FULTON & OBEROI

[2021] FCCA 143

FEDERAL CIRCUIT COURT OF AUSTRALIA

FULTON & OBEROI [2021] FCCA 143

Catchwords:
FAMILY LAW – Property – parenting issues resolved by consent – two young children to live with the wife and spend at least initially, little time with husband – husband paying only limited child support – long relationship with husband making very significant initial contributions – husband frittering away substantial funds-overall contributions assessed 55/45 in favour of the husband – wife’s future needs greater even though wife earning substantially more than husband – 52/48 division in favour of the wife just and equitable.

Legislation:

Family Law Act 1975 (Cth), s.75(2)

Cases cited:

Pierce v Pierce (1999) FLC 92-844

Rice & Asplund (1979) FLC 90-725

Stanford & Stanford (2012) 247 CLR 108

Applicant: MR FULTON

Respondent: MS OBEROI

File Number: DGC 62 of 2019

Judgment of: Judge Burchardt

Hearing dates: 19 & 20 January 2021

Date of Last Submission: 20 January 2021

Delivered at: Dandenong

Delivered on: 5 February 2021

REPRESENTATION

Counsel for the Applicant: Mr Howe

Solicitors for the Applicant: Tyler Tipping And Woods

Counsel for the Respondent: Ms Stoikovska S.C

Solicitors for the Respondent: Mcgowan Family Law

Counsel for the Independent Children's Lawyer: Ms Glaister

Solicitors for the Independent Children's Lawyer: Victoria Legal Aid

ORDERS

PROPERTY

1. THAT within 48 hours of Orders being made, the husband do all acts and things so as to sign all necessary documents to allow the wife to apply to the Mortgage Company to seek a “repayment holiday” for the maximum period of time permitted and thereafter the wife shall be permitted to pay the minimum monthly mortgage instalments.

2. THAT the wife have sole use and occupation of the property situate at and known as B Street, Suburb C in the State of Victoria (hereinafter referred to as “the property”) to the exclusion of the husband, and during her right of occupation, the wife shall meet all outgoings of the property and the minimum mortgage instalments pursuant to the registered mortgage.

3. THAT on or before one hundred and twenty days (120) days of the making of these Orders, the husband and wife do all acts and sign all documents as are necessary to transfer the husband’s interest in the property to the wife at the expense of the wife and the parties shall do all acts and sign all documents as are necessary to discharge all registered encumbrances against the property to enable the wife to refinance the registered mortgage into her sole name.

4. THAT contemporaneously with the transfer of the husband’s interest in the property to the wife, the wife shall pay the husband the sum of one hundred and ninety one thousand and forty dollars ($191,040).

5. THAT in the event that the wife is unable to refinance the mortgage secured against the property into her sole name, the property shall be sold ("the sale") upon the terms and conditions as agreed between the parties.

6. THAT to facilitate the sale, the wife nominate three (3) local real estate agents in writing and the husband shall select the selling agent within seven (7) days of the wife nominating the agents.

7. THAT the parties appoint a jointly agreed solicitor to conduct the conveyancing of the sale, and in the event of disagreement, the solicitor shall be nominated by the agreed selling agent.

8. THAT the parties consult the nominated agent about the terms of sale and reserve price and in the event that agreement cannot be reached regarding the reserve price, the parties jointly engage a registered valuer to obtain a valuation, at their joint expense and the valuation shall become the reserve price.

9. THAT the proceeds of sale of the property shall be applied as follows:

   (a)Firstly, to pay all real estate agent’s costs, commissions and expenses of the sale, conveyancing costs and any other costs;

   (b)Secondly, to repay the amount owing to the registered mortgagee;

   (c)Thirdly, the balance to be divided as follows:

   (i)52% to the wife; and

   (ii)48% to the husband.

10. THAT pending the completion of the sale:

    (a)The wife have sole use and occupation of the property;

    (b)The parties hold their respective interest in the property upon trust pursuant to Orders of the Court; and

    (c)Neither party shall encumber the property without the consent in writing of the other.

