Eldred & Eldred
[2015] FamCA 61
•9 February 2015
FAMILY COURT OF AUSTRALIA
| ELDRED & ELDRED | [2015] FamCA 61 |
| FAMILY LAW – CHILDREN – high parental conflict – parallel parenting – attitude of one parent makes joint parental responsibility not viable – mother has sole parental responsibility for major long term decisions concerning health and education – |
FAMILY LAW – PROPERTY – monies disbursed prior to trial – treatment of interim and partial property settlements – treatment of add backs after Bevan and Bevan – s 75(2)(o) – private agreement ensured that property notionally added back into the property to be divided – spousal maintenance – child support – departure from child support assessment
| Evidence Act 1995 (Cth) |
Family Law Act 1975 (Cth) Pt VII, Pt VIII
Family Law Rules 2004 (Cth)
B and B: Family Law Reform Act (1997) FLC 92-755
Bevan and Bevan (2013) FLC 93-545
Biltoft and Biltoft (1995) FLC 92-614
Clauson and Clauson (1995) FLC 92-595
Davut and Raif (1994) FLC 92-503
Ferraro and Ferraro (1993) FLC 92-335
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143
JEJ and DDF (2001) FLC 93-075
Lee Steere and Lee Steere (1985) FLC 91-626
McLay and McLay (1996) FLC 92-667
Norman and Norman [2010] FamCAFC 66
Omacini and Omacini (2005) FLC 93-218
Phillips and Phillips (2002) FLC 93-104
Pierce and Pierce (1999) FLC 92-844
Prpic and Prpic (1995) FLC 92-574
R and R (2000) FLC 93-000
Stanford and Stanford (2012) 247 CLR 108
Townsend and Townsend (1995) FLC 92-569
| APPLICANT: | Ms Eldred |
| RESPONDENT: | Mr Eldred |
| FILE NUMBER: | MLC | 10616 | of | 2012 |
| DATE DELIVERED: | 9 February 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 20 – 23, 26 – 30 May, 2, 5 – 6 June 2014, 10 November 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr St John QC |
| SOLICITOR FOR THE APPLICANT: | Tolhurst Druce & Emerson |
| COUNSEL FOR THE RESPONDENT: | Mr Robinson |
| SOLICITOR FOR THE RESPONDENT: | Clancy & Triado |
Orders
IT IS ORDERED:
CHILDREN
The wife and the husband have shared parental responsibility for the two children of the marriage:
a.B, born … 2006 (“B”); and
b.C, born … 2008 (“C”)
(collectively, “the children”) –
save that the wife be solely responsible, as between herself and the husband, for major long term decisions in relation to the health and education of the children and notify the husband in writing promptly and as soon as practicable of any such decisions.
The children live with the wife.
The children spend time with the husband as follows:
a.In 2014, in the first week in each fortnight of the school term, from Friday at the conclusion of school (or like time) until the conclusion of the children’s swimming lessons on Monday (or 6.00 pm if they do not attend swimming lessons), commencing Friday 13 February 2015;
b.In 2015, in the second week in each fortnight of the school term, from Monday at the conclusion of school (or like time) until the commencement of school (or like time) on Tuesday, commencing 9 February 2015;
c.For one half of all school term holidays as may be agreed in writing between the parties or, in default of agreement:
(i) the first half in even-numbered years (commencing from the conclusion of school until 5.00 pm on the middle day); and
(ii) the second half in odd-numbered years (commencing from 5.00 pm on the day immediately preceding the middle day and concluding at 9.00 am on the day before the children are to resume school).
d.For one half of the Christmas school holidays as may be agreed in writing between the parties or, in default of agreement:
(i) for the first half in holidays which begin in odd-numbered years (commencing from the conclusion of school until 5.00 pm on the middle day); and
(ii) for the second half in holidays which begin in even-numbered years (commencing at 5.00 pm on the day two clear days before the middle day of the holidays and concluding at 9.00 am on the day two clear days before the children are to resume school).
If the children are otherwise scheduled to be with the wife pursuant to these Orders (save as provided in Order 5) then her time with the children be suspended and the husband spend time with them on the following occasions:
a.From 6.00 pm on the eve of Father's Day until 6pm on Father’s Day;
b.From 1.00 pm Christmas Day until 5pm Boxing Day in even-numbered years;
c.From 9.00 am Christmas Eve until 1pm Christmas Day in odd-numbered years;
d.On Easter Sunday from 11.00 am to 5.00 pm;
e.On each of the children’s and the husband’s birthday:
(i) if on a school day from the conclusion of school until 6.30 pm; and
(ii) if a non school day, from 1.00 pm until 5.00 pm; and
f.At such further or other times as the parties may agree in writing.
If the children are otherwise scheduled to be with the husband pursuant to these Orders (save as provided in Order 4) then his time with the children be suspended and the wife spend time with them on the following occasions:
a.From 6.00 pm on the eve of Mother’s Day until 6.00 pm on Mother’s Day;
b.From 1pm Christmas Day until 5.00 pm Boxing Day in odd-numbered years;
c.From 9.00 am Christmas Eve until 1.00 pm Christmas Day in even-numbered years;
d.On Easter Sunday from 11.00 am to 5.00 pm;
e.On each of the children’s and the wife’s birthday:
(i) if on a school day from the conclusion of school until 6.30 pm; and
(ii) if a non school day, from 1.00 pm until 5.00 pm; and
f.At such further or other times as the parties may agree in writing.
For the purpose of paragraphs (3), (4) & (5) hereof, when changeover does not take place at the children’s school or at D Swimming School, then the party scheduled to cease caring for the children deliver them to the ordinary residence of the other.
In the event that the husband or the wife from time to time take holidays away from Melbourne with the children (or one of them) for a period exceeding three days then they give the other party prior notice in writing of a contact telephone number(s) for the child(ren) and the address(es) at which the child(ren) will be staying.
If the children are in the care of a party for a continuous period exceeding four days then the other parent be entitled to contact the children by telephone on every third day between the hours of 6.00 pm and 6.30 pm and the party with the children facilitate such calls.
The wife provide the husband with not less than 14 days’ notice in writing of her decision to allow the children (or either of them) to have use of a mobile telephone and, pending that notice, the husband be restrained by himself his servants or agents from causing permitting or suffering the children to be given use of a mobile telephone or any other handheld electronic device which has communication or internet capabilities. For the avoidance of doubt, this does not prohibit the husband permitting a child to use his devices temporarily when that child is in his care.
