Wu and Po

[2013] FamCA 635

FAMILY COURT OF AUSTRALIA

WU & PO [2013] FamCA 635

FAMILY LAW – PROPERTY SETTLEMENT – Contributions – Financial contributions – Non-financial contributions – Where the parties contributions are almost equal during the course of the marriage – Adjustment pursuant to s 79(4) – Future needs – Just and Equitable – Domestic violence – Where a Kennon type adjustment is not made out – Superannuation.

Family Law Act 1975 (Cth) s 65DAC, s 75(2), s 79, s 79(4), s 90MT(1)(a)

Bevan & Bevan (2013) FamCAFC 116 Kennon & Kennon (1997) 22 Fam LR 1 Omacini & Omacini (2005) FLC 93-218 Stanford & Stanford (2012) 293 ALR 70
APPLICANT:	Ms Wu

RESPONDENT: Ms Po

FILE NUMBER: BRC 2234 of 2009

DATE DELIVERED: 27 August 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 11 & 12 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Oakley

SOLICITOR FOR THE APPLICANT: Files Stibbe Lawyers

SOLICITOR FOR THE RESPONDENT: Mr McNally
McNally Lawyers

COUNSEL FOR THE INDEPENDENT CHILD’S LAWYER: Ms Walker-Munro

SOLICITOR FOR THE INDEPENDENT CHILD’S LAWYER: Legal Aid Queensland

Orders

1. That the Applicant husband’s application for the child, B born … 2002 to attend C School is dismissed.

2. That the Respondent wife’s application for periodic spousal maintenance is dismissed.

3. That the competing applications for property adjustment Orders are adjourned for further mention before Justice Forrest at 9.30 am on Thursday, 5 September 2013 where it is intended that final Orders will be made in accordance with these reasons for judgment, subject to the trustees of QSuper being heard as to any opposition to that intended course.

4. That the Applicant husband shall forthwith provide a copy of these Orders to the trustees of QSuper and inform  them of the superannuation splitting Order the Court currently intends to make, subject to their right to be heard, by providing them with a copy of paragraphs 49 and 50 of the reasons for judgment published on the date hereof.

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

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: BRC2234 of 2009

Ms Wu

Applicant

And

Ms Po

Respondent

REASONS FOR JUDGMENT

1. The parties in this case met in Country D in early 2001. The Applicant husband, a scientist, had come to Australia to live permanently just a few years before. On a return visit to Country D, he was introduced to the Respondent wife and a little later in 2001, when the husband was back in Australia, they agreed to marry.

2. The wife obtained a visa to come and live in Australia in early 2002 and the parties married in 2002. Their only son was born in 2002.

3. After they began experiencing relationship difficulties, the wife went back to Country D in June 2004. She took their child with her. In early 2005 the husband accepted that their marriage would not be reconciled. However, in early 2007, at the wife’s suggestion, the couple agreed to reconcile and give their relationship another try. The wife and child returned to Australia to live with the husband and they bought a property at Suburb E, just north of Brisbane, which they made their family home.

4. Their reconciliation, however, did not last and the husband moved out of the home in July 2008. Unfortunately, the couple have never been able to resolve all their differences since that time. They fell into conflict over the parenting of their child as well as finalising their financial affairs.

5. In 2009 the husband commenced proceedings in the Federal Magistrates Court (as it was then known) for parenting and property adjustment orders. Allegations of abuse of the child by the father were made by the mother and the time the child spent with the father was extremely limited as a consequence.

6. The proceedings were transferred to this Court and included in its Magellan list. An Independent Children’s Lawyer was appointed. Several family reports were obtained.

7. When the matter came on for a three day trial in April last year, the parties were able to reach an agreed resolution of their parenting differences and I made quite detailed parenting orders in terms that the parties had consensually drawn up. Those orders essentially provided for parental responsibility to be shared equally and for the parents to share equally, on a week about living arrangement, the care of their little boy. They were not able to agree on one matter in respect of parenting that I was asked to decide.

8. The father wants to change the school that the boy attends to one close to where he lives on Suburb F. The mother wants the boy to continue to attend the same school that he has been attending since he commenced his Primary School education, closer to where she lives in the Suburb E property.

