Sophronia and Sophronia

[2007] FamCA 1351

FAMILY COURT OF AUSTRALIA

SOPHRONIA & SOPHRONIA [2007] FamCA 1351

FAMILY LAW – PROPERTY SETTLEMENT

Family Law Act 1975 (Cth)

APPLICANT: Mrs Sophronia

RESPONDENT: Mr Sophronia

FILE NUMBER: SYF 2244 of 2005

DATE DELIVERED: 19 November 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Steele J

HEARING DATE: 25,26,27,28 September and 2 October 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr. Hansen

SOLICITOR FOR THE APPLICANT: Ktenas Solicitors

COUNSEL FOR THE RESPONDENT: Mr. Maurice

SOLICITOR FOR THE RESPONDENT: D C Chambers & Associates

Orders

(1)That the parties do all things necessary to cause the proceeds and any accrued interest earned from the sale of the former matrimonial home controlled by Messrs Theodore Soloman and Partners to be paid as to the sum of $285,252 to the mother and $126,017 to the father and any balance as to 65 per cent thereof to the mother and 35 per cent thereof to the father.

(2)That the father transfer his interest in the Holden Astra motor car registered … to the mother.

(3)That the father retain the Holden Vectra motor car registered … in joint names with his mother.

(4)That the Court allocate pursuant to section 90 MT (4) of the Family Law Act 1975 (“the Act”) a base amount of $97,778.00 to the mother out of the father’s interest in the X SUPERANNUATION PLAN (“the Fund”).

(5)That in accordance with section 90 MT (1)(a) of the Act whenever a splittable payment becomes payable the Trustee of the Fund (“the Trustee”) shall:-

(i)Pay to the mother or the mother’s legal personal representatives the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”); and

(ii)Make a corresponding reduction in the entitlement of the father would have had in the Fund but for this order.

(6)That the Trustee of the Fund shall do all such acts and things and sign all documents as may be necessary to:-

(i)Calculate in accordance with the requirements of the Act and the Regulations the amount to be paid to the mother pursuant to order 4 herein; and

(ii)Pay the amount whenever the Trustee makes a splittable payment out of the father’s interest in the Fund.

(7)That orders 4, 5 and 6 have effect from the operative date which is 4 business days after service of a sealed copy of these orders upon the Trustee.

(8)That the Trustee shall do all acts and things and sign all documents as may be necessary so that in accordance with the obligations set out under the Act and Regulation, the Trustee can calculate the amount due and make payment to the mother in accordance with Orders 5 and 6 herein.

(9)That the mother do all acts and things necessary, including but not limited to, exercising her request pursuant to r.7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the amount due out to her of the father’s interest in the Fund to a fund of the mother’s choosing in accordance with r.7A.12 of the Superannuation Industry (Supervision) Regulations 1994.

(10)That pursuant to r.14F of the Superannuation Industry (Supervision) Regulations 1994, any payments from the father’s superannuation interests made after the Trustee has rolled over or transferred the amount due to the mother to a fund of the mother’s choosing are not splittable payments.

(11)Having been accorded procedural fairness, these orders require the Trustee to observe the requirements of the Act and the Regulations.

(12)That subject to these orders and pursuant to section 79 of the Family Law Act:-

(i)The mother is entitled to be the sole legal and beneficial owner of all other property including superannuation currently in her possession and/or control free from any interest of the father and shall indemnify the father in relation to any and all debts attaching thereto.

(ii)The father is entitled to be the sole legal and beneficial owner of all other property including superannuation currently in his possession and/or control free from any interest of the mother and shall indemnify the mother in relation to any and all debts attaching thereto.

(13)That each party shall do all acts and things, sign all documents and give all consents necessary to give full force and effect to each of these orders.

(14)That if either party refuses or neglects to sign or execute any document, instrument or writing after seven (7) days of being required to do so, each party consents to any application filed by the other party seeking orders pursuant to section 106A of the Act that the Registrar of the Family Court of Australia at Sydney be empowered to sign and execute such document, instrument or writing on behalf of either party as may be necessary to give full force and effect to orders herein.

