Koli and Kunti

[2015] FamCA 1203

FAMILY COURT OF AUSTRALIA

KOLI & KUNTI [2015] FamCA 1203

FAMILY LAW – PROPERTY – Property settlement order made

Family Law Act (1975) Cth

APPLICANT: Mr Koli

RESPONDENT: Ms Kunti

FILE NUMBER: SYC 1989 of 2012

DATE DELIVERED: 17 December 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 14 - 17 December 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: Litigant in person

Orders

1. Pursuant to s 79 Family Law Act 1975 (Cth), orders be made in accordance with paragraphs 2 to 4 below.

2. The parties do all things and sign all necessary documents to divide the jointly held trust fund as to 62.7 percent to the wife and 37.3 percent to the husband.

3. The husband do all things and sign all documents necessary to transfer his right, title and interest in the 4WD motor vehicle to the wife.

4. Each party be solely entitled to the exclusion of the other to all other property, chattels and superannuation in their respective names or possession as at the date of these orders and that each party indemnify the other in relation to any debt in their respective names or any debt associated with any asset that is kept by each of them respectively.

5. If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of s 106A of the Family Law Act to execute such documents on behalf of such party.

6. Pursuant to s 123(1)(a) Child Support (Assessment) Act the husband pay 60 percent and the wife pay 40 percent of all payments of school fees, expenses to be paid directly to the school, enrolment fees, tuition fees, sporting fees, medical expenses and medical insurance.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Koli & Kunti has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1989 of 2012

Mr Koli

Applicant

And

Ms Kunti

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The focus of the hearing between the parties related to complex parenting issues. Those issues resolved on the third day of the hearing after oral evidence including evidence from the family consultant who had prepared three reports in the matter.

2. What remained was a dispute between the parties about what property settlement orders should be made. The major assets of the parties are the proceeds of the sale of the former matrimonial home at Suburb A in the sum of $131,442 which is currently held in a frozen account in the joint names of the parties.

3. Both parties presented their case as litigants representing themselves without the assistance of a lawyer. I tried so far as was possible to assist the parties in the presentation of their cases and the tendering of material. The case was adjourned overnight so that, particularly the husband, could organise additional material that he sought to put before the court. The wife also took that opportunity to collate additional material to put before the court.

4. Each party identified the evidence upon which they relied and during final submissions, each party put some propositions which were not based upon any evidence.

5. The parties were married in 2002 in Country B. They moved to Australia in 2005 and separated on 1 June 2011. There are two children of the marriage C, born in 2005 and currently aged 10 and D, born in 2009 and currently aged 6 years.

6. The wife’s application for final property settlement orders during her submissions was that an order be made that the parties pay to her brother the sum of $48,500 from the trust funds and that the remaining assets be divided as to 70 percent to herself and 30 percent to the husband. As part of that, she wanted the husband to have the 4WD motor vehicle.

7. The husband’s position in relation to a property settlement order during final submissions was that he wanted an adjustment for jewellery that is in Country B. He also wanted some adjustment to take into account the monies that he said the wife expended immediately after separation as set out in [71] of his affidavit. Then he wanted 50 percent of the net assets.

8. The parties acknowledge that given the parenting orders there would be some change in the assessment for periodic child support and that would probably lead to the husband being required to pay some amounts of periodic child support to the wife given the differences in their incomes. Both parties seek that an order be made pursuant to s 123(1)(a) Child Support (Assessment) Act to deal with the payment of school fees, expenses to be paid directly to the school, enrolment fees, tuition fees, sporting fees, medical expenses and medical insurance. The wife seeks an order that the husband pay 65 percent of those expenses and she pay 35 percent and the husband seeks an order that the parties pay those expenses equally.

9. The wife asserted that she had not been given proper financial disclosure by the husband. The husband denied that that was so. It was not possible on the material that had been provided to me (and I am aware that there is probably a large amount of other documentation that has passed between the parties that I do not have), to make any determination as to whether or not one party or the other has not made proper financial disclosure.

10. At the end of the hearing I was left in some doubt as to whether or not the husband had filed his last three tax returns or his last two tax returns. I did not have the advantage of having any of his recent tax returns. The version that he gave more consistently during the hearing was that his last tax return was filed in June 2012.

11. There have been inaccurate statements made from time to time by both the husband and wife which during the course of this hearing they have sought to correct.

