PAIGE and PAIGE

[2017] FCWA 53

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

CHILD SUPPORT (ASSESSMENT) ACT 1989
CHILD SUPPORT (REGISTRATION and COLLECTION) ACT 1988

LOCATION: BUNBURY

CITATION: PAIGE and PAIGE [2017] FCWA 53

CORAM: DUNCANSON J

HEARD: 1 MAY 2017

DELIVERED : 5 MAY 2017

FILE NO/S: PTW 4442 of 2012

BETWEEN: MS PAIGE

Applicant

AND

MR PAIGE
Respondent

Catchwords:

CHILDREN - undefended proceedings - where father overseas and has no contact with child - mother to have sole parental responsibility for child - child to live with her
PROPERTY - where it is just and equitable to make a property order - where wife made greater contributions - adjustment for s 75(2) factors
SPOUSAL MAINTENANCE - where wife is unable to support herself adequately – lump sum spousal maintenance ordered
CHILD SUPPORT - application for departure order and lump sum payment dismissed – order for payment of child support debt

Legislation:

Family Law Act 1975 (Cth) s 60CA, s 60CC, s 75(2), s 79, s 90MT
Child Support (Assessment) Act 1989 (Cth) s 117, s 123A
Child Support (Registration and Collection) Act 1988 (Cth) s 71

Category: Reportable

Representation:

Counsel:

Applicant: Ms A Tait

Respondent: No Appearance

Solicitors:

Applicant: Ball & Co.

Respondent: Self-Represented Litigant

Case(s) referred to in judgment(s):

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1These proceedings concern the child [C] who is 14 years of age. C lives with the wife, [Ms Paige].

2On 8 August 2012 the wife commenced proceedings in relation to financial matters. She filed an amended initiating application on 30 August 2016 in which she also sought parenting orders and orders for child support.

3On 30 November 2016 the husband, [Mr Paige] was ordered to file responding documents by no later than 6 January 2017. It was further ordered that in the event he failed to comply with that order, then, until further order, the wife have leave to proceed undefended.

4The husband did not file documents as ordered. He has not participated in these proceedings.

5The matter was listed for trial on 1 May 2017. The husband did not attend. The wife gave oral evidence. I consider her evidence was reliable.

THE PARENTING ORDERS SOUGHT

6The orders sought by the wife are contained within a minute of orders sought received 20 April 2017. She seeks an order that she have sole parental responsibility for C. She also seeks an order that C live with her and spend time with the husband at such times and on such terms and conditions as the parties may agree.

BACKGROUND

7The wife was born [in] 1965. She is 52 years of age. She is a home educator. The husband was born [in] 1969. He is 48 years of age. The wife understands he is working [overseas].

8The parties commenced a relationship in September 2000. They were married [in] 2002. There is one child of the marriage, C born [in] 2003.

9In July 2012 the parties separated under one roof. The wife commenced these proceedings, although in October 2012 the parties reconciled.

10The parties separated finally on 30 December 2014.

SHORT HISTORY

11After the parties commenced their relationship they both were in employment.

12In 2004, the parties moved [overseas] in connection with the husband’s career.

13The parties returned to Australia in 2006.

14In 2010 the parties purchased a home in [Suburb C].

15The parties subsequently sold the Suburb C home and purchased a home in [Suburb D].

16C was withdrawn from mainstream schooling in April 2013 and since December 2013 the wife has home schooled him by supervising his distance education.

17After separation the parties’ home in Suburb D was sold. The wife and C moved to [Country Town E] and then to [Country Town F] where they live in rented accommodation. In about May 2016 the husband moved overseas.

18C suffers from anxiety. He has not spent time with the husband since separation in accordance with his wishes.

19The husband has made no attempt to spend time or communicate with C.

THE LAW

20These proceedings are determined under Part VII of the Family Law Act 1975 (Cth) (“the Act”). In reaching my decision I will be guided by the objects of that Part and the principles underlying those objects.

21The objects are to ensure that the best interests of children are met by:

(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

22In deciding whether to make a particular parenting order, s 60CA directs me to regard the best interests of the child as the paramount consideration. Section 60CC sets out how I determine what is in a child’s best interests. I must consider the primary and additional considerations.

THE PRIMARY AND ADDITIONAL CONSIDERATIONS

23C has a meaningful relationship with the wife and it is to his benefit that it continues. It would be to C’s benefit to have a meaningful relationship with the husband. C does not wish to have any contact with him. The husband has not sought to have a relationship with C since the parties separated.

24There is not a need to protect C from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. He is well cared for by the wife.