(15)That each party has liberty to apply in relation to the implementation of these orders on giving the other party and the Court not less than seven (7) days notice in writing.

IT IS NOTED that publication of this judgment under the pseudonym Sophronia & Sophronia is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2244 of 2005

MRS SOPHRONIA  

Applicant

And

MR SOPHRONIA  

Respondent

REASONS FOR JUDGMENT

1.These were proceedings for parenting orders and for property settlement. 

2.The parties were married and commenced cohabitation in August 1995 and finally separated on 7 September 2004 after nine years cohabitation.

3.Each of the parents comes from a Greek family.  There are two children of the marriage, twin boys C and G who are now approaching six years of age.  They were only two years and ten months old at the time of separation in September 2004.  Sadly they have been diagnosed with Childhood Autism, the diagnosis having been made about one year after separation occurred. 

4.The children have lived principally with the mother since separation but on 13 December 2004, Interim Orders were made by the St James Local Court which provided for the father to have time with the children each Tuesday and Thursday evening between 6:30 pm and 8:30 pm and until March 2006, each weekend from 6:30 pm Friday until 5:30 pm Saturday.  In respect of the period after March 2006, the Orders provided for the father to have contact on one weekend in a two week cycle from 6:30 pm Friday until 5:30 pm Saturday and in the other weekend from 6:30 pm Friday until 5:30 pm Sunday.  The father has broadly had contact in accordance with those Orders since, although since August 2007 the mother has declined to provide the children for contact on Tuesday and Thursday evenings.

5.On the morning of the fifth day of trial the parties were able to resolve the parenting issues and consent orders were made providing for the children to live with the mother and spend time with the father during school term in week one of a two week cycle from 6:30 pm Thursday to 5:30 pm Saturday and in week two of the cycle from 6:30 pm Friday to 5:30 pm Sunday.  There are other orders for special occasions and provision for the children to spend one half of all school holidays with each parent.  The parenting orders also provide for the parents to have equally shared parental responsibility.

6.An independent expert, Dr W, a consultant paediatrician, has taken over treatment of the boys since Dr O, the initial treating paediatrician, declined to continue treating them.  Dr W has expressed the view that the boys have severe Autism with language delays and challenging behaviour.  He described the task of looking after Autistic twins as “hell on earth”.

7.The mother seeks orders for a 70/30 division of property in her favour based upon a contribution based entitlement of 52/48 and an 18 per cent adjustment for section 75(2) factors.  The father seeks an equal division of property based on a 60/40 contribution based entitlement and a ten per percent adjustment to the mother for section 75(2) factors.  There do not appear to be any real issues relating to the pool of assets.  The principal issue seems to relate to the evaluation of the parties’ respective contributions and the section 75(2) factors.

8.Each of the parties has been represented by counsel.

Short History

9.Mrs Sophronia (“the mother”) was born in June 1971 and is 36 years of age.  She lives at their home in Y with her parents and the two children the subject of this application.  She works part time in an office earning from that employment about $273.00 per week.

10.Mr Sophronia (“the father”) was born in September 1967 and is now 40 years of age.  He resides with his parents in their home at K and is employed as a technician earning from that employment about $965.00 per week.

11.The parties were married and commenced cohabitation in August 1995.  Final separation occurred on 7 September 2004 after about nine years of cohabitation.

12.There are two children of the marriage, twin boys, C and G born in November 2001.  The two boys were two years and ten months of age at the time of separation. In January 2005 the children were diagnosed as being developmentally delayed and ultimately in August 2005 were diagnosed with Autistic Spectrum Disorder.  The father pays child support to the mother of $188 per week.  The children currently attend two days each week at Learning Links, an institution for children who are developmentally delayed and three days per week at ABC Pre School. They live principally with the mother and spend time with the father in a fortnightly cycle for two days each weekend.    C can speak a limited number of words but G cannot verbalise.