DETAILED CHRONOLOGY

1. The husband was born in 1976 and is currently 39 years old.

2. The wife was born on in 1983 and is currently 32 years old.

3. The parties were married in 2002 in Country B. The parties lived in the husband’s parent’s home after the marriage.

4. C was born in 2005.

5. In August 2005 the family moved to Australia from Country B and have resided in Australia since that time.

6. D was born in 2009. During final submissions the husband raised the issue that the wife was on maternity leave in 2009 after the birth of their second child but as I indicated during submissions, I really did not understanding what point he was attempting to make by telling me she was not in paid employment during that period.

7. The husband referred to a termination payment in 2010 of $8,000. That termination payment however was a product of his personal exertion during the marriage. The husband was unemployed between certain periods of employment on a reasonably regular basis during the marriage.

8. The parties separated on 1 June 2011. The children primarily lived with their mother immediately after the separation.

9. In December 2013, as a result of an order made by the court, the Suburb A property was sold and the net proceeds of sale were placed in a frozen account to await the further agreement of the parties in respect of its distribution or further court order.

10. On 5 March 2015, following an incident between the elder child and the wife, the children commenced to live with the husband and from April 2015 the wife saw the children on a supervised basis twice per week for one and a half hours. The wife commenced to have unsupervised time on an alternate weekend basis and after school in the second week from 16 July 2015.

11. The orders I have made this week are to the effect that the children will now live in a shared care arrangement with both parties being equally responsible for looking after the children for equal periods of time.

THE APPROACH IN PROPERTY MATTERS

1. In relation to the application for a property settlement order, my task is to:

   23.1.Identify according to ordinary common law and equitable principles and then value the property, assets, financial resources and liabilities of the parties;

   23.2.Determine whether it is just and equitable to make an order altering those interests and if so;

   23.2.1.Identify relevant contributions and assess them;

   23.2.2.Consider relevant matters referred to in Section 79(4)(d) – (g) of the Act;

   23.3.Determine what order adjusting the property, assets and liabilities of the parties is just and equitable.

BALANCE SHEET

1. The parties each provided a balance sheet. There is no consolidated balance sheet. The husband filed a financial statement on 30 November 2015 and the wife filed a financial statement on 7 December 2015. I have had a discussion with both the parties in relation to their position in respect of various assets and liabilities on the balance sheet that I had prepared as a result of taking information from the material that I had. I conclude that the parties have the assets and liabilities set out in the table below. Where a figure appears in bold in the agreed/determined column it relates to an item in dispute in respect to which I have made a determination, I set out after the table the reasons for making that determination.

2. The parties seem to have the following assets and liabilities:

Assets
Item no.	Title	Description	Husband	Wife	Agreed/ Determined	Value
1	J	Trust funds	$131,442.00	$131,442.00	Agreed	$131,442.00
2	H	Jewellery retained by wife	$87,685.00	n/k	Determined	$0.00
3	W	Jewellery retained by husband’s family	n/k	$100,000.00	Determined	$0.00
4	W	Term deposit in Country B	$25,000.00	$0.00	Determined	$0.00
5	H	Home contents	$900.00	n/k	Determined	$900.00
6	W	Home contents	n/k	$500.00	Determined	$500.00
7	H	4WD motor vehicle	$25,000.00	$17,000.00	Determined	$17,000.00
8	H	Motor vehicle 1	500.00	$500.00	Agreed	$500.00
9	H	Motor vehicle 2 (dowry)	$200.00	$12,000.00	Determined	$200.00
10	H	Bank account	$6,420.00	$6,420.00	Agreed	$6,420.00
11	H	Australian super as at 30.6.15	$75,945.00	$75,945.00	Agreed	$75,945.00
12	W	REST super	$44,849.00	$44,849.00	Agreed	$44,849.00
Liabilities
Item no.	Title	Description	Husband	Wife	Agreed/ Determined	Value
13.	H	Credit card	$5,027.00	$0.00	Determined	$0.00
14	H	Other loans	$19,500.00	n/k	Determined	$0.00
15	H	Outstanding electricity bill (Suburb A)	$700.00	n/k	Determined	$0.00
16	W	Matrimonial loan	$0.00	$48,500.00	Determined	$0.00
17	W	Legal loan (wife’s brother)	$0.00	$82,582.00	Determined	$0.00

Items 2 and 3 - Jewellery

1. In relation to item 2, the husband asserts its value at $87,685 and in relation to item 3, the wife asserts it has a value of $100,000. There is only limited evidence about what has happened with his jewellery and there is even less evidence about what the jewellery might or might not be worth.

