M and M
[2002] FMCAfam 64
•7 March 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M & M | [2002] FMCAfam 64 |
FAMILY LAW – Residence – contact – relationship of parents – best interests of the children.
FAMILY LAW – Property – financial contributions during marriage – just and equitable – property settlement – valuation – matrimonial assets.
Family Law Act 1975, ss.60B, 65E, 68F, 75(2), 79.
| Applicant: | C M |
| Respondent: | A M |
| File No: | ZP239 of 2001 |
| Delivered on: | 7 March 2002 |
| Delivered at: | Parramatta |
| Hearing Dates: | 14 & 20 December 2001 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Thistleton |
| Solicitors for the Applicant: | Michael Doherty Doherty Patners Solicitors DX 5034 Liverpool |
| Counsel for the Respondent: | Mr Sansom |
| Solicitors for the Respondent: | Hugh Byrne Solicitors DX 8465 |
ORDERS
The child A T M, born 13 June 1994, is to reside with the Applicant wife, who shall have the sole responsibility for making decisions about the day to day care, welfare and development of the said child.
Except as provided by Order 5, the Applicant and the Respondent are to have joint responsibility for making decisions about the long term care, welfare and development of the said child.
The Respondent husband is to have contact with the said child as follows:
(a)each alternate weekend during school term time from the end of school on the Friday to the commencement of school on the Monday, commencing on Friday 1 February 2002, PROVIDED THAT if the Monday is a public holiday then contact will continue until the commencement of school on the Tuesday morning;
(b)from the end of school on the Tuesday before each contact weekend as provided in Order 3(a) above until the commencement of school on the Wednesday immediately following, commencing on Tuesday 12 February 2002;
(c)for half of each school holiday period as agreed between the parties and, in default of agreement, the first half, excluding Christmas Eve, Christmas Day and Boxing Day, commencing at 8.30 am on the day after school term ends and concluding at 5.00 pm on the middle Saturday of each school holiday period;
(d)from 8.30 am to 5.00 pm on Father’s Day if such day does not fall on a day when the husband would normally be entitled to exercise contact pursuant to Order 3(a) hereof;
(e)for a period of not less than two hours on the child’s birthday and on the husband’s birthday in each year if such day falls on a school day and for not less than four hours if such day falls on a day when the child is not required to attend school;
(f)from 6.00 pm on Christmas Eve to 3.00 pm on Christmas Day 2002 and each alternate year thereafter;
(g)from 3.00 pm on Christmas Day to 6.00 pm on Boxing Day in 2003 and each alternate year thereafter; and
(h)at such other times as the parties shall agree.
The husband shall not be entitled to exercise contact with the said child on Mother’s Day or on the wife’s birthday.
The wife shall be permitted to enrol the said child in a suitable primary school within a reasonable distance from her home and shall do all such things necessary to authorise the Principal of the child’s school to provide to the husband copies of all school reports and all school bulletins, notices and newsletters as are usually provided to parents of children attending the said school.
Within two months from the date of these orders, the husband is to pay to the wife the sum of $20, 918.50.
In the event that the husband fails to comply with the terms of Order 6 hereof he shall take all necessary steps and execute all necessary documents to cause the property situate at and known as 15 O Place, E in the State of New South Wales to be sold by private treaty at the earliest possible date at a price to be agreed upon between the parties and, failing such agreement, to be determined by the President of the Real Estate Institute of New South Wales or his nominee and that the proceeds of sale shall be disbursed as follows:
in payment of agents’ commission and advertising expenses of sale;
in discharge of any mortgage to the Australia and New Zealand Banking Group Limited; and
the balance to be divided as to $20,918.50 to the wife with interest to the date of payment as provided by the Federal Magistrates Court Rules and the balance then remaining to the husband.
The husband and the wife are to do all acts and things and give all consents and execute all documents and writings necessary to give effect to the Orders made herein.
In the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Federal Magistrates Court shall be appointed pursuant to section 106A of the Family Law Act to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the said deed or instrument.
All documents produced in answer to any subpoena are to be returned after the expiry of one month from the date of these orders.
