READ & DECKERS
[2012] FMCAfam 833
•10 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| READ & DECKERS | [2012] FMCAfam 833 |
| FAMILY LAW – Property and Child Support Departure application – very brief marriage – young child – application to vary husband’s annual child support assessed income. |
| Child Support Assessment Act 1989 (Cth), division 4, ss.117(7A), 117(1)(b)(i), 117(1)(b)(ii), 117(2)(c)(1a), 117(4)(d), 117(5), 118(1)(c) Family Law Act 1975 (Cth), s.75(2) |
| Applicant: | MR READ |
| Respondent: | MS DECKERS |
| File Number: | MLC 10018 of 2011 |
| Judgment of: | Hartnett FM |
| Hearing date: | 26 July 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 10 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Cantwell |
| Solicitors for the Applicant: | Beswick Foulkes Family Law |
| Counsel for the Respondent: | Mr Dickson |
| Solicitors for the Respondent: | Lander & Rogers |
THE COURT ORDERS THAT:
Within 60 days of the date of these orders the husband pay to the wife the sum of $56,888.
Otherwise each party retain all assets and financial resources in their respective possession and control.
Pursuant to the provisions of Division 4 of the Child Support Assessment Act 1989 (Cth) and as and by way of departure from the current child support assessment, the husband’s taxable income for the purpose of determining the amount payable by him pursuant to the child support formula shall be fixed in the sum of $180,000 per annum for a period of three years from 1 July 2012 to 30 June 2015.
Otherwise all extant applications are dismissed and the matter removed from the list of active cases.
IT IS NOTED that publication of this judgment under the pseudonym Read & Deckers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 10018 of 2011
| MR READ |
Applicant
And
| MS DECKERS |
Respondent
REASONS FOR JUDGMENT
These proceedings involved parenting, property and child support matters. Final parenting orders were entered into by consent between the parties on 25 July 2012. Those orders provided for the parties to have equal shared parental responsibility for the child [X] born [in] 2010 and for him to live with his mother and spend time and communicate with his father as set out therein. The issues remaining for determination by this Court are:
a)the wife’s application for a property adjustment in her favour of five percent of the overall pool of assets on the basis of her contributions in raising the parties’ child and on a consideration of s.75(2) of the Family Law Act 1975 (Cth) (‘the Act’) matters as they relate in particular to her care of the child. The husband seeks dismissal of the wife’s application; and
b)the wife’s application for departure from the current child support assessment, such that the amount payable by the husband pursuant to the child support formula be set with a fixing of his taxable income at $180,000 for a period up to 31 December 2015. The husband again seeks dismissal of this application.
Each of the parties rely upon those documents as set out in their outline of case document, the husband’s filed on 24 July 2012 and the wife’s filed on 25 July 2012. Statements of fact in these reasons are to be taken as finding of fact on the balance of probabilities.
History
The husband was born [in] 1977 and is now aged 34 years. He is gainfully employed as an [omitted]. The wife was born [in] 1980 and she is now aged 32 years. She is gainfully employed as a [omitted]. The parties married [in] 2009 and separated in June 2010. They had separated in that period for approximately four months, such that their period of cohabitation period was only approximately six to eight weeks. From the time of [X]’s birth he and the wife have lived with the wife’s parents in their home in [C]. The father’s time spent with [X] has been limited and the majority of his care is provided by the mother. The father has paid child support as assessed on his decreasing taxable income.
Asset pool
| Asset | Ownership | Value |
| Property C (‘[C] property’) | wife | $700,000 |
| Property K (‘[K] property’) | husband | $500,000 |
| Property N (‘[N] property’) | husband (as Trustee of the [Mr Read] Trust) | $1,200,000 |
| Nab account [1] | husband | $148,000 |
| BMW motor vehicle | husband | $8,000 |
| Nissan motor vehicle | husband | $5,000 says wife $3,000 says husband |
| Household contents | husband | $10,000 |
| Units held in the [F] Unit Trust | [Mr Read] Trust | $185,767 |
| Unit held in the [B] Unit Trust | [Mr Read] Trust | $350,000 says wife $300,000 says husband |
| Total assets | $3,206,767 says wife $3,054,767 says husband | |
| Liabilities | ||
| Mortgage Property C | wife | $377,000 |
| Mortgage Property K | husband | $349,000 |
| Mortgage Property N | husband | $1,041,000 |
| Vendor loan | husband | $150,000 |
| Total liabilities | $1,917,000 | |
| Total assets minus liabilities | $1,289,767 says wife $1,137,767 says husband | |
| Superannuation | ||
| Read Superannuation Fund | husband | $57,774 |
| National Australia Bank Group Superannuation Fund | wife | $42,292 |
| Total superannuation | $100,066 |
Note: The parties agree that for the purposes of these proceedings and in the context of these facts the small difference in the superannuation entitlements of the parties can be disregarded.
