Spier and Spier
[2012] FMCAfam 65
•14 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SPIER & SPIER | [2012] FMCAfam 65 |
| FAMILY LAW – Parenting – property – child maintenance – undefended final hearing – no appearance by applicant husband – husband now resident in United Arab Emirates. |
| Family Law Act 1975, ss.4, 55A, 60CA, 60CC, 61B, 61C, 61DA, 62B, 64B, 65DAA, 65DA, 66B, 66C, 66E, 66F, 66G, 66H, 66J, 66K, 66L, 66P, 66R, 69E, 75, 79, 106A. Family Law (Child Abduction Convention) Regulations 1986 (Cth) |
| In the Marriage ofHickey (2003) 30 Fam LR 355; (2003) FLC 93-143 In the Marriage of Pierce (1998) 24 Fam LR 377; (1998) FLC 92-844 Newlands & Newlands [2007] FamCA 168; 37 Fam LR 103 |
| Applicant: | MR SPIER |
| Respondent: | MS SPIER |
| File Number: | SYC 2781 of 2010 |
| Judgment of: | Monahan FM |
| Hearing date: | 17 October 2011 |
| Date of Last Submission: | 17 October 2011 |
| Delivered at: | Sydney |
| Delivered on: | 14 February 2012 |
REPRESENTATION
| Counsel for the Applicant: | Not applicable |
| Solicitors for the Applicant: | Self-represented litigant |
| Counsel for the Respondent: | Ms Bridger |
| Solicitors for the Respondent: | Jo-Anna F S Moy, Solicitor |
ORDERS
Property
Pursuant to ss.79 and 66P of the Family Law Act 1975 (Cth) (“the Act”), MR SPIER (“the husband”) do all acts and things and execute all documents as may be necessary to transfer to MS SPIER (“the wife”) all of his right, title and interest in the property known as and situated at Property M, [M], NSW, being the whole of the land comprised in Folio Identifier [omitted] (“the former matrimonial home”) within eight (8) weeks of the date of these Orders.
Simultaneously with the transfer referred to in paragraph one (1) herein, the wife do all acts and things and execute all documents necessary to indemnify the husband in respect of the mortgage secured over the former matrimonial home and all taxes and rates levied against it.
Otherwise than as provided for in these Orders, each party be solely entitled, to the exclusion of the other, to all property (including choses-in-action) in the possession and control of such party as at the date of these Orders (the furniture, personal possessions and like chattels in the former matrimonial home being deemed to be in the possession of the wife) and each party forego any claims they may have to any superannuation benefits belonging to or earned by the other.
Parenting
The wife have sole parental responsibility for the long-term care, welfare and development of [X], born [in] 1999, [Y], born [in] 2001, and [Z], born [in] 2006 (“the children”).
The children live with the wife.
The children spend time with the husband when he is in Australia as follows:
(a)In weeks one (1) and two (2), for three (3) hours a day on four (4) days during that fortnight; and
(b)In weeks three (3) and four (4) overnight on two (2) days during that fortnight.
The wife facilitate the children communicating with the husband by telephone or Skype on Fridays at 7:30pm.
The husband sign passport applications for the children upon request by the wife.
The wife notify the husband of any medical or other emergency affecting the children as soon as practicable.
The wife forward copies of the children’s school reports and any achievement awards to the husband by email sent to his last known email address.
In the event that either party fails, refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, then, pursuant to s.106A, a Registrar or Deputy Registrar of the Federal Magistrates Court of Australia is hereby appointed to execute all deeds, documents and instruments in the name of the defaulting party and to do all such acts and things necessary to give validity and operation to such deeds, documents and instruments.
Subject to paragraph 13 herein, all extant applications be otherwise dismissed.
AND THE COURT DIRECTS THAT:
The wife cause a copy of the orders made today to be forwarded to the husband at his last known email or residential address.
AND THE COURT NOTES THAT:
(A)These Orders were made following an undefended Final Hearing on 17 October 2011.
(B)Pursuant to s.66R of the Act, 25% of the net value of the husband’s right, title and interest in the former matrimonial home which is to be transferred to the wife under paragraph one (1) herein is to be taken as being paid to the wife by way of lump sum child maintenance, with the remainder of the net value of the husband’s interests being transferred to the wife by way of property settlement.
(C)Pursuant to ss.65DA(2) and 62B of the Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Spier & Spier is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2781 of 2010
| MR SPIER |
Applicant
And
| MS SPIER |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings were commenced by MR SPIER (“the husband”) against MS SPIER (“the wife”). Somewhat unusually, the husband did not appear at the Final Hearing on 17 October 2011. For the reasons I gave on that day and refer to below, I agreed to the wife’s request to allow the Final Hearing to proceed on an undefended basis.
In his Initiating Application filed on 7 May 2010, the husband sought various parenting and property orders under the Family Law Act 1975 (“the Act”). The husband’s application was substantially opposed by the wife and she sought different parenting and property orders. In addition, the wife sought child maintenance orders.
The wife was represented by Ms Bridger of Counsel at the Final Hearing.
On the day of the Final Hearing, the husband was called outside the Court at 10:00am, 10:34am and as late as 11:38am but did not answer any of these calls. Despite trial directions having been made, I note that the husband did not provide the Court with a case outline document or pay the relevant hearing fees. He did, however, file a brief updating trial affidavit and an updated financial statement.
During the course of the proceedings, the husband had been legally represented. However, in accordance with reg.9.03 of the Federal Magistrates Court Rules 2001, the husband’s solicitor, Mr King, filed a Notice of Intention to Withdraw as Lawyer on 7 October 2011.
When the matter was first called at the commencement of the Final Hearing, Mr King appeared as a courtesy to the Court in order to file a Notice of Withdrawal as Lawyer and to update the Court as to the husband’s non-attendance at the Final Hearing. Mr King was subsequently excused.
Before being formally excused, Mr King tendered a letter dated 26 September 2010 from the husband’s employer to the husband which stated as follows:
“With regards to your request for leave application, I regret to inform you that your request cannot be accommodated at this point of time due to the current work load within Operations department.
I hope you understand the current situation and postpone your holiday plans accordingly.”[1]
[1] This letter was marked as Exhibit “1”.
It is concerning that this letter makes no reference to the husband’s need to return to Australia for the purpose of Court proceedings. Furthermore, these Court proceedings have been brought by the husband’s own application and specifically listed for Final Hearing on a priority basis due to his need to travel from the United Arab Emirates (“UAE”).
I indicated before commencing the Final Hearing that I was satisfied that the husband was aware of the proceedings and had clearly, for whatever reason, decided not to participate. The Court is satisfied that the husband’s failure to fully comply with trial directions is also indicative of his intentions with regards to his non-prosecution of his application.
