Haddon and Haddon
[2012] FMCAfam 1307
•7 December 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HADDON & HADDON | [2012] FMCAfam 1307 |
| FAMILY LAW – CHILD SUPPORT – Property and child support – personal injuries common law settlement received by wife during marriage – effect of non periodic child support school fees order on s.75(2) adjustment. |
| Family Law Act 1975 (Cth), ss.75(2), 79, 81, 90MT Child Support (Assessment Act) 1989 (Cth), ss.117, 122, 123, 124 Family Law (Superannuation) Regulations 2001 (Cth), Part 6 |
| Hickey [2003] FLC 93-143 C v C [2005] FLC 93-220 |
| Applicant: | MS HADDON |
| Respondent: | MR HADDON |
| File Number: | DGC 2411 of 2011 |
| Judgment of: | Phipps FM |
| Hearing date: | 5 November 2012 |
| Date of Last Submission: | 5 November 2012 |
| Delivered at: | Dandenong |
| Delivered on: | 7 December 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Allen |
| Solicitors for the Applicant: | Taylor Splatt & Associates |
| The Respondent appearing in person: |
ORDERS
The property at Property W (the Property W property”) be sold forthwith (“the sale”) and the proceeds of the sale applied:
(a)Firstly to pay all costs, commissions and expenses of the sale;
(b)Secondly to discharge the mortgage and the investment loan and any other encumbrance affecting the real property;
(c)Thirdly to reimburse the wife for any monies spent on improvements made to the property to prepare it for sale;
(d)Fourthly the balance to be divided in the proportions of:
(i)67½% per centum thereof to the wife;
(ii)32½% per centum thereof to the husband.
That both parties agree to a selling vendor’s agent for the Property W property within 30 days and a reserve price for the property within 30 days after the appointment of the agent, failing which the President of the Real Estate Institute of Victoria for the time being or his or her nominee shall nominate a vendor’s agent and the vendor’s agent shall determine the reserve price.
That the cabin at Property E (“the cabin”) be sold forthwith (“the sale”) and the proceeds of the sale applied:
(a)Firstly to pay all costs, commissions and expenses of the sale;
(b)Secondly, the balance to be divided in the proportions of:
(i)67½% per centum thereof to the wife;
(ii)32½% per centum thereof to the husband.
The husband retain the AXA shares and Macquarie Bank Account No [omitted] and any monies standing to the husband’s credit at bank.
The wife do all such acts and sign all such documents to transfer to the husband at the expense of the husband her interest in the Telstra shares.
The wife retain any monies standing to her credit at bank including the ANZ Bank Access Account No [omitted].
The husband retain the Mitsubishi Triton and be responsible for the debt due to GE Finance with respect to that vehicle.
That pursuant to s.90MT of the Family Law Act 1975 (Cth) whenever a splittable payment becomes payable in respect of the interest of the husband in the [1] – Personal Superannuation Plan (“the Plan”) the wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth), using a base amount of $65,960 and that there shall be a corresponding reduction in the entitlement of the husband to whom the splittable payment would have been made, but for these orders.
That order 8 will have effect from the operative time.
The operative time for the purposes of order 8 is four business days after the date of service of these orders on the Trustee of the Plan.
That having been accorded procedural fairness in relation to the making of these orders, order 8 binds the Trustee of the Plan.
Within 14 days of becoming entitled to receive a superannuation benefit from the Plan, the husband will give the Trustee of the Plan all such forms as are necessary to enable it to determine the nature and quantum of the husband’s superannuation entitlement; and any other related information it may reasonably require.
The husband and the wife shall be equally responsible for any fees, charges, administrative costs and the like associated with the superannuation split referred to herein as charged by the Plan and that such fees, charges, administrative costs and the like shall not be deducted from the base amount.
Until such time as the superannuation split to the wife pursuant to these orders can be rolled over onto a separate account to the wife:
(a)The husband shall provide to the wife no less than 28 days notice before such time as he elects to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or in part his entitlement in the Plan.
(b)The husband shall direct and authorise the Trustee of the Plan to communicate with the wife and/or any person authorised by her in writing:
(i)To answer any reasonable inquiries as may be made by her or on her behalf from time to time in relation to her entitlement in the Plan;
(ii)To provide to the wife and/or her authorised representative a copy of any notice of any application or request by the husband which seeks release of entitlements in the Plan in so far as that release may affect the wife’s entitlement in the Plan pursuant to these orders;
(iii)The husband be and is hereby restrained by himself, his servants or agents from doing any act or thing which would prevent the wife, her heirs, executors, administrators or nominees from receiving the benefits in the Plan to which she is entitled pursuant to these orders.
