S and S
[2001] FMCAfam 166
•8 October 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S & S | [2001] FMCA fam 166 |
| FAMILY LAW – Contact issues – Property settlement – Valuation of business – Accounting for sums used for business – s79(4) contributions and s75(2) factors. |
| Applicant: | C J S |
| Respondent: | M I S |
| File No: | ZB 3119 of 2000 |
| Delivered on: | 30 July 2001 |
| Delivered at: | Brisbane |
| Hearing Date: | 25 & 26 July 2001 |
| Judgment of: | Baumann FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Jarrett |
| Solicitors for the Applicant: | O’Reilly & Lillicrap Solicitors of Morningside |
| Counsel for the Respondent: | Mr Moore |
| Solicitors for the Respondent: | Berck & Associates Solicitors of Brisbane |
ORDERS
Children’s Matters
That the children reside with the mother.
That the father have contact with the children as follows:
(a)Until the first contact weekend in February 2002, each alternate weekend from after day care, preschool or school on a Friday, a the case may be, until 5.00 pm Sunday;
(b)Commencing the first contact weekend in February 2002 each alternate weekend from after day care, preschool or school on a Friday, as the case may be, until before day care, preschool or school on Monday and if Monday is a public holiday then on Tuesday;
(c)On the Thursday following weekend contact, from Thursday afternoon after day care, preschool or school, as the case may be, until the following Friday morning;
(d)One half of all school holidays with the FATHER to have the children for the first half of school holidays in September 2001 and for one week block contact periods in the Christmas holidays in 2001 and thereafter for one half of all school holidays with the MOTHER to have the children for the first half of all school holidays in the year 2002, and even years thereafter and the FATHER to have the children for the first half of all school holidays in the year 2003 and odd years thereafter;
(e)On Father’s Day where Father’s Day falls on a non-contact weekend, from 9.00 am to 5.00 pm;
(f)Where Mother’s Day falls on a contact weekend, the FATHER is to return the children to the MOTHER at 5.00 pm on the Saturday preceding Mother’s Day.
(g)By telephone in an unrestricted manner with the FATHER when they are residing with the MOTHER, and likewise, unrestricted telephone access with the MOTHER when they are on contact with the FATHER.
That where contact changeover is to occur on a school day, then the FATHER is responsible for the collection and return of the children from and to day care, preschool or school, as the case may be. If the M Road Daycare Centre is unable or unwilling to accommodate changeover then changeover will occur as provided in Order (4).
That where contact changeover occurs other than on a school day, then the FATHER shall collect and return the children to McDonald’s S Plaza.
That the MOTHER be permitted to travel to New Zealand with the children for holiday periods. The FATHER be permitted to travel to other parts of Australia with the children for holiday periods. Both will only take such holidays during their scheduled contact periods.
That the MOTHER is to provide the FATHER with written advice as to any medical attendances of the children, and any medication prescribed by their treating doctors, with the FATHER to be permitted to consult the said doctors as to the children’s medical condition from time to time.
That the MOTHER is to keep the FATHER informed of the children’s day to day lives and is to allow the FATHER to participate in decisions affecting the children’s day to day lives such as after school activities. In particular, the MOTHER is to authorise the children’s school and preschool to:
(a)Provide the FATHER with copies of the children’s school reports, newsletters and the like at his cost; and
(b)To advise the FATHER of activities and events in the children’s lives such as sporting competitions, hobby events and school functions.
IT IS NOTED:
That the FATHER will provide the children with a mobile telephone with all calls barred excepting the FATHER’s telephone number, when the children are with the MOTHER and that when the children are with the FATHER, the telephone will be adjusted so that the children will be able to call the MOTHER. The FATHER is to be responsible for those telephone calls. Should this arrangement prove impractical, then it is intended that each party make their telephone available to the children in order to call the other party.