The husband not cause permit or suffer the children (or either of them) to operate a Facebook or social media facility without the prior written permission of the mother.
If either party is unavailable to themselves care for the children (or either of them) for a continuous period exceeding 24 hours during a time they are scheduled to be in that party’s care THEN they shall inform the other party and give them first option of caring for the child(ren) during the period of their unavailability.
Each of the husband and the wife promptly inform the other if the children (or either of them) suffer any significant injury or illness whilst in their care, including particulars of any medical professional who has been attended upon and of any treatment recommended.
The husband and the wife each be and they are hereby restrained by themselves, their servants or agents from:
a.abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or members of that parent’s family in the presence or hearing of the children (or either of them);
b.informing and / or discussing with the children (and each of them) these Family Court proceedings, including the content of any affidavit (or part thereof) or Family Report; and
c.permitting or abiding any other person to do any act the parties are restrained from committing by sub-paragraphs (i) & (ii) of this paragraph.
The children attend upon the Family Consultant Ms E as soon as practicable following delivery of judgment to have explained to them the effect of these Orders upon the arrangements for their care.
The husband upon written request of the wife or the F Hospital, Suburb G, attend upon any medical practitioner treating C and provide such assistance as may be requested of him.
The husband and the wife do all acts and things to cause B and C to attend the Supporting Children after Post Separation Program as recommended by Ms E, the cost thereof to be shared equally between the parties.
Each of the husband and the wife attend counselling and parent education programs recommended by Ms E and promptly provide written proof to the other of their completion of such programs.
The husband be and he is hereby restrained by himself, his servants and agents from:
a.the children (and each of them) coming into contact with the child H;
b.the child H being discussed in the hearing of the children (and each of them); and from
c.abiding any other person to do any act he is restrained from committing by sub-paragraphs (a) and (b) of this paragraph.
The husband pay the wife’s costs of and incidental to the hearing on 10 November 2014 fixed in the sum of $2,500.
The children be released from the Child Care Room on Level 5 of this Registry of the Court into the care of the father.
PROPERTY
By way of final alteration of property interests the husband and the wife do all acts and things necessary to ensure that the funds invested on their behalf be divided as follows:
a.The sum of $293,496 to the wife;
b.The sum of $15,065 to the wife on account of the arrears of child support created pursuant to the departure order herein;
c.The costs owing to the wife pursuant to paragraph 19 of this Order; and
d.The balance to the husband.
IT IS ORDERED BY CONSENT:
That pursuant to s MT(1)(a) of the Family Law Act 1975 (Cth) (“the Act) whenever a splittable payment becomes payable in respect of the husband’s interest in the Macquarie Self Managed Superannuation Fund the wife is entitled to be paid an amount calculated in accordance with Pt 6 of the Family Law (Superannuation) Relations 2001 (Cth) using a base amount at the date of these orders in the sum of $74,904 and that there be a corresponding reduction in the entitlement the husband would have had in said Superannuation Fund but for this order.
That having been accorded procedural fairness, paragraph 22 of this Orders binds the Trustee of the Superannuation Fund to observe the requirements of the Act and the Family Law (Superannuation) Relations 2001 (Cth).
That paragraph 22 of this Order take effect from the operative time and the operative time is five days after the date these orders are made by the Court.
IT IS FURTHER ORDERED THAT:
SPOUSAL MAINTENANCE
That the wife’s application for spousal maintenance be dismissed.
CHILD SUPPORT
That pursuant to s 117(1) of the Child Support Assessment Act 1989 (Cth) there be a departure from the administrative assessment of child support payable by the husband to the wife in relation to the children for the child support period 1 January 2014 to 30 January 2017 so that the annual rate of child support is $22,000.
That the parties do all acts and things necessary to ensure that the arrears of child support created by the preceding paragraph of this Order be paid to the husband by the wife from the husband’s entitlement to the invested funds prior to the balance of his entitlement being paid to him.
The wife’s application for non-periodic child support be dismissed.
Leave be reserved to the parties to make applications in relation to any miscalculation of child support.
IT IS FURTHER ORDERED THAT:
Pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
This matter be adjourned to 2.15 pm on Wednesday 11 February 2015 for submissions as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Eldred & Eldred has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 10616 of 2012
| Ms Eldred |
Applicant
And
| Mr Eldred |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern final alteration of property, child support and parenting orders and were heard by me over 12 days in total.[1]
[1] These reasons were modified in light of information provided by counsel for the parties when I handed down my decision. This related primarily to the amount of the invested funds and consequences therefrom.
The parties were married in 2001 and separated finally in late May 2012. The two children of the marriage with whom the proceedings are concerned are B (“B”) who is eight years old and C (“C”) who is five years old. Since separation the children have lived primarily with the wife and spent regular time with the husband. Financially, the parties have liquidated most of their assets leaving the value of wife’s business and some invested funds to be divided between them. During the trial, the parenting issues expanded to take up a great deal of the time available for the presentation of evidence, whereas the financial issues, which were multifarious at the commencement of the hearing, contracted down to only a few matters requiring determination in order to finally alter property interests between the parties and decide the wife’s child support applications.
In relation to children, the family has been assessed by three well qualified and respected psychologists who, at various times, recommended three different outcomes. In the result, I found the evidence of Mr J to be of historical significance. Where there is a divergence of opinion between the other psychologists, who are Ms E (family consultant) and the private psychologist, Ms I, I prefer the evidence of Ms E.
The wife seeks a continuation of the current arrangements whereby the children spend four out of each 14 nights during school terms and half the school holidays with the husband whereas the husband seeks incremental increases in term time so that the boys will eventually live with him for six out of 14 nights. The parties both seek joint shared parental responsibility. The parents are unable to consult with one another about major long term decisions for the children much less reach consensus. I have acceded to the application of each of them that they have joint shared parental responsibility but, in the absence of some refinement, I am satisfied that it is unworkable. Accordingly, the wife is to be solely responsible for matters pertaining to the health and education of the children. It will be incumbent upon her to advise the husband in a timely manner of her decisions in that regard but the parties do not need to consult with one another or try to reach agreement. The mother is also to be responsible for deciding when each child can have a mobile telephone.
I accept the social science evidence that the parents’ highly conflictual relationship has already damaged these young boys and, because the hostility between the parents remains largely unchecked, it endangers the boys’ emotional and social development into the future. I conclude that the parents are unable to co-parent. In all of the circumstances of the case, it is not in their interests to spend any further time with the husband.
