W & W

FAMILY COURT OF AUSTRALIA

W & W

[2007] FamCA 1409

FAMILY LAW – PROPERTY – Settlement in relation to marriage

FAMILY LAW – CHILD SUPPORT – Application for departure

Family Law Act 1975 (Cth)

APPLICANT:

Mrs W

RESPONDENT:

Mr W

FILE NUMBER:

SYF

2632

2006

DATE DELIVERED:

30 November 2007

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Moore J

HEARING DATE:

21 & 22 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Batey

SOLICITOR FOR THE APPLICANT:

Meyer Pigdon Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Gould

SOLICITOR FOR THE RESPONDENT:

Karras Partners Lawyers

Orders

The husband and the wife are to forthwith take all steps necessary to cause the property situated at and known as O to be sold by auction at the earliest possible date at a price to be agreed and failing agreement to be determined by the President of the NSW Division of the Australian Property Institute or nominee and the proceeds of are to be paid as follows:-
(a)agent’s commission and expenses related to the sale along with the usual adjustments;
(b) 50% to each of the parties;
(c)from the husband’s 50% share there be paid to the wife the sum of $8,955.
Pending settlement of the sale of the O Property the husband maintain the property in a clean and tidy condition and pay all home and contents insurance as and when it falls due.
On or before one month from the date of these orders the husband is to sign all documents necessary to transfer to the wife the jointly owned IAG shares and the Suburu Forester motor vehicle registration number ….
The wife is entitled to retain absolutely the household chattels agreed to be worth $19,073 and on or before one month from the date of these orders to collect such of those items not presently in her possession.
The husband is entitled to retain absolutely the household chattels agreed to be worth a total of $8862 and on or before one month from the date of these orders to collect such of those items not presently in his possession.
Save for those assets specifically referred to in other orders, each party is entitled to retain all bank account, shares, superannuation entitlements and personalty owned by or in the possession of that party presently.
The wife’s application for child support departure is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym W & W is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 2632 of 2006

MRS W

Applicant

And

MR W

Respondent

REASONS FOR JUDGMENT

Proceedings

To be determined are competing applications for property settlement. The wife also seeks orders for departure from child support assessment which the husband asks be dismissed or adjourned.

Orders sought

The particulars of the orders sought by each are set out in the Schedule to these Reasons.

