FOLEY & FOLEY (FINAL JUDGMENT AND CORRIGENDUM)
[2017] FamCA 1158
•21 December 2017 and corrigendum 14 February 2018
FAMILY COURT OF AUSTRALIA
| FOLEY & FOLEY (FINAL JUDGMENT AND CORRIGENDUM) | [2017] FamCA 1158 |
| FAMILY LAW – CHILDREN – With whom a child spends time – With whom a child communicates – Allegations of violence – Orders that mother have sole parental responsibility for the children – The children shall live with the mother – The middle child shall spend time with and communicate with the father in accordance with her wishes – The younger child to spend time with and communicate with the father in accordance with the joint recommendations of the child’s treating psychiatrist and therapist provided it accords with the wishes of the younger child – Injunctive orders – Specific issues orders. FAMILY LAW – PROPERTY – Application by wife for a property settlement – Long marriage – Superannuation – Where each party sought add-backs – Consideration of the parties’ contributions – Consideration of s 75(2) factors – Where husband’s earning capacity into the future is greater than the husband’s – Orders made in circumstances where Court considers it just and equitable to do so. FAMILY LAW – CHILD SUPPORT – Application by wife for a departure from administrative assessment of child support to provide that the husband pay periodic child support for each of the parties’ two children – Order that the husband pay non periodic child support by way of payment of the children’s private school fees and other expenses. FAMILY LAW – SPOUSAL MAINTENANCE – Application for spousal maintenance by wife – Application dismissed. |
| Family Law Act 1975 (Cth) ss 60CC, 72 Child Support Assessment Act 1989 (Cth) ss 116, 117 |
| Harris & Ellis [2011] FamCAFC 90 Bevan & Bevan (1995) FLC 92-600 |
| APPLICANT: | Ms Foley |
| RESPONDENT: | Mr Foley |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | SYC | 3203 | of | 2016 |
| DATE DELIVERED: | 21 December 2017 and corrigendum 14 February 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 18, 19, 20 & 21 September 2017 and 6 November 2017. |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr W SC |
| SOLICITOR FOR THE APPLICANT: | V Firm |
| COUNSEL FOR THE RESPONDENT: | AA QC with Mr BB |
| SOLICITOR FOR THE RESPONDENT: | X Firm |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms CC |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
PARENTING ORDERS
Ms Foley (‘the mother’) shall have sole parental responsibility for C born … 2002 (‘the middle child’) and D born … 2003 (‘the younger child’) (collectively ‘the children’) .
The children shall live with the mother.
The middle child may spend time and communicate with the father in accordance with her wishes.
The younger child shall spend time and communicate with the father in accordance with the joint recommendations of the child’s treating psychiatrist and therapist, provided that it accords with the wishes of the younger child.
The parties shall notify each other of any serious illness or injury occurring to the children whilst in their care and provide any particulars of any medical practitioner, health service provider.
Each of the mother and father be and is restrained from:-
a.criticising or denigrating the other parent or member of that parent’s extended family or household in the presence or hearing of the children, or causing or permitting any other person to do so;
b.discussing these proceedings with the children or with any other person in the presence or hearing of the children;
c.causing or permitting the children to be shown any document filed in or created for these proceedings; and
d.physically disciplining and/or verbally denigrating the children.
As soon as is practicable, the mother shall inform the father in writing of any change to the children's residential address or school.
The father is permitted to obtain from any school attended by the children copies of the children’s school reports, school newsletters, school photographs and other information which is normally provided to parents of children of that school as reasonably requested by him at his expense.
Nothing in these orders prevents the father from contacting the children’s school to ascertain information as he reasonably requests about the children’s progress.
Except with the prior written invitation of the mother, the father be and is restrained by injunction from attending at the school which the children may attend or any extra-curricular activities of the children at times they are at such places.
The father shall be permitted to send gifts to the children and letters and cards to the middle child care of the mother (via her solicitor if there remains in place an Apprehend Violence Order and via her residential address when such Order expires) and that the mother will do all acts and things to facilitate the middle child receiving the gifts unopened and intact.
The father shall be permitted to send letters and cards to the younger child through her therapist or psychiatrist and the contents of such letters and cards may be communicated to the younger child at the discretion of such therapist or psychiatrist.
The mother shall ensure that the younger child attends upon a therapist as recommended by the younger child’s psychiatrist for the purpose of therapy, and such therapy shall initially be not less than once per week and in future at a frequency as recommended by the younger child’s psychiatrist.
Prior to any agreed or child requested time and/or communication between the father and one or other of the children; the father shall attend upon Mr N, or if he is not available, another psychologist, and shall complete one to one anger management therapy as was recommended by Dr E in his Report dated 17 October 2016. A copy of such report shall be provided to the psychologist prior to any commencement of such therapy.
Pursuant to s 65Y(2)(b) of the Family Law Act 1975 (Cth) the mother is permitted to take or enable the children or either of them to travel outside Australia for a school excursions, sporting/extracurricular excursions or holidays as she wishes provided that the mother provides the father with reasonable notice in respect of the proposed travel, including destination and times outside Australia.
For the purpose of the Australian Passports Act 2005 (Cth) it is declared that the mother shall have sole and exclusive parental responsibility to consent and apply for the issue and re-issue of Passports for each of the children.
The Passports of the children shall be generally kept in the possession of the mother.
The father is restrained from making any application for Passports or travel-related document for either of the children.
IT IS NOTED
The father has agreed to meet the costs of therapy for the younger child after the expiry of the ten sessions available under to her pursuant to the social safety net.
Pursuant to s 65DA(2) and s 62B, of the Family Law Act 1975 (Cth) the particulars of 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 these particulars are included in these orders.
The appointment of the Independent Children’s Lawyer is continued for a period of two (2) years from the date of these Orders.
BY CONSENT
a.the father shall pay to Legal Aid Commission New South Wales the sum of six thousand nine hundred and sixty five dollars and fifty cents ($6,956.50) being the costs of the Independent Children’s Lawyer;
b.the mother shall pay to the Legal Aid Commission of New South Wales the sum of five thousand two hundred and fifteen dollars and fifty cents ($5,315.50);
c.Such sums to be paid within three (3) months from the date of this order; and
d.This order does not preclude or prevent any costs application (made in accordance with the Family Law Rules 2004 (Cth)) by one or other of the parents against the other parent for that parent to pay or contribute to the costs of the Independent Children’s Lawyer (as between the parents).
The Independent Children's Lawyer shall inform the children of the nature and effect of these orders within five (5) days of the making of the Orders.
Any remaining costs applications as between the parents relating to the parenting proceedings to be made in accordance with the Family Law Rules 2004 (Cth).
At the expiry of the appeal period all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage senior counsel and counsel to attend.
PROPERTY ORDERS
Definitions
In these orders, the following definitions apply:-
a.Suburb G property means the real property situated at and known as H Street, Suburb G in the State of New South Wales being the whole of the land in Folio Identifier …, being the former matrimonial home;
b.Suburb P property means a commercial property at J Street Suburb P in the State of New South Wales and being the whole of the land in Lot 6 of DP …9;
c.Company means F Pty Ltd ACN … ;
d.Husband’s CBA Loan Account means a loan to the husband secured by the Suburb G property, being Loan Account No …04;
e.Factory Loan Account means a loan in the parties joint names secured by the Suburb G property, being Loan Account No …3, such debt being set off in practice by the Parties Loan Account in the Super Fund;
f.Suburb Y property means the real property situated at and known as Q Street, Suburb Y in the State of Queensland being the whole of the land in Lot 2 of Building Plan …8;
g.Parties’ Loan Account means a sum of money owed to the parties by the Super Fund, of about $313,934; and
h.Super Fund means K Pty Ltd as trustee for the Foley Superannuation Fund ABN …, being a self-managed superannuation fund, and includes a reference to the corporate trustee as the context may require.
Discharge of secured loans
Within 28 days of the date of these Orders the parties:-
a.in their capacity as directors of the Super Fund, do all acts and things and sign all documents necessary to discharge the Parties Loan Account; and
b.do all acts and things and execute all documents to repay in full and cause to be discharged the Factory Loan Account.
For the orderly implementation of 2(a) and 2(b) above:-
a.such cash funds that are in the Super Fund shall be paid directly to the Factory Loan Account to the extent necessary to discharge that loan;
b.in the event there be a shortfall of cash in the Super Fund to discharge the Factory Loan Account, the husband shall pay 35 per cent and the wife shall pay 65 per cent of any such shortfall. In the event that there is an excess then such excess shall be paid as to 35 per cent to the husband and 65 per cent to the wife.
Suburb G property
The wife shall pay to husband the sum of $338,381 within six (6) months of the date of this Order.
