Athanastos and Athanastos
[2011] FamCA 66
•16 February 2011
FAMILY COURT OF AUSTRALIA
| ATHANASTOS & ATHANASTOS | [2011] FamCA 66 |
| FAMILY LAW – CHILDREN – With whom children spend time FAMILY LAW – PROPERTY – Where debts exceed assets |
| APPLICANT: | Ms Athanastos |
| RESPONDENT: | Mr Athanastos |
| FILE NUMBER: | SYC | 106 | of | 2007 |
| DATE DELIVERED: | 16 February 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | The Hon. Justice Cohen |
| HEARING DATE: | 21-24 December 2010 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Reeve, Marsdens Law Group |
| THE RESPONDENT: | Mr Athanastos in person |
Orders
That M born … November 2000, C born … April 2003 and J born … October 2004 shall reside with the wife.
That the wife shall have sole parental responsibly for the said children.
That the husband shall spend time with the children at the following times and only at those times unless the parents otherwise agree in writing:
(a)during school term on alternate weekends commencing on the second weekend after the start of each terms from 10am on Saturday to the commencement of school on the following Monday or Tuesday if the weekend is a long weekend; and,
(b)during the children’s Easter, winter and spring school holidays:
(i)from 10am on the first Saturday to 10am on the following Monday of such holiday period; and,
(ii)from 10am on the immediately following Thursday to 10am on the following Saturday; and,
(c)during the children’s Christmas school holidays:
(i)from 10am on the first Saturday to 10am on the following Monday; and,
(ii)from 10am on the immediately following Thursday to 10am on the following Saturday; and,
(iii)from 10am on the immediately following Tuesday to 10am on the following Thursday; and,
(iv) from 10am on the immediately following Monday to 10am on the following Wednesday; and,
(v)from Christmas Eve at 4pm to Christmas Day at 4pm in each even numbered year; and,
(vi)from Christmas Day at 4pm to Boxing Day at 4pm in each odd numbered year; and,
(vii)from 10am on the Greek Orthodox equivalent of Good Friday to 5pm on the Greek Orthodox equivalent of Easter Sunday; and
(viii)on the husband’s birthday from 10am to 5pm if it is on a non-school day and if it is on a school day from after school to 7.30pm on that day; and,
(ix)on each child’s Greek Orthodox Name Day from 10am to 5pm if it is on a non-school day and if it is on a school day from after school to 7.30pm on that day; and,
(x)from 10am to 5pm on Father’s Day.
In the event that any time the children are to spend with the father, pursuant to order 3 clashes with or overlaps any part of the time from 10am to 5pm on Mother’s day or from 10am to 5pm on the wife’s birthday when it occurs on a non-school day or from after school to 7.30pm when the wife’s birthday occurs on a school day that time with the father shall hereby be cancelled and there shall be no make up time to compensate the father and children for the lost time together.
In the event that any of the times the children are to spend with the father pursuant to order 3 are to be in part or wholly spent with him pursuant to two or more paragraphs in order 3, there shall be no make up time to compensate the father and children for loss of time together thereby resulting.
That for the purpose of implementing order 3 the father or his nominee shall collect the children and return them on each occasion when such collection or return is to be from or to the children’s school or schools and otherwise the wife or her nominee shall deliver the children to the husband’s parents’ home and collect them from it and for that purpose shall be entitled to park her car outside the husband’s parents’ home or wherever she obtains a parking space in the same street as their home or elsewhere and shall be entitled, except when delayed by circumstances beyond her control when she shall be entitled to deliver or collect the children as soon as reasonably practicable after the collection or delivery time set by the orders, to arrive at the husband’s parents home for the purpose of collection or delivery up to 30 minutes before or after the time set for such collection and delivery by these orders and the husband or his nominee shall not less than 5 minutes after the time of collection or delivery otherwise set by those orders collect the children from or deliver them to the wife.
The husband shall be entitled to speak to the children by telephone at his expense on one occasion for all three children in each three day period when they are in the wife’s immediate care for not more than 30 minutes in total for each call.
The wife shall be entitled to speak to the children by telephone at her expense on one occasion for all three children in each period when they are in the husband’s immediate care for not more than 30 minutes in total for each call.
Each parent is hereby entitled to attend all parent teacher interviews arranged by the children’s school or schools.
The wife shall forthwith inform the husband in writing of her home address and contact telephone number and any change in that address or number as well as any telephone number necessary to implement the orders herein for telephone contact between the children and husband.
The husband shall forthwith inform the wife in writing of any change in his telephone number or home address as well as any telephone number necessary to implement the orders herein for telephone contact between the children and the wife or for the purpose of performing the wife’s obligations pursuant to order 6.
That the husband and wife shall each be entitled to receive copies of all school reports, correspondence and other material ordinarily sent by the children’s school or schools to parents and both shall be entitled to obtain copies of school photographs of the children.
Each parent is hereby entitled to provide any school or schools attended by the children with a copy of these orders.
That each parent is to keep the other parent fully and promptly informed of any significant injury, medical or like condition affecting any child and shall forthwith notify the other parent of any hospital, medical, dental or other treatment by a health professional any child has had or is to receive and shall authorise the person or organisation which is to provide or has provided that treatment to give the other parent any information he or she seeks from that person or organisation.
That within one month the husband is to do all things necessary to transfer to the wife and shall transfer to the wife all his right title and interest at law and in Equity in the real property at and know as S property.
In the event that the husband fails to comply with order 15 each deputy registrar in the Sydney Registry of this Court is hereby empowered to do all things necessary to obtain compliance with the said order as attorney for the husband and is hereby appointed as the husband’s attorney for that purpose.
It is declared that neither party has any interest in any property or has any liability for any debt solely held by or in the name of or held on the sole behalf of the other party except as provided for in these orders and except for property or debts which are listed in paragraph 56(C) of the judgment herein.
IT IS NOTED that publication of this judgment under the pseudonym Athanastos & Athanastos is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER:
| MS ATHANASTOS |
Applicant
And
| MR ATHANASTOS |
Respondent
REASONS FOR JUDGMENT
These proceedings are for both parenting and property orders. The parenting orders need to be determined before the property orders can properly be decided. There are three children of the parties’ marriage, which took place in June 2000. M was born in November 2000, C in April 2003, and J in October 2004. Thus, their ages ranged from 9 years to 5 years at the time of the hearing.
The proceedings were commenced by the wife in January 2007. In her originating application she sought that the children live with her and spend time with the husband as agreed, and for there to be joint parental responsibility. The father in his response sought an order that the children “live with both the mother and father”, or alternatively as ordered by the Court, or as agreed by the parties. He too sought a joint parental responsibility order.
By the conclusion of the hearing the husband was seeking that the children spend time with him every second weekend and half the school holidays, but on weekends at times which fit in with his need for kidney dialysis, and during school holidays in blocks of one week at a time. Despite practical impossibility, he had, until only a few days before the final hearing commenced, been seeking equal parenting time orders. By that time the wife was seeking a sole parental responsibility order, and other very specific parenting orders which are:
4. That that father spend time with the children as follows or as otherwise agreed in writing:
4.1 each alternate weekend from 5.00pm Friday until 4.00pm Sunday; such time with the father to be suspended during the school holiday period. The father is to re commence spending time with the children in accordance with this order on the scheduled weekend that his time with the children would normally fall on, had it not been for the suspension of this order during the school holiday period.
4.2for the second week in all school holiday periods; commencing from 4pm on the second Saturday of the school holiday period to 4pm on the following Saturday except for the December/January school holidays where the father will spend time with the children in addition to Clause 4.3 and 4.4 for seven consecutive days from 4pm on the second Saturday of January until 4pm on the following Saturday.
4.3Alternative Christmas with the father to spend time with the children in each odd year commencing 2009 from 2.00pm Christmas Eve until 2.00pm Christmas day. In all even years commencing 2010, the children are to spend time with the mother during those times;
4.4Alternate New Year’s Eve/New Year’s Day commencing 2009 and each odd year thereafter from 5.00pm on 31st December to 5.00pm 1st January. At all other times being even years commencing 2010, the children are to spend this time with their mother.
4.5In the event that Father’s Day falls on a date that the father is not spending time with the children, then the father shall spend time with the children from 5.00pm on the Saturday prior to Father’s Day until 5.00pm on the Sunday of Father’s Day.
4.6Greek Orthodox Easter with their father each year from 10am on the Saturday to 5pm on the Sunday. Should Greek Orthodox Easter, or any other scheduled contact by the father, fall during a time that coincides with the Catholic Easter Calendar, then the father’s time with the children shall be suspended during the period.
