Adult child maintenance denied

Adult child maintenance denied

Saxby & Saxby [2016] FCCA 1116 (3 June 2016)

Adult child maintenance: for full case: http://www.austlii.edu.au/au/cases/cth/FCCA/2016/1116.html

History

7. The wife was born on (omitted) 1956 and is aged 58. The husband was born on (omitted) 1958 and is aged 57. The parties married on (omitted) 1993 and separated in January 2011 and remained living together under the one roof until 4 June 2014 when the husband left the former matrimonial home in Property D. The husband may dispute that the parties were separated under the one roof but that does not affect the property proceedings. There are two children of the marriage X born (omitted) 1996 aged 19 and Y born (omitted) 1997 aged 18.
8. The wife has three children from her previous marriage, A who is aged 30, B aged 29 and C aged 26. When the parties met the wife was residing in a Ministry of Housing property at (omitted).
9. When the parties married the husband was living in (country omitted). He migrated to Australia in 1994 and remained unemployed until 2000. The wife worked as a (occupation omitted) and received a carer’s pension for B who has Downs Syndrome. The wife says her combined income was $600-$700 per week. In 1996 the parties purchased the property from the Ministry of Housing. Under the Ministry scheme rent paid by the applicant prior to the marriage went towards the deposit.
10. In 2000 the parties started the (omitted business), a (omitted business). They obtained a contract from (omitted). The business was set up as a family trust with a corporate trustee. Both parties worked in the business. The husband worked as a (occupation omitted). The wife assisted managing the business she says, training staff and liaising with (omitted). They engaged an accountant. The wife says the business became very lucrative and eventually employed four or five (employees omitted) in addition to the husband and wife. The wife says the accountant is now not contactable and she cannot say precisely how much the business made in each year.
11. In the year 2005 the tender for the (omitted) contract required the parties to re-bid. The wife says that while the business was lucrative, the husband insisted that they close it. She says he claimed he was unable to continue due to shoulder pain he was experiencing. The wife says because the business employed four or five other (employees omitted), they could have run it without the husband and she did not want to close it but the husband insisted. The wife says that the decision to close the business was financially disastrous for both of them.
12. In 2003 the parties purchased Property D for $320,000 which became the matrimonial home and where the wife now lives with one of the parties’ children and B.
13. In 2005 the parties purchased a (omitted) business “(omitted business)”. The wife says the husband had been an (occupation omitted) in (country omitted) and he used his (occupation omitted) background to make an analysis of the viability of the business before they started. She says the figures provided by the seller were inaccurate and the husband failed to realise this.
14. The parties operated the business until 2007 when they closed it. The wife says the husband acted as the accountant and sometimes performed tasks at the back of the store. She says her responsibilities were the daily running of the business including placing orders, maintaining employment standards, supervising and training workers, marketing the business, dealing with suppliers and negotiating with centre management.
15. The wife says that in mid to late 2006 she had discussions with a prospective buyer but no definite offer was made. She says she believed there was a good likelihood they might sell the business but she says the husband refused to consider and insisted they continue running it. The business ran at a loss and the wife says payments on the lease were made with extensions of the business loan and the remainder of the savings from the (omitted) business. The wife says that eventually they had to sell their investment property at Property T for $220,000 in 2007 and the block of land in Property C for $140,000 in 2007 in order to cover the debt.
16. In mid-2007 the parties took up an offer to manage a (business omitted) in Tasmania. They were required to purchase $20,000 of stock. They signed a contract with (business omitted) and were both engaged as managers. The husband moved to Tasmania to manage the (business omitted) while the wife remained in Melbourne to make the final arrangements necessary to close the (omitted business). She had to remove the equipment and furnishings from the premises. She then moved to Tasmania to join the respondent. After two months the parties’ management of the (business omitted) came to an end and they lost the $20,000 they had invested in stock as well as incurring expenses in relocating to Tasmania.
17. After the parties returned to Victoria, the wife resumed employment as a (occupation omitted). The wife says that the husband was unemployed until 2011 when he recommenced work as a (occupation omitted). The husband says he was employed continuously but the wife denies that is so. She produced a bank statement which shows the husband receiving Newstart payments in November 2008 and January 2009.
18. In 2000 the parties purchased a timeshare apartment in Queensland. The wife says this was on the husband’s insistence. They paid $18,000 and $700 in maintenance. In 2010 they received a request from the apartment management to pay a lump sum of $4,000 for maintenance. The wife says they paid approximately $2,000 and then became unable to complete the lump sum payment. They lost the money they had invested in the timeshare apartment.

