Thiess & Laidley
[2024] FedCFamC2F 672
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Thiess & Laidley [2024] FedCFamC2F 672
File number(s): MLC 7981 of 2022 Judgment of: JUDGE GLASS Date of judgment: 30 May 2024 Catchwords: FAMILY LAW – PROPERTY – short marriage – where wife and child have lived overseas since separation Legislation: Child Support Assessment Act 1989 (Cth) s 117
Family Law Act 1975 (Cth) s 79, 81, 90XT, 90XZA, 117B
Family Law (Superannuation) Regulations 2001 pt 6
Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) r 10.17
Cases cited: Best & Best (1993) FLC 92-418
Candle & Falkner [2021] FedCFamC1A 102
Chapman & Chapman (2014) FLC 93-592
Clauson & Clauson (1995) FLC 92-595
Cornett & Hext (2021) FLC 94-067
Dulton & Dulton (2020) FLC 93-984
MH & MZ (2005) FLC 93-226
Kessey & Kessey (1994) FLC 92-495
Kioa v West (1985) 159 CLR 550
Mabb & Mabb & Anor (2020) FLC 93-947
M & M [1998] FamCA 42
Phe & Leng (2019) FLC 93-887
Quincey & Quincey (2024) FedCFamC1A 30
Russo & Wylie (2016) FLC 93-747
Stanford v Stanford (2012) 247 CLR 108
Trevi & Trevi (2018) FLC 93-858
Weir & Weir (1993) FLC 92-338
Division: Division 2 Family Law Number of paragraphs: 61 Date of hearing: 15 & 16 May 2024 Place: Melbourne Counsel for the Applicant: Mr Taghdir Solicitor for the Applicant: Hope Earle Lawyers Counsel for the Respondent: Mr Testart Solicitor for the Respondent: Davison Family Lawyers ORDERS
MLC 7981 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS THIESS
Applicant
AND: MR LAIDLEY
Respondent
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
30 MAY 2024
THE COURT ORDERS THAT:
1.Within 60 days of the date of these Orders ("the date"), the Respondent pay to the Applicant, via her lawyers Hope Earle, the sum of $205,076 ("the Payment").
2.In the event that the Respondent fails to make the Payment to the Applicant pursuant to paragraph 1 herein, the Respondent forthwith do all such acts and sign all such documents as may be required to put the property situate at B Street, Suburb C ("the Suburb C property") on the market for sale ("the Suburb C default sale") and by no later than 14 days following the default on the Payment:
(a)the Suburb C property shall be listed for sale with a real estate agent agreed between the parties;
(b)the listing price for the Suburb C property shall be as agreed between the parties and if there is no agreement the price shall be as determined by the real estate agent;
(c)the Suburb C property be listed for a public auction unless otherwise agreed between the parties; and
(d)the parties engage a conveyancer or solicitor as agreed between them to undertake the conveyancing with respect to the default sale.
3.That upon completion of the Suburb C default sale the proceeds shall be as applied as follows:
(a)firstly, to pay all costs, commissions, expenses and conveyancing fees of the Suburb C default sale;
(b)secondly, to discharge the mortgage affecting the Suburb C property;
(c)thirdly, so much of the Payment that remains outstanding is to be paid to the Applicant, plus interest in accordance with subsection 117B(1) of the Family Law Act 1975 (Cth) (“the Act”) and rule 10.17 of the Federal Circuit and Family Court (Family Law) Rules 2021; and
(d)the balance be paid to the Respondent.
4.That the Respondent be solely liable for and indemnify the Applicant in relation to any capital gains tax liability arising from the sale of the property situate at D Street, Suburb E.
5.Pursuant to section 90XT(1)(a) of the Act , the Applicant be paid a base amount of $74,000.00 from the Respondent’s interest in Super Fund 1 Master Trust (“the Fund”) (Account Name: Mr Laidley, Member Number: …), calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (“the Regulations”) and there be a corresponding reduction in the entitlement the Respondent would have in the Fund but for this Order.
6.The operative time referred to in paragraph 5 is 4 business days after the service of a sealed copy of these Final Orders on the Trustee and Administrator of the Fund, ("the Trustee").
7.That until:
(a)the happening of the establishment of a separate account in the name of the Applicant in the Fund, and the transfer or rolling over into another superannuation fund of the payment split created by paragraph 5; or
(b)the Applicant satisfying a condition of release and being paid the payment split created by paragraph 5; or
(c)the Applicant executing a waiver of rights within the meaning of section 90XZA of the Act regarding the payment split created by paragraph 5;
the Respondent is hereby restrained by himself and/or agents from executing a death benefit nomination in favour of any person or doing any act or thing which would render any part of his interest in the Fund a "non splittable payment" within the meaning of regulations 12, 13 and 14 of the Regulations.
8.That pending the payment in paragraph 5, the Respondent by himself and/or agents be restrained from encumbering, disposing of or otherwise dealing with his interest in the Fund and/or from doing any act or thing which would prevent the Applicant, her heirs, executors, administrators, or nominees from receiving the benefit of the Fund to which she is entitled pursuant to these Orders.
9.That paragraphs 5 to 8 inclusive are binding on the Trustee of the Fund.
10.That the Applicant retain for her sole use and benefit and to the exclusion of the Respondent, all assets in her possession including:
(a)all her bank accounts;
(b)her motor vehicle;
(c)her chattels and personal effects;
(d)her superannuation; and
(e)her partial property settlement totalling $62,500 (being $7,500 received on 3 November 2023, and $55,000 received on 22 February 2024).
11.That the Respondent retain for his sole use and benefit and to the exclusion of the Applicant all assets in his possession including:
(a)the Suburb C property (subject to paragraph 1 herein);
(b)all his bank accounts;
(c)his Motor Vehicle 3;
(d)his Motor Vehicle 1;
(e)his chattels and personal effects; and
(f)his superannuation (subject to paragraph 5 herein).
12.Unless otherwise specified in these Orders and save for the purposes of enforcing any monies due under these or subsequent Orders:
(a)the parties be solely entitled to the exclusion of the other to all property (including choses-in-action) held in their respective names or possession at the date of these Orders;
(b)the parties otherwise forego any claims they may have to any superannuation benefits belonging to or earned by the other;
(c)life insurance policies remain the sole property of the owner named therein;
(d)the parties be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders;
(e)the parties be solely responsible for any liability of whatsoever nature and kind in their respective names; and
(f)any joint tenancies of the parties in any real or personal estate is hereby expressly severed.
13.All extant applications be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:
Ms Thiess and Mr Laidley commenced cohabitation in June 2013. Mr Laidley had asserted in his affidavit that they did so in late 2013, but conceded in cross-examination it would have been mid-2013, around June or July. I accept Ms Thiess’ unchallenged evidence that the parties commenced cohabitating in mid-2013.
The parties married in 2014, and separated in June or July 2018.
They have one child, X, who is now 9 years old.
Arising for determination are the parties’ competing applications for orders altering their interests in property.
Ms Thiess proposes that Mr Laidley pay her the sum of $236,000, and there be a superannuation split from Mr Laidley’s superannuation interest in her favour in the amount of $74,000. She contends that outcome represents a distribution of the parties’ assets such that she retains 40% of their value and Mr Laidley retains 60% of their value.
Mr Laidley proposes Ms Thiess retain $70,000 from the proceeds of sale of a real property in Suburb E, and there be a superannuation split in favour of Ms Thiess in the amount of $25,000. He contends that outcome represents a distribution of the parties’ assets such that Ms Thiess retains 20% of their value and he retains 80% of their value.
The parties rely on the documents identified in their Outlines of Case. Mr Laidley did not pursue his application for a variation to extant parenting Orders. Ms Thiess did not press the relief sought by her for the distribution of the sale proceeds of a property that was sold prior to the final hearing.
STATUTORY FRAMEWORK
Pursuant to section 79 of the Family Law Act 1975 (Cth), I have a discretion to make such order altering the parties’ interests in property as I consider appropriate. I am prohibited from making an order unless I am satisfied, in all the circumstances, it is just and equitable to do so.[1] If I am so satisfied, I am required to consider the matters prescribed by subsection 79(4) of the Act and by the device of paragraph 79(4)(e), relevant matters referred to in subsection 75(2) of the Act.
[1] Family Law Act 1975 (Cth), s 79(2).
PROPERTY INTERESTS
It is necessary to begin by identifying, according to common law and equitable principles, the existing legal and equitable interests of the parties in property.[2] For reasons that follow, those interests comprise the following:
[2] Stanford v Stanford (2012) 247 CLR 108 (“Stanford”) at [37].
Asset O'ship Value Bank Accounts W $340 Motor Vehicle 2 W $12,650 Part Property Settlements (add-back) W $62,500 B Street, Suburb C H $1,200,000 less mortgage H ($599,277) Proceeds of sale of Suburb E property H $152,265 less estimated capital gains tax H ($35,970) Bank account H $4,704 Motor Vehicle 1 H $5,250 Household Contents H $5,000 ANZ Platinum credit card H ($5,846) Total non-superannuation interests $801,616 Super Fund 2 H $148,127 Total superannuation interests $148,127 Total property interests $949,743
Mr Laidley proposes that, in lieu of including the value of Ms Thiess’ motor vehicle, a sum of $25,000 be included as an add-back. He deposes to having transferred $25,000 to Ms Thiess after separation. He gave oral evidence that he had made payments to Ms Thiess of $19,000 and $1,000. He conceded he had produced no documents evidencing the further $5,000, which he deposes to having “paid to the Mother and to the best of my recollection, to her credit card at the time”.[3]
[3] Affidavit of Mr Laidley filed 13 March 2024, paragraph 39.
Add-backs are both discretionary and exceptional.[4] Reasonably incurred expenditure does not usually come within the accepted categories of add-backs.[5] Parties are not required to go into a state of suspended economic animation after separation.[6]
[4] Dulton & Dulton (2020) FLC 93-984 at [32] and the cases there cited.
[5] Cornett & Hext (2021) FLC 94-067 at [48]; Trevi & Trevi (2018) FLC 93-858 (“Trevi”) at [27]-[30].
[6] M & M [1998] FamCA 42 at [2.11], quoted in Trevi at [29].
I decline to add-back the amount sought by Mr Laidley. Ms Thiess purchased a vehicle with funds made available to her, which vehicle has depreciated in value. To treat it at a higher value gives inadequate consideration to the parties’ existing interests in property.[7] It is not suggested that it was in any way inappropriate for Ms Thiess to acquire a vehicle, particularly in circumstances where she is the primary carer of X. To adopt a higher value of that vehicle now is akin to having required her to go into a state of suspended economic animation after separation.
[7] Candle & Falkner [2021] FedCFamC1A 102 at [58] and the cases there cited.
Further, the add-back contended for by Mr Laidley would work an injustice. It is common ground that his approximate credit card balance from the date of separation be treated as a liability in the balance sheet. To include funds applied by Mr Laidley to the payment of Ms Thiess’ credit card without including the credit card liability, of which I have no evidence, would be inequitable.
During the course of the hearing, it was agreed that the relevant balance of Mr Laidley’s credit card is $5,846. It was also agreed that Mr Laidley is responsible for an estimated capital gains tax liability of $35,970.
Mr Laidley contends that his superannuation is worth $154,896, whereas Ms Thiess contends it is worth $148,127. The evidence, both in Mr Laidley’s Financial Statement and Ms Thiess’ Trial Affidavit, is that the value of the interest is $148,127. No challenge was made to that evidence, and no other evidence as to the value of the interest was adduced. In those circumstances, I find its value to be in accordance with the evidence.
The parties otherwise agree on the identity and value of their property interests.
JUSTICE AND EQUITY
Both parties seek an alteration of their property interests in order to finally determine the financial relationships between them.[8] It is implicit in both parties’ requests for the Court to make orders, that they accept the making of an order would be just and equitable.[9] I consider it to be just and equitable to make a property settlement order because there will no longer be the common use of property by the parties.[10]
[8] Family Law Act 1975 (Cth), s 81.
[9] Russo & Wylie (2016) FLC 93-747 at [54].
[10] Stanford at [42].
CONTRIBUTIONS
I am required to take into account the parties’ financial and non-financial, direct and indirect, contributions to the acquisition, conservation or improvement of property.[11] I am also required to take into account the parties’ contributions to the welfare of the family.[12]
[11] Family Law Act 1975 (Cth), s 79(4)(a)-(b).
[12] Family Law Act 1975 (Cth), s 79(4)(c).
In June 2013, the parties commenced cohabitation. Ms Thiess deposes that she then had bank savings of $2,385, and that Mr Laidley then owned a motor vehicle, superannuation of approximately $21,000 and bank savings. That evidence is unchallenged and uncontradicted and I accept it.
In late 2013, Mr Laidley purchased a real property at D Street, Suburb E for $410,000. It is common ground that Mr Laidley provided the initial purchase costs and borrowed the balance by way of home loan. Ms Thiess deposes that he used savings of $25,000 and a gift of $18,000 from his father. Mr Laidley deposes that he used $15,000 accumulated prior to the commencement of cohabitation and a gift of $5,000 from his father. He also gave oral evidence that he applied $22,000 received from the estate of his late aunt to the purchase. Ms Thiess challenged that oral evidence in cross-examination, with Mr Laidley accepting he had produced no documents in relation to the receipt of those funds, and that he could not recall the timing of their receipt. I consider it unnecessary to resolve the dispute. Whether substantial parts of the $43,000 Ms Thiess deposes to Mr Laidley applying to the purchase were sourced from Mr Laidley’s father or his late aunt’s estate, they are contributions made by him or on his behalf.[13]
[13] Kessey & Kessey (1994) FLC 92-495 at 81,149 to 81,150; Mabb & Mabb & Anor (2020) FLC 93-947 at [119] per Kent J.
Ms Thiess put to Mr Laidley that some of the savings he applied to the purchase of the Suburb E property were accumulated during the period of the parties’ cohabitation between June and December 2013. Mr Laidley gave evidence that he already had a sum of money he was intending to use to purchase real property prior to the parties’ relationship, and that any increase in those savings during the relevant six months was nominal. I accept his evidence which was not successfully challenged.
The parties occupied the Suburb E property from settlement of its purchase in 2014 until mid‑2016. The property was thereafter tenanted until its sale in early 2024.
Ms Thiess deposes that she worked as an allied health worker at the commencement of the parties’ relationship, before commencing work as a retail worker in late 2013, earning approximately $36,000 per annum. She deposes to continuing in that employment until commencing maternity leave in 2015, before returning to part time work in 2017, earning $260 per week. Her evidence was unchallenged and I accept it.
It is common ground that Mr Laidley worked throughout the relationship. Ms Thiess deposes that he initially earned approximately $77,000 per annum. Mr Laidley agreed with that evidence in cross-examination. I accordingly accept it.
Between 2014 and 2015, Mr Laidley received further funds totalling $117,970 from the estate of a late relative. From that sum, $40,286 was applied to either the purchase of a motor vehicle, or the repayment of a loan attached to an existing vehicle. Mr Laidley otherwise deposes to the funds being applied to the Suburb E mortgage. Ms Thiess deposes to $48,000 having been applied to the home loan, with $28,474 being applied to general living expenses and Mr Laidley having “not produced evidence as to how $11,645 of the inheritance was applied”.[14] Ms Thiess makes no suggestion that the funds were not applied for the benefit of both parties. In that circumstance, I consider it unnecessary to determine the precise extent to which the funds were applied to particular common purposes of the parties.
[14] Affidavit of Ms Thiess filed 14 March 2024, paragraph 29.
In 2015, Mr Laidley received an inheritance from his late grandmother’s estate in the amount of approximately $88,000, which sum was applied to the Suburb E home loan. Mr Laidley deposes that a small amount of those funds were used for some renovation works to the Suburb E property, including the installation of fittings and fixtures.
Ms Thiess deposes as follows:
During our relationship we improved [Suburb E] by putting [in fittings and fixtures] and painted the property. We made equal contributions to the improvements to [Suburb E]. I was primarily responsible for sourcing fixtures and decorations for the [Suburb E] property. My mother and I installed decorations. I obtained a new boiler [at a discount]. From memory, I paid cash in hand given that it was discounted. We had a mutual friend attend the property to build a wardrobe for [X]'s nursery.[15]
[15] Affidavit of Ms Thiess filed 14 March 2024, paragraph 33.
Mr Laidley accepted in oral evidence that Ms Thiess had sourced the new boiler, but that he had paid for it. He otherwise disputed Ms Thiess’ evidence that she had sourced fixtures and decorations for the property. He gave oral evidence that he paid for the parties’ friend to build a wardrobe for X’s nursery. Although her evidence was unchallenged, I prefer Mr Laidley’s evidence which was given in a clear and straightforward manner. Ms Thiess’ affidavit evidence is vague and essentially conclusory. Even were I to accept it, I could give it no real weight.
In 2015, X was born. Ms Thiess thereafter took maternity leave and was primarily responsible for X’s care. Mr Laidley continued to work full time, although gave unchallenged oral evidence that he took paternity leave, including to assist with X’s care due to a number of medical issues. X was born with a medical condition. He underwent surgeries in late 2015 and early 2016. Ms Thiess’ mother visited from the United Kingdom to assist on both occasions. X has had minor surgery in 2016 and in 2018 and late 2019. He also had surgery in early 2019.
In early 2016, Mr Laidley purchased the Suburb C property for $785,000, using equity in the Suburb E property and borrowing the balance by way of home loan. From mid-2016, the parties occupied the Suburb C property.
In mid-2018, Ms Thiess and X moved to the United Kingdom, where they have remained living. Ms Thiess has thereafter been overwhelmingly responsible for X’s care. Mr Laidley submits that Ms Thiess’ contributions to X’s welfare are tainted by her decision to opportunistically remain in the United Kingdom after separation, the subsequent litigation between the parties in relation to X, her non-compliance with parenting Orders, and difficulties in arrangements for X. To the extent the submission suggests that Ms Thiess’ caregiving should somehow be given reduced weight, I reject it. Mr Laidley submits that the argument is novel and unsupported by any authority. He was unable to articulate what difference in analysis would arise in the counter-factual of her having been compliant with parenting Orders. I am not satisfied that Ms Thiess’ impugned conduct falls within “the narrow band of exceptional cases in which conduct evidence is relevant.”[16]
[16] Chapman & Chapman (2014) FLC 93-592 (“Chapman”) at [49] per Strickland and Murphy JJ.
Since Ms Thiess’ relocation to the United Kingdom, Mr Laidley has been solely responsible for the financial contributions necessary to maintain both real properties. However, he also received rental income from the Suburb E property until early 2024, and has continued to occupy the Suburb C property.
Ms Thiess deposes that “for approximately the first 12 months since our separation, [Mr Laidley] did not pay any child support for [X]”.[17] Mr Laidley deposes that he has “since 2018, always paid child support to [Ms Thiess] as assessed, and continue[s] to do so.”[18] Ms Thiess was cross-examined on the topic as follows:
COUNSEL FOR [MR LAIDLEY]: [Mr Laidley] says, and I think you dispute this, that he paid child support voluntarily and then pursuant to an assessment, and that he’s up to date with his child support payments, what do you say about that?
[MS THIESS]: Sorry, repeat the question.
COUNSEL FOR [MR LAIDLEY]: He says that he’s paid child support?
[MS THIESS]: Yes.
[17] Affidavit of Ms Thiess filed 14 March 2024, paragraph 41.
[18] Affidavit of Mr Laidley filed 13 March 2024, paragraph 49.
In evidence are bank statements from Ms Thiess’ bank account revealing transfers of funds directly from Mr Laidley from mid-2018 until early 2019 totalling $6,200. On 9 April 2019, she received a payment from Child Support, and received regular payments from that agency approximately monthly thereafter. I accept Mr Laidley’s oral evidence that those amounts were all child support payments. I find that he paid child support for X from 2018.
Ms Thiess contends that the parties’ contributions ought be assessed at 75% to Mr Laidley and 25% to her. Mr Laidley contends they ought be assessed at 80% to him and 20% to Ms Thiess.
It is common ground that Mr Laidley has been overwhelmingly responsible for the financial contributions. However, I consider that Mr Laidley’s contention gives inadequate weight to the myriad of other contributions made by each of the parties in circumstances where a considerable portion of the parties’ current wealth is attributable to the capital growth in the parties’ real estate.[19] In particular, his submission undervalues Ms Thiess’ substantial contributions as X’s primary caregiver for the last nine years. Conversely, I consider that Ms Thiess’ contention gives inadequate weight to the overwhelming financial contributions made by Mr Laidley.
[19] MH & MZ (2005) FLC 93-226 at [45].
I find that contributions to the parties’ non-superannuation assets ought to be assessed at 77.5% in favour of Mr Laidley. So much equates Mr Laidley being assessed as contributing $440,889 more than Ms Thiess.
In relation to the parties’ superannuation assets, Mr Laidley seeks to isolate the consideration to the accumulation of those interests to during the relationship, but not after the parties’ separation. I reject the submission. Contributions of all types are to be assessed holistically across the periods before, during, and after cohabitation.[20] Mr Laidley’s initial superannuation contributions amounted to $21,000. His superannuation interests have otherwise been accumulated during the parties’ cohabitation and thereafter. Crucially, in the period after separation, Ms Thiess has been overwhelmingly responsible for X’s care. Mr Laidley’s contention impermissibly ignores those parenting contributions. I find the parties’ contributions to superannuation ought be assessed at 55% to Mr Laidley and 45% to Ms Thiess. So much equates to a differential between their respective contributions of $14,813.
[20] Chapman at [101] per Strickland & Murphy JJ.
PARAGRAPHS 79(4)(D, E, F AND G) AND SUBSECTION 75(2) FACTORS
Ms Thiess is now 38 years old. She is employed as an allied health worker on a part-time basis earning approximately $15,000 per annum. She receives a child benefit of $70 per week. She is in “reasonably good health”.[21]
[21] Affidavit of Ms Thiess filed 14 March 2024, paragraph 66.
Mr Laidley is now 39 years old. He works as a professional earning approximately $143,000 per annum.
Mr Laidley is paying child support for X as administratively assessed. Ms Thiess deposes to the amount being $252 per week whereas Mr Laidley deposes to the amount being $275 per week. Neither party was challenged on their evidence and neither articulated a basis upon which I could prefer one party’s evidence over the other’s. I consider it unnecessary to do so.
Mr Laidley is cohabitating with his fiancée, Ms F. She earns approximately $150,000 per annum. She owns a real property subject to mortgage. They contribute equally to their living expenses.
Ms Thiess had a relationship with Mr G after the breakdown of the parties’ relationship. She and Mr G have an infant daughter together. Ms Thiess and Mr G have now separated. Mr Laidley suggested to Ms Thiess that she could make a claim for property settlement from Mr G. She gave evidence that she has no intention of making such a claim, referring to there being very different law in the United Kingdom. No attempt was made by Mr Laidley to articulate the potential value of such a claim. He did not establish that Ms Thiess had deliberately failed to disclose relevant documents. I accordingly decline to be unduly cautious about making findings in favour of him.[22]
[22] Weir & Weir (1993) FLC 92-338 at 79,593; Phe & Leng (2019) FLC 93-887 at [68] and [69].
Mr Laidley devoted considerable forensic attention to another novel point he sought to advance in the absence of any precedent. He contends that a relevant factor is the fact that both parties took on financial obligations for X’s travel to spend time with his father pursuant to consent Orders made in the High Court of Justice in the United Kingdom in early 2019, and that thereafter, Ms Thiess has resiled from that agreement. Those Orders provide for Ms Thiess to be responsible for her own costs of travel to escort X to and from Australia and for Mr Laidley to meet the travel costs for X. It is common ground that Ms Thiess has not complied with the Orders requiring X to travel to Australia to spend time with his father. She has now applied to vary those Orders such that X not spend time with his father in Australia for the next five years.
I reject Mr Laidley’s contention that the matters referred to in the previous paragraph ought to result in some adjustment pursuant to paragraph 75(2)(o) of the Act. He is entitled to seek a departure from the administrative assessment of child support in the special circumstances of the case, where his capacity to provide financial support for X is significantly reduced because of the high costs involved in enabling him to spend time with X.[23]
[23] Child Support Assessment Act 1989, s 117(2)(a)(iv), and Part 6A Division 2.
In closing address, Mr Laidley proffered, through his Counsel, consent to an injunction preventing him from making such an application only if I make the orders sought by him. No attempt was made to articulate the precise terms of such an injunction and the proposal was not embraced on behalf of Ms Thiess.
Because I have already rejected Mr Laidley’s contentions with respect to the parties’ contributions, I will not be making the orders sought by him. Accordingly, there is no proposal advanced in a procedurally fair way to restrict Mr Laidley’s avenues to seek a reduction in his child support obligation because of the costs of travel to spend time with X.
I am not satisfied the justice of the case requires the complaints made by Mr Laidley in relation to parenting arrangements to be taken into account in these proceedings, given the other avenue that will remain available to Mr Laidley.
Ms Thiess contends that there ought to be an adjustment in her favour of 15% whereas Mr Laidley contends that there ought be no such adjustment. I reject Mr Laidley’s submission. There is a very significant earning disparity between the parties. Mr Laidley takes out of the marriage a substantial, reliable, income-earning capacity.[24] Ms Thiess continues to be primarily responsible for the care of X, which position Mr Laidley has not sought to disturb since the parenting Orders of March 2019.
[24] Clauson & Clauson (1995) FLC 92-595 (“Clauson”) at 81,911, citing Best & Best (1993) FLC 92-418 at 80,295.
I am nevertheless not satisfied that a 15% adjustment in favour of Ms Thiess is justified. It is the real impact in money terms that is the critical issue.[25] The outcome contended for by Ms Thiess would result in an adjustment in dollar terms of $240,485, which I find to be excessive in the circumstances. I consider that an adjustment of 12.5%, being a dollar adjustment of $200,404 to be appropriate in the circumstances.
[25] Clauson at 81,911; Holland & Holland (2017) FLC 93-798 at [77].
Ms Thiess contends that the parties’ superannuation interests ought to be equalised. Given my findings in relation to the parties’ contributions to that class of asset, in effect it amounts to a contention that she ought to receive a 5% adjustment on account of the other relevant statutory considerations, equating to a dollar adjustment of $14,813. I accept that contention. Mr Laidley has a significantly greater capacity than Ms Thiess to prospectively accumulate superannuation given the income disparity between the parties and Ms Thiess’ primary care of X.
CONCLUSIONS
I find that an outcome whereby Mr Laidley retains 65% of the value of the parties’ non‑superannuation assets and Ms Thiess retains 35% of their value to be just and equitable. That equates to Mr Laidley retaining assets worth $240,485 more than Ms Thiess.
In order to achieve that outcome, Ms Thiess needs to receive non-superannuation assets worth $280,566. Given her bank account, motor vehicle and part property settlement payments are worth a total of $75,490, she requires further assets worth $205,076. Ms Thiess seeks a cash payment from Mr Laidley, and Mr Laidley did not contend otherwise. I will accordingly order the payment from Mr Laidley to Ms Thiess of a sum of $205,076.
Mr Laidley made no submissions with respect to the time sought by Ms Thiess for the payment. I find the 60 days proposed to be just and equitable.
Ms Thiess seeks the default sale of the Suburb C property in the event Mr Laidley fails to make the payment to her. Mr Laidley made no submissions with respect to the relief sought. I am satisfied that it is just and equitable for the sale orders to be made to minimise the need for further enforcement proceedings in the event of default.
Ms Thiess did not press the relief sought by her in relation to the proceeds of sale of the Suburb E property. It is common ground that Mr Laidley will retain responsibility for the capital gains tax liability relating to the sale of that property.
Mr Laidley seeks an order in the following terms:
That the Mother's entitlement pursuant to Order 2 hereof be paid to and held on Trust by the Father for the purposes of meeting (until exhausted) the costs in Order 16 hereof.[26]
[26] Mr Laidley’s Further Amended Response filed 13 March 2024, page 2, paragraph 3.
He abandoned the relief sought in paragraph 16, which proposed a variation of parenting Orders. The quoted paragraph cannot be given effect without the making of paragraph 16. I accordingly decline to order that funds, otherwise due to Ms Thiess, be held on trust. Ms Thiess’ Counsel submits that he could find no authority in support of such a proposal. Mr Laidley did not contend otherwise.
Mr Laidley contended that one category of disposition of the matter might include the allocation of some of the property settlement that is sought to be effected by the making of injunctive relief in favour of Mr Laidley. No attempt was made to adequately articulate the nature of the injunctive relief sought. He relied on the decision of Quincey & Quincey (2024) FedCFamC1A 30 as authority for the proposition that I am not bound by the parties’ pleadings. That may be so, but it is a fundamental principle of justice that Ms Thiess is entitled to know the case against her and be given the opportunity to respond to it.[27] Given I myself do not understand the case for the unarticulated injunctive relief sought by Mr Laidley, I am not satisfied that Ms Thiess could know the case to which she is required to be given an opportunity to respond. I decline to grant the unspecified injunctive relief orally gestured at by Mr Laidley’s Counsel.
[27] Kioa v West (1985) 159 CLR 550 at 582 per Mason J.
An outcome whereby the parties’ superannuation is equalised requires a split from Mr Laidley’s superannuation interest of $74,064. Ms Thiess proposed an adjustment of $74,000. Because that is the figure of which the fund’s trustee has notice, I will adopt the figure sought by her. I will make the orders sought by her in relation to superannuation given I was advised that procedural fairness has been accorded by her on the relevant fund. Neither party made any submissions with respect to the form of superannuation orders that should be made.
In the absence of any submissions, I prefer the relief sought by Ms Thiess otherwise preserving the parties’ interests in property, which are articulated more clearly.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 30 May 2024
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