KRUGER & KRUGER

[2020] FamCA 670

FAMILY COURT OF AUSTRALIA

KRUGER & KRUGER [2020] FamCA 670

FAMILY LAW – PROPERTY SETTLEMENT – Applications by the parties for alteration of property interests – where wife seeks orders be made for spousal maintenance and for a departure from a Child Support Assessment so as to increase the child support payable to her by the husband – short marriage of approximately four years – one child of the relationship – where the husband brought almost the entirety of the asset pool into the relationship including a farming property – husband occupied role of being the main income earner – wife assumed primary carer role – assessment of contributions – where both parties made contributions both direct and indirect in differing spheres – consideration of s 75(2) of the Act factors – wife remains primary carer of the child – where wife seeks to establish an equestrian training business in the future – orders made for a division of property – child support departure order made – spousal maintenance order made.

Child Support (Assessment) Act 1989 (Cth) ss 117, 123,
Family Law Act 1975 (Cth) s 75(2)

Bell & Nahos [2016] FamCAFC 244

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

APPLICANT: Ms Kruger

RESPONDENT: Mr Kruger

FILE NUMBER: MLC 5804 of 2018

DATE DELIVERED: 20 August 2020

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Hartnett J

HEARING DATE: 3, 4 and 5 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Byrnes

SOLICITOR FOR THE APPLICANT: Mills Oakley Lawyers

COUNSEL FOR THE RESPONDENT: Mr Combes

SOLICITOR FOR THE RESPONDENT: Geraldine O’Connell Lawyer & Consultant

Orders

1. Pursuant to s 117 of the Child Support (Assessment) Act 1989 (Cth) (‘the CSAA’), the husband pay to the wife periodic child support by way of a departure from the administrative assessment of child support payable by the husband to the wife in respect of the child, and for a two year period from the date of these orders, in the sum of $100 per week, to be paid on a fortnightly basis each Tuesday into the wife’s nominated Commonwealth Bank account ending in …90, such sum to be increased annually on the first day of July each year commencing on 1 July 2021 in accordance with any upward movement in the Consumer Price Index (‘CPI’) (All Groups) referable to Melbourne.

2. Pursuant to s 123(1)(a) of the CSAA the husband pay or cause to be paid direct to the provider, or in reimbursement to the wife within seven (7) days of the provision of receipts to the husband by the wife, to the wife’s nominated bank account, the following by way of child support in a form other than periodic support for the child:-

   (a)from 2021, one half of all education expenses for the child’s attendance at B School in F Town, or such other primary and/or secondary school as agreed between the parties in writing, including but not limited to fees and levies, books, stationery, uniforms, footwear and equipment (including sporting uniforms and footwear and equipment), camps, excursions and contributions to school building fees and the like;  

   (b)the entirety of the child’s private health insurance premiums at the current level of cover; and 

   (c)one half of all out-of-pocket and non-rebateable hospital, medical and dental expenses for the child; and  

   (d)half of all agreed extracurricular activities. 

3. Child support payable by the husband to the wife pursuant orders 1 and 2 herein be credited as to 100 percent against the child support payable by the husband to the wife under any relevant administrative assessment, reference number …, for the payment of child support for the child for a period of two years from the date of these orders. 

4. The husband pay or cause to be paid to the wife, for the maintenance of the wife, the sum of $100 per week from the date of these orders and for a period of 12 months only.

5. Within 90 days from the date of these orders (‘the date’) the husband pay to the wife the sum of $344,500 (‘the sum’). 

6. In the event the husband defaults in paying the sum to the wife by the date pursuant to order 5 herein, the husband’s real property situated at R Street, G Town in the State of Victoria, being the whole of the land particularly described in Certificate of Title Volume … Folio … (‘the G Town Property’) forthwith be placed on the market to be sold on terms as agreed between the parties in writing (‘the sale’). 