The Law to be Applied

13.The approach to be taken is set out in Section 79 of the Act. Section 79(2) provides that the Court shall not make an order under the section unless it is satisfied that in all the circumstances, it is just and equitable to make the order. I am required in considering what order should be made to take into account the respective contributions of the parties referred to in Section 79(4)(a)(b) and (c). I am required to take into account in addition the effect of any proposed order upon the earning capacity of the parties pursuant to Section 79 (4)(d), the matters referred to in Section 75(2) so far as they are relevant, any other order made under the Act affecting a child and any child support under the Child Support Assessment Act that a party has provided, is to provide or might be liable to provide in the future.

14.The first step in the task, which I have to perform, is to determine the extent and value of the property, the liabilities and the financial resources of the parties at the time of the hearing.

15.I have taken a global approach to the evaluation of the property of the parties and their respective contributions, rather than an asset by asset approach.  In the result I have assessed the contribution to the general asset pool, separately assessed the contributions to the superannuation pool and ultimately calculated the overall resulting contributions on a percentage basis.

16.In this case the parties have, at my direction, produced a list of assets, liabilities and financial resources.  The list provided by the parties is Exhibit “1A” and is as follows:-

Property Description				Joint M/F	Mother’s Valuation	Father’s Valuation	Agreed or actual valuation
ASSETS
1.	Proceeds sale FMH				Joint	411,269	411,269	411,269
2.	Savings (3 accounts)				M	1,500	1,500	1,500
3.	Jewellery				M	1,000	1,000	1,000
4.	Holden Astra 2001 (with mother)				M	10,000	10,000	10,000
5.	Father’s jewellery				N/K	Nil	17,150	NOT AGREED
6.	ING accounts				Joint	2,280	2,280	2,280
7.	Savings (ANZ)				F	250	250	250
8.	Holden Vectra 2005 (50%)				F	13,978	13,978	13,978
9.	Legal Fees paid from matr. prop				M	10,000	10,000	10,000
10.	Mortgage drawdown by F after separation				F	50,642	14,962	14,962
11.	Monies withdrawn by F from joint funds after separation (including mother’s tax refund)				M	5,823	9,979	9,979
Total Assets				506,742	492,368	475,218
SUPERANNUATION
12.	Mercer (as at 23.8.07)				F	178,324	178,324	178,324
13.	Care (as at 30.6.07)				M	51,805	51,805	51,805
Total Superannuation				230,129	230,129	230,129
LIABILITIES
Total Liabilities				Nil	Nil	Nil
NET ASSETS INCL. SUPER				736,871	722,497	705,347
NET ASSETS EXCL. SUPER				506,742	492,368	475,218

Item 5 – Father says mother has his jewellery and mother says she has none of his jewellery in her possession.

17.The only dispute related to Item 5.  Ultimately, during addresses Counsel agreed that there was no evidence to even establish the existence of the jewellery and Counsel agreed that it should be excluded.

18.Ultimately the list of assets and superannuation as found by the Court is as follows:-

Property Description				Joint M/F	Valuation
ASSETS
1.	Proceeds sale FMH				Joint	411,269
2.	Savings (3 accounts)				M	1,500
3.	Jewellery				M	1,000
4.	Holden Astra 2001 (with mother)				M	10,000
5.	ING accounts				Joint	2,280
6.	Savings (ANZ)				F	250
7.	Holden Vectra 2005 (50%)				F	13,978
8.	Legal Fees paid from matr. prop				M	10,000
9.	Mortgage drawdown by F after separation				F	14,962
10.	Monies withdrawn by F from joint funds after separation (including mother’s tax refund)				M	9,979
Total Assets				475,218
SUPERANNUATION
11.	Mercer (as at 23.8.07)				F	178,324
12.	Care (as at 30.6.07)				M	51,805
Total Superannuation				230,129
LIABILITIES
Total Liabilities				Nil
NET ASSETS INCL. SUPER				705,347
NET ASSETS EXCL. SUPER				475,218

The Facts

19.The parties were married in August 1995 when they commenced cohabitation but some six months prior to that the parties purchased a home unit at H for the sum of about $175,000.  The parties are in dispute about how the purchase of the H home unit was funded, although it is common ground that the parties borrowed the sum of $115,000 from the ANZ Bank.  The mother says she contributed about $40,000 and the father contributed $25,000, whereas the father on the other hand suggests that he contributed about $43,000 and the mother something of the order of $20,000.  There is no documentary evidence to support the position of either party.  In the absence of some other evidence and no reason to disbelieve either party, I am unable to separate their initial contributions.  At the time of marriage, both parties were in full time employment although the father may have been earning a little more than the mother at that time. 

