Parenting contributions post-separation 25%

Parenting contributions post-separation 25%

Oliver & Oliver

Contributions after separation

100. It is submitted on behalf of the Wife that whilst the parties’ contributions prior to separation should be considered as equal, her contributions in the 20 years since separation have been vastly superior to those of the Husband.
101. It is the Wife’s submission that when the Husband left the former matrimonial home, the responsibility for the care of the parties’ then
     9 year old daughter fell squarely on her shoulders. [X] spent relatively little time with the Husband whilst he was living in Melbourne and even less so when he was travelling around Australia and living in New South Wales.
102. It is the Wife’s evidence that the Husband paid no child support and that the financial responsibility for meeting all of [X]’s needs fell entirely upon her.
103. The Wife concedes that the Husband paid a year and a half of [X]’s private school fees but that the remaining four and a half years were paid for by her save for the assistance of a $10,000 gift from the Husband’s mother.
104. It is the Wife’s evidence that in addition to paying for four and a half years of school fees, she was also solely responsible for all of [X]’s school uniforms, books, excursion costs as well as her extracurricular activities. She was also responsible for paying for [X]’s clothing, her toiletries, birthday parties, holidays, pocket money, outings as well as her food accommodation costs.
105. It is the Wife’s evidence that when she turned 18, [X] undertook full time tertiary education. The Wife continued to fully support [X] until she finished her university degree and was able to obtain employment and achieve her own financial independence.
106. It is the Wife’s evidence that in order to pay she and [X]’s expenses, she not only worked full time at (employer omitted), she also worked most weekends in her catering business and for some years cooking 3 or 4 meals a night for a family.
107. It is the Wife’s evidence that she was almost entirely responsible for maintaining the former matrimonial home. She concedes that the Husband did some small maintenance works around the house when he was visiting [X] but rejects his evidence that he was regularly attending the home to complete maintenance works on it.
108. Whilst conceding that he did not pay child support for [X], it is the Husband’s submission that in allowing the Wife and [X] to continue to reside in what he calls the mortgage free former matrimonial home and not pursuing property settlement whilst [X] was completing her studies, he was providing substantial assistance to [X] and to the Wife.
109. The Husband further submits that for many years after separation he ensured that he provided the Wife with firewood every year, that he paid the insurance on the former matrimonial home and that he did undertake regular maintenance chores around the home so that it remained in good condition.
110. It is therefore the Husband’s submission that his contributions post separation are equal to those of the Wife.

111. Mr Sweeney of Counsel for the Wife referred the Court to the Full Court decision of Trask & Westlake [2015] FamCAFC 160 where their Honours Thackray, Ryan and Murphy JJ considered the question of the post separation contributions of homemaker and parent. In paragraph [13] their Honours held:
     \

     “In particular, the notion “…that the contribution of the homemaker and parent ceases upon the separation of the parties…” involves “…a serious misreading of s 79(4)(c)” (Ferraro & Ferraro [1992] FamCA 64; (1993) FLC 92-335, 79,568).

112. In paragraph [14] their Honours further held:

“His Honour plainly, and with respect correctly, recognised that the wife’s contributions did not cease upon separation but, rather, continued in circumstances made more difficult by the fact of separation.”

113. It is the Wife’s evidence that when the parties separated the parties agreed that she would retain the former matrimonial home and that the Husband would retain the benefit of the investment unit at Property C1 as well [Business A] and any further developments undertaken by it.
114. It is the Wife’s evidence that at the request of the Husband when the parties separated she transferred her interest in [Business A] to the Husband. This accorded with her understanding that the Husband was to retain the benefit of that business.
115. As can be seen from paragraphs [31]-[32] in this judgment, what amount the Husband actually retained after the sale of Property C1 is extremely difficult to ascertain. He deposes in paragraph [64]-[65] of his affidavit sworn 19 May 2017 that Property C1 was sold for $278,000 and that the profit from that sale was used to extensively renovate and extend the former matrimonial home. He estimates that approximately $100,000 was spent on the renovation and extension of the former matrimonial home from the proceeds of sale of Property C1.
116. There is a problem however with the Husband’s evidence in this regard. It is apparent from the valuation of the former matrimonial home that was completed by (omitted Real estate appraiser) in July 1997 that the renovations to the former matrimonial home were completed at the time of the valuation. Therefore there were no renovations to be completed on the former matrimonial home at the time of the sale of Property C1.
117. Counsel for the Wife submitted that it is open for this Court to conclude that the Husband made at least $100,000 profit from the sale of Property C1 after the discharge of the mortgage that was held over both the former matrimonial home and that property.
118. It is tempting to adopt this figure as being indicative of the profit achieved by the Husband on the sale of Property C1. Absent independent documentation this cannot be seen to determine this issue. What is apparent is that the Husband retained all the net proceeds of sale of Property C1 after the parties’ separation and utilised them to meet business costs, his own living expenses and to contribute to the further developments undertaken by him within his business [Business A].
119. I reject the submission made on behalf of the Husband that letting the Wife and [X] remain in the former matrimonial home for nearly 20 years was somehow or other a contribution by him to the maintenance of [X] throughout the entirety of her education.
120. After separation the Husband had the benefit of the proceeds of the sale of Property C1 and of [Business A]. The Wife and [X] remained in the former matrimonial home. I do not accept the Husband “allowed” the Wife to remain in the former matrimonial home but rather both parties agreed at separation what joint property each would retain at that time. Both parties chose not to seek court orders that reflected this agreement or to seek an alternative division of their property.
121. The Wife had the sole financial responsibility for almost all of [X]’s care after the parties separated. The Wife also provided almost all of [X]’s physical and emotional care given [X] spent very little time in the Husband’s care. The Wife also maintained the former matrimonial home with some small assistance from the Husband
122. Having considered all these factors, I am satisfied that the Wife made a significantly greater contribution than the Husband post separation and that there should be an adjustment in her favour of 25%.