7. In default of agreement being reached between the parties in writing for the purpose of the sale in accordance with order 6 herein, the G Town Property be sold on the following terms:- 

   (a)by such real estate agent as agreed between the parties in writing and failing agreement, as recommended by the President of the Real Estate Institute of Victoria, or his or her nominee (‘the agent’); 

   (b)by auction, or by such other sale method as agreed by the parties and their respective lawyers in writing on the earliest date available to the agent (‘the auction’); 

   (c)the agent be and is hereby authorised in writing to communicate with each of the parties as to all aspects of the sale, inclusive of all offers received and all feedback from potential purchasers; 

   (d)at such reserve price agreed by the parties in writing in consultation with the agent, and failing agreement the reserve price be as recommended by the agent; 

   (e)the parties each be and are hereby restrained from disclosing the reserve price to any third party prior to the reserve being exceeded at auction; 

   (f)the parties each be and are hereby restrained from selling the property at a lower price than the reserve price, save with the written consent of the other party first obtained; 

   (g)on an unconditional contract of sale providing for a settlement of no more than 90 days unless otherwise agreed by the parties in writing; 

   (h)in the event the G Town property is not sold at auction then the property is to remain on the market for private sale thereafter as agreed between the parties; and 

   (i)liberty to apply in relation to the sale be reserved to each party. 

8. Upon the settlement of the sale, the net proceeds of the sale of the G Town Property be disbursed as follows:- 

   (a)firstly, in payment of all costs and commissions of the sale; 

   (b)secondly, in payment of such sum as is required to discharge the registered mortgage in favour of Australia and New Zealand Banking Group Ltd being registered mortgage number … and secured by the G Town property; 

   (c)thirdly, in payment of all outstanding rates, taxes and/or outgoings in relation to the G Town property; 

   (d)fourthly, in payment of the sum, plus interest, calculated in accordance with the Family Law Rules 2004 (Cth) from the date, to the wife; and

   (e)fifthly, the balance then remaining to the husband. 

9. The wife otherwise retain to the exclusion of the husband:- 

   (a)all savings in bank accounts held and/or registered in her sole name; 

   (b)her motor vehicle 1 with the registration number …; 

   (c)her  with the model number …; 

   (d)household contents currently in her possession; and 

   (e)her entitlement to any superannuation benefits accrued in her sole name. 

10. The husband otherwise retain to the exclusion of the wife:- 

    (a)all savings in bank accounts held and/or registered in his sole name; 

    (b)the G Town property; 

    (c)all plant, equipment and livestock remaining at the G Town property; 

    (d)his motor vehicle 2 with the registration number …); 

    (e)his white sedan motor vehicle; 

    (f)his motor vehicle 4 with the registration number …; 

    (g)his motor vehicle 3; 

    (h)his motor vehicle equipment; 

    (i)his T Company shares; 

    (j)household contents currently in his possession; and 

    (k)his entitlement to any superannuation benefits accrued in his sole name. 

11. Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:- 

    (a)each party be solely entitled to the exclusion of the other to all other real and personal property, including choses-in-action and shares, registered in the name of or in possession of such party, or to which that party is legally or beneficially entitled, as at the date of these orders; 

    (b)monies standing to the credit of the parties in any bank account are to become the property of the party in whose name the account is registered; 

    (c)each party retain for their sole use and benefit any superannuation or employment related benefits accrued in their sole name; 

    (d)insurance policies remain the sole property of the owner named therein; 

    (e)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; 

    (f)each party be solely responsible for any liability of whatsoever nature and kind in their respective names, including but not limited to any credit card liability, and 

    (g)any joint tenancy of the parties in any real or personal estate is hereby expressly severed. 

12. Otherwise all extant applications are dismissed and the matter is removed from the list of active cases. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 5804 of 2018

Ms Kruger

Applicant

And

Mr Kruger

Respondent

REASONS FOR JUDGMENT

Preliminary  

1. This proceeding commenced in the Federal Circuit Court of Australia on 25 May 2018. It was transferred to the Family Court of Australia on 6 August 2019. At trial each of the parties sought final parenting and property orders. Both parties submitted that an adjustment of the parties’ legal and equitable interests in property should occur in particular in respect of the main asset which is a … hectare livestock farm situate at and known as R Street, G Town in the State of Victoria (‘the farming property’). 