9. Although the parties had done so well in negotiating a resolution to almost all of the matters that divided them in respect of parenting, they were unable to agree at all as to how to divide up their relatively modest property and superannuation interests. During the course of the trial, it became clear that the issues that divided them in respect of property adjustment were:

   (i)Whether any notional sum should be included in the “pool” of property and superannuation against which contributions are to be assessed for money alleged to have been used unilaterally in an unexplained way by the husband;

   (ii)The relative assessment of their contributions; and

   (iii)The consideration of relevant s 75(2) matters and the adjustment that consideration would result in to the contributions based division.    

10. The wife, through her solicitor, also pressed for a periodic spousal maintenance Order at the end of the trial. That matter too now requires determination.

11. It is now sixteen months since the trial. This long delay in delivering a judgment is regrettable. It is attributable to the demands of hearing and determining so many other matters in this Court’s busy list in that time. That the delay will have added stress to that already experienced by the parties through being involved in conflict and court proceedings is acknowledged. This judgment will, hopefully, give the parties the certainty and finality that they have hoped to achieve.

What are the parties’ interests in property and superannuation?

1. By the end of the trial the parties agreed that their interests in property and superannuation at that point in time were as follows:

   Jointly owned real property at Suburb E  $295,000

   The wife’s motor car  $14,000

   The wife’s personal chattels  $800

   The wife’s Sunsuper Superannuation  $2,200

   The husband’s motor car  $4,300

   The husband’s personal chattels  $3,000

The husband’s QSuper Superannuation  $85,456

Total  $404,756

1. The parties also agreed that they were jointly liable to the Westpac Bank for the home loan secured by mortgage over their real property to the amount of $256,800. Accordingly, they had net interests in property and superannuation to the value of $147,956 at the time of the trial.

Is it just and equitable to make property adjustment orders at all?

1. The husband and wife have chosen no longer to live together as a married couple. They remain connected financially by joint ownership of property and joint liability for a substantial debt. They are really unable to independently move on with their lives until those connections are severed. Additionally, the husband accumulated substantial superannuation interests, way in excess of those of the wife, whilst working at the same time as the wife, by agreement, was engaged in full-time parenting of their child.  In these circumstances, I find that an order for an adjustment of property interests is appropriate to ensure a just and equitable outcome for each of the parties.

What of the wife’s “add back” arguments?

1. The wife, through her solicitor, submitted that two amounts should be notionally added to the net assets and superannuation before contributions are assessed and the findings converted to a notional division of that “pool” in order to determine appropriate property adjustment orders.

2. Those amounts were $52,500 and $14,044.  The first of those figures, it was submitted, reflects money that the husband is alleged to have had in a bank account at around the time of separation that the wife asserts he then unilaterally spent so as to justify it being notionally “added back”. The second amount is said to be the difference between money that the husband “advanced” to his sister (who lives in Sydney) over several years and money that the sister “repaid” to the husband over those years. For the wife, it was submitted that what came back to the husband fell $14,000 short of what went to the sister and that this must therefore be notionally “added back” to the “pool”.

3. In the past, the Full Court of this Court has been critical of the concept that the mere expenditure of money realised from the disposition of assets that existed at the date of separation will result in that expenditure being added back[1]. Three clear categories of cases have been identified in which it was considered appropriate to notionally “add back” assets that no longer exist. Relevant to this case, one of the categories was where there has been a premature distribution of the parties’ assets. However, adding back, even in circumstances that might fall within this category, has been regarded as the exception rather than the rule. It should generally only follow some examination of the expenditure or premature distribution of the asset and an assessment that it was unreasonable expenditure or dissipation and productive of an unjust and inequitable outcome for the other party if not “added back”.

   [1]          Omacini & Omacini [2005] FamCA 195; (2005) FLC 93-218.

4. The High Court’s decision in Stanford[2] has stimulated further consideration of the appropriateness of “adding back”. The Full Court recently observed[3] that notional property is unlikely to constitute “property of the parties to the marriage or either of them” and is thus “not amenable to alteration under s 79”. The Full Court went on to remark that s 79(4), in particular s 75(2)(o), gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property.[4]

   [2] (2012) 87 ALJR 74; 293 ALR 70.

