A and A
[2002] FMCAfam 244
•20 August 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| A & A | [2002] FMCAfam 244 |
| FAMILY LAW – Property – initial contribution – investment property and business sold without wife’s knowledge – notional add back of part of proceeds of sale – spouse maintenance. Children – contact – best interests of child – ss.68F(2), 79(4), 75(2), 72, 74 Family Law Act 1975. |
| Applicant: | P A A |
| Respondent: | D J A |
| File No: | SYM47 of 2002 |
| Delivered on: | 20 August 2002 |
| Delivered at: | Parramatta |
| Hearing Date: | 2 August 2002 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Givney |
| Solicitors for the Applicant: | Matthews Dooley & Gibson Solicitors DX 8104 BLACKTOWN |
| Counsel for the Respondent: | Mr W. Moss |
| Solicitors for the Respondent: | Verekers Solicitors DX 5180 WOLLONGONG |
ORDERS
That all previous orders are hereby discharged.
That within six weeks of the date of these orders the husband pay to the wife the sum of $78,397.06.
That upon payment by the husband to the wife, the wife shall transfer to the husband the whole of her right, title and interest in the property situate at and known as 100 K Street, Albion Park. Simultaneously, the husband shall provide the wife with a release from the IMB mortgage removing her as a joint mortgagor.
In the event that the husband fails to comply with order 2 or 3 the wife has the right to take ownership of the former matrimonial home subject to the IMB mortgage. The wife must exercise her right to take the property within fourteen (14) days of the date of default by the husband of his obligations pursuant to order 2 and/or 3. She must exercise her right pursuant to these orders by giving the husband written notice that she does so. Within forty-two days of exercising her right to ownership, the wife shall provide the husband with a release from the IMB mortgage removing him as a joint mortgagor.
In the event that the wife does not exercise her right to take the property the parties shall forthwith do all acts and things and sign all documents necessary to sell the property situate at and known as 100 K Street, Albion Park in the State of New South Wales for sale by private treaty with a real estate agent at a price to be agreed upon between the parties and failing agreement to be determined by the president of the Real Estate Institute of New South Wales or his nominee.
That the proceeds of sale pursuant to Order (5) above be disbursed as follows:
(a)Firstly, in payment of the costs of sale including the real estate agent’s fees and legal fees;
(b)To discharge the mortgage to the IMB Bank;
(c)In payment of any outstanding rates and charges;
(d)$15,000 to B C;
(e)In payment of 73 per cent of the net balance to the wife;
(f)The remaining 27 per cent to the husband from which he is to pay to the wife $20,170.83 and arrears (if any) of rates, taxes and mortgage payments that have arisen during his occupation of the home.
The husband shall continue the payment of mortgage instalments on the IMB loan and pay all rates and taxes when they fall due until whichever of the following events first occur:
(a)He complies with orders 2 and 3;
(b)The wife exercises her right to the property pursuant to order 4; or
(c)The completion of the sale in accordance with order 5 above.
If the monies received by the husband from the sale of the home are insufficient to pay the wife $20,170.83 then the husband shall pay to her the balance remaining at the same time as completion of the sale of the property.
Upon compliance by the husband of orders 2 and 3 the wife shall do all such things and sign all such documents so as to transfer to the husband all of her right title and interest in Ford Fairmont motor vehicle registered A.
That unless otherwise specified in these orders each party shall be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party at the date of the making of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s record thereof, insurance policies are deemed to be in the possession of the party named as the life insured, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements.
That unless otherwise specified in these orders each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders. Upon compliance by the husband with order 2 the wife shall forever indemnify the husband in relation to any claim by her parents or either of them relating to the 1995 loan.
That if either party refuses or neglects to sign, within fourteen (14) days of a written request to do so any document necessary to effect the terms of these orders a Registrar or such other office or person as may be appointed by the Federal Magistrates Court of Australia is hereby appointed pursuant to the provisions of s106A of the Family Law Act to execute such documents on behalf of such party.
That the husband pay to the wife $150.00 per week by way of spousal maintenance. The first payment to be made within seven (7) days of the date of these orders. Upon compliance by the husband with orders 2 and 3 or settlement of the sale of the home, whichever first occurs, this order is discharged.
That pending compliance by the husband of orders 2 and 3 or the sale of the home, the husband is restrained from selling, charging or encumbering any of the matrimonial assets. In the event that he fails to make the payments as and when they fall due in relation to assets to which he is entitled pursuant to these orders, including the former matrimonial home, any penalties, including higher discharge figures, arising as a consequence, shall be paid by him.
That the children L D A born 10 May 1998 and M L A born 31 March 2001 reside with the wife who shall be responsible for the decisions concerning their day to day care, welfare and development.
That the husband have reasonable contact with the children as follows:
(a)In relation to the child L:
(i)Each alternate weekend from Saturday evening through to Monday morning;
(ii)For one half of each Christmas school holiday period upon the children commencing school.
(iii)Such further and other contact as agreed between the parties from time to time.
(b)In relation to the child M:
(i)For one day of each weekend that the husband is exercising contact to L.
(ii)Upon M celebrating her 2nd birthday each alternate weekend from Saturday evening through to Monday morning coincidental with the contact with L.
(iii)For one half of each Christmas school holiday period upon the children commencing school.
(iv)Such further and other contact as agreed between the parties from time to time.
THAT pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
That all exhibits tendered in these proceedings be returned at the expiration of one calender month unless an Appeal is lodged
That all outstanding applications are otherwise dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT WOLLONGONG |
SYM47 of 2002
| P A A |
Applicant
And
| D J A |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings are for the adjustment of property, spousal maintenance and for parenting orders. The parenting issues concern contact.
The application
D J A (“the husband”) filed an application for final orders in the Family Court on 2 July 2001. For reasons that were never clarified the wife was subsequently treated as the applicant in the subsequent conduct of this litigation.
P A A (“the wife”) filed an amended application on 5 October 2001 in the Family Court at Newcastle. During his opening her counsel outlined the orders sought by her at the hearing. In essence the orders she sought were:
1.That the husband transfer to her the whole of his interest in the former matrimonial home at 100 K Street, Albion Park.
2.That the husband pay spousal maintenance in the sum of $250 per week for twelve months and thereafter $150 per week for the next four years.
3.That other than orders agreed between the parties concerning the children that there by no additional contact orders.