That the wife shall receive within 14 days the balance of the proceeds of sale of the R property currently held by Messrs O'Reilly and Lillicrap, and shall retain as her property the proceeds of the interim property order made by this Court on 11 October;
The husband shall pay the wife the sum of $15,000 by 30 September 2001;
The wife shall relinquish any interest in the husband's business, S Maintenance and Upgrading and KM Proprietary Limited, and the husband's interest in the S H property and all other bank accounts, superannuation entitlements, motor vehicles, chattels, furniture and personalty in the possession or control of the husband at the date of this order;
The husband shall relinquish any interest in any bank accounts, superannuation entitlements, motor vehicles, chattels, furniture and personalty in the possession or control of the wife at the date of this order.
That by way of spouse maintenance, the husband shall pay to the wife the lump sum of $11,000 by way of spousal maintenance by
30 September 2001.
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE
ZB 3119 of 2001
C J S
Applicant
And
M I S
Respondent
REASONS FOR JUDGMENT
Introduction
The applications heard by me on 25 and 26 July related to a dispute between M I S, (“the husband”), and C J S, (“the wife”). The proceedings involved issues of parenting orders, property settlement and spouse maintenance arising from an application filed by the wife in 1999 in the Family Court of Australia and subsequently transferred for final determination to this Court.
Issues as to the contact regime
The issues in respect of the parenting arrangements for the parties' children, K M S (born 5 June 1996), now aged 5 years; and E J S (born 28 September 1998), now aged nearly 3 years, was clearly fuelled by the high level of emotion and conflict generated by the property proceedings, for reasons which I will later touch on.
Nonetheless, and thankfully as a result of an insightful reaction by the husband to the evidence and the two reports of V J, I was informed by the husband's counsel at the end of the first day of the trial the husband no longer sought a change of residence. The issue then became the duration and frequency of contact between the husband and his sons. Many specific issues orders, relating to contact changeover, sharing of school and medical information and the like were agreed between the parties.
Again, I should note that at the time of final submissions, the wife no longer persisted with the requirement that the children continue to attend Dr O as their general practitioner. The husband had lost confidence in Dr O, whilst the wife was happy to continue with his care of the children. It posed a clear area of potential continuing conflict between the parties. The wife agreed to provide the husband with the names of three alternate GPs in her area from whom the husband would be able to choose a GP. The mother's concession, in circumstances where she was concerned about the husband seeking to control her, was child focused and represents, I believe, another small step in the process of reducing the conflict in the lives of the children. Ultimately, the issue for the determination was:
a)The duration of alternate week-end contact; and
b)Whether a mid-week contact visit should be permitted.
Background
The history of the relationship and arrangements for the children was not seriously in issue:
a)The couple commenced living together in September 1993 and were married in May 1995. K was born in 1996 and E was born in 1998;
b)The parties separated in May 1999. The children have continued to reside with the wife, and from approximately July 1999, contact to the husband occurred two out of three week-ends, and every Wednesday afternoon;
c)In March 2000 some difficulties with contact arose and the husband brought proceedings in the Family Court where an order was ultimately made on 9 June 2000 that the husband have contact each Wednesday between 12 o'clock and 5 pm, and each alternate week-end between 5 pm Saturday and 5 pm Sunday, with changeovers to occur at the L W Contact Centre. This order reduced the level of contact that the parties had previously agreed upon, and seemed to rely heavily upon the recommendations of Ms J in her report of 28 May 2000.
Evidence
The husband says the conduct of the wife over the last 12 months is an attempt to alienate the children. He also expressed concerns that the wife is having a relationship with his father, and the long-term effect such a relationship could have on the children. He expressed in his affidavit the basis of his concerns about medical issues involving the children. This has been addressed, as earlier indicated. The husband presented in the witness box as child-focused and insightful into the benefits of developing ongoing relationships with extended family members, including his father. He clearly wants to maintain a strong male/fathering role in the development of his children, and fears that a restriction of contact will make that more difficult. He says the boys enjoy their contact with him, and want to stay longer. He says the children react positively with his new partner, C H.
Also the level of contact he has enables the children to maintain a relationship with his mother, something which is less likely to occur at the behest of the wife. He acknowledges that the litigation and property issues have caused the conflict between the parties to escalate, and he acknowledges his contribution to that conflict. He is optimistic that once these matters are at an end, he and the wife over time can develop a level of non-conflictual communication which will stabilise the children's living environment.
