THORNLEY & THORNLEY
[2014] FamCA 603
•1 August 2014
FAMILY COURT OF AUSTRALIA
| THORNLEY & THORNLEY | [2014] FamCA 603 |
| FAMILY LAW – PROPERTY – Long marriage – Where the husband has failed to make full and frank disclosure of his financial circumstances – Where the husband has received significant assets in inheritances shortly before separation and post-separation – Where the husband is in a superior financial position to the wife and has a superior future income earning-capacity – Where the husband’s inheritance contributions are to be considered as a financial resource to him rather than included in the matrimonial pool for division – Where an adjustment to the wife is to be made in respect of Section 75(2) of the Family Law Act 1975 (Cth) factors in light of her continued primary care of the children, inferior financial resources and future income-earning capacity to the husband. FAMILY LAW – CHILD SUPPORT – Where the Court considers it appropriate to make an application for a departure order in conjunction with the property settlement – Where the husband’s financial circumstances revealed at trial differ significantly from his financial circumstances known to the Child Support Agency – Where a periodic payment of child support is appropriate – Non-periodic payments for youngest child’s school fees. |
FAMILY LAW – SPOUSAL MAINTENANCE – Application for spousal maintenance by wife – Where Section 75(2) of the Family Law Act 1975 (Cth) factors have been considered –Application dismissed in circumstances of the case.
Child Support (Assessment) Act 1989 (Cth) ss 116(1)(b), 117(4)&(5), 117(6)(a), 118, 123, 123A, 124(3), 125
| Family Law Act 1975 (Cth) ss 66K(5), 74, 72, 79(4), 75(2) |
| Bendeich & Bendeich (1993) FLC 92-355 Gyselman & Gyselman (1992) FLC 92-279 Hartnett & Baker (1995) FLC 92-620 Lightfoot & Hampson (1996) FLC 92-663 Luckie & Luckie (1989) FLC 92-036 Stanford v Stanford [2012] HCA 52 Teal & Teal [2010] FamCAFC |
| APPLICANT: | Ms Thornley |
| RESPONDENT: | Mr Thornley |
| FILE NUMBER: | PAC | 2418 | of | 2011 |
| DATE DELIVERED: | 1 August 2014 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 15 & 16 May, 20 June 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Haughton |
| SOLICITOR FOR THE APPLICANT: | Rachel Stubbs & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Blackah |
| SOLICITOR FOR THE RESPONDENT: | Antwan Lawyers |
Orders
Property
That within fourteen (14) days from the date of these Orders the husband pay to the wife a sum of $11,184.
That within fourteen (14) days from the date of these Orders the husband and wife do all necessary things and sign all necessary documents so as to cause the net proceeds of sale of the investment property at M in Queensland, presently held on trust for the parties, to be paid to the wife.
That within three (3) months from the date of these Orders, on a date nominated by the wife or her solicitors, the husband do all necessary things and sign all necessary documents to transfer to the wife his interest in the former matrimonial home at J Street, Suburb H, being the whole of the property contained in Folio Identifier ...
That concurrently with the transfer provided for in the previous Order the wife do all necessary things and sign all necessary documents so as to procure a discharge of the present mortgage encumbrance secured over the H property in that the husband is released from all or any liability in relation to that mortgage and the husband shall sign all necessary documents so as to facilitate the wife procuring such a discharge.
That in default of the wife being able to procure a transfer of the former matrimonial home to her as provided for within three (3) months from the date of these Orders then the husband and wife shall do all necessary things and sign all necessary documents to sell the former matrimonial home at the best price reasonably available by private treaty, or if agreed auction, and that the net proceeds of such sale be paid to the wife.
That the parties, or either of them, have liberty to apply on short notice as to implementation or enforcement of these Orders as to property.
Child Support
That there be a departure from administrative assessments of child support payable by the husband, Mr Thornley, for the children of the marriage in that the adjusted taxable income for the husband for the child support period 1 July 2014 to 30 June 2016 be in the sum of $140,000 per annum.
That pursuant to section 124 of the Child Support (Assessment) Act 1989 (Cth) the husband pay as they fall due and payable one (1) half of all invoiced fees for the attendance of the youngest child L at B College commencing the 2015 academic year and that the annual rate of periodic child support payable by the husband is not to be reduced as a consequence of this Order.
Spouse Maintenance
That the wife’s application for spouse maintenance be dismissed.
Procedural
All outstanding applications are dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Thornley & Thornley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 2418 of 2011
| Ms Thornley |
Applicant
And
| Mr Thornley |
Respondent
REASONS FOR JUDGMENT
These are property, child support and spousal maintenance proceedings between the Applicant wife and the Respondent husband.
The wife was born in 1976 and at the time of trial was a 38 years of age. The husband was born in 1965 and at trial was nearly 49 years of age.
The husband and wife commenced cohabitation in late 1998 or early 1999 and married in 2002. They separated in February 2011 and were divorced in July 2012.
There are two children of the marriage, who at trial were aged 14 and 11.
The wife presently works at C Public School where, after separation, she commenced part-time employment as a teacher’s aide in July 2011, working about 20 hours per week and otherwise devoting herself to the care of the two children. It is the wife’s expectation that in 2015 she may be able to work more hours, if they are available, as both children will be in high school.
The resolution of the property issues between the parties has been complicated by the husband, late in the relationship and thereafter, receiving inherited funds from his late father who died in mid-2008, his late grandmother who died in the United Kingdom about 2009, his maternal grandmother who died in August 2011 and his mother who died in unfortunate circumstances in September 2011.
The significance of the husband’s inheritances both during cohabitation and after separation in the context of the present assets and liabilities of the parties can be seen by an overview of the financial history of the marriage.
Financial background
In 1993 the wife was injured in a motor vehicle accident and, several years prior to the commencement of cohabitation, she received a motor vehicle compensation verdict of $176,000.
At the commencement of the parties’ cohabitation the husband was employed in the defence force, having joined in about 1989, and the wife was unemployed. At cohabitation the wife had about $70,000 remaining from the compensation verdict and the husband had savings of about $20,000 and accruing superannuation. Both parties also had a car.
The first child of the relationship was born in 1999 and the wife remained at home as the primary carer for the child and took care of the home.