5. The parties agree that the father’s time with the children will be suspended if the following occurs:-
5.1If mother’s day falls on a weekend when the father is spending time with the children, then the father’s time with the children will be suspended at 5.00pm on the Saturday immediately before Mother’s Day.
5.2Other times as agree by the parties or if the father is unable to collect the children as specified in these orders.
6. That the father be permitted to communicate with the children after school hours and prior to 7.30pm of an evening. In the event that the father’s call is not answered, then the parties are permitted to call one another to return that persons call.
7. That for the purpose of the father spending time with the children, the father is to collect the children from [S] Mall at the commencement of spending time with the children and the mother is to collect the children from [D] at the conclusion of the father’s time with the children.
8. Should the mother and father need to communicate with one another in relation to the children, then they are to do so via email the mother on […]@hotmail.com and the father on […]@hotmail.com or by telephone communication when urgent.
9. That the mother be permitted to communicate with the children whilst they are in their father’s care nightly between 7.00pm – 7.30pm
10. That the children, in particular [M] be permitted to carry a mobile phone with her at all times, such phone to be supplied to her by the mother and that she is unrestricted by her father or his representatives to call her mother as she feels the need to do so. This phone is not to be used by the father.
11. That if the father wishes to take the children interstate he must give the mother twenty eight (28) days notice and provide contact details, including a landline number and address of where the father and children will be residing.
Essentially the wife’s case is that it is impossible to come to any agreement with the husband, which caters for any need but his own, because he was like that while the parties lived together, is indolent, lazy, impulsive, domineering, argumentative, confrontational, self-indulgent, insensitive and unreasonable, making communication with him very difficult for the wife. He habitually seeks to resort to contentious arguments, by which he seeks to advance his needs so that very specific orders are needed. His ability to care for the children in an appropriate manner is severely restricted by his insensitivity to their needs and his kidney failure, and consequent need to be confined to bed at a hospital or at home for about nine hours on six days each week for renal dialysis and the daytime tiredness he suffers as a result of his disturbed sleep during dialysis which is done at night. The wife says she provided overwhelmingly for the children’s care before separation and afterwards, he was unreliable until late 2008, and only became more diligent with contact because he feared his child support obligations would be increased if he was not.
The husband says that he is a considerate and concerned parent, who has treated the wife fairly and has done his best to meet the children’s needs and advance their welfare and ensure the children love and have a high regard for both parents. He says the wife refuses to compromise and is unreasonable, has denied him proper access to the children, and has not been willing to discuss important issues related to their welfare with him. He says he did a lot for the children when the parties lived together, and only missed contact thereafter due to illness. As he has kidney problems, does not drive and has little income and money, he has practical difficulties in spending time with the children. In particular, as he is Greek and the wife is not, he would like to spend days of special religious significance to him, such as Greek Easter and Name Days with the children.
The wife was, at hearing, aged about thirty-seven and the husband forty-five. The wife combines homes duties with part time-work as a sales consultant. The husband is a disability pensioner who may or may not have income from business as a mortgage broker. Both parties appear to me to be of high intelligence, but with personality traits which inhibit their ability to use their intellects to their best advantage. In particular, both seem to me to lack insight and ability to empathise and to control their impulses, but the husband’s deficits in these respects are significantly more extreme than those of the wife. It is not without significance that they first met in the High Rollers Room of Star City Casino. They lived together for about two or three months in 1999 and separated for the first time in February or March 2000. Soon after this separation, the wife discovered she was pregnant so they decided to marry and recommenced living together in March 2000. They separated on 13 June 2006, and divorced in August 2007. Both have had significant problems with gambling.
The wife now lives at S with the children. The husband lives at D with his parents. He occupies a self-contained one bedroom flat on the ground floor of his parents’ two story home.
The wife says she works part-time from 9.30am to 2.30pm five days per week as a sales consultant. Her home is rented. The children live with her pursuant to interim orders made by Steele J on 30 August 2007. Those orders provide that the children live with the wife, but spend time with the father, unless otherwise agreed, each alternate weekend from 6pm on Friday to 5pm on Sunday, and for half of each school term holiday, with J’s time to be in shorter alternate periods until she turned five years, but thereafter alternating weekly. Each child was to spend one Tuesday in three during school term from after school until 7pm alone with the husband. There are special orders for Father’s Day, the husband’s birthday, Mother’s Day and the wife’s birthday, and for medical and school information to be provided to the husband. He was to collect the children for contact from S Mall, and the wife was to collect them from the husband’s home at the end of each contact period. Both parties were to attend Unifam’s “Keeping in Contact” program.
On 15 October 2007 Steele J made a telephone contact order allowing the husband to telephone the children three times each week. The wife alleges, and I accept, that the husband has at times abused these orders by attempting to use them as an opportunity to speak to and harangue the wife.
On 24th June 2008, I removed the matter from the Less Adversarial Trial list. On 22 June 2009, I changed the father’s weekday contact with a child to Mondays.
A problem with these proceedings is that the husband was unrepresented and may have failed to provide evidence which might otherwise have advanced his case. There is therefore a lack of detailed information on some aspects and there may have been a failure to adequately challenge some of the wife’s claims.
Before dealing with contentious issues, I should say something about the parties’ credit. Neither has much. However, generally I regard the wife as more likely to be telling the truth, especially about matters concerning the children, than the husband, whose credit was not only undermined by his evasiveness, trickiness, and lack of insight, but by what appears to be a lack of appreciation of reality. He seems at times to think and believe that the truth is whatever suits his needs, including the case he has attempted to make out. A good example of this is his attitude to attending the Unifam counselling which was ordered in August 2007. The husband did not attend until some time in 2009. The wife did and tried to get him to attend, and even offered to pay his fees for attendance but he, despite claiming not to be working, said he could not find the time. He claims this was because of his dependence on dialysis which he did not commence until about May 2008.
There were many occasions when his evidence was knowingly false, such as his claim that on 26 November 2006, he broke into the former matrimonial home while the wife was inside and after she had refused him entry, because he was fearful for the safety of the children. His actual reason was his wish to speak to the wife who had refused to speak to him, and refused to let him into the home.
I have little doubt that before separation the father played only a minor role in the children’s care. This does not mean that he did nothing for them. It means that the wife took the dominant role and the husband helped occasionally when it suited him. This does not mean that he was not a loving father, it is simply that he always gave priority to his own needs, wishes, and whims. When the parties separated the children remained with the wife who continued to provide by far the majority of their care.
After the August 2007 orders were made, the wife claims that the husband failed to comply with them in a manner which she says warrants the orders she is now seeking. She says these are examples of his overall behaviour in respect of these orders:
a)the husband agreed to have children in the 2007 Christmas school holidays, including on New Year’s Eve. He did not collect them and gave the wife unduly short notice that he was not going to. He said he had financial and accommodation difficulties;
b)a clause in the August 2007 order, which I do not regard as of significant importance to have referred to earlier, was that, if the father was to take the children interstate during contact, he was to give the wife a month’s notice and contact information. In late 2007, he took them without giving notice or contact details, something which worried the wife – This did not mean the children were disadvantaged by his failure. However, the failure was bound to upset the wife, as it did because she was worried, albeit unnecessarily, about the children, and increased the conflict between the husband and wife. The husband did not care about this or did not appreciate it;
c)in the July 2008 school holidays, the husband failed to return the children on the Sunday evening, kept them the next day, which was a school day, and took them to the movies. He informed the mother of the intended late return at 7pm on the Sunday – This is a relatively petty complaint by the wife, but it still shows the husband to be impetuous and irresponsible;
d)in the July 2009 school holidays, when the children were with him for six days, he would not allow the wife to speak to the children by telephone. – There was an order for telephone contact. At their ages, the father should have allowed the wife to speak to the children two or three times in the six days. He demonstrated his petulance, lack of insight into the children’s needs, and willingness to increase the conflict between the parties by his irresponsible refusal;
e)on the two week days during school term when the orders allowed him to spend afternoons and evenings with a child individually, he nearly invariably failed to spend this time with the children. – The husband says he could not collect them because of the scheduling of his dialysis and the travelling time necessary to collect them at a time which would make the contact meaningful in view of the return time for the children, their ages, and bedtimes. I regard the wife’s reliance on this as petty and tactical, and accept that the husband’s situation usually made this contact impractical after he commenced dialysis, despite the fact that in 2008, the two younger children attended long day care which only required collection by 6pm rather than 3.15pm which school attendance would require. It should be as obvious to the mother as it is to the Court that for the father to travel from the hospital to S by public transport would take a considerable amount of time, and that if contact was to end by returning each child to the wife at S Mall by 7pm, this would make it impracticable, even if the father was able to collect a child at the Kindergarten at S;
f)the father misused the communications book required to be used by the 30 August 2007 orders, to make comments and ask questions about the mother’s personal life – I do not encourage the use of a communications book. They only serve to provide parents with an excuse to avoid proper contact between them; contact which, rather than being used for preconceived tactical exchanges, involves spontaneous discussion which might set them on a path to be able to communicate as normal parents can when communication is necessary for proper parenting. To me, communications books are no different to email communications which, for the same reason, should be discouraged. If these methods of communication are the best available, they point to the need for sole parental responsibility orders; and
g)on Mother’s Day, 2007, the husband refused to return the children to the wife, claiming that it was his mother’s birthday and that it was more important – Both might have been important, but to the children at their ages Mother’s Day was obviously more important. Both were important to the adults for their self-indulgence. No orders had been made to give the wife a right to Mother’s Day contact. Nevertheless, if the husband’s priorities were properly balanced he would have regarded it as better for the children to spend a special day with their mother than to spend it with their grandmother.
The wife has also complained about a raft of other alleged failings by the husband. There are some which she says amount to a failing in his ability or willingness to communicate with her. She lists these:
a)the husband does not initiate communication and when the wife does she is virtually limited to the use of emails to which the husband usually fails to respond;
b)the husband’s messages are usually conveyed through the children, making them more involved in the dispute;
c)the husband makes demands of and threats to the wife, insisting that she uphold higher standards of communication and notice of changes than he upholds, the most common threat being not to return the children at all unless the wife agrees to changes he seeks;
d)the husband becomes irate and irrational if the wife fails to agree with his demands irrespective of their triviality;
e)the husband will not allow the wife to speak to the children while they are in his car, even to C on his birthday in 2009 – He no longer has a car, but this is both a trivial complaint by the wife and a baseless restriction by the husband.
f)that the husband will not allow the children to telephone her whenever they wish. M even resorts to communication by secret emails to get in touch with the wife when the husband is not at home. – I do not accept that the wife should encourage the children to secretly do things which are contrary to the husband’s wishes when they are his responsibility, because they are supposed to be in his care. I do not accept that the children should be able to communicate with her at will;
g)the husband does not put the children’s needs before his own wishes and convenience. While they are in his care he does not permit the children to engage in social events they would ordinarily engage in, unless they relate to his family;
h)the husband and wife often cannot agree on suitable arrangements so the wife must resort to the orders made by the Court for contact with the father; and
i)The holiday contact orders leave the dates of contact to be agreed by the parties. They cannot often agree, and lack of agreement, and therefore notice, prevents the wife from making proper plans for her holidays with the children – The solution she seeks regarding set holiday contact periods seems reasonable, in view of the husband’s problems with contact and dialysis, because those problems are likely to be the same irrespective of the time contact periods are to take place.
Other complaints the wife makes in relation to problems arise out of the husband’s alleged unwillingness to allow for practical difficulties associated with the distance the parties live apart, the husband’s lack of a car and the lack of a direct public transport route between their homes. They are:
a)because the husband has logistical and financial problems he often cancels contact;
b)public transport takes more than an hour between homes etc, which is too much travelling for the children; and,
c)when the wife is to collect the children the husband attempts to enforce restrictive time limits. She is criticised if she is early and threatened with refusal to return them if she is late.
The wife’s affidavit asserts that the children fear the husband. She did not persist with this claim at the hearing. The wife also claims the husband intimidates her. He is certainly overbearing and might intimidate some people, but it was not my impression during the hearing, including while the wife was cross examined by the husband in person, that he intimidates her.
Somewhat bizarrely, but not without justification, the wife looks to financial matters to justify refusing some of the residence orders the husband seeks which conflict with those she seeks. On the one hand, she alleges that the husband cannot afford to have their children as much as he wishes because he is an invalid pensioner. On the other, she argues that if he does, she will be disadvantaged because she will lose childcare benefits and allowances which she needs, yet she will not be able to work more because she will still need to be at home before school starts in the morning and when school ends in the afternoon on the days the children will be in her immediate care. It is also her case that the husband’s motivation for his residence claim is partly to reduce his child support liability to the wife; a liability which is less than $2.30 per child per week, and increase his child allowance and related benefits. Just as this claim by the wife leaves the Court with no alternative but to recognise that the wife’s claim is partially motivated by financial considerations, my assessment of the husband leaves no reasonable alternative but to accept that the husband’s children’s order claims are also partially driven by financial considerations.
The wife claims, and the husband admitted in oral evidence, that to some extent the children are disturbed by having to stay with him. The wife says they complain of having nightmares, wet the bed, and have more problems at school in reaction to their visits to his home. The husband admits they wet the bed. One cannot assume that this is the husband’s fault. They could be reacting to the wife’s attitude to their contact with him. I do not accept that the wife has established that it is the husband who is the cause of the problems.
I accept that all of the above complaints and claims by the wife against the husband in relation to his treatment of the children and her and his attitudes are true, except where I have specifically said otherwise. The husband is a selfish, controlling bully who only ever gives credence to his own needs and treats others as if their needs have no weight when they do not coincide with his own.
Some evidence in the financial dispute between the parties has produced a good example of this. As I have said, he pays child support of less than $2.30 per week per child to the wife, despite having them for less time than the interim orders provide. This is because he is assessed to support them on the basis of being on invalid pensioner. Yet, he has been receiving $300 per month, and until recently $400 per month, in additional income which he has fraudulently failed to disclose to the Child Support Agency. He has not filed an income tax return since 2004. He tried to conceal this from the Court by a transparent fabrication. His purpose could only have been to deprive the children of the proper level of support they were entitled to from him, and to defraud the Commonwealth. His attempt to conceal this income was based on his claims that it was the income of a company which he had controlled, rather than personal income. This company had been a mortgage broker until it was deregistered. It had had a bank account in its name into which commissions it had been entitled to were paid. These had amounted to $400 per month when in May or June 2008 the husband became a disability pensioner. Later, the commissions reduced to $300 per week.
When the company was deregistered, the husband did not alter the name of the bank account into which the commissions were paid and continue to be paid. Of course, as he owned the company and controlled it and the bank account, the commissions are now really received by him. But by maintaining the false device of keeping the company account name he asserts that the funds are not received by him. However, he has lain a second, third and fourth veneer over the first in his attempt to deceive about this income. He claims that, of the income, $125.00 per month goes to pay for storage of the company’s documents. He has not explained why the company would need to keep any documents, although I accept that he would wish to keep the documents which establish the right to continued payment of commission. Still, it would seem that $125 per month is a lot to pay. He says there is a large number of documents, but I do not accept that those he continues to need involve much of the claimed room these documents take to store. The next layer of falsity is that he is not actually paying $125 per month, he is allegedly paying $250 per month for his storage. This, he says, is because when he first commenced to use the storage he had no funds available for rent, so now must pay the arrears, also at $125 per month. This leaves $50 per month which he admittedly retains. The final coat of falsity is that he stores the company’s documents in the garage at his own home and claims, I have no doubt falsely, that he pays the $250 per month to his mother as rent to do so.
I am quite satisfied from seeing and hearing the husband, especially when he gave oral evidence, that it would impose a heavy burden on the wife to have shared parental responsibility for the children with the husband, and that the conflict arising from such an order will have an adverse effect on the children. Nevertheless, because this is a case in which the Court is confronted only with unpalatable alternatives, I shall have to choose the best of them.
Part VII of the Family Law Act is a code for determining the children’s orders which are to be made when parents cannot agree on all of the decisions necessary to raise their child properly. One must appreciate the objects of the Family Law Act in order to properly determine what parenting orders to make. Section 60B requires the Court to seek to ensure that children grow up with the benefit of both parents having a meaningful involvement in their lives so far as is consistent with their best interests and that children receive proper parenting which is adequate to help them achieve their full potential. The Court must ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. There is also a requirement to prevent physical and psychological harm and the like.
The basis for the objects of the Act are the principles that each child, unless it is in the child’s best interest to provide otherwise, ought to know and be cared for by both parents and has a right to spend time on a regular basis with, and communicate regularly with, not only both parents but others such as siblings and grandparents who are significant to them, and that parents should jointly share the duties and responsibilities of raising their children. Another principle is that children have a right to enjoy their culture. This includes the right to do so with others of the same culture. Finally, the Act imposes the principle that the parents should agree about the future parenting of their children.
Of the last mentioned principle, it is fair to say that the Court’s processes encourage agreement between parents. By the stage when a judgment is being written after a highly contested hearing where the orders the parties seek differ greatly in effect and where the parties have been critical to the point of condemnation of one another’s character, parental ability and actual parenting, there is very little agreement between the parents and little likelihood of gaining agreement despite the Court’s unremitting efforts to encourage it.
