Maider & Carrigan
[2009] FamCA 483
•19 May 2009
FAMILY COURT OF AUSTRALIA
| MAIDER & CARRIGAN | [2009] FamCA 483 |
| FAMILY LAW – PROPERTY SETTLEMENT |
| APPLICANT: | Ms Maider |
| RESPONDENT: | Mr Carrigan |
| FILE NUMBER: | ADF | 1515 | of | 2006 |
| DATE DELIVERED: | 29 May 2009 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | BURR J |
| HEARING DATE: | 21 October 2008, 29, 30 January 2009, 2, 3, 4 & 11 February 2009, 27 & 28 April 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr McQuade |
| SOLICITOR FOR THE APPLICANT: | Adey Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Bowler |
| SOLICITOR FOR THE RESPONDENT: | Martin Robinson |
Orders
That in full and final settlement of any claim that either party may have against the other by way of settlement of property or variation of settlement of property:-
(a) The mother do pay to the father within three calendar months of the date hereof the sum of NINETY THOUSAND DOLLARS [$90,000.00].
(b) Contemporaneously with the payment of that amount to the father by the mother pursuant to paragraph 1(a) of these Orders, the father do and he is hereby directed to transfer to the mother forthwith at the mother’s expense in all respects all that his right, title, estate and interest both at law and in equity in the property situated at G in the State of South Australia (“the [G] property”) and in the Holden Vectra motor vehicle registration number …;
(c) Each party do all such acts and things and sign all such documents as are necessary to give effect to the terms of these Orders PROVIDED THAT if the parties or either of them shall refuse or neglect to execute any transfer or other documentation pursuant to the terms of these Orders within seven [7] days after the same shall have been tendered to him or her by or on behalf of the other party for that purpose then and in such case a Registrar of the Family Court of Australia upon proof by affidavit of such refusal or neglect is hereby appointed to execute and if in his or her opinion it shall be necessary so to do to settle the same and to do all such other acts and things and to execute such other documents as shall be necessary to give full force and effect thereto and shall execute and do the same accordingly.
(d) The mother do hereafter duly pay and discharge to the exoneration of the father all mortgage instalments, rates, taxes and other outgoings in relation to the G property and do indemnify the father against any liability in relation to any such payments.
(e) The father’s estate and interest (if any) both at law and in equity in the following be and the same are hereby vested in the mother:-
(i)the mother’s personal effects, clothing and jewellery;
(ii)the furniture and household effects in the mother’s possession including the Queen size wooden bed in D’s bedroom SAVE AND EXCEPT for the items to be returned to the father pursuant to paragraph 1(f)(iii) of these Orders;
(iii)the items and jewellery (wedding gifts) obtained by the mother prior to marriage as identified on page 3 of Exhibit 15;
(iv)the aforesaid Holden Vectra motor vehicle;
(v)the mother’s ING Investment;
(vi)the mother’s Uni Superannuation benefits and entitlements;
(vii)plot number 583, Street number …, … Town, …, Pakistan (“plot 583”);
(f) The mother’s estate and interest (if any) both at law and in equity in the following be and the same are hereby vested in the father:-
(i)the father’s personal effects, clothing and jewellery;
(ii)the furniture and household effects in the father’s possession;
(iii)the furniture and household effects to be returned by the mother to the father from the G property at the father’s expense within twenty-eight [28] days of a written request for same by the father, namely:-
A.11 Fin electric column oil heater (main bedroom);
B.5 tier rosewood bookshelves with 2 doors to bottom section (entrance);
C.pair of Jamo satellite speakers with subwoofer and a DL4 celestial speaker (study);
D.7 piece rosewood dining suite made in Pakistan comprising 6 tub back chairs and a rectangular pedestal table with inlaid floral design (dining room);
E.corner 4 tier rosewood shelve unit with 2 doors to the bottom section (dining room);
F.round hardwood occasional table on tripod pedestal base (dining room);
G.rosewood magazine rack with inlaid floral design (dining room);
H.rosewood coffee table with 3 drawers with inlaid floral design (lounge room);
I.pair of rosewood CD cabinets with single glass door and brass handles (lounge room);
J.Kenwood KR-V999D amplifier (lounge room);
K.small floor rug (lounge room);
L.nest of 4 rosewood occasional tables with inlaid floral design (lounge room);
M.4 drawer rosewood bow front chest with inlaid floral design (lounge room);
N.Bailey aluminium extension ladder (outside);
O.metal single drawer tool bench (storage area).