In February 2001 the husband ceased employment with the defence force and commenced employment with the New South Wales public service.
Property purchases and sales
In 2000 the parties purchased a home, west of Sydney, for about $200,000. Both the husband and wife applied their available funds that they had at cohabitation and the balance of the purchase price was funded by way of mortgage.
Subsequent to the parties’ marriage in 2002 they sold this property for about $280,000 and purchased a property at Suburb N for $320,000 using the net proceeds of sale from the first property and a mortgage.
In 2003 the parties purchased an investment property at M in Queensland. The purchase price of $202,000 and purchase costs were fully funded by a mortgage. The property has been tenanted since its purchase.
In 2006 the parties sold the N property for about $370,000 and purchased the former matrimonial home at Suburb H. The purchase price of about $480,000 comprised net proceeds of sale of the N property and a further mortgage advance from the National Australia Bank.
In 2007 the husband and his brother Mr T purchased an investment property at G in Queensland for $415,000. The purchase price of the property was fully funded by an interest-only mortgage with the M investment property of the parties being used as collateral security for the purchase to the extent of about $50,000. The property was purchased as tenants in common as to 90 per cent to the husband and 10 per cent to his brother. However, since purchase the husband has received the rental payments and attended to payment of outgoings and any shortfall in relation to mortgage payments. In his 2010 and 2011 tax return the husband represented to the Australian Taxation Office that the property is owned as to 99 per cent by him and only 1 per cent by his brother and with a consequence that the husband has received the benefit of virtually all of the negative-gearing losses relating to the property in his personal tax return. In his oral evidence, he said that the representations made by him to the Australian Taxation Office in relation to this property represented the reality of the ownership relationship between himself and his brother.
In February 2013 Orders were made for the sale of the G property in the event that an offer of more than $379,000 was received. The property was listed at a sale price of $390,000 but no offers in excess of that fixed by the Court Order were received. Once the initial listing agreement with the sales agent expired, the husband did not relist the property for sale again. For the purposes of these proceedings, the parties have agreed as to the value of the property at $370,000.
In September 2013 the parties investment property at M was sold for $295,000. In February 2013 the husband had been ordered to pay all outgoings associated with the property pending a sale. On sale of the property the mortgage borrowed for the purchase of the property and the collateral mortgage borrowing for the purchase of the G property were paid out in the sum of $241,476. At the time of sale, there were outstanding outgoings in relation to the property that should have been paid by the husband of $6,478. The net proceeds of sale of $37,300 were on settlement paid into the trust account of the wife’s solicitors.
The husband’s business, employment and present circumstances
In about 2004 the husband commenced working for V Pty Ltd, running and facilitating training courses. The husband undertook this work on his days off from his primary employment with the public service.
The husband undertook this additional work in the capacity of a self-employed contractor. In the period from August 2011 until February 2013 contract payments received by the husband averaged about $4,385 per month. He later became a full time employee of V Pty Ltd.
The husband, having commenced full time at V Pty Ltd, then commenced a 50 per cent job share arrangement with the NSW public service, earning $40,583 per annum in that job working two days and two nights per fortnight. In seeking the job share arrangement with the NSW public service (Exhibit L) demonstrates that the husband misrepresented his circumstances at the time for his own benefit in not informing the NSW public service that he had in fact obtained a full-time salaried employment with another employee. He further misrepresented his circumstances when applying for emergency long service leave in late 2011, asserting falsely that he was to have the children for school holidays when in fact he travelled overseas.
Shortly prior to hearing, the husband became a full-time salaried employee of W Ltd that had taken over the business of T Pty Ltd. The husband’s salary is $75,792 per annum plus a car allowance of $1,000 per month.
Overall, his present total annual salary from both sources is $116,553 plus car allowance payments of $1,000 per month. Both employers make superannuation contributions on his behalf.
The husband discloses in oral evidence that he lives in a de facto relationship with his partner “M”, who works as a cleaner. She pays no rent to the husband having, he asserts, paid a lump sum into his offset account for his R property.
He has recently redirected his salary payments into the account of his de facto partner. He says that this was implemented as a creditor had recently garnisheed his bank account for $6,200. The husband has also directed that mortgage payments in relation to his R property, referred to below, be debited against his de facto partner’s account.
In oral evidence he asserted that he had paid $30,000 back to his de facto partner’s account in August 2013, being in repayment of a loan from her. Once again, he provided no documents to support this assertion, nor was the transaction referred to in his trial affidavit.
In oral evidence it was put to him that he first commenced to use his partner’s account in February 2013. He responded that he did not know the date and then conceded when confronted with bank statements that he commenced making payments into his partner’s account in March 2013, those payments being his contract payments at that time from V Pty Ltd. The husband’s partner’s bank account for the period 28 February 2013 to 30 December 2013 comprises Exhibit N. The only deposits to that account during the period, apart from 9 cash deposits of $1,000 or less, are the husband’s income from V Pty Ltd and the NSW public service. As at 30 December 2013 the balance of the account was $12,860. The account was opened on 28 February 2013. It is to be inferred it was opened to assist the husband in concealing his real income.
The husband’s Commonwealth Bank (“CBA”) account ending in the numbers 667 (Exhibit O) reveals various transfers from his partner’s account to this account and the depositing of rental payments from the various tenanted properties into the account.
The husband in oral evidence could not recall whether he had completed his personal tax returns for the financial years ended 30 June 2012 and 30 June 2013, finally conceding he had not done so. Those returns would have disclosed his true income position not only to the Australian Taxation Office (“ATO”) but also to the Child Support Agency. The husband’s PAYG Payment Summary for the 2012 financial year reveals a gross income from the NSW public service of $75,665.
In the husband’s 2010 personal taxation return, notwithstanding his bank accounts (Exhibit R) revealing contract payments from V Pty Ltd of $51,724, he disclosed gross payments of only $27,255. Similarly, in his 2011 personal tax return the husband significantly under-disclosed contract payments received by him.
There are significant reservations as to the husband’s disclosure as to income in circumstances where significant evidence was only adduced from him during cross-examination.
The husband’s late father
The husband’s father died in mid-2008. Prior to his death, the wife had a conversation with the husband in which he said words to the effect “Dad has told [Mr T] [his brother] and I that we can have $250,000.00 each”.
The husband’s late father’s will provided for the husband’s mother to have a life estate in the property at A Street, Brisbane Suburb U, with the husband and his brother having the remainder interest in the property in equal shares. The husband’s late father’s self-managed superannuation interest of about $955,000 passed to the husband’s mother as she was the nominated beneficiary in the fund. His father’s one-half interest in the property at Z Street, Brisbane Suburb U, was left to the husband and his brother in equal shares. A transmission of this interest to the husband and his brother was not registered until 3 February 2010. Otherwise, the residue of his late father’s estate, in respect to which there is no evidence or disclosure by the husband, passed to the husband and his brother in equal shares.
The husband asserts that his late mother in about August 2008 agreed to advance to him the sum of $250,000 to be paid back upon request. Yet, in subsequent correspondence with the Australian Taxation Office, the husband asserted that subsequent to his father’s death, his mother gifted $230,000 to him and the same amount to his brother. He asserted that he owed to his brother $125,000, being one half of the sum lent to him by his mother prior to her death, alleging that the $230,000 was a preference to him that needed to be adjusted between he and his brother subsequent to his mother’s death.
The husband’s brother was not called to give evidence. The inference arising is that his evidence would not have assisted the husband’s case.
Subsequent to the husband’s father’s death $295,000 was deposited to the husband’s CBA streamline account on 1 September 2008. On 2 September 2008 the husband withdrew from that account $223,600 and $45,028.
The husband asserts that the sum of $223,600 was transferred to the parties’ joint National Australia Bank (“NAB”) offset account and from that account he then paid about $26,000 in reduction of outstanding loans. The lesser sum of $45,028 he asserts was transferred by him to his brother overseas.
Thereafter, on 15 October 2008, the $230,000 from his mother was deposited to the husband’s CBA streamlined account and withdrawn on the same day. The husband has not explained the application by him of this money. His evidence supports the inference that he expended some of the funds available to him. He later deposited to his mortgage offset account $140,000. He has not properly explained the source of these funds with the inference being that he held the funds in another account of his own or a third party until paid into the mortgage offset account.
The source of the deposit of $295,000 is not clear on the evidence. The husband having a one-half interest and residue of his father’s estate raises the inference that these funds were in all probability in part payable to the husband in relation to his share in his late father’s estate. The husband has failed to produce documents in relation to his father’s estate that may have assisted in identifying funds otherwise.
Otherwise, Exhibit DD reveals that the husband’s mother in the 2008/2009 financial year withdrew about $484,000 from her superannuation fund. Of that sum $393,000 was taxable. An inference is available that after tax she had about $460,000 that she paid to her sons equally. It is the husband’s assertion to the ATO that the mother gifted to he and his brother $230,000 each.
The husband’s late grandmother in the United Kingdom
In 2009 the husband’s grandmother died in the United Kingdom and the husband says he received over a period cash funds of about $51,000 from her estate. On 15 June 2010 he deposited to his CBA account $19,093. Funds available to the husband from this inheritance were in part applied to the purchase of a Nissan motor vehicle, construction of a swimming pool and deck at the matrimonial home and family holidays.
The motor vehicle was retained by the wife at separation and later traded in by her on the purchase of another vehicle. She received $14,000 for the trade-in.
Separation
The relationship between the parties deteriorated and on 7 February 2011 they separated. The wife remained in occupation of the matrimonial home and the husband moved to rental accommodation.
A few days before separation the wife withdrew the sum of $5,000 from the parties’ joint NAB offset account. At the time of separation there was a balance of approximately $165,000 in this account. On 17 February 2011 the wife withdrew a further sum of $5,000 from the NAB offset account.
On 19 February 2011 the husband withdrew $168,000 from the NAB offset account and paid that sum in reduction of the parties’ mortgage secured over the matrimonial home. The wife reversed the transaction and placed the $168,000 into an account in her name. Thereafter, the husband procured from NAB a reversal of this transaction and the funds are redeposited back to the joint mortgage offset account.
On 28 February 2011 the wife withdrew from the joint offset account $83,000 and deposited on 1 March 2011 $78,000 of that money to her Westpac account and retained $5,000 in cash. She has had recourse to those funds post-separation for the support of herself and the children and for a payment of $12,000 in relation to legal fees for these proceedings. At trial the wife had about $6,000 of these funds remaining.
The withdrawal from the offset account by the wife left a balance in the offset account of $84,000 and mortgage payments for the matrimonial home have been debited against that offset account since separation.
Otherwise, the only financial support provided by the husband to the wife and children has been his child support payments as assessed from time to time.
Post-separation: the children
It is common ground that after separation the husband has spent irregular time with the children and that the wife has been the substantial and primary carer for the children to the date of trial.
In late May 2011 the husband went overseas for five weeks. On his return from overseas the wife received a message from the husband’s mother warning of the husband’s suicidal ideation.
The husband did not have unsupervised time with the children between May 2011 and October 2013 and no overnight time with the children until March 2014, except for one occasion in March 2011 and two occasions in January 2014.
Final parenting Orders in relation to the children were made on 23 December 2013. The Orders provide for the husband to spend time with the children on alternate weekends from 10.00 am Saturday until 6.00 pm Sunday to commence from 15 March 2014, together with specific time on Father’s Day and during the Christmas festive period. There is no specific provision for the children to spend time with the husband during school holidays. However, the parties’ daughter does not currently spend overnight time with the husband.
The husband’s late mother
In September 2011 the husband’s mother died, having made her last will in August 2009. The husband was to receive 50 per cent of her estate and, subject to payment of legacies of $40,000, his brother Mr T the balance of the residue.
Her estate comprised, after the earlier death of her husband, the following:
a)a 50 per cent interest in the property at Z Street, Suburb U, Queensland with the other 50 per cent being owned by the husband and his brother as referred to above;
b)a life estate in the property at A Street, Suburb U;
c)cash term deposit investments of about $529,500 being her own superannuation fund interest (Exhibit DD);
d)CBA accounts totalling about $103,000 with interest accruing; and
e)a diamond ring later sold for $3,000.
It is noted that a transmission of his late mother’s interest in the Z Street property to the husband and his brother had still not been formally effected.
The husband has been reluctant to provide full disclosure to the wife of the nature and extent of his interest in his late mother’s estate. He made enquiries of the estate solicitors in December 2011 as to how he could relinquish his interest in the estate in favour of his brother and sought advice as to the relevance of this post-separation inheritance in the context of these property proceedings. In January 2012 he instructed his solicitors in relation to his late mother’s estate that he wanted the estate properties to be transferred to his brother’s name and instructed them not to inform his solicitors engaged in these proceedings about his mother’s superannuation entitlement.
By letter dated 16 February 2012 the solicitors instructed by the husband in relation to his late mother’s estate remitted to the husband a final distribution of $110,087 representing, it appears, his mother’s cash at bank. In that same letter the solicitors forwarded to the husband a copy of the Grant of Probate in relation to his mother’s will, final Commonwealth Bank statements and a safe custody packet containing a revoked will.
Details as to any earlier distributions and the fate of his mother’s superannuation entitlement were not disclosed to the Court in the husband’s trial affidavit.
In oral evidence the husband conceded that on 25 February 2012 he opened a CBA account ending in the numbers 547 with a deposit of $620,000 representing his late mother’s superannuation and cash at bank, after payment of some debt. He says that his brother’s interest in this money was as to one half, $310,000. The husband conceded that he remitted these funds to his brother on 20 March 2012 and in evidence (Exhibit X) is a copy of his brother’s HSBC account evidencing a balance as at January 2014 of US$305,505.
The husband’s purchase of Suburb R property
In about April 2012 the husband then purchased the R property for $725,000 plus stamp duty of $28,135, making a total purchase price of $753,135. He financed the purchase with a mortgage of $580,000, leaving a balance of $173,135 to be paid in cash from his inherited funds. The balance of the $310,000 available to the husband was about $140,000. Those funds were deposited by him to a mortgage offset account with the Adelaide Bank (Exhibit Z) with interest accruing on the account being credited as against interest accruing on his mortgage.
On 8 November 2013 a further sum of $140,000 was deposited to the credit of the husband’s mortgage offset account with the Adelaide Bank, bringing the balance up to about $280,000. The source of these additional funds is a matter of conjecture. The inference is that it represented funds remaining from the $230,000 received from his mother prior to her death. The husband contends that the funds were his partner’s funds transferred from her bank account. Whilst Exhibit BB, being his partner’s bank account, evidences a funds transfer on 5 November 2013 of $138,800 to a third-party account. The owner of that account is not known. Otherwise, the deposit to the offset account was in the sum of $140,000, not the sum transferred by the husband’s partner. The ownership of the funds in his partner’s account is not clear, particularly in circumstances where there is evidence of the husband intermingling his funds with those of his partner and her modest income circumstances.
The husband’s partner was not called to give evidence and the inference is that her evidence would not have assisted his case.
The husband’s non-disclosure
In correspondence in February 2012 between the Commissioner, Legal Services Commission, Queensland and the solicitors instructed by the husband in relation to his late mother’s estate, the solicitors disclose that there still remained funds payable to the husband’s late mother’s estate from the estate of her late mother. The husband has provided no evidence in relation to this expectancy, save for the sum of $58,000 received by him later that month. In February 2012 the husband received this payment and those funds were deposited to his bank account. He asserts that from those funds he paid half to his brother Mr T as his entitlement.
Notwithstanding the receipt by him of a request for a response to specific questions from the wife’s solicitors in relation to his various inheritances and bank accounts dealings, the husband instructed his solicitors to make formal objection to providing responses as the number of questions he asserted exceeded the permissible limit of 20 under the Rules.
The husband’s ultimate responses in relation to requests for information as to his inheritances and bank details were incomplete and ingenuous. Some of the responses in correspondence from his solicitors are at odds with his sworn evidence in these proceedings.
In relation to his late father’s estate in respect of which he was a residuary beneficiary as to 50 per cent, he asserted in February 2013 that he did not have a copy of his late father’s will, the schedules or inventory of assets or the grant of probate.
In relation to his mother’s estate, he asserted in February 2013 that, notwithstanding he was one of the executors of the estate, he did not have schedules or inventory of assets or a copy of the Grant of Probate in his possession, notwithstanding that it was he who instructed solicitors to act on the estate. This was also notwithstanding his ongoing obligation in relation to disclosure in these proceedings.
The husband’s evidence is to be treated with circumspection in relation to his various deceased estate interests, his disposition of funds and his income circumstances where possible objective documents or corroborated evidence is to be preferred.
Overall, the wife’s evidence is preferred to that of the husband where in conflict.
Orders sought as to property
At trial the wife sought, in summary, the following orders as to property:
a)that the husband pay to her $232,074;
b)that the wife receive the net proceeds of sale of the investment property at M;
c)that the husband transfer to the wife the former matrimonial home at Suburb H and that the wife be required to refinance the mortgage on that property so as to release the husband from any liability; and
d)that pending transfer of the home to the wife mortgage repayments continue to be paid from the offset account.
The husband sought in his Amended Response filed 18 August 2012, in summary, the following orders:
a)that the matrimonial home at Suburb H be sold and the net proceeds of sale, together with the net proceeds of sale of the investment property at M, be divided as to 60 per cent to the husband and 40 per cent to the wife;
b)that there be a splitting order in favour of the wife as to 40 per cent of the husband’s interest in the First State Superannuation fund.
At trial the husband submitted that the matrimonial property pool, not including the husband’s post-separation inherited property pool and his military superannuation entitlements, should be apportioned overall as to 60 per cent of the husband and 40 per cent of the wife.
The section 79 considerations
The approach to the determination of an application under s 79 of the the Family Law Act 1975 (Cth) (“the Act”) is set out in Stanford v Stanford [2012] HCA 52 and further considered by the Full Court in Bevan& Bevan [2014] FamCAFC 19 and Chapman & Chapman [2014] FamCAFC 91.
Thus, the process ordinarily involves a staged process.
The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.
Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.
There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4) (Stanford (supra)). This consideration addresses the prohibition in s 79(2) of the Act.
The Court needs to conclude that it would be unjust or unfair to leave property rights intact.
In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
In particular, such a circumstance arises where both parties seek adjustive orders but are unable to agree as to same.
Once the s 79(2) issue is resolved the Court then considers the contributions made by the parties as defined in s 79(4)(a) to (c).
The Court must then consider s 79(4)(d) to (g) in particular the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).
The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell (1999) FLC 92-877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.
The present assets and liabilities of the parties
It was submitted on behalf of the wife that in considering the assets and liabilities of the parties it would be of some utility to group the assets into different pools incorporating firstly, the matrimonial assets, secondly, the assets presently reflecting the husband’s inheritances and thirdly, the superannuation assets of the parties.
Each of those groups of assets reflects differing contribution factors and, in the circumstances of this matter, it is appropriate to adopt such an approach.
The matrimonial assets
Exhibit EE reflects the parties’ initial respective contentions in relation to the present assets and liabilities of the parties. The final matrimonial pool contended for was as follows:
Assets
Joint Matrimonial home at Suburb H $610,000
Joint Net proceeds of sale of M property $ 37,300
Joint NAB mortgage offset account $ 7,066
Husband Investment property G, Queensland $370,000
Husband CBA account $ 707
Husband Balance in de facto partner’s CBA account $ 12,500
Husband VW … car $ 17,000
Wife Nissan … car $ 15,000
$1,069,573
Liabilities
Joint NAB home loan $312,000
Husband CBA investment mortgage G property $362,810
Wife Loan from her mother for car purchase $ 5,500
Wife Outstanding school fees $ 4,411
Husband Esanda car loan $ 20,000
Husband Credit card debts $ 20,000
$724,721
Net: $344,852
Husband’s inherited asset pool
Husband Property at Suburb R $820,000
Husband Half interest Z Street, Suburb U $225,000
Husband Half interest A Street, Suburb U $220,000
Husband Adelaide Bank mortgage offset account $282,450
$1,547,450
Liabilities
Husband Alleged loans from his brother and partner $282,450
Husband Mortgage secured over R property $580,000
$862,450
Net: $685,000
Superannuation pool
Wife REST Superannuation $ 4,567
Wife First State Superannuation $ 2,572
Husband Military Super $125,387
Husband First State Superannuation $120,105
$252,631
Ultimately, the primary issue between the parties as to the present assets and liabilities relate to the inclusion or exclusion of the husband’s asserted debts to his partner, being the alleged contribution to the husband’s mortgage offset account, and to the husband’s brother, being the husband’s alleged obligation to repay to his brother the sum of $115,000. For the reasons set out above, it is not appropriate to include the debts in the husband’s inherited pool of assets.
Otherwise, it was submitted on behalf of the husband that money withdrawn from the mortgage offset account by the wife and subsequently primarily used by her for the ongoing support of herself and the children should be included notionally into the pool of assets for adjustment purposes. The wife was cross-examined in detail in relation to her in a post-separation expenditure and it is readily apparent that, having regard to the limited income, the limited child support paid by the husband and her expenses as attested to by her, the funds available to her were reasonably expended primarily in support of herself and the children. Accordingly, the submission is rejected.
Unjust and inequitable not to make an order as to property
The subject relationship is a lengthy one with two dependent children of the relationship. During the period of the relationship, the parties have acquired assets and financial resources ostensibly for the joint benefit and ultimately for the benefit of their children. The primary asset of the parties, the matrimonial home, remains in their joint names and both parties seek disparate property orders. In the circumstances, it is appropriate to make orders as to property so as to finally determine the parties’ entitlements to the present pool of assets and liabilities.
Contributions: the matrimonial pool
The parties’ relationship was for some 22 years. There is an issue between the parties as to the extent of their assets at the commencement of cohabitation. As foreshadowed above, the evidence of the wife is preferred.
However, in circumstances where throughout cohabitation the wife was the primary homemaker and caregiver for the children of the relationship with the husband adopting the role as primary income earner, overall, there is little to distinguish between their contributions in this regard until shortly before separation.
Shortly prior to separation the husband received funds that were paid into a joint mortgage offset account and other funds from his grandmother’s estate, as referred to above. The parties had had the use and benefit of these funds in offsetting interest on the mortgage, making mortgage payments since separation and providing funds, which the wife has applied to the ongoing expenses of herself and the children post-separation. This is in circumstances where the husband has made child support payments at a lesser rate than if his true income position had been known to the Child Support Agency and provided no spousal support for the wife.
Following separation, the wife has assumed the significant role as caregiver for the parties’ children in circumstances where the husband has had a minimal role. This is a significant contribution.
The wife has enjoyed the continuing occupation of the matrimonial home for some years since separation in circumstances where funds available to the husband from his inheritances or otherwise have been used to meet mortgage payments during the wife’s occupation of the home.
The matrimonial pool has a net value of $344,852. In assessing contributions, both financial and non-financial, and in terms of welfare of the family, including parenting and homemaker contributions, in a holistic fashion it is appropriate overall to regard the parties’ contributions to date of trial as favouring the husband as to 55 per cent ($189,668) and as to the wife 45 per cent ($155,183). Such a finding creates a disparity of about $34,500 between the parties.
This outcome would see the wife have an interest of about one half of the equity in the matrimonial home.
The husband’s post-separation inherited assets
The husband’s post-separation inherited assets have a net value of $967,450 after the omission of his alleged debts to his partner and his brother as discussed above. However, as discussed above, the husband has been reluctant to disclose his inherited interests and his evidence at trial was unsatisfactory, as referred to above. In such a circumstance it is open to the Court to find that there has been a failure to disclose by the husband such that would facilitate the Court inferring that the extent of this inherited assets may well be more substantial than disclosed at trial.
The wife does not contend any contribution to the acquisition of such assets. In the circumstances relating to the husband’s acquisition of these assets, it is appropriate for them to be considered in the context of s 75(2) as a significant financial resource available to him. This is particularly so where two of the real estate properties in which he has a 50 per cent interest are income producing and unencumbered.
The superannuation pool
There is no issue in relation to the components of the superannuation asset pool. It is common ground that the substantial component of the husband’s Military superannuation accrued prior to cohabitation. That entitlement represents about 50 per cent of the superannuation pool. Similarly, the wife’s First State superannuation has accumulated post-separation. Otherwise, it is appropriate to regard the remaining components of the superannuation pool as being contributed equally. Notwithstanding the husband may have accumulated not insignificant superannuation since separation, he has accumulated in circumstances where the wife has assumed the overwhelming burden of parenting the two children of the marriage.
In assessing the parties’ contribution to the superannuation pool of $252,631, it is thus appropriate to regard contributions as favouring the husband 65 per cent to the wife’s 35 per cent. This would create a disparity between the parties in respect of the superannuation of about $75,000 favouring the husband.
Consideration of the s 79(4)(d) to (g) factors
Orders as to property adjustment sought by the parties will have no effect upon the earning capacity of either party to the marriage.
The husband is presently obligated to pay child support as assessed in relation to the two children of the marriage. As a consequence of the child support departure order to be made in these proceedings and as considered below, the husband will have an expected increased liability for periodic child support in relation to the children.
The present parenting Orders regarding the children have been referred to above.
Otherwise, it is necessary to consider the various matters set out in s 75(2) of the Act.
The wife is presently aged 38 and the husband 49 years of age. Neither party asserts any relevant health circumstances.
The income, property and financial resources of each of the parties have been considered above in detail. The husband has an overwhelming income earning superiority over the wife and most substantial financial resources when compared to the wife, by reason of the post-separation inherited pool to be retained by him, as set out above.
The husband has the mental and physical capacity to continue his present employment circumstances into the foreseeable future and it is expected that he will do so. It has long been recognised that in most cases the most valuable “asset'’ which a party can take out of the marriage is a substantial, reliable, income-earning capacity.
The wife presently works part-time by reason of her primary care of the children in circumstances where they spend minimal time with the husband. However, she expects that in 2015, when the youngest child commences high school, that she may be able to improve her employment circumstances and it is appropriate that she endeavour to do so.
The wife at present has weekly commitments for the support of herself and the children of about $1,514 per week as set out in her Financial Statement relied on at trial and filed on 23 April 2014. She was not cross-examined in relation to the asserted expenses. Significantly, the wife’s expenses at trial did not include the expense of accommodating herself and the children as a consequence of mortgage payments on the matrimonial home being paid from capital available in the mortgage offset account. Her weekly shortfall has been met by her access to funds at bank.
The husband’s necessary commitments, excluding investment property expenses, are set out in his Financial Statement in respect to which he was not cross-examined. He provides no breakup in his Financial Statement as to expenses that relate to investment properties and his necessary expenses relating to his home and weekly living expenses set out in Part N were not explained more fully in evidence. Doing the best on the information provided in the husband’s Financial Statement, his reasonably necessary expenses per week are as follows, comparing his expenses with those of the wife:
Income tax $400
Mortgage payments – R property $430
Rates – R property $30
House insurance $30
Car insurance $25
Health insurance $35
Car registration $18
Child support $275
Food $80
Household supplies $60
House repairs $20
Electricity $50
Telephone $30
Motor vehicle expenses Nil (car allowance paid)
Clothing and shoes $20
Entertainment and hobbies $50
Holidays $50
Total: $1,603
In addition, it is expected that he will have modest expenses each second weekend that the children spend some time with him.
Overall, he has a surplus of income over expenses. His PAYE income is $116,000 ($2,230 per week), in addition to which he receives his share of rent from two unencumbered properties. He is clearly in a more favourable position than the wife.
Neither party has the responsibility to support any other person.
The respective superannuation entitlements of the parties have been discussed above. The husband will continue to accrue significant superannuation entitlements until retirement. The wife has little prospect of any significant accrual of superannuation in the foreseeable future until such time as her employment circumstances have improved. However, is to be inferred that she will continue to accrue superannuation at a very modest rate to the accrual available to the husband.
Otherwise, the wife by reason of her financial circumstances and care of the children receives a means tested Family Tax Benefit allowance of $144 per week.
The parties during their cohabitation resided in comfortable cottage accommodation and enjoyed a reasonable standard of living. The husband continues to enjoy that standard of living by reason of his financial resources and income. The wife’s circumstances are problematic into the future when she will be required to fund accommodation expenses for herself and the children.
The wife seeks an order for periodic spouse maintenance and in the sum of $500 per week for a period of four years in the event that her property entitlement does not facilitate her discharging the mortgage on the matrimonial home. It is not submitted that the payment of maintenance would increase her earning capacity by enabling her to undertake a course of education or training, establish herself in a business or otherwise to obtain an adequate income.
The orders proposed by each of the parties have no effect on the ability of a creditor of either of the parties to recover that creditor’s debt.
The wife has contributed to the income earning capacity, property and financial resources of the husband in her role during cohabitation as primary homemaker and primary caregiver for the children of the marriage. The role has facilitated the husband continuing his career in the NSW public service and being able to undertake secondary employment that now represents his primary employment.
The cohabitation and marriage of the parties was over 22 years in duration. During that period the wife remained out of the workforce in her role as primary homemaker and caregiver for the children. At present, she is in employment as a teacher’s aide and being paid an hourly rate for about 20 hours per week. Her ability to enter the workforce is limited by her lack of training and opportunity during the marriage. In this regard, she has suffered a significant economic disadvantage.
The wife expresses a wish to remain in her role as primary caregiver for the children and expresses her ability to undertake future employment subject to that consideration.
The wife is not cohabiting with any other person. The husband is presently residing in a de facto relationship with his partner, who he asserts is employed as a cleaner. She makes no contribution to the expenses of his household, the husband asserting that she has paid a capital amount into his bank account. It is clear that the husband and his partner have intermingled their financial affairs. The exact nature of the financial circumstances relating to the husband’s cohabitation with his partner is uncertain.
On a contribution-based entitlement the wife would be entitled to property to the value of about $155,000 and a superannuation interest of about $88,000. The husband would retain the balance in monetary terms of the matrimonial asset pool and the superannuation pool.
The husband’s prospective child support obligation is referred to above and below.
Section 79(4)(e) to (g) factors: matrimonial pool
These have, for convenience, been considered above in detail.
There is an overwhelming financial disparity between the parties. The wife will bear mostly the burden of care of the children where the children have another seven years before the youngest is 18.
In the circumstances, a further adjustment to the contributions finding of 30 per cent is called for in favour of the wife, particularly having regard to the extremely modest matrimonial pool.
Overall, the matrimonial pool is to be divided as to 75 per cent to the wife and 25 per cent to the husband. This will see the wife entitled to $258,639 and the husband $86,213.
The wife has in her possession:
Nissan … car $15,000
She has the following debts:
Loan from her mother for car purchase $ 5,500
Outstanding school fees $ 4,411
Net: $ 5,089
Should she wish to retain the home, a payment to the husband of $44,450 is required.
The wife is to have the opportunity to acquire the husband’s interest in the home. In default, the home is to be sold.
The husband will retain:
Net proceeds of sale of M Property $ 37,300
NAB mortgage offset account $ 7,066
Investment property G, Queensland $370,000
CBA account $ 707
Balance in de facto partner’s CBA account $ 12,500
VW … car $ 17,000
Payment from wife $ 44,450
$489,023
He will have the following liabilities:
CBA investment mortgage G property $362,810
Esanda car loan $ 20,000
Credit card debts $ 20,000
Net assets: $ 86,213
Section 79(4)(e) to (g) factors: superannuation pool
These have, for convenience, been considered above in detail.
The husband will continue to accrue significant superannuation each year by reason of his PAYE salaries. The wife is starting from a low superannuation base and her employment prospects are subject to her childcare obligations. Her capacity to earn has been affected by the years of the marriage.
Both parties have a significant number of years until retirement. The husband is older than the wife but his income base is far more significant.
Overall, an adjustment of 30 per cent in favour of the wife is called for.
Overall, the wife’s entitlement would be 65 per cent or $164,210. She has $7,139 in superannuation, leaving a balance of $157,071 required to satisfy her entitlement.
However, the wife does not seek a splitting order to realise her entitlement. The husband does as to his First State Superannuation entitlement to the extent of a 40 per cent split to the wife. He adduces no evidence that the trustee of this fund has been accorded procedural fairness as required. No splitting order can thus be made.
The wife’s entitlement will need to be met from other assets. Her entitlement is to a splitting order of $157,071. However, if a split was available the wife would be required to roll the superannuation into her fund and it would be preserved until a condition of release was available. If she is to receive an adjustment out of the present assets and the husband must wait for his superannuation for some years, her sum should be discounted somewhat. The wife would be receiving a present sum in lieu of expectancy in about 25 years’ time.
Doing the best in the circumstances, the wife should receive an adjustment out of present assets of $100,000.
Thus, in lieu of the payment to the husband provided for above, the wife will not pay that sum ($44,450) and she is to receive the funds in trust ($37,300) and the offset account funds ($7,066) and the husband will be required to pay her in addition $11,184.
Child Support
The husband’s liability for child support at trial was $274 per week. The assessment for the period 1 September 2013 to 30 June 2014 issued on 9 May 2014. This assessment was based on an adjusted taxable income for the husband of $77,000 and an adjusted taxable income for the wife of $19,224.
A further assessment issued on the same day for the child-support period from 1 July 2014 to 30 November 2014 assessing the husband’s child support at $52.70 per week. This assessment was based on an adjusted taxable income for the husband of $32,757 and $19,224 for the wife.
It is clearly appropriate in terms of s 116(1)(b) of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) to deal with the child support issue in the context of these proceedings as the property and income of the parties has been closely examined and it is in the interests of both parties to resolve the issue. The orders that can be made are set out in s 118 of the Assessment Act.
The approach to a child support departure application is well settled: Gyselman & Gyselman (1992) FLC 92-279.
Neither assessment properly reflects the husband’s true financial position as to income.
Grounds for departure are made out as the application of the child support formula to the income used for assessment purposes has resulted in an unjust and inequitable determination below the proper level of child support that would be assessed if the husband’s correct income was used and having regard to the property and financial resources of the husband as set out above.
Having regard to the matters set out in s 117(4) of the Assessment Act it is just and equitable to make a departure order and otherwise proper to do so (s 117(5)).
The wife seeks orders, in summary, as follows:
a)that for the child support period from 30 June 2004 to 9 November 2017, the husband’s adjusted taxable income be $143,320 per annum;
b)that within 45 days for the husband to pay to the wife a sum of $91,129 by way of lump sum child support;
c)that the lump sum payment ordered be credited as to 100 per cent of the husband’s periodic child support obligation for the period from 1 July 2014 to 9 November 2017; and
d)that the husband pay one half of the school fees, levies and charges for the youngest child.
In the special circumstances of this case, where the husband has, as it were, under-disclosed his income position relating to child support, it is appropriate that there be a departure order for the part of the period sought by the wife fixing the husband’s adjusted child support income at a more appropriate level.
The husband’s combined annual PAYE salaries total $116,553. In addition, he receives a car allowance of $12,000 per annum and rent payments from the two tenanted, inherited properties in Queensland. It is appropriate to ignore any negative-gearing loss on the G property. The husband can dispose of that property should he wish.
The husband’s adjusted child support income for the period 1 July 2014 to 30 June 2016 reflecting the next two financial years will be set at $140,000 per annum.
Conversion to lump sum child support
The wife’s application for lump sum child support relies on s 123 and s 123A of the Assessment Act.
The preference for periodic support is explicitly stated in s 66K(5) of the Family Law Act 1975 (Cth). In Luckie & Luckie (1989) FLC 92-036 the Full Court observed that s 66E(5) (as it then was, now s 66K(5)) makes it clear that the preferable order for the payment of maintenance is for periodic payments and the Court is not consider other methods of payment unless it has first considered the capacity of a party to make periodic payments.
In Bendeich & Bendeich (1993) FLC 92-355, Mushin J explained:
The rationale underlying the general approach of the court was that the longer a lump sum order operates the greater the chance of change in circumstances necessitating a variation of that order, thereby making the order unjust. …
The Assessment Act makes no specific reference to the preference for "periodic" support in the duty and objects set out in sections 3 and 4 of the Assessment Act.
However, the scheme of the Assessment Act is such that the preference for periodic support is an underlying presumption of the legislation because:
(i)the Act provides for periodic assessment as the first automatic assessment of child support;
(ii)periodic support is provided for by way of administrative assessment, whereas lump sum support is only available by agreement or Court order (s 123(1)(b));
(iii)a Court can only make an order for other non-periodic payments if there is already an assessment for a periodic amount and it is satisfied of the matters set out in s 124.
The relevant provisions of the Assessment Act allowing for orders for child support to be made otherwise than in the form of periodic amounts paid to the carer are contained in Part 7 Division 5 of that Act.
Kay J in Borg & Borg (1991) FLC 92-215 at 78,451 said:
… The purpose of Div 5 is to enable the court in my view to provide for child support other than by way of periodic payment eg by indirect payment such as school fees and the like or by the provision of property or lump sum payments.
Division 5 has two "additional particular objects" that are set out in s 121, which provide:
(a)that children have their proper needs met from reasonable and adequate shares in the income earning capacity, property and financial resources of both their parents; and
(b)that parents share equitably in the support of their children.
Section 121 of the Assessment Act is in identical terms to s 114 of the Assessment Act, which applies to the general departure provisions of Part 7, Division 4.
Division 5 of Part 7 should be seen as a remedial division providing for alternative methods of providing child support only if the circumstances of the case are such that a periodic assessment fails to meet the objectives of the Assessment Act.
Before determining an application for a substitution order (whether it be by way of lump sum or other form of support) the Court must first determine any application under Division 4 (departure applications): s 123(3) and s 124(2). This requirement has been interpreted strictly and must be complied with: Hartnett & Baker (1995) FLC 92-620 at 82,236.
Should a Court make a substitution order then the normal course is for that substitution order to be in satisfaction of part or all of the periodic liability. It is only in special circumstances that a substitution order should be made where it is not credited as against any periodic liability. In Lightfoot & Hampson (1996) FLC 92-663 at 82,856 where Fogarty J said:
The section makes it clear that the strong expectation is that it will be directly credited, but it recognises that there may be "special circumstances" where a credit should not be given. This to me is fundamentally different from giving an express additional power to create a further liability.
Such “special circumstance” may be as to school fees or some other ongoing expenses that cannot be properly reflected in the application of the statutory formula or by an appropriate periodic departure order.
The provision of child support by way of lump sum payment is clearly not the preferred method of maintaining children. The Full Court in Prpic & Prpic (1995) FLC 92-574 said at 81,688:
Capitalisation orders may well be appropriate where there are difficulties in enforcement or where it is proper to sever the financial link between the parties. However, as a general rule, given that payments of child support depend upon circumstances prevailing from time to time which circumstances cannot be predicted with any significant degree of certainty, it seems to us that the provision of child support by way of lump sum should not be considered to be a readily available alternative but one that is only exercised when there are circumstances that make it appropriate to do so. …
Lump sum orders (as opposed to substitution orders) have usually been considered by the Court in two situations:
(a) where there are difficulties in enforcement; and
(b) where liable parents are asset rich and income poor.
In the circumstances of this matter, the husband has substantially paid his periodic child support obligations as assessed, although his assessments have been less than they would otherwise be had he provided appropriate information as to his income to the Child Support Agency.
Enforcement of the husband’s periodic obligations should be no issue in circumstances where he is presently employed in two jobs on a PAYE salary that is readily capable of being garnisheed in the case of default.
In the circumstances, the Court is not satisfied that such a lump sum order is just and equitable or proper (s 123A(1)(b)) having regard to the considerations set out in s 117(4) and (5), in particular having regard to the income, property and financial resources of each of the parents. The wife is clearly in need of periodic child support assessed appropriately.
There is a risk that the financial circumstances of either the husband or wife may change into the future, particularly where the wife’s evidence is that in 2015 she will seek further employment.
Payment of school fees
The wife’s application in this regard falls to be determined under the provisions of s 124 of the Assessment Act.
The wife’s evidence is that the husband agreed to the child commencing at the private Catholic high school in 2015.
The eldest child attends the same school and it is in the contemplation of both parents that the younger child will also do so. Indeed, the wife sees the children attending the same high school as a trigger for her seeking more gainful employment in 2015.
The husband will have an increased obligation to pay periodic child support for both children once new assessments issue as a consequence of the departure order to be made.
The husband’s income has been referred to above. He has substantial capital assets and funds at bank.
Regard has been had as to the factors set out in s 124(3) of the Assessment Act, in particular s 117(6)(a). There will be an order that the husband pay one half of the invoiced school fees for the youngest child commencing 2015.
Regard has been had to the provisions of s 125, in particular s 125(2) and s 125(5) that raise similar considerations as discussed above.
It is appropriate that, in the special circumstances of this case, the husband’s obligation under such an order will not reduce his annual rate of child support.
Spousal Maintenance
Section 74(1) of the Family Law Act provides:
In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.
Section 72(1) provides:
A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c) for any other adequate reason,
having regard to any relevant matter referred to in subsection 75(2).
The s 75(2) considerations have been considered above in detail.
The wife asserts an inability to support herself adequately by reason of her care of the children of the marriage.
She has made no effort to obtain more gainful employment, being content to work as a part time teacher’s aide. The parties have been separated for over three years. There was no detail in the wife’s evidence as to how the children impacted on her ability to work more gainfully. The obligation is on her to demonstrate her entitlement at a threshold level to have an order considered.
She has no age issues or physical or mental incapacity for employment. She asserts no other adequate reason.
Her immediate financial circumstances are unknown. She asserts that she be permitted to acquire the matrimonial home for the future accommodation of herself and the children. That may be illusory in the event she cannot refinance most of the mortgage debt into her name. To do so, the inference is she would need to demonstrate a capacity to meet payments, otherwise the home will need to be sold. She may rent or purchase cheaper accommodation. Her ultimate financial circumstances are not settled.
She continues to receive an income-tested benefit and has since separation. The limitation period for a properly considered application for spouse maintenance remains open.
In the circumstances, the application for spouse maintenance is dismissed.
Orders will be made accordingly.
I certify that the preceding one-hundred and eighty-nine (189) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 1 August 2014.
Legal Associate:
Date: 1 August 2014
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