CA and JA
[2004] FMCAfam 78
•17 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CA & JA | [2004] FMCAfam 78 |
| FAMILY LAW – PROPERTY – Husband conducts financial vendetta after separation – contributions. CHILDREN – Wishes – family violence – wife primary carer prior to and since separation – children enjoy good relationship with both parents – schooling – structure for contact in favour of husband considered. |
Family Law Act 1975, ss.60B,68F(2), 75(2),79
Crimes Act 1900 (NSW), s.352BC
Evidence Act 1994 (Cth), s.140
Real Property Act 1900, s.57(b)
B and B: Family Law Reform Act (1997) FLC 92-755
H v W (1995) FLC 92-598
JG and BG (1994) FLC 92-515
Patsalou and Patsalou (1995) FLC 92-580
M and M (1988) 166 CLR 69
A and A 1998 FLC 92-800
Lee Steere and Lee Steere (1985) FLC 91-626
Ferraro and Ferraro (1993) FLC 92-335
In the Marriage of Clauson (1995) FLC 92-595
Russell v Russell (1999) FLC92-877
Tomasetti (2000) FLC 93-023
| Applicant: | CA |
| Respondent: | JA |
| File No: | PAM1841 of 2003 |
| Delivered on: | 17 March 2004 |
| Delivered at: | Parramatta |
| Hearing dates: | 24 & 25 February 2004 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Greenaway |
| Solicitors for the Applicant: | Reimer Winter Williamson |
| Counsel for the Respondent: | Mr G. Gersbach |
| Solicitors for the Respondent: | Caldwell Martin & Cox |
ORDERS
Upon the sale of the former matrimonial home at Western Sydney being the whole of the land contained in Certificate of Title Folio Identifier XX the parties shall distribute the proceeds of sale as follows:
(a)In payment of agent’s commission and advertising expenses, legal expenses of the sale;
(b)In discharge of the mortgage in favour of National Australia Bank Limited registered over the property;
(c)Payment to the trustee of the costs incurred in procuring the sale and preparing the property for sale;
(d)Seventy per cent to the wife;
(e)Balance to the husband from which he must pay the wife $20,212 as well as reimburse her for any arrears of mortgage accrued subsequent to the date of hearing and all outstanding council and water rates and insurance levies and outstanding costs orders.
Pending the sale of the property the husband shall pay all regular instalments in respect of the mortgage, council rates, water rates and household insurances in respect of the property and indemnify and keep indemnified the wife in respect of any such amounts. If any such amounts remain unpaid as at the date of the sale of the property, the husband shall be solely liable for any such arrears.
The wife shall sign all documents necessary to transfer her interest in the Holden Commodore currently in the husband’s possession to him.
The wife is declared the sole owner as against the husband the following items of furniture and contents currently in the former matrimonial home. The husband shall make those items available to the wife to collect within seven (7) days of the date of these orders:
(a)Children’s jewellery (including charm bracelet) and children’s and C’s gold name brooches;
(b)Personal jewellery (and engagement ring);
(c)Bamix;
(d)Royal Albert dinner set;
(e)Slow cooker;
(f)Cake mixer;
(g)Tea pot (stainless steel);
(h)Saucepans (Rocca);
(i)Personal clothing and toiletries;
(j)Upright vacuum cleaner (Dust Buster);
(k)Recipe books;
(l)Ornamental duck (cement);
(m)Ornamental garden pot with mouse on side;
(n)Half of the crystal glasses;
(o)Crystal vases x 3;
(p)Half children’s videos;
(q)Queen-size electric blanket (Spare);
(r)Doilies;
(s)2 sleeping bags;
(t)Half of the tupperware;
(u)Furniture in cubby house;
(v)Half of the children’s toys and books;
(w)Sewing machine and gear in green box;
(x)Soup stock pot;
(y)Royal Albert jug and sugar bowl;
(z)Blue and pink tea cosy;
(aa)Photo frames;
(bb)Little tiny crystal animals;
(cc)Frog ornament;
(dd)Lasagne dish;
(ee)Large blue blanket.
Simultaneously with Order 1 the husband and wife shall do all things necessary to close all joint accounts currently operated by the parties, including but not limited to St George Account No. XX.
In the event that either party fails, refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, then pursuant to s.106A, a Registrar or Deputy Registrar of the Federal Magistrates Court of Australia is hereby appointed to execute all deeds, documents and 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.
The children B born 11 May 1993, J born 11 March 1995 and T born 11 May 2000 reside with the wife.
The husband and the wife have sole responsibility for making decisions as to the day to day care, welfare and development of the children whilst they are in their care.
The husband and the wife have joint responsibility for making decisions about the long term care, welfare and development of the children.
The husband have contact with the children as follows:
(a) (i) During school term while ever the husband works shift work, from 6.30pm after each period that the husband has worked day shift and until 5.30pm on the evening that he then resumes night work.
(ii)Shift work shall mean while ever the husband works on the basis of working three days of 12 hour day shifts followed by three days off followed by three days of 12 hour night shifts followed by three days off.