20.The mother continued working until about four to six weeks prior to the birth of the twins.

21.In the period immediately after the marriage, the parties did not occupy the home unit at H but leased it out and used the income to reduce the mortgage.  The parties, during that first 12 months after marriage, resided with the father’s parents and moved into the H unit in September of 1996.  The mother continued working full time until very shortly prior to the birth of the twins in November 2001 and in April the following year the parties sold the H unit for the sum of $336,000.  For a period of about six months following the sale of the H unit, the parties moved from home to home of their respective parents living about half a week at a time with each of them.  In September 2002, the parties purchased the property at R for $675,000, using all of their joint funds and borrowed the sum of about $240,000 to enable the purchase to be completed.  There were some difficulties between the parties in those early days.  Each of the parties was closely aligned with their own respective parents and with young twins and living between the two houses things must have been difficult.

22.Some renovations were carried out on the R property by the father with assistance from his brother in law, his father and the wife’s father.  It appears that the contributions made by the mother’s family and the father’s family were about equal.

23.As the children were born some four weeks premature and as the children developed and grew, they appeared to be developing more slowly than might have been expected.  There was disagreement between the parties relating to the way in which the children were being treated and the father and his mother were critical of the mother and appeared to regard the mother as less than competent in the way she was dealing with the children who had problems which, at that time, had not been identified.

24.On 10 January 2005, when the children were just over three years of age, they were referred to the Sydney Children’s Hospital for developmental assessment and were diagnosed as being developmentally delayed.  Some seven or eight months later in August 2005, the children were diagnosed by Dr O, who was an Autism expert, as having Childhood Autism.

25.During the latter part of 2004, the father became concerned about the way in which the mother was dealing with the children’s development.  She had taken steps, at least as early as March 2004, to have the children investigated but nothing definite was determined.  Ultimately he brought proceedings in the St James Local Court and orders were made on 13 December 2004 for him to have contact with the children each Tuesday and Thursday evening from 6:30 pm to 8:30 pm and in a two week cycle from 6:30 pm Friday until 5:30 pm Saturday and in the other week from 6:30 pm Friday until 5:30 pm Sunday.  There were other provisions for special days and for contact after the children commence school.  He initiated investigations which resulted in the children being diagnosed as developmentally delayed.

26.Dr B was consulted as a joint expert relatively early in the scheme of things.  He provided a report dated 2 June 2005 but it was not conclusive at that time in relation to a diagnosis of Autistic Spectrum Disorder.  As I have recorded, Dr O subsequently made the diagnosis and provided advice as to the way the children should be treated.  Dr O resigned as the children’s treating doctor in February 2007 citing difficulties relating to the antagonism between the parents.  Dr W, a paediatric Autism expert took over the treatment of the children and Dr B provided an updated report on 22 February 2007.  In March 2007 Dr W was appointed as a second Court expert.

27.The mother, in her evidence in chief, said that she works part time and the amount she earns depends on the amount of work which is available.  She thought on average it was of the order of $273.00 per week as disclosed in her Financial Statement. In addition to that income, she receives a carer’s allowance of $40 per week per child making a total of $80 per week, a single mother’s pension of $260 per week and child support of $188 per week from the father.  In addition, she receives a Family Tax Benefit of about $77 per week.  Those sums total about $605 per week plus the income from her employment, although the level of her social security payments decrease in accordance with increases in the amount of money she earns.