2. During the running of the trial, the parties consented to final parenting orders in respect of their daughter, Z born in 2015. Z is now aged four years and nine months. Those orders provided essentially that each of the parents have equal shared parental responsibility of Z and that she live with the Applicant wife (‘the wife’) and spend time with the Respondent husband (‘the husband’) for five nights out of fourteen each fortnight; for holiday periods; and for other special occasion days and times.[1] Commencing on 30 January 2022 that time spent with the husband shall increase for Z such that she shall spend six nights out of 14 in each school term fortnight, together with half the holidays and special occasion days and times with her father.[2] Thus Z shall in the future spend almost equal time with each of her parents.

   [1] Final (parenting) order made by consent on 4 August 2020, order 4.

   [2] Ibid, orders 5-7.

3. There remained outstanding between the parties their competing property applications which required judicial determination. The reasons that follow deal with the making of final property orders by the Court. 

4. Statements of fact in these reasons are findings of fact on the balance of probabilities. It is not necessary in these reasons for judgment to comment upon all of the evidence of each witness nor to comment on every exhibit tendered. However every piece of evidence relied upon by the parties has been read and carefully considered by me.[3] 

   [3]Bell & Nahos [2016] FamCAFC 244, [28]; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, [62].

5. At the commencement of the trial, the wife sought that the husband pay to her the sum of $800,000; child support in the sum of $400 per week; and half of all school, health and extracurricular costs relating to Z. Additionally, the wife sought the husband make a payment to her of $400 per week in spousal maintenance payments until 31 December 2023. This application bore no resemblance to an outcome that would be anticipated on the law as applicable to the facts of this case. During the trial the wife amended the orders as sought by her such that she sought a payment from the husband in the sum of $525,000 together with child support and spousal maintenance wherein the figure of $400 each week was reduced to $200 each week in respect of each of those payments.

6. The husband sought, both at commencement of the trial and at conclusion, that each party retain those assets held by them or in their respective possession and that he pay to the wife, by way of a property adjustment, a sum of $300,000.

Background

1. The husband was born in 1971 and he is aged 49 years. His occupation is a self-employed farmer, working a farming property in country Victoria of which he is the sole registered proprietor. The husband inherited this property from his parents and he is a third generation farmer. He is in good health.  

2. The wife was born in 1989 and she is aged 31 years. She was born in the United States of America (‘USA’) and is a citizen of that country. She has also acquired permanent residency in Australia. She is in good health. She is working to establish a business on a property near F Town in Victoria, which she has leased for a 12 month period with such lease due to expire in approximately May 2021.[4] The wife has an option to purchase the property she now leases and she intends to do so if possible. To that end, she has made improvements in the sum of approximately $20,000 to the home situate on the property as well as improvements to the grounds, stables and paddocks. She is experienced and accomplished in her field and is highly motivated to set up a business in an occupation for which she has a great passion and to work hard to provide for herself and Z.  

   [4] Affidavit of Ms Kruger sworn 30 June 2020, [50].

3. The parties commenced cohabitation on 1 June 2014 and married in 2014. Their daughter Z was born in 2015. The parties separated on 2 May 2018 when the wife and Z left the farming property (on which the former matrimonial home was located). Since that time Z has remained living with the wife. Z was approximately two and a half years of age when the parties separated. Z had limited time spent with the husband but in January 2020 that altered upon orders being made by consent of the parties providing for Z to spend substantial and significant time with the husband, being five nights in each fortnight and other periods. By virtue of the orders made on 4 August 2020, Z’s time spent with the father will increase, as outlined in paragraph 2 of these reasons.  

Material relied upon  

1. The wife relied upon:- 

   a)a Further Amended Initiating Application filed on 30 June 2020; 

   b)a Financial Statement sworn on 30 June 2020; 

   c)a trial affidavit sworn on 30 June 2020; 

   d)an affidavit in reply sworn on 29 July 2020; 

   e)annexures sent to the Court on 1 July 2020 which related to the trial affidavit sworn on 30 June 2020; 

   f)annexures tendered into evidence on 5 August 2020 which related to the affidavit in reply sworn on 29 July 2020; 

   g)an outline of case document filed on 3 August 2020; 

   h)a balance sheet sent to the Court on 4 August 2020; 

   i)a document of orders sought sent to the Court on 4 August 2020; and

   j)a bundle of documents for tender sent to the Court on 4 August 2020.

