MICKEY & PRATT

FAMILY COURT OF AUSTRALIA

MICKEY & PRATT

[2012] FamCA 472

FAMILY LAW - PROPERTY – Disclosure – where the husband asserts non-disclosure on the wife’s part regarding her current assets and her assets at the commencement of cohabitation – where the wife had failed to disclose some documents requested by the husband – where there are documents which substantiate the wife’s assertion of the nature and value of her assets – where the bulk of the parties’ and children’s expenses were paid from the wife’s assets during cohabitation – where the husband has not sought to explain where the undisclosed funds could have come from – found no non-disclosure on the wife’s part

FAMILY LAW - PROPERTY SETTLEMENT – Contributions – where the wife’s initial contribution to the marital assets was substantially larger than the husband’s

FAMILY LAW - PROPERTY SETTLEMENT – Future needs – where the wife will have the ongoing primary responsibility for the care of the children and will bear the majority of their financial expenses

Family Law Act 1975 (Cth) s 75(2)

APPLICANT:

Mr Mickey

RESPONDENT:

Ms Pratt

FILE NUMBER:

SYC

7902

2010

DATE DELIVERED:

15 June 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

4 & 5 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bell

SOLICITOR FOR THE APPLICANT:

Browns Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Batey

SOLICITOR FOR THE RESPONDENT:

York Family Law

Orders

That the parties do all acts and things required to cause the money held on their behalf in the St George Bank account …72 to be paid as to $143,495 to the husband and the balance to the wife.
That the parties do all acts and things required to transfer to the wife the jointly owned shares in A Pty Limited and B Pty Limited.
That other than provided in these orders, each part shall retain the property in his or her possession.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7902 of 2010

Mr Mickey

Applicant

And

Ms Pratt

Respondent

REASONS FOR JUDGMENT

introduction

Before the Court is an application for property settlement arising out of the marriage of the husband, Mr Mickey, and the wife, Ms Pratt. The parties commenced co-habitation in May 1999 and married in 2004. There are two children of their marriage, M, who is aged 10 ½ and S who is aged nine. The parties separated in August 2009.
At the commencement of co-habitation the husband was involved in the entertainment industry and he continued in various businesses in that industry throughout their relationship and until the present date. His current business is run through a company known as W Pty Ltd.
The wife was in receipt of an inheritance from her late father and was a share investor, an occupation which she, too, has continued throughout the relationship and to the present date.
The parties bought and sold a number of properties during their relationship and the circumstances of those purchases are not controversial. In relation to those purchases, insofar as capital was provided for each purchase, it came from the wife’s assets from her inheritance.
The parties, although they substantially agree about the various transactions which they undertook during the marriage, are in dispute in relation to two matters.
The two matters are connected. The husband asserts that the wife’s assets at the commencement of co-habitation were substantially greater than she now discloses. Possibly because of that belief on his part he also asserts that there has been substantial non-disclosure by the wife in relation to her current assets.

