it would be an amount which was unlikely to ever be earned by the wife.
g)The wife has undertaken a Certificate IV course in Community Service, which she is due to complete in November 2010, after which time she says she wishes to commence a one year Diploma in Community Service, and hopes to then obtain employment in Community Services. The wife said she was then likely to earn a gross annual income in the order of $40,000 to $50,000.
h)The husband asserted the wife’s earning capacity to be $65,000 to $75,000 per year after some shorter retraining, were she to choose an occupation as a personal assistant, which occupation, although in accord with some prior and out-of-date experience, she did not want to undertake.
i)The husband asserted that whatever consideration might be given to the disparate nature of the parties’ income earning capacity and the like, he said that they were more than offset by his ongoing obligation to support his children and the likelihood that he would do so alone, given the costs involved in supporting these children and the relative means of the parties and the matters which had given rise to the present situation where the wife has spent little time with the children.
j)It certainly seemed clear on the evidence that the husband had borne the heat and burden of the day in relation to the support of the children since the parties’ separation, both as to their non-financial needs and their financial needs and that given his expectations for the level at which his children should be maintained in the future and the comparative wealth of the parties, he would continue to bear most of the ongoing financial burden.
k)The wife, who had been the subject of a number of findings as to her state of health and those afflictions of both illness and possible personality disorder, claimed that with therapy she was now optimistic of having a greater role in the children’s lives.
l)
Certainly I would hope that in due course she can play a positive and active role in her children’s lives (a hope also shared with some pessimism by the husband). Nevertheless, the husband argued that, in his view, on the evidence before Justice Stevenson and the findings made by her Honour in the parenting proceedings it was entirely appropriate to maintain as he did pessimism as to the realisation of that hope. Until and unless that pessimism was dispelled he would bear the main burden of the provision of financial, emotional and other

non-financial support of his children for the rest of their dependent lives, and with little or no contribution from the wife.
m)The Court is asked by the wife to make orders for her support in her current situation until such time as she completes the significant part of her training for re-employment. She says that should be for a period of up to two years.
n)The husband has opposed the making of any such orders, and adopts a view that the wife is presently employable and has not demonstrated that she is unable to adequately support herself. Her choice of occupation is, in effect, he says a luxury she cannot afford and which would be at his cost.
o)He further alleges that it is proper for the Court to take into account (and I agree) the result of the proceedings for property settlement and the impact that has on the wife’s financial position. The husband says that to the extent there is a need to provide for the wife’s support whilst she is retraining, that need can be met from her available funds.
p)Giving effect to that view may deny the wife an ability to procure alternate housing in the area in which she has been living and at a standard which is reasonable. She has said, and I accept, that her primary desire is to continue to live in the area where her children reside. It is her evidence that it is her continuing hope that she will be able to be reunited with her children. I do not find, given that the husband has, on his proposals, ownership of not one but two properties, that it is an unreasonable expectation of the wife and a reasonable meeting of her needs, that she has secure accommodation which she owns and in which in due course, if the husband’s hope is fulfilled, she might have her children stay with her.
q)In determining what is available to the wife (although the parties have not included in their balance sheet their legal costs, by agreement) I am aware by reason of the intervention of the solicitors formerly acting for the wife and the orders that I have made by consent in relation to their claim for costs that the wife has more probably than not a significant liability to them given the amount claimed by them of $181,017.99. Even if the amount is reviewed and moderated on assessment (if that is permitted) substantial costs will remain owing.
r)I acknowledge that the husband will have significant costs in relation to the proceedings and that each of the parties, at least in the first instance, will have to bear the costs of representation before me.

s)In addressing the question of whether an order should then be made for the wife’s maintenance, the husband asserts that although his income is by many standards high, it also bears a significant burden in costs and expenses particularly in relation to the care and welfare of the children. Having said that, it seems that the husband can clearly procure some alleviation of the burden of his debts and improve his cash flow by selling the property in which he presently resides in the event that the Court accedes to his proposal that the former matrimonial home be transferred to him. The husband’s counsel agreed that this was so.

It is at issue firstly as to what then is a just and equitable result in alteration of the property interests for the parties given these matters in relation to the division of their property and secondly, how much, if anything, and for how long, if at all, the husband should maintain financial support for the wife.