(b)Half of all New South Wales school holidays as agreed between the parties, but failing agreement, for first half in years ending in an even number and the second half in years ending in an odd number.
(c)From 2.00 pm Christmas Day until 6.00 pm if the husband does not have contact for the first half of the Christmas school holiday period.
(d)From 6.00 pm on the evening before Father’s Day in the event that day falls on a non-contact weekend.
(e)On the husband’s and children’s birthdays as follows:
(i)If that date falls on a week day for a period of two (2) hours, such time agreed between the parties, but failing agreement from 4.00 pm to 6.00 pm.
(ii)If that date shall fall on a non-contact weekend from 9.00 am to 1.00 pm.
(f)Reasonable telephone contact between 6.00 pm and 6.30 pm with the husband to initiate such calls to the wife’s residential telephone number.
(g)Such further times as the parties may mutually agree.
(h)During the year that T is in kindergarten or if the husband gives up shift work:
(i)During school term, in the event that the husband does not work shift work each alternate weekend from after school Friday until the start of school Monday.
(ii)During school term if the husband has not had the children on the preceding weekend for the whole weekend, from after school on a day when the husband has not worked day shift and until the start of school the next day. The husband to nominate monthly in advance the nights when this contact shall take place,
(iii)During school term one afternoon each week, from after school until 5.30 pm. The husband to collect the children from school and return all three children to the wife’s home at the end of contact.
(iv)In the event that the husband has one day and evening free on a weekend and has not had contact to the children on the preceding weekend for 24 hours at times agreed between the parties.
The husband’s contact is suspended as follows:
(a)From 6.00 pm on the evening before Mother’s Day until 6.00 pm on Mother’s Day in the event that day should fall on a contact weekend;
(b)From 2.00pm Christmas day until 6.00 pm Boxing Day in years that the children are in the husband’s care during the first half of the Christmas school holidays;
(c)On the wife’s and children’s birthdays as follows:
(i)If that date falls on a weekday for a period of two (2) hours, such time to be agreed between the parties, but failing agreement from 4.00 pm to 6.00 pm; and
(ii)If that date shall fall on a contact weekend from 9.00 am to 1.00 pm.
The wife do all things necessary to authorise the children’s school to provide to the husband on a regular basis copies of all school reports, any other reports on school progress and behavioural issues in relation to the children at his request.
The wife shall enrol the children in W Primary School.
Unless otherwise defined in these orders school holiday contact shall:
(a)Commence at 10.00 am;
(b)Conclude at 5.00 pm;
(c)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 part of school holidays;
(e)Years ending in a zero are defined as years ending in an even number.
Unless other wise provided in these orders the husband shall collect the children from the wife’s residence at the commencement of contact.
Unless contact ends on a school day the wife shall collect the children from the husband’s residence at the end of contact.
Pursuant to s.62F(2) of the Family Law Act 1975, the parties attend confidential counselling at a date and time nominated by the Manager of PDR services of the Registry of the Court.
The husband is restrained from speaking to the children or within their hearing about the wife or her partner in a negative or unpleasant fashion.
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.
All exhibits tendered in these proceedings be returned at the expiration of one calender month unless an appeal is lodged.
The solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.
Save as to any application for costs all outstanding applications are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 1841 of 2003
| CA |
Applicant
And
| JA |
Respondent
REASONS FOR JUDGMENT
The proceedings
These are proceedings for the adjustment of property pursuant to s.79 of the Family Law Act 1975 and for parenting orders.
The parenting orders concern competing proposals for residence, contact and specific issues orders. Both parties ask that their three daughters, B, J and T live with them.
The application
CA (“the wife”) filed an application for final orders on 6 May 2003. On 9 February 2004 she filed an amended application, which identifies the orders sought by her at trial. The orders sought are set out below:
1.That within four (4) weeks of the date of these Orders that the husband pay to the wife the sum of $120,000.00.
2.That simultaneous with the husband's compliance with Order 1 herein, the wife transfer to the husband all her right title and interest in the former matrimonial home situated at Western Sydney, being the whole of the land contained in Certificate of Title Folio Identifier XX, (hereinafter referred to as "the Western Sydney property")
3. That simultaneous with compliance with Orders 1 and 2 the husband shall discharge the existing mortgage encumbering the Western Sydney property to National Australia Bank Limited.
4. That in the event that the husband does not comply with Order 1 herein, the wife is appointed Trustee for the sale of the Western Sydney Property and the interest of the husband in the Western Sydney Property, with the ordinary power of a Trustee to amongst other things, execute all documents, instruments and contracts and do all acts and things to effect the sale of the Western Sydney Property.
5. The wife have the powers of a Trustee for sale, including but not limited to selling the property by private treaty or by public auction as she may be advised.
6. The Trustee may incur costs for the cleaning of the property for the purposes of sale for such amount as may be advised by the appointed agents acting on the sale.