Background

The wife (39) and the husband (44) began living together in 1988. They separated initially in November 1994 but their relationship was resuscitated in 1997. There is a dispute about when they resumed living together, either in 1997 [wife] or when they married in May 1998 [husband]. On her income tax return for that year the wife had nominated the period during which she had a spouse to commence on the wedding date though she says she did so because she interpreted the word ‘spouse’ literally. The dispute is not of any real significance here but the document probably tips the balance towards a finding in the husband’s favour. They have one child: J aged 6 years born in October 2001. They separated finally in October 2005.
When they first began living together in 1988 the wife asserts she had some savings and furniture and effects but no debts. The husband asserts he had savings of $27,000-$28,000, savings with the St. George Bank of $6,000, a Honda Accord motor vehicle, two motorbikes, and household goods and furnishings. Absent cross-examination on the issue, each can be taken to have accurately stated his or her own position.
At the time, the husband was a qualified engineer and in employment. The wife had almost completed a Bachelor degree. After completing her degree she obtained full time employment. They opened a joint account to which they deposited their income and shared expenses.
In 1989 they purchased a unit at C for $135,000. They had savings available to contribute towards that purchase and they borrowed $105,000 from a bank. The wife’s parents paid $2,000 towards the legal costs. The property was registered in their joint names as tenants-in-common, with the husband holding a three-fifth share and the wife a two-fifth share. The husband thereafter received $20,000 in two lots of $10,000 as gifts from his family which he deposited to the mortgage account.
They lived in the C property until their relationship broke down in November 1994. In the meantime there were some improvements to the unit by repairs and repainting.
On their first separation the wife left and returned to live with her parents at G while the husband remained in occupation of the C unit. They had their interest in the unit, some joint savings, and motor vehicles along with other chattels. They agreed about the division of their assets at the time; however, the wife asserts she received $10,000 less than what had been agreed. When the proposition was put to the husband in cross-examination that he had ‘short changed’ her by that amount, his response that he could not recall is sufficiently equivocal to support a finding that she is probably correct. Pursuant to the agreed arrangement, the husband retained the C property.
After a time of living with her parents the wife moved to live in an investment property at C which her parents owned. After their relationship resumed and they married [her parents paid $7,000 for wedding costs] the husband moved into the C unit she occupied. They paid no rent but they did pay expenses related to the unit including strata levies and rates. In her unchallenged evidence the wife estimates the rental value to be between $230 and $250 per week. They remained there until February 2001 when they moved to O where they had purchased a home. The rent free benefit was said to be over $40,000 in submissions but that appears to have been based on a period of cohabitation prior to the marriage and the finding about that scales the figure back a bit.
At one point the wife had borrowed funds to invest in managed funds and over time she had acquired other assets from her earnings. By the time of their marriage she owned a Honda Civic motor vehicle, a Robert Dickerson painting, St George bank shares, superannuation entitlement, and furniture and effects – which are not valued. She also had investments in a number of funds [details per paragraph 32] totalling $154,436. She owed $48,000 on the loan used to invest in managed funds. Her assets therefore were worth at least $106,436.
The husband also came to the marriage with assets. As set out in his affidavit [paragraph 179] and unchallenged, he owned 1983 BMW motor vehicle, and a 1976 BMW motor bike – which are not valued. He also owned the C unit unencumbered [which sold for $176,000 four months after marriage], he had bank accounts totalling $26,000, superannuation entitlements worth around $12,783 [see exhibit 9], and various investment accounts totalling $61,267. Taking those items where a value is identified and attributing to the C unit its sale price some months later, he had assets worth at least $276,000.
Of course it is difficult to compare their positions when there is no evidence of value of some items. But even if the figures the wife attributed to her unvalued items in her affidavit were included, ignoring for the moment successful objection to those figures, it is clear even on that basis that the husband was in a stronger financial position at the time.
They purchased the O property in February 2001 for $600,000 and the legal fees were $23,000 or $25,000. They borrowed $120,000 from the ANZ Bank; that much is uncontentious. As for their separate contributions, their evidence reveals agreement that the wife contributed a total of $239,764 from sources available to her. There are different figures advanced about the husband’s contribution, but it follows that he paid the balance from funds he had available; namely, something in the order of $263,000 or $265,000 which I find to be the case.
Since the purchase of the O property there have been renovations and improvements carried out over time, as set out in the affidavit evidence.
As for their employment throughout the marriage, initially the wife worked full-time at a bank. She took 12 months maternity leave from her employment from prior to J’s birth in October 2001 and she resigned at the end of that period. She did not return to paid work until late 2003 when she began part time work at a bank, initially 2 days per week before taking on an extra day a week. She remains in part-time employment there for 3 days per week earning $60,000 gross per annum.
A qualified engineer, at the time of their marriage the husband operated his own business as a consultant, W Company. He has continued to operate that business over the years since. This involved overseas travel on occasions. For some years now he has worked as a consultant to a firm located proximate to the O home.
Their taxable income from 1988 [which includes the period they did not live together] is set out in exhibit 7. They show total earnings over those years of $1,071,686 for the husband and $992,262 for the wife. However, those figures do not include the wife’s income for the first three years of the period canvassed and nor do they include her 2007 income. Given the division of their property after the first separation, a review of their comparative earnings is probably more useful if taken from the date shortly after their marriage in May 1998 [ie from the 1998/99 year onwards] to the end of the more recent financial year of 2006/07. That would involve assuming the wife’s taxable income for the 2006/07 year is about the same as the previous year which I think reasonable. That shows a total taxable income for the husband of $560,003 and for the wife of $588,660.
It is accepted they have each used their savings and income to meet family expenditure and repayments on the O property mortgage.
The husband in 1987 obtained a transport licence. That was before their first separation. The costs came from their earnings and savings. There is no evidence of the amount involved but counsel for the wife says judicial notice can be taken of the fact that the costs would have been high. Whatever might be said of the limits of judicial notice, a reference to ‘high’ is not all that helpful. In any event, the wife volunteered the evidence that she commenced a computer course in 2001, though she did not complete it, and it cost $2,630, the implication being that the husband’s hobby cost far more than this course. Probably it did.
A great deal has been said in the affidavit evidence about contributions made in various respects, including homemaking and domestic chores, but the thrust of it all suggests they each made significant contributions by undertaking domestic chores of one kind or another.
As for parenting responsibilities, it is accepted that the husband reduced his work hours after J’s birth to be more actively involved in his care, but it is also accepted that the wife, not being in paid work for the first two years, took the primary responsibility for his day to day care during that period. The husband was otherwise engaged in earning income for the family. After her return to work at the end of 2003, the husband cared for J on those days she worked. On the days both parents worked they were assisted with child care by his parents and by her parents to one extent or another. They otherwise shared their son’s care.
After they separated in October 2005 they both remained living at the O property for a time, but that was short lived before the wife left and returned to her parents’ home where she has remained living. The husband has remained in occupation of the home. He has paid council and water rates and other expenses related to the home. For the most part the mortgage instalments were paid from the joint account to the mortgage account until the loan was repaid in full on 1 June 2006 from joint funds.
At the time of their separation they had joint savings of approximately $60,000. The wife retained access to the account. By April 2006 the balance stood at around $58,000. At that time the husband withdrew $30,000. In May the wife withdrew the remaining balance.
It was not long after their separation before court proceedings were instituted. On 31 March 2006 the wife filed an application seeking orders for property settlement and parenting orders.
There was a dispute about the interim parenting arrangements, determined initially by orders of a Judicial Registrar, some of which were the subject of a review application by the husband. That review application was determined by me on 17 October when interim orders were made providing for J to be in his father’s care in a two week cycle from after pre-school or school Friday to Tuesday evening and from the following Friday after pre-school or school until that evening. It was also determined which school J would attend from the beginning of 2007.
Each parent paid their son’s expenses during the time he has been in that parent’s care, subject to payments by the husband of child support.
A child support assessment first issued in February 2006 [$3,738 per annum], there was in increase in March [$4,616], and there was a later increase to $4,893 per annum. He has paid child support according to the assessment issued from time to time. The latest assessment [exhibit 6] covers the period from 1 December 2007 to 28 February 2009 and is for $422 per month or $5,064 per annum.
The wife has met their son’s expenses, not covered by child support and unrelated to his time with his father, from her income and with financial assistance from her parents. She says her living expenses have been subsidised by her parents providing accommodation as well as paying various expenses for her and for J. She says she intends to continue working 3 days a week earning a taxable income of $60,000 per annum for the short term until the end of 2010 when J completes primary school. While she remains living with her parents at this point, she intends moving into her own accommodation after the finalisation of these proceedings, but has no concrete plans until she knows what she will receive.
At the commencement of the hearing the parties entered into consent orders about their son’s future arrangements. In summary, the consent orders of 21 November 2007 provide for:
·the orders of 17 October 2006 to continue for the rest of the current school term and are otherwise discharged;
·from the beginning of the 2008 school year the child will be with his father in each two week period from the conclusion of school Friday afternoon in the first week until the commencement of school the following Wednesday morning;
·from the beginning of the 2009 school year he will be with his father in each two week period from the conclusion of school on Friday afternoon in the first week until the commencement of school on the following Thursday morning; and then
·from the beginning of the 2010 school year there will be a week about arrangement.
These arrangements are supplemented by an equal division of the school holidays, specific arrangements for a variety of special occasions, and a raft of orders related to parental rights, obligations and responsibilities.