(iv)the items identified on page 2 of Exhibit 15 as having been obtained by the father prior to marriage SAVE AND EXCEPT for the Queen size wooden bed in D’s bedroom to be retained by the mother, and that such items be returned by the mother to the father at the father’s expense within twenty-eight [28] days of a written request for same by the father;
(v)the jewellery (wedding gifts) identified on page 2 of Exhibit 15 as having been obtained prior to marriage from the father’s parents, and that such items be returned by the mother to the father at the father’s expense within twenty-eight [28] days of a written request for same by the father;
(vi)the father’s IA Company termination payment;
(vii)the father’s MCB Bank balance;
(viii)the proceeds of sale of the father’s Suzuki Cultus motor vehicle;
(ix)the father’s Virgin Superannuation benefits and entitlements;
(x)plot number 539, Street number …, …, …, Pakistan (“plot 539”);
(g) Henceforth each party shall discharge without calling upon the other to contribute thereto the debts and liabilities contracted by them and henceforth each party is restrained and an injunction is hereby granted restraining the parties and each of them from pledging the credit of the other.
(h) If the mother do make default in payment of the sum or any part thereof mentioned in paragraph 1(a) of these Orders then and in such event the mother do pay to the father interest thereon at the rate prescribed by the Family Law Rules 2004 as amended AND FURTHER that the G property be sold and the net proceeds of sale applied in the manner following:-
A. To the father the sum of $90,000.00 or such balance as then remains due and outstanding together with interest thereon at the aforesaid rate calculated from the said due date for payment to the date of payment to the father of the said sum or such balance as at that time shall remain due and outstanding to the father; and
B. To the mother the balance thereof.
That within twenty-eight [28] days of the date hereof the father do provide to the mother written evidence that he has provided to his employer and his bank the undertakings given by him as contained in paragraphs (b) and (c) of Exhibit 11, namely:-
“(b)I will provide my Employer with an irrevocable authority to pay my entire salary to HSBC Bank or such other bank with whom I may bank from time to time;
(c)I will provide the HSBC Bank or such other bank with whom I may bank from time to time an irrevocable authority to automatically deduct and pay to the CSA the full amount of my child support obligations in accordance with assessments issued from time to time by that agency;”
That all applications be otherwise dismissed and removed from the pending list.
IT IS NOTED that publication of this judgment under the pseudonym Maider & Carrigan is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADF 1515 of 2006
| MS MAIDER |
Applicant
And
| MR CARRIGAN |
Respondent
REASONS FOR JUDGMENT
The Applications
I have before me for my determination disputed issues between the parties as to matters of property settlement and child support.
At the commencement of the trial, the parties were also unable to agree on issues pertaining to their two children D born in June 1997 and N born in December 2003. However, to their credit, after the 1st Day Hearing on 21 October 2008 and Continuation Hearing days of 29 and 30 January 2009 and 2, 3, 4 and 11 February 2009, the parties were able to agree upon final orders which were made by me by consent resolving all children’s issues.
Background
The parties were both born in Pakistan. The father was born in June 1966 and is thus aged almost 43 years. The mother was born in December 1968 and is thus aged 40 years.
The parties were married in September 1991 in Pakistan. Neither of the parties had any assets of note as at the date of marriage.
The parties initially commenced living together in Pakistan after marriage. The father was working with IA Company and the mother worked as a Bank Officer.
The parties lived in London in 1993 while the mother studied under a scholarship at a British University.
The mother worked full time in various finance and teaching positions until shortly prior to the birth of the parties’ first child D in 1997.
After the birth of D, the mother worked on a part time basis before recommencing full time work as a teacher in 2000.
In January 2001 the parties moved to Adelaide. The father continued his employment with IA Company. The mother and children resided in a rental property in G.
In March 2001, the mother obtained employment as a telemarketer and a part time position at a University. The mother resigned from her telemarketing position and commenced working on a permanent part time basis in a shop in May 2001.
In October 2001 the parties purchased two residential plots in Pakistan, one being registered in the sole name of each of the parties.
In November 2001 the mother resigned from the shop and increased her hours at the University to 30 hours per week for a contract period of six months. Thereafter the mother pursued further education … for which the mother received a tax free scholarship. She continued to work for the University on a part-time basis.
In June 2002 the father took leave without pay from his position with IA Company and returned to reside in Australia. The father was unemployed but undertook voluntary work until he returned to Pakistan in October 2004, at which time he continued his employment with IA Company. When the father returned to work in Pakistan, the mother and children remained in Adelaide and the father returned to Adelaide approximately 2-3 monthly to visit the mother and children for periods of approximately 20 days.
The mother alleges that in January 2004 she received a sum of $12,000.00 as a gift from her parents.
The parties purchased the former matrimonial home at G in 2004, the deposit for which had been accumulated from the parties’ earnings and their savings from overseas.
The parties finally separated in or about April 2006 (according to the mother) or October 2006 (according to the father).
In July 2006 the mother redrew $50,000 on the mortgage account and deposited it into her superannuation account.
On 27 July 2006 the mother made an application to the Child Support Agency (“CSA”) for the father to be assessed. The initial assessment was for the father to pay $26.67 per month. In September 2006 the mother requested that the CSA collect the child support amount on her behalf.
The father signed a Divorce Deed in Pakistan on or about 16 October 2006 and a certificate dated February 2007 was issued from the local authority confirming the divorce.
On 11 November 2006 the father’s child support liability was continued at $26.67 per month. The mother applied in December 2006 for a review of that assessment.
Consent orders were made by Judicial Registrar Forbes on 20 November 2006 providing until further order, inter alia, for the care of the children and that the mother have sole use and occupation of the former matrimonial home on the condition that she continue to pay the mortgage and all rates and taxes.
In November 2006 the father left his employment with IA Company and returned to reside in Australia. The father unsuccessfully sought employment in his profession and worked for a take-away restaurant.
On 6 December 2006 the mother obtained a Domestic Violence Restraining Order against the father. Also in December 2006 the mother applied for a change in the Child Support Assessment.
In January 2007 the father also lodged an application for change of the Child Support Assessment. The mother lodged an objection which was upheld in April 2007.
The father remarried in April 2007.
In June 2007 the mother again applied for a change of the Child Support Assessment for the father, which was rejected. The mother appealed this decision and this appeal was heard by the Social Security Appeals Tribunal in December 2007.
In December 2007 the father obtained employment with Q Company and moved to Doha with his current wife.
On 12 December 2007 the father was assessed by the Social Security Appeals Tribunal as having a capacity to earn in the amount of $45,000 per annum and thus was liable for child support at $683 per month until 30 June 2008. The father did not attend the hearing.
The father did not pay the amount as assessed and the mother filed a further application for a change of assessment on 12 May 2008. The father paid child support arrears in May 2008.
On 9 September 2008 the CSA assessed the father as having an income of $120,000 per annum and thus was liable for child support of $1,633.00 per month.
On 9 October 2008 contested divorce proceedings between the parties were heard by Dawe J. The parties divorce thus became absolute on 10 November 2008.
On 21 October 2008 consent orders were made on a final basis that the children live with the mother. The balance of the children’s issues were adjourned for trial.
As stated earlier, on 11 February 2009 final orders were made regarding the children’s issues and on their own application, the Application of the paternal grandparents was dismissed.
The balance of the trial to finalise property and child support issues was adjourned to 27 April 2009.
The evidence
Each party relied on affidavits they had filed and gave evidence in support of their applications. The mother also relied upon affidavits filed and oral evidence given by her partner Mr F, her father and Mr S, who valued the parties’ properties in Pakistan. The father filed an affidavit by his current wife Mrs Carrigan, who also gave oral evidence.
Assets, financial resources and liabilities
The parties were able to largely agree on what constituted their assets and liabilities and the values for same:-
Assets
36.1.Former matrimonial home at G $330,000.00
36.2.Holden Vectra (mother) $4,650.00
36.3.Father’s IA Company termination payment $4,557.00
36.4.Father’s MCB Bank balance $2,800.00
Total $342,007.00
Less Liabilities
36.5.Mortgage over former matrimonial home $66,000.00
Net total $276,007.00
By the final day of the trial neither party was seeking a superannuation splitting order and sought to have the agreed value of the superannuation included as part of the general pool of property.
Superannuation
37.1.Mother’s Uni Superannuation $61,180.00
37.2.Father’s Virgin Superannuation $4,288.00
The total net pool of property and superannuation agreed between the parties therefore totals $341,475.00.
Matters not agreed
Matters which were not agreed and which required my determination were:-
39.1.the value of the father’s Suzuki Cultus motor vehicle which he had sold in October 2007;
39.2.the value of the mother’s ING investment;
39.3.the value of the blocks of land in Pakistan;
39.4.the father’s claim for certain items of household effects; and
39.5.the mother’s application for a departure from the administrative assessment of child support to the effect that the father be ordered to pay lump sum child support to the mother from his share of the property pool. I deal with that issue towards the end of my reasons.
Suzuki motor vehicle
The father set out in his trial affidavit that the car had been parked outdoors for a period of twelve months prior to its sale in October 2007 and thus the price he received for it was the best he could get due to the condition of the car. The father annexed a receipt for Rs 160,000, which he states is worth the equivalent of approximately $2,800. The father also attached two quotations from car dealers indicating a value of the vehicle at Rs 160,000 and Rs 165,000. The mother disputed this value but did not produce any further evidence on this topic.
I am satisfied that the value that ought to be attributed to the Suzuki motor vehicle at its date of sale is $2,800.00.
ING investment
In her Statement of Financial Circumstances filed 24 October 2006, the mother disclosed a value of $1,218.00. The last Statement of Financial Circumstances filed by her on 25 September 2008 stated the value then to be $5,340.00.
Counsel for the mother urged me to adopt the lower value being the figure most proximate to separation. However, I am satisfied that it is appropriate to treat this asset in the same manner as the others and apply the most current value of $5,340.00. In a global assessment of contributions which is the most appropriate approach in this matter, it would be unwise to attempt an entirely separate exercise for an individual asset of such limited value. The father has for the most part continued to pay generous child support and thus his contributions in this way and in other ways has continued beyond separation.
Pakistan blocks of land
At trial the father’s position in relation to land in Pakistan was that each party should retain the block of land registered in their name without a value being attributed to it. The parties agreed that the blocks were of equal value, whatever that value might be.
The mother’s Outline of Case indicated that she was initially relying on the value of the land at the date of separation being $56,000.00 for the two blocks. However, the mother’s position at trial was that she was relying on the valuation of Mr S at $99,442.00 for the two blocks. The mother proposed that the father receive those blocks as part of his entitlement.
I am satisfied that the approach promoted by the father is the most appropriate. I am not satisfied that I am able to make a reliable finding on the value of the blocks for a number of reasons:-
46.1.in her Statement of Financial Circumstances filed 23 September 2008 the mother attributes a value to one of the blocks (and hence to each of them) of $24,000.00;
46.2.in her Financial Questionnaire filed the same day she attributes a value of $28,000.00 each;
46.3.no joint valuation of the blocks was obtained;
46.4.the only valuation was by a Mr S who is a friend of the mother’s brother. The mother unilaterally arranged that valuation.
46.5.Mr S valued each block at Rs 2,600,000 or approximately $43,000.00;
46.6.Mr S said that he would like to buy the blocks and was thus not just an impartial observer and expert.
Household contents
H Company conducted a valuation and produced a report as to the value of the contents of the former matrimonial home dated 19 January 2009 (Exhibit 15). The value of the household contents acquired during the marriage by both parties was stated by that report as $3,091.00. The parties did not dispute the accuracy of that valuation but disagreed as to how I should deal with the items.
On the last day of trial Counsel for the father submitted that there were certain of those items of household contents which the father wished to have returned to him. No oral evidence was given or taken on the subject in the trial. Counsel for the father relied on the items listed at paragraphs 106, 107, 108 and 111 of the father’s trial affidavit of 12 December 2008 and sought the return of the items listed therein. The father was not cross-examined in relation to them.
The father’s Counsel contended that the items listed in paragraphs 106, 107, 108 and 111 of the father’s trial affidavit were the same as those identified in Exhibit 15. However, a detailed and painful analysis of the two reveals that not to be the case. Some items are not common to both lists. However, Counsel for the father in his address placed particular emphasis and reliance on the items in Exhibit 15 highlighted in yellow. Counsel for the mother promoted no different approach. Hence, that is the list upon which I have placed reliance in making my determination on the issue.
Exhibit 15 also sets out the valuation of items owned by each of the parties before marriage, the father’s being valued at $658.00 and the mother’s at $515.00. The parties effectively agreed that each would keep what they introduced before marriage except that the father agreed that the queen sized bed in D’s room remain with the mother. Also the mother sought to retain the bridal jewellery given to the mother by the father’s parents so that it could be passed on to the daughter of the parties, N. The value of that jewellery is $380.00. Most of the items introduced into the marriage by the mother were jewellery also.
In my view the most appropriate resolution of this issue is by each retaining that which they introduced into the marriage (save for D’s bed). They each thereby receive items of equivalent value and the father too would then have the opportunity of passing the jewellery to N.
Thus the value of items to be distributed between the parties is $3,091.00.
In the absence effectively of a challenge to the father’s claim by the mother in cross-examination, I am satisfied that it is appropriate to return to the father the items sought by him as highlighted in yellow on pages 4 and 5 of Exhibit 15. Those items total $1,363.00. The mother would thus be left with items totalling $1,728.00.
Contributions of the parties
Neither party introduced any significant assets into their marriage relationship. Essentially, everything they have was introduced during the course of their relationship. Each contributed to the acquisition, conservation and maintenance of that asset pool in varying ways and to varying degrees.
For his part, the father was in regular and permanent employment for some 13 years of the parties’ 15 year cohabitation, initially with IA Company and subsequently, including at the present time, with Q Company. From June 2002 until October 2004, the father earned essentially no income whilst he was living with the mother and children in Adelaide.
Subsequent to separation the father demonstrated a somewhat chequered history in terms of providing financial support for his family. Initially he was assessed to pay the paltry sum of $26.67 per month in child support, a situation which continued between July 2006 and December 2007. Thereafter and until 30 June 2008 he was assessed to pay child support at the rate of $683.00 per month. On 9 September 2008 the CSA assessed child support payable on the father’s earnings which, including benefits, was agreed as being $120,000.00 per annum. He now pays $1,633.00 per month.
The mother contributed financially prior to the birth of the parties’ first child D in 1997. She also undertook some periods of study in that time. Subsequent to D’s birth, the mother resumed part-time employment in 1998 and then full time employment in 2000 until the parties’ migration to Australia in January 2001. The mother promptly secured employment but her income has always been significantly inferior to that of the father and he has clearly made the greater contribution in a financial sense.
However, due to the father’s many and at times lengthy absences from home in the pursuit of his employment, the mother made by far the greater contribution as a home maker and parent. There were periods when she was in fact the sole carer for the children including between February 2001 and June 2002 and then again between October 2004 and April 2006.
Subsequent to separation the mother has continued to make a significantly greater contribution as a home maker and parent than has the father. In many senses her contribution in that regard has remained effectively sole. The father remains based overseas in Qatar in his employment. In his evidence he indicated that it would be some 3 to 4 years before he was able to attempt to secure similar employment in Australia.
Since separation in April 2006 the mother has continued to meet mortgage payments and other outgoings on the former matrimonial home property. As part of the father’s salary package, he receives a significant rental allowance from his employer.
Conclusion on contributions
I am satisfied that the mother has made the greater contribution both during the marriage relationship and subsequent to separation, reflected particularly in her significant contribution as a home maker and parent. In my view that greater contribution would be appropriately reflected by a 60 / 40 division of the asset pool in favour of the mother.
Section 75(2) factors
I turn now, as I am obliged to do by Section 79(4)(e), to the factors enumerated in Section 75(2).
(a) the age and state of health of each of the parties;
Both parties are in their early 40’s and both enjoy good health.
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
The father is employed by Q Company and earns a tax free income, including benefits, of $120,000.00 per annum.
Currently the mother is employed on a contract basis with the University. For working 2 ½ days per week she receives $32,000.00 per annum plus has negotiated a separate contract for an additional $13,000.00 per annum. As the children are both of school age, the mother has the capacity to increase her working hours. If she works full time on her current rate, she would earn $64,000.00 per annum. It was not clear from the evidence whether or not she could then accommodate the additional contract of $13,000.00 per annum. Thus her likely range of income on a full time basis would be between $64,000.00 and $80,000.00 per annum. She will never though enjoy the capacity to earn income at the same level as that enjoyed by the father.
The mother enjoys significantly greater superannuation benefits at the present time than does the father. It will be many years though before either of them is entitled to access those funds.
Each of the parties alleges that they owe significant moneys to their families in relation to legal costs and other debts incurred. Both agreed that they were not debts that I was to take into account in calculating the net property pool. If relevant at all they were matters of relevance only in terms of these section 75(2) factors.
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
Both children will continue to reside with the mother and are likely to continue to do so for some time given that their ages are 11 (almost 12) and 5 years respectively. Due to the fact of the father’s residence overseas and lengthy absences during which he has no opportunity to contribute meaningfully to the care of the children, the obligation upon the mother is and will remain significant.
(d)the commitments of each of the parties that are necessary to enable the party to support:-
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain;
and
(e)the responsibilities of either party to support any other person;
The father has remarried and his wife, Mrs Carrigan, does not work. In her oral evidence she indicated that she had not searched for work but that it is difficult for her to find work while living in Qatar. The father thus supports his current wife.
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:-
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party;
I have previously referred to the parties’ superannuation entitlements.
(g)where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;
and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;
and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
and
(l)the need to protect a party who wishes to continue that party’s role as a parent;
No additional matters emerge for my consideration pursuant to these sub-sections.
(m)if either party is cohabiting with another person – the financial circumstances relating to the cohabitation;
The father lives with his current wife Mrs Carrigan in the Q company accommodation for which they do not pay rent. They do not own any property together and as mentioned above, the father supports his current wife in her role as a home maker.
The mother is in a steady relationship with Mr F but I accept that they do not live together. Mr F indicated though that it was his intention to ask the mother to marry him. He is a tradesman earning $55,000.00 per annum.
(n)the terms of any order made or proposed to be made under section 79 in relation to:-
(i)the property of the parties;
(ii)vested bankruptcy property in relation to a bankrupt party;
Relevant matters under this sub-section I consider later in my reasons.
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i)a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii);
No additional matters emerge for my consideration pursuant to this sub-section.
(na)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;
The father’s total salary package is $120,000.00 per annum. He has been assessed for child support based on that salary in the sum of $19,596.00 per annum or $1,633.00 per calendar month.
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
The mother’s Counsel contended that a matter of relevance here was the father’s lack of frankness in relation to his financial position, specifically soon after separation in the disclosure of relevant income for the purposes of calculating proper child support. However, certainly of latter times the father has consistently met all of his child support obligations.
(p)the terms of any financial agreement that is binding on the parties to the marriage;
and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage;
These sub-sections are not relevant to my decision in these proceedings.
Conclusion on Section 75(2) factors
The mother will remain the primary caregiver for the children and indeed for lengthy periods will be the sole carer for the children. In addition, the disparity between her earning capacity and that of the father gives rise to an additional loading in favour of the mother. I assess that it is appropriate to recognize these factors by a loading of a further 10%, bringing the total calculation of appropriate division to 70 / 30 in favour of the mother.
Just and equitable
It remains for me to consider whether or not the Orders I propose in relation to the property settlement issues between the parties are just and equitable (Section 79(2) of the Act).
I have determined that the total property pool for division between the parties is as follows:-
79.1.Agreed net total of assets and superannuation
(paragraph 38) $341,475.00
79.2.Sale proceeds of father’s Suzuki motor vehicle
(paragraph 41) $2,800.00
79.3.Mother’s ING investment (paragraph 43) $5,340.00
79.4.Father’s share of household contents (paragraph 53) $1,363.00
79.5.Mother’s share of household contents (paragraph 53) $1,728.00
Total $352,706.00
My determination above is that the mother should receive 70% of that pool represented by a figure of $246,894.00. The father would thereby receive 30% being $105,812.00.
Of that pool, the mother is to receive:-
81.1.Former matrimonial home at G $330,000.00
81.2.Holden Vectra motor vehicle $4,650.00
81.3.ING investment $5,340.00
81.4.Share of household contents $1,728.00
81.5.Superannuation entitlements $61,180.00
Total$402,898.00
LESS
81.6.Mortgage liability $66,000.00
Net total $336,898.00
By comparison, the father would receive:-
82.1.IA Company termination payment $4,557.00
82.2.MCB Bank balance $2,800.00
82.3.Suzuki sale proceeds $2,800.00
82.4.Share of household contents $1,363.00
82.5.Superannuation entitlements $4,288.00
Total$15,808.00
The mother would thus be receiving an amount of $90,000.00 (rounded) in excess of her calculated entitlement of $246,894.00. She is thereby required to make a payment to the father of $90,000.00 to effect the settlement calculated as appropriate by me.
There is significant equity in the former matrimonial home and the mother has the ability and capacity to increase her earnings. I am satisfied that it would not be appropriate to make any further adjustment on just and equitable grounds to the settlement I have calculated as being appropriate for the parties. I am satisfied that the mother, without hardship, can secure the $90,000.00 to be paid to the father. Further, in order to enable her to do so, I believe it appropriate to extend a little further time to her in order to secure those funds. I believe that a payment period of 3 months is proper.
Child support
The mother’s position is that the father has been irregular with his payments of child support and has attempted to avoid his child support obligations by failing to make any genuine attempt at obtaining appropriate employment in Australia and in concealing his earnings from the mother and the CSA. In support of this the mother points to the father’s failure to notify the CSA of his employment with Q Company at a time before the Social Security Appeals Tribunal hearing. The mother states that she has no confidence in the father continuing payments after the conclusion of the proceedings. The mother highlights that the father has no assets in Australia and lives in Qatar, which is not a country in which the child support payments could be enforced.
The mother’s application arising from her concerns is contained in her Further Amended Initiating Application filed on 30 January 2009 at paragraph 20 thereof:-
“That pursuant to Sections 124 and 141 of the Child Support (Assessment) Act 1989 (as amended) the husband do pay to the wife lump sum child support as this Honourable Court deems just and equitable but in such sum that is not less than the sum required to be paid by the wife to the husband pursuant to sub-paragraph 14(b) hereof and that such sum be credited against the husband’s child support liability pursuant to any administrative assessment issuing from time to time.’
There is clearly an error in that paragraph in that it makes reference to “sub-paragraph 14(b) hereof”. It appears on the re-draft the numbering was not altered and it is meant to refer to sub-paragraph 18(b) of the said Further Amended Initiating Application. Sub-paragraph 18(b) itself contains similar errors in re-numbering and it appears that the references to paragraphs 15, 16 and 14(a) are meant to be references to paragraphs 19, 20 and 18(a) respectively. I am satisfied that is the case by reference to the Amended Initiating Application filed 23 September 2008 which was the document further amended by the said Further Amended Initiating Application.
The mother is therefore seeking that the father pay her child support in a lump sum which would otherwise be equivalent to the father’s entitlement to property settlement and that the amount be credited to his future child support obligations.
Whilst the mother’s application is stated to be based on Section 124, it could be said that Section 123A is the more appropriate particularly given the provisions of Section 123A(2), as I explore later. However, for the purposes of the determination I am being asked to make, the relevant considerations which arise under each section are essentially the same.
Pursuant to Section 123(1)(b) of the Child Support (Assessment) Act 1989 (Cth) an application can be made for an order that child support be provided in the form of a lump sum to be credited against the amount payable under the liability under the administrative assessment. Section 123A provides that the Court may make an order for the payment of child support in the form of a lump sum to be credited against amounts payable under the liability if:
“(a)the carer entitled to child support or the liable parent makes an application to a court under paragraph 123(1)(b); and
(b)the court is satisfied that it would be:
(i)just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(ii)otherwise proper;
to make an order under this section; and
(c)the amount of the lump sum payment equals or exceeds the annual rate of child support payable for the child under the administrative assessment.
Note:If the court makes such an order, the lump sum payment is credited under section 69A of the Registration and Collection Act against the amount payable under the liable parent’s liability (rather than reducing the annual rate of child support payable under the administrative assessment).”
Of significance in the context of the mother’s application is Section 123A(2), which states:-
“(2)A lump sum payment may include a payment by way of transfer or settlement of property.”
Further support for the mother’s application is found in Section 141(1)(c):-
“(1)In exercising its powers under this Act, a court may do all or any of the following:-
(c)order that a specified transfer or settlement of property be made.”
Section 123A(4) outlines the matters to which the court must have regard in determining an application for the payment of child support in a lump sum, which includes any administrative assessment or departure order and whether the carer is entitled to any income tested pension, allowance or benefit. In determining whether it would be just and equitable to make such an order, the court must have regard to the matters in Section 117(4), (6), (7), (7A) and (8) (with respect to departure orders). Finally, in determining whether it would be otherwise proper to make an order under Section 123(1)(b) the court must have regard to the matters in Section 117(5). However Section 123A(8) provides that the court is not confined in its determination to those specific factors.
As the basis on which the mother makes her application does not fall within the specific factors identified in Section 123A, it must be pursuant to the general provisions in Section 123A(8).
In the mother’s Outline of Case document (page 12), based on the mother’s view of the value of the property pool and the manner in which it should be distributed (including the Pakistan blocks being transferred to the father) and her somewhat optimistic claim for an 80 / 20 division on the property settlement, the lump sum amount she calculates is represented by a figure of $19,909.00. That figure is almost exactly the father’s current annual calculated child support obligation of $19,596.00. Thus, if the father’s calculated property entitlement payment of $90,000.00 is expunged by crediting his annual child support assessment, the mother is proposing that he effectively be relieved of his periodic child support obligations for some 4 ½ years.
The father states that he remits funds to his parents each month and it is from these funds that child support is paid. The father states that he intends to observe his child support obligations. His recent record of payment of what is a significant amount of child support has been good.
Relevant to this issue are Sections 72D, 72F and 72L of the Child Support (Registration and Collection) Act1988. Section 72D provides that the Child Support Registrar may prevent travel overseas by imposing a departure prohibition order where a payer has a child support liability and the Registrar is not satisfied that satisfactory arrangements for the payment of the liability have been made. Section 72F provides for the punishment of a person to whom a departure prohibition order applies but who leaves the country without a departure authorisation certificate. Section 72L provides the circumstances under which a person affected by such a prohibition certificate may apply for departure authorisation.
The father has a further 4 years of working with Q Company before he will be eligible to be promoted. Indeed, if he ceases employment with Q Company before this time, he will be liable to repay US $50,000 (on a diminishing scale) for the costs of his training. The father’s promotion depends on him having a blemish free record and being available to work at all required times. I accept that a departure prohibition order would have the effect that the father would be prevented from leaving Australia and would thus likely lose his employment. That in turn would terminate his right to live in Qatar with his current wife.
If the father sought to avoid the imposition of a departure prohibition order by not coming to Australia, he would effectively be prevented from seeing his children for the foreseeable future, the very children in respect of whom he sought extensive orders in proceedings before this Court. He would further not be able to visit his parents in Australia. Yet a further factor is that his employer Q Company operates in Australia, and he is occasionally obliged to work in Australia. Any refusal on his part to undertake that work could lead to the termination of his employment and the visitation of the consequences outlined above.
I am satisfied therefore that there are severe consequences facing the father if he chooses to default on his periodic child support obligations.
In addition, the father tendered (Exhibit 11) a comprehensive undertaking to the Court in the following terms:-
“I undertake to the Court that:
(a)I will promptly pay child support in respect to the children [D] born on the […] June 1997 and [N] born on the […] December 2003 in accordance with all assessments issued from time to time by the Child Support Agency;
(b)I will provide my Employer with an irrevocable authority to pay my entire salary to HSBC Bank or such other bank with whom I may bank from time to time;
(c)I will provide the HSBC Bank or such other bank with whom I may bank from time to time an irrevocable authority to automatically deduct and pay to the CSA the full amount of my child support obligations in accordance with assessments issued from time to time by that agency;
(d)to forthwith notify the CSA of any increase in my salary from time to time.”
In all of the circumstances, I am satisfied that the father will honour his periodic child support obligations as and when they fall due. I deem it inappropriate that he be deprived of the fruits of his labour over 15 years in the nature of the property settlement that I am satisfied should be awarded to him. He too is entitled to make a fresh start. I am satisfied, as expressed above, that the end result is a just and equitable one and the payment required of the mother to the father will not impose any significant, or indeed any, hardship upon her.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr.
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