Wilkinson and Wilkinson

[2017] FamCA 273

FAMILY COURT OF AUSTRALIA

WILKINSON & WILKINSON [2017] FamCA 273

FAMILY LAW – PROPERTY – Dispute as to contributions – Whether there should be an adjustment in respect of contributions – Whether there should be an adjustment in respect of section 75(2) of the Family Law Act 1975 (Cth) – Just and equitable – Where the parties’ contributions were equal until separation – Where the wife has made the greater financial and non-financial contribution to the children since separation – Where the husband is paying modest child support as assessed – Where the husband does not contribute financially to the children beyond child support as assessed – Where the wife has paid all mortgage payments and almost all household expenses since separation – Where superannuation is not included in the asset pool – Orders for the wife to receive 60 per cent of the asset pool and the husband to receive 40 per cent.

Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth) ss ss 79(4), 75(2)

AJO & GRO (2005) FLC 93-218, [2005] FamCA 195
Bevan & Bevan [2013] FamCAFC 116
Brandt & Brandt (1997) FLC 92-758
Clauson & Clauson [1994] 18Fam LR 693
Stanford v Stanford (2012) 247 CLR 108

APPLICANT: Mr Wilkinson

RESPONDENT: Ms Wilkinson

FILE NUMBER: PAC 3052 of 2014

DATE DELIVERED: 3 May 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 13-15 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Sansom SC & Ms De Vere

SOLICITOR FOR THE APPLICANT: Jacqueline Kyle Family Law

COUNSEL FOR THE RESPONDENT: Mr Greenaway

SOLICITOR FOR THE RESPONDENT: Goddens Lawyers

Orders

1. That the wife pay the husband the sum of $421,951 within eight (8) weeks of the date of these Orders.

2. Simultaneously with payment pursuant to Order (1) above of the said sum of $421,951 together with interest thereon, if applicable, the husband shall do all such things and sign all such deeds, documents, and instruments as may be necessary to transfer to the wife all his right title and interest in the property situate at and known as B Street, Suburb C in the State of New South Wales (“the former matrimonial home”).

3. Simultaneously with the said transfer referred to in Order (2) above, the wife shall do all such acts and things and sign all such deeds, documents and instruments as may be necessary to discharge the existing mortgage to the Westpac Banking Corporation secured over the former matrimonial home provided however that the husband shall sign the appropriate discharge authority within seven days of same being submitted to him.

4. That the wife as against the husband, be declared to be the sole legal and beneficial owner of her right, title and interest in and to:–

   a.All cash at banks and monies invested in the wife’s sole name:

   b.All furniture and personal effects in the wife’s possession; and

   c.All her superannuation entitlements.

5. That the husband as against the wife, be declared to be the sole legal and beneficial owner of his right, title and interest in and to:-

   a.All cash at banks and monies invested in the husband’s sole name.

   b.All furniture and personal effects in the husband’s possession.

   c.All his superannuation entitlements.

6. In the event that the wife fails or neglects to comply with Order (1) herein, that within a further period of 8 weeks, the husband pay the wife the sum of $632,926.

7. Simultaneously with the payment pursuant to Order (9) herein upon receipt of the said sum of $632,926 together with interest thereon, if applicable, the wife shall do all such things and sign all such deeds, documents and instruments as may be necessary to transfer to the husband all her right title and interest in the former matrimonial home.

8. Simultaneously with the said transfer referred to in Order (7) above, the husband shall do all such acts and things and sign all such deeds, documents and instruments as may be necessary to discharge the existing mortgage to the Westpac Banking Corporation secured over the former matrimonial home provided however that the wife shall sign the appropriate discharge authority within seven days of same being submitted to him.

9. In the event that the husband fails or neglects to comply with Order (6) herein the parties shall each do all things necessary to forthwith list and sell the former matrimonial home for sale by public auction.

10. In the event that the parties are not able to agree upon arrangements for sale including but not limited to the

    a.The listing agent;

    b.The solicitor appointed to act upon the sale;

    c.The Marketing plan, and

    d.The reserve price;

    They shall jointly appoint the President of the Real Estate Institute of NSW or nominee to make such decision or decisions which shall be binding on the parties.