2. At [169] – [171] of the wife’s affidavit filed 22 May 2012 she says:

   169.At and during our marriage the husband and his family were given monies and jewellery of an estimated $100,000.00 by my parents.

   170. I was given some items of jewellery by the husband’s parents, that at the request of the husband’s father, were returned to him at his home on 8 April 2006 as he required them to give to his other family member marriages.

   171.A wedding ring and one stone jewellery necklace and earring set that the husband’s parents had gifted to me were placed in a [Country B] safety deposit box in joint names of myself and the husband’s mother. The husband’s mother took possession of these jewellery items a couple of years ago.

3. The evidence the husband relies upon is in an affidavit by his mother filed on 6 August 2012. At [12] to [19] of that affidavit, the husband’s mother says:

   12.In around October 2002 I loaned the respondent items of jewelleries – listed as follows and with the following values:

   a. Diamond set  $7,690.00

   b. Kundan set  $19,230.00

   c. Marital jewellery  $1,920.00

   d. Gold bangles (x 8)                   $13,465.00

   e. Diamond ring (x 7)                  $11,540.00

   f. Diamond bangle (x 4)               $15,380.00

   g. Gold chain (x 2)  $7,690.00

   h. Gold set (x 2)  $3,850.00

   i. Small gold chains (x 2)            $3,850.00

   j. Gold ponds (x 2)  $1,150.00

   k. Bracelet  $1,920.00

   TOTAL VALUE  $87,685.00

   13.In around October 2002, at the time of handing the items of jewelleries to the respondent, I said to the respondent words to the effect, “You have to return this jewellery back to me after use, this is our family jewellery and this should be available for other members of the family as well”. I then said to the respondent words to the effect, “Keep the jewellery in a safety deposit box at [E Bank]”. The respondent and I both had control and access to the said locker.

   14.In or about August 2005 I discovered that the respondent had without my knowledge removed all items of jewellery from the safety deposit box mentioned in the preceding paragraph. On finding this out, I said to the respondent words to the effect, “Why have you removed all the items from the deposit box: and she replied, “I need these items for some functions and I will return it back later”.

   15.In around September 2010, the items of jewellery had not been returned to me or the safety deposit box mentioned above. The applicant telephoned me and said words to the effect, “[Ms Kunti] told me that she is keeping the jewellery in a safety deposit box in [Country B]”. To the best of my knowledge, I believe that the respondent is holding the items of jewellery in a safe locker at her father’s bank.

   16.I have asked the respondent several times to return my jewellery, but she has always refused to hand the jewellery back. In around January 2010, while the respondent was in [Country B], I said to the respondent words to the effect of, “Can you please return the jewellery before you travel back to Australia” and on this respondent replied “I will return the jewellery back to you before I return”. The jewellery has never returned back to me.

   17.In or around March 2011, I telephoned the respondent and asked for the jewellery to be returned to me. The respondent replied with words to the effect, “You can go to court to have it back. Now this jewellery is in my custody. I will ensure you don’t see it again”.

   18.In August 2011, I telephoned the respondent’s father and requested that the items of jewellery be returned to me. The respondent’s father assured me that the items of jewellery would be returned to me. He stated words to the effect, “All jewellery items are in [Ms Kunti’s] locker and I will ensure that she returns all your items back to you”.

   19.Despite my repeated requests the items of jewellery have not been returned to me or the applicant and to the best of my knowledge continue to be in control of the respondent.

4. During the wife’s cross examination of the husband’s mother, there was some initial confusion as to whether or not the husband’s mother had visited the wife’s parents to seek the return of the jewellery. Eventually in her oral evidence she said that she had never gone to see them, but she had telephoned them.

5. During this passage of the cross examination, the wife said the husband’s parents had gone to her parent’s house and had taken all the jewellery and that this was in August 2010 which was at odds with what she said at [169] – [171[ of her affidavit of 22 May 2012.

6. It is difficult to discern where the truth is in these differing versions but at least one of the witnesses is not telling the truth.

7. However, the fundamental difficulty in this whole controversy is that I do not have any reliable evidence as to the value of the jewellery in Country B. The estimates made by the husband’s mother arise from discussions with her husband. She is not qualified to give evidence as to value. Given that I do not know what any of this jewellery might be worth, I am unable to take it into account and accordingly I will be marking it on the balance sheet at nil. That applies not only to the jewellery the husband says the wife has not returned, but also the jewellery the wife says the husband’s family haven’t returned to her.