The wife presented as a caring and child-focused parent, clearly troubled by the level of conflict and its effect on the children. She stated, I believe genuinely, that she understood the importance of the husband's continuing role in the children's lives, and would promote that role. She clearly expressed her anger and frustration that her consistent denial of any relationship (of an intimate personal nature) with her father-in-law had not been accepted by the husband. She says she commenced living with the father-in-law in a large home in May 1999. She does some domestic chores like ironing, cleaning and cooking for her father-in-law in lieu of payment of rent. She says she will continue to live there "as long as it is workable". She denies any inappropriate use of medical advice, saying that she has had confidence in the children's medical practitioners. There is no evidence to suggest that the children have any significant health concerns. Whilst she accepted that the termination of a mid-week contact visit would increase the length of time between the children's visits to their father, she says the children would cope.
She agrees that the children enjoy contact, and that they did enjoy the contact for the four-day block visit recently. She adopts the recommendations of Ms J that a mid-week visit would be "disruptive". She similarly hopes for a better, less conflictual level of communication with the husband when these proceedings are over. She accepts her contribution to the current conflict, and although, like the husband, she has no strategies in mind for improving it, she showed an understanding of the effect of long-term conflict upon the children's development.
Ms V J had prepared two reports, one in May 2000, and an updated report in June 2001. When one considers the history and intensity of the litigation during this period, it is not surprising that Ms J saw no abatement of the level of conflict between the parties during the span of the two reports. She describes the children as "having engaging personalities, full of smiles and curiosity". She formed a view that they were clearly attached to their mother, and had a strong, close and loving relationship with their father. Bearing in mind that the report writer was being asked to consider the effect of a change of residence in which she recommended a continuance of the current residence with the wife, the report doesn't detail the basis of her recommendation to modify contact to week-end times only.
During cross-examination, she was able to identify the basis of her concern that the high level of persistent conflict would, in her view, mean that mid-week contact would prove disruptive. In particular, she was anxious to "shield the children from the conflict" and she felt that a further mid-week contact period would not assist. She was understandably pessimistic about the likely reduction in conflict.
Conclusions
K will commence school next year, whilst E is at a different stage of development. The husband does not want to have different contact arrangements for each child, and I accept that the younger E will benefit from more regular (if not longer) contact visits to his father than the mother proposes. Having had the benefit of seeing both parties in the witness-box, I am a little more optimistic than Ms J that they have the potential for improvement in their communication. The intensity of these proceedings has diverted the energies of the parties away from more productive pursuits and created such a level of mistrust and suspicion that the fact that the children do not present with major emotional problems at this time is remarkable. It means, I suspect, that when the children are with each of their parents they are given the full attention and care which children crave, and which promotes stability and enjoyment post separation.
Because of the view I have taken about the capacity of these parents to give the interests of their sons the highest priority, I am satisfied that a fortnightly mid-week contact visit will be in the children's best interests. Until K begins school, I believe contact for both boys should occur from after pre-school Friday until 5 pm Sunday on alternate weeks. From the first contact week in February 2002, after K has commenced school, contact shall increase to after school Friday to before school Monday, and if Monday is a public holiday or pupil-free day, then before school Tuesday.
I propose to make a holiday contact order as proposed by the husband, so that for the Christmas school holidays in 2001/2002, the father's contact is to be two weeks, each of one week duration, at a time to be agreed upon between the parties. As I indicated, I do propose to order as submitted by the father that the children do have alternate week contact on a Thursday night from after school or pre-school to the beginning of school or pre-school the following day.
Property issues
After appropriate negotiations and agreements, the factors in issue for my determination were:
a)Current valuation of the husband's business known as S Maintenance and Upgrading (which for simplicity incorporates the service entity K Pty Ltd);
b)Increase in the home loan mortgage between the date of separation and the date of the sale of the property;
c)The receipt and use of a payment of approximately $70,000 in respect of the husband's previous interest in the family business;
d)Existence of a loan to the husband by his mother and how it should be treated;
e)The weighing of the section 79(4) contributions;
f)The weight and any adjustment to be given to the relevant section 75(2) factors;
g)The wife's claim for spouse maintenance.
