Alexander & Hooper
[2007] FamCA 1074
•12 September 2007
FAMILY COURT OF AUSTRALIA
| ALEXANDER & HOOPER | [2007] FamCA 1074 |
| FAMILY LAW - CHILDREN – With whom a child lives – equal time not in child’s best interests – poor communication and conflict between parties – current living arrangements to continue – order that child “live with” husband for 5 nights and “live with” mother for balance of each fortnight. FAMILY LAW - PROPERTY SETTLEMENT – significant credit card debts incurred by husband – minimal assets – discussion of treatment of liabilities – Kowaliw and Kowaliw (1981) FLC 91-092 – husband controlled finances and did not allow wife to access finances – wife unaware of level of husband’s expenditure – husband to bear sole responsibility for credit card debts – 10% adjustment in favour of wife for s.75(2) factors – assets to be divided 70%/30% in favour of wife – effect of orders is that husband required to pay wife $13,612 – wife seeks only that each party retain the assets they have and husband bear sole responsibility for debts – husband cannot afford to pay wife and has significant debts to meet – wife will be left with virtually nothing – whether just and equitable – orders made as sought by wife. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61C, 61DA, 65DAA, 75(2), 79(2) & 79(4) |
| Khademollah and Khademollah (2000) FLC 93-050 JEL and DDF (2001) FLC 93-075 |
| APPLICANT: | MR ALEXANDER |
| RESPONDENT: | MS HOOPER |
| INDEPENDENT CHILDREN’S LAWYER: | LEGAL SERVICES COMMISSION |
| FILE NUMBER: | ADF | 720 | of | 2005 |
| DATE DELIVERED: | 12 September 2007 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 18-20 December 2006 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Du Barry |
| SOLICITOR FOR THE RESPONDENT: | Denise M Rieniets & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mrs West |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission |
ORDERS
Child issues
By consent that the husband and the wife equally share parental responsibility for the child … (“the child”) born … November 1998.
That during each school term the said child live with the husband as follows:
(a)Each alternate week from the conclusion of school Tuesday (or 3:30pm if a non-school day) until the commencement of school Thursday (or 9:00am if a non-school day);
(b)Each intervening week from the conclusion of school Friday (or 3:30pm if a non-school day) until the commencement of school Monday (or 9:00am if a non-school day)
and with the wife at all other times during each school term.
By consent that the said child live with the wife for one half of each end of first, second and third school term holidays in each year, and with the husband for the other half.
That during the 2007/2008 Christmas school holidays the said child live with each party during alternate fortnight periods.
That during each Christmas school holiday period thereafter the said child live with the wife for one half of that period and with the husband for the other half.
That the said child live with the wife from 4:00pm on 24 December 2007 until 4:00pm on 25 December 2007 and during the same times in each alternate year thereafter, and with the husband from 4:00pm on 25 December 2007 until 4:00pm on 26 December 2007 and during the same times in each alternate year thereafter.
That the said child live with the husband from 4:00pm on 24 December 2008 until 4:00pm on 25 December 2008 and during the same times in each alternate year thereafter, and with the wife from 4:00pm on 25 December 2008 until 4:00pm on 26 December 2008 and during the same times in each alternate year thereafter.
That on the said child’s birthday in each year the said child lives with the party with whom he is not living otherwise from 2:00pm to 6:00pm if the birthday falls on a weekend and from 4:00pm to 6:00pm if it falls on a school day.
By consent that on the Sri Lankan New Year’s Day in each year the said child live with the party with whom he is not living otherwise from 2:00pm to 6:00pm if that day falls on a weekend or a holiday, and from 4:00pm to 6:00pm if it falls on a school day.
When the Easter period does not coincide with the end of first term school holidays, the said child live with the husband for one half of such period and with the wife for the other half.
By consent that the said child live with the wife from 10:00am until 5:00pm on Mother’s Day in each year if not living with the wife in any event.
By consent that the said child live with the husband from 10:00am until 5:00pm on Father’s Day in each year if not living with the husband in any event.
That when the said child is living with the wife the husband is at liberty to telephone the child at 8:00pm on Thursdays and at 8:00pm on Tuesdays during school holidays, and when the said child is living with the husband the wife is at liberty to telephone the child at 8:00pm on Wednesdays and at 8:00pm on Tuesdays during school holidays.
By consent that the parties ensure that the said child is able to telephone the party with whom he is not living at any time that he wishes.
That all handovers that cannot take place at the said child’s school take place at the home of the wife from time to time.
By consent that the husband do ensure that any clothing provided by the wife at the commencement of any time the child is to live with the husband is returned to the wife at the conclusion thereof.
That the wife do all things and sign all such documents as may be necessary to change the said child’s citizenship back to Sri Lankan or to dual Australian and Sri Lankan citizenship.
That the parties communicate by way of a communication book but limited to matters relating to the said child’s day-to-day welfare, health and education.
That each party is at liberty to attend at the said child’s school for the purposes of any function or activity normally attended by parents.
That each party is at liberty to obtain whatever information or document that they wish from the said child’s school.
That each party immediately notify the other of any medical emergency relating to the said child whilst the said child is in that party’s care.
That each party keep the other informed as to their current residential address and landline telephone number and provide details of any changes to the same in writing within seven [7] days of such change occurring.
That each party provide the other with at least seven [7] days notice in advance of any interstate holiday plans for the said child, together with contact details for the said child whilst on the holiday.
That the wife’s expired passport held by this court be forthwith made available for collection by her.
That the husband’s application for injunctions be dismissed.
That the order appointing the Independent Children’s Lawyer be discharged.
That pursuant to Section 62B and Section 65DA(2) of the Family Law Act 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 the attached Fact Sheet.
Property settlement issues
That each party retain free of any claim by the other party the assets currently in their possession or control.
That the husband remain solely liable to pay his credit and debit card debts and his HECS debt.
That forthwith the husband deliver up to the wife copies of the videos of the said child from birth until his arrival in Australia.
That all applications be dismissed and removed from the active pending cases list.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Strickland delivered this day will for all publication and reporting purposes be referred to as Alexander and Hooper.
FAMILY COURT OF AUSTRALIA AT ADELAIDE
FILE NUMBER: ADF 720 of 2005
| MR ALEXANDER |
Applicant
And
| MS HOOPER |
Respondent
REASONS FOR JUDGMENT
Introduction
I have before me for determination competing applications for parenting and financial orders. The parenting orders relate to the child born in November 1998.
On 15 September 2003 the husband filed a Form 3 Application in the Federal Magistrates Court seeking final and interim orders in relation to the said child.
On 22 December 2003 the wife filed a Response to the Initiating Application seeking final and interim orders as to the said child.
On 21 June 2004 the wife filed an Amended Response.
On 20 December 2004 the husband filed an Amended Application seeking orders for property settlement.
The husband filed an Amended Application on 15 February 2005 and the wife filed an Amended Response and a further Amended Response on 7 March 2005. In the latter the wife sought final and interim orders as to property settlement.
On 24 May 2005 the proceedings were transferred to this Court.
On 21 September 2006 the husband filed an Amended Application for Final Orders in which he sought orders for property settlement.
At the time of the trial the wife sought the following orders:
9.1That the said child live with the wife.
9.2That the husband and wife share the parental responsibility for the said child.
9.3That the child spend time with the husband as follows:
9.3.1Each alternate week from the conclusion of school Tuesday (or 3:30pm if a non school day) to the commencement of school Thursday (or 9:00am if a non school day) commencing 21November 2006;
9.3.2Each intervening week from the conclusion of school Friday (or 3:30pm if a non school day) to the commencement of school Monday commencing 17 November 2006;
9.3.3For half of all school holiday periods, including week on/week off during the Christmas school holiday periods each year;
9.3.4At such further and other times as agreed between the parties.
9.4That any handovers not taking place at the said child’s school occur at the wife’s residence.
9.5That the husband do ensure that any clothing provided by the wife at the commencement of the husband’s time with the child is returned to the wife at the conclusion thereof.
9.6That the wife be at liberty to travel with the child to Sri Lanka upon providing to the husband with no less than 14 days notice (unless in the case of a family emergency) and do provide the husband with details of return flights from Adelaide to Sri Lanka, and contact details for the child during the period of his absence from Australia.
Property settlement
9.7That the husband deliver up to the wife:
9.7.1The wife’s text books;
9.7.2The video or copy thereof of the child.
9.8That the parties do retain all items of property currently in their possession.
9.9That the husband is to assume sole responsibility for all debts incurred in his name and indemnify the wife with respect to the same.
During the trial the wife indicated that she was not pursuing her application to travel to Sri Lanka or the return of her books.
At the time of the trial the husband sought the following orders in relation to the said child:
“11.1That both the husband and the wife participate in making decisions about major long-term issues in relation to the child […] born […] November 1998.
11.2That the said child does spend time with the wife as follows:
11.2.1On a two weekly cycle as follows:
11.2.1.1In the first week from after school on Monday to the commencement of school on Tuesday and commencement of school on Friday to the second week commencement of school on Wednesday.
11.2.2For one half of each mid-year school holiday period at times to be agreed.
11.2.3For one half of the Christmas school holiday period at times to be agreed and
11.2.3.1From 4:00pm on 25 December to 4:00pm on 26 December in 2007 and each alternate year thereafter with the wife.
11.2.4From 5:00pm Easter Saturday until 5:00pm Easter Sunday in 2007 and each alternate year, or as otherwise agreed with the party not having the said child.
11.2.5On Father’s Day between 10:00am until 5:00pm if not otherwise spending time with the said child on such day and if the husband is to spend time with the said child on Mother’s Day then such contact shall be suspended between 10:00am and 5:00pm on Mother’s Day.
11.2.6That the said child does live with the husband at all other times.
11.3Telephone communication:
11.3.1That the wife do communicate with the said child by telephone – between 7:00pm and 8:00pm on Tuesday of each non-contact week.
11.3.2When the said child is not in the husband’s care the mother do facilitate the said child making such telephone call to the husband on each non-contact Sunday.
11.3.3That the mother do communicate with the said child by telephone between 7:00pm and 8:00pm on Tuesdays during periods of holiday contact when the said child is in the care of the husband and the wife to facilitate the same when the child is in the wife’s care.
11.3.4That both parties do facilitate the said child, when the said child is in the parties care, telephoning the other party at any other time at the request of the said child.
