C and G and M
[2001] FMCAfam 83
•25 July 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
C & G & M [2001] FMCA fam 83
FAMILY LAW – Property – Contributions – Inheritance – Children – Contact – Separated siblings – Children believed husband was their biological father – Biological father seeks contact.
| Applicant: | L M G |
| First Respondent: | J A M G |
| Second Respondent: | U T M |
| File No: | ZP 1855 of 2001 |
| Delivered on: | 25 July 2001 |
| Delivered at: | Parramatta |
| Hearing Date: | 4th and 5th July 2001 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Solicitor Advocate for the Applicant: | Mr Brown |
| Solicitors for the Applicant: | Michael Brown, 6/153 George Street, Liverpool 2170. DX 5038 Liverpool NSW |
| Counsel for the First Respondent: | Mr Kearney |
| Solicitors for the Respondent: | Newnhams, 7/122 Castlereagh Street, Sydney 2000. DX 665 Sydney NSW |
| The Second Respondent . | In Person |
ORDERS
THAT forthwith upon the making of these orders both the husband and the wife do all acts and things necessary and give all directions to H P and G to forthwith disperse the sale proceeds of the property at B as follows:
(a)In the sum of $32,492.65 to the wife; and
(b)The balance to the husband.
Unless otherwise specified in these orders:
(a)Each party be solely entitled to the exclusion of the other, of all other property and chattels of whatsoever nature and kind in the possession of such party as at the date 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 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;
(b)Each party is solely liable for and indemnifies the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
In the event that either party fails, refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders and pursuant to s 106, a Registrar or Deputy Registrar of the Federal Magistrates Court of Australia is hereby appointed to execute all deeds, documents or instruments in the name of the defaulting party and to do all such acts and things necessary to give validity and operation to such deeds, documents and instruments.
That the children R G born 5 January, 1986 (“R”) and S G born 16 April, 1998, (“S”) live with the wife, L M G.
Contact is structured on a four week calender commencing on the weekend 28 and 29 July 2001.
During holidays, until 2003, weekend contact is suspended other than during the Christmas school holidays. Although the weekend contact is suspended the weekends continue to run for the purpose of calculating the next period of contact.
Commencing 2003 weekend contact is suspended during school holidays.
School holidays shall:
(a)Commence at 10.00am the first Saturday after the gazetted term is completed.
(b)Finish at 3.00pm on the day before school resumes.
(c)Pupil free days are deemed to be school holidays.
(d)The children are to be returned at 3.00pm at the end of any holiday contact, unless otherwise provided in these orders.
Contact orders relating to R and S G
THAT the father, U M, shall have contact with the children as follows:
(i)From 9.00 am Saturday until 4.00 pm Sunday on the first weekend of each month and during school holidays by arrangement with the mother;
(ii)From 9.00 am until 4.00 pm on Father’s Day;
(iii)Otherwise at dates and times agreed between the mother and father.
THAT J G have contact to the children as follows:
(i)From 4.00 pm Friday until 4.00 pm Sunday on the third weekend of each month.;
(ii)Until the commencement of 2003 for the four days during each school holiday period;
(iii)Until 2003 for an additional four-day period during the Christmas school holidays, the dates and times to be agreed between the husband and wife;
(iv)Commencing from the Easter 2003 school holidays, for the first half of each of the school holiday (excluding Christmas holidays) periods in years ending in an odd number, and the second half in each school holiday period for years ending in an even number, alternating annually thereafter;
(v)Commencing the 2003/2004 Christmas school holidays for two weeks immediately before or after the wife's contact whichever is appropriate.
(vi)In the event that contact occurs on Mother’s Day, that contact is suspended and the children are to be returned to the wife by 6.00 pm on the Saturday evening immediately prior to Mother’s Day.
Contact orders relating to B and M
That Order 3 made at Campbelltown Local Court on 16 November 2001 is discharged
THAT the wife have contact to the children B and M as follows:
(i)From 4.00 pm Friday until 6.00 pm Sunday on the second and fourth weekend in each four-week cycle;
(ii)For the second half of each school holiday period;
(iii)On Mother’s Day from 9.00 am till 6.00 pm;
(iv)For one half of the Christmas school holidays, commencing at 12 noon on 26th December 2001, 12 noon 24th December 2002 and thereafter alternating with the first half of the Christmas school holidays commencing in the second half of the 2003/2004 school holidays, alternating annually thereafter.
THAT the father is responsible for collecting and returning the children for the purposes of his contact.
THAT the husband is responsible for collecting and returning the children for the purposes of his contact with R and S and the mother’s contact with M and B.
That the Court declares pursuant to s 69VA of the Family Law Act 1975 that U M is the father of R G born 5 January 1996 and S G born 16 April 1998.
That the mother L G, and the father U M sign all documents and do all things necessary to cause the Registry of Births, Deaths & Marriages to record that father on the birth certificates of R G born 5 January 1996 and S G born 16 April 1998.
THAT all outstanding applications are dismissed.
THAT all exhibits be returned at the expiration of one calendar month unless an appeal is lodged.
THAT the solicitors who caused any subpoena to issue uplift the documents produced in answer to the subpoena and return them to their owner within seven (7) days of the date of these orders.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA
ZP 1855 of 2001
L M G
Applicant
And
J A M G
First Respondent
And
U T M
Second Respondent
REASONS FOR JUDGMENT
Proceedings
These proceedings are for financial and parenting orders. They relate to the adjustment of property, contact and specific issues orders as well as declaration of paternity.
The applications
L M G (“the wife”) filed an application for final orders on 30 May 2001. She filed an amended application on 27 June 2001. Her amended application identified the orders sought at the commencement of the trial insofar as they related to the children. Her application filed on 30 May 2001 identified the orders sought by her in relation to the adjustment of property. During the course of the proceedings she modified the orders sought concerning the children and they became the following:
(1)That the children of the relationship R G (born 16.9.1996) and S G (born 11.4.1998) reside with the wife.
(2)That the husband should have contact to the children S and R one weekend each month and at other times as the parties may agree.
(3)She conceded that orders relating to the second respondent's application could be made against her by consent.
(4)That the wife have contact to the children B and M as follows:-
(a) Each alternate weekend from 12.noon Saturday to 5.00pm Sunday;
(b) One half of all school holidays;
(c) Each alternate Christmas Day by agreement from 2.00pm 24th December to 2.00pm 25th December 2002 and each alternate year thereafter and from 2.00pm 25th December to 2.00pm 26th December 2001 and each alternate year thereafter.