The husband filed an amended response during the course of the proceedings. The orders sought by him are as follows:
1.That the wife retain all furniture and household effects presently in her possession and control.
2.That the wife retain the shares presently in her possession.
3.That within 42 days of the date hereof the husband pay to the wife an amount of $35,000.00.
4.That the wife transfer to the husband all of her right, title and interest in the property known as 100 K Street, Albion Park rail comprised in certificate of title Folio Identifier 28/G/11034.
5.That the wife shall forthwith do all such things and sign all such documents so as to transfer to the husband all of her right, title and interest in Ford Fairmont motor vehicle registered A.
6.That each party otherwise be declared to be the exclusive owner of all other property and entitlements in the possession of or in the name of that party as at the date hereof including savings, investments, shares, superannuation entitlements, motor vehicles, furniture, household possessions and the like.
7.That each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled to pursuant to these orders.
8.That the children L D A born 10/5/98 and M L A born 31/3/01 reside with the wife who shall be responsible for decisions with respect to their day to day care, welfare and development.
9.That the husband have reasonable contact with the said children as follows:
(i)In relation to the children L and M each alternate weekend from Saturday evening through to Monday morning.
(ii)For one half of each Christmas school holiday period upon the children commencing school.
(iii)Such further and other contact as agreed between the parties from time to time
Short history
The wife was born on 11 October 1968. She is 33 years old.
The husband was born on 17 November 1970. He is 31 years old.
The parties commenced cohabitation on 15 February 1994. They married on 15 February 1997.
There are two children of their marriage. L D A was born on 10 May 1998 and M L A was born on 31 March 2001.
Final separation occurred on 15 April 2001. They have not divorced.
Current orders
On 8 October 2001 in the Family Court at Newcastle on the wife’s application for exclusive occupation of the former matrimonial home and interim spouse maintenance the parties agreed that interim orders be made. The interim orders are as follows:
1a. That the Husband pay the initial rental bond and rental payments on a suitable residence to be selected by the wife in the Illawarra district to a maximum of two hundred and ten dollars ($210.00) per week.
1b. That the bond be paid to the Real Estate agent of the wife’s choice within three days of her request.
1c. That the rent either be paid to the wife three (3) days before the due date or to the appropriate Real Estate Agent by the due date.
2. That the husband provide the wife with a car suitable for the transport of the wife and the two children to a maximum value of three thousand dollars ($3,000.00) within six (6) weeks from the date of these orders.
3a. That the Husband deliver to the residence selected in Order 1 the following chattels and items:
(a)Television
(b)Stereo
(c)Washing Machine
(d)Fridge
(e)Clothes drier
(f)Microwave oven
(g)VCR (not currently working)
(h)Pots and pans
(i)Dinner set
(j)Sufficient towels
(k)Sufficient sheets
(l)Sufficient quilts
(m)Child L’s bed
(n)Kitchen table
(o)Kitchen chairs
(p)Black cabinet.
3.(b) The above furniture is to be delivered within a reasonable time of the wife’s request for delivery.
4. That the husband pay within 14 days the wife’s outstanding medical bill of two hundred and fifty dollars ($250.00) to the Illawarra Private Hospital.
5. That in the event that the husband defaults in the payment of the rent the wife is given leave to reapply for exclusive occupancy of the former matrimonial home.
6. That the husband’s and wife’s applications for final orders be consolidated and the venue changed to the Family Court at Wollongong.
7. Note that the husband proposes to sell the Ford motor car and reduce its liability.
The issues
The significant issues that arose in the proceedings are these:
·The weight that should be attached to the husband’s greater initial contribution.
·The manner in which the husband has disposed of the proceeds of sale of G Street, Oak Flats.
·The wife’s capacity for future employment.
·Whether the husband has given full and frank disclosure of his financial position.
The evidence
The wife relied on the following affidavits:
·Her affidavit sworn 28 February 2002 and filed 14 March 2002, her financial statement sworn 27 June 2001 and her oral testimony;
·Affidavit of her mother B C sworn and filed 1 July 2002 and her oral testimony;
The husband relied on his affidavit sworn 16 July 2002 and filed 17 July 2002 and his oral testimony.
Both parties tendered documents that became exhibits. This included the husband’s financial statement sworn 14 August 2001 as an exhibit in the wife’s case.[1]
[1] Exhibit L
Relevant events
At the commencement of cohabitation the wife worked as a clerical officer for the New South Wales Police Service having joined the Police Service in August 1990. She also worked as a waitress part time at the Sydney Turf Club. At cohabitation she owned a 1988 Toyota hatchback and NRMA shares. In addition she had a quantity of household furniture and goods. The husband worked as a butcher. Prior to the start of their relationship he had purchased a home at G Street, Oak Flats. This property was always tenanted. Its rental income was applied to the expenses, including mortgage instalments, incurred in relation to the property. At the time of cohabitation the property was estimated to be worth between $90,000 – $100,000 subject to a mortgage of at least approximately $70,000. In addition the husband owned a Toyota utility which was only six months old. It was worth approximately $16,000.
Once they started to live together the parties lived in a rented home in Sydney. The wife paid for the bond. Both contributed to their living expenses.
In December 1995 the parties bought a home at 64 C Crescent, Hassall Grove for which they paid $136,000. To fund its purchase they borrowed $120,000 from IMB and $15,000 from the wife’s parents. To the extent that there was any shortfall in the overall costs, for example stamp duty and legal fees, the parties drew from their joint savings. All mortgage repayments were made from the wife’s salary. This is because she had a fixed income whereas the husband’s was less regular as he primarily worked in casual employment.
In 1995 the husband established a business “A F”. He was the sole proprietor of the business. Initially he operated as a sole trader. Later, in January 2001, the business was incorporated as A F Pty Limited. Both parties were directors and shareholders in the company. The company operated through the A Family Trust.
In 1997 the parties married. The wife’s father paid for the wedding and she took out a loan for $7,000.00 to pay for their honeymoon. Ultimately $5,000.00 was applied to the honeymoon and $2,000.00 was put towards the fencing business.
On 8 May 1998 the wife started eleven months maternity leave. Her maternity leave was taken at half pay in conjunction with accrued long service leave. Whilst on maternity leave she worked part time at the Sydney Turf Club and between 23 April 1999 until October 1999 part time with the Police Service.