the allegations of non-disclosure

The issue of the wife’s initial contribution is dealt with later in these reasons.
An analysis of the wife’s initial and final asset position is instructive.
She came into the relationship with $1.65 million.
By 30 June 2002, her assets were reduced to $1,085 million. In 2003 she used $55,000 from capital to supplement living expenses.
In 2004 she used a further $50,000 from capital to supplement living expenses.
In 2005 she earned $12,986 from a clerical position and the balance of her expenses were supplemented from capital. Each year thereafter she used capital to supplement living expenses.
At 30 June 2007 her shareholding was worth $741,939. By 30 June 2008 the portfolio had dropped to $607,036. By 30 June 2009 the value was $532,762 after she had been required to sell shares to meet a margin call. At 30 June 2010 the value was $493,870.
It must also be borne in mind that the parties have in trust the balance of the proceeds of sale of their last home of $500,012. Those funds have their genesis in the wife’s initial contribution.
From her original funds of $1.65 million, the wife has paid $380,000 for the C Street property, plus stamp duty of $12,590.
She then paid $381,837 plus stamp duty of $27,444 towards the purchase of the Q Street property.
When the parties purchased in N Street the wife paid $225,000 and $68,002 for stamp duty from her capital.
Those capital sums spent on the acquisition of the parties’ various properties total $1,094,873.
The husband has not sought to explain, in these circumstances, where the asserted hidden or undisclosed funds could have come from.
The husband maintained throughout the proceedings that the wife had failed to give full disclosure in relation to her financial dealings and in particular in relation to her share investor activity and that as a result of that failure the Court was not in a position to make a finding about the value and nature of the assets held by her.
In support of that allegation the husband relied upon an affidavit of Mr F, a forensic accountant, sworn on 30 May 2012. Mr F had been engaged on behalf of the husband to examine the documents produced by the wife together with the documents produced on subpoena and to determine whether any documents were missing. In relation to thirty-five nominated categories of asset Mr F was satisfied that the documents provided were sufficient. In relation to a further twenty nominated accounts Mr F was not satisfied that the wife had provided the whole of the documentation.
There is no dispute that the wife had provided in accordance with requests from the lawyers variously acting for the husband a large volume of documents. She contends that up until approximately November 2011 she had responded to each of the husband’s requests for documents.
On 17 November 2011 the wife’s solicitors wrote to the husband’s solicitors in response to an email which consisted of a 10 page list of questions relating to her financial transactions. The wife’s solicitors considered those questions to be oppressive. But in order to move the matter forward an offer was made that the wife would attend upon the husband’s forensic accountant, then known to be Mr R, at his office and would take all of her documentation with her. She would sit with Mr R and answer any questions that he might have. On 7 November 2011 the wife had nominated Tuesday 15 November 2011 as being an appropriate date for that exercise to occur. That time was not suitable to the husband.
The wife in subsequent correspondence maintained her willingness to attend upon the husband’s forensic accountant, in the absence of the husband, and provide the forensic accountant with any document and any explanation which he required. That offer was made by an email from the wife to the husband on 9 November 2011, repeated by letter dated 29 November 2011, again by a letter to the husband’s solicitors on 27 January 2012 and finally by a letter to the husband’s new solicitors on 23 February 2012. On no occasion were arrangements made for the wife to meet with the husband’s forensic accountant in accordance with her offer.
In her oral evidence the wife said that she had about two suitcases full of documents which were the documents which she collated and gave to her accountant to support her income tax return prepared by the accountant each year. She said that she was not willing to photocopy the whole of the two suitcases full of documents and that she considered the husband’s requests to be oppressive. It was her evidence that simply by looking at the documents the husband or his solicitors would not be in a position to reconstruct her financial transactions and that was the basis upon which she had offered to assist the husband’s forensic accountant.
There is no doubt that the wife had an obligation to disclose the documents which are relevant to her financial circumstances both presently and historically. There is equally no doubt that the wife attempted in a way which was sensible and efficient to comply with her obligations to make disclosure by sitting down with the husband’s forensic accountant and explaining the documentation to him.
Insofar as it is asserted by the husband that documents are missing which would complete transaction trails in relation to some accounts, that submission would have some force if it were not for the fact that there are documents which substantiate the wife’s assertion of the nature and value of her assets at the date of hearing. The fact that some of the records relating to earlier transactions have not been made available to the husband does not lead, by itself, to a conclusion that the wife’s evidence in relation to the current value of her assets cannot be accepted.
There is no doubt that the wife’s assets at the date of trial are less than she has asserted them to be at earlier times in the proceedings. However, the major asset which she holds is the share portfolio in the G Pratt Family Trust and it could not be a matter of controversy or surprise that the value of the share portfolio has declined. It was the wife’s evidence that the decline in the value of the share portfolio was due firstly to changes in the market value of shares and secondly to the sale of shares.
The parties separated in August 2008. After separation the husband made a modest contribution by way of child support and the wife was otherwise responsible for the financial support of the children and herself. In evidence before me was a budget which she prepared in November 2009 using her credit card statements and bank records to verify the expenses. Her estimate of the costs necessarily incurred for herself and the children was $88,389.00 per annum. After the parties separated the only source from which those expenses could be funded was the cash and share assets in the hands of the wife emanating from her initial contribution from her inheritance.
There was no evidence before me which leads me to infer that the wife was not a truthful witness. She was cross-examined extensively about her financial dealings. I accept her evidence. Having considered the manner in which her funds were applied both during the relationship and after separation, I do not accept that the wife’s failure ultimately to provide to the husband the documents which she offered to provide to his forensic accountant constitutes non disclosure for the purpose of the proceedings.
As is more clearly set out below the husband’s income during the course of the parties’ co-habitation was modest and averaged approximately $23,000.00 per annum. It is therefore clear that the bulk of the expenses of the parties and the children during co-habitation must have been paid from the wife’s inheritance.

