Seaford and Seaford
[2009] FMCAfam 902
•25 August 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SEAFORD & SEAFORD | [2009] FMCAfam 902 |
| FAMILY LAW – Property settlement – spouse maintenance application – add-backs – superannuation funds withdrawn in breach of undertaking by husband – costs application. |
| Family Law Act 1975, ss.72, 74, 75, 79, 117 |
| Hickey & Hickey (2003) FLC 93-141 Ferraro & Ferraro (1993) FLC 92-335 Clauson & Clauson (1995) FLC 92-595 Townsend & Townsend (1985) FLC 92-569 Oriolo and Oriolo [1985] FLC 91-653 Colgate & Palmolive Company v Cussons Pty Ltd (1993) FCR 225 |
| Applicant: | MS SEAFORD |
| Respondent: | MR SEAFORD |
| File Number: | HBC 1073 of 2007 |
| Judgment of: | Baker FM |
| Hearing dates: | 7 November 2008; 19 June & 6 August 2009 |
| Date of Last Submission: | 6 August 2009 |
| Delivered at: | Hobart |
| Delivered on: | 25 August 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Fitzgerald |
| Solicitors for the Applicant: | Fitzgerald & Browne |
| Counsel for the Respondent: | Mr Bishop |
| Solicitors for the Respondent: | Bishops |
ORDERS
That within 30 days the husband transfer to the wife all his right, title and interest in the property at Property BProperty B in Tasmania, comprised in certificate of title volume [omitted].
That within 30 days the husband transfer to the wife all his right, title and interest in:
(a)The MG motor vehicle registration number [C];
(b)The Suzuki motor vehicle registration number [F];
(c)The furniture and contents in schedule 1 of a joint letter from the parties dated 31 July 2009 and the furniture and contents in the Property B property;
(d)The Stacer 455 Sun Master aluminium runabout with contents, engine, trailer and associated equipment;
(e)The 96 shares in Woolworths Limited;
(f)The term deposit accounts with Island State Credit Union numbers [1] and [2];
(g)The wife’s interest in the estate of Ms S.
(h)The wife’s [R] superannuation entitlement.
(i)All bank accounts, investments, deposits, income tax refunds or other entitlements in the name of the wife.
That within 30 days the wife shall transfer to the husband all her right, title and interest in:
(a)The Toyota Hilux motor vehicle registration number [E];
(b)The Mini Cooper motor vehicle registration number [V];
(c)The furniture and contents in schedule 2 of a joint letter dated 31 July 2009 and the furniture and contents in the Property D property;
(d)All bank accounts, investments, deposits, income tax refunds or other entitlements in the name of the husband.
(e)The husband’s [R] superannuation entitlement
That each party be responsible for and indemnify the other in relation to all monies due and owing and in respect of any liability incurred in his or her name before or after the date of making these orders.
THAT:
(a)The Court allocate, in accordance with section 90 MT (4) of the Family Law Act 1975 a base amount of $137,498.00 to the wife out of the husband’s interest in the husband’s [S] fund (“the [S] fund”);
(b)Pursuant to section 90 MT (1)(a) of the Family Law Act 1975 whenever the Trustee of [S] (“the Trustee”) being the [S] board, makes a splittable payment out of the husband’s interest in that fund, the Trustee shall:-
(i)Pay to the wife or her administrators, executors, beneficiaries, heirs or assigns, the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(ii)Make a corresponding reduction in the entitlement the husband would have had in the Fund but for this Order.
(c)This Order has effect from the operative time and the operative time is the date of the making of this Order.
(d)The Trustee shall do all acts and things and sign all such documents as may be necessary so that the Trustee, in accordance with the obligations set out under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 can make payment to the wife in accordance with the order.
(e)There be liberty to apply to each party and the Trustee in relation to the implementation of the Order effecting the superannuation interest.
(f)That having been accorded procedural fairness in relation to the making of this order, this Order binds the Trustee.