7. The Trustee at her discretion may list the Western Sydney Property for sale with one or more agents.
8. The Trustee may enter into an appropriate agency agreement with an agent.
9. The Trustee may retain a solicitor of her choice to act for the vendor on the sale.
10. The Trustee is authorised to enter into a contract for sale on such terms as advised by the solicitors acting upon the sale.
11. The Trustee may apply to the Court ex-parte for further directions in relation to sale.
12. The husband is ordered to vacate the Western Sydney Property and thereafter to remain away from the said property immediately upon his non-compliance with Order 1.
13. The Trustee is given liberty to apply on seven (7) days notice to the husband for the issue of a Writ of Possession in the event that the husband fails to vacate the Western Sydney Property pursuant to this Order.
14. Upon completion of the sale of the Western Sydney Property the proceeds of sale shall be disbursed as follows:
(i) In reimbursement to the Trustee of costs of advertising, if any.
(ii) In reimbursement to the Trustee of costs of cleaning incurred pursuant to these Orders.
(iii) Balance of proceeds of sale to be applied as follows:
(a) To pay all costs commissions and expenses of the sale, including the conveyancing costs and to pay any Council and Water rates outstanding with respect to the property.
(b) To discharge the mortgage encumbering the property.
(c) To pay to the wife the sum of $120,000.00, together with interest on that amount pursuant to the Family Law Act, or 85% of the balance then remaining whichever is greater.
(d) To pay to the husband the balance thereof.
15.That the husband be declared the sole owner as against the wife of the Holden Commodore motor vehicle and the Nissan Dual Cab motor vehicle in his name.
16. That the wife be declared the sole owner as against the husband the following items of furniture and contents currently in the former matrimonial home. The husband shall make those items available to the wife to collect within seven (7) days of the date of these Orders.
(a) Children's jewellery (including charm bracelet) and children's and CA's gold name brooches.
(b) Personal jewellery (and engagement ring)
(c) Bar Mix
(d) Royal Albert Dinner set
(e) Slow cooker
(f) Cake mixer
(g) Tea pot (stainless steel)
(h) Saucepans (Rocca)
(i) Personal clothing and toiletries
(j) Upright vacuum cleaner (Dust Buster)
(k) Recipe books
(l) Ornamental duck (cement)
(m) Ornamental garden pot with mouse on side
(n) Half of the crystal glasses
(o) Crystal vases x 3
(p) Half children's videos
(q) Queen-size electric blanket (spare)
(r) Doilies
(s) 2 sleeping bags
(t) Half of the tupperware
(u) Furniture in cubby house
(v) Half the children's toys and books
(w) Sewing machine and gear in green box
(x) Soup stock pot
(y) Royal Albert jug and sugar bowl
(z) Blue and pink tea cosy
(aa) Photo frames
(bb) Little tiny crystal animals
(cc) Frog ornament
(dd) Lasagne dish
(ee) Large blue blanket
17.That simultaneous with orders one (1) and two (2) herein that the husband and wife do all things necessary to close all joint accounts currently operated by the parties, including but not limited to St.George Account No. XX and that the husband shall pay any outstanding balance arising from those accounts upon closure.
18. That the husband and the wife be declared the sole owner as against the other of the following, but subject to these orders:
(a) Any chattels, goods, furnishings and other property which are at the date hereof in their possession respectively.
(b) Any moneys, shares, debentures which stand in their sole name respectively at the date hereof.
(c) Any entitlements or benefits in any superannuation fund which stand in their sole name respectively at the date hereof.
19.That the husband and wife do all acts and things and give all consents and execute all documents and writings necessary to give effect to the Orders made herein.
20.In the event that the husband or the wife or either of them fails, refuses or neglects to execute any document or do anything necessary to give effect to the Orders above, and pursuant to Section 106A of the Family Law Act, 1974, the Registrar of the Family Court at Parramatta shall be and is hereby appointed to execute any deed or instrument in the name of that party and do all acts and things necessary to give validity to the operation of the deed or instrument.
21. That the children of the marriage namely B born 11 May 1993, J born 11 March 1995, and T born 11 May 2000 reside with the wife.
22. That the wife and the husband have the sole responsibility for making decisions about the day to day care, welfare and development of the children during periods when the children reside with them.
23. That the wife have the joint responsibility, in consultation with the husband for making decisions about the long term care, welfare and development of the children.
24. That the husband have defined contact with the children as follows:
(a) During New South Wales school term
(i) while ever the husband works shift work, from 6.30pm after each period that the husband has worked day shift and until 5.30pm on the evening that he then resumes night work;
(ii) in the event that the husband does not work shift work, each alternate weekend from 6.00pm Friday to 6.00pm on Sunday.
(b) That for the purpose of determining shift work pursuant to Order 24 (a), shift work shall mean while ever the husband works on the basis of working three days of 12 hour day shifts followed by three days off followed by three days of 12 hour night shifts followed by three days off.
(c) Half of all New South Wales school holidays as agreed between the parties, but failing agreement, for the second half.