Within 42 days of the date of these Orders the husband and wife shall:-
a.Do all acts to discharge the mortgage securing the Husband’s CBA Home Loan Account (secured by mortgage over the Suburb G property and of about $14,145) with the wife paying 65 per cent of the loan balance and the husband paying 35 per cent of the loan balance. The parties shall do all acts and sign all documents to secure a discharge of any mortgage over the Suburb G property;
b.If the Factory Loan Account has not been discharged, the husband and wife shall do all acts and sign all documents to ensure that the loan repayments are being met in the same manner as they have been met since 28 April 2016. Once the Factory Loan Account is paid out according to the preceding Orders, the parties shall do all acts and sign all documents to secure a discharge of any mortgage securing that loan over the Suburb G property;
c.The husband shall ensure that all council and water rates and charges on the Suburb G home and all repayments due over any other loan secured by mortgage over that home are paid up to the date 42 days from the date of these Orders;
d.The wife shall be responsible for rates, taxes, charges and insurance on the Suburb G home as and from 42 days from the date of these Orders; and
e.The husband shall do all acts and things and sign all documents as shall be necessary to transfer any right, title or interest he may have in the Suburb G property to the wife;
The wife shall be entitled to exclusive occupation of the Suburb G property, as against the husband, from the date of these Orders.
The wife shall be at liberty to deduct from the payment in Order 5 any and all arrears of spousal maintenance and child support as required to be paid pursuant to orders made on 7 December 2016 and these Orders with such arrears be calculated as at the date of the performance of this Order.
Simultaneous with the husband’s compliance with the preceding Orders, the wife will:-
a.Resign any positions that she holds in the Company;
b.Transfer to the husband all of her shareholding in the Company; and
c.Assign to the husband any other rights or entitlements she may have in or against the Company;
The husband shall indemnify and keep the wife indemnified against all or any manner of action, suits, causes of action, arbitrations, debts, and demands whatsoever both at law and in equity which he or the Company now has or may have at any time in the future against the wife, including but not limited to matters arising pursuant to his interest in the Company or any related entity, including any director’s guarantee, personal guarantee or other indemnity howsoever described arising from or relating to his interest in the aforementioned entities.
Super Fund
Within 42 days of the date of these Orders or the date of completion of the sale of the Suburb P property:-
a.the parties do all acts and things and execute all documents to enable and facilitate the wife’s entitlements in the Super Fund (of about $791,303) to be rolled-over into a compliant superannuation fund in the wife’s name as nominated and directed by her.
Simultaneous upon the roll-over of superannuation as described by the previous order, the wife shall:-
a.resign as a trustee of the Super Fund; and
b.relinquish all other rights and interests as a beneficiary of the Super Fund.
From the date of these Orders, the husband in his capacity as Trustee of the Super Fund, shall indemnify and keep the wife indemnified in relation to any claim, suit or demand made upon such Super Fund whether or not such claim, suit or demand relates to sums incurred or crystallised prior to these orders, including but not limited to any past or future taxation howsoever characterised, any sum due under any Business Activity Statement or any accounting or other professional fees of or incidental to the implementation of that Order or otherwise relating to the administration of the Super Fund.
Sale of the Suburb P Property
THE COURT NOTES the Order requiring the sale of the Suburb P Property is dated 27 July 2017; in the event that such sale has not been completed by the date of these Orders, then the following Orders shall apply:-
a.The wife be appointed trustee for sale of the Suburb P Property on behalf the Super Fund, being the registered owner of the Suburb P Property, with all the powers of a trustee for sale appointed pursuant to the provisions of the Conveyancing Act 1919 (NSW) together with, if not included in those powers, the powers and obligations set out in these orders;
b.The wife as Trustee shall sell the property by private treaty or public auction as she may determine, subject to the following powers to:-
i.appoint the agent and solicitor for the sale;
ii.set a sale or reserve price of $1,850,000 or more;
iii.incur reasonable advertising expenses in respect of the sale;
iv.incur reasonable expenses for cleaning, redecorating or improvement to the presentation of the property; and
v.enter into a Contract for Sale in such terms as advised by the Solicitors acting upon the sale.
c.For the purposes of these Orders, the husband must within seven days of delivery to him of any documents required for the sale of the Suburb P Property, including a Contract for Sale and Memorandum of Transfer, return such documents to the wife at the offices of her solicitors V Firm, along with any Certificate of Title or title deeds to the property currently in his possession.
d.In the event that the husband fails or neglects to re-deliver the documents referred to these Orders, the Registrar of the Family Court be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute any necessary Contract, deed or instrument to effect the said sale;
e.Upon settlement of the sale of the Suburb P Property, the proceeds will be distributed as follows:-
i.in payment of agents commission and advertising expenses and legal expenses of the sale;
ii.in payment of any costs relating to cleaning, redecorating and improvement of the presentation;
iii.in payment of the amount required if any to discharge the Factory Loan Account; and
iv.in payment of the balance then remaining to the Super Fund's Commonwealth Bank account number … 30.
Generally
Within 14 days of the date of these Orders the husband in his personal capacity or as a director of the Company will do all acts and things and sign all documents as shall be necessary to cause registration of German motor vehicle 2 registration number … to be transferred to the wife’s sole name, unencumbered.
Save as is otherwise provided in these Orders, the wife is declared the sole owner both at law and in equity of:-
a.the Suburb G property;
b.the furniture and household contents at the Suburb G property;
c.any other chattels, goods, furnishings and other property which are, as at the date of the Orders, in her possession or control;
d.any superannuation in her name or for her benefit;
e.any monies, shares and debentures in her name or for her benefit; and
f.all other property of whatsoever kind or nature presently in her possession or control.
Save as is otherwise provided in these Orders, the husband is declared the sole owner both at law and in equity of:-
a.the Company;
b.any motor vehicles registered in his sole name (other than German motor vehicle 2 referred to in the preceding Order);
c.any chattels, goods, furnishings and other property which are, as at the date of these Orders, in his possession or control;
d.any superannuation in his name or for his benefit and the Super Fund;
e.any monies, shares and debentures in his name or for his benefit as at the date of the Orders; and
f.all other property of whatsoever kind or nature presently in his possession or control.
Each party will otherwise retain any other personal liabilities, loans or debts in their name and will indemnify the other parties in relation thereof.
Within 42 from the date of this Order:-
a.if the wife has electronic copies of family photographs, she will forward such copies in electronic form to the husband (care of his solicitor) on a memory stick;
b.further the husband may nominate in writing a reputable company in the Sydney area to scan hard copies of the family photographs (at his expense),
c.upon receiving that nomination, the wife shall within 21 days deliver the family photographs (as have not been otherwise provided to the husband in electronic form) to the nominated company to enable scanned electronic copies of the photographs to be made and given to the husband; and
d.the original photographs are to be promptly returned to the wife.
IT IS REQUESTED that the wife make available to the husband for collection such items of personal chattels and possessions as are referred in the Minute of Final Order (Exhibit E16) as may be determined by the wife in her absolute discretion.
Child Support
The child support departure order made 7 December 2016 shall continue to be in effect up to and including … January 2018.
By way of departure order, the assessment of periodic child support for:-
a.C born in 2002 shall be $1,286 per calendar month until she completes her secondary education or attains the age of 18 years, whichever occurs later; and
b.B born in 2003 shall be $1,286 per calendar month until she completes her secondary education or attains the age of 18 years, whichever occurs later.
By way of non-periodic child support and without derogation from or diminution of periodic child support payments, within 28 days of the date of these orders, the husband shall pay to L School an amount required to meet all school fees outstanding or payable for the children.
By way of non-periodic child support and without derogation from or diminution of periodic child support payments, the husband shall pay:-
a.all school fees, school uniform and costs of school supplies for the children as and when they fall due;
b.such health insurance costs for the children, with such insurance to be maintained at the current level; and
c.any other reasonable health cost for the children that forms a gap between the charged amount and the insurance.
24.The payments of child support are to be paid directly in to the wife’s bank account or to the Child Support Agency, as elected by the wife and notified to the husband in writing.
Generally
IT IS REQUESTED that the Company pay to the trustee of the Super Fund all outstanding rent due to the Super Fund in respect of the Suburb P property within one (1) month of the date of these Orders.
IT IS ORDERED that in the event that the Company is unable or unwilling to pay such rent the husband is ordered to pay such sum to the trustee of the Super Fund within a further period of 14 days.
In the event that the wife does not pay to the husband the amount due to him within the time provided by these Orders, leave is granted to the husband to apply to this Court for mechanical orders for the sale of the Suburb G property to enable payment NOTING that the effect of these Orders is intended to create an equitable charge or lien over the property securing the husband’s entitlement to the property settlement orders.
The interim spousal maintenance Orders made December 2016 shall continue in force until the later of 31 January 2018 or forty two (42) days, after which date the Order shall be dismissed.
The wife’s application for lump sum spousal maintenance is dismissed.
All extant applications, other than any applications for costs, are dismissed.
Any costs application/s shall be made in accordance with the Family Law Rules 2004 (Cth) and IT IS NOTED that the parties may apply for the other party to contribute greater or lesser sums towards the costs paid or payable to the Independent Children’s Lawyer.