The proceedings are removed from the Pending Cases List.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
ZP 239 of 2001
| C M |
Applicant
And
| A M |
Respondent
REASONS FOR JUDGMENT
Application
The wife, who is the Applicant in these proceedings, seeks orders that the child of the parties’ marriage should reside with her. The Applicant seeks orders that the Respondent should have contact with the child each alternate weekend and for half of the school holidays. She also seeks orders for property settlement, requiring the husband to pay to her the sum of $45,000.00 within two months.
The husband, the Respondent to this application, asks the court to dismiss the wife’s application and make orders that the child should reside with him. He proposes a similar contact arrangement for the wife as she proposes for him. As far as property is concerned, the husband says that the wife should only receive the sum of $10,000.00, and that she acknowledge that she already received that amount in November 1999, together with a further payment of $10,000.00.
Background
The husband was born on 29 December 1963. He is now 38 years of age. The wife was born on 17 December 1954; thus, she has now turned 47. There is one child of the marriage, A T M, who was born on 13 June 1994. He is now 7 years old.
The wife was previously married, on 12 May 1980. She has a son and daughter by this marriage, now aged 21 and 19 respectively. After the break-up of her first marriage, in Egypt, the wife emigrated to Australia with the two children in 1989. She has lived in Australia since then.
In September 1992 the wife met the respondent, and they commenced living together in January 1993. The two children resided with them. At that stage, the husband owned his own home at E. He was employed by B City Council. The wife had few assets, mainly a motor car and savings of about $2,500.00. She was employed by Arnotts, the biscuit manufacturers.
The parties were married on 18 September 1993. The child A was born on 13 June 1994.
On 30 July 1996 the husband was made redundant by the Council, and he received a redundancy package. From this money, he paid the sum of $30,233.08 off the mortgage on the matrimonial home. He commenced work at Arnotts in March 1997. He worked as an on-call labourer, from 2.00 p.m. until 11.00 pm.
The relationship between the parties soured and, on 16 May 1999 they signed a handwritten document said to be a settlement agreement, which provided for a payment of $10,000.00 to the wife by way of property settlement. They separated on 22 May 1999. On
16 November 1999, the husband paid the sum of $10,000.00 to the wife.
When the parties separated, the wife moved into premises at W. The child A resided with her. There was an initial agreement between the parties that the wife would deliver the child to the husband’s residence each weekday morning, at 6.00 am on Mondays and Tuesdays and 7.30 am on other days.
The child started school in February 2000. The wife would then deliver him to the husband’s residence on Monday to Wednesday mornings, and then on Thursdays and Fridays she would take him to school herself. From about the end of April or early May the wife’s neighbour, B F, commenced dropping the child to the husband’s residence at about 8.00 am on Mondays and Tuesdays. The husband objected to this change, and the old arrangement was restored.
In June 2000 the wife and Mr F commenced to reside together in a de facto relationship. The husband ceased work at Arnotts the following month. He then received benefits from Centrelink, which he supplemented by mowing lawns and doing some part-time bookkeeping. He would collect the child A after school and the wife would pick him up from the husband’s residence later that afternoon, on her way home from work.
The wife commenced these proceedings in the Family Court at Parramatta on 25 July 2000. The application came before the Family Court for the first time on 5 October 2000. On 17 January 2001, the proceedings went to a conciliation conference. The matter was not resolved at the conference, and the proceedings were transferred to the Federal Magistrates Court.
On 2 April 2001 interim orders were made by consent that the husband have contact with the child from Good Friday until Saturday 21 April, and for alternate weekends commencing at 5.00 p.m. on the Friday until 6.00 p.m. on the following Sunday. An issue had arisen between the parties, however, about the husband’s regular contact with the child before and after school, and an interim hearing took place on 5 April 2001. The Court ordered that the husband should have contact each afternoon after school until 5.00 p.m., but no orders were made that the husband should have contact before school on those days.
A decree nisi dissolving the parties’ marriage was pronounced on
21 May 2001. The decree became absolute on 22 June 2001.
The matter was listed for hearing on 30 May 2001. A family report had been ordered, and was completed on 14 May 2001.