Item 4 - Term deposit in Country B

1. The husband asserts that at some point before the separation there was a term deposit held in Country B in the names of the children which had about $25,000 in it. The wife says that no such term deposit currently exists. On the evidence I have I am unable to make any finding that this asset currently exists and accordingly I mark that item as nil.

Items 5 and 6 – Home contents

1. The husband has home contents. The wife does not know the value of those contents. He says they are worth $900 and I will accept his value as to that.

2. Similarly, the wife has home contents which she says is worth $500. The husband is unable to say anything different to that and I will mark that item as $500.

Item 7 - 4WD motor vehicle

1. This motor vehicle is driven by the wife. It is registered in the husband’s name. The wife asserts that it has a value of $17,000. The husband asserts it has a value of $25,000.

2. As I indicate later, I intend to leave the 4WD motor vehicle with the wife. The best evidence I have about its value is the wife’s admission that the motor vehicle is worth $17,000 and I will accept that as its value.

Item 9 - Motor vehicle 2

1. During cross examination, the husband’s mother agreed that this was part of the dowry that was paid by the wife’s family to the husband’s family at the time of the wedding. The wife tendered today a document which indicated that the value of that motor vehicle in Australian dollars was at the time of the marriage somewhere in the region of $22,000. The husband does not dispute that the motor vehicle was provided but it is obviously now a motor vehicle that is 13 or so years old. The husband asserts its current value at $200. The wife asserts a value of $12,000. I have no independent evidence about its value and I will accept the husband’s assertion that it is worth $200 as an admission against his interest.

Items 13 and 14 - The husband’s credit cards and other loans

1. The husband says he has credit card debts of $5,027. This is a reduction of his credit card debt that he had placed on his balance sheet in the sum of $29,555. The wife did not dispute the fact that $5,027 might be the extent of the husband’s current credit card debt but opposed it being counted as a liability for the purposes of determining the net assets that would be the subject of the property settlement order.

2. The wife did not know what the husband’s other loans were. The husband asserted that those loans are now $19,500. The husband agreed that in relation to the debt to Mr F of $5,000 the wife had no knowledge but he says that in relation to the other two debts to Mr G and Mr H that the wife was given information about those about three years ago. The husband however has not fully explained the purposes for which that credit card liability was incurred nor the purposes for which the loans were incurred. I do not intend to take them into account as an liability of the husband when determining the net assets to be divided between the parties.

Item 15 - Outstanding electricity bill from Suburb A

1. The husband asserts that there was an electricity bill of $683.50 and he tendered a document that set out that liability. I understood from what he said that that liability has subsequently been paid. I accept the husband did pay that bill and that that bill related to electricity used by the wife after the separation. Given it is no longer an existing liability it will not be placed on the balance sheet but I will take it into account when considering the contributions of the parties. 

Item 16 - Money provided by wife’s brother for the acquisition of Suburb A

1. It is not disputed that the wife’s brother provided $48,500 to assist in the acquisition of the former matrimonial home at Suburb A. The husband asserts it was a gift and is not repayable. The wife says otherwise. I will take this amount into account as a contribution made on the wife’s behalf rather than placing it on the balance sheet as a debt given that the debt is probably statute barred and I am unable to find that this is an amount of money that the wife will be required by her brother to repay to him.

Item 17 - Wife’s loan for legal costs

1. The wife has borrowed $82,582 from her brother for legal costs. Given that that is the purpose of the loan it is not a liability that I would place on the balance sheet.

WHETHER AN ORDER ALTERING INTERESTS SHOULD BE MADE

1. The parties have separated and their partnership has ended. After the separation, there was no longer a continuing commitment to the mutual use of assets and a shared responsibility for liabilities.

2. Each of the parties have asked that an order adjusting their interests in property be made. I find that in all the circumstances, it is just and equitable to make an order altering property (including adjusting liabilities).

3. Based upon the discussion in relation to the balance sheet, there are two assets in respect to which an adjustive order needs to be made. They are the trust fund in the sum of $131,442 and the 4WD motor vehicle in the sum of $17,000 (total $148,442). In the circumstances of this case, although I will take into account all assets and liabilities, all contributions and s 79(4)(d) – (g) considerations, I shall express my findings as a percentage of the two assets which will require an order to change how they are held by the parties.