Assets and liabilities

I turn now to the parties’ assets and liabilities, all of which are agreed.
Joint
The O Property        800,000
234 IAG Shares   1,065
Wife
St George Bank Account (…3)  3,259
St George Bank Account (…5)  1,822
766 IAG Shares  3,485
96 St George Bank Shares  3,526
Subaru Forester [wife to retain]  22,000
Household contents, to retain [plus painting]    19,073                  53,165
Husband
St George Bank account (…7)     655
St George Bank account (…4)  6,405
653 IAG Shares  2,971
Colonial First State Balanced fund  41,878
219 BHP Biliton Shares                     8,804
W Company      NIL
BMW 318i  1,500
Household contents, to retain  6,387
Other household contents  2,475               71,075
Total – non-superannuation  925,305
Superannuation - husband
Australian retirement fund     199,466
Superannuation - wife
"PLUM" Superannuation fund     210,198
Total – superannuation  409,564
Total all assets:  1,334,969
Exhibit 1 reveals that each party has incurred substantial legal costs, but neither proposes adding back to the assets paid costs and those funds therefore are not included.

Assessment of contributions

Counsel’s submissions were based on taking a global approach to the assessment of contributions. In my view that is appropriate.
It is submitted for the husband that contributions should be assessed at 60% to the husband and 40% to the wife of the non-superannuation assets and they each retain their own superannuation entitlements. The submission draws attention to the assets the husband introduced at the outset in 1988, his position being superior to the wife’s at the time, the $20,000 gift he received from his family which was put towards the mortgage at the time, the way in which their assets were distributed after their initial separation towards the end of 1994, his superior asset position by the time of their marriage in 1998, his greater financial contribution to the purchase of the O property, to his earnings throughout and the application of his income for the benefit of the household and family, and his other contributions such as work undertaken to improve the two properties they acquired and his efforts as a homemaker and as a parent.
The submissions for the wife also draw attention to the history of her contributions over many years to argue for an assessment of 62% overall in her favour. It is said that their contributions to the time of their first separation should be seen as equal, an assessment that would take account of the disparity in assets introduced but also that she received $10,000 less than agreed. As for the second period of cohabitation, up to the time of their separation it is argued she made a greater contribution by reason of their occupation of her parents’ C home from several years [a benefit calculated to be equivalent to around $41,800] and also by reason of the time and money spent by the husband in acquiring his transport licence. In the case outline filed on her behalf there is also the submission that in this period her financial, parenting and homemaking contributions exceed those of the husband. It is further submitted that the post-separation contributions favour her by reason of the husband’s occupation of the home for two years during which he paid only a small amount of mortgage and the wife has made the greater contribution as parent including her financial support of their son together with the financial support provided by her parents to her and their son.
All of these matters fall within the description of contributions to be assessed according to s 79(4)(a)-(c). However, my own overall assessment of the history differs from both submissions.
In the first period of their cohabitation, the six years or so leading to their separation at the end of 1994, the contributions overall favour the husband by reason of his stronger asset position at the outset and the $20,000 he received from his family which he put towards the mortgage. No comparison can be made of their income during those years because the wife’s income is not available for the first three years [exhibit 7]. Nonetheless, apart from a relatively short period before she started work she was earning income throughout. A broad view of the evidence suggests they contributed equally in other respects to things such as domestic chores and the relatively minimal work undertaken to the unit acquired. The assessment of the husband’s greater contributions during this period is reflected in the agreement they reached when dividing their property after their first separation, a disparity which can be taken to have fairly recognised their disparate contributions. In other words, what each was entitled to receive constituted a proper assessment of their contributions to that point in their relationship. In my view, the only flow on effect of those agreed arrangements to the decision required here is the $10,000 ‘short change’ on the agreement which weighs in the wife’s favour.