(d) From 2.00pm to 6.00pm on 25 December each year if the husband does not have contact for the first half of the Christmas School Holiday period.
(e) From 6.00pm on the evening before Father's Day until 6pm on Father's Day in the event that day should fall on a non contact weekend.
(f) On the father's and children's birthdays as follows:-
(i) If that date falls on a weekday for a period of two (2) hours, such time to be agreed between the parties but in the absence of agreement from 4.00pm to 6.00pm.
(ii) If that date shall fall on a non-contact weekend from 9.00am to 1.00pm.
(g) Reasonable telephone contact between 6.00pm and 6.30pm with the husband to initiate such calls to the wife's residential telephone number.
(h) Such further times as the parties may mutually agree.
25.That the husband's contact pursuant to Order 24 (a) and or (c) be suspended as follows:
(a) From 6.00pm on the evening before Mother's Day until 6pm on Mother's Day in the event that day should fall on a contact weekend.
(b) On the mother's and children's birthdays as follows:-
(i) If that date falls on a weekday for a period of two (2) hours, such time to be agreed between the parties but in the absence of agreement from 4.00pm to 6.00pm.
(ii) If that date shall fall on a contact weekend from 9.00am to 1.00pm.
26. That for the purpose of contact changeover the wife deliver the children to the husband at the Service Station at X at the commencement of contact and the husband is to re-deliver the children to the wife at the Service Station at X at the cessation of the contact.
27.That the husband be restrained from contacting the wife except for the purpose of discussing contact arrangements.
28. That the wife do all things necessary to authorise the children's school to provide to the husband on a regular basis copies of all school reports, any other reports on school progress and behavioural issues in relation to the children at his request.
29. That the wife be permitted to enrol the children in W Primary School and to maintain their enrolment at that school.
30. That the husband pay the wife's costs of and incidental to this application.
JA (“the husband”) relied on an amended response filed 28 July 2003. During the hearing the husband’s counsel submitted a minute of order[1] which identifies the parenting orders he sought. Essentially he proposes that the children live with him and have regular contact to the wife. These orders were not provided in electronic form and hence are not reproduced in full.
[1] Exhibit K
In his amended response the husband proposed that the wife transfer to him her interest in the former matrimonial home. During the hearing he conceded that the home would be sold and its proceeds divided between the parties. During final addresses his counsel contended that the husband’s contributions would be assessed at 60% and that there would be a 10% adjustment in favour of the party with whom the children reside.
Short history
The wife was born on 2 March 1964. She is 39 years old.
The husband was born on 10 March 1967. He is 36 years old.
The parties commenced cohabitation in 1988. They married on 7 July 1990.
Their daughter B was born on 10 May 1993. She is 10 years and 9 months old.
Their second child, J was born on 11 March 1995. She is 8 years and 11 months old.
Their youngest daughter, T was born on 11 May 2000. She is 3 years and 9 months old.
The parties separated on 30 January 2003. At separation the wife and children left the former matrimonial home.
On 4 February 2003 the husband was convicted of assaulting the wife.
On 23 September 2003 an interim apprehended violence order was made at Penrith Local Court for the wife’s protection from the husband. The wife’s partner, DB is included as a protected person. In addition to the s.562BC Crimes Act 1900 (NSW) statutory provisions the apprehended violence order provides:
1.The defendant must not engage in conduct that intimidates the protected person(s) or any other person having a domestic relationship with the protected person(s).
2.The defendant must not stalk the protected person(s).
3.The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person(s).
4.The defendant must not approach, contact or telephone the protected person(s), except as agreed in writing or for any purpose permitted by an order or directions under the Family Law Act 1975, as to counselling, conciliation or mediation.
5.The defendant must not destroy or deliberately damage or interfere with the property of the protected person(s).
6.That the court extend the operation of the orders to include the following person(s), with whom the protected person has a domestic relationship
On 26 May 2003 interim parenting orders were made in the Federal Magistrates Court at Parramatta. They are as follows:
1.THAT “the children” B, born 11 May 1993, J, born 11 March 1995 and T, born 11 May 2000 live with the applicant wife.
2.THAT the children live with the father as follows:
a. From 6:30pm after each period that he has worked day shift and until 5:30pm on the evening that he then resumes night work.
b.At such other times as the parties agree
3.THAT the applicant wife does all things necessary to re-enrol the children in O Primary School and to maintain their enrolment at that school.
On 24 November 2003 the parties entered interim orders as follows:
1.That the respondent husband shall from the date hereof make all principal and interest payments (excluding arrears) as and when they fall due in relation to the mortgage to National Australia Bank Limited secured over the former matrimonial home.
2.That the respondent husband shall, within three (3) weeks of the date hereof do all such acts and things necessary to pay all outstanding arrears in relation to the said mortgage to the National Australia Bank Limited secured over the former matrimonial home.
3.That each party pay their own costs.