11. THAT the husband shall indemnify the wife in relation to:

    (a)His car loans; and

    (b)Any other liabilities in his name, including but not limited to, credit cards.

12. THAT the husband shall retain all of his right, title and interest in his Motor Vehicle 1 with registration number ... and registered in his sole name.

13. THAT the husband shall retain the Motor Vehicle 2.

14. THAT the wife shall arrange to remove the Motor Vehicle 2 from her residence on or before 14 days of the date of the final Orders being made at the sole cost of the husband.

15. THAT the wife shall retain all of her right, title and interest in her Motor Vehicle 3 with registration ... and registered in her sole name and indemnify the husband against all liability owing to Bank D.

16. THAT the wife shall retain all of her right, title and interest in her Sea-Doo with registration number ... and registered in her sole name.

17. THAT each party retain all household items and chattels in their respective possessions or control.

18. THAT each party retain their respective superannuation entitlements.

19. THAT unless otherwise specified in the Orders and except for the purposes of enforcing the payment of any moneys under these or any subsequent orders:

    (a)The parties have the sole right, title and interest in any other property which is at the date hereof in their possession, title or name, the household contents deemed to be in the possession of the wife, and they shall be solely liable for and indemnify the other against any personal liabilities.

    (b)Each party shall be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as at the date of the Orders.

    (c)Any money standing to the credit of the parties in any joint bank account shall be divided equally between the parties and thereafter the joint account shall be closed.

    (d)Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears.

    (e)All insurance policies are to become the sole property of the owner named therein.

    (f)Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to the Orders.

    (g)Any joint tenancy of the husband and wife in any real or personal estate is hereby expressly severed.

20. THAT the husband and wife shall do all acts and things and give all consents and execute all documents and writings necessary to give effect to the Orders made herein.

21. THAT in the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to the Orders, the non-defaulting party be appointed pursuant to section 106A to execute such deed or instrument in the name of the said party and to do all acts and things necessary to give validity to the operation to the deed or instrument with the Registrar of the Court being provided with verification of such refusal or failure by way of Affidavit.

PARENTING (BY CONSENT)

1. The parents have equal shared parental responsibility for the children X born in 2006 and Y born in 2013.

2. The children live with the Mother.

3. The Father spend time and communicate with the children as follows;

   (a)Between 10 AM and 5 PM on the last Saturday of the month with time to occur in Town E and the Mother to transport the children for this visit

   (b)From 10 AM to 5 PM on Saturday on up to 6 occasions per year, such time to occur in Melbourne with the Father providing the Mother with 6 weeks’ notice of his intended visit and the Mother having permission to reschedule such visits on 2 occasions per year and the Father shall ensure the children attend any sporting or extra-curricular activity the children have during these periods

   (c)From 10AM to 3 PM on Father’s Day, such time to occur in Town E with the Mother transporting the children

   (d)On the Father’s birthday and the children’s birthdays from 4 PM to 6PM in the event it is a school day and otherwise from 10AM to 3 PM such time to occur in Melbourne and the Father shall provide the Mother with 14 days notice of his intention to exercise this time

   (e)For Christmas from 10 AM to 3 PM on Christmas day in even numbered years and from 10 AM to 3PM on Boxing day in odd numbered years, such time to be spent in Town E or Melbourne as agreed and failing agreement the time will occur in Melbourne in odd years and in Town E in even years

   (f)As further or otherwise agreed

4. In the event the Father would normally spend time with the children on Mother’s Day such time be suspended and if practicable the time take place on the following weekend

5. The children communicate with the Father by skype or other electronic communication as agreed and in default of agreement on Wednesday between 6 and 6.30 PM

6. The Father is restrained from consuming alcohol at least 48 hours prior to any time he spends with the children

7. Orders 16 to 17 of the Minute of Orders Sought by the wife in relation to the children’s passports and travel are adopted

8. The Mother and the Father keep each other informed of any significant illness or injury to the children and of any medical professional or allied professional providing treatment to the children and both parents may liaise with same