I made an interim parenting Order on 23 May 2014 in accordance with an agreement reached between the parties. It reflects their agreement about special days. A further order now needs to be made to reflect the finalisation of these proceedings, to provide that the husband will continue to have the time that he already has with the boys and to make provision for this year onwards.
The husband seeks a 55/45 division of real and personal property in favour of the wife. The wife seeks what, on one calculation, equates to about 75 per cent of the assets which she contends are divisible between them, spousal maintenance and child support. However, the “property” which the wife contends can be altered includes a large number of “add backs” which are sums of money that no longer exist. On my calculation there is property to the value of $756,000 which is to be divided between the parties. That is the wife’s business valued at $246,000 and some invested funds at about $503,995.[2] The wife wants to retain her business and all of the proceeds.
[2] The invested funds stand at $480,995.12 to which, for reasons set out in [308], there must be an added $23,000 paid to the wife.
I have determined that, of what remains, the wife should receive 75 per cent and the husband should receive 25 per cent which means that the husband will receive about $187,500 of the invested funds and the wife will receive the balance, less arrears of child support and the costs order in favour of the wife.
The husband opposes any departure from the current child support assessments but says that he will pay 50 per cent of the tuition fees for the boys to attend K School in Suburb L and one half of expenses related to agreed extracurricular activities and health insurance.
There have been not less than 15 child support assessments since November 2012 including one review process and an objection process. The husband’s child support liability has been as high as $450 per week to and as low as the current and wholly inadequate assessment of $74 per week. This is in spite of the parties’ incomes being relatively steady since the parties separated.
I have determined that the administrative assessment of child support should be departed from and be recalculated by reference to the parties’ current actual incomes and in the sum of $22,000 per annum. This will create some arrears owing by the husband to the wife.
Background
The wife is 39 years of age. She is self-employed; however, due to back pain she has not worked full time since the parties’ first child was born in 2006. In December 2012, she re-partnered with Mr M. Mr M has two adult daughters. The wife and Mr M do not live together but Mr M describes their relationship as “a committed romantic relationship which continues to the present time.”[3]
[3] Affidavit of Mr M sworn 11 March 2014 at [2].
The husband is 46 years of age and is employed at N Pty Ltd working six days per week. In October 2012, the husband re-partnered with Ms O. Ms O has two children. The husband and Ms O do not live together. The husband did not rely on any evidence from Ms O.
The parties did not live together prior to marrying on 4 November 2001. At that stage, the wife was 26 years old and self-employed working as P Pty Ltd. The wife was a director of Q Pty Ltd which was an enterprise conducted by the wife and two others. The husband was nearly 34 years old and a successfully employed at N Pty Ltd.
The extent of each party’s respective contributions to the acquisition and improvement of their first home in R Street, Suburb S, and, indeed, what property each brought to the relationship, is an issue in dispute. Having seen both parties cross examined on the issue, I do not accept the primary evidence of either of them. I find that the husband brought in about $200,000 which was put toward the acquisition of the parties’ first home, including disbursements such as legal fees and stamp duty. He had a reasonable income earning capacity. I am unable to find that the wife brought savings into the relationship. In general terms, she brought her business and a good income earning capacity to the marriage.
The parties resided with the wife’s parents, rent free, whilst their home was renovated. The first home was sold in 2004 and the parties purchased the property at T Street, Suburb U and later subdivided and sold both properties. The final family home was at V Street, Suburb W, and was renovated extensively before they took up residence there in September 2006.
The parties’ oldest child, B, was born in 2006. The wife suffered badly from a painful back complaint during her pregnancy with B. Her condition is chronic and debilitating. She reduced her working hours when B was born and, for various reasons, she has not since returned to the level of working hours she had prior to 2006.
In order to reduce her involvement in the day to day operations of her business the wife made an arrangement with an employee, Mr X, that he would attend to administration and the day to day running of the business, receive half the upfront commission and trail commissions for the wife’s client base and contacts. The wife also employed other people in her business and continued to derive a good income. The husband also did well and was made a partner at N Pty Ltd in 2007. The parties raised funds on the security of the family home to take up a shareholding interest in N Pty Ltd in the name of P Pty Ltd.
The parties’ youngest son was born in 2008.
In 2009, the husband ceased to be a partner at N Pty Ltd and redeemed the parties’ shareholding. In mid-2011, the husband ceased employment, commencing with his long service leave. The wife continued to require significant treatment for her back condition including surgery in 2010 and 2011.
In July 2011, Mr X resigned and set up another business in competition with the wife. The wife instituted proceedings in the Supreme Court of Victoria against Mr X in September 2011 alleging, inter alia, breach of contract in that Mr X had improperly obtained business in his own right using the client list of P Pty Ltd. The Supreme Court proceedings settled in February 2012 on terms favourable to the wife, with Mr X and an associated entity entered into a restraint of trade for 12 months, the effect of which was that neither could solicit business from, a person on the list of P Pty Ltd. There was an award of costs in favour of the wife and the wife received a transfer of certain business undertaken by Mr X.
An issue in this case is the extent to which the husband relinquished his employment with N Pty Ltd to take up a more general role in the wife’s business. A further issue is the amount of support which the husband gave the wife in the conduct of the Supreme Court proceedings. Having heard the parties cross examined extensively, I find that the husband’s principal motivation for leaving N Pty Ltd was that he was disenchanted with his non-partnership role within that enterprise and that he was not prepared to continue to work there. The husband may have envisaged a productive role for himself within the wife’s business but, with the exception of his involvement in the litigation with Mr X, his participation did not amount to much. To the extent that the wife and he stated that he did take up a productive role, I am satisfied that he was supportive and made some contribution but not to the extent that he alleges. The wife was putting on a brave face. My impression is that the wife was quite desperate for the husband to return to paid employment so that he could contribute to the family’s expenses which, I am satisfied, were significant. The parties’ discretionary expenditure included jewellery for the wife, a second expensive watch and cosmetic surgery for the husband. They chose not to save and arguably lived beyond their means.
In February 2012, C commenced kindergarten. B started Prep at K School which is a private school in Suburb L now attended by both boys. The wife’s case is that she strongly encouraged the husband to return to work in January 2012 for various reasons, including the family’s need for income in addition to her own. The husband’s case is that he was unduly pressured by the wife to return to work and, as a result, he felt impelled to accept an early but inferior position at N Pty Ltd rather than being able to wait for a better opportunity to arise. The husband resumed work at N Pty Ltd in mid-February 2012. The wife asserts that the husband’s income exceeds what he admits to having received and that he has, or has had, a proprietary interest in a business entity associated with N Pty Ltd, called N Pty Ltd Projects. Having heard the parties cross examined on their respective versions of events, I am satisfied that the husband recognised the realities of the family’s need for income over and above what the wife could generate and took a job on offer. I do not accept that the husband was pushed back to work prematurely or that he forewent better opportunities.
