LINDSEY & CHRISTIE (No.2)
[2012] FMCAfam 467
•23 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LINDSEY & CHRISTIE (No.2) | [2012] FMCAfam 467 |
| FAMILY LAW – Property – short marriage – small asset pool – young children – limited issues – spousal maintenance – agreed determination of matter by written submissions only. |
| Family Law Act 1975, s.75(2) |
| Applicant: | MR LINDSEY |
| Respondent: | MS CHRISTIE |
| File Number: | CAC 22 of 2010 |
| Judgment of: | Neville FM |
| Hearing date: | By written submissions |
| Date of Last Submission: | 8 February 2012 |
| Delivered at: | Canberra |
| Delivered on: | 23 May 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Self-represented Litigant |
| Counsel for the Respondent: | Ms J Haughton |
| Solicitors for the Respondent: | Legal Aid ACT |
ORDERS
In accordance with section 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of Mr Lindsey from his interest in the [P] Superannuation Scheme ([P]), Ms Christie is entitled to be paid (by the Trustee of the [P]) the amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulation 2001 using a base amount of $45,000.00 and there shall be a corresponding reduction in the amount Mr Lindsey would be entitled to receive but for these Orders.
The Operative time for Order (1) is four (4) business days after the service of these Orders upon the Trustee.
The Husband pay the Wife spousal maintenance in the sum of $90.00 per week for the next eighteen (18) months only.
Each party be declared the sole and absolute owner to all items of personal property, furniture and effects in the name of that party or in the possession of that party at the date of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Lindsey & Christie (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 22 of 2010
| MR LINDSEY |
Applicant
And
| MS CHRISTIE |
Respondent
REASONS FOR JUDGMENT
Introduction
These Reasons relate to the property dispute between the parties, parenting matters having been finalised by way of Judgment delivered on 11 November 2011. As with the parenting matter, the parties have agreed to deal with the property application solely on the basis of affidavit material and written submissions.
Orders made on 15 December 2011 allowed for both parties, in the absence of settlement following a conciliation conference with a Registrar, to file their written submissions. This has now occurred.
Of course, in determining a matter solely on submissions is necessarily and inevitably rather more fraught because the Court does not have the benefit of cross-examination, and is faced with a range of untested allegations and contentions.
Thus, for example, the Wife contends that the Husband engaged often in the course of their relationship in gambling, and did so to a significant degree. The Husband confirms that he gambles, but nowhere near to the degree alleged. Likewise, the Husband contends that the Wife has subjected him to significant verbal abuse, which has impacted adversely on his career, as well as on his capacity to spend time with his young children. The Court can make no findings in relation to such matters and allegations.
In any event, I should also note that it was agreed that the Court would deal firstly with parenting matters before considering property issues, which (to a degree) accounts for the delay between the filing of, for example, financial statements and ultimately dealing with property orders. There were, it should also be noted, many attempts to resolve the issues between the parties, other than by litigation, but unfortunately, such attempts proved futile.
As already noted, apart from the fact that the Court has dealt with both parties over a not insignificant period of time, and therefore has had the opportunity to view and gain some insight into the dynamics at work (bearing in mind also that the Husband has always been a self-represented litigant), the Court is not able to make any formal findings about the various contentions made by either party.
By way of overview, the Court is dealing with parties aged [just on] 42 years (husband) and 34 years (wife), a very modest property pool ($25,283 [net] in non-superannuation assets; $241,384 in superannuation), a relationship of approximately 3½ years, two quite young children (born 2008 and 2009) for whom both parents care, but still predominantly the Mother, and finally, with the Applicant Husband remaining in full-time, well-paid employment, and the Wife now working two days per week. The Husband pays significant child support, and the wife receives income from a number of ‘government’ sources detailed later in these reasons.
As noted below, the only issues relate to a contest over whether the Wife’s application for a share of the Husband’s superannuation should be granted, and whether her application for spousal maintenance also should succeed.
Orders Sought
In his original Application filed on 7th January 2010 the Husband did not seek any orders in relation to property. By a minute filed on 6th March 2012, the Husband confirmed that he sought orders whereby each party should retain what is currently in their possession, and that there should be no order for spousal maintenance.
In her submissions filed on 10th August 2011 (which dealt with both parenting and property matters), the Wife sought the following orders: a splitting order in relation to the Husband’s superannuation with a base amount of $60,000, together with an amount of $200 per week by way of spousal maintenance. It was not specified for how long such an order, if granted, should remain in place. For example, it was not specified whether it should be paid until the children are some particular age. Such a detail, as I have said, was not particularised. It would have been helpful for some time-frame to have been recorded in the orders sought.
Submissions
Husband’s submissions: The Husband’s submissions were filed in the form of an affidavit on 3rd February 2012.
In those submissions, the Husband summarises what he describes as the ‘financial relationship’ of the parties both at the commencement of cohabitation (March 2006)[1] and at the date of separation.
[1] The parties married [in] 2007.
He contends that at the date of commencement of the relationship, he had a 2002 Toyota Camry, and otherwise, neither party had any assets that exceeded $4000. He confirmed that the Wife had a HECS debt of approximately $14,000 - $15,000.
Mr Lindsey also swore that, at the commencement of the relationship he had superannuation of approximately $108,000, and that the Wife’s superannuation was approximately $5000.
At the date of separation (29th October 2009), Mr Lindsey said that he still had the 2002 Camry, plus $10,000 in the bank, superannuation of $177,000, and [unparticularised] credit card liabilities of approximately $17,000. He contended that at the same date, Ms Christie still had her HECS debt (now said to be about $17,000), cash in the bank of some $20,000, and superannuation of about $20,000.