Background
The husband is aged 32 years and the wife will be 31 years in September. The parties separated on 1 November 1998 after cohabitating since September 1993 and marrying in May 1995. There are two children of the marriage, as already noted. The husband had joined the family business in 1995. The family business consisted of a company, S Pty Ltd and a partnership known as S Builders. The business was engaged in the building industry. Essentially the husband, his father I, his sister H G, each had a third interest in the family business. The husband, subsequent to separation, left the family business in February 1999 and it was agreed that he could undertake contracts for building work in the Gold Coast area previously held by the family business.
The Husband also received or had an entitlement to receive an amount of up to $70,000 which he used, (and the husband described as "seeding capital") to provide him with funds to pursue the Gold Coast area work until his cash flow improved. The characterisation of these funds was disputed. The husband and wife had control of an account described as S Pty Ltd – Gold Coast Management Account (“The Management Account”), which was opened in March 1999 with the Bank of Queensland, to facilitate the smooth takeover of the Gold Coast work. This account was one of the accounts used in the early stages of the conduct of the husband's business. The parties also conducted:
a)A home loan account; and
b)A come and go cheque account.
The transactions on these accounts were of significant debate and interest during the trial.
The property transactions of the parties during this relatively short relationship were less complex, comprising:
a)The purchase by the husband of a house at 410 W Road, A R in 1994 with the assistance of a gift from his parents of $10,000, ultimately sold to assist in the purchase of the R home;
b)The purchase of the former matrimonial home at 23 G Street, R in 1995;
c)The sale of the former matrimonial home in October 2000, resulting in net proceeds of sale of $40,385;
d)Post separation, the husband purchased a property at 51 W Street, S H, with, he claims, the benefit of a loan of $35,000 from his mother, I.
Principles to be applied
The approach to the determination of an application pursuant to section 79 of the Act is well established by authority, and I refer to a long line of authority (Lee Steer (1985) FLC 91-626; Ferraro (1993) FLC 92-335 and Clauson (1995) FLC 92-595) which requires the adoption of a three-step process: firstly, to determine the extent and value of the property, liabilities and financial resources of the parties at the time of the trial; secondly, to consider what contributions have been made by the parties within section 79(4)(a), (b) and (c); thirdly, to consider what is identified as the other factors, being the matters in section 79(4)(d), (e), (f) and (g), including by reference to 79(4)(e) the matters in section 75(2). Finally, 79(2) of the Act requires the Court to be satisfied that in all circumstances it is just and equitable to make an order.
Valuation of the business
Both parties had retained an expert forensic accountant to examine the financial records of the husband's business and to value it: Mr Maynes, for the wife, and Mr MacDonald, for the husband. Both valuers adopted the dual method approach to the valuation of the husband's business. This method was described as being appropriate – "where an entity holds surplus assets or has certain liabilities which are not essential or necessary for the core business operation of that entity, a combination of the earnings method and the net asset backing method may be adopted." (See paragraph 5.7 of the Maynes report.) It was conceded by Counsel for the husband that the ultimate capitalisation rate is less significant when adopting this approach. The range of capitalisation rates adopted by the valuers was 42.5 per cent (MacDonald) and 3.25 times as the EBIT multiple (Maynes).
It became apparent that the only significant factor (likely to affect the valuation) on which both valuers could not agree was the future maintainable earnings. The reason for that difference arose from the adoption by Mr MacDonald of the husband's assertion that for the year ended 30 June 2000, it was proper to bring into account additional creditors of $30,686. This had an effect on the calculation of future maintainable earnings. Mr Maynes said that he was unaware of these additional creditors at the time of his report. It was his belief that the list of creditors "was not available". Certainly my order of 19 March 2001 required the husband to produce cheque butts from his business from 17 April 2000. Attention was also directed to the list of creditors (which make the total of $43,607.87) included as a liability in the balance sheet, which was referred to in that order. This is a different list of creditors than the creditors set out in schedule 4 of the MacDonald report.