Background Facts

Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
In 1959 the wife was born and is now aged 51 years. She is presently a student but is not otherwise in paid employment. She has in her working career worked as a secretary. She also provides lodgings under a home stay scheme for foreign students.
In 1964 the husband was born and is now aged 45 years. He is a partner in a major professional firm.
On 1 December 1990 the parties’ commenced cohabitation which continued until 8 June 2007, at which point cohabitation entered its seventeenth year.
In 1993 the parties were married.
In April 1995 the parties’ eldest child, D, was born and is currently aged 15 years.
In August 1998 the parties’ child, M, was born and she is currently aged 12 years.
In June 2001 the parties’ youngest child, T, was born and is presently aged 9 years.
On 8 June 2007 the parties separated and commenced jointly parenting the children.
On 20 August 2007 the wife commenced proceedings for interim and final parenting orders.
On 19 March 2008 interim spouse maintenance orders were made in favour of the wife.
On 29 July 2009 Justice Stevenson made final parenting orders providing for all three children to live with the husband and for the wife to have supervised time with them. It seems on the evidence there had been for a time very little face-to-face contact between the wife and the children, although there has been some telephone contact.

The Issues

Both parties having agreed that, on a consideration of contributions at the date of separation, a conclusion would reasonably be that the parties’ contributions would be equal. The issue which arose was whether, having regard to the varying roles and responsibilities of the parties since separation, there ought to be a recognition of what was agreed to be a greater contribution in that period of three years by the husband out of a total period since the commencement of cohabitation of twenty years and, if so, to what extent.
It was further in issue as to what, if any, allowance should be made in favour of the husband for his likely continuing role as the primary carer for the children, with all its concomitant costs in time and money. This was further considered given that, as the husband saw it, there would be little or no contribution to that task from the wife, given the findings of Justice Stevenson in the parenting proceedings and which findings were tendered in these proceedings. The wife in this regard said that she had been assisted with therapy from the time of the hearing and that she had hopes that she would be reunited with her children.
Having regard to the enormous disparity in the income and earning capacity of these parties, the question of what is an appropriate adjustment in favour of the wife has to be considered. It is at issue as to whether the wife’s aspiration that she be able to purchase a home within the general area in which she lived is a reasonable one in the circumstances. The husband’s capability to meet any order for settlement is also in issue.
There was an issue as to arrears of maintenance payments, pursuant to the order referred to above. Although paid by the husband for a time it seems that maintenance was not then fully paid. Arrears were said to be in the order of $20,000. On the wife’s evidence she received varying income in 2010 from her paying students who resided in the matrimonial home, said to be on average at the rate of $1,000 per week. This was not income she was receiving at the time that the orders were made and will not be income she will receive once she complies with the orders herein made and departs her present home. The husband had, just prior to the hearing and following his move back up the partnership points ladder, paid to the wife an amount of $500 per week in an acknowledgement of her needs and his increased capacity to pay.

In addition, the wife receives Austudy payments.
The husband asserted that he had difficulty meeting the maintenance payments following a reduction in his partnership points and having regard to his other outgoings. Those partnership points, which are a measure of a partner’s entitlement to profit within the firm, may increase or decrease, based on the partner’s performance. Since that time the husband’s income has increased as have his points and in addition he has received a substantial bonus as outlined earlier. In any event, both parties through their counsel agreed that whatever order, if any, I made otherwise for maintenance the prior order should be discharged from the date to which it stands paid.
On submission, the wife seeks maintenance limited to a period of two years, to assist in her support whilst she receives an education enabling her to undertake a career in community services.
The husband asserts that she ought to have started the study earlier and he should not be obliged to meet such payments.
The wife for her part says she has had enough of the law and lawyers for the time being. Given the history of this matter and its attendant costs, one can understand from her point of view that she would wish to distance herself from that profession. She seeks another employment more suited to her and her particular needs. In addition, she says that the fragility from which she suffered as a result of the breakdown of the marriage and the time that it took to recover from that did not permit of earlier retraining. The wife did, however, undertake a course prior to the present one that she was unable to complete because it required an element of practical training, involving employment which she was not able to undertake as she had been placed on a good behaviour bond in respect of her prosecution arising out of her behaviour following what was for her the obviously distressing breakdown of her marriage.
The form of an order was in dispute. The wife was proposing that there be a sale of the former matrimonial home and a distribution of the proceeds in accordance with her claim. The husband proposed a transfer of the former matrimonial home to himself in order to provide again that home for the benefit of his children. The parties had agreed on a value of the home. There was no other evidence as to its value.
It was put to the wife’s counsel that if the value had been agreed there appeared to me to be no reason why the home should not be transferred to the husband in effect as a purchaser without the attendant costs subject only to him paying an appropriate amount for the home and to that proposition the wife’s counsel did not demur. The transfer is sought for a legitimate reason. The wife does not have the capacity to acquire the husband’s interest in the home it seems since she seeks its sale. It is my intention therefore to order such a transfer on terms as hereinafter set out.