With that earlier distribution behind them, it is necessary then to consider their respective positions at the time of their marriage and following. The husband was in a stronger financial position by reason of the assets he owned at the time. From funds he had available, he made a greater direct financial contribution towards the purchase of the O property. He contributed what he earned to the family’s needs, being the sole income earner for a period before the wife returned to paid work [see exhibit 7], and he contributed towards the care of their son and by undertaking various chores in and around the home. On the other side of the scales, the wife had assets of a lesser value when they married and in due course she made a significant but lesser direct financial contribution to the purchase of the home from funds she had available. She contributed in her role as primary carer for their son for two years after his birth, she contributed in her role as parent after her return to work as discussed, she contributed her income as reflected in exhibit 7, she undertook household chores throughout, and after separation she did not have occupation of the family home, the husband has, and she has had most of the responsibility for their son’s day to day care. Added to those considerations, she was left ‘short changed’ in the initial settlement and her parents gave them assistance in the form of rent free accommodation for almost three years before they bought the O property.
When all of these are mixed and the result weighed one against the other, the scales tip in favour of the husband though not to any large extent. What gives his contributions taken as a whole that added weight is the extent of the disparity in the value of assets they introduced to the marriage when considered against the ‘short change’ she received on the initial settlement as well as the benefit to them of the rent-free occupation of the C property as well as her post separation contributions. I assess contributions overall at 52% to the husband and 48% to the wife of the non-superannuation assets and for each to retain the superannuation to which they are entitled. That produces a differential of 4% of the non-superannuation assets which translates to $37,012. I am satisfied that is appropriate to the circumstances.

Section 72(2) factors

Turning to these factors, it is argued for the husband that there should be no adjustment and for the wife that there should be an adjustment in her favour of a further 3% of the assets, although those submissions move from a base of contributions as argued and not from the conclusion I have reached.
By reason of the contributions assessment, the husband will receive assets to a greater value than the wife and he will have a larger superannuation entitlement but it is not a very large disparity when seen in the context of the value of assets and superannuation overall. Apart from what they will be entitled to receive, neither have any other assets to fall back on.
There is an age disparity between them though that is of no real significance. Neither complains of any health issue that would inhibit their continued employment and so it can be anticipated each will continue to earn income from their field of experience and expertise over the years to come. It is submitted that the wife is not fully exerting her earning capacity at the present time and could earn more than the $60,000 she receives for three days a week. She accepts she could increase her work commitment but she does not wish to take up more days of work while their son is at this age and stage of development. She will do so, she says, in a few years time. Her position can be seen accordingly. On the other hand, it is submitted for the husband that he could increase his earnings by using his qualifications in the transport industry. It is true that he does have that qualification and he does not work in that field, but the submission is to no avail because, without having been taken up with the husband, it remains entirely speculative.
Neither has re-partnered at this stage and therefore their own standard of living will be derived from the capital they retain from these proceedings and the income they are able to generate in the future.
Over the next two years and more, until the commencement of the 2010 school year when their son’s care will move to week about, there will be a disparity in the responsibilities they will have for their son’s day to day care and supervision. During that time, having regard to the determination of the child support departure application to be discussed, the husband will pay child support as assessed by the Child Support Agency.
Overall, I see the balance as favouring the wife to a relatively small extent. The husband is in a bit stronger position so far as his asset base and superannuation is concerned. That is a relevant consideration. Also to be considered are their respective responsibilities for their son’s care over the next two years before the move to equal time. During that period she will have more of the responsibility for the day to day care and supervision of their son, which cannot be ignored. I consider an additional 2% of the non-superannuation assets appropriate recognition of those factors.

Conclusion – just and equitable

This brings about a 50/50 division of their non-superannuation assets and each would retain their own superannuation entitlements, a result that very slightly favours the husband overall. On the evidence, I am satisfied that is a just and equitable result.

Form of orders

Both seek a sale of the O property and so they will each receive 50% of the net proceeds of sale after the usual adjustments and costs. Assuming the jointly owned shares are to be transferred to the wife, as the husband’s application seeks, she will retain non-superannuation assets to the value of $53,230 while the husband will retain assets to the value of $71,075. An equal division of those assets would entitle each $62,120, leaving the husband to pay the wife $8,955 which can come from his share of the sale proceeds.
The draft orders provide for the husband to pay the home and contents insurance related to the home pending settlement of the sale but any arrears of rates at the time will be adjusted between the parties and the purchasers in the usual way.
There is agreement about the distribution of the household contents and it is common ground the wife will retain the Suburu motor vehicle. Both have been recognised in the draft orders.
One of the orders sought by the wife relates to indemnities against liability arising from the conduct of the W Company, but the source of her exposure is not apparent and therefore I have not included it.
Nor have I made any provision for the details related to the listing of the home for sale and the structure around the sale, taking the view that ordinary common sense would dictate those arrangements. If a different view is taken, an order can be made imposing detailed obligations related to the sale.
The orders set out earlier seek to achieve the result discussed and give effect to incidental arrangements, but the parties will have an opportunity for input if they wish before they issue in that form.