In relation to property, she sought an order as follows:
(5)That the Parties do all acts and things to cause the wife to be paid the amount of $39,200 from monies presently invested in a Commonwealth Bank Controlled Monies account by the solicitors for the parties.
(6)That the husband pay the wife's costs.
(7)That except as otherwise specified each party retain the sole right title and benefit to all items respectively in their name possession or control.
J A M G (“the husband”) filed a response to the application for property orders on 12 June 2001. It contained the orders sought by him at trial, subject to the variation identified in his counsel’s outline of case document and then in relation to contact between the elder two children and their mother. The orders he sought are as follows:
"1. That the Respondent Husband have contact with the children R C Al M G born 5 January, 1986 (“R”) and S H F M G born 16 April, 1998, (“S”) as follows:
(a) each alternate weekend from the conclusion of school Friday to the commencement of school Monday commencing 13 July 2001;
(b) each other weekend from the conclusion of school Friday until 12.00noon Saturday commencing 20 July 2001;
In the alternative to Order 1(b) above:
(b)from the conclusion of school Wednesday to the commencement of school Thursday in each week commencing 11 July 2001;
(c)for half of each school holiday period as agreed between the Husband and Wife and failing agreement, for the first half in 2001 and each alternate year thereafter and for the second half in 2002 and each alternate year thereafter;
(d)each alternate Christmas Day by agreement between the Husband and Wife and failing agreement:
(i) from 12.00noon 24 December to 12.00noon 25 December 2001 and each alternate year thereafter; and, from
(ii) from 12.00 noon 25 December to 12.00noon 26 December in 2002 and each alternate year thereafter.
(e)on each of the children's birthday by agreement and failing agreement, as follows:
(i) in the event that the birthday falls on a weekend, then from 9.00am until 2.00pm in 2001 and each alternate year thereafter and from 2.00pm until 7.00pm in 2002 and each alternate year thereafter;
(ii)in the event that the birthday falls on a school day, then from the conclusion of school until 6.00pm in 2001 and each alternate year thereafter and from 5.00pm to 7.30pm in 2002 and each alternate year thereafter.
(f) on Father's Day if it is not otherwise a contact weekend from 9.00am until 6.00pm provided, however, there is to be no contact between 9.00am and 6.00pm on Mother's Day;
(g) liberal telephone contact;
(h)such further or other contact as may be agreed between the Husband and Wife.2.That the Husband have sole responsibility for decisions concerning the day to day care, welfare and development of the children R and S for such periods as the children or either of them are in the Husband’s care.
3.That the Wife and Father provide and continue to provide all consents and authorities necessary to enable the Husband to attend at the schools (and functions associated with the same) of R and S, to collect the said children from the same schools and to obtain details of the children’s progress at school including copies of their reports and other such documents.
4.That Order 4 of the Orders of the Local Court of New South Wales at Camden be varied to provide that, subject to Order 5, the Applicant Wife have contact to the children Y F B M G born 16 September 1989 and M C W M G born 4 October 1990 as follows:
(a) pending completion of the course referred to in Order 5(a) below, each Sunday from 9.00am to 12 noon and upon completion of the said course, contact in accordance with the following Orders;
(b) thereafter each alternate weekend from 12 noon Saturday to 5.00pm Sunday such contact to occur on the weekends upon which the Husband has contact to the children R and S in accordance with Order 1(b) above;
(c) for half of each school holiday period as agreed between the Husband and Wife and failing agreement, for the first half in 2002 and each alternate year thereafter and for the second half in 2001 and each alternate year thereafter;(d)each alternate Christmas Day by agreement between the Husband
and Wife and failing agreement:
(i)from 12.00noon 24 December to 12.00noon 25 December 2002
and each alternate year thereafter; and, from(ii)from12.00noon 25 December to 12.00noon 26 December in 2001 and each alternate year thereafter.
(e) on each of the children's birthday by agreement and failing agreement, as follows:
(i)in the event that the birthday falls on a weekend, then from 9.00am until 2.00pm in 2001 and each alternate year thereafter and from 2.00pm until 7.00pm in 2002 and each alternate year thereafter;
(ii)in the event that the birthday falls on a school day, then from the conclusion of school until 6.00pm in 2001 and each alternate year thereafter and from 5.00pm to 7.30pm in 2002 and each alternate year thereafter.
(f) on Mother's Day if it is not otherwise a contact weekend from 9.00am until 6.00pm provided, however, there is to be no contact between 9.00am and 6.00pm on Father's Day;
(g) liberal telephone contact;
(h) such further or other contact as may be agreed between the Husband and Wife.
5.That the Husband and Wife forthwith do all things necessary to attend upon Unifam and complete the next available “Keeping in Contact” program and shall ensure that the children or such of them as are required also attend such course.
6.It is declared that neither party has any interest in any item of property (real or personal) or financial resource presently in the name, possession or control of the other or to which the other is entitled.
7.That all applications otherwise be dismissed."
U T M (“the father”) filed a response on 27 June 2001 and then an amended response (with leave) at the commencement of the hearing. The orders sought by him at the final hearing were:
(1)That Order 1 of the response filed by J G filed on
12 June 2001 be dismissed;(2)That the Court declare pursuant to s 69VA of the Family Law Act 1975 that U M is the father of R G born 5 January 1996 and S G born 16 April 1998;
(3)That the mother L C, and the father U M, sign all documents and do all things necessary to cause the Registry of Births, Deaths & Marriages to record that father on the birth certificates of R G born 5 January 1996 and S G born 16 April 1998.
(4)That the father U M, have contact with the children as follows:
(a) Each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday;
(b) For four hours on each of the children’s birthdays, if such day falls on a non-school day and for two hours on each of the children’s birthdays if such day falls on a school day, at times agreed between the mother and the father;
(c) On Christmas Day, at times agreed between the mother and father;
(d) From 9.00 to 5.00 pm on Father’s Day;
(e) During school holiday periods at times agreed between the mother and the father;
(f) Such further times as the mother and father agree.
Short history
The husband was born on 7 May 1951 and is now aged 50 years. The wife was born on 17 November 1961 and is now aged 39 years. The fathers details are not in evidence.
There are four children of the marriage. They are Y G born 16 September 1989, M G born 4 October 1990, R G born 5 January 1996 and S G born 16 April 1998. The husband is the elder two children’s father. The father is the younger two children’s father.
The husband and wife commenced cohabitation in January 1990 and finally separated on 30 October 2000.
Since separation the elder two children have lived with the father. The younger two children have lived since separation with the mother.