28.The mother said, in her evidence in chief, that the contact which the children were having with the father on Tuesday and Thursday nights became a problem.  This contact two nights a week did not finish until 8:30 pm and the children would not get home until about ten past nine.  The mother said that having regard to the fact that the children are now, since June 2007, attending pre school on five days per week, they become very tired and she found that often they were returned to her when they were asleep and they had to be woken and sometimes fed after they returned home and would not go to sleep until late, sometimes around midnight.  This was all very disruptive and on 5 August 2007, after earlier communications obtained no result, she wrote the father a letter pointing out that she would no longer provide the children for mid week contact having regard to the effect which it was having upon them. 

29.The mother said that she had been making applications to the Department of Education in relation to the children’s schooling, which is expected to commence in 2008.  She said it was her understanding that the Department considered the position of the children and would then allocate them to a school having regard to the available resources.  She said that on the Friday prior to the commencement of the hearing she had received a response from the Department of Education by way of one letter for each of the children dated 18 September 2007 (Exhibit “M6”) indicating that the children had been allocated a place at the N School where there were Autism specific classes.  She said that she was informed that N was about a 30 minute drive south of where she lives at Y.  The parties are agreed that the children should attend the N School which (unless the mother utilises a bus which may be available) will involve her in about a half hour travelling each morning and evening.  The parties are agreed that if a place is available at the T School, which Dr W recommended, then the children would attend that school, which is closer.  The mother is not prepared to commit to using the bus to get the children to school because she is uncertain how they would cope, at least until they get a little older.

30.The mother said that the children’s problems had meant that there was a lot of money to be spent on their additional investigations and treatment.  She produced a schedule of moneys spent by her for the years 2005, 2006 and 2007 on schooling and medical expenses and the like and that list of expenses, which was verified by receipts, vouchers and so on, totalled the sum of $21,415.  It was not in dispute that she had spent those moneys and the father had not contributed to those expenses except in so far as he had paid child support.

31.The evidence establishes that the mother has had assistance on a regular basis from her mother and for a period of time from the father’s mother.  It must be one of the most onerous tasks imaginable for a mother to look after these two children with all the problems associated with Autism and two of them at the same time. I think the level of the task faced by the mother, which she has performed to this stage of the children’s development, has been enormous.  The father loves the children and wants the best for them.  He has been involved with them and will continue to be involved at a significant level in the future.  Nonetheless the mother has carried the major part of the load to this point of time and is likely to continue to do so.

32.By and large, I believe the mother was a truthful witness and impressed me as a sensible person who has views, some of which may be arguable, about the way in which she treats the children but is sensible in her approach.  She certainly has not overstated her contribution to the children’s upbringing. She is uncomplaining.

33.Dr W is a consultant paediatrician who is a specialist expert in matters of Autism.  He is the treating specialist for the two children.  He took over the treatment from Dr O who had previously treated the children.  He said that Autism can be defined as a neurochemical disturbance of the brain which gives rise to difficulties with language skills, rituals and obsessive behaviour, social skills and relationship problems and the sufferers may also have a cognitive deficit.  He said that Autistic children did not cope well with change and would be anxious in certain circumstances.  He said they are very busy and there is lots to do in looking after the children.  He said looking after Autistic twins from birth to age five years and nine months (as the mother has done) would be “hell on earth”.  He said things are so difficult that the parent becomes the victim.  Dr W said that one of the schools the children are attending, “Learning Links” is staffed by professional people who are child therapists, speech pathologists, psychologists and people with expertise in all aspects of learning.  He thought it was a good place.  He said that he thought the children would ultimately improve but it will take time.  He said that he had seen the father and the mother both together and separately about three times and his opinion was that they were both committed and caring people. 

34.He dealt at some length with the problems associated with the children’s schooling, which he regarded as important.  He said spaces for children with Autism are limited in schools around Sydney and that these boys would not function well in an ordinary class.  He said they would need a special class and the school at N, where a place had now been offered to the children (although he had not earlier been made aware of that) does have a special class for Autistic children.  He said that the school at N would be highly suitable and there is another one at T, which would be closer.  He expressed the view that T School would be the preferable school if both were available.  It was not clear whether his expressed preference was based purely on geographical convenience or on the capacity of the school.  The parents have agreed the children will attend the N School unless places become available at T.

