MSP and MNP
[2005] FMCAfam 183
•21 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MSP & MNP | [2005] FMCAfam 183 |
| FAMILY LAW – Parenting – application by mother for residence – undefended. PROPERTY – Undefended – child with special needs – small property pool. |
| Family Law Act 1975 |
| B & B Family Law Reform Act 1995 (1997) FLC 92-755 Russell v Russell (1999) FLC 92-877 |
| Applicant: | MSP |
| Respondent: | MNP |
| File Number: | PAM 6186 of 2004 |
| Judgment of: | Sexton FM |
| Hearing date: | 15 April 2005 |
| Delivered at: | Parramatta |
| Delivered on: | 21 April 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Thistleton |
| Solicitors for the Applicant: | Caldwell Martin Cox |
| Solicitors for the Respondent: | No appearance |
ORDERS
Parenting
That the children of the marriage, NMP born 27 December 1988, DMP born 18 September 1993 and MGP born 15 January 1999 live with the wife.
That the parties retain the joint responsibility for making decisions in consultation with each other, in relation to the long term care, welfare and development of the children.
That each party have sole responsibility for the day to day care, welfare and development of the children while in that party’s care.
That the children have contact with the husband as follows:
(a)For up to four weeks block contact each year on the following conditions:
(i)That such contact take place whilst the father is on leave from his employment and available to personally supervise the children;
(ii)That such contact take place during school holiday periods (not to include Christmas Eve, Christmas Day or Boxing Day which are otherwise referred to herein);
(iii)That block periods of contact not exceed two weeks during any given school holiday period;
(iv)That the husband provide to the wife at least 8 weeks prior written notice of the proposed contact dates.
(b)By telephone once a week on a day and time to be agreed between the parties.
(c)At such other times as agreed between the parties.
That, unless otherwise agreed between the parties, for the purposes of contact, changeover will occur by the husband collecting and delivering the children to and from the wife’s residence.
That the wife be entitled to speak to the children by telephone at reasonable times during contact periods.
Pursuant to Section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
Property
That the parties forthwith join in the sale and do all acts and things and execute all documents necessary to list for sale and sell the former matrimonial home in a suburb of Queensland [“the home”] for a price and with an agent to be agreed upon between the parties, or in default of such agreement as to the selling price or agent for more than 14 days, at a price and with an agent appointed by the President of the time being of the Australian Property Institute Inc (Queensland Division) whose decision shall be final and binding upon both parties.
That the parties agree on a solicitor to act on the sale of the home and in default of agreement for more than 14 days, Finemore, Walters and Storey, solicitors be appointed.
In the event that the home has not sold within 3 months of being listed for sale by private treaty in accordance with Order 8 above, the parties do all such acts and things and sign all such documents necessary to cause the home to be sold by the same agent by way of public auction on the following terms:
(a)That such auction take place within two (2) months from the date of placing the property for sale by public auction or as soon as practicable thereafter;
(b)That the reserve price for such auction be as agreed between the parties or failing agreement for more than seven (7) days, as determined by the selling agent;
(c)That the husband pay all auction expenses as requested by the selling agent as and when they fall due;
(d)That the parties shall do all such acts and things as may be necessary or recommended by the selling agent to properly present the property for sale and to make same available for inspection by prospective purchasers;
(e)That either party be at liberty to bid for the purchase of the property at auction;
(f)That the parties shall attend the auction and if necessary negotiate with the highest bidder at auction if the reserve price is not reached.
That upon completion of the sale of the home in accordance with Orders 8 and 10 herein the parties shall distribute the sale proceeds in the following order and priority:
(a)In discharge of the mortgage secured over the home to GE Mortgage Solutions;
(b)In payment of legal costs, real estate agent’s commission, auction expenses and GST upon the said sale;
(c)In payment of any fees due for the nomination of a valuer or fixing of a sale price as provided in these orders, in payment of valuation fees and GST, if any;
(d)In adjustment of rates in accordance with usual conveyancing practice;
(e)In payment of $994.56 to Finemore Walters and Storey, solicitors, for fees outstanding in relation to the purchase of the home;
(f)In discharge of the debt to Integral Energy, being $1,813.72 together with any accumulated penalties and interest;
(g)In discharge of the NAB Bankcard debt;
(h)In discharge of the debt owed to KMc;
(i)In discharge of the wife’s debt to the Australian Government;
(j)In payment to the wife of $15,652.95
(k)In payment of balance as to 79% to the wife and 21% to the husband.