The marriage still subsists.
The evidence
The applicant wife relied on the following evidence:
·Her affidavit sworn 26 June 2001 and filed 27 June 2001, together with her oral testimony.
·Her financial statement sworn 29 May 2001 and filed 30 May 2001.
The respondent husband relied on the following evidence:
·His affidavit sworn 26 June 2001 and filed 29 June 2001, together with his oral testimony;
·His financial statement sworn 26 June 2001 and filed 29 June 2001;
·Affidavit of J S sworn 26 June 2001 and filed 29 June 2001.
The respondent father relied upon the following evidence:
·His affidavit sworn 28 June 2001 and filed 29 June 2001, together with his oral testimony.
Documents were tendered that became exhibits in the proceedings.
Relevant facts
When the parties commenced cohabitation, the husband was 39 years old and the wife was 28 years old. In 1988 the wife had completed a Bachelor of Nursing Studies at the University of Technology. She has never worked as a nurse. The husband was working part-time as a sales consultant with the T D of NSW. On average he worked two sometimes three days per week.
The husband lived at his father’s property “G G”, B G, O. He had lived with his father since about 1984. The husband had lived in a discreet part of the home and the wife moved into that part of the house with him.
B was born two months before the parties commenced co habitation. The wife and B lived with the wife's parents on the south coast of NSW prior to the commencement of cohabitation.
Until late 1994, the husband’s income comprised the sole source of income for the family. It is common ground between the parties that he earned a modest wage.
In their affidavit material, there is apparent agreement that at the commencement of cohabitation neither party owned any assets or had any liabilities of significance. When giving oral testimony, the wife alleged that she owned a Wales bank account that contained approximately $10,000. For reasons I will give later in this judgment, I did not accept this evidence.
When the parties commenced cohabitation, they lived with the husband’s father, W G. He suffered from Parkinson’s Disease. The husband’s father, although in his seventies, continued to work three days a week as a solicitor with his firm in western metropolitan Sydney. During 1994, his health deteriorated as the effect of the Parkinson’s Disease worsened. By late 1994 his health was such that he required care. The husband applied for and was granted a carer’s pension in late 1994.
In about October 1994, the husband enrolled in a mediation course with Centrecare. This was a 16-week course that he attended two days a week. Subsequent to completion of the course, the husband has worked about two days per week, conducting mediation on a contract basis for the C J C.
On 18 August 1996, the husband’s father died. The husband is one of four brothers and he received a one-quarter share of his late father’s estate. The main asset in the estate was the house and land at O. Between November 1996 and July 1997, the husband received a partial distribution from the estate totalling $12,000.
In late 1996, the husband contracted to purchase land in O R, T. He incurred costs engaging a surveyor, architects and planners. Those costs were not quantified. They were paid from the initial estate distribution. The purchase was not completed.
On 5 November 1997, the husband and wife entered into a contract to purchase vacant land at W S, B. The purchase price was $58,000. The purchase monies in their entirety were derived from the husband’s interest in his late father’s estate.
In December 1997, the sale of the husband’s late father’s property was completed. From the proceeds of sale the husband received an additional $101,275.28. This enabled the purchase of the B property to be completed. $20,000 was then spent clearing the B property and on the erection of a shed.
As a consequence of the sale of the home in which they had been living, the parties then moved into rented accommodation.
In February 1999, the husband was diagnosed with prostate cancer. His treating doctor, Dr H advised him in March 1999 that he should have a radical prostatectomy. Although the surgeon was able to perform the surgery in March or April 1999 the husband did not seek to have the surgery until December 1999. By then the cancer was inoperable and he has not had surgery.
In 1999, the husband arranged to borrow $25,000, which monies were secured by way of mortgage against the B property. Those monies were expended entirely having electricity, telephone and other services connected to the land. In October 2000, the wife, at the request of the husband, executed a Memorandum of Transfer, purporting to transfer her interest in the B property to the husband. The transfer was never registered.
In either late October or early November 2000, the parties separated when the wife and children left the home. Shortly after the husband assumed the care of the elder children, thereby separating the siblings by age and paternity.
On 1 November 2000, the husband and wife executed an agency agreement offering the B property for sale.
On 10 November 2000, the wife executed a loan release in relation to the mortgage on the B property, authorising the discharge of the mortgage from the sale proceeds.
Orders were made at Campbelltown Local Court, by consent, on 16 November 2000. Those orders provide:
1.That the children Y (B) and M reside with the father.
2.That the father be responsible for the day-to-day care, welfare and development of the children.
3.The children have liberal contact with the mother and their half-sisters as arranged.
In mid-January 2001, the husband and wife reached an agreement that R and S would exercise contact each alternate weekend to the husband and during school holidays.
On 15 February 2001, the B property was sold at a sale price of $130,000. The husband received the first payment of $6,500 from the sale of B on 22 February 2001.
The wife executed a further Memorandum of Transfer, which transfer passed title in the B property to the incoming purchasers. The husband received the proceeds of sale.
On 1 May 2001, further parentage testing results are produced by Silbase relating to R and S. The tests disclose that U M is both children’s father to a 99.98 % degree of certainty.
On 30 May 2001, the wife commenced these proceedings. On 1 June 2001, orders were made ex parte as follows:
IT IS ORDERED PENDING FURTHER ORDER
1.That the husband is restrained from doing any act or thing or signing any document to have the effect of transferring diminishing dissipating encumbering or in any reducing the remaining proceeds of sale of the W S B property below $45,0000 currently held in trust with H G P or such account where the proceeds of sale of the property at W S B are otherwise held.
2.This injunctive order is to operate until 4.00PM 15 June 2001.
3.I direct that the application, affidavit in support and a sealed copy of these orders is served on the Respondent and Messrs H G P Solicitors by 4.00PM 4 June 2001.
4.I authorise the Solicitors for the Application to give written notice by facsimile transmission to the Respondent and to H G P solicitors forthwith.
5.I give liberty to the Respondent to apply on 24 hours notice
On 5 June 2001, the wife initiated an Apprehended Violence Complaint and Summons against the husband.
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 (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage of Clauson (1995) FLC 92-595) 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). Thirdly, evaluating the matters contained in section 75(2) insofar as they are relevant.
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 (1999) FLC 92-877.
Contact orders and specific issue orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to Section 65E in that in determining the outcome the best interests of the child is the paramount consideration. That is the overriding principle.
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 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 child’s best interests.
In deciding the 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.
Assets at the date of hearing
The parties reached some agreement as to the value of assets.