2. The husband relied upon:- 

   a)an Amended Response to Further Amended Initiating Application filed on 22 July 2020; 

   b)a Financial Statement sworn on 22 July 2020; 

   c)an trial affidavit sworn on 22 July 2020; 

   d)annexures tendered into evidence on 5 August 2020 which related to the trial affidavit sworn on 22 July 2020; 

   e)an outline of case document filed on 31 July 2020; and 

   f)a summary of argument document filed on 31 July 2020. 

3. The expert evidence relied upon by the parties in the property order proceeding was:- 

   a)an affidavit of single expert witness sworn by Mr L, property valuer, on 29 July 2020; and

   b)annexures tendered into evidence on 5 August 2020 which related to the affidavit of single expert witness sworn by Mr L, property valuer, on 29 July 2020. 

Assets and Liabilities of the Parties

1. Whilst throughout the trial there was no agreement between the parties about what should be included in the asset pool, nor at what value, in closing submissions and with input from the Court, the parties ultimately agreed on the assets and liabilities of the parties, which are set out in the table below:- 

ASSETS
Property	Ownership	Value
R Street G Town in the State of Victoria (‘the farming property’)	Husband	$1,700,000
Plant, Equipment & some livestock on the farming property	Husband	$158,004[5]
Vehicle, equipment, a trailer and other equipment & liverstock at V Street, F Town in the State of Victoria	Wife	$11,900[6]
SUB TOTAL		$1,869,904

[5] Exhibit ‘W-1’ being the annexures to the affidavit of Ms Kruger, Valuation of All Asset Appraisals, dated 31 July 2020, pages 49 and 50.

[6] Ibid, page 64.

LIABILITIES
Property	Ownership	Value
ANZ overdraft account ending …99 which is an encumbrance over the farming property	Husband	$250,000
SUB TOTAL		$250,000

TOTAL (as approximated and agreed to by the parties): $1,620,000

Notes:-

A.The parties agreed that their individual bank account deposits should not be included in the table above, in particular, in circumstances where the wife’s bank account credits represent monies loaned to her by her parents post separation.

B.The husband has a loan in respect of his purchase of livestock which approximates to the present value of the livestock and which, by agreement, is not included in the table above.

C.The parties each personally own a motor vehicle and such vehicles are approximately of equal value and thus by agreement, are not included in the table above. Additionally, the husband has leased a new vehicle and it is fully encumbered.

D.The parties also agreed that any shareholdings held by either of them are not attributable to any contribution made by the other and are of inconsequential value in any event. In those circumstances they are not included in the table above.

1. Neither party sought a splitting order in respect of the other parties’ superannuation entitlements. The wife’s current superannuation with W Super is approximately $6,170.[7] The husband’s current superannuation with M Super is $39,294.[8] Whilst there is some disparity in these figures, the Court has determined that such disparity should not be adjusted for elsewhere in the parties’ asset pool. There is a considerable age difference between the parties (the husband being 18 years older) such that the wife has, relatively, many more working years to build up her superannuation benefits. Neither of the parties’ superannuation balances are high. The husband did not make any provision for superannuation accumulation by him during the years of the parties’ cohabitation. His current entitlement represents that which he brought into the relationship, increased over time by virtue of successful investments by the trustee of the relevant superannuation fund. However, during this COVID-19 pandemic era, such investments may be less successful. The husband’s income historically has not been such that regular superannuation contributions have been made by him to any fund.

   [7] Financial Statement of Ms Kruger filed 30 June 2020, Part J.

   [8] Financial Statement of Mr Kruger filed 22 July 2020, Part J.

Contributions at commencement of cohabitation  

1. At the commencement of cohabitation the husband had the following:- 

   a)the sole proprietorship of the farming property. Its value at that time was approximately $1,450,000.[9] The husband had completed a renovation of the home on the farming property in 2011;  

   b)considerable plant and equipment held over many years which had been maintained and updated, and not differing in any significant way from that plant and equipment which exists now, together with livestock;[10] and  

   c)his superannuation entitlements. 