By 27 February 2012, the husband and wife agreed to separate and the husband largely absented himself from the family home at V Street.
In late March 2012, the parties reconciled and the husband returned to V Street to live. In March/April 2012, the wife entered into a three year lease of expensive office premises near the family home which is in an expensive area of Melbourne (“the Y Street Property”).
At the husband’s suggestion, the wife agreed to sell the family home. It was sold on 12 May 2012 for $3,025,000 and settlement of the sale took place on 7 September 2012. The net proceeds of sale were $900,251 and were invested on behalf of the parties; it is the remainder of those funds which is the principal asset to be divided in this property proceeding.
The wife attributes responsibility to the husband for financial losses associated with her lease of business premises at Y Street on the basis that she would not have entered into the lease if she had known that the parties’ marriage would not continue. On the other hand, the husband said that “it certainly wasn’t something I agreed to or thought was a good idea” or words to that effect. His view was that the wife’s lease of premises was “a ridiculous thing to do [having regard to the property comprising] five, six rooms. It was a two-story terrace” and that he had been trying to locate an office or room for the wife elsewhere. When pressed, he acknowledged that he had not objected to the wife leasing the large premises and that “I didn’t stop her”.
This is an issue relevant to s 75(2)(o) of the Family Law Act 1975 (Cth) (“the Act”) but I will deal with it now. Having heard the evidence and cross examination of the parties about the Y Property, I am satisfied that, notwithstanding its proximity to the family home, the property exceeded the reasonable needs of the wife’s business. If the husband had any doubts about continuing with the marriage when he moved back into the family home, he should have let the wife know of the possibility that the marriage would not continue. My impression is that the husband gave due consideration to the cessation of the marriage in the context of selling the family home, which was done within the same brief period of reconciliation as the wife signed the lease on the Y Property. I am satisfied that the husband did not encourage or actively support the wife in her decision to lease the premises at Y Street. The husband took a decision not to actively obstruct the wife’s decision but did not warn her that the marriage may end, with all of the financial woes that entails, leaving herself with a significant leasing liability for premises which were surplus to her needs and not convenient to where she might live.
This is an example of the lack of consensus based decision making that characterised the parties’ relationship either because the wife did not seek to involve the husband and/or the husband failed to participate when it was appropriate for him to do so. It is too late for the parties to point the finger of blame at each other. I did not find the body of evidence about the cost of leasing the Y Property particularly germane to the real issues in the proceedings which is why I am disposing of the matter now. It remains my concern that the parties and their lawyers did not pay due attention to the concept of proportionality nor confine themselves to issues which the parties could afford to pursue.
In practical terms, the parties have lived apart since 28 May 2012. The husband went to live with his parents. In late August 2012, the wife and children moved into rental accommodation at Z Street, Suburb AA, and she and the children have been living in rental accommodation ever since. In April 2013, the wife relocated to rental accommodation at BB Street, Suburb L. The move was necessitated by her earlier rental property being sold and the new premises were for a lesser rental.
In September 2012, the parties and children attended upon Mr J, psychologist. It is asserted on behalf of the wife[4] and appears to be the case that the parents engaged Mr J, who is a respected psychologist in this area, to assist them to devise a consensual parenting plan and reduce disagreement between the parties generally. Mr J produced a letter outlining his assessment on 16 October 2012 which is discussed in detail later in these reasons. I will discuss Mr J’s opinions later in these reasons. The parties last saw him in January/February 2013.
[4] Applicant wife’s Outline of Case document filed 18 May 2014 at [6].
In mid-November 2013, the wife and children moved to live in the residential portion of the P Pty Ltd office premises at Y Street, Suburb W. On 18 February 2014, the wife and children moved to live in rental accommodation at CC Street, Suburb L. I will discuss in detail later the variations to child support paid by the husband to the wife since November 2012. I am satisfied that the wife’s capacity to afford private rental has diminished progressively throughout these proceedings and she is in a parlous financial state.
Procedural history in the family courts
The wife filed an initiating application on 21 November 2012 in the Federal Magistrates Court (as it then was) seeking final orders for property settlement, parenting orders and child support. On 18 January 2013, the wife filed an amended application. On 5 February 2013, the husband filed a response.
On 8 February 2013, Federal Magistrate McGuire (as he then was known) ordered, inter alia, that the parties have equal shared parental responsibility for the children, that the children live with the wife and that the children spend time with the husband each alternate week from the conclusion of school and kindergarten on Friday until the conclusion of the boys’ swimming lesson on Monday afternoon or 6.00 pm and in each other alternate week from the conclusion of school and kindergarten on Monday until the commencement of school and kindergarten on Tuesday. McGuire FM also made orders by consent for the parties to attend upon Ms I for the purposes of preparation of a family report and that the parties each receive the sum of $150,000 from monies held on trust, with the sum of $100,000 to be by way of part property settlement and the remaining sum of $50,000 to be characterised by the trial judge.
Ms I, psychologist, published her family report, dated 1 August 2013, which I discuss later in these reasons.
On 12 August 2013, the wife filed a further amended initiating application and on 14 August the husband filed an amended response.
The proceedings were listed for final hearing before McGuire FM to commence on 21 August 2013; however, the matter was not able to be reached and was transferred to this Court with a request that the Court afford the matter such priority as deemed appropriate. On 19 September 2013, the wife filed an application seeking a priority hearing which was acceded to and the matter allocated to my docket.
On 28 October 2013, there was a first day mention before me. The parties agreed to instruct a single expert witness to value the wife’s mortgage broking business. A family report was ordered to be prepared by a family consultant from within the Registry and the parties were provided with a specific opportunity to depose to factual inaccuracies in Ms I’s report.