9. The order appointing the Independent Children's Lawyer be discharged

NOTATION

A.The Mother and the Father would not seek to raise a Rice & Asplund (1979) FLC 90-725 argument in relation to future proceeding in the event the Father has provided to the Mother evidence of substantial compliance with the recommendations contained in Dr F’s report dated 6/1/21 and annexed to an Affidavit filed 18/1/21

BThe Mother and the Father shall consider mediation prior to initiating any future proceedings

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 62 of 2019

MR FULTON

Applicant

And

MS OBEROI

Respondent

REASONS FOR JUDGMENT

Introductory

1. This proceeding commenced as a parenting and property matter and, indeed, much of the material and evidence provided to the court during the two days of trial was concerned with parenting issues.  Greatly to their credit, however, the parties, at the death knock as it were, consented to orders proposed by the Independent Children’s Lawyer.  Accordingly, this judgment deals only with the property element of the dispute. 

2. The applicant husband seeks that there be a division of the property pool 55 to 45 per cent in his favour and the respondent wife conversely seeks that there be a division of the property pool 65 to 35 in her favour.  The husband’s position derives from a combination of his greater initial contributions and asserted lower earning capacity than that of the wife.  The wife’s countervailing position seeks to minimise the husband’s initial contribution and points to the fact that the wife will have the predominant care of the two young children of the relationship, X, born in 2006 and Y, born in 2013. 

3. For the reasons that follow, I think both parties’ positions are somewhat overstated.  I think that a just and equitable outcome is division 52/48 in favour of the wife with each party to retain their superannuation. 

Agreed or Uncontroversial Matters

1. The husband was born in 1973.  He had the very grave misfortune to be badly burnt in an accident when he was only 11 years old, following which he was hospitalised for three months with burns to 70 per cent of his body.  I mention this tragic event not in any way to distress the husband but to explain why it may be that from time to time he has struggled with depression and anxiety and resorted to overuse of alcohol.  It is greatly to his credit that he has been able to lead a normal life.

2. The wife was born in 1976, and it seems agreed that the relationship started in 1994. It seems common cause that they commenced to cohabit at the latest in 2000.  They married in 2004 and separated in January 2018.  As earlier indicated, X was born in 2006 and Y in 2013.

3. The husband owned two properties unencumbered at the commencement of the relationship and had a share portfolio which he estimated at approximately $550,000 although the wife does not necessarily accept that figure.  Those sums plainly came from compensation payments arising out of his earlier injuries.

4. It is reasonably clear that the wife’s assets at the commencement of the relationship were consisted of a car and a small amount of savings. 

5. In late 2001, the husband sold shares to the value of $92,000 and bought land in B Street, Suburb C where what became the matrimonial home was eventually built. 

6. The husband sold his two prior owned properties and says that he obtained approximately $160,000 in total.  At or about the same time the parties built the matrimonial home at a cost estimated by the husband of $160,000 with a $160,000 mortgage.  The husband has deposed that following the construction of the house, he provided funds for a pool and landscaping in the sum of $50,000 and a pergola in the sum of $7,000.  He also deposes to paying $30,000 on the marriage ceremony itself but, in my view, this is now of no moment.

7. The husband has deposed, as has the wife, to the purchase of an investment property held in the years 2004 to 2007 which was sold at a loss. 

8. The parties took out a further mortgage in 2014 or 2015 which was applied to an extension to the matrimonial home in the sum of $50,000. 

9. The wife, who has professional qualifications has worked, in effect, throughout the entirety of the relationship.  The husband has deposed, and it does not seem controversial, that he became depressed after the birth of X and his work pattern on any view of the matter has not been consistent albeit that there is a dispute as to exactly how much that has been the case. 

10. Following separation, the husband has moved to Town E to be near to his parents and has eventually obtained rental accommodation.  He is employed as a factory worker and earns $922 per week.  He now pays (although only from relatively recently) $139 per week in child support.  The wife earns $1,998 per week in her salary, together with an approximate $4,500 per year in her own business, and is in receipt of family tax benefits amounting to approximately $115 a week.  The wife has superannuation of $89,264 and the husband estimates his superannuation at $50,000. 

11. Pursuant to the agreed parenting orders to which I have earlier referred, the children live with the mother and spend time with the father between 10 am and 5 pm on the last Saturday of the month in Town E with the mother to transport the children, and for six occasions per year in Melbourne and on other special events.  It should be noted that the door has been left open to the father to seek substantial further amounts of time if he is able to comply with the recommendations and contained in Dr F’s report dated 6 January 2021.

12. In essence, those require the husband to address his drinking difficulties, something he has assured the court he will do by abstinence on an ongoing basis and to address various other ancillary matters. 

The Parties’ Affidavits

1. Much of what the parties have said in their affidavits is paraphrased in the agreed matters above.  Indeed, in a general sense the affidavits were more concentrated on parenting issues than those relating to financial matters.  The husband’s first affidavit sets out the history of the marriage and the vast majority of what he had so say is contained above.  Perhaps the most telling extract in his first affidavit filed 11 January 2019 is paragraph 17 which asserts:

   That throughout the marriage I sold portions of my share portfolio in order to pay for certain items.  I cannot recall the exact particulars of this.

2. Given that the husband says he had $500,000 to start off with and has nothing now, it is immediately apparent that that is a very important and telling deficiency in the evidence. 

3. The wife’s first affidavit filed 23 February 2019 asserts that at the commencement of the relationship she owned a car worth about $5,000 and had about $5,000 in savings together with furniture.  She was not aware of the amount of compensation the husband received.  Relevantly, the wife complained that during the relationship the husband was often out of work as a result of his alcoholism and depression.  She also deposed that the husband gambled heavily and lost a lot of money so that the family’s finances became deeply strained.

4. The wife’s trial affidavit is lengthy and detailed but does not take the matter much further.  I note that she deposes that the purchase of the land for the matrimonial home was $80,000 but was funded by the husband’s sale of shares.  She also deposed that the husband purchased and sold approximately 12 motor vehicles and nine motorcycles during the relationship, often selling them at a significant loss and she believed that these were funded from the sale proceeds of his two properties. 

5. She deposed (paragraph 259) that she considered the husband’s lump sum financial contribution towards the former matrimonial home was approximately $300,000 over the last 19 years.  She deposed that in 2004 she had inadvertently learnt that the husband’s share portfolio was worth about $80,000.  She deposed that the mortgage on the matrimonial home is currently $302,000.  She deposed in some detail to what she described as the husband’s wastage of funds from gambling and expensive equipment such as the guitars, music, amps and car parts. 

6. The husband’s trial affidavit filed on 6 November 2020 has almost completely repeated his earlier first affidavit.  He repeats that in about 2010 he commenced solely making the mortgage repayments with the wife paying all the bills. 

The Relevant Submissions and Evidence given at the Court - The opening and evidence of the husband. 

1. Counsel for the husband detailed the 24-year relationship from 1994 to 2018. He detailed the children and the fact that they live with the mother and spend alternate weekends at Town E.  It was put that the husband could not afford to drive to Melbourne to see the children.  The matrimonial home was asserted to have a value of about $700,000 and it was asserted that it was agreed that this be sold with a mortgage of $320,000.  Counsel said the parties had cars and chattels which they should retain and that the wife had superannuation of $89,000 and the husband had $43,000.  The husband sought 55 per cent of the pool and an equalisation of superannuation.  This was justified on his initial contribution of $600,000 and the wife’s relatively minimal contribution. 

2. The husband adopted his trial affidavit and financial statement as true and correct.

3. Much of the cross-examination by senior counsel for the wife was concerned, of course, with parenting issues.  It is not now a matter of such great moment, but it should be noted that the husband was argumentative and difficult when under cross-examination.  His answers about his ongoing use of alcohol were difficult to believe.  He was extremely accusatory of the mother and in effect blamed her in terms for his past drinking and unhappiness.  The burden of his answers was that he was now back in Town E near his family, was enjoying his life and did not need to drink and did not have someone who drove him to drink.  He answered questions with questions of his own and was sarcastic and non-responsive.