Contribution and s.75(2) matters
There is disagreement between the parties in relation to the value of the units held (an asset ultimately of the husband) in the [B] Unit Trust. Neither party has obtained a valuation. The husband claims his entitlement to be $300,000 and the wife urges the Court to accept it is $350,000 but with no evidentiary basis as to this sum. I accept the lower valuation, accepting the husband is more familiar with the likely value and accepting his evidence generally as to his interest in the [omitted] practice.
Neither party made any contribution to the assets of the other held at the time of marriage and separation. The husband’s ownership and/or control of assets in the pool is in a sum far greater than that of the wife. Since separation the wife has made a contribution exceeding that of the husband in her care of [X]. Notably, she was required to take 12 months maternity leave which was unpaid leave. Thereafter she returned to the workforce on a part-time basis and she shall continue to engage in part-time employment for a considerable period of time into the future. Her actual income and earning capacity is significantly less than that of the husband and nor does she have the capacity to particularly structure her income receipt in a tax effective, albeit proper way.
The husband’s personal taxable income in the financial years ended 30 June 2010 was $149,322; ended 30 June 2011 was $92,088; and ended 30 June 2012 was $68,391. The wife’s taxable income for the financial year ended 30 June 2012 was $54,000; and ended 30 June 2011 was $21,684. The husband’s current child support amount is $211 each week based on his personal taxable income. But the evidence is such that the Court finds the husband has available to him considerably more income out of which to meet any child support obligations. The husband is a partner in his [omitted] firm [B] Unit Trust. He is a [occupation omitted]. He receives a salary from [B] Pty Ltd of approximately $80,000 per annum together with a distribution from the [B] Unit Trust (via the [Mr Read] Trust) in each financial year. His financial statement filed with the Court in February 2012 discloses a receipt of income in total of $177,476 per annum. He also receives a superannuation amount.
The husband’s share of the profit from his [omitted] practice in the 2012 financial year, over and above his salary receipt, was $158,290. His salary receipt was approximately $80,000 and a further amount of $9,000 was paid into his superannuation fund. The husband’s evidence is that he did not receive his profit share in that same cash sum of $158,290 but rather an amount of some $10,000 to $15,000 less from which should then be deducted proper interest payments for the year. On the evidence that interest amount is approximately $40,000 in the last financial year and at most that sum in the intermediate years going foreword in the absence of the acquisition of further [Mr Read] assets. In the financial year ended 30 June 2011 his distribution from the family trust was $101,000 and in the financial year ended 30 June 2010 his distribution was $107,737. On each occasion such distribution was in addition to salary.
The husband in addition to his share of the units in the [B] Unit Trust which he values at $300,000, has an amount of $247,000 in monies owed to the [Mr Read] Trust, as set out in his financial statements. However, his evidence is that such loan does not exist and relates back to the sale of the business to him which has not been reconciled. I accept his evidence.
The wife sought, in addition to a departure order that, the husband contribute to one half of various expenses of the child as set out in her amended response filed 19 July 2012. The Court does not propose to add further to the liability of the husband in that manner. The quantum paid by him as assessed on the fixed income amount this Court determines provides the wife with sufficient capacity to meet all such payments in addition to usual living expenses for the child and regardless of the increase in time that will be spent between the husband and the child into the future years.
The application for departure will however be met with an order of this Court. The Court is satisfied as to the matters contained in s.117(1)(b)(i) and (ii) of the Child Support Assessment Act 1989 (Cth) (‘the Child Support Act’). In particular, the Court is satisfied that the ground set out in s.117(2)(c)(1a) of the Child Support Act in respect of the husband is made out.
It is just and equitable to make an order having regard in particular to s.117(4)(d) of the Child Support Act and the Court is satisfied of those matters as set out in s.117(7A) of the Child Support Act in that the husband has a capacity and does indeed exercise it to derive an income above that which is stated in his personal taxable income. The Court has regard to s.117(5) of the Child Support Act and notes the parties’ duty to maintain the child and their respective receipt of income. Pursuant to s.118(1)(c) of the Child Support Act, the Court shall make an order varying the husband’s child support income from its present sum to a sum of $180,000 for each of the current and following two financial years. The matter should then be revisited at that time, hopefully by agreement between the parties.
Should an order with respect to property settlement be made and if so what is a just and equitable order? The wife has in her favour matters as set out in s.75(2) of the Act which require a vey small adjustment in her favour. She has lost a year of income while on maternity leave. She is now working part-time. She has neither the income nor earning capacity of the husband. The sum of $56,888 (being 5 percent of the asset pool as calculated by the husband) is a sum the husband has the capacity to pay and is a sum that recognises sufficiently those matters required to be considered by the Court pursuant to s.75(2) of the Act. A payment in that sum from the husband to the wife is a just and equitable order. Accordingly, I propose to accede to the wife’s application for property settlement but give the husband a reasonable time to make such payment.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate:
Date: 13 August 2012
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