   [3]          Bevan & Bevan (2013) FamCAFC 116.

   [4] Ibid at [79].

5. That noted, I immediately observe that I do not consider either the High Court’s decision in Stanford or the Full Court’s decision in Bevan as determining that there can be no circumstances where it is appropriate, just and equitable to include amounts that notionally represent assets or money already unilaterally disposed of by one of the parties alongside other existing property, superannuation interests and liabilities in a “pool” against which contributions are considered and assessed in the process of determining, ultimately, appropriate property adjustment orders directed at actual property, liabilities and superannuation interests that are just and equitable.

6. In this case, the evidence that the wife’s solicitor referred me to in support of his submission that the amount of $52,500 should be notionally added to the “pool” was three paragraphs of the wife’s affidavit sworn 6 March 2012 and filed 12 March 2012. Those paragraphs are short enough to set out here.

   39. In 2005, the Husband transferred AUD$2,000 to LI’s account. From his bank statement he provided, he saved AUD$23,000 in his St.George bank account from January 2005 to December 2005. He withdrew about AUD$14,000 cash from his account. I have no idea what these monies were used for.

   40. In 2006 the Husband saved AUD$25,500 in his St.George bank account. His income was about AUD$57,000, he lived by himself in [Suburb F].

   41. In 2007 the Husband saved AUD$4,000 in his St.George bank account; he withdrew AUD$6,700 cash from Woolworths [Suburb F]. His income was about AUD$57,000, until April 2007 the Husband lived by himself in [Suburb F].

7. The wife’s solicitor also referred me to the copies of statements from the husband’s Woolworths St George Bank Ezybanking account attached to the same affidavit of the wife.

8. Those statements show that for the period January 2005 to December 2005 the husband’s salary appears to be deposited into the account on a weekly basis in the amount of $913. There are regular debit transactions recorded as “Direct saver trans”. For the year, they appear to add up to the amount of $23,000 referred to by the wife in paragraph 39 of her affidavit quoted above. The statements for the 2006 year also have similar regular debit transactions and they appear to add up to the amount of $25,500 referred to in paragraph 40 of the wife’s affidavit quoted above. However, for the 2007 year, the statements have similar regular debit transactions up until July and they actually total $9,000 rather than the $4,000 referred to by the wife in paragraph 41 of her affidavit quoted above.

9. The amounts of $23,000, $25,500 and $4,000 referred to by the wife in those paragraphs add up to the amount of $52,500 that the wife’s solicitor submitted should be notionally “added back”. His submission, as I understood it, was that as the husband now asserted that there was a nil balance in his St George account he must be taken to have unreasonably used the sum of $52,500 making the circumstances exceptional with justice demanding the “add back” of that amount.

10. Remarkably, the husband was not cross-examined about the issue at all. Further, the same statements exhibited to the wife’s affidavit revealed transfer credits to the husband’s account from his Direct Saver account on 4 September 2007 of $10,000 and $47,260 (a total of $57,200). Another transfer into the account on 5 September 2007 of $40,000 is recorded. It records that it came from “Ms G” who is the husband’s sister. On 1 September there is a transfer out of the account of $80,000 recorded. That is, I accept, the deposit the parties agree was paid on the purchase of the Suburb E property.

11. Accordingly, I am quite satisfied that the husband’s savings into his Direct Saver account through 2005-2007 were used by him to contribute towards the deposit paid on the property and not unreasonably spent by him in a way that requires them to be added back.

12. As to the second amount of $14,044 that the wife’s solicitor urged the Court to notionally “add back”, his submission began with reliance on the husband’s own evidence that he had transferred $116,811 to his sister, Ms G, in various amounts from July 2002 through to February 2009 and his evidence that between July 2002 and October 2007 his sister had transferred back to him, to the wife and to third parties on his behalf, a total of $125,544. The wife’s solicitor then noted that the evidence supported a finding that $36,500 of that was paid to the wife in two separate amounts at two different times. He deducted that. Inexplicably, he then observed that the husband had paid $75,000 for the deposit on the house the parties bought and deducted that. That left $14,044 which the solicitor described as funds dispersed or depleted by the husband. He submitted that the amount should, therefore, be notionally “added back”.