CONTRIBUTIONS

Initial Contributions

1. Both parties had agreed that they had minimal assets at the time of the marriage. However, the husband at different places in his evidence, said that he had an amount of about $5,000.

2. The husband’s mother in cross examination by the wife accepted that the wife’s parents had made gifts at the time of the wedding of the parties by way of dowry, and I have already referred to the motor vehicle in the sum of approximately AUD$22,000 and those gifts remain in the possession of husband’s family today.

Financial Contributions

1. It is an agreed fact that between 2002 and the birth of the first child of the marriage, the parties lived in Country B at the home of the husband’s parents. The husband was working, the wife stayed at home and was involved in home duties. The husband asserts that the husband and wife as a couple were supported by his parents; the wife says that they were not. The wife was not tested about this in cross examination and I cannot find as the husband asserts.

2. The parties arrived in Australia in 2005 and rented accommodation at Suburb I. In September 2005, when C was 7 months old, the wife commenced full time employment in customer service and by 2006 she was earning $37,000 a year. In February 2008 the wife commenced full time employment with her current employer J Ltd. As indicated already, after the birth of the second child, the wife had maternity leave in 2010 but returned to work earlier than planned because the husband had become unemployed.

3. The wife says that the husband had six employment positions over a seven year period and the husband’s evidence at [62] to [66] of his affidavit filed 5 April 2012 seems to corroborate that unstable work history. I accept the wife’s submission that she had better job stability than the husband during this period.

4. In April 2008 the parties purchased the Suburb A property for the consideration of $510,000 as joint tenants. The purchase of the Suburb A property was funded as follows:

   52.1.$52,000 in savings

   52.2.$48,500 from the wife’s brother; and

   52.3.Balance by a joint mortgage to Commonwealth Bank.

5. As I have already said, I am unable to find that the $48,500 is a loan which the brother can call upon by way of suing the wife given that, as I have said, it is probably statute barred. However, this money provided by the wife’s brother, needs to be taken into account in a significant way when dividing up what is left because of the size and timing of the contribution compared to the overall pool of assets with which I am dealing. 

Non-Financial Contributions

1. The wife asserts that she was solely responsible for performing all domestic and household duties including cleaning, mopping, laundry, groceries, shopping and cooking. That is probably not the case.  The husband asserts that between 2005 and 2009 he shared household duties. I bear in mind that both parties were in full time paid employment during that time. The wife did not ask the husband any questions about his lack of participation in household chores during that period of time.

2. I take into account the uncontroversial evidence about periods during which each of the parties had primary care of the children, particularly since the separation.

Post Separation Contributions

1. After separation the wife remained in the Suburb A property and was responsible for mortgage payments on an interest only basis in an amount of approximately $2,500 per month. She did not however have the ongoing financial capacity to continue to service the debt. The wife was not receiving any regular child support from the husband, although the husband says he was paying children’s school fees and for other expenses relating to the children (presumably in part referring to expenses when the children were with him). The husband paid the wife’s post separation electricity account.

2. Since the date of separation, the husband’s superannuation has increased from $38,000 to $75,945.

3. It also appears that since separation, the husband has been able to pay off a little under $25,000 worth of credit card debts.

Conclusion on contributions

1. A significant contribution made to the asset pool with which I am considering, came from the wife’s brother when he provided $48,500 to assist in the purchase of Suburb A. Primarily based upon that contribution (and whilst considering all assets and liabilities in the balance sheet and all other contributions), I assess that in relation to the two assets which are the focus of these orders, the wife should receive 62 percent of those assets based upon her contributions and the husband receive 38 percent based upon his contributions.

FUTURE NEEDS - SECTION 79(4)(d) - (g) MATTERS

1. I take into account the findings I have just made in relation to contributions and how that would translate into a division of those two assets.

2. The husband in his financial statement indicates that about three months ago he commenced new employment as an accountant and that his average weekly income is $2,160. The wife has provided a wage slip which has been tendered into evidence for the September 2015 period. I have some doubts as to what that document means and I do not draw any conclusions from it. I accept the husband’s sworn evidence that his current annual salary equates to $2,160 gross per week.

3. The husband’s income tax is approximately $593 per week and his rent is $450 per week. In his financial statement, he asserts that he expends the entirety of his weekly income on living expenses.