35.Dr W said that the children have improved a lot and he is surprised at how well they have progressed. 

36.The father was cross examined at some length on his affidavit material. 

37.The father said that his salary at the time he separated was, he thought, about $65,500.  He said that he had, in all the years of the marriage, worked as much overtime as was possible.  He agreed that the mother had worked up until six weeks before the birth of the twins but denied that there had been any argument between them about when she should stop work. 

38.The father agreed that the mother’s father had helped them with work done on the house which they had purchased in R and confirmed that the various items referred to in paragraph 102 of the mother’s affidavit had been carried out by the mother’s father but indicated that the father himself, his father and the father’s brother in law were all involved with the work except, of course, with the bricklaying, which was the work which had to be done by the mother’s father. 

39.The father agreed that in the period after they sold the H home unit and before they completed the purchase of the R property, they went to live with his parents and the mother’s parents, changing residence every three to four days.  He denied that the mother had complained about the inconvenience of changing residence with these two young children every three or four days.

40.The father spoke of his views about the mother’s care of the children over the years.  He agreed that, at least in terms of time, she has carried most of the load of looking after them.  He said “she has done a good job”.  Notwithstanding that remark, he agreed that he and his mother had constantly and repeatedly criticised the mother in respect of the way she cared for the children, in respect of the food she fed them and in respect of the treatment she arranged from doctors and the like. 

The Resolution of the Issues

The Section 79(4) Contributions

41.The most relevant factors, though not expressed in any particular order, are the following:-

§  The initial contributions.  Having regard to the state of the evidence, I am unable to separate them.

§  Both parties worked full time until the babies were born and after that time the father worked full time and the mother was involved as the primary carer of the children.

§  Accommodation provided by the father’s parents for a period about a year after marriage.

§  Accommodation provided by each of the parties’ parents in the period following the sale of the home unit in April 2002 for about six months when the parties alternated between the parents homes.  This contribution was equal from both families.

§  The $21,400 spent by the mother on medical care for the children.

§  Since separation the mother has had the vast majority of the care of the children for the three years period with assistance from her mother for three days each week.

§  In the period prior to separation the paternal grandmother assisted the mother with the children for about one day each week whilst the maternal grandmother assisted the mother for three days each week. That was in the two year period from September 2002 after the R property was purchased until separation in September 2004. 

§  The mother has made payments of $4,500 from her termination pay and a tax refund of $4,153 which were both paid into the joint bank account.

§  The father has been involved with the children but his level of direct care and responsibility for the children has been much less than that of the mother.

§  The father has paid child support in accordance with the assessment appropriate from time to time.

Superannuation Contributions

§  The father’s superannuation entitlement at the date of trial is the sum of $178,324, whereas the mother’s superannuation entitlement is $51,805.  There are no figures available relating to the level of the respective entitlements at the date of separation but the figures available closest to the date of separation in the case of the father is $109,133 as at 11 March 2005 and $42,410 for the mother as at 30 June 2004.  That indicates a 70 per cent increase in the value of the father’s superannuation since separation.

§  The parties are agreed that I should assess the contributions on the basis that the father joined the superannuation fund at about the time of cohabitation and the mother joined the superannuation fund in November 1994, perhaps nine months or so prior to cohabitation commencing.

42.The non-superannuation pool has a value of $475,218.  The superannuation pool has a value of $230,129, of which the mother’s entitlement is 23 per cent and the father’s 77 per cent.  The mother made contributions to the father’s superannuation during the marriage and to the extent that his superannuation entitlement has increased since separation, it is partly due to his actual contributions since separation and partly to the growth in the fund as it existed at separation.  There is no evidence that he made contributions beyond the norm to achieve the significant increase that has occurred.  That fund, as it existed, at separation was one to which the mother made contributions during the marriage and therefore she should be deemed to have made some contribution to the increase in the fund since separation.  Counsel for the father indicated he would provide details of the actual payments made by the father to the superannuation fund since separation but did not do so.  In the same way, the father made contributions to the mother’s superannuation entitlements during the marriage and as a result to the increase that has occurred since separation, although the contributions since separation will be less than those made during the marriage. The total assts pool is $705,347.  The non superannuation pool comprises 67 per cent and the superannuation pool 33 per cent.

43.The contributions to the superannuation pool, I assess as 57.5/42.5 in favour of the father and the contributions to the non superannuation pool I assess at 52.5/47.5 in favour of the mother.  Calculated mathematically then, the father’s contributions can be quantified at 57.5 per cent of $230,129 = $132,324, plus 47.5 per cent of $475,218 = $225, 728, totalling $358,052, which represents almost precisely 50 per cent of the total pool.  That represents his contribution based entitlement.  The contribution based entitlements should be assessed at 50/50.

The Section 75(2) Matters

§  The father is aged 40 and the mother is aged 36.  So far as the evidence goes, each of the parties is in good health.

§  The father is in receipt of an income of about $965 per week, whereas the mother is presently receiving an income of about $273 per week.  The mother’s capacity to earn in the future may well depend upon the circumstances of the two children.  The evidence suggests that they will improve but it may take a long time to achieve improvement.  The children will be attending school full time from 2008 but in the early years, she may be required to assist them in getting to and from school and certainly would be required to be available for the children before and after school. 

§  The mother will have the ongoing care and control of these two children with all their attendant difficulties.  The father will have them with him for two nights each weekend and for portion of school holiday periods.

§  The father has the obligation to support the children and has paid child support consistent with the assessment made from time to time. 

§  The mother receives the carer’s allowance and single mother’s pension referred to earlier but the level of those allowances may be adjusted in the event that her income level increases.

§  The marriage subsisted for nine years but for the last three years of the marriage and the three years since separation occurred, the mother has been restricted in her capacity to work and build a career by the need to be available as the primary carer of the children.

§  The father has an ongoing obligation to pay child support at the rate of $188 per week.

§ So far as the superannuation in concerned, there is no evidence about when the father’ superannuation rights might crystallise. The father’s counsel has submitted that even if orders were made such as the mother seeks, i.e. 70/30 in her favour, the superannuation should be divided as to 56/44 in the father’s favour whereas the mother, for her part, asserts that the division of property and superannuation should be divided across the board without differentiation. It was not clear whether the mother’s fund entitles her to access her superannuation entitlements once she has reached age 55 and has retired but I think it can be assumed that given their relative youth, the parties will not be able to access their superannuation for at least 15 years and possibly more. There is no evidence to suggest that the parties’ respective superannuation entitlements can be commuted or dealt with in any way. These limitations mean that superannuation entitlements, even though the value is agreed and reached in accordance with the Regulations, nonetheless have some limitations.

44.Having regard to the section 75(2) factors, it seems to me that a significant adjustment is required in favour of the mother, having regard especially to the difference in the parties’ earning capacities and the mother’s likely inability to exercise her full earning capacity in the near future, together with the burden of having the major part of caring for the children, which on the basis of the existing orders amounts to 10 nights out of each 14.  It seems to me that in those circumstances, an adjustment should be made in favour of the mother of 15 per cent so that the property of the parties will be adjusted as to 65 per cent to the mother and 35 per cent to the father. 

The Effect of the Property Orders

45.The mother will receive:-

3 Savings Accounts (Item 2)	$1,500
Jewellery (Item 3)	$1,000
Holden Astra (Item 4)	$10,000
ING Accounts – half (Item 5)	$1,140
Legal fees written back (Item 8)	$10,000
Mother’s superannuation (Item 12)	$51,805
Sum split from father’s super (Balance of 65% super)	$97,778
Lump sum paid from proceeds of sale of FMH (Item 1)	$285,252
$458,475

46.The father will receive:-

ING Accounts – half (Item 5)	$1,140
ANZ Savings (Item 6)	$250
50% share of Holden Vectra (Item 7)	$13,978
Mortgage Drawdown written back (Item 9)	$14,962
Moneys withdrawn by father written back (Item 10)	$9,979
Father’s superannuation split (Balance of 35% super)	$80,545
Lump sum paid from proceeds of sale of FMH (Item 1)	$126,017
$246,871

47.The mother contended that the superannuation should be split in the same proportions as the balance of the property is distributed.  The father contended for a 56/44 split of the superannuation in his favour.  No arguments were put as to why one or the other should be preferred.  I think that distributing superannuation in the same proportions as the other assets is more likely to be fair.