At the end of the appeal period all subpoenaed documents be returned to the persons or institutions from which they emanated and all other exhibits are returned to the person or persons who tendered the same.
IT IS NOTED
These financial Orders shall not be perfected for a period of 28 days after delivery of the reasons upon which they are based.
Leave is given for the parties to apply for any mechanical orders or amendments to amounts if there are mathematical or arithmetical errors discovered in the reasons within that period; such as would otherwise necessitate an application under the slip rule.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage senior counsel and counsel to attend.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Foley & Foley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| CORRIGENDUM FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: SYC 3203 of 2016
| Ms Foley |
Applicant
And
| Mr Foley |
Respondent
And
Independent Children’s Lawyer
JUDGE: Benjamin J
DATE OF JUDGMENT: 21 December 2017
WHERE MADE: Hobart
CORRIGENDUM: 15 February 2018
On page 62, paragraph 317 of the Reasons for Judgment delete the sum of $1,104,556 and insert the sum of $1,074,398.
On page 63, paragraph 317 of the Reasons for Judgment delete the sum of $2,625 and insert the sum of $0.
On page 63, paragraph 317 of the Reasons for Judgment delete the sum of $0 in relation to the S Shares and insert the sum of $2,337.
On page 64, paragraph 317 of the Reasons for Judgment delete the sum of $7,776,081 and insert the sum of $7,745,635.
On page 82, paragraph 433 of the Reasons for Judgment delete the sum of $4,799,618 and insert the sum of $4,779,828.
On page 83, paragraph 433 of the Reasons for Judgment delete the sum of ($393,591) and insert the sum of $338,381.
On page 83, paragraph 433 of the Reasons for Judgment delete the sum of $4,799,618 and insert the sum of $4,779,828.
On page 83, paragraph 433 of the Reasons for Judgment the German motor vehicle 1 Reg: … (or sale proceeds) in the sum of $75,000 needs to be deleted from the assets of the wife.
On page 83, paragraph 434 of the Reasons for Judgment delete the sum of $2,584,409 and insert the sum of $2,573,753.
On page 83, paragraph 434 of the Reasons for Judgment delete the sum of $1,104,556 and insert the sum of $1,074,398.
On page 83, paragraph 434 of the Reasons for Judgment the the German motor vehicle 1 Reg: … (or sale proceeds) in the sum of $75,000 needs to be included as an asset of the husband.
On page 84, paragraph 434 of the Reasons for Judgment delete the sum of $2,625 and insert the sum of $0.
On page 84, paragraph 434 of the Reasons for Judgment the S Shares in the sum of $2,337 need to be included as an asset of the husband.
On page 84, paragraph 434 of the Reasons for Judgment delete the sum of $393,591 and insert the sum of $338,381.
On page 84, paragraph 434 of the Reasons for Judgment delete the sum of $2,584,409 and insert the sum of $2,573,753.
In these proceedings the above reasons were delivered on 21 December 2017. Given the relatively complex nature of the Property Orders the Court gave leave to the parties to apply for any mechanical orders or amendments if there were mathematical or arithmetical orders discovered in the reasons (and impliedly the unperfected orders) within that period; such as would otherwise necessitate an application under the Slip Rule.
By letter dated 3 January 2018 the solicitors for the applicant wife made submissions to the Court pursuant to the leave. By email dated 10 January 2018 the solicitor for the husband responded to those submissions and made submissions in relation to some other matters. By letter dated 16 January 2018 the solicitor for the wife responded to the husband’s submissions of 10 January 2018. By email dated 19 January 2018 the solicitor for the husband replied to the submissions made by the wife’s solicitors on 16 January 2018.
It is in that context that the court addresses those mechanical and/or arithmetical issues.
German motor vehicle 1
The wife submitted that this vehicle has been incorrectly included in the assets retained by her and ought to be an asset of the husband. This was conceded by the husband. Accordingly, an arithmetical correction will reduce the amount payable by the wife to the husband by $75,000. The value of the German motor vehicle 1 is removed from the list of the wife’s property in paragraph 433 and included in the husband’s property at paragraph 434.
R Shares
I included these shares as an asset of the husband with a value of $2,625. This was a slip, as was agreed by the parties. I have reduced the value to nil as to the R shares and deleted it from the husband’s property at paragraph 434.
Payment of Factory Loan Account
The parties’ superannuation fund was the beneficial owner of a property at Suburb P. I had proposed Orders to ensure that a debt arising from the purchase of that property was secured and money due to the fund was reimbursed by the parties. The husband or his ‘alter ego’ owed rent to the fund. The wife wanted a change in priority of payments regarding that outstanding rent. This was not a mechanical type order but a substantive order. I did not make that change.
The wife asserted that Order 3(b) would not be required. In his response of 10 January 2017 the husband asserted that the sale of the Suburb P property is expected to occur in January 2018 and it is unnecessary to alter the order in the manner suggested by the wife’s solicitors. In her response to that submission on 16 January 2018 the wife said she maintained her submissions in the letter of 3 January 2017. Settlement of the sale of the Suburb P property had not yet been completed.
I see no arithmetical or mathematical issue or slip arising in relation to the sale of the Suburb P property and the change sought is more than mere mechanical or a slip. As such, I do not intend to change those unperfected orders.
Order 4
The wife and husband both submitted that Order 4 set out in the reasons was now unnecessary. Consequently, I have deleted it.
Various minor changes
In relation to the wife’s suggested amendments to orders 8, 21 and 28 there appears to be no opposition to them. They are clear typographical errors and in regard to Order 28, a slip, which both parties agreed upon.
Short continuation of interim maintenance order
Order 29 provides a short extension of the interim maintenance Order. The wife said that this should continue the existing spousal maintenance until 42 days after the Orders were perfected, as it was anticipated that the wife’s election regarding the Suburb G property would expire forty two days after the orders were made. At that time thought to be 42 days after 21 December 2017, but given the delay with these mechanical arguments, these Orders will now be dated mid-February 2018. The intent of the reasons were that the maintenance continue for that period of time, as such I have amended order 29, which is a mechanical provision given the time it has taken for the submissions to be made
Wife’s s 106A application
The wife seeks an order under s 106A of the Act. Given that I had not determined to do so in the substantive reasons, I do not propose to make such an order or enable a party to revisit the contention.
German motor vehicle 2
This is the other German motor vehicle, which was sought by the wife. In his submissions of 10 January 2018 the solicitor for the husband noted that the husband was required to transfer the German motor vehicle 2 (as distinct from the German motor vehicle 1) to the wife. In that context he sought a reduction in the value of the asset of the company to the extent of $30,158.[1]
[1] Value attributed to this car by the single expert, Mr Z – page 47 of 74 of his affidavit and page 29 of his annexed report.
In her response of 16 January 2018 the wife submitted as follows:-
We accept that the [German motor vehicle 2] is included within the value of the Company as at the sum of $30,158. However on the husband’s evidence at trial the vehicle was not roadworthy and required to significant repairs (the husband’s affidavit sworn and filed 3 November 2017).
The wife no longer presses Order 5 which sees her retain it.
I do not accept that submission. The wife sought that car in her summary of argument. I do not permit the re-agitation of that issue.
The remaining question for me is whether I reduce the value of the Company in the sum of $30,158. Given that the vehicle was valued at that sum in the value of the business and that the wife sought the car I accept that the value of the Company should be reduced by $30,158.
The boat and trailer
In his 10 January 2018 submissions the husband contended that the court ‘has found that the new boat and trailer were purchased using company funds’ (see footnote 66 on page 63). The husband therefore contends that he has a corresponding personal liability to the Company for funds advanced ($68,210). In response to this submission the wife contended that the husband’s submissions should be rejected as there was no evidence before the court to support it. Further, the value of the Company was determined to be struck at 30 June 2016 as per the report of Mr Z which pre-dated the boat’s purchase. The husband purchased the boat in 2017 financial year noting the payments were described in the wife’s comments at item 21 of the joint balance sheet.
In response to that submission the husband maintained his earlier submission. I accept and adopt the submissions of the wife and I do not intend to make any changes to that part of the judgment or the reasons.
Golf Clubs and fishing equipment
In his submissions of 10 January 2018 the husband asserted that I should ascribe the value of $1,000 to the husband’s golf clubs and fishing equipment and I had included that property as that retained by the husband. The amount of $1,000 was the figure asserted by the husband. The husband went on to say that Orders 16(b), (c) and 20 effectively allow the wife to retain the husband’s golf clubs and fishing equipment currently in her possession.
In response to that submission the wife said, on 16 January 2018:-
With respect to the husband’s golf clubs and fishing equipment the wife asserts that those are in the husband’s possession and were properly treated in the reasons for judgment as items being retained by the husband. They are disclosed (along with the boats in his possession) at paragraph 43 of the husband’s financial statement sworn 18 September 2017.
This argument seems to be a matter of substance rather than mechanical nature. As such I do not intend to make the change sought by the husband.
Comment on costs
In his 10 January 2018 submissions the husband made contentions in respect of paragraph 45 in my reasons regarding costs. In her response of 16 January 2018 the wife objected to the attempt to adduce fresh evidence regarding the legal costs. In his reply the husband made detailed submissions on 19 January 2018 with regard to costs.
That argument is beyond that of a mechanical or arithmetical nature and I do not intend to allow this. As such, no change will be made in that respect.
S Shares
In her reply of 16 January 2018 the wife asserted that the Court ought to include the value of S shares at $2,337 rather than nil. This was because the husband had asserted that value in the joint balance sheet. It is clear that there is a slip in relation to the S shares as the husband had agreed their value of $2,337. I will include that in the pool of assets and as an asset of the husband.
As such and given the reasons outlined above, I have adjusted the pool of property and the amount payable by the wife.
Associate:
Date: 15 February 2018
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: SYC 3203 of 2016
| Ms Foley |
Applicant
And
| Mr Foley |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
INTRODUCTION
Ms Foley (‘the wife’) and Mr Foley (‘the husband’) are the parents of three children aged 17, 15 and 14. The marriage of these parents failed in 2016 and they are now engaged in bitter and adversarial court proceedings about parenting arrangements for their children, the value and division of their property, child support and spousal maintenance.
As to their children, the wife says that the husband has inflicted long-term family violence on her and on the children, particularly their younger child. She asserts that the children are seriously impacted by this violence and they should not be required to spend any time with their father (the husband) nor should they be required to communicate with him. The husband denies the violence and says that he had a loving and close relationship with the children and this soured in the context of the parties’ acrimonious separation. He claims the wife has overreacted and has influenced the children against him.
As to property, the husband says that his business is struggling and that he has been a greater contributor to the wealth of the parties than has the wife. He claims that his future needs are greater than those of the wife. As such, he claims a larger share of the pool of property than the wife.
The wife says that overall her contributions to the parties’ property was greater than that of the husband and that her future needs are greater than are his. She says the husband has run down his business while focusing on his new partner and her children. The wife seeks higher levels of child support than the administrative levels and lump sum spousal maintenance.
It is in this toxic environment that the Family Court has been asked to determine outcomes on these contentious issues.
The parties separated in April 2016. Their conflict has been high-level and each of the parties has engaged solicitors and barristers, including senior counsel, to represent them.
The three children of the parties’ relationship are:-
· B (the ‘eldest child’) who is aged 17 and who turns 18 in mid-January 2018;
· C (the ‘middle child’) aged 15; and
· D (the ‘younger child’) aged 14.
In these reasons the Court will refer to the middle child and younger child as ‘the children’. Given the proximity of the elder child’s 18th birthday and her strong views that she does not want to see the husband, this Court indicated to the parties that it would not entertain any applications to make parenting orders about her. In this particular case any such orders, if made, would only operate for about one month.
There has been no delay in this proceeding being heard. The parties separated in April 2016 and proceedings commenced soon afterwards. This Court was concerned about the impact of the parents’ conflict and circumstances upon the children, particularly the younger child. In addition the husband runs a business that was likely to be undermined by delay. Finally, such was the conflict between the parties the Court was concerned that to leave them in the list would expose them to unacceptably high legal costs.
The wife seeks orders[2] that she have sole parental responsibility for the children, that the children live with her and only communicate and/or spend time with the husband in accordance with the children’s wishes.
[2] Applicant wife’s case outline annexure A – Exhibit E15.
The wife seeks orders that she keeps the husband informed as to any significant health issue and in relation to the children’s address and school. In addition, she seeks orders that the husband be permitted to obtain information from the school and obtain school photographs in relation to the children.
As part of her case the wife seeks orders that each party be restrained from denigrating or criticising the other parent or discussing these proceedings with the children, showing the children copies of documents filed in these proceedings and/or physically disciplining or verbally denigrating the children. In addition she seeks an injunction that the husband does not attend any school or extra-curricular function except in accordance with a prior written invitation in advance from the wife.
The wife contends that her orders should not prevent the husband from contacting the children’s school to ascertain information as he reasonably requests about the children’s school progress.
The wife seeks an order that the husband be permitted to send gifts, cards and letters to the children. The wife seeks orders that the husband be restrained from communicating with the children electronically.
Finally, the wife seeks permission to travel overseas on holidays with the children and obtain passports for them.
The husband seeks orders that he and the wife have equal shared parental responsibility for the children and that the children live with the wife. He seeks orders that there be counselling for the children as recommended by Dr E with the view to reintroducing the children to the husband. He then seeks orders that the children spend time with him as set out in his minute of final orders.[3]
[3] Exhibit E16.
Similar to the wife, the husband seeks orders that the parties be restrained from criticising or denigrating the other parent in the presence of the children, discussing the proceedings with them or showing any documents to them. He seeks similar orders in relation to information regarding the change of the children’s address and school and that he be permitted to obtain material from the school. The husband seeks permission to attend school for parent/teacher interviews and attend on the school to attain information about the children’s progress.
He seeks orders, similar to that of the wife, that he be able to send cards, gifts and letters to the children. He joins with the wife in terms of permitting her to take the children outside Australia for holidays provided the he has reasonable notice and a similar order that he be permitted to take the children outside Australia on holidays.
Unsurprisingly, given the age of the children and the level of parental conflict, an Independent Children’s Lawyer was appointed. The Independent Children’s Lawyer, in final submissions, submitted in essence that the following parenting orders should be made:-
(a)the wife shall have sole parental responsibility for the children;
(b)the children live with the wife, such order to be by consent;
(c)the middle child spend time and communicate with the husband in accordance with her wishes;
(d)the younger child spend time and communicate with the husband in accordance with the joint recommendation of her treating psychiatrist and therapist;
(e)the parties notify each other about any serious illness or injury occurring to the children together with details of health providers and the like;
(f)that the parties be restrained from:-
(i)criticising or denigrating the other parent and the like;
(ii)showing documents to the children, or discussing the proceedings with the children or with another person in the presence or hearing of the children; and
(iii)physically disciplining and/or verbally denigrating the children;
(g)the wife be required to inform the husband of any change to the children's residential address or school;
(h)the husband be permitted to obtain copies of the children’s school reports, school newsletters, photograph order forms and other relevant school information from the school;
(i)except with the prior written invitation of the wife, the husband be restrained from attending at the school or extra-curricular activities of the children. Noting that nothing in the orders prevents the husband from contacting the children’s school to ascertain information as he reasonably requests about the children’s progress,
(j)the husband be permitted to send gifts, letters and cards to children, but given the next order this presumably meant the middle child in terms of letters and cards, care of the wife and that the wife will do all acts and things to facilitate the children receiving the items unopened and intact;
(k)the husband be permitted to send letters and cards to the younger child via her therapist and/or psychiatrist and the contents of such letters and cards be communicated to that child at their discretion;
(l)the wife ensure that the younger attends upon a therapist;
(m)the husband be restrained from communicating with the children; and
(n)the husband attend upon a psychologist for anger management.
In addition the Independent Children’s Lawyer sought an order that the parties equally contribute to the legal costs of the Independent Children’s Lawyer, which amounts to a total of $13,931. The Independent Children’s Lawyer noted that the wife had already paid $1,650. Accordingly, the parties would each pay $6,965.50 with the wife to have credit for the $1,650, which she has already paid, making a total payable by her of $5,315.50. The Independent Children’s Lawyer sought payment of those costs within 30 days, however, with the nature of the property orders I intend to allow the parties three months to pay those costs. Given the approach of the parties this cost order is made by consent.
However, these orders do not derogate from the Court’s power to order any adjustment of such costs, as between the parties, in the event that there is or are applications for costs made by one or other of the parties.
BACKGROUND
The husband was born in 1964 and at the date of the hearing was aged 52. The husband is a company director and manages a business. The husband undertook training in a trade, which he completed in about 1986.
In 1987/1988 the husband formed a company. That business went into liquidation in 1990 and shortly after that time the husband formed another company called F Pty Ltd (‘the Company’), which was operating at about the time he met the wife.
The wife was born in 1968 and at the time of the hearing were aged 48.
The parties met in 1993 and commenced their relationship in about May 1994. I accept and prefer the wife’s evidence in that respect.
When the parties commenced their relationship in about 1994 the wife became involved in the administration of the Company. She continued that role until shortly after the parties’ separation in April 2016. The wife gave evidence that she worked extensively in the Company both at home and at the business premises over the years of the parties’ relationship, short engagement and then marriage. I accept the wife worked significant hours in the Company generally 30 to 40 hours per week and often at times of audit or around tax time or when there was particular work in place up to 50 or more hours per week.
The wife started work in about 1994, but began working regularly in about 1996.
The wife completed a Diploma in 1989.
It is not an issue that the husband was a hard worker and has worked at that level for the whole of the parties’ relationship.
In October 1994 the wife was involved in a car accident and subsequently received a payout of about $23,000 in December 1996.