   [9] Affidavit of Mr L filed on 29 July 2020, Exhibit ‘W-3’ at page 34.

   [10] Ibid.

2. At the commencement of the parties’ cohabitation, the wife had a sum of US$84,578.95 in a N Bank account in her name (‘the N Bank account’).[11] At around the time of separation there was a balance of approximately US$58,093.46 in the N Bank account.[12] 

   [11] Affidavit of Mr Kruger sworn 22 July 2020, [76(f)] and Annexure ‘K-2’ at page 57; Affidavit of Ms Kruger sworn 30 June 2020, [208]; Annexures sent to the Court on 1 July 2020 which related to the affidavit of Ms Kruger sworn 30 June 2020, Annexure ‘R-18’ at page 134.

   [12] Ibid. 

Contributions during cohabitation  

1. During the period of cohabitation each of the parties contributed to the welfare of the family. The husband occupied the traditional role as main income earner whilst the wife was the primary carer for the parties’ daughter Z. Additionally, and more particularly prior to Z’s birth, the wife assisted the husband in the operation of the farming property. She had a good understanding of animals and animal husbandry (as acknowledged by the husband) and was able to make a contribution to the farming property by virtue of her experience and knowledge. The wife was primarily engaged in home duties following Z’s birth and was assisted in that regard by the husband when he finished his working day. The husband also assisted in the care of Z as he was able and to the extent that the wife would allow him to do so. Following Z’s birth the wife obtained paid part-time employment for a period of approximately eight months with C Company. She also worked (in an unpaid capacity) at D Business, being an employer for whom she had worked prior to Z’s birth. The income received by the wife from C Company was in a sum unknown to the husband and the wife’s application of such funds was entirely at her discretion.[13] The husband made available to the wife for her use his ANZ credit card (referred to as the ‘fuel card’ by the parties) but the wife alleged her access to same was limited and, in fact, the husband did not obtain a second card for the wife’s use until later in the marriage. The wife was required to access the husband’s card when she sought to use the fuel card until about September 2016 when he provided the wife with her own card.  

   [13] Affidavit of Mr Kruger sworn 22 July 2020, [17] and [67].

2. In September 2015, the parties had established a joint Commonwealth Bank of Australia (‘CBA’) account. That account was not accessed by the husband for withdrawal purposes but rather it was an account into which he commenced to deposit $100 to $120 per week and from May 2016, $200 each week for the wife to spend on groceries and household items.  On 4 May 2018, there was remaining in that account an amount of $386.75. The wife withdrew the remaining funds and closed the account at around the time of separation.  

3. On the wife’s evidence, the wife was not provided with sufficient funds from the husband to run the household and pay for the expenses of herself and Z and thus applied the sum of approximately AUD$34,837.19 to the payment of those expenses in the period between the withdrawal of funds by her from the N Bank account in June 2014 until her separation from the husband in May 2018.  Additionally, in August 2017, the wife withdrew AUD$13,383.90 to cover the costs of her sinus operation.  

4. During the parties’ cohabitation, house situated on the farming property was improved by the parties. In 2011, being prior to cohabitation, the husband had carried out considerable renovations but some work remained to be done. At trial, the home was valued by the expert witness in the sum of $200,000.[14] The wife described the further renovations carried out by the parties as having a cost of $150,000.[15] That evidence is rejected and the husband’s evidence is preferred, namely, that the further renovations in relation to which both parties made a contribution was in the sum of $50,000 with such monies being funded out of the husband’s income and savings.  

   [14] Affidavit of Mr L filed on 29 July 2020, Exhibit ‘W-3’, page 34.

   [15] Affidavit of Ms Kruger sworn 30 June 2020, [215].

5. The husband described the wife as “a very anxious helicopter parent”[16] who would curtail his time with Z whilst the parties lived together. He described the wife taking Z to the D Business to be cared for, on occasion, by the wife’s friend Ms P whilst the wife took a break, instead of leaving Z in the care of the husband. The wife did so because she enjoyed the company of Ms P and enjoyed being at that location. The wife had commenced to work with Ms P in August 2014 and continued to assist where she could until April 2018. In return Ms P helped with the care of Z from time to time. No payment of monies passed between Ms P and the wife.  