Husband’s allegations

19. The husband makes three allegations about money he says was misappropriated by the wife:
    1. Money from the mortgage;
    2. $140,000 from the sale of the block of land in Property C;
    100. $56,000 which the husband alleges was the additional sale price of Property T when it was sold to the parties’ son.
20. The parties (omitted) bank statement has an entry to 13 November 2009 “Loan top up, $156,603”. It seems this is an amount which the husband alleges the wife withdrew from the mortgage account. The wife’s explanation is that when they changed banks from the (omitted) Bank to (omitted) Bank, the business loan was included with the home loan so that the home loan was for both the mortgage over the home and the business loan. She did not receive the money. It was a transfer of a loan.
21. The husband alleges that he does not know what happened to the $140,000 from the sale of the block of land at Property C. The wife says that went towards paying the cost of the (omitted business). The business was losing money and the rent was $12,000 a month.
22. The husband alleges that Property T was sold for $280,000, not $224,000 as the wife says therefore there is an extra $56,000. The wife says it was in fact sold for $220,000. Neither party could produce the contract.
23. The wife’s explanation is reasonable. There is no evidence at all that the wife has additional money. I accept what the wife says.
24. There are some other matters the husband put to the wife. In 1996 and 1997 they went into business with the wife’s sister and her brother-in-law. Minutes of the meeting of the sister and brother-in-law’s business, (business omitted), of 24 October 1996 shows the husband and wife being appointed as directors. Whatever the business arrangement was it did not last long.
25. The husband put to the wife that there was an overdraft of $20,000 associated with that transaction. She said that was something they had from before that business and the loan in her name is what is left of it. I accept what the wife says.
26. The husband produced a (omitted) Bank account in the wife’s name. He appeared to be asserting that it showed the wife had other accounts and was moving money around. The wife says that that was an account she opened in June 2014 to put her daughter’s money in. I accept what she says. The existence of the account is not evidence that there is undisclosed money in the wife’s name.
27. The husband referred to withdrawals from the (omitted) account, which is the mortgage account. The wife said that at the time the mortgage was interest only and whenever she had money available she paid it in to reduce the interest and then withdrew it when it was needed.
28. The husband referred to withdrawals in 2011. The wife said two cars were purchased. In 2011 and 2013 cars were purchased so the husband could start his (omitted) business. They also bought the car the husband now has. I accept what the wife says.
29. The husband had a credit card in his name which eventually had a debt of $26,000. The wife’s response was that the husband did not work from 2008 until 2012. They had living expenses in Property D and a house they rented in Tasmania. She said he used the card for his expenses and sometimes she did for hers and the families. She said eventually the bank incorporated the debt to the mortgage. Again I accept the wife’s evidence.
30. The wife spent $50,000 on improvements and renovations to the house. The husband asked where the money came from. She said that her son was working in (employer omitted) and sent her money regularly. She also had her daughter’s pension. She said the daughter’s living expenses are not costly so she used the money as well for the renovation. I accept what the wife says.
31. The husband alleges that the wife took money from his bank account because she had access through the Internet. The wife acknowledges that she did at times when bills needed to be paid. She says he had very little. He was on a Newstart supplement after he started the (omitted) business. She said his expenses for his (omitted) business were high between the cars, accidents, fines and petrol expenses.
32. I am satisfied the wife has no money or assets which she has not disclosed. She gave satisfactory answers for each of the allegations from the husband. There is no justification for saying that the wife has no assets.