The Balance Sheet

At the commencement of submissions a document entitled “Proposed Joint Balance Sheet” was handed up as an aide memoire. The document is reproduced below:

No.	Ownership	Description			WIFE	HUSBAND	COMMENTS
ASSETS
1	Husband	ANZ Bank Accounts			$1,736	$1,736	AGREED
2	Husband	[W Pty Ltd]			$50,212	$46,712
3	Husband	V.W. […] Motor Vehicle			included in 2 above	included in 2 above	AGREED
4	Husband	Furniture			$8,000	$8,000	AGREED
5	Husband	Art Work			$9,000	$9,000	AGREED
BANK ACCOUNTS
6	Joint	St George Account No […]72			$500,012	$500,012	AGREED
7	Joint	270 Shares in [A Pty Ltd] @ $31.19			$8,421	$8,421	AGREED
8	Joint	47,000 Shares in [B Pty Ltd] @.23¢			$10,950	$10,950	AGREED
9	Wife	Macquarie Bank acct No […]16			$1,171	$1,171	AGREED
10	Wife	Macquarie Bank acct No […]02 ([V] Pty Ltd)			$68	NK	Current statement as at 21.05.12
11	Wife	Macquarie Bank acct No […]67 ([G Pratt] Family Trust No 1)			$471	$471	AGREED
12	Wife	Macquarie Bank acct No […]55 ([G Pratt] Family Trust No 2)			$28,936	$28,936	AGREED
13	Wife	Macquarie Bank acct No […]46			NIL	NIL	AGREED
14	Wife	St George Account No […]83			NIL	NIL	AGREED
15	Wife	2002 Subaru [motor vehicle]			$9,550	$9,550	AGREED
16	Wife	[V] Pty Ltd - (see10 above)			NIL	NK	If an asset in Co then liability to wife
17	Wife	[G Pratt] Share Portfolio			$315,896	614,960	Closing ASX price 21.05.12
18	Wife	[D Company] Shares			$36,667	$36,667	Valued by Company as at 21.05.12
19	Wife	[H Company] Shares			NIL	NIL	Sold
"X"	Wife	[I Shares]			$35,142	$35,142	Valuation by Co
OTHER ASSETS/ADD BACKS
20	Husband	Distribution to Husband			$138,989	NIL	Distributed to husband at same time as 20 above
21	Wife	Furniture			$20,000	$20,000	AGREED
A	Wife	Wife's legal costs paid		$9,000	NK
B	Husband	Husband's legal costs paid		$44,328	NK	Paid to solicitors
TOTAL	GROSS ASSETS			$1,228,548	$1,436,936
LIABILITIES
22	Husband	Unpaid Income tax (Personal)			$31,256	$31,256	AGREED
23	Husband	Unpaid Income tax ([W] P/L)			NIL	$3,550	Included in WPty Ltd Valuation
24	Husband	Credit Cards			$2,000	$15,010	Estimate as shown in exhibit
25	Husband	St George Visa - 70% work			NIL	$8,558	No evidence
26	Husband	Leases Loans Etc (Monthly)			NIL	NIL	AGREED
27	Husband	[W Pty Ltd] Creditors			NIL	NIL	AGREED
28	Husband	James Richardson – Lawyer			NIL	NIL	AGREED
29	Husband	Browns family Lawyers			NIL	NIL	AGREED
30	Husband	[J] Forensic Accountants			NIL	NIL
31	Wife	Credit Card Debts			NIL	NK
C	Joint	Australian Scholarships			NIL	NK	Not Part of parties assets or liabilities
TOTAL	$33,256	$58,374
NET	$1,195,292	$1,378,562
SUPERANNUATION
32	Husband	AMP Flexible			$101,673	$101,673	All accumulated post separation
33	Husband	Australian Super			$3,800	$3,800	All accumulated post separation
34	Wife	Super Trust of Australia			$1,304	$1,304
NET SUPER ASSETS			$106,777	$106,777
TOTAL NET ASSETS & SUPERANNUATION				$1,302,069	$1,485,339