By 1999 the husband decided that his fencing business would be more profitable if it operated in the Illawarra region. At his request the wife agreed that they leave Sydney and move to Albion Park. Hassall Grove was sold for $176,500.00 in October 1999. Simultaneously the parties purchased 100 K Street, Albion Park for $185,000.00. They realised $40,000.00 nett from the sale of Hassall Grove, which monies were used to purchase Albion Park. $145,000.00 was borrowed from IMB to enable its purchase to be completed.
During the three or four weeks between the sale of Hassall Grove and completion of the purchase of Albion Park the parties lived with the husband’s parents. The Albion Park property is forty years old. It backs onto a three metre wide creek which eventually runs down to Lake Illawarra.
When they moved to Albion Park the wife resigned her employment. From that point the family’s only income was that earned from the fencing business. After the wife left work her private medical insurance lapsed. In 1999/ 2000 her thyroid and diabetes problems flared up. Unfortunately necessary treatment meant that she incurred medical expenses that were not covered by Medicare. The husband’s parents paid those expenses for her.
In January 2000 the wife cashed in her superannuation entitlements, for which she received $5,000.00. $3,000.00 was paid into the business account. It was used to bring the mortgage up to date and on household expenses. The remaining $2,000.00 was spent on a trip the wife made with L to her parent’s place.
The business had periods when it returned a good income and periods when it produced insufficient to enable the family to meet their day to day living expenses. The wife’s involvement in it was limited. She took telephone messages and tried to assist when possible in the home office. Her assistance was limited and coincides with periods shortly after L was born.
On 8 March 2002, three weeks before M was born, the husband told the wife that their marriage was at an end. Two weeks after M was born the husband took work in Sydney and suggested to the wife that she and the children visit her parents. She agreed and on 16 April 2002 she and the two children flew to Laurieton. Whilst she was at her parents’ home, the wife received a letter from the husband’s solicitors advising that she was not to return to the former matrimonial home. She had nowhere to live and until 10 November 2001 she and the children lived with her parents. After her interim application was dealt with at Newcastle in November 2001, she and the children moved to rented premises at 22 J Place, Quakers Hill. Within four weeks of moving in, on 17 December 2001, she received her first warning letter from the real estate agent complaining that her rent was not paid promptly[2].
[2] Annexure C wife’s affidavit
After the interim orders were made, without prior notification to the wife, the husband sold the Oak Flats property and wound up the business. Oak Flats was listed for sale within approximately three weeks of the interim orders. It sold for $125,000.00 on 22 December 2001. The IMB mortgage stood at $62,487.06. Agent’s commission, solicitor’s costs and outstanding council and water rates amounted to $5,547.31. Thus the nett proceeds of sale were $56,965.63. Curiously, the husband deposited the entire proceeds of sale into an account operated by his parents. He has used this same account to deposit his wages since then. Paragraphs 35 and 36 of his affidavit identify the payments made by him from the sale proceeds as at 5 April 2002. Exhibit D comprises a complete schedule of the payments and reveals that the monies have been exhausted. However, the schedule only includes the proceeds of sale of Oak Flats by way of deposit. It does not identify the income deposited from the husband’s earnings. The husband’s decision to sell Oak Flats and wind up the business without reference to the wife was justifiably criticised by the wife’s counsel. These assets were matrimonial assets and she was entitled to contribute to the decision to keep or dispose of the matrimonial assets. She should have been consulted in relation to the distribution of the sale proceeds. The husband has used the sale proceeds to pay, inter alia, the Albion Park mortgage, to meet his child support obligation and the interim spousal maintenance order. He paid his legal fees in an amount of $8,460.73. These monies will be added back. See In the Marriage of DJM and JLM.[3] Although he had refused to allow the wife to return to the matrimonial home, he did not pay the mortgage and $2,600.00 was paid to IMB for arrears. He reveals that he did not pay the mortgage for approximately fifteen weeks. He paid $4,200.00 to AGC as well as council and water rates on the former matrimonial home. In spite of the wife’s requests that he produce original documents evidencing the debts and necessity to pay them, he failed to do so. In addition to the deposits contained in exhibit D the husband paid $9,315.00[4] into his parents’ bank account as well as his wages from IPAC. He clears approximately $620.00 per week. Thus he has earned approximately $5,000.00 nett which has also been paid into his parents’ account. Although the court noted in November 2001 that the husband planned to sell the Ford and discharge the liability associated with it, he did not do so. He has kept the Ford and $2,000.00 of the Oak Flats money was been paid to Esanda as a lump sum, rather than periodic payments of the car loan. This represents twenty-six weeks at $78.00 per week of car loan repayments. As the husband has two other vehicles that are unencumbered his decision to retain the Ford satisfies me that he decided to manage his financial affairs to maximise his comfort, minimise his indebtedness with little regard for the wife and children’s situation.
[3] 1998 FLC 92-816
[4] Exhibit E
Neither party has repartnered.
Property and spousal maintenance applicable law
The approach to the determination of an application under section 79 is well established by authority (In the Marriage of Lee Steere and Lee Steere[5]; In the Marriage of Ferraro[6]; In the Marriage of Clauson[7] the process ordinarily involves a multiple part procedure. Firstly, identifying the property, liabilities and financial resources of the parties at the time of the hearing. Secondly, evaluating the contributions made by the parties as defined in section 79(4)(a) to (c) and the effect of any proposed order upon the earning capacity of either party. I must then evaluate the matters contained in section 75(2) insofar as they are relevant, any other Order made under the Act affecting a party or child and any child support under the Child Support (Assessment) Act 1989 that a party to the marriage is to provide, or might be liable to provide in the future, for a child to the marriage.
[5] (1985) FLC 91-626
[6] (1993) FLC 92-335
[7] (1995) FLC 92-595
In determining what order the court should make under section 79, the court must be satisfied in all the circumstances that it is just and equitable to do so [Section 79(2)]. It is the justice and equity of the actual orders that the court must consider. Russell v Russell[8].
[8] (1999) FLC 92-877
The wife makes an application for spousal maintenance. In Bevan and Bevan[9] the Full Court of the Family Court identified the process for assessing a claim for spousal maintenance. It said[10] this requires:
"1. a threshold finding under s72;
[9] (1995) FLC 92-600
[10] at 81,981-82,982
2. consideration of s74 and s75(2);
3. no fettering principle that pre-separation standard of living must automatically be awarded where the respondent's means permit; and
4. discretion exercised in accordance with the provisions of s74, with reasonableness in the circumstances" as the guiding principle."
A claim for spousal maintenance that is heard at the same time as an application for property adjustment adds an extra step to the process. The sequence of determining the applications is important and the property application must be determined before the spousal maintenance claim is considered. This is to ensure that the terms of any order made in the property claim are considered in the spousal maintenance application. Clauson supra.
Assets and liabilities as at the date of hearing
The parties were able to agree on the value of some of the assets and liabilities. I find that the parties assets and liabilities as at the hearing are as set out in the following table.
Assets as at the date of hearing
$
100 K Street, Albion Park (agreed)
$215,000.00
1996 Ford Falcon (H) $11,500.00 1993 Toyota Utility (H) $5,000.00 1985 Nissan Utility (H) $2,000.00 Aluminium boat and motor (H)
$1,500.00
Husband’s 2001 Income Tax refund[11]
$1,516.88
Add back paid legal fees (H)
$8,460.73
Add back monies paid to husband’s parents (H)
$6,200.00
1000 NRMA shares at ($2.90) (W)
$2,900.00
Furniture and possessions removed by wife[12]
$2,000.00
TOTAL ASSETS
$256,077.61
Liabilities
Illawarra Mutual Building Society (FMH)
$140,786.00
Loan to wife’s mother
$15,000.00
Esanda (car loan)
$6, 734.00
TOTAL LIABILITIES $162,520.00 NETT ASSETS $93,557.61 FINANCIAL RESOURCES
AMP superannuation Limited (H)[13]
$4,577.00
[11] Exhibit F
[12] Exhibit K see 39
[13] Exhibit K paragraph E
In determining the property of the parties I have needed to examine the nature of the advance by Mrs C and her husband (“the C loan”). Mrs C provided $15,000.00 to the parties when they purchased Hassall Grove. The husband recalled that the amount was $13,000.00. I prefer Mrs C evidence as to quantum. She was clear and unambiguous about the amount. All parties agree that the monies were advanced as a loan. There was no challenge to Mrs C’ evidence that the monies were advanced as a loan that was repayable on demand. It was interest free and has not been repaid. The husband alleges that in 1996 or 1997 the wife told him “mum got compensation, she shared it between Kelly and Wendy so we don’t have to worry about paying her back”.[14] The wife denies this conversation. . The husband’s evidence lacks candour in a number of respects. I am satisfied that I should accept the wife’s denial in preference to the husband’s assertion as to the conversation concerning forgiving the debt.
[14] Husband’s affidavit paragraph 44
Mrs C agrees that she received compensation monies after one of her daughters was killed. She loaned $10,000.00 to one child and $12,000.00 to another. She did not make further loans to the parties. The loans to the wife’s siblings have been repaid. Has Mrs C explicitly or by her conduct forgiven the loan? The strongest argument that it has been is the passage of time since it was given and the absence of a demand prior to these proceedings for the repayment of the money. However, this is consistent with the approach taken by the loan made by the husband’s parents (“the A loan”) for the wife’s medical treatment. Although those monies were advanced a couple of years later than the C loan, there are obvious similarities. Neither of the loans were documented and both appear to have been repayable interest free and on demand. There is no suggestion that the A loan involved reminders or later requests demanding repayment. It was repaid because it was financially expedient to do so. The similar approach taken by the families to the advances satisfies me on balance that the husband and wife borrowed monies from their families on similar terms and conditions. In the particular circumstances of this case the slightly greater passage of time that the C loan remained unpaid does not persuade me that the loan was forgiven. In the absence of explicit evidence from the lenders or direct conversations between the husband and either Mr or Mrs C I am not satisfied that it has been.
In his financial statement the husband identifies that the loan to his parents stood at $5,000.00[15] as at August 2001. At paragraph 28[16] he said that the parties borrowed $7,000.00 from his parents and that the debt was repaid at $100.00 per week. At $100.00 per week the debt should have been fully repaid by separation. Curiously exhibit D reveals that the husband paid his parents $7,430.00 from the proceeds of Oak Flats for “repayment of loan to parents for Peter’s medical expenses, rental bond money and two weeks advance rent”. I infer that the wife was required to pay four weeks rent by way of bond and two weeks rent in advance. This amounts to $1,230.00. Thus approximately $6,200.00 of the Oak Flats money is allegedly attributed to the wife’s medical expenses. The evidence contained in exhibits K and D and the husband’s affidavit is inconsistent. I am satisfied that he did, as he alleges in paragraph 28, repay his parents at $100.00 per week and that the monies allegedly paid from the Oak Flats money for this expense were unnecessarily paid. As a consequence I will notionally add $6,200 back.
[15] Exhibit LD47
[16] Husband’s affidavit
During submissions it became clear that the parties disagree about the value to be attributed to a number of cars and furniture. Because of the unsatisfactory nature of the valuation evidence concerning the disputed items I considered whether I should order a sale of them. I determined that I would not. That is because the parties have limited financial means and the costs associated with a sale are costs that these parties can ill afford. The husband’s financial statement contained evidence of his belief of the value of items in his possession. That is the cars and household furniture. He was in the best position to set out the full extent of the contents of the family home as he was in occupation. He had the cars and boat in his possession and thus his evidence is the best evidence the court has. His evidence has formed the basis of the findings of value contained in the table at paragraph 33.
I was not asked to add back the Oak Flats money used to meet the husband’s liability to pay child support.
Having lodged his 2000/2001 taxation return the husband is entitled to receive a refund from the ATO. The quantum is known and is added into the asset pool.
Section 79(4) contributions
An important issue in this matter is the assessment of the weight that should be attached to the initial contributions. In Pearce & Pearce[17] the Full Court of the Family Court held:
“In our opinion it is not so much a matter of erosion of contribution, but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution”.
[17] 1999 FLC 92-844
I have already made findings about the assets held by each party at the commencement of cohabitation. The husband had nett assets worth between $36,000 and $46,000. There is insufficient evidence to make precise findings concerning the wife’s nett asset position. Given the nature of her assets they were worth considerably less than the husband’s were. Other than the mortgage on Oak Flats neither party had any liabilities. Oak Flats was entirely self sufficient in that the rent supported all of its outgoings. During cohabitation the husband made no capital improvements to it. There is no suggestion that the property ever produced a positive return. In his affidavit[18] the husband asserts that the mortgage stood at $60,000.00 at the commencement of cohabitation. However, on discharge, six years later, it stood at $62,487.06. There is no evidence that the Oak Flats mortgage was not paid on time or that it was drawn down upon during cohabitation. Hence I am satisfied that the husband’s evidence is exaggerated. I find that the mortgage balance was greater than $60,000.00 at the commencement of cohabitation and at least approximately $70,000.00 as asserted by the wife.[19] Indeed, it may have been slightly greater. The husband made the sole contribution to the acquisition of Oak Flats. He also owned a car which was unencumbered. The wife made no contribution to it. During cohabitation, however, the parties were able to keep the property intact only because the wife’s parents gave them a loan that enabled the purchase of a home. Without this loan they could not have kept Oak Flats as an investment. Either they would have needed to sell it or live in it. There is an obvious nexus between its value on sale and the C loan that enabled them to rent it out and still live in a home without paying rent. This is a contribution made on behalf of the wife by her parents towards part of the capital increase in Oak Flats. Just as the husband benefits from the windfall contribution for Hassall Grove, so the wife benefits in relation to Oak Flats.
[18] Paragraph 24
[19] Paragraph 11
The wife owned shares, a car and household furniture that the husband made no contribution to.
Both parties were in full time employment when they started to live together. Later the husband’s employment became less regular and the wife’s income from the Police Service became the mainstay for the family. The evidence does not include the comparative incomes earned by the parties. Prior to the wife giving up full time work, both parties applied the entirety of their income to joint matrimonial purposes. After they moved to Albion Park the husband’s income derived from their fencing business has been the family’s sole source of income. The only exception to this is the rent received from Oak Flats.
Unless they had sold Oak Flats, without the loan made by the C loan they did not have sufficient savings to purchase Hassall Grove. That loan enabled the husband to retain Oak Flats intact. Similarly, it enabled the parties to acquire a home that they could live in so that they need no longer lose money paying rent. Neither party made any meaningful contribution to the conservation or improvement of Hassall Grove. Because it was sold within only a few years of its purchase, it is unlikely that they made any meaningful reduction to the mortgage balance. The sale price was $40,000.00 greater than its cost on acquisition. In the absence of evidence of improvements to Hassall Grove, I infer that its increased value is attributable to upward movement in the property market. Thus, I am satisfied that the $40,000.00 nett proceeds received from the sale of Hassall Grove would not have been achieved unless the wife’s parents had made the advance. However this does not mean that the nett proceeds are a contribution made only on the wife’s behalf. Rather it represents a windfall enjoyed by both parties. The continued use of that money as a capital component of the Albion Park acquisition interest free has been financially fundamentally important to the parties. Allowing the money to remain invested in the parties property enabled them to acquire a home without selling Oak Flats, preserving its income stream and the opportunity for its capital growth. Simultaneously it limited the mortgage repayments on the family home. This is an important contribution made on behalf of the wife. Clearly the loan was provided because the wife was a party to it. Without her involvement there is no evidence that the wife’s parents would have loaned money to the husband.
The wife contributed her superannuation monies to the business and to the welfare of the family. It was reasonable that she used a portion of those monies to provide for her and L’s expenses during the period that she stayed with her parents prior to separation. Otherwise the wife’s father made a contribution when he paid for the wedding and the wife used loan monies for the honeymoon and $2,000 contributed towards the fencing business. Similarly the husband’s parents loaned money that enabled the wife to have necessary medical treatment. This is a contribution made on the husband’s behalf.
When evaluated comparatively, the husband made a greater initial financial contribution and a greater overall financial contribution both during cohabitation and since separation.
The husband was chiefly responsible for the maintenance and upkeep of Albion Park. When purchased the property was in a fairly run down condition. Some of the wife’s superannuation monies was spent re-carpeting. Otherwise the improvements made to the property include erecting a new pool fence and gate, building an 8 metre x 1 metre retaining wall, partially renovating the bathroom, erecting a pergola, laying a concrete slab and landscaping the gardens. The husband completed all of this work after separation. He paid $2,000 for the materials used to do so, $702.10 of which came from the proceeds of Oak Flats. This is the extent of the improvements to the maintenance and conservation of matrimonial property identified by either party. Thus the husband’s non- financial contributions exceed the wife’s.
The wife’s contribution to the welfare of the family is particularly significant taking into account the children’s ages at separation. I accept her evidence that throughout cohabitation she was almost entirely responsible for meeting L’s daily needs as well as her role as homemaker. Because the husband worked hard to try and develop the fencing business responsibility for maintaining the interior of the home and caring for the children fell overwhelmingly on the wife. It is unclear how her ill health affected her capacity to do so and whether the husband took on additional responsibilities whilst she was unwell. I infer that he did do so. I am satisfied the husband made a contribution to the welfare of the family during periods when the wife was ill. Of course he also contributed his income to the support of the family, as when she worked in paid employment, did the wife. Comparatively the wife’s contribution to the welfare of the family during the marriage and since separation substantially exceeds the contribution made by the husband. Her contribution must be given significant weight. See Ferraro[20]
[20] (1993) FLC 92-335
The orders I propose will not affect the earning capacity of either party.
After separation the wife applied for an administrative assessment of child support. The husband pays child support in accordance with the assessment. While addressing s75(2)(na) I make findings concerning child support and do not repeat them. The husband will pay child support in accordance with the child support formula for approximately 17 years. He is unlikely to ever pay more than the amount assessed, which sum is always likely to be modest.
Although he was criticised for selling Oak Flats and closing the fencing business, the wife’s counsel did not assert that the husband wasted valuable assets. Rather he impliedly conceded that the business had not produced an adequate income stream and that the parties had debts that needed to be paid. If not immediately, certainly within the foreseeable future. For her part the wife was not surprised that the fencing business was wound up. Even having regards to its ups and downs, she agreed that it had not been successful overall.
I find therefore that the parties total contribution should be assessed as being 55 percent by the husband and 45 percent by the wife.
Section 75(2)
Subsection (a)
The husband is 31 years old and is in good health. The wife is 33 years old. She is an insulin dependent diabetic. After L was born she developed Graves disease which is an overactive thyroid. It has caused her eye muscles to strengthen and she has required five operations on her eyes in recent years. Her eyesight is improving and recently she regained her driver’s licence. She still has double vision and wears glasses. Her illnesses make her tired and their management requires that she take medication daily. I am satisfied her health must be managed carefully, requiring a combination of careful diet, medication and avoiding over-taxing herself. I make an adjustment pursuant to the subsection in favour of the wife.