child support

It remains to consider the wife’s application for child support departure. The terms of the orders she seeks are to be found in the Schedule at the end of these Reasons. It will be apparent, therefore, that she seeks departure from child support assessments dated 16 February 2006 onwards and, in lieu, payment of $220 per week to increase annually in line with the consumer price index plus 66% of the expenditure set out in proposed order 17. Accordingly it is partly historical, relating back to an earlier period, and partly prospective, but without any future time limit.
Bearing in mind the stated objects in s 4 of the Child Support (Assessment) Act 1989, before an order can be made departing from an assessment ‘special circumstances of the case’ are to be found and a permissible ground for departure established along with a finding that it would be just and equitable and otherwise proper to make a departure order. The relevant section is s 117 of the Act and the relevant sub-sections at this point are:
(1) Where:
(a)application is made to a court having jurisdiction under this Act for an order under this Division in relation to a child in the special circumstances of the case; and
(b)the court is satisfied:
(i)that one or more of the grounds for departure mentioned in subsection (2) exists or exist; and
(ii)that it would be:
(A)just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(B)otherwise proper;
to make a particular order under this Division;
the court may make the order.
(2)For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:
(a)that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:
(i)the duty of the parent to maintain any other child or another person; or
(ii)special needs of any other child or another person that the parent has a duty to maintain; or
(iii)commitments of the parent necessary to enable the parent to support:
(A)himself or herself; or
(B)any other child or another person that the parent has a duty to maintain; or
(iv)high costs involved in enabling a parent to care for any other child or another person that the parent has a duty to maintain;
(b)that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:
(i)because of high costs involved in enabling a parent to care for the child; or
(ia)because of special needs of the child; or
(ib)because of high child care costs in relation to the child; or
(ii)because the child is being cared for, educated or trained in the manner that was expected by his or her parents;
(c)that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
(i)because of the income, earning capacity, property and financial resources of the child; or
(ia)because of the income, property and financial resources of either parent; or
(ib)because of the earning capacity of either parent; or
(ii)because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child; or
(iii)because an amount (the additional amount ) of a liable parent's child support income amount was earned, derived or received by the liable parent for the benefit of a resident child or resident children of the liable parent; or
(iv)because an amount (the additional amount ) of an entitled carer's child support income amount was earned, derived or received by the entitled carer for the benefit of a resident child or resident children of the entitled carer.
In the submissions put on the wife’s behalf emphasis is placed on the stated objects in s 4, including the object of parents with like capacity providing like amounts of financial support. The ‘special circumstances’ are said to arise because the husband’s financial resources and property are such that it would be just and equitable to make an order other than an administrative assessment. This submission came on the heel of a submission that the wife should receive 65% of the property but was said to be justified nonetheless because she houses the child and will have more of his care until the beginning of 2010. In any event, it is said the husband has an ability to contribute 50% of the actual costs, as his recent financial statement demonstrates. These points strike me more as grounds [eg s117(2)(c)(i)] than identification of any ‘special circumstances of the case’.
Nonetheless, the propositions can be tested by looking first to the level of the child’s expenses. In her recent financial statement the wife gives two bases for expenditure related to the child. The first is while she still lives with her parents. On that basis she asserts expenses for J totalling $185 per week. She also says her parents pay $300 per week towards expenses for her and J, but at no point does she provide details of that expenditure and, more importantly, nor does she nominate the proportion attributable to the child’s expenses. It is impossible therefore to know to what extent the $185 per week should be increased to reflect his expenses while ever she remains living with her parents. It can therefore be put aside and the child’s expenses taken at $185 per week. This evidence is taken to refer back to the period for which she seeks a departure, namely to February 2006, because she has offered no other evidence of the child’s expenses in that time - her earlier financial statement filed 10 May 2007 contains the same figures.
When she vacates the home, which she will consider after receiving her property entitlement, she estimates expenses for J of $381 per week. Amongst other things, that includes $150 per week for ‘rent/mortgage’. Where this figure comes from is not explained though it is acknowledged she was not asked to give an explanation when the opportunity presented. Even so, the claim has to be seen as speculative at this stage. That is because there is no way of knowing now when she will leave her parents home, thereby incurring additional expenditure. When she does make the move, despite her assertion of $381 per week, there is no way of knowing if that figure will represent a proper measure of the child’s expenses by reason of the change.
While she has been at her parents’ home during the period covered by the assessment she seeks to depart from, there have been assessment notices issued and the husband has paid the amount assessed [see paragraph 27 above]. While she remains at her parents’ home her entitlement will be according to the more recent assessment of $422 per month or $97.38 per week, or at least until January 2009. Beyond that a fresh assessment will issue.
Turning to the husband’s financial position, so as to test the proposition about his payments being an unjust and inequitable level of support, the starting point is his financial statement of 22 May 2007 which, absent any other statement in evidence, will have to be taken to cover the whole period covered by the departure application; namely, from February 2006 onwards. That asserts a total weekly income of $1,338 and total expenditure of $1,035 [including child support according to the operative assessment], leaving a surplus of $303 per week. Yet that is not dissimilar to the wife’s position according to her recent financial statement which shows a surplus total income over total expenditure of $492 per week and according to her May 2007 statement which shows a surplus total income over total expenditure of $127 per week.
Having regard to the level of financial support provided by the husband according to the assessments referred to in paragraph 27 above towards the child’s $185 per week expenses in the period from February 2006, I cannot find the ground established, assuming that rests on ss (2)(c)(i), and nor can I find any other ground that could be supported.
As for the future, even if it is assumed for present purposes that the child’s expenses will be $381 per week in the changed circumstances, that figure would include $150 per week of a total $450 per week for ‘rent/mortgage’. But the husband’s financial statement is not drafted to project his future when the home is sold and he is re-accommodating himself. Were his figures to be adjusted to give a ‘like’ picture, his surplus would be obliterated and he would have a deficit. Seen in that light, and putting both parents on a similar footing for unknown future accommodation, a different picture emerges.
Added to the mix of what has been said so far, the parties have agreed to changes to J’s arrangements during the next two years before there will be a shift to equality of responsibility, at least as to his time.
In none of this can I find anything that could fit the description of ‘special circumstances of the case’ and nor can I find a ground for departure established even if that is wrong. The retrospective component to the wife’s application is unsupported by ‘special circumstances’ so as to warrant an order contrary to the assessment for that period and nor has a ground been established to depart from the assessments that issued and were complied with. The prospective component to her application relates first to an uncertain period of continued residence with her parents which, again, I find unsupported by ‘special circumstances’ so as to warrant an order contrary to the recent assessment and nor has a ground been established to depart from it. How long those circumstances will continue is not known but if they do change the consequences could be considered within the process of review available through the Child Support Agency if so advised. If there is no change then the current assessment will come to an end in January 2009 when a fresh assessment will issue and that will coincide approximately with the next stage of their agreed arrangements about their son’s time between their households. The prospective component of her application also stretches into the unspecified longer term accompanied by a CPI increase to be added to a base amount of $220 per week. However, this could not be supported when equal care is to be introduced at the beginning of 2010 which seems an obvious hinge event calling for review of their respective financial responsibilities to their son. Again, there could be no finding of ‘special circumstances’ to warrant departure and nor has a ground been established. On the contrary, there are circumstances in this case that make it entirely appropriate that their financial obligations be determined by assessment issued in the normal course and if their circumstances change that can be considered according to established processes.
The application for child support departure will be dismissed.

Orders sought by husband (exhibit 4)

Property Orders

That each party is to forthwith take all necessary steps and execute all necessary documents to cause the property situated at and known as [O] (“the matrimonial home”) to be sold by auction at the earliest possible date at a price to be agreed upon between the parties and failing such agreement to be determined by the President of the NSW Division of the Australian Property Institute or his nominee and the proceeds of the said sale be disbursed as follows:-
15.1In payment of agent’s commission and advertising expenses and legal expenses of the sale;
15.2.1 In payment of 60% of the balance to the husband;
15.2.2In payment of $6,343.00 to the husband (by way of alteration of property interest in relation to the household goods and furnishings retained by each of the parties).
15.2.3In payment of $67,143.00 to the husband (to effect a 60% adjustment to the husband of the net assets inclusive of superannuation).
15.3 In payment of the balance to the wife.
That within 14 days of the date of these Orders both parties do all things and sign all documents necessary to close the joint St George Bank account number […] and the joint ING Bank account number […] and divide the net proceeds equally between them.

That within 14 days of the date of these Orders the husband is to transfer his interest in the 234 jointly owned IAG shares to the wife.
That within 14 days of the date of these Orders the husband is to transfer his interest in the 2001 Subaru Forrester motor vehicle registration number […] to the wife and upon the said transfer the wife is to indemnify the husband against all liability in relation to the same.
That the wife be declared to have the sole right, title and interest in the items of household goods and furnishings as outlined in Schedule “B” hereof.
That within 14 days of the date of these Orders the wife is to collect those items described in Schedule “B” that are not already in her possession, from the matrimonial home on a day and time to be agreed between the parties and in the absence of agreement on the second Monday after the making of these Orders at 10:00am.
That other than as provided for by these Orders the husband and wife be declared to have the sole right, title and interest in:-
21.1chattels, goods, furnishings and other property which are at the date hereof in their possession respectively;
21.2any monies, shares, debentures or superannuation entitlements which stand in their sole name respectively at the date hereof.
That the husband and wife do all acts and things and give all consents and execute all documents and writings necessary to give effect to the Orders made herein.
That in the event that either party refuses or neglects to execute any Deed or instrument the Registrar of the Court be appointed pursuant to Section 106A to execute such Deed of instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the Deed or instrument.

Orders sought by wife (exhibit 3)

PROPERTY SETTLEMENT

The [O] Property

That the Husband and Wife forthwith do all acts and things and sign all documents necessary to cause the sale of the [O Property] ("the [O] Property") in accordance with Schedule "A" attached.
That pending settlement of the sale of the [O] Property, the Husband make all repayments on the ANZ Mortgage secured against the [O] Property, as and when they fall due ("the ANZ Mortgage".)
That pending settlement of the sale of the [O] Property:
3.1 the Husband pay all other costs and expenses associated with the [O] Property, including but not limited to the home insurance of the [O] Property and the contents insurance of the [O] Property; and
3.2 neither party increase any liability presently secured against the [O] Property, nor further encumber the [O] Property, without the other party's prior written consent
That simultaneously with settlement of the sale of the [O] Property, the parties forthwith cause the proceeds of sale of the [O] Property to be paid as follows:
4.1      To pay agent's commission, auction expenses legal costs and expenses, and all properly incurred expenses in relation to the sale of the [O] Property;
4.2      To pay all amounts required to discharge the ANZ Mortgage; and
4.3      to pay the balance remaining as to 72.5% to the Wife and 27.5% to the Husband.

The Subaru Vehicle

That the parties forthwith do all acts and things and sign all documents necessary to transfer the […] Subaru Forester motor vehicle (Reg. No[…]) to the Wife.