A significant issue in the proceedings was the treatment of antique furniture inherited by the husband and what monies, if any, should be notionally added back into the identified assets, sourced from the sale of the B property. There was no dispute that the legal fees paid by the husband should be added back. The wife has incurred legal fees, however there was no evidence before the Court as to their quantum, nor whether they have been paid or remained unpaid. After payment of the mortgage ($26,145.83), agent’s commission ($4,235) and legal fees ($800), the husband received $98,819.17 from B. He was able to account for expenditure therefrom as follows:
·Moving expenses $1,300
·Rent $3,720
·Medical bills $1,040
·Electricity, telephone etc. $1,100
·R J Autos, for a second hand bus $13,700
·Furniture $450
·Legal fees for earlier proceedings $1,118
·Paid legal fees $2,217
·Storage fees $880
·Medical benefits $405
·Solicitors fees on account of costs for hearing $5,000
TOTAL: $31,430
In accordance with the agreement reached subsequent to the ex-parte injunction, the husband has deposited $45,000 into a controlled monies account managed by his solicitors. He agreed that as at 7 June 2001, the account into which the B monies were deposited had a current balance of $57,661.45. When asked to account for the $10,000 discrepancy (ie between monies identified in paragraph 51 of his affidavit and the balance in his account as at 7 June 2001), he attributed the gap to expenditure on day-to-day living expenses. Although he has taken three short holidays with the two elder children, those holidays have not involved accommodation costs and do not adequately account for the gap in expenditure. I accept Mr B submission that the husband has not given an adequate explanation for the disposition of the shortfall, and that that shortfall should be added back. Putting to one side the amounts expended on legal fees, the monies the husband has otherwise expended are monies that have been reasonably incurred by him on necessary living expenses. There is no basis for adding back monies spent in these circumstances. Marker (1998) Fam CA 42 (unreported).
The wife held approximately $4,500 in her Westpac (formerly Wales) account at the time of separation. Prior to separation the husband did not know that this account existed. I am satisfied that these are funds earned by the wife during the course of the marriage. The wife said that she owned the account and monies prior to cohabitation and that the account accrued interest payments and later in the marriage the deposits I have identified. She had savings of approximately $10,000 in mid 1999 and used $5,000 for personal elective surgery. Exhibit A discloses a balance of $1100.00 as at February 2000, which money is in addition to the Westpac term deposit holding the $5,000. Thereafter the exhibit reveals regular sums of money deposited into the account, totalling $3,276.80 (including interest). The wife said the deposits were derived from amounts saved from her family allowance and family income. The husband denied that this could be the case. I accept his evidence that the family expended the entirety of its income on daily living expenses and do not accept that there was sufficient surplus income to keep as savings. The income was so small that the husband would have noticed hundreds of dollars being regularly siphoned into a bank account. I accept that by May 2001 her savings had been depleted to $1,000 and currently stand at $500. Since separation the wife's income has comprised her pension, $5.00 per week child support from the husband and small amounts of money from Mr M. She has drawn on her savings to meet her reasonable living expenses. Those monies should not be notionally added back.
The husband's evidence in relation to the disposition of his antique furniture is unsatisfactory. He gave varying and inconsistent accounts as to its ownership. No documents have been signed establishing a trust or evidencing a gift. He says he has given it to a brother and that in his will he directs that his brother gifts the antiques to his children. I am not satisfied that the husband has gifted the furniture to his brother. Even had he done so, its value should be added back into the notional pool of property. I am satisfied on the evidence that the husband is the owner of the antique furniture received from his father’s estate.
I find the assets, liabilities and financial resources of the parties as at the date of the hearing are as identified in the following table.
| Assets | $ |
| Monies held by N in controlled money account (agreed value) (joint) | $45,000 |
| NRMA shares (agreed) (H) | $2,282 |
| 1983 Mitsubishi Star Wagon (agreed) (H) | $2,000 |
| Interest in G & S Partnership (H) | $6,850 |
| Monies owed to husband by J. S (H) | $6,850 |
| Household effects (H) | $1,000 |
| Antique furniture (H) | $14,000 |
| Paid legal fees (H) | $3,835 |
| Monies on account legal fees (H) | $5,000 |
| Wife’s savings | $500 |
| Monies not accounted for by husband (H) | $10,000 |
TOTAL: | $87,317 |
Liabilities | |
Nil | |
Financial resources | |
First State superannuation (H) | $1,000 |
Contributions — section 79(4)
As set out in paragraph 19, neither party owned assets of significant value at the date of commencement of cohabitation, or at the date of marriage. Their initial contributions were of equivalent value.
The husband was in part-time employment earning a modest income from the commencement of cohabitation until 1994. His income was the sole source of income for the family. I am satisfied that the husband applied the entirety of his wages to the betterment of the family. From 1994 and until separation, the parties main source of income was derived from the Department of Social Security. The husband received a carer’s pension arising from the need to care for his late father, and the wife received a family allowance payment that related to her care of the children. Monies earned conducting mediations, which amounts were small, supplemented the husband's income. The earned income moderately adjusted the social security payments and on average, the family received about $800 per fortnight during those years when social security provided the major source of their income. Their income was pooled and used to meet expenses as they arose.
The parties lived rent-free in accommodation provided by the husband's father for 8 years. They paid for the gas, telephone, firewood and food incurred by the entire household. This is a financial contribution made to the marriage on behalf of the husband. It has significant financial consequences when regard is had to the limited income earned by the parties. Without the husband's contribution by way of rent free accommodation the parties and children I am satisfied would have endured very difficult living circumstances.
The inheritance received from the husband's father is a valuable financial contribution made on his behalf. It was received in the later period of cohabitation. Mr B for the wife submitted that the wife made a contribution to the acquisition of this asset as a consequence of her care of late Mr G. The husband denied that she participated in his father's care. His evidence was that he, and the elder children when he was absent, undertook the care and that the wife refused to help his father. During cross-examination he conceded that the wife prepared the evening meals for the entire family. He acknowledged that at the time of his father's deterioration, the children were 5 years and 3 years old. As a consequence of their ages I do not accept his evidence that they assumed a care-giving role to his father. I accept that the wife did involve herself in the care of the late Mr G, during the days when the husband was at work and at meal times. This is not relevant however to the acquisition of the inheritance. Mr G snr divided his estate equally between his four sons. He did not acknowledge any special contribution by the husband. The inheritance was not bequeathed to the husband and wife conjointly. For these reasons I am satisfied that the inheritance is a contribution made on behalf of the husband.
The inheritance was used to purchase the B property. This property increased in value as a consequence of improvements made after its acquisition, which improvements were paid for from the inheritance. Neither party made any meaningful additional contribution to the B property and I am satisfied that the increased value realised with its sale reflects only the money spent improving it and movement in the property market. Thus the inheritance funded living expenses and the acquisition of property. Hence I am satisfied that the inheritance provided directly and absolutely the monies now available from the proceeds of sale of B. Other than for the small savings held by the wife it directly provided the source of funds for the entirety of the available matrimonial assets. Its value has not been eroded by the passage of time. Neither party has enjoyed the antique furniture and this asset should be treated differently to the other identified assets. The wife made no contribution to its acquisition, conservation or improvement. I accept the submission made by counsel for the husband that the husband should have the sole benefit of this asset.
Thus, the Husband’s direct financial contributions significantly exceed the Wife’s when evaluated comparatively.
Neither party made any meaningful non financial contribution to the acquisition, conservation or improvement of the assets of the marriage.
Both parties made a contribution as home-maker and parent to the welfare of the family. The wife cared for the children on a full time basis until 1999. The husband emphasised his paid employment and care for his father. He conceded that during these times the wife cared for the children. In my view he gave an exaggerated account of his role caring for the children and minimised the work undertaken by the wife. Her account of the distribution of household tasks was more credible than was the husbands. I accept her evidence that both parents home schooled the elder children. Her contribution as a home-maker and parent throughout the marriage significantly exceeds the contribution made by the husband.
Since separation, the elder children have lived with the husband and the younger children with the wife. They have made equal contributions to the children post separation.
The parties have paid child support in the minimum amount of $5.00 per week since early 2001.
The orders I propose will not affect the earning capacity of either party.
I find, therefore, that the parties’ total contribution (excluding the husbands antique furniture) should be assessed as being 70% as by the husband and 30% by the wife.
Section 75(2) factors
(a) The husband was 50 years at the date of hearing. He suffers from prostate cancer which illness is inoperable and fatal. His treatment involves taking a daily tablet and an injection once a month. He is currently able to lead a normal life and the cancer does not restrict his day-to-day activities. The best evidence indicates that he has a life expectancy of between five and ten years. The cancer will cause his health to deteriorate suddenly when his death is imminent. There is no evidence that he currently has or will have significant medical or health care costs. Thus the husband has a working future of at least a further five years, by which time he will be 55 years. Equally he may work a further ten years. The wife was 39 at the date of hearing. She is in good health. I make no adjustment pursuant to the subsection.
(b) The husband works two days per week as a contracted mediator to the C J C. He earns $120.00 per week (gross) from this employment. His evidence is that once these proceedings are completed, he believes he will be able to increase substantially the amount of work he undertakes. This will commensurately increase the income he earns. Although the wife has university qualifications as a nurse she has never worked as a nurse. I accept her evidence that before she could work in this profession, as a consequence of the 13 years gap since qualifying, she would require significant additional training. I am satisfied that during the latter part of the marriage, the wife was employed casually at a relaxation centre at C. She denied any paid employment during the course of the marriage. However, I am satisfied that she worked as a masseuse and that the income earned by her is the primary source of periodic payments deposited into the Westpac bank account subsequent to February 2000. The wife has not worked subsequent to separation as a consequence of her care of the children. Whilst I am satisfied that the wife would be able to return to the paid workforce should she desire after a significant period of re-training, or otherwise undertake limited unskilled work on a casual basis, it is appropriate to make an adjustment in her favour pursuant to this subsection.
(c) The parties agree that the husband will continue to have the care of the two elder children, and the wife of the two younger children of the marriage. The elder children, as teenagers, both attend school full-time. The two children in the wife’s care are much younger than the two in the husband’s care. S has not yet started school and will not do so for another 1½ years. By virtue of their younger age and hence dependency, the wife’s responsibility to the children in her care is much more substantial on a day-by-day basis than the elder children require of the husband. I find that this subsection requires an adjustment in the wife’s favour.
(d) Both parties have a duty to maintain the elder two children of the marriage, B and M. The wife has a responsibility, as does Mr M to maintain the younger two children of the marriage. The husband and wife have the commitments identified in their financial statements. These commitments are modest and will only enable each to have a modest standard of living. Both parties’ commitments include the cost of caring for the children in their care. As the children in the wife’s care are younger this means her child related commitments will be of considerably greater duration than is the situation for the husband. It is appropriate to make an adjustment in the wife’s favour pursuant to this subsection.
(e) Other than the children, neither party has a responsibility to support any other person. I make no adjustment under this subsection.
(f) Both the husband and the wife receive a Commonwealth Benefit payable as a consequence of their care of the children, in the husband’s case, modified by income earned as a mediator. The husband has a very small superannuation entitlement, the size of which means that it does not affect the adjustment to be made pursuant to this subsection. I make no adjustment under this subsection.
(g)The parties have always lived frugally and enjoyed a modest standard of living. Neither is able to maintain the standard of living enjoyed during the marriage. They both live in rented accommodation. I make no adjustment under this subsection.
(h)I find no relevant factors under this subsection which require adjustment.
(j) I find no relevant factors under this subsection which require adjustment.
(k) I find no relevant factors under this subsection which require adjustment.
(l) The wife’s evidence, which I accept, is that she does not intend to return to paid employment. She wishes to care for the children and I find that her care of the children will affect her earning capacity until the youngest child is in high school. Once the children are in high school she does have the capacity to retrain and return to the paid workforce at least on a part time basis. The nature of husband's work complements his care of the elder children. He currently works part-time and will increase his hours of work substantially. I make an adjustment under this subsection in favour of the wife.
(m) Other than the children neither party cohabits with any other person. I make no adjustment pursuant to this subsection.
(n)The orders I make will give each party a small sum of money that they may invest, supplement any shortfall in day to day costs of living or use to re-enter the rural property market in a modest way. The later is the least likely outcome. Neither party will have assets to enable them to derive significant income and both will remain for the foreseeable future in modest financial circumstances. I make no adjustment pursuant to this subsection.
(na) The husband has paid $5.00 per week child support to the wife for R and S. He is not their father and unless a court orders him to pay child maintenance he has no obligation to do so. The wife will pay $5.00 per week for B and M to the husband. Knowing that the husband was not the younger children's father the wife nonetheless sought child support from him through the Child Support Agency. She failed to disclose to the agency the U M is the children's father and the person from whom child support was payable. The amount the husband had made is tiny and as a consequence does not require adjustment. I make no adjustment pursuant to the subsection.
(o) I have already made findings about the wife's care of the husband's father prior to his death. She supplemented in a meaningful way the care offered by the husband. Her care improved the quality not only of the late father's life but also the families. By assisting in the care of the late father, the wife enabled the husband to work as long as possible as a mediator and to acquire some of the practical skills that now enable him to earn an income. She also relieved him from sole responsibility on a day by day basis from caring for his father. I am satisfied that I should make an adjustment in the wife's favour pursuant to the subsection.
(p) This does not arise.
Having regard to all of the Section 75(2) factors I find it appropriate that there should be an adjustment in the Wife’s favour having regard to subsections 75(b)(c)(d)(k)(l) and (o). The appropriate adjustment to make in the wife’s favour is 15%.
Section 79(2) is this a just and equitable outcome?
I find following the parties 11 years cohabitation that their contribution (excluding the antiques) throughout the cohabitation were 70% in favour of the husband and 30% by the wife. Both parties will have the care of 2 children of the marriage. The wife will have the primary ongoing responsibility for the care of the two younger children, one of whom is not yet at school. The two children in the father's care, neither of whom are in high school, require less intensive day by day care. His care of them will impinge to a much lesser extent upon his ability to participate in the paid workforce than does the wife's care of R and S. The husband has qualifications and experience that enable him to earn an income that will materially increase in the near future. I have made detailed findings concerning the application of s75 (2) and do not repeat them. Balancing all these factors, I find that it is appropriate that the parties’ net assets (excluding the antiques) should be divided as to 62% to the husband and 38% to the wife.
That the outcome of the application of Section 79(4) and Section 75(2) has resulted in a distribution favourable to the husband 62% as to the wife’s 38% I am satisfied is just an equitable within the meaning of Section 79(2). The reason for that is that the Section 79 exercise requires that I give proper weight to the husband’s inheritance, to the his contribution as a salaried earner and the provision of rent free accommodation for 8 years as well as his financial future having regard to his care of M and B. The wife has significant Section 75(2) factors and her financial future is materially affected by her absence from full time employment and her care of the two younger children. The Orders I make will distribute the proceeds of the sale of the B property. The husband will retain his motor vehicle, personal property, the partnership interest and financial resources. He has recently established a partnership in which he provided the capital to purchase a second hand bus. His partner will provide the daily effort driving the bus. It is intended that the business will establish contacts with clubs and function centres driving patrons home for a fee. The business has only had one job to date and unfortunately there were no patrons to take home. Its prospects are speculative.
Thus the wife will receive $32,992.65 of the net assets. She currently has assets valued at $500.00 and so will take $32,492.65 of the monies held on trust for the parties. During the proceedings the husband agreed to allow the wife to remove her personal belongings currently held by him. Those items were not particularised and so are not included in the orders. The husband will receive the balance of the assets.
There were aspects of the husband and wife's evidence that was unsatisfactory. The wife's oral evidence relating to the ownership and source of funds for her Wales/Westpac account was inconsistent with her affidavit evidence. I do not accept her evidence as to the source of periodic payments into that account after February 2000 for the reasons already given. However, other than in these respects she attempted to give a truthful account of matters. The husband's evidence concerning the October transfer, his disposition of the antiques, the wife's contribution as homemaker and parent and his explanation for the disposition of the B proceeds was unsatisfactory and unreliable. Where his evidence contradicts the wife's on these matters I prefer her evidence. I do not make the more wide sweeping findings concerning the wife's credit that counsel for the husband pressed. To do so would overstate the impact of her unsatisfactory testimony and underestimate the effect of the husband's lack of candour on material issues.
Section 68(F)(2) - Determining the best interests of the children
The contact issue is a complicated one. The parties have agreed that the elder children B and M will live with their father, the husband. They are also agreed that R and S will live with the mother. All children have been made aware that U M is the younger children’s father. Until separation, all four children and the husband believed he was the father of the younger children.
The younger two children were born during the course of the marriage. The husband is registered as the children’s father and they carry his name. In about 1994, the wife and father commenced a sexual relationship. The father was and continues to be, married. In July 1996, after R birth, the wife and father underwent paternity testing, which testing established his parentage of R. They did not tell the husband of the testing or its results. That was the effect of her evidence conceded during cross-examination.
The father established a continuing relationship with his daughters prior to their being made aware of their paternity. He visited the wife at the family home, including on rare occasions when the husband was home. The children came to know him as a friend of their mother’s to whom they responded warmly. At separation, the husband and wife gave all four children details of the younger children’s paternity. The younger children now refer to the father as “Daddy U”. They call the husband "Daddy J". It is clear from the evidence that the younger children are very confused about the fact of two fathers’ involvement in their lives. There is little evidence about the effect on R and M, other than in their attitude to the wife, of the revelation concerning their half-sisters’ parentage. Given their ages, they too are likely to be confused and distressed by the late revelation that they did not have the same father as their half-sisters. Whilst for many children this is unremarkable, it is almost inevitable that having lived with the belief that they enjoyed the same parentage, the realisation that they had been living a lie will also be confusing. For them it has been a bombshell. Its impact has been made more profound as the husband has been unguarded in his distress.
Prior to separation the husband participated in the children’s care, particularly taking them to activities. He took B, M and R to dancing on Wednesday afternoons and all four girls to the Anglican Girls’ Friendly Society on Wednesday evenings. After school on Friday, B and M competed in Little Athletics which R and S watched. On Thursday and Saturday mornings, B and M played hockey in winter and softball in summer. The husband took the younger children to watch their elder sister's train and compete. On Tuesdays he took the children to arts and crafts and then gymnastics.
The elder two children were home schooled until the end of 2000. The husband claimed to be primarily, if not solely, responsible for the children’s home schooling. I do not accept his evidence. On this issue I prefer the wife’s evidence and accept that she was intimately involved in the children’s home schooling. Because the elder children did not receive an external education, they were able to be at home with their sisters to a much greater degree than is ordinarily the case. The elder three children all started school this year. R is in kindergarten at T O public school. S goes to preschool.
After separation, B and M exercised regular alternate weekend contact, and school holiday contact to their mother and half-sisters. The husband attended the wife’s home on many occasions, ostensibly to see the younger children. When present he continually pressed the wife to discuss personal matters in spite of her disinclination to do so. The wife objected to the husband coming into parts of the house without invitation and eventually asked him not to enter.
After the parties attended mediation at a C J C, R and S commenced contact with the husband and their half-sisters each alternate weekend from Friday afternoon to Sunday evening. This occurred during the Christmas school holidays. From February 2001, contact occurred each third or fourth weekend until about late April 2001. In spite of the fact that the wife had made it clear to the husband that she did not want him coming to her home and that she was not agreeable to his contact with B and S, he continued to attend at her home, accompanied by B and M formally requesting contact. Knowing that his requests would be refused by the wife, he exposed himself and the children to the distress of refusal. On occasions he broke down in tears which M and B were exposed to as he drove them home sobbing. He agrees that M and B understand his feelings towards the wife and perceives that they see a situation that need not be caused. This later perception matches his view.
In late March, the wife and B were involved in a disagreement during which B smashed a window at the wife’s home. The wife had lent the husband her vacuum cleaner and the husband had B return the vacuum cleaner to the wife at the front door. The wife and B argued and the wife pulled the vacuum cleaner from B. The wife says there wasn’t a struggle between them, simply because she is stronger than her daughter. The wife was justifiably concerned about B behaviour and reported the incident to the Police. When she did so, she indicated that she believed B was responsible for smashing her window. The husband is very critical of the wife’s decision to refer this matter to the Police. The husband concedes that B may have felt that in smashing her mother’s window she was supporting him. That is likely to be so. He has, without regard to the potentially damaging effect of the elder children's relationship with their mother, exposed them to his distress and his anger. He has, for example, said to the mother in the children’s presence, “You are just hurting the children.” The mother’s decision to call the Police was made after deliberation by her about the appropriate course of action. There were a number of avenues available to her. She could not rely on the husband’s cooperation in addressing this behaviour and made her decision without his input. I do not share the husband’s criticisms of her for her decision to call the Police. She ought, however, to have anticipated that given the climate the children are living in, she gave them the opportunity to see her actions as hostile to B.
Alternate weekend contact with the mother and elder girls broke down shortly thereafter. The wife has maintained reasonably regular telephone contact with her daughters and M visits for daytime contact some weekends. She doesn't stay overnight. B comes for short periods of only 10-15 minutes duration. The wife has not put her daughters under any pressure to stay for longer periods and has treated the period as one of adjustment by the children. She has handled the disruption sensitively. I accept her evidence that the children have spoken to her affectionately.
On 23rd May 2001 the wife, the father and his children had all been to the park. At about 5.15pm the husband drove past them on M Street. When she arrived home, the wife and children got out of the car and walked towards their house. The husband approached the father and asked him to get out of the car. The father declined and started to drive away. In order to do so it was necessary to reverse back. The husband was at the back of the utility unseen by the father. He went under the car and then jumped onto its tray. The father called to him to get off. The husband did, picked up a heavy tool and smashed the drivers side window. He showered flying glass over the husband cutting his face. B saw the whole incident. After the incident the wife applied for an Apprehended Domestic Violence Order, which application the Police has taken up. Annexure E to her affidavit identifies the conditions sought by the Police. No order has yet been made. The husband alleges that the father deliberately tried to run him over. I do not accept his accusation. I am satisfied that the husband was located in a blind spot and that the father drove out of the property using the only path available. It is more probable in my view that the husband thought that he was visible to the father and stood hoping to stop the father from leaving. Since separation the husband has tried to provoke scenes with the father, challenging him for example in April 2001 and on 9 May 2001 to a fight. It is likely that he saw another opportunity for confrontation and planned to provoke one. His actions demonstrate clearly his hostility to the father and a complete lack of regard for the impact his behaviour has on the children and the wife. Whilst he needed to get out of the way there is no justification for smashing the car window. His actions were violent and reflect poorly on him.
Subsequent to the breakdown of the marriage, the wife and father have increased his contact with his children. He visited the children in the afternoon at their home two to four times a week. On at least four occasions he has collected the children from school and pre-school and cared for them at his home until the wife was available. During the first weekend in June 2001, R and S spent a Saturday morning–Sunday weekend with their father and his family. They refer to their father’s wife as “Auntie J”. U M has three children by his wife to whom he has been married for 25 plus years. His children range in ages from 22 years to 15 years. They are now all aware of R and S existence and I accept his evidence that his family, including his extended family, is keen to establish a relationship with these children. The children have met his parents. This is in spite of the fact that his wife did not give evidence supporting his application. Her support is evidenced by the fact that she has welcomed the children into her home and allowed her children to be made aware of their half sisters existence.
At the commencement of the hearing, the father’s legal representative was given leave to withdraw from the proceedings. He conducted his own representation. Thus he cross-examined the father and I had the opportunity to observe their interaction. The father conducted himself throughout the proceedings with calm dignity. The husband by comparison was hostile and sarcastic during cross-examination by the father. He was at times quite sneering as he responded to questions, demonstrating his negative attitude to the father. No doubt he has strong emotions to deal with, it is his apparent lack of capacity to hold those emotions in check when the situation requires it that is concerning. He would benefit from a period of personal counselling.
The Father’s contact with R and S
Counsel for the husband submitted that there was no need to make an order for contact by the father to his daughters. This is because the parents have managed to implement contact without difficulty thus far. Both parents conceded that this was so. He counselled caution and submitted that the application was a conspired ruse to disrupt the husbands application for contact. However, the father argued that although the parents were currently able to agree on matters relating to their daughters that might not always be so. Certainly in a broader context that is the court's experience. I accept that he wishes to protect his position as the children's father and create a structure that will build on the parents current good will.
The father is understandably impatient to cement his developing relationship with his daughters. He has waited, he feels, a long time to do so. I accept his and the wife's evidence that the children enjoy his company and are starting to accept him as an important person in their lives. He understands that the children are confused about his status as a father, particularly when contrasted with the husband's. Logically S has little idea what his significance is. The wife and father have a common understanding that they need to proceed cautiously with the children as he is phased into their lives as their father. I am satisfied that they communicate well with each other and will co-operate as the many challenges qua parentage arise from the children. He impressed me as a caring and competent parent who can manage these challenges well.
I am not satisfied that eth father has contributed to the financial support if the children at an appropriate level. He has made payments at about $50 and purchased clothing and household items, such as blankets for the children. As a consequence of the orders made he will be a person liable to pay child support and his level of financial support will increase.
The father is conflicted about his children continuing a relationship with the husband. This is because he believes that the husband undermines hid relationship with them. In paragraph 11 of his affidavit the father deposes to statements made by R reporting remarks made to her by the father. Either directly to the child or within her hearing, the husband has said things to the effect that the father destroyed the family and that the husband wants to bash the father up. I accept that the husband has made remarks expressing these sentiments that R has heard. The father had proposed that the children have no contact to the husband. However because their elder sisters live with him, he agreed that contact was in their interests. This reflects well on his responsibility as a parent and demonstrates a good understanding of the children's emotional needs.
Because the children are young and experienced considerable instability in their paternal and sibling relationships, there is a need to promote stability. Their mother is their prime caregiver and is the person most able to meet their emotional and intellectual needs. Her relationship with the children must be secured, as it is the base from which their sense of stability will be derived. Their relationships with their siblings, father and the husband must be structured to complement not undermine their relationship with their mother. This means the children must be in their mother's care each alternate weekend and the husband and father will each have contact with them one weekend a month. Birthday and holiday contact can be agreed as the parties perceive the children need and would benefit from it. Given S age, holiday contact would be premature.
The husband’s contact with R and S
The husband, prior to separation was significantly involved in the children's lives. He knew them as his daughters and loved them accordingly. He loves them still. Although the evidence is scant I am satisfied that the children love the husband and he is a person who is very important to them. Prior to separation he was able to understand their physical, emotional and intellectual needs and to complement the wife's role ensuring they were met.
A distinction must be drawn however between the children's circumstances before and after separation. Since separation they have been exposed to the husband's distress and anger about the events that triggered it. By this I mean the father's role in his family life. The husband has adjusted poorly and has acted in a way that demonstrates his lack of regard for the children's emotional needs. If he does perceive that they should be protected from his angry outbursts he has chosen to ignore this and has indulged his outrage. His repeated attendances at the home asking for the children when he knew he would be refused are one expample. His behaviour on 23 May 2001 is another.
I accept the mother's evidence about violence prior to and after separation. Pre separation the events were early in their relationship and do not impact upon the decision I must make. That is because while distressing to the wife, the events must be understood in a context of an otherwise peaceful home life. Post separation the husband has called abusive remarks to the wife in the street and remained in her home after she asked him to leave. His behaviour has been harassing and intimidating. He neither concedes this nor displayed any real insight into the effect that his behaviour has had on the wife and children. I am satisfied that he feels justified behaving as he does because he believes the wife has disgraced him and his family. Publishing her disgrace, even if doing so humiliates the children, does not concern him in a way that causes him to reflect on the outcomes of his behaviour. Meeting the childrens emotional needs involves respecting the role their mother and father have as their parents. This must be positively reinforced. Whilst intellectually the husband understands the need to do so, I am not satisfied that he is able to. There is a risk that during contact he will continue to undermine the children's relationship with their parents.
Contact one weekend a month will complement the time the children spend with their mother and sisters in her care. Thus the sisters will be together three weekends in four and for significant parts of the school holidays. Longer periods with the husband expose the children to too great a risk of hostile behaviour vis their parents without the moderating effect of time with either of them. S is too young to spend extended periods away from her mother, even with a person who has previously been significantly involved on her care. Both children need the chance to re-establish and maintain their sense of stability. The orders I make will accordingly balancing the competing claims upon the children.
I do not consider that midweek contact is desirable or in the children's interests. That the children may have had expectation last year that at least R may start Little Athletics this year is not a significant issue. The children will be reared in different homes and expectations must accordingly be adjusted. The evidence does not suggest that R has a deep yearning to share this and other activities with her elder sisters. In my view her parents are the people who together should plan and encourage their childrens extra curricular activities. Unlike her elder sisters she has started her formal schooling and her development does not demand that extra curricular activities are put in place so that she has an avenue to develop social and peer relationships. School will do that for her.
The mother’s contact with M and B
These children were primarily cared for by the wife prior to separation. As their primary care giver I am satisfied that she and the children established a deeply loving parental relationship. The children exercised regular alternate weekend contact to her after separation, after they had become aware of her relationship with the father and his paternity of their sisters. Thus they were initially able to accept this major adjustment in their lives and maintain their relationship with the wife. I infer from this that their relationship with the wife is a strong one that can withstand significant external pressure.
Their relationship has endured significant external pressure, mainly from their father. I have already made findings about the manner in which he has repeatedly exposed the elder children to his anger and distress about the breakdown of this family. Although he disagreed with the wife's decision to call the Police after B smashed her window, responsible parenting would have been demonstrated by helping B understand that her mother's actions were reasonable in the circumstances. He opportunistically elected to allow B to see this as an act of rejection by her mother. It was not. Whilst I am satisfied that he children did wish to exercise regular alternate weekend and other holiday contact with their mother, those wishes have been undermined largely by the husband. As a consequence of his behaviour he has signalled strongly to the elder children that he needs their emotional support and that tis is best given by rejecting their mother. He may not have intended that this message be sent to his children, it is however the inevitable consequence of his behaviour.
The relationship must also have been placed under pressure when the wife restricted their contact with their sisters. From their perspective it must have seemed inexplicable. It was not adequately explained during the proceedings. In withholding contact as she did the wife acted contrary tot he interests of all four children.
Thus I am satisfied that the children wish to be loyal to their father and do not currently wish to exercise extended contact to the wife. Because I am satisfied that these wishes have been formed with little understanding of the influences they have been under their wishes have less weight than I would have given to children's views at their ages. They have not had the maturing experiences derived from formal schooling, a factor that I take into account.
The husband must change the message he gives the elder children about the value of contact with the wife. He must behave towards her with decorum and not harass her. Changing his behaviour will send a powerful affirmatory message that his daughters are able to love and enjoy the wife's company without disloyalty to him. This will favourably influence their desire for contact and their enjoyment from it.
The wife has the capacity to meet her elder daughters physical, emotional and intellectual needs. She impressed me as an intelligent woman who has a great deal to offer her daughters. During contact their relationship with their younger half sisters will have the opportunity to flourish. She has the capacity to sensitively manage rejection from time to time. Should she perceive a need for counselling it will be her responsibility to arrange it. The relationship does not currently require counselling, in my view it needs proximity and time together.
The elder children should have contact each alternate weekend and half of each school holidays with the wife. This will give a structure that will give their previously good relationship the chance to recover and strengthen. It is particularly important that this happen because the husband's illness will eventually kill him. The elder children will need their mother and sisters love and strong relationships to help them prepare for and deal with this loss.
The combined effect of the parenting orders I am satisfied is in the children's best interests. Their primary parental relationships will be maintained and the siblings relationships reinforced and nurtured.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of RyanFM
Associate:
Date: 25 July 2001
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