Further interim orders were made on 16 December 2003 in the Federal Magistrate Court at Parramatta. They are as follows:
1.Pursuant to s.79(6) of the Family Law Act 1975 within twenty eight (28) days the husband shall discharge the National Australia Bank/Homeside Lending mortgage secured against “the former matrimonial home” at Western Sydney.
2.Simultaneously with the discharge of the mortgage the wife shall do all acts and things and sign all such documents as are necessary to transfer to the husband all of her right, title and interest in the said former matrimonial home.
3.Simultaneously as the discharge of the mortgage referred to in Order 1 the husband may borrow in his own name a total sum not exceeding $250,000 and may offer the former matrimonial home as security for a first registered mortgage.
4.Upon drawing down on any mortgage raised pursuant to Order 3, the husband shall discharge the National Australia Bank/Homeside mortgage referred to in Order 1 and pay the balance of the monies borrowed as follows:
a.In payment of all fees and expenses associated with the discharge and re-finance;
b.In payment of the balance into a controlled monies account to be opened by the wife’s solicitors and invested in the joint names of the parties pending completion of these proceedings.
5.In the event that the husband fails to discharge the mortgage referred to in Order 1 within the required timeframe, the parties shall do all acts and things and sign all deeds, documents and instruments as may be necessary to list for sale and sell the former matrimonial home at Western Sydney in the state of New South Wales and the following arrangements shall be made for the purpose of effecting the sale:
a.The listing price of the real property shall be as agreed between the parties and if there is no agreement within seven (7) days the listing price shall be as advised by a valuer nominated by the President for the time being of the Australian Institute of Valuers (New South Wales Branch), such a valuer acting as an expert, not an arbitrator and such valuation being binding upon both parties.
b.The real property shall be listed for sale by private treaty with a real estate agent nominated by the wife.
c.In the event that the property has not been sold by or before a date three months from the date the property is initially placed on the market, then the husband and the wife shall make all such arrangements and do all such acts and things necessary to procure a sale by public auction of the real property upon the following terms:
(i)The auctioneer shall be as agreed between the parties and upon failure to agree by such auctioneer as is nominated by the President for the time being of the Real Estate Institute of New South Wales or his/her nominee.
(ii)The auction shall take place by four (4) months after the deadline date of the sale by private treaty;
(iii)The reserve price shall unless agreed upon by the parties be as proposed by the auctioneer;
(iv)Both parties shall pay and be responsible for the whole of the action expenses payable for the real property auctioned.
6.Upon completion of the sale of the home, the proceeds of sale shall be applied as follows:
a.To pay all costs, commissions and expenses of the sale, including the conveyancing costs, and to pay any council and water rates outstanding in respect of the property.
b.To discharge the mortgage encumbering the real property to National Australia Bank Limited.
c.Balance to be deposited into a controlled monies account by the wife’s solicitors.
7.The husband shall pay as and when they fall due all mortgage repayments, council rates, water rates, insurance premium and utilities concerning the former matrimonial home.
8.The husband shall maintain the property in good condition and repair.
9.Other than is provided in these orders the husband is restrained from further encumbering the former matrimonial home or offering it for security for any purpose.
10.In the event that either party fails, refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, then pursuant to s.106A, a Registrar or Deputy Registrar of the Federal Magistrates Court of Australia is hereby appointed to execute all deeds, documents and 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.
NOTATION:
The parties agree that these orders are interim orders and that the court retains power to make final s.79 orders concerning the former matrimonial home inter alia.
At the end of the hearing I appointed the wife trustee for the sale of the former matrimonial home in accordance with orders sought by her[2]. The orders made are as follows:
1.
The wife is appointed trustee for the sale of the property at
Western Sydney being the whole of the land in Certificate of Title Folio Identifier XX with the ordinary powers of a trustee, amongst other things to effect the sale of the property forthwith either by public auction or private treaty, at her discretion.
2.The trustee may incur costs for the cleaning of the property for the purposes of sale as may be advised by the agents appointed to conduct the sale; such costs to be borne equally by the parties from the proceeds of sale.
3.The parties have liberty to restore on 48 hours notice as to the implementation of these orders.
[2] Exhibit J
The hearing
The applicant wife relied upon the following:
·Her affidavit sworn 6 February 2004 and her oral testimony.
·Her financial statement sworn 6 February 2004.
·Affidavit of DB sworn 6 February 2004 and his oral testimony.
·Affidavit of JK sworn 23 February 2004 and his oral testimony.
The respondent husband relied upon the following:
·His affidavit sworn 20 February 2004 and his oral testimony.
·His financial statement sworn 20 February 2004.
·Affidavit of VP sworn 20 February 2004. This witness was not cross-examined.
Both parties tendered documents that became exhibits in the proceedings.
On 10 October 2003 the court ordered that a family report be prepared. Mr L, a court counsellor prepared the report[3]. At pages 7 and 8 of his report the court counsellor recommends:
“While this assessment indicated that the children are close to both parents nothing emerged to justify a change in residency. While Mr JA’s belief that B wants to attend O school was confirmed, J appeared to be happy to accept either alternative. B indicated an inclination towards living with Mr JA but Ms CA rejected any suggestion that she supports that option.