The most fundamental section of the Act is s 60CA. It provides that in deciding whether or not to make a particular parenting order in relation to a child the consideration which must be paramount in the decision to be made is that child’s best interests. This does not mean other considerations such as the needs and wishes of the parents are to be ignored, or cannot make a difference. It means that there must be very compelling circumstances for them to make a difference.
Here as the parties are in dispute over parental responsibility s 65DAA is given effect. It requires the Court to consider whether it would be in the best interest of the children and practical for them to spend equal time with each parent. If it is both, the Court is required to consider making an equal time order.
If an order for equal time is not made, the Court must consider whether it would be in the children’s best interests to spend substantial and significant time with each parent and whether such an order is reasonably practicable. If it is, the Court must consider making an order which achieves this. The Act determines the meaning of “substantial and significant time”. Orders can only achieve that if they allow the child to spend weekends, holidays, weekdays and periods when the child is not on school holidays with each parent and also allows each to be involved in the child’s daily routine and to take part in special occasions and events which are significant to the child and allow the child to take part in events which are significant to each parent.
In deciding whether it is reasonably practical to spend either equal time or substantial and significant time, the Court is required to consider the distance between the homes or proposed homes of the parents, their capacity and future capacity to implement the arrangements involved in achieving equal or substantial and significant time, the parties’ ability to communicate and resolve problems which could arise in implementing the arrangements, the impact the arrangements are likely to have on the child and any other relevant matters.
The best interests of the children are also applied in deciding what parental responsibility order to make. As I have said, there is a presumption which is rebuttable that equal shared parental responsibility best promotes a child’s welfare. Unless it is rebutted on the grounds of a child’s best interest, there must be an equal shared parental responsibility order.
Section 60CC prescribes the manner of determining what is in a child’s best interests. Before one can consider an equal time or substantial and significant time order, one must decide where the child’s best interests lie. It requires two types of consideration which the Court must undertake. There are two matters, called primary considerations in s 60CC(2), which are the most important considerations. There are 13 matters, called additional considerations, which are listed in s 60CC(3). I shall deal with the considerations required by s 60CC in the order in which they appear in that section of the Act. The primary considerations do not necessarily outweigh the additional considerations. If they did, there would be no point in providing for additional considerations.
The first primary consideration is the benefit to the children of having a meaningful relationship with both parents. I do not regard it as possible to argue, on the evidence, that they would be better off to have less than a meaningful relationship with either parent. There is no impediment in this respect with the wife, but I have a strongly held view that for the children to maintain meaningful relationships with the husband, their contact with him should be quite limited. He is exceptionally self-centred and self-indulgent. So much so that more than a little contact with him will probably turn the children against him as they grow older. The situation is exacerbated because he is limited in what he can do with the children. He has dialysis for about nine hours on six out of seven evenings and sometimes seven. There is an additional two hours preparation and decommissioning. He is confined to bed during dialysis, but cannot sleep and is so tired during the day he cannot work. He is likely to be too tired to properly care for and occupy or entertain the children too. They will find time with him a trial because of boredom due to his disability, in addition to the difficulties created by his selfishness etc.
The other primary consideration, the need to protect the children from harm caused by being exposed to or subjected to abuse, neglect and family violence, in the sense these words have in the Act does not in my opinion arise. Although I accept that in a fit of temper the husband punched a light switch, putting a hole in the wall, I do not accept that the husband will be violent to or in front of the children, or that he will be violent to the wife now that they live apart despite his impulsiveness, impetuousness, and low level of self-control.
The first additional matter which by the Act is to be considered is the views, if any, expressed by the children, and the weight to be given to these. I accept the wife’s evidence that the children have told the wife they are bored when left with the husband. I think these views should be given weight because I regard them as likely to become stronger as the children grow older, particularly because the husband’s self-indulgence and lack of insight will mean that he is likely to create boring situations for the children, without appreciating it or without paying heed to their needs in this respect.
The nature of the relationship with the parents and other significant people must be taken into account. The children are likely to be more attached to the wife because she has been their principal carer all their lives.
I do not accept they have other than good relationships with the husband, but I do not regard it as likely that they feel as close to him as the wife and, as I have said, I accept that they feel that time with him is trying. The children are likely to be attached to the husband’s mother. His mother loves them very much but is somewhat tentative and lacking confidence. She has spent much time baby sitting them, both when the parents were living together, and once they had parted when they husband should have been spending time with the children but did not because of his illness and other activities. I have been told little about the husband’s father except that he “dotes” on the children, which I accept as true. I do not know enough about the wife’s mother’s or father’s relationship with the children.
I do not find that either parent is truly committed to maintaining a close and continuing relationship between the children and the other parent. The wife seems to be more likely to make a conscious effort to undermine the children’s relationship with the husband, than the husband is to do so to the relationship between the children and the wife. The wife’s attitude is probably driven by her need to prevent the husband from dominating her. The husband may also tend to undermine the children’s relationship with the wife by failing to control his need to pry into her life through the children, or because he cannot control his impulses to say things about her which are derogatory, because they reflect his feelings. He is unlikely to engage in any planned attempt to undermine the children’s image of her. Less time with the husband or more separation from him is likely to maintain, rather than undermine, the better elements of the children’s relationship with the husband. More time with the wife will put her in a position that she will be in a much better position than the husband to make appropriate decisions for the children’s optimal development over the long term.
Practical difficulty in the children spending time with the husband is the obvious consequence of his disabilities and his failure to provide himself with a car. These have already been adequately canvassed. Because of the husband’s personality and physical limitations, as the children grow older he will have less capacity to supervise and control them. Because of his claimed lack of financial resources and income, he will have difficulty in providing properly for the children when they are with him. Because of his nature, he will not put himself out to do so, especially because he is likely to feel that he ought to spend his time to meet his own needs and whims.
Both parents are well able to meet the children’s intellectual needs, but I am quite pessimistic about the ability of each, especially the husband, to meet their emotional needs. The parties have no net assets and have substantial debts. However, the wife has some earning capacity and with expected help from her mother, will be able to meet the children’s material needs. The husband may be able to do so, but is likely to claim he cannot because he has no earning capacity and is a disability pensioner. I think he has more capacity than he admits. However, his parents are likely to ensure that he always has adequate material needs including accommodation, and therefore a suitable place to spend time with the children. I do not accept the wife’s claim that his accommodation is not suitable in the circumstances.
There is nothing about the sexes, maturity, or lifestyle of the children which might be relevant here. The husband is of Greek heritage and Greek Orthodox religion. The wife is probably from a background rooted in South Eastern Europe but, more importantly, is a Catholic. The children have been raised as Catholics, but the husband, on good grounds, wishes the children to be exposed to Greek cultural and religious activities and traditions by spending Orthodox Easter and other special times with him. It would be in their best interests for this to occur. They should be able to know, understand, and participate with a parent or grandparent in all aspects of the traditions and culture of both strands of their background for their best interests to be optimally advanced.
The wife’s attitudes to the children and to parental responsibilities is not ideal because she would like to ease the husband out of their lives to some extent, but otherwise it is good. Her attitude to the husband’s involvement with the children is not as bad as it seems per se because it is justified by the husband’s personality and character. As has been made clear already, the husband’s attitude to the responsibilities of parenthood is governed by selfishness, self-interest, self-centredness, self-indulgence and lack of insight into the children’s needs. The adverse effect on the children is increased by his disabilities and resultant restrictions, yet he loves the children.
I have referred to the only incident of family violence of significance. It did not involve the children directly, and was a long time ago. The only family violence order which has been sought was sought on 30 November 2006, as a result of the incident when the husband forced his way into the former matrimonial home while the wife was there. The application was intended to be defended by the husband but was withdrawn by the police because the wife did not wish to proceed with it.
It is nearly always preferable to make orders which are least likely to result in the institution of further children’s proceedings between the parties. I shall endeavour to do this.
There are probably many relevant facts and matters about which I have not been informed. There are none other than those I have already mentioned which are in evidence and I regard as having any likelihood of altering the conclusion I shall come to by considering them more than is necessary to decide whether or not they have sufficient weight to warrant mentioning.
An overall weighing of the facts and matters referred to leads to the conclusion that the children’s best interests will be promoted if they live with the wife and see the husband frequently, but for relatively brief periods; periods which also give them some time with the paternal grandparents and allow them to experience Greek culture and their father’s religion.