11. Upon sale of the said property the proceeds shall be disbursed as follows:

    a.The discharge of the mortgage;

    b.The costs of the listing agent together with the costs of appointments pursuant to Order (10) if any;

    c.The legal costs

    d.Outstanding utilities;

    e.As to the balance 60 per cent of same to the wife, and the balance to the husband.

12. In the event that either party fails to sign any necessary document or instrument or to do any acts required or contemplated by these Orders to be done with such failure continuing for fourteen (14) days, then the Registrar of the Family Court of Australia in pursuance of the power conferred on him or her under Section 106A of the Family Law Act 1975, as amended, shall have the power to execute any document or instrument in the name of the person who has refused or neglected to sign any necessary document or instrument or to do any act required or contemplated by these Orders.

Note: The form of the Order is subject to the entry of the Order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilkinson & Wilkinson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3052  of 2014

Mr Wilkinson

Applicant

And

Ms Wilkinson

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties’ dispute originally concerned the future parenting arrangements for their three daughters and a distribution of their property following separation in 2014 after a 23 year relationship.

2. At the commencement of the final hearing the parties resolved their parenting dispute and final parenting orders were made with their consent. Under those orders the children live with the wife and spend significant defined time with the husband.  The parties equally share parental responsibility for the children.

3. The remainder of the proceedings was concerned with a property settlement dispute. The parties agreed that the contributions that each had made to the acquisition of property and to the welfare of the family prior to separation were equal, but otherwise are in dispute.

4. The husband contends that each of the parties also continued to make equal contributions following separation. He proposes orders that would see an adjustment in favour of the wife of five per cent largely on the basis of the ongoing care of the children so that she would receive 55per cent of the matrimonial assets available for distribution.

5. The wife contends that following separation she made a significantly greater contribution especially in relation to the care and welfare of the children so that there should be a five per cent adjustment in her favour on this basis. So far as the other matters referred to in s79(4) of the Family Law Act 1975 (Cth) (‘the Act’) are concerned and in particular in relation to the matters set out in s75(2) she contends that there be a further adjustment in her favour. The effect of the orders she proposes is that she will receive 67.5 per cent of the matrimonial assets and the husband will receive 32.5per cent.

6. The question for me to determine is which of the proposals represents a fair and equitable distribution of the parties’ property.

Background

Circumstances during the relationship

1. The husband who is 43 and the wife who is 44 met when they were at high school and began a relationship in their early twenties. 

2. The parties bought their first property together in September 1994 and began living in it.  The wife had tertiary qualifications and began full time employment in the same year.  The husband who had trade qualifications worked full time.  Neither of the parties had any other significant assets or liabilities at the start of their relationship.

3. The husband had difficulties with alcohol and cannabis misuse and spent a few weeks as a voluntary patient in a rehabilitation clinic in late 1995. Other than during these weeks and a short period of separation in 1998 the parties continued to live together in the home that they were purchasing. 

4. In 1998 the husband began working for his parents’ company.

5. In January 2000 the parties sold their property and paid out the balance of their mortgage loan.  They each received $40,000 which they deposited in their own accounts.  They then lived together in a “granny flat” at the home of the husband’s parents’ (the paternal grandparents) for five months.

6. In June 2000 the parties purchased a home at Suburb C for $333,000 which became the family home.  They each contributed $40,000 and together borrowed an additional $260,000 secured by a mortgage.  Various improvements to the home were made over the years through the parties’ own physical effort and by contractors employed by them.

7. The parties married in 2001.

8. Both parties continued to work full time until the birth of their first child in 2002. At the time the first child was born the wife was earning just under $56,000 per year.  There is no evidence of the husband’s income at this time.

9. The wife took about five months maternity leave from work following the birth but received some income during the period as she had some long service leave entitlements. 

10. The wife returned to work four days a week once the eldest child was five months old and worked in this pattern until the birth of the parties’ second daughter in 2005. 

11. The wife took 12 months maternity leave on this occasion and returned to work three days per week, earning an annual income of about $41,600 for those three days.