On 25 February 2014, I set this matter down for final hearing on 24 March 2014. However, I was unavailable to hear the matter and, accordingly, on 11 March 2014, I transferred the matter to the case management judge to be set down before another judge at the earliest possible date. No early date could be found and eventually the matter came back to me and was allocated a final hearing on 20 May 2014. Having regard to the extensive affidavit evidence filed by the parties at that time, I relieved them from complying with the Family Law Rules 2004 (Cth) (“the Rules”) by allowing them to rely upon affidavit evidence already filed and to file further affidavits to bring the evidence up to date. To do otherwise would have required the parties to incur somewhere in between a further $7,000 and $15,000 in legal costs as a consequence of the lack of harmonisation between the prescribed procedures of the Federal Circuit Court and this Court. It would not have been proportionate. It was necessary to afford the husband an opportunity to respond to the wife’s evidence from the witness box during his evidence in chief. However, his most frequent response to the wife’s evidence was either that he could not remember or that the wife was probably lying or likely to have lied. My impression is that, with the exception of initial financial contributions, the husband was not in a position to refute most of what the wife said and the fact that her evidence was not reduced to one trial affidavit, as contemplated by the Rules, was immaterial. Obviously there were cost implications associated with the husband having to give evidence orally but, ultimately, the costs are born equitably if they each bear their own.
The final hearing then took place before me over 12 days on 20, 21, 22, 23 and 26, 27, 28, 29, 30 May and 2, 5, 6 June 2014.
By application made on 17 October 2014, the wife sought to adduce further evidence in relation to child support assessments and the parties sought orders to formalise a distribution to each of them of further funds from the invested proceeds of sale. On 10 November 2014, the wife was successful with her application and costs of that application are reserved to be determined by me.
The applications
The wife essentially sought the continuation of the existing arrangements for the children, whereby they live with her and spend time with the husband for four overnights per fortnight as well as half of school holidays and on special occasions. The wife supports the recommendations of Ms E, family consultant (see [129] of these reasons).
By way of alteration of property interests, the wife seeks all of the invested funds and to retain her business.
The husband seeks that his time with the children be increased by one overnight per fortnight between the trial and the start of the 2015 school year and then a further night in 2015. Time has now overtaken the specifics of that application. However, I regard the husband’s application as being for a gradual variation in the parenting arrangement whereby the boys will reside with the husband for six out of 14 nights during school term by 2016. Specifically each alternate week from the conclusion of school on Friday to the commencement of school on Tuesday and in the other week from the conclusion of school on Monday until the commencement of school on Wednesday.[5] The husband seeks one half of all school holidays. The husband draws support for this outcome from an early report by Ms I, Regulation 7 family consultant.
[5] Respondent husband’s Outline of Case document in relation to parenting matters at [3].
In relation to property settlement, the husband seeks that the parties’ assets be divided 55 per cent to the wife and 45 per cent to the husband. He seeks that her application for spousal maintenance and her application for a departure from the administrative assessment of the Child Support Agency be dismissed.
The wife seeks orders in relation to child support. She seeks, inter alia, an increase from the husband’s current periodic liability for child support of $73.86[6] per week to $600 per week (being $300 per week per child) and payment by him of non-periodic child support expenses such as school fees, which are detailed in full at [363].
[6] Child Support Assessment issued 6 August 2014 for an annual amount of $3,854 payable by the husband to the wife for the assessment period 1 July 2014 to 14 May 2015.
The wife also seeks spousal maintenance.
Evidence
The applicant wife relied upon her further amended initiating application filed 12 August 2013 and the following evidence:[7]
[7] As refined in terms of Exhibit “W2” which specified certain paragraphs of certain affidavits.
a)her financial statement sworn 20 November 2012;
b)her financial statement sworn 1 August 2013;
c)her financial statement sworn 3 March 2014;
d)her affidavit sworn 20 November 2012;
e)her affidavit sworn 18 January 2013;
f)her affidavit in response sworn 8 July 2013;
g)her affidavit sworn 1 August 2013;
h)her affidavit sworn 13 March 2014;
i)the affidavit of Dr DD sworn 14 August 2013;
j)the affidavit of Mr EE sworn 19 August 2013;
k)the affidavit of Mr M sworn 11 March 2014;
l)the affidavit of Mr FF sworn 13 August 2013 at [8];
m)the family report of Ms E dated 3 February 2014; and
n)the single expert report of Mr GG dated 5 March 2014.
The respondent husband relied upon his amended response filed 14 August 2013 and the following evidence:
a)his amended financial statement sworn 3 March 2014;
b)his affidavit sworn 14 August 2013;
c)his affidavit sworn 6 March 2014; and
d)the affidavit of Mr HH sworn 14 August 2013.
The parties were cross examined as were Mr GG (forensic accountant), Mr M (wife’s partner), Mr EE (car valuer), Ms I (psychologist) and Ms E (family consultant/psychologist).
The wife’s specialist, Dr DD, was not required for cross examination. His evidence was not contradicted and I accept it. Dr DD is a Senior Rehabilitation Physician at II Rehabilitation and he provides a detailed the history of the wife’s back pain and the treatment she had undertaken. Dr DD summarised the wife’s condition as follows:
[Ms Eldred] is a 37 year old lady whom initially presented in January 2010 with intermittent lower back and leg pain which deteriorated with time. She was diagnosed with having a right L5 – S1 disc prolapse with right S1 nerve root compromise in August 2010 and subsequently underwent a micro-discectomy in October 2010. Unfortunately her situation continued to deteriorate and she required an L5 – S1 keyhole fusion via the hands of [Mr JJ] in September 2011.
She has continued to be plagued by mechanical back pain, discogenic back pain and leg pain.
She has taken on board pain management strategies, pacing, ergonomics and back care strategies and is slowly improving but is still significantly disabled associated with her back injury.
She continues to require analgesia and although this has been weaned down the likelihood is that she will require long term analgesia as well as antidepressants for both mood and neuromodulation and Diazepam for muscle spasms intermittently.
She has been committed to her rehabilitation and has made gains because of this.
According to Dr DD, after a minimally invasive fusion which she underwent in September 2011, the wife’s medication use had increased substantially to 200 milligrams of Oxycontin per day, 35 milligrams of Endep each night, 100 milligrams of Zoloft daily, 10 milligrams of Oxynorm each day and 5 milligrams of Valium up to three times a day. However, when the wife was reviewed in September 2012, she had managed to decrease her Oxycontin dosage to 50 milligrams per day and her Endep dosage to 25 milligrams each night, with Oxynorm and Valium required only very occasionally. She was putting pain management strategies in place and using back care strategies. Dr DD “felt that there had been a steady improvement in her functioning. […] However, she certainly had significant ongoing pain which was limiting her day to day functioning.” Dr DD stated his intention to review the wife again on 7 November 2012 and to further decrease her medications at that time.