It can be seen from the body of the document that most of the items were agreed. Where there is no agreement I will deal with those assets using the numbering on the draft balance sheet.

Item 1. The Husband’s ANZ bank accounts

The husband asserts that the bank accounts containing an amount of $1,736.00 are in fact the accounts of W Pty Ltd. The wife asserts that the asset is the asset of the husband. In the husband’s Financial Statement at item 37, he lists the account in the ANZ and swears that the account holder is W Pty Ltd trading as K Company and I accept that evidence. Therefore Item 1 will be deleted from the Balance Sheet.

Item 2. The Value of W Pty Ltd

The only evidence about the value of the company is the Balance Sheet prepared on the husband’s instructions in April 2012 which lists the net asset backing of the company at $50,212.00. Insofar as he asserts another figure, that is $46,712.00, there is no evidence to support that assertion and I therefore find that the value of W Pty Ltd for the purpose of these proceedings is $50,212.00.

Item 17. The Value of the G Pratt share portfolio

In accordance with the directions made for the preparation of the hearing the wife caused her brokers to value the portfolio at 21 May 2012. Tendered in the proceedings as Exhibit 19 is the valuation prepared by E Brokers of $315,895.83. The husband contends for a different figure that being $614,960.00 but there is no evidence to support that contention and I therefore propose to accept the wife’s figure of $315,896 as the appropriate figure for the share portfolio.

Item 20. Addback distribution to the husband from proceeds of sale of real estate.

The wife contends that monies which were received by the husband, from the sale of the last property which they owned together, ought to be added back. There is no dispute that the parties sold the property at N Street, Suburb O on 29 January 2009. From that amount the husband received $138,989.00 and the wife received $100,000.00. The balance of the net proceeds of sale was invested in a joint account with the St George Bank and those monies, totalling $500,012.00, appear as Item 6 in the Balance Sheet. The $100,000.00 received by the wife was invested by her and is agreed to form part of Item 17, the share portfolio. In relation to the sum of $138,989.00 received by the husband that amount, however, no longer exists.
At some time after the property at N Street, Suburb O was purchased the parties agreed that the property could be used as security for a second mortgage, to secure an overdraft for W Pty Ltd. There is no suggestion that this transaction occurred other than by agreement between them. At the time of the sale of the property in Suburb O it was necessary for the second mortgage to be discharged and $50,000.00 of the amount which was received by the husband was applied to the discharge of the second mortgage. Thus it is asserted on behalf of the wife that the husband injected capital into the business in circumstances where it is assumed the business was unable to produce the funds to discharge the mortgage.
It is asserted on behalf of the wife that, by the application of normal accounting principles, a loan account should have been created in favour of the husband, and that the loan of $50,000.00 by the husband to the business should be both a liability of the business and an asset of the husband. There is no suggestion that such a loan account was, in fact, created and to do so artificially would make no difference to the net asset position of the parties. There is no doubt that money from the sale of the parties jointly owned property ultimately was used to the benefit of the husband’s business. However, since it was clearly their agreement that the property would be used to secure the overdraft, and the business is brought into account as an asset in the proceedings, I do not accept the wife’s contention that the sum of $50,000.00 should be added back.
In relation to the remaining amount of $88,989.00 it is the husband’s evidence that that amount was paid into his bank accounts and used by him both for the purposes of the business and for his general living expenses including the payment of child support. His evidence is that the sum of $50,000.00 was placed in a fixed deposit to secure the ongoing overdraft facility for W Pty Ltd for a period of time although ultimately, he says, that money was returned to him.
There is some force in the wife’s argument that, insofar as the money from the sale of the property was used to pay the husband’s child support liability, it should be added back. The difficulty with that position, however, is that I have no evidence either from the husband or from the wife about how much of the sum was used to pay child support. The property was sold on 29 January 2009.