12. In 2008 the parties’ third daughter was born.  The wife took 12 maternity leave including 14 weeks leave for which she was paid at a part time rate.  She returned to work in about January 2009 and worked two to three days per week.

13. The husband’s wages for his employment in his parents’ business steadily rose over time. For the financial year ending June 2009 he had a net income of $38,116 which had increased to $61,280 per annum by June 2013.

14. There were some incidents between the parents in 2011 and 2012. The wife contends that the husband’s behaviour deteriorated and he became aggressive as a result of his alcohol and cannabis use.  The husband appears to agree that the parental relationship deteriorated though he contends that this was due to interference by family members in their relationship.

15. On 1 March 2014 there was an incident between the parties at a child’s birthday party which resulted in police intervention and a provisional ADVO being issued by police for the protection of the wife and the children against the husband.  An interim order was made by a Local Court with consent of the husband prohibiting him from going within 100 meters of the family home and the wife’s work place and from approaching the wife and the children while affected by alcohol or illicit drugs. 

16. Following this incident the parties separated and the husband went to live with his parents. The husband’s income started to decline from around January 2014 and in April 2014 it decreased further from $1,020 per week to $857 per week.   

17. Throughout the marriage prior to separation both of the parties’ income was applied to their joint expenses including the payment of the mortgage on the family home. The parties made significant progress in the repayment of their mortgage so that by May 2014 just over $60,000 remained outstanding on that debt. The value of the home had increased significantly during that time.

18. In June 2014 the husband commenced these proceedings seeking interim and final parenting and property orders.

19. The parties agree that the contribution made by each of them prior to separation was equal.

After separation

1. Following separation the wife continued to live at the former family home with the three children. The husband ceased making payments into the mortgage account and other than the payment of two household bills in his name in July 2014 totalling $1033 has made no payment towards any of the household outgoings since separation.

2. The wife has made the minimum repayments required on the mortgage of $640 per month since separation though on occasions she has paid less than the required minimum amount. The mortgage has been reduced throughout this period by a little under $10,000. The wife has paid for all other household outgoings and expenses.

3. From around May 2014 the husband began spending time with the children from Friday afternoon to Sunday night each alternate weekend. From October 2014 he has spent time with the children three nights her fortnight pursuant to interim parenting orders. The children also spend block time in the school holidays with the husband for up to a week on each occasion.

4. The husband’s income following separation has varied but has consistently been less for each financial year than for the three years preceding separation. From around October 2014 (when the first interim parenting orders were made) the husband’s income decreased from $73,000 per annum to $21,500 per annum.

5. The husband was first assessed for child support in June 2014 and has made payments as assessed since that date. The amount paid by the husband varied significantly especially in the first 18 months following separation. At times he has been assessed as nil and on other occasions has been assessed at a nominal amount such as a little over $30 per month.

6. Since late October 2015 the husband had fairly consistently paid around $260-$280 per month in child support for the three children.

7. A new Child Support Assessment taking effect from 12 September 2016 requires the husband to pay $402.50 per month for the three children or about $33 per child each week.

8. The wife continued to work following separation two days a week. She utilised her earnings to pay the household expenses and virtually all expenses in relation to the children.

9. The husband has not made any payments to the wife since separation other than by way of child support apart from a few occasions when he has paid for specific items in relation to the children such as a dental bill, school requirements such as school shoes and on one occasion a school excursion.

The Law & Discussion

1. The approach to the determination of an application for property settlement orders is set out in Stanford v Stanford[1], which was considered in detail by the Full Court in Bevan & Bevan[2].

   [1] (2012) 247 CLR 108

   [2] [2013] FamCAFC 116

2. The starting point is a consideration of “whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles the existing legal and equitable interests of the parties in the property”[3].

   [3] Stanford & Stanford (2012) 247 CLR 108 at [37].

3. This involves identifying the existing interests and then considering whether having regard to the particular circumstances before me, it would be just and equitable to make orders for the alteration of property interests.

4. I should next consider the matters set out in s 79(4)(a) to (c) of the Act, that is the financial and non-financial contribution made by the parties to the property and to the welfare of the family constituted by the parties.

5. I must then consider the remainder of the matters in s 79(4) including the matters referred to in sub-section 75(2) so far as they are relevant, and determine on this basis whether there should be a further adjustment to the parties’ contribution-based entitlements.

6. Finally, I must then consider the justice and equity of the proposed orders.  As was said in Bevan (supra) at [86], the just and equitable requirements is “not a threshold issue, but rather one permeating the entire process”.

What are the existing interests of the parties?

1. There is agreement between the parties that the items set out in the following table only should be considered for the purposes of the property settlement. .

LIST OF ASSETS AND LIABILITIES
ASSET	HUSBAND	WIFE		JOINT
Family Home – Suburb C	$1.1 million
NAB Shares	$5,652
Total Assets	$1,105,652
LIABILITIES	HUSBAND	WIFE	JOINT
Mortgage on Home	$50,774
Net Assets	$1,054,878
SUPERANNUATION	HUSBAND	WIFE	JOINT
BT Super	$118,604
AMP	$17,987
D Super	$110,535
Total Superannuation	$136,591	$110,538
TOTAL NET ASSETS	$136,591	$116,190		$1,307,659

1. The question to be determined is whether it would be just and equitable to leave the property rights intact having regard to there currently being total assets to the value of $1,307,659 with the husband’s interests totalling $664,030 and the wife’s interests totalling $643,629.

2. As was indicated in Stanford (supra) the requirement that it would be just and equitable to make an order is in many cases readily satisfied by observing that at [42]:

   … as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship.  … any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marriage relationship is brought to an end with the ending of the marital relationship.  And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end.  Hence it will be just and equitable that the Court make a property settlement order. …

3. In this case, the parties were in a relationship including a marriage for 23 years before separating.  Each brought property and financial resources to the marriage.  Assets were accumulated at this time for the common purpose of providing for their life together in their future.  That arrangement came to an end upon separation.

4. As the parties accept that there will not be common use of the property by both of them in the future and they both seek adjustment orders but are unable to agree to the adjustment, I am satisfied that it is just and equitable to make orders under s 79 of the Act.

The Balance Sheet

1. Although I made findings as to the current interests of the parties, which are set out in the table in paragraph [41] the parties agree that the court should take a two pool approach to the property settlement with one pool comprising the superannuation interests and the second pool comprising non-superannuation interests. As each party has a superannuation interest and neither makes a claim upon the other it has been agreed that the property settlement orders are to only relate to the non-superannuation assets. Accordingly the balance sheet comprises only the former family home, subject to the mortgage and the small shareholding in the wife’s name. 

Contributions

1. Under s 79(4) of the Act, in considering what order should be made in property settlement proceedings, I must take into account the financial and non-financial contributions directly or indirectly made to the acquisition, conservation or improvement of any of the property of the parties and the contributions made to the welfare of the family and the children, including contributions as a homemaker or parent.

1. The parties agree in my view correctly that although their respective contributions were different in nature they were roughly equal up until the time of separation.

2. One of the only issues in dispute in these proceedings is the respective contributions of the parties following separation. The husband maintains such contributions continued to be roughly equal while it is the wife’s position that there was a significant shift following separation with her making the greater contribution to both the property and the welfare of the family.

3. It is submitted on behalf of the husband that his financial contribution in making the former matrimonial home available for the wife to use for three years is equivalent to the greater non-financial contribution made by the wife during this period. It is contended that no adjustment should be made in favour of the wife for her contribution following separation and the five percent adjustment contended for by the wife which would lead to a ten percent disparity in the parties’ respective positions could not be justified in the circumstances.

4. It is contended on behalf of the wife that following separation she made a significantly greater contribution both financially and non-financially. It is submitted that the wife’s occupation of the family home should not be regarded as a contribution by the husband in circumstances where the wife solely met the mortgage payments and was able to reduce the capital amount of the mortgage by $10,000 over this period.

