Turner and Turner and Anor
[2015] FamCA 483
•29 May 2015
FAMILY COURT OF AUSTRALIA
| TURNER & TURNER AND ANOR | [2015] FamCA 483 |
| FAMILY LAW – PROPERTY – CHILD SUPPORT – SPOUSAL MAINTENANCE – UNDEFENDED HEARING – Where the husband’s response was previously struck out – where the husband did not attend the final hearing – large asset pool – consideration of s 75(2) factors – where the wife has primary care for the child – where the husband has a higher income capacity – just and equitable |
| Child Support (Assessment) Act 1989 (Cth) Chang & Su (2002) FLC 93-117; [2002] FamCA 156 |
| APPLICANT: | Ms Turner |
| FIRST RESPONDENT: | Mr Turner |
| SECOND RESPONDENT: | Turner Pty Ltd |
| FILE NUMBER: | MLC | 5928 | of | 2013 |
| DATE DELIVERED: | 29 May 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Macmillan J |
| HEARING DATE: | 30 March 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Puckey |
| SOLICITOR FOR THE APPLICANT: | Taussig Cherrie Fildes |
| THE FIRST RESPONDENT: | No appearance |
COUNSEL FOR THE SECOND RESPONDENT: | No appearance |
| SOLICITOR FOR THE SECOND RESPONDENT: | Kenna Teasdale Lawyers |
ORDERS
IT IS ORDERED THAT
All extant interim orders be discharged.
On or before 4.00 pm on 26 June 2015, the husband do all acts and things and sign all necessary documents as may be required to:
a.Pay to the wife the sum of $12,042,312 (“the Payment”); and
b.transfer to the wife, at his expense, the German motor vehicle registration ...
Pending receipt by the wife in full of the Payment and any interest or other monies payable to her pursuant to these orders and the husband’s full compliance with his obligations pursuant to paragraph 2 herein, the husband pay to the wife spousal maintenance in the amount of $4,000 per month.
If the Payment is not made by the husband to the wife within 30 days, (“the Default”):
a.interest accrue on such amount as remains outstanding at the rate prescribed under the Family Law Rules 2004 (Cth) ;
b.within 7 (seven) days of the Default, the husband do all acts and things and sign all necessary documents as may be required to offer such of his his shares in Turner Pty Ltd (“TPL”) for sale to all other existing shareholders as are required to make the Payment to the wife, and, from the sale proceeds, to make the Payment (plus interest payable pursuant to paragraph (a) of this order) to the wife;
c.if no purchaser is found for the husband's shares in TPL within 7 (seven) days of the Default:
i.the husband forthwith do all acts and things and sign all necessary documents as may be required to transfer to the wife such proportion of his shares in TPL as shall be equivalent in value to the unpaid balance of the Payment (plus interest payable pursuant to paragraph (a) of this order); and
ii.TPL forthwith do all acts and things and sign all necessary documents as may be required to record the transfer of the husband's shares in TPL to the wife in the company register; and
d.in the event that the wife is unable to raise sufficient funds to meet the Payment (plus interest payable pursuant to paragraph (a) of this order) from the sale of the shares in TPL transferred to her pursuant to these orders, she have liberty to apply for such further and other orders necessary to enforce her entitlements pursuant to these orders.
The husband be liable for and pay and indemnify the wife and keep the wife indemnified against any and all liability past, present and future of and/or in relation to and/or arising from:
a.any and all liabilities of the husband personally guaranteed by the wife or in respect of which she is howsoever otherwise liable; and
b.any and all of the corporate entities in the Turner Group as identified in paragraph 2 of the Affidavit of Ms B filed 20 March 2015 (Turner Group) including but not limited to:
i.any liability personally guaranteed by the wife;
ii.any debit loan accounts held in the wife's name including but not limited to debit loan accounts held jointly with the husband; and
iii.all unpaid taxation assessed or hereinafter assessed against the wife in respect of income or capital paid, distributed or deemed to have been paid or distributed to the wife from any entity in the Turner Group and/or the assignment of any and all loan accounts; and
c.any liability, including taxation, arising from or consequent upon any transaction required by the provisions of these Orders.
Having been accorded procedural fairness in relation to the making of paragraphs 8 to 10 inclusive of these orders, paragraphs 8 to 10 inclusive of these orders bind the Trustee of MLC MasterKey Business Super Fund.
The operative time from which paragraph 8 of these orders has effect is the fourth business day after the date of service of these orders upon the Trustee of the MLC MasterKey Business Super Fund.
Pursuant to s 90MT(1 )(b) of the Family Law Act 1975 (Cth) (“the Act”):
a.the wife is entitled to be paid 50 per cent of each splittable payment out of the interest of the husband in MLC MasterKey Business Super Fund account no. 020069590 (“the Fund”); and
b.the husband's entitlement, and the entitlement of such other person to whom a splittable payment may be made, to payment out of the husband's interest in the Fund, is correspondingly reduced.
The Trustee of the Fund, its servants and agents, do all such acts and things and sign all necessary documents as may be required to:
a.calculate in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001 (Cth) the entitlement created by paragraph 8 of these orders;
b.pay the entitlement whenever a splittable payment becomes payable out of the husband's interest in the Fund.
After service of the payment split notice pursuant to reg 7A.03 of the Superannuation lndustry (Supervision) Regulations 1994 (Cth) (“the Regulations”), the wife do all such acts and things and sign all necessary documents as may be required, including but not limited to exercising her request pursuant to reg 7A.06(1) of the Regulations, for the rollover or transfer of the transferable benefits out of the husband's interest in the Fund to a fund of the wife's choosing in accordance with reg 7A.12 of the Regulations.
Pursuant to ss 116(1)(b) and 117(2) of the Child Support (Assessment) Act 1989 (Cth), there be a departure from the assessment of Child Support dated 29 January 2015 issued in respect of C born in 1999 (“the child”) effective from the date of the order and the husband pay or cause to be paid to the wife for the support of the child:
a.Pending payment in full of the Payment the sum of $1,120 per week to be adjusted annually in accordance with Consumer Price Index upward movements on 1 July each year commencing 1 July 2016; and
b.Upon payment in full of the Payment the sum of $600 per week to be adjusted annually in accordance with the Consumer Price Index upward movements on 1 July 2016.
Pursuant to s 124(1) of the Child Support (Assessment) Act 1989 (Cth) the husband pay the following by way child support in a form other than periodic amounts for the child:
a.all educational expenses at D School or at such other private school(s) as the child may attend by agreement of the parties inclusive of tuition fees, compulsory levies, uniforms, books, stationery, computer requirements, camps and excursions;
b.all private tutorials and extra-curricular activities;
c.private health insurance and out of pocket medical, dental, optical and . orthodontic expenses; and
d.all out of pocket medical, dental and optical expenses.
In relation to the payment of the expenses specified in paragraph 12 herein, the husband provide to the wife a supplementary credit card for her to use with an available credit of not less than $10,000 at all times and the wife be permitted to draw cash advances to pay any expenses which cannot be paid by credit card on the basis that the wife account to the Husband for the expenditure of funds within 7 (seven) days of each advance.
If the husband and/or TPL fail to comply with any obligation pursuant to the provisions of these orders to sign any instrument or document required thereunder, a Registrar of the Family Court of Australia be appointed pursuant to s 106A of the Act to execute the said instrument or document in the husband's place.
Pending the implementation of these orders, any joint tenancy of the parties in any real or personal estate is hereby expressly severed and the parties each hold their respective interests therein on trust for the other in such proportions as accord with their entitlements under the provisions of these orders.
Save as otherwise provided in these orders, and save for the purposes of enforcing any monies due pursuant to these orders, each party be solely entitled to the exclusion of the other party to all other property (including choses-in-action) in the possession or control of such party as at the date of these orders and without limiting the generality thereof:
a.the wife receive and retain:
i.her one-sixth interest in the real property situate at E Street, Suburb F;
ii.her one-third interest in the estate of her late father, Mr G, including the real property situate at H Street, Suburb M;
iii.her bank accounts including but not limited to the balance of funds from the sale of the real property situate at I Street, K Town;
iv.her shares in publicly listed companies;
v.her superannuation entitlement; and
vi.her personal belongings and effects;
b.the husband retain:
i.his interest in the real property situate at J Street, K Town;
ii.his interest in the various corporate entities in the Turner Group;
iii.the contents of his residence;
iv.his bank accounts and investments;
v.his interest in the L Lodge, P Town;
vi.his superannuation entitlement; and
vii.his personal belongings and effects;
c.money standing to the credit of the parties in any joint bank account be retained by the wife;
d.each party forego any claims they may have to any superannuation benefits belonging to or earned by the other party;
e.insurance policies remain the sole property of the owner thereof; and
f.each party be solely liable for and pay and indemnify the other party and keep the other party effectively indemnified against any liability encumbering or otherwise relating to any item of property to which that first named party is entitled pursuant to these orders.
The husband pay the wife's costs of, and incidental to, this application on an indemnity basis.
All extant applications be otherwise dismissed and removed from the list of cases awaiting hearing.
IT IS DIRECTED THAT
All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.
IT IS CERTIFIED THAT
Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.