25C has expressed strong views that he does not wish to spend time with the husband. He is 14 years of age. The wife says he based his views on past experience with the husband, in particular that during the parties’ relationship the husband had little to do with C and neglected his needs.

26C has a close and loving relationship with the wife. The wife described his relationship with the husband as difficult. C also has a close relationship with members of the maternal extended family including his aunt and uncle, cousins, grandmother and older half-brother. C has many friends living locally.

27The wife has been solely responsible for C’s care since the parties separated. She has made decisions about major long-term issues. The husband has not taken the opportunity to participate in making decisions about C, nor has he spent time, or communicated with him. The wife has solely maintained C.

28C has lived with the wife since separation. He is happy and settled in her care. It is likely that any change to this arrangement would have a detrimental effect upon him.

29There is practical difficulty and expense associated with C spending time and communicating with the husband. C lives with the wife in Country Town F. The husband lives overseas.

30The wife has the capacity to provide for C’s needs on all levels. C suffers from anxiety. He is educated through Distance Education via [School A]. His schooling is supervised by the wife. He is presently at Year 10 level.

31C is 14 years of age and highly intelligent, although he is immature both emotionally and socially.

32The wife has demonstrated an appropriate attitude to C and to the responsibilities of parenthood. The husband has not done so.

33There has been no family violence involving C or a member of his family, and no family violence order applies.

34It is desirable to make final orders with respect to C. It is in his best interests that he have stability in his living arrangements.

CONCLUSION

35Having considered the evidence in the context of the primary and additional considerations I have come to the following conclusions.

Parental responsibility

36The presumption that it is in the best interests of C that his parents have equal shared parental responsibility for him has been rebutted in the circumstances of this case. C has not seen, or communicated with the husband since 2014. The husband plays no part in his upbringing. The wife is well placed to make long term decisions for C. She does not know the husband’s precise whereabouts and there is no possibility of the parties consulting about long-term issues and jointly coming to a decision about them. In the circumstances I intend to order that the wife have sole parental responsibility for C.

Living arrangements

37It is in the best interests of C to live with the wife. He is well cared for by her and she provides well for him on all levels.

38At this time, C does not wish to spend time with the husband and the husband does not seek to spend time with him.

39I consider it to be in C’s best interests to make the orders sought by the wife that C spend time with the husband at such times and on such terms as the parties may agree.

PROPERTY

THE ORDERS SOUGHT

40The orders sought by the wife are contained in her said minute of final orders sought at trial. She seeks a splitting order of the husband’s interest in Australian Super Fund such that she receives 100% thereof. The wife proposes that the Bankwest account which contains the sale proceeds of the former matrimonial home be divided between the parties, such that the husband receives $32,207 and she be entitled to the balance subject to that balance being characterised as spousal maintenance.

41The wife seeks a declaration that the sum of $19,245 in registered child support liabilities for the child is owed by the husband.

42The wife seeks child support departure orders such that the annual rate of child support for the child be set at $27,077 for the period from 16 June 2016 to 28 March 2021.

43She seeks an order for payment of lump sum child support, such that the husband pay to the wife the said sum of $32,207, to be credited as 100% of the annual rate of child support until the lump sum is exhausted.

44The wife proposes that otherwise the parties retain the assets and liabilities in their respective names.

THE LAW

45These proceedings are governed by s 79 of the Act. To determine this matter I shall:

•identify the existing legal and equitable interests of the parties in their property;

•ascertain whether it is just and equitable to make a property settlement order and, if so;

•identify and assess the contributions of the parties;

•consider ss 79(4)(d), (e), (f) and (g) of the Act which include the relevant matters in s 75(2) and determine the adjustment (if any) which should be made;

•make such orders as are just and equitable.

SHORT FINANCIAL HISTORY

46At the commencement of cohabitation both parties were in employment.

47In 2001 the husband left his employment and studied for a Master’s Degree in [Economics] which he completed in 2003.

48In 2001 the wife started a company “[Company A]”, which employed the husband on a part-time basis.

49In 2004 the wife started a second small business called “[Company B]” which supplied equipment and resources.

50In 2004 the parties moved overseas for a period of two years, which was a costly exercise.

51In mid-2007 the husband commenced employment with [Company W]. He earned a high income, bonuses and allotments of shares.

52In May 2010 the parties built a home at [Suburb C] (“[the Suburb C property]”).

53When the parties separated first in July 2012, they remained under one roof. The husband left the Suburb C property in August 2012. At that time he sold shares. He repaid a loan from relatives, paid out a credit card, purchased a [Holden] motor vehicle, but otherwise did not explain his use of the balance of the funds he received from the sale of the shares.

54At the time the parties reconciled in about October 2012 they sold the Suburb C property and purchased a property at Suburb D (“[the Suburb D property]”).

55The parties decided to home school the child in April 2013. Later that year the wife sold her business to devote her time to home schooling.

56The parties again separated under one roof in July 2014. The Suburb D property was sold in December 2014. The net proceeds of sale in the amount of $120,470 were paid into a Bankwest account. At the time the parties separated the husband was in employment with Company W earning about $200,000 per annum. He subsequently left that employment. At the time he received a payment of about $30,000.

57At separation the wife opened a further Bankwest account into which is paid the proceeds of the [student bursary] from which she receives about $6,000 per annum which is applied to the child’s education.

58In January 2015 the husband commenced paying child support. He paid child support until about May 2016. The wife was dependent on Centrelink benefits. In 2015 and 2016 the wife made small withdrawals from the Bankwest account which contained the sale proceeds, including for child support and legal costs.

59The wife understands the husband is currently employed as [an engineer] overseas.

60On 12 July 2016 a flagging order was made in respect of the husband’s superannuation interest with Australian Super.

61As at the date of trial the wife said the arrears of child support were $19,245. I accept her evidence in this respect.

THE EXISTING PROPERTY INTERESTS OF THE PARTIES

62 I find the existing property interests of the parties as known to be as set out in the schedule below.

ASSETS	Ownership	Value
Bankwest account ([xxxx])	W	$113,963
Bankwest account ([xxxx])	W	$4,219
[Ford] motor vehicle	W	$2,000
[Holden] motor vehicle	H	$12,000
Total Assets	$132,182
SUPERANNUATION
Australian Super	W	$40,590
Australian Super	H	$241,768
Total Superannuation	$282,358
TOTAL ASSETS AND SUPERANNUATION	$414,540

IS IT JUST AND EQUITABLE TO MAKE A PROPERTY SETTLEMENT ORDER

63The parties separated in 2014 although they are not yet divorced.

64Following the irretrievable breakdown of the marriage and in circumstances where there is no longer common use of property, the wife seeks to alter their property interests.

65The husband has not participated in these proceedings. The wife is not in communication with the husband and he has not disclosed his financial circumstances to her.

66The wife seeks to finalise the parties’ financial relationship.

67In the circumstances I find it is just and equitable to make a property settlement order.

CONTRIBUTIONS

68At the commencement of cohabitation the wife had some assets. The husband had some debts. Both parties were in employment.

69After the birth of the child the wife was primarily responsible for his care. The husband was the primary income earner.

70The wife asserts that to date of separation, the parties’ contributions were relatively equal. Having considered the evidence I agree with that assessment.

71After the parties separated the husband continued to be employed by Company W. For a period of time he paid child support.

72Since the parties separated the wife has had sole responsibility for the care of the child and has maintained him.

73When I weigh the respective contributions of the parties throughout the whole of their relationship, I consider there is in an imbalance in the favour of the wife, largely by reason of her post-separation contributions. I consider that contributions should be assessed 55% to the wife and 45% to the husband.

74Following my assessment of contributions, the wife would receive or retain property to the value of $227,997 and the husband would receive or retain property to a value of $186,543.

SECTION 75(2) FACTORS

75The wife is aged 52 years and is in poor health. The wife’s general medical practitioner provided a report concerning the wife, dated 27 March 2017. By reason of her medical conditions, including [chronic illnesses], the wife’s ability to obtain and maintain gainful employment is limited. The wife is in receipt of Newstart Allowance and Family Tax Benefit.

76The wife also receives the funds from the student bursary but these are applied to the child’s education and will cease when he completes high school. The husband’s financial circumstances are not known, but he is believed to be in employment in a senior position overseas. The husband has an earning capacity in excess of $200,000 per annum.

77The parties’ property to the extent it is known by the wife is set out above.

78The wife has the sole care of the child.

79The wife meets the child’s needs without financial support from the husband. Her commitments are not out of the ordinary.

80The wife has a modest standard of living. That of the husband is unknown.

81The wife is fully engaged parenting and home schooling the child and does not propose undertaking education or training that would increase her earning capacity. Her earning capacity is limited by reason of her health.

82There is a need to protect the wife’s role as a parent. The child has psychological difficulties, such that he struggled in the mainstream school environment. The wife is responsible for schooling the child to the extent her health permits her to do so.

83The wife is not cohabiting with another person. The husband’s circumstances are unknown.

84The husband is in arrears of child support. The current assessment of child support is just over $2,000 per month. The Child Support Agency has been unable to collect child support from the husband. Child support arrears amount to $19,245. The husband is considered to be an Australian resident by the Child Support Agency.

85As to any other fact the court should take into account, the wife refers to her contributions in providing care to her step-children during the parties’ relationship.

86The husband has not complied with his duty of disclosure. His financial circumstances are not known. In these circumstances it is open to the court to take a robust approach to any adjustment.

ASSESSMENT OF S 75(2) FACTORS

87The s 75(2) matters when taken as a whole warrant an adjustment in favour of the wife. In my discretion I consider an adjustment of 15% in her favour is appropriate to take into account the above matters.

88The property of the parties should therefore be divided 70% to the wife and 30% to the husband.

JUST AND EQUITABLE

89I must consider the practical effect of the proposed orders. The total value of the property of the parties is $414,540. The wife will receive 70% which is $290,178. The husband will receive 30% which is $124,362.

90The wife retains the following:

ASSETS	Value
Bankwest account ([xxxx]) – share	$1,601
Bankwest account ([xxxx])	$4,219
[Ford] motor vehicle	$2,000
Australian Super (wife)	$40,590
Australian Super (husband)	$241,768
TOTAL	$290,178

91The husband retains the following:

ASSETS	Value
[Holden] motor vehicle	$12,000
Bankwest account ([xxxx]) – share	$112,362
TOTAL	$124,362

92The wife will retain her superannuation interests. She will receive the husband’s entire superannuation interest as she seeks to do so. The husband retains most of the funds in the Bankwest account. At trial that was the wife’s preference and the order sought by her is not opposed. In circumstances where the wife has sole responsibility for the care and financial support of the child, and where the husband’s financial circumstances are not known, I am satisfied that orders I make reflecting this outcome are just and equitable.

SPOUSAL MAINTENANCE

93The wife proposes that she should receive the sum of $102,310 from the husband categorised as lump sum spousal maintenance. This represents her weekly expenses for two and a half years (130 weeks), being the period for which she anticipates she will home school the child.

94The wife’s only income is her Centrelink benefits. The student bursary payments are applied to the child’s education expenses. Her property entitlement comprises mainly superannuation interests.

95The wife filed a financial statement on 22 March 2017. Her personal expenditure and average weekly expenditure for herself amounts to $787 per week. In evidence, she said she had carefully estimated her weekly expenses in that sum.

96I am satisfied the wife is unable to support herself adequately by reason of her care of the child and also her physical incapacity for gainful employment.

97Having regard to my discussion of the s 75(2) factors above, I consider that the wife’s needs in the sum of $787 per week are reasonable.

98The husband has a significant earning capacity and is understood to be exercising it in his employment overseas. His property entitlement comprises a significant cash amount.

99I consider it is proper that an order for spousal maintenance be made.

100The power to capitalise periodic spousal maintenance should be exercised cautiously because of uncertainty about future events. In the circumstances of this case and having regard to the husband’s failure to participate in these proceedings it is unlikely he would comply with an order for payment of periodic maintenance.

101I consider it proper that the husband pay maintenance for the period in which the wife will continue to home school the child, which is a period of two and a half years.

102I will order that the sum of $102,310 be paid to the wife by the husband by way of lump sum spousal maintenance. This represents about 24% of the property of the parties. This amount will be paid to the wife from the husband’s property entitlement, specifically his share of the Bankwest account which I have found to be $112,362.

CHILD SUPPORT

103The wife seeks a departure from the administrative assessment of child support, such that from 16 June 2016 to 28 March 2021 the annual rate of child support for the child be set at $27,077.

104The wife seeks a further order pursuant to s 123A of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) that an amount (being the husband’s entitlement pursuant to the property orders), be paid to her and credited as 100% of the annual rate of child support payable until the lump sum is exhausted.

105It is not apparent from the evidence of the wife upon what grounds for departure she relies. Even if a ground was established, the evidence does not enable me to consider whether such an order is just and equitable having regard to the matters set out in s 117(4) of the Assessment Act and whether such an order is otherwise proper having regard to the matters in s 117(5) of that Act.

106In the circumstances I cannot be satisfied that these orders sought by the wife should be made and I decline to do so.

107The wife sought a declaration that the sum of $19,245 in registered child support liabilities for the child is owed by the respondent. Upon the evidence, I am satisfied that declaration should be made. In closing submissions counsel for the wife sought payment of the child support debt of $19,245. She had not notified the Registrar of her intention to sue for and recover the debt, but undertook to do so immediately, and has since done so. Given the husband’s lack of participation in the proceedings, I am prepared to consider the circumstances of the case to be exceptional and dispense with the requirement for 14 days prior notice.

108The husband has paid no child support since May 2016. As at trial he owed $19,245. I will order that the balance of the funds to be received by the husband by way of property settlement be applied in the reduction of the child support debt.

109That balance, after deduction of the amount to be paid as lump sum spousal maintenance amounts to $10,052.

THE ORDERS

110Subject to hearing from counsel, I propose to make the following orders:

Parenting

1The Applicant have sole parental responsibility for the child [C] born [in] 2003 (“the child”) including but not limited to the obtaining, renewal, cancellation and possession of a passport for the child.

2The child live with the Applicant.

3The child spend time with the Respondent at such times and on such terms and conditions as the parties may agree.

Property, Spousal Maintenance and Child Support

4In accordance with s 90MT(4) of the Family Law Act 1975 (Cth), a base amount equal to 100% of the Respondent’s interest in Australian Super Fund (member number 7008213) be allocated to the Applicant.

5In accordance with s 90MT(1)(a) of the Family Law Act 1975 (Cth):

(a) the Applicant (or such other person to whom a splittable payment is payable) is entitled to be paid, using the base amount calculated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth); and

(b) The entitlement of the Respondent (or the entitlement of such other person who becomes entitled to receive a payment out of the Respondent’s superannuation interest) in the Australian Super Fund is correspondingly reduced by force of this order.

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

(a) calculate, in accordance with the requirements of the Family Law Act 1975 (Cth), the entitlement awarded to the Applicant in the immediately preceding clause of this order; and

(b) pay the entitlement whenever the trustee makes a splittable payment from the Respondent’s interest in the Australian Super Fund.

7That these orders have effect from the operative time and the operative time is the beginning of the day upon which these orders are made.

8That, after service of the payment split notice in accordance with the Superannuation Industry (Supervision) Regulations 1994 (Cth) (“the SIS Regulations”), the parties shall do all such things and sign all such documents as may be necessary, including, but not limited to, exercising the request in accordance with the SIS Regulations, for the payment of the non-member spouse interest by way of a lump sum entitlement in accordance with the SIS Regulations.

9That the Court notes:

(a) the value of the non-member spouse interest is calculated in accordance with the SIS Regulations; and

(b) any payments from the Respondent’s superannuation interest in the Australian Super Fund made after the trustee has created a new interest in the Applicant’s name in the Australian Super Fund are not splittable payments in accordance with Division 2.2 of the Family Law (Superannuation) Regulations 2001 (Cth).

10With respect to the proceeds of Bankwest account number xxx‑xxx xxxxxx-x, the Respondent be entitled to $10,052, and the Applicant be entitled to the balance PROVIDED THAT the amount retained by the Applicant in the sum of $102,310 shall be categorised as lump sum spousal maintenance.

11There be a declaration that as at 13 March 2017, the sum of $19,245 in registered child support liabilities for the child is owed by the Respondent.

12The amount, payable to the Respondent pursuant to order 10 hereof shall be reduced by any arrears of child support outstanding as at the date of payment and the Respondent shall apply to the Child Support Registrar to have the amount received treated as having been paid to the Registrar pursuant to Section 71 of the Child Support (Registration and Collection) Act 1988 (Cth) to the intent that such arrears shall be reduced to nil.

13There be liberty to either party to apply to seek further directions with respect to the implementation of these orders.

14Save as otherwise expressed in these orders:

(a) each party shall be entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and for this purpose bank accounts are deemed to be in the possession of the person whose name appears in the bank’s records thereof; insurance policies are deemed to be in the possession of the person who is named as the insured person thereof; superannuation entitlement are deemed to be in the possession of the person whose age or working future provides the conditions for payment out of such entitlements, and the chattels in the real property are deemed to be in the possession of the person with the current control of the said items; and

(b) each party shall 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.

15The parties shall each do all things necessary and sign all necessary documents to give effect to these orders.

Procedural

16All extant applications be dismissed.

17All documents produced by named persons pursuant to subpoena be returned or destroyed in accordance with the request from the named person on the expiration of 42 days from this order.

18In relation to material tendered as an exhibit into evidence in these proceedings:

(a) all parties must collect the exhibits tendered by them (“their exhibits”), from the chambers of Justice Duncanson, at least 28 days, and no later than 42 days, from today’s date;

(b) all parties must contact the chambers of Justice Duncanson to arrange the collection of their exhibits;

(c) in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.

19In the event of an appeal being lodged prior to the expiration period of 42 days, orders 17 and 18 above do not apply.

I certify that the preceding [110] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate