FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SYME & WROE | [2008] FMCAfam 536 |
| FAMILY LAW – CHILD SUPPORT – Property – whether various add backs including legal fees should be included in the net pool – departure from child support assessment – application for non-periodic child support – school fees. |
| Child Support (Assessment) Act 1989 Family Law Act 1975 |
| Aleksovski & Aleksovski (1996) FLC 92-705 Brew & Brew (2003) FLC 93-140 Carter (1981) FLC 91-061 C & C [1998] FamCA 143 NCH & RCH (2004) FLC 93-204 C& C (2000) FLC 93-220 DJM and JLM (1998) FLC 92-816 F & S [2003] FMCAfam 531 Gollings & Scott (2007) 37 Fam LR 428 Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93-143 In the Marriage of Clauson (1995) FLC 92-595 In the Marriage of Ferraro (1993) FLC 92-335 In the Marriage of Lee Steere (1985) FLC 91-626 In the Marriage of Gyselman (1992) FLC 92-279 Jones & Dunkel (1959) 101 CLR 298 K v K, unreported 2005, 30 August 2005 Mee v Ferguson (1986) FMC 91-716 Norbis and Norbis (1986) 161 CLR 513 AJO & GRO (2005) FLC 93-218 Parshen & Parshen (1996) FLC 92-720 Pierce & Pierce (1999) FLC 92-844 Sippel & Sippel [2004] FamCA 201 Townsend & Townsend (1995) FLC 92-569 Williams v Williams (1985) 10 Fam LR 355 Williams & Williams [2007] FamCA 313 |
| Applicant: | MR SYME |
| Respondent: | MS WROE |
| File number: | SYC 3519 of 2007 |
| Judgment of: | Sexton FM |
| Hearing dates: | 29 and 30 January 2008 |
| Date of last submission: | 30 January 2008 |
| Delivered at: | Sydney |
| Delivered on: | 3 June 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr John Lloyd |
| Solicitors for the Applicant: | Stuart Fowler and Partners |
| Counsel for the Respondent: | Mr Peter Batey |
| Solicitors for the Respondent: | Maclarens Solicitors |
THE COURT ORDERS THAT:
Within 14 days, the wife sign documents and take all necessary steps to transfer to the husband all Telstra shares in which she holds an interest.
Within 14 days, the parties do all things necessary to authorise the payment of funds held in trust on their behalf by Maclarens Solicitors, being the net proceeds of sale of the former matrimonial home and of the parties’ investment properties, as follows:
(a)In payment of $104,344.40 to the husband;
(b)In payment of $803,497.60 to the wife;
(c)In payment of any balance to the wife and the husband such that the wife receives 62% and the husband 38% of the total net pool, having regard to the assets each will receive set out in paragraphs 84 and 85 of the Reasons for Judgement.
Except as otherwise provided in these orders, the husband and the wife retain all other items of property currently in the possession or control of each of them respectively, including but not limited to their superannuation entitlements.
Except as otherwise provided in these orders, the husband and the wife remain liable for any debts, howsoever arising, in their own name at the date of these Orders and in this respect…
Continue reading Syme and Wroe
Sign in free to access the full text
- AGLC
- Syme and Wroe [2008] FMCAfam 536
- Case
- [2008] FMCAfam 536
- Decision Date
CaseChat Overview and Summary
The reasoning of the court was grounded in established principles from previous case law, such as DJM & JLM and NCH & RCH, which provided frameworks for considering legal fees and other expenditures in the asset pool. The court exercised its discretion, considering the specific circumstances of the case, and ultimately decided against adding back the wife's share sales and the husband's legal fees to the asset pool. The court ordered the transfer of specific assets between the parties and outlined payment schedules for various expenses and liabilities. The final orders included directives for the division of assets, the payment of specific amounts to each party, and the handling of child-related expenses and child support obligations.
Orders
Orders of the court
1.
Within 14 days, the wife sign documents and take all necessary steps to transfer to the husband all Telstra shares in which she holds an interest.
2.
Within 14 days, the parties do all things necessary to authorise the payment of funds held in trust on their behalf by Maclarens Solicitors, being the net proceeds of sale of the former matrimonial home and of the parties’ investment properties, as follows:
(a) In payment of $104,344.40 to the husband;
(b) In payment of $803,497.60 to the wife;
(c) In payment of any balance to the wife and the husband such that the wife receives 62% and the husband 38% of the total net pool, having regard to the assets each will receive set out in paragraphs 84 and 85 of the Reasons for Judgement.
3.
Except as otherwise provided in these orders, the husband and the wife retain all other items of property currently in the possession or control of each of them respectively, including but not limited to their superannuation entitlements.
4.
Except as otherwise provided in these orders, the husband and the wife remain liable for any debts, howsoever arising, in their own name at the date of these Orders and in this respect shall indemnify, keep indemnified and hold harmless the other from any liability in relation thereto.
5.
In the event the husband or the wife refuses or neglects to comply with any of the Orders herein, the Registrar of this Court at its Sydney Registry be appointed pursuant to section 106A of the Act to execute, in the name of the husband or the wife as the case may be, all deeds and instruments necessary to give effect to the orders herein, or any of them, and do all acts and things necessary to give validity and operation to the said deeds and instruments.
6.
The husband’s application for departure from the current child support assessment be dismissed.
7.
Until each child completes his secondary education, or attains the age of 18 years, whichever is the later, the husband be responsible for the children’s private health cover.
8.
Pursuant to s.124 of the Child Support (Assessment) Act 1989 the husband pay to the wife 75% of the following expenses of the children relating to their attendance at [X] from 1 January 2008 until each child completes his schooling:
(a) Tuition fees;
(b) Local excursion fees;
(c) Uniform costs including sports uniforms, school shoes and sports shoes;
(d) Other compulsory expenses relating to the children’s attendance at the school;
(e) Extra curricular fees including costs of equipment required for those extra curricular activities, provided that the parties have agreed in writing to the child enrolling in such extra curricular activity.
9.
The payments referred to in Order (8) not to be credited against any administrative assessment for child support for which the husband is responsible to make payment.
10.
The payments referred to in Order (8) not be used by either party as a basis for departure from any Child Support Agency assessment including as a non-agency payment.
11.
The husband pay child support in accordance with the Child Support Agency’s assessment from 1 January 2008, such assessment to be re-calculated from 1 January 2008 to exclude any component for school fees or school related expenses.
12.
Order (8) and (11) be implemented as follows:
(a) The wife forthwith provide the husband with written confirmation of the account name, BSB and account number into which she requires the funds due to her to be paid;
(b) The wife forthwith provide the husband with copies of invoices, receipts relating to expenses listed in Order (8) from 1 January 2008 and the husband to pay the wife the amount owed to the wife to give effect to Order (8) within a further 14 days;
(c) The wife otherwise forward a copy of invoices or receipts (if already paid) within 7 days of her receipt of such invoices or receipts relating to expenses listed in Order (8);
(d) The husband transfer/deposit the amount due to the wife’s account within 14 days of receipt of invoices or receipts;
(e) The husband forthwith serve a sealed copy of these Orders on the Registrar of the Child Support Agency with a request that his periodic child support liability be re-calculated from 1 January 2008 in accordance with these Orders as soon as practicable.
13.
All existing applications be otherwise dismissed save as to any application for costs by either party.
14.
All exhibits tendered in these proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
(c) Shares sold by the wife after separation. In her Financial Statement sworn in January 2008, the wife deposed to selling shares in St George and Macquarie Bank in the previous 12 months, with a value of $25,328. The wife says she used the funds to meet necessary expenses for herself and the children. Although the husband’s counsel initially submitted this amount should be notionally added back to the net pool, counsel did not press the submission once the wife gave evidence as to how the funds were applied. I agree with counsel’s position. I do not find a basis to justify adding back the $25,328 the wife received on sale of shares after separation. In relation to (d), (e) and (f), the wife’s counsel submits the court should exercise its discretion to include notional assets on the husband’s side of the ledger. The Full Court in AJO & GRO [4] referred to 3 categories of cases where it is appropriate to notionally add back to the pool of assets. They are: [4] (2005) FLC 93-218 at paragraph 30a)Where the parties have expended money on legal fees [DJM and JLM (1998) FLC 92-816]; b)Where there has been a premature distribution of matrimonial assets [Townsend and Townsend (1995) FLC 92-569]; and c)In the circumstances outlined by Baker J in Kowaliw and Kowaliw (1981) FLC 91-092. (d) Husband’s paid legal fees. At the date of hearing, the husband had paid $57,139 towards legal fees, approximately $26,600 of which was owed on his Visa credit card. The husband says he paid the majority of the $57,139 by credit card and repayments on his credit card have been paid from his income. The husband’s counsel argues that it would be inappropriate to add back the fees in these circumstances. The wife’s counsel contends the paid legal fees should be added back. Otherwise there is prejudice to the wife who has not yet paid any of her legal fees. The Full Court in the 1998 decision of DJM & JLM[5] held that the normal approach ought to be to add legal fees already paid back to the pool. The Full Court held that failing to add back amounts spent by parties on legal costs has the effect of defeating the policy under s.117 of the Act which provides for each party to pay his or her own legal costs. [5] (1998) FLC 92-816 The Full Court in the 2004 decision of NCH & RCH[6] confirmed that the Court has a discretion as to whether or not to include paid legal fees in the pool, but that the court must have regard to the source of the funds for the payment of the fees.[7] The Full Court said that if the funds used were in existence at separation, then they should be added back and any debt incurred to pay the fees should be brought to account. If however, the funds used to pay legal fees were accumulated after separation, the fees would ordinarily not be added back and any liability incurred to meet those fees would not be taken into account. The Full Court in Gollings & Scott [8] approved this approach. [6] (2004) FLC 93-204[7] At page 79,322 [8] (2007) 37 Fam LR 428