The parties became engaged to be married in May 1998 and subsequently married later that year.
The wife has since separation formed another romantic relationship, but she does not live with this person and he does not stay overnight at the family home. The wife and her friend do not provide financially for each other apart from occasionally buying a dinner and on one occasion they had a holiday together for which the wife paid. The wife has no plans to marry this person, at this stage.
Any statement of fact in these proceedings are to be regarded as a finding of fact unless the contrary is clear from the context of the statement.
THE LAW REGARDING PARENTING
The provisions of the Family Law Act 1975 (Cth) (‘the Act’) that deals with children is set out in Part VII in particular s 60B articulates the objects and the principles underlying them as follows:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
A statutory presumption, albeit a rebuttable presumption, is created by s 61DA(1) of the Act. It sets out that ‘it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child’. The presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family, or that other person’s family, or family violence. The section also provides that the presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the best interests of the child.
The terminology of the section is thus that the court is to presume that it is in the best interests of the child for his/her parents to have equal shared parental responsibility unless the court is satisfied that it would not be in the in the child’s best interest for the parents to have equal shared parental responsibility.
If an order is made providing that a child’s parents have equal shared parental responsibility, either pursuant to the presumption or otherwise:-
(a)Section 65DAA(1) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend equal time with each of the parents, provided such arrangement is reasonably practicable, and if not;
(b)Section 65DAA(2) of the Act obliges the Court consider, in the context of the child’s best interest, making an order or provision in an order for the child to spend substantial and significant time with each of the parents, provided such arrangement is reasonably practicable.
(c)In the context of these determinations, s 65DAA(3) sets out some parameters in considering the term ‘substantial and significant time’ and s 65DAA(5) sets out the factors which a court must consider when determining the question of ‘reasonably practicality’.
The next step in the statutory path is contained in s 60CA, which provides that in deciding whether to make a particular parenting order the Court must regard the best interests of the child as the paramount consideration and consequently in determining the child’s best interests the court must consider the matters set out in s 60CC.
In Mauldera & Orbel (2014) FLC 93-602 the Full Court discussed the relationship between the objects contained in s 60B and the factors which must be considered in s 60CC, concluding that the objects are able to be used to aid in the construction of words of the legislation, but cannot be used to undermine the plain and unambiguous requirement to consider the factors contained in s 60CC to determine the child’s best interests. The section relevantly provides:-
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
(2)The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
(3)Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
I will endeavour to apply the facts to the law.
THE EVIDENCE
Documents relied upon
The wife relied upon the following documents:-
(a)her further amended application filed 14 September 2017;
(b)her affidavit filed 10 July 2017 (‘the wife’s trail affidavit’);
(c)her financial statement filed 11 July 2017;
(d)her affidavit sworn 3 November 2017 and filed in court on 6 November 2017 (‘the November affidavit’);
(e)the affidavit of Mr M as to the value of the parties’ property at Suburb G – the value was agreed at $4,250,000; and
(f)An affidavit of Mr Z, a single expert forensic accountant. This affidavit included this expert’s report dated 5 September 2017 valuing the Company and the parties’ self-managed superannuation fund. The value of the Company was the subject of controversy and the value of the parties’ respective interests in the self-managed superannuation fund was agreed and was consequently, not in issue.
Tendered in evidence in support of the her case were the following:-
Exhibit E15: wife’s case outline containing the orders the wife sought and a draft balance sheet. I indicated to counsel that the document was not evidence of the facts contained in there, although where those facts were consistent with the husband’s case outline I would treat those as agreed facts;
Exhibit E17: wife’s tender bundle of documents;
Exhibit E19: wife’s costs letter. The wife’s fees paid to date are $127,482.60 plus disbursements of $25,409.31. She has unpaid fees and disbursements of $157,518.79. In addition there are unbilled fees and disbursements of $321,529.92 and expert fees of $24,337.50. These will have increased to about $600,000 by the conclusion of the hearing. The wife will likewise have the Legal Aid fees for the Independent Children's Lawyer. As such her fees will be at least $760,000; neither the wife nor the husband should have seriously incurred costs at anywhere near these levels.
Exhibit E20: wife’s second bundle of documents containing a 1996 St George deposit record of $15,000 (which I accept was the proceeds of a loan on a Japanese motor vehicle), a St George Bank Account Statement dated 12 July 1998, financial statements from the Company from years 1997 and 1998, and a wedding presents list showing gifts from various people;
Exhibit E23: a settlement sheet showing the detail of the proceeds of sale of Q Street, Suburb Y (‘the Suburb Y property’) dated 15 September 2017.
Exhibit E26: a copy of a Land Title transfer providing details of the purchase of a property by the husband and another person in April 1994 for $130,000 and mortgage to the Commonwealth Bank for a sum of $200,000.
Exhibit E35: a letter to the wife from O Corporation dated 29 June 1998;
Exhibit E36: a copy of a lease between the parties’ self-managed superannuation fund and the Company for the period June 2011 to June 2016.
Exhibit E37: a copy of nine bank statements from T Bank in Country U in the husband’s name showing transactions from May 2016 to January 2017;
Exhibit E41: wife’s evidence as to the $27,161 in her bank accounts as at 14 September 2017;
Exhibit E42: Superannuation Fund 1 Statement as at 30 June 2016 showing the husband’s benefit summary as being an immediate lump sum benefit (after debts) of $3,369.13 and a deferred retirement benefit of $76,160.17;
Exhibit E43: a Superannuation Information Form for the husband showing that he commenced service and membership in January 1983 and that as at 15 June 2017 he had an unrestricted non-preserved benefit of $3,641.81; an interest by way of a defined benefit in the growth phase valued at $68,739.88 with Superannuation Fund 1;
Exhibit E44: a joint balance sheet as at 6 November 2017;
Exhibit E46: the wife’s final ‘Summary of Argument’ by Mr W SC and Mr DD dated 6 November 2017; and
Exhibit E48: annexed to the wife’s final summary of argument was a document containing the minute of orders she was seeking as at 6 November 2017. It was to be part of Exhibit E46, however, as a matter of convenience to me in writing these reasons, I have treated it as an separate exhibit.
The husband relied upon the following documents:-
(a)his response to an application initiating proceedings filed 15 August 2016;
(b)his affidavit filed 28 July 2017 (‘the husband’s trial affidavit’);
(c)paragraphs 8, 9, 10, 11, 12, 13, 16 and 28 of his affidavit sworn 29 August 2016 and filed 6 September 2016 (‘husband’s August 2016 affidavit’);
(d)his affidavit filed 15 September 2017, in relation to the expert report of Mr Z (the ‘Z reply affidavit’);
(e)his affidavit filed 18 September 2017 (‘affidavit in reply’ to the wife’s affidavit filed 10 July 2017);
(f)his statement of financial circumstances filed 18 September 2017;
(g)his affidavit filed 6 November 2017, annexing documents to which I have had regard. Paragraphs 2 and 3 of that affidavit were struck out;
(h)affidavit of his solicitor, Mr EE, filed 15 September 2017 and which annexes a Transcript of Proceedings of the evidence before a Magistrate at the Local Court in May 2017;
(i)affidavit of his mother, Ms HH, filed 28 July 2017;
(j)affidavit of his sister, Ms KK, filed 28 July 2017;
(k)affidavit of Ms LL filed 28 July 2017;
(l)affidavit of Mr QQ filed 15 September 2017 as to properties sold in the Suburb G area. This affidavit was of no value in terms of the agreed value of the parties’ home at H Street, Suburb G (‘the Suburb G property’). As to the availability of other properties in the area, it provided purported details of 11 home sales in the Suburb G area from as early as June 2006 to as late as August 2017. There was no context provided for this information and no sign of any expertise applied. There was no evidence of Mr QQ’s qualifications apart from the bland statement that he was a ‘Real Estate Agent’. It was a waste of time and served no forensic purpose; and
(m)affidavit of Mr UU, the single expert as to the value of the Suburb G property, the value was agreed at $4,250,000.
The husband tendered in evidence:-
Exhibit E14: his case outline prepared by Mr AA SC and Mr BB dated 14 September 2017. I indicated to counsel that the document was not evidence of the facts contained in there, although where those facts were consistent with the wife’s case outline, I would treat those as agreed facts;
Exhibit H16: his proposed minute of orders;
Exhibit E18: his written objections in relation to the wife’s trial affidavit;
Exhibit E21: a print out of the business cheque account of the Company from July 2011;
Exhibit E27: reports from Mr N, psychologist, dated 9 June 2017, 29 August 2016 and his clinical notes. I was taken to those notes by the Independent Children's Lawyer, and I had regard to them;
Exhibit E30: a costs letter from the husband’s lawyer. The husband has paid $102,746 in costs and $59,520 is disbursements. He has unpaid fees of $17,820 and unbilled fees and disbursements of $55,000. He will need to pay Legal Aid $6,500. The costs letter says that unpaid fees will amount to $259,937 and the end of the hearing. It is not clear whether this includes the unbilled and outstanding fees and disbursements. If so then the amount expended on this litigation by the husband is about $428,703. It could be as high as about $500,000. Neither the wife nor the husband should have seriously incurred costs at anywhere near these levels. The levels of costs for each of the parties are obscene;
Exhibit E31: invoices from Company GG for bookkeeping services;
Exhibit E32: American Express Card transaction reports;
Exhibit E38: a bundle of text messages between the husband and the younger child over October 2017;
Exhibit E39: a bundle of documents tendered by the husband in relation to his assertions as to the value of personal property; and
Exhibit E47: the husband’s outline of submissions prepared by Mr AA QC and Mr BB dated 6 November 2017.
The Independent Children’s Lawyer relied upon:-
Exhibit E13: the case outline of the Independent Children's Lawyer. I indicated to counsel that the document was not evidence of the facts contained in there, although where those facts were consistent with the parties’ respective cases, I would treat those as agreed facts;
Exhibit E22: the tagged part of the medical records of Dr NN;
Exhibit E24: a report about the younger child by her treating psychiatrist, Dr RR, dated 18 September 2017;
Exhibit E25: seven pages of copy report from Dr TT headed ‘GP Mental Health Plan’ for the husband dated 6 May 2015;
Exhibit E28 the report of the single expert of Dr E dated 17 October 2016;
Exhibit E29: Pages tagged by the Independent Children's Lawyer in documents produced by the JJ Group. These evidence complaints by the children shortly after separation about violence committed on them by the husband and their unwillingness to see him;
Exhibit E40: the Curriculum vitae of Dr RR; and
-Exhibit E45: the final parenting orders sought by the Independent Children’s Lawyer.
In addition there were other documents that the Court sought to have before it, namely the copy spreadsheet of the valuation of the Company for the years 2012 to 2015, Exhibit E33. A similar spreadsheet with the values for 2016 and 2017, Exhibit E34.
The wife
The wife gave evidence in terms of the wife’s trial affidavit, her financial statement filed 11 July 2017 and the November affidavit.
In the November affidavit the wife provided evidence of electronic communication between the husband and the children after they were excluded from an Apprehended Violence Order in June 2017, in particular an episode of self-harm by the younger child in late October 2017. Given the comments about the quality of the wife’s evidence and that of the husband, I accept the reliability of her evidence in the November affidavit.
In relation to her current circumstances, the wife said she had a German motor vehicle which was no longer road worthy and needed repairs, and had the use of the eldest child’s motor vehicle.
The wife was cross-examined by senior counsel for the husband for a significant part of days one and two of the hearing. It was generally put to the wife that her allegations of violence perpetrated by the husband against her and the children were untrue. The wife confirmed her evidence in that regard. For the purpose of this hearing I did not require that each allegation be put to the wife, or for that matter the husband, where it had been denied or generally denied by the husband. I treated those allegations as being in issue.
The wife asserted that she was assaulted on many occasions prior to the parties’ marriage, although not during the short period of time of about four or five months when they were engaged. She was assaulted soon after the marriage, including after her honeymoon.
The wife said that the assaults continued until 2004 when they became less regular in terms of closed fists and from that time the violence tended to be in the nature of pushing her or verbally abusing her.
Against her interest the wife acknowledged that during arguments with the husband they sometimes had screaming matches and that she sometimes, albeit rarely, swore at the husband.
The wife conceded that she was not a public officer in the Company when it was set up, although she was involved in working for the Company particularly after 1996.
The wife was cross-examined in respect of her initial contributions. Given the quality of her evidence, much of which was supported by documents, and given my concerns about the reliability of the husband’s evidence, I accept that the wife made equal contributions at the time the parties commenced their relationship in about 1994 and over the years that followed. I accept:-
(a)the wife provided significant support for the Company from 1994 onwards;
(b)from 1996 the wife commenced working exclusively as a book keeper, administrator and general hand for the Company. This continued throughout the relationship up to the time of separation;
(c)in 1996 the parties purchased a property at FF Street, Suburb MM (‘Suburb MM’) and I accept that the wife contributed $105,000 towards the purchase of that property. The wife provided cogent and historical evidence supporting this contention. The husband contributed about the same amount, not the exaggerated sum of $200,000 which he alleged; and
(d)I accept the wife’s evidence as to the husband’s tax debt as at the date of marriage, the contributions from her parents toward the wedding and reception, and the evidence of the gifts of money primarily from the wife’s family.[4]
[4] Exhibit E20.
The wife confirmed her evidence in her trial affidavit[5] that the business operated from Suburb MM and while the parties did not cohabitate the wife worked in the business from home at the Suburb MM property from about 2000 to 2004.
[5] Paragraph 31.
The wife gave evidence about the acquisition of the investment property in May 2001 at Suburb PP (‘the Suburb PP property’).[6]
[6] Paragraph 34.
Her evidence was that of a couple who were both working very hard to acquire assets and build the Company. In addition the wife had the primary care of the children although the husband, from time to time, assisted.
The Suburb MM property was sold in 2004 for $1,750,000.
The wife acknowledged that the husband was a hardworking man and has worked on the properties that the parties have owned including the Suburb PP, Suburb MM, and Suburb SS properties and in terms of the building of the parties’ home at Suburb G.
The home at the Suburb G property was re-built into a large home of approximately 400sqm. The wife’s evidence is, and I accept, that they each worked at their own levels in the renovation of properties and the building and organisation of the home at the Suburb G property.
Through their superannuation fund, the parties purchased a property at J Street, Suburb P (‘the Suburb P property’)and I accept the evidence of the wife as to her contributions and those of the members of her family. The wife was criticised because she did not call the evidence from her father.[7] I accept that this evidence was not called and I could infer that it would not assist the wife. However, given the high quality of the evidence of the wife and the problematic evidence of the husband it is open for me to prefer her evidence and, I do so.
[7] Husband’s outline of submissions – Exhibit 47- paragraphs 25 and 36.
Further, these are family proceeding and parties ought not to be required or encouraged by legal niceties to chase every rabbit down every hole. As it is, these parties in the context of this terrible dispute ought not to be forced to dissipate their wealth accumulated over their lifetimes in disproportionate overspends. These parties have spent well over one million dollars on this litigation. Words fail me as I try grasping that cost to this family. It is a waste. Once this decision is delivered and the orders are made, perhaps the parties or one or other of them should invite this Court to examine the costs incurred and the reasons for that terrible cost.
I accept the evidence that the wife said that she worked in the Company generally from 9.00am until 3.00pm on weekdays, worked additional hours at the end of each month and at the end of year, and at times when they had issues such as audits. I accept that the wife worked at least 30 hours per week in the Company and sometimes longer hours up to 50 hours per week.
As at February/March 2016 the parties were paid about $10,000 per month from the business, which was a scheduled transfer. That decreased in April 2016, prior to separation, given the reduction in turnover of the Company. This reduced to about $5,000 per month per party. It was submitted by senior counsel for the husband that the wife was grossly overpaid. I reject that assertion and accept the evidence of the wife that they both worked hard in their various roles and the division of their income was a consensual arrangement between the parties.
Part of the reason for reducing their drawings was the increase in their credit card from a trip in early 2015 or early 2016. The other was a reduction in the turnover of the Company.
The wife conceded that a client of the Company went into liquidation in 2016, creating a significant loss of turnover. The wife has not been employed in the Company since shortly after separation in April 2017.
I accept the evidence of the wife that the parties’ marriage had been in trouble for some time. The wife agreed that in March 2015 the husband discussed the need for marriage counselling and they saw Ms JJ. The wife conceded that the husband had complained that she had engaged in angry outbursts.
In respect of that event the wife was cross-examined extensively by senior counsel for the husband. The wife conceded that as to paragraph 198 of her trial affidavit the husband may not have said the precise words attributed to him. However, she otherwise adhered to her evidence.
The parties’ marriage was failing and the parties had arranged to have a dinner on 28 April 2016. The wife’s evidence is that she and the husband were going to talk about separation the next day. There was to be a final family dinner that night with the children.
The children have struggled with anxiety and depression and were not well. This was a difficult day, particularly with the younger child. When the parties met on 28 April 2016 there was a discussion between the parents about a property settlement which became very hostile. On balance, for the reasons I set out earlier, I prefer the evidence of the wife.
During that encounter the husband went to the main bedroom to collect his belongings. I accept the evidence of the wife that about five minutes later, she went into the room and saw the husband in a cupboard or wardrobe holding a ‘shot gun’ case. It is not in issue that a gun was not produced, however, the case in which this rifle was contained was held by the husband.
Given the husband’s anger and the nature of the communication the wife became frightened and left the home. I accept that there was great fear, anger and animosity between the parties at that time. On balance I am satisfied that the husband was angry, aggressive and threatening to the wife and consequently to the children.
Such was the wife’s fear that she left the home with the children and did not turn off the stove or a hotplate.