Dr DD noted that the wife has decreased tolerances, particularly sitting, standing and driving tolerances, and is unable to undertake activities that she enjoyed prior to her ailment, such as attending the gym. With regard to her ability to work, Dr DD stated that “the most likely outcome would be that she is limited in her hours to around 8 hours per week of administrative duties and she is unlikely to get beyond 12 hours of work duties in the week. She will need at times physical assistance with the children although this will decrease as they grow older.”
Dr DD reported that “[a]lthough her improvements have been noted, her prognosis is guarded with respect to ongoing pain. She is unlikely ever to be pain free, given the fact that she has had 2 back surgeries with persistent pain post surgery.” In closing, Dr DD stated that the wife “will continue to require medical overview with respect to her medications and the potential for further deterioration is noted given she has had 2 back surgeries.”
I accept Dr DD’s evidence.
Proof and findings of fact
Section 140 of the Evidence Act 1995 (Cth) provides the relevant test for the Court’s assessment of evidence in this matter: the facts in issue are to be proved by the party with the persuasive onus on the balance of probabilities.
In these reasons, a statement of fact is a finding of fact.
Credit and impression of witnesses
Both parties gave evidence that was in some aspects inaccurate or likely to mislead. There are the following common features to how the parties presented as witnesses which lead me to conclude that I should not take the next step of considering that they gave incorrect evidence dishonestly.
Neither party presented as being particularly concerned with detail. They seem to have operated dynamically at least until shortly prior to separation. For the majority of their married life they were, within their respective fields of expertise, strategic, creative, self-reliant and driven performers who concerned themselves with what I colloquially refer to as the “big picture”. They do not impress me as personalities who are detail orientated or particularly exacting. They were occasionally stubborn, the husband was avoidant but neither was pedantic.
My impression is that their marriage was a partnership in as much as they shared what they generated. With the exception of Supreme Court proceedings taken by the wife over six months commencing September 2011, they did not exchange much detailed information about their professional dealings. I do not think that either were secretive. Rather, they were busy at work and made a concerted effort to enjoy life within the home, if not in an emotionally fulfilling way, then at least by the acquisition of material items like expensive gifts for one another and high end luxury.
On some issues, they were required to give evidence about events that occurred a long time ago or, in the case of the wife, when she was undergoing invasive and significant treatment for her back complaint. My impression is that both parties simply could not remember some events and reconstructed them for the purpose of giving evidence about them.
Finally, for various reasons, the parties’ relationship was characterised by a lack of consultation and a high degree of unilateral decision making on both sides. One consequence of the absence of discussion and joint planning is that their perceptions of events are genuinely different, compounded by the fact that their recollections have dimmed.
Each party is extraordinarily mistrustful of the other, disillusioned and angry. Whether it is justified or not, each appeared to feel as though they have been exploited by the other. Each related past events through a prism of negativity about the other which was so potent that it resulted in their evidence being less reliable than it would be if they were not still so enmeshed on an emotional level. Each party appears to be acutely aware that, by ending the marriage, he/she has lost access to the assets which they worked hard to accumulate and now individually they have a reduced potential to accumulate anything like those assets again. Each is more prepared to blame the other than assume responsibility for their predicament which includes having expended a large part of their liquid funds on these ruinously expensive proceedings.
The applicant wife
The wife was a well prepared witness who gave detailed viva voce evidence and considered answers during cross examination. Some of the wife’s evidence was wrong and she was appropriately criticised in this regard by counsel for the husband. There were a number of instances. It is not necessary for me to refer to them in detail. Looking at the instances individually and cumulatively I conclude that the wife was not always a reliable witness. However, the fact that some of her evidence was wrong or false does not mean that it was all wrong. There were some respects in which I accept the wife’s evidence as being accurate.
The instances when the wife’s evidence was wrong and I consider that her credit is impugned include the following:-
a)In this proceeding the wife was not prepared to give the husband much credit for his assistance or initiative in the conduct of the proceedings which she took against her former employee, Mr X. However, in the Supreme Court it was alleged, by her and on her behalf, that the husband had taken a number of significant steps to assist her. My impression is that, if those actions were taken by the husband then he contributed in a real and valuable way to the wife’s success in the litigation. I am not satisfied as to which version is correct but as the versions are entirely inconsistent with one another, I am satisfied that the wife conducted one set of litigation on a false premise and made incorrect assertions.
b)The wife deposed to having brought P Pty Ltd into the marriage and that the value of that business “at the time of her cohabitation was much higher than it is now”.[8] Even allowing for inflation and other variables from 2001 to 2013, that assertion is not correct. The wife had not long started P Pty Ltd and the financial report for the entity for the year ending 30 June 2002[9] showed a much more modest and less valuable enterprise than the enterprise that the single expert witness, Mr GG, valued for these proceedings. I am satisfied that the wife swore this evidence at best recklessly and at worst dishonestly but, in either instance, with the intention of maximising her entitlement in this case.
c)On the fifth day of the trial (26 May 2014) the wife gave evidence that she worked in her business for 25 to 30 hours per week. Her evidence was that she would work full time on those days that she had the services of a nanny for the children and that she would work into the night. However, in her first affidavit in the proceedings[10] she deposed that, since B was born (2006), “I have only ever worked minimal hours on a part time basis. Up until April 2012, I worked only from home and now lease an office (within walking distance of the family home) and work approximately six to eight hours a week in my … business while [B] is at school.” My impression is that the wife’s oral evidence is closer to the truth than her first affidavit. She was resourceful and a good manager of time and did little to impress upon the husband that she juggled a number or responsibilities. When the wife was seeking in her first affidavit to portray herself as having been significantly more available to the children than the husband was, she minimised her time commitment to her business. When it was put to her in cross examination that she was generating what is by community standards a very good income for a few hours of work per week, she increased her work hours fivefold.
[8] Affidavit of the wife sworn 1 August 2013 at [33].
[9] Exhibit “W9”.
[10] Affidavit of the wife sworn 20 November 2012 at [35].