Both parties agree that Mrs CA was the primary carer. She was also in an unhappy marriage and was not affectionately or substantially involved with her husband. Now that she is in the early stages of a new relationship and given B’s attachment to her, it is understandable that the child feels marginalised and needs to adjust to Mr DB’s presence and her mother’s need for the attention and affection of her partner. However that adjustment task relates more to the modification of the mother/child relationship than indicative of a need to change residence.
It was apparent that B and J are attached to their father and that he has the capacity to care for them if the court so determines. However T is much younger and her removal from her mother seems inappropriate. The child has been in Ms CA’s care since birth and nothing emerged which would suggest that T is not cared for, not normally attached to her mother or not in need of her mother’s nurturing. Therefore if she is to remain with her mother it is difficult to argue that J and B live with their father based on the assertion that they have a preference for a particular school.”
[3] Exhibit A
This opinion accords with the opinion expressed by the court counsellor at the end of his cross-examination. I accept his evidence and give it considerable weight.
The issues
Then primary issues are these:
·The nature of the children’s relationship with their parents.
·The effect on the children of separation from their mother.
·The parties’ capacity to meet the children’s emotional needs.
·The children’s wishes and the weight that should be attached to them.
·Whether the husband has attempted to undermine the children’s relationship with their mother and the risk that he may do so in the future.
·How the court should take into account arrears of mortgage and other liabilities attached to the house that accrued post-separation whilst the husband has been in occupation.
·The significance of the husband’s greater initial financial contribution.
Relevant law – parenting
Residence, contact and specific issue orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to s.65E in that in determining the outcome the best interests of the child are 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 children’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 s.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.
Determining the children’s best interests
The wife’s circumstances
CA is 39 years old. Prior to her marriage to JA, she had never previously married. Her three daughters, the subject of this application, are her only children. In 1993, shortly prior to B’s birth, the wife gave up full time employment as a delivery driver. She has not resumed full time employment. In 1998 she worked two days per week as a delivery driver, which employment she relinquished in February 2000, shortly prior to T’s birth. Since then she has been involved in the children’s care on a full time basis.
During 2002 the wife formed a strong friendship with DB. At separation the wife and Mr DB moved in together. Because she was frightened by the husband’s behaviour at separation, the wife left Sydney and went to her parents on the Central Coast. Accompanied by Mr DB and the children she then stayed at a caravan park for two days at Salamander Bay before returning to her parents’ home. The wife then arranged to rent a home and she, the children and Mr DB moved to the same area at the end of March 2003. The nearest local school is W Primary School, where the wife arranged that J and B attend. Whilst living on the Central Coast the two elder children attended BH Primary School.
On Saturday 26 April 2003, the husband had contact to the children. The following day he told the wife that he would not return them to her and advised that he was re-enrolling the children at O Primary School. After interim orders were made in this court on 26 May 2003, the husband returned the children to the wife on 27 May 2003. Since then the children have resided with her. In accordance with the interim orders the children have remained at O Primary School, the wife driving the children to and fro each day. In weeks when the children are in her full time care this means that the wife drives 600 kilometres taking the children to and from school. She says this is onerous and does not want it to continue.
The wife proposes that the children attend W Primary School, which school is about 6 kilometres from her home where she intends to remain. W Primary School is smaller than O Primary School. The wife has taken B and J to the school. There is a place available for both children and the wife intends that they will start there in April 2004. Both children have told the wife, “I’m willing to give it a try”. It is the wife’s intention that she will drive the children to and from school each day, about 20 minute each day.
DB has two children, E aged 10 and S aged 6. These children live with their mother and have regular alternate weekend contact to their father. E and B are in the same class at O Primary School. On 27 October 2003 Mr DB commenced full time work as a car detailer. He leaves home at about 6.30 am daily and returns home at about 6.30 pm. Mr DB earns approximately $560 per week net. The wife receives $220 each week family allowance and since November 2003 child support of $206 each week. Until the Child Support Agency garnisheed the husband’s wages, he refused to pay child support. As at 12 December 2003[4] the husband has child support arrears of $3,863.53.
[4] Exhibit Z
The wife proposes that the children will have contact with their father in accordance with the current interim orders. Although she is concerned that the husband does not ensure that the children do their homework she proposes that the current arrangements be maintained. The husband wishes the wife to live at or near the Western Sydney Home so that the children can attend O Primary School if they do not live with him. Both the wife and Mr DB do not wish to reside near the Western Sydney home. They describe it as a small rural hamlet where, “Everybody knows everybody’s business”. Mr DB gave evidence that his daughter finds it confusing and difficult that her father now lives with a classmate’s mother. The husband has also re-partnered and Ms P and her children are well known to the A and B families. Mrs P’s daughter Y is also in B’s class. Both the wife and Mr DB believe that it is in the children’s best interest that they are not caught up in disputes and local interest concerning their parent’s and living arrangements. Simply put, that they and the children need some privacy from town gossip.