The wife eventually reported the matter to the police and the police located a 22 rifle and rounds of ammunition at the home. The husband was arrested and charged with a fire arm related offences and intimidation of the wife and children. A provisional apprehended violence order was made and that order became an Apprehended Violence Order by the Local Court.
The wife provided a statement to the police.[8] The husband pleaded guilty to the fire arms offences and he defended the intimidation/stalk charges and the Apprehended Violence Order.
[8] Wife’s trial affidavit, paragraph 203 pages 409 to 414.
The proceedings were heard over 9 May 2017 and 19 June 2017. The wife was called as a witness in those proceedings and was aggressively cross examined by Mr BB, the husband’s counsel. The Transcript of those proceedings was in evidence before me.[9]
[9] Annexure A of the affidavit of [Mr EE] filed 15 September 2017.
The Magistrate found the offences of possession of an unregistered firearm and not keeping a firearm safely proven. The husband was discharged without conviction under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) provided that he enter into a bond to be of good behaviour for two years.
In relation to the charges of possessing ammunition without holding a licence permit and in relation to possessing an unauthorised firearm, the Magistrate deemed it as inexpedient to inflict any punishment and provided for a bond of 12 months in relation to the first of those offences and two years in relation to the second offence.
The Magistrate made a Family Violence Order against the husband for a period of six months from May 2017, which did not include the children.
In relation to the intimidation charge the learned Magistrate was not satisfied beyond reasonable doubt that the husband intended to cause intimidation or fear. The Magistrate observed:-[10]
In relation to the circumstances the defendant and the alleged victim at the time of the allegations were separated and had been married for approximately 18 years and had three children I think at the time 16, 13 and 12, and the defendant came back as it relates to an invitation I recall from the victim, which is fine, to have dinner, to work out some issues, there was some argument the alleged victim said concerning property and the children that she says in her evidence enraged the defendant. And of course he made various threats including using offensive language in her presence when making those threats of course which he denies.
Having regard to assessment of this matter I accept the submissions made by Sergeant and [Mr BB] that the prosecution have failed to prove that when the defendant reached the shelf to obtain a boxed firearm which had been on the property during their marriage left there and at the time of course she’d asked him to come over for dinner, of course which I can infer that she had no fear as it relates to the presence of the firearm on the premises, they were of course for the purposes of this matter the prosecution is not required to prove that she has been intimidated, actually feared physical or mental harm. She said she did and of a grave nature.
But the prosecution failed to prove beyond reasonable doubt that the defendant by his actions intended to cause that particular response. I THEREFORE DISMISS THE CAN.[11] Thank you sergeant, thank you [Mr BB].
[10] Transcript of Proceedings Monday 19 June 2017, page 71 lines 43 to 50 and page 72 lines 1 to 16.
[11] A crime under the Crimes (Domestic and Personal) Violence Act 2007 (NSW).
As such the criminal proceedings were dismissed.
As the learned Magistrate observed the criminal standard is greater than the civil standard.
As submitted on behalf of the husband, I have considered the evidence given by the wife in the police case in the Local Court in assessment of her evidence in these proceedings.
I have considered the evidence by the wife of a history of family violence. I have considered the evidence from the children in the context of their emotional and psychological state.
I have considered the denials of the husband in this Court and in the Local Court proceedings.
On balance, and having regard to s 140(2)(c) of the Evidence Act 1995 (Cth) about findings of this importance, I accept the evidence of the wife as to violence inflicted on her and the children over the period of time the parties lived together and before. I reject the submission that the evidence was fabricated and/or exaggerated.
On 28 April 2016 the husband was anxious to achieve a settlement of property between him and the wife. He knew, and she did not know, that he had committed himself and his life to another person and relationship. I am satisfied, on the civil standard, that in keeping with his previous violent behaviour, he was intent on bullying and intimidating the wife into a settlement which he desired.
The display of the gun case to the wife was intended by him to end the argument and to intimidate her into submitting to his will. He had previously done this on the occasion when he violently assaulted the younger child. I accept that the result was that the wife became terrified and left the home with the children in fear of her life. Further, given his previous violence to the children, they likewise had a well-founded fear of him.
The husband’s assertion that the wife over-reacted or made a gross mistake or used the situation for some sort of forensic advantage, is rejected.
The husband’s written submissions did not address the question of the child support departure application.
In the husband’s minute of proposed order he said:-[104]
Child Support
32.Note Orders 4 and 5 of the Court made on 7 December 2016.
[104] At page 7.
These were the December 2016 child support departure orders. There was little oral argument about the child support departure application.
In the husband’s trial affidavit he acknowledges that he pays school fees, although presently in arrears, the current assessment of child support of $1,620 per month per child and medical insurance.[105]
[105] Husband’s trial affidavit, paragraphs 62, 248 and 256.
There is little evidence about child support in the wife’s trial affidavit. What was clear is that the wife sought a continuing departure from the administrative assessment plus payment of other expenses. The orders she sought are:-
28.Noting the grant of leave made by Order 3 of orders dated 1 May 2017, by way of departure order, the assessment of periodic child support for:
(a)[the elder child] shall be $1,286 per calendar month until she completes her secondary education or attains the age of 18 years, whichever occurs later; and
(b)[the middle child] shall be $1,286 per calendar month until she completes her secondary education or attains the age of 18 years, whichever occurs later; and
(c)[the younger child] shall be $1,286 per calendar month until she completes her secondary education or attains the age of 18 years, whichever occurs later.
29.By way of non-periodic child support and without derogation from or diminution of periodic child support payments, within 28 days of the date of these orders, the husband shall pay to [L School] an amount required to meet all school fees outstanding or payable for the children.
30.By way of non-periodic child support and without derogation from or diminution of periodic child support payments, the husband shall pay:
(a)all school fees, school uniform and costs of school supplies for the children as and when they fall due;
(b)such health insurance costs for the children, with such insurance to be maintained at the current level; and
(c)any health cost for the children that forms a gap between the charged amount and the insurance.
31.The payments of child support are to be paid directly in to the wife’s bank account or to the Child Support Agency as elected by the wife and notified to the husband in writing.
The application cannot succeed in respect of the elder child from the date of her eighteenth birthday in January 2018. As such, I have extended the effective operation of the 7 December 2016 Order to the day before the elder child’s birthday.
The first step is for the Court to decide whether to make a departure order in the special circumstances of the case where one or more of the grounds for a departure order outlined in s 117(2) of the Assessment Act are established.
The wife implicitly contends that she has a number of grounds for a departure order to support her change of application.[106]
[106] Wife’s trial affidavit paragraph 251.
One ground is pursuant to s 117(2)(b)(ia). The wife implicitly alleges that, in the special circumstances of the case, the costs of maintaining the children are significantly affected because of special needs of the children and/or any one of them.
I accept that the children have special needs as a consequence of the trauma they suffered through family violence over their lives and the mental health issues that have followed.
Therefore this ground is made out.
The next ground is pursuant to s 117(2)(b)(ii), where the wife contends that in the special circumstances of the case, the costs of maintaining the children are significantly affected because they are being cared for, educated or trained in the manner that was expected by their parents.
The parties intended and ensured that the children attended a Catholic School, as did the eldest child.
The husband met the children’s school fees until separation and continues to assert that he will do so in the future.
At all relevant times the parties have expected that their children would be given the opportunity to be cared for, trained and educated at that school.
Given the circumstances of these parties, I am satisfied that in the special circumstances of this case, the costs of maintaining the children are significant affected because they are being cared for, educated or trained in the manner that was expected by their parents.
As such this ground is made out.
The next ground is pursuant to s 117(2)(c)(ia) of the Assessment Act in that the wife contends that, in the special circumstances of the case, the application of the administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child because of the income, property and financial resources of either parent.
I reiterate that which I have said earlier about the differential in income between the husband and the wife.
The husband contends that he has little or no income. It is clear from the evidence that he has had a history of earning income well over $200,000 per year. Senior counsel for the husband submitted that he spends at least $170,000 on rent and supporting himself, his present partner and her children. I have referred to this elsewhere in these reasons.
Given the nature of his business and his ability to direct income in other ways, such as to the wife in the past and his ability to legitimately divert income to others, including his present partner, I am satisfied that his taxable income will not necessarily reflect his actual income.
As such, I am satisfied that, in the special circumstances of this case, the application of the administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the children because of the income, property and financial resources of either parent, particularly the husband.
As such this ground is made out.
Another ground is pursuant to s 117(2)(c)(ib) of the Assessment Act in that the wife seemingly contends that in the special circumstances of this case, the application of the provisions of the Assessment Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the husband for the children because of the earning capacity of either parent.
The husband has a very high earning capacity and over the last two years has had his focus elsewhere. I reiterate the evidence and findings in that respect.
Given the circumstances of these parties, I am satisfied that in the special circumstances of this case, application in relation to the child of the provisions of that Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child because of the earning capacity of the husband.
As such this ground is made out.