48.In all the circumstances, I am satisfied that the effect of the orders so made is just and equitable.

The Orders

(1)That the parties do all things necessary to cause the proceeds and any accrued interest earned from the sale of the former matrimonial home controlled by Messrs Theodore Soloman and Partners to be paid as to the sum of $285,252.00 to the mother and $126,017.00 to the father and any balance as to 65 per cent thereof to the mother and 35 per cent thereof to the father.

(2)That the father transfer his interest in the Holden Astra motor car registered … to the mother.

(3)That the father retain the Holden Vectra motor car registered … in joint names with his mother.

(4)That the Court allocate pursuant to section 90 MT (4) of the Family Law Act 1975 (“the Act”) a base amount of $97,778.00 to the mother out of the father’s interest in the X SUPERANNUATION PLAN (“the Fund”).

(5)That in accordance with section 90 MT (1)(a) of the Act whenever a splittable payment becomes payable the Trustee of the Fund (“the Trustee”) shall:-

(i)Pay to the mother or the mother’s legal personal representatives the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”); and

(ii)Make a corresponding reduction in the entitlement of the father would have had in the Fund but for this order.

(6)That the Trustee of the Fund shall do all such acts and things and sign all documents as may be necessary to:-

(i)Calculate in accordance with the requirements of the Act and the Regulations the amount to be paid to the mother pursuant to order 4 herein; and

(ii)Pay the amount whenever the Trustee makes a splittable payment out of the father’s interest in the Fund.

(7)That orders 4, 5 and 6 have effect from the operative date which is 4 business days after service of a sealed copy of these orders upon the Trustee.

(8)That the Trustee shall do all acts and things and sign all documents as may be necessary so that in accordance with the obligations set out under the Act and Regulation, the Trustee can calculate the amount due and make payment to the mother in accordance with Orders 5 and 6 herein.

(9)That the mother do all acts and things necessary, including but not limited to, exercising her request pursuant to r.7A.06(1) of the Superannuation Industry (Supervision) Regulations 1994 for the rollover or transfer of the amount due out to her of the father’s interest in the Fund to a fund of the mother’s choosing in accordance with r.7A.12 of the Superannuation Industry (Supervision) Regulations 1994.

(10)That pursuant to r.14F of the Superannuation Industry (Supervision) Regulations 1994, any payments from the father’s superannuation interests made after the Trustee has rolled over or transferred the amount due to the mother to a fund of the mother’s choosing are not splittable payments.

(11)Having been accorded procedural fairness, these orders require the Trustee to observe the requirements of the Act and the Regulations.

(12)That subject to these orders and pursuant to section 79 of the Family Law Act:-

(i)The mother is entitled to be the sole legal and beneficial owner of all other property including superannuation currently in her possession and/or control free from any interest of the father and shall indemnify the father in relation to any and all debts attaching thereto.

(ii)The father is entitled to be the sole legal and beneficial owner of all other property including superannuation currently in his possession and/or control free from any interest of the mother and shall indemnify the mother in relation to any and all debts attaching thereto.

(13)That each party shall do all acts and things, sign all documents and give all consents necessary to give full force and effect to each of these orders.

(14)That if either party refuses or neglects to sign or execute any document, instrument or writing after seven (7) days of being required to do so, each party consents to any application filed by the other party seeking orders pursuant to section 106A of the Act that the Registrar of the Family Court of Australia at Sydney be empowered to sign and execute such document, instrument or writing on behalf of either party as may be necessary to give full force and effect to orders herein.

(15)That each party has liberty to apply in relation to the implementation of these orders on giving the other party and the Court not less than seven (7) days notice in writing.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Steele

Associate

Date:  19 November 2007