5. It is also submitted on behalf of the wife that her contribution to the welfare of the family in the capacity as homemaker and parent was made significantly more arduous by the husband following separation. It is contended that this can be gleaned from the tenor of his text messages and attitude generally to providing anything towards the expenses and upkeep of the children beyond paying child support as assessed. This factor is given much weight in submissions made on the wife’s behalf to the extent it is submitted that a significant adjustment, being five percent, should be made in favour of the wife on this basis.

6. I am satisfied that both parties continued to make contributions following separation. The wife did receive the benefit of continuing to live in the former family home for three years which favours the husband but the children, who lived with her, also required a home during this period which was the responsibility of both parties. Further, the wife alone continued to make the mortgage payments on this property which covered interest and reduced the capital by just under $10,000. This is not an insubstantial amount when the total outstanding on the mortgage is just over $50,000.

7. The wife also clearly made greater contributions to the children financially and in the capacity of a parent during this period. I am of the view that although the husband’s conduct falls well below that which would justify an adjustment in the wife’s favour on the basis that her contribution was made more arduous, he had a highly begrudging attitude towards his responsibility as a parent in supporting the children.

8. I am satisfied that the wife is an excellent money manager and has provided well for the children on a small income with little financial support from the husband since separation. The husband’s attitude (that all responsibility for financial support for his children was discharged through the payment of very small amounts of child support as assessed) is niggardly and unreasonable. I find that the wife made a greater financial and non-financial contribution to the children in the three year period after separation on the basis of the uncontested evidence concerning all of the expenses borne by her alone without virtually any contribution from the husband other than child support as assessed.

9. Taking into account the effect of any adjustment on the respective entitlement of the parties I make an adjustment of two and a half percent in favour of the wife for the greater contribution made by her in the period following separation.

Section 75(2) Factors

1. The parties are each in their forties.  Although the wife has some health problems, it does not affect her capacity to earn an income.  So far as I am aware the husband is in good health. 

2. Neither of the parties has property other than the former family home and the small shareholdings in the wife’s name that are the subject of this property settlement. 

3. Each of the parties hopes to be able to purchase the other party’s interest in the family home with the money to be received in the property settlement. In my view having regard to the small amount outstanding on the mortgage and the party’s respective capacities to earn a reasonable income, this is a realistic aspiration for each of them. 

4. The husband has available to him $26,000 more than the wife in superannuation interests. 

5. Both parties also expect some financial assistance from their own parents and in the case of the wife this may be essential if she is to purchase the husband’s interest in the former family home. 

6. The husband’s parents have been particularly generous to him in the past.  According to the husband’s evidence which I accept, his parents have at times paid him when he has not been performing at work at full capacity. Otherwise I found his evidence concerning the manner in which his wages are calculated somewhat disingenuous.  He denied any knowledge of whether the hours he worked were recorded and denied that his wage was calculated at an hourly rate.  Although he deposes to having work related expenses and travel deductions that reduce his gross income, he denied any understanding of the meaning of these expressions under cross-examination and said he didn’t understand “how tax works”.  The general tenor of his evidence which is consistent with the wife’s evidence in relation to the period prior to separation is that his parents will continue to support him financially through the payment of wages regardless of his performance or hours worked.  The husband also deposes to his parents assisting him with the payment of legal expenses and being otherwise generous to him by making their holiday home available for him to spend time there with the children.  It is likely that this level of generosity will continue to be extended by the husband’s parents to him and I regard their assistance as a financial resource available to him. 

7. Each of the parties has a capacity for appropriate gainful employment.  The wife is a qualified and experienced professional and the husband has worked in his parents’ business for many years.  The wife has worked part time being generally two days per week since the youngest child was born in 2008.  At the time of the hearing the wife earnt around $42,000 per year which she said could increase to around $95,000 per year if she were to return to work full time.  The wife is currently committed to working part time. 

8. It is submitted on behalf of the husband that his capacity to earn an income is less than that of the wife.  Historically, throughout the period up until a few months after separation, the husband earned more than the wife.  Following separation his income quite dramatically dropped from $73,000 to $21,500 per annum which according to the husband was as a result of him suffering from psychological stress associated with the separation.  His income then fluctuated quite significantly for about two years and has increased in recent times. 

