B and B
[2002] FMCAfam 289
•13 September 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| B & B | [2002] FMCAfam 289 |
| CHILDREN – Specific issues – contact – property settlement – principles to be applied. Family Law Act 1975 – ss.60B(1), 60B(2), 65E, 68F, 68F(2), 75(2), 79(4) Marriage of Ferraro 16 Fam LR 1 |
| Applicant: | K A B |
| Respondent: | K M B |
| File No: | (P)DNM2576 of 2001 |
| Delivered on: | 13 September 2002 |
| Delivered at: | Darwin |
| Hearing Date: | 30 August 2002 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Ms R Davis |
| Solicitors for the Applicant: | Davis Norman |
| Respondent: | In Person |
ORDERS
(1)That all previous parenting orders in respect of the children of the marriage J A B born 23 November 1995, E E B born 22 July 1997 and A M B born 28 August 1999 be discharged.
(2)That the husband and wife retain responsibility for the long term care, welfare and development of J, E and A.
(3)That J, E and A live with the wife and she be responsible for their day to day care, welfare and development.
(4)That the husband have contact have contact with J, E and A as follows:
(i)During school terms on each alternate weekend from 6.00pm Friday until 6.00pm the following Sunday and in the other week from after school on Tuesday until the commencement of school the following Wednesday.
(ii)For three weeks during the Christmas school holiday period, for two weeks during the mid year school holiday period and for one week either in the first or third semester school holiday of each year.
(iii)That in the event that Father’s Day falls on a non contact weekend, the husband shall have contact on that weekend in lieu of the following weekend.
(iv)That in the event that Mother’s Day falls on a contact weekend, the husband shall have contact on the following weekend in lieu of that weekend.
(v)For a period of two hours on each of the children’s birthdays.
(vi)At other times as the parties may mutually agree from time to time.
(5)That on or before the 28th of October 2002 the wife pay to the husband the sum of $12,500.00.
(6)That upon the payment referred to in order 5 hereof the husband do all such acts and things and sign all documents as may be required to transfer to the wife at her expense all of his right, title and interest in the real property known as and situate at 5
V Court, Tiwi in the Northern Territory of Australia.(7)That upon the payment referred to in order 5 hereof the wife do all such acts and things and sign all documents as may be required to transfer to the husband at his expense all of her right, title and interest in the real property known as and situate at Unit 2/54 S Road, Millner.
(8)That contemporaneous with the transfers as referred to in order 6 and 7 hereof that both the husband and wife do all acts and things necessary to discharge the Memoranda of Mortgages and the loans associated with those mortgages in respect of both the properties situated at 5 V Court, Tiwi and Unit 2/54 S Road, Millner.
(9)The wife shall indemnify the husband and keep him forever indemnified against all payments and liability pursuant to the property situated at 5 V Court, Tiwi.
(10)The husband shall indemnify the wife and keep him forever indemnified against all payments and liability pursuant to the property situated at Unit 2/54 S Road, Millner.
(11)That in the event that the husband is unable to comply with order 5 hereof the parties shall sign all documents and writing and do all things necessary to place the property known as and situate at 2/54 S Road, Millner on the open market for sale at a price to be determined by the parties and in default of agreement as determined by a person nominated by the President of the Real Estate Institute of the Northern Territory for the time being and following such sale the proceeds be distributed as follows:
(i)Firstly to pay the costs and commission of sale;
(ii)Secondly to pay the amount required to discharge the mortgage registered on the titles on the properties situated at 5 V Court, Tiwi and 2/54 S Road, Millner in favour of the ANZ Bank.
(12)That upon the sale of the property known as and situate at
2/54 S Road, Millner the proceeds of sale or in the event that there is a loss in respect of the sale after the payment of sale expenses and the discharge of the relevant mortgages that loss be added to or deducted from the sum of $181,900.00 and the wife pay to the husband a sum equal to 15% of that sum less the sum of $5,000.00 within 21 days of the settlement of the sale of the property known as and situate at 2/54 S Road, Millner.(13)That unless specified in these orders:
(a)Each property be solely entitled to the exclusion of the other to all property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in possession of the person whose name appears on the banks records thereof; insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions of payment out of such entitlements; and the chattels in the real property situated at 5 V Court, Tiwi are deemed to be in the possession of the wife and the chattels in the real property situated at
2/54 S Road, Millner are deemed to be in the possession of the husband;(b)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
(14)That all extent applications be otherwise dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
(P)DNM2576 of 2001
| K A B |
Applicant
And
| K M B |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to these proceedings are K M B (“the husband”) and K A B (“the wife”). The parties seek a determination as to the division of matrimonial property. They also seek orders in respect of parenting arrangements in respect of their three children J A B born 23 November 1995, E E B born 22 July 1997 and A M B born 28 August 1999. The issues in respect of the parenting arrangements for the children are in small compass. It has been agreed between the parties that the children should live primarily with the wife. The issues in dispute between the parties relate to the extent of contact between the husband and the children concerned.
The wife commenced these proceedings by way of a form 3 application filed on the 23rd of November 2001. In a minute of orders that was filed on her behalf shortly prior to the commencement of the hearing before me the wife indicates that she seeks the following orders:
1)That the children J A B born 23 November 1995, E E B born 22 July 1997 and A M B born 28 August 1999 reside with the wife and that the wife have responsibility for their day to day care, welfare and development.
2)That the husband have contact with the children as follows:
a)Each alternate weekend, from Friday 6.00pm to Sunday 6.00pm;
b)Reasonable contact on the children’s birthdays, father’s birthday, father’s day and other important family days;
c)Contact during school holidays at times to be agreed;
d)Further/other contact as may be agreed between the parties from time to time.
3)That the husband transfer to the wife all of his right, title and interest in the property situated at 5 V Court, Tiwi in the Northern Territory of Australia.
4)That the wife transfer to the husband all of her right, title and interest in the unit situated at 2/54 S Road, Millner in the Northern Territory of Australia.