In the event that the superannuation split to the wife pursuant to these orders can be rolled over into a separate account to the wife, each of the parties will each do all such acts and things and execute all such documents as may be necessary to facilitate and to implement that rollover.
The wife retain her superannuation entitlements with [4] Super and [5].
The husband retain his superannuation entitlements with [2] and [3].
That pursuant to s.124 of the Child Support (Assessment) Act 1989 (Cth) the husband pay by way of non periodic child support the child, [Y]’s school fees at [L] School (or such other school as the child shall attend by agreement between the parties), levies, books, uniforms, extracurricular, music and excursion fees.
That each party otherwise retain all items of personal property and chattels currently in their possession save that the husband be permitted to take from the house once sold the following items:
(a)Dining table and chairs;
(b)Office cabinets (glass fronted);
(c)Matching desk and over the top cabinet;
(d)Two drawer filing cabinet (would entail all office furniture);
(e)Two bridge chairs and one club chair (previously husband’s grandmother’s);
(f)Tile cutting/diamond blade saw;
(g)Coffee table with cabriole legs (matches the chairs).
IT IS NOTED that publication of this judgment under the pseudonym Haddon & Haddon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DANDENONG |
DGC 2411 of 2011
| MS HADDON |
Applicant
And
| MR HADDON |
Respondent
REASONS FOR JUDGMENT
Assets and liabilities and proposals
Ms Haddon, the wife and Mr Haddon, the husband disagree about the distribution of their assets. The assets are largely agreed. Some minor differences about the husband’s superannuation have been established by the evidence. Assets and liabilities are:
ASSETS Property W $ 950,000 Property E (joint) $ 74,500 AXA shares (husband) $ 1,200 Telstra shares (joint) 900 shares @ $3.965 $ 3,568.50 ANZ Access Account [number omitted] (joint) $ 2,758 Macquarie Portfolio Account No. [omitted]
(husband)$ 1,159 2000 Hyundai Sonata (wife)(sale proceeds) $ 2,000 2008 Mitsubishi Triton (husband) $ 20,850 Total $1,056,035.50 LIABILITIES Mortgage on Property W property (joint) $ 153,054 Investment Loan (joint) $ 40,153 GE Finance on Mitsubishi Triton (husband) $ 17,000 Total $ 210,207 Net Asset Pool
$ 845,828.50 Superannuation Husband – [1] $ 190,298 Husband – [2] $ 1,246 Husband – [3]Superannuation $ 7,171 Wife – [4] Fund $ 34,627 Wife – [5] $ 2,156
The husband in his case outline puts the value of his [1] superannuation at $139,164. He explained that this is the value at the date of separation. Documentary evidence shows that the valuation at the date of hearing is $190,298. The [3] superannuation fund of $7,171 is the superannuation for his current employment all accrued after separation.
The wife proposes that Property W and Property E be sold and the net proceeds divided 75% to her 25% to the husband. She proposes that the mortgage and the investment loan be paid from the proceeds of the Property W sale, the husband retain the AXA shares, the Macquarie Bank account and any money standing to his credit at bank. She proposes that she transfer her interest in the Telstra shares to the husband and that she retain any money standing to her credit at the ANZ Bank including the ANZ Access Account. She proposes that there be a splitting order of the husband’s superannuation so that the superannuation is divided equally. She proposes a child support order for non periodic child support so that the husband pays the child [Y]'s school fees at [L] School or such other school as the child attends, levies, books, uniforms, extracurricular, music and excursion fees.
The husband proposes that the Property W property be sold and after discharging the mortgage, paying the investment loan and reimbursing the wife and husband for money spent on improvements, the balance be divided 67% to the wife and 33% to the husband. He proposes that the Property E cabin be sold and the net proceeds be placed into a joint interest bearing account for the purpose of paying the child [Y]’s secondary education expenses and reimbursing him for any private school fees already paid and then upon the completion of [Y]’s year 12 education the balance be divided 67% the wife and 33% the husband. He proposes a superannuation splitting order using values at the date of separation.