Instances where I regard the wife as having given evidence which was accurate notwithstanding that the husband gave evidence or his counsel contended otherwise include:-
a)The wife’s evidence generally about responsibility within the home and for the children. The husband’s parenting and property case was constructed in no small part around seeking to minimise the contributions of the wife on the basis that she had the benefit of assistance from nannies, paid child minders, household help and that she was on occasion absent from the home and staying in a hotel to recuperate from some aspect of her back complaint (eg, exhaustion, surgery). I accept that the wife did retain professional help and, occasionally, did book herself into a hotel to recuperate from what her uncontradicted medical evidence satisfies me was, and remains, a severely painful back complaint. However, as between herself and the husband, it was the wife who assumed and bore sole responsibility for the household. If there was concern about attending to some aspect of the day to day care of the children or the house it was her responsibility rather than the husband’s responsibility to do so. The fact that the husband refers to domestic and child care help as assistance for the wife, rather than for both of them, is corroborative of that. The husband gave evidence that there had been a number of nannies but, rather tellingly, when pressed he could not remember their names or the periods for which any nanny lived with the family. I accept that the wife was responsible for running the home and for the day to day care of the children during the marriage. The husband’s position to the contrary was demeaning of both of them. It also served to demonstrate that he had little comprehension of what was involved in caring for the children or running the home.
b)Counsel for the husband urged me to find that the accounts given by the wife and by Mr M about Mr M manhandling B were inconsistent with each other and that I should find that the abuse, as generally alleged, had occurred. In particular, counsel submitted that I should be satisfied that they had together concocted a story for the purpose of giving evidence and that “something did happen”. I do not agree. The accounts given by the wife and Mr M did differ in material respects but they each appeared plausible, comfortable and credible when they gave evidence. The allegations made by the husband were not made promptly or with a great degree of particularity. This was an incident in which the evidence was a cocktail of hearsay, reconstruction and recollection. Given the generally hectic atmosphere that attends the mundane or routine care of children, it does not surprise me that the recollections of the protagonists are not perfectly accurate. Significantly, having seen the wife and her partner give evidence, my impression was that neither was covering up an event or that anything untoward had happened. The wife and Mr M are intelligent and articulate people (as is the husband). If the wife and Mr M were going to construct a false version of events, I am satisfied that they would have done a better job of making up a story than the evidence which they gave before me. The most likely explanation is that there was an incident of no more severity than Mr M describes,[11] which B related somewhat inaccurately to the husband, who gave the worst possible interpretation to every aspect of B’s statement and permitted his loathing of the wife to contaminate his speculation about what most likely occurred. This is a very common dynamic in high conflict cases such as this. It is consistent with the opinion expressed by Ms E (extracted at [127] below) that B may have been exposed to “adult viewpoints” about the incident and “that he might be in the process of being aligned against his mother.”
[11] Affidavit of Mr M sworn 11 March 2014 at [16].
As I discussed above, I am not prepared to find that the wife deliberately lied to the Court but I am satisfied that she was at times an unreliable witness. Furthermore, I am satisfied that the wife gave evidence which was wrong in circumstances where, if the evidence had been accepted, it would have advanced her position in the proceedings.
The respondent husband
Overall, the husband was not an impressive witness. He is clearly intelligent and articulate but he cannot remember much. He is myopic and, it appears to me, an immature personality who was prepared to fill the gaps in his recollections with a disparaging picture of the wife or something that she has done.
I have not previously encountered a witness of the husband’s intelligence who was prepared to sit in the witness box and respond “I can’t remember” as frequently as he did about events or matters of which he should have had some recall. He sought refuge in saying that he could not remember and, I am satisfied, doing so was a strategy he employed to avoid answering questions. In closing submissions, counsel for the husband conceded that the husband’s evidence was, at times, unsatisfactory, deliberately vague and misleading. It was a proper and sensible concession to make.
I am satisfied that accuracy has become a casualty to the husband’s overwhelming resentment of the wife and his need to portray her negatively. His stance against the wife shines a revealing light on his own personality.
I do not find that he deliberately tried to deceive the Court, he just did not care if he did so.
One of the significant factual disputes in which the husband gave detailed evidence was in relation to his pre-cohabitation financial contributions. He maintained that he brought real and personal property into the marriage to a value of $300,000. The wife maintained that it was more in the vicinity of $140,000. My impression is that much of the husband’s evidence was reconstructed by him rather than recollected but that is understandable. There was late evidence of shares being acquired by the husband which appeared to me to be given to try to shore up evidence that he had given rather than being based on recollection of actual events. His figures and borrowings did not add up but neither did the wife’s evidence on this point. The wife’s evidence about her own direct financial contribution fell away. Ultimately, I am unable to say the precise amount that the husband brought into the marriage save that it was a considerable amount which constituted a valuable start for the parties and enabled the couple to acquire their first home. I would put the figure somewhere in the vicinity of $200,000 inclusive of disbursements such as stamp duty and conveyancing fees rather than the amount contended by either party. It was, as I say, a significant initial financial contribution.
Counsel for the wife criticised the husband over certain aspects associated with changing over his motor vehicle in 2012, which involved trading in his European sedan to acquire a wagon which was similar to the vehicle the wife then drove. First, counsel for the wife contended that the sedan was worth $60,000 on the open second hand car market and that, in accepting $35,000 as a trade in price, the husband wasted $25,000 within the meaning of the relevant authorities such as Omacini and Omacini (2005) FLC 93-218. The husband conceded that this was the first time that he had traded in a luxury vehicle to acquire another car but denied that he did so to minimise any value to be attributed to the sedan for the purpose of these proceedings. I do not regard the husband’s evidence as deficient on this point. He answered what was asked of him. The wife, who bears the onus of proving the elements of her wastage argument, did not structure her case in a way that enabled her to succeed on the point. Where the wife bears the onus of proof, as is the case with this allegation of wastage, it is not sufficient to make an allegation and then complain the other party did not fill in the gaps. I do not consider that the husband’s evidence was unsatisfactory on this point.
The husband was cross examined very extensively by Mr St John QC for the wife to good effect. There was a plethora of evidence from early in the proceedings to demonstrate that the husband was angry with the wife, as Mr J records in his correspondence on October 2012. An example of the husband’s animosity to the wife is found in an exchange of emails between himself and the wife.[12] At 11.20 pm on 14 October 2012, the husband had written to the wife in the following terms:-
Do not get into my car and hound me ever again. I do not want any interaction with you at all, particularly in front of the children, you’ve done enough destruction to their lives already. What makes you think that I’m going to do anything that you want, you have done nothing, not the smallest thing that I have asked. You are the most despicable person, you are a compulsive lier (sic), self centered, insincere, greedy and dishonest. You have stolen my relationship with the boys, all our belongings and you think that you can introduce the guy you are sleeping with to our children days after you maneuver (sic) me out of the house.
Now you are hoping for some sort of pleasant arrangement in the future? I’ve put up with you bulling (sic) and manipulation for too many years. I intend to get a restraining order if you keep doing it.