That from the date hereof the husband shall solely pay and bear as and when they fall due all repayments of the principal and interest including arrears, if any, in relation to the following:
(a)Any mortgage secured over the former matrimonial home;
(b)All rates, taxes and outgoings associated with the former matrimonial home;
And the husband shall and does hereby indemnify the wife against any liability for a contribution to same.
That the wife be declared to be the sole legal and beneficial owner of all her right title and interest in and to:
(a)All cash at bank and moneys invested by her in her sole name;
(b)All furniture and personal effects in her possession;
(c)The motor vehicle in her possession;
(d)All her right title and interest in respect of any superannuation entitlements received by the wife and invested by her on her behalf.
That the husband be declared to be the sole legal and beneficial owner of all his right title and interest in and to:
(a)All cash at bank and moneys invested by him in his sole name;
(b)All furniture and personal effects in his possession;
(c)The proceeds of sale held by him from the sale of the Nissan Patrol motor vehicle;
(d)The proceeds of sale held by him from the sale of the Holden Rodeo motor vehicle;
(e)All entitlements held by him as to superannuation.
That unless otherwise specified in these Orders and except for the purpose of enforcing the payment of any money due under these or any subsequent Orders:
(a)Each party be solely entitled to the exclusion of the other, in both law and in equity, to all property (including choses-in-action) in the possession of such party as to the date of this agreement;
(b)All insurance policies are hereby declared the sole property of the person whose name the policy is in;
(c)All superannuation policies are hereby declared the sole property of the person whose name the policy is in;
(d)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
The husband and the wife hereby declare that they are not aware of any liability which either of them has which is a joint or several liability with the other, including but without limiting the generality of the foregoing, in respect of or pursuant to bank, credit or charge accounts, guarantees or as a result of any of the parties previous business (if any) or other dealings.
If it is subsequently found that any such liability as described in Order (16) exists, the party pursuant to whose own business or other dealings such liability arose, shall indemnify the other against all claims, costs, demands, suits, actions and proceedings which may be made against or incurred by the other party in respect thereof.
In the event of either parties’ failure to sign any necessary documents or instruments or to do any acts required or contemplated by these Orders to be done, with such failure continuing for 14 days, then the Registrar of the Family Court of Australia in pursuance of the powers conferred on him or her under Section 106A of the Family Law Act 1975, as amended, shall have the power to execute any document or instruments in the name of the person who has refused or neglected to sign any necessary document or instrument or to do any act required or contemplated by these Orders.
That within 10 days from the date of these Orders the applicant wife serve or cause to be served a copy of these Orders and Reasons on the Respondent husband by pre-paid post to his address in Queensland.
That the operation of these orders be stayed for a period of 42 days.
That the applicant wife serve or cause to be served a copy of these Orders and Reasons on the respondent husband within 10 days.
That each party have liberty to apply at 7 days notice to vary or discharge these orders, such liberty to apply to expire 42 days from the date of order.
That all existing applications be otherwise dismissed and the matter be removed from the Pending Cases List.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 6186 of 2004
| MSP |
Applicant
And
| MNP |
Respondent
REASONS FOR JUDGMENT
History of proceedings
These are proceedings for final parenting and property orders.
The proceedings were commenced by the wife who filed an Application on 13 December 2004. The wife filed an Amended Application on 17 February 2005. At hearing, the wife sought parenting orders in accordance with her Amended Application but different orders in relation to property. In her affidavit filed 8 April 2005 the wife said she was not pursuing her application for a superannuation splitting order and counsel for the wife made no submissions on this issue at hearing. The husband filed no documents in the proceedings.