No satisfactory answer was provided for the lack or late delivery of copies of the invoices to the wife. I am aware that the level of mistrust between the parties significantly fuelled by the competing business interests of the husband and those of his father and sister, who are now aligned with the wife, led to a number of interlocutory applications relating to discovery. Nonetheless, when the wife's counsel was provided on the morning of the second day of the trial with the invoices, he chose to make no further application to again cross-examine the husband on his assertion.
I accept the evidence of the husband that the creditors did exist and that the additional creditors should have been brought into account in the year ended 30 June 2000. I understand the additional reservations raised by Mr Maynes about the unusual conduct of Q-B to pay invoices in advance. He did concede that the introduction of the GST was an event which did cause different business practices at that time to be adopted. In all these circumstances, I adopt a valuation of the business of $87,500. Mr Jarrett agreed that with this valuation it is no longer necessary to bring into account the current business bank account, creditors, debtors and contingent taxation liabilities identified in the husband's case outline.
Transactions on the home loan account and “come and go” account
Again, I must say I felt the evidence available to me on this issue was deficient and lacking in particularity, especially considering:
a)The relative importance of this issue; and
b)My order for production of documents made 19 March 2001.
The wife relies upon the report of Mr Maynes in this regard.
Mr Maynes, at paragraph 8 of his report, says essentially that:a)At separation the home loan account had a debit balance of $17,624, whereas at the time of the sale of the home it stood at $107,440, a difference of $89,816. There was a small balance in the “come and go” account at separation;
b)From 1 March 1999 the “come and go” account became one of the husband's business accounts and in April 1999 the home loan account and “come and go” account were essentially amalgamated;
c)The husband used the account to pay business expenses and to transfer funds to and from the Gold Coast management account. The wife says although she had access to the account, including use by ATM card, she only used it for minor expenses;
d)At paragraph 8.13 of his report and schedule 6 to it, Mr Maynes gives examples of business cheques that the husband drew on the “come and go” account during 1999. Those payments include a payment to the Australian Taxation Office of $33,234.81 on 1 April 1999.
The evidence before me, which I accept, was that this payment to the Australian Taxation Office represented tax on a dividend of over $50,000 received in July 1998 or thereafter which had been deposited to the home loan account. Mr Maynes was not aware of that transaction. Mr Maynes concludes at paragraph 8.19 of his report that:
“The increase in the overdraft balance over the period to
20 October 2000 was, as a consequence of (a) the net of transfers of funds between the various accounts; (b) business expenses; (c) bank interest and bank charges.”
He also states that, in his opinion:
“No attempt was made to bring the account back within its limit of $100,000 or to reimburse the account for the husband's business expenses which had been drawn on the account previously.”
It is common ground that the wife withdrew $10,000 on 4 November 1999 which she used for legal expenses. This amount must be added back into the pool of assets.
The husband's explanation for the withdrawals is set out at paragraphs 203 to 213 of his affidavit and, in particular, annexure W. The particulars set out in annexure W were not put to Mr Maynes by Counsel for the wife to see how he might characterise the payments in view of his general opinion expressed in paragraph 8.19. It is left to me, as a result, to reconcile the two positions. In this regard I accept the summary set out in annexure W and as otherwise noted, namely:
a)I find the seed capital was refunded in full.
b)I accept that the husband deposited his net wages of $610.30 a week for 28 weeks, total $17,088.40, which met some business expenses.
c)I accept the tax payment of $33,234 was a joint expense being offset against the dividend received in August and September 1998 totalling $55,000.
d)I find the joint expenses paid from the account to be approximately:
Housing loan as at 1 November 1998............................. $17,600
Tax paid................................................................................ 33,200
Child care charges................................................................. 2,500
Groceries................................................................................ 1,400
G Road rates, home loan and security ............................... 1,900
Telephone............................................................................... 2,450
Internet........................................................................................ 450
Medicare and ambulance......................................................... 410
Medical expenses.................................................................. 1,100
Joint mediation....................................................................... 2,300
Miscellaneous personal expenses..................................... 14,400
TOTAL............... $77,710
It was open to the wife to challenge these expenses. She filed an affidavit in reply on 23 July 2001, but chose not to refer to paragraphs 203 to 213 of the husband's affidavit or annexure W.
e)I find net personal expenses of the wife to be $10,875 as follows, those expenses having been paid from the account:
New Zealand trip.................................................................. $1,900
The electricity for G.................................................................... 435
The Feroza expenses............................................................... 876
Legal expenses.................................................................... 10,006
TOTAL............... $13,217
Less tax refund............................................... 2,342
BALANCE........ $10,875
Say.................... $10,900
f)I find the net personal expenses of the husband paid from the account to be $10,381, as follows:
PPS expenses..................................................................... $5,237
Legal expenses......................................................................... 774
Accountant's fees...................................................................... 550
Rent – G Street....................................................................... 2,790
Net karate expenses.............................................................. 1,650
TOTAL............... $11,001
Less refund of bond.......................................... 620
BALANCE........ $10,379
Say.................... $10,400
g)As joint expenses of $77,710; wife's expenses of $10,875, the husband's expenses of $10,380 a total of $98,965, I believe it is reasonable to attribute the balance of the loan paid out at settlement of $107,440 (namely approximately $8,500), which represents bank charges and interest, as a joint expense.
It follows from this analysis that I accept the husband's explanation for the use of the seeding capital as set out in his affidavit and confirmed by Ms G. The Annexure A to his Affidavit, confirms the arrangement and the changed character of the payment. The benefit received by the husband ultimately represents the majority of the net core assets of his new business.
Loan to father from I S
I had the benefit of seeing the husband's mother give evidence. She was cross-examined on a prior inconsistent statement represented by a form 17 filed in proceedings between Mr and Mrs S Senior. She said it was an oversight on her part not to include the loan to her son as an asset. She produced to the Court a bank statement for her account showing a withdrawal of $20,000 on 6 September 2000. Mrs S Senior said she retained $5,000 cash and gave the rest to her son as a loan. She says the balance of $20,000 came from the proceeds of a loan from a friend, J G. She says that the funds were initially a loan to M as, "He was having trouble in the cash flow of his business," and was happy for that money, "to be used to buy the house as he needs somewhere to run his business."
Although the nature of the conflict at all levels of the S family is such that I have some reservations about the authenticity of these transactions, no other explanation as to the source of the funds for the husband's acquisition was offered, and as a result, I find, on the balance of probabilities, that the husband's explanation should be accepted. The balance of the equity in the now home shall be included at $5,000.
Pool of assets
As a result of my findings, together with those concessions agreed by the parties, I estimate the pool of assets as follows:
Money from G Street.............................................................. $40,384
The Feroza proceeds............................................................. $10,000
The husband's equity in the S house...................................... $5,000
The husband's MG motor vehicle............................................ $5,000
The husband's business........................................................ $87,500
TOTAL...................... $147,884
Monies to be added back:
The husband, say,................................................................... $10,400
The wife, say,............. $10,900
Sub-total..................... $21,300
TOTAL...................... $169,184
The wife received a partial property settlement by consent reflected in my order of 11 October 2000. I find the parties' superannuation to be minimal, the husband having a gross entitlement of approximately $3,945 and the wife having a gross entitlement of approximately $1,172.