To which the wife responded on 15 October 2012 at 5.23 am:
You know full well that I did not hound you and made no attempt to get into your car. When [C] begged you to look at his birthday presents yesterday (and you came into the house) then [B] dragged me out to look at your new car, the only thing I said to you was “please pretend and try to be polite, for the sake of the boys” at which point you sped off like a lunatic. [B] commented, again (sic) on you being in a bad mood when you were at [Z Street]. I’m not continuing to respond to your abusive emails and barefaced lies. Get help [Mr Eldred].
[12] Affidavit of wife sworn 20 November 2012, Annexure “BE6”.
One could be forgiven for assuming that 18 months later and with the benefit of reading all the psychologists’ reports, the husband would volunteer that he has worked extensively on his negative feelings towards the wife and, even if he cannot relinquish his feelings, can at least insulate the boys from them. However, the husband’s attitude in the witness box was to say, “I try not to think about her too much; there are probably worse people in the world”, or words to that effect.
A further demonstration from the witness box of the husband’s failure to appreciate how his anger toward the wife impacts on his functioning as a parent concerned Grandparents’ Day at the boys’ school in 2014; in this instance, the husband drew his parents into the dispute. The wife had sent the following email to the paternal grandparents inviting them to attend Grandparents’ Day at the children’s school:[13]
[13] Exhibit “W5”.
Hi [Mr and Ms Eldred Snr]
It’s Grandparents’ Day at [B] & [C’s] school on Friday the 23rd of May from 9.15 am until 11.30 am and I’m sure the boys will be thrilled if you’re able to go along. Morning tea starts at 9.15 am in the MPR (room beside the basketball court) followed by the children giving you a tour of the school and presenting some of their work. My parents will be overseas so are unable to make it but I know boys would love to have you there.
Thanks
[Ms Eldred]
Promptly thereafter, the husband and the wife exchanged several emails on the evening of 6 May 2014. All of this occurred just 14 days before the final hearing was to commence. The husband sent the following email to the wife at 10.14 pm on 6 May 2014:
[Ms Eldred],
I think my parents made it fairly clear about their preference for your direct communications with them.
From now on, just forward communications to me and I will discuss and respond as required.
The wife replied at 10.39 pm:
Hi [Mr Eldred]
It’s an invitation to Grandparents’ Day. I didn’t realise that your parents had a problem with me sending necessary communication regarding the children in written form, particularly when it involves them personally.
Regards,
[Ms Eldred]
The husband sent the following message to the wife at 10.46 pm:
[Ms Eldred], stop telling lies.
The wife sent to the husband at 11.03 pm:
Oh please, enough [Mr Eldred]. Surely you’ve realised that the path you’ve taken, the false accusations and your current strategy is not working for anyone, particularly you. What an enormous unnecessary mess you’ve created. Start being honest with yourself or get the help you need to sort yourself out, if for no other reason than to be a good father to the boys.
The husband sent an email to the wife at 11.44 pm:
[Ms Eldred], stop telling lies.
Read the email from my parents and previous emails from me, then tell me again you didn’t understand them.
Tell my parents that you don’t understand.
Do you need a restraining order to or (sic) legal letter stop pretending you don’t understand?
Let me know.
The wife seeks to depart from the decisions of the Child Support Agency made 22 May 2013, 30 May 2013, 4 June 2013, 21 January 2014 and 12 May 2014. She seeks that the husband pay by way of child support the sum of $300 per child per week for the period 15 November 2012 to 30 June 2015 in addition to:
· school fees for both children at K School, Suburb L;
· all educational books and stationery costs;
· all school uniforms and school shoes;
· up to two extracurricular activities per term with such activities to be as agreed between the parties in writing;
· maintenance of the current level of BUPA private hospital, medical and ancillary health insurance; and
· all medical, dental, optical and orthodontic expenses of each child after payment of applicable rebates from Medicare and health insurance.
The husband opposes the wife’s application. He maintains that there are no grounds for departure from the current assessment of child support. The husband submits that he has offered to pay one half of the reasonable education expenses, costs of agreed extracurricular activities and health insurance for the children in addition to child support as assessed.
In closing submissions, counsel for the husband conceded that the wife’s income had been grossly overstated at various times and that it was something less than $50,000 per annum until May 2015 after which the wife would be relieved of lease payments for the Y Property. It was a sensible concession to make. It is in line with the evidence of Mr GG. I repeatedly asked senior counsel for the wife for income figures for the wife but no clear figures were forthcoming. It was not a well prepared child support case.
I am satisfied that since separation the wife’s income, as opposed to her business income, has been less than $50,000 per annum and that in the last 18 months it has been $22,000 to $25,000. At the same time, the husband has received an income of $175,000 or thereabouts.
I have jurisdiction to make a departure order by reasons of the other proceedings before the court.
I am satisfied that, in the special circumstances of this case, application of the formula relating to an administrative assessment of child support results in an unjust and inequitable determination of child support because of the income and earning capacity of both parents.
The wife seeks a departure from the 2013 assessments; I do not regard that as warranted, just and equitable or otherwise proper. However, there should be a departure from January 2014 and for the next two years with the effect that the annual rate of child support is $22,000 which is about $425 per week.
I have considered whether the departure should be effected by specifying the child support income amount for each parent but have decided to effect the departure by changing the annual rate of child support. Hopefully this will discourage applications based on a minor variation to income and allow the parties to budget effectively for the next two years.
By way of non-periodic child support the husband offers to pay one half of school fees and extracurricular expenses for the children. However, that was on the basis that he opposed any increase in his child support liability. I do not consider it appropriate to require the husband to pay more than $425 per week so I will accede to the wife’s application.
Spousal maintenance
Section 74 of the Act provides that the court may make such order as it considers proper for the provision of maintenance. The matters to which I can have regard are set out in s 75(2) which I have considered in the context of s 79(4)(e).
The wife seeks an order that the husband pay her spousal maintenance in the sum of $350 per week and that he maintain the current level of private hospital and medical insurance for the wife.
The husband opposes the wife’s application for periodic spousal maintenance. He submits that the wife has capacity to support herself, that her claimed needs are excessive and that the husband does not have capacity to support the wife.
I am satisfied that the wife has some capacity to support herself but her income is modest. However, I am not satisfied that the husband has the capacity to make payments to the wife over and above the periodic and non-periodic child support which I propose to order.
Conclusion
For these reasons I make the orders set out above.
I certify that the preceding three hundred and seventy-six (376) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 9 February 2015.
Associate:
Date: 9 February 2015
[79] Ibid.[80] Ibid.
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