5)That contemporaneous with the transfers as referred to in orders 1 and 2 hereof, that the husband do all acts and things to discharge the mortgages/loans to the ANZ Bank presently affecting the property situated at 5 V Court Tiwi.
6)That the wife pay to the husband the sum of $10,000.00.
7)That each party otherwise retain what assets/financial resources they have standing to their name or in their respective possession.
The wife also seeks orders that she have contact to the children on Mother’s Day, if this conflicts with a period of contact stipulated for the husband and that she be able to have a continuous period of contact with the children during the school holidays.
In his affidavit of evidence filed on the 29th of August 2002, the husband sets out the orders that he seeks in respect of the property matters as follows:
1)That I transfer to K all of my right, title and interest in the property located a 5 V Court, Tiwi;
2)That K transfer to me all of her right, title and interest in the property located at unit 2/54 S Road, Millner;
3)That I indemnify K against all liabilities pursuant to the ANZ Bank Loan Accounts …. and … as from the date of these orders;
4)That K pay to me the sum of $15,500.00 within 28 days of the date of these orders;
5)That K do all such acts and things and sign all such documents as may be required to transfer to me National Bank Account Policy number L0251788 and L0251785 within 28 days of the date of these orders;
6)That K retain the motor vehicle presently in her possession and that the I forfeit any right, title or interest in relation to that motor vehicle in law or in equity;
7)That I retain the motor vehicle presently in my possession and that K forfeit any right, title or interest in relation to that motor vehicle in law or in equity;
8)That each party retain the personal effects and other property in their possession as at the date of these orders;
9)That unless otherwise specified in these orders and except for purposes of enforcing the payment of any money due under these orders or any subsequent orders:
a)Each party be solely entitle to the exclusion of the other to all property (including choses in action) in the possession of such party as at this date;
b)Each party hereby forgoes any claim that they may have to any superannuation benefits belonging to or earned by the other;
c)All insurance policies to become the sole property of the beneficiary named hereunder;
d)All bank accounts to become the sole property of the account holder namely there under; and
e)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
The husband also indicated in his affidavit that he wished to have contact with the children each weekend from 6.00pm on Friday until 8.00pm the following Sunday. He also wishes to have contact with the children for half of each of their birthdays or if those birthdays should fall on a weekday, for two hours after he has finished work. He also wishes to have contact with the children for the whole of Father’s Day. He also wishes to have contact with the children for up to six weeks during school holiday periods.
Evidence
As directed, each of the parties filed an affidavit containing his or her evidence in chief. In addition the wife filed an affidavit from her mother, C C. The wife was represented throughout the proceedings by her solicitor, Ms Davis. The husband appeared on his own behalf. Each party also relied on a statement of their respective financial circumstances filed in the matter.
As a result of the husband appearing on his own behalf, it was necessary for him to cross-examine the wife. He was a quiet and softly spoken person in Court. He was courteous to the wife in his cross-examination. It was obvious to me that he found the process a very difficult one. Both parties were obviously deeply upset by the proceedings. The husband, in particular, still seemed to be coming to terms with the end of his marriage. To a certain extent, he still seemed to be in a state of shock as a result of its demise.
Having seen each of the parties in the witness box, I have no doubt that each of them is a truthful and decent person. There were few areas of dispute between them in respect of their evidence and where there were disputes, these related to matters of detail. I have also no reason to doubt that each of them is a loving and caring parent for each of J, E and A. To their great credit, both the husband and the wife acknowledged that the other was a loving parent, who had much to offer the children.
During the course of the parties’ marriage, they have drifted apart and became quite different people. The husband is a deeply religious person and is a committed member of the Potter’s House Christian Fellowship. The wife was formerly involved in this church but is no longer attending. In particular, the extent of financial donations made by the husband to the church has been a source of tension between the parties. The end of the marriage came as a great shock to the husband. I believe that he has had difficulties coming to terms with what he sees as the undue haste with which these proceedings have reached their conclusion. Until very recently, he has harboured hopes of reconciliation with the wife. On her part, the wife is anxious to move on as quickly as possible and to severe her financial relationship with the husband. Of the two parties, I formed the view that the wife was the more worldly and financially sophisticated. Both parties are anxious, that no matter what orders are made, that if at all possible, the wife should retain ownership of the former matrimonial home situated at 5 V Court, Tiwi so that she can continue to live there with the children. This is the only home that each of the children have known.
The law to be applied to property applications
Section 79 of the Family Law Act defines the Court’s powers in determining applications for property settlement. Sub-section 2 of Section 79 provides that:
“The Court shall not make an Order under this Section unless it is satisfied that, in all the circumstances, it is just and equitable to make the Order.”
Section 79(4) sets out the matters the Court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters include:
a)the financial and non-financial contributions made directly or indirectly by or on behalf of each party or by a child to the acquisition, conservation or improvement of any property of the parties;
b)the contribution made by a party to the welfare of the family including any contribution made in the capacity of homemaker or parent;
c)the effect of any proposed order upon the earning capacity of either party;
d)the matters referred to in sub-section 75(2) as far as they are relevant;
e)any other order made under the Family Law Act affecting a party to the marriage or a child of the marriage; and
f)any child support payable.
Section 75(2) of the Family Law Act sets out the matters which must be taken into account by the Court when determining applications with respect to maintenance. This is the prospective element of the determination of the application for property settlement. The assessment of contributions during the marriage is the retrospective element.
In the Marriage of Ferraro 16 Fam LR 1 the Full Court said at page 23:
“A now well established line of authority in this Court indicates the approach normally to be taken in the exercise of the discretion in Section 79 proceedings. That approach is firstly to ascertain the property of the parties at the time of the hearing, then to consider “contributions” of the parties within paragraphs (a) – (c) of Section 79(4) and then consider the matters in paragraphs (d) – (g), more especially paragraph (e) which takes up by reference the provisions of Section 75(2) which are generally referred to as the “Section 75 Factors.”
The Court is therefore required to determine the following matters:
a)the assets, liabilities and financial resources of the parties to the marriage;
b)the relevant contributions of each of the parties;
c)the means and needs of each of the parties and the other prospective components to the claims of each of the parties pursuant to section 75(2) and then to identify if any alteration should be made to the entitlements of either of the parties having regard to the section 75(2) factors.
After determining the entitlement of each of the parties in relation to the alteration of property interests, the Court must then consider any application for spousal maintenance if relevant.
The law to be applied to children’s matters
The applications of both parties concern parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B(1) of the Act sets out the object of this part of the Family Law Act. The object is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principals underlying this object are set out in section 60B(2) of the Act. These principals include, except where it would be contrary to a child’s best interests, the following:
a)Children have the right to know and be cared for by both of their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
b)Children have a right of contact on a regular basis, with both of their parents and with other people significant to their care, welfare and development;
c)Parents share duties and responsibilities concerning the care, welfare and development of their children;
d)Parents should agree about the future parenting of their children.
In the present case, regrettably the parties are unable to agree about the future parenting arrangements for J, E and A.
The application of these objects is subject to the provisions of section 65E which regards the best interests of the child concerned as being the paramount consideration in the making of a determination concerning the care of children.
In deciding the parenting arrangements that would promote the best interest of a particular child, the Court must consider the various matters set out in section 68F of the Family Law Act. The various sub-sections contained in section 68F(2) comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed in any orders made by the Court, and in this regard I refer to B and B: Family Law Reform Act (1997) FLC 92-755. The matters that are to be taken into account under section 68F(2) are:
1)the wishes expressed by any child concerned;
2)the nature of the relationship between the child with his or her parents;
3)the likely effect of any change in the child’s circumstances;
4)the practical difficulty and expense of a child having contact with a parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
5)the capacity of each parent or any other persons to provide for the needs of the child, including the child’s intellectual and emotional needs;
6)the child’s maturity, sex and background;
7)the need to protect the child from physical or psychological harm;
8)the attitude of the parties to the responsibilities of being a parent;
9)any family violence that may involve the child or a member of the child’s family;
10)whether it will be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child concerned.
Evidence and finding of fact
Findings of fact are made on the balance of probabilities, having regard to the evidence and my observations of the parties and witnesses. In what follows, statements of fact constitute findings of fact.
The husband was born on the 13th of January, 1965. He is currently employed as a Courier Supervisor in the Northern Territory Government Dispatch Section. In a formal sense, his employer is the Northern Territory Department of Corporate and Information Services (DCIS). He currently receives a gross salary of $36,251.80 per annum or $697.15 per week. The wife was born on the 31st of December, 1970. She is currently the full time carer for the parties’ three children and receives a supporting parents allowance of $402.16 per week. The husband has been assessed to pay child support of $6,240.00 per annum or $120.00 per week. As yet no payments of child support have been received by the wife. The husband completed form 5 in
New Zealand. He has no formal qualifications. He does not have a trade.
The wife completed her secondary education in Queensland. She then commenced a four-year apprenticeship in Electronics with the Commonwealth Department of Housing and Construction, which subsequently became the Department of Administrative Services. She successfully completed this apprenticeship and subsequently worked as an electrician in the Commonwealth Public Service. She was involved in the installation of fire alarms for the Defence Forces. She left the work force in October of 1995 shortly prior to the birth of J. At that time she was earning approximately $34,000.00 per annum. She has not been in the paid work force since.
The parties met in Darwin in mid 1989. They married on the 14th of April 1991. The husband did not dispute the wife’s account of the assets that she brought into the marriage. In 1988, the wife’s father died. Under his will, the wife received an inheritance of approximately $48,000.00. This sum was to be held in trust for her until she attained the age of 25 years.
In June of 1990, the wife began to live with friends at 5 V Court, Tiwi. An opportunity arose for her to buy this property for $65,000.00. The property was owned by the Commonwealth Government, which at the time was selling off its stock of housing accommodation in the Northern Territory to its employees. The property was already furnished at the time. The wife borrowed $10,000.00 for the deposit from the National Bank. She was able to borrow the balance of the purchase price from the Trustee of her father’s estate on an interest fee basis. She subsequently paid the full purchase price of the property herself, either from her income or her father’s bequest to her. The husband acknowledges that he made no direct financial contribution towards the acquisition of this property and the furniture contained in it. However, the property is registered in joint names.
At the commencement of the parties’ marriage, the husband owned a car and had a personal loan relating to its purchase of approximately $2,000.00. He had no other significant assets, apart from a life insurance and saving policy, entitled a Linksaver Plan.
The wife commenced maternity leave prior to the birth of the parties’ first child, J in October of 1995. J was subsequently born on the 23rd of November, 1995. The wife elected to take a redundancy package from the Commonwealth Public Service in March of 1996. She received approximately $40,000.00 in redundancy and accumulated entitlements. Thereafter, she has remained at home and has been the primary carer of not only J but also E who was born on the 22nd of July, 1997 and A who was born on the 28th of August, 1999.
The parties mutually decided that it was in the best interests of the children that the wife refrained from returning to the paid work force until the children attained at least school age, so that she would be available to care for them full time. This continues to be the stated position of each of them.
The husband has had a variety of jobs during the marriage. They are set out in his affidavit and are as follows:
1)April 1991 – December 1991 groundsman at the M Primary School;
2)January 1992 –April 1992 labourer SK Formwork Pty Ltd;
3)May 1992 – August 1993 groundsman Greenkeeper Garden Services;
4)September 1993 – April 1995 storeman driver Premier Aluminium;
5)1996 forklift driver for Shorelands.
In 1997 the husband commenced employment as a courier driver with Fast and Fresh Couriers as a contract driver. Thereafter from 1997 until 1999 he was an owner-driver with Australian Air Express. The wife assisted him with book keeping for this operation. He commenced his present position with the Northern Territory Government in 1999. He is currently employed on a three-month contract basis. He gave evidence that he enjoys his work and hopes to retain his employment with the Northern Territory Government. He would like to pursue career opportunities with the Northern Territory Public Service.
Following the wife’s redundancy payment and retirement from the Commonwealth Public Service, the husband’s income was the only income coming into the family. This was augmented from time to time by payments of social security and Work Health payments when the husband was either unemployed or in receipt of Work Health payments due to injuries sustained by him in the course of his employment.
The parties lived frugally during the marriage and the income and the resources of each of them were used for family purposes, with one exception. It is apparently a requirement of the church to which the husband belongs that a proportion of its member’s salary be tithed to the church. The husband has consistently tithed 10% of his income to the church and made other regular donations. The wife initially acquiesced in these payments but they have become an increasing bone of contention between the parties. The wife donated $8,000.00 of her redundancy package to the church.
The remainder of the redundancy package was used to fund a family trip to New Zealand and to finance the creation of a carport and veranda at V Court. The husband has some skills as a builder. He, with the assistance of friends, played a large part in constructing the carport and veranda. A portion of his wage was also used to pay for some of the construction materials and also to pay for some of the expenses related to the trip to New Zealand. Although the work on the carport and veranda is not apparently ascetically perfect, it has added to the value of the V Court property and because much of the labour was contributed free, there was a considerable saving to the parties in its construction cost. The wife also was highly involved in the project and provided meals for the various working bees during the construction phase. However, the redundancy payment to the wife has long been consumed and apart from the donation to the church was utilised for family purposes.
The division of labour within the household proceeded along “traditional” lines. The husband concedes that the wife was the primary carer for each of the children and is indeed an excellent and loving mother. She also did the vast majority of domestic chores within the home such as cleaning, washing and cooking. As a qualified electrician, she also did some maintenance around the home.
The husband did the majority of gardening and outside work. He also did some maintenance work on the house, in particular re-roofing it. Both parties were involved in painting the house, both inside and out.
When the wife left the work force in 1996 she had accumulated superannuation amounting to some $17,000.00. She rolled over this sum into the National Australian Bank Employment Superannuation Scheme and since that time it has accumulated to the sum of $28,000.00. I accept that this sum is not readily accessible by the wife and it is to be regarded as a financial resource rather than an asset. It is this sum that is referred to as the National Bank Account Policy number L0251788 and L0251785 in the husband’s list of orders sought by him in his affidavit.
The husband has modest entitlement to superannuation with two funds the Australian Government Employee Superannuation Trust and the Australian Retirement Fund amounting to $8,309.00.
In 1998 the parties purchased a unit situated at 2/54 S Road, Millner as an investment. The unit was rented out to tenants. The parties borrowed the full amount required to purchase the unit from the ANZ Bank, which sum was secured by way of a mortgage over both the unit and the property situated at 5 V Court, Tiwi.
The wife owns some Commonwealth Bank shares worth $2,900.00. The husband continues to hold the Linksaver life policy now worth $3,000.00.
The parties separated on the 19th of October 2001. Initially, the wife left the former matrimonial home with the children. On the 22nd of January 2002, interim orders were made by me, with the consent of the parties, that the husband should vacate V Court to allow the wife to return to live there with the children. It was also ordered that the husband should have contact to the children each weekend from 6.00pm Friday until 8.00pm the following Sunday.
This contact was ordered to take place at V Court, as at that time the husband had no other accommodation and was short of funds. Perhaps naively at the time, I believed that there was a spirit of cooperation between the parties that would enable this arrangement to work without undue ranker between them. In this I was sadly mistaken. It was also ordered that the husband pay all the rates, power and water authority accounts and other outgoing in respect of 5 V Court as and when they fell due.
After these orders were made, the lease in respect of the premises at S Road expired and as a result the husband was able to move in. It has now been ordered that, as he has appropriate accommodation, that contact should take place at this unit. He currently has a boarder at this unit, Mr B B, who pays rent of $75.00 per week and contributes towards other household bills.
The mortgage repayments in respect of the mortgage secured against the two properties is $214.60 per week. The wife has been contributing the sum of $100.00 per week. This represented a very heavy burden for her, particularly as she is receiving no child support from the husband at all. She has been extremely fearful that she will lose the house at V Court as a result of the Bank foreclosing on its mortgage on the property. Body corporate fees and rates in respect of the S Road unit are $1,358.55 and $718.00 per annum respectively.
The husband sought a review of the decision of the Child Support Agency in respect of the child support he was assessed to pay for the three children. The basis of his application for review was the extent of the expenses that he was liable to pay in respect of the two properties owned by the parties. He was partially successful in his review and the child support was reduced to $120.00 per week. However, none has been paid to date and arrears continue to mount.
At the present time, I calculate the husband’s receipts per week as follows:
1. Income
$ 697.15
2. Board from Mr B
$ 75.00
TOTAL
$ 772.15
His unavoidable weekly expenses include the following:
1. Tax
$ 153.00
2. Electricity
$ 12.00
3. Rates – S Road
$ 13.80
4. Body Corporate Fee – S Road
$ 26.00
5. Food
$ 90.00
6. Child support
$ 120.00
7. Car registration
$ 10.30
TOTAL
$ 425.10
He has other expenses related to the running of his car and has had to travel to Adelaide to have a cancerous growth surgically removed from his nose. This has resulted in him incurring unforeseen expenses. He has also had to expend some funds to re-establish himself. He asserts that he is not able to borrow any monies from his Bank to such an extent as to enable him to take over the parties’ current mortgage liability. I do not accept his evidence in this regard.
In my view, the evidence is clear that the husband has behaved selfishly and irresponsibly in a financial sense since the parties separated. He has not contributed to the financial support of his children at all. That burden has fallen exclusively on the wife. She also has had to assume a large part of the responsibility of providing accommodation for the husband by the provision by her of the mortgage monies of $100.00 per week. This state of affairs does the husband no credit. I am prepared to accept that he is financially naïve and still shell shocked by the end of his marriage but he has also been manipulative of the wife in this regard. I believe that he continues to make significant and regular donations to his church. That is of course his right and entitlement but it is in my view disingenuous for him to assert that his financial position is as parlous as he makes out. It is not his right to put his wish to contribute to his church before the proper financial needs of his children.
At separation the parties each retained a car of comparable value. In the wife’s case it was a Camry motor vehicle and in the husband’s case it was an Econovan.
The parties were able to agree as to the current value of both the property at V Court and the unit at S Road. The parties agreed that these properties were valued at $170,000 and $135,000 respectively. There is no dispute between the parties as to the amount currently owing to the ANZ Bank in respect of the mortgage. It is an amount of $123,450.00.
Accordingly, the list of the parties assets is as follows:
5 V Court, Tiwi
$170,000.00
2/54 S Road, Millner
$135,000.00
Linksaver Plan
$ 3,000.00
Commonwealth Bank shares
$ 2,900.00
Husband’s motor vehicle
$ 2,000.00
Wife’s motor vehicle
$ 2,000.00
Furniture (in possession of the wife)
$ 2,000.00
TOTAL
$316,900.00
As has been already indicated, the only liability of the parties is the mortgage to the ANZ Bank. Accordingly, the asset pool available to be distributed between the parties stands at an amount of $193,442.00.
The financial resources of the parties are their future entitlements to superannuation. As the law currently stands these items can not be regarded as property. In each of the parties cases it is as follows:
The husband
Australian Government Employees Superannuation Trust
$ 3,282.00
Australian Retirement Fund
$ 5,027.00
TOTAL
$ 8,309.00
The wife
National Australian Bank Employment Superannuation Scheme
$28,000.00
Section 79(4)(a) to (c)
I now turn to the second of the steps in the exercise under section 79, namely an assessment of the parties’ contributions within the context of section 79(4)(a) to (c). These provisions are as follows:
Section 79(4) In considering what order (if any) should be made under this section in proceedings with respect to any property of the parties to a marriage or either of them, the court shall take into account –
a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;
b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;
c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent.
It is the wife’s position that in light of the fact that she brought into the marriage the major asset that is available for apportionment, namely the former matrimonial home situated at 5 V Court, Tiwi, that any division of the property must reflect her vastly superior initial financial contribution to the marriage. On any view the wife brought this property into the marriage unencumbered and it has grown in value since. In addition, the wife points to her redundancy payment of $40,000.00 that was largely expended on family expenses. On the other hand the husband has not injected any significant sums towards acquiring any of the assets of the marriage.
In Pierce v Pierce (1999) FLC 92-844 at page 85,873 the Full Court of the Family Court considered the weight to be given to initial financial contributions, as follows:
“25.In addition to referring to a short passage from the judgment of Fogarty J in Money and Money (1994) FLC 92-485, the trial judge noted that the passage was cited with approval by the Full Court (Nicholson CJ, Baker and Tolcon JJ) in Bremner and Bremner (1995) FLC 92-560.
26.In Way and Way (1996) FLC 92-702, the Full Court (Barblett DCJ, Finn and Butler JJ) said at 83,404:-
‘In the subsequent full Court decision in Bremner all three Judges expressly preferred the approach taken by Fogarty J in Money over that taken by Lindenmayer J in the same case. Thus, and notwithstanding the attempts by Counsel for the husband in this case to demonstrate that there was some inconsistency between what Fogarty J said in Money and what was actually said in the joint judgment of the Full Court in Lee Steere, we regard the law in this area as now settled by the statement by Fogarty J in Money (and subsequently accepted by all members of the Full Court in Bremner) that ‘… an initial contribution by one party may be “eroded” to a greater extent by the later contributions of the other party even though those later contributions do not necessarily at any particular point outstrip those of the other party.’
27.However, it is important to put that quotation in it correct context. Fogarty J in Money and Money (supra) said at page 81,054:-
‘I am unable to agree with the criticism in his Honour by the passage in his judgment immediately after that quotation or of his analysis of the issues involved. In an appropriate case, in my view, an initial substantial contribution by one party may be ‘eroded’ to a greater or lesser extent by the later contributions of the other party even though those later contributions do not necessarily at any particular point outstrip those of the other party. I feel, if I may say so with respect, that his Honour’ formulation to the contrary is unrealistic and does not correspond with common experience in the Court in many of these cases.
I think it is legitimate for me to say, as I was a member of the Full Court in Lee Steere and Lee Steere (1985) FLC 91-626 that His Honour has read too much into the passage to which he refers and that the term ‘off-setting contribution’ does not necessarily mean ‘greater contribution’. It simply reflects the circumstance that the respective contributions of the parties over a long period of marriage ‘offset’ the significance which might otherwise be attached to a greater initial contribution by one party. This is, in my view, made clear by the Full Court in White and White (1982) FLC 91-246 where that court pointed out that the principle in Crawford and Crawford (1979) FLC 90-647 is that the original contribution should not be carried forward as a mathematical proportion; ultimately, when it comes to the trial such a contribution is one of a number of factors to be considered. The longer the marriage the more likely it is that there will be later factors of significance and in the ultimate the exercise is to weigh the original contribution with all other, later, factors and those later factors, whether equal or not, may in the circumstance of the individual case reduce the significance of the original contribution.
28.In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weight the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home: See also Campo and Campo (unreported, Full Court, Ellis, Lindenmayer and Finn JJ), Sydney, delivered 19 May 1995 at pages 21 and 22 of the joint judgment) and Zahra and Zahra (unreported, Full Court Sydney, delivered 3 October 1996, per Ellis J at page 10).”
The provision to the marriage by the wife of the former matrimonial home has been the bedrock of the family’s financial security throughout the duration of the marriage and was the springboard from which the parties were able to purchase the investment property at S Road. Without the provision of this property the financial circumstances of the parties would be vastly different at the present time.
In addition to her contribution of this asset, the wife has made significant contributions, both direct and indirect, during the course of the marriage. During the marriage, from its inception until her resignation from the work force in 1996, the wife contributed her income towards family purposes. She also made a significant contribution to the welfare of the family as a whole by reason of her work within the home and as a carer of each of the children concerned.
True it is that the husband has contributed the bulk of his wages to the family’s up keep and care. He too has made a significant contribution by his work around the home to the conservation and improvement of the property, particularly at 5 V Court, Tiwi. I am satisfied that the marriage was a working joint venture and each contributed to the best of his or her ability. However, I am of the view, after balancing the various contributions made by each of the parties and in particular the initial financial contribution of the wife, that the contribution of the wife is markedly superior to the husband. Accordingly, in my view, the assets of the parties should be apportioned 75% to Mrs B and 25% to Mr B.
Section 79(4)(d) to (g)
I now turn to the third step in the process of apportioning the assets available for distribution between the parties.
d) The effect of any proposed order upon the earning capacity of either party to the marriage
The orders that I propose making in this matter will not affect the earning capacity of either party to these proceedings.
e) The matters referred to in sub-section 75(2) so far as they are relevant
a) The age and state of health of each of the parties
The husband is 36 years of age and apart from his recent skin cancer is in good health. The wife is 31 years of age and is also in good health.
b)The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
The husband has no special skills to speak of. He has done a variety of unskilled work for the last decade. He did not strike me as a particularly ambitious person. However, I have no reason to believe that he will not continue to be employed in his present position as a courier supervisor at DCIS. I am satisfied that the husband has the capacity to enjoy many more years of appropriate gainful employment though it is unlikely that his income will increase to any great degree.
The wife impressed me as a capable and disciplined person. She has decided to remain out of the work force until at least the time when A commences school. Thereafter she would only wish to be in part time employment. She is also concerned that her qualifications as an electrician have become degraded due to changes in technology since she left the work force. I have no doubt that this is the case. However, it is my belief, that the wife would be more than capable of upgrading her qualifications and is more than likely to be expected to rejoin the work force in some three to four years time. Similarly, I believe that she has many years of useful and rewarding employment before her. In the long run, she is likely to have a larger income than the husband.
c)Whether either party has the care or control of a child of the marriage who has not obtained the age of 18 years
The bulk of the responsibility for the day to day care of the children of the marriage in future will be borne by the wife. As A is only just three years of age, that responsibility will endure for many years and will be a significant burden to be borne by the wife.
d)Commitments of each of the parties that are necessary to enable the parties to support:
(i)Himself or herself;
(ii)A child or another person that the party has a duty to maintain.
Neither of the parties has commitments other than those necessary to support himself or herself and their children.
e)The responsibilities of either party to support any other person.
Neither party has a responsibility to support any one other than each other (to the extent such maintenance may be required) and their children.
f)The eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of any other country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established or operates within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party.
Both parties are still comparatively young. They each have modest entitlements to superannuation in future. In this regard the wife’s future entitlement to superannuation is markedly superior to that of the husband. However, the husband will be able to contribute towards his superannuation during the coming years.
g)Where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable
One of the sad consequences of the separation of the parties is that inevitably the standard of living of each of them will suffer some decline. The husband is struggling to come to terms with his new financial circumstances since he left the former matrimonial home. The wife is now in receipt of a government pension. The parties are jointly responsible for the financial support of three young children. They agree that it is in the best interests of those children that they continue to live in the former matrimonial home at 5 V Court, Tiwi. In my view, this is a significant factor. It seems to me that it is appropriate that this aspect of the parties’ former standard of living should be maintained if at all possible.
h)The extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income
j)The extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party
k)The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration
This is not a case where either party makes application in respect of spousal maintenance.
l)The need to protect a party who wishes to continue that party’s role as a parent
It is the desire of both parties that the wife should continue in her role as the primary carer of the three children of the marriage. As a result neither party wishes a situation to come about that would compel the wife to resume a position in the paid work force. In particular the parties are desirous of avoiding the need for either of them to have recourse to childcare for any of the children. As a result, it appears likely that the wife will be in receipt of a supporting parent benefit for at least the next three to four years. As a result her capacity to borrow any funds is severely limited. As has already been indicated, the parties both fervently desire that the wife be in a position to continue to care for the children at 5 V Court, Tiwi.
m) If either party is cohabiting with another person – the financial circumstances relating to the cohabitation
Neither party is cohabiting with another person nor is it likely in the foreseeable future that this situation will change.
na) Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage
As has already been indicated, there is a child support assessment by virtue of which the husband is liable to pay to the wife the sum of $120.00 child support for the three children of the marriage. The husband has not as yet made any payment to the wife in respect of this assessment. By his conduct to date the husband appears to be passively resistant to paying any of this child support. As a consequence the full financial burden for supporting the children since separation has fallen on the wife. I hope that this situation will not continue in future.
o)Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
In my view, there is no such fact or circumstance in this case.
f) Any other order made under this Act affecting a party to the marriage or a child of the marriage
There are no other orders made under the Family Law Act 1975 which affect a party or the children which need to be taken into account, save for the parenting orders which will be made in this matter and which will result in the children living with the wife. A situation that has come about with the consent of each of the parties.
g) Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage
These provisions have been considered in relation to section 75(2)(na) above.
Conclusion
Taking all these matters into account and in particular that the wife will not be returning to the work force for the foreseeable future and will have the care of the parties three young children and also that it is the sincere wish of Mr and Mrs B that the wife should be in a position to be available to care for the children on a full time basis, it is my view that a just and equitable result requires the wife to receive by way of adjustment in her favour a further 10% of the matrimonial assets.
Eighty five percent of the asset pool of $193,442.00 is $164,425.70. Twenty five percent of the asset pool is $29,016.30.
The husband has in his possession his car worth $2,000.00 and his Linksaver life insurance policy worth $3,000.00. It is the preference of the parties that if at all possible the husband should retain the unit at Millner. This will provide him with a location in which to exercise his contact with the children and will also maximise the assets available for distribution between the parties by avoiding the necessity for them to incur sale costs in relation to its sale. If at all possible the husband should retain the unit subject to a mortgage at its current level of $123,458.00. This would leave him with assets worth $16,542.00.
The wife would retain 5 V Court Tiwi, encumbrance free, worth $170,000.00. Her car worth $2,000.00, the furniture worth $2,000.00 and the Commonwealth Bank shares worth $2,900.00. This would leave her with assets in her possession worth $176,900.00.
Arrangements along these lines would require the wife to pay to the husband the sum of $12,474.30 in order to finalise the distribution of assets between them.
The husband has indicated in his evidence that he does not believe that, given his current level of income and financial commitments, he has the capacity to service a mortgage of approximately $120,000.00. I am somewhat sceptical about that, especially if he continues to rent out a room at the unit as he is currently doing.
However, if the unit does have to be sold to discharge the mortgage over both it and 5 V Court, it is appropriate that the parties share equally in respect of the costs to be incurred in relation to its sale and that the proceeds realised from its sale be added to the pool of assets and divided 85% in favour of the wife and 15% in favour of the husband.
The husband will require sometime to ascertain whether or not he will be able to borrow the required sum and I would propose giving him
45 days from the date of these orders. If on that day he is able to re finance his sole ownership of the S Road unit, the mortgage over it and 5 V Court can be discharged upon payment to him by the wife of $12,474.30, which for the ease of reckoning I propose to round up to $12,500.00.
Otherwise the unit must be sold and the amount owing to the husband by the wife recalculated as directed by the orders.
Children’s issues
The parties agree that the three children of the marriage should continue to reside with the wife and have regular periods of contact with the husband. The area of dispute between the parties is the extent of that contact. In his affidavit of evidence the husband states the extent of the contact he seeks and the reasons for it as follows:
“I wish to have contact with the children each weekend from 6,00pm on Friday to 8.00pm on Sunday. I also wish to have contact with each child for half of each child’s birthday but should such birthday fall on a weekday, for two hours duration after I have finished work. I wish to have contact with the children for the whole of Father’s Day. I wish to have contact with the children where possible during school holidays. I only have six weeks leave a year so I will be unable to have half contact with the children during the school holidays.
I wish to have this amount of contact because of the very close relationship that I have with my children. I also wish to have contact each and every weekend because it is impossible for me to have any more than six weeks contact with the children whilst they are on school holidays. I also wish to have contact with the children on the weekend because I take the children with me to Church on Sunday. The children have attended Church with K and I since they were born and most of their friends attend the Church. The children enjoy attending the Church and I believe that it is a significant part of their social environment.”
However, to his great credit the husband indicated in his evidence that he was prepared to be flexible in respect of his contact with the children. It is the wife’s position that given that J in particular, is currently attending school and that E will be attending school shortly that it is appropriate that she too have some weekend contact with the children. It is for that reason that she proposes that periods of weekend contact be alternated.
In her evidence, the wife indicted that she was prepared to continue to take the children to Church on Sunday. As I understand matters at the present time the children attend Sunday School each Sunday between 9.00am and 10.30am. There is also a children’s church service between 6.00pm and 7.30pm. The current arrangements for contact envisage the children being returned after contact at 8.00pm on Sunday. From the wife’s prospective this is too late, as it does not give her sufficient time to bathe and feed the children before bed. Accordingly, there may be some difficulty in future in accommodating the husband’s wish for the children to attend the later church service on Sunday.
J is currently paying Rugby on Saturday mornings. The wife is happy for him to continue in this activity. The husband would prefer it if J learnt a musical instrument of some kind or engaged in a sport that had the potential for less physical contact. He also has difficulties in attending any sports played in the outdoors due to his recent surgery for skin cancer.
In the long run, I believe that there is great potential for the parties to fall into dispute regarding the attendance of the children at church and the nature of their ongoing religious instruction. This after all would seem to be one of the major factors in the demise of the parties’ marriage. However, at this stage the wife has indicated that she is prepared to allow the children to continue to attend church and to his great credit the husband has indicated that if the children indicate in future that they do not wish to attend church that he would respect their wishes.
I propose making orders that the parties share responsibilities for making all long-term decision concerning the care, welfare and development of their children. I encourage the parties to try to reach agreement regarding such matters as the children’s religious instruction and what sports they are to play or what other activities they are to pursue.
As I have already indicated, I have no reason to believe other than that both parties are devoted parents who wish to be fully engaged in all aspects of their children’s lives and development. The law requires me to encourage them, wherever possible, to agree in respect of such matters.
Although the wife has clearly indicated that she is not amenable to the husband having contact to the children on each and every weekend, she too has said in her evidence that she is willing to be flexible in respect of contact. To this end she has indicated that she would be willing to consider overnight contact between the husband and the children during the week. The husband indicated that he was prepared to consider such a proposal, however it would depend on his working hours and whether he was able to utilise accumulated flexitime.
I now turn to consider the various factors, as they are relevant, pursuant to section 68F(2) of the Family Law Act 1975.
a) The wishes of the children
The children concerned in this matter are still of tender years. Accordingly, it is not appropriate that their wishes be canvassed to any great degree. Both the wife and her mother, Mrs C indicated in their evidence that the children have apparently expressed some reluctance to go on contact with their father. For his part the husband gave evidence that the children had indicated to him their reluctance for him to leave them at the end of contact. In my view not a great deal turns on such matters and the reports of both parties are more likely to be indicative of the confusion and upset that the children have experienced and will continue to experience due to the separation of their parents. As the husband readily admits, he has been emotionally affected too a high degree by the separation and I have no doubt that the children are aware of this and pick up on his feelings. I hope with time that the periods of contact will become easier for all concerned.
b) The nature of the relationships between the children, their parents and other significant people
As I am at pains to point out to each of the parties, I have no doubt that each of them is a loving parent and that the three children concerned have a significant and deep affection for both of their parents. This was the effect of the evidence of Mrs C and indeed of both the parties themselves.
c) The likely effect of any change in the children’s circumstances
Both parties in this matter are anxious to minimise any change for the children concerned and so minimise, as much as possible, any distress they may be experiencing as a result of the separation of the parties. To this end, the parties are anxious that the children should continue to live at the former matrimonial home at 5 V Court, Tiwi and continue in the primary care of their mother. This is to their great credit. Accordingly, no matter what orders are made in respect of the children, it is unlikely that there will be any great change to their circumstances. However, it would seem desirable that at this stage that fixed orders for contact be made and that if at all possible the husband should be able to exercise his contact to the children in the S Road unit.
d) The practical difficulties associated with contact
Fortunately, in the present case, there do not appear to be many practical difficulties in respect of the husband having contact with the children concerned. Both parties currently live in the Northern Suburbs of Darwin within easy commuting distance of one another. Neither has any plans to move from Darwin. Although there continues to be a certain level of tension between the parties, they do appear to be able to communicate with one another on a civil basis, although they have become quite different people, particularly in their religious outlooks. Following the separation and the orders that were made in January of 2002, the husband failed to exercise his contact to the children as envisaged by the orders. He failed to tell the wife of this before hand and this occasioned her inconvenience and the children some distress. He acknowledges that this was discourteous behaviour on his part and was inconsiderate of the wife and children concerned. He attributes his behaviour to his emotional upset at the time. I accept his evidence in this regard. He now has a mobile telephone and I believe that it is unlikely that such difficulties will arise in future.
As I have already indicated, I hope that the parties will be able to agree between themselves as to what sports, particularly J, should play in the future. No doubt, the most important factor in this regard will be J’s wishes as to what sports he wants to play and the opportunities that present themselves to him. I can understand why the husband would want J to play a musical instrument and why he would find it difficult, at this stage, to take J to Rugby. However, I believe that the parties will be able to iron out these difficulties between themselves. If they are not able to do so it is possible for them to attend a post separation parenting course to assist them in working though such issues together.
e) The capacity of each parent to meet the children’s needs
In the context of this case, I am satisfied that both parents are capable of providing for the children’s needs, including their emotional and intellectual needs.
f) The children’s maturity, sex, background and other characteristics
This is not a relevant criterion in the present case.
g) The need to protect the children from physical or psychological harm caused by abuse or ill treatment, violence or other behaviour
In their affidavit material, both parties accused the other of inappropriate behaviour at the time that the parties separated in October of 2001. During the course of the hearing before me, neither party chose to emphasise this aspect of their respective material. I am satisfied that neither party is an inherently violent or abusive person. If either of them did behave inappropriately at the time of separation, it was a reflection of the great stress they were each under, as it became apparent to each that the marriage between them was over. Neither party has suggested that the other is not a loving and caring parent for the children concerned.
h) The attitude to the children and the responsibilities of parenthood
I am satisfied that each of the parties has evinced a positive attitude to each of the children concerned and to the responsibilities of parenthood. The wife, in particular seemed to me to be an excellent mother. She, with the support of the husband, has elected to remain out of the work force to be available to care for the children on a full time basis. This will necessarily involve some future financial hardship on her part.
As I have already indicated, the husband has not met his responsibilities in respect of the financial support of the children concerned. I accept that following separation he has been under a high degree of financial pressure. So indeed has the wife. Sadly this is a necessary consequence where parties of modest income and assets separate and one income has to be divided between two households.
Obviously, the ongoing financial support of children, is part of the responsibilities of parenthood.
It also seemed to me that both parties were supportive of the other maintaining a strong relationship with the children concerned.
i) Family violence involving the children or a member of the children’s family
This topic has been discussed under section 68F(2)(g) above.
j) Where it would be preferable to make an order that would be least likely to lead to the institution of further proceedings
Parenting orders are never final in the sense that children’s and their parents circumstances change and as a result arrangements need to alter as a consequence of those changes. However, as far as possible, it is desirable that orders be made that minimise the prospect of the parties seeking further orders from the Court in future. Litigation is costly in both financial and emotional terms. It is also likely to place the children concerned under emotional distress and be likely to disturb the development of ongoing parental relationship between the parties concerned.
Both the parties in this case spoke in their evidence of their desire to promote a flexible arrangement in respect of contact between the father and the children concerned. I am hopeful that once orders are made in this case that in future the parties will be able to create some degree of flexibility, in addition to the contact that these orders will create.
Conclusions
In my view it is appropriate and in the best interests of the children concerned that the wife have some periods of weekend contact with the children concerned. This militates against the contact regime as sought by the husband. I appreciate his desire to have as much time with the children as possible and also his difficulties in accommodating that contact given that he works on a full time basis. The wife has indicated that she is amenable to the husband having contact overnight during the working and school week. I think that this arrangement is likely to be in the best interests of the children concerned and enable the husband to have some interaction with the children in both the more relaxed circumstances of the weekend and the necessarily more formal environment of the week. This will enable him to have input into the children’s schoolwork and to put them to bed and prepare them for school the next morning.
I think that the wife’s concerns regarding the time at which contact ends on Sunday is a legitimate one and as a result I propose making orders that will see the contact end on the weekend at 6.00pm on Sunday.
The parties agree that the children should have contact with the relevant parent on both Father’s Day and Mother’s Day. In the past they have been able to share time with the children at Christmas by attending the same Christmas celebration. This is to their great credit. As a result neither party seeks specific orders in respect of contact at Christmas other than that each recognises that it is important for the children to spend time with both of their parents on significant days. These days include the children’s birthdays, and the birthdays of their parents.
It is important that both parties have the opportunity to spend a portion of the school holidays with the children. In the husband’s case he has available to him six weeks annual leave. It is important that he spends this time with the children in a continuous period and that the wife have the opportunity to spend similar periods of continuous time with the children during school holiday periods.
For all these reasons the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Brown FM
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