I regard the evidence as rebutting the presumption that the children’s best interests will be advanced if their parents have equal shared parental responsibility. My reason for this conclusion is that I accept that the parties will rarely if ever be able to agree on arrangements necessary to be made for the children’s long term welfare. The wife will largely have the benefit to the children in mind when she make the necessary choices. The husband will virtually always be intent on meeting his own needs, including immediate and petty whims based on no reason other than to frustrate and dominate, punish or blackmail the wife. The stress for her will undermine the quality of her parenting and the heightened conflict is likely to cause the children emotional harm.
The major reason for deciding that the children will be better off if they spend less time and shorter periods with the husband is that they are likely to be bored when spending longer periods with him because of his medical constraints and personality. He will probably only pay attention to them when they are supposed to be with him when it suits him. It is likely that if he is given longer time with them he will frequently disappoint and frustrate them by failing to collect them. When he does not fail to do so he is likely to often leave them in his mother’s care and simply do what he feels like doing without the children. He is likely to generally fail to live up to the children’s expectations until they get old enough to appreciate that he is unwilling and therefore incapable of meeting their immediate needs; especially their emotional needs and develop a psychologically unhealthy resentment of him which is likely to result in alienation from him caused by his own behaviour.
Pursuant to s 65DAA of the Family Law Act, I am required to consider specified matters because the husband has sought equal shared parental responsibility before deciding if I shall make such an order. The first consideration I must undertake is whether the children’s best interests would be met by spending equal time with each parent. They would not for the reasons already expressed. Nor is such a regime reasonably practicable. This is because the parties do not live within easy public transport of one another. As the husband has no car and would have problems delivering the children to or collecting them from their school or schools whether or not they are closer to his home than the wife’s, the wife would have to bear all or nearly all transport responsibility for both school attendance and residence changeovers. It will probably place too much of a burden upon her and is likely to increase her resentment of the husband, especially as he is likely to feel triumphant about such a situation and display it to her in no uncertain manner. He already has a history of creating problems for her at changeovers and is always likely to continue to do things which create difficulties for her, such as complain if she is early or late, even for a short time, and use alleged fault as a lever to get more of his own way, yet apply scant effort to punctuality and reliability himself in getting the children ready to go to school or to the wife’s home or being available to collect them at his. Of course, the parents’ current incapacity to communicate with each other and resolve difficulties which are bound to arise because the husband is likely to create them is likely to continue and will add to the stress on the wife and children.
I must consider making an order for the children to spend substantial and significant time with each parent because I should and shall not make an equal time order. I should make such an order in favour of the wife, because it is in the children’s best interests to do so for reasons already given. It is also reasonably practical if their school or schools are near her home.
It is not in the children’s best interests to have so much time with the husband that the orders come within the definition of “substantial and significant time” in s 65DAA(3). The husband is in no position to care for the children on school days nor is he able to be properly involved in their daily routine because of his disabilities, including tiredness and his lack of independent transport. I have already categorised the problems with practicability in considering equal time. The problems would be much the same if children were to spend substantial and significant time with the husband.
After weighing all the problems that contact between the husband and children is likely to produce, I conclude that the best compromise between reducing conflict, ensuring the children’s relationship with the husband and his parents is preserved and meaningful, ensuring the children will be able to positively experience, learn about, understand, and appreciate Greek culture and religion will be for the children to spend alternate weekends from 10am on Saturday morning to the commencement of school on the following Monday, or if it is a long weekend, 10am on Monday, and during school holidays two blocks of two days in the first week of the three short school holiday periods, one from 10am on the first Saturday of the holidays to 10am on the following Monday, the other from 10am on the following Thursday to 10am on the following Saturday and during the Christmas school holidays, a similar pattern of four blocks of two days each. Christmas Eve, Christmas Day and Boxing Day, New Years Eve and New Years Day ought to be divided equally.
Greek Easter, even if it clashes with Catholic Easter, from its eve until the following Sunday evening, the children’s Name Days and Fathers Day and the father’s birthday should also be spent with the father. The mother’s birthday and Mother’s Day should be with the mother. The children’s birthdays should be left to the exigencies of the calendar and the contact regime.
The above will allow the children to attend Greek Orthodox religious events and each parent’s church frequently if the parents choose. It will also allow the husband to arrange his usual weekly day off from dialysis to coincide with the children’s time with him if he chooses, and will give the paternal grandparents time with the children, especially while the husband is undergoing dialysis or is too tired. I have not allowed for time to permit the husband to take the children on holiday because he cannot usually leave Sydney for more than a day, because he does not have a car and cannot carry the large boxes of bags of dialysis solution and the dialysis machine which he has for personal use, by public transport and because, if he can, I think more than two days with the husband is likely to be as much as the children will be able to cope with. The husband will probably not be able to visit his married brother and his children in Melbourne in any event. This seems to have been his only reason to leave Sydney for a holiday.
The children’s birthdays should not be shared because children do not cope well with two birthday celebrations on one day. On school days sharing is impracticable. On other days it is unfair to make children leave one celebration where they are enjoying themselves and have gorged themselves on lollies and cakes in order to go to a second party. They are quite unlikely to enjoy the second party. There is another reason to avoid orders which split birthdays between the parents. To be able to enjoy the children’s birthdays on the day rather than be subjected to the uncertainties the calendar will produce, the parents will have to start agreeing, communicating and compromising their own wishes. The need to spend time with the children on their birthdays will benefit the children if it encourages cooperation between the parents.
The father or someone on his behalf should collect the children from or deliver them to school for changeover. The mother should otherwise be responsible for delivery and collection. Strict limits should be put on the ability of the husband to claim the wife is in breach of orders by being late or early and to ensure the husband collects and delivers the children on time. Telephone contact does not need to be more than once in each block of time the children are with the other parent.
The parties’ property dispute is beset by four major difficulties. The first is that I have some discomfort in accepting the values attributed to some major items of property, even where there appears to be agreement on them because the valuations are old and any agreement might have been the product of the husband’s lack of professional representation and of his ignorance. The second is the fact that there seems to be, on any valuation basis, a substantial deficit of assets over debts. The third is the lack of evidence about contributions. The fourth is the lack of credit of both parties so that what evidence there is on their respective contributions and future economic prospects is not very credible. I shall do the best I can in the circumstances.
Most items of property and debts have been the subject of an acceptable agreement on their value, or they are of such small value no purpose will be served by not accepting the best evidence of their value. The assets are:
Self managed superannuation (wife) $43,000
S property (joint) $45,000
Colonial Super (husband) $7,000
Personalty (husband) $1,300
Household furniture (wife) $5,000
Personalty (wife) $3,000
Total: $104,300
The debts are:
St. George Home Mortgages (joint) $740,000
Suncorp Mortgage (joint) $60,000
St. George Visa Card (joint) $6,000
Credit cards (6 cards)(husband) $65,017
St. George overdraft (joint) $5,000
Credit card (wife) $55,715
Loan from wife’s sister (wife) $6,000
Total: $937,732
The only significant item of property, other than those already listed, is a property at A. The only material relating to its value which is before the Court is to the effect that it is worth $660,000. It is of concern to me that the husband has agreed that this is its value although the valuation which set this figure was done in 2007, so by the time of the hearing in late 2009 it was, at least, out of date and may no longer have been valid. Nevertheless, I have no better alternative and can take some comfort in the knowledge; of which I can take judicial notice, that land values have been relatively static from 2007 to the end of 2009. I shall regard the A property, which is a vacant block wholly owned by the wife, as being worth $660,000.
In his list of assets and liabilities which is Exhibit “V”, the husband has alleged a variety of debts, 10 in all adding up to $93,344 as being owed by him to various people and organisations. These do not include the $120,000 the husband says he owes his mother. Of these, three for $37,281 in total are said to be for tax owing by corporate business entities which the husband owned and controlled. He cannot claim these as his personal debts. The companies involved have either been deregistered or are not operational, so I should not allow this part of the $93,344. This would leave the claimed additional indebtedness of the husband at $56,063. Of this, $22,229 is for legal costs of these proceedings because the husband was represented by solicitors when the matter was before Steele J. These cannot be regarded as a debt because to do so would indirectly place liability for the husband’s legal costs or part of them on the wife without applying s 117 of the Act.
If the $22,229 is deducted from $56,063, $33,834 remains. This sum consists of a debt of $15,000 which the husband claims in his balance sheet he borrowed from persons named B and L. They gave no evidence and the husband gave none about this sum other than the claim in Exhibit “V”. The husband’s claims in this respect was not challenged. I am satisfied, on balance, that the debt to B and L probably exists.
The husband is such an untruthful witness that I do not feel I can rely on his word as sufficient to establish other debts. There is one debt asserted by the husband which is irrelevant to these proceedings. It is for $338 for the balance of child support unpaid in December 2009 from his assessment of $356 for the period 1 July 2009 to 30 September 2010. As the period involving most of that debt has not yet run and liability had not accrued it should not be regarded as a debt. This $338.00 should be deducted from $33,834 leaving $33,496. Of these debts, I cannot tell whether or not the balance over the $15,000 which I accept is really owed by the husband, is claimed by him because it suits him tactically, despite the debts really being of defunct companies he once controlled. I am not satisfied those debts are his. I shall allow only $15,000 of the $33,834 he claims.
The debt of $120,000 the husband claims to owe his parents remains to be considered. He says that before the parties’ relationship commenced he had a one third interest in a property at R. He had a debt of $250,000 secured by mortgage over it. The property as a whole was worth about $700,000. He claims he transferred the interest he had in the property, plus the mortgage debt to the other owners; his two brothers, leaving him owing about $20,000. But this $20,000 was actually owed by him to his parents because the property was in his parents’ name. They were liable under the mortgage because the loan had been obtained in their names. He further says that he paid back and reborrowed what was owed of the $20,000 from his mother, but in 2005 borrowed a further $100,000 from her. These two sums have not been repaid, so according to the husband he owes his mother $120,000. In fact, he says that the debt is really a joint one with the wife because it was finally incurred while the parties lived together.
The wife’s affidavit essentially confirms the claim that the husband had a one third share of the R property. She said it was free of any mortgage and that his share was worth $350,000. But she agrees that the husband had a debt of $250,000 to his mother via a line of credit to Citibank, the bank the husband claims to have had the line of credit through his mother with. The wife confirms the husband’s name was on the mortgage. She must mean as the principal borrower with his mother as his guarantor, and that his name as borrower was removed in the 2005/2006 financial year. She says she then believed the debt had been fully repaid. She says nothing about the additional $100,000 the husband claims to have later borrowed. Nor does his mother who swore her affidavit in these proceedings on 8 August 2008.
It was drafted by the solicitor who represented the husband at the time. He is a specialist family lawyer, so it is inconceivable that he did not appreciate that the proceedings between the parties were for both children’s orders and property settlement orders. The husband’s response and financial statement had been filed by his previous solicitor on 6 March 2007. The financial statement claimed indebtedness to the husband’s parents by the parties jointly in the sum of $157,000. The inference would ordinarily be that by the time the husband’s mother swore her affidavit the debt had been discharged. This inference does not seem to me to apply here because, also on 8 August 2008, the husband swore an affidavit which was drafted by his then solicitor. It is limited to children’s orders and there is no evidence in it relating to financial matters. The solicitor appears to have been paying no attention to financial matters at the time these two affidavits were drafted.
It is likely that the solicitor was not instructed to act in the property proceedings at that time. Because the wife admits the original transactions, which created the debt to the husband’s parents and does not claim to know that it has been discharged, and I am of the view that since separation the husband has probably not had sufficient funds to discharge it, it is more probable than not that it remains unpaid, but is the debt of the husband alone.
The wife alleges she owes her mother $250,000. The wife’s mother and father are builders and developers. The wife’s mother appears to have been able to afford to lend this sum. I am satisfied she did, as the wife claims. Mainly before, but during and after separation, she made loan repayments to both St. George Bank and Macquarie Bank on behalf of the wife. She also paid school fees and doctors bills, paid for school uniforms and for food and petrol. In addition, she met some of the wife’s and the husband’s debts.
The wife’s mother has paid about $175,000 over the three and a half years since separation toward the St. George mortgages at the rate of about $1,050 per week. The wife explained in her oral evidence that for school related expenses, since separation, she owes her mother who paid them $32,000. I believe this claim. The balance of about $43,000 to make up the $250,000 was said to be from the mother’s provision of money to the wife incidentally as needed after the parties separated. I regard this part of the claim to be much more probably than not the truth. I accept that the debt of $250,000 exits, despite there being no evidence about it from the wife’s mother and no direct written evidence. I simply believe the wife’s evidence because the money for her living and debt payments and repayments had to come from somewhere and I do not regard the wife as likely to have earned the funds needed while rearing the children virtually alone.
Thus there is left for division between the parties a net debt of $558,432. It is made up in this way:
a) Wife’s sole property and indebtedness:
Superannuation 43,000
Household furniture 5,000
Personalty 3,000
Credit cards (55,715)
A property 660,000
Debt to wife’s mother (250,000)
Debt to wife’s sister (6,000)
Total $399,285
b) Husband’s sole property and indebtedness
Colonial Super 7,000
Personalty 1,300
Credit cards (65,017)
Personal debt (150,000)
Debt to husband’s mother (120,000)
Total ($191,717)
c) Joint property and indebtedness
S property 45,000
St George mortgages 740,000
Suncorp mortgage (6,000)
St. George Visa card (6,000)
St George overdraft (5,000)
Total ($766,000)
On any rational view of the situation, the parties are incurably insolvent. If, as I think is highly likely, neither the wife’s mother or sister nor the husband’s mother or friends will press for their debts, there is still $167,432 in excess of the parties’ assets which is owing. As their superannuation with a combined worth of $50,000 is not available to meet debts and the evidence which I accept is that the property at S will be unsaleable into the foreseeable future and they have personalty and furniture which cannot be used to meet debts worth $9,300, the parties will be short another $104,300, in addition to the $167,432 of liabilities to institutions in excess of the assets to pay their debts. That means they will need to find $271,732. Unless they can come up with this money, they are both likely to become bankrupt.
The question I must answer is not how to settle the parties’ property, it is how to settle the parties’ property and their debts so that they will fall in a just and equitable manner. The question is made much more difficult because I have no confidence that the husband has been candid with the Court about his true situation and I am quite uncertain about his future. In fact, he has provided the Court with virtually no financial information since his financial statement was filed on 8 August 2008, and he has gone to great lengths to prevent the wife from learning about his true situation or testing anything he says.
He has failed to comply with his obligation to produce the documents the wife’s solicitor has earnestly, patiently, and competently sought. Claiming illness, loss of memory, confusion and the volume of documents to have prevented him from producing a list of them, he used the devise of producing eighteen boxes of documents which were in a state where the wife could not afford to have them properly sorted and inspected. His excuses were in my view false and tactical. Whenever it suited him, his memory for detail and clarity of mind was exceptional and in bizarre contrast to his claims of inability. It seems to me that evasion, confusion and dissemblance have been his stock in trade for years.
He has not filed a tax return since the 2003/2004 financial year. He is a bush lawyer. He has always operated through a web of companies and business names, some of them legal sounding. He seems to use the corporate veil as it suits him, always resorting to self-devised technical legal justifications which do not withstand close analysis.
In addition, I am not satisfied that the wife has been completely candid with the Court about her income, earning activities, and her income since separation.
Both parties have had very substantial gambling problems. The wife claims that from the time the relationship commenced until the hearing, she had lost about $200,000 net and the husband $500,000 net. The husband claims she has lost much more and he has lost much less, while acknowledging that both have been problem gamblers. It is likely that they have both lost much more than they admit. Although I cannot say how much they have lost, it is likely that the husband lost more than the wife because he has probably had access to more money by way of borrowings from financial institutions by his businesses and has spent more time gambling.
I am quite satisfied that the wife has made a significant contribution as a homemaker and parent. Before separation she spent much time and effort on homemaking and parenting, and the husband did little in these areas. He spent much of his time when he was ostensibly at work, gambling. After separation most of the parenting fell upon the wife. The husband was unreliable in providing child care, and at best only saw the children on weekends.
The parties came into the relationship on unequal terms. The wife owned the property at A, which is now worth $660,000. It was, she says, then worth $370,000. I shall accept this value estimate, as well as her estimates of the value of two other properties she owned or had an interest in, at 7 and 10 P Street. Respectively, her interests in these were worth $240,000 and $110,000. She had a car and saving with a combined value of $30,000, and a sales business operated through a company which was not trading much, so had no actual value. She had debts to the Commonwealth and St. George banks secured by P Street which, combined, amounted to $380,000 and owed $45,000 on her car and credit cards. Thus, she brought a net $345,000 into the relationship, plus a business in which she had skill, training and potential.
According to the husband’s evidence, which I accept, he did not bring any interest in R property, or any associated debt into the relationship. His car was leased and he had credit card debts of about $50,000 according to the wife. I accept that this was the extent of his indebtedness. He had a business, but I cannot place a value on it because I know insufficient to do so despite the wife’s claim that the husband said it was worth in excess of $250,000. In fact, the business was in theory owned by the husband’s mother. After the marriage it was transferred to the husband.
Within weeks of commencing to live together the parties jointly purchased 2 P Street, from the wife’s brother for about $220,000. Because it was sold for an undervalue, the whole purchase price was borrowed from St. George Bank, but the A property was used as collateral security. The parties lived at 2 P Street for about six months then moved to 7 P Street. 2 P Street was sold for $260,000 about 12 months after it was purchased. The profit was used to pay the debt incurred by the parties to pay for their wedding. The parties lived at 7 P Street for about 12 months. It was then sold for $320,000. Of that, $60,000 was used to pay a debt the husband owed the purchaser. The balance of the proceeds of sale was probably used to pay a loan to the husband by his mother to the extent of about $95,000. In 2007, the wife sold her interest in 10 P Street for the debt which was owing to the bank on it.
The A property is vacant land and remains in the wife’s sole name. The wife and her mother have been making the mortgage payments on it. The wife has paid about $6,000 towards the mortgage debt, and her mother has paid the balance which has been paid since separation, it being about $175,000. It secures the $740,000 mortgage debts outstanding to the St. George Bank. The husband has not since separation made any contribution to these mortgage debts. The wife is keen to retain this land because it is surrounded by the homes of the other members of the wife’s close family. She plans to build a home on it. The evidence is, and I accept it, that the wife’s mother will continue to contribute to the mortgage if it is possible for the wife to retain the land in these proceedings in the face of her other creditors.
In about 2000 the parties purchased land at Y for $110,000. The parties borrowed the whole cost of the land and a further $150,000 so they could build a home. The home was built at cost by the mother’s mother’s building company, a saving to the parties of $70,000. The wife said, and it was not challenged that the arrangement was if the home was sold, the parties would pay the $70,000 to the company. By the time the parties separated $488,000 was owing on the loan secured by this home, because it had been refinanced more than once to meet other debts of the parties. The mortgagee sold the home on 1 March 2008 for $515,000.
The $70,000 is not claimed as a debit by the mother’s company. The husband made no mortgage payments on this home after separation. The wife kept the payments up to date until September 2007, using her income and borrowings from her family. The husband would not agree to sell the home privately when it was inevitable that if the parties did not do so the mortgagee would. She claims that the husband’s refusal to sell privately was unreasonable, which I find it was, and done to punish or harm the wife, which I think is also probably true. The husband impressed me as highly likely to engage in such behaviour. However, despite knowing that it is common for mortgagee sales of homes, which had been vacant for some time as this home had since October or November 2007, to be sold for less than they would probably be sold for by private sale, something I can take judicial notice of, I am not satisfied the home was sold for less than it would otherwise have brought. Sale value evidence was not called. The sale left the parties with a debt of $14,000 although the wife had, in February 2007, borrowed $15,000 from her mother to meet arrears on the mortgage debt. I presume the $15,000 is included in the $250,000 the wife owes the mother.
In about 2003, the parties purchased an office in the city. It cost $147,000. It was then renovated at a cost of about $60,000; not to the parties but to the wife’s mother or her company. Again, the arrangement was that on sale the cost would be reimbursed. Of the $147,000, about $131,500 was borrowed from Suncorp. By 8 November 2007 this loan exceeded $138,000. The property was sold by the mortgagee in March 2009. By then the loan was $223,000. The loan had been increased to purchase and establish a business run by a company which was run by the husband who ceased using the premises in 2007. The company was deregistered in July 2009. It is the company which the husband claimed was paying rent to his mother to store documents. Between 2007 and the sale of the city office premises they were unoccupied. The wife attempted to get the husband to agree to rent them or sell them. He refused for the same reasons as he had refused to sell the former matrimonial home at Y. I cannot say whether a higher price would have been obtained if the sale had been undertaken by the parties. I can say that by his refusal to sell earlier or rent, the husband probably committed waste. I cannot say how much.
The company run out of the city offices had been purchased jointly for $50,000 from a franchisor. It was run as a franchise. The set up costs were an additional $80,000. It was a mortgage broker. The husband soon resigned as a director because of friction between him and the principal of the franchisor. The wife had to deal with him and the husband, who still actually ran the business. Both worked in it initially, but the wife played a gradually increasing role. She also had another fulltime job. On separation, she ceased taking an active role in the business and it ceased operating. By that time the company was receiving commission of about $2,200 per month. $981 per month of this was used to meet the loan from Suncorp, $670 per week was used for the wife’s car lease, and other expenses were also paid from it. The wife wanted to continue the business but, as the husband was the shareholder in the company, he would not agree. The wife claims the husband threatened her with children’s proceedings if she entered into a new agreement with the franchisor, so she says she did not do so. I do not accept that the wife could not have continued this business, whether or not under the ownership of the company, personally or by use of another company. I do not accept that the husband committed waste by his obstructive behaviour.
The husband operated a variety of companies and other entities under the umbrella of the L Group of companies. They provided legal and financial services. The businesses were eventually sold by the husband for $30,000, but I know little else about them, especially about the husband’s earnings. He has been diligent to evade providing that information. At one stage he owned an IT company with a partner. I know no more of relevance about it, except that the wife believes it had a very substantial turnover, and that one particular transaction involved $133,000.
The parties both gambled irresponsibly, as might be expected from people who met in a casino. The wife used credit cards and business funds. She says she observed the husband betting and losing larger amounts than she was. He would carry “large amounts of cash” and when he lost that he would draw on credit cards, and often require his personal assistant to deliver cash to the casino. She saw that these deliveries sometimes exceeded $5,000 at a time. She says the cash was held by the husband’s business and came from “illegal dealings”. I do not know what is meant by that term. It may mean that he was taking cash and not declaring it for tax purposes, although he did not usually file personal tax returns and probably had the same attitude to his companies.
The wife, in 2006, realised that she needed to obtain treatment and counselling for her addiction and did so, with good results. She still has relapses when she is stressed, but has largely overcome her problem. The wife alleges the husband continues to gamble, but is also in paid employment for an aunt who has a business, for which he is paid cash to avoid tax, and does occasional work at clubs. He also receives commissions from his previous business. I accept that he is paid cash for regular employment by his aunt. I do not know how much he receives. It would not be a large amount, but should allow him to contribute more justly to the wife’s child rearing costs.
The contributions by the parties during the course of their cohabitation are likely to have been greatly in favour of the wife. She commenced by making a very substantial contribution. Although the husband’s mother frequently helped with baby sitting, this contribution on behalf of the husband was significantly outweighed by the financial contribution by the wife’s mother, and the wife herself, who is likely to have worked as hard as the husband in earning income, in addition to bearing most of the burden of childcare and homemaking. The wife’s family contributed in various ways. Her mother baby sat and cared for the children when the parties went on holidays. The family helped with planning of builders, building expertise and advice, and building management, as well as in the practical ways I have already mentioned including contributing to building their home and renovating their office, as well as with gifts of clothing and food for the parties and their children. Since separation the wife’s mother has continued to help with the care of the children and financially. The husband’s mother has helped with the children when the husband had had them in his care, usually on weekends, and has provided a home for the husband as well as the longstanding $120,000 loan. The husband has contributed virtually nothing to reduce the parties’ debts since separation. Of course, the only really substantial asset which the parties have retained is the A land. It is more probable than not that the husband wasted more by gambling than the wife wasted.
He receives the disability pension, which is about $280 per week. He alleges he has virtually no other income. I do not believe him. I do not know how much he earns in addition to his pension, but is highly likely to be more than the $12.50 per week he admits to, and is probably much more than that. Of his earnings, he pays about $6.85 per week in total for child support. He receives at least $300 per month (about $70.00 per week) in commissions. These were, until fairly recently paid at the rate of $400 per month both before and after the company which was entitled to them was deregistered in July 2009.
The wife lives with the three children in rented accommodation, and had paid about $350 per week in rent since she was required to vacate the Y home. In the 2007/2008 tax year, her taxable income was $6772 or $130 per week and in 2008/2009 it was $11,810 or $227 per week. She has provided virtually all the children’s living costs from this, and the funds she obtained from her family and her earnings in earlier years. I am satisfied she, too, has not been candid about her earnings over the years and at present. She has always carried on business as a agent or the like and has a greater earning capacity than she admits.
Currently the parties’ individual situations, assuming each is fully liable for the whole sum owing where a debt is joint, are that the husband’s debt exceeds his assets by $957,717. All but $135,000 of his debts will probably be the subject of attempted enforcement. The reality is, so far as I can tell, that he has no assets which can be reached by his creditors, other than the S property. It is probably not currently saleable for more than $5,000 - $15,000 on my understanding of the evidence. His situation is not likely to change because he will continue to conceal any income in excess of his disability pension as well as any assets he accumulates or already has in addition to his superannuation, his personalty, and his share in S property.
The wife’s situation is that her non-family creditors will look to her for payment of her debts and the joint debts. If they do, she will not necessarily become bankrupt because, without her debts to her family, she owes only $110,715 more than her assets i.e. $509,996 altogether if $45,000 is raised for S property. Her mother says she will pay her creditors so she can keep the A property. As little, if anything, is likely to be obtained for the S property because it is really unsaleable, one must regard the wife as being likely to be subjected to claims from creditors, other than family members, of up to $555,000 in addition to the value of the A property. It is doubtful that the wife’s mother will pay that much more than its value to keep A property.
In all the circumstances, there is no point at all in attributing any proportionate contribution to the parties’ property because there is no point in dividing it by proportionate contribution. To do so would be unjust because no matter what the division would be, the husband will contribute nothing but his practically worthless interest in S property. All I can do is record that the wife’s contribution to current assets has been much greater than that of the husband, and the waste she has committed has probably been much less. The figures are not available to me which would allow me to assess a proportionate contribution.
The wife works for herself part time as a sole trader, presumably as a sales agent and/or advisor. She relies, and has relied for the prior two years, on a single parent payment of a little more than $6,000 per year. Her declared earnings making up her taxable income of $11,810 must have been only a little more than $5,500 per annum above her tax deductable expenses. She drives a borrowed car, pays $350 per week rent, and has living expenses, not including tax or mortgage payments, of about $960 per week. She is still probably living with the help of her family but not with as much help as she would have me believe. She will, pursuant to the children’s orders, continue to bear the major part of child care with virtually no contribution to its cost from the husband. She only works during school hours and wishes to continue doing this. She has applied to commence a business course at university. It will be a long time before she can earn enough to support the children and live at a standard reasonably commensurate to her overall life situation despite my belief that she earns more than she admits. Her obligation and wish to care for the children will severely restrict her earnings.
In my assessment, justice requires that the husband share a greater burden of the parties’ debts than the present situation will allow. The only realistic thing the Court can do to create a more just and equitable situation is order the transfer to her of the husband’s interest in the S land, in the hope that one day the adjourning owner will buy it from her at a reasonable price, if it is not taken from her by a bankruptcy trustee. The latter is highly likely. Then it will reduce her bankruptcy debt.
The husband is quite disabled but not to the degree he claims. I do not accept that he does not sleep at night because of the dialysis machine, although I believe it does disturb his sleep, and that his diabetic illness causes a degree of day time tiredness. I think he earns more than he says but, more importantly, has an even higher earning capacity because of his expertise in business, long experience and very strong intellect. His personality and disabilities must inhibit his earnings and earning capacity, but he still has the capacity to conduct a business for, say, four hours each day, and earn more than enough to make it worthwhile. He will not do this unless he can hide his income because of the risk that what he earns will end up in the wife’s, the creditors’ or the Tax Commissioner’s hands. His child care obligations will not adversely affect his earning capacity. He is unlikely to pay more child support than his current assessment requires.
Both parties have considerable paid and unpaid legal costs. Those of the wife are likely to be much greater than those of the husband because she was represented and he was not when the matter was before me.
The husband was born in mid 1964, so was at the time of the hearing about forty-five and a half years of age. Notwithstanding what has been said above, he is unlikely to retain a working capacity for more than about ten more years because of his illness and refusal to accept that he must take insulin by injection. The wife was born in 1972, so at the hearing was a little more than thirty-seven years old. She will be inhibited from working longer hours because of childcare until J is about twelve or thirteen years of age; that is, for eight or nine years after the date of the hearing. After that, she will probably have a much better earning capacity for about twelve years. There is no suggestion that she is other than in good health.
I have no real idea of the cost of the husband’s upkeep. He is likely to continue living with his mother, and is likely to be given his board and lodging at no cost. There are no other matters which can be considered pursuant to s 79(4)(e) and s 75(2) of the Act which have not been considered already and which could make any difference to the orders which should be made in the circumstances.
The husband asks for some orders which are no longer applicable. Otherwise, he asks for $50,000 to be paid to him by the wife, that she transfer her interests in the two companies to him, and he, in return, indemnify her for liability arising from her involvement in these companies except for liability resulting from her personal conduct and dealings with these companies, except that the wife should discharge any liability of these companies created by the wife from 1 January 2005. In addition, he asks for something which I regard as an abuse of process in view of his conduct. He asks that the wife provide the husband with an account of her conduct and management of these companies from 1 July 2003 to date, which includes a record of all outgoing income and capital transactions. Of course, he knows she cannot do this because he had failed to provide the records needed in a proper order, despite the wife’s solicitor’s efforts to gain access to them. To provide eighteen boxes of unsorted records was calculated to embarrass the wife and her solicitor, and to force the wife to incur unnecessary costs. It was not a proper response to the solicitor’s efforts to gain access to the records held by the husband.
If the Court was to make orders for the wife to indemnify the husband for anything like he asks, he would be bound to then claim such indemnity irrespective of his chances of success. Yet he will never indemnify the wife for anything. He will always have all his assets out of her reach. On compliance with the orders favouring the husband, which he sought, he asked that S property be transferred to the wife.
The wife’s case is that her contributions exceeded those of the husband because she owned the A property at the outset, received no significant child support post separation, and has maintained the mortgages and benefited the financial situation of the parties as a result of the moneys her mother provided, notwithstanding that these were largely by way of loan. It is an interest free loan. The husband’s loan from his mother, also without interest, and her provision of a home and board set this off very roughly to the extent that twelve is a proportion of twenty-five.
The wife says that her contributions amounts to 70% of the contributions made, and that there should be a further adjustment of 10% in her favour pursuant to s 75(2). She asks to have the husband’s interest in S property transferred to her and that no other orders be made. I do not know how to do so would represent an 80/20 division of property when the debts greatly exceed the assets. Possibly the debts could be transferred to the husband so that he holds 80% of them above the value of his assets.
The effect of the wife’s mother’s intention to discharge mortgages sufficiently to permit the wife to retain the A property is of interest. I do not know how it could be done in a rational fashion. That property secures the St. George loan of $740,000 in circumstances where the property is not worth that, is in the wife’s sole name, and the wife has debts, other than to her family of $55,715 and $71,000 (joint), and a currently unsaleable piece of land (S property) if the husband’s share is transferred to her. It may be that the wife’s mother could purchase the A property, leaving the wife to face bankruptcy. To avoid bankruptcy, she would need to pay $866,715 for land worth $660,000, unless the wife with her backing, can come to an arrangement with the mortgagee and the other creditors. It is likely to be more practical for the wife’s mother to seek to purchase the land when it is sold by the mortgagee. Nevertheless, I do not regard it as a matter of relevance that the wife’s mother might do something to keep the A land for the wife. She is not bound to do this, and may decide to simply purchase another home for the wife and children, or may not be permitted to do as she hopes because the creditors will not cooperate. She is quite restricted in what she can do with the wife’s cooperation, because of the prospect of the wife’s bankruptcy and the doctrine of relation back.
Justice and equity here are subject to the practicalities of the overall situation. The husband will contribute little or nothing to the indebtedness unless he keeps his share in S property. Then the contribution from it will be small or virtually nothing. Anything of substance the creditors will receive will come from the property the wife brought into the relationship. There is no reason why its ownership should be shifted from the wife in the meantime. In the long term, the wife is highly likely to bear most of the cost of discharging debts and providing for the children. The husband will only pay nominal child support, but will bear the cost of caring for the children while they are in his immediate care. It might have been just and equitable because of the inequality of the costs to the respective parents and child care, notwithstanding the realistic possibility that the wife will earn more than the husband in the future, to transfer some of the joint indebtedness to the husband, but to do so would be in vain. Such an order would not affect the creditor’s rights to look to the wife for payment. An order that the husband indemnify her is likely to be useless.
If the S land is regarded as having its full agreed value, the husband’s current share is worth $22,500. Assuming the wife will have to care for the three children for about nine, twelve and thirteen years from the date of hearing; thirty-five child years, if his share in S property is transferred to her it would compensate her, if it really does amount to any compensation in view of the parties’ indebtedness, at the rate of $642 per child per year or $12.36 per child per week, in addition to child support. ((22,500 ÷ 35) ÷ 52). This is the best I can compensate the wife for her much greater contribution to the parties’ assets, for the continuing cost of caring for the children, and for the effort she must make and the undermining of her earning capacity parenting will impose on her above the effect of these aspects of life on the husband and his lesser future earning capacity. An order for transfer of the husband’s interest in S property to the wife is the only order I can make to approach and therefore bring about a just and equitable result, so I should and shall make such an order and otherwise leave the parties in the position they are currently in.
I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen delivered on 16 February 2011.
Associate:
Date: 16 February 2011
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Family Law
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Property Law
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