Both parties do all acts and things and execute all deeds, documents, instruments and writing necessary to procure the sale of the property situated at Property DProperty D in Tasmania, comprised in certificate of title volume [omitted] by public auction and in particular:
(a)Place Property D with auctioneers agreed between the parties, or failing such agreement as nominated by the President of the Auctioneers and Real Estate Agents Council (“the auctioneers”) for the sale of Property D by public auction at the earliest possible date;
(b)Execute all documents requested by the auctioneers for the sale of Property D;
(c)The reserve price shall be $237,500.00 or as otherwise agreed in writing by the parties;
(d)Give instructions to a solicitor (mutually agreed upon the parties or if they are unable to agree a Solicitor nominated by the President of the Law Society of Tasmania) for acting in the sale of Property D including the preparation of a contract and other documents as are necessary for the sale of Property D;
(e)Co-operate in every way with the auctioneers in relation to the auction of the property including making a key available, allowing inspection of Property D at times requested by the auctioneers and ensuring that the property is in a neat and clean condition at the time of inspection by prospective purchasers;
(f)Attend at the auction sale of the property and negotiate with the highest bidder if the reserve price is not reached;
(g)Accept the advice of the auctioneers regarding whether to accept a price less than the reserve price;
(h)Execute the contract for sale.
Both parties do all acts and things necessary to procure that upon the sale of Property D, the proceeds of sale be divided as follows:
(i)In payment of legal costs of sale;
(ii)In payment of agent’s fees, commissions and auction expenses on the sale;
(iii)The balance to be divided to ensure that the wife receives such sum that will result in her receiving 60% of the asset and superannuation pool and the husband receive such sum as to result in him receiving 40% of the asset and superannuation pool.
(i) That each of the parties has the right to bid at the auction of Property D, and if either party is the successful bidder at auction, the transfer of the property pursuant to that contract is a transfer of the property to such party pursuant to this Order.
(ii)That if one party receives a transfer of Property D, that party shall pay to the other party such sum as to ensure that the assets and superannuation are divided on the basis of the determination of 60%-40% in the wife’s favour.
The wife’s application for spouse maintenance be and is hereby dismissed.
The husband pay the wife’s costs of the Application in a Case filed
31 July 2009 in the fixed sum of $500.00.
Liberty is given to the parties to apply in respect of the form of this order within 7 days of the date of this order.
IT IS NOTED that publication of this judgment under the pseudonym Seaford & Seaford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HOBART |
HBC 1073 of 2007
| MS SEAFORD |
Applicant
And
| MR SEAFORD |
Respondent
REASONS FOR JUDGMENT
Background
This is an Amended Application for property settlement of the wife. The matter was part heard in November 2008, when it settled. The terms of settlement included a superannuation splitting order. Because notice had not been given to the Trustee of [S] Superannuation Fund the matter was adjourned. Unfortunately, during the adjournment period other issues arose and the settlement fell through. The balance of the hearing was held in June 2009.
The wife was born in 1957. She is now 52 years old and is an administrative clerk.
The husband was born in 1952. He is now 57 years old and is employed as an [tradesman].
The parties were married in 1976 and separated on 16 September 2006. They lived under the one roof at Property B until 17 December 2006 when the husband moved to the parties’ Property D property.
There are three children of the marriage. [X] is 28 years of age, [Y] is 24 years of age and [Z] is 14 years of age. [X] and [Y] are self-supporting. [Z] is a student and lives with the wife.
Issues in dispute
The wife is seeking 70% of the total non-superannuation and superannuation asset pool. She is also seeking spouse maintenance of $250.00 per week for a period of 5 years.
The husband is seeking that the total non-superannuation and superannuation asset pool be divided 55% in favour of the wife and 45% in favour of the husband. He seeks that the wife’s application for spouse maintenance be dismissed.
The parties have agreed the assets and their values. Both parties agree that a global approach is appropriate and that the assets and the superannuation of the parties should be included in the one property pool. As the marriage is one of around thirty years, it is appropriate to adopt this approach.
Both parties want to retain the Property D property.
Evidence
The wife relied on the following:
·Amended Application filed 7 July 2008
·Affidavit of the Wife filed 13 October 2008.
·Financial Statement filed 13 October 2008.
·Affidavit of the Wife filed 5 June 2009.
·Financial Statement filed 5 June 2009.
·Affidavit of Dr Y filed 20 October 2008.
·Affidavit of Dr Y filed 15 June 2009.
The husband relied on the following:
·Response to an Application for Final Orders filed 2 November 2007.
·Financial Statement filed 2 November 2007.
·Affidavit of Husband filed 24 October 2008.