Subsection (b)
The husband works full time with IPEC at North Rocks. He earns approximately $620.00 per week after tax. Earlier this year he worked as a casual butcher for A J B and Sons. He still does so on Saturdays for which he earns approximately $80.00 a day nett. Because he plans to exercise contact to the children on weekends he will reduce the amount of Saturday work he takes on. Other than income derived from his employment he has no other source of income. I have already made findings about the value of his property and financial resources. I do not repeat them. I am satisfied that he has the physical and mental capacity to work full time earning at least a comparable income to that which he currently draws for many years to come. He is also an experienced fence builder and could, should he need to do so, supplement his earnings building fences. The wife studied secretarial, bookkeeping and word processing at Baulkham Hills TAFE College. Subsequently she has worked as a clerical officer with the Police Service, for “L P Constructions” I infer in a secretarial capacity, and as a waitress for the Sydney Turf Club. Other than a small amount of office assistance to the husband’s business she has not worked in the paid workforce since 1999. Her eye condition has interfered with her capacity to work. In the event, this issue was moot because she had the full time responsibility for the care of the children. The evidence about the impact of her illness upon her capacity to undertake the work for which she is trained is not entirely satisfactory. However, I accept that continuing double vision will impact negatively to an extent on her capacity to perform keyboard and close office work. Her capacity to work full time as well as care for the children is limited. She could return to work part time at some period in the future. Should she return to work it is unlikely that the wife will earn an income comparable to that earned by the husband, either in the short term or the long term. I make an adjustment pursuant to the subsection in favour of the wife.
Subsection (c)
L is 4 years old and M is 17 months old. There is no dispute that they will continue to live with the wife. But for the care of the children, I am satisfied that the wife could return immediately to part time employment, probably as a waitress. Her decision to care for the children and not to work is a reasonable one. Whilst she has the care of the children before they are both attending school, the physical demands involved in caring for both of them given her susceptible health means that she could not return to work either part time or full time. However, in four years when M starts school she will have the opportunity to obtain part time employment. Her opportunity for full time employment is materially affected as a consequence of her care of the children. Managing as a single parent whilst the children are in their early school years as well as even part time work will be more difficult for her than other single parents. This is because she lives a long way from her parents and does not have significant family support nearby that she can regularly rely on. Recently when one of the children was ill she rang the husband and asked him to collect her and take them to hospital. He had just come home from a 12 hour shift and said he would not help. The child was hospitalised for three days. This is a simple vignette that shows how difficult parenting young children alone can be. It reinforces that when the children are sick and unable to attend child care or school, the wife will be unable to rely on the husband to share the burden of taking care of them. This will impact adversely on her capacity to keep any employment she obtains. I find that this subsection requires an adjustment in the wife’s favour.
Subsection (d)
Both parties have a duty to maintain the children. There was scant evidence that particularised their weekly expenses. The husband maintains the former matrimonial home, pays the mortgage at $250.00 per week, child support at $53.00 per week, and his car loan at $78.00 per week. He has used capital to meet his obligations pursuant to the orders made 8 November 2001. He has not paid the wife’s rent for three weeks. The wife’s only source of income is means tested benefits, family allowance, child support and monies received towards her rent from the husband. On balance both parties have substantial commitments which only enable them to have a modest standard of living. The husband has managed to keep the Ford rather than sell it and use one of his other cars. It would relieve him of the repayments as well as provide a small capital sum. This suggests that he is satisfied that his commitments are manageable in the long term. I make an adjustment in favour of the wife pursuant to the subsection.
Subsection (e)
Other than the children, neither party has a responsibility for any other person. I make no adjustment under this subsection.
Subsection (f)
The wife receives a social security benefit by way of supporting parents benefit and $443.93 per fortnight by way of family assistance. She does not have any superannuation entitlements. I have already made findings about the husband’s superannuation entitlements. He is comparatively young and will not be eligible to receive his benefits for at least twenty-two years. I make no adjustment under this subsection.
Subsection (g)
Since separation the husband has continued to live in the former matrimonial home. During the week he stays in Sydney and has a friend living there. His friend ensures that the home is secure and does not pay rent. Until the wife’s application for spousal maintenance and exclusive occupation was heard on 8 October 2001 she and the children lived with her parents. On 10 November 2001 she moved into her rented accommodation at Quakers Hill. The husband is required to pay her rent. It is almost constantly in arrears. The managing agents have repeatedly advised her that unless her rent is maintained in advance her tenancy may be terminated. This risk is heightened by the husband’s failure to make rental payments or come to any arrangement with the renting agents since he stopped payments in July 2002. The wife intends to place her name on the Department of Housing waiting list. She is only eligible for consideration if her name is removed as a joint mortgagee. The wife’s capacity to live independently in the rented property market is uncertain. She is more vulnerable than the husband is to a further diminution in her standard of living. Indeed she is at risk of imminent homelessness. I make an adjustment pursuant to the subsection in her favour.
Subsection (h)
I make no adjustment under this subsection.
Subsection (j)
I make no adjustment under this subsection.
Subsection (k)
I make no adjustment under this subsection.
Subsection (l)
The wife agrees that the children should live with her. Combined with her absence from the paid work force since L’s birth I am satisfied that to the extent possible she wishes to continue her role as a parent. Her care of the children makes it reasonable that she limits her hours of employment to approximately coincide with their actual school hours and probably no more than eventually one or two days each week. To the extent not already addressed under s.75(2)(b) and (c) I make an adjustment under this subsection in favour of the wife.
Subsection (m)
Since May 2002 the husband has allowed a friend, Shaun B to live in the former matrimonial home. They pay equally the household bills. Otherwise, Mr B does not pay rent or board. This is because he cares for the house and dog whilst the husband is working in Sydney during the week. This is a generous outcome for the tenant. He has the exclusive use of a home for the majority of the time. In the circumstances of this case it is unreasonable that the husband allow his friend to live at the home without contributing to some of the capital costs. Otherwise there are no relevant financial circumstances arising as a consequence of the cohabitation. The wife and children live alone. I make an adjustment pursuant to this subsection in favour of the wife.
