Nielson & Nielson - [2012] FamCA 70

FAMILY COURT OF AUSTRALIA

NIELSON & NIELSON

[2012] FamCA 70

FAMILY LAW - PROPERTY SETTLEMENT – Assets and Liabilities – What value should be attributed to the husband’s interest in a property acquired after separation with his current wife – Whether the husband’s employee entitlements should be included in the list of relevant assets or treated as a financial resource; Contributions – Where the husband made greater financial contributions – Where the wife made greater parent and homemaker contributions – Where the parties agree that contributions were equal as at the date of separation – Where the husband contends that his post-separation contributions were greater – Where the wife has had a greater parenting load since separation – Contributions assessed to be equal; Adjustments – Whether the wife has unexercised earning capacity – Where the husband has a substantially greater income than the wife – Circumstances warrant a 15 percent adjustment in favour of the wife; Just and equitable;

FAMILY LAW - CHILD SUPPORT – Where each party seeks a prospective departure from the Child Support Assessment and the payment of non periodic child support – Special circumstances as a ground of departure – Whether it is just and equitable and otherwise proper to make a child support departure order;

FAMILY LAW - SPOUSAL MAINTENANCE – Where the wife will receive a proper rate of child support and has some unexercised capacity for paid employment - No order made for the payment of spousal maintenance.

Family Law Act 1975 (Cth) Sections 74, 75, 79 and 90MT
Child Support (Assessment) Act 1989 (Cth) Sections 3, 12, 116 and 117

In the Marriage of Hickey (2003) 30 Fam LR 355;
In the Marriage of Omacini (2005) 33 Fam LR 134;
Mallett v Mallett (1984) 9 Fam LR 449;
In the Marriage of Ferraro (1992) 16 Fam LR 1;
In the Marriage of Shewring (1987) l2 Fam LR 139;
In the Marriage of Lenehan (1987) 11 Fam LR 615;
In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712;
In the Marriage of Zyk (1995) 19 Fam LR 797;
In the Marriage of Coghlan (2004) 33 Fam LR 414;
In the Marriage of Clauson (1995) 18 Fam LR 693 at 711; [1995] FLC 92-595; Howles & Howles [2009] FamCA 1091;
Hurst v Weber [2009] FamCAFC 137; 233 FLR 337;
NHC v RCH (2004) FLC 93-204; 32 Fam LR 518;
In the Marriage of Farnell (1996) FLC 92-681; (1996) 20 Fam LR 513;
Ismail and Elfar [2011] FamCA 716;
In the Marriage of Willis [2007] FamCA 819;
Savery & Savery (1990) 13 Fam LR 812; (1990) FLC 92-131;
In the Marriage of Townsend (1994) 18 Fam LR 505; (1995) FLC 92-569;
McGuiness v Cowie (2002) 29 Fam LR 441; [2002] FamCA 461.

APPLICANT:

Ms Nielson

RESPONDENT:

Mr Nielson

FILE NUMBER:

SYC

2956

2009

DATE DELIVERED:

24 February 2012

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Loughnan J

PLACE HEARD: Sydney

HEARING DATE:

1, 2 & 3 February…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nielson & Nielson

Details

AGLC: Nielson & Nielson [2012] FamCA 70
Case: [2012] FamCA 70
Decision Date: 24 February 2012

CaseChat Overview and Summary

The case of Nielson & Nielson concerned a dispute between a husband and wife regarding property settlement, child support, and spousal maintenance. The primary issues revolved around the valuation and division of marital assets, including a property acquired by the husband after separation, employee entitlements, and superannuation. The court also had to consider the parties' respective contributions to the marriage, both financially and in terms of homemaking and parenting, as well as the wife's unexercised earning capacity and the husband's significantly higher income. Furthermore, the parties sought prospective departures from the standard child support assessment, requesting non-periodic payments for special circumstances.

The court determined that the husband's post-separation property acquisition should not be included in the asset pool, and his employee entitlements were to be treated as a financial resource. Despite the husband's contention of greater post-separation financial contributions, the court found the parties' contributions to be equal, acknowledging the wife's greater parenting load since separation. Applying the principles of just and equitable distribution, the court ordered a 15 percent adjustment in favour of the wife due to her unexercised earning capacity and the disparity in income between the parties. The wife's application for spousal maintenance was dismissed, as she was to receive adequate child support and possessed some capacity for paid employment.

In terms of orders, the husband was required to transfer his interest in a property and a motor vehicle to the wife, who was then to discharge the associated mortgage. Joint bank account funds were to be disbursed, with a significant portion allocated to the husband and the remainder to the wife. The court also ordered a division of the husband's superannuation benefits in accordance with the Family Law (Superannuation) Regulations 2001. The husband was ordered to pay $575 per week in child support, plus all school fees and orthodontic/dental expenses for the children, with provisions for annual adjustments to the weekly payment based on the Consumer Price Index. These payments were to constitute 100% of the husband's child support liability.