Property provisions
Section 79(1) of the Family Law Act 1975 (Cth) provides that in property settlement proceedings the court may make such an order as it considers appropriate. The following sub-sections set out the considerations the court is to take into account in deciding what is appropriate. This is a four step process. First, determine what are the assets and liabilities of the parties, next consider the parties’ contributions taking into account the matters in ss.79(4)(a)-(c), next consider whether an adjustment should be made taking into account the matters referred to in ss.79(4)(d), (f) and (g) and s.75(2) insofar as they are relevant, and finally consider whether in all the circumstances it is just and equitable to make the proposed order. The four step process is usually applied to superannuation and non superannuation assets separately, but there are cases where this may not be appropriate.[1] In Hickey the Full Court said at [39]:
39. The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case: Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Davut and Raif (1994) FLC 92-503; Prpic and Prpic (1995) FLC 92-574; Clauson and Clauson (1995) FLC 92-595; Townsend and Townsend (1995) FLC 92-569; Biltoft and Biltoft (1995) FLC 92-614; McLay and McLay (1996) FLC 92-667; JEJ and DDF (2001) FLC 93-075 and Phillips and Phillips (2002) FLC 93-104.
[1] Hickey [2003] FLC 93-143. For superannuation C v C [2005] FLC 93-220
Contributions
The wife was born [in] 1966 and is aged 46. The husband was born [in] 1967 and is aged 45. The parties married [in] 1991 and separated on 1 July 2009. They did not cohabit before marriage and are not divorced. There are two children of the marriage, [X] born [in] 1994 and [Y] born [in] 1999. Since separation both children have lived with the wife. [X] is engaged in tertiary study and has part time jobs. He does not see the husband. [Y] spends about six nights a week with the husband.
When the parties married they purchased Property M for $140,000. They borrowed $120,000 from the ANZ Bank and the wife says they had joint savings of $20,000 for a deposit while the husband says he sold his Toyota Celica and the proceeds were used to pay the deposit. In the context of the parties nearly 18 year marriage the dispute about the source of the funds for the deposit is of no consequence. At the commencement of their relationship the husband had AXA shares, at most a few thousand dollars, and the parties had the $20,000 deposit for their first home. Now, the assets are nearly $850,000 plus superannuation.
The parties sold the property in Property M and used the proceeds to purchase a block of land at Property W for $155,000. They built the matrimonial home at a cost of $220,000, borrowing to do so.
The parties purchased Property E in March 2006 for $77,000. They financed the purchase by drawing down $85,000 from the mortgage on their home.
At the commencement of the relationship the wife was employed as a [occupation omitted]. On 17 May 1996 the wife and the child [X] were involved in a serious motor vehicle accident. Amongst other injuries the wife suffered an acquired brain injury. In February 2000 she received a common-law settlement from the Transport Accident Commission of $300,000. After legal costs she received $259,000.
A letter from the Transport Accident Commission dated the 17 September 2012 shows the following:
a)The breakdown of the $300,000, common law payment was:
Pain and suffering
$ 150,000
Past economic loss
$ 20,000
Future economic loss
$ 105,000
Plaintiff lawyer party/party costs & disbursements
$ 25,000
b)Her level of impairment was determined at 33%;
c)She received other payments:
i)26 August 1998 lump sum Impairment Benefit $7,129.99;
ii)Loss of earnings 17 May 1996 to 17 November 1997 (the first 18 months after date of accident) total amount paid $13,483;
iii)Loss of earning capacity 17 November 1997 to 17 May 1999 (the second 18 months after that accident) total amount paid $15,747.96.
The $259,000 the wife received was used as follows:
(h)$23,538 to the husband's father for flooring in the house;
(i)$15,600 to buy a Hyundai Sonata;
(j)$35,000 for a 35 day family holiday to the United States of America;
(k)$170,000 towards the mortgage (paid 6 March 2000);
(l)$9,000 directly to Mr R;
(m)The balance of approximately $25,000 for living expenses.
In 1995 the parties opened a [omitted] business, largely operated by the wife. After the accident the wife was unable to work and the business was closed in November 1996.
The wife returned to work in 2003 as a part time [omitted] five days a week. She worked from 2.30pm to 6.30pm on weekdays and worked extra hours to [omitted]. She commenced working three days a week as a [omitted] in July 2007 and worked there until December 2010.
In May 2010 the wife started a [omitted] business. In the financial year 30 June 2010 to 1 July 2011 the gross income was $6,344 and after expenses the business made a loss of $216. The wife says that she continues to do some [omitted] work for friends and generally only charges out-of-pocket expenses.