*These orders have been amended where underlined to accord with the orders as pronounced by the Honourable Justice Macmillan on 29 May 2015.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Turner & Turner and Anor 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 MELBOURNE |
FILE NUMBER: MLC 5928 of 2013
| Ms Turner |
Applicant
And
| Mr Turner |
First Respondent
And
| Turner Pty Ltd Second Respondent |
REASONS FOR JUDGMENT
INTRODUCTION
These proceedings were commenced by the wife on 19 July 2013. The husband’s unwillingness to grasp the reality and inevitability of the wife’s entitlement to property settlement and, more importantly, his lack of participation in the proceedings and failure to meet his obligation to provide full and frank disclosure has been a feature of these proceedings.
On 29 October 2014 I struck out the husband’s Response to Initiating Application filed 4 October 2013. In my reasons for judgment I found at paragraph 34 that the “husband has not participated in these proceedings in a meaningful sense” and said that “he gave me little confidence that he would do so in the event that I did not accede to the wife’s application to proceed on an undefended basis”.
The matter was listed for mention before me on 4 March 2015. The husband appeared on that date and the second named respondent, Turner Pty Ltd (“TPL”), which is a family-owned and controlled investment vehicle, was represented by its solicitor. TPL’s solicitor advised the Court on that date that his client was aware of the orders sought by the wife but did not intend to appear or be represented at the final hearing. The husband advised the Court that he did not intend to file any affidavits but that he would attend and appear on his own behalf at the final hearing. Counsel for the wife also advised the Court on that date that it was the intention of all of the parties to convene a mediation with a view to settling the matter once the single expert, Ms B, had completed and released her report.
Notwithstanding his advice to the Court at the mention on 4 March 2015, the husband did not appear and was not represented at the final hearing before me on 30 March 2015. On 30 March 2015, the husband was called and did not appear. His sister was in Court and said that she had assumed that he would be at Court. However when I gave the husband’s sister the opportunity to contact the husband, she said that she had not been able to get in contact with him but that the staff at his office in K Town had said that he was somewhere in the K Town area. On that basis I can only assume that he had no intention of appearing.
However it was also brought to my attention at the commencement of the hearing that there had been an exchange of emails between the husband and the court. At 5.37 pm on 26 March 2015, the husband forwarded the following email to my associate:
I would like to talk to you about the hearing on Monday.
I am very concerned that I am not going to be treated fairly due to the fact that I am not being allowed to participate.
With the limited knowledge that Justice Macmillan has of my position I can not see how she can make a fair ruling.
The financial information presented by the other side is grossly exaggerated and inaccurate.
If Justice Macmillan uses this information as the basis for her rulings then the rulings will be very biased to the other side. Please could you call me at your earliest convenience to discuss the matter.
Thank you.
Kind Regards,
[The husband]
A reply was sent to this email by the Case Coordinator Team - Melbourne Registry and copied to the solicitors for the wife and the second respondent at 3.26 pm on 27 March 2015 as follows:
I refer to correspondence sent to the chambers of Justice Macmillan concerning your matter listed before Justice Macmillan on Monday 30 March 2015.
Please be advised that it is not appropriate to communicate with the chambers of the Judge and the Court cannot assist or provide you with legal advice. You will need to seek your own independent legal advice, however if you have a procedural question or are sending correspondence to the court you may use the Case Coordinators Email address and you will need to include the other parties into the Email.
At 4.04 pm on 27 March 2015 the husband replied to that email as follows:
Thank you for your email.
I have been trying to get in touch with [Justice Macmillan’s associate] to request an adjournment to the hearing on the grounds that I am being treated unfairly by not being allowed to participate at the hearing.
Also I have been severely disadvantage in the proceedings by not having the financial resources to obtain legal representation.
With the limited knowledge that Justice Macmillan has of my position I believe that it will not be possible for her to make a fair judgement.
If this is the case the matter will then go to appeal which will only delay settlement and add further costs and stress to all parties. I await your reply.
The husband’s assertion that he could not afford to engage a solicitor to act on his behalf in the proceedings does not stand up to scrutiny in light of the evidence that the Court now has with respect to the property the parties own, particularly the property in the husband’s control, and his income.
There is also little basis for the husband’s complaint that he has been shut out of the proceedings. In my reasons for judgment delivered on 29 October 2014 I said at paragraph 36 as follows:
I am mindful of the fact that this matter, for reasons not directly related to the husband’s conduct of the proceedings, may not be ready to proceed on 2 December 2014. Whilst I am satisfied that the husband’s failure to comply with the orders of this Court and his obligations to provide full and frank disclosure should not be permitted to delay the hearing on 2 December 2014, if the matter does not proceed on that date the husband may have the opportunity to apply to have his response reinstated…
The husband did not seek to appeal the orders made on 29 October 2014, he did not apply to reinstate his Response to Initiating Application, and he did not appear and/or make an application to adjourn the final hearing.
I am satisfied that the husband has had the opportunity to participate in the proceedings and has chosen not to, and that in all of the circumstances it would be a significant prejudice to the wife if she were not permitted to proceed with her application on an undefended basis.
Although the parties, including the second named respondent, had not attended a mediation prior to the final hearing, I was advised by counsel for the wife that the wife and the second respondent and their respective legal representatives had had discussions about the implications of the orders sought by the wife and intended to convene a mediation with respect to the implementation of whatever orders were ultimately made by the Court. The husband’s sister, who is one of the shareholders in the second named respondent, was in the Court at this time.
Background
The husband is currently 52 years of age. He is an employee, shareholder, director and Chairman of the Board of Turner Holdings (“TH”), the largest a large primary producer in Australia. The husband is also a director, shareholder and the Company Secretary of TPL, a private investment company.
The wife is currently 50 years of age and is primarily engaged in home duties. She works on an occasional basis. The wife has completed her nursing degree save and except for the practical requirement that she complete a year of work experience. Although she has been diagnosed as having coeliac disease, she is generally in good health.
The husband and wife commenced cohabitation in June 1993 and married in 1993. The husband and wife separated in October 2012 when the husband left the then matrimonial home in K Town.
C, who is the only child of the marriage, is currently 16 years of age. Like the wife, the child has been diagnosed with coeliac disease as a result of which they both have special dietary requirements. The child has also been assessed as having dyslexia and requires tutoring to assist to manage his schooling.
Prior to separation the husband and the wife had agreed that the child would attend D School from the commencement of Year 9 until the completion of his secondary education. The wife and the child left the former matrimonial home in K Town on 14 December 2013 and relocated to Melbourne so that the child could commence Year 9 at D School the following year.
Documents Relied Upon
The Wife relied upon the following material:
·Her updated further Amended Initiating Application filed 5 December 2014;
·Her affidavit of evidence in chief filed 22 September 2014;
·Her updated Financial Statement filed 22 September 2014;
·Affidavit of Ms B filed 20 March 2015;
·Affidavit of Mr Q filed 30 March 2015;
·Affidavit of Mr R filed 30 January 2015; and
·Affidavit of Mr S filed 30 January 2015.
As stated above, I struck out the husband’s Response on 29 October 2014. The husband has not sought to either file any affidavits of evidence in chief or sought leave to cross-examine any of the wife’s witnesses.
The second named respondent has not filed any documents in these proceedings and was not represented at the final hearing.
History of the Proceedings
I have already set out in some detail in my reasons for judgment delivered on 29 October 2014 the history of this matter with respect to the way in which the husband has conducted himself in the context of these proceedings. In particular, I set out the husband’s failure to participate in the proceedings in a meaningful way, particularly his failure to provide full and frank disclosure and co-operate and/or facilitate the single expert valuations as ordered.
Counsel for the wife referred me to a number of authorities in relation to the approach to be adopted in cases, such as this, where a party’s failure to provide full and frank disclosure affects the Court’s ability to ascertain the extent of the assets. In Chang & Su (2002) FLC 93-117; [2002] FamCA 156 (“Chang & Su”) Kay and Dawe JJ, with whom Finn J agreed, summarised what they described as the well settled principles in a number of earlier decisions of the Full Court in cases in which one of the parties has failed to provide full and frank disclosure. In Weir & Weir (1993) FLC 92-338; 16 Fam LR 154, one of the cases referred to in Chang & Su, the Full Court said at page 79,593 as follows:
It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour’s findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be though to provide a charter for fraud in proceedings of this nature…
….
We should have thought that the Court’s jurisdiction to make an order going beyond the identified property arises once there is sufficient evidence to support a finding that the party has not made full disclosure of his or her assets.
In Kannis & Kannis (2003) FLC 93-135; [2002] FamCA 1150, the Full Court considering the same line of cases said commencing at paragraph 49 as follows:
49.On 5 November 2002 the High Court dismissed an application by Mr Chang seeking Special Leave to appeal from the Full Court’s decision. In the course of argument Callinan J observed:
“It does not matter what the principle might be said to be, a court has to do the best it can. It does the best it can, having regard to the evidence that is adduced and if the parties are not frank then naturally there is going to be a measure of imprecision about any finding that the court can make.”
….
51.Whether the non-disclosure is wilful or accidental, is a result of misfeasance, or malfeasance or nonfeasance, is beside the point. The duty to disclose is absolute. Where the Court is satisfied the whole truth has not come out it might readily conclude the asset pool is greater than demonstrated. In those circumstances it may be appropriate to err on the side of generosity to the party who might be otherwise be seen to be disadvantaged by the lack of complete candour.
I agree with counsel for the wife’s submission that the way in which the husband has conducted the proceedings, his failure to provide full and frank disclosure and his refusal to co-operate with the single experts in this case are relevant considerations both for the purposes of the identification and valuation of the property, which the wife submits is available for the purposes of her application, and with respect to how the Court exercises its discretion to alter the parties’ interests in the property based upon those valuations that the wife has been able to obtain.
There are a number of issues in relation to which it is submitted the Court should err on the side of generosity to the wife, the party disadvantaged by the husband’s conduct, including the husband’s non-disclosure, which I will address as they arise.
Legal Principles
Applications for the alteration of interest in property are determined in accordance with the provisions of s 79 of the Family Law Act 1975 (Cth) (“the Act). Section 79(2) of the Act provides that the Court must not make an order pursuant to s 79 unless it is satisfied that it is just and equitable to make that order (Stanford v Stanford (2012) 247 CLR 108 (“Stanford v Stanford”); Bevan & Bevan [2013] FamCAFC 116) (“Bevan & Bevan”). The Full Court in Bevan & Bevan at paragraph 86 also made it clear that that the just and equitable requirement is not a threshold issue as such but “rather one permeating the entire process”.
The High Court said in Stanfordv Stanford at paragraph 82:
[i]n many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as a result of a choice made by one or by both of the parties, the husband and the wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and the wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship.
(original emphasis)
The husband and the wife are no longer living in a marital relationship and have not done so for almost three years. They no longer have the common use of property and the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the severance of their marital relationship. I am satisfied that the assumptions that underpinned the existing arrangements and the arrangements themselves, if they were to continue, would in this case result in a significant injustice to the wife. I am satisfied that in all of the circumstances it is just and equitable to make orders altering the parties’ legal and equitable interests in property.
The Wife’s Balance Sheet
The wife’s case is that, having regard to the husband’s failure to provide full and frank disclosure or to fully cooperate with the single expert witnesses, the following balance sheet is a fair assessment of the pool of divisible property:
| ASSETS | ||||
| Ownership | Description | Value | ||
| Husband | Interest in Turner Holdings Ltd (TH) | $10,667,000[1] | ||
| Husband | Interest in Turner Pty Ltd (TPL) | $13,657,000[2] | ||
| Husband | Related Party Loans – TPL | $ (93,059)[3] | ||
| Husband | Interest in T Pty Ltd | $ (74,000)[4] | ||
| Husband | Accrued leave entitlements as at 31/12/2013 | E$ 94,035[5] | ||
| Husband | J Street property | E$ 900,000[6] | ||
| Husband | Interest in Ski Lodge – P Town | E$ 15,000 | ||
| Joint | German motor vehicle (driven by Wife) | E$ 25,000[7] | ||
| Wife | Balance of net proceeds of sale of I Street property | E$ 560,000[8] | ||
| Wife | E Street, Suburb F – Estate of Ms G1/6 interest | $ 265,600[9] | ||
| Wife | Shares in publicly listed companies (as at 19/09/2014) | E$ 230,751 | ||
| TOTAL | E$26,247,327 | |||
| SUPERANNUATION | ||||
| Member | Name of Fund | Type of Interest | Value | |
| Husband | MLC | Accumulation (as at 25/08/13) | $ 343,797 | |
| Wife | MLC | Accumulation (as at 16/09/14) | $ 38,829 | |
| TOTAL | $ 382,626 | |||
| FINANCIAL RESOURCES | ||||
| Ownership | Description | Value | ||
| Wife | Estate of Mr G – V Street, W Town – 1/3 interest | $280,000[10] | ||
| Husband | Financial assistance from de facto partner | $ NK[11] | ||
| TOTAL | $280,000 | |||
[1] As per Scenario A (paragraph 2.2) of single expert valuation by Ms B (B report). However Husband and Second Respondent (TPL) failed to provide to the single expert:
·any financial statements of Turner & Co Pty Limited;
·any financial statements of U Pty Ltd Limited; and
·a listing of the individual companies or number of shares held in the name of the child Turner Fruit Packing Company Pty Limited.
[2] As per Scenario A (paragraph 2.2) of B Report. Valuation stated by single expert to be unconcluded due to the failure of Husband and TPL to provide information detailing the listed companies in which TPL owns an interest or the number of shares held at the valuation date.
[3] As per Scenario A (paragraph 2.2) of B Report.
[4] As per Scenario A (paragraph 2.2) of B Report.
[5] As per paragraph 2.22 of B Report. Husband has not disclosed his current entitlements. He has previously deposed in interim affidavits and asserted to this Honourable Court at the hearings on 4 August 2014 and 29 October 2014 that he works up to seven days a week and takes limited leave.
[6] Purchased by Husband post-separation but registered in the name of his de facto partner, Ms X.
[7] Registered in name of Y Pty Ltd.
[8] Of the net proceeds of sale of E$850,000 received by the Wife pursuant to the Orders made by this Honourable Court on 7 October 2013, the sum of E$170,000 has been applied to the Wife’s legal costs and disbursements including her half share of single expert witness’ fees and the balance to meet the living expenses of the Wife and the parties’ son.
[9] As per single expert valuation by Mr R of Z Pty Ltd.
[10] As per single expert valuation by Mr Q of Z Pty Ltd.
[11] According to note (3) to Appendix F/5 of B Report, the salary package of Ms X, the Chief Financial Officer of TH, was $124,920 as at 31 December 2013.
The wife’s case is that the property falls into three distinct categories: the husband’s interest in the Turner Group, the husband’s property and the wife’s property. The first of those categories is what I will describe as “the Turner Group”. The Turner Group comprises the husband’s interest in TH and TPL less related party loans and his interest in T Pty Ltd.
Turner Holdings Ltd
The husband is a director of various entities which make up the Turner Group. He is also Chairman of the Board of TH. His new partner is the Company Secretary and Chief Financial Officer of TH. According to the business review prepared by the National Consulting Group for the National Australia Bank (“NAB”) dated 27 June 2013, which was produced by the NAB pursuant to subpoena:
·The Turner Group is Australia’s is a large primary producer;
·It was founded in 1949 by the husband’s father and four other families in the K Town area, originally exporting produce to the United Kingdom, Europe and Asia;
·Over the years the Turner Group has grown into a vertically integrated farming business, controlling all aspects of the supply chain including ownership of farms and water entitlements, production, storage, packing ,sales and marketing and logistics;
·TH is a non-listed company and is the Turner Group’s ultimate holding company;
·TH has 48 shareholders with the major shareholder being:
i)TPL (58.7 per cent);
ii)the husband (27.6 per cent);
iii)the husband’s brother Mr AA Turner (4.8 per cent);
·The Turner Group consists of 16 entities, which include the following active entities:
i)Turner Farms Pty Limited (farms division);
ii)BB Pty Ltd;
iii)Turner Packing Company Pty Limited (packing division);
iv)Y Logistics Pty Limited (storage and handling);
v)Turner Cold Storage Pty Limited (cold storage division);
vi)Y Pty Limited (cartage division);
vii)Turner Co-operative Company Pty Limited (management company for payroll purposes);
·Other companies owned by TH but which are not active entities are:
i)Turner Packing Company 2 Pty Limited;
ii)Y CC Street Trust (holding trust for the property at CC Street, K Town);
iii)Y DD Street Trust (holding trust for the property at DD Street, K Town);
iv)Y Sales Pty Ltd;
v)Turner Property Holdings Pty Ltd (holds no assets);
vi)EE Pty Ltd (holds the vendor number to enable supply to Woolworths);
vii)EE Export Pty Ltd; and
viii)EE Coolstore & Packing Pty Ltd.
·TH holds the majority of the non-farm assets, such as properties and plant & equipment. TH earns income in the form of rent and management charges from other companies in the Turner Group.
·In recent years the Turner Group has grown and increased its sales to the major supermarkets in Australia. The growth has largely come as a result of farm purchases the Turner Group has made in the past ten years in order to increase its producing capacity to 90 per cent of its total sales. The Turner Group has invested significantly in farm improvements to (increase production such as additional plantings, replacing older varieties with newer more sought after varieties and installing tree netting. These improvements have seen fruit production increase by over 15 per cent over the past three years.
·The Turner Group has an annual turnover of approximately $70 million and is a major supplier to Australia’s major supermarket retailers, including Coles (to which it supplies approximately 35 per cent of Coles’ total), Woolworths (approximately 10 per cent) and ALDI (approximately 50 per cent in Victoria). Approximately 80 per cent of the Turner Group’s total sales are to the major supermarkets. In addition it sells produce into the Melbourne, Sydney and Brisbane wholesale markets using local agents.
·In addition to produce sourced within the Turner Group (Turner Farms Pty Ltd), it also packs produce sourced from external growers (approximately 10 per cent) and co-ordinates other farmers and packers to supply produce directed to its customers
·The Turner Group's cold storage operations are conducted by Y Logistics Pty Ltd which operates seven facilities in and around K Town. Its main customers are the Turner Packing Company Pty Ltd (45 per cent), FF Limited (34 per cent) and GG Pty Ltd (18 per cent).
·Turner Cold Storage Pty Ltd undertakes third party cold storage and freezing activities from its HH Town facility.
·Y Pty Ltd operates a fleet of 19 trucks which do daily deliveries to the major markets of Melbourne, Sydney and Brisbane, as well as supermarket distribution centres. In addition they provide freight services to other farmers carting produce to similar markets.
·The Turner Group's financial year runs from 1 January to 31 December, which coincides with farming season/operations.
·According to TH's 64th Annual Report for the year ended 31 December 2013, the company has net assets of $36,721,165. NCG's business review appears to be based on a net asset backing without any allowance for enterprise value.
·The rural real properties owned by entities in the Turner Group comprise the following:
i)DD Street, K Town;
ii)TH Property;
iii)CC Street, K Town;
iv)II Street, HH Town;
v)2 CC Street, K Town;
vi)3 CC Street, K Town;
vii)GB Property;
viii)JJ Street, KK Town;
ix)TF Property, KK Town;
x)LL Property
xi)MM Street, NN Town;
xii)OO Street, NN Town;
xiii)TR Property;
xiv)LP Property;
xv)PP Street, NN Town;
xvi)QQ Street, K Town;
xvii)MH Property & SL Property
As referred to in my reasons for judgment delivered on 29 October 2014, the husband did not respond to the requests of Agribusiness Valuations Australia to pay his half of their estimated costs of valuation of the real property owned by entities in the Turner Group. As a result of that failure, the valuation by the single expert Ms B of Turner Group upon which the wife now relies is based upon the valuations in the 2013 financial statements, except where the valuations prepared by RR Valuers in December 2012, which the husband deposes were prepared for the NAB’s requirements, evidence a higher value or where there is evidence of the sale price available closer to the valuation date. Counsel for the wife submitted that the Court would be entitled to conclude that these valuations, being for asset valuations purposes for the NAB’s lending requirements, apart from being out of date, would be likely to be conservative and to draw that inference in the wife’s favour. Counsel for the wife also submitted that the Court could, in support of that inference, have regard to the properties that have been sold, particularly the property at II Street, HH Town which was valued in the financial statements as at 30 June 2013 at $2,674,941, valued by RR Valuers as at May 2012 at $2,775,000 and sold for $3,950,000.
This was the one aspect of the valuation of the TH in relation to which the husband had some input, putting to Ms B that she, on the basis of consistency, should rely upon the RR Valuers valuation and not the sale price for the II Street property. I am satisfied that it is appropriate to adopt Ms B’s Scenario A valuation which includes the sale price of II Street rather than the value attributed to it by RR Valuers on the basis that as Ms B said “it is the most appropriate proxy for the value of the property”. It is hard to see how the husband could have suggested otherwise in circumstances where the only reason it was necessary to rely on clearly out of date valuations is because he had not paid his half share of the cost of updated valuations.
Ms B also referred in her report to the SGARA, an acronym for “self-generating and regenerating assets” which she valued at their written down book value as at 31 December 2013 as a proxy for their market value “due to the lack of other information produced” and the lack of any valuation by an independent valuer. This was another example counsel for the wife submitted should lead the Court to conclude that the valuation placed on the husband’s interest in Turner Group is conservative.
Ms B also noted in her report that TH holds shares in other related companies and shares in listed companies. Ms B said that she had adjusted the book value of these investments to the market value, or assessed value at 31 December 2013 per Yahoo Finance, but said as follows:
·An ASIC extract for [Turner & Co Pty Limited] shows that the company has 10,000 ordinary shares issued at $2 per share, of which [Turner Holdings] holds 2,475 shares, whilst the Estate of [Mr SS Turner] holds 25 shares. I am unaware of the relationship between [Turner Holdings] and [Turner & Co Pty Limited], nor have I received any financial statements of [Turner & Co Pty Limited] in order for me to ascertain the market value of the shares. Accordingly, in the absence of any other information, I have adopted the book value of the shares for the purpose of my report.
·I am advised that [TT Farms Pty Limited] owns 1 share in [U Pty Ltd]. I am unaware of the relationship between [TT Farms Pty Ltd] and [U Pty Ltd], nor have I received any financial statements of [U Pty Ltd] in order for me to ascertain the market value of the shares. Accordingly, in the absence of any other information, I have adopted the book value of the shares for the purpose of my report.
·I have requested, but not been provided with, a listing of the individual companies or number of shares held In the name of the [Turner Packing Company Pty Limited] as at the valuation date. Accordingly, I have included the shares held in listed companies at cost per the financial statements for the year ended 31 December 2013.
Counsel for the wife submitted that this was another example of the husband’s lack of co-operation with the single expert.
All of these issues identified by Ms B with respect to her valuation lead me to conclude, erring on the side of generosity in favour of the wife, that the value attributed to Turner Group by Ms B is likely to be conservative.
Turner Pty Ltd
The wife deposes that TPL (including its wholly owned subsidiaries) is a family company which owns 58.7 per cent of the shares in TH as well as significant real estate in the Melbourne area and shares in publicly listed companies.
The husband, his brother Mr AA Turner, his sister Ms UU and their mother are the directors of the company. The husband is the Company Secretary and the wife says primarily responsible for the management of the company.
The husband in his first affidavit filed 4 October 2013 deposed as to the ownership and control of TPL as follows:
23. [TPL] has four different classes of shares on issue – A, B, C and D. all classes of shares have rights to dividends. Class A and B shares have the right to attend meetings and vote, but have no entitlement to shares in the distribution of surplus assets or profits if [TPL] is wound up. Class C shares do not have voting rights attached, but do have the right to share in the distribution of surplus assets or profits if [TPL] is wound up. Our present accountant is unable to determine what rights attach to the D class shares as they are not addressed in the company secretariat file or the records held by ASIC.
24. The shares in [TPL] are held as follows:
| Member | Share Class A | Share Class B | Share Class C | Share Class D |
| [Turner, Ms VV*] | 14 | 1 | 5 | 1 |
| [Ms UU] | 2 | 1 | 5 | 1 |
| [Turner, Mr] | 2 | 1 | 5 | 1 |
| [Turner, Mr AA] | 2 | 1 | 5 | 1 |
| Total | 20 | 4 | 20 | 4 |
*Note: As probate of my father’s Will has not yet been granted, ASIC records still record my father as holding 12 A class shares.
25. As a result of my father’s death:
25.1 TPL is now effectively jointly owned by members of my family as follows:
(a) Me – 25%;
(b) [Ms UU] (my sister) – 25%;
(c) [Mr AA Turner] (my brother) – 25%;
(d) [Ms VV Turner] (my mother) – 25%;
25.2[TPL] is currently controlled by my mother, who has 15 shares (A and B class) with attached voting rights (ie 62.5% of the votes). Me, [Ms UU] and [Mr AA] each hold 3 shares with attached voting rights (ie 12.5% each of the total votes).
The wife also refers to and relies upon the husband’s second affidavit in which he deposes to the fact that his mother is suffering from dementia and is unable to make decisions by herself.
Ms B in her report has apportioned value by reference to the Memorandum and Articles of Association on the basis of the ownership of shares which give the owners of those shares the right to participate in the distribution of surplus assets and profits of the company in the event of a winding up. She also concludes, and I am satisfied rightly so, based upon the husband’s evidence that his mother suffers from dementia, that the company is controlled by the husband and his siblings. It was submitted that this is significant in terms of the husband’s capacity to access his interest in the company for the purposes of satisfying any order made in the wife’s favour.
The wife deposes that, save for a property in WW Town, Victoria, the properties owned by TPL were valued by Z Pty Ltd for the purposes of these proceedings but that those valuations were not released as a result of the husband’s failure to pay his half share of the valuation fees in the sum of $8,745. The property in WW Town was one of the properties to be valued by Agribusiness which was similarly not valued because the husband did not pay his half of the fees. The valuation was carried out on a net asset backing basis. As a result, Ms B relied upon the financial statements for the year ending 30 June 2013 to prepare her valuation of TPL.
As noted by Ms B, the TPL balance sheet as at 30 June 2013 included shares in associated companies and shares in listed companies. Ms B noted in her report that she had requested, but was not provided with, a list of the associated companies or the number of shares held or the identity of listed companies and shares held as at the valuation date. It was on that basis she said she had included those shares at cost per the financial statements for the year ending 30 June 2013.
As with her TH valuation, Ms B was unable, as a result of the husband’s failure to provide information and to pay his half share of the valuation of the real property, to reach a concluded view as to the valuation of TPL. It was submitted by counsel for the wife that this was in all likelihood a conservative valuation. In all of the circumstances for the reasons already referred to I accept that submission.
Single Expert’s Conclusions
Based upon Scenario A, Ms B valued the husband’s 25 per cent interest in TPL at $10,667,000 and his 26.96 per cent interest in TH, which includes TPL’s 58.7 per cent interest in TH, at $13,657,000. Ms B concluded that T Pty Ltd, which she similarly valued on a net asset backing basis, had a deficiency which she attributed in accordance with the proportionate shareholding, the husband’s share being $74,000.
Ms B, in reaching her conclusions, considered whether it was necessary to apply a minority or liquidity discount to the value of the husband’s interest. Counsel for the wife submitted that the husband, by virtue of his interest in TH and his interest in TPL, held a little over 40 per cent and that no other shareholder controls more than 19.37 per cent of the shares in TH. Ms B also said that in her “opinion it is arguable that a minority (control) discount is not necessary in view of the involvement of the husband in the activities of the various entities and his close relationship with the other directors and investors, predominantly member of his family”. I accept her evidence.
Ms B prepared her valuation having regard to a number of scenarios as to the appropriate discount, if any, in relation to liquidity. The first of those scenarios was that the husband would continue to hold his various interests in the entities on a long term basis and therefore no liquidity discount is required. The second scenario was based upon a sale of some part of the husband’s interest to a family member who already holds an interest, is closely associated to the business and does not face the same minority issues that an unrelated party would. It was her conclusion that on that basis a conservative liquidity discount in the range of 5 per cent to 10 per cent might be applied. The third scenario was that of a sale to a known party such as an employee, to whom, because of their connection to the business, the shares would have a greater value. In that case she said she had applied a 15 per cent discount. Finally, Ms B considered what discount might be required in the event of a sale of the husband’s interest to an unrelated third party the amount of that discount “being influenced by the terms of a shareholder agreement, the continuity of the existing management team and so on”. Ms B assumed a 40 per cent discount off the pro rata value of the husband’s 25 per cent interest in TPL and his 26.96 per cent interest in TH which she said reflected both a minority and liquidity discount. Ms B ultimately concluded that it was a matter for the Court to determine the extent, if any, of the discount that should be allowed on the basis of factual circumstances presented that were not known by her.
Ms B also noted that she had not considered the effect of the future Capital Gains Tax (“CGT”), income tax or Goods and Services Tax (“GST”) on the realisation of the assets of any of the entities (with the exception of the CGT calculation in respect of the sale of the property at WW Town), or the husband’s interests in the entities.
Counsel for the wife submitted that the Court could and should not apply either a minority or liquidity discount. He based his submission on the following matters:
·The husband’s involvement and level of control in the various activities of entities and the close relationship between he and the other directors and investors, they being predominantly members of his family; and
·That neither the husband or the second respondent had adduced any evidence as to any intention on the husband’s part to sell his interests in the entities or any part thereof and on that basis the most likely scenario is that the husband will retain his shares in the various entities on a long term basis;
Counsel for the wife also made submissions based upon the report prepared by Ms B as to the husband’s capacity to satisfy the orders the wife seeks without the necessity of selling his interests or part thereof in the various entities. They include the following as at 31 December 2013:
·That TPL has total assets of $46,416,965 and total liabilities of only $3,749,690;
·That the assets of TPL include real property which has a total value of $10,467,000, none of which are core business assets;
·That the assets of TPL include units in the XX Street Property Trust which holds the property at XX Street, Suburb YY which comprises six two-bedroom units and has been valued at $3,515,000. TPL’s investment in the property trust is reflected in a loan in the balance sheet as a loan by TPL. The trustee of the unit trust in which TPL holds all the units is PLG Pty Ltd. The directors of PLG Pty Ltd are the husband, his brother and his sister; and
·That TH has net surplus assets of $28,169,867 which includes cash of $269,123 and buildings valued as per the financial statements or the RR Valuers valuations where those valuations are higher. The total liabilities referable to the net surplus assets are$38,087,289.
·That the surplus assets include a number of properties on Q Street, in K Town which ,according to the Property Value Summary, have a combined value of $6,530,000 and are tenanted by a third party. These properties were similarly not valued for the purposes of the hearing because of the husband’s failure to pay his half of the cost of such valuations.
Counsel for the wife also submitted that the Court should have regard to the fact that the second named respondent, knowing the orders the wife seeks, has not only chosen not to challenge the valuation prepared by Ms B or otherwise participate in the proceedings but has indicated that it will attend mediation for the purposes of implementing the orders the Court makes.
Finally it was submitted that in circumstances where there is no evidence as to the proposed sale of either the husband’s interests or real property owned by the entities in which he has an interest, the Court cannot make findings as to whether or not there is any basis for making any allowance for CGT or any other tax that might be payable. Counsel for the wife referred me to principles enunciated in Rosati & Rosati (1998) FLC 92-804 (“Rosati”) as follows:
(1) Whether the incidence of capital gains tax should be taken into account in valuing a particular assets varies according to the circumstances of the case, including the method of valuation applied to the particular asset, the likelihood or otherwise of that asset being realised in the foreseeable future, the circumstances of its acquisition and the evidence of the parties as to their intentions in relation to that asset.
(2) If the Court orders the sale of an asset, or is satisfied of it is inevitable, or would probably occur in the near future, or if the asset is one which was acquired solely as an investment and with a view to its ultimate sale for profit, then, generally, allowance should be made for any capital gains tax that will be payable upon such sale in determining the value of that asset for the purpose of the proceedings.
(3) If none of the circumstances referred to in (2) applies to a particular asset, but the Court is satisfied that there is a significant risk that the asset will have to be sold in the short to mid term, then the Court, whilst not making allowance for the capital gains tax payable on such a sale in determining the value of the asset, may take that risk into account as a relevant s.75(2) factor, the weight to be attributed to that factor varying according to the degree of the risk and the length of the period within which the sale may occur.
(4) There may be special circumstances in a particular case which, despite the absence of any certainty or even likelihood of a sale of an asset in the foreseeable future, make it appropriate to take the incidence of capital gains tax into account in valuing that asset. In such a case, it may be appropriate to take the capital gains tax into account at its full rate, or at some discounted rate, having regard to the degree of risk of a sale occurring and/or the length of time which is likely to elapse before that occurs.
In this case there is no evidence as to the realisation of a particular asset or evidence which would lead me to conclude that there is a risk that a particular asset will have to be sold to give effect to the orders the wife seeks. In those circumstances, I am satisfied that is not necessary, even if it were possible, to take CGT into account in valuing the husband’s interest in the Turner Group. I am also not satisfied, in circumstances where there is no evidence based upon which I could assess the risk of a particular asset being sold in the short to mid-term, that I can take such a risk into account as a relevant s 75(2) factor as the Full Court said in Rosati other than in a general sense.
The wife has also included the husband’s accrued leave entitlements in the sum of $94,035 in her balance sheet. Although it is not possible, on the evidence before me, to make findings as to what the husband’s leave entitlements may have been as at the date of the hearing before me, as submitted by counsel for the wife, it is the husband who is responsible for this deficiency in the evidence. I propose on that basis to include the figure of $94,035 identified by Ms B as at 31 December 2013. It was Ms B’s evidence that the husband’s accrued leave entitlements may be treated as an asset or financial resource in addition to the value of the husband’s equity in TH. Counsel for the wife submitted that the Court should, having regard to the husband’s failure to make full and frank disclosure and his lack of cooperation in the valuation of his interests in the Turner Group, adopt the approach most favourable to the wife. I am satisfied that it is an appropriate course to adopt in this case.
In conclusion I am satisfied, in all of the circumstance of this case, that I should adopt the value attributed to the husband’s interests in the Turner Group by Ms B in Scenario A but also accept that in all of the circumstances of this case this valuation is likely to be conservative.
The Husband’s Property
The wife has included in her balance sheet the J Street property in which the husband and his new partner currently reside. This property, whilst registered in the name of the husband’s new partner, was purchased post-separation for approximately $938,000. Ms B in her report notes that the husband deposed to having borrowed funds $706,293 from TPL and $210,000 from TH, a total of $916,293, to settle the purchase.
It is the wife’s case that notwithstanding that the property is registered in the name of the husband’s new partner it should, on the basis of the husband’s evidence that he holds an interest in the property equivalent to the value of his contributions to its acquisition, be included in the balance sheet. Whilst I do not necessarily disagree with that proposition, it is also the case that the loans with respect to the purchase of the property are not reflected in the values of either TH or TPL. The Turner Group was valued as at the 31 December 2013 at which time the husband had borrowings of only $93,059 from TPL. Ms B’s evidence is that this loan of $93,059 should be included as a liability in the husband’s Financial Statement and it is included on that basis in the balance sheet. However that does not account for the husband’s loans with respect to the purchase of J Street.
Ms B noted in her report that the loan from TPL had not been repaid. The wife however deposes that the husband has repaid $90,000 to TH, in four lump sum instalments. That suggests that the husband still owes approximately $826,000 that has not been taken into account in the valuation of the Turner Group and in my view should be included in the balance sheet as a liability of the husband.
As this matter had not been addressed I relisted the matter for mention before me to hear the parties’ submissions, if any, with respect to the husband’s borrowings from the TH and TPL and how they should be treated by the Court. Although the husband did not appear at the final hearing he did appear at the mention of the matter. There was no appearance for the second named respondent however the husband’s sister, who is a shareholder of that company, was present at Court.
The husband submitted that his interest in J Street is worth $800,000 and he owes $800,000 however he did not adduce any evidence to support that submission. Ignoring for the moment the manner in which the husband has conducted himself in these proceedings and whether the Court would be prepared in these circumstances to grant leave to the husband to adduce evidence at this late stage of the proceedings, the first step is that the husband would need to file an Initiating Application seeking to reopen the case or, in these circumstances, commencing his case, and an affidavit in support of that application explaining why it is he has previously failed to adduce this evidence. I also explained to the husband that as I was hoping to deliver my judgment the following day that he would need to act quickly if he proposed file an application. He has in any event not done so.
Counsel for the wife submitted that the issue of the husband’s loan might be addressed in two ways. He submitted, in my view correctly, that the husband bears the onus of proving this existence of this liability and as he has not done so it is not for the wife to prove the existence of this liability. He submitted that on that basis I can and should include the J Street property but disregard any loan allegedly related to its acquisition in the absence of any evidence in relation to that loan, evidence which is in the control of the husband and not the wife.
Counsel for the wife also referred me to the evidence with respect to the husband’s not insignificant share of the profits of the Turner Group, an entitlement he has had since separation to the exclusion of the wife. I will refer to the financial circumstances of the parties since separation in more detail later in these reasons.
The other approach suggested by counsel for the wife was that if the whole of the $900,000 attributed to the value of J Street, and I note here that it was not included at its market value, and the loan although the balance is an uncertain balance were to be deducted, the asset pool upon which the wife bases her claim would be $25,347,327. Counsel for the wife further submitted that the sum of $13,123,663 that the wife seeks represents approximately 51.6 per cent of that pool, a figure that counsel for the wife submitted was well within the range.
Although there is no evidence based upon which I could conclude that the husband’s interest in J Street is worth $800,000, there is some evidence with respect to the loans associated with the acquisition of the property and in all of the circumstances I do not consider that it would be proper to disregard those loans. Although on the basis of the figures I have referred to in Ms B’s report there would appear to be $826,000 owing the husband says he owes $800,000. In circumstances where this is information that he would have access to, I propose to accept his figure. In all of the circumstances it is my view that the J Street property should be included in the balance sheet at a figure of $900,000 as proposed by counsel for the wife, but with a corresponding liability of $800,000.
The husband’s property also includes the interest the parties purchased in a lodge at P Town in 2010.
The Wife’s Property
The third category of property is what I will describe as the wife’s property. This includes the German motor vehicle in the wife’s possession. Although this vehicle is registered in the name of Y Pty Ltd, it does not appear in the balance sheet and on that basis is not taken into account in the valuation of the Turner Group. On that basis it is properly included as an asset in the balance sheet.
The wife has included in the balance sheet the balance of the net proceeds of sale of the former matrimonial home at I Street, K Town in the sum of $560,000. The property was sold in late October 2013 and on 7 October 2013 Cronin J made orders that the net proceed of sale of the property be paid to the wife by way of interim property distribution. The wife received the sum of approximately $850,000 pursuant to the orders of Cronin J. The wife has applied the sum of approximately $170,000 to her costs and disbursements including her half share of the single expert witnesses’ fees and the balance to meet living expenses for her and the child.
The wife deposes that on 1 November 1999, her mother died and her estate, which was valued at $1,072,182, was divided equally between the wife, her sister Ms BW and her brother Mr VS. On 18 November 1999 the wife’s grandmother died and her estate, valued at $1,110,308, was divided equally between her children. As the wife’s mother had predeceased her grandmother, her mother’s interest passed to the wife and her siblings in equal shares. The wife received a parcel of shares in publicly listed companies which she still owns and are included in the balance sheet and a one-sixth interest in the property at E Street, Suburb F. The Suburb F property has been valued and the wife’s one-sixth interest of $265,000 is included in the balance sheet.
On 12 September 2010 the wife’s father died. The wife her sister and brother each inherited a one-third interest in his estate valued at $835,000. The wife and her siblings also inherited a one third interest in a property at H Street, Suburb M.
The wife deposes that her brother Mr VS is unable to support himself or manage the money he has inherited and that since late-2010, part of the $835,000 has been used to support Mr VS. He has been provided with a flat and a car, and his utilities, car expenses and medical expenses are paid for directly by the estate. The estate also pays the expenses for the Suburb M property. When the wife swore her trial affidavit in September 2014, she said the estate held a total of $490,800.
It is the wife’s case that as her interest in her father’s estate was received late in the marriage and given the particular circumstances of this case, it is appropriate not to include her interest in her father’s estate in the balance sheet. Whilst the wife did receive her inheritance prior to separation, her father died only two years prior to separation. Whilst it is ultimately the wife’s choice as to what she does with her inheritance, including supporting her brother, and that would not preclude it being included in the balance sheet, I am satisfied that in this case the inheritance from her father, which is of recent origin and which is in the circumstances of this case quite modest, should not be included. Although that is the case, it is a matter I can, and propose to, take into account pursuant to s 75(2) of the Act.
The Balance Sheet
The only point of difference between the balance sheet based upon my findings is the inclusion of the loan of $800,000 with respect to J Street. After deduction of that loan, the total value of the property on my figures, excluding superannuation and the inheritance from the wife’s father is $25,421,327.
Section 79(4)
The Court, being satisfied that it is just and equitable to make orders for property settlement, having identified the property and the parties’ interests in that property, must make such orders as it considers appropriate and in considering what order should be made shall take into account the matters in s 79(4) of the Act.
Having identified the property available for division, the Court must in determining what order it should make adjusting the parties’ interests in that property must consider the matters in s 79(4).
Contributions
The wife’s affidavit of evidence in chief was sworn on 19 September 2014 and filed on 22 September 2014. That affidavit contains the evidence upon which she relies. The husband has had the opportunity to reply to that affidavit and has chosen not to do so. It was a consequence of his failure to file his affidavit of evidence in chief that the wife made application to the Court to proceed undefended and the husband’s Response to the wife’s Initiating Application was struck out. In all of the circumstances I accept the wife’s evidence.
The wife deposes that at the commencement of cohabitation she was employed as a “Girl Friday” for a manufacturing company earning approximately $10,000 per annum. The husband was employed by TH at its head office in Melbourne and had a small interest in the company. Apart from the husband’s small interest in the company, neither party had assets of any significance.
When the parties commenced cohabitation, they rented a property owned by one of the entities in which the husband has an interest and moved to K Town approximately three months after their marriage so that the husband could work more closely in the family business. The wife left behind her family and friends in Melbourne but continued to travel to Melbourne to work two days per fortnight until 1995 when the husband asked her to resign from her employment so as to be available to make him lunch each day.
From the commencement of cohabitation the wife supported the husband’s career in the family business, entertaining business associates and travelling both interstate and overseas with the husband for business purposes, including on route to their honeymoon.
In 2001 the husband and the wife moved to Sydney to enable the husband to pursue business opportunities in Sydney. The child was about two at the time of that move. During the time they were living in Sydney the wife was diagnosed with coeliac disease and hypothyroidism and with the husband working long hours was under significant stress.
In about 2002 the husband and the wife left Sydney and returned to K Town. Upon their return they purchased the I Street property for approximately $760,000. The wife contributed approximately $250,000 from her late mother’s estate and the parties used the proceeds of sale of the property they had purchased prior to their move to Sydney and borrowed the balance. The parties renovated the property and although they were both involved it was the wife who facilitated the attendance of tradesmen during the day.
The husband was appointed as a director of TH and Chairman of the Board of Directors in 2008. During the marriage the business, which was managed by the husband and for which he was the driving force, grew from an exporting business to a major producer in Australia controlling all aspects of the produce supply chain and, together with TPL, the owner of significant real property holdings. The majority of the shares now owned by the husband were acquired during the marriage.
The parties adopted traditional roles during the marriage. The husband worked long hours during the marriage including on weekends to build up the family business. The wife was primarily responsible for the care of their son and the running of the home. The child was diagnosed with coeliac disease in 2005.
The wife moved to Melbourne in late 2013 and has continued to shoulder the primary responsibility for the child’s care. Significantly she has done so in extremely difficult circumstances brought about by the husband limiting her access to the not insignificant financial resources of this family. The husband has spent limited time with the child on an infrequent basis.
Section 75(2) Factors
The husband is engaged in full time employment in the family business and is paid approximately $155,000 per annum by way of salary. Ms B’s evidence is that taking into account a commercial salary for the husband’s position, TH generates future maintainable earnings of $2.54 million per annum. The husband holds 26.9 per cent directly, entitling him to a significant profit share beyond his salary. The husband also holds 25 per cent of TPL which itself holds 58.7 per cent of TH.
The husband has re-partnered. His new partner is the Chief Financial Officer of TH and earns approximately $125,000 per annum.
The wife, who is in receipt of minimal income and is otherwise dependent upon the husband for her support, has the primarily responsible for the child’s care and I am satisfied will continue to have that responsibility at least until he completes his secondary education, if not thereafter. The wife lives in rented accommodation and wishes to purchase a home for herself and the child.
Order’s Sought By The Wife
The wife seeks orders for property settlement in the terms of the minute that forms part of her case outline. The payment the wife submitted was required to equalise the value of the assets to be retained by each of the husband and the wife pursuant to paragraph 3 of that minute was the sum of $12,042,000, bringing her total entitlements when combined with the property she already has to $13,123,663. This is based upon an asset pool of $26,247,327. Based upon my findings the total value of the assets is $25,421,327. Counsel for the wife submits that although the sum of $13,123,663 represents 51.6 per cent of the asset pool based upon my findings, in any event the order she seeks, based upon both her contributions and the s 75(2) factors, is just and equitable and a proper order for the Court to make.
There is no evidence before me as to the value of the husband’s shares in the family business at the commencement of cohabitation based upon which I could make findings as to his contributions at the commencement of the marriage. In any event, I accept the wife’s evidence that his shareholding at that time was small and that the business was built up during the marriage.
I also find on the basis of the wife’s uncontested evidence that the parties, albeit in different ways have made an equal contribution during the marriage save and except for the wife’s contribution of approximately $250,000 to the acquisition of the I Street property and those of her inheritances which are included in the balance sheet.
I am also satisfied that that the wife has made a greater post separation contribution to the wellbeing of the child. Although the husband has continued to work in the family business, that business, because of the husband’s failure to provide full and frank disclosure and his lack of co-operation, has been valued as at 31 December 2013 so any increase in value as a result of his contribution to the business since that date is not reflected in its value.
I am satisfied as counsel for the wife submitted, that in all of those circumstances the wife’s contributions are deserving of greater weight than the husband’s contributions.
I have also taken into account the fact, albeit generally, that pursuant to the orders she seeks the wife will receive cash in the sum of $12,042,000, whereas the husband will probably retain his shares and may have limited liquidity. However as the husband has chosen not to participate in the proceedings I have no way of knowing how he proposes to meet his obligation to the wife or arrange his affairs.
Even though the wife will have significant assets as a result of the orders the Court makes, assets that should provide her not only with a house but a substantial income, I am also satisfied that the husband, who will also have significant assets, will in addition have an ongoing income from his employment with the Turner Group and an entitlement to his share of the profits of that Group, albeit that his share of the profits may be reduced as a result of the orders made by the Court in this case. Even if the wife were to obtain employment as a nurse, she is never likely to earn income at the same level as the husband. The wife will also have the greater responsibility for the child on an ongoing basis.
The wife has had the benefit of $$850,000 of the proceeds of sale of the I Street property, $170,000 of which she has used to meet the legal costs of these proceedings. She has otherwise used those monies to meet the shortfall between her expenses and the maintenance she receives from the husband. She also has her interest in her father’s estate, although she has chosen to use her share to support her brother. I am satisfied that the s 75(2) factors also favour the wife’s case.
Although both the contributions and the s 75(2) factors are arguably weighed in the wife’s favour, she only seeks 51.5 per cent of the assets and an equal division of the combined value of the parties’ superannuation entitlements. Having regard to what I am satisfied is a conservative valuation of the Turner Group, I am satisfied that the orders the wife seeks are both just and equitable and proper and I propose to make orders in the terms she seeks.
Although I note that the orders sought, particularly with respect to property settlement ,are general in nature to allow the husband the flexibility of arranging his finances in order to pay the wife her entitlements in whatever way he chooses, given the history of this matter I also propose to make the orders sought by the wife that in the event that the husband or TPL fail to sign any instrument or document required pursuant to the terms of these orders, a Registrar of this Court be appointed pursuant to s106 A of the Act to execute any deed or instrument in place of the husband or on behalf of TPL. I am satisfied that TPL, as a party to the proceedings, is aware of the terms of the orders sought by the wife and has chosen not to participate in the proceedings.
Finally, being satisfied that the trustee of the MLC MasterKey Business Super Fund has been afforded procedural fairness, I also propose to make order for a superannuation split of the husband’s entitlement as sought by the wife.
Spousal Maintenance And Child Support
The wife deposes that during the marriage the husband was solely responsible for the management of the family finances and investments. He paid all household expenses including utilities, motor vehicle expenses, insurances, family outings and holiday bookings.
During the relationship and following separation, the husband deposited his monthly salary ($6,354 net) and the wife’s monthly salary ($3,246 net) into their joint account. The wife had access to that account and had the use of a supplementary MasterCard to the husband’s MasterCard account. The wife relied upon the MasterCard to meet the expenses for her and the child and for expenses associated with running the former matrimonial home. The wife otherwise withdrew cash from the joint account as and when required.
This arrangement continued until 31 May 2013 when the husband, without any warning, cancelled the wife’s supplementary MasterCard and subsequently removed her access to the joint account. The husband unilaterally determined that he would pay the sum of $2,500 per month into her account on the 15th day of each month.
The husband also advised the wife that he would provide her with petrol for her motor vehicle, which he paid for on a TH fuel card, provided that she called him when she needed petrol so that he could collect her car and take it to the petrol station. The wife’s evidence was that this proposal was, as one might think for obvious reasons, impractical and moreover embarrassing.
On 23 May 2014, the husband stopped paying the private health insurance premiums and the ambulance subscription for the wife and the child. On 19 June 2014 he cancelled her CitiLink account and in September 2014 he sent the wife the renewal notices for the registration and comprehensive insurance for the vehicle in the wife’s possession.
On 19 July 2013 the wife filed an Initiating Application which was set down for a case assessment conference on 27 August 2013. On that date various orders were made including an order adjourning the wife’s application for interim orders to the Judicial Duty List on 4 October 2013. The wife sought the following order with respect to spousal maintenance:
4. That pending further order the husband pay or cause to be paid to the wife by way of spousal maintenance the following:
(a)All outgoings associated with the property in which the wife resides with the child including, but not limited to, gas, electricity, telephone, internet, rates and house and contents insurance;
(b)All expenses associated with the motor vehicle driven by her including petrol, maintenance, registration and service;
(c)All private health insurance premiums and any out of pocket medical expenses incurred by her;
(d)The sum of $1,870 per week into such bank account as is nominated by her from time to time.
5. That in relation to the method of payment of 4(a), 4(b) and 4(c) the husband provide to the wife a supplementary credit card for her to use for those expenses and outgoings with an available credit of not less than $10,000 at all times.
The wife also sought an order for a departure from the child support assessment in the following terms:
7. That pursuant to sections 116(1)(b) and 117(2) of the Child Support (Assessment) Act 1989, there be a departure from the assessment of Child Support issued in respect of [C] born … 1999 (“the Child”) effective from the date of the Assessment and the husband pay or cause to be paid to the wife for the support of the child the sum of $1,120 per week to be adjusted annually in accordance with Consumer Price Index upward movements on 1 July each year commencing 1 July 2014.
8. That pursuant to section 124(1) of the Child Support (Assessment) Act 1989 (Cth) the husband pay the following by way of child support in a form other than periodic amounts for the child:
(a)all educational expenses at [BA School] and [D School] (where the child will attend as and from January 2014) or such other school(s) as the child may attend inclusive of tuition fees, private tutorial fees, levies, uniforms, books, stationery computer requirements, excursions, before and after-school care, and extra-curricular activities.
(b) private health insurance and out of pocket medical, dental, optical and orthodontic expenses; and
(c) all out of pocket medical, dental and optical expenses
On 4 October 2013 the parties consented to orders which included an order that the husband pay or cause to be paid to the wife by way of spousal maintenance (inclusive of child support) the amounts set out in paragraph 1 of his Response as follows:
·Up to the settlement of the sale of the property at I Street, K Town and the repayment of the NAB home loans, the sum of $2,500 per month;
·After the settlement of the sale of the property at I Street, K Town and the repayment of the NAB home loans referred to above, the sum of $4,000 per month (inclusive of child support).
On 7 October 2013, following the hearing on 4 October 2013, Cronin J made orders that provided that the wife retain the net proceeds of sale of the I Street property by way of interim property distribution. Although the interim applications were otherwise adjourned until 19 December 2013, the wife did not proceed with her application and the parties consented to an order that the order of 4 October 2013 with respect to the monthly payment of $4,000 continue until further order (including the characterisation of same) and the Court noted that the husband had agreed to arrange for that payment to be made by direct debit by the 17th of each month. The parties were at that time awaiting completion of the valuation of the Turner Group by Ms B who had been appointed pursuant to the orders made by consent on 4 October 2013 and it was noted that the parties anticipated the valuations to be completed by the adjourned date.
The valuations were not completed by 1 April 2014 (for reasons I have referred to in my reasons for judgment delivered on 29 October 2014) and orders were made that day with respect to the husband complying with previous orders with respect to the provision of documents and doing all things as may be required by the wife’s solicitors and Ms B to facilitate the completion of the valuations, including the valuations of real property
It was further ordered by consent on 1 April 2014 that pursuant to s 124 (1)of the Child Support Assessment Act1989 (Cth) the husband pay non periodic child support as follows:
·All compulsory educational expenses at [D School] appearing on the school bill inclusive of tuition fees, levies, computer requirements and excursions;
·The cost of uniforms, books and stationary from the school suppliers;
·Private health insurance for the child at the current level of cover; and
·Any major out of pocket medical, dental and optical expenses with the husband’s prior written consent.
The orders also provided that the order made 19 December 2013 with respect to the payment of $4,000 continue until further order.
The interim applications were otherwise dismissed and on 27 May 2014 an order was made that the matter be listed for a first day of hearing before me on 4 August 2014. On 4 August 2014 the matter was listed for final hearing before me on 2 December 2014. On 21 October 2014, as a result of the husband’s failure to comply with the timetable for the filing of his evidence in chief, the wife filed an Application in a Case seeking to proceed on an undefended basis.
The wife deposes that up until settlement of the sale of I Street, the husband paid the wife the sum of $2,500 per month and thereafter he has paid the sum of $4,000 per month pursuant to the orders.
On 3 September 2013 the Child Support Agency assessed the husband’s liability to pay child support for the child for the period 1 July 2013 to 3 September 2014 as $1,177.08 per month. This was based upon the husband’s provisional income of $104,714 and her taxable income for the 2012 financial year of $66,709.
The wife’s case is that the $4,000 per month paid by the husband by way of spousal maintenance and inclusive of child support was not sufficient to meet her and the child’s combined expenses. The wife’s weekly income apart from the payment she receives from the husband is dividends of $165 and rent of $96, neither of which she actually receives she says because the dividends are reinvested and because the rental income is applied to outgoings for that property. The wife set out her expenses in Part N of her Financial Statement. Her estimate of her weekly expenses was $1,542 per week. This did not include her rent of $1,003, her private health insurance or motor vehicle registration and insurance.
The wife’s estimate of expenditure for the child was $2,373 which included the school fees and those education expenses on the school bill, uniforms, books and stationary, computer expenses and excursions, paid by the husband pursuant to the orders. Her estimate of those expenses was $675 per week and it is her evidence that if the child requires items such as stationary, school shoes, sporting shoes and equipment that cannot be purchased from the school the husband will not pay for them or reimburse the wife. She however also deposes that the husband has agreed to pay for the child’s mobile phone.
It is the wife’s evidence that as the payments made by the husband are not sufficient to meet the child’s and her expenses, she has had to draw on the net proceeds of sale of I Street that she received by way of interim property division to meet their living expenses.