·Financial Statement filed 31 October 2008.
·The affidavit of husband filed 17 June 2009
The wife sought to rely on an affidavit of the parties’ son [Y]. It contained evidence which I ruled to be inadmissible and it was struck out. The second affidavit of the husband filed 17 June 2009 was therefore not relied upon.
Both parties relied on an Agreed Statement of Facts filed on 25 June 2009 in respect of where the husband’s gift of $35,000.00 from his mother was held. It was accepted by the wife that the husband removed $20,000.00 from the original Commonwealth Bank of Australia account and deposited it into another account which was established to enable him to earn a higher rate of interest. The sum of $20,000.00 less $5,000.00 legal fees was returned to the original account in October 2008.
Relevant Law
Section 79(2) of the Family Law Act 1975 requires that any order made under a s.79 application must be just and equitable. Section 79(4) provides the matters which are to be taken into account in considering what order should be made.
Section 79(4) involves a four step exercise namely:
(i)The identification of the property of the parties, their assets and financial resources.
(ii) The valuation of the contributions.
(iii) The valuation of the matters referred to in s.75(2).
(iv)A determination as to whether the result is just and equitable by considering the real impact in money terms of the orders.[1]
[1] Hickey & Hickey 2003 FLC 93-141 and Ferraro & Ferraro 1993 FLC 92-335
The Court is not required to undertake a mathematical approach when deciding what orders to make under s.79. The Court is required to consider the competing claims and relevant considerations broadly and fairly when making orders that are just and equitable.[2]
[2] Dickey A, Family Law (Law Book Co 5th Addition, 2007) at page 532
Section 74 of the Family Law Act 1975 empowers the Court to make a spouse maintenance order and s.72 provides the circumstance in which that power may exercised. Spouse maintenance may be ordered where the applicant is unable to support himself or herself and the respondent is reasonably able to do so. Section 74 provides that the Court may make such order as it considers proper for maintenance and by s.75(1) it is provided that in the exercise of the jurisdiction under s.74 “the court shall take into account only the matters referred to in subsection 2”.
The issue of spouse maintenance is to be determined after the four step process under s.79 has been completed because the s.79 process establishes the background against which s.74 must operate. The result of a s.79 order may be that the applicant for maintenance can no longer be described as being unable to support himself or herself adequately because he or she may have sufficient assets which will provide an adequate level of support. It also determines the other parties’ capacity to meet any order.[3]
[3] Clauson & Clauson (1995) FLC 92-595
Add backs
The wife contends that the superannuation withdrawal of $20,000.00 by the husband and the Subaru motor vehicle should be added back into the pool. The husband contends that because they are the same amounts they should be offset and not included in the pool.
The husband withdrew the superannuation funds in breach of an undertaking and had agreed to add back this sum into the pool. The wife sold her Subaru motor vehicle and also agreed to add the amount back into the pool. It is appropriate that they should be added back as agreed. In my view there has been a premature distribution of the matrimonial assets and they should be added back into the pool.[4]
[4] Townsend & Townsend (1985)FLC 92-569
The wife filed an Application in a Case on 31 July 2009 seeking an order that an additional sum of $10,000.00 be added back to the asset pool, being monies withdrawn by the husband from his [S] Retirement Service superannuation entitlement on 22 May 2008 and retained by him. In support of the application the wife filed an affidavit in which she indicated that on 30 July 2009 she asked [S] Retirement Service to provide copies of transactions in relation to the husband’s [S] Retirement Service fund from 1 July 2006. The wife ascertained that on 22 May 2008 there was a withdrawal from the fund of $10,000.00. The wife also sought an order for costs of the Application in a Case on an indemnity basis.
The husband agreed to an order that the additional sum of $10,000.00 be added back to the asset pool.
The assets
The assets are as follows:
·Property BProperty B $355,000.00
·Contents (Property B) $7,277.00
·Property DProperty D $237,500.00
·Contents (Property D) $1,679.00
·CBA account (W) $5,950.00
·Island State (W) $3,000.00
·Morris Cooper Mini (H) $15,000.00
·Connect Account (H) $1,130.00
·Toyota Hilux 1999 (H) $12,000.00
·CBA (H) $12,400.00
·Super withdrawal – Add-back (H) $20,000.00
·Super withdrawal – Add-back (H) $20,000.00
·Super withdrawal – Add-back (H) $10,000.00
·Subaru (W) $20,000.00
·[R] (W) $15,945.00
·[R] (H) $116,540.00
·[S] (H) $252,279.00
Total $1,105,700.00
The parties agreed a division of the chattels in accordance with a list in a joint letter dated 31 July 2009. Both parties are to receive chattels and furniture from the Property B and Property D properties. The wife is to have her grandmother’s and mother’s furniture and chattels returned to her. It was also agreed that the value of the Property B property contents should be attributed to the person who retains it and that if the Property D property is to be sold the value of the Property D contents are to be attributed to the husband.
The parties agreed that the inherited assets should be excluded from the pool but taken into account as resources under s.75(2). The inherited assets are as follows:
·Ring (W) $3,200.00
·Term deposit (W) $11,500.00
·Boat (W) $14,900.00
·WOW shares (W) $2,484.00
·MG (W) $2,800.00
·Mother’s estate (H) $88,014.00 (W’s value)
$80,000.00 (H’s value)
Total $122,898.00 (W)
$114,884.00 (H)
The Property D property
Both parties wish to retain the Property D property, which was the family’s beach house prior to separation. The husband has lived there since separation. The wife said the property is important to her because she has spent a lot of time there and many of her mother’s and grandmother’s things are there. She said that the Property D property is more convenient for her than Property B.
The husband said that he has made improvements to the property and he has used it as his home since separation.
The wife has indicated that she wishes to sell the Property B property in her own time.
I find that each of the parties have valid reasons to retain the Property D property and it is unjust for me to prefer one party over the other.
I intend to order the sale of the property.
Each party can bid at the auction of the property. If the property sells to either party or another buyer for more than its current value of $237,500.00, then the party who is not successful in purchasing it will receive a proportion of the additional sale proceeds.
Contributions
At the commencement of the marriage neither party had any assets of any value.
The wife worked on a full-time basis as an office assistant with the Department of [omitted]. The husband was working as a [tradesman] for [H].
The wife was the primary carer of the parties’ three children and commenced work part-time once the elder children were attending school from about 1990. From about 1995 she worked full-time for most of that year after the husband was made redundant. She returned to work part-time in about 1996.
From about 1996 the husband was self-employed as an [tradesman] for about three years and in about 1990 he obtained full-time employment with [H].
During the marriage the wife maintained the garden and the husband undertook [trade] work around the home.
During the marriage both parties accumulated superannuation. The husband was able to accumulate more superannuation because he worked full-time, whilst the wife was primarily responsible for the care of the children.
When the husband was made redundant in about 1995 he received a redundancy of around $300,000.00, which he deposited in a superannuation fund, [S], except for a non-preserved component of around $70,000.00.
The parties used the non-preserved monies to undertake extensions to the Property B property. The husband also purchased a Mitsubishi Pajero motor vehicle.
In mid 1997 the husband went back to [H] as a [tradesman]. His job was terminated and he received a redundancy of about $6,000.00. He then agreed to be employed by [A] as a [omitted] Officer and stayed in that position until about 2006.
The husband’s redundancy monies were withdrawn from his superannuation fund to purchase Property DProperty D in about 2002.
In 2006, the husband was approached by [H] to go back to his old job as a [omitted] operator at Strathgordon. He started on a trainee salary of $60,000.00.
In August 2008 the husband’s salary increased from $60,000.00 to $63,700.00, including overtime.
The husband ceased employment with [A] in November 2008 and commenced employment with [T] Pty Ltd until May 2009 when he commenced employment with [E] Pty Ltd. He currently earns $50,945.00 per annum.
At separation the husband moved to live in the Property D property, and the wife and [Z] remained living in the Property B property. The wife has cared for [Z] since separation.
After separation, over a period of two years, the husband made improvements to the Property D property at a cost of around $16,700.00 He also made financial contributions towards accounts such as house insurance and rates for both properties amounting to around $15,000.00. The husband has paid child support in respect of [Z] as assessed by the Child Support Agency. It is currently assessed in the sum of $790.26 per fortnight.
In November 2007 the wife was diagnosed with cancer. She did not work between December 2007 and February 2009. She received sick pay from the [omitted] Department of $292.26 per week until 9 July 2008 when the pay was reduced by half. She received about $146.00 sick pay per week until about 12 September 2008. During the holidays she did not receive sick pay because she was not entitled to a wage during the [omitted] holidays. On about 12 September 2008 her sick leave entitlement ended. From that date she supported herself with a government pension of about $316.60 per week and a family tax benefit of about $69.00 per week. Her total income was about $385.60 per week or $20,051.20 per annum.
Since separation the husband has continued to contribute to his superannuation. The wife has made an indirect contribution to his superannuation by caring for [Z].
Conclusion as to contributions
The position of both parties is that the contributions during the marriage until separation were equal.
Both parties made financial contributions. The wife was the primary carer of the children. She worked part-time once the older children were attending school. I accept that the parties’ contributions during the marriage were equal.
The husband’s position is that since separation his contributions have been superior and he should receive a 5% credit as a result. The wife’s position is that their contributions have been equal.
The husband has made improvements to the Property D property and made financial contributions, to which I attach weight.
The wife has cared for [Z] who does not spend much time with the husband to which I attach weight.
The wife’s income was minimal during 2008. The husband was in a better position to make the financial contributions as outlined.
Having regard to the parties’ contributions during the marriage and post separation, I assess the contributions in favour of the husband 52% and 48% in favour of the wife.
Section 75(2) factors
The wife is 52 years old. In November 2007 she was diagnosed with cancer. She had surgery in December 2007 and had chemotherapy and radiotherapy treatment in 2008.
Dr Y gave evidence about the wife’s health. In her affidavit filed 20 October 2008 she predicted that with the intensive type of chemotherapy the wife undertook, the risk of recurrence of cancer for her reduced from approximately 45% to 28%. The likelihood of her overall survival at 10 years might be improved from 65% to 76%. In her affidavit filed 16 June 2009 Dr Y said that the wife had been reviewed by Professor S, a breast surgeon, in December 2008 and Dr S, a radiation oncologist, in March 2009. They are both of the view that the wife is in complete remission.
The wife works as an administrative clerk at [C] earning around $231.00 per week gross. She receives government pensions totalling $307.50 per week, a total of $538.00 per week or $28,000.00 per annum.
The wife’s employment at [C] is temporary work and when [H] relocates she will be required to return there.
Dr Y has provided the wife with a medical certificate that she is not to return to [H] due to the infection rate in the [workplace] and risk of injury.
The wife is monitored by her treating doctors once every three months. She finds work tiring and does not know how long she will continue to work.
The husband is 57 years of age and plans to retire at 60 years of age. He is in good health. He earns an income of around $51,000.00. He has the capacity to earn around $64,000.00 per annum.
The wife has the care of [Z] who is 14 years of age and attends a private school, [F] School. [Z] does not spend any time with the husband. The wife also cares for her father and receives a carer’s pension.
The wife’s commitments are $1,136.00 per week including $674.00 for [Z]’s expenses. The husband has been assessed to pay the sum of $20,547.00 per annum or $395.00 per week child support. He said he pays the sum of $395.00 per week. The wife said he pays the estimated sum of $352.00 per week. The wife did not dispute the amount of the assessment of $20,547.00.
The husband has commitments of around $1,224.00 per week, which includes an assessed amount of $395.00 per week for child support for [Z].
The cost of [Z]’s private school education is around $17,000.00 per annum. The respondent husband is assessed to pay $20,504.00 per annum by way of child support for [Z].
The husband has [S] superannuation of $285,785.00 and [R] superannuation of $145,637.00. The wife has superannuation of $14,581.00.
The husband will receive an inheritance from his late mother’s estate when her house sells. He will receive between $80,000.00 to $88,000.00. The wife has received an inheritance from her late mother’s estate in 2003 in the sum of $34,772.00. The assets, including the boat, shares, two term deposits and MG motor vehicle derive from this inheritance.
Conclusion as to section 75(2) factors
It was submitted by the husband’s Counsel that the disparity of income between the parties and the wife’s responsibility for [Z]’s care are balanced by the husband’s longer life expectancy, greater need for superannuation and imminent retirement.
He has the capacity to continue working at least until 65 years of age. His intention to retire at 60 years of age is a life style choice.
The wife’s chance of survival for 10 years is 76%. The likelihood of her survival for this period of time is therefore high. The wife may survive for many years after this 10 year period. There is uncertainly as to her life expectancy. I am not persuaded that the husband should receive a credit funding him in his old age when the wife’s life expectancy is uncertain. She may also require funds for her old age.
There is a large disparity in the income of the parties. The wife’s future employment is not certain.
The wife has the main financial burden of [Z], although the child support assessment payable by the husband is around $20,000.00 per annum, which assists with the payment of [F] School fees.
The wife has received inherited property of her term deposit of $11,500.00, ring, boat, shares and an MG motor vehicle.
The husband is likely to receive an inheritance of between $80,000.00 to $88,000.00 shortly from his late mother’s estate. [Z] is a beneficiary and will receive his share of the estate when he attains the age of 18 years. The husband is the Trustee and Executor of the estate and has the discretion to apply, for the maintenance, education, advancement or benefit of [Z], the whole or any part of the capital income of that part of the estate to which he is entitled.
Having regard to the all the evidence I am of the view that the wife should receive a credit of 12% for s.75 (2) factors. This amounts in real terms to a credit of assets to a value of $132,684.00, which, given the size of the pool, is appropriate.
Is the result just and equitable?
To make an order under s.79, the Court must be satisfied in all the circumstances it is just and equitable to do so. I must stand back and look at the overall result to ensure that it is just and equitable.
I have found that the wife shall receive 60% of the asset and superannuation pool and the husband shall receive 40% of the pool. The wife will receive assets and superannuation to a value of $663,420.00 and the husband will receive assets and superannuation to a value of $442,280.00. Both parties will receive a mix of assets and superannuation.
The husband will have superannuation of over $230,000.00. He has the ability to accumulate more superannuation until retirement. He has withdrawn and used $50,000.00 of his superannuation since separation. The wife’s superannuation will not increase significantly, however she has superannuation of around $153,000.00.
There will need to be a superannuation split from the husband’s [S] fund in favour of the wife in the sum of $137,498.00.
The wife will retain the following assets:
·Property B $355,000.00
·Contents – Property B $7,277.00
·Commonwealth Bank account $5,950.00
·Island State account $3,000.00
·Estimated one half of net proceeds of Property D $118,750.00
·Subaru added back $20,000.00
·[R] Superannuation $15,945.00
·[S] Superannuation split $137,498.00
Total $663,420.00
The husband will retain the following assets:
·Morris Cooper $15,000.00
·Connect account $1,130.00
·Toyota Hilux $12,000.00
·Contents Property D property $1,679.00
·CBA account $12,400.00
·Superannuation withdrawal add-back $20,000.00
·Superannuation withdrawal add- back $20,000.00
·Superannuation withdrawal add-back $10,000.00
·Estimated one half of net proceeds of Property D $118,750.00
·[R] Superannuation $116,540.87
·[S] Superannuation $114,781.00
Total $442,281.00
The size of the asset pool will change according to the sale price of the Property D property, the amount of the agent’s fees and legal costs. Either party may be successful in its purchase. The cash payment to each party may need to be adjusted accordingly, to ensure that the division of the asset pool is 60%-40% in favour of the wife.
The husband will have cash of around $118,000.00 if he does not purchase the Property D property. He has had the use of $50,000.00 cash from the withdrawals of his superannuation. He will also receive his inheritance of between $80,000.00 to $88,000.00. He should have sufficient funds to purchase a modest house or apartment, if he is not able to retain the Property D property. In the event that the husband retains the Property D property, he may need to obtain a small mortgage in order to pay the wife her share of the property. He could access his non-preserved superannuation of around $50,000.00[5].
[5] [S] Fund statement annexure A wife’s affidavit filed 31 July 2009.
The wife indicated that she wishes to sell the Property B property in her own time. She will have a home to live in until she purchases another home and will have superannuation. The wife will also retain the inherited property of shares, term deposit, boat, ring and MG motor vehicle.
Both parties will receive a mix of property and superannuation.
It is my view that such a result is just and equitable.
Spouse maintenance application
The wife seeks an order for $250.00 per week pursuant to s.74 of the Family Law Act 1975.
The Application must be considered against the background of the determination I have made in respect of the property application.
As a result of the property Order I will make, the wife will be able to sell the matrimonial home in her own time. She is likely to have cash from the sale of the Property D property, unless she purchases it. If she purchases it and sells the Property B property she will have cash from the sale. I have already considered the relevant s.75(2) factors.
The wife’s ability to earn income is limited by her health. She is currently earning an income of $231.00 per week gross or around $12,000.00 per annum from her paid employment. She is also entitled to receive child support of $395.00 per week or $20,540.00 per annum. I am required to disregard her pension entitlements.
The wife has commitments of $1,136.00 per week which includes $674.00 for [Z]’s living and educational expenses.
As a result of the property orders I intend to make, the wife will have cash of around $120,000.00, if she does not purchase the Property D property. It can be expected that the wife would receive interest of at least $6,000.00 or $115.00 per week. This should result in an income for her of around $741.00 per week. This means that she will have a shortfall of around $395.00 per week. I am satisfied that she is unable to support herself adequately.
I must consider whether the husband is reasonably able to pay spouse maintenance.
As a result of my property determination, the husband may need to purchase another home, in the event that he does not retain the Property D property. He will also have around $230,000.00 of superannuation.
I have found that the husband earns an income of around $51,000.00 per annum or $980.00 per week. He has the capacity to earn around $64,000.00. If the husband were to earn $64,000.00, his weekly income would be $1,230.00. The husband’s commitments set out in his statement of financial circumstances were not challenged. I find his expenses are reasonable, save that I have deducted $115.00 for holidays, which the wife could not afford to have and $414.00 for education expenses which are already included in his fixed commitments. His commitments therefore are around $1,200.00 per week.
I am not satisfied that the husband is reasonably able to pay spouse maintenance to the wife in the sum of $250.00. The wife’s application for spouse maintenance will be dismissed.
The wife’s costs application of her Application in a Case filed 31 July 2009
The wife filed an Application in a Case as detailed in paragraph 21 of these Reasons.
The husband undertook not to withdraw any of the unpreserved components of his superannuation benefits until the conclusion of the proceedings or without the written consent of the wife[6].
[6] Letter from husband’s solicitors to the wife’s solicitors dated 11 August 2008
In breach of the husband’s undertaking he withdrew $20,000.00 from the [S] fund on 21 November 2008. The wife became aware of this when she obtained a statement from the [S] fund.
On 19 March 2009 the husband, through his solicitors, informed the wife that he had recently withdrawn $20,000.00 of his superannuation to pay ongoing bills.
The withdrawal by the husband of $10,000.00 in May 2008 from the [S] Fund was recently discovered by the wife and caused her to file an Application in a Case. The withdrawal was made after the wife’s Initiating Application was instituted. Notwithstanding that the husband knew that the withdrawal of superannuation by him was an issue, he did not disclose this withdrawal at the trial.
The husband consented to an order to add back the sum of $10,000.00 to the pool.
As to the wife’s costs application of the Application in a Case, s.117(1) of the Family Law Act 1975 empowers the Court to make a costs order if there are circumstances which justify the Court in so doing. In considering what order, if any, should be made, a Court is required to consider the matters set out in sub-section (2A). The relevant matters are:
Sub-paragraph (a)
The husband’s income is superior to that of the wife but the wife will be in a better asset position as a result of the judgment.
Sub-paragraph (b)
Neither party is in receipt of legal aid.
Sub-paragraph (c)
The conduct of the husband in failing to disclose the withdrawal of the sum of $10,000.00 has necessitated the application by the wife. In my view, it was not unreasonable for her to file an Application in a Case without first writing to the husband’s solicitors, given the wife’s view that the delivery of my Reasons was imminent. The Full Court in Oriolo and Oriolo[7] made it clear that there is an obligation on a party to proceedings in the Family Court of Australia to make a full and frank disclosure of all relevant financial circumstances. In my view the husband’s conduct justifies an order for costs against him.
[7] [1985] FLC 91-653
As to the application for indemnity costs, I am not satisfied that there are particular facts or circumstances which warrant a departure from the ordinary rules relating to costs[8]. Counsel for the wife indicated that the party-party costs in respect of the application amounted to $500.00. I shall make an order that the husband pay the wife’s costs of the Application in a Case filed 31 July 2009 in the sum of $500.00.
[8] Colgate & Palmolive Company v Cussons Pty Ltd (1993) FCR 225
I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Baker FM
Associate: Sita Buick
Date: 25 August 2009
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