Property matters

The first step I must undertake is to identify the property of the parties or either of them available for division between them.
The Court at the commencement of the hearing was provided with the balance sheet set out hereunder. The parties agreed that it set out the relevant assets, liabilities and superannuation.

The Balance Sheet

I therefore find the assets and liabilities of the parties are as follows:

Assets	($)
T Street property (w)	2,700,000
N Street property (h)	1,150,000
NAB High Interest account (h)	811
NAB BP Drawings Account (h)	28,217
Joint housekeeping account balance (joint)	0
NAB Accounts …856 and …852 balances (w)	0
D Nominees shareholding AA Pty Limited (agreed value) (h)	100,000
Furniture and furnishings in the former matrimonial home (joint)	23,052
Furniture and furnishings in the unit at N Street (h)	9,785
Honda Odyssey (h)	21,600
Alfa Romeo 159 (h)	24,500
Telstra FPO Shares (w)	1,926
IAG FPO shares (joint)	786
Husband’s interest in GG Firm Capital Account ($315,000) and undrawn profit (Nil) (h)	315,000
Jewellery (w)	8,000
Jewellery (h)	250
Interest in the M Unit Trust value (CC Pty Ltd)	0
Total	$4,383,927

Liabilities	($)
NAB fixed mortgage (secured on T Street) (joint)	458,588
NAB variable mortgage (secured on T Street) (joint)	946,377
Flexi Mortgage (secured on T Street) (h)	31,333
NAB Mortgage N Street (h)	1,032,000
Hire Purchase Odyssey (h)	16,376
Hire purchase Alfa Romeo (h)	9,296
NAB GG Firm Capital Account borrowing (h)	315,000
Expected Tax instalment for quarter to 30 September 2010 (h)	40,000
Total	$2,848,970

Superannuation	($)
Peterman Family Superannuation Fund (h)	229,852
Peterman Family Superannuation Fund (w)	88,173
Total	$318,025

Nett Assets	$1,534,957
Nett Assets (including Superannuation)	$1,852,982

Section 79(4) contributions

Contributions to date of separation

It is agreed by the parties that as the date of separation the parties’ contributions should be valued as equal.