The wife [omitted] on an ad hoc basis and charges $40 for 1 to 1½ hours. She says she makes an average of $500 per annum.
She registered the business name, [omitted], in March 2011 but has not pursued this business. In May 2011 she started doing consulting for the company [omitted]. She worked from home to attempt to start a program [omitted]. Between May 2011 and October 2012 she earned a total of $2,800. She says this is not continuing.
In 2011 she worked part time, three days a week at [omitted]. [Details of occupation omitted]
In the first six months of 2012 she had approximately 14 days of [occupation omitted] at $240 per day.
She obtained a full time [omitted] position with [omitted] commencing in July 2012. She was paid approximately $17,977 gross in wages. A letter from the [workplace] dated 30 May 2012 describes the position as a level 10 position full-time equivalent 1.086. The annual remuneration is stated in the letter as:
Cash salary
$ 93,524.78
Superannuation
$ 8,417.23
Annual leave loading
$ 1,254.64
Total package
$ 103,196.65
The fortnightly cash salary was $3,594.70, leave loading $48.09 and the total fortnightly package was $3,965.41 which included superannuation of $322.62.
The wife's gross income has been:
2007/2008
$ 39,270
2008/2009
$ 40,554
2009/2010
$ 50,412
2010/2011
$ 23,160
When the parties married the husband was employed as an [occupation omitted]. He was then appointed as [omitted] until February 1995. He worked at [omitted] from about March 1995 until 1999. He then worked for [omitted]. The wife says that in June 2004 the husband used his holiday pay and final settlement of wages from [omitted] to help purchase a new car. The husband commenced studying for his [qualification omitted] in July 2008. The wife says fees were paid from a joint account and that he sold the car in May 2009 for $16,000 and proceeds were used to fund his [qualification omitted]. The husband says that the first year’s tuition fee, $8,400, was paid from the joint account and that since separation the fees, $18,110, have been paid by him.
The husband was employed as [omitted] from July 2004 to April 2011. The wife says his employment package was $168,000 plus a fully maintained motor vehicle with a potential bonus of 15%. She says she believes he received the bonus in 2010. He was made redundant and received a termination payment from [omitted] of approximately $23,000 in April 2011.
The husband was unemployed between April 2011 and September 2011. On 5 September 2011 the husband commenced employment with [omitted]. His salary was $120,000 per annum. In October 2011 the husband suffered what he describes as a nervous breakdown and he says he was held as an involuntary patient at [omitted] Mental Health Facility for two weeks and was unable to sustain his employment at [omitted]. In January 2012 he commenced employment with [omitted]. His base salary is $150,000 per annum plus a motor vehicle.
In July 2004 the parties purchased an investment property in [omitted] and borrowed $240,000 from the ANZ Bank. The property was sold on 31 May 2000 for $188,000 and incurred a capital loss of $40,865. The parties are still paying off that loan.
In July 2006 the parties invested $85,000 in an [1] Managed Fund and paid a further $1,000 per month from the husband’s salary. They divested the investment on 30 June 2009 making a capital loss of $67,038.
Since separation the husband has paid child support. He paid [X]’s school fees at [L] School in full and [Y]'s in full until February 2012. Since then he has been paying half [Y]'s fees.
Following separation the wife and the children remained living in the former matrimonial home. The wife paid the mortgage and the investment loan until January 2012. She says that she estimates she paid approximately $33,000 towards the mortgage and $21,000 towards the investment line. She paid rates and insurance for the Property W property and paid fees for the Property E cabin.
The parties had a 19 year relationship from 1991 to 2009. They started with little in the way of assets, the husband had some shares and they had sufficient funds between them to purchase their first home. Both had employment and their funds were used in the joint endeavour of their marriage. The wife worked as a [omitted] but her employment and career were interrupted by the birth of her two children.
The wife’s employment and her career were disrupted by the motor vehicle accident in May 1996. But for this she would have continued employment and career advancement subject to her homemaker and child carer role. The wife was not in paid employment from 1996 until 2003 and then returned part time. She received compensation payments totalling $36,360.95 in addition to the $259,000 final settlement.
The wife was the principal child carer and home maker. The length of the relationship and the roles each party held in the marriage mean that the husband’s greater financial contribution is matched by the wife’s child carer and home maker role. If it were not for the consequences of the wife’s accident the parties contributions would be equal.