Section 79

33. The first step is to consider whether it is just and equitable to make orders under s.79 of the Family Law Act 1975 (Cth). The parties marriage has come to an end and the circumstances in which they shared their finances no longer exist. It is just and equitable to make an order.
34. The next step is to consider the parties contributions as they are described in s.79(4). These are the financial contribution made directly or indirectly by on behalf of the party to the acquisition, conservation or improvement of any of the property of the parties to the marriage, a similar contribution other than a financial contribution and contribution made by a party to the marriage to the welfare of the family and the children and in the capacity of homemaker or parent.
35. The wife made the initial contribution of the deposit on the Property T property. There is no evidence of what this amount was or the value of the property at the time. The property was purchased after the marriage and after the husband had migrated to Australia.
36. The wife was employed throughout the marriage either working for a salary or wages or working in the parties’ businesses. The husband was unemployed from when he arrived in Australia in 1994 until the year 2000. He was then employed in the (omitted) business from 2000 until 2005 and then in the (omitted business) business from 2005 to 2007. He had a brief period of employment in Tasmania. The wife says the husband then was unemployed until 2012. The husband says he was continuously employed throughout the marriage but does not give any details of this period. The wife has produced evidence of two Newstart payments and says that the husband was receiving Newstart during this period. Overall the wife’s evidence is consistent and I accept what she says. The wife says that while the husband then started another (omitted) business in 2012 the income was very low and he received a Newstart supplement for at least some of the time.
37. In addition to the wife’s income, she received help from her son from a previous marriage. At the time of the hearing he was providing her with $500 each month. While he was working in (employer omitted), he contributed from his wages to the $50,000 renovations and improvements to the former matrimonial home in the latter part of the marriage. There is no evidence of the amount the son contributed.
38. In addition to the wife’s income, her daughter B receives a pension. The wife says that this largely went towards paying the mortgage on the Property D property. Given that she is the wife’s daughter and not the husband’s, I should treat her money as a contribution by the wife but I have to take into account that she lived as a member of the family to which the husband was making contribution.
39. The parties dispute the extent to which each contributed to the homemaker and child carer role. The wife says she was largely responsible for this. She says she took the children to and from school and to all the various engagements and appointments. She said the husband’s limited English affected his ability to do this and she alleges that he was abusive towards her and the children. She says that while the respondent was at home the children were largely withdrawn and remained in their rooms.
40. An indication of the circumstances in the home is that when the wife’s elder son A turned 18 he left the home and the son C, then 16 left with him although later returned. This is some indication of conflict with the husband.
41. I prefer the wife’s evidence of contributions to the homemaker and childcare role and I am satisfied that the wife played the greater role.
42. The husband’s periods of substantial employment were when the parties had businesses from 2000 to 2007. The relationship went from 1994 when the husband arrived in Australia until 2014 when he left the former matrimonial home. The husband’s financial contribution outside the seven years from 2000 to 2007 was a low social services payment or a low income. In terms of income the wife contributed substantially more. That has to be taken with her initial contribution and the contributions made by her two children who are not children of this marriage. The financial contributions made by the wife or on her behalf substantially exceed the husband’s.
43. The wife says in her affidavit of 30 October 2015 that she believes that the husband’s wilfully bad business and financial decision should be taken into account as negative contributions. One of these is the purchase of the timeshare apartment. The wife alleges that was at the husband’s insistence but even if this was the case she agreed. Many decisions in a matrimonial relationship are made when one party wishes to promote a particular matter and the other is reluctant but nevertheless agrees. This does not make it a negative contribution.
44. Similar considerations apply to the cessation of the (omitted) business and the purchase of the (omitted business). The wife says that she did not want to stop the (omitted) business and it could have continued without the husband as one of the (employees omitted). Nonetheless it was discontinued. The wife says that the husband did not assess the finances of the (omitted business) properly. This may be the case but it does not make it a reason for reducing the assessment of the husband’s contribution.
45. The wife’s financial contribution has to be taken into account along with her greater homemaker and child carer role. When all of these are considered her contributions were 80% and the husband’s 20%.
46. The factors relevant under s.75(2) are the age and state of health of the parties, their income earning ability and in the wife’s case, a responsibility to support the two children of the marriage X and Y. Both are over the age of 18 but they are still people the wife has a responsibility to support. X is at University and at the time of the hearing Y had finished secondary studies and had achieved an ATAR rating the wife expected would enable him to enrol in the course of his choice at (omitted) University. The wife has the responsibility of living expenses for these two children.
47. There is no evidence of any income earned by the two children or their expenses but it is reasonable to expect that the wife would be providing them with much of their living expenses, that is a home, food and some other support.
48. The adult daughter B receives a Centrelink disability pension of $445 a week and from the wife’s evidence this is sufficient to support her.
49. The wife’s income is approximately $150 from employment, $432 per week as a carers allowance for B and $100 a week family tax benefit. The husband says his only income is a Newstart allowance of $534.20 a fortnight. The wife says he works part-time as a (occupation omitted) and he has the capacity to do this work. He says he is in reasonable health. He is aged 56.
50. The wife has some employment but needs to care for her daughter B. She has a small amount of superannuation. I am satisfied that the husband has the physical ability to work full time. He has worked as a (occupation omitted) in the past and says he is in reasonable health. The wife’s capacity to work is limited by her need to care for her daughter B. An adjustment of 5% in the wife’s favour is appropriate in the circumstances.
51. The wife applies for an order for adult child maintenance for X and Y. The husband has no capacity to pay but the wife submits that it should be a lump sum taken from the parties’ capital. That is not an appropriate way for the payment of adult child maintenance. I have taken that into account and is a relevant consideration under s.75(2).
52. Each party has a motor vehicle and a small amount of money in the bank. These can be ignored. This means that the wife must pay an amount of 15% of $238,915 the net value of the family home after the mortgage and the overdraft. This is $35,837.25.