Contributions post separation

At the date of separation the husband was a partner in a large professional firm. The parties at that time resided at a residence at T Street of which the wife is the registered proprietor.
Prior to the parties’ separation and without the knowledge and consent of the wife, the husband purchased a property at N Street for a sum of $1,295,000 and stamp duty of $56,719 was paid on the purchase.
The husband’s evidence, which I accept, is that the purchase was funded by borrowings on which current repayments are being made in the order of $5,900 per month. It was to these premises that the husband went following separation in April 2007 and where he is presently living with the children. The husband’s evidence is that he purchased this property potentially as an investment if the marriage lasted and a place to live with the children if it did not. It is now his intention that he should live in the former matrimonial home and these premises could be dealt with by sale.
The husband particularises the expenditure with which he was then faced and which, subject to some economies, he generally met. His expenses included the children’s educational expenses which he deposes reached as at July 2010 an amount of $48,910 for that year to that date. In addition he met legal and accounting fees and the other costs of the children.
On 19 March 2008 an interim spouse maintenance order was made. It was met for some time and was significant. It provided that the husband pay to or on behalf of the wife the sum of $1,200 per week in addition to 23 other listed expenses including utilities, insurances and other outgoings and expenses in respect of the T Street property, medical insurance and other medical costs in addition to other expenses.
It is asserted by the husband that after the abovementioned spouse maintenance order was made his cash flow deteriorated and the position of the wife improved. The wife for her part said that there was no improvement in her financial position until some months into 2010 when she was able to procure income from home stay students as set out above. The wife procured a Newstart allowance of $493 per fortnight in addition to that income which was later changed into an Austudy allowance.
The husband’s income in March 2008 when the interim orders were made was to 30 June 2008 in excess of $130,000 per month, annualised at the sum of $1,560.000 per year. Since that time there had been an expenditure of $1,400.000 in legal fees which increased the mortgage indebtedness and consequent loan servicing costs. The husband’s evidence is that from January 2009 to December 2009 his monthly cash flow decreased to the sum of $105,000 per month annualised at $1,260,000 per year and later since January 2010 to an amount of $85,300 per month annualised at $1,023,600. The husband in the current financial year has received a bonus in the order of $400,000.
The husband sought a reduction in his maintenance obligations in September 2009 and later filed an application for a variation down of the order. From September to March 2010 the husband paid cash maintenance in the sum of $500 per week which was reduced to $300 per week in March 2010.
It was asserted by the husband that the wife had said that the maintenance arrears would not be pressed and that they would be dealt with as part of these proceedings. The parties have now agreed that that order will be discharged from the date to which it stands paid. The contributions nevertheless made by the husband since the parties’ separation are substantial The husband in his evidence puts those contributions exceeding $14,000 per month on account of mortgage payments, vehicle costs, rates, insurances, the payment of utilities and pool maintenance expenses. That amount is annualised at $168,000 in after tax income. The income of the husband has since increased as indicated above and his payments of maintenance have increased to the sum presently of $500 per week. The provision of these payments allowed the wife to continue residing in the home and procuring income in the order of $1,000 per week from her tenants. That income from the tenants was for accommodation alone, it might be noted, and did not include food.
The children D and M lived with the husband from September 2007 and by reason of orders made subsequently all children reside with the husband.
It is clear that since the date of separation the contributions of the husband have been greater than those of the wife. He has cared for the children and met their considerable expenses for private schooling and care. He has met mortgage payments on the former matrimonial home and other costs of the wife. It was conceded by the wife that for that contribution some allowance should be made. The assessment of that allowance is not a mathematical process but I have had regard to the costs which the husband has been subjected to in the period referred to and accept that an allowance is appropriate. I think that amount should be in the order of 3%.

Conclusion based on contribution

All in all I assess the contributions of the parties to the acquisition, conservation and improvement of the property of the parties to the marriage or either of them, including such property which is no longer the property of the parties to the marriage or either of them, to be at the date of the hearing in the proportion of 53% by the husband to 47% by the wife.

Section 75(2) considerations

There is no doubt that the husband’s income is vastly superior to that of the wife. The husband’s income disclosed in his most recent affidavits was annualised at $1,073,956. In addition, he received an amount of $400,000 or thereabouts by way of a bonus in the current year since filing his last Financial Statement. He was quick to point out that his income was performance based and that the firm of which he was a partner was a performance-based firm. Although there was a discussed retirement age in nine years time at the age of 55 years, one would reasonably assume that if the firm is indeed performance-based an insistence on lower remuneration at that time whether as a partner or otherwise would not necessarily be the case if the husband’s performance was as valuable to the firm as it presently is.
In any event even if the husband were to retire at that time his earning capacity on any scenario, should he choose to continue to work, will always exceed the wife’s capacity. Indeed, were he to earn but 20% of his present earnings without a bonus he would outstrip his wife’s earning capacity many times.
This is the earning capacity which was built up by the husband during the course of the marriage and a capacity to which the wife contributed in no small measure by reason of her role as homemaker and parent.
The husband claims his earning capacity, although high, is burdened by repayment of debt and other expenses. It is true that his expenses are high but they can be significantly reduced by sale of the home in which he presently resides potentially removing debts to the value of $1,032,000 from his liabilities said to be in the order of $2,848,970. This will reduce those liabilities although clearly he will have the additional burdens placed upon him as to capital and otherwise as are created by the orders that the Court proposes to make.
The husband will have the continuing responsibility for the support of his children although his legal liability to do so will cease at their eighteenth year, which is but three years away for the eldest child. That is not to say that in the case of these children it was suggested that they might not attend tertiary education and if they did there is a clear possibility of that liability continuing for some time thereafter. It should be noted however that whilst the obligation to maintain children at a reasonable level is a high priority, no principle exists which requires a party to put the parties’ ability to maintain themselves at a lower level than the obligation to maintain their children.
The husband does not expect that the wife will be in a position to make a major contribution to the support of the children at the level of expectation of the parties during the marriage. That expectation of the husband is probably one which is reasonably held.

Conclusion on section 75(2)

For all the reasons referred to above I find that it is appropriate to make a significant adjustment in the circumstances of this case in favour of the wife and I propose that that adjustment will be in the order of 8.5% of the asset pool, for the reasons referred to above.