The wife seeks orders that the husband pay her $4,000 per month by way of spousal maintenance (not inclusive of child support) pending the husband satisfying the orders the Court makes with respect to property settlement. In addition she seeks an order for departure from the current child support assessment.
Pursuant to s 72 of the Act, a party to a marriage is liable to support the other party to that marriage to the extent that that party is reasonably able to do so if and only if, the party seeking that support is unable to support himself or herself adequately by reason of having the control of a child of the marriage who has not attained the age of 18 or by reason of age, physical or mental incapacity for appropriate gainful employment or any other adequate reason, having regard to the matters referred to in s 75(2).
In this case the wife is primarily responsible for the child’s care with little input from the husband. Both the wife and the child have been diagnosed with coeliac disease and the child suffers from asthma which requires regular medication and monitoring and a skin condition called Keratosis Pilaris. Although the child enjoys sport he is prone to injury. The child has also been diagnosed with dyslexia.
Although the wife completed the theoretical component of her professional training in K Town before relocating to Melbourne, she still has to complete her year of practical training in order to complete her qualification. It is her evidence that since she and the child relocated to Melbourne, she has been focussed on establishing a new home in Melbourne and settling the child into his new school and life in Melbourne. As she is the child’s primary caregiver, she says she needs to be available to manage the child’s before school and after school activities and school holidays. It is also the case that although the wife supported the husband’s business activities during the marriage, she was not engaged in employment outside of the home prior to separation nor was there any financial imperative for her to do so. Cronin J said in his reasons delivered 7 October 2013 as follows:
The wife conceded that the parties had lived a “lavish” lifestyle and that they were able to access funds beyond the income stream of the husband.
I am satisfied that in this case by virtue of the wife being primarily responsible for the child’s care, consistent with the manner in which the parties divided their responsibilities during the marriage, that the wife is now unable to adequately support herself. Notwithstanding that the husband has been paying spousal maintenance to the wife, it is clear from her Financial Statement that her expenses far exceed the amount she is paid by the husband. Even if the wife were to actually receive the income disclosed in her Financial Statement, that would still be the case. It is inevitable in those circumstances that the wife would need to draw on capital, in this case the monies she received by way of interim property settlement, to meet that shortfall. In Bevan v Bevan (the Full Court said at page 81,980 as follows:
However, we do not think that the law requires that a wife should deplete an already, comparatively meagre capital sum, to enable a much higher earning husband to avoid his obligation to maintain a former spouse who is in financial circumstances such as those in which she finds herself.
Whilst the wife in this case is entitled to significant assets as a consequence of the orders I have indicated that I propose to make I am satisfied that until she receives her entitlements she requires support and that the husband, given his superior financial circumstances, should be required to contribute to her support.
The husband’s salary from his employment is $155,000 per annum. However it is also the case as counsel for the wife submitted that even after allowing the husband a high commercial wage it was Ms B’s evidence that TH was capable of generating future maintainable earnings of $2.541 million per annum and that the husband holding 26.96 per cent of the shares in TH would be entitled to a significant share of the TH’s profit over and above his salary. The money used by the husband to purchase J Street is evidence of his capacity to access company funds whether that be by way of loan, repayment of loan accounts or some other means. Counsel for the wife also directed me to what he submitted was evidence contained in Ms B’s valuation which demonstrated that the figure of $2.54 million was based upon abnormal figures and that the figure was likely to be higher. That being said the wife relied upon the figure of $2.54 million.
I am satisfied that the husband is reasonably able to contribute to the wife’s support and that in all of the circumstances the order sought by the wife in the sum of $4,000 per month is proper. If anything, the order sought is conservative given the unchallenged evidence of her expenditure and the husband’s financial position. I propose to make the order sought by the wife.
It is the wife’s case that not only should the husband pay spousal maintenance pending the receipt of her property entitlements but that there should be a departure from the current assessment of child support such that the husband be required to pay periodic child support in the sum of $1,120 per week and non-periodic payments of as follows:
·all educational expenses at D School or at such other private school(s) as the child may attend by agreement of the parties inclusive of tuition fees, compulsory levies, uniforms, books, stationery, computer requirements, camps and excursions;
·all private tutorials and extra-curricular activities;
·private health insurance and out of pocket medical, dental, optical and orthodontic expenses; and
·all out of pocket medical, dental and optical expenses.
Pursuant to the current assessment issued on 29 January 2015 for the period 1 March 2015 to 31 May 2015, the husband is required to pay child support of $1,246.92 per month together with the non-periodic payments he is required to pay pursuant to the orders made by consent on 1 April 2014.
The wife in this case has not applied to the Child Support Registrar for a departure from the assessment. However a carer such as the wife in this case may apply to the Court for a departure from the assessment in circumstances where that carer is a party to a pending application in this Court and the Court is satisfied that it would be in the interests of the liable parent and the carer entitled to child support for the court to consider whether, in the special circumstances of the case, an order for departure should made by the court (s 116(1)(b) of the Child Support (Assessment )Act 1989 (Cth)) . The wife in this case is a party to pending property and spousal maintenance proceedings. Not only would the evidence be the same there is in this case a very real likelihood that if the wife were required to seek a determination from the Child Support Registrar that she would face the same lack of co-operation by the husband that she has faced in these proceedings which in my view would put her at a significant disadvantage and unnecessarily delay the determination of this matter. In all of the circumstances I am satisfied that it is the best interests of the husband and the wife for the wife’s application for departure to be dealt with in conjunction with the other proceedings before this court.
Section 117(1) of the Child Support (Assessment )Act 1989 (Cth) provides that the Court may make an order where it is satisfied that one of more of the grounds in subsection (2) exists and that it would be just and equitable and otherwise proper as regards the child, the carer entitled to child support and liable parent.
The first question to be determined is whether there are grounds for departing from the assessment. I accept the wife’s evidence in this case that both she and the child have special needs, primarily dietary needs but that the child has other medical issues as well as special educational needs. However the primary ground in this case in the special circumstances of this case the current assessment would result in an unjust and inequitable determination of the level of child support provided by the husband by virtue of the parties respective income, property and financial resource of the parties. I note that the current assessment is based upon the husband having a provisional income of $94,641.00. It is the wife’s evidence that it has been some years since the husband lodged a tax return. It is also based upon the wife’s having an income for the 2014 financial year of $34,610.00. Not only do these figures not produce a just and equitable assessment of even greater significance is that they disregard the husband’s substantial interest in the profits of the Turner Group. I am satisfied that in this case there are grounds for departing from the assessment.
I have already discussed in some detail the financial circumstances of both the husband and the wife. Accepting the wife’s evidence, the child’s expenses, not including any allowance for rent, are $2,373. The wife’s estimate of the child’s educational expenses is $675 and she allows a further $350 for the child’s activities including private tutoring. The husband presently pays all those educational expenses that appear on the school account. The balance of the child’s educational expenses are paid by the wife. The effect of the orders sought by the wife are that the husband would pay periodic child support in the sum of $1,120 per week together with all educational expenses, which are estimated to be $675, all private tutorials and extracurricular activities which based upon the figure in the wife’s Financial Statement are approximately $350, health insurance which he is currently paying and which is not included in the figure of $,2373, all out of pocket medical, dental, optical and orthodontic expenses which the wife estimates to be $75 per week. On this basis the husband would be required to pay approximately $2,220 of the $2,373 the wife estimates it costs her to support the child.
I am satisfied, given the parties respective financial circumstances that it would be just and equitable and otherwise proper to make the orders the wife seeks pending the receipt of her entitlements to property settlement. However it is also the case that once the wife receives her entitlements she will be a wealthy woman in her own right. The wife not surprisingly wishes to buy a home for herself and the child but even having done so she should have sufficient funds remaining to invest and which will earn income which she can use to support she and the child. However even after the wife receives her property settlement the husband will still have substantial assets and income at his disposal. It is also the case that as he spends only limited time with the child the wife is primarily responsible for supporting the child on a day to day basis.
I am satisfied that in all of the circumstances there should also be a departure from the assessment once the wife receives her entitlements to property settlement but not on the basis the wife seeks. I am satisfied that it would be just and equitable and otherwise proper for the husband, having regard to the wife’s significantly greater obligation to support the child on a day to day basis, including providing him with housing in Melbourne, to pay the sum of $600 per week by way of periodic child support and the non-periodic payments sought by the wife which on her estimate amount to approximately $1,100. This is approximately 70 per cent of the total sum of $2,373 the wife says she spends on the child each week.
The child is now in Year 10 and will turn 18 in May 2017 when he will be in Year 12. In my view it is appropriate that these orders continue until he completes Year 12 and that as both the child’s expenses and the cost of living are likely to increase that the periodic payments to be made by the husband should be adjusted annually in accordance with upward movements in the Consumer Price Index on 1 July in each year as proposed by the wife.
I accept the wife’s evidence that although the orders to which the husband consented require him to pay compulsory educational expenses at D School, the costs of uniforms, books and stationary from the school suppliers, private health insurance at the current level of cover and any major out of pocket medical, dental and optical expenses, he has only paid those amounts on the school account. In those circumstances I also propose to accede to the wife’s application that the husband provide her with a supplementary card with a credit limit of not less than $10,000 for her to use to meet the expenses which these orders require the husband to meet which are not payable directly to the provider. I will require the wife to account to the husband for her expenditure within seven days as she proposes.
I certify that the preceding one hundred and thirty-four (134) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered 29 May 2015
Associate:
Date: 29 May 2015
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