Whether the above order or some variant of it is “just and equitable” within the meaning of s 117(4) of the Assessment Act
The Court must next consider whether it would be just and equitable as regards the children, the wife and the husband. Section 117(4) of the Assessment Act provides:-
117(4)In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:
(a)the nature of the duty of a parent to maintain a child (as stated in section 3); and
(b)the proper needs of the child; and
(c)the income, earning capacity, property and financial resources of the child; and
(d)the income, property and financial resources of each parent who is a party to the proceeding; and
(da)the earning capacity of each parent who is a party to the proceeding; and
(e)the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:
(i) himself or herself; or
(ii) any other child or another person that the person has a duty to maintain; and
(f)the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and
(g)any hardship that would be caused:
(i) to:
(A) the child; or
(B) the carer entitled to child support;
by the making of, or the refusal to make, the order; and
(ii) to:
(A) the liable parent; or
(B) any other child or another person that the liable parent has a duty to support;
by the making of, or the refusal to make, the order; and
(iii) to any resident child of the parent (see subsection (10)) by the making of, or the refusal to make, the order.
The wife and husband each have the primary duty to maintain each of the children.
The wife has set out in her trial affidavit and financial statement the proper needs of the children, which I have discussed below. These needs were considered in the light of the significant income of the husband, the income of the wife and the relative asset position of the parties following the making of the property orders.
The children are at High School and are wholly dependent upon their parents.
I have considered the income, earning capacity, property and financial resources of each of the parents, who are both parties to these proceedings, in the context of the property proceedings and this departure application.
The wife has no present income apart from Centelink entitlements. She has a capacity to earn limited income on a part time basis. She does not have any other child or person whom she has a duty to maintain.
The husband has the responsibilities to his present partner and her children.
I have generally accepted the evidence of the wife in terms of the direct and indirect costs incurred and to be incurred by her in providing care for the children.
The husband has a good income and it is likely to increase over the future years.
Whether it is “otherwise proper” within the meaning of s 117(5) of the Assessment Act
As to whether the making of an order is otherwise proper the Assessment Act provides at s 117(5):-
117(5) In determining whether it would be otherwise proper to make a particular order under this Division, the court must have regard to:
(a) the nature of the duty of a parent to maintain a child (as stated in section 3) and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and
(b) the effect that the making of the order would have on:
(i) any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or
(ii) the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.
In terms of considering child support I have considered that each of the wife and husband have the primary duty to maintain each of the children.
The wife is entitled to and is receiving Family Tax Benefit and other Centrelink benefits and entitlements.
There is no evidence as to the effect that the making of a departure order would have on any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.
In considering the proper needs of the children I have had regard to the matters set out in s117(6) of the Assessment Act, which provides:-
117(6) In having regard to the proper needs of the child, the court must have regard to:
(a) the manner in which the child is being, and in which the parents expected the child to be, cared for, educated or trained; and
(b) any special needs of the child.
In terms of any special needs of the children, I have discussed that earlier.
As to the manner in which the children are being cared for and in which the parents expected the children to be cared for, educated or trained, I refer to the comments I had made elsewhere in these reasons.
Child Support departure discussion and conclusions
The wife seeks $1,286 periodic child support per month for each of the children. This is less than the maximum payable by the husband under the administrative scheme, if he earnt the highest possible income.
As to the other parts of the claims, including those under s 124 of the Assessment Act, I have considered them separately, but in the context of the whole of this child support determination.
The wife claims school fees in a broad range. Given his income, they ought to be met by the husband. This should include the broader expenses sought by the wife. The husband will be required to meet the cost of school fees, school uniforms and supplies.
The husband will be required to pay private health insurance premiums for the children at the current rate of cover and with the current provider or similar. This does not seem in issue.
As to gap medical, dental and optical expenses, including any treatments or medications prescribed by the children’s treating General Practitioner or other specialist health provider, the husband shall pay those gaps.
Given the facts and circumstances discussed in these reasons and having regard to the special circumstance giving rise to the relevant grounds, and having been satisfied that the orders I will make are both just and equitable and are otherwise proper.
Accordingly, I will make the departure orders sought by the wife.
LUMP SUM SPOUSAL MAINTENANCE
The wife seeks $200,000 by way of lump sum spouse maintenance. The wife’s written submissions outline the basis for that claim, they are:-[107]
Spousal Maintenance
39.The Wife seeks an order for maintenance and for such maintenance to be paid as a lump sum.
40.The Wife plainly meets the threshold for the purposes of making a claim for maintenance given she has the care of the parties’ children.
41.She cannot meet her reasonable needs by reason of the fact that she does not work and, while D and the other children are so fragile, cannot work on any meaningfully remunerative basis. The Court would be mindful of the reason for this, namely the effect of the Husband’s conduct on the family. He is, in effect, the architect of the Wife’s inability to work.
42.The Husband has the capacity to meet the Wife’s needs, and this is the subject of earlier interim findings. The submissions relating to the Husband’s course of conduct resulting in a so-called “downturn” in the company are repeated. The husband has the actual and present capacity to pay maintenance and, lest there be doubt, the ability to increase the income of the company by re-applying his efforts to that company as he did prior to separation.
43.The Wife acknowledges that the conventional doctrine as to maintenance orders is that they be periodic in character, rationalised on the basis that there is a risk that lump sum payments may work an injustice if there be a change of financial circumstances (In the Marriage of Bevan (1993) 19 Fam LR 35). However, that principle needs to be balanced against the manner in which the Court can discharge its duty to finally end the financial relations between the parties per se (s.81 FLA) and to avoid further litigation relating to enforcement.
44.Expressed in the negative, the principle to which the wife points is that of In the Marriage of Clauson (1995) 18 Fam LR 693, namely “capitalisation of maintenance would rarely be justified where there is no genuine concern about the capacity and preparedness of the payer to comply with a periodic order”. By contrast, in this case, there is every reason to be concerned that the husband is not prepared to meet an periodic order, as evidenced by his past and repeated failure to do so in relation to interim orders and need for the wife to return to court to enforce such orders, and so every justification for making a lump sum order.
[107] Exhibit E46 wife’s summary of argument dated 6 November 2017.
The husband opposes the order.
The threshold question
Section 72 of the Act provides for the right of a spouse to maintenance and says as follows:-
72(1) A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c)for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2).
(2)The liability under subsection (1) of a bankrupt party to a marriage to maintain the other party may be satisfied, in whole or in part, by way of the transfer of vested bankruptcy property in relation to the bankrupt party if the court makes an order under this Part for the transfer.
The threshold questions are firstly whether the husband is able to fund a lump sum spousal maintenance order. I accept the submissions of the husband that the threshold question ought to be answered in the affirmative.
I am satisfied that the wife has a need for maintenance, albeit based upon the parties’ respective incomes.
In considering this maintenance application I have had regard to the relevant matters pursuant to s 75(2) of the Act. I have discussed those earlier in these reasons in the context of the property dispute.
The wife has an entitlement to Family Tax Benefit and Centrelink payments.
I have disregarded these benefits.
The Full Court in Bevan & Bevan (1995) FLC 92-600[108] set out the process in determining spousal maintenance applications as:-
Taken together then, we would state the law as being that an award of spousal maintenance requires:
1.a threshold finding under s72;
2.consideration of s74 and s75(2);
3.no fettering principle that pre-separation standard of living must automatically be awarded where the respondent's means permit; and
4.discretion exercised in accordance with the provisions of s74, with "reasonableness in the circumstances" as the guiding principle.
[108] At 89,981 and 89,982.
The wife has the significant proportion of the parties’ property. In that respect part of the value of the property was the goodwill in the Company. The husband has a larger part of his remaining property in the form of the Company and superannuation.
I am not convinced in the light of the property and child support orders I propose to make that it is reasonable in the circumstances for there to be a lump sum spousal maintenance order as sought or at all.
As such that part of the claim will be dismissed.
There is no application for periodic spousal maintenance and in the normal course the interim order would conclude with the financial orders concluding these proceedings. Given all of these circumstances, I intend to allow and extend the operation of the periodic maintenance order until the transfer of the Suburb G property in 42 days.
The costs of the Independent Children’s Lawyer
The Independent Children’s Lawyer claims legal fees for Legal Aid New South Wales in respect of her involvement in these proceedings. Those legal fees total $13,931.
The Independent Children’s Lawyer seeks each party pay $6,965.50, acknowledging that the wife has already paid $1,650. Both parties agreed that such an order ought to be made, although it ought not to prevent one or other of the parties, if they so choose, applying for costs orders one against the other regarding those costs liabilities or payments. Half of the $13,931 is $6,965.50. The balance payable by the wife would therefore be $5,315.50.
Given the economic circumstances of the parties and their consent I intend to make that order.
The Independent Children’s Lawyer sought payment within 30 days however, given the overall property orders I intend to make such an order payable within 90 days of the orders.
I certify that the preceding five hundred and forty-two (542) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 21 December 2017.
Associate:
Date: 21 December 2017
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Family Law
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Equity & Trusts
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Injunction
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