Subsection (n)
The husband will have the opportunity to purchase the wife’s interest in the matrimonial home. After she has repaid the debt due to her parents, the wife will have assets of an approximate value of $68,000.00. Because of her limited income it is unlikely that this will be sufficient to enable her to purchase a home or an apartment to live in. It is more likely that she will live in rented accommodation and that slowly her cash reserves will be exhausted meeting the shortfall between her income and necessary expenses. The husband will have the former matrimonial home subject to a comparatively significant mortgage. The amount needed to pay out the wife, if borrowed from IMB will mean that there will be almost no equity in the former matrimonial home. If necessary, he plans to tenant the home and return to live with his parents. This strategy will enable him to service the increased mortgage through a combination of payments sourced from his salary or rental income. There is a prospect he will not be able to purchase the wife’s interest in the home, although this is an unlikely outcome. I make no adjustment pursuant to the subsection.
Subsection (na)
About three months after they separated, the wife applied for an administrative assessment of child support. The liability was assessed at $267.00 per month. The parties agreed that the child support would be paid privately, directly by the husband to the wife. Because the payments were not always made on time, the wife asked the Child Support Agency to collect the child support. On 6 June 2002 an assessment issued for the period 1 July 2002 to 30 September 2003. This assessment requires that the husband pay child support at $228.42 a month[21]. The husband only lodged his 2000-2001 tax return on
31 May 2002. Because he used a family trust to operate the business he was able to distribute profit via the trust to the wife and their elder child. $6,043.00 profit, which would otherwise have formed part of the husband’s taxable income was distributed through the trust[22]. His taxable income is $13,625.00[23]. It is almost inevitable that his child support liability will fall and may even be reduced to nil. Of course the wife may be able to successfully apply to change a nil assessment. Often the court will be satisfied that future child support needs will be addressed by operation of the child support scheme. In this matter. However, there is likely to be dispute and delay. The process of securing regular payments, based on the husband’s compliance with the orders for interim spousal maintenance and the limited child support paid, sourced primarily from joint matrimonial assets makes this outcome highly likely. Whilst he agreed that he is earning considerably more than last years taxable income he has not told the Child Support Agency that this is so. The husband asserted that he is paying $80.00 per week child support. He is not and has never done so. In his financial statement he asserted the he was paying $100.00 per week. He has never done so. I am satisfied that he has been late paying child support, that he deliberately overstated the amount of child support payments he has made and that he has not advised the Child Support Agency of his increased income. Potentially the husband has about seventeen years child support years ahead. However, because I am satisfied that he is unlikely to make a reliable contribution to his child support obligations and will take such steps as he can to minimise the liability, I do not make the adjustment that I would otherwise have made in his favour. I make no adjustment pursuant to the subsection.
Subsection (o)
[21] Exhibit C
[22] Exhibit I
[23] Exhibit I
I make no adjustment under this subsection.
Subsection (p)
This issue does not arise.
Having regard to all of the section 75(2) factors, I find it appropriate that there should be an adjustment in the wife’s favour having regard to subsection 75(2)(a), (b), (c), (d), (g), (l), (m) and (o). The appropriate adjustment to make in the wife’s favour is 28 per cent. This outcome reflects the cumulative outcome of the findings I have made pursuant to s.75(2). See Tomasetti.[24] Any lesser adjustment given the modest asset pool would be notional.
[24] (2000) FLC 93-023
Section 79(2)
That the outcome of s.79(4) and s.75(2) has resulted in a distribution favourable to the wife (73%) as compared to the husband (27%) I am satisfied is just and equitable within the meaning of s.79(2). The reason for that is that the s.79 exercise requires that I give proper weight to the wife’s financial contributions, her financial future having regard to her care of the children and reduced capacity for well paid employment which the cautious approach her health demands that she take. Her parents’ loan was very important and had ramifications much more substantial than such a modest sum would ordinarily indicate. They made extensive use of the money. The husband’s initial contribution was greater than the wife’s and his overall financial contributions exceeded hers. By comparison to her, he has skills and the opportunity to secure a reasonable financial future through fulltime paid employment. His somewhat cavalier approach to the wife’s and children’s housing needs to date reveals that he is likely to maximise his own future financially with an unsatisfactory regard to his obligations to make a meaningful contribution towards child support. He will receive less than his initial contribution – an outcome I have considered carefully. The failure of the fencing business placed considerable strain on the parties’ asset position and meant that capital was used to meet living expenses and current liabilities. The husband will have an asset that he can use to produce additional income and which will enable him to achieve capital growth perhaps while negatively gearing it. This gives him better prospects of growing his assets than the modest dollar value of the assets. By comparison there is a real risk, that after she has repaid her parents, the wife will not be able to re-enter the property market other than as a tenant. As her income will be limited she is not an attractive proposition to a mortgagee. It is highly likely that over time her modest capital sum will slowly dissipate as she draws upon it to meet her and the children’s living expenses.
The husband sought the opportunity to purchase the wife’s interest in the home. He will have that opportunity. Pending completion of the buy out he must pay all outgoings, including mortgage instalments as and when they fall due. He identifies that six weeks is sufficient time to make enquires of lending authorities and to complete the steps necessary to raise the monies due. If he does not pay the wife out, she will have the opportunity to take the home. She must indicate her desire to exercise this right within two weeks of default by the husband. If she fails to indicate that she claims this right the home will be sold. Unless the wife agrees to resume occupation of the home, during this period the husband will continue to be responsible for the outgoings. Having insisted on living in the home since separation irrespective of the wife’s difficult housing situation, he cannot walk away from his obligations to maintain it. That is unless and until the parties are freed of their obligations arising from its ownership, or the wife takes it.
The net assets to be distributed are $93,557.61. The wife will retain her shares and the furniture in her possession. She will be responsible to repay the loan to her parents from her share, unless the house is sold. Thus she has assets worth $4,900.00 and liabilities of $15,000.00. She is entitled to nett assets worth $68,297.06. The husband has assets the nett value of which is $103,657.61. He is entitled to $25,260.55. Having regard to her negative asset position the husband must pay the wife $78,397.06 by way of adjustment.
In the event the husband does not make the payment, the wife may exercise her right to take the home subject to its indebtedness. She will be required to obtain a release for the husband from the mortgagee. The nett value of her assets, having regard to the agreed value of the home and the mortgage is then $64,114.00. The husband will have the assets and liabilities subject to the wife having the home and mortgage. His assets have a nett value of $29,443.61. Thus there must be an adjustment to the wife of $4,183.06, which shall be paid by the husband within a further 14 days. If she takes up her right to occupation and he fails to pay the monies due, she can enforce the orders.