1. When cross-examined about financial matters, the husband asserted he has about $60 left after he pays rent and all his other expenses.  He needs to buy petrol for work.  He complained that the wife earns twice what he does.  He was working for three days to four days a week before separation.  He relocated to Town E and was not employed for some eight or nine months during which he lived with his parents.  He has been working as a factory worker since 2018. 

2. Youth allowance ceased when he started work.  They now have less hours because of the COVID emergency.  He asserted he had paid child support before November 2019.  He denied gambling.  He does not play the pokies.  He spends about $20 per fortnight on alcohol.  Much of the questioning about finances was interrelated with his capacity to afford spending time in Melbourne.  He was adamant that he did not want to live in Suburb C or anywhere near it.  Rents are too high.  Where he is now is where he grew up.  This is where he wants to live. 

3. He agreed that he owned two properties at the commencement of the relationship.  He also had shares from the compensation from his burns.  He conceded these were kept in his account alone.  Two properties were sold early in the relationship to purchase the property they built.  He was diagnosed with depression in 2007 and there were periods of unemployment during the relationship.  When cross-examined about an alleged absence of proper financial disclosure, the husband really did not answer at all.  He said he had nothing left at separation and asked rhetorically, “Why do you think I came back here?”

4. He disagreed that he had been gambling and particularly from 2007 to 2009.  He denied withdrawing money ever at hotels and said, “This was a load of rubbish”.  He disagreed that the wife had spoke to him about managing his finances in 2010 to 2011.  He said he always paid the mortgage.  He refinanced the mortgage in 2011 but he could not recall how much.  He agreed that he had bought and sold 12 motor vehicles over the relationship.  The V8s were upgraded at no cost to her.  Likewise, the nine motorcycles.  

5. He disagreed that he had no savings by 2018.  When asked where the funds were, he said, “You tell me”.  He then said, “There was nothing left in 2018”.  He had paid for the pergola, the shed, the pool, computers and the pool fence.  He had $600,000 in shares and he bought two properties worth in total $160,000.  This was put to purchase the house.  He sold $92,000 of shares to buy the block.  He sold his properties for $160,000 and then they took a mortgage of $160,000.  The pool cost $23,500.  The shed cost $6000.  The pergola cost $1000.  He gave a somewhat longwinded and unconvincing answer to the effect that his funds just dwindled over the years.

6. Cross-examination by counsel for the Independent Children’s Lawyer is no longer relevant.  Re-examination only covered parenting issues. 

The Evidence of the Wife

1. The wife adopted her trial affidavit as true and correct.  She also indicated her self-employment in her business.  She also adopted her financial statement as true and correct. 

2. As with the father much of the cross-examination, indeed most of it, was about parenting issues.  The wife conceded that the husband had two properties at the start worth approximately $85,000.  She conceded he sold shares to buy land.  With the build they got a home loan based on their salaries.  She only owes between three and five thousand dollars in the business.  She is a professional.  She likes the security of her present permanent work position. 

3. Cross-examination by the Independent Children’s Lawyer was concerned solely with parenting issues.  Likewise the re-examination.

4. Dr F was called but once again his evidence was concerned solely with parenting issues.  I note that following that evidence, the father through counsel indicated that he proposed to become abstinent forthwith.  The evidence of Ms G the family reporter has likewise fallen away.

Final Submissions

1. Counsel for the wife traversed the pool.  She noted that the husband’s value of the matrimonial home of $700,000 was agreed.  The 65/35 split the wife was seeking would provide the husband with approximately $139,300.  The husband has asserted debts but his Financial Statement only has a credit card debt of $10,000 together with some payments to his parents.  So far as contribution is concerned, the husband says he brought in assets but only $150,000 was actually contributed.  There is no evidence that any money the husband had at separation was significant.  It had been utilised by the husband for his own interests.  This was a lengthy relationship with a small pool.  There was no child support payments until September 2020, and it is now $129 per week for the two children.  The mother is otherwise responsible for all the children’s costs.  The husband will not pay child support except as assessed.  The wife’s income is higher but it is a limited pool and the wife seeks to retain the family home.  The 65/35 split was just and equitable.  The mother was doing the driving for the spend time regime and all associated costs.  The departure application previously filed was not pressed but was included as part of the reasoning to support the 65/35 split.