[W Company]

That the Husband indemnify the Wife and keep her indemnified against:
6.1      All liabilities of [the W Company] whether present, past or future;
6.2      All claims, actions, suits or demands arising out of, or in connection with, the [W Company];
6.3      Any amounts which may be owed to [the W Company] by the Wife;
6.4      Any lAS, BAS and Income tax liabilities for [the W Company]; and
6.5      Any liability that may accrue to the Wife arising out of, or concerning, [W Company].

The Investment Shares and Managed Funds

That the Husband forthwith do all acts and things and sign all documents necessary to transfer 65% of the total number of shares held by the Husband in BHP Billiton Ltd, and the Insurance Australia Group Limited, to the Wife.
That the Husband forthwith do all acts and things and sign all documents necessary to transfer 65% of the total number of shares held on behalf of the Husband in Colonial First State (in the Colonial First State Balanced Fund), to the Wife.
That simultaneously with compliance by the Husband with Orders 7 and 8 above, the Wife do all acts and things and sign all documents necessary to transfer 35 % of the total number of shares held on behalf of the Wife in the Insurance Australia Group Limited, to the Husband.

Furniture, Paintings and effects

That pursuant to Section 78 of the Family Law Act, the Wife by this Order, be declared solely legally and beneficially entitled to the entire right, title and interest in the items in Schedule "B" to these Orders ("Schedule B".)
10.1 That within 7 days of the date of these Orders the Wife collect the items in Schedule "B" from the [O] Property, on a day and time to be agreed between the parties, and in the absence of agreement on the first Monday after the making of these Orders at 10.00am.
10.2 That the Husband be restrained from removing any of the items referred to in Schedule "B" from the [O] Property prior to the collection by the Wife as referred to in Order 19 above.
That save as provided in Order 19 above, the parties each be declared solely legally and beneficially entitled to the entire right, title and interest in the furniture and effects in their possession.

Superannuation

That each party be declared to be the owner absolutely to the exclusion of the other of all superannuation entitlements standing to their name.

Miscellaneous

That save and except as these Orders provide to the contrary, the Husband and Wife be otherwise solely, legally and beneficially entitled to all other real and personal property of whatsoever nature and kind in their respective ownership, possession or control as at the date of these orders, including but not limited to, money on deposit, shareholdings, insurance policies, motor vehicles, furniture, furnishings and effects or other assets or resources.
That save and except as these orders provide to the contrary, the Husband and Wife mutually release the other from all debts or claims owing from one to the other.
That in default of either or both the Husband and Wife doing all such things and executing all such documents as may be needed to comply with these orders within the time provided, a Registrar of the Sydney Registry of the Family Court of Australia or such other person appointed by the Court be authorised to do all such acts and things and execute all such documents on behalf of either or both parties; and in the event that either party procure compliance with the order set out herein above by obtaining execution of documents pursuant to this order, then the party procuring such execution of documents shall be indemnified by the party for his or her costs and expenses incurred in obtaining such compliance.

CHILD SUPPORT

That the Child Support Assessment dated 16 February 2006 (and any subsequent child support assessment as at the date of these Orders) be departed from and the Husband pay to the Wife on Monday of each week, the sum of $220.00 per week as child support, such sum to increase annually on the anniversary of these Orders in an amount equal to the Consumer Price Index. ("the Child Support Payment");
That in addition to the Child Support Payment, the Husband pay:
17.1    66% of [J]'s annual pre-school, primary school and secondary school fees (including 66% of the costs of all school uniforms, books, stationery, equipment, sporting uniforms and equipment, excursion costs, extra curricular activity fees and other costs incurred in relation to [J]'s attendance at school);
17.2    66% of [J]'s annual extra curricular activity fees such activities to club membership costs and the costs of uniforms, equipment and travel expenses incurred in the conduct of those extra curricular activities); and
17.3    66% of [J]'s non-recoverable health, medical and dental expenses (including without limiting the generality thereof, the cost of spectacles and contact lenses and any ophthalmic or optometrist expenses.)
That for the purposes of Order 17 above, the Husband pay the amounts payable directly to the institution or business to whom the amounts payable are due, such payments to be made by the Husband within 28 days of receipt of any notice from the institution or business in question of any such amount being due and payable.
That the Husband provide the wife with an invoice, receipt, statement or letter from the institution or business in question confirming payment of any amount payable by the Husband pursuant to Order 17 above, within 7 days of payment by the husband of any such expense or within 7 days of written demand by the wife (whichever occurs first.)
That the parties do all acts and things and sign all documents necessary to inform the Child Support Agency of Orders 32 to 35 above, and to cause the Child Support Agency to give effect to those Orders.
That either party have leave to restore the matter on 7 days written notice in respect of implementation of these Orders.
That the Husband pay the Wife's costs.

SCHEDULE "A" -CONDITIONS OF SALE

The parties will sign all selling authorities as may be necessary to enable the property to be listed for sale with licensed real estate agents as agreed between the parties and failing agreement within 7 days of the date of orders, such agent as may be selected by the President of the Real Estate Institute of New South Wales or his or her nominee upon the written request of either party, the costs of that appointment to be borne equally by the parties as and when they fall due.
Neither party will, without the express written consent of the other, unless necessary for the purposes of any auction sale, cause to be granted to any real estate agent any exclusive or similar agency which shall have the effect of binding the parties solely to that estate agent or otherwise entitling any such estate agent to a commission to the intent that the parties shall be free to do business at any relevant times with any real estate agent who shall be able to effect a sale of the property without there being any liability to any other real estate agent.
The parties will sell the property at such price as agreed between the parties and failing agreement within 7 days of the date of orders then at such price as may be determined by a registered valuer, selected by the parties, to be the estimated market value of the property. In the event that the parties are unable to agree upon the appointment of such valuer within 14 days of the date of orders, then such agent as may be selected by the President of the Australian Property Institute (Inc.) New South Wales Division or his or her nominee upon the written request of either party and the costs of that appointment to be borne equally by the parties as and when they fall due.
The parties will appoint a solicitor/conveyancer to act on the sale of the property on behalf of both parties as agreed and failing agreement within 14 days of the date of orders such solicitor/conveyancer as may be determined by the President of the Law Society of New South Wales or his or her nominee upon the written request of either party and the costs of that appointment to be borne equally by the parties as and when they fall due.
The parties will co-operate with respect to the sale of the property, including but not limited to:
5.1 making the key available to the agent;
5.2 allowing access to the property at all reasonable times to prospective purchasers, valuers and licensed real estate agents as may have been appointed by the parties;
5.3 doing or saying nothing to hinder or prevent a sale being effected;
5.4 signing all documents in relation to the sale approved by the agent and/or solicitor acting on the sale as the case may be; and
5.5 maintaining the property in reasonable condition and repair having regard to its present condition and the state thereof, pending completion of the sale of the property.
If Agreements for Sale of the property by private treaty have not been exchanged within 3 months of the date of the listing of the property for sale then the parties will cause the property to be sold by way of public auction through a licensed auctioneer appointed by the parties or, failing agreement, to be appointed by the President of the Real Estate Institute New South Wales or his or her nominee upon the written request of either party ("the Auctioneer"), the costs of that appointment to be borne equally by the parties as and when they fall due.
If listed for sale by way of public auction, a reserve price shall be fixed by agreement between the parties, and failing agreement within 14 days of the Auctioneer being appointed, the reserve price to be determined by a valuer (other than the Auctioneer) appointed by the parties, or failing agreement, appointed by the President for the time being of the Australian Property Institute (Inc.) New South Wales Division or his or her nominee, upon the written request of either party and the costs of that appointment to be borne equally by the parties as and when they fall due.
In the event that the property is sold by way of public auction, then the Auctioneer shall nominate the date of sale which shall be not more than 2 months after the Auctioneer has been appointed.
The parties may attend the auction sale of the property and in the event that the said reserve price of the property is not reached, the parties or such of them as attend the said auction sale, may negotiate with the highest bidder or any other bidder present at the said auction or any other interested party in an effort to sell the property at a price not more than 5% below the said reserve price for the respective property. If Agreements for Sale of the property are not exchanged at a price of not more than 5% below the reserve price within 14 days of the said auction taking place then the husband and the wife shall forthwith re-list the property for sale by private treaty with the Auctioneer and shall in the absence of any mutually agreed price in writing between the husband and the wife sell the property at the highest price offered in writing and received by the Auctioneer within a period of 30 days from the date of the said auction, or such later date as the parties may agree in writing, provided that such price shall not be more than 10% below the reserve price for the property. In the event that the highest price offered as aforesaid is more than 10% below the said reserve price, the parties hereto agree that the property shall be forthwith listed for sale by way of public auction with the Auctioneer and the Auctioneer shall determine the auction date and the property shall be sold to the highest bidder at that auction, and it is further agreed by the parties that either party hereto shall be at liberty to bid at any such auction and that there will be no reserve price to apply to such auction.
In the event that the property is to be sold by auction then each of the parties will, upon demand, pay in equal shares the auction expenses. In the event that either party should fail to do so, then the auction expenses shall be deducted from the defaulting party's entitlement from the proceeds of sale of the property.

Schedule "B"

2.5 seat Moran sofa
2 x Baker Teak side tables
2 x terracotta lamps
Gilt mirror
Handmade 'Desert Starts' quilt
'Fish' floor vase
Fisher & Paykel fridge
Brother sewing machine
Wizard china figurine
Flannel Flowers painting
Iris woodcut print
[…] pastel by Robert Dickerson
Pottery 'Bird' decorative plate
White 3 drawer chest of drawers
Wife's golf clubs, tennis racquet, ski boots & walking boots
Wife's personal clothing, jewellery, books, compact disks & effects
Small Sony TV
Framed embroideries
Italian 'Bird' decorative plate & 'Kimberley' print by Ingrid Windram
‘Kimberley’ print by Ingrid Windram

21.

Villeroy & Boch white china
Red top, 3 drawer desk
Portacot, playpen, safety gates and baby toys (previously borrowed to the Wife by her sister)
Senseo coffee machine, electric beaters, mixer, food processor, mixing bowl, white china serving dishes, vases, Mondial knife set

26.

set of 3 gilt framed Grecian prints
2 white bedside tables & 2 bedside table lamps
A selection of [J]' baby toys & Lego

30.

2 wicker chairs
small TV table
Yukka pot plant and steel boy garden ornament
Flute & clarinet

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate

Date: 30 November 2007

[2007] FamCA 1409

30 November 2007

Key Legal Topics

Areas of Law

Family Law

Property Law

Legal Concepts

Remedies