4. The wife has completed her year 12 schooling and obtained a Bachelor of Arts (English) with Honours. The wife in her financial statement indicates that she is employed as a relationship executive. She has been in that employment for almost eight years. The wife earns $1,153 gross per week. She has an income tax liability of $235 per week and pays rent of $415 per week. The wife indicates that her currently weekly expenditure significantly exceeds her income. It is probable though that the wife is being very frugal and careful with her money and is living within her means. I assume the expenditure she asserts in her financial statement relates to expenditure she believes would be reasonable rather than that which she is actually able to expend on a weekly basis.

5. The wife made the point that the fact that she was the primary carer of the two children for a significantly longer period of time than the husband, meant that her career has taken a back seat and that that is reflected in their current levels of income. I accept there is some force in that submission.

6. Both parties are generally in good health. The wife has recently undergone surgery for bleeding of an Ovarian Cyst. She says the cause is stress and anxiety which might abate to some degree with the conclusion of this litigation.

7. In the context of this very small pool of assets, the husband has a superior superannuation interest as compared to the wife.

8. The wife is currently paying child support of about $55 per week to the husband but it is likely, as I have already said, that circumstance will change given the parenting orders that have been made on 16 December 2015.

9. I find that there should be some further adjustment for s 79(4)(d) – (g) considerations to the percentages each party receives of the two assets that are the subject of the adjustive order and that should be 5 percent in the wife’s favour and that adjustment primarily arises from the disparity in the income of each of the parties and the superannuation of each of the parties.

JUST AND EQUITABLE

1. The parties’ positions changed somewhat during final submissions. Whilst I had gained the impression initially that the wife wished to retain the 4WD motor vehicle, that did not turn out to be the case and she wanted the husband to retain it. The fact however is that the wife has been driving this motor vehicle since December 2013. Because of that, I intend to leave the motor vehicle with the wife. If she wishes to trade it in or to sell it in order to purchase a motor vehicle that is more economical to run and more suitable to her purposes with the children, then she will be free to do so.

2. Based on my findings in relation to contributions and s 79(4)(d) – (g) matters, the overall adjustment should be 67 percent to the wife and 33 percent to the husband of the trust funds and the 4WD motor vehicle. Those two assets have a value of $148,442 ($131,442 + $17,000); 67 percent of that sum would be $99,456. The wife is to receive the whole of the interest in the motor vehicle in the sum of $17,000 which means she needs to receive $82,456 from the trust fund ($99,456 - $17,000), but I will express that in percentage terms given that interest will have been earned on that fund. As a percentage, that represents 62.7 percent of the trust fund (82,456/131,442). Obviously the husband will receive the remaining balance of that trust fund.

3. The orders that will be made are that each party will retain assets in their own possession and control and be responsible for liabilities in their own name. The trust fund will be divided as to 62.7 percent to the wife and 37.3 percent to the husband and the husband will transfer to the wife his right, title and interest in the 4WD motor vehicle.

NON PERIODIC CHILD SUPPORT PAYMENTS

1. As indicated, the parties seek an order under s 123(1)(a) Child Support (Assessment) Act in respect of non-periodic payments for school fees, expenses paid directly to the school, enrolment fees, tuition and sporting fees, medical expenses and medical insurance.

2. The wife wishes the husband to pay 65 percent of those amounts with her to pay 35 percent. The husband seeks that they be paid equally.

3. Section 123(1)(a) Child Support (Assessment) Act provides for orders for the provision of child support otherwise than in the form of a periodic amount.

4. The court needs to be satisfied that it would be just and equitable as regards to the child and the parents and otherwise proper to make the order sought.

5. Although there is a current administrative assessment in force, as I have already said, there will inevitably be a change to that assessment given the orders that were made on 16 December in relation to the time the children will spend with each parent. This order for non-periodic payment is in addition to any responsibility either party has to the other for periodic payments pursuant to an administrative assessment.  

6. Neither parent has an income tested pension. Neither parent sets out in their financial statements any details of the children’s weekly expenses.

7. The income of the parties is discussed above. Both parents are currently exercising their earning capacity. The parties both have limited assets. The wife has received a property settlement order which favours her in relation to two assets in circumstances where the husband has the greater superannuation.

8. The orders sought is at the request of the parties. Both recognise that hardship would be caused to the other if an order is not made. Based upon the higher income the husband has when compared to the wife’s, I find that it is just and equitable to make an order that the husband pay 60 percent of these non-periodic expenses and the wife 40 percent.

9. I find that that order is otherwise proper.

I certify that the preceding eighty (80) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 17 December 2015

Associate: 

Date:  2.2.2016