2. Counsel for the husband agreed it was a small pool.  Initial contributions favour the husband.  Even if it was only $150,000, it is still one third of the extant pool.  He says he brought in $630,000.  Counsel referred to the case of Pierce v Pierce (1999) FLC 92-844 albeit conceding there was case authority that initial contributions may be watered down over time. The husband seeks a 55/45 split in his favour. It was conceded that contributions during the relationship were equal. Section 75(2) factors would give rise to a loading to the wife but the husband’s income is substantially less. Hers is in excess of $100,000 and his is under $50,000. There was no evidence the husband’s income will increase. The wife’s could increase if she pursued her business. Wastage and gambling were not proved. Bank statements were not in evidence. The husband’s initial contributions were substantially greater and contributions during the relationship otherwise were equal. A 55/45 division to the husband was just and equitable.

Stanford & Stanford (2012) 247 CLR 108

1. The court’s first task is to identify the legal equitable interests of the parties and determine whether property adjustment is appropriate.  However in this case the way in which the parties conducted their finances as a family unit during the marriage has obviously utterly altered and both sides seek that there be a property adjustment.  It is plainly just and equitable there be one.

The Pool

1. The primary asset in the property pool is the matrimonial home with an agreed value of $700,000 and a mortgage of $302,000.  The parties’ main cars (the wife’s Motor Vehicle 3 and the husband’s Motor Vehicle 1) appear to be of roughly similar value.  The parties’ bank accounts are not great and in my view to the extent that they subsist they owe nothing to the relationship given the period of time since separation.  The Motor Vehicle 2 is all but valueless and I do not think that the wife’s Sea-Doo Jet Ski and trailer are of sufficient value to be worth any adjustment either way.

2. The husband has a Westpac personal loan in excess of $18,000 and an asserted a tax liability of $2,000.  Neither in counsel’s opening or closing addresses was it proposed that those matters be included in the pool.  I agree.  The wife’s description of the property pool at paragraph 273 of her affidavit includes both of the husband’s loans and materially a Bank D car loan of the wife of $20,000 and a loan from her sister-in-law of $11,000.  Nothing was said in submissions about these matters.  Candidly it is hard to know what to make of them.  The alleged debts of the two parties are not wildly disparate in total (the Sea-Doo and trailer in any event rather balance things up) and there is no clear evidence to my way of thinking that would enable the court to give them any weight of any moment in the property pool.

3. The parties’ superannuation is of course discrete and different. The wife has $89,264 and the husband $43,000.

Contribution

1. In a property case where the hard cash available so to speak is of the order of $398,000, the husband initial’s contributions were obviously very significant.  Even if limited to the $150,000 itemised by the wife’s counsel, $150,000 out of $400,000 is still a lot.  Furthermore, without the husband’s initial contribution, the parties could never have bought the land upon which the matrimonial home was situated (or at the very least it would have taken them much longer to save a deposit and their mortgage would have been substantially greater).

2. This brings into direct question of course what happened to the husband’s shareholdings.  Indeed it also brings in to play in my view what happened to the $160,000 or $140,000 he obtained from the sale of his two properties.  In the end I think the passage in the father’s first (repeated in his trial affidavit) affidavit that he simply does not remember what he spent the money on is as close as we are ever going to get to the truth.  He obviously consumed very substantial quantities of alcohol throughout the relationship, but whether or not he gambled or otherwise frittered funds away, the reality is that there is none of it left now.  I suspect that the parties lived somewhat beyond their means.  The husband’s evidence about the cost of the repairs to his cars and motorcycles was not convincing.  Some of his share money must have surely filtered through to the family in some way or another but it is wholly impossible to say how much.  It is clear from the authorities that the process of calibrating contribution is not an arithmetical or accounting exercise.  On any view of the matter however the husband must be given credit for his initial contribution.

3. The husband, owing to ill health, was not able to work throughout the entirety of the relationship, whereas the wife has worked through most of it.  Since separation she has paid all the bills and more particularly all the not insignificant costs associated with the children and their activities.

4. Weighing up these competing factors is self-evidently a matter of making an informed albeit necessarily impressionistic assessment.  In my view the contributions by the parties overall to the financial position they occupied at separation, and taking into account events post-separation, should be 55 per cent in favour of the husband and 45 per cent to the wife.

Future Needs

1. The wife is in unexceptionable health but that of the husband is less certain.  He has the ongoing challenge of meeting his abstinence from alcohol, an entirely worthy aspiration but nonetheless a not easy task.  He has the ongoing difficulties associated with his early childhood misfortune.  His work history has not been as continuous as that of the wife.  However, having said that, it is his own evidence that he is, so to speak, now in a much better place than he was before.  In part he somewhat uncharitably attributes this to the allegedly malign influence of the wife.  More to the point, he is back near his parents in the area where he grew up with his friends, and all in all his evidence to the court was to the effect that he was now happy in his life and moving forward.  He has been in employment as a factory worker since 2018 and not withstanding some COVID hiccups, that appears to be continuing.  His salary is $992 a week.  He will be paying child support for a very appreciable period of time.

2. The wife by way of contrast earns more than twice as much.  She additionally has family tax benefits and her own albeit very modest business. 

3. Against this, I fully accept the wife’s counsel’s submission that the husband will never pay more than he is assessed to pay in child support.  She will clearly have the vast bulk of the financial costs of looking after the children on an ongoing basis and for quite some years yet to come.  I note that in Y’s case in particular this may present particular challenges.  As a single parent (there is no suggestion repartnering by either party) this will be a significant ongoing burden to her.  It will also to an extent inhibit future employment activities. 

4. Once again calibrating these matters is something of a matter of an informed impression.  Taking all these matters into account I think that the wife should receive the loading of some 7 per cent in respect of future needs.

5. The husband has sought an equalisation of superannuation, which the wife resits. There superannuation is significantly different, but this self-evidently reflects the amount of work that each of the parties actually engaged in during the relationship. Although each case necessarily must be determined on its own particular facts, one might think in a relationship of such a length it would ought perhaps be fair to contemplate such an equalisation as the husband seeks. In the particular circumstances of this case, I do not however think it is appropriate. The picture that emerges in the materials overall is one in which the wife accrued her superannuation in relatively difficult circumstances where the husband, for one reason or another, was not able to work full time. While this failure to work springs from very understandable difficulties to which I have already referred, I do not think it is appropriate in the circumstances to, as it were, penalise the wife by equalisation of superannuation. Furthermore, this sub-aspect of the outcome of the proceedings is something to be considered under the question of the overall justice and equity of the outcome.

The Wife’s Departure Order

1. The wife as earlier indicated, abandoned her child support departure application but put the matters which gave rise to it as part of her consideration of future needs. Since the court is not making any determination of that departure application it plainly cannot be given any particular loading or weight, but I should make it clear that the fact that the wife will have all the various expenses associated with the children’s continued education and extracurricular activities, apart from relatively minor amounts of child support, is one of the things I have factored into the future needs adjustment referred to above.

Just and Equitable

1. Senior counsel for the mother submitted, putting the matter somewhat broadly, that the 65/35 division she sought was in part justifiable because of the small size of the pool and the very understandable desire of the wife to keep the matrimonial home where the children have always lived.  There is obvious force in that submission.  But a disparity of a further 13 per cent to an overall outcome where in my view the four step process would otherwise produce a result very close to even is simply too big a bridge for it to be just and equitable to cross.  In my opinion a 52/48 division in favour of the wife (with each party retaining their superannuation) is indeed just and equitable and I have drawn orders to reflect this conclusion.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date: 5 February 2021