   [16] Affidavit of Mr Kruger sworn 22 July 2020, [32].

6. The wife curtailing Z’s time with the husband was a result of the wife’s concern that Z was not safe in her father’s care because of the husband’s excessive alcohol consumption. The husband admitted that in hindsight he “probably drank more than [he] should on a day to day basis”.[17] It is clear on the evidence that the husband had a drinking problem, which presented difficulties for the wife (who herself did not drink) both in her dealings with the husband and in her making of arrangements for the care of Z. The wife became anxious about leaving Z in the care of the husband at times. The husband’s alcohol consumption did not however interfere with his ongoing ability to look after his livestock and continue the proper operations of the farming property, nor did it stop the husband from being able to be up early in the morning whilst the wife went out to exercise from which she would return around the time of sunrise. The husband’s drinking also did not impinge on his ability to fulfil his duties as a member of a community group in relation to which he was always on call.[18]

   [17] Ibid, [33].

   [18] Ibid.

7. Following separation, the husband sought to address his drinking habit, acknowledging that there had been an exacerbation of what was already a consumption of alcohol issue as the marriage deteriorated.[19] In December 2018, he ceased to consume alcohol altogether and has not drunk since that time.[20]  

   [19] Ibid, [36].

   [20] Ibid.

8. On 1 May 2018, being the day before the parties’ separation, the wife withdrew AUD$9,330.30 (US$6,522.22) from the N Bank account, being monies applied by her in support of her and Z post the parties’ separation. In addition to that amount withdrawn from her own funds, she provides affidavit evidence that she:- 

   …accessed [the husband’s] bank account again on the evening of 1 May 2018 whilst he was sleeping and transferred the sum of $5,000 to [herself] to cover [her] and Z’s food, clothing, shelter and other necessities as [she] was afraid that [the husband] would follow through on his previous threats to kick [her] out of the home, and [she] would be left with no financial support to provide for [herself] and Z.[21] 

   [21] Affidavit of Ms Kruger sworn 29 July 2020, [15].

Post-separation  

1. At around the time of separation the wife also withdrew a total of AUD$14,647.63 from the husband’s credit card and overdraft account.[22] These withdrawals were without the knowledge or consent of the husband. In the same month the wife commenced full-time employment earning income of $55,000 gross per annum.[23] In or around mid-August 2019 the wife commenced to be employed at K Business until she was injured in an accident in February 2020 and was advised to change her work activities.[24] She then determined to commence the business that she is now operating.[25]

   [22] Ibid, [73].

   [23] Affidavit of Ms Kruger sworn 30 June 2020, [25].

   [24] Ibid, [31], [32] and [227].

   [25] Ibid, [50].

2. In the period from September 2018 until the trial, the wife struggled to support herself and Z without any significant assistance from the husband save obviously the monies withdrawn by the wife from his accounts at separation. The husband paid a very low assessed amount of child support being in the sum of $27.14 each week.[26] The husband did not otherwise contribute to the expenses of Z and the wife.  

   [26] Ibid, [238] Annexures sent to the Court on 1 July 2020 which related to the affidavit of Ms Kruger sworn 30 June 2020, Annexure ‘R-18’ at page 134.

3. The wife precluded the husband from seeing Z for a period of two months following separation which resulted in the commencement of this litigation. In July 2018, orders were made for the husband to spend three periods of time each fortnight with Z with such times to be supervised by one or other of the nominated sisters of the husband. That situation continued until January 2020.  In that period of time the wife was living variously in rental accommodation at X Town, Y Town, AA Town in the State of Victoria. The husband travelled to each of these locations three times in each fortnight for about one and a half years in order to spend time with Z. On 14 January 2020, orders were made for the husband to spend five nights in each fortnight with Z on an unsupervised basis. 