13. Again, there was no cross-examination of the husband on the issue. I again reject the submission that the said amount be notionally “added back”.  In doing so, I firstly observe that the transfers of funds from the husband’s sister, on the husband’s evidence, are all recorded as having occurred before the final separation of the parties and in many small instalments over many years. Simply, I am left with absolutely no perception that the husband used any of the money unreasonably, or in some unexplained way that justifies notionally adding any of it back in this case.

What of the parties’ contributions?

1. The parties agreed that the husband had approximately $22,000 in cash savings at the time they married in 2002 and that the wife brought with her from Country D to Australia at that time US$4,000 which was something more than AUD$4,000 at that time.

2. Not long after their marriage, the husband began working with the Queensland Department of Primary Industry, at first casually, then on contract. The wife had fallen pregnant straight after their marriage and was engaged in full-time home making and, from after their child’s birth in December 2002, full-time parenting.

3. In July 2003, the husband commenced full-time employment with a private company earning about $50,000 per year. The family lived in rental accommodation on Suburb F but moved to H Town in March 2004 for the husband’s employment. It was in May of that year that the wife took the child and went to live back in Country D with her parents.

4. The husband transferred $17,000 to the wife in Country D in June of 2004 to assist with her support and their child’s support. The husband said the wife also took approximately US$2,600 in cash with her when she went.

5. The husband continued to work with the private company in Australia until late 2005. As already observed, he saved a reasonably significant sum of money whilst living by himself during this time.

6. The husband visited the wife and child in Country D in 2005, gave the wife some more money (around $1,200), and determined for himself that the marriage was over. The wife had an operation during that visit and he spent some time with their child during that time. The husband visited Country D again in 2006 for a few weeks and spent some time with their child during that visit. Otherwise, the wife provided all of the care for the child (assisted by her parents) during these years she and the child remained in Country D.

7. As already observed, at the wife’s suggestion, the husband went to Country D in April 2007 to accompany the wife and their child back to Australia. Before he went, he sent another AUD$4,000 to the wife for her use. Soon after they came back to Australia, at the wife’s request the husband transferred $28,500 into a bank account of the wife and very soon after that, the wife sent that back to Country D to her parents. She said in evidence that it was to repay them for all of their support during the period of just under 3 years that she stayed with them in Country D.

8. Accordingly, the husband transferred total funds of around at least $50,000 to the wife for that period that she was in Country D. Whilst the wife made significant parenting contributions during that period, the husband’s financial contributions to the support of the wife and their child during that period were not insignificant, averaging about $325 per week. Additionally, as already observed, he saved quite a lot of money during those years that later was directly contributed to the purchase of the house that the parties bought in September 2007.

9. Up until the point of their final separation, I assess their respective contributions, although in different spheres, as relatively equal but for the difference in their cash savings contributions at the commencement of the marriage. That would see the husband as marginally ahead in overall contributions assessment to that point.

10. Although there was evidence of unhappiness and some limited family violence during the parties’ relationship, I respectfully do not accept the wife’s solicitor’s submission that the wife’s contributions as a parent and homemaker were made that much more arduous as a result such that there should be some additional weighting given to them in accordance with the principle discussed by the Full Court in Kennon.[5]

    [5]          Kennon (1997) FLC 92-757; 22 Fam LR 1.

11. Since separation in 2008 until the time of the trial in April 2012, the wife has had the sole use of their former family home at Suburb E, but she has been paying the instalments on the loan in that same time. The husband has continued to work, principally for the Queensland DPI again at Suburb F. He has been able to get the benefit of a reduced rental on the occupation of a house at his research station work site. He has contributed child support as assessed and seen their son as much as was permitted by the wife and the Court. That was restricted in the circumstances, thus the principal burden of parenting still fell to the wife, who has, nevertheless, been able to obtain some paid employment in that time.  The husband continued in employment, accumulating superannuation at the same time. Overall, for that post-separation period, I would assess the wife’s contributions as exceeding the husband’s to such an extent, even having regard to the greater initial contributions of the husband, that I consider a notional percentage division against the parties’ net pool of property and superannuation as to 52 per cent to the wife and 48 per cent to the husband is appropriate for my overall assessment of their contributions in this matter. 