The Family Report was prepared by Mr Bruce Hawthorne, a Family Court Counsellor. For the purpose of preparing his report, the counsellor interviewed both the husband and the wife. He also interviewed the child. He observed the child in the presence of each parent. He did not interview Mr F.
Evidence
Both the wife and the husband gave evidence. The Counsellor was also cross-examined. Affidavit evidence as to valuation was provided by John Kozor and Salvatore Calandra, but neither was required for cross-examination. Mr F, the wife’s de facto partner, provided affidavit evidence, as did A S, the husband’s sister. In the end, neither of these people was required for cross-examination.
It was the wife’s evidence that she was mainly responsible for the housework, with little assistance from the husband except for mowing the lawns. She also deposed in her affidavit that she was also mainly responsible for the care of the child A, as well as her two children from her previous marriage. She also said that the child was diagnosed as having speech and hearing problems, which required medical attention. The child also required speech therapy. The parties shared the responsibility for visits to the speech therapist.
On the financial side, the wife said that she made more money from her employment than the husband did in most years. He was employed as a labourer with B Council until he was retrenched, and he also had a second job repairing lawnmowers. When the husband was retrenched, he applied the retrenchment money towards paying off part of the mortgage.
As to the document written out as a separation agreement on 16 May 1999, the wife annexed a copy of it to her affidavit. The wife said that she did not receive any advice about the document, which was signed by both parties in the presence of the husband’s brother-in-law, R S. The separation document provided for a division of furniture between the parties, an agreement that the husband would retain the house and keep paying the mortgage payments on it, they would each keep their superannuation entitlements, they would share the child’s expenses equally, and the husband would pay the wife the sum of $10,000.00 on 16 November 1999. There was also a proviso that if the husband obtained full-time employment, the payment would be $20,000.00.
It is agreed that the husband did in fact pay the wife the sum of $10,000.00. He has not obtained full-time work.
The parties have since been divorced. The decree dissolving their marriage became absolute in this Court on 22 June 2001. The wife has commenced residing with Mr F, whose wife was seriously injured in a motor vehicle accident, to the extent that she has been physically and mentally incapacitated and will require permanent hospital care. The wife and Mr F intend to purchase a house together. The wife’s son from her previous marriage resides with them, as do Mr F’s three daughters.
In the Family Report, which was completed on 14 May 2001, the counsellor interviewed both the parties and the child. He also observed the child interacting with each parent. He reported the child as saying he would feel ‘OK’ if the Court ordered that he live with his mother but that he would feel sad if ordered to live with his father.[1] He observed the child to be relaxed in the presence of his mother, content to play board games with her. The counsellor also observed the child playing in a sandtray with his father, later playing a game called Connect 4. The counsellor described the father as speaking to the child “in a dull monotone”,[2] as if that were a criticism, although it was noteworthy that the father gave his evidence in a monotone, also. It would appear that this is his normal tone of voice.
[1] Family Report, page 10
[2] ibid, page 11
The counsellor formed the view that the child expressed “a clear preference to live with his mother”,[3] and described the child’s close bond with her. He acknowledged the father’s devotion to the child, but tended to agree with the mother’s view that the father is excessively preoccupied with the child. It is his view that the father “does not demonstrate a willingness or capacity to contemplate that his son’s needs may not always be the same as his own.”[4]
[3] ibid, page 12
[4] ibid, page 11
The counsellor was cross-examined by Mr Sansom, Counsel for the father. He said that he always took extensive notes when preparing a report, but he had not had the time to read them before coming to court. He did recall, however, that the father had commented on the fact that the child would be one of many in the blended household the mother had set up with Mr F, but would be an only child if he were living with his father.
The counsellor agreed that the issue of a child’s schooling is a consideration in any change of residence, but he did not have a note of either parent saying how well the child was doing at school. He did not recall that the father complained that the child had spent the weekend with his mother at Australia’s Wonderland and Darling Harbour, as he had made no note about that issue. He reiterated his view in the report that both parents had a capacity to deal co-operatively with each other to parent the child.
An issue arose about whether the counsellor should have interviewed Mr F for the purpose of these proceedings. He did not recall the father asking him if it were his intention to do so. The wife’s solicitor, Mr Doherty, gave evidence that he spoke to the counsellor on 26 April 2001 and was told that Mr F would not be required for interview. I would comment that this omission is surprising; the Court would normally expect that a proposed step-parent would be interviewed for the purpose of a family report.
Principles to be considered in parenting proceedings
When a court exercising jurisdiction under the Family Law Act is considering making orders for residence or contact concerning a child, section 65E of the Act must be followed. This section lays down that the court “must regard the best interests of the child as the paramount consideration”.
Section 60B(2) sets out a number of principles which a court must take into consideration, except when the application of any of them would be contrary to the child’s best interests. These include children’s rights to know and be cared for by both their parents, and their right of contact, on a regular basis with their parents and with other people “significant to their care, welfare and development.” The principles also state that parents share duties and responsibilities concerning their children’s care, welfare and development, and they should agree about the future parenting of their children.
Section 68F(2) sets out a number of matters that a court must consider when determining what is in a child’s best interest. There are twelve of them in all, from subsections 68F(2)(a) through to (l) inclusive. Not all of them will be relevant in every case, but all of them must be considered, as I have done in this matter.
The best interests of the child
Section 68F(2)(a) requires the court to consider any wishes expressed by the child and any factors, such as the child’s maturity and level of understanding, that may be considered to be relevant to the weight the court should give to those expressed wishes. The child’s maturity, as well the child’s sex and background, are also to be considered under section 68F(2)(f).
One way of ascertaining the wishes of a child is by means of a family report, as in this case. Clearly, the report does not decide the case, nor should it, as the judicial officer hearing the case often has the advantage of considering evidence that may not have been available to the counsellor who prepares the report. At the same time, however, a family report gives the court an independent view of the child’s wishes. The counsellor who prepares the report, being a psychologist or a trained social worker, will usually be able to give the court some independent evidence about the child’s level of maturity, as well.
In this case, the child concerned was born on 13 June 1994, so he was aged 6 years and 10 months when he was interviewed and observed by Mr Hawthorne. The counsellor records a clear view by the child that he wished to reside with his mother. He was described as a “tall, healthy-looking young boy, who seemed to have attained the appropriate developmental milestones…an intelligent young boy.”[5]
[5] ibid, page 10
Quite clearly, a court would not normally give so much weight to the wishes of a child under the age of 7 years as it would to the wishes of a more mature child, say a teenager, but the child’s wishes cannot be discounted, either. The evidence shows that the child is intelligent, and of appropriate maturity for his stage in life, so I would give his wishes some weight without regarding them as definitive of the entire question.
The nature of the relationship of the child with each parent and with other persons is also relevant[6]. The child here seems to have a good relationship with both parents, nominating his mother as his favourite person in the family. He drew a diagram of his family, which initially only included his stepsisters and himself, but later added his mother and his half-siblings, only one of whom, his half-brother, resides with him. He later, after some prompting by the counsellor, added his father. Mr F was not included. It would appear that the child regards his mother as important, and he is aware of the other children in the household.
[6] s68F(2)(b)
The likely effect of a change in the child’s circumstances[7] would be minor if he were to remain living with his mother but more significant if he were to reside with his father on a full-time basis. Two major changes have already occurred, being the separation of his parents and his mother forming a new relationship. The child seems not to have reacted adversely to those changes. The proposal by his mother to buy a home of their own will result in a change for A, including going to a new school. This change will need to be made before the school year starts to minimise disruption to the child’s life. I am satisfied that the child would see moving to live with his father as more of a change, and one which he would not favour[8].
[7] s68F(2)(c)
[8] Family Report, page 10
There would not appear to be any practical difficulty or expense in the child having contact[9] with his father if he remained living with his mother. The move contemplated by his mother is only a matter of a few suburbs, and the parties all own motor cars.
[9] s68F(2)(d)
I am satisfied that each parent has the capacity to provide for the needs of the child, including his emotional and intellectual needs[10]. His level of maturity has already been considered[11]. He is a boy aged 7. He lives in a household which includes his half-brother, now a young adult, and his mother’s de facto husband, and he has regular and frequent contact with his father. He does not lack male role models.
[10] s68F(2)(e)
[11] s68F(2)(f)
There is no evidence of any likely physical or psychological harm[12] to this boy in either household. Each parent appears to demonstrate a responsible attitude to parenthood[13], although the father seems to demonstrate some signs of being excessively preoccupied with the child.[14] The counsellor attributes this to the father’s feelings of loss and rejection arising both from being made redundant at work and the break-up of his marriage.
[12] s68F(2)(g)
[13] s68F(2)(h)
[14] Family Report, page 11
There is no evidence of any family violence in this case, nor is there any apprehended violence order[15] in force.
[15] s68F(2)(j)
It is always preferable to make an order that would be the least likely to lead to further litigation[16] between the parties. It is not unlikely, however, that an order that A should reside with his mother may see some litigation between the parties about contact arrangements, but the parties may be able to resolve these matters without coming back to court. There are no other relevant facts or circumstances[17].
[16] s68F(2)(k)
[17] s68F(2)(l)
I am satisfied that the child A should continue to reside with his mother. He appears to be well settled in this environment and is strongly attached to her. I am satisfied that he would be happier living with her, and he appears not to suffer from any detriment in living with Mr F’s daughters. Living with his mother enables him to reside with his half-brother, whereas there is evidence that his father did not have a good relationship with the half-brother and would be unlikely to encourage that relationship.
The father has a strong commitment to the child, which leads to the conclusion that there should be frequent contact. This contact, however, should be designed to meet the child’s needs, rather than the father’s.
Property proceedings
In dealing with property applications between parties to a marriage, the court’s powers are set out in section 79 of the Family Law Act. Whilst section 79(1) empowers the court to make “such order as it considers appropriate”, section 79(2) requires the court to be satisfied that, in all the circumstances, it is just and equitable to make that order.
Section 79(4) of the Act sets out a number of matters that the court must take into account. They include:
a)the financial contribution made directly or indirectly by or on behalf of each party;
b)the contribution other than a financial contribution made directly or indirectly by or on behalf of each party;
c)the contribution made by a party to the welfare of the family, including any contribution as a homemaker or parent;
d)the effect of any proposed order on the earning capacity of either party;
e)the matters referred to in sub-section 75(2), so far as they are relevant;
f)any other order made under the Family Law Act affecting a party to the marriage; and
g)any child support provided by a party, or which the party might be liable to provide in the future, for a child of the marriage.
Child support contributions are also covered by section 75(2)(na), which is in identical terms to section 79(4)(g). The inference to be drawn from this repetition is that the legislature has attached considerable importance to this requirement.
In a number of decided cases, the Full Court of the Family Court of Australia has set out the approach to be taken by Courts exercising jurisdiction in property matters under the Family Law Act. Even before applying the principles set out in section 79, the first thing that the Court must do is to establish what the assets are and determine the size of the ‘asset pool’.
The next step is to ascertain the contributions, both financial and non-financial, made by each party to the acquisition and conservation of those assets.[18]
[18] Section 79(4)(a)-(c)
The third step is to consider those factors in sub-section 75(2) so far as they are relevant[19]. This may involve an adjustment in favour of one or other of the parties.
[19] Section 79(4)(e)
The matrimonial assets
I find that the relevant assets are:
(1)The former matrimonial home – agreed value: $285,000.00
(2)Husband’s account at ANZ Bank (agreed): $10,000.00
(3)Husband’s shares (agreed value): $6,000.00
(4)Husband’s Mitsubishi motor car (agreed): $1,000.00
(5)Husband’s furniture (agreed value): $2,000.00
(6)Wife’s credit union account (agreed): $10,424.00
(7)Wife’s motor car and household effects: $16,500.00
Gross asset total: $330,924.00
I find that the parties’ joint and several liabilities are as follows:
(1)Mortgage to ANZ Bank – agreed value: $60,000.00
(2)Husband’s loan from mother (agreed) $60,000.00
(3)Husband’s loan from brother-in-law (agreed): $11,000.00
(4)Wife’s credit card debt: $2987.00
(5)Wife’s loan from Capital Finance: $7495.00
Total liabilities: $141,482.00
By subtracting the liabilities of $141,482.00 from the assets of $330,924.00, I find that the net value of the matrimonial assets is $189,442.00.
The contributions of the parties
Having ascertained the value of the asset pool, the next step is to assess the parties’ financial contributions[20], their non-financial contributions,[21] and their contributions to the welfare of the family, including those made as homemaker or parent.[22]
[20] section 79(4)(a)
[21] section 79(4)(b)
[22] section 79(4)(c)
The husband made a significant financial contribution by way of providing the matrimonial home at E. The home had a value of $185,000.00 when the parties commenced cohabitation in January 1993. At that stage, the husband owed the sum of $63,912.00 under the mortgage. His initial contribution, therefore, can be calculated at $120,088.00. By comparison, the wife’s initial contribution was relatively small, being a motor car and savings of about $2,500.00.
Each party worked during the marriage, and their funds went towards the family’s welfare. The wife says that in most years she earned more than the husband did. The husband was made redundant from his employment in 1996, and applied two payments from his redundancy money towards reduction of the mortgage, being the sum of $30,233.08 on 19 July 1996, and a further $5,000.00 on 2 August 1996. Thus, the husband contributed $35,233.08 towards the mortgage.
The parties’ income went towards supporting themselves, the child A, and the wife’s two children from her earlier marriage. The husband says that the wife’s first husband made very little contribution to the upkeep of those two children and that the burden fell to him. Against this, I take into account that the wife’s income was greater than the husband’s for most of the time that they were together, and I find that there was an equality of financial contribution by the parties to the welfare of the family.
Looking at financial matters, the husband says that the parties contributed to the household chores equally, but the wife says that the husband’s contribution was confined to mowing lawns. There is evidence that the husband has always played a major role in the care of the child A, but the wife’s evidence is that he did not play the same role in relation to her children from her first marriage. In fact, the wife gave evidence that the husband in effect evicted her son from the home.
Looking at the financial and non-financial contributions made by the parties, I find that the contributions made by the parties over the six years they were together favour the husband as to 90% and the wife as to 10%.
The wife seeks an order that the husband pay to her the sum of $45,000.00 in addition to the sum of $10,000 that she has already received. The husband seeks that she should receive no more than the $10,000.00 which she has already received in late 1999, plus another payment of $10,000.00 (as submitted by the husband’s counsel). A payment to the wife of a sum of $45,000.00 would have an effect on her earning capacity[23] in that she could conceivably invest that amount and earn interest upon it, but there is no evidence that her earning capacity would be affected in any other way. Needless to say, the order sought by the husband would give her only another $10,000.00, which would have very little effect on her earning capacity There is no evidence that any payment by the husband to the wife would affect his earning capacity.
[23] section 79(4)(d)
Sub-section 75(2) factors
It is only when the parties’ contributions have been assessed that the court looks at the relevant factors in sub-section 75(2), as required by sub-section 79(4)(e). First, the parties’ ages and state of health must be considered.[24] The wife is 47 years old, the husband is aged 38. There is no evidence that they are in other than good health.
[24] section 75(2)(a)
Turning to the income, property and financial resources of the parties and their physical and mental capacity for gainful employment,[25] the husband’s income is relatively meagre, in that he gives his occupation as part-time bookkeeper and lawnmower man, earning some $200.00 per week from his exertions and receiving a job network benefit of $90.00 per week. His property interests are greater than those of the wife, in that he is the registered proprietor of the former matrimonial home, worth $250,000.00, and is a joint registered proprietor with his mother, sister and step-father of another residence in E valued at $240,000.00. He owns shares, furniture and a motor vehicle. His financial resources, in the form of superannuation, amount to $32,483.00. He would not be able to access his superannuation until he turns 55.
[25] section 75(2)(b)
The wife has only an interest in the real property which she and Mr F are buying, plus the amount of $10,424.00 in the credit union, and a motor car and some furniture. She has gone into debt since the parties separated. Her income is significantly higher than that of the husband, at $931.00 per week before tax. Her financial resources are significantly greater than those of the husband, at $53,279.00. The wife would not be able to access her superannuation for another eight years.
It is difficult to set off an interest in real property against a greater income, although I am not satisfied that the husband is working to his full capacity. He is only working on a part-time basis, and no explanation has been given as to why a man of only 38 years of age in apparent good health cannot obtain full-time work. I make no adjustment in respect of this paragraph.
The wife has, by reason of the orders made in these proceedings, the care and control of the child of the marriage.[26] The husband has no child residing with him. I consider that an adjustment in favour of the wife is called for in respect of s.75 (2)(c).
[26] section 75(2)( c)
I am not satisfied that a comparison of the commitments of the parties necessary to support themselves[27] calls for any adjustment. Whilst the wife has two children from her first marriage, her daughter is no longer living at home and the son pays board to her in the sum of $50.00 per week. Neither party, therefore, can be said to have a responsibility to support any other person.[28]
[27] section 75(2)(d)
[28] section 75(2)(e)
I am not satisfied that I should make an adjustment in favour of either party pursuant to the provisions of paragraphs (f), (g), (h), (j) and (l) of sub-section 75(2).
The wife is now cohabiting with B F[29] and I note that he is employed as a Deputy Principal with the Department of School Education. He has three children of his own to support, all of whom are under the age of 18. The children’s mother has no capacity to assist him in their support, due to her incapacity. I am inclined to agree with the submission of the husband’s counsel that Mr F represents a “resource” to the wife.
[29] section 75(2)(m)
It is proposed to make a property order pursuant to section 79 in favour of the wife, which will require the husband to pay her a relatively modest lump sum.[30] The amount would appear to be within the husband’s capacity to pay, without requiring him to sell his home.
[30] section 75(2)(n)
The legislature requires the court to take into account any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.[31] The child A has been residing with the mother since the parties separated, and will continue to reside with her as a result of these proceedings. The husband has been paying child support pursuant to an assessment, which the wife put at $44.00 per week and the husband, in his financial statement, put at $50.00 per week. Counsel for the wife has submitted that what he described as the husband’s “continuing refusal to work” must call into question the husband’s “resolve to pay child support into the future.” I am inclined to believe that this criticism of the husband is a bit harsh, and there is no evidence that he has not paid the child support that has been assessed by the Child Support Registrar. What is relevant, however, is the fact that the husband does not appear to be working on a full-time basis, so that his income is well below what would appear to be his earning capacity. Unless the husband obtains full-time work, his income will remain low, and his capacity to make child support payments will be limited accordingly. It is this limited capacity to make payments of child support that calls for an adjustment in favour of the wife.
[31] sub-sections 75(2)(na) and 79(4)(g)
Proposed property orders
I am satisfied that the sub-section 75(2) factors favour the wife to the extent that there should be an adjustment in her favour of 15%, based on the fact that she has the child of the marriage residing with her and the likelihood that future payments of child support will be meagre, due to the husband’s low income. This would mean that the wife should receive 25% of the net available asset pool.
The wife has retained assets worth $26,924.00 and has disclosed debts of $10,482.00, a net value of $16,442.00. She has also received a premature distribution of $10,000.00, making a total of $26,442.00. 25% of the net assets amounts to $47,360.50. Thus, the husband would have to pay her the sum of $20,918.50 in addition to the sum of $10,000.00 already paid.
The husband already has almost half that amount in his bank account, and he has shares with an agreed value of $6,000.00. He should have the capacity to raise the balance required without any threat to his home or his lifestyle. The amount would also assist the wife to put towards her new home. I am satisfied that this amount is just and equitable in all the circumstances.
For the reasons set out above, I make the orders as set out in the following schedule.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Scarlett FM
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