Adjustment for primary care
Warford & Warford  FamCA 55 (9 February 2016)
Adjustment for primary care
Last Updated: 17 February 2016
FAMILY COURT OF AUSTRALIA
The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/55.html
SUB-SECTION 75(2) MATTERS
- The husband is 36 years of age and he is in good health. His income is approximately $65 000 per annum from operating the business Warford. In addition he receives a car allowance and is provided with a mobile telephone. On all current indications, in my view, he has the capacity to continue to work in this position or similar for the foreseeable future.
- The wife is 31 years of age and also in good health. She commenced working in a new position early this year and her income is approximately $85 000 or $86 000 per annum not including superannuation. On present indications, in my view, the wife has the capacity to be able to continue in this or similar employment for the foreseeable future.
- I have referred to the property and superannuation of the parties and I note their commitments.
- The husband has a partner, Ms P. My understanding is that Ms P does not cohabit with the husband.
- The husband pays $550 per month child support. The husband has been assessed to pay at a higher amount and he has sought a review.
- The wife has the primary responsibility for the care of the children. The children will be spending five nights per fortnight, half school holidays and certain other times with the husband pursuant to orders made on 15 December 2015 in relation to the parenting aspect of these proceedings. Otherwise they will be living with her.
- The primary care of the children will be an onerous responsibility for the wife and it is a significant matter to take into account pursuant to s 75(2) of the Act.
- So far as the parties’ respective income earning capacities are concerned, in my view their capacities are similar. True it is that the husband is earning considerably less than he did, even when the parties commenced cohabiting. But he said his work at that time required commitment of very long hours. He decided to establish his own strata management business as a way of endeavouring to reduce his working hours so that he could spend more time with the children. He is confident that he will be able to develop his business and thereby earn an income considerably higher than his present income.
- In my view, when one considers the value of the husband’s motor vehicle allowance and provision of mobile telephone provided by the business, the husband’s remuneration would be similar to that of the wife. The wife conceded that in her view, the parties have a similar capacity for earning income.
- I have referred above to the fact that the business is owned by the husband’s brother and his parents. Yet it is the husband who has been the person primarily responsible for the business and its operation. The husband gave every indication that he regards the business as his. His clear intention is to develop the business in an endeavour to increase his income. Clearly the business has practical value to him. I also note that the parties had a benefit from payment by the business of some family expenditure.
- As indicated above, the wife received $30 000 by way of partial property settlement. But she also borrowed funds to assist her in establishing a new residence for herself and the children.
- In my view, the most significant s 75(2) matter is the fact that the wife has the primary care of the children and on all current indications this responsibility will be likely to continue until the children grow up. This will need to be reflected in an appropriate adjustment of property in favour of the wife in order to achieve a just and equitable order. But it is also relevant to take into account the significant difference between the parties on contributions.
- In the case of Clauson and Clauson (1995) FLC 92-595 the Full Court of this Court indicated that trial judges need to consider the value of the s 75(2) adjustment in real terms. The Full Court said at FLC page 81,911 as follows:
There is, we think, at times a tendency to assess s 75(2) factors in percentage terms without considering its real impact, and we think there is legitimacy in the views expressed in more recent times that the Court has tended to operate in this area within artificially delineated boundaries. That is, it appears almost to be inevitable that the s 75(2) factors will be assessed in a range between 10% and 20%. A number of cases will justify an assessment outside those parameters and in any event it is the real impact in money terms which is ultimately the critical issue. [emphasis added]
- In all the circumstances, including the modest nature of the assets available for division between the parties, in my view, there should be an adjustment of 20 percent of the available property and superannuation in favour of the wife taking account of s 75(2) matters. This would be a differential between the parties of $150 026.