Should there be further adjustment having regard to the matters set out in s 79(4)(d)-(g) and s 75(2) of the Act?

1. Counsel for the husband conceded that there should be an adjustment of the contributions based assessment in favour of the wife and put it, in percentage terms, at 5-8 per cent. The wife’s solicitor submitted that it should be in the order of 20 per cent. I am persuaded by the submissions for the husband rather than those for the wife.

2. Pursuant to the parenting Orders that I made with the parties’ consent, the parents will equally share the physical care of their child.

3. The husband is 48 years of age, soon to turn 49. He continues to work for the Department of Primary Industry and at trial was earning a gross annual income of $66,000. He will, I am satisfied, still be paying child support to the wife in respect of the child notwithstanding having the child with him for an equal amount of time.

4. The wife is 41 years of age.  In her oral evidence at trial she said that she had found work at a natural therapy centre and was working six hours each day. She said that her income is commission based and that in the week leading up to the trial she had earned approximately $200. I am satisfied that the wife is an industrious person who is determined to work hard when she can to earn an income to assist in her support and the support of her child. She will be able to increase her working hours during the week that she is not caring for the child and I am quite sure that she will.

5. The net value of the property and superannuation interests being adjusted is only $147,956 though.  8 per cent of that is only $11,836, which of course is not a lot of money. However, in the circumstances of this case, particularly the shared parenting arrangements the parties have agreed to, the fact that the husband will more probably than not still be paying some child support to the wife and the fact that the wife is likely to be generating a reasonable income before too long, I am satisfied that an adjustment of that amount is appropriate in this case.

6. Accordingly, I consider that a division of the net property and the superannuation interests of the parties as to 60 per cent to the wife and 40 per cent to the husband is appropriate.

What property adjustment orders should then be made?

1. The wife has the motor vehicle valued at $14,000, household contents valued at $800 and Sunsuper valued at $2,200 already. That equals $17,000. 60 per cent of $147,956 is $88,773. She would still need to receive property and superannuation to the value of $71,773 to receive 60 per cent. She seeks to retain the parties’ joint Suburb E property which at the trial had net equity of $38,200. She maintains that she can afford to refinance the mortgage debt of $256,800 and produced a letter from a bank apparently indicating approval for such a loan. I consider it appropriate to give her the chance to do so with appropriate default provision if she is unable to do so within a reasonable period of time.

2. The Court was informed that the husband would also like the chance to retain the property if the wife is unable to refinance the mortgage debt. I see no reason not to give him that chance in those circumstances, but he would need to pay the wife the sum of $38,200 and be able to refinance the mortgage debt himself to be able to do that. If neither of them can meet the requirements of keeping the property then it will have to be sold with the net proceeds being divided between the parties in accordance with the 60/40 division having regard to the balance of the property and superannuation each retains.

3. If the wife is to keep the property or be paid $38,200 for it by the husband, she would still need to receive a further $33,573 to make up 60 per cent. That can be done through a superannuation splitting order as against the husband’s interest in his superannuation fund.

4. Orders providing for all of that will be, in my assessment, appropriate and just and equitable.

5. The parties informed the Court that the trustees of QSuper, the fund in which the husband has his superannuation interest, had not been served with notice of the Orders sought to be made against the fund. I will require them to be given notice of the Orders I intend to make in accordance with these reasons and will list the matter for further hearing, only to give the trustees of QSuper the right to be heard as to the Orders that should be made if they so choose. If they do not wish to be heard, the Orders will then be made.

6. These are the property adjustment Orders I intend to make, subject to the trustees of QSuper having the right to be heard:

   1.That within 35 days of the date of the making of these Orders, subject to the Wife causing the existing mortgage secured over the said property to be discharged and the husband being released from all liability for the debt secured thereby, the Husband shall transfer all of his right, title and interest in the property situate at and known as M Street, Suburb E being the land more fully described as Lot 14, SP 164561, County of N, Parish of E, Title Reference … (hereinafter referred to as “the property”) to the Wife.