11.4That each party do spend time with the said child on the said child’s birthday at times to be agreed, or in default of agreement for 5 hours each if not otherwise a school day or, if on a school day, then for 2 hours each after school.
11.5That the parties use a communication book to be exchanged at the time of handover to record information relating to the care and wellbeing of the said child.
11.6That handover not occurring at the said child’s school but do take place at the S Police Station, unless otherwise agreed.
11.7That each of the parties shall do all that is necessary to assist the said child with his homework including reading regularly to the said child and engaging such further tutor for the said child, or enrolling the said child in such further courses or subjects, as the said child’s teacher may from time to time consider necessary.
11.8That both parties do ensure that the said child’s eyesight is regularly checked and that any prescription eyewear for the said child is properly maintained and updated at intervals as recommended by the said child’s eye doctor.
11.9That each party do facilitate the said child attending such extra-curricular, social or sporting activity in which the child participates whilst the said child is in that parties care.
11.10That the parties do otherwise ensure that if the said child requires medical attention, that he be taken to the same medical facility on each occasion as far as reasonably practicable.
11.11That the parties be at liberty to attend at the said child’s school or schools at any function or activity normally attended by parents and each party be at liberty to there converse with the child.
11.12That both parties be at liberty to obtain any information that they may so desire from the said child’s school or schools.
11.13That each party immediately notify the other of any medical emergency relating to the said child whilst the said child is in that parties’ care.
11.14That each party is to comply with administering any medication to the said child in accordance with medical recommendations should the said child be ill.
11.15That the mother do all that is necessary to obtain dual Australian/ Sri Lankan citizenship for the said child with the costs of such application to be paid by the mother. Other wise revert the Australian citizenship back to Australian permanent residence and provide Visa confirmation details to the husband.
11.16That each party do keep the other informed as to their current residential address and telephone number and provide details of any changes to the same in writing within 7 days of such change occurring.
11.17That each party provide the other with at least 7 days notice in advance of any interstate holiday plans for the said child, together with contact details for the said child whilst on the holiday.
11.18That the parties be restrained and an injunction do issue restraining each of them from:
11.18.1Changing or attempting to change the said child’s legal name from […] or from using or encouraging the use of any other form name for the said child;
11.18.2Denigrating the other to any third party whether or not in the presence of the child, or to permitting any other person to do so, and
11.18.3Removing the said child from the Commonwealth of Australia or allowing or permitting anyone else to do so, without the prior written consent of the other party or any order of any court of competent jurisdiction.
11.19That the appointment of the Child Representative hereby is discharged.
11.20That all matters be removed from the pending cases list.”
In relation to property settlement the husband sought the following orders:
12.1That the wife reimburse his legal costs of $566.00.
12.2That the wife pay two thirds of the debts as at separation together with interest thereon or two thirds of the debts as at the date of the hearing.
12.3That the wife return the following items of jewellery:
12.3.1“1 x Gold chain with gold pendant (semi and precious stones) M”.
12.3.2“1 x gold chain with gold cross. M”.
12.3.3“1 x gold necklace M”.
12.3.4“4 x gold bangles (2 plain, 2 Zigzag) M”.
12.3.5“1 x white gold waistband M”.
12.3.6“1 x gold ring & tie pin (My wedding ring and tie pin, gift from [the wife])”.
12.3.7“Seiko wristwatch. (Mine)”.
12.3.8“2 x gold bangles (9ct) aunt (deceased)”.
12.3.9“4 x gold bangles (9ct) Aunt (deceased) in small jewellery box”.
12.3.10“Pure silver cutlery set (my great grand mother)”.
Factual Background
The husband was born in Sri Lanka in March 1962 and is now aged 45 years.
The wife was born in Sri Lanka in October 1966 and is now aged 40 years.
The husband commenced to live in Australia in July 1990.
The husband returned to Sri Lanka and the parties married there on 30 January 1998. The marriage between the parties was arranged by the parties’ families.
In April 1998 the husband returned to Australia.
In October 1998 the husband returned to Sri Lanka for the impending birth of the parties’ child.
In November 1998 the parties’ son was born and he is now aged 8 years.
In February 1999 the husband returned to Australia.
In December 2000 the husband was granted permanent residence in Australia.
On 16 December 2000 the husband returned to Sri Lanka to apply for a spouse visa for the wife.
The wife was granted a spouse visa and in May 2001 the husband brought the wife and the child out to Australia.
The parties lived in a rented unit at P.
The husband was studying for a Bachelors degree,, and following the arrival of the wife and their son, the husband worked two jobs as a kitchen hand and a cleaner.
In Sri Lanka the wife was working but following the birth of the child the wife did not work. The wife claims the husband would not permit her to work.
In May 2002 the husband suffered an injury to his neck and shoulders whilst at work. He received Workcover before returning to work, and then on 3 February 2003 he became anxious and depressed and resumed on Workcover from 8 February 2003 until 22 March 2003 (full time) and from 24 March 2003 until 31 May 2003 (part-time).
The parties separated on 9 September 2003 when the wife left the former matrimonial home after the husband left for work, and she went to stay at a Migrant Women’s Refuge. The husband did not know where she was staying.
On 15 September 2003 the husband filed his application in the Federal Magistrates Court.
On 25 September 2003 Federal Magistrate Mead ordered that pursuant to Section 67N of the Family Law Act 1975 Centrelink provide the Registrar of the Court with information that is contained in or comes into the records of the Department about the location of the respondent and the child and that pursuant to Section 67P(1)(d) of the Family Law Act leave be granted to disclose the information provided to the Registrar to the solicitors for the applicant and to a process server to effect service. The solicitor for the applicant was restrained from divulging the information to the applicant.
On or about 29 October 2003 the wife and the child relocated to Melbourne so she could be closer to her family in Australia. However she did not inform the husband of this.
On 7 November 2003 Federal Magistrate Mead issued a recovery order in relation to the child.
In December 2003 the husband lost his night employment as a cleaner and he received a redundancy payment including leave entitlements of approximately $5,000.00.
The wife states that on or about 8 December 2003 she was informed by her sister that representatives of the Australian Federal Police had attended at her sister’s address asking for her.
On 9 December 2003 the wife contacted the Australian Federal Police.
On 22 December 2003 the wife filed her Response to Initiating Application in the Federal Magistrates Court.
On 22 December 2003 Federal Magistrate Mead ordered that the child be separately represented and that the recovery order issued on 7 November 2003 be stayed during the period of the adjournment to 9 January 2004.
The wife returned to Adelaide with the child in early January 2004.
On 9 January 2004 Federal Magistrate Mead made the following orders:
39.1That the wife ensure the child is resident in the Adelaide Metropolitan area no more than 25 kilometres from the GPO and that she be restrained and an injunction granted restraining her from changing the child’s permanent residential address.
39.2That until further order the child reside with the wife.
39.3That during the period of the adjournment the husband have contact from 10:00am to 12 noon on 21 January 2004, from 10:00am to 2:00pm on 23 January 2004, from 10:00am to 3:00pm on each of 24 and 25 January 2004, from 10:00am to 3:00pm on 31 January 2004, 1 February, 7 February, 8 February, 14 February and 15 February 2004.
39.4That the parties and the child attend Ms [R] for the purposes of the preparation of a Family Assessment.
39.5That handovers be effected on the corner of […].
On 9 February 2004, Ms R, psychologist, provided a Family Assessment Report in which she made the following recommendations:
40.1That the child continue residing with his mother in Adelaide.
40.2That the child attend regular contact with his father, continuing on a daytime basis on Saturdays and Sundays according to current arrangements ie 5 hour periods, until there is evidence before the court regarding the husband’s current mental health status.
40.3That the husband attend a parenting course to assist him in understanding young children’s developmental needs/management strategies and provide evidence of his attendance to the court. This might be accessed through a local community health service, local school, or [C Facility] or [E Centre].
40.4That in the absence of concerns regarding the husband’s mental health, contact be extended to include a weekly overnight stay eg Friday pm to Saturday 5:00pm, for a series of 4 to 6 visits.
40.5That if the child manages an overnight stay without difficulty, contact might then be extended to 2 overnight stays eg Thursday 5:00pm to Saturday 5:00pm on a weekly basis. In the alternative the child might attend for one overnight stay each weekend, in addition to a midweek visit to share a meal with his father, later extending this to an overnight stay. A review of the child’s progress is advised prior to extending overnight stays past two consecutive nights, or moving to alternate weekends.
40.6That the parents attend for individual counselling and at a later stage possibly joint counselling to address their interpersonal difficulties, specifically the issues raised by each of them during this assessment.
40.7That the parents attend for mediation to address future co-parenting responsibilities. Preferably this would include discussion between the parties regarding schooling options for the child, prior to his enrolment at school in 2004.
40.8That the wife share information regarding the child’s school progress/health status with the husband and where possible both parents attend at his school for consultations with teachers, and at any medical appointments.
On 19 February 2004 Federal Magistrate Mead ordered by consent during the period of the adjournment that the husband have contact with the child on each Saturday and Sunday from 10:00am to 3:00pm and such other contact as agreed between the parties and that handovers be effected on the corner of R Street and W Street. It was also ordered that the husband enrol in and satisfactorily complete a parenting course and provide proof of attendance, the husband provide to the parties and the Court a psychiatric report as to his current mental health status, the parties attend a conference at the Family Court with a counsellor or welfare officer to discuss the care, welfare and development of the child and use a communication book. The husband was granted liberty to attend at the child’s school, inquire as to his progress, obtain report cards and attend school activities.
On 25 March 2004 the wife obtained a Domestic Violence Restraining Order from the Adelaide Magistrates Court against the husband.
The husband completed a parenting course with Relationships Australia in April 2004.
On 25 May 2004 the husband provided the court with a psychiatric report dated 2 April 2004 regarding his current mental health status prepared by Dr Z, psychiatrist. Dr Z stated:
“As based on [the husband’s] 2003 psychiatric disturbance, [the husband’s] psychiatric diagnosis involves a differential diagnosis including an Agitated Major Depressive Disorder with psychotic symptoms or possibly a Schizo-Affective Disorder, which at the time of the March 2004 review, was in remission. It was likely that [the husband] has been left with a sensitive paranoid like predisposition which at the time of the March 2004 review did not involve any specific psychiatric illness state. Overall, since early 2003, [the husband’s] psychiatric progress has been satisfactory and on the basis of the March 2004 presentation [the husband’s] psychiatric prognosis was considered to be favourable.”