Overall division of assets

The above determination will see the wife receive 55.5% of the parties’ assets and the husband receive 44.5%. I consider that the husband should receive the former matrimonial home, subject to an adjusting payment to the wife. The value is agreed and the husband wishes to house the children there and it is his evidence that it is his and their wish to return to that residence. No injustice is therefore caused by such an order and it is noted that the husband will be able to make that acquisition without the necessity to pay stamp duty which is a benefit the wife will not have on any purchase she might make.

Just and equitable

The husband in his proposal for orders sees a splitting of the superannuation funds to adjust for the difference between the parties in their entitlements. In the circumstances of this case including the husband’s ability to generate income and the wife’s inability to do so, I have come to the conclusion that justice and equity requires that the funds remain as they are, with the wife’s need to rehouse herself being an indicator of her need for cash now rather than at some future time.
The division of assets would see the husband receive net assets to a value of $824,577 and the wife receive net assets to the value of $1,028,405.
In the circumstances of this case I determine that result to be just and equitable.

Orders which should be made

I propose orders which will give effect to the following division.
a)The wife will receive:

Assets	($)	($)
Furniture and furnishings in the former matrimonial home	5,000
Honda Odyssey	21,600
Telstra FPO shares	1,926
IAG FPO shares	786
Jewellery	8,000
Peterman Superannuation fund	88,173
Payment by the husband to the wife	919,296	1,044,781
Total Assets (including superannuation)	$1,044,781
Liabilities
Hire Purchase Odyssey	16,376	16,376
Total Liabilities	$16,376
Net Assets (including superannuation)	$1,028,405

b)The husband will receive:

Assets	($)	($)
T Street	2,700,000
N Street	1,150,000
NAB High Interest Account	811
NAB Drawings Account	28,217
D Nominees AA Pty Limited	100,000
Furnishings from the former matrimonial home	18,052
Furnishings from the husband’s unit at N Street	9,785
Alfa Romeo Car	24,500
GG Firm capital account	315,000
Jewellery	250
Peterman Superannuation fund	229,852	4,576,467
Total Assets (including superannuation)	$4,576,467
Liabilities
NAB fixed Mortgage secured on T Street	458,588
NAB variable Mortgage secured on T Street	946,377
Flexi Mortgage secured on T Street	31,333
NAB Mortgage N Street	1,032,000
Hire Purchase Alfa Romeo	9,296
National Australia Bank GG Firm Capital Account	315,000
Expected tax instalments for quarter to 30 September 2010	40,000
Amount payable to the wife	919,296	3,751,890
Total Liabilities	$3,751,890
Net Assets (including superannuation)	$824,577