The matter was first listed before me on 31 January 2005. I was satisfied on the evidence of the wife’s process server that the husband had been served with the wife’s Application, Affidavit and Financial Statement on 11 January 2005. As there was no appearance for the husband on 31 January 2005, I made directions for the husband to file his responding documents. I directed the parties to attend confidential counselling in the Parramatta Registry or by arrangement with the Brisbane Registry. I made a further order that if the husband failed to comply with these orders or failed to appear on 23 February 2005 the matter was likely to proceed on an undefended basis and orders may be made in accordance with the wife’s application. The matter was adjourned for further mention to 23 February 2005.
On 23 February 2005 there was no appearance by or for the husband and he had not complied with previous orders. I made directions for trial and listed the matter for an undefended hearing on 15 April 2005. I made an order for the wife’s legal representative to serve a sealed copy of the orders made by this Court on 31 January 2005 and
23 February 2005 on the husband within 10 days. I made a further order that if the husband failed to comply with these orders or failed to appear on 15 April 2005 the matter may proceed on an undefended basis and orders may be made in accordance with the wife’s application. I gave both parties liberty to apply on 7 days notice. The wife filed an Affidavit of Service of her process server on 11 March 2005. The process server deposed to serving the husband on
2 March 2005 with sealed copies of orders made by this Court on
23 February 2005 and 31 January 2005 and a copy of the wife’s amended application filed 17 February 2005. The wife said in evidence she had a conversation with the husband in March 2005 in which she reminded him of the date of the undefended hearing. The husband told the wife he would contact her solicitors. He has not done so.
The husband did not file any material and did not appear by himself, by an agent or by his legal representative on 15 April 2005.
As I am satisfied the husband was on notice of these proceedings and has been given the opportunity to be heard in the proceedings, I proceeded with the wife’s application on an undefended basis.
At hearing the wife sought $100,000.00 from the net sale proceeds of the home after deduction from the sale price of a number of debts in addition to the assets held in her name. The wife did not press her application for a splitting order in relation to one of the husband’s superannuation entitlements.
Background facts
The wife was born in July 1966. She is 38 years old.
The husband was born in December 1967. He is 37 years old.
The parties commenced cohabitation in 1993 and married on
22 February 1997.
The parties separated in April 2004. The wife left the matrimonial home with the children and moved to separate accommodation in a country town in Queensland.
There are three children of the marriage, NMP born 27 December 1988, aged 16 years, DMP born 18 September 1993, aged 11 years and MGP born 15 January 1999, aged 6 years.
NMP is in Year 11 at High School. She also studies music at TAFE. DMP is in Year 6 and MGP is in Year 1 at BA Public School.
The children have been living with the wife since separation apart from a period of about 6 to 8 weeks in late 2004 when NMP lived with the husband.
In August 2004 the wife moved to BA, New South Wales with the children where she is still living in a rented home. DMP and MGP have not had any contact with the husband since the wife moved to BA.
Since separation, the husband has been living in a country town in Queensland.
There are no current orders relating to parenting or property. There is a domestic violence protection order in force for the protection of the wife against the husband which expires on 10 June 2006.
Issues
The court was asked to decide the percentage entitlement of each party to their net assets.
Evidence and findings
The wife relied on:
·Her Amended Application filed 17 February 2005;
·Her Affidavit filed 8 April 2005;
·Her Financial Statement filed 13 December 2004;
·Two affidavits of her process server, filed 17 January 2005 and 11 March 2005;
·Her oral testimony.
The relevant law – parenting
Parenting orders arise in proceedings conducted under Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to Section 65E which provides that a court must regard the best interests of the children as the paramount consideration. Section 60B(2)(a) emphasises the rights of children to (i) know both parents and (ii) to be cared for by both parents. Section 60B(2)(b) provides that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development.