   2.That in the event the Wife is unable to cause the existing mortgage secured over the property to be discharged within 35 days  of the date of making these Orders and the Husband released from all liability for the debt secured thereby, then within a further 35 days, subject to the Husband causing the existing mortgage secured over the said property to be discharged and the Wife being released from all liability for the debt secured thereby and the Husband paying the Wife the sum of $38,200, the Wife shall transfer all of her right, title and interest in the property situate at and known as M Street, Suburb E being the land more fully described as Lot …, SP …, County of N, Parish of E, Title Reference … (hereinafter referred to as “the property”) to the Husband.

   3.That in the event that paragraph 2 of these Orders becomes operative and the Husband is unable to cause the existing mortgage secured over the property to be discharged within that further period of 35 days  of the date of making these Orders and the Wife released from all liability for the debt secured thereby or is unable to pay the Wife the sum of $38,200 at the same time, then the property is to be sold by the parties within a further four calendar months with the net proceeds of sale after the mortgage is discharged and all costs of sale are paid to be divided between the husband and the wife so as to effect a division of the net proceeds of sale and the other property and superannuation interests of the parties as to 60 per cent to the Wife and as to 40 per cent to the Husband having regard to the balance of these Orders.

   4.That should paragraph 2 of these Orders become operative the Wife shall:

   (i)     give the husband vacant possession of the property on the day the transfer is effected, the mortgage discharged and she is paid the sum of $38,200;

   (ii)        ensure that all local authority rates and charges levied against the property are paid up to the day referred to in paragraph (4)(i) of these Orders; and

   (iii)     pay all monies due and payable in respect to the liability secured by mortgage currently registered on the title up to the day referred to in paragraph (4)(i) of these Orders.

   5.That should paragraph 3 of these Orders become operative the Wife shall:

   (i)     give vacant possession of the property on the day the sale is settled and the mortgage discharged;

   (ii)    ensure that all local authority rates and charges levied against the property are paid up to the date referred to in paragraph (5)(i) of these Orders; and

   (iii)     pay all monies due and payable in respect to the liability secured by the mortgage currently registered on the title up to the date referred to in paragraph (5)(i) of these Orders.

   6.That the Wife shall retain as her property absolutely, free of any claim by the Husband, the … motor vehicle in her possession valued at $14,000, the household contents in her possession valued at $800 and her Sunsuper superannuation interest valued at $2,200.

   7.That pursuant to Section 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable in respect of the Husband’s interest in QSuper, the Wife shall be entitled to be paid an amount calculated in accordance with the regulations, using a base amount, at the operative time in the sum of $33,573 and that there be a corresponding reduction to the entitlement the Husband would have in QSuper but for this Order.

   8.The operative time of the aforesaid Order will be four (4) business days after the service of these Orders on the Trustees of QSuper.

   9.That the Husband shall retain as his property absolutely, free of any claim by the Wife, the … motor vehicle in his possession valued at $4,300, the household contents in his possession valued at $3,000 and the balance of his superannuation interest in QSuper after the splitting Order in paragraph 7 of these Orders is given effect to.

   10.Each of the parties has liberty to apply to the Court for any further Orders necessary to give effect to these Orders.

What of the wife’s spousal maintenance application?

1. In her Amended Response filed 31 October 2011, the wife included an Order that she sought for the husband to pay her $300 per week by way of spousal maintenance.

2. Pursuant to the provisions of the Act that determine a party’s right to spousal maintenance, need for maintenance is required to be demonstrated on the evidence, as well as capacity to pay on the part of the party from whom that spousal maintenance is sought.

3. In the Financial Statement relied upon by the wife, filed by her on 28 November 2011, she included her weekly income at $654 and her weekly expenditure at $888. She included no detail as to any employment at that time and the income she included was $248 for Newstart and Family Tax Benefit, $206 in Child Support and $200 in maintenance from the husband.  Spousal maintenance in the sum of $400 per fortnight had been ordered on 31 October 2011 by way of an urgent Order. That Order was discharged on 8 December 2011, not long after the Financial Statement of the wife was filed.

4. At the trial, the wife’s solicitor noted that the evidence was that the wife was earning an income now that had replaced the maintenance she was receiving from the husband.