The maintenance claim

The wife says that by reason of her age and/or her lack of currency in skills and knowledge in an appropriate field of gainful employment, that she is unable to adequately support herself at the present time. The husband asserts that she can return to her former occupation as a legal secretary or personal assistant. The wife says that the distress of the breakdown of her marriage and the consequent litigation have made her adverse to having anything further to do with employment in the legal profession but that she wishes actively to seek employment in the community service sector.
I turn to the various matters required to be considered by me in relation to such a claim:
a)The respective ages of the husband and the wife are as set out above. The wife is described by Justice Stevenson has having a personality disorder and it appears she experienced emotional distress as a result of the breakdown of her marriage. The husband points out and it is the fact however that there is no evidence before me which would suggest that her disorders and distress would affect her ability to earn an income.
b)The income, property and financial resources of each of the husband and the wife are as set out in their Financial Statements filed in these proceedings. The husband has conceded additional income by way of a bonus received by him since the filing of his Financial Statement and has said that it has been largely applied to payment of taxation. Those positions will be altered by the orders made above and the husband will have the opportunity to increase his cash flow and reduce his debt by sale of the property in which he presently resides having regard to the orders the Court has made for the transfer of the former matrimonial home to him. I have considered the income and outgoings and the assets, liabilities and financial resources of the parties and the degree to which such considerations have been taken into account in making the orders herein made for alteration of property interests.
c)The husband has the continuing care of the children of the marriage whose costs, having regard to the standard at which they are supported, are high. It is more likely than not that for the foreseeable future the children will continue to be in the husband’s care. I have taken into account the probability of the husband continuing in that role and the extent to which such probability has been taken into account in a consideration of the property claims.
d)Each of the husband and the wife have filed statements setting out their commitments. The wife’s statement was the subject of some cross-examination by the husband’s counsel and I agree that some of the amounts claimed in her statement are excessive. The husband has set out in his Financial Statement his commitments to the maintenance of himself and his children. Having regard to the way in which the parties expected the children to be raised I do not consider those commitments to be excessive. I note that the possibility exists for there to be a reduction in the husband’s outgoings and that of recent times his income has had an upturn. I also note that this has coincided with the finalisation of the parenting issues. The finalisation of this matter will permit of the husband to pursue his career untroubled one would hope by further financial litigation.
e)There is no evidence that either party has the responsibility to support any other person other than themselves and their children.
f)Each of the parties has an entitlement to superannuation as set out in the joint balance sheet, and which was Exhibit “1”. It appears that the wife, notwithstanding her present income from the students in her home is in receipt of an Austudy allowance in addition to that income and presently receives the sum of $500 per week by way of maintenance from the husband.
g)The parties during their marriage lived comfortably. In my view the wife, subject to compliance with the orders that I propose to make and the exercise of her earning capacity at the predicted level, will have the ability to live reasonably in all the circumstance of this case.
h)The payment of maintenance in this case will allow the wife to complete her retraining to procure income in her chosen profession and end a degree of dependence on the husband.
i)There is no evidence that any third party creditor seeks to recover their debt save that it seems the wife is indebted for a sum to her previous solicitors. The payment of that sum is secured by orders of this Court. The wife is also indebted to her therapist Dr R which by the order now to be discharged the husband was obliged to pay but did not. The husband asserts, and it seems agreed between the parties, that the wife did not forward to him the outstanding account. The wife says that if the husband pays to Dr R the amount of the account she will pay to the husband the amount of the medical rebate claimable by her in respect of those fees.
j)The wife has contributed to the income and property of the husband in particular in her fulfilment of her role as homemaker and parent during the course of the marriage. However, this has been already taken into account in the order that I have made in relation to the division of the parties’ property.
k)The marriage and the wife’s role in it has affected the wife’s earning capacity in a way which was conceded between the parties, namely that in respect of employment whether in her chosen career or in her previous career, she will require retraining. The husband offers that it will take but six months for her to undertake suitable retraining for employment as a personal assistant and the wife saying it will take at least two years to complete her present course. The duration of the marriage has been such and the role adopted by the wife during it such that the husband’s earning capacity has been permitted to develop and grow. The wife’s earning capacity has not experienced such growth.
l)Each of the husband and the wife wish to continue their role as parents. The needs of the children have been explored by Stevenson J and her Honour’s Judgment presently sets out the arrangements for them. That Judgment provides for the children to live with the husband and have supervised time with the wife. The wife has said she wishes to seek to remove the requirement for supervision but such an application is not before the Court and it is noted that there would need to be shown some significant change from the situation as it existed at the time her Honour was considering matters for that to be successful. Neither of the parents will have their rights in that regard affected by my orders.
m)There is no assertion that either party is cohabiting with another in the sense of this sub section. The wife does have living with her fee-paying students and she will lose that income upon the implementation of my orders.
I have considered the effect of the orders which I propose to make in relation to the alterations of property interests sought herein.
I have considered the child support under the Child Support (Assessment) Act1989 (Cth) which the wife would be required to provide or will be required to provide. The amount of any such assessment in a consideration of the needs of these children and the means of the wife is likely to be a very modest contribution to their support.
There is nothing further which is required by the justice of the case to be taken into account.
There is no financial agreement binding on the parties to the marriage.
I find that the wife is unable to adequately maintain herself by reason of her lack of training in her chosen career and her need for such retraining in order to enable her to gain a measure of independence from the husband, and that the husband has a capacity to pay the maintenance ordered.
I do not find that the wife’s decision in all the circumstances of this case not to pursue her former career as being unreasonable and that in this case it is reasonable that the husband should pay maintenance for the wife but for a limited period only to enable her to undertake her chosen retraining. The period sought by the wife, namely two years, is an appropriate period for such payment and the amount that I find is appropriate in all the circumstances is the sum of $1,000 per week to take effect from the date upon which the wife’s home-stay students leave the former matrimonial home and I will order accordingly.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on

17 September 2010.

Associate:

Date: 17 September 2010

[2010] FamCA 831

17 September 2010

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Res Judicata