9. Taking all matters into consideration including that the husband is employed in the family business by otherwise generous parents, the lack of clarity concerning the way in which his wages are calculated and the more recent increase in earnings, I am of the view that he has a capacity to earn an income roughly similar to that of the wife in the future. 

10. Pursuant to the parenting orders agreed to by the parties at the commencement of the final hearing, the children are to live with the wife for the majority of the time.  They are to live with the husband during the school term from after school on a Friday until Sunday evening each alternate week and overnight on a week night in each alternate week.  The children are to live equally with their parents during school holidays. 

11. It is submitted on behalf of the husband that the wife having the main care of the children will not impact upon her capacity to earn a living as she chooses to work only during school hours.   

12. In my view, even though the wife is a professional her responsibilities as the primary carer do impact upon her capacity for employment.  There is no dispute between the parties that their joint decision when the relationship was intact was that it was in the children’s interests for the wife to work part time.  This pattern of employment and care for the children continued after separation and is the wife’s preference to maintain this pattern for the future care of the children.  In her affidavit the wife deposes to having the capacity to earn a higher salary if she were employed more than two days a week but she has not done so to date as the children have needed more emotional support from her following separation.  Although the wife conceded that she may be required to increase her days of work from 2018 when such work may become available to meet the mortgage payments, she continues to maintain that she would prefer to continue to work part time. The tenor of her evidence is that it was the view of both parties when they were married and continues to be her view that it is best for the children that she to continue to work less than fulltime.  In this sense in my view, the wife’s caring responsibilities for the children do have some impact upon her capacity to work fulltime. 

13. Further when evaluating section 75(2) factors the Full Court in Brandt & Brandt[4] said:

    It is proper to take into account the economic ramifications of having responsibility for the children and the quasi-economic contributions involved in raising children which include washing, ironing, cooking and the like.  It is appropriate to bear in mind salary and income opportunity forgone because of responsibilities to children.  It is appropriate to recognise that such responsibilities involve sacrificing leisure and recreation time. 

    [4] (1997) FLC 92-758.

14. Neither of the parties have responsibilities to maintain any other people other than their children. 

15. The standard of living that the parties have maintained since separation has been reasonably similar to the quite modest standard that they enjoyed when the family was intact.  The parties appear to have been responsible financial managers throughout their lives and in my view the wife has managed remarkably well to maintain a reasonable standard of living for herself and the children on quite limited resources since separation.  Each of the  parties propose using the resources available to them to purchase the other party’s interest in the family home and each wish to continue to enjoy a similar standard of living to that which they have enjoyed in the past. 

16. The wife also wishes to continue her role as a parent where it is intrinsic to that role that she works in a less than fulltime capacity in order to support the children in a manner that these parties had agreed to previously. 

17. The only other issue about which there is some dispute is the extent to which child support should be taken into account pursuant to section 75(2)(na). Section 75(2)(na) provides that a matter to be taken into account is any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage. Section 79(4)(g) is in identical terms.

18. The husband was assessed for child support soon after the parties separated and at all times has paid it in accordance with his assessment.  It is not suggested that the husband will do anything other than pay child support as assessed in the future.  However, it is submitted on behalf of the wife that it may be expected that the husband’s contribution through child support will be very modest in nature and that he will not consider that he has any obligation to financially support the children except through the payment of child support.  It is submitted that the court may still look at the likely level of child support payments and compare them with the financial requirements of the children and can conclude that there will be a significant shortfall in terms of the need for financial support. 

19. It is submitted on behalf of the husband that the court should be careful to ensure that an adjustment on this basis does not become a “back door” application for a Child Support Assessment Departure.  It is submitted on behalf of the husband that as the wife discontinued a previous application for a departure order she cannot continue to bring that application in a de facto manner through this section.

20. In Clauson & Clauson[5] the Full Court when considering this paragraph and the identical provision in section 79(4)(g) said;

    Because of this overlap it is generally convenient to consider these two sets of provisions at the same time.  The weight to be attached to a child support assessment will vary with the circumstances of each case, including the amount of the assessment, the financial circumstances of the parties, the needs of the children, whether the assessment is being paid regularly, and whether it is likely that it will continue to be paid at a regular and adequate rate in the future. 