It recognises the desirability of contact. The word ‘regular’ implies that contact should be as frequent as is appropriate. In B and B; Family Law Reform Act 1995 (1997) 22 Fam LR 676 the Full Court of the Family Court said “it is now well accepted that in most cases meaningful contact by children with both their parents is important to their welfare both in the short and long term.” In considering what parenting arrangements should be ordered, the court must make the order which it considers to be in the best interests of the child.
In deciding the parenting arrangements that will promote the best interests of the children in this case, the court must have regard to the factors in section 68F(2) of the Act to the extent each subsection is relevant to this particular case. The matters that are to be taken into account under section 68F(2) are:
a)the wishes expressed by the child;
b)the nature of the relationship between the child and each parent;
c)the likely effect of any change in the child’s circumstances;
d)the practical difficulty and expense of the child having contact with a parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
e)the capacity of each parent or any other persons to provide for the needs of the child, including the child’s intellectual and emotional needs;
f)the child’s maturity, sex and background;
g)the need to protect the child from physical or psychological harm;
h)the attitude of the parties to the responsibilities of being a parent;
i)any family violence that may involve the child or a member of the child’s family;
(j)any family violence order that applies to the child or a member of the child’s family;
(k)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(l)any other fact or circumstance that the court thinks is relevant. This subsection ensures that the individual child’s circumstances in a particular case can be properly taken into account.
In B & B Family Law Reform Act 1995 (1997) FLC 92-755, the Full Court said:
9.51In our view, the essential inquiry is clear. The best interests of the particular children in the particular circumstances of that case remain the paramount consideration. A court which is determining issues under Part VII of the type to which we have referred, starts from that essential premise and it remains the final determinant.
Evidence and findings
The wife deposed to having cared for the children since they were born. Her husband was primarily responsible for earning income and she was primarily responsible for the care of the children and the day to day running of the household. Since separation the children have lived with her, apart for a period of a few weeks at the end of 2004 when NMP lived with the husband. The wife said the children had contact with the husband on only 3 occasions between separation in April 2004 and the wife moving to BA in August 2004. DMP and MGP have had no face to face contact with the husband since moving to BA. There has been limited telephone contact. The wife deposed to making arrangements for the children to spend from 3 January to 15 January 2005 with the husband. She expected the husband to take the children for a holiday. The husband however, cancelled the contact arrangements on Christmas Day. The wife has sought orders for contact between the children and the husband. She said she wanted the children to have contact with their father. She hopes to be in a position to take the children to see their father in the foreseeable future.
The mother deposed to the children being in good health but NMP is suffering from a congenital condition known as Etodermal Dysplasia. The condition affects her hair, her fingernails, her toenails, her sweat glands and her teeth. NMP did not develop any second teeth and has retained some baby teeth. She has had dental surgery and wears upper and lower dentures on a full time basis. NMP will need a bone implant to her upper jaw and permanent dental implants for her upper and lower teeth. The wife has been advised by a specialist at Westmead Dental Hospital that this surgery will cost an estimated $52,000.00. The Hospital’s application to the Government for financial assistance for NMP was unsuccessful.
I am satisfied the children have a close relationship with the wife and that is in their best interests to remain living with her. I am satisfied the wife will take all reasonable steps to facilitate contact between the children and the husband. I have made parenting orders in accordance with the wife’s amended application.
The relevant law – property
Section 79 of the Family Law Act defines the Court’s powers in determining applications for property settlement. Section 79(2) provides that:
“The Court shall not make an Order under this Section unless it is satisfied that, in all the circumstances, it is just and equitable to make the Order.”
Section 79(4) sets out the matters the Court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters include:
a)The financial and non-financial contributions made directly or indirectly by or on behalf of each party or by a child to the acquisition, conservation or improvement of any property of the parties;
b)The contribution made by a party to the welfare of the family including any contribution made in the capacity of homemaker or parent;
c)The effect of any proposed order upon the earning capacity of either party;
d)The matters referred to in sub-section 75(2) as far as they are relevant;
e)Any other order made under the Family Law Act affecting a party to the marriage or a child of the marriage; and
f)Any child support payable.
The approach to the determination of an application under Section 79 is well established by authority (In the Marriage of Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage of Clauson (1995) FLC 92-595). The process involves four steps. Firstly, identifying the property, liabilities and financial resources of the parties at the time of the hearing. Secondly, evaluating the contributions made by the parties as defined in section 79(4)(a) to (c). This is essentially an exercise in looking back in time from the date of hearing, taking into account the effect of any proposed order upon the earning capacity of either party. Thirdly, evaluating the relevant matters contained in section 75(2), which is essentially an exercise in looking forward in time from the date of hearing. The court must also take into account any other orders already made under the Act and child support already provided or liable to be provided in the future for the children of the marriage. Fourthly, the court must be satisfied in all the circumstances that it is just and equitable to make the orders [Section 79(2)]. It is the justice and equity of the actual orders that the court must consider. Russell v Russell (1999) FLC 92-877.
Evidence and findings
In relation to Step 1: Identifying the assets and liabilities of the parties
At the commencement of the hearing, counsel for the wife submitted a list of the current assets and liabilities of the parties as known to her at the date of hearing. That list is set out at paragraph 30. In relation to the values of assets and liabilities, the wife annexed statements to her Financial Statement from Club Plus superannuation and Hostplus superannuation as at 30 June 2004 to verify the value her interest in those funds and superannuation information forms in relation to the husband’s two entitlements. The wife annexed to her affidavit an estimate of the sale price of the property in a suburb of Queensland which was between $220,000 and $240,000.00 to verify the estimated value of that property. She deposed to the property being on the market and there having been one offer at $175,000.00. The wife annexed verifying documents in relation to the debts to KMc, to Finemore Walters & Storey, solicitors, to Integral Energy and to the Australian Government Family Assistance Office. She deposed to the amount due to the National Australia Bank at $1,300.00 plus interest. After separation, the wife’s mother lent her $1,600.00 to purchase an old Volvo motor vehicle which the wife has found too costly to run. The wife said in evidence that her brother has now purchased a second hand Commodore for her. The wife said the husband retained the contents of the home after separation. The wife’s mother has also lent her money to pay the rental bond on her home. It was submitted by counsel for the wife that given there was no valuation evidence available in relation to the chattels owned by either party, the value of the contents of both parties should be excluded from the net asset pool to be considered for division. I accept his submission. I have also excluded any value for the wife’s Commodore as it was given to her by her brother post-separation.
I set out the list of assets and liabilities as provided by the wife as follows:
| Assets as at the date of hearing (to nearest $) | $ |
| Property in suburb of Queensland (joint tenancy) | 230,000.00 |
| Wife’s 1986 Volvo motor vehicle | 1,600.00 |
| Wife’s Australian Credit Union | Nominal |
| Wife’s Commodore motor vehicle | Not valued |
| Wife’s household effects | Not valued |
| Husband’s household effects | Not valued |
| Wife’s Club Plus superannuation entitlement | 1,192.00 |
| Wife’s Hostplus superannuation | 1,344.00 |
| Husband’s AMP Investment link Super | 7,327.00 |
| Husband’s AMP flexible life Super | 1,142.00 |
| Funds held by husband from sale of Holden Rodeo | 8,900.00 |
| Funds held by husband from sale of Nissan Patrol | Nil |
| Other assets held by the husband | Not known |
| Loan secured by mortgage to GE Mortgage Solutions Limited (joint) | (93,000.00) |
| Debt to Finemore Walters Storey, solicitors | (995.00) |
| Debt to Integral Energy | (1,814.00) |
| Debt to KMc | (822.00) |
| NAB Bankcard (joint) | (1,300.00) |
| Debt owed by wife to Australian Government Family Assistance Office | (10,011.00) |
| Wife’s debt to her mother for Volvo and bond | (2,800.00) |
| Estimated sale costs | Not known |
| TOTAL NET ASSETS [to the nearest dollar] | 140,763.00 |
As the evidence of the wife as to the items and values set out in paragraph 30 is not contested, I find the net asset pool of the parties to be $140,763.00. This amount does not include the sale costs which the parties will incur on the sale of the home. There is no evidence before me as to the assets otherwise held by the husband. I am therefore unable to take those assets into account in any precise way. As I accept the wife’s evidence that the husband is working full time as a carpenter in a country town in Queensland, I am satisfied it is likely the husband has accumulated at least some assets since his separation from the wife 12 months ago.
In relation to Step 2: assessing the contributions of each party
The parties lived together for 11 years. The wife set out in her affidavit the financial history of the parties’ marriage.
At the commencement of cohabitation the wife deposed to owning a Ford Escort motor vehicle, furnishings and personal effects, and to the husband owning a Ford Falcon motor vehicle and personal effects. The wife’s parents provided the parties with an interest free loan of $9,000.00 during cohabitation, but otherwise the parties accumulated their assets from their earnings. The husband has worked full time subcontracting as a carpenter during the marriage and the wife has worked part time from time to time in a variety of jobs. The wife deposed to the husband working from about 7.00a.m. until 5.00p.m. on weekdays and on many weekends. The wife annexed two group certificates for the husband for the 2003 financial year which recorded a total income from those employers in that year of $33,470.00.
The wife deposed to receiving a Family Tax Benefit during the 2003 financial year totalling $10,011.24. The wife believed the parties were entitled to the benefit. However, because the husband has not lodged a tax return for the 2003 financial year, the Family Assistance Office of Centrelink requires full repayment of that amount. The wife is repaying the debt from her Centrelink benefits at $65.90 each fortnight. The letter dated 1 November 2003 from the Family Assistance Office to the wife [Annexure G to the wife’s affidavit] clearly states the necessity for the husband to lodge his tax return so the question of whether the monies are owed can be assessed. I accept the evidence of the wife that the husband has not yet lodged his 2003 taxation return. I find the debt of the parties in the sum of $10,011.24 is a negative contribution by the husband and I have taken this into account in my assessment of each party’s contributions.
The wife said the parties purchased their first property in 1998 at Woodbine for $153,000.00 with the assistance of the $9,000.00 interest free loan from the wife’s parents. The parties sold the Woodbine property in about September 2003 for $317,000.00. They applied the net proceeds of sale to the purchase of a one acre block in a suburb of Queensland for $130,000.00 in October 2003. They then borrowed $80,000.00 from GE Mortgage Solutions Limited to purchase and build a shed on the property, to purchase a Holden Rodeo motor vehicle, a Nissan Patrol motor vehicle and to repay the wife’s parents.
The wife and children never lived in the shed on the land, though she and the husband had taken steps to improve the shed so it could be used as a residence.
After separation, the husband stopped making any mortgage payments and the mortgagee took legal action to recover the loan funds. The wife annexed a Statement of Claim filed by GE Mortgage Solutions Limited at the Queensland Supreme Court in December 2004. The claim is for $80,000.00 in addition to interest and costs. The wife estimates a discharge figure of approximately $93,000.00 which I am satisfied is a reasonable estimate. In January 2005 the parties listed the property for sale. The wife deposed to the parties having had one offer at $175,000.00. This was an offer at significantly less than the estimated sale price. Given the husband has earned the income for the family during the course of the marriage, I find that it was the husband’s responsibility to continue to meet the mortgage repayments after separation. This is particularly so given the wife had no access to the property after separation. The parties have suffered a financial loss as a result of the husband’s conduct and I take this factor into account in my assessment of each party’s contributions.
The wife deposed to the husband selling the Holden Rodeo at about the time of separation for $9,700.00. She said she retained $800.00 to meet removal and bond costs and the husband kept the balance.
In relation to non-financial contributions, I accept the evidence of the wife that she undertook the majority of home-making tasks with assistance from the husband when he was not working. The husband used his skills as a carpenter to improve the shed the parties purchased for use as a residence.
Since separation, the wife deposed to the husband paying no child support until November 2004. The wife applied to the Child Support Agency on 20 September 2004 for the Agency to collect child support on her behalf. Since that time, the wife has been receiving $588.00 per month in child support.
The wife has had the full time care of the three children since separation with minimal assistance from the husband. The husband did care for NMP for a few weeks at the end of 2004 but has otherwise had almost no contact with the children. I take this factor into account in assessing each party’s contributions.
The orders that I propose making in this matter will not affect the earning capacity of either party to these proceedings.
Taking all these matters into consideration leads me to the view that, as a result of their respective contributions, the assets of the parties should be apportioned 54% to the wife and 46% to the husband.
In relation to Step 3: A consideration of ‘future factors’
I have considered each of the factors listed in section 75(2) of the Act.
·The husband is 37 years of age and there is no evidence before me in relation to his current health. He was in good health at the time of the parties’ separation. The wife is 38 years of age and in good health. The wife is presently not in paid employment. The husband is a qualified carpenter with a significantly higher earning capacity than the wife. Counsel for the wife referred me to the Full Court decision of Clauson and Clauson (1995) FLC 92-595. The Court said:
“It has long been recognised that in most cases the most valuable “asset” a party can take out of the marriage is a substantial, reliable, income-earning capacity.”
·The wife has the continuing and sole responsibility for the care of the three children of the marriage. The husband has paid child support only since November 2004. The children are not having contact time with the husband. On the evidence of the wife, NMP has suffered serious emotional trauma as a result of the impact of a sexual assault on her as a child and as a result of the impact of her congenital condition on her appearance. The wife gave evidence of NMP cutting herself with razor blades just prior to the parties’ separation. I am satisfied the NMP has special needs as a result of her congenital condition referred to in paragraph 24 of these Reasons. The wife will be trying to find large sums of money to meet the costs of NMP’s dental work. I am satisfied the wife is likely to have to provide for NMP’s needs both emotionally and financially into the future. I have made a significant adjustment in favour of the wife as a result.
·The wife received her first child support assessment in September 2004 and her current assessment is $588.00 per month. [Annexure B to the wife’s affidavit]. The wife has said the husband worked full time during the course of the marriage and to the best of her knowledge, continues to work full time. There is no evidence to suggest the husband will not continue to earn an income and continue to meet his child support obligations.
The husband has had minimal contact with the children since separation. Given his failure to participate in these proceedings, and his failure to make arrangements with the wife to date for contact with the children, I am satisfied the wife is likely to carry most if not the whole of the responsibility for the children’s care, at least in the foreseeable future. This is a factor I have taken into account.
The Full Court in Clauson and Clauson said, in relation to the appropriate adjustment for Section 75(2) factors:
it is the real impact in money terms which is ultimately the critical issue.
I am satisfied that after consideration of all these factors and given the limited net asset pool available to the parties, the wife should receive a 25% adjustment in her favour as a result of section 75(2) factors.
The wife is to therefore to receive 79% of the known net assets of the parties. The asset pool will change taking into account the costs of sale and the sale price. For the purpose of calculations, if the value of the home, the mortgage and the debts are omitted from the pool, the net assets total $21,505.00. The wife is to receive 79% of the overall pool, so she must receive $16,988.95 of the $21,505.00.00 as well as 79% of the net sale proceeds of the home after deduction of all debts. The wife will have her car and superannuation entitlements which is a total of $4,136.00 and the debt to her mother of $2,800.00 which gives her a total of 1,336.00. She will therefore need $15,652.95 from the sale proceeds in addition to 79% of the balance then remaining to achieve 79% of the net assets overall.
The husband will retain his superannuation entitlements and the proceeds of sale of the Holden Rodeo. This is a total of $17,369.00. He will also receive 21% of the balance remaining after deduction of the debts from the sale proceeds of the home.
I am satisfied that in all the circumstances of this case, the Orders set out at the commencement of these Reasons are just and equitable.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Sexton FM
Associate: Collette McFawn
Date:
0
1
1