On 21 June 2004 the wife filed a Response seeking final orders.
A further order was made by consent by Federal Magistrate Mead on 23 June 2004 that until further order the husband have contact with the child on 26 and 27 June 2004 from 10:00am to 3:00pm on each day, in week one from the conclusion of school Wednesday (or 3:30pm if a non-school day) to the commencement of school Thursday (or 9:00am if a non-school day) commencing Wednesday 30 June 2004 and each alternate week thereafter, and in week two from the conclusion of school Friday (or 3:30pm if a non-school day) to 5:00pm Saturday commencing Friday 9 July 2004 and each alternate week thereafter. Any handover not taking place at the said child’s school was to occur at the W Police Station and it was ordered that the wife be at liberty to telephone the child on the first two occasions of overnight contact. The husband was ordered to ensure that any clothing provided by the wife at the commencement of contact be returned to her at the conclusion of contact. The parties were restrained by way of injunction from denigrating each other verbally or in writing. An order was made that the parties and the child attend upon Ms R for an updated Family Assessment. It was also ordered that the husband deliver up to the Registrar of the Court within 7 days the passport of the wife which includes the passport for the child, and the passport then be held by the Federal Magistrates Court or Family Court until further order. Both parties were also restrained by injunction from removing the child from Australia without the consent of the other.
In September 2004 the husband lost his daytime employment.
Ms R provided an updated Family Assessment Report on 20 October 2004 in which she made the following recommendations:
48.1The child continue to reside with the wife.
48.2That when there is evidence of the child’s behaviour being more settled, contact be increased to include an additional overnight stay over the weekend contact period i.e. between Friday and Sunday.
48.3That the husband attend counselling to address anger management issues.
48.4The parents attend co-parenting meditation to address strategies for managing the child’s current behaviour difficulties in relation to his toileting behaviour, bathing, changing his clothes etc when in his father’s care. This might be considered after the husband has attended for counselling to address anger management issues.
48.5That the husband continue to seek support with behaviour management issues via the counselling service at [C], and the wife also receive additional support with parenting strategies via her current counsellor or attending a parenting course.
48.6That the parties continue to utilise the Communication book, where they only document information in relation to the child’s daily needs, ie behaviour, sleep, eating routines, health issues or school based issues.
48.7That the wife and the child be able to visit family in Melbourne for an extended period during school holidays eg up to a week, and the husband have make up contact upon their return home.
48.8That once the child’s toileting issues have been resolved he attend contact with his father for a block of time eg 3 to 4 days during school holidays, and this might occur on several occasions during the long Christmas holiday break. This might then be increased to week about care during the school holidays in 2005, eg to commence in April.
48.9That consideration be given to the wife travelling with the child to Sri Lanka to allow them to visit his grandparents at a future time.
On 29 November 2004 it was ordered by consent by Federal Magistrate Mead that the husband have contact with the child for the 2004/2005 Christmas school holiday period from 10:00am on Friday to 10:00am on Monday each week save and except that the husband’s contact on the first weekend occur from 10:00am on Saturday until 10:00am on Tuesday, that the husband attend an anger management course and provide evidence of satisfactory completion, that the wife continue to receive support with parenting strategies via her counsellor and provide evidence of the same, that the parties use the communication book only to document information in relation to the child’s daily needs.
On 20 December 2004 the husband filed an Amended Application for Final Property Settlement Orders.
On 26 January 2005 the wife and the child became Australian Citizens. The husband did not consent to the child becoming an Australian citizen.
On 15 February 2005 the husband filed an Amended Application for both Final and Interim Parenting Orders in the Federal Magistrates Court.
On 7 March 2005 the wife filed an Amended Response and then a Further Amended Response.
On 1 April 2005 the wife completed a course on “Managing Children’s Behaviour” run by Child and Youth Health.
The husband attended a course run by Relationships Australia called “What to do about anger” and also a course on fatherhood.
On 12 April 2005 Federal Magistrate Mead ordered that the order of 23 June 2004 be varied such that the conclusion time for contact in week two be 5:00pm on Sunday. The order of 23 June 2004 was also varied such that the contact be suspended during the April 2005 holidays and the husband have contact during the holidays from 10:00am on 16 April 2005 to 5:00pm on 18 April 2005 and from 10:00am on 23 April 2005 to 5:00pm on 25 April 2005.
On 24 May 2005 Federal Magistrate Mead transferred these proceedings to the Family Court of Australia. An order was also made suspending the order for contact from 8 July to 25 July 2005 and providing for the husband to have contact from the conclusion of school on 8 July 2005 to 12 noon on 16 July 2005. An order was also made that the wife advise the husband in writing of any appointments made for the child with the psychologist and that the husband be at liberty to attend on the psychologist as arranged by him.
Ms R prepared an updated Family Assessment Report on 22 August 2005 in which she recommended that:
58.1The child continue to reside primarily with his mother.
58.2Contact continue under the current arrangements, i.e, for 4 out of 14 nights, Friday to Monday and for an overnight stay in the intervening week, with a view to extending this in the next six months to 5/14 nights. The additional night is supported in circumstances where the evidence is that the husband has demonstrated an ability to address his communication difficulties with the wife. If a 5/14 day arrangement were adopted it is suggested this consist of three nights one week (Friday afternoon to Monday morning) and two nights in the subsequent week (Wednesday afternoon to Friday morning).
58.3That the husband ensures that the child has his own bed prior to any increase in overnight stays.
58.4Handover continue to occur at school and at the Police Station during school holiday periods.
58.5Both parents be able to travel interstate with the child for school holiday periods, where advance notice is provided to the other parent and the child is able to have telephone contact with the non residential parent.
58.6The child be taught to use the telephone and has telephone contact with his father at least once per week, but preferably according to his wishes.
58.7Both parents attend at school related functions, parent/ teacher interviews, extracurricular activities, and support the development of the child’s literacy skills via assisting with homework and reading.
58.8Both parents be able to have contact with health professionals with whom the child consults, including accessing professional reports.
58.9Both parents consult with a mediator at Relationships Australia to allow them to consider the ways in which they can work together to support the child’s developmental needs in the future and support each other’s parenting role.
In July 2006 both parties consented to the Court hearing the case under Division 12A of the Family Law Act 1975.
On 11 August 2006 I ordered that the parties attend upon Ms R, psychiatrist for the purposes of an updated Family Assessment Report.
On 21 September 2006 the husband filed an Amended Application for Final Orders in which he sought orders for property settlement.
Ms R prepared a further updated Family Assessment Report on 11 October 2006 in which she concluded:
“Given that communication between the parties remains an issue of concern at this time, albeit that there were no reports of overt hostility in [the child’s] presence, the preferred arrangement in my view is to maintain the status quo. If communication was to improve to the extent that the parents can communicate amicably at least via telephone, regarding [the child’s] learning/ health needs and demonstrate increased trust in the other’s intentions and parenting approach, shared care on a week about basis is the preferred arrangement. There is a need for both parents to demonstrate respect for the other’s views, albeit that they differ on some issues, if there are to parent cooperatively.”
The current circumstances of the parties
The husband
The husband resides in P. That home provides adequate accommodation for the child when he lives with the husband.
The husband does not work and he receives a New Start allowance from Centrelink of $210.45 per week. He also receives a family tax benefit of $43.89 per week.
The husband’s financial situation is parlous. At the date of the hearing he had debts totalling $40,945.00, and by way of assets he had a 1982 motor vehicle, furniture and household effects and a superannuation entitlement from his previous employment.
The husband does not pay any child support to the wife for the child.
The wife
The wife lives in a rented property at H which provides adequate accommodation for the child.
The wife was studying at TAFE with a view to resuming her career in health sciences. She expected to qualify for registration in mid 2007. In the meantime she was receiving a parenting payment (including a family tax benefit) of $401.77 per week. She has minimal assets and no liabilities.
The child attends B School where he is in Year 3. He is progressing well but he continues to have difficulties with literacy and numeracy.
When necessary as a result of her studies, the wife leaves the child in after and before school care. The child enjoys this.
The child spends five nights each fortnight with the husband, Friday night to Sunday night in one week and Tuesday to Wednesday night in the second week. During school holidays the child spends alternate weeks with each party.
Apart from having a “lazy eye” and having to wear glasses, the child’s health is good.
The issues in dispute
Child issues
The primary dispute is whether the child will live eight nights out of every 14 with the husband or five nights as has been the case since October 2005.
In the context of this dispute the following issues have emerged:
74.1The ability of each party to properly care for the child. The parties each make allegations about the other of them in this regard. For example, the husband asserts that the wife is unable to attend to the child’s educational needs, and in particular his English and his reading. He also claims that the wife allows the child to watch inappropriate television programs, and she does not support his involvement in extra curricular activities. The wife denies these allegations.
For the wife’s part she asserts that the husband returns the child in clothes that are too small for him, and that at times the husband has not ensured that he washes his face, cleans his teeth or has a shower before returning him. The husband denies these allegations.
74.2The husband says that once the wife commences work she will have to rely on other carers to look after the child. Indeed, he points out that that has already occurred since the wife has been attending TAFE. On the other hand, the husband says that he is not able to work, and thus he is available full time to care for the child.
The wife says that there will be times when she will have to rely on other carers but that that is not an issue for the child.
74.3The husband claims that the child wants to spend equal time with his parents. The wife says that the child does not want to change the current arrangement.
74.4Each party criticised the other for failing to communicate about the child. The husband alleged that he had done all that he could and it was entirely the wife’s fault. The wife says that the husband refuses to speak with her on the telephone.
Apart from the primary issue the parties were in dispute over the following to varying degrees:
75.1The time that the child should live with each of them during the Christmas school holiday period.
75.2Whether there should be injunctions restraining the wife from changing the child’s name, and from denigrating the husband to any third party.
75.3Telephone communications with the child.
75.4Time spent with the child on his birthday.
75.5The place of handover if not at the child’s school.
The parties were initially at odds over the fact that the child was now an Australian citizen. When the wife changed her citizenship she inadvertently changed the child’s citizenship. The husband wants the child to either have dual citizenship or return to his Sri Lankan citizenship. During the trial the wife agreed that it was her responsibility to change the child’s citizenship and she would do everything that she could to achieve that. There will be a significant cost though.