Contributions under section 79(4)
As one would expect in a matter as emotionally charged as this one, both parties found it difficult to make any concession for the benefit of the other. This was a relatively short relationship and I have extensive affidavit material from which I find the contributions by the parties under 79(4)(a), (b) and (c) to be as follows:
a)The husband:
i)At cohabitation, a motor vehicle and some personal assets to a value of approximately $18,000. He also had some interest in the family business to which I am unable to attribute a value;
ii)The benefit of some gifts from his family members, being a deposit on a house in 1994 of $10,000; deposit on the Feroza of $10,000; 1994 inheritance from the grandmother, $10,000, and the MG motor vehicle, $8,000;
iii)Earnings, drawings and dividends from the family business until he left the partnership in February 1999;
iv)Rent-free accommodation in the R property from occupation until its purchase from his parents;
v)Significant post-separation contributions to the establishment of the business, S Maintenance and Upgrading, including use of the seed capital;
vi)Non-financial contributions to the maintenance and improvement of the A R and R properties;
vii)Less significant contribution than the wife, as a homemaker and carer for the children.
b)The wife:
i)At cohabitation, a motor vehicle, tools, furniture and household affects totalling approximately $3,200;
ii)Her earnings as a motor vehicle parts courier, and thereafter assisting the husband in the family business, including some less intensive site work;
iii)After the birth of K she returned to assist the husband in the business and also assisted with clerical work for the Karate Club. She also allowed the full matrimonial home to secure business borrowings, even post separation;
iv)A more significant and, in fact, major contribution as mother, principal carer for the children and homemaker.
In a relatively short marriage, the initial contributions and the direct financial contributions during the relationship attract more weight than might be the case in a longer relationship. Considering all factors, I estimate the fair distribution of assets at separation to be 75 per cent to the husband and 25 per cent to the wife.
Section 75(2) factors
The husband is 32 years of age and has control of a business which generates net annual income of about $95,000. He is healthy and he is able to develop the business with his reputation and the qualifications he holds. Whilst he is paying child support now, the wife alleges he is in arrears of child support. The contact order I have made is unlikely to raise any significant impediment to his business development. His financial resources are slightly greater than those of the wife.
The wife is 30 years of age and has no formal qualifications, although she has some skills enhanced by partly completing an apprenticeship as a motor mechanic in New Zealand and through her experience in the family business and support given to the husband's business. I accept that the wife has a slight physical impairment which would restrict her capacity to take up any heavy physical employment. She wishes to preserve her prime role as a mother for at least another three years, when E would go to school. I give due recognition to this desire. The wife says she would like to retrain (she started a course at the Open Learning Institute in 1999), but anticipates even with this litigation at an end, she would need some time to do so. I find her position in this regard reasonable. The matters set out above persuade me that the factors under section 75(2) heavily favour the wife. The husband's counsel says an adjustment between 15 to 20 per cent is appropriate. I think an adjustment of 20 per cent is appropriate.
The effect of the order, which I find is just and equitable, is that the wife shall receive 45 per cent of the pool of assets, or an amount of $76,050, to be made up as follows:
Proceeds of sale of home..................................................... $40,384
The Feroza proceeds............................................................. $10,000
The wife's personal expenses
paid from the “come and go” account.................................. $10,900SUB-TOTAL....... $61,284
Plus payment by the husband.......... $15,000
TOTAL................. $76,284
Spouse maintenance
The wife seeks spouse maintenance. Mr Jarrett for the husband concedes the wife has met the threshold finding under Section 72. If he had not so conceded I would have so found. As a result, the further steps identified in Bevan (1995) FLC 92-600 are to be taken into consideration. The wife seeks a sum of $200 per week for a period of three years. Little attention in cross-examination was given to the needs of the wife set out in her financial statement filed 18 July 2001.
That statement suggests the wife's total expenses amount to $250 per week. She, of course, does not have rent to pay at the moment, although through a combination of some savings on her expenses, which I regard as slightly high, and the fact that I would expect, even with her duties as a mother, that she could find some part-time employment, I would estimate her weekly needs at approximate $75. I believe it is reasonable for that sum to be paid as a lump sum, calculated for the period of three years on a discounted basis. I have taken into account that the wife may have a small amount available from the property settlement after her legal expenses have been paid, but the amount is unlikely to generate any significant income.
I am satisfied that the husband has the capacity to pay this sum. An amount of $75 per week for three years, capitalised on 3% tables, amounts to $11,000. I'll hear submissions from the husband's representative as to how long he thinks the husband needs to pay to the wife the cash payments which I have ordered.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Baumann FM
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