The accident means that in February 2002 the wife made a lump sum contribution to the family finances of $250,000. I use this figure because of the $259,000 received, the wife says she paid $9,000 to
Mr R, the solicitor who acted for her in the common law proceedings. I assume this was legal costs associated with the claim. The money was received and used about seven and a half years before the parties separated. $193,538, $23,538 for flooring and $170,000 towards the mortgage, was used directly for the improvement of the parties’ principle asset, their home.
The payment must be considered taking into account when it was made, and the effect of the wife’s injuries. While she had a reduced ability to earn income she continued with her role as child carer and home maker as best as she was able. The payments she received included loss of past income and future economic loss of $105,000. Since the wife’s recent employment was at a yearly rate of about $100,000 a reasonable conclusion is that much of the $105,000 covered the time up to the parties’ separation in 2009. The appropriate way to take into account the lump sum payment is to treat the $150,000 pain and suffering component as a contribution in February 2002 and the future economic loss of $105,000 as just that, an immediate payment of amounts which in other circumstances would have come in over time.
The husband’s contribution in paying child support and paying school fees after separation must be taken into account as must the wife's contribution after that time.
The husband's proposal includes that from the proceeds of sale of the Property W property each party be reimbursed for home improvements they have made. That is not the appropriate way to deal with any amounts paid for home improvements. They are contributions to the maintenance of and improvement to the property and are taken into account as contributions. The wife's common law settlement was used in part for flooring to the house and no doubt there were other improvements. Since the husband earned more income than the wife he presumably paid more towards improvements. This is an element of the husband's financial contribution to the marriage to be taken into account in that way.
Another of the husband's proposals is that from the proceeds of sale of the Property E cabin be reimbursed for school fees already paid. His payment of school fees prior to and subsequent to separation is part of his financial contribution and so taken into account in that way. There should not be a separate reimbursement to the husband of part of his financial contribution to the marriage.
The appropriate adjustment to make for the wife’s lump sum contribution is 7½% so that the parties’ contributions are 57½% by the wife and 42½% by the husband.
Section 75 (2) and child support
The parties’ state of health and income earning ability are relevant to both s.75(2) of the Family Law Act 1975 (Cth) and lump sum child support considerations. The parties employment history and income, including current or recent employment and income is described earlier in these reasons.
The wife worked full time for one [period omitted] starting July 2012. She says that she wishes to work full-time but finds that it affects her health. She has trouble controlling her emotions and she says that her pain intensity increased dramatically while [omitted] which led to an increase in the amount of medication she had to take.
Dr W, the wife's general medical practitioner since 1995, describes her injuries and current condition in a report. Her current symptoms consist of pain and stiffness in the regions affected in the accident with resultant fatigue, headaches and reduction of strength and range of movement. The doctor says she requires ongoing physical therapy and medication and has been under the care of a pain management physician.
Dr W says that she has suffered significant ongoing post traumatic psychological symptoms arising from the motor vehicle accident in 1996 and from her increasingly dysfunctional marital relationship. He says he has treated her with psychological counselling referral for formal psychological therapy and antidepressant medication. He says she remains on antidepressant and anxiolytic medication and he anticipates she will remain on those medications in the immediate term.
Dr W's opinion is that she is not medically fit to work in a full-time capacity and it will be some considerable time before she recovers sufficiently to be fit to resume full-time employment.
The husband’s nervous breakdown and two weeks as an involuntary patient at [omitted] Mental Health Facility is referred to earlier in these reasons. Since then he has obtained and maintained employment in a position and with remuneration similar to his earlier positions.
The wife applies for an order pursuant to s.124 of the Child Support (Assessment Act) 1989 (Cth) that the husband pay by way of non-period child support [Y]'s school fees at [L] School and various education expenses. The husband applies for an order that the proceeds of sale of the Property E cabin be placed in trust and used to pay [Y]'s school fees with the balance to be distributed between the parties once he has finished school.
Both parties propose that [Y] continue to attend [L] School but differ on how the cost should be paid. How they are payed is relevant to any adjustment under s.75(2) and so it is necessary to decide the issue about school fees in conjunction with the adjustment issue.
The father's proposal would not meet the requirement in s.81 of the Family Law Act 1975 (Cth) that the court, as far as practicable, make orders that will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them. While his proposal is an order that will direct how the proceeds of the sale of the cabin are expended, it will require the parties to have a financial relationship in the joint administration of the fund which would be established. Distribution of the proceeds of the sale of the cabin will avoid this and leave the question of payment of school fees to the child support legislation which is a more appropriate method.