The wife originally sought to be able to take the child to Sri Lanka to see her parents. The husband opposed that but in the end result the wife did not pursue this application.
Property settlement issues
There is no dispute as to what the assets and liabilities of the parties are, and there was virtually nothing said by either party as to the issues of contribution or Section 75(2) factors. Rather, the issues were simply put as follows:
78.1The husband had substantial credit card and HECS liabilities at separation and he wants the wife to assume responsibility for two thirds of these debts together with accrued interest or two thirds of the debts as they existed at trial.
78.2The husband claims that the wife took items of jewellery at separation and he wants them returned.
78.3The husband wants the wife to pay his legal costs of $566.00.
For the wife’s part she initially sought the return of her text books but in the end result she did not pursue that claim.
Although nothing was said about contributions and very little was said about Section 75(2) factors the following issues emerged from the documents and during the trial:
80.1The husband claims that the wife refused to work after the child was born, and she insisted on caring full time for the child. He says that as a result he had to continue working to support the family as well as studying. For her part though, the wife says that the husband would not allow her to work despite her wanting to do so.
80.2The husband claims that the wife was deliberately wasteful by leaving the electricity on and the hot water running. The wife denies this.
80.3The husband now claims that he cannot work, but the wife disputes this.
The principles to be applied
Child issues
In exercising its jurisdiction in relation to children the Family Court is bound by the provisions of the Family Law Act. The objects of those provisions of the Family Law Act relating to children are:
(a)to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the children; and
(b)to protect the children from physical or psychological harm; and
(c)to ensure that children receive adequate and proper parenting to help them achieve their full potential; and
(d)to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. (Section 60B(1))
The basic principles underlying those objects are that except where it would be contrary to a child’s best interests:
(a)children have the right to know and be cared for by both parents; and
(b)children have the right to spend time on a regular basis with and communicate on a regular basis with both their parents and other people significant to their care, welfare and development; and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture. (Section 60B(2))
Should parties be unable to agree about matters touching upon the welfare of a child and seek orders from the court in relation to that child, the court must in determining whether to make orders regard the best interests of the child as the paramount consideration. (Section 60CA)
Under the provisions of Section 60CC, in determining what is in the best interests of the child, the court must consider the following matters so far as they might be relevant in each particular case, that is:
Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. (Section 60CC(2))
Additional considerations
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant. (Section 60CC(3))
The court must also consider the extent to which each parent has fulfilled his or her parental responsibility and has facilitated the other parent in fulfilling his or her parental responsibilities. (Section 60CC(4))
Each of the parents of a child has parental responsibility for the child subject to any order of the court. (Section 61C)
Under the provisions of Section 61DA(1) when making a parenting order the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. However, this presumption does not apply in certain circumstances, namely if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
Further the presumption may be rebutted by evidence that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. (Section 61DA(4))
If the court is to make an order that the parents of the child are to have equal shared parental responsibility for the child the court must consider whether the child spending equal time with each of the parents would be in the best interests of the child. (Section 65DAA(1))
If the court does not make an order for the child to spend equal time with each of the parents the court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child. (Section 65DAA(2))
Property settlement issues
The provisions of Section 79 of the Family Law Act define the court's power and obligations in determining applications for property settlement. The court has a discretion to make orders altering the interests of parties in property, provided the court is satisfied that such orders are appropriate, just and equitable.
The court is obliged by the provisions of Section 79(4) of the Family Law Act to take into account the following matters:
92.1The financial and non-financial contributions made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them (sub-paragraph (a) and (b));
92.2The contribution made by a party to the marriage to the welfare of the family, including any contribution made in the capacity of homemaker or parent (sub-paragraph (c));
92.3The effect of any proposed order upon the earning capacity of either party to the marriage (sub-paragraph (d));
92.4The matters referred to in Section 75(2) so far as they are relevant (sub-paragraph (e));
92.5Any other order made under the Act affecting a party to a marriage or a child of the marriage (sub-paragraph (f));
92.6Any child support payable (sub-paragraph (g)).
Accordingly, in assessing the entitlement of each of the parties for property settlement, there is both a retrospective element relating to the contributions of each of the parties and a prospective element relating to matters referred to in Section 75(2).
According to guidelines established through a series of leading decisions, the court should determine the following matters on the evidence, that is:
94.1Firstly, the court must determine the assets, liabilities and financial resources of the parties to the marriage.
94.2Secondly, the court must consider all relevant contributions of each of the parties, and, where possible, the court should assign an entitlement of each of the parties arising as a result of those contributions.
94.3Thirdly, the court should then consider the prospective components of the claims of each of the parties arising as a result of the provisions of Section 75(2). The court should then identify what alteration, if any, should be made to the entitlement of each of the parties earlier assessed on account of contributions having regard to the relevant Section 75(2) factors.
94.4Fourthly, the court takes a step back and considers whether the proposed orders are just and equitable.
The evidence
The husband was unrepresented. He filed two affidavits of evidence in chief on 30 November 2006 and a Form 13 Financial Statement on 21 September 2006. He gave evidence and was cross examined.
The wife was represented by Ms Du Barry. She filed her affidavit of evidence in chief on 16 November 2006 and she relied on her Form 13 Financial Statement filed on 7 March 2005. She gave evidence and was cross examined.
The Independent Children’s Lawyer was represented by Mrs West. Mrs West called as her witness Ms R, psychologist. Ms R prepared four reports in this matter, namely on 9 February 2004, 18 October 2004, 22 August 2005 and 11 October 2006.
The husband was unrepresented and although he said that he had obtained legal advice, that was not always apparent in his presentation. I attempted to help him but he did not appear to take on board that assistance.
He also had the services of an interpreter but he did not need him at all. It was a waste of time and resources.
The husband filed two affidavits in support of his applications. However, these affidavits were singularly unhelpful. Both were disorganised and the annexures were impossible to follow. Not all of the annexures were included, many were annexed without explanation and some were in the Sri Lankan language. Further, both the affidavits and the annexures contained irrelevant material.
Many of the orders that the husband sought in relation to the child issues were completely unnecessary, and were correctly described by Ms R as “overkill”.
Both in his affidavits and in his oral evidence the husband clearly exaggerated and embellished his evidence, and wherever there is a conflict generally I prefer the evidence of the wife.
The wife did not require the use of an interpreter, and she gave her evidence reasonably well. I repeat that generally I prefer her evidence to that of the husband wherever there is a conflict.
Ms R was as impressive as always. She is an experienced psychologist who has had a significant presence in this jurisdiction for some time. Her reports and her oral evidence have assisted me greatly in this case. Significantly she has had the advantage of being involved with the parties and the child over time. She has seen how the child has grown and developed and how the parties have conducted themselves over a period of in excess of 2½ years.
To repeat, Ms R recommends that the status quo continue for the time being. She says that it is not in the child’s best interests for equal shared care to be introduced and there is no justification to have the child live with the husband for longer than the wife.
Section 60CC of the Family Law Act
I now turn to the factors that I must take into account in determining what is in the best interests of the child (sub-sections 60CC(2) and (3)).
The primary considerations
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents;
It is readily apparent that here the child enjoys a meaningful relationship with each parent. The question is what effect the child spending more time with the husband and less time with the wife will have on these meaningful relationships.
The phrase “meaningful relationship” is not defined in the Act, but some guidance is provided by the objects in Section 60B. One object is to ensure that the best interests of the children are met by,
“(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;” (Paragraph 60B(1)(a))
Then there are the principles underlying the objects and one such principle is that except where it is or would be contrary to a child’s best interests,
“(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);” (Paragraph 60B(2)(b))
It has been said that the objects and principles in Section 60B guide the interpretation of Section 60CC and for that matter Section 60CA. Now that may be the case, but the best interests of the child are still the paramount consideration and that is quite apparent from the wording for example of Paragraph 60B(1)(a) and Paragraph 60B(2)(b).
Paragraph 60CC(1)(a) clearly operates at the level of general principle, and is a reminder to the court of the importance of the benefits to a child of having a meaningful relationship with each parent. It requires the court to take those benefits into account but leaves the additional considerations in Section 60CC to determine whether those benefits can be achieved in each individual case consistent with the best interests of the child involved.
Here the evidence of Ms R clearly supports the maintenance of the status quo, and a significant reason for that is the primary attachment that the child has with his mother. Ms R says that at some time in the future it may be in the best interests of the child to spend more time with his father, but not yet. For now, the child enjoys meaningful relationships with both parents and there is no imperative for the child to spend more time with the husband to ensure that he enjoys the benefit of having a meaningful relationship with his father.
(b) the need to protect the child from physical of psychological harm and from being subjected to, or exposed to abuse, neglect or family violence;
Each party has raised concerns about the behaviour of the other of them in this context. The husband suggests that the wife “neglects” the child by not supervising him on one occasion when he was in a swimming pool, by exposing him to inappropriate television programs, by not attending to his English and his reading, and by not supporting his involvement in extra curricula activities.
However, the wife denies these allegations, and I accept her evidence in this regard. Thus, there is no need to protect the child from any behaviour of the wife.
For the wife’s part she alleges that the husband has been violent on one occasion and abusive on many occasions towards her, and this was witnessed by the child.
The most serious incident was when the wife says the husband put a knife to her throat when the child was about 4½ years of age. She says that in response the child picked up some scissors. The husband denies this and says that the wife had picked up a knife after an altercation and he grabbed it from her.
There was no cross examination of either party about this incident, and I am not in a position to make a finding about it either way. Ms R said that the child did not say anything about this and did not appear to be concerned about any question of physical violence between the husband and the wife. However, the child did express concern to Ms R about his father’s anger towards his mother, and it is quite apparent that he has been exposed to conflict between them. The parties are still in conflict and there is very little communication between them at the present time, although fortunately there have been no reported incidents of either violence or abuse.
The wife did obtain a Domestic Violence Restraining Order against the husband on 25 March 2004, but there was no evidence before me as to the circumstances leading to that order, and it ceased in March 2006.
In these circumstances there is no requirement to make orders to protect the child from the behaviour of the husband, but I cannot leave this topic without highlighting the issue of the ongoing conflict between the parties and their communication or lack of communication. If there was an order that I could make to protect the child from the impact of the conflict I would gladly and readily do so. However, it is a matter for the parties themselves to address and remedy. They need to change their attitudes to each other in order to protect the child from being detrimentally effected by exposure to their conflict, and by their lack of communication. I trust that once these proceedings are finalised that that can happen.
The additional considerations
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The husband seeks to rely on what he says the wishes of the child are, namely to spend more time with him. However, the only independent evidence of what the views of the child are came from Ms R. In her final report dated 11 October 2006 Ms R reported that the child “liked” the living arrangements as they were, “and did not want to have more days with his father”, but he could not give any reason for his preference.
The child was almost 8 years of age at the time of this report, and although weight should be attached to his views, it seems that they should not be determinative of the respective applications of the parties.
(b) the nature of the relationship of the child with;
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
Consistently Ms R has reported that the child enjoys a “strong positive relationship” with each parent. However, Ms R says that the child’s primary attachment remains with his mother.
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage a close and continuing relationship between the child and the other parent;
This is not a strong point for either party. Their ongoing conflict and their lack of communication has ensured that. However, on balance, I find that since the wife’s return from Melbourne she has been more pro-active than the husband in encouraging a continuing relationship with the child. Clearly she did not have this as a priority when she took off after separation without telling the husband where she was, but since then not only did the wife change her mind about pursuing an application to relocate in the interests of ensuring that the child could spend time with the husband, she has readily agreed to increase the time the child spends with the husband in recognition of the child’s need to have a close relationship with him. There have been occasions though when she still has not done all that she could, and in particular she has not always ensured that the child speaks to the husband on the telephone.
For the husband’s part I find that he has no or little appreciation of the significant role that the wife has in the child’s life or of the child’s strong attachment to her, and thus he does very little if anything to encourage the child’s relationship with her.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from;
(i) either of his parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom the child has been living;
This is an important factor in this case. To change the living arrangement such that the child spends more time with the husband than with the wife would have a significant impact on the child’s life.
Although Ms R considered that equal shared care may be appropriate at some time in the future she felt that there was no justification for the child primarily living with the husband.
In her first report dated 9 February 2004 Ms R said this:
“Regarding the impact of a change of residence/relocation, (c) on the child]; [the mother] has been his primary carer throughout his life, and his strongest emotional attachment is with her. Ongoing residence with his mother therefore remains the arrangement most supportive of his mental health.”
Then, in her final report dated 11 October 2006 Ms R said this:
“The current arrangements are supporting [the child’s] development; although it is concerning if [the mother] is not supporting [the child] in having regular telephone contact with his father. [The mother] was advised to remind [the child] to call his father at the agreed times albeit that telephone calls are brief on occasions.
[The father] was of the view that he would be more available to provide care for [the child] in the future in circumstances where his mother commenced work once completing her studies. While [the mother’s] future employment plans remain unknown, unless her employment required that [the child] be placed in alternate care for extended periods this should not be problematic. The advantages of maintaining the status quo include that [the child] is settled with his care arrangements and this was his reported preference. Advantages of extending the time that [the child] spends with his father i.e. to week about shared care include [the father’s] additional availability to support the child with his literacy development (at a time when early intervention is a priority) and extracurricular activities after school, in circumstances where his is not employed. Week about care also allows [the child] to share an equal relationship with both parents. This is not to suggest however that [the mother] is not equally capable of assisting [the child] with his learning or extracurricular activities, only that her availability to do so in the future may be dependent to an extent on her hours of employment. In psychological terms it is unlikely that [the child] will experience significant difficulties if the care arrangements were extended to week about shared care, unless the parents are unable to address their communication difficulties as related to his developmental needs. While [the child] may miss his mother initially, he is now 8 years of age and is likely to adjust with relative ease, if able to have regular telephone contact with [the mother] according to his preference. While [the father] reported in interview his preference for shared care, it is noted that his amended Application was for residence. If this refers to primary residence as opposed to shared care it suggests limited awareness of [the mother’s] significant parenting role and [the child’s] strong attachment to his mother.”
Turning to the issue of equal shared care for the moment, although that is not the order that the husband formally seeks, Ms R considers that whilst communication between the parties remains an issue of concern such an arrangement would not be in the child’s best interests. Equal shared care requires a certain level of cooperation and communication between the parents, and that is sadly lacking at the moment in this case.
However, one issue for the future which Ms R highlights in the above quote from her last report is the impact on the child of the wife working. Ms R has no difficulty with the child being placed in care whilst the wife works, but as long as it is not for extended periods. Whilst the wife has been studying she has relied on neighbours and before and after school care, and the child has enjoyed this. It has allowed him to socialise in a different environment and that has assisted his development, but I share Ms R’s concern if extended periods of alternate care are introduced. However, that is for the future and I cannot predict what the wife will need to do in this regard.
(e) the practical difficulty and expense of the child spending time with and communicating with a parent and whether that difficulty or expense will substantially effect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
This is not a relevant factor here.
(f) the capacity of;
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The wife alleges that the husband is not adequately attending to the physical needs of the child. However, I do not accept this claim and again I am able to draw on the evidence of Ms R in making this finding because of her lengthy involvement with this family. In her last report dated 11 October 2006 Ms R said this:
“While some concerns were raised in relation (to) [the child’s] daily care, ie, hygiene and management of medication, these were reported to be occasional. The impression gained was that his needs are well met within both households.”
The husband made allegations about the wife’s ability to care for the child, but in my view they are specious claims as I have already found. The wife’s capacity to attend to the physical needs of the child is not in doubt, given that she has always been his primary caregiver. Although she did have some difficulty when the child was younger in managing increased independence, she quickly overcame these difficulties.
In relation to the child’s intellectual needs, he is still having difficulties with literacy and numeracy. The husband in effect blames the wife for this suggesting that she has been unable to assist him with his English and his reading. The wife denies this and she says that she has taken the advice of the child’s teacher about how best to assist him, and she has put that into practice. In relation to her command of the English language it is telling that she did not require an interpreter in these proceedings yet the husband saw the need to arrange one for himself.
I accept the evidence of the wife and find that she has done all she can individually to improve the child’s reading and his English.
The husband says that he is working with the child to improve his reading, and I accept that he is doing that. However, Ms R suggests that a coordinated approach may be needed by the parents and the school to overcome the child’s learning difficulties. She said this in her last report dated 11 October 2006,
“There remain ongoing concerns regarding his progress with literacy, both reading and spelling despite significant support provided at school. Given that previous Guidance Assessment of his intellectual functioning indicated overall average functioning, the significant delays with spelling and reading suggest [the child] experiences a Specific Learning Difficulty which is likely compounded by his ESL background. Information from school personnel suggested the need for more home based support with literacy, which from reports both parents are attempting to provide. A co-ordinated approach to addressing [the child’s] learning difficulties is however essential if he is to overcome his literacy problems to the degree he is able. [The father’s] approach to address basic phonological awareness skills is an appropriate one given this a (sic) foundation skill of literacy. His suggestion that [the mother] follow a similar program is therefore advised, where [the child] is assisted with word attack and sound blending skills, that he can apply to both his reading and spelling. In my view it is more favourable that both parents support the development of these basic skills at home on a daily basis at this time, with a view to considering additional tutoring support a (sic) later stage if required and if they are able to finance this. This requires a commitment from the parents to work together, in consultation with [the child’s] teacher, regarding the most appropriate next step. It is important that intensive support is provided now, given [the child] will become increasingly aware of his difficulties with literacy as compared with his peers with increasing age and emotional maturity and this has the potential to impact negatively on his self esteem and attitude to his learning. He is a capable child whose strengths need to be nurtured if he is to reach his potential. Both parents impressed as eager to support [the child] and their willingness to communicate in an ongoing way bout his progress is essential.”
This of course highlights again the need for the parties to put aside their conflict and cooperate and communicate in the interests of the child. I trust that they will take on board what Ms R says in this regard.
With the child’s emotional needs, subject to what I say about both parties shortly, I find that the wife generally demonstrates the capacity to meet the same, but in one important respect the husband does not. As Ms R indicated, the husband’s claim for the child to live primarily with him reveals that he has no or little insight into the wife’s role in the child’s life and the child’s need to be with her.
There is still though the ongoing conflict between the parties and the impact of that on the child. At one stage in May 2005 the mother became concerned about the child’s behaviour and she took him to see a psychologist, Dr K. However, Dr K was of the view that his behaviour was within normal limits and that the difficulties experienced were the result of the parental conflict. I know that I am repeating myself, but it is readily apparent that the parties need to recognise that their conflict is a real problem for the child, and then to do something about it.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
No real issues were raised by either party as to the culture and traditions of their Sri Lankan backgrounds. The wife is keen to return to Sri Lanka when she can afford it to allow the child to visit with her family, and the husband is concerned that the child’s Sri Lankan citizenship is restored, or that he has dual citizenship. The wife also has relatives in Melbourne and she wants to be able to visit them with the child as often as she can. However, these matters do not directly impact on the decision that I need to make about the time the child should spend with each parent.
In terms of any relevant characteristics of the child, it seems that apart from his learning difficulties he is developing appropriately. In her last report Ms R said this:
“In summary, [the child] continues to progress well in a number of areas of his development, where he was described as experiencing positive social relationships with peers, and did not exhibit behaviour difficulties at home or school. From reports his friendship skills outside of school have also developed ie with neighbours children and the ongoing pursuit of extra curricula activities with both parents was advised to continue to support socialisation, given he is an only child and his cousins live interstate.
No concerns were noted by either parent regarding his emotional functioning, although [the child] remains reluctant to sleep alone, an issue both parents are urged to address…”
Importantly Ms R also opined in this report that the current living arrangements are supporting the child’s development.
(h) if the child is an Aboriginal child or Torres Strait Islander child;
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant factor here.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
As is to be expected, over time each parent has demonstrated positive and negative attitudes towards the child and to the responsibilities of parenthood.
In relation to the husband I highlight the following:
145.1The husband seeks an order that the child live with him for 8 nights out of every 14. However, he says that he would be happy with equal time and he is only seeking more time because he was told by the Child Support Agency that for child support purposes he needs to have the child with him for more nights than the wife to be the “principal parent”. Now, apart from the fact that that demonstrates a complete lack of appreciation of how decisions about the future care of his child should be reached, as Ms R pointed out, “it suggests limited awareness of [the mother’s] significant parenting role and [the child’s] strong attachment to his mother”.
145.2The husband has used the communications book inappropriately. I accept the wife’s evidence that he uses it to berate her and make demands about her care of the child. Indeed he conceded as much to Ms R.
145.3The husband refuses to communicate with the wife about the child other than through the communications book. The husband has written in the communications book that the wife should not contact him by telephone.
145.4When the wife attempts to telephone the husband to speak to the child, if it is not an emergency the husband hangs up the telephone. The husband denies this and alleges that the wife simply makes nuisance calls on a regular basis. I reject this evidence.
145.5The husband has not paid any child support to the wife for the child. Further, although it is apparent that he does not have much income, he has never offered to assist the wife financially in supporting the child.
145.6The husband was violent on one occasion, and angry and abusive on many occasions towards the wife during the period of their cohabitation. Apart from the impact of this on the family generally the child was exposed to this unacceptable behaviour by the husband, and the child reported concerns to Ms R about this, and particularly about the husband’s displays of anger.
145.7Ms R has identified the issue of the lack of communication between the parents as a major problem for their parenting of the child. However, the husband fails to accept any responsibility for this. He said in evidence that it is entirely the wife’s fault and that he has done all that he can. He then explained this by saying that the problem is that the wife “will not agree with him”. Unfortunately, this attitude does not fill me with any confidence that the husband will be able to put aside his feelings towards the wife and cooperate and communicate with her in the future in the interests of their child.
In relation to the wife I highlight the following:
146.1Following separation the wife went to Melbourne with the child without telling the husband where she was. As a result the child did not see his father for over four months.
146.2The husband had to institute proceedings to locate the wife and to then have her return with the child. The evidence does not satisfy me that there were valid reasons for denying the child the opportunity to spend time with his father, and particularly for that length of time, and in so doing the wife failed to appreciate the child’s need to have an ongoing relationship with his father.
146.3However, once the wife and the child returned to Adelaide, the wife demonstrated a willingness to ensure that the child enjoyed a close and loving relationship with the husband. Indeed, she changed her plans about applying to relocate to Melbourne once she came to appreciate the need for the child to spend regular and frequent time with his father. As Ms R said in her first report, “in considering these issues [the mother] is demonstrating an ability to prioritise [the child’s] needs over those of her own, and is to be commended for this level of insight”.
146.4The husband claimed that the wife does not encourage the child to telephone him. He says that she stopped the child telephoning him because he, the husband was unwilling to talk to her. The wife denies this but she did write in the communications book that she wanted to talk to him and when he agreed to do so she would allow the child to call him. Although the husband should be prepared to talk to the wife about issues affecting the child, it is not appropriate for the wife to use the child in this way. She should ensure that the child telephones his father regardless of the conflict between her and the husband.
On balance, the wife has demonstrated a more positive attitude than the husband over time, but at the risk of repeating myself again, both parties have shown little or no appreciation of the impact on the child of their ongoing conflict and failure to communicate.
(j) any family violence involving the child or a member of the child’s family;
I addressed this issue when considering the primary considerations, and I do not need to repeat what I said there.
(k) any family violence order that applies to the child or a member of the child’s family, if;
(i)the order is a final order; or
(ii) the making of the order was contested by a person;
To repeat, the wife did obtain a Domestic Violence Restraining Order against the husband on 25 March 2004, but I have no evidence before me as to the circumstances leading to that order being made, and in any event it ceased in March 2006.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
Neither party made any submission about this factor. For my part, unfortunately whatever order is made here will leave open the prospect of further litigation.
(m) any other fact or circumstance that the court thinks is relevant;
There are no other relevant facts or circumstances that need to be taken into account here.
Section 60CC(4) of the Family Law Act
As referred to above, pursuant to Section 60CC(4) of the Act the court must consider the extent to which each party has fulfilled or failed to fulfil his or her responsibilities as a parent. I have considered these important matters when addressing Paragraphs 60CC(3)(c) and (i) of the Act and there is nothing further that I need say.
Parental responsibility
Both parties consent to an order that they have equal shared parental responsibility for the child, and in my view that is certainly appropriate and in the child’s best interests.
On the basis that I will be making that order, I am required under Section 65DAA of the Act to consider in turn whether the child spending equal time with each of the parents or spending substantial and significant time with each of them would be in the best interests of the child, and is reasonably practicable, and, if either is, I am required to consider making orders accordingly.
Considering equal time first, neither parent sought that as an outcome, although the husband said in effect that he would be happy with that if it were not for his desire to be described as the “primary parent” for child support purposes. In any event, it does not matter what the parties want in this regard, I still have to consider it.
That said, I have no difficulty in finding that it is not reasonably practicable for there to be equal time (Section 65DAA(5)). More importantly, it is not in the child’s best interests at this time, and Ms R makes that perfectly clear in her evidence. The parties are unable to put aside their conflict and cooperate and communicate such that an equal shared care arrangement could work for the child. Ms R said this in her report of 11 October 2006:
“Given that communication between the parties remains an issue of concern at this time, albeit that there were no reports of overt hostility in [the child’s] presence, the preferred arrangement in my view is to maintain the status quo. If communication was to improve to the extent that the parents can communicate amicably at least via telephone, regarding [the child’s] learning/health needs and demonstrate increased trust in the other’s intentions and parenting approach, shared care on a week about basis is the preferred arrangement. There is a need for both parents to demonstrate respect for the other’s views albeit that they differ on some issues, if they are to parent co-operatively.”
However, on the basis that the current living arrangements for the child continue as I propose, that certainly satisfies the definition of substantive and significant time in sub-section 65DAA(3) of the Act. That result is not only supported by Ms R but also by the Independent Children’s Lawyer.
Conclusion on child issues
Having regard to the evidence, the submissions of the parties, and the principles relevant to my determination including the objects and principles set out in Section 60B of the Act, I have concluded that it is in the best interests of the child that he lives with the husband for a total of five nights out of every 14 nights and with the wife for the balance of the time.
I note that the current arrangement provides for the child to spend three nights in the first week and two nights in the second week with the husband. Ms R said in her evidence that it should remain that way for now, and in particular that there should not be a block of five nights with the husband. Neither party sought that, but in any event the basis of Ms R’s recommendation in that regard is that the child needs to spend regular and frequent time with the husband and not have too large a gap between the times that he does spend with him.
I also propose to frame my order on the basis that the child lives with the husband for a total of five nights and lives with the wife for the balance of the fortnight rather than as the wife sought, an order that the child live with her and spend a total of five nights with the husband. I consider that there is little practical difference between the two, but it will give the child a greater sense of both of his parents having a direct involvement in his life.
The child is happy and settled in his current environment, and there is no imperative to change it yet. There are still concerns though about his learning difficulties and he has to cope with the ongoing conflict between the parties and their lack of communication. These are not matters that would be solved by increasing the time that the child spends with the husband. They can only be solved by a joint effort on the part of the parents, and for the child’s sake I hope that the conclusion of these proceedings can be the catalyst to change in this regard.
Turning to the other issues in dispute:
162.1Christmas school holidays.
The parties are agreed that for all holidays apart from the Christmas school holiday period the child will spend alternating weeks with each party. With the Christmas school holiday period the husband seeks to have the child with him for one half of that period, but the wife wants a graduated introduction to that outcome. In other words she seeks that there be alternate weeks in 2006/2007, alternate fortnights in 2007/2008, and then blocks of one half each in 2008/2009.
Ms R considered that on the basis of her observations of the child the latter proposal was more appropriate for him. I agree, and I will make an order accordingly.
162.2Injunctions.
The husband seeks an injunction restraining the wife from changing the child’s name. However, there was no relevant evidence presented by the husband in support of such an injunction, and thus I am not prepared to make such an order.
The husband also sought an injunction restraining each party from denigrating the other to any third party whether or not in the presence of the child, and from permitting any other person to do so. Again though there was no relevant evidence presented by the husband in support of such an injunction and I am not prepared to make such an order.162.3Handovers.
The parties are in dispute as to where handovers should take place when they cannot occur at the child’s school. The husband seeks that they take place at the W Police Station and the wife wants them to take place at her residence. Ms R recommended that it be the latter given that there were no problems raised as to handovers and a police station should be used as a last resort. I agree with this recommendation.
162.4The child’s birthday.
The husband seeks an order that time spent with the child on his birthday be as agreed between the parties, but in default of agreement for five hours each if on a weekend or two hours each after school if on a school day. The wife seeks that the parent with whom the child is not living at the time spend from 2:00pm to 6:00pm with the child if on a weekend and 4:00pm to 6:00pm if on a school day. I consider that the wife’s proposal is the better one for the child. I also note that Ms R recommended that specific times be ordered.
162.5The Easter period.
The husband seeks that each Easter period be shared between the parties. The wife did not seek any specific order about this but Ms R suggested that the period should be alternated between the parties each year. Given that the wife did not seek any order about this I intend to adopt the husband’s proposal.
I consider that the orders sought by the husband in paragraphs 11.7, 11.8, 11.9, 11.10 and 11.14 above are completely unnecessary and are not supported by any evidence that the husband presented.
Property settlement
The assets, liabilities and financial resources of the parties
At the date of the marriage – 30 January 1998
The husband had the following:
Assets
Jewellery NK
Liabilities
National Australia Bank credit card $1,353.53
ANZ credit card $2,183.00Financial resources
Superannuation entitlement with ARF (as at 1/7/97) $1,876.95
There is no evidence as to what (if any) assets, liabilities or financial resources the wife had at this time. She had been working in Sri Lanka but there was no evidence as to what she did with her income.
At the date of separation – 9 September 2003
The assets and liabilities of the parties were as follows:
Assets
Furniture and households effects NK
Jewellery NK
The husband’s 1982 Ford Laser motor vehicle NK
The husband’s superannuation entitlement with ARF
(as at 30/7/03) $10,688.36Liabilities
The husband’s NAB credit card $10,658.00
The husband’s ANZ credit card $2,573.61
The husband’s Bank SA credit card $3,950.63
The husband’s HECS debt $1,833.00In relation to these assets and liabilities I make the following comments:
167.1At separation the wife and the child left the former matrimonial home taking virtually nothing with them. The husband retained his motor vehicle and the furniture and household effects in the home. To repeat though there is a dispute as to who took the jewellery, the husband alleging that the wife took it and the wife denying this. I do not believe the husband’s evidence in this regard and I find that he has retained all of the jewellery.
167.2Not long after separation, namely in December 2003 the husband was made redundant in his night time employment as a cleaner. He received a payout including annual leave of approximately $5,000.00. There was no evidence of what the husband did with this money.
At the date of the hearing
The assets and liabilities of the parties are as follows:
Assets
The husband’s furniture and household effects $4,000.00
The husband’s jewellery NK
The husband’s 1982 Ford Laser motor vehicle $400.00
The husband’s interest in property in Sri Lanka NKThe husband’s superannuation entitlement with ARF
(as at 31/12/05) $15,138.77
The wife’s savings (as at 2/10/06) $18.65
The wife’s furniture and household effects $200.00Liabilities
The husband’s NAB credit card $15,085.72
The husband’s ANZ credit card $9,064.92
The husband’s Bank SA credit card $3,834.34
The husband’s NAB “Ant” American Express card $3,188.92
The husband’s American Express card $6,641.64
The husband’s HECS debt (as at 1/6/06) $3,130.00In relation to these assets and liabilities I make the following comments:
169.1There were no valuations presented of the husband’s motor vehicle or of his furniture and household effects. However, in his Form 13 Financial Statement he deposed to their values being $400.00 and $4,000.00 respectively. The husband was not challenged as to these values and thus I propose to use the same as an admission against interest (KHADEMOLLAH and KHADEMOLLAH (2000) FLC 93-050).
169.2Similarly there was no valuation of the wife’s furniture and household effects. She deposed to having items provided to her by various charities since separation and she suggested a value of $200.00 for the same. I propose to use this figure as an admission against interest.
169.3Neither party sought to promote a two pools approach to deal with the husband’s superannuation entitlement and the non-superannuation assets. Both parties proceeded on the basis that the superannuation entitlement of the husband was part of the one property pool. In the circumstances of this case and bearing in mind the principles set down by the Full Court in COGHLAN and COGHLAN (2005) FLC 93-220, I propose to proceed on this basis.
169.4In his affidavit relating to issues of property settlement the husband annexed what he said was a “deed of gift from my mother with her life interest of the family home”, and “a document provided by [the wife’s] parents of her assets as part of marriage”. Further, in Ms R’s report dated 22 August 2005 she records the husband telling her that he had property in Sri Lanka. These matters were not pursued in oral evidence before me and they were not referred to in any of the submissions. However, I consider that I can take into account what the husband put in his affidavit and what he told Ms R as an admission against interest. With the wife though, that is not the case. In any event there is no indication of what the value of the husband’s interest in property in Sri Lanka might be given that the “deed of gift” annexed to his affidavit was in the Sri Lankan language.
169.5The wife says that the husband should be solely responsible for the credit and debit card debts and his HECS debt, but the husband seeks that the wife be responsible for two thirds of the debts as they existed at separation together with interest thereon to the date of the trial or for two thirds of the debts as they existed at the latter date.
The leading authority on the treatment of liabilities of a party continues to be the decision of Baker J in KOWALIW and KOWALIW (1981) FLC 91-092. His Honour said this at p.76,644:
“I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from the joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a)Where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets; or
(b)Where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para. (a) and (b) above having economic consequences is clearly in my view relevant under s.75(2)(o) to application for settlement of property instituted under the provisions of s.79.”
Although this statement has been approved in subsequent Full Court decisions, it has also been made clear that it does not establish a “fixed code” or “principle”, and it can be departed from where a Trial Judge considers it appropriate in the circumstances of the case (BROWNE and GREEN (1999) FLC 92-873, at pp.86,360 and 86,361).
Here the evidence does not indicate that during the marriage the husband “embarked on a course of conduct designed to reduce or minimise the effective value or worth of the matrimonial assets”, although there is a legitimate query as to whether that has been the case following separation. In other words, it is not apparent that he has made any attempt to reduce the debts when he could have, and indeed it is open to me to find that he has chosen to let the debts increase expecting that the wife would ultimately be responsible for a substantial proportion of the same, and I do so find.
As for the other limb of KOWALIW, again the evidence is unclear, but it is open for me to find that the husband has acted “recklessly” or “wantonly” in running up substantial credit/debit card liabilities. The husband has not explained on what basis he incurred these debts and what he did with the income from his employment. He controlled the finances, he paid all of the bills, he would not give the wife access to money, and he would not permit the wife to even go shopping.
In evidence the wife said that she only looked at the credit card statements on one occasion, although she used to “clip” them together and file them for the husband. Certainly there can be no doubt that the wife was not aware of the level of expenditure of the husband and nor did she consent to the same. Indeed, given the dominant attitude of the husband, even if the wife was aware of the same she could not have done anything about it.
In these circumstances I have no difficulty in finding that the husband should bear sole responsibility for the credit/debit card debts. Similarly, I find that the husband should bear the sole responsibility for the HECS debt, but on a different basis, namely it was a debt incurred by him for his own purposes including after separation and at no stage did it or has it benefited the wife or the family for that matter. The husband has not completed his studies and he still has this debt. It is completely unreasonable for the wife to be saddled with any responsibility for the same.
However, if I am wrong about there being a basis for departing from the guidelines expressed by Baker J in KOWALIW, I consider that the wife should not have to share responsibility for the liabilities equally, and in any event she should not be responsible for any increase in the liabilities after separation. My reasons for this are as follows:169.5.1The liabilities include the debts of the husband at the date of the marriage.
169.5.2The wife and child did not join the husband in Australia until May 2001, approximately 3 years after the marriage and approximately 2½ years before the separation. During those 3 years, from 1998 to 2001 the husband increased the credit card liabilities with his own expenditure in Australia.
169.5.3It was also in that 3 year period when the husband commenced his studies and incurred the greater part of his HECS liability. A third of it was then incurred after separation.
169.5.4Since the separation the husband has simply allowed the liabilities to increase. He failed to reduce them or even attempt to maintain them at the same level. He continued to use the credit cards and obtained two debit cards and the expenditure that he incurred was solely for his benefit.
However, the lack of proper evidence presented by the husband prevents me from accurately determining what share the wife should bear of the liabilities at separation on this basis. A very rough calculation taking into account the matters referred to above though might see the wife being responsible for approximately $3,000.00 of the total of $19,015.24 outstanding at separation. That calculation is as follows:
169.5.4.1Deduct the amount of $3,536.00 outstanding at the date of the marriage;
169.5.4.2Reduce the debts incurred during the period of the marriage by approximately one half to allow for the time before the wife and child came to Australia;
169.5.4.3Deduct the amount of the HECS debt;
169.5.4.4Divide the balance by half.
Contributions
I now turn my attention to the respective contributions of the parties pursuant to Section 79(4) of the Family Law Act.
Section 79(4)(a) and (b)
I have set out above the assets, liabilities and financial resources that the husband brought into the marriage. It is unclear though whether the husband had more by way of assets than liabilities or less. However, he did have an entitlement to superannuation at that time.
In relation to the wife, to repeat, there is no evidence of what she had at the start, if anything. Thus, I can only take into account the husband’s initial contributions under this heading. Of course though, in accordance with the authority of such cases as PIERCE and PIERCE (1999) FLC 92-544, these contributions must still be weighed with the contributions that were made during cohabitation and since the separation.
Following the marriage of the parties in Sri Lanka in January 1998 the husband made the following contributions:
173.1The husband returned to Australia in April 1998, he went back to Sri Lanka for the birth of the child in November 1998, he returned to Australia in February 1999, and then brought the wife and the child out to Australia in May 2001. After the birth of the child the husband required the wife to resign from her employment and insisted that she not work thereafter. She continued to live with her parents in Sri Lanka though and the husband sent her money at various times totalling $4,500.00 as a contribution to the child’s expenses. He also paid the fees associated with the wife’s Visa application and most of the cost of the air fares to Australia.
173.2The husband had employment during the period between the marriage and the separation but it is unclear from the evidence precisely when he was employed. At some stage he also had two jobs, one as a kitchen hand in the food hall at the Market, and the other as a night time cleaner. It seems that these jobs were part time because the husband was also studying. He injured his neck and shoulders at work in May 2002 and he received Workcover for a period before returning to work, but he ceased work again on 8 February 2003 and received Workcover until 22 March 2003 (full time) and from 24 March 2003 until 31 May 2003 (part time) because of anxiety and depression.
The husband produced his Notices of Assessment for the financial years between 1997/1998 and 2003/2004 save and except for his 1999/2000 notice. However, apart from the amount of money that he sent to Sri Lanka, the cost of the Visa application and most of the cost of the air fares to Australia there is no specific evidence as to what he used his income for, particularly bearing in mind the significant credit card debts that he ran up during the period of the marriage. It was not enough for the husband to simply tender copies of his credit card statements as evidence of his expenditure, and of course his claimed expenditure includes the husband’s expenditure when the wife and child were in Sri Lanka; that can only be for his own purposes.
I accept the evidence of the wife that the husband controlled the finances and he would not allow the wife direct access to any money. He did the shopping and the wife was unable to purchase items such as clothing and shoes for herself.
Therefore, in these circumstances I am not prepared to find that the husband used all of his income for the benefit of the family.
The wife’s contributions during the marriage under this heading were as follows:
174.1To repeat, the wife was required to resign from her employment in Sri Lanka following the birth of the child. As a result she was obliged to pay out her bond with the Health Service in the Sri Lankan equivalent of AU$500.00. Her mother paid this on her behalf.
Thereafter, the wife was not able to work in Sri Lanka and the husband refused to allow her to work in Australia. The husband alleged that she sold Avon products at some stage but I reject this claim.
174.2The wife of course made indirect contributions to the husband’s superannuation and to his leave entitlements accumulated as a result of his employment (BAILEY and BAILEY (1978) FLC 90-424, at p.77,145; HAUFF and HAUFF (1986) FLC 91-747, at p.75,441).
Despite my findings as to the husband’s income, overall the husband’s contributions pursuant to Section 79(4)(a) and (b) of the Act outweigh the contributions to the wife. There are the husband’s initial contributions and part at least of his income was sent to the wife in Sri Lanka and used to pay the fees associated with the wife’s Visa application and some of the costs of the air fares to bring the wife and child to Australia. In addition, some at least of his income had to be used for family purposes.
Section 79(4)(c)
There is no doubt that the wife was the primary caregiver to the child and she was the one to attend to the housework and other household duties. The husband though did the shopping as part of his total control of the finances.
On this basis I find that the wife’s contributions under this heading far outweigh the husband’s.
Post-separation contributions
Following the separation the wife has remained the primary caregiver to the child.
The wife has undertaken study with a view to returning to the work force as a health worker and she was due to complete her studies and obtain the necessary registration in mid-2007. In the meantime she has been reliant on Centrelink payments including a Family Tax Benefit.
The husband lost his night time cleaning job in December 2003, just after the separation. He received approximately $5,000.00 by way of redundancy and leave payments. However, he did not contribute any of that money to the support of either the wife or the child. Indeed, since the separation he has paid nothing to the wife and in particular he has not paid any child support.
In September 2004 he lost his day time employment, and since then he has not worked at all.
The husband provided his Notices of Assessment for the 2003/2004, 2004/2005 and 2005/2006 financial years, but again there was no evidence as to his use of his income since the separation.
The husband has continued to use his credit cards and the amount of his debt has continued to rise. Indeed, he has even obtained two credit/debit cards on which he has run up further debts. His HECS debt has also increased.
There is no evidence that the husband has made any real effort to reduce his debts or, apart from the Bank SA credit card maintain the level of debt.
The only positive contribution that the husband has made is to his superannuation. That has increased as contributions have been made through his employment and of course as interest is added. However, since he has ceased employment the amount of the fees has exceeded the interest and his entitlement has started to reduce.
In these circumstances there is no question of the wife’s contributions post-separation have exceeded the husband’s.
Conclusion on contributions
Neither party made any submissions as to what the respective contributions of the parties should be assessed at. However, I cannot ignore this issue and I find that the contributions of the parties overall should be assessed at 60%/40% in favour of the wife. Although the husband made greater initial contributions and greater financial contributions during the marriage, they are not significant given my findings about his income, and it is the wife’s contributions pursuant to Section 79(4)(c) and her contributions post-separation which carry the most weight (MALLET and MALLET (1984) FLC 91-507; and FERRARO and FERRARO (1993) FLC 92-535).
Section 75(2) of the Family Law Act
I now turn as Section 79(4)(e) of the Act dictates to the individual matters that need to be taken into account pursuant to Section 75(2). The only sub-paragraphs that are relevant here are (a), (b), (c), (f), (ha) and (na).
(a) the age and state of health of each of the parties;
The issue here is the husband’s health, and how that impacts upon his capacity for gainful employment.
To repeat, the husband suffered a soft tissue injury in May 2002 and he was on Workcover for a period of time before returning to work. He then suffered from anxiety and depression between 7 February 2003 and 31 May 2003 when he was also on Workcover, although for the last two months of that period he was only deemed to be partially disabled.
There was no evidence presented by the husband that he continues to suffer from any of these conditions either generally or specifically in relation to his capacity for gainful employment.
He lost his night time cleaning job in December 2003 because he became redundant and he lost his day time job in September 2004 because he failed to turn up to work and he failed to provide a satisfactory medical certificate.
The husband did see a psychiatrist for his mental health difficulties and he was prescribed anti-depressant medication but certainly by the time of the second report of Ms R of October 2004 his difficulties in this regard had resolved.
There is no evidence before me to indicate that the husband has any health issue either generally or specifically which would prevent him from obtaining employment.
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
The husband has not worked since he lost his job in September 2004, and at the time of the trial he was receiving a New Start Allowance from Centrelink of $210.45 per week.
The husband presented no evidence whatsoever of any attempts to find employment since September 2004, and I repeat that I have found that he has no current health issue that would prevent him from obtaining employment.
The husband has a history of employment prior to September 2004 in various occupations, and I find that he has a capacity for gainful employment but he is simply not exercising that capacity.
I note also that the husband has not even resumed his studies which he deferred at one stage. He has made no attempt to gain further qualifications with a view to obtaining employment.
To repeat, the wife was due to complete her studies and obtain the necessary registration to resume her employment as a health worker in mid-2007. However, there is no evidence of her likely income from that employment. In the meantime she was receiving Centrelink benefits of $803.54 per fortnight.
In relation to the property of the parties I have set that out in paragraph 168 above. Looking at the gross asset position there is a clear disparity between the parties but that disparity disappears if the husband’s liabilities are brought to account on his side of the ledger. I have found that that should be the case, and thus, even allowing for my findings on contributions there is no basis for taking into account any disparity in the property of the parties. For completeness, that would also be the position if the wife was responsible for some of the husband’s liabilities as they existed at separation.
There are no financial resources to be taken into account.
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
The husband of course will continue to be responsible for the care and support of the said child whilst he is living with him, but the wife will retain the primary responsibility for this and particularly given the circumstance that the husband does not pay any child support and there is no indication that that will change.
In these circumstances the primary responsibility that the wife has is a significant one. Importantly, it is not just about attending to the child’s physical and financial needs, there are also the social and moral implications of having to care for and raise a child (COLLINS and COLLINS (1990) FLC 92-149, pp.78,043 – 78,048; WATERS and JUREK (1995) FLC 92-635, pp.82,376 – 82,378).
It also must be recognised that the child is still quite young and there are many years of dependency and guidance to come.
(f) the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country;
…
The wife’s dependency on Centrelink benefits will shortly or may already have come to an end, but if the husband persists in his failure to exercise his capacity for gainful employment he will continue to receive benefits. This is important information in this case, but in my view it does not provide a basis for any adjustment to the respective entitlements of the parties to property settlement.
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;
I propose to leave the husband with the responsibility for paying his debts. They are substantial, but I have found that he is capable of obtaining gainful employment, he has some assets which he will retain including an interest in property in Sri Lanka, and he also has a superannuation entitlement. He will need to manage his finances such that he meets these liabilities and in any event I repeat that there is no basis for requiring the wife to contribute to repayment of the same.
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;
To repeat, the husband has not paid any child support since the separation and there is no prospect of him paying any in the future unless and until he decides that he is prepared to work and earn income. This is a significant factor to be taken into account here in favour of the wife. However, I must be careful not to double up given that this issue has already been taken into account to a certain extent under Section 75(2)(c).
Conclusion on Section 75(2) factors
Again, neither party made any submission about what if any adjustment should be made as a result of a consideration of any relevant Section 75(2) factors. However, again, I cannot ignore this step.
In my view there should be an adjustment in favour of the wife of 10%. The husband has the capacity to obtain gainful employment but he has failed to exercise that capacity and that then impacts on his ability to pay child support. The wife has a significant ongoing primary responsibility for the care and support of the child and there is no indication that the husband will be able to help out with any child support in the future.
Section 79(4)(d), (f) and (g)
Next, I am obliged to consider the effect of any proposed orders upon the earning capacity of either party (Section 79(4)(d)); any other order made under the Act effecting a party to the marriage or a child of the marriage (Section 79(4)(f)); and any child support under the Child Support (Assessment) Act 1989 that a party to the marriage is to provide or has provided for a child of the marriage (Section 79(4)(g)).
In relation to the first matter, the evidence does not indicate that the earning capacity of either party will be affected by the proposed orders.
In relation to the second and third matters, I have already taken them into account and there is nothing further to be addressed.
Conclusion
The gross assets of the parties should be divided 70%/30% in the wife’s favour.
Just and equitable
Pursuant to Section 79(2) of the Act the court cannot make an order unless the court is satisfied that in all the circumstances it is “just and equitable” to make the order. To assess that I need to stand back and consider the practical effect of my proposed orders (WATERS and JUREK, supra; JEL and DDF (2001) FLC 93-075; PHILLIPS and PHILLIPS (2002) FLC 93-104).
The gross asset pool comprises a monetary equivalent of $19,758.00 (to the nearest dollar). In addition, there is the husband’s jewellery and his interest in property in Sri Lanka in respect of which there are no figures that I can use.
There are then credit and debit card liabilities totalling $37,815.54 and a HECS debt of $3,130.00. I have determined that the husband should bear sole responsibility for these debts. Thus, the effect of my findings on contributions and Section 75(2) factors is that of the gross asset pool the wife is entitled to assets to the value of $13,831.00 and the husband is entitled to assets to the value of $5,927.00.
The husband currently has the benefit of assets totalling $19,539.00 calculated as follows:
Ford Laser motor vehicle $400.00
Furniture and household effects $4,000.00
Superannuation entitlement with ARF $15,139.00
Interest in property in Sri Lanka NK
Jewellery _____NK
TOTAL $19,539.00The wife currently has the benefit of assets totalling $219.00 calculated as follows:
Furniture and household effects $200.00
Bank account _$19.00
TOTAL $219.00Thus, if the parties retain these assets the husband would have to pay to the wife the sum of $13,612.00.
However, that is not the order that the wife seeks. To repeat, she seeks an order that each party retain what they have and the husband be solely responsible for the debts. Clearly this is a generous position to take, but it does have some logic. The husband cannot afford to pay the wife $13,612.00, and he cannot access his superannuation until he turns 55 years of age and has ceased work. Further, he needs to have an asset base to be able to negotiate with his creditors about his significant debts.
It must also be remembered that the husband will still have his jewellery, and his interest in property in Sri Lanka, and the $5,000.00 that he received by way of a redundancy payment in December 2003 has not been accounted for. I note that it was open to me to include that amount of $5,000.00 notionally in the asset pool, but if I did that, the husband would have had to pay the wife even more.
Frankly, the husband should breathe a sigh of relief that the wife has taken the stance that she has and it would make no difference if the wife was to be responsible for say $3,000.00 of the husband’s debts at separation. It creates a result that leaves the wife with virtually nothing. Now, whether such a result is just and equitable in the circumstances is problematic, but of course, to repeat, the husband is in no position to pay the wife anything and still be able to meet his debts. He may in fact have to go out and work. Thus, I am prepared to make the orders sought by the wife.
I certify that the preceding
219 numbered paragraphs are
a true copy of the reasons herein of the
Honourable Justice Strickland.
The 12th day of September 2007.
……………………………………….
Associate
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Jurisdiction
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Procedural Fairness
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Remedies
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