    [5] [1994] 18Fam LR 693

21. Applying those matters to this case, it is highly likely that the husband who has regularly paid the assessed amount in the past will continue to do so in the future.  I am of the view however, that the amount of the assessment has not been adequate in the past and is not likely to be adequate in the future having regard to the uncontested evidence concerning the expenditure incurred by the wife in relation to the children.  As previously noted, the wife has in my view been careful and frugal since separation and been required to fund considerable expenditure for the children on necessary items with no support from the husband other than through child support.  She sets out in detail the very small amounts she has received by way of child support which she describes as being in no way adequate to meet even half of the children’s basic needs.  She was not challenged about the amounts she spends on groceries, health insurance, mortgage costs, school sporting and extracurricular activities and social activities for the children.  It is not disputed by the parties that one of the children was required to wait for a considerable period of time to have some dental work carried out as the wife could not afford to pay the out of pocket expenses which were not covered by the health insurance she paid for the children and the husband was not prepared to make the additional contribution. 

22. It is a clear theme throughout the text message and other communication between the parties following separation that the husband regards his only financial obligation towards the children to be the payment of child support and has not been prepared to make any additional payments as requested by the wife unless she was prepared to negotiate with him about an increase in the time the children spent with him.  On some occasions when it appears from the communications that the husband felt obliged to make small payments for the children such as the purchase of school bags or payment for an excursion, he expected that the wife would repay him for these amounts.  Under cross-examination the husband appeared to maintain that his stance in relation to this issue was completely reasonable. 

23. As a result of the foregoing I am of the view that the husband will continue to consider that he has no responsibility to support his children financially beyond the payment of child support which is likely to continue to be assessed at the minimal level at which it previously and currently stands. An adjustment in favour of the wife will be made on this basis as she will bear the vast majority of expenses in relation to the children in the future.   

Discussion section 75(2) factors

1. It was conceded on behalf of the husband that an appropriate adjustment should be made in favour to the wife due to the section 75(2) factors in the order of five per cent. The husband contends that this does not include an adjustment in relation to the payment of child support as it is his case that any adjustment on this basis should not be made. It is submitted on behalf of the wife that an appropriate adjustment for section 75(2) factors would be 12.5 per cent in her favour.

2. In summary, the relevant matters which result in an adjustment in favour of the wife are the slightly greater financial resources of the husband from his superannuation interests and likely greater assistance from his parents and the wife’s reduced capacity for full time employment due to the care of the children. She also has an ongoing role for many years in the primary care of the children and will bear the additional costs associated with their care in circumstances where the husband is likely to make contributions through child support in the future to a similar minimal level as he has done in the past. In my view it is appropriate to make an adjustment of 7.5per cent in favour of the wife on the basis of these factors. 

Just and equitable

1. As outlined, I am of the view that the contributions made by each of the parties during the marriage were equal but an adjustment in favour of the wife should be made for her more significant parenting and financial contribution following separation. For the foregoing reasons a further adjustment should be made in favour of the wife in respect of the section 75(2) factors being a total adjustment in her favour of ten per cent.

2. The final orders I propose making will thus result in the wife receiving 60 per cent and the husband receiving 40 per cent of the non-superannuation assets meaning the wife will receive $632,926 and the husband will receive $421,951.

3. As a result of these orders the wife will be able to purchase the husband’s share of the former matrimonial home to which she made a slightly greater contribution. The children will continue to live in the home in which they have always lived. The wife will bear the greater level of responsibility for their care and financial needs to which the husband is likely to make a modest contribution through child support. Each of the parties will have the capacity and financial resources to enable them to enjoy a similar standard of living to that which they have enjoyed in the past. In my view this is a just and equitable resolution of the property dispute in these circumstances.

4. The orders I make are in accordance with the wife’s minute of order subject to the necessary percentage adjustments.

5. The orders that I make are as set out at the forefront of these reasons for Judgment.

I certify that the preceding eighty six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 3 May 2017.

Associate: 

Date:  3 May 2017