Mr Lindsey confirmed that household goods and furniture were equally shared between the parties.
The Husband confirmed that, during the relationship he earned approximately $100,000 per year (which remains the case, but at a slightly higher figure of approximately $124,696 pa), and that he continues to pay child support in an amount of $16,066 per annum. He avers that the Wife, if she were working full-time, would earn approximately $60,000.
Wife’s submissions: The Wife contends that she earns $27,000 per year as a [occupation omitted], working 2 days per week. She is in receipt of a Centrelink Pension of $147 per week, and Family Payments of $137 per week.[2]
[2] Wife’s submissions filed on 10th August 2011, p.19.
The Wife also contends that the Husband will continue to accrue or accumulate greater superannuation than she does currently or will be able to for quite some years to come, and certainly while-ever she is essentially the primary carer of the children. Certainly this is the case in relation to the youngest child, daughter [Y], given that the older child [X], spends more time with his Father than does his sister.
On the very limited, and untested evidence available to the Court, the asset pool looks as follows in the light of the information provided by both parties in their respective financial statements filed 3rd March 2010, 5th December 2011 and 3rd February 2012 (Husband) 19th February 2010 and 17th June 2011(Wife):
| ASSET | POSSESSION | VALUE |
| Bank accounts | Wife | $10,842 |
| Members Equity Home saver | Husband | $9,781* |
| Members Equity Home saver | Wife | $8,793* |
| Contents | Wife | $1,000 |
| Engagement ring | Wife | Not valued |
| Contents | Husband | $3,500 |
| 2002 Toyota Altise | Husband | $8,650 |
| Nissan Pulsar | Wife | No value |
| Suncorp children's education fund account | $5,342 | |
| ADD BACK: sale proceeds shares (para.61 of wife's affidavit filed 17.6.11) | Husband | $11,900 |
| TOTAL ASSETS | $59,808 | |
| LIABLILITIES | ||
| HECS debt | Wife | $16,751 |
| Commonwealth Visa | Husband | $10,061 |
| Coles MasterCard | Husband | $7,713 |
| TOTAL LIABILITIES | $34,525 | |
| NET POOL | $25,283 | |
| SUPERANNUATION | ||
| [A] | Wife | $24,174 |
| [P] | Husband | $149,737 |
| Lindsey Superannuation Fund | Husband | $67,473 |
| TOTAL SUPERANNUATION | $241,384 | |
| * indicates the funds can only be used for the purchase of a house or for superannuation without there being tax implications for use for other purposes | ||
Contributions
Earlier in these reasons I detailed the limited assets that each party brought to the relationship. I have also noted the Husband’s employment and his salary. At the time the parties met, both were working in the public service. I have earlier noted too the allegations against the Husband in relation to his gambling and his refutation of same, but in the circumstances, I cannot make any formal findings that materially affect the outcome of the current proceedings.
Again on the sole basis of submissions there is sufficient evidence for the Court to safely infer that the Wife was the primary carer of the children, while the Husband was the primary financial provider during the course of the relationship. Also, given the parenting orders now in place, the Court can infer that the Wife remains primary carer of the children (as I have said, particularly in relation to [Y]), but also noting that Mr Lindsey has very significant involvement in the children’s lives.
Considerations Under s.75(2)
As with ‘contributions’ there is limited evidence upon which the Court can rely. Doing the best that one can in the circumstances, the following may be observed.
Neither party raises any issue in relation to health, and I have already recorded their ages. Similarly I have earlier recorded the respective incomes (and sources thereof). The care of the two children is now a matter of formal order of this Court, and, subject to what has already been stated in these reasons, reflects the significant care and involvement of both parents.
Neither party has re-partnered, nor is there any suggestion that there are any other dependants.
The capacity to consider appropriately the matter of ‘standard of living’ is somewhat problematic in the circumstances. It seems to me that it is more likely than not that, given his superior financial position,
Mr Lindsey is more likely to be in a better circumstance concerning this issue, and that Ms Christie may be somewhat less so. But how to make any detailed determination of such an issue must be problematic here.
The duration of the relationship, too, has already been noted, as has its impact on the earning capacity of the parties.
Just & Equitable Order
I accept the Wife’s submission that while-ever she has primary care of the children, she will likely struggle to engage in fulltime employment and thereby not be able to add much to her superannuation holdings.
That said, it is perhaps not unlikely that, once the children reach school age, there will be much greater capacity for her to return to full-time employment. In this regard, I simply note again the parenting orders previously made.
In all the circumstances of the case, in my view a splitting order is appropriate in relation to the Husband’s superannuation. However, it should be in the [base] amount, not of $60,000, as sought by the Wife, but in the sum of $45,000. The Court so orders.
Spousal Maintenance
In addition to the matters already noted in these Reasons, and which may properly be considered in relation to this specific application of $200 per week as sought by Ms Christie, I note the following further matters.
I accept generally the submission from the Wife that there is some ‘financial capacity’ of the Husband to warrant an order for spousal maintenance. I do not necessarily accept that it is quite to the degree suggested in the submissions filed on her behalf, namely $337 per week ‘excess’ of weekly income over expenses.
There is no dispute that the Husband pays child support of $385 per week. It is also accepted by the Wife that if an order is made in her favour in relation to child support, her Centrelink pension would reduce correspondingly.
I accept the submission that the Wife wishes to remain available as much as possible to care for the young children of the parties.
In all the circumstances of this matter, and especially having regard to the modest resources available to each of the parties pursuant to the property orders, in my view, a case has been made for there to be an order for spousal maintenance. However, in my view, that order should be for $90 per week, and only for the next 18 months. The Court so orders.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 23 May 2012
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