5. In the Financial Statement, the wife set out her weekly expenses as follows:

   Income tax  estimate $70

   Mortgage payments   $424

   Rates   $19

   House insurance     $13

   Car registration   $13

   Credit card payments   $20

   Sub-Total   $559

6. The wife also listed other personal expenses totalling $173 per week. They all appear reasonable and the wife was not cross-examined on them. Those total $732 per week.

7. It is not appropriate to consider the child support or Family Tax Benefit the wife receives as income used by her to meet her reasonable needs. Her evidence at trial was that she had earned $200 in the week before trial from her employment in which she was working between 9 and 3 each day. That only amounts to $6.66 per hour on average. That is less than can be earned from most jobs requiring unskilled labour, even in the current economic climate. Indeed, I had doubts that the wife was being truthful about the income she was earning at the time of the trial. She certainly put no documents into evidence corroborating her oral evidence on the issue and the husband’s counsel was certainly successful in casting doubt on the veracity of several parts of her oral evidence. In particular, I was troubled by the wife’s failure to produce a copy of her loan application to the bank that resulted in the approval of her refinancing loan application when she had been requested more than once, through her solicitor, to produce it. It might have thrown far more light on what she had informed the bank about her income that persuaded the bank to give approval to her loan application when, on the face of her evidence to the Court, her expenses exceeded the meagre income she asserted she was earning.

8. As I have said I consider the wife a hardworking, industrious woman who can work thirty hours in the week the child is in her care and even longer hours still in the week when he is in his father’s care. I am satisfied that she either earns or has the capacity to earn close to that which she needs for her own reasonable maintenance.

9. The husband earns a gross annual income of just over $66,000 or $1,274 per week. He deposed in his Financial Statement filed 4 April 2012 to paying tax of $281 and superannuation contributions of $67 per week. He also paid rent in his subsidised home of $32 per week. That was going to end shortly after the trial as he was being required to surrender the home to another employee. He was then going to have to find other rental accommodation at normal market rent. He had motor vehicle expenses of $17 per week, child support of $210 per week (which will probably reduce somewhat under the new parenting regime) and total other expenditure for himself and his son of $554 per week, all of which I consider reasonable. Indeed, his expenditure in respect of his son will be likely to increase along with the new parenting regime.

10. Allowing for his increased expenditure in respect of his son offsetting the likely reduction in child support, as well as allowing for a reasonable market rental for accommodation suitable for him and his son on Suburb F, I am satisfied that the husband will not have the capacity to pay periodic spousal maintenance to the wife on an ongoing basis. Accordingly, not completely satisfied that the wife has established need that she is not able to meet from her own income and earning capacity, but satisfied in any event that the husband does not have the capacity to contribute towards the wife’s need, I will dismiss the wife’s application for spousal maintenance.

What school should the child attend from here on?

1. The husband wants to enrol the child in C School on Suburb F whilst the wife wants to keep him enrolled at I School at Suburb J. The child has been attending at I School since he commenced primary school and would now be in Grade 6 with less than one and a half years to go in primary school.

2. Given the shared parenting Orders put in place by agreement, it was agreed that the travel time for the parent who would have to take the child to the school of the other parent’s preference would be about 45 minutes. I expect that is what the husband has been doing in the sixteen months since the trial, unless he has moved closer to the former family home since having to surrender his employer provided rental accommodation. As part of his case in support of the proposed move of the child, the husband offered to pay the wife $30 each week that she has the child living with her, to cover the cost of her petrol in making that car journey if the child is moved to C School.

3. The evidence adduced at the trial was that the child was academically settled at I School and was achieving well above the average in his educational performance.  The family report writer, Ms L, who gave oral evidence and was cross-examined about this particular issue, said that the child is an “intelligent boy”, with no known deficits or any behaviour difficulties. She opined that a change of school would not be adverse to him.  She said that she thought the child would manage any change of school, and that he would be capable of adapting to such a change.  However, Ms L did concede, on cross-examination by the mother’s solicitor, that there was no academic need to change the child’s school.