Rejecting the husband's proposal to set up a fund to pay school fees does not decide the wife’s application for non periodic child support. Her application has to be decided in accordance with the child support legislation.
To make the application s.122 of the Child Support (Assessment Act) 1989 (Cth) requires that the wife be entitled to child support paid by the husband. That is the case here. The most recent child support assessment is for the period 1 July 2012 to 12 April 2013. It calculates the annual amount of child support for Mr Haddon at $11,825. The application is then made under s.23 and s.124.
Section 124 requires that the court be satisfied that it would be just and equitable as regards to the child, the carer entitled to child support and the liable parent and that it is otherwise proper to make the order. Subsection (2) sets out the matters to be taken into account. Section 124(3) and (4) requires the court to take into account certain matters described in s.117.
The husband paid all of [X]’s school fees and half of [Y]’s school fees until February 2012 including during periods of unemployment. Since February 2012 the husband and wife have each paid half of the fees. The husband’s attitude appears to be that the wife is capable of employment and earning a substantial income and therefore the fees should be shared. The school fees for Year 7 are $11,760 per annum.
The wife’s state of health and her ability to earn income is relevant to both s.75(2) matters and the child support claim. The wife's evidence that she found her full-time employment this year very tiring and that she becomes anxious and needs more pain medication is supported by the medical evidence of her long-term general practitioner. I accept that while the wife will be able to maintain part-time employment and short to medium periods of full-time employment she will not be able to work full-time as she did. Her [omitted] work produces small amounts of income, the [omitted] business no net income and her [omitted] work had one client only and is unlikely to be a source of any substantial income. She currently has no employment and relies upon social services payments and child support to support herself and the children.
Without employment the wife does not have the ability to pay half the school fees for [Y]. The husband does have the ability to pay them, and while he had a period of unemployment in 2011 he has shown fairly consistently that he has ability to obtain new employment or to change employment and to be relatively well paid as he currently is earning $150,000 per year plus use of the motor vehicle.
It is just and equitable and otherwise proper for the whole of the burden of paying [Y]'s school fees to be borne by the husband. An element in this is that this can then be taken into account in assessing s.75(2) matters. The husband is assessed to pay $11,825 a year child support. With [Y]’s school fees and other expenses his liability will be $23,595 plus other expenses so say $25,000.
The wife is currently dependent upon social services payments and child support payments. She has the major part of the care of a child under 18, [Y], and a significant part of the care of [X] who is a tertiary student over 18 years with part time employment. The husband has a liability of $11,825 for child support plus school fees and with the order for non-periodic child support a total of about $25,000.
A significant difference for the purposes of s.75(2) between the parties’ circumstances is their income earning ability. The wife has significant health problems, which, as already described, affect her ability to work. If working full time her capacity to earn is about $100,000 per year. The husband does not have the same health problems although he did have what he describes as a nervous breakdown and hospitalization in 2011. His capacity to earn is higher than the wife's, currently $150,000 per year plus the benefit of the car.
There are other relevant considerations under s.75(2). The financial resources each party has are the amounts each receives from this property settlement including superannuation. Each has normal living expenses. The husband pays and the wife receives child support and the husband will be liable for [Y]'s school fees and expenses. The proper adjustment is 10%.
Superannuation
The four step property process is to be applied to superannuation. The husband's [3] fund can be ignored since it has all accrued since separation, indeed this year. That means the wife has made no contribution to it.
The husbands [1] fund was $139,164 at separation and is now $190,298. Some of this may be attributable to investment income on the money accrued during the marriage, although this must be an assumption because there is no evidence of how the increases come about, whether by contributions or investment income or both. The same can be said of the wife's superannuation.
Until separation the parties’ contributions to superannuation are the same as for the other property. The husband's greater financial contribution is balanced by the wife's child carer and home maker role.
A reasonable inference is that a substantial amount of the increase in the husband's contribution has come about from contributions and investment income on those contributions since separation in 2009. I must do the best I have with the evidence I have and doing that I consider that the wife's contribution to overall superannuation should be fixed at 45%.
There are no s.75(2) considerations which would result in an adjustment to superannuation.
Just and equitable
The parties’ relationship has come to an end and both agree that their assets must be sold and the proceeds distributed. Therefore it is just and equitable to make the order as proposed applying the provisions of s.79.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Phipps FM
Date: 7 December 2012
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