The husband’s circumstances
The husband is 36 years old. He has worked full time throughout the parties’ relationship. Shortly after B’s birth he established his own business as a contract plant mechanic. In December 2001 he commenced work as a plant mechanic. Presently, he works twelve-hour rotating shifts. He works three days of day shift from 6 am until 6 pm and then has three days off. This is followed by three night shifts starting at 6 pm until 6 am, followed by another three days off. Prior to separation he regularly worked overtime, but says he has been too upset because of the separation to maintain regular overtime.
Although he has always resisted it, the husband agrees that the former matrimonial home will be sold. Over the weekend prior to the hearing he inspected three rental properties in the same region in Western Sydney. The husband anticipates that he will be able to rent a four bedroom brick veneer home with a garage for between $250-$270 per week. He contends that so long as he receives $20,000 by way of property adjustment he will have a sufficient deposit that will enable him to purchase a home in the area.
If the children reside with him the husband will ensure that B and J continue to attend O Primary School and he will enrol T at preschool. The family home is approximately 300 metres from O Primary School. Whilst the children have been with him on contact either the husband or his partner Ms P has taken the children to and from school. B and J have many friends who live nearby to the husband’s home, which friendships the husband facilitates. The children bring their friends’ home during periods of contact and the husband ensures that the children are also given the opportunity to visit their friends.
After separation the husband developed a friendship with VP. Ms P has known the parties and their children for about six or seven years. In the latter part of 2003 Ms P started staying at the husband’s home. On 28 January 2004 she and the husband commenced cohabitation. Ms P has three children, G aged 13, Y aged 10 and R aged 3 years old. Ms P’s children live with their father in the area. Ms P’s children have contact to her on alternate weekends, during school holidays and other times by arrangement with their father. She deposes that she “would love to have my children residing with me and at this stage is optimistic that this will occur”. Ms P is not employed in the paid workforce and is primarily responsible for the day to day management of the home. She deposes, “I expect that I will perform a domestic role within the household and will attend to the cooking and general household tasks”. All three children appear to accept the husband’s relationship with Ms P and are comfortable in her company. Should the children reside with him, the husband will rely upon Ms P to assist him with their care.
Although he made no mention of it in his affidavit or evidence in chief, on 4 February 2003 the husband was convicted at Penrith Local Court of assaulting the wife. He claimed that the charge was dismissed. Eventually, he agreed that he was convicted and entered a bond which will expire in May 2004. It is a condition of his bond that he reports to probation and parole. He has regularly attended probation and parole and will continue doing so until May 2004. Since separation the husband has attended counselling at Medical Centre, attended at Unifam on four or five occasions and five occasions with IPS, which counselling was arranged through his employer. He explained the utility of counselling thus, “I am only going because I have been ordered to go. If it was up to me I would not go”. Nonetheless, the husband agreed that he would willingly attend counselling with the wife in order to improve communication between them. The wife has also agreed that she will attend.
The children’s wishes
One of the issues in these proceedings concerns the manner in which the court should treat a child's expressed wish concerning matters relevant to its welfare. The Full Court of the Family Court considered this issue in R and R: Children's wishes (2000) FLC 93-3000. Their Honours cited with approval the following statement of principle drawn from the joint judgment of Fogarty and Kay JJ in H v W (1995) FLC 92-598. "The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children." 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 may go to the weight that should be given to the wishes of children and these will 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 wishes."
A pivotal element of the husband’s case for residence is his belief that B wishes to live with him and attend O Primary School. Both parents agree that the three children should live together. The husband contends all three children should live with him. He told the court counsellor that, “He believes they [the children] are missing the family home and he said that they are continually asking to come back”. The wife also discussed the children’s wishes with the court counsellor. He reports, “Contrary to Mr JA’s assertion Mrs CA said that she does not want B to live with him. She explained, ‘We went through a period when B wanted to go with her dad’. The child told her that she wanted to be with her father because he would never, ‘get a girlfriend’. Ms A added that B was also reacting to Mr B’s presence. When it became apparent that Mr JA had a girlfriend and Mr B commenced work last October the child indicated that she wants to live with her. Also, to assist with B’s adjustment Mr B moved away for two weeks to allow the child free access to her mother”.
Court counsellor L interviewed the parties and children. He also met both parties’ partners. He investigated the children’s attachment, wishes and adjustments including individual sessions with the children as well as observations of them with their parents. He did not interview T, but saw her with her parents and sisters. He reports, “B expressed a clear preference to remain at O School. She said, “I am worried about not being able to go to O. All my friends are there.
I feel secure and safe there. I feel like it’s my home”. It was apparent that living at S the child misses her friends and likes to maintain contact with them at school. She complained that if she lives with her mother she would have to go to W School. If she lives with her father she would have to cope with a babysitter while her father works. Later in the report the court counsellor comments, “She indicated, however, that she would like her parents to make a decision saying, ‘they don’t agree on anything and I don’t know who is telling the truth, I don’t know who to believe”. In response to further questioning B said that part of her wants to live with her mother and part of her wants to live with her father.Regarding W Primary School she said, “I would probably fit in, but I don’t want to go there”.