4. Counsel for the ICL, who ultimately supported the change of the child’s school to C School, asked Ms L whether a change of school would assist the child’s relationship with his father.  Ms L expressed the opinion that it would provide an opportunity for the child’s relationship with his father to be improved as it would better facilitate the husband’s involvement in the child’s education and more time in the child’s life, something that had been missing for a couple of years at the time of the trial.

5. Ms L gave evidence that she had looked at the Education Queensland internet website which she said showed C School as being a “much better school” with a “gifted and extension program” which she said could result in a positive change for the child. Ms L stated that, according to the Annual Report of 2010, I School had a high rate of both short and long-term suspensions, and that this would be consistent with a high incidence of behavioural difficulties among the student population.  Ms L also said the website recorded a higher rate of teacher retention at C School, a factor she obviously regarded as a positive for that school.

6. Ms L also expressed the opinion that the child could manage the travel to and from C School in the week that he lives with his mother. Of course, the corollary of this is that he would be able to manage the same amount of travel to and from I School in the week that he lives with his father. It was also accepted by Ms L that in the week when the child lives with his father he will probably need to spend time in a before and after school hours care service whilst the husband works. Ms L expressed the opinion that he would be able to cope with that.

7. Ms L was asked her opinion about the likely impact on the child, in the event of a change in schools, of the separation from his school friends and peers that he had been with since he commenced school. Answering that, Ms L observed that the wife would not be precluded from arranging other times outside of school hours for the child to spend time with his friends and peers from I School school if he was moved to C School.

8. However, notwithstanding the apparently clear support of Ms L for a change of school and the support of the ICL for the move, I am, in all the circumstances, not convinced that the child’s best interests mandate a change in schools. I consider the stability that has been provided in this child’s life simply by his attendance at the one primary school from when he started school until, now, a little over halfway through his 6^th year, has been, in itself, very good for this child. His academic performance alone demonstrates that and there is, on the evidence, no academic imperative to move him, even if the other school is said to be “a better” school.

9. In a little over one year from now, the significant change in a child’s life of going from primary school to high school will present for this child.  He will have to adjust to that and the change in friendship and peer groups that will likely bring. I am not persuaded that imposing such a change on him now and then another after Grade 7 is actually in his best interests. In fact, I would be extremely surprised if the child himself would not express the wish to stay at the school and finish his primary school education there if he was given the opportunity to offer his views. Ms L certainly reported that the child had told her that he liked school and was doing well at school. In saying this, I acknowledge that he was not apparently asked specifically to express his views about a change of school and I have no direct evidence of his views before me.

10. I am satisfied that the husband in this case wants to be significantly involved in the child’s life including his schooling and his extra-curricular activities. I am satisfied the wife did not, for a variety of reasons, promote the husband’s involvement in the child’s life in the years leading up to the trial. However, the parenting Orders I made last year, agreed to by both parents, provided for the husband to have uninhibited access to all information and documents from the child’s school and to be able to attend all school and extra-curricular events normally attended by parents. I am satisfied that the husband, thereby, has every ability and opportunity to get involved in the child’s remaining primary school education if he wishes to, and is able to, take advantage of that. I expect, subject to the limitations imposed by his employment, he will take advantage of that, even with a 45 minute drive to the I School. I am convinced that the benefits that Ms L saw for the child in that greater involvement by the husband in the child’s school life will still be available to the child in this new parenting regime, even if he stays at the I School for the duration of his primary schooling. I will not be making an Order that he change schools now.

1. Of course, it will be for the parents to reach agreement as to the high school he attends. It is clear that the decision as to which high school he is to attend is a decision about a major long-term issue in the child’s life and, therefore, one which the parents, equally sharing parenting responsibility, must consult each other about, make a genuine effort to reach a joint decision about and actually make jointly.[6] In this case, the parents will also be bound by the terms of paragraph 3.2 of the parenting Orders they consented to last year and must go to mediation if they are unable to agree on the high school the child is to attend before ultimately coming back to Court for a decision if they still are unable to agree.

   [6]          Family Law Act 1975 (Cth) s 65DAC.

2. Accordingly, at this point in time, I make the Orders set out at the commencement of these reasons for judgment.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 27 August 2013.

Associate:

Date:  27 August 2013