Orders

Orders of the court

1. Within 21 days of these orders the husband shall do all such acts and things and sign all such documents as may be required to:

1.1 transfer to the wife all of his right, title and interest in the property situated at and known as … T Street, Suburb L; and

1.2 transfer to the wife all his right title and interest in Q7 Audi Motor Vehicle, registration … ;

and upon compliance by the husband with the above orders, the Orders of 9 September 2009 shall be and hereby are discharged.

2. Forthwith on compliance with Order 1 the wife shall discharge the mortgage secured on the Suburb L property and shall thereafter indemnify the husband and keep him indemnified in relation to that mortgage.

3. Forthwith the parties shall do all such acts and things and sign all such documents as may be required to cause the funds in the Westpac Bank account number …29 in the joint names of the parties to be disbursed as follows:

2.1 $70,845 to the husband; and

2.2 the remaining balance to the wife.

4. The Court allocates as required by Section 90MT(4) of the Family Law Act a base amount of $490,907 of the husband’s superannuation benefits to the wife out of the husband’s interest in Super Fund Z member number … .

5. In accordance with Section 90MT(1)(a) of the Family Law Act, whenever a splittable payment becomes payable the trustees of Super Fund Z shall:

5.1. create an entitlement for the wife to be paid the amount calculated in accordance with Part VI of the Family Law (Superannuation) Regulations 2001; and

5.2. make a corresponding reduction in the entitlement the husband would have had in Super Fund Z but for this order.

6. The trustee of Super Fund Z (“the trustee”) shall do all such acts and things and sign all documents as may be necessary to:

6.1. calculate in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement for the wife created by Orders 5.1 and 5.2 of these Orders; and

6.2. pay the entitlement whenever the trustee makes a splittable payment out of the husband’s interest in the super fund.

7. The trustee shall do all acts and things and sign all such documents as may be necessary so that in accordance with the obligations set out under the Family Law Act 1975 and Family Law (Superannuation) Regulations 2001 the trustee can calculate the entitlement of the wife and make payment to the wife in accordance with Orders 6.1 and 6.2 of these Orders.

8. Orders 4 to 7 inclusive shall have effect from the operative time being four (4) business days after service of the Order upon the trustee.

9. Having been accorded procedural fairness, Orders 4 to 7 bind the Trustee to observe the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.

10. Except as otherwise provided in these orders, the husband and the wife each be declared the sole legal and beneficial owners of all items of property or resource including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively.

11. The wife’s application for spousal maintenance contained in her Further Amended Initiating Application filed 2 June 2010 is dismissed.

12. Pursuant to section 117 of the Child Support (Assessment) Act 1989 Mr Nielson [the husband] shall provide child support to Ms Nielson [the wife] for each of the children J born … September 1998, B born … September 2000 and M born … June 2002 [the children] by way of payment in the sum of $575 per week, paid each calendar month, the first payment to be made within seven days of the date of this Order and thereafter on the same date each month and the final payment to be made upon the happening of a child support terminating event in relation to each child as defined by section 12 of the Child Support (Assessment) Act 1989.

13. The child support to be paid pursuant to Order 12 herein, shall be varied on 1 January in each year (“the review date”) commencing 1 January 2013 to such sum as shall be determined by multiplying the maintenance being paid on the review date by the fraction N/B when ‘N’ is the Consumer Price Index (All groups for Sydney) published by the Australia Bureau of Statistics (“CPI”) in respect of the quarter year immediately preceding the receive date and ‘B’ is the CPI in respect of the quarter year ending 12 months prior to the review date.

14. Pursuant to section 124 of the Child Support (Assessment) Act 1989 Mr Nielson [the husband] shall provide child support to Ms Nielson [the wife] for the children J born … September 1998, B born … September 2000 and M born … June 2002 [the children] by way of payment of:

14.1. all school fees including private school fees in respect of each of the children from the date of the making of this Order until the date each child respectively leaves secondary education and such fees shall mean and include tuition fees, reasonable excursion fees, incidental sporting costs, school books, school uniforms and reasonable extracurricular activities; and,

14.2. all orthodontic and dental expenses referable to the children.

15. The payments made by the husband pursuant to Orders 12 and 14 above shall, in combination, count for 100% of the liability of the husband pursuant to any administrative assessment of child support.

16. Leave is granted to the parties to restore the proceedings within 6 weeks of the date of these Orders or within such further time as the parties agree, in respect of the wording of the orders, by giving at least 7 days written notice to the Associate to Justice Loughnan and to each other.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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