Matters as to s 75(2) of the Family law act 1975 (cth)

1. The husband and the wife will contribute equally for the payment of Z’s school fees at B School in F Town. The husband will, by virtue of orders to which he consents, contribute to the support of Z when she is in the wife’s care in the sum of $100 each week for the next two year period and thereafter as assessed or otherwise as agreed. That increase is in recognition of the husband’s receipt of income, in the 2019 financial year, of a taxable income of $63,683 which is a sum above that which he has previously received.[27] The husband’s low child support assessed amount related to taxable incomes of less than $20,000 per annum. The reality is that Z has various needs which can be met by the income, property and financial resources available to each of her parents.

   [27] Exhibit ‘W-2’ being the husband’s unsigned tax return for the financial year ending 2019 tendered during the trial.

2. The husband will continue to meet the private health insurance and ambulance cover costs for Z. He will also contribute as to one half of the costs for Z’s extracurricular activities which are likely to include riding, swimming and ballet.

3. The wife is well qualified to commence a business in her chosen industry. She was both a trainer and instructor in the USA and worked in Germany and Australia.[28] She has a degree from Q University in the USA.[29] She has extensive experience in the industry and also has some management experience gained in the USA in respect of the operation of such businesses.[30] Whilst she anticipates her income in the next 12 month period to be similar to the income of the husband, receipt of that income will take time to build up and she will still have the primary care of Z. Her needs will exceed her income for a 12 month period and the husband has the capacity and financial resources to meet that shortfall by making a contribution to payment of the wife’s expenses. 

   [28] Affidavit of Ms Kruger sworn 30 June 2020, [12].

   [29] Ibid, [19].

   [30] Ibid, [12]-[20].

Conclusion  

1. The parties’ marriage was relatively short. The husband brought into the relationship almost the entirety of the asset pool which he had held, through his family, for a number of generations, becoming sole proprietor of such property more than a decade before the parties met. He was established in life in a material sense. The wife was not. The monies she brought into the relationship were in part taken out of it upon separation. The monies that were applied to the relationship by the wife, being in the sum of approximately AUD$34,837.19 or a little more, were not applied to the operations of the farming property or its capital improvements, but were applied to the living expenses of the family, as was the husband’s respective income.[31] The parties both made contributions, both direct and indirect, whilst cohabitating together, each in their different spheres.

   [31] Affidavit of Mr Kruger sworn 22 July 2020, [76]; Affidavit of Ms Kruger sworn 30 June 2020, [210], [213(a)] and [218].

2. During the marriage, the parties’ daughter was born and the wife became the primary carer of Z. That was at times made more difficult for her because of the husband’s consumption of alcohol. In the period following separation, the wife’s contribution to Z’s support far exceeded that of the husband in both a financial and non-financial sense.

3. The Court determines the wife’s overall contribution to be 17 percent.

4. When looking to the s 75(2) of the Act matters, the Court finds a further adjustment of 5 percent in the wife’s favour is warranted.

5. Additionally, the wife will require a spousal maintenance sum, for a very limited period, whilst she establishes her business. It will be to the parties’, and Z’s, benefit if the wife is able to succeed in this regard. The wife is hard working and motivated and has taken up residence in fairly close proximity to the husband to best advance Z’s interests, and to give herself an opportunity to work in a field with which she is very familiar and which may well provide her with a good income into the years ahead.

6. The husband has the capacity to pay a sum of $100 per week in spousal support for a duration of 12 months. The wife has a clear need for such support. She cannot continue to borrow from her parent’s as she has done in the past to fund a modest lifestyle for herself and Z. The wife’s parents have been very generous but it is not their obligation to support either the wife or Z. It will be easier for the wife to earn an income when Z commences school next year and both she and Z settle into a routine.

7. Thereafter, each of the parties should have a similar earning capacity and income. Z’s expenses shall be shared between them in orders made this day. I am mindful the husband will now be required to borrow funds to pay out the wife and that such funds will need to be repaid by him. However, the husband retains capacity and is possessed of financial resources to meet the payments ordered, even if it cannot be found, on the evidence, to be anything like the capacity the wife asserted of him at trial.

8. The payment to be made to the wife shall be 22 percent of the total asset pool of $1,620,000. That is a sum of $356,400. From that shall be deducted the amount of $11,900, being property held by the wife. The payment shall thus be $344,500. 

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hartnett delivered on 20 August 2020.

Associate: 

Date:  20 August 2020