In the financial year ended 30 June 2009 the husband had a taxable income of $2,711.00 and the business made a loss of $29,165.00 giving the husband a net loss for that financial year of $26,454.00. I can infer then that the whole of the child support for the period from the sale of the property until 30 June 2009 was paid from the proceeds of sale of the property. Annexed to the wife’s affidavit and unchallenged is a schedule of the maintenance payments made by the husband. Between 3 February 2009 and 30 June 2009 the husband paid a total of $9,900.00 in child support. It is reasonable to infer in the circumstances that those monies came from the proceeds of sale of the property and those monies will be added back.
In the financial year ended 30 June 2010 the company had a taxable income of $30,865.00 and the husband had a taxable income of $11,536.00. In that year the husband paid to the wife child support totalling $13,780.00 and it is reasonable to assume that those payments came from the proceeds of the sale of the house and those monies will be added back.
In the financial year ended 30 June 2011 the husband had a taxable income of $57,647.00. In that year he paid child support of $6,160.00 and it is reasonable to assume that those monies came from his income and therefore there will be no further add back.
Thus the total added back to account for the husband’s child support payments will be $23,680.00.

Item 23. Unpaid income tax of W Pty Ltd

The Husband contends that the unpaid income tax of W Pty Ltd totalling $3,550.00 should be included as a liability of the husband. This is clearly a liability of the company and should have been taken up in the valuation of the company and therefore it will not be included as a liability.

Item 24. Credit card debts

The husband asserts that credit card liabilities of $15,010.00 are referrable to expenses incurred by the parties. In cross examination he was shown the relevant statements and conceded that all but one entry related to business expenses. I will therefore allow the sum of $2,000 for which the wife contends.

Item 25. St George Visa

There is no evidence to support the husband’s assertion that the debt is a personal debt of the parties and it will not be included.
The husband also claims a liability to his current wife for monies advanced for legal fees, although that asserted liability does not appear in the Balance Sheet. The husband asserts that a total of $31,347.00 had been lent to him by his wife in order to pay legal fees. There was no evidence from the husband’s present wife in relation to this issue. The loan is not referred to in the Financial Statement sworn 23 May 2012 upon which the husband relied in the hearing before me, and neither were earlier loans, which the husband said had been borrowed and repaid, referred to in his earlier financial statement, sworn at a time when, according to his oral evidence, the loans were still outstanding. In answer to questions asked in cross-examination, the husband said that he would pay the loans back if and when he was able to do so. He was unable to say whether or not there was any agreement that interest would be paid. Whilst I accept that money was advanced by his present wife for the payment of legal fees, I do not accept that the advance constituted a debt payable by the husband and I propose to disregard it.
The husband has paid legal fees totalling $44,328.50 and the wife has paid legal fees totalling $22,294.00. Each of them has incurred substantial additional fees which are yet to be paid. There is no evidence that either of the parties has used matrimonial assets to pay legal fees and, in circumstances where I cannot determine that the fees have not been paid from income after separation, I do not propose to add back either party’s legal costs.
Accordingly I find the assets and liabilities of the parties to be as set out below:

Item #	Item	Ownership/Title	Value
ASSETS
1. 1.	W Pty Ltd	H	50,212
2.	Furniture	H	8,000
3.	Art Work	H	9,000
4.	Furniture	W	20,000
BANK ACCOUNTS and SHARES
5. 5.	St George Account No …72	J	500,012
6.	270 Shares in A Pty Ltd @ $31.19	J	8,421
7.	47,000 Shares in B Pty Ltd @.23c	J	10,950
8.	Macquarie Bank acct No …16	W	1,171
9.	Macquarie Bank acct No …02 (V Pty Ltd)	W	68
10.	Macquarie Bank acct No …67 (G Pratt Family Trust No 1)	W	471
11.	Macquarie Bank acct No …55 (G Pratt Family Trust No 2)	W	28,936
12.	2002 Subaru motor vehicle	W	9,550
13.	G Pratt Share Portfolio	W	315,896
14.	D Company Shares	W	36,667
X	I Shares	W	35,142
OTHER ASSETS/ADD BACKS
16.	Distribution to Husband	H	23,680
TOTAL	$1,058,176
LIABILITIES
17.	Unpaid income tax (Personal)	H	31,256
18.	Credit Cards	H	2,000
TOTAL	$33,256
SUPERANNUATION
19.	AMP Flexible	H	101,673
20.	Australian Super	H	3,800
21.	Super Trust of Australia	W	1,304
TOTAL	106,777
TOTAL NET ASSETS & SUPERANNUATION			1,131,697

INITIAL CONTRIBUTIONS

There is no dispute that at the commencement of co-habitation the wife had substantial assets as a result of her inheritance. The husband does not accept the wife’s assertion as to the value of those assets and he bases this position on conversations, which he says took place between himself and the wife, where she told him that her father’s assets prior to his death were in excess of $50,000,000.00. The wife disputes that such conversations took place.
After the death of the wife’s father there was a dispute between his various beneficiaries, and that dispute was ultimately resolved by their entering into a Deed of Release in 1993. Whatever may be the husband’s belief, the Deed of Release establishes that, as at 31 March 1993, the wife had received from her father’s estate a total of $1,355,594.00.
The wife’s evidence is that as at June 1999 she had the following assets in cash and shares:
a)Cash in the Adelaide Bank of $171,518.63;
b)A second Adelaide Bank account with a balance of $400,000.00;
c)An account with Macquarie Bank with a balance of $29,387.02;
d)A share portfolio valued at $795,862.87. An objection was made on behalf of the husband to that assertion of value. I accept the wife’s assertion of the value of the share portfolio having regard to the document entitled “Investment Summary” which is annexure H to her affidavit and which is clearly a business record of the G Pratt Family Trust. That document sets out the shares held as at 30 June 1999 and the value of the shares at that date;
e)An account with P Brokers with a balance of $789.12;
f)An account in Macquarie Bank in the name of V Pty Limited with a balance of $19,888.11;
g)P Brokers deposit notes in the name of V Pty Limited in the sum of $45,666.12.
Thus the wife had assets in cash or shares totalling $1,463,111.
In addition to cash and shares the wife owned three pieces of real estate.
(a)a quarter share in a property at Town T, Western Australia. Her estimate of value of that property is $86,250.00. No objection was taken on behalf of the husband to that estimate;
(b) Lot 1 U Street, Western Australia, which was sold in September 1999 for $54,282.00 and;
(c) Lot 2 U Street, Western Australia, which was sold in August 2000 for $46,667.00.
I therefore find that the total of the wife’s assets in cash and real property at the commencement of co-habitation was approximately $1,650,000.00. In addition to those assets the wife had furniture, antique furniture, jewellery and a motor vehicle to which I cannot ascribe a value.
The husband asserts a contribution at the commencement of co-habitation which includes the business W Pty Ltd, and cash, which he asserts he held, in the sum of $10,000.00. The husband is unable to produce any document to substantiate that assertion. In cross-examination in relation to almost every issue of fact in relation to financial matters the husband conceded that he was basing his evidence upon reconstruction and supposition and I have no confidence that he in fact had any cash assets at the date of co-habitation. However, his contribution by comparison with that of the wife is so minor as not to require a finding.