As stated, counsel for the wife, Ms Bridger, sought my leave to proceed with the Final Hearing on an undefended basis. That leave was granted and the Final Hearing subsequently took place for most of that day.
Background
These proceedings first came before me in my duty list on 22 June 2010, on which occasion I made orders for the parties to attend a Conciliation Conference on 23 August 2010 and for the wife to file her responding material by 6 July 2010.
Unfortunately, the parties were unable to resolve their financial dispute at the Conciliation Conference before Registrar McNamara and the matter was listed to return before me on 22 November 2010. On that occasion, I was asked to list the matter for Final Hearing on a priority basis as the husband would be flying in from the UAE and needed certainty that the matter would be reached that day. Consequently, I listed the matter on a priority basis for two days commencing on 17 October 2011 and made appropriate trial directions, including orders for a family report to be prepared and released to the parties six weeks before the Final Hearing. I also made orders for disclosure between the parties and, having heard nothing to the contrary since, I assume that this has occurred or is not pressed.
A divorce application was also filed by the husband on 29 September 2010, to which the wife filed a response on 27 October 2010. It appears that on 16 November 2010 the divorce application came before Registrar Davis who then adjourned it to 2 December 2010 as certain criteria had not been met. On 2 December 2010, Registrar Cater-Smith granted the divorce pursuant to s.55A(1)(b)(ii) of the Act and made the following note on the file:
“The arrangements for the children so far as contact and c.s.[sic] are totally unsatisfactory but the matters of property and parenting are listed for hearing before the FMC on 17-18 Oct 2011.”
A family report was subsequently prepared by Ms F, family consultant, in accordance with my orders and released by me on 25 August 2011 (“the Family Report”). It is clear from a reading of the Family Report that the parties had reached agreement with respect to their parenting dispute by the time the interviews were conducted. This will be discussed further shortly.
Relationship history
The wife’s case outline document sets out the following chronology regarding the parties’ relationship history:
·[Date omitted] 1971: Wife born;
·[Date omitted] 1969: Husband born in South Africa;
·1978: Husband comes to Australia;
·August 1996: Husband purchases unit at Property K, [K], for approximately $140,000.00; encumbered by a mortgage;
·[Date omitted] 1997: Parties marry; wife is self employed as a [omitted]; husband is employed as a [omitted];
·August 1996 – 1998: Parties live rent free in a granny flat at home of wife’s parents;
·1998: Parties move to live in unit at [K];
·[Date omitted] 1999: [X] born;
·October 1999: Wife closes her [business] and finds alternate work as [omitted] working three days a week;
·November 1999: Unit at [K] sold for $215,000.00; parties purchase unit at Property C, [C], for $290,000.00 financed by sale proceeds of [K] unit and loan of $273,000.00;
·December 1999: Wife finds alternate [omitted] employment working two days a week;
·[Date omitted] 2001: [Y] born;
·August 2001: [C] unit sold for $387,000.00;
·November 2001: Parties purchase former matrimonial home at Property M, [M], for $480,000.00; financed partly by net sale proceeds of [C] unit and loan of $450,000.00; sale proceeds of [C] also applied to finance renovations; husband takes six months off work to carry out renovations and wife asserts that during that time she is the sole income earner for the family;
·May 2002: Husband’s parents lend parties $30,000.00 to complete the renovations to the former matrimonial home; parties subsequently refinance their mortgage and borrow additional $30,000.00 to repay husband’s parents; wife changes employment and asserts that she initially works three days a week then increases her work to four days a week;
·July 2002: Husband commences work as self employed [omitted];
·July 2004: Parties purchase investment property at [M] for $240,000.00; husband borrows $270,000.00 to finance purchase and wife guarantees the loan;
·September 2005: Wife opens [business omitted] at [M] and asserts she borrows $5,500.00 for her brother to assist with establishment costs and cover shortfall between income and family expenses;
·[Date omitted] 2006 : [Z] born;
·August 2006: Husband obtains contract to work in Dubai, UAE and works there for 9 months; wife asserts husband remits approximately $4,000.00 a month to wife to assist with paying mortgage and paying family expenses;
·Aug 2006: Wife asserts family car breaks down and that her brother lends her $3,500.00 to pay for repairs;
·April 2007: Husband returns to Australia and parties borrow $9,000.00 to pay arrears of mortgage;
·June 2007: Husband obtains three month contract to work in Dubai;
·September 2007 : Husband returns to Australia;
·July 2008: Husband obtains further contract to work in Dubai as a [omitted];
·August 2008: Parties refinance loans secured over former matrimonial home and investment property and increase loan to purchase family car; husband leaves for Dubai;
·17 Aug 2008: Date when husband asserts separation occurred;
·December 2008: Husband returns to Australia for two weeks;
·June 2009: Husband briefly returns to Australia;
·23 June 2009: Wife asserts husband sends wife $3,617.00 and informs her that he will not be sending any more money;
·July 2009: Wife receives letter from husband’s solicitor that asserts that the parties’ marriage has irretrievably broken down;
·July 2009: Wife asserts separation occurs;
·June - October 2009: Wife asserts husband sends her $1,300.00 a month;
·November 2009: Investment property sold for $275,000.00; wife asserts there is a shortfall in monies owed to bank and that her brother lends her $5,000 to make up the shortfall;
·Early 2010: Wife applies for an administrative assessment of child support against husband;
·9 February 2010: Assessment of child support for the period 8 January 2010 to 7 April 2011 issues and husband liable to pay $541.00 per month; wife asserts husband fails to make any payments of child support;
·18 January 2010: Child support assessment ends because the husband as paying parent ceases to be a resident of Australia and UAE is not a reciprocating jurisdiction under Australian law;
·2 December 2010: Parties divorce; and
·April 2011: Husband remarries.
Proposals and orders sought
In his Initiating Application, the husband sought final orders to achieve the following outcome:
·the parties’ children, namely, [X], born [in] 1999 (“[X]”), [Y], born [in] 2001 (“[Y]”), and [Z], born [in] 2006 (“[Z]”), (or collectively “the children”) live with the wife;
·the children communicate with the husband via Skype at defined times each week;
·the children spend time with the husband when he is in Sydney;
·the parties arrange a valuation for the property at Property M, [M] (“the former matrimonial home”);
·the wife pay the husband an amount equal to half of the difference between the valuation report figure and the mortgage over the former matrimonial home with Westpac and the husband simultaneously do all things to transfer his interest in the former matrimonial home to the wife;
·the wife thereafter indemnify the husband with respect to the mortgage and the husband lodge a caveat on the former matrimonial home until such time as the Westpac mortgage is discharged;
·alternatively, the former matrimonial home be sold and the net proceeds be equally divided between the parties;
·various restraints and related orders be put in place in relation to the former matrimonial home; and
·each party be declared the sole owner of all real and personal property held in their respective names, including superannuation.
The wife’s proposal was reflected in her Minute of Proposed Orders (the “Minute”) which was marked as Exhibit “RW1”. The Minute stated the following:
“A. PROPERTY ORDERS
1.That within 8 weeks of the date of the orders the husband do all acts and things and execute all documents and writings necessary to transfer to the wife all of his right, title and interest in the property at Property M being the whole of the land comprised in Folio Identifier [omitted].
2.That simultaneously with the transfer referred to in Order 1 above the wife do all acts and things and execute all documents and writings necessary to indemnify the husband with respect to the mortgage secured over the property at Property M and all taxes and rates levied against the property.
3.That otherwise than as provided for in these orders each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession and control of such party as at the date of these orders (the furniture, personal possessions and like chattels in the real property being deemed to be in the possession of the wife) and each party forego any claims they may have to any superannuation benefits belonging to or earned by the other.
4. S.106A (usual order) [handwritten on document]
B.Child Maintenance
4.That pursuant to section 66G of the Family Law Act 1975 an order that 20% of the net value of the husband’s right, title and interest in the property at Property M be paid to the wife by way of lump sum child maintenance.
C.Parenting Orders
5.That the wife have the sole parental responsibility for the long term care, welfare and development of the three children namely [X] born [in] 1999, [Y] born [in] 2001 and [Z] born [in] 2006.
6.That the children live with the mother.
7.That the children spend time with the father when he is in Australia as follows:
(i) in weeks one and two, for three hours a day on four days during those weeks;
(ii)in weeks three and four, overnight on two days during those weeks.
8.That the father be allowed to communicate with the children by telephone or Skype on a Friday at 7.30 pm.
9.That the father will sign a passport application for the children upon the request of the mother.
10.That the mother shall forthwith notify the father of any medical or other emergency affecting the children.”
Documentation and evidence
The husband presumably relies on the following documentation filed on his behalf:
·Affidavit affirmed on 2 May 2010 and filed on 7 May 2010;
·Financial Statement affirmed on 2 May 2010 and filed on 7 May 2010;
·Further Financial Statement affirmed on 19 September 2011 and filed on 23 September 2011; and
·Further Affidavit affirmed on 19 September 2011 and filed on 23 September 2011.
The wife relies upon the following:
·Affidavit sworn and filed on 5 July 2010;
·Financial Statement sworn and filed on 23 August 2010;
·Affidavit of Ms Jo-Anna Moy sworn on 13 October 2011 and filed on 14 October 2011;
·Further Affidavit sworn on 13 October 2011 and filed on 14 October 2011;
·Financial Statement sworn on 13 October 2011 and filed on 14 October 2011; and
·Case Outline document dated 14 October 2011.
The wife, through Ms Bridger, also provided the Court with a Balance Sheet which was marked as Exhibit “RW2’ and, as stated, a Minute of proposed orders which was marked as Exhibit “RW1”.
In addition to the affidavit evidence filed by each party, the wife gave oral evidence and answered a number of questions from the Bench.
The wife did not require the family consultant, Ms F, to be cross-examined in relation to the Family Report.
Family Report
As stated, Ms F prepared a Family Report in this matter and she indicated that the parties had reached an agreement regarding their parenting dispute during the course of the family report interviews.
The interviews for the Family Report took place on 8 August 2011. The husband did not choose to return to Australia for the interviews and was interviewed by Ms F by telephone. This in turn limited the report in some respects as observations between the husband and children could not be carried out.[2]
[2] Family Report, 18 August 2011, paragraph 2.
Ms F provides the following recommendations at the end of the Family Report:
“37. It is recommended that Mr Spier seeks the help of a psychologist and/or family support program when in Australia to help him with ideas to facilitate the development of his relationship with his children and to assist him to be pro-actice in focussing on the chidlren’s needs, feelings and experience. Helpful services include: Keeping Kids in Mind ph: 1800 554 646, The Junction Neighbourhood Centre Family Support Service ph: 02 9349 8200, Maroubra. Other services can be found through the local Council.
38.Consistent weekly telephone and Skype calls by the father will help the children to begin to relate more comfortably with Mr Spier. It may help if Mr Spier were to begin sending the children letters or cards as well. Skype will be especially helpful to [Z] to not only hear, but also to see, his father before he spends time with him.
39.It is recommended that Mr Spier speak to Ms Spier, and after discussion with her, that he speak to the children about his new marriage in order to re-build their relationship on a firmer ground of trust and openness.
40.It is recommended that Mr Spier comes to Australia on his own, at least for this first visit, to see the children. It is suggested that he ascertains the children’s responses to the news about his new marriage (and his wife’s children), before he considers introducing the children to his new wife and family.”
While I note that Ms F was satisfied that the “proposed agreement … is fully congruent with the views and needs of the children” [3], she indicated that the main impediment to the success of the plan was “whether the father will comply with it and come to Australia”.[4]
[3] Ibid, paragraph 31.
[4] Ibid, paragraph 35.
I also note that Ms F did not make any recommendation regarding the allocation of parental responsibility.
Issues
The following issues were in dispute at the Final Hearing:
(a)Parenting: whether there should be any order allocating parental responsibility?
(b)Child Maintenance: whether the husband should pay the wife lump sum child maintenance and, if so, whether such should be satisfied by an order that the husband transfer 20% of the net equity in the former matrimonial home to the wife; and
(c)Property: whether the husband should transfer his interest in the former matrimonial home to the wife or whether the wife should pay to the husband a sum representing 50% of its value.
Law and discussion
The Court is asked to make parenting, property and child maintenance orders in relation to these proceedings. I note that the parties are now in substantial agreement in respect of the parenting orders.
Parenting
All parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (“the Act”). Parenting orders are defined in s.64B of the Act and provide for, inter alia:
·where a child is to live;
·the time a child is to spend with another person; and/or
·otherwise allocate parental responsibility in relation to a child.
Section 60CA of the Act makes it clear that, for the purpose of making a parenting order, the Court must regard the best interests of a child, or the children in this case, as the paramount consideration. What is considered to be in the best interests of children in parenting disputes depends on the particular circumstances in each case; different circumstances require different resolutions.
That said, to determine the best interests of a child, the Court must consider the primary and secondary considerations under s.60CC of the Act. These specific provisions will be examined in light of the evidence shortly.
Parental responsibility
Section 64B(2) of the Act stipulates that a parenting order may include the allocation of parental responsibility for a child. That order “may deal with the allocation of responsibility for making decisions about major long term issues in relation to a child”.[5] In the absence of a parenting order, s.61C of the Act stipulates that “each of the parents of a child who is not 18 has parental responsibility for the child”.
[5] Section 64B(3) of the Act.
Section 61B of the Act states that parental responsibility “means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. This not only includes those duties and responsibilities relating to such matters as health and education, but also the “general direction in life that is so important for children in teenage years”.[6]
[6] Lindell & Ranteri [2010] FamCA 52 at [31] (per Cronin J).
In s.4 of the Act, the relevant definition of what the law expects of parents in relation to this decision-making states:
“‘major long-term issues’, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)the child's education (both current and future); and
(b)the child's religious and cultural upbringing; and
(c)the child's health; and
(d)the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.”
Section 61DA of the Act requires the Court to presume that it is in the best interests of a child for his or her parents to have equal shared parental responsibility.
Section 61DA(2) of the Act makes it clear that the presumption does not apply if there are reasonable grounds to believe that there has been abuse of a child or family violence.
In addition, under s.61DA(4) of the Act, the presumption may be rebutted if its application could be contrary to a child’s best interests. Those interests are determined by reference to the matters in s.60CC of the Act in light of the evidence. If the presumption of equal shared parental responsibility is not applied, or is rebutted, then the Court must still make an order which is in the best interests of the child, again, taking into account the considerations set out in s.60CC of the Act.
In this case, the husband does not seek any order for parental responsibility. In contrast, the wife seeks an order for sole parental responsibility. As stated, Ms F makes no specific recommendation in respect of the allocation of parental responsibility. This is perhaps not surprising given the facts of this case.
The effect of the Court not making an order for parental responsibility would be that parental responsibility could be exercised by both parents either jointly or independently. Given the circumstances of this case, I am satisfied that such an outcome would not be in the best interests of the children.
Consequently, the Court is faced with the choice of whether it should make an order for equal shared parental responsibility or an order for sole parental responsibility. If the Court considered that the latter was in the best interests of the children, it is possible that the Court could order that one or more aspects of parental responsibility be allocated to one parent alone and the remaining aspects either subject to no order or an order for equal shared parental responsibility. Such possibilities were discussed by the Full Court of the Family Court in Newlands & Newlands [2007] FamCA 168; 37 Fam LR 103.[7]
[7] Newlands & Newlands [2007] FamCA 168 at [84]-[91] (per Bryant CJ, Finn & Boland JJ).
Given the facts of this case and, in particular, the lack of communication between the parties and the husband’s disengagement from the children, it is difficult for the Court to view an order for equal shared parental responsibility as being in the children’s best interests.
Equal time or substantial and significant time
If a parenting order is to provide for a child’s parents to have equal shared parental responsibility, then the Court is required under s.65DAA of the Act to consider whether a child’s best interests would be served by making an order that a child spend equal time,[8] or, alternatively, substantial and significant time,[9] with each of a child’s parents.
[8] Section 65DAA(1) of the Act.
[9] Section 65DAA(2) of the Act.
Either outcome requires the Court to consider whether a child spending equal time, or substantial and significant time in lieu, with each parent would be in the “best interests of the child” and “reasonably practicable” given the circumstances.
In this case, neither party seeks orders for the children to spend equal time, or substantial and significant time, with the husband. Such is clearly not practicable given the husband’s residence in the UAE.
Best interests of a child
As stated previously, the Court is under an obligation to make parenting orders that it determines are in a child’s best interests. For this purpose, the Court will now turn to consideration of the factors in s.60CC(2), (3) and (4) of the Act in the context of this case.
Section 60CC(2)(a): The benefit of the child having a meaningful relationship with both of the child’s parents.
I am satisfied on the evidence before me that both parties seek an outcome whereby the children will have a meaningful relationship with the other parent. That said, the husband’s decision to relocate himself to the UAE and form a new family unit will present on-going challenges in his ability to maintain any meaningful relationship with the children.
I note that at paragraphs 35 to 36 of the Family Report, Ms F states:
“35. The main impediment that will get in the way of the agreement of the parents is whether the father will comply with it and come to Australia. Mr Spier needs to understand the consequences for the children if he does not come to Australia. The impact on the children, especially [Y] and [X], if they do not see their father is likely to be disappointment, loss, rejection and a sense of not being important enough to matter to their father. If this occurs, Ms Spier will need to consider ways in which she can support and help the children to cope with these painful and complex feelings.
36. Irrespective of the agreement reached or orders made, the onus will be on Mr Spier to demonstrate consistency and commitment to the children.”
Section 60CC(2)(b): The need to protect the child from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
There are no issues of abuse or harm to children or family violence in this case.
Section 60CC(3)(a): Any views expressed by the child and any other factors such as the child’s maturity or level of understanding the Court thinks are relevant to the weight it should give the child’s views.
There is evidence of the children’s views in the Family Report. At paragraphs 21 to 30 of the Family Report Ms F states:
“21. [Y], aged 10 years and two months, presents as a shy but friendly girl. She is in year four and enjoys school. She said that she likes being creative and writing stories at school. [Y] said that she is good at most things in school.
22. [Y] is protective of her younger brother and she and [X] were able to look after [Z] who was upset when his mother was leaving the childcare room. She said that she looks after him and helps her mother when needed. [Y] said that she feels close to her mother and her extended family. When talking about her ‘Nan’ (paternal grandmother) [Y] said that she is happy to spend time with her and ‘Aunt [first name omitted]’ (Mr Spier’s sister).
23. When drawing her family, [Y] drew her father first and said that she ‘misses Dad a bit’. However, she said that she cannot really ‘remember things that they did together’. [Y] said that she would be happy to see her father and spend time with him when he came to Australia. [Y] said that she has an email address but does not know if her father has her email address. When discussing the possibility of emailing her father, [Y] said that she would like this and that she is ‘happy to talk to Dad on the phone’. She seemed very pleased at the idea of speaking to her father on the telephone when he called the Court. During this conversation, [Y] looked very excited to be talking to her father but was very shy and her responses to his questions were almost monosyllabic.
24. [Y] seems to be aware of her mother’s feelings and has a warm and close relationship with her.
25. [X], aged 12 years and one month, presents as a very reserved and shy boy. He will be going to high school next year and said that his friends will be going to the same school as himself and he is looking forward to it. He said that his favourite subject is science and he enjoys his academic work which he says he is good at. While he is not a ‘sporty kid’, he likes sport.
26. [X] described his family, including his maternal grandparents, as close. He says that he is also close to his ‘Aunt [first name omitted]’ and his paternal grandmother.
27. When discussing his father, [X] said that he was disappointed that his father was not at the Court for the family report interviews and, therefore, that he would not be able to see him. He said that he last spoke to his father on the telephone on his birthday in June 2011 and he would like ‘Dad to call more often’. [X] said that he ‘would like to spend time with him [meaning his father] and get to know him’ and further that, while he ‘can’t really remember what Dad was like’, he would be excited to see him. He said he can only remember that his father sometimes played a bit of ‘rough and tumble’ with him.
28. When [X] was on the telephone to his father at the Court, his shyness was clearly apparent and he held back from speaking to his father while [Y] spoke first. After prompting, he said hello to his father. He looked very pleased to be talking to his father but answered his questions with single words.
29. [Z], aged five years and one month, presents as having a close relationship with his mother and with his brother and sister. [Z] was not interviews because of his young age and because he had been very young when his father first went to Dubai, therefore, has little real knowledge of him.
30. [X], [Y] and [Z] appear to be close and supportive of each other.”
Section 60CC(3)(b): The nature of the relationship of the child with each of the child’s parents and other persons.
Although the relationship between the children and the husband is not ideal, there is evidence that the elder children would be happy to spend time with the husband when opportunities to do so present themselves.
Section 60CC(3)(c): The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent.
Despite the breakdown of the parties’ relationship and the husband’s decision to withdraw financial support for the children, the wife appears committed to fostering a relationship between the children and the husband.
In this respect I note the comments of Ms F in paragraph 34 of the Family Report:
“34. The lack of openness of Mr Spier in relation to his new marriage and his life in Dubai could impact on the arrangements made between Mr Spier and Ms Spier regarding the parenting arrangements. However, it appears from later discussion with Ms Spier that, in spite of this new information about Mr Spier’s marriage, she remains committed to the children being able to have a relationship with their father.”
Section 60CC(3)(d): The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation.
As it would appear that the husband intends to remain living in the UAE, it is not anticipated that there will be any changes to the children’s circumstances in the short-to-medium term.
The effect upon the children of the husband’s new marriage, and their future relationship, if any, with their step-siblings, is unknown.
Section 60CC(3)(e): The practical difficulties and expense of the child spending time with and communicating with each parent, etcetera.
This is a live issue in this case.
Given the overall circumstances, it is only likely that the children will be able to spend time with the husband if he travels to Australia, or funds their travel overseas. The latter may be problematic given the cost. There is also the reality that many countries, like the UAE, are not reciprocating countries relevant to the application of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).
Section 60CC(3)(f): The capacity of each of the child’s parents or other persons to provide for the needs of the child, including emotional and intellectual needs.
Despite the withdrawal by the husband of child support, the wife appears to be coping with the demands of being a single parent.
Section 60CC(3)(g): The maturity, sex, lifestyle and background of the child and either of the child’s parents, any characteristics of the child that the Court thinks are relevant.
There are no specific matters here that assist the Court that have not been already referred to in this decision.
Section 60CC(3)(h): if the child is an Aboriginal child or a Torres Strait Islander child …
This consideration is not relevant to the present dispute.
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
I refer to the comments on this issue made earlier in this decision.
Section 60CC(3)(j): any family violence involving the child or a member of the child's family
This consideration is not relevant to the present dispute.
Section 60CC(3)(k): any family violence order that applies to the child or remember of the child's family …
This consideration is not relevant to the present dispute.
Section 60CC(3)(l): Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
While the Court proposes that any order that it makes be subject to any agreement between the parties that benefits the children, it is clear that the parties will require specific Court orders to assist them in their future parenting.
Despite the husband’s non-participation in the Final Hearing of his own application, the Court is confident that once these legal proceedings are resolved and defined orders are in place, there is a reduced likelihood of any further proceedings in the immediate future. That said, the Court believes the parties should resolve any future difficulties with the assistance of a Family Dispute Resolution Practitioner.
Section 60CC(3)(m): Any other fact or circumstance that the Court thinks are relevant.
There are no other fact or circumstance that has not been already articulated in this decision.
Section 60CC(4) of the Act
The Court is also required under s.60CC(4) of the Act to consider the “extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent”.
I again refer to and reiterate the comments made earlier in this decision.
Child maintenance
Section 66G of the Act gives the Court the power to “make such child maintenance order as it thinks proper”. Generally speaking, a child maintenance order will cease upon a child’s 18th birthday.[10]
[10] See s.66L(3) of the Act.
It is noteworthy that the “paramountcy principle” (ie. the best interests of the children criteria discussed previously in this decision) does not apply to child maintenance cases.[11]
[11] For a discussion see Tobin & Tobin [1999] FamCA 446; (1999) FLC 92-848; (1999) 24 Fam LR 635 (per Finn, Kay and Chisholm JJ).
Prior to considering the application of the relevant criteria in light of the evidence in this case, there are a number of preliminary considerations and jurisdictional factors that need to be canvassed
Parents have the primary liability to support children
Pursuant to s.66C(1) of the Act, the primary liability to maintain children rests with the parents. In respect of the appropriate priorities that should be considered in this context, s.66C(2) stipulates the following three (3) rules which apply:
“(2)Without limiting the generality of subsection (1), the duty of a parent to maintain a child:
(a) is not of lower priority than the duty of the parent to maintain any other child or another person; and
(b) has priority over all commitments of the parent other than commitments necessary to enable the parent to support:
(i)himself or herself; or
(ii)any other child or another person that the parent has a duty to maintain; and
(c) is not affected by:
(i)the duty of any other person to maintain the child; or
(ii)any entitlement of the child or another person to an income tested pension, allowance or benefit.”
Jurisdiction
Section 66E of the Act prohibits the Court from hearing a child maintenance application if the matter is one which should be assessed administratively under the relevant child support legislation.
In this case, the relevant child support legislation has no application as the husband is no longer an Australian resident. This is confirmed in correspondence the wife and her solicitor have received from the Child Support Agency and, in particular, their letter dated 14 October 2011 (see Exhibit “RW10”).
According to s.66F(1) of the Act, an application for child maintenance may be sought by: either or both of the child’s parents, the child, a grandparent of the child or any other person concerned with the care, welfare or development of the child.
Clearly the wife is an eligible applicant in this case.
In addition, s.69E of the Act requires an Australian connection for jurisdictional purposes. In this case both the wife and the children are resident and present in Australia.
Relevant criteria
Section 66H of the Act sets out the approach to be adopted by the Court in child maintenance proceedings:
·firstly, the Court must consider the financial support necessary for the maintenance of a child (this is expanded on in s.66J); and
·secondly, the Court must determine the financial contribution, or respective financial contributions, towards the financial support necessary for maintenance of the child, that should be made by a party, or by parties, to the proceedings (this is expanded on in s.66K).
According to s.66J(1) of the Act, the Court must take the following matters (and no others) into account:
·the primary duty of parents to support their children (discussed above) (see ss.66B and 66J(1)(a));
·the proper needs of the children which includes the children’s ages, education and training and any “special needs” that they may have: (see ss.66J(1)(b) and 66J(2)). In addition, the Court may also take into account the relevant findings of published research in relation to the maintenance of children; and
·the children’s income and capacity to meet their own needs (see ss.66J(1)(c) and 66J(3)). The Court is required to have regard to the capacity of a child to earn or derive an income but to disregard the income of “any other person” (eg a new de facto partner of the parent) unless there are “special circumstances” or any entitlement of the child, or any other person, to an income-tested social security benefit.
Section 66K of the Act sets out the matters which must to be taken into consideration in determining the contribution that a party should make. Apart from considering the parental primary duty (s.66K(1)(a)), the following four specific matters must be taken into account:
·the income, earning capacity, property assets and financial resources of the relevant party or each of the parties (see s.66K(1)(b));
·the commitments of the relevant party, or each of the parties, that are necessary to enable the party to support him or herself or any other child or another person that the person has a duty to maintain (see s.66K(1)(c));[12] in this respect the Court has no information before it as to whether the husband has a “duty” (under the law of the UAE) to support his new wife or her children, although the Court assumes that he is at least under some legal obligation to support his new wife;
·the direct and indirect costs incurred by the parent or other person with whom the children live in providing care for them (see s.66K(1)(d)); and
·any special circumstances which, if not taken into account in the particular case, would result in an injustice or undue hardship to any person (see s.66K(1)(e)).
[12] For a discussion see In the Marriage of Ryan (1988) 12 Fam LR 529; (1988) FLC 91-970.
Section 66K(4) of the Act stipulates that the following two matters must be disregarded by the Court:
·firstly, any entitlement of the children, or the person with whom the children live, to an income-tested social security benefit (see s.66K(4)(a)); and
·secondly, the income, earning capacity, property and financial resources of any person who does not have a duty to support the children, or if so, 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 (see s.66K(4)(b)).
In this case, the Court has before it evidence that the wife is currently meeting all the expenses of the children. This includes their school fees (see Exhibit “RW11”). The wife’s evidence is that she spends $745.00 a week, on average, for the children.[13] This equates to average yearly expenditure of $38,740.00.
[13] See wife’s Financial Statement filed 14 October 2011, Part N.
Although the Child Support Agency have determined that the husband is no longer an Australian resident for child support collection purposes, and most probably is a resident is a resident of the UAE (which is not a reciprocating jurisdiction)[14], they have provided their assessments that would have applied from 8 January 2010 until 7 July 2012 (inclusive).[15] The Agency had determined the following annual rates for the following assessment periods:
·8 January to 7 April 2011: $6,492.00;
·8 April 2011 to 14 June 2012: $5,511.00; and
·15 June 2012 to 7 July 2012: $6,024.00
[14] See Child Support Agency letter dated 14 October 2011 (see Exhibit “RW10”).
[15] Ibid.
Had child support been assessed, it would have been assessed for all three children until 15 June 2017, for [Y] and [Z] until 1 June 2019 and for [Z] until his 18th birthday on [date omitted] 2024. Had child support assessments been made on the basis of the information known to the Child Support Agency when it generated the assessments from 8 January until 7 July 2012, then it is arguable that at least $42,000.00 in child support would have been assessed for the period between 2010 and 2017. Further child support would, of course, still be payable until 2024.
Given all the circumstances it is not unreasonable to assume that the wife would have benefitted by more than $60,000.00 in assessed child support had such been applicable. Moreover, such an estimate is only based on the husband’s current income which, as with the costs of the children, can be expected to increase over time.
Although the wife asserts to child-related expenditure of approximately $39,000 per year, her claim is for a lump sum equivalent to “20% of the net value of the husband’s right title and interest in” the former matrimonial home. If one ignores the wife’s modest superannuation entitlements, such an amount (based on the wife’s submissions) would be approximately $52,687.20 (or 20% x $263,436).
This claim, although realistic in light of the facts, is considerably less than the Court considers will be needed. A lump sum figure of around $75,000.00 would be proper in the circumstances. I also note that the amount sought by the wife is also less than the wife would have received had the Child Support Agency would have collected, had such collection been possible.
Court’s powers
Section 66P of the Act sets out the general powers of Court in relation to child maintenance. These include the power to make an order for:
·a lump sum payment, by instalments or in one amount (see s.66P(1)(a));
·periodic payment (weekly, monthly or yearly) (see s.66P(1)(b));
·the transfer of property (see s.66P(1)(c));
·the payment of an amount ordered be wholly or partly secured (see s.66P(1)(d));
·any necessary instrument be signed or document produced (see s.66P(1)(e)); and
·payment to a specified person, public authority or into court (see s.66P(1)(f)).
In addition, the Court may make:
·a permanent or interim order (s.66P(1)(g));
·an order imposing terms and conditions (s.66P(1)(h));
·an order by consent (s.66P(1)(i));
·any other order that the court considers appropriate (s.66P(1)(j)); and
·an order for child maintenance under “at any time”: (s.66P(1)(k)).
The wife in this case is, of course, seeking that an order be made for the transfer of the husband’s interest in the former matrimonial home pursuant to s.66P(1)(c) of the Act.
Specification in orders
Section 66R of the Act deals with the specification in Court orders concerning payments for child maintenance purposes. In other words, the Court has to ensure that the child maintenance component is expressly set out in the relevant order and differentiated from property orders and spousal maintenance orders.
Constructing a proper order
In this case I am satisfied that there are circumstances that warrant child maintenance being ordered and for that order to be satisfied by a transfer of the husband’s interest in net matrimonial property.
If there was any significant short-fall, then a further lump sum payment would be required. This may be difficult, if not futile, for the wife to enforce given that the husband no longer resides in Australia.
Property
Section 79(1) of the Act provides that the Court may make such orders as it sees fit to alter interests in matrimonial property. The Court’s discretion is not unlimited and must be exercised in accordance with the factors set out in the legislation and, more specifically, in s.79(4) of the Act.
The preferred approach to the exercise of the discretion has been outlined in numerous decisions of the Full Court of the Family Court of Australia (“the Full Court”), such as In the Marriage ofHickey (2003) 30 Fam LR 355; (2003) FLC 93-143.
The preferred approach involves four interrelated steps:[16]
·Step 1: identify and value the parties’ property, liabilities and financial resources as at the date of the hearing;
·Step 2: identify and assess the parties’ “contributions” within the meaning of s.79(4)(a), (b) and (c) of the Act and determine the parties’ contribution-based entitlements expressed as a percentage of the net value of the parties’ property;
·Step 3: identify and assess the relevant matters referred to in s.79(4)(d), (e), (f) and (g) of the Act including, because of s.79(4)(e) of the Act, the matters referred to in s.79(2) of the Act so far as they are relevant, and determine the adjustment, if any, that should be made to the contribution-based entitlements of the parties determined at Step 2; and
·Step 4: consider the effects of the findings of steps 1-3 and resolve what order is just and equitable in all of the circumstances of the case.
[16] L Young & G Monahan, Family Law in Australia, 7th ed, LexisNexis Butterworths, Australia, 2009, pp.614-615.
Step 1: the asset pool
Asserted assets and liabilities
The following table represents the assets and liabilities asserted by each of the parties (including superannuation entitlements):[17]
[17] In the table, ‘H’ refers to property registered in the husband’s name or otherwise legally owned by him or in his possession; ‘W’ refers to property registered in the wife’s name or otherwise legally owned by her or in her possession; and ‘J’ denotes property registered in the joint names of the husband and the wife.
Assets
Valuation
Former matrimonial home (J) – wife asserts value is $850,000.00 and husband asserts value is $800,000.00
To be determined
Mitsubishi Outlander (W) – wife asserts value is $18,000.00 and husband does not assert a value
To be determined
Household contents (W)– wife asserts value is $4,000.00 and husband does not assert a value
To be determined
Household contents (H) – husband asserts value is $20,000.00; wife does not know but accepts husband’s valuation
$20,000.00
Subtotal/Assets
To be determined
Liabilities
Mortgage over former matrimonial home (J) - wife asserts loan outstanding is $511,798.00 and husband asserts that the amount outstanding is $510,000.00[18]
To be determined
Loan over Mitsubishi Outlander (W) – wife asserts loan outstanding is $32,055.00 and husband does not admit or deny
To be determined
Go Mastercard debt (H) – husband asserts amount outstanding is $4,000.00; wife does not know but accepts husband’s assertion
$4,000.00
Westpac Ignite credit card debt (W) – wife asserts amount outstanding is $3,547.00; husband does not admit or deny
To be determined
Debt due to wife’s brother (W) – wife asserts amount outstanding is $77,164.00; husband does not admit or deny
To be determined
Subtotal/Liabilities
To be determined
Superannuation
[A] Superannuation (W) - wife asserts amount outstanding is $29,454.00; husband does not admit or deny
To be determined
Subtotal/Superannuation
To be determined
[18] In his Financial Statement filed on 23 September 2011, the husband asserts that his ½ share of the mortgage due is $255,000.00 which would equate to a total amount outstanding of $510,000.00.
In support of her asserted valuations contained in her Balance Sheet (Exhibit “RW2”), the wife relied on a number of documents that were tendered at the Final Hearing:
·Value of former matrimonial home ($850,000.00): see letter from [omitted] Real Estates Agents dated 12 October 2011 (Exhibit “RW3”);
·Value of Mitsubishi Outlander (wife asserted value was $18,000.00 but I note that the ‘residual’ value is $13,000.00): see ‘payout quote’ obtained from yourlease.com.au dated 11 October 2011 (Exhibit “RW5”);
·Amount outstanding on Westpac Ignite credit card debt ($3,547.00): see Westpac Ignite Credit Card Statement with due date 13 October 2011;
·Outstanding mortgage over former matrimonial home ($511,798.00) being the amount due as at 1 September 2011: see Westpac ‘Rocket Statement’ No. 36 (Exhibit “RW4”);
·Loan over Mitsubishi Outlander (wife asserted amount outstanding was $32,055.00 but I note that the ‘payout figure’ value is $32,080.12): see ‘payout quote’ obtained from yourlease.com.au dated 11 October 2011 (Exhibit “RW5”);
·Debt due to wife’s brother ($77,164.00) see Annexures “A” and “B” to wife’s affidavit filed 14 October 2011; and
·[A] Superannuation held in wife’s name ($29,454.00): see Statement from [A] Superannuation and Investments dated 27 September 2011 (Exhibit “RW7”).
Given that the wife’s valuation evidence is unchallenged, and in the absence of evidence to the contrary, the Court will accept the amounts she asserts in her Balance Sheet (Exhibit “RW2”).
Net value of asset pool
Given the above determinations, the Court finds that the net available property pool is $263,436.00 (excluding superannuation entitlements) and $292,890.00 (including superannuation entitlements). This is calculated as follows:
Assets
Valuation
Former matrimonial home (J)
$850,000.00
Mitsubishi Outlander (W)
$18,000.00
Household contents (W)
$4,000.00
Household contents (H)
$20,000.00
Subtotal/Assets
$892,000.00
Liabilities
Mortgage over former matrimonial home (J)
$511,798.00
Loan over Mitsubishi Outlander (W)
$32,055.00
Go Mastercard debt (H)
$4,000.00
Westpac Ignite credit card debt (W)
$3,547.00
Debt due to wife’s brother (W)
$77,164.00
Subtotal/Liabilities
$628,564.00
Superannuation
[A] Superannuation (W)
$29,454.00
Subtotal/Superannuation
$29,454.00
Net property pool (excluding superannuation)
Assets
$892,000.00
(less) Liabilities
$628,564.00
$263,436.00
Net property pool (including superannuation)
Assets
$892,000.00
(add) Superannuation
$29,454.00
$921,454.00
(less) Liabilities
$628,564.00
$292,890.00
Step 2: contributions
From the evidence, it is clear that the parties have, throughout much of their relationship, specialised their respective roles into that of significant ‘breadwinner’ and significant ‘homemaker and parent’. This is quite a normal and sensible division of labour in our society, that usually advances both the financial prosperity and the overall welfare of the couple and their children. That said, it is clear from the evidence that both parties had periods in and out of the paid workforce or were self-employed.
While there is no presumption that for contribution assessment purposes such specialised roles equalise,[19] an outcome favouring equality is not unusual in cases involving long relationships following an analysis of the evidence relevant to s.79(4)(a)-(c) of the Act.[20] Of course, such an outcome may alter following consideration of the other s.79 factors, in particular s.79(4)(e) of the Act.[21]
[19] In the Marriage ofMallet (1984) 156 CLR 605, In the Marriage of Ferraro (1992) 16 Fam LR 1; (1993) FLC 92-335, In the Marriage of McLay (1996) 20 Fam LR 239; (1996) FLC 92-667.
[20] In the Marriage of McLay (1996) 20 Fam LR 239, at 248-250 (per Nicholson CJ, Fogarty and Dessau JJ).
[21] Ibid, at 250.
The Court is required to consider the parties’ contributions made on and from the commencement of their relationship,[22] during their relationship, and following separation.[23]
Financial and non-financial contributions
[22] In the Marriage of Olliver (1978) 4 Fam LR 360; (1978) FLC 90-499.
[23] In the Marriage of Ferraro (1992)16 Fam LR 1; (1993) FLC 92-335.
It is clear that both parties have made financial and non-financial contributions to the acquisition, conservation and improvement of their matrimonial property. This is particularly so given their mutual investment of their earnings into their property pool and their labours associated with the conservation of the former matrimonial home.
It is also clear from the evidence that the husband made an initial financial contribution of the [K] property that was subsequently sold and the proceeds used towards the financing of the acquisition of the [C] unit. The husband also asks the Court to accept that he brought a Toyota Corolla motor vehicle into the relationship.
Further, it is clear from the evidence that the husband, through the parties’ decision to specialise their respective roles, has been able to contribute significantly more of his income and energy into making relevant financial and non-financial contributions than the wife.
The extent of the husband’s initial contributions may be diminished, of course, by the competing contributions of the wife. As the Full Court stated in the case of In the Marriage of Pierce (1998) 24 Fam LR 377; (1998) FLC 92-844:
“In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution…”[24]
[24] In the Marriage of Pierce (1998) 24 Fam LR 377, at pages 386-387.
In this case, there are circumstances that operate to erode the significance of the husband’s initial contributions. Despite some monies being paid by the husband to the wife following his decision to relocate and live permanently in the UAE, the wife has shouldered the responsibility of meeting the costs of housing and supporting herself and the children.
In his affidavit filed 23 September 2011, the husband asks the Court to take into account that the wife has in more recent times disposed of the Mitsubishi Ute motor vehicle (registration no. [omitted]). The wife argues that the sale was necessary to retard debt. Such an explanation is not unreasonable given the circumstances.
Family contributions as homemaker and parent
As has been previously noted, in addition to the wife’s contributions made pursuant to s.79(4)(a) and (b) of the Act, the Court is satisfied that the wife was the primary homemaker for the parties and the primary carer for the children. She has been solely responsible for the children’s care welfare and development since the husband relocated to the UAE.
Consequently, the Court finds that the wife has made a significant contribution to the family pursuant to s.79(4)(c) of the Act.
Global or asset-by-asset assessment of contributions
Given the length of the parties’ relationship and its history, the ‘global’ approach to the assessment of contributions is the most appropriate to the parties’ circumstances.
Step 3: s.75(2) and related factors
The parties are both aged in their early forties and appear to be in good health.
The Court accepts the wife’s submission that the husband presently enjoys a tax free income that is twice that received by the wife. There is no evidence that this situation is likely to change in the years ahead.
The Court also accepts the wife’s submission that, given the ages of the children and the wife’s sole care of them, she will most likely be precluded from earning any greater income into the years ahead. The wife has only modest superannuation benefits.
In addition to the wife having sole care of the children, she is presently receiving no child support assistance from the husband. Given that he resides, and is likely to continue to reside, in the UAE, there is little likelihood of any child support assessment being met. That said, the Court notes that the wife is also seeking lump sum child maintenance as part of these proceedings.
In light of the above-mentioned circumstances, the Court agrees with the submissions made by the wife that there should be an adjustment her favour pursuant to s.75(2) and related factors.[25] As to the relevant percentage, the Court finds that an adjustment of 20% (as proposed by the wife)[26] is appropriate in all the circumstances.
[25] Wife’s Case Outline document, page 6.
[26] Ibid.
Step 4: justice and equity
Section 79(2) of the Act provides that:
“The Court shall not make an Order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the Order.”
This case concerns a reasonably long marriage where the assets available for distribution are relatively modest.
Overall, the Court is satisfied that on a contributions analysis, the matrimonial property should divided 55% in favour of the wife and 45% in favour of the husband.
In addition, as indicated above, the Court is satisfied that a further adjustment of 20% in the wife’s favour to reflect the considerations in s.75(2) and related factors is warranted. As a result, the wife should receive money or assets to the value of 75% of the overall net property pool and the husband 25%.
Such an adjustment would result in the wife receiving net assets totalling $219,667.50 and the husband notionally receiving $73,222.50. The final outcome, of course, will depend upon the outcome of the wife’s application for child maintenance.
Decision
Parenting orders
Having considered the evidence and submissions in light of the structured discretion in the Act, the Court is satisfied that it is in the best interests of the children for the parenting orders sought by the wife in the Minute to be made on a final basis. I note that with the exception of the issue of parental responsibility, these orders reflect the agreement reached between the parties during the Family Report process.
The Court is also satisfied that it is in the best interests of the children for the wife to have sole parental responsibility for the children. That said, it addition to the order sought in respect of the wife notifying the husband in the event of medical or other emergency, the wife will also be under an obligation to forward copies of the children’s school reports and any achievement awards to the husband by email.
The order sought by the wife in respect of the husband signing any passport application for the children is not unreasonable given the circumstances.
The Court expects the parties to take part in family dispute resolution in the event they are unable to reach agreement should any future dispute in respect of the children arise.
Property and Child Maintenance Orders
As stated, I am satisfied that it would be just and equitable for the net matrimonial property to be adjusted 75% in favour of the wife and 25% in favour of the husband. This will result in the wife receiving net assets totalling $219,667.50 and the husband notionally receiving $73,222.50.
I am also satisfied that it would be proper for there to be a lump sum child maintenance order in the wife’s favour representing a transfer to her of the husband’s 25% of the net matrimonial property.
As to specific orders, the Court will adopt the orders sought in the Minute with some modification.
There will be Orders that the husband transfer to the wife his full right, title and interest in the former matrimonial home at Property M, [M], NSW, and that the wife thereafter indemnify the husband in respect of any mortgages, taxes and rates to which the property may be subject. This transfer will satisfy both the property distribution which the Court has determined that the wife should receive and the lump sum child maintenance that the Court will Order that the husband pay to the wife.
There will be a further Order that the parties will retain all property held in their sole name or in their respective possessions. In this regard, the wife will retain all of the contents of the former matrimonial home.
There will be an Order pursuant to s.106A of the Act, as sought by both parties.
There will also be an Order for the wife to forward a copy of the orders made today to the husband’s last known email or residential address.
Finally, there will be Orders and notations of the Court reflecting this decision.
I certify that the preceding one-hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 14 February 2012
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