If the property is sold, the effect of the adjustments must be to ensure the 73% division of the assets to the wife as compared to the husband’s 27%. Although the property has an agreed value, the net proceeds cannot be known. Excluding the home she will have assets of $4,900.00 and the husband will have nett assets of $29,443.61. 73% of these means the wife should have $25,070.83. Thus there must be an adjustment to the wife taking into account the assets that she retains. The adjusting figure is $20,170.83. Thus the husband must pay her an additional $20,170.83 from his share of the nett proceeds of the sale.
Spousal maintenance
The wife brings an application under s.74 and s.72 for the payment of spousal maintenance. The husband opposes her application. He does not challenge her need for spousal maintenance. Rather, he alleges that he is not reasonably able to pay it. Implicit in the concession that the wife has established a need for spousal maintenance is the concession that she is unable to support herself adequately because she has the care and control of the parties’ infant children. That is unarguably so. I have already made findings about the ramification for the wife’s capacity for full or part time employment as a consequence of her care of the children and do not repeat them. Because of the concession made by the husband’s counsel I do no more than adopt the submission and am satisfied that the wife has satisfied the threshold s.72 requirements.
Of course I must disregard her Centrelink benefit and thus her only income is that from child support. There is little detailed evidence about her weekly expenses. Her rent is $205.00 per week. I am not in a position to make specific findings about her expenses. However, the concessions made by the husband’s counsel make it clear that there is no suggestion that the wife is extravagant. Indeed, it was implicit in the manner in which the proceedings were conducted that she is in a parlous situation and needs every cent she can get. Previously, the husband conceded she needed at least $205.00 per week interim spousal maintenance. Her financial circumstances have not changed and I am satisfied that she has a continuing need for spousal maintenance in at least that sum. I accept that the child support is entirely expended meeting the children’s needs. Once she has received her entitlement she will have approximately $68,000.00 that can be invested. Assuming an interest rate of 4 per cent, she will have a return of approximately $52.00 per week. Her need for spousal maintenance will thus continue.
The significant issue is the husband’s capacity to pay spousal maintenance and whether it is reasonable that he do so. I have already made findings about his income. He proposes to reduce his casual employment so that he can exercise contact to the children. The children are entitled to a proper relationship with their father and his decision to reduce the hours worked in his second job is reasonable. Timing, however, is important. Until the wife receives her entitlement her need for continued support from the husband is desperate. Delaying his decision to reduce his Saturday work by six weeks is highly unlikely to impact on his relationship with his children. He will need to delay his decision in the interest of enabling him to pay some level of spousal maintenance. For his own reasons, he has kept the Ford car and pays $78.00 to Esanda for its loan. Given the wife’s difficult situation, he could sell the car, pay out Esanda and have about $5,000 left. More relevantly he would be freed from the repayment. He has the capacity to earn additional income by charging board to Mr B or some other person, even if it is only about $75.00 per week. Details of his expenses are limited. Other than the mortgage ($250.00 per week) and child support ($53.00) I do not have evidence of the amounts paid by him for petrol, electricity, gas, telephone, groceries, car upkeep and other bills[25]. Having regard to the payments identified in paragraph 36 it would appear that rates are about $30.00 per week. He must travel to Sydney for contact and also for work. Thus he incurs probably at least $40.00 per week in petrol. He has, therefore, approximately $327.00 per week with which to meet his living costs and from which spousal maintenance could be paid. At $205.00 per week he is left with approximately $122.00 to live on. This is insufficient for a person in full time employment. However, for a short period of time he could live on approximately $178.00 per week which will enable him to pay the wife $150.00 per week spousal maintenance. The parties lived together for seven years. The wife continued to work in the paid workforce until L’s birth.
[25] Paragraph 37
Once the husband has paid the wife her entitlement, his borrowings will increase as will his repayments. Assuming a standard variable loan at 5.99 per cent[26] he will have mortgage repayments of approximately $1,400 – $1450 per month. His income will reduce because he will no longer be expected to work every Saturday. His reduced capacity to pay spousal maintenance must be reflected in the orders the court makes. He will at the same time have extra costs associated with contact which costs are necessary. Renting the property will go some way towards reducing the expenses associated with keeping it and ultimately will provide legitimate tax relief by negatively gearing. However, in the short term the property will be supported primarily from the husband’s income. This matter is complicated by the obviously legitimate claim the wife makes for spousal maintenance. However, once she has received her property entitlement I am not satisfied that the husband has a continuing capacity to provide spousal maintenance as well as exercise reasonable contact to the children. The spousal maintenance order will be discharged at that point. If either party’s circumstances change in a way that justifies a variation of the order, they can apply to do so. Any other outcome requires speculation of future events.
[26] Australian Financial Review 20/8/02
Determining the children’s best interests
There remains a limited issue in relation to contact. At the commencement of the proceedings the wife conceded that orders could be made as largely sought by the husband. After an inauspicious start complicated by the difficult circumstances surrounding their separation and the wife necessarily remaining at Laurieton, contact is now occurring. The husband is keen to maintain his relationship with the children. He recognises that because M was only weeks old at separation and is still a baby, he must take a careful approach to her capacity to spend time away from her prime care giver. He readily conceded that the wife is the children’s prime care giver and that she is the parent from whom the children derive their strongest sense of security and stability. For her part, the wife acknowledges the husband’s capacity to meet the children’s physical and intellectual needs during contact. I accept that she is committed to maintaining and developing the children’s relationship with their father. The only issue is the pace at which M’s contact with her father should proceed.
Both children, other than usual childhood illnesses, are healthy and well adjusted. It appears that they are achieving all their milestones in accordance with their chronological age. Because L is settled into a routine of overnight contact, his presence during contact will help M cope with periods of time away from her mother for longer periods than if M were attending contact alone. By the time she is two years old M will be well accustomed to spending the day with her father and seeing L remain in the husband’s care before returning. Relevantly she is likely to be comfortable leaving her mother’s care to be with her father reassured, as she will have been, that he regularly returns her.
I was impressed with the father’s capacity as a parent. Because the mother supports the contact she will ensure that M is well prepared for contact and can help M through any adjustment necessary.
On balance, by the time M is 2 years old I am satisfied that she should spend weekends with her father for the same duration and coincidental with those enjoyed by L. Presently, although the orders will provide for contact to end on a Monday morning, the parties agree that it should end on Sunday evening. I will leave open the opportunity for them to revert to a Monday morning conclusion when their circumstances allow. These are orders that I am satisfied are in the children’s best interest.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date: 20 August 2002
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