The court counsellor reported that J, “Indicated that she is willing to live with either parent. She did not know which school she wanted to attend and said that if she lives with her father she could see her mother at weekends. She would not indicate which parent she favoured, was not worried about the outcome of these proceedings and had a fatalistic attitude. She said, I will just take what comes around. If I see mum on the second weekend that’s fine with me because I can’t stop anything because that’s what the judge orders. It was clear that the child did not want to discuss the matter and she was not pressed further.”
Both parties agree that B and J have at least age appropriate maturity. In some respects B is maturer than her stated age. However she has also been caught up in her parents’ dispute and does not have the life experience to deal with the complex personal issues this has raised.
I have no doubt that B and J are torn between their parents and that neither child wishes to hurt either of them. This is apparent from the fact that at times the children have been distressed at the prospect of contact with their father and the elder two have not wanted to return to their mother. B has had difficulty accepting Mr B’s presence in her mother’s life, a factor probably contributed to by her father calling her mother, “a stupid slut” “maggot” because of her relationship with Mr B and using foul language “fuck” in her presence. With her mother’s agreement B returned to live with her father for about two weeks in mid-2003, she then returned to reside with her mother and has lived with her comfortably since then. B’s resistance to Mr B has waned and her ambivalence as to which parent she resides reflects that her rejection of her mother’s relationship with Mr B has dissipated. Her ambivalence is likely also to be motivated by her belief when she saw the court counsellor that if she lived with her father she could live in the former matrimonial home and remain at O school. The former is not possible, although in her father’s care the latter is probable.
I have no doubt that all three children love their parents and know they are dearly loved by them. In her mother’s care, B has felt pushed out by Mr B and complained to the court counsellor that her mother is less responsive to her than she was before separation. When the children saw the court counsellor Ms P had not yet moved in and it is possible that B will also take time to adapt to the reality of Ms P’s presence in their home day by day.
I am not satisfied that any of the children have a strong wish as to residence that should be given real weight in these proceedings. Clearly the elder children want an outcome that ensures they have a strong relationship with both parents and do not wish to be responsible for hurting either parent. In terms of their education B wishes to remain at O Primary School and J is similarly inclined. The father vigorously pursues this agenda and it is likely he has fuelled the elder girl’s uncertainty about changing schools during his discussions concerning residence and schooling. While this is their preference both children are accepting of their mother’s proposal to attend W Primary School. With support, ideally from both parents. I agree with the court counsellor that the children’s wishes concerning school should not dictate the residence outcome. Both children are able to adapt to a change in school and their wishes to remain at O, although understandable, do not carry significant weight.
Nature of the children’s relationships
It is apparent that prior to separation the wife was primarily responsible for the children’s care. The husband helped out as much as he could, but the demands on his time from work and travel to and from work substantially limited the time he had available with the children.
In his affidavit material the husband gives a detailed account of his involvement in the children’s lives. He gives a clear and cogent account of concerned and capable involvement in the children’s care when he was available. He has worked hard for many years and rosters including regular overtime since 2001. Working rosters his core shifts were twelve hours long. When working, whether during the evening or daytime, his involvement with the children was limited and the time he had available for significant involvement in the children’s care centred on after school, weekends and holidays when he and the children were at home. Since separation the husband’s care of the children has become more structured. During contact he has been responsible for the care of the children to an extent he has never consistently provided previously.
When the parties started their family they decided that the children should enjoy all the benefits that derive from a parent’s full time care. Thus, the wife gave up full time employment and from the time of B’s birth she was intimately and more extensively than any other person was responsible for the children’s day to day care. Not only was she primarily responsible for the children’s actual care, but also responsible for making most of the day to day parenting decisions that needed to be taken. The husband recognised her obviously competent, child focussed parenting style and comfortably left it to the wife to make the daily decisions for them both. There are numerous examples in the evidence that reflect the wife’s much greater involvement in the minutiae of the children’s lives, compared to the husbands. For example, the husband disputed the wife’s contention that she overwhelmingly took the children to their sports and extra curricular activities. However, during cross-examination he agreed that she did so about 70 per cent of the time. That is, that the wife did this without his assistance for 70 per cent of the time. This is but one example of many in which the husband emphases his involvement with the children, but does so in a way that appears to attempt to mask the far greater role in the same activities that the wife undertook.
The husband was not able to regularly take the children’s night time feeds and so getting up to them in the night was overwhelmingly their mother’s responsibility. When he had worked nightshift, he was tired the next day and needed sleep. It was the wife’s habit to try and ensure that she and the children were out of the house so that he could sleep undisturbed. The wife enrolled the children at school, attended their parent/teacher interviews, the majority of their school plays, presentations and sports carnivals. She was primarily responsible for overseeing and helping them with their homework. Prior to separation the wife involved herself in the children’s school and extracurricular activities to a far greater extent than the husