SEXTON & SEXTON

[2016] FamCA 355

FAMILY COURT OF AUSTRALIA

SEXTON & SEXTON [2016] FamCA 355

FAMILY LAW – PROPERTY SETTLEMENT – Superannuation – Where the parties were in agreement that a splitting order should be made, whereby the wife would receive 100 per cent of the husband’s interest – Where the trustee of the superannuation fund was afforded procedural fairness – Where the Court finds that it is just and equitable for such an order to be made.

FAMILY LAW – ADULT CHILD MAINTENANCE – Where the wife sought adult child maintenance – Where the adult child is autistic and entirely dependent on the wife – Where the Court finds the husband has the capacity to pay maintenance – Orders made for the husband to pay adult child maintenance at the termination of the current child support assessment.

FAMILY LAW – SPOUSAL MAINTENANCE – Where the wife sought spousal maintenance – Where the Court finds the wife is unable to support herself for the purposes of section 72 of the Family Law Act 1975 (Cth) – Where the Court finds the husband does not have the capacity to pay maintenance after meeting an order for adult child maintenance – Application dismissed.

Family Law Act 1975 (Cth) ss 66J, 66L, 66K, 72

Family Law (Superannuation) Regulations 2001 (Cth)

APPLICANT: Ms Sexton

RESPONDENT: Mr Sexton

FILE NUMBER: MLC 708 of 2015

DATE DELIVERED: 16 May 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Melbourne

JUDGMENT OF: Stevenson J

HEARING DATE: 5 May 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Peter Szabo Family Law

FOR THE RESPONDENT: Mr Sexton appeared on his own behalf

Orders

1. Pursuant to section 90MT(1)(b) of the Family Law Act1975 (Cth), whenever a splittable payment becomes payable in respect of the interest held by the husband in B Super (“the Fund”), the Trustee shall pay to the wife or her legal personal representative the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, being 100 per cent of the interest of the husband in the Fund, as at the operative time and there be a corresponding reduction in the entitlement the husband would have had in the Fund but for these Orders.

2. This Order has effect from the operative time, which shall be four (4) business days after service of a sealed copy of this Order upon the Trustee.

3. Having been accorded procedural fairness in the making of this Order, this Order binds the Trustee of the Fund.

(4.1)The husband will pay maintenance for the adult son of the parties, namely Mr C born … 1998, in the sum of $500 per week, with such payments to commence on the termination of the current Child Support Assessment.

(4.2)The husband will make the first such payment to the wife within seven (7) days of the expiry of the current Child Support Assessment, with all such payments to be made into a bank account nominated in writing by the wife.

1. Otherwise, all outstanding Applications and Responses are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sexton & Sexton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: MLC 708 of 2015

Ms Sexton

Applicant

And

Mr Sexton

Respondent

REASONS FOR JUDGMENT

The proceedings

1. On 3 February 2015 the wife, Ms Sexton, filed an Initiating Application by which she sought following Orders:

   1.That the husband pay to the wife by way of property settlement such amount as the court deems appropriate.

   2.That the wife be excused from particularising her claim pending financial disclosure by the husband.

2. On 8 September 2015 the wife filed an Amended Initiating Application by which she sought the following Orders:

   1.That there be a superannuation splitting order whereby 100 per cent of the husband’s entitlements in the [B Super] be allocated to a superannuation fund nominated by the wife.

   2.That the husband pay spousal maintenance to the wife in the sum of $400 per week.

   3.That the husband pay adult child maintenance for [Mr C] born … 1998 in the sum of $700 per week commencing on his ceasing to attend secondary school.

   4.Costs.

3. The husband, Mr Sexton, filed a Response only on 22 March 2016.  This Response read as follows:

   4a. State the paragraph numbers of the final orders sought in the Initiating Application (at Part A) with which you agree.

   1. & 4.

   4b. State precisely and briefly any other final orders sought by the respondent.

   1. My income as a [salesman] fluctuates wildly and there can be many months waiting for commissions to be paid after [sales].

   I currently receive a (sic) Annual Retainer of $55,000 paid per calendar month which is deducted from my Commissions.

   I am not expecting a commission payment from m[y] current employer, [D Pty Ltd]., until at least early 2017 to mid 2017.

   2. That there be an Order for no spousal maintenance.

   3. That there be an Order for Adult Maintenance of $700 per calendar month commencing in the month after any Child Support Assessment ceases to be in force.

   The only additional document which the husband filed at any stage in the proceedings was a Financial Statement of 20 October 2015.

4. The proceedings were listed before a Registrar on 30 June 2015, when there was no appearance of or on behalf of the husband.  The Registrar directed that the husband file a Response by 20 July 2015 and the proceedings were adjourned to 22 July 2015.  The Registrar directed further “should the respondent fail to comply... the applicant shall on 22 July 2015 be at liberty to apply to seek leave to proceed with her application… on an undefended basis.”

5. The husband appeared in person on 22 July 2015 and the proceedings were adjourned to the Judicial Duty List on 6 October 2015 for undefended hearing.  On 22 July 2015 a Registrar made directions for the filing of affidavits by both parties.  On 6 October 2015 the proceedings were adjourned to a date to be fixed for case management directions.

6. The following orders were made on 6 October 2015:

   BY CONSENT IT IS ORDERED:

   1.That pursuant to section 90MT(1)(b) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the interest held by the husband in [B Super] (“Fund”), the Trustee shall pay to the wife or her legal personal representative the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, being 100 per cent of the interest of the husband in the Fund, as at the operative time and there be a corresponding reduction in the entitlement the Husband would have had in the Fund but for these Orders.

   2.        This Order has effect from the operative time.

   3.The operative time for this Order is 4 business days after service of a sealed copy of this Order upon the Trustee.

   4.That, having been accorded procedural fairness in the making of this Order, this Order binds the Trustee of the Fund.

   5.Liberty to either party or the Trustee of the Fund to apply to implement this Order.

   IT IS FURTHER ORDERED THAT:

   6.By not later than 21 October 2015 the husband file and serve any response to the wife’s amended application initiating proceedings filed 8 September 2015.

   7.Each party file and serve an undertaking as to disclosure by 1 November 2015.

   8.Until further order, each party is at liberty to cause subpoena(s) to issue returnable in any subpoena list until the final hearing or on any date appointed by Registrar Moser for the return of subpoena or on any date notified to the parties by my Chambers for the return of subpoena(s).

   9.By not later than 1 November 2015 each party file and serve an updated financial statement.

   10.This matter be referred to Registrar Moser to be allocated a final hearing date with the possibility of a conciliation conference the day prior thereto.

   IT IS DIRECTED:

   11.That the outline of case document incorporating the orders sought by the wife be marked Exhibit “A” and remain on the Court file.

1. The proceedings came before a Registrar on 24 February 2016.  The bench sheet noted that no Response had been filed by the husband in accordance with Order 6 made on 6 October 2015.  It was noted further that the husband filed a Financial Statement in compliance with Order 9 of that date.  The proceedings were adjourned to 22 April 2016.

2. Also on 24 February 2016 various directions were made by a Registrar for the filing of documents.  The Registrar directed that the wife have leave to apply to proceed on an undefended hearing of her application in the event of

   
   

   non-compliance by the husband.

3. The husband appeared unrepresented before a Registrar on 22 April 2016.  He was advised to obtain legal advice and given a list of community legal centres.  The Registrar adjourned the proceedings to a date to be fixed and the matter then came before me on 5 May 2016.

4. The husband appeared unrepresented before me on 5 May 2016 and indicated that he had sought no legal advice.  He indicated that he simply wished for the Court to make a decision in order to dispose of the proceedings.  The contents of the Response which he had filed on 22 March 2016 made it clear that he opposed the making of any order for spouse maintenance and that he contested the quantum of maintenance for the parties’ son Mr C.

5. In circumstances where the husband appeared and indicated clearly that he opposed two orders sought by the wife, I elected to allow him to rely upon his Financial Statement and to put submissions.  Neither party sought to cross-examine the other.

Background

1. The husband was born in 1958 and is currently 57 years of age.  The wife was born in 1962 and is presently aged 53 years.

2. The parties married in 1992 and separated on 13 April 2013.  They have two children:

   ·Ms E born in 1994 (21); and

   ·Mr C (“Mr C”) born in 1998 (18).

   Ms E lives independently of both parties.  Mr C lives with the wife and requires a high level of care from her because of his special needs.

3. The wife deposed that Mr C suffers from autism.  She described his disabilities as follows in her affidavit:

   (a)       He has been diagnosed with Autism;

   (b)      Although he is 17 he acts like 5 year old;

   (c)      His IQ not testable as it is under 50;

   (d)He has fecal incontinence which amongst other things means that he cannot travel independently;

   (e)      He cannot be left alone;

   (f)       He talks and lives in fairy tales;

   (g)      He is illiterate;

   (h)      He has no concept of money.

4. The wife deposed that she had no significant assets at the date of the marriage, possessing only a car and some furniture.  She deposed that the husband owned a house, with an equity in an amount unknown to her.  Her evidence was that this property was sold in 2000 and the parties then purchased another home in joint names, for a price which she believed to be $415,000.  The wife indicated that she had no knowledge of the extent of the parties’ equity in this property.

5. The wife gave evidence that the parties were issued with an eviction notice in 2006 and given twenty-one days to vacate this property.  She deposed that the property was sold and that she had no knowledge of the fate of the proceeds.

6. The wife deposed that the husband worked as a salesman throughout the marriage and that she was never informed of the state of the parties’ financial affairs.  She gave evidence that the family received financial assistance from relatives of both herself and the husband throughout their cohabitation.

7. According to the uncontradicted evidence of the wife, the parties possessed only their respective superannuation benefits at the date of separation.  She deposed that, at that time, the benefits of herself and the husband were valued respectively at approximately $30,000 and $60,000.

8. In the wife’s Financial Statement of 2 March 2016 she deposed that the present value of the husband’s superannuation benefit is $65,424 and that there are two additional funds with values of $26,809 and $9,601.  I assume that the latter two funds belong to the wife.

Consideration

Superannuation splitting order

1. The husband’s Response filed on 22 March 2016 stated that he consented to Order 1 as sought by the wife in her Amended Initiating Application filed on 8 September 2015.  The wife there proposed a splitting order, whereby she would receive 100 per cent of the husband’s interest in the B Superannuation fund.

2. The Trustee of the superannuation fund has been afforded procedural fairness, as is evident from the annexures to the affidavit of the wife’s solicitor Mr Peter Szabo sworn on 6 October 2015.  By letter dated 4 September 2015 the solicitor for the Trustee offered no opposition to the splitting order sought by the wife, subject to certain suggested drafting amendments.

3. I am satisfied that it is just and equitable that there be a superannuation splitting order as sought by the wife.  The parties’ respective Financial Statements indicate that they otherwise possess few assets.  The wife deposed that she intends to make application, from time to time, to access sums of $10,000 from the superannuation fund on the basis of hardship.  No doubt these funds would assist her in meeting the financial needs of Mr C and herself.

Adult child maintenance

1. By her Amended Initiating Application the wife sought an order that the husband pay maintenance for Mr C in the sum of $700 per week, with payments to commence from the time when he completes secondary school.  In her affidavit of 7 September 2015, however, the wife stated that she sought an order for $400 per week, with payments to commence on the termination of the current Child Support Assessment.  The husband sought an order that he pay maintenance for Mr C in the sum of $700 per month, with payments to commence on the expiry of the current Child Support Assessment.

2. The power to make an order for maintenance of a child who is over the age of 18 years is contained in section 66L of the Family Law Act 1975 (Cth) (“the Act”) which provides as follows:

   66L  Children who are 18 or over

   (1)  A court must not make a child maintenance order in relation to a child who is 18 or over unless the court is satisfied that the provision of the maintenance is necessary:

   (a)  to enable the child to complete his or her education; or

   (b)  because of a mental or physical disability of the child.

   The court may make such a child maintenance order, in relation to a child who is 17, to take effect when or after the child turns 18.

   (2)  A court must not make a child maintenance order in relation to a child that extends beyond the day on which the child will turn 18 unless the court is satisfied that the provision of the maintenance beyond that day is necessary:

   (a)  to enable the child to complete his or her education; or

   (b)  because of a mental or physical disability of the child.

   (3)  A child maintenance order in relation to a child stops being in force when the child turns 18 unless the order is expressed to continue in force after then.

1. In my view, it is readily apparent that Mr C has the requisite “mental or physical disability” for the purposes of section 66L. I consider that the husband’s proposal that he pay maintenance of $700 per month for Mr C is a concession to that effect.

2. Section 66J sets out “Matters to be taken into account in considering financial support necessary for maintenance of a child”.  This section provides as follow:

   66J  Matters to be taken into account in considering financial support necessary for maintenance of child

   (1)  In considering the financial support necessary for the maintenance of a child, the court must take into account these (and no other) matters:

   (a)  the matters mentioned in section 66B; and

   (b)  the proper needs of the child (this is expanded on in subsection (2)); and

   (c)  the income, earning capacity, property and financial resources of the child (this is expanded on in subsection (3)).

   (2)  In taking into account the proper needs of the child the court:

   (a)  must have regard to:

   (i)  the age of the child; and

   (ii)  the manner in which the child is being, and in which the parents expected the child to be, educated or trained; and

   (iii)  any special needs of the child; and

   (b)  may have regard, to the extent to which the court considers appropriate in the circumstances of the case, to any relevant findings of published research in relation to the maintenance of children.

   (3)  In taking into account the income, earning capacity, property and financial resources of the child, the court must:

   (a)  have regard to the capacity of the child to earn or derive income, including any assets of, under the control of or held for the benefit of the child that do not produce, but are capable of producing, income; and

   (b)  disregard:

   (i)  the income, earning capacity, property and financial resources of any other person unless, in the special circumstances of the case, the court considers it appropriate to have regard to them; and

   (ii)  any entitlement of the child or any other person to an income tested pension, allowance or benefit.

   (4)  Subsections (2) and (3) do not limit, by implication, the matters to which the court may have regard in taking into account the matters referred to in subsection (1).

3. The wife estimated Mr C’s financial needs at a total amount of $349 per week in her Financial Statement of 21 March 2016.  This figure includes an amount of $200 for food, which may seem excessive at first sight.  In her affidavit, however, the wife explained that Mr C is unable to eat processed food and that his meals are thus more expensive than would otherwise be the case.  Otherwise, the wife’s estimated expenses for Mr C appear to be reasonable and modest amounts.

4. I accept the wife’s evidence that Mr C is unable to earn an income due to his disabilities.  Her uncontradicted evidence was that Mr C will never be able to undertake gainful employment and that he will be dependent upon her for the whole of his life.

5. Section 66K sets out “Matters to be taken into account in determining contribution that should be made by a party etc.”  This section provides as follows:

   66K  Matters to be taken into account in determining contribution that should be made by party etc.

   (1)  In determining the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of a child that should be made by a party, or by parties, to the proceedings, the court must take into account these (and no other) matters:

   (a)  the matters mentioned in sections 66B, 66C and 66D; and

   (b)  the income, earning capacity, property and financial resources of the party or each of those parties (this is expanded on in subsection (2)); and

   (c)  the commitments of the party, or each of those parties, that are necessary to enable the party to support:

   (i)  himself or herself; or

   (ii)  any other child or another person that the person has a duty to maintain; and

   (d)  the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child (this is expanded on in subsection (3)); and

   (e)  any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.

   (2)  In taking into account the income, earning capacity, property and financial resources of a party to the proceedings, the court must have regard to the capacity of the party to earn and derive income, including any assets of, under the control of or held for the benefit of the party that do not produce, but are capable of producing, income.

   (3)  In taking into account the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child, the court must have regard to the income and earning capacity forgone by the parent or other person in providing that care.

   (4)  In determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, the court must disregard:

   (a)  any entitlement of the child, or the person with whom the child lives, to an income tested pension, allowance or benefit; and

   (b)  the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or has such a duty but is not a party to the proceedings, unless, in the special circumstances of the case, the court considers it appropriate to have regard to them.

   (5)  In determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, the court must consider the capacity of the party, or each of those parties, to provide maintenance by way of periodic payments before considering the capacity of the party, or each of those parties, to provide maintenance:

   (a)  by way of lump sum payment; or

   (b)  by way of transfer or settlement of property; or

   (c)  in any other way.

   (6)  Subsections (2) to (5) do not limit, by implication, the matters to which the court may have regard in taking into account the matters referred to in subsection (1).

1. In his Financial Statement of 20 October 2015 the husband deposed to a gross weekly income of $1,057, on which he pays tax of $376, which leaves a net figure of $681.  The husband set out his recurring weekly expenses as follows:

($)
Superannuation	100
Rent	200
Motor vehicle costs	30
Child Support	250
Total	$580

1. The husband deposed in Part N of his Financial Statement to total average weekly expenses of $745.  This figure includes an amount of $150 for “other necessary commitments”, in respect of which the husband provided no breakdown.

2. The husband also deposed that he spends $180 per week on petrol and $30 per week for car maintenance.  It seems to me to be reasonable to assume that the husband’s motor vehicle expenses would be tax deductible, at least to some extent, in view of his employment as a salesman on a commission basis.

3. For these reason I am satisfied and find that the husband has the capacity to pay maintenance for Mr C.  The husband currently pays $250 per week pursuant to a Child Support Assessment and claimed the abovementioned unspecified expenditure of $150.  In these circumstances, I conclude that the husband is able to pay a minimum of $400 per week as maintenance for Mr C.  I am satisfied and find that the husband has some additional capacity, having regard to his alleged expenses and in particular motor vehicle costs and superannuation.  I accordingly will order that the husband pay adult child maintenance for Mr C in a sum of $500 per week, with payments to commence on the termination of the current Child Support Assessment.

Spouse maintenance

1. The wife deposed that she earns a net income from employment of approximately $136 and otherwise receives government benefits which must be disregarded for present purposes. I accept the wife’s evidence that her capacity to increase her hours of work is necessarily limited by her responsibility to care for Mr C. Accordingly, I have no hesitation in finding that the wife is unable to support herself adequately for the purposes of section 72 of the Act.

2. It seems to me, however, that the husband will have no capacity to pay spouse maintenance once he meets the order for financial support of Mr C.  I appreciate that the wife is suspicious as to the accuracy and efficacy of the contents of the husband’s Financial Statement but I had the benefit of no other evidence, for example, by way of tendered documents.  For these reasons I will dismiss the wife’s application for an order for spouse maintenance.

Costs

1. The wife sought an order that the husband pay her costs of these proceedings and pointed to the fact that her solicitor has acted for her on a pro bono basis.  I was not provided with a quantum or breakdown of the wife’s costs.  No submissions in respect of costs was put on behalf of the wife.  I was not taken to any source from which the husband might satisfy an order for costs.  In these circumstances, I cannot properly make an order for costs in favour of the wife.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 16 May 2016.

Associate: 

Date:  16 May 2016