Malcolm and Philip

FAMILY COURT OF AUSTRALIA

MALCOLM & PHILIP

[2007] FamCA 789

FAMILY LAW - CHILDREN – Shared parental responsibility
FAMILY LAW - CHILD SUPPORT – Departure order
FAMILY LAW - PROPERTY SETTLEMENT – Sale of matrimonial home

APPLICANT:

MS MALCOLM

RESPONDENT:

MR PHILIP

FILE NUMBER:

BRF

4498

2003

DATE DELIVERED:

14 June 2007

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

Bell J

HEARING DATE:

13 & 14 June 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Hamwood of Counsel

SOLICITOR FOR THE APPLICANT:

Crowley & Greenhalph, Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Burridge of Counsel

SOLICITOR FOR THE RESPONDENT:

Marrinans, Solicitors

Orders

PARENTING ORDERS

That the Father and the Mother have equal shared parental responsibility for the children D born in May 1990 and T born in June 1993.
That T live with the Mother from Sunday to Friday of each week.
That the Father spend time with the said Child as follows:
3.1from after school Friday until Sunday each week for three weeks out of four;
3.2for half school holidays;
3.3on the child’s birthday from 3.30 pm to 7.30 pm, if on a weekend and from 3.30 pm to 6.00pm if on a school day;
3.4on Father’s Day from 9.00 am to 5.00 pm;
3.5on the Father’s birthday from 3.30 pm to 7.30 pm;
3.6from 4.00 pm Christmas Eve until 4.00 pm Christmas Day in even numbered years and from 4.00 pm Christmas Day until 4.00 pm Boxing Day in odd numbered years and alternating each year thereafter.
That when the said child is with the Father, the Mother spend time with T as follows:
4.1on the child’s birthday from 3.30 pm to 7.30 pm if on a weekend and from 3.30 pm to 6.00 pm if on a school day;
4.2on Mother’s Day from 9.00 am to 5.00 pm;
4.3on the Mother’s birthday from 3.30 pm to 7.30 pm;
4.4from 4.00 pm Christmas Eve until 4.00 pm Christmas Day in odd numbered years and from 4.00pm Christmas Day until 4.00 pm Boxing Day in even numbered years and alternating each year thereafter.
That in relation to the Mother’s time with the said child on one weekend in every four, the Mother advise the Father in writing on or before the 18^th day of each month of the weekend in the following month the said child is to remain with her.
The Father shall be responsible for collecting the child from the Mother’s residence at the commencement of his time with him and the Mother shall be responsible for collecting the child from the Father’s residence at the conclusion of the father’s time with them.
The Mother and the Father each provide the other with their current residential address and telephone contact number and notify the other within twenty-four (24) hours of any change to those details.
In the event the Father or the Mother takes the child away on holidays they will provide the other with a reliable telephone contact number for the other party to have reasonable telephone communication with the child and will provide the other party with fourteen (14) days notice of any such travel and a detailed itinerary including contact numbers of accommodation.
The Father and the Mother take all steps and do all things necessary with respect to the school or schools which the child is attending from time to time in order to:-
a.register each other with the school administration and the child’s teachers as the person ahead of all others to be contacted in the event of an emergency, accident, illness or otherwise with respect to the child;
b.request all notices, reports, newsletters and notes relating to the school, school events and activities of any nature whatsoever are sent to both the Mother and the Father so that each parent has the opportunity to participate in school activities, interviews and events.
In the event that the Mother or the Father do not take steps to comply with Order 9 then the provision of a copy of this Order to the school or schools shall serve as sufficient notice to the said school for the school to implement the procedures as set out in these Orders.
The Mother and Father inform the other as soon as practicable and in any event within twenty-four (24) hours should the child suffer any illness (other than minor childhood ailments) or should any major injury occur whilst the child is in their care.
The Father will take the child to all social and extra curricular activities (including birthday parties) in which he may be involved which fall on a week end that he is spending time with them.

SPECIFIC ISSUES

Unless otherwise agreed the child, T, attend the B School for the purpose of his education until he completes secondary school.

PROPERTY SETTLEMENT

That the wife receive 60% and the husband 40% of the net asset pool by way of property settlement.
That the wife retain as her property absolutely the Mazda motor vehicle, the contents of the former matrimonial home situated at R and her current entitlement to superannuation.
That the husband retain as his property absolutely the chattels in his possession, the Falcon utility motor vehicle and his current entitlement to superannuation.
That the Husband and the Wife forthwith take all necessary steps to immediately place the former matrimonial home, on the market for sale in the following manner:
17.1The listing price for the former matrimonial home shall be as agreed between the Husband and the Wife and if there is no agreement as to the listing price then it shall be as recommended by a registered valuer of the firm of S of M, in the State of Queensland, the cost of such registered valuer to be paid equally by the Husband and the wife.
17.2The husband and the wife shall accept offers on the former matrimonial home down to an amount $20,000.00 lower than the listing price.
17.3The former matrimonial home shall be listed for sale by private treaty with a real estate agent as agreed between the parties and if there is no agreement as to the real estate agent then the real estate agent shall be as nominated by the Chief Executive Officer of the Real Estate Institute of Queensland.
17.4In the event that the former matrimonial home has not sold within ninety days (the deadline date) of the date of placing it on the market, then unless otherwise agreed the husband and wife shall make all such arrangements and do all such acts and sign all such documents and pay all moneys equally that are necessary to procure a sale by auction of the former matrimonial home upon the following terms:
17.4.1The auctioneer shall be as agreed between the husband and the wife and if there is no agreement within ninety-seven days of the date of placing the former matrimonial home on the market, the auctioneer shall be nominated by the Chief Executive Officer of the Real Estate Institute of Queensland.
17.4.2The auction shall take place within six weeks after the deadline date for sale by private treaty.
17.4.3The reserve price shall unless agreed upon by the husband and the wife be as proposed by the auctioneer.
17.4.4The husband and the wife shall each pay and be responsible for payment of one half of the auction expenses payable before the former matrimonial home is auctioned.
17.4.5In the event that the former matrimonial home is not sold by auction or by private negotiation within fourteen days after the said auction then unless otherwise agreed the husband and the wife shall do all acts and sign all necessary documents and shall pay all moneys equally as necessary to procure a second auction within a further five weeks of that date otherwise upon the same terms and conditions as applied to the first auction.
17.4.6In the event that the former matrimonial home is not sold by auction or by private negotiation within fourteen days after the second auction then unless otherwise agreed the parties shall have liberty to apply on the giving of seven (7) days notice in writing to this Honourable Court for orders with respect to further dealings with the former matrimonial home.
That upon completion of the sale of the former matrimonial home the proceeds of shall be applied in payment of the mortgage and other encumbrances affecting the property, to pay all costs, commission and expenses of the sale and the balance be divided as follows:-
18.1That the wife receive [60% of (x plus $149,924)] - $78,899 where x equals the net sale proceeds of the former matrimonial home.
18.2That from the balance proceeds of sale after payment to the wife of the sum calculated in accordance with par 18.1 above, the wife be paid the further sum of $109,500 pursuant to Orders 22 to 28 inclusive of there Orders and the balance after such payment be paid to the husband.
The husband and wife shall do all necessary acts and things and sign all necessary documents to give effect to these Orders. If either party refuses or neglects to sign (within (14) days of a written request to do so) any document necessary to effect the terms of these Orders, the Registry Manager of the Family Court of Australia at Brisbane is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act 1975 (as amended) to execute such documents on behalf of such party.
That the husband indemnify and keep indemnified the wife in respect of any liabilities howsoever arising out of the operation of the partnership business of P Company.
That the wife provide to the husband the 2 MR school football jumpers if they are in her possession.

CHILD SUPPORT

That pursuant to s.117 of the Child Support (Assessment) Act 1989 there be a departure from the administrative assessments for the children, D, born in May 1990 and T, born in June 1993 for the periods 5 July 2005 to 31 December 2006 and 1 January 2007 to 1 June 2007.
That child support payable by the husband for D and T for the period 5 July 2005 until 14 June 2007 be set at the weekly rate of $259 per child.
That all arrears owing under any previous assessments be discharged.
That the husband pay child support for the said children for the period 15 June 2007 until 24 May 2008 at a weekly rate of $261.50 per child.
That for the period 25 May 2008 until 24 June 2011 the husband pay child support for the child, T, at the weekly rate of $261.
That pursuant to s.124 of the said Act, that child support payable under paragraphs 22 and 23 be payable otherwise then by way of periodic amount by payment of a lump sum of $56,500.
That pursuant to s.125 the payment of the sum of $56,500 be credited against any administrative assessment for the children for the period 15 June 2007 until 23 June 2011.

AND IT IS ORDERED:

That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Bell delivered this day will for all publication and reporting purposes be referred to as Malcolm and Philip.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF4498 of 2003

MS MALCOLM

Applicant

And

MR PHILIP

Respondent

REASONS FOR JUDGMENT

This is an application - there is some confusion about who is the applicant - but this is an application as I find, on the part of the mother for parenting orders, property settlement and a variation of child support assessment.
Very briefly - and I say I am going to touch this very briefly because I do believe that the historical facts surrounding the marriage are of importance but not to be dissected in minute detail - the parties met in about 1979. The mother was at that time a student and the father was a tradesman. I am not quite sure whether he had his ticket at that time but he was at least an apprentice tradesman and subsequently became a qualified tradesman.
They married in 1982, the wife having taken up a position with X Company as it then was as a caterer and the father of course continuing in his tradesmen’s business.
They had purchased a house at L in or about 1982; the property purchase price was made up of a mortgage, a considerable amount and the wife says and I accept this, some moneys were lent to her by her mother - I think it was about $6000 - and that that was subsequently repaid without interest.
The father had already owned a property - and by the way the father's name is SP otherwise known as S - at N. He had paid cash for that in 1981.
They became engaged at about the time of the purchase of the L property and they married in July 1982. Subsequent to that two children were born they being D in May 1990 and T in June 1993. The wife continued in her employment as a caterer during all of cohabitation until about 2001 when the company went into liquidation.
The respondent father carried on business as a tradesman and subsequently became registered as a builder and both he and the mother entered into a partnership and I think it was known as P Company, in the trades area.
Unfortunately the father's eldest brother, A, died and $20,000 was left to the husband, I think the wife as well, I am not sure, but at least $20,000 was left and that was used to the purchase of a vacant block of land at H upon which a house was built after the L house was sold. The moneys from the L house were used in the construction of the house. Work was done by both parties, the father, of course, used his expertise in the trades to do a considerable amount of work in the construction of this property and I am quite satisfied too that the mother did everything she could as far as not necessarily minor matters, but such as doing a lot of, I think she said, footwork in relation to taps, tiles etcetera and so forth.
I am wrong, I think I said that they had already set up PR Company; they did not do that until 1990. A block of land was purchased at Aspley for the purpose of building a spec home and a spec home was built. The mother continued her work as a caterer, notwithstanding that she was pregnant and continued, I think, working until 28 weeks or thereabouts with D. She returned to fulltime work with her X Company in 1991.
It is alleged by the mother and I think this is correct, notwithstanding the denials by the respondent father, that the father was a very hard-working man, notwithstanding his denials, I am of the opinion that he gives me the impression that he is a person who is a hard worker; I would think a very, very hard task master as well. Notwithstanding he has given evidence in his affidavit of what I would consider to be comparatively minimal earnings insofar as the building industry is concerned. I think his maximum income was for the year - his maximum profit for the year 2000 was $42,648 and that was taxable income. Thereafter it appears as though - and before he suggests that his income is around about the $20,000 to $25,000 mark; I think there was another peak of something like $40,000 in 1990 - see paragraph 47 of his affidavit filed 28 April 2006.
As a result of his working long hours it is said by the mother, and I accept this, that the responsibility of looking after not only D, but T when he came along - and I think he was born in June 1993, which I have already said - fell upon her. She did not complain of this but she found it difficult working with X Company as well as looking after the children. I think that they had, on occasions, the assistance and/or support of a nanny to enable her to carry on with her job.
In about the month of May - see paragraph 20 as amended - 1993, H property sold for a considerable amount of money and the funds were used to purchase the land at R upon which the present matrimonial home was built. This home is a very substantial home - see exhibits 11 before me. It was built under the aegis of the father. He, himself, I think was directly responsible for the bricklaying and as well the general work as a clerk of works if I may put it that way to ensure that the building was built in a proper manner. As I have said, it cost around about, all up, including the land, some $600,000. It has been valued according to Burridge of counsel, agreed with by Hamwood of counsel, at some $1.4 million and that some 18 months ago or a considerable time ago and it may be when this property is sold, and unfortunately it will have to be sold, that it will sell for a lot more than that amount.
Both of the parties I consider worked particularly hard during the marriage. She in looking after the children, assisting in the construction of at least two homes, probably three, and in her catering work with X Company. Regrettably X Company, as I have already said, went to the wall in 2001 and as a result of that she became redundant. It is still within recent memory, the unfortunate collapse of X Company and the difficulties which the staff had in getting any of their entitlements. They eventually did get some and she has indicated that this has not been cavilled with by the respondent father. She put into the property - that is the property at R - some $75,000 from about 2001 to 2002. I said 75, I should say $95 and this has, as I said, not been cavilled with; and that was towards the end of the relationship. They had a break of about 10 weeks' separation, resumed and eventually separated finally on 19 November 2004. It appears to be a somewhat unfortunate separation and the husband was, as I perhaps should say, forcibly removed from the former matrimonial home and has not returned to live there since, notwithstanding there is some suggestion that he lived there for a period of some four days. I do not accept that.
This is most unfortunate. It appears to have left, as I find, the husband a very bitter man in relation to the relationship between himself and his former wife and he does seem quite distraught about the total collapse of his marriage and, as far as he could see, the whole of his life, which he had experienced with his wife and their two sons for a considerable period since 1982, some 22 years.
The mother has lived in the former matrimonial home since that time. The boys have attended various schools and this is really the nub of the whole matter to me. They are both at this stage attending B School. There had been discussions between the parties in relation to which school at that time D was going to attend. It was agreed between the parties that it was to be a private school; which one, is the question.
The father was an old boy of MR School. He wished his son, and sons as it subsequently became, to attend his old school. The mother preferred the child to go to another school other than MR. D had been booked in at another school, E School, as well as MR School. It was decided by the mother, as I find, that D would go to B School. This caused a great deal of angst between the parties and it may have been the prime reason for the first separation in 2002.
The parties reconciled with the assistance of some counselling and at that stage to me it appears as though, somewhat grudgingly, the father acquiesced in D going to B School. This is supported by the fact that he paid for at least one year of D's education expenses at B School by way of his credit card. I say in passing that public schools nowadays are definitely not cheap - for parents to pay the costs of tuition notwithstanding that there are other outgoings - and I understand at this stage for both D and subsequently T who went to B School and is still there, it is something like $23,000 or $26,000 per year and as we well know, that is off the top, so in effect, you can double that and so that is what the parties have to find to keep those children at school. How people do it I have got no idea however these schools seem to be flourishing.

T subsequently went but this was subsequent to separation and the mother appears to have indicated to the school that not only would she be responsible for D's fees, solely responsible for D's fees but also, as well, as T's. There is some suggestion that the - well it is not a suggestion - the father, in fact, cancelled D's enrolment to B School but as I have said, he was re-enrolled by the mother and this was acquiesced to by the father.
I note that in a review of an assessment the reviewing officer indicated that he was of the opinion that the father did, in fact, acquiesce in the enrolment of D at B School and the evidence, as far as I am concerned, seems to be incontrovertible that notwithstanding he may have done it grudgingly, he in fact, did acquiesce in the enrolment of D at B School. It would have been very difficult I would have thought for any father to say if one child is going to a certain school that the other child should not, and T went at the instigation of the mother.
This is causing a considerable degree of concern for both parties. The mother's employment at this stage gives her a return of something, I think, in excess of $40,000 per year - her form 13 is somewhat elderly, being filed last year. She has paid all fees save for that first year, I think it was, or a year of D's and it appears that these fees have been paid out of dividends which she has received from the trustees or liquidators or whatever they are of X Company which have amounted to a reasonable amount between 2003 and December, was it not, 2006. Those figures are in evidence but they vary from 8200 on one dividend to 10,100 on another and she has used that - not only that, as well as I think she has borrowed some 15,000 from a friend and the boys have continued to go to B School.
D is in his final year and will leave B School at the end of this year. T is in Grade 9 and consequently has a few years left at ever-increasing cost and expense. I think one can accept that the fees will go up by at least five per cent per year.
Subsequent to separation the father who had something like $11,000-odd in the bank at the time of separation which was 19 November 2004, re-established himself, he says. He had to purchase a refrigerator, computer, knives and forks, beds etcetera because he left with nothing and this may further have caused him a great deal of angst. He is living in rented accommodation for which he pays some $320 per week. This is very close to the residence of the mother and of the boys at R property, some 200 to 300 metres away. As a result thereof, the contact - and I use that word advisedly - the contact between the boys and their father has been on an ad hoc basis, albeit it has been dignified with an order made by Jordan J on 31 May 2005.
I consider that since this is a property settlement matter and I have to take into consideration all those matters which are set out in the Act, that it is necessary for me to determine the question of parenting first. It is conceded by both parties that D is of an age where no order should be made for him and that any form of statutory responsibility as set out in the Act as amended, I think for the 73^rd time in 30 years, should remain and I do no think that that has in any way been suggested to the contrary in relation to D.
T, of course, is younger. T is almost 14. In fact he will be 14 next week and he has put before me by way of a report from both Mr M whose report is in 2005 - I am sorry I do not have it to hand - as well as a family report of a Ms B dated 19 April 2006 and an addendum, thereto. It appears to me that what T wants is somewhat similar to what D wants; he wants contact with his father. He has a close, warm and loving relationship with his father. He wants to be able to exercise that relationship and it is his right and it is not the father's right, it is not the mother's right - parents have duties and not rights - he wants to be able to use that on a virtually ad hoc basis once again, to wander in and out and to see his father when he sees fit as well as when his father would like to see him. I think that is a wonderful idea.
The father, of course, has a great interest in sport and T is particularly interested generally in sport but also in particular, I think, with tennis and he is supported and encouraged in that by his father. D does not seem to be as sports-minded but he does have interest in it. The father is seeking what is known as shared custody as many of the men’s groups attempt to put before this Court. It is quite clear that all experts as well as even the politicians recognise that should there not be a close relationship between the parties - I am not saying a close and warm relationship, I am saying a relationship where communication in relation to their children is easily carried on, that shared custody, shared parenting is doomed to failure.
Shared parenting works remarkably well. We rarely see it in this Court; because it works so well the parties do not have to come to Court and get the assistance as some people say, of this Court to regulate the spending time that the parties have with their children. I cannot be persuaded in this case, taking into consideration the fact that the parties do not communicate at all well, in this case and take into consideration the fact of wishes as expressed by T to Ms B, that I would make a shared parenting order.
It has been put forward by T that he does not want to change from the original order, he just wants to be himself. He wants to be able to see his father. The great difficulty, as has been put forward by the father, is that at this stage that works remarkably well. The boy is some 200 to 300 metres away from his father and, as I said, he pops in and out. But the property will be sold and it may be, and in all probability will be, that the mother and children do not reside in a near proximity to the father who resides at the Y area.
That has concerned me but regrettably I can only look partially into the future. I do not know what is going to happen; I do not know when the property is going to be sold. It may be this year, it may be next year and in those circumstances I feel I can do nothing else but perhaps take the easy way out and say that the existing order should remain in relation to T. Insofar as D is concerned, I would order that D spend such time as he desires with his father. As I have said, the statutory responsibility and joint parenting will remain insofar as the larger matters of the children are concerned.
I have already touched upon the question of schooling. I must say one thing further. Notwithstanding the fact that the father was desirous of his boys attending MR school, it appears as though it is now conceded by him that the egg is broken and that it would be impossible to remove D in particular, but T from B School at this stage. He regrets that but I must say for a person who dearly wanted his boys to attend MR School he has done very little to ascertain what would be available for the boys, or the boy, T, at MR School, should he go there. Consequently I am satisfied that he grudgingly has accepted the fact that the children are to attend B School but the question is whether he should be responsible for the payment of all or part of the fees.
He once again has properly instructed his counsel to put to the Court that he concedes that the quantum for the expenses in relation to past expenses and future expenses of the boys are around about, what was it, 113, I think, Mr Burridge, and that consequently he should be responsible for part of those expenses. On the other hand Hamwood of counsel for the wife has put before me projected expenses of some $104,000.
RECORDED : NOT TRANSCRIBED
And I take into consideration when informed by Hamwood just now that in fact the wife has said that it is 104 for past as well as future. That in itself, I think, with great respect to the mother, is a little bit excessive and I would accept in this case the fact that the expenses for the children are around about $113,000, was it. That is right, 113 for future and consequently it is for me to determine what is the ratio that should apply insofar as the parties contributing to that.
Hamwood has put forward a strong submission in his opinion that because the father is in a better position financially than the mother that he should pay more than 50 per cent. He extrapolates his argument this way: notwithstanding the father has made it quite clear that he does not intend or does not wish and does not intend to be employed in a supervisory capacity or a managerial capacity in the trades area, Hamwood submits that he is capable, that he has an earning capacity of something approaching $60,000-odd, and he refers to exhibit 14 in which the Bureau of Statistics indicates that a managerial position in the construction industry would be equivalent to about $60,000-odd per year.
He says that the father has an earning capacity of that amount because of the following reasons: he has been in the trades area for some 25 years, not only as a tradesman but as a manager; that he has a vast deal of experience in the domestic trades. He refers in particular to exhibit 11 and also to the successful building and sale of at least two other properties. He says that his desire to not push himself, to not be responsible to someone else, to not have to duck the nut, is not sufficient and that is possibly the reason why the draftsman has put in earning capacity as against just pure earning. I think there is much in what Hamwood says. The wife is around about $40,000-odd and the husband would be, his earning capacity would be about 60,000. But notwithstanding that, I think that it is important that both parties contribute equally to the future costs of the boys and that will be $56,500.
The next problem is the past amounts which Mr Hamwood has estimated at 107,280. In his schedule which I have marked with the letter "A" he sets out the expenses which have been incurred by the mother in relation to the boys from the year 2005 to 2007. We are not double-dipping there, are we?
RECORDED : NOT TRANSCRIBED
It has not been suggested that these moneys have otherwise been expended by the mother. It has not been conceded by the father that that is a correct quantum, nor has it been conceded that he should be responsible for the payment of any of these. He points to the fact that he has had a child support assessment which necessitates his paying an amount of $29 per month by way of maintenance for the children. He also has an indebtedness to the child support agency of something in the vicinity of $14,000. If, in fact, I am persuaded to order that he pay - I depart from the assessment of the child support agency and order that he pay an amount as from 2005 to June 2007, naturally of course any arrears would have to be expunged.
