C and C
[2002] FMCAfam 369
•26 November 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| C & C | [2002] FMCAfam 369 |
| FAMILY LAW – PROPERTY – Contributions – gifts. CHILDREN – Residence – wishes – separation of siblings – best interests – ss.65E, 68F(2), 79(2), 79(4) Family Law Act 1975. |
Family Law Act 1975 Cth), ss.60, 65, 68, 75, 79
Child Support (Assessment) Act 1989 (Cth)
Family Law Reform Act 1995 (Cth)
Children’s Law Act 1989 (UK)
In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626
In the Marriage of Ferraro (1993) FLC 92-335
In the Marriage of Clauson (1995) FLC 92-595
Russell v Russell (1999) FLC92-877
B and B Family Law Reform Act (1997) FLC 92-755
Gosper (1987) FLC 91-818
Mehmet (1986) FLC 91-730
W and W (1997) FLC 92-723
Tomasetti (2000) FLC 93-0223
R and R: children’s wishes (1997) FLC 92-755
H v W (2000) FLC 93-3000
| Applicant: | PMC |
| Respondent: | AMC |
| File No: | SYM288 of 2002 |
| Delivered on: | 26 November 2002 |
| Delivered at: | Wollongong |
| Hearing Dates: | 30 & 31 October 2002 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Counsel for the Applicant: | Mr G Gould |
| Solicitors for the Applicant: | Kerrie Johnson & Associates |
| Counsel for the Respondent: | Mr W Moss |
| Solicitors for the Respondent: | Russell McLelland Brown |
ORDERS
That the children TJC born on 8 May 1988 and TC born on
11 February 1991 live with the husband.That the husband and wife have joint responsibility for making decisions about the long term care, welfare and development of the children.
That each party is responsible for making decisions as to the day to day care, welfare and development of the children whilst they are in their care.
That the wife have contact with the said children as follows:
(a)each alternate weekend from 3.00 pm Friday until the start of school Monday;
(b)from after school Tuesday until the start of school Wednesday each alternate week;
(c)on the weekend that includes Mother’s Day;
(d)for one half of each school holidays, being the first half in years ending in an even number and the second half in years ending in an odd number;
(e)from 2.00 pm Christmas Day until 6.30 pm Boxing Day 2003 and each alternate year thereafter; and
(f)such other times as the parties agree.
That alternate weekend contact and mid-week overnight contact are suspended during school holidays.
School holiday contact:
(a)shall commence at 9.00 am;
(b)shall conclude at 2.00 pm;
(c)will be calculated from the day after the last day of school until and including the day immediately before school resumes;
(d)pupil-free days are deemed to be school holidays.
Years ending in a zero are defined as years ending in an even number.
Other than on those occasions when the children are starting or ending contact periods at school, the husband shall deliver the children to the wife at the start of contact and the wife shall return the children to the husband at the end of contact.
If a contact period occurs on a day adjacent to a public holiday, it shall be extended to include the public holiday. If the public holiday is a Friday it shall start at the usual time on the Thursday.
That within two months of the date of these orders the wife pay the husband the sum of $138,576.21.
That upon payment by the wife to the husband, the husband shall transfer to the wife the whole of his right, title and interest in the property situate at Albion Park, being the whole of the land contained on the Certificate of Title.
Simultaneously with compliance by the husband with Order (11) above, the wife shall deliver to the husband a discharge of the mortgage from the Westpac Banking Corporation secured against the matrimonial home or alternatively, a release from the mortgagee that releases the husband from any liability pursuant to the mortgage.
In the event the wife fails to comply with Orders (10) or (12), the husband has the right to take ownership of the former matrimonial home subject to the Westpac mortgage. The husband must exercise his right to take the property within fourteen (14) days of the date of default by the wife of her obligation pursuant to Orders (10) and/or (12). He must exercise his right pursuant to these orders by giving the wife written notice that he does so.
Within forty-two (42) days of exercising his right to ownership, the husband shall pay the wife the sum of $121,423.79.
Upon payment by the husband to the wife, the wife shall transfer to the husband the whole of her right, title and interest in the property situate at Albion Park, being the whole of the land contained in the Certificate of Title.
Simultaneously he shall provide the wife with a release from the Westpac mortgagee removing her as a joint mortgagor.
In the event that the wife fails to comply with Orders 10 and/or (12) and the husband does not exercise his right to take the property, the parties shall forthwith do all acts and things and sign all documents necessary to sell the property situate at Albion Park for sale by private treaty with a real estate agent at a price to be agreed upon between the parties and failing agreement to be determined by the president of the Real Estate Institute of New South Wales or his nominee.
That the proceeds of sale pursuant to Order (17) above be disbursed as follows:
(a)firstly, in payment of the costs of sale including the real estate agents and legal fees;
(b)to discharge the mortgage to the Westpac Bank;
(c)in payment of any outstanding rates and charges;
(d)in payment of 56 per cent of the net balance to the wife, from which the wife will pay the husband $24,174.45; and
(e)the remaining 44 per cent to the husband.
That the wife shall continue the repayment of mortgage instalments on the Westpac loan and pay all rates and taxes when they fall due until whichever of the following events first occur:
(a)she complies with Orders (10) and (12);
(b)the husband exercises his right to the property pursuant to Order (13); or
(c)the completion of the sale in accordance with Order (17).
That unless otherwise specified in these orders, each party shall be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party at the date of the making of these orders and for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s record thereof; insurance policies are deemed to be in the possession of the party named as the life insured; superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for a payment out of such entitlements.
That unless otherwise specified in these orders, each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
That if either party refuses or neglects to sign, within fourteen (14) days of the written request to do so, any document necessary to give effect to the terms of these orders, a Registrar or such other office or person as may be appointed by the Federal Magistrates Court of Australia is hereby appointed pursuant to the provisions of section 106A of the Family Law Act 1975 to execute such documents on behalf of those parties.
That pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
That all exhibits tendered in the proceedings be returned at the expiration of one calendar month unless an appeal is lodged.
That the solicitor who issued any subpoena uplift the documents produced within seven (7) days and return them to their owner.
That all outstanding applications are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT WOLLONGONG |
SYM288 of 2002
| PMC |
Applicant
And
| AMC |
Respondent
REASONS FOR JUDGMENT
The proceedings
These are proceedings for the adjustment of property and for parenting orders. Both parties asked the court to make orders that their two younger children TJC born 8 May 1988 and TC born 11 February 1991 live with them.
The application
PMC (“the husband”) started the proceedings when he filed an application for final orders on 21 January 2002. Later, on 30 September 2002 he filed an amended application. During his opening address, the husband’s counsel advised that the husband also sought an order that TJC live with him. Thus, in essence, the husband sought orders as follows:
·That TJC and TC live with him.
·That the wife have reasonable contact with the children.
·That the parties have joint parental responsibility for the long term care, welfare and development of the children.
·That the wife transfer her interest in the former matrimonial home to him.
·That the husband transfer to the wife 485 NRMA shares, 1060 NRMA shares and 1000 Telstra shares.
·That the contents of the home be divided equally.
·Otherwise that each party keeps the car that they currently drive and retain the assets and financial resources that they currently have.
AMC (“the wife”) filed her response on 20 February 2002. In essence the wife sought orders:
·That TJC and TC live with her.
·That the husband have reasonable contact to the children.
·That the husband transfer to her his interest in the former matrimonial home.
·That upon transfer the wife pay to the husband $50,000.
On 22 May 2002 the proceedings were transferred from the Family Court to the Federal Magistrates Court.
The evidence
The applicant husband relied upon the following evidence:
·His affidavit sworn 15 July 2002 and 18 July 2002 and his oral testimony. His evidence was supplemented by a proof of evidence[1].
·His financial statement sworn 15 July 2002.
·Affidavit of JNS sworn 15 July 2002. As the parties agreed upon the value of the former matrimonial home this witness’ evidence did not require further consideration.
·Affidavit of JV sworn 29 October 2002 and her oral testimony.
[1] Exhibit A
The wife relied on the following evidence:
·Her affidavit sworn 1 October 2002 and her oral testimony.
·Her financial statement sworn 15 July 2002.
Pursuant to s62G(2) on 16 July 2002 the court ordered that a family report be prepared. The parties and their three children were interviewed on 4 September 2002. Court Counsellor PL prepared a report that is dated 3 October 2002[2]. He concluded his report with the following recommendations:
“The following recommendations are based on the assumption that Mr C will, in the next month or two, be working non-rotating weekday shifts. They are also based on the assumption that the two relevant homes will be in close proximity. It is recommended that TC live half of the time with her mother and half of the time with the husband. It is recommended that TJC live primarily with his mother and have fortnightly contact with his father from Thursday after school to the following Monday before school. It is recommended that T and Mrs C make themselves be available for counselling at a local agency to be arranged by the report writer. It is recommended that TJC be further assessed by a school counsellor, with a view to a possible referral to a child and family counsellor”.
[2] Exhibit B
Because TJC had told the Court Counsellor, “that he would prefer, at the present time, to remain living with his mother”[3] the husband accepted his son’s wishes and told the court counsellor that he was not pursuing residence of TJC. Later, the husband reconsidered his position because he believed TJC had changed his mind and now wanted to live with him. Thus, arrangements were made for TJC to again confer with PL. This interview took place at 9.30am on
31 October 2002. After the interview and during the course of his oral testimony the Court Counsellor recommended the following:
·That the children, particularly TJC need a definite, structured and clearly defined arrangement vis residence and contact.
·That both children need a lot of time with both parents.
·TJC needs an outcome that will provide structure, discipline and clear expectations of his behaviour.
[3] Paragraph 19 Family Report
The issues
The principal issues raised in the proceedings were these:
·The children’s wishes as to residence and the weight that should be attached to them.
·The parties’ capacity to manage TJC’s truancy and minimise his anti-social behaviour.
·The effect on TC of leaving the wife’s full time care.
·The parties’ capacity to cooperate in a shared parenting arrangement.
·The effect on the children on separating them from each other.
·The significance of the husband’s voluntary redundancy payment from W.
·The significance of the shareholding received from the wife’s father prior to his death.
Chronology of events
The husband was born on 24 August 1961 and is thus 41 years old.
The wife was born on 2 September 1963 and is thus 39 years old.
The parties married on 6 August 1983. They did not live together before their marriage.
At the time of their marriage the husband was employed as a labourer by W. His employment with W started when he was 18. The wife was unemployed and other than some occasional casual employment did not join the paid workforce until 1994. Neither party had any assets or liabilities of significance at the commencement of cohabitation. The husband owned a Holden Monaro worth about $1,800 and some furniture. The wife had a glory box. After their marriage the parties lived with the husband’s parents. They paid minimal board.
In December 1983 the parties purchased their first home at Albion Park. The husband’s father loaned them $5,000, which was used as the deposit for the home. Otherwise the balance of the purchase monies comprised a mortgage from the Port Kembla Housing Cooperative. The loan from the husband’s father was repaid from the parties’ first home owners’ grant. Although complete the home needed substantial improvements such as floor coverings, curtains, landscaping, a driveway and carport. Predominantly the wife decorated the interior of the home and the husband did most of the work to the exterior. On occasion the wife’s father lent a hand.
On 15 November 1985 the parties’ eldest daughter T was born. That same year the husband took a first aid course and then successfully applied for a position with the W staff ambulance service. He received an increase in salary as well as free family medical insurance. He became eligible for and did regular overtime. He joined a superior superannuation scheme.
TJC, the parties’ only son, was born on 8 May 1988. The youngest child, TC was born on 11 February 1991.
In about 1991 or 1992 they sold the Albion Park home. Its selling price was $124,500. After discharging the mortgage they received about $60,000 net from its sale. Next, they purchased vacant land at R Road, Albion Park. In order to build a house on the land, they borrowed $110,000 from CC Credit Union. The entire monies were spent on the construction of this home. Beechworth Homes were contracted to build it. Again, substantial work was done to establish the property. The gardens were landscaped, paths laid, fences erected and retaining walls were built. The husband predominantly undertook this work. During the time between the sale of their first home and completion of the R Road home, the parties lived rent free at the wife’s parents’ home. As they had with their first home, the wife was predominantly responsible for furnishing and decorating the interior of the home.
During 1995 the wife started full time work as a sales assistant. The wife continued to work at LC until 1997. The husband cared for TC during the day when he was on nightshift. Otherwise she attended daycare. The husband’s mother or sister also helped out. Prior to her father’s death in 1998, he gave her a share portfolio worth approximately $80,000. The wife alleges that she sold about $50,000 worth of shares which monies were used to live on. The husband denies this assertion.
On 20 December 1998 the husband stopped work with W. He took a voluntary redundancy. On 21 December 1998 W paid out the non-preserved component of the husband’s superannuation. He received $73,226.24. The preserved component was $15,072.62, which the husband transferred into the W Retained Benefit Division[4]. His redundancy package and final salary was received on 27 December 1998. It totalled $45,476. Of this $5,565 was accrued annual leave and $8,283 was long service leave[5]. On 30 December 1998 he paid $40,000 into the CC Credit Union mortgage. He paid a further $60,000 in capital reduction of the mortgage on 20 January 1999. Having bought a Ford Econovan, the husband obtained work as a contract courier with CC. This full time position started in March 1999. Between December 1998 and when he started with CC the parties lived on their joint savings in the CC Credit Union account. During 1998 the wife had obtained full time employment as a telephonist at CC.
[4] Annexure C Husband’s affidavit 15 July 2002.
[5] Annexure A Husband’s affidavit 15 July 2002
In about August 1999 the husband paid out his W employee share plan. After repaying the loan he sold the shares and received about $20,000 nett. Those monies were spent on a family holiday to Fiji.
Upon their return from Fiji the parties purchased a Commodore for $33,700. The purchase was financed by a loan obtained from CC Credit Union. The parties then restructured their finances and combined the mortgage and car loan in a loan with Westpac. After repayment of the CC Credit Union loan about $7,000 excess was deposited into the wife’s bank account.
At the end of 1999 the husband’s contract with CC ended. During the first part of 2000 he worked as a delivery driver for UB. This was a casual yet full time position. In September that year he changed employers and obtained worked as a casual labourer working for a roof plumber for the remainder of the year. He was then unemployed until he obtained casual work as a labourer in June 2001. This position became a full time position at the end of April 2002.
At separation the wife and the parties' two daughters remained living the matrimonial home. TJC and the husband moved in to his mother’s home. TJC stayed living with the husband until 29 May 2002. He then returned to live with the wife and his two sisters. T left her mother’s care in June 2000. After the husband discovered that she was staying with her boyfriend, he collected her and took her to his mother’s home. About two weeks later they moved into a flat at Brownsville.
Relevant Law
The approach to the determination of an application under section 79 is well established by authority (In the Marriage of Lee Steere and Lee Steere[6]; In the Marriage of Ferraro[7]; In the Marriage of Clauson[8] the process ordinarily involves a multiple part procedure. Firstly, identifying the property, liabilities and financial resources of the parties at the time of the hearing. Secondly, evaluating the contributions made by the parties as defined in section 79(4)(a) to (c) and the effect of any proposed order upon the earning capacity of either party. I must then evaluate the matters contained in section 75(2) insofar as they are relevant, any other Order made under the Act affecting a party or child and any child support under the Child Support (Assessment) Act 1989 that a party to the marriage is to provide, or might be liable to provide in the future, for a child to the marriage.
[6] (1985) FLC 91-626
[7] (1993) FLC 92-335
[8] (1995) FLC 92-595
In determining what order the court should make under section 79, the court must be satisfied in all the circumstances that it is just and equitable to do so [section 79(2)]. It is the justice and equity of the actual orders that the court must consider. Russell v Russell[9].
[9] (1999) FLC 92-877
In deciding the residence and contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in section 68F(2). Its sub-sections 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: B and B: Family Law Reform Act (1997) FLC 92-755.
Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development.
Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular contact carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
Although not binding authority the Australian pre-Family Law Reform Act cases give useful guidance to those factual matters that a court adjudicating a 50/50 shared parenting application pursuant to the current legislation should consider. There is a core consistency found between the English and Canadian authorities. These countries share a similar jurisprudence in the adjudication of private family law disputes with Australia. This commonality is apparent in a number of respects. All jurisdictions implement a paramountcy principle. Although its statutory formulation may differ slightly, the essential premise is the same. That is the best interest of the particular child is the paramount or primary consideration. There are no presumptions that override the court's obligation to promote the child's best interests. Individual justice is fundamental and hence the exercise of judicial discretion critical. Nowhere is it more apparent that Australian courts exercising jurisdiction under the Family Law Act can look to Canada and England for guidance in the interpretation and application of Australian law than in B and B: Family Law Reform Act (supra). In that matter the Full Court of the Family Court of Australia addressed the impact of the Family Law Reform Act 1995 upon the principles to be applied in parenting cases under Part VII of the Family Law Act 1975. In doing so they reviewed the English and Canadian authorities.
Although there are consistencies in the applicable family laws between these countries there are differences that cannot be overlooked. The English law gives the person who has a residence order the authority to manage the child’s daily life. In Australia that arises pursuant to a specific issues order. An order for residence will do no more than determine with whom a child will live. The English law also places greater emphasis on minimising judicial intervention in parenting cases. As John Dewar has explained: “there is an explicit direction to the courts [in the Children Act 1989 (UK) s.1(5)] that they should only make an order if it can be shown that to do so would be better for the child than making no order at all (the “presumption of no order”).”[10] One major respect in which the Canadian law differs from the Australian and English law is that the language of custody, guardianship and access have not been replaced with that of parental responsibility, residence and contact as they have in both the Children’s Law Act 1989 (UK) the Family Law Reform Act1995 (Cth) (though the concepts associated with these terms in Australian law are, as suggested above, not identical to the English concepts).[11] In Canada, decision-making authority is part and parcel of any order for custody. As noted above, in Australia, an order for residence (physical custody) will do no more than determine with whom a child will live. Furthermore, the Canadian legislation requires its courts to maximise the time a child spends with both its parents.[12] It is not surprising that the Canadian case law is replete with judicial analysis of factual indicia that work in favour or against equal shared residence orders (joint physical custody). The maximisation provision is, of course, not absolute. It will be restricted to the extent that it conflicts with the best interests of the child.[13]
[10] John Dewar, “The Family Law Reform Act 1995 (Cth) and the Children Act 1989 (UK) Compared‑Twins or Distant Cousins?” (1986) Australian Journal of Family Law 18 at 20.
[11] See Brenda Cossman and Roxanne Mykitiuk, “Reforming Child Custody and Access Law in Canada: A Discussion Paper” Revue Canadienne de Droit Familial Vol. 15 at 13-78.
[12] Divorce Act s16(10). It is interesting to note that in B and B (Family Law Reform Act 1995) (1997) FLC 92-755, the Full Court stated (at para. 7.58) that the Canadian maximisation of contact provision has “obvious similarities to the terms of ss. 60B(2)(b) and 68F(2)(d)” of the Family Law Act 1975 (Cth). The Full Court also stated (at para. 9.60 ‑ my emphasis): “In cases where there are no countervailing factors the s.60B principles may be decisive, not only because they are contained in s.60B but because they accord with what is in the best interests of the particular children. Where there are no countervailing factors, the Court may normally be expected to conclude that it is in the best interests of the children to have as much contact with each parent as is practicable. However, to attempt to impose that approach in cases where the best interests of the children may not indicate that conclusion as appropriate is contrary to the legislation and contrary to the long established views of this and other courts which deal daily with the welfare or best interests of children.”
[13] See, for example, Young v. Young [1993] 4 S.C.R. 3 and Madame Justice Lachlin’s judgment in the Supreme Court of Canada case of Gordon v. Goertz (1996) 134 DLR (4th) as cited by the Full Court of the Family Court of Australia in B and B (Family Law Reform Act 1995) (1997) FLC 92-755 at para. 7.67.
Drawing then from the case law the factors that the court should particularly examine in cases where a party seeks orders that share a child's time equally between its parents (or others) include the following:
·The parties’ capacity to communicate on matters relevant to the child's welfare.
·The physical proximity of the two households.
·Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
·The prior history of caring for the child. Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child's adjustment?
·Whether the parties agree or disagree on matters relevant to the child's day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
·Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
·Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra curricular activities.
·Can they address on a continuing basis the practical considerations that arise when a child lives in two homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
·Whether or not the parties respect the other party as a parent.
·The child's wishes and the factors that influence those wishes.
·Where siblings live.
·The child’s age.
This list is not exhaustive. It does not more than set out some usual elements that a court will consider to the extent that each may be relevant. It does not usurp the pivotal role of s.65E nor s.68F(2). Each factor fits comfortably within s.68F(2). Based on other courts experience these factors have be useful in deciding the suitability of a particular set of circumstances for a shared parenting arrangement.
Assets at the date of hearing
The parties reached agreement as to the value of some assets. They were also in agreement as to the quantum of some liabilities.
The wife has a debt to a girlfriend that will be her sole responsibility to repay. It was incurred after separation and it is not a joint matrimonial liability in any sense.
I find the assets, liabilities and financial resources of the parties as at the date of hearing are as identified in the following table:
| Assets as at the date of hearing | $ |
| R Road, Albion Park (agreed) | 320,000 |
| 485 NRMA shares (joint owned) | 1,193.10 |
| 1060 NRMA (IAG) shares (H) | 2,607.60 |
| 1997 Mitsubishi (H) | 8,000 |
| Wife’s furniture and personalty | 10,000 |
| 1999 Holden Commodore (W) agreed | 14,000 |
| Box trailer (H) agreed | 1,500 |
| Husband’s furniture and personalty | 5,000 |
| 500 CBA shares (W) | 14,855 |
| 1400 AGL shares (W) | 14,126 |
| 3000 Telstra shares (W) | 14,280 |
| 133 Mayne Logistics shares (W) | 485.45 |
| 1000 Telstra shares (H) | 4,760 |
| TOTAL ASSETS | 410,804.15 |
| Liabilities as at the date of hearing | $ |
| Westpac mortgage | 60,000 |
| CC Credit Union (H) | 13,000 |
| JD (W) (disregarded) | 2,500 |
| TOTAL LIABILITIES | 73,000 |
| NETT ASSETS | 337,804.15 |
| FINANCIAL RESOURCES | |
| W retained benefit (H) superannuation | 30,498 |
| C Superannuation Fund (W) | 10,829 |
| S Superannuation Fund (H) | 1,355 |
Contributions – section79(4)
At the commencement of cohabitation neither party owned assets of significant value. That nineteen years ago the husband owned his car and had the few items identified in paragraph 13 carries very little weight compared to the other significant contributions made by both parties during the course of their marriage.
From the outset the husband worked hard to produce as great an income for the family as was consistent with his age and expertise. Before their elder daughter was born, the wife did occasional casual work. There is no suggestion that her income was regular or comparable to that earned by the husband. She was, principally engaged as the full time parent and home maker during this time[14].
[14] Paragraph 32 Wife’s affidavit
Through further study the husband acquired qualifications that enabled him to transfer into the W Ambulance Service. His transfer gave him the opportunity for overtime, entry into a superior superannuation scheme and ultimately to earn a wage that was $80,000 per annum in the last year he worked with W.
Prior to separation after he took the redundancy, he did a driving course that enabled him to obtain employment as a courier. He was able to earn approximately $1,000 (gross) a week as an owner driver. Upon his redundancy from W the husband received the monies identified in paragraph 19 of these reasons. In the absence of evidence to the contrary, I infer that his superannuation and redundancy payments relate primarily to his years of employment with W and his salary at the point of departure from the company. Other than the monies that were preserved, the funds received by the husband from W were used on joint matrimonial purposes. Two major capital payments were made on the mortgage. Additionally, $7,100 supplemented the trade in value on the family Commodore enabling the husband to purchase his work van. The redundancy and superannuation payments are an important financial contribution made by the husband. His capacity to earn the income and establish the conditions for payment of the lump sums was contributed to in a significant way by the wife. Because she willingly assumed primary responsibility for the home and the children the husband had the opportunity to study as well as work full time. He was also able to take advantage of overtime opportunities and become a valuable member of W staff by virtue of his reliability as an employee. By assuming the responsibilities which she did in the home and for the children the wife freed the husband of constraints on his time that would otherwise have limited his opportunity to acquire, develop and utilise his skills as a W employee. In essence, working as she did in the home the wife participated in the joint venture of maximising the husband’s value as an employee to W. She made a significant indirect contribution to the acquisition of the W payout.
The husband’s counsel submitted that the $5,000 loan provided by the husband’s father enabled them to acquire their first home sooner than would otherwise have happened. The parties used the money for only a short period. It is likely that their first home owners grant was received within months of completion of the purchase. It was submitted that this was a significant contribution that enabled the parties to acquire their first home. The thrust of the submission overstated the weight that I consider should be attached to the loan. In circumstances where the parties had the opportunity to live with the husband’s parents paying only minimal board (a factor I take into account) the $5,000 loaned by the husband’s father brought forward their opportunity to buy their first home. It did not create an opportunity that would not otherwise have come to pass in the reasonably proximate future.
The wife made a financial contribution by contributing all of the money earned by her through her casual and full time employment. During the course of the marriage both parties utilised all earnings from their employment for the betterment of the family.
In 1998 the wife’s father gave her a share portfolio then valued at approximately $80,000. Her father transferred the shares into her name alone. Sensibly, the husband makes no claim that this amount should be attributed to him viz a viz an indirect contribution. This was a substantial contribution made on the wife’s part. Although the husband complains that on the sale of shares that realised $50,000, the wife deposited the monies into her bank account and has not accounted for their use, I am not satisfied that she did not apply them entirely to the benefit of the family. Both parties had been in full time employment during 1998. There is no evidence that suggests they had significant savings and it is likely that their earned income was all but exhausted meeting their day to day living expenses. After the husband took his voluntary redundancy he did not earn an income as substantial as that earned by him at W. In the financial year ending 30 June 2001 he earned $7,759. During that year the family’s income had fallen to a level that enabled the wife to receive a family allowance of approximately $7,000. The evidence does not suggest the family suffered a fall in their standard of living as a consequence of the husband’s lower income. I accept the wife’s evidence that this is because she used a large portion of her father’s gift to maintain the family standard of living. I am satisfied that the $50,000 realised from the sale of the shares was applied by the wife entirely for the benefit of the family. It is a significant financial contribution by her that must be taken into account in a substantial way. See Gosper[15]
[15] (1987) FLC 91-818.
The wife’s income has been the mainstay for the family since mid-1999. Nonetheless, overall, the husband earned more than the wife did and his direct financial contributions exceed hers when evaluated comparatively. Although his direct financial contributions are greater, the shares given to the wife by her father must have real weight. Both parties contributed to the maintenance and improvement of their home. The wife, I am satisfied, carried out the majority of the work inside the home while the husband was primarily responsible for maintaining and improving the exterior and gardens. Overall, I am satisfied that the parties’ non financial contributions throughout the course of the marriage were equal.
The wife’s contribution to the welfare of the family was particularly significant. This is because for many years the husband worked long hours and also undertook additional study. Although in the latter part of the marriage the husband had greater involvement in the care of the children the wife continued to be primarily responsible for the welfare of the family, including the children’s care. She did this as well as working full time. Since separation she has cared for Tenielle and since May 2002 also TJC. TJC lived with the husband after separation until her returned to live with his mother. The husband has had responsibility for T since mid 2002. Thus I am satisfied that at separation the wife’s contribution to the welfare of the family significantly exceeded the husbands. Since separation her contribution to the welfare of the family has been greater than the husbands to a small degree. The husbands counsel submitted that after separation because the family was no longer intact, the wife could not make a contribution as described in s.79(4)(c). He relied on Mehmet’s[16] case for support. I do not agree that this is the purport of Rourke J’s judgment. In any event the Full Court of the Family Court in W and W has definitively addressed the issue[17]. Although that case concerned pre-marital contributions in the role of parent, their Honours decision reveals that a wide and generous approach to the issue should be taken. The narrow view submitted by the husband’s counsel in this matter is inconsistent with the socially realistic and generous view described by the Full Court as being the law.
[16] (1986) FLC 91-730
[17] (1997) FLC 92-723
The husband has not paid child support since separation.
The orders I propose will not affect the earning capacity of either party.
I find, therefore, that the parties’ total contributions should be assessed as being 63% by the wife and 37% by the husband.
Section 75(2)
Subsection (a)
The wife is 39 years old and in good health. The husband is two years older and also in good health. I make no adjustment pursuant to the subsection.
Subsection (b)
The wife works full time as an administrative officer. She earns about $540 per week gross. She pays tax of about $103 per week from which she pays the mortgage, $105 per week and the expenses set out in her financial statement. Her shares produce dividends at about on average $15 per week. Otherwise she has the assets, financial resources and liabilities identified earlier in these reasons. Until 21 October 2002 the husband worked as a protective services officer. His employer, S, placed him at W. His employment was structured on an eight day roster working 6.00am to 6.00pm for two days, 6.00pm and 6.00am for another two days and then four days off. He earned $791 per week gross from which he paid $173 a week tax. Otherwise, he has the expenses set out in his financial statement. Although his employment with S remains available, he decided to give it up and start work as a fence repairer. This gives him the better opportunity to care for the children. I make no adjustment pursuant to the subsection.
Subsection (c)
I will order that the children live with the husband. But for the care of the children the husband could resume his former position and earn a greater income than he will now. Because of their ages, other than being available in the evening, his care of them will not materially influence his earning capacity. Similarly the period of time during which the elder two children will live with him is reasonably short. TC will remain in his care the longest. It is difficult to weigh up the significance of the order that TJC live with his father for the purpose of the subsection. That is because there is a possibility that TJC will live independently of both parents before he turns 18. I take that into account. I find that the subsection requires an adjustment in the husbands favour.
Subsection (d)
Both parties have a duty to maintain the children. They have both sworn financial statements that identify their reasonable expenses. The wife’s vis her care of the children will fall because of the effect of the parenting orders I will make. The husband’s will increase commensurately. T has her youth allowance, the amount of which is not in evidence. By comparison to the wife the husband will expend a greater share of his income supporting the children. I find that the subsection requires an adjustment in the husbands favour.
Subsection (e)
Other than the children neither party has a responsibility for any other person. I make no adjustment under this subsection.
Subsection (f)
Both parties have superannuation entitlements. The husband’s is greater than the wife’s is. I make a small adjustment pursuant to the subsection in her favour.
Subsection (g)
To a greater extent than the husband has, the wife has maintained her pre-separation standard of living. That is because she remained in the home. He has lived in smaller rented premises. The wife maintained the mortgage and also apparently kept the property in good repair. In the future both will suffer a further reduction in their standard of living. This is the inevitable consequence of the need to support the same number of people in two homes. In the circumstances the fall in their standards of living is reasonable. I make no adjustment under this subsection.
Subsections (h) – (k)
These subsections do not arise.
Subsection (l)
I have already addressed the financial consequences to the husband of his full time care of the children. No further adjustment, given their ages is warranted. I make no adjustment under this subsection.
Subsection (m)
Neither party cohabits with another person. I make no adjustment pursuant to the subsection.
Subsection (n)
The wife will have the opportunity to retain the home. Because of the value of her shareholding she may be able to realise these and borrow a smaller sum of money than she otherwise needs to comply with the orders. Nonetheless she will carry comparatively significant borrowings. The husband will have a lump sum from which he will be able to re-enter the property market. He will incur stamp duty and other costs in doing so. I make an adjustment pursuant to this subsection in his favour.
Subsection (na)
The wife will have the responsibility to pay a significant percentage of her salary by way of child support for some years. Because of the ages of the elder two children the amount will fall in a reasonably short time. It will be longest for TC. The wife is a salaried worker and it is likely that whether she wishes to not, compliance with her obligation will be enforced by the agency. I make a small adjustment pursuant to this subsection in her favour.
Subsection (o)
I make no adjustment pursuant to the subsection.
Subsection (p)
This issue does not arise.
Having regard to all of the section 75(2) factors I find it appropriate that there should be an adjustment in the husband’s favour having regard to subsection 75(2)(c)(d) and (n) and weighed against the adjustments made in the wife’s favour pursuant to s.75(2)(f) and (na). The appropriate adjustment to make in the husband’s favour is 7 per cent. The most significant adjustments are those that relate to the children. That is, the financial consequences of the husbands care of them and the child support that will be paid by the wife whilst they are in his care. This outcome reflects the cumulative outcome of the findings I have made pursuant to s.75(2). See Tomasetti.[18]
[18] (2000) FLC 93-023
Section 79(2) is this a just and equitable outcome?
That the outcome of s.79(4) and s.75(2) has resulted in a distribution favourable to the wife 56% as compared to the husband’s 44%, I am satisfied is just and equitable within the meaning of s.79(2). The reason for that is that the s.79 exercise requires that I give proper weight to the wife’s non-financial contributions, particularly in her role as home-maker and parent. Quite late in the marriage she received a substantial gift from her father, which must be given real and significant weight. Both parties worked to maintain the homes they lived in and contributed their income to joint matrimonial purposes. The husband worked hard during the marriage and complimented the wife’s care of the children. His financial future is affected as a consequence of his care of the children, a matter that has required that he take a lesser paid position.
The wife sought the opportunity to purchase the husband’s interest in the home. She will have that opportunity. Frequently the court will order that the parent with whom the children shall primarily live should have the former matrimonial home. This can alleviate some of the disruption consequent on the breakdown of a marriage. In essence fewer people are dislocated. This issue has been difficult to determine. Either outcome would be just. In the husband’s affidavits he reveals that his discussions with the children concerning residence have all been predicated upon the reformed family group living away from the former matrimonial home. The tenor of the children’s discussions with the Court Counsellor is to the same effect. Ordering the wife to leave the home and that the husband (and children) have it, may well have unfortunate unintended consequences. The children may well believe that they are responsible for their mother’s loss of a home to which she is obviously attached. It was acquired because of its proximity to her mother. The children will still have significant use of the home during periods of contact. In this particular instance I am not satisfied that this long after separation the husband should have first opportunity to acquire the wife’s interest in it. Pending completion of the buy out she must pay all outgoings, including mortgage instalments as and when they fall due. Two months is sufficient time to make enquires of lending authorities and to complete the steps necessary to raise the monies due. If she does not pay the husband out, he will have the opportunity to acquire the home. He must indicate his desire to exercise this right within two weeks of default by the wife. If he fails to indicate that he claims this right the home will be sold. During this period the wife will continue to be responsible for the outgoings. Having insisted on living in the home since separation she cannot walk away from her obligations to maintain it. That is unless and until the parties are freed of their obligations arising from its ownership or the husband takes it.
The net assets to be distributed are $337,804.15. The wife will retain her shares, house, car and the furniture in her possession. She will be responsible to repay the Westpac loan, unless the house is sold or the husband buys her out. Thus she has assets worth $387,746.45 and liabilities of $60,000.00. She is entitled to nett assets worth $189,170.24. The husband has assets the nett value of which is $10,060.70. These include the parties joint NRMA shareholding and the shares in his sole name. He will have his car, subject to the loan and his furniture. He is entitled to $148,633.76. Thus the wife must pay him $138,576.21.
In the event the wife does not make the payment the husband may exercise his right to take the home subject to its indebtedness. He will be required to obtain a release for the wife from the mortgagee. The nett value of his assets, having regard to the agreed value of the home and the mortgage is then $270,060.70. The wife will have the assets already identified subject to the husband having the home and mortgage. Her assets have a nett value of $67,746.45. Thus there must be an adjustment to the wife of $121,423.79, which shall be paid by the husband within a further 6 weeks.
If the property is sold the effect of the adjustments must be to ensure the 56% division of the assets to the wife as compared to the husbands 44%. Although the property has an agreed value, the net proceeds cannot be known. Excluding the home she will have assets of $67,746.45 and the husband will have nett assets of $10,060.70. Fifty-six percent (56%) of this means the wife should have $43,572.00. Hence there must be an adjustment to the husband taking into account the assets that he retains. The adjusting figure is $24,174.45. Thus the wife must pay him an additional $24,174.45 from her share of the nett proceeds of the sale.
Determining the children’s best interests
A substantial issue in these proceedings concerns the manner in which the Court should treat a child’s expressed wish concerning matters relevant to its welfare. Recently the Full Court of the Family Court considered this issue in R & R: Children’s Wishes.[19]Their Honours cited with approval the following statement of principle drawn from the joint judgment of Fogarty and Kay JJ in H v W:[20]
“The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children.”
[19] (1997) FLC 92-755
[20] (2000) FLC 93-3000
Once a child’s wishes are established, the next part of the exercise requires analysis of the wishes followed by a balancing exercise measured against other factors relevant to the child’s welfare. The process is described thus:
“There are many factors that go to the weight that should be given to the wishes of children and these all vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of the trial judge weighing up all the evidence relevant to the wishes of the children and applying in a commonsense way as one of the factors in the overall assessment of the children’s best interests and best wishes.”
At separation the parties allowed the children to decide where and with whom they wanted to live. This response was predicated upon their children’s ages and the parties’ belief that the children would make a reasonable decision. T elected to remain living with her mother whilst TJC chose to live with his father. TJC was motivated to some degree by concern that his father may be lonely living away from the family. Both parties agree that TC wanted to live with her father. Her wishes were not implemented. In spite of the fact that both parties agree that TC enjoys a particularly close relationship with her father, the wife insisted that T continue to live with her. Her decision was motivated in part by her belief that the two sisters enjoyed a close relationship, that she was younger than her siblings and that she was better able to care for the youngest daughter than the husband was.
Gradually the wife’s relationship with T came under increasing pressure. Essentially, the wife tried to maintain house rules that T refused to accept. When designing her house rules, the wife seems to have tried to find a balance between her daughter’s increasing maturity and desire for independence and measures, which recognised T was still at school and not yet an adult. The wife made concessions that included buying T alcohol and allowing her to have boyfriends sleep in her room, conditional upon the door remaining open and the boys sleeping on the floor. Eventually the situation exploded when T moved in with her boyfriend.
On 26 June 2002 T failed to attend school camp and that day moved into her boyfriend’s place. Having found his home, the wife confronted T and said, “You have to make a decision on what you want to do now.” Her offer that T could live in her home was conditional upon T’s compliance with house rules. T refused to return to live with her. Also at the home were about two carloads of youths. In spite of the fact that he complains she did not tell him what was happening, I am satisfied that the following day the wife told the husband the situation that had developed with T. Because the wife couldn’t remember T’s boyfriend’s address other than it was at West Dapto, the husband had a difficult time finding her. When he found T, the husband encouraged her to return and live with her mother. When T refused he agreed that she could live with him. I accept the husband’s counsel’s submission that the husband “rescued” their child. Once she left her mother’s care T was in a highly risky situation. Without the positive intervention of her father because she flatly rejected her mother’s guidance, T was greatly at risk of abuse by people she counted as friends and associates.
Although she had always planned to complete Year 12, about four weeks after she started living with her father T stopped school. T now works part-time with DP and is participating in a Business Management Traineeship sponsored by her employers. Next year she will attend TAFE where she will resume her Higher School Certificate studies.
Because of T’s age and vehemently held desire that she live with her father, the wife does not ask the Court to make an order that T live with her. After a four-month gap when neither mother nor daughter made any real attempt to speak to each other, their attitudes towards each other are softening. The wife’s attempts to bridge the impasse that developed with her elder daughter were few and in the circumstances inadequate. To a considerable degree, she waited until T decided to take steps, which may ultimately reconcile their differences. Recently and after the Court counsellor’s consultations, T has been to the wife’s place for an evening meal as well as staying overnight. The husband has been instrumental in facilitating this rapprochement, as he takes T to see her mother.
TJC is a troubled teenager. Of the three children, he has been most adversely affected by the parties’ separation. He presented to the Court counsellor as “a rather dishevelled, aimless and withdrawn young man”.[21] As I have already found, his wish to live with his father was implemented when the parties separated. In his father’s care, TJC continued to attend school at SCH. In 2002, during the time TJC lived with his father, he missed eight days’ school.[22] The parties agree that he was genuinely sick on some of these occasions. Whilst in his father’s care TJC was caught up in a shoplifting escapade. Another youth was the prime mover and ultimately the only person charged. Curiously the husband asserted that this incident in some way reflected adversely upon the wife’s capacity to parent TJC. As TJC was in his care at the time, I do not accept the submission. When TJC decided that he wanted to return to his mother’s, his decision was implemented without rancour.
[21] Family Report, p.18
[22] Exhibit “D”
Since TJC has returned to live with his mother he has started to use marijuana. The husband asserted that TJC may also be selling marijuana to friends. The evidence does not support his fear. The wife has told TJC that he must not smoke marijuana and objects to him doing so in the house. Nonetheless he does so. She can tell when he has been smoking marijuana. Unfortunately, the wife lacks the moral authority to assert her rules in TJC’s use of marijuana. That is because she has used marijuana for many years. She smokes it in her en suite. As she is able to tell by looking at TJC that he has been smoking marijuana, it is likely that the children can recognise when their mother has smoked it. As would be apparent, I am satisfied that TJC refuses the wife’s direction and does not accept her authority to limit or guide his behaviour.
The pattern of his absences have become more intense and rather than improving. His school attendance has fallen and he is seriously school-avoidant. In his mother’s care he has missed 25 days’ school.[23] The wife has tried her best to make TJC go to school. She even tried to hire off-duty security guards to force him out of bed in the morning. She was unsuccessful. As his rate of absenteeism worsened, she spoke to his Year 8 coordinator and his school counsellor. Her attempts to encourage TJC into counselling have been unsuccessful and he refuses to go to school on the days the counsellor attends. The wife has an appointment with Chain, an adolescent counselling unit as well another appropriate service. The Court Counsellor revealed that TJC’s counselling had broken down. The wife’s evidence at the Court left the impression that the counselling was continuing. This was disingenuous.
[23] Exhibit E
When TJC saw the Court Counsellor the first time he told PL, “I feel more free when I live with Mum, she is less strict.”[24] The husband rang TJC on 17 October 2002. TJC was wagging school. The husband went to the former matrimonial home and spoke with TJC for two or three hours. During the course of the discussions, he asked TJC to think about returning to live with him. He invited TJC to think about his decision for a few days. On 20 October 2002 TJC told the husband, “I have made up my mind, I want to live with you Dad”.[25] When TJC saw PL the second time he told the Court Counsellor that he wanted to live with his father. He explained that he thought life with his father would be more fun than it had been, partly because T has a car. Relevantly, he observed that his father seemed less depressed and that they could talk more together than they previously had.
[24] Family Report, p.19
[25] Exhibit A Para 5.2
This is the second time TJC has changed his mind about which parent he prefers to live with. At separation his choice was based partly on his own needs and partly upon his concern for his father. This suggests that their relationship is one that TJC values. It is important to him. Whilst they lived together TJC had stricter controls which resulted in him attending school reasonably regularly. His decision to live with his mother, as expressed during the Court counsellor’s interview, was based partly upon his belief that his mother is more liberal. Hence, whilst he lives with her he does not have the stricter controls that his father demands. Knowing this, TJC’s recent change of heart makes it possible that he may be developing some insight that his behaviour has become self-destructive and that he needs his father’s greater involvement day by day. Perhaps because she has had a laissez-faire approach to TJC, the wife’s capacity to force him to school and counselling have failed. By comparison the husband has been consistently firmer. Because of its consistency, TJC is likely to be more accommodating of his father’s firmer approach than his mother’s belated attempt at it.
Initially, the Court Counsellor recommended that TJC continue to live with his mother. Partly this was because TJC wished to do so. It was a pragmatically realistic response to the limitations on a Court of ordering a child with TJC’s disposition and attitudes to live other than where he chose.
Because TJC has changed his mind comparatively recently, I treat his wishes cautiously. There is a possibility that TJC may change his mind again. If he returns to live with his mother, that living arrangement is unlikely to succeed. Just as the wife was unable to have T remain living with her, should TJC return there is a real likelihood that history will repeat itself and that he will reject her. The court’s responsibility is to make orders that address children’s long-term interests. It can be difficult when considering troubled teenagers. Because TJC wants to live with his father and his father will offer a style of parenting that is consistent, there is a better prospect that TJC will live at least with one parent and accept parental guidance for a longer period than if he remains in his mother’s care. TJC told the Court Counsellor that, “he would live with it” if ordered to remain with his mother. He may do so in the short term, however, it is unlikely that he will attend school and increasingly likely that he will leave of his own volition to live with his father or, disastrously for TJC, abandon both parents. Thus I am satisfied that the husband has a considerably greater capacity to meet TJC’s educational, physical and emotional needs. This is an important factor to which I attach considerable weight.
TC wants to live with her father. Her wishes have been maintained consistently since her parents separated. Before she saw the Court Counsellor, the wife arranged for TC to receive counselling. TC had four counselling sessions during which she discussed matters that were concerning her. It is likely that these sessions empowered TC and gave her the opportunity to think strategically and clearly about her circumstances. This enhances the quality of TC’s decision and the weight that should be attached to it. Because she is 11 years old and is a happy child of age-appropriate maturity, I am satisfied that TC’s wishes must have real weight. I take into account the wife’s counsel’s submission that her wishes are influenced because her contact with the husband has been limited and inconsistent.
Both parents agree that TC has a close relationship with each of them and that she loves her parents. The parties and TC’s elder siblings agreed that she has a particular affinity to her father. The quality of her relationship with her father is likely to be the motivating influence the drives her desire to life with him. The wife’s Counsel submitted, in essence that TC’s wish to live with her father expressed to the court counsellor influenced by her lack of regular contact with him. Whilst this is so, that was not the prevailing circumstance at separation. The lack of regular contact may have contributed to the strength of the child’s wish but it is the quality of the relationship that underpins it. TC and her mother enjoy each others company and share an interest in dance and BMX bicycles. Together they enjoy belly dancing classes. They have a comfortable and companionable relationship.
The Court Counsellor observed TC in the company of her parents and siblings. He reports “in each observation she maintained a cheerful demeanour and appeared to enjoy herself. She appeared to be quite at ease irrespective of which parent she was with”.[26] There is little to distinguish the quality of TC’s relationship with both of her parents that would influence materially the Courts decision. Because her relationship with both parents is completely appropriate, other factors must have greater influence.
[26] Paragraph 24
T and TC, it is agreed have a good relationship. T told the Court Counsellor that she would happily share her bedroom with TC and in essence, would welcome her into the home. TC’s wish to live with her father is influenced considerably by her desire to live her sister. She told the Court Counsellor, “T looks after me and takes me places”.[27] Although T and TC are likely to develop different interests and TC will not be able to join her older sister in some of her recreational pursuits, the quality of their relationship is such that I am satisfied that they will enjoy the opportunity to live together. In the same home they will have free and easy daily contact to each other. Their relationship will be enriched and their opportunity to enjoy it materially enhanced. The only circumstance in which this can be achieved is if TC lives with the husband. This weighs heavily in favour of his application.
[27] Family Report paragraph 22
TC’s relationship with TJC is more difficult. TC appears to have difficulty coping with some of TJC’s behaviour and would prefer not to live with him. When TJC returned to the wife’s home his behaviour deteriorated. There is serious conflict between TJC and his mother concerning his attendance at school, inter alia and it is likely that there have been arguments between them. I infer that this is so from the wife’s desire to hire security guards to physically coerce him out of bed and her description of entering his room and shouting at him when he hadn’t arisen. Similarly, TC had seen her brother take up body piercing not, as the wife described it “as body art”, but apparently as a form of self mutilation. Body piercing does not necessarily warrant categorisation as mutilation. There are members of the community who consider it a form of self expression. TJC, however, hurt himself when putting eyebrow rods into his arm. These became seriously infected. There is a reasonable possibility that his extreme behaviours will lessen and that his behaviour generally may improve in his father’s care. Thus his younger sister may find him easier to live with. The presence of her older sister and her father, even his behaviour doesn’t improve, will moderate the difficulty TC has dealing with him. At the present, TJC often supervises TC after school before the wife arrives home from work. This is arrangement does not work. The husband proposes that his sister, JV will care for the children after school in the event that he not able to do so. JV impressed me as a sensible person who will competently fill this role. Her presence relieves TJC of responsibility that is beyond him and diminishes the prospect of conflict between TC and her brother.
The husbands proposals involve significant change. In his affidavit material he reveals that he plans to rent, or if possible, acquire a property in the same area as the family home. Thus the younger children need not change school. TC starts high school next year and irrespective of the parent with whom she lives, they agree that she will attend the high school that takes it pupils from her present school. She will be able to maintain her friendships irrespective of the outcome of these proceedings.
During cross examination the husband confirmed that he would like to acquire the wife’s interest in the former matrimonial home. She opposes this course. The home which is next door to her mother’s property. She and the children see her mother very frequently and she wants to be able to keep easy access to her mother. I have already found that she will have the opportunity to acquire the husband’s interest in the home. Thus, the husbands proposal requires that the children move home. If he remains in a two bedroom unit, the premises will be crowded. His alternate proposal of acquiring a three bedroom dwelling is preferable and will provide the children with sufficient space for individual privacy. This will mean that the risk of extra conflict between them is reduced. Rather than the children move immediately, it is preferable that once the husband has acquired a larger residence that the change in residence is given effect to. Thus the dislocation associated with changing homes is lessened. Simply put, one move is less difficult than two.
The factor that weighs most heavily in favour of the wife’s proposal vis TC, is that she has always lived her. TC’s disposition as a happy and well behaved pre teen girl is attributable, to no small degree, to the wife. If the husband had considered that TC was at risk in her mother’s care he would not have agreed at separation that she remain there. Although he has concerns about the care TC has received in terms of the adequacy of supervision during the periods since separation, his evidence does not suggest that there is a critical need that TC leave the wives care.
The court is concerned with a child’ long term interests. The Court Counsellors caution that TJC is a child who copes poorly with change did not include TC. TC’s happy and resilient disposition means that she is likely to cope with a change in residence with minor disruption. Any unhappiness that she feels in leaving her mother will be moderated by recognition that her wishes have been respected.
Conclusion
T will live the husband. Both TJC and TC want to live there as well. Because TJC’s wishes concerning residence have changed twice in recent times they must be treated cautiously. When combined with his fathers consistently firm approach to parenting TJC has a better chance of stability and completing his education with him than living with the wife offers. Unfortunately, he does not respect her parental authority and her best efforts to help him stay at school and survive his adolescence without great difficulty, are highly unlikely to succeed. TJC is closest to T and he may benefit from her daily impute. T has the potential to be a worthy role model for TJC and her influence will compliment the husband’s parenting style and authority.
Until twelve months ago these three children lived together. T and TC are close and enjoy a relationship that both value. They want to live together. In spite of their age differences they should have the remaining years of their childhood in one another’s company to the greatest extent possible. This will contribute meaningful to the strength of their relationship and their identity as sisters. With the husband’s guidance and T’s moderating influence, TC should be better able to cope living in the same house that TJC does compared to her current circumstances.
When the wife agreed that TJC could live with the husband I am satisfied that the husband was well able to met TJC’s physical, intellectual and psychological needs. Implicitly she respected his capacity as a parent and his understanding of his obligations to his children. Although with hindsight he may make some decisions differently, he is objectively a competent parent who is available and able to care for the three children.
Neither party suggested that the court should order that TC live week about with them. I agree. Changing residence substantially each week requires much greater co-operation and consistency than these parties have. Structuring the orders as I have will mean that TC predominantly attends school from her father’s home. She will have an essentially secure base that will enable her education to be undertaken without too much disruption.
In the next few years these parents may face very difficult issues with TJC. TC described her parents relationship as “world war two”. It is an apt description. They must find a basis upon which they can communicate effectively in relation to their children. I will order that they attend a post separation parenting program. This will provide a structure to which they can work to achieve effective communication.
The orders for contact must be made. Left to their own devices the parties have not been able to establish a regular routine for contact between the children. The Court Counsellor’s recommendation that TC spent one week with her mother and one week with her father was departed from to some extent during cross examination. Rather, he emphasised TC’s need to spend reasonable time with the parent with whom she does not otherwise live. The orders will provide that TC spend from after school Friday until the start of school Monday each alternate weekend and one evening overnight during the following week. Should TC wish to continue her dance classes with her mother this wish must be respected. Enforcing TJC’s compliance with orders for contact maybe problematic. Nonetheless it is important that the Court sends a message to TJC that his relationship with his mother is valuable and that there is a minimum structure within which it should be enjoyed.
This has been a difficult and finely balanced decision. The orders I make are orders that I am satisfied are in the best interests of the children.
For these reasons I make the orders identified at the start of the judgment.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date: 26 November 2002
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