CONTRIBUTIONS DURING CO-HABITATION AND AFTER SEPARATION

The wife worked for a period of time in the husband’s business but maintained her more rewarding occupation of share investor. During the course of co-habitation she earned substantially more than did the husband. The husband continued to operate W Pty Ltd and his evidence is that between 1999 and 2011 he had an income from W Pty Ltd of $277,779.00. His income therefore averaged about $23,000.00 per annum. However the wife conceded that he worked hard in his business and that his lack of financial success was not attributed to lack of effort on his part.
Each of the parties according to their various talents and resources worked hard during the marriage and I find that each of them contributed to the best of their ability to the financial needs of the family. The husband concedes that the wife was the primary carer for the children.
It is the wife’s case that the care of the children was more onerous for her because the eldest child M had multiple medical conditions. Although the husband attempted to minimise M’s difficulties by referring to them as “cosmetic” I am satisfied that M’s problems are of a physical nature. The mother gives evidence that M has extensive birth marks on his face and body and right leg which have required laser treatment in the past and will require further treatment in the future. He has vascular problems which require him to wear an elasticised stocking. M has had 30 operations since his birth. On each of the occasions when M required surgery it was the mother who attended to him.
M will require further surgery to shorten one of his legs and will require further laser surgery in addition.
It was submitted on behalf of the mother that the assessment of contribution should be increased by virtue of the special needs of M for which she has largely provided. The wife did not work full time outside of the home and conducted her investment activities largely from home. I do not accept that her contributions during the period that the parties lived together exceeded those of the husband.
After the parties separated, the wife had the greater responsibility for the children. Her evidence that the husband cared for the children for significantly less than half the school periods was not challenged. She cared for the children for five nights each week and the husband for two nights. Therefore her post separation contributions to the welfare of the family as homemaker and parent exceed those of the husband.
Taking into account all of the matters to which I have referred, there should be an adjustment in favour of the wife to reflect her superior contributions of 67%.

SECTION 75(2) ADJUSTMENT

The wife will have the ongoing primary responsibility for the care of the children and will bear the majority of their financial expenses.
The husband currently pays more than the amount assessed by way of Child Support. He is currently assessed to pay $113 per month. In April 2012 he commenced to pay the wife $250.00 per week for the support of the children when he was able to do so. He conceded that he was not always able to pay the higher amount. Although I accept that, if he is able, he will maintain the higher level of support, the record of the performance of his business and, consequently of his fluctuating income, is such that I cannot be confident that he will be able to do so.
The wife will have the burden of the physical management of M’s medical conditions and will bear, as she has in the past, the bulk of the consequent expenses. M will need more surgery. He is currently being treated by at least six different specialist medical practitioners and the wife will be responsible for managing those attendances.
She currently works 40 hours per week in her business. The time she can devote to income earning activities is necessarily restricted by the need to be available to care for the children. She currently has an income from her business of $1,100 per week and from her investments of $275 per week.
The husband currently earns $1,100 per week in drawings from W Pty Ltd and in addition receives benefits such as telephone, electricity and car payments of $200 per week. In addition, W Pty Ltd pays his new wife $50,000.00 per annum.
Ms Mickey, in addition to receiving an income from W Pty Ltd, has inherited a house in Europe and has cash of $200,000.00. She, therefore, is able to contribute to the expenses of their household and has been able to advance money to the husband when it was required.
The wife’s primary care of the children and the circumstances of M’s health warrant a further adjustment in her favour for section 75(2) factors of 10%.
In the distribution of the assets of the parties, it is agreed that the husband will retain his superannuation of $105,473. The husband was born in 1962 and will not have the benefit of his superannuation for some time. In order to take that factor into account, there should be an adjustment of 2% in his favour.
Therefore the overall adjustment in favour of the wife for section 75(2) factors will be 8%.

conclusion

The net asset pool is $1,131,697. The husband will receive 25% of the pool, $282,924.
He has, in his possession, assets totalling $172,685, including his superannuation entitlements and debts of $33,256 (net $139,429). Therefore he will receive a further sum of $143,495 from the money held in trust for the parties.
The wife will retain the balance of the assets.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 15 June 2012.

Associate:

Date: 15 June 2012

[2012] FamCA 472

15 June 2012

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Remedies