This has caused me a deal of concern. The mother has struggled. It has been suggested by the father that she has not struggled as much as she should have because she has been earning money by way of prostitution. I do not think that does him any credit whatsoever to make those allegations in a public document. He had no evidence to support it other than he says the figures just do not add up; that she must be getting the money from somewhere else. I do not think that that does him any credit, as I have said, and it disappoints me to a great extent in that he feels as though he must endeavour to denigrate his former wife for whom, as he said in one breath, he had a great deal of respect and affection for and in the next breath he says that she is earning monies by way of prostitution. That in itself would not be sufficient for me and I do not intend to punish the father for saying those things about the mother, but I do believe that he should be responsible for the payment of some of the expenses already incurred in the children's - and I would also put that at 50 per cent, being 53,000 rounded off.
Now I come down to the crucial question as to how I should distribute the assets between the parties. I have an assets schedule which I have marked "C" before me and all figures are agreed upon, save for the husband's bank account at separation which was $17,000 on the asset pool document. In effect, it should be $11,148 and that was an exhibit. Is supported by the evidence. And also there is an amount of some $6000 alleged in that document, being the wife's account as at the date of separation. In fact, it should be more; it should be something in the vicinity of $9000, $9600. Those figures are very similar to each other. The father says that he, in fact, expended almost all that money, save for $400, by the end of December upon re‑establishing himself. The mother says she expended all those monies upon the children; consequently I would not be taking into consideration either of those amounts.
The other figures have been agreed upon; superannuation is almost identical and I am informed from the Bar table that that amount comes to 1.53.
Up to separation notwithstanding the large contribution made by the wife by way of the funds from X Company, at the end of the marriage, taking into consideration that quite properly it could be said, and is said in other cases, that part of those funds are in fact contributed to by the husband during cohabitation. I take into consideration the fact that he has worked hard; take into consideration the fact that she says she has worked hard and they have worked as a partnership, I think as at separation the property should have been divided fifty-fifty. Subsequent, however, it is different.
I believe that the father has an earning capacity which he could use and which he does not want to use. I do not criticise him for that but it is a factor I have to find and that is that he could move into a managerial position, supervisory position in the building industry and earn considerably more than 20 to 25 thousand dollars per annum. How he exists at all I have no idea. I am also of the opinion that his earning capacity would be more than the wife's who is fixed at around about $40,800 per year.
She has a bad back that she has given evidence of and it has not been suggested to the contrary. She may, after T leaves school in some three years' time, be able to increase her hours. She is working part-time with Q Company as a caterer, I suppose you could say, and earns the amount as I have already suggested before. She has had the responsibility for the last three years of T and D, notwithstanding the fact that the father has had a deal of spending time with them. She has the future responsibility of T who is coming into what, it may have been suggested from the Bar table and I think there has been some evidence, can be a difficult period in a young man's life, notwithstanding the fact that the father will have a deal of spending time with his son; and she still has D who is in the full flight of the young manhood at 17. He may be in a difficult period of his life, there is no evidence of that if my memory serves me correctly but I think that that does weigh in favour and I would think that the property should be divided sixty/forty between the parties and giving her a balance of 10 per cent.
RECORDED : NOT TRANSCRIBED
I will rely upon counsel to put before me the formula as quite properly pointed out by Hamwood of counsel, the 1.4 million as I have already touched upon, is not a fixed figure and it could be more, I doubt very much whether it would be less and consequently counsel are going to put before me a draft.
Insofar as the Child Support Agency is concerned, I am satisfied that there are special circumstances for me to depart from the assessment of the Child Support Agency, they being the large financial resource that the father does have and the mother does have at the cessation of this trial and as a result of my judgment. I consider otherwise it is just and equitable to so depart from the assessment.
ORDERS DELIVERED
RECORDED : NOT TRANSCRIBED

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate:

Date:

[2007] FamCA 789

14 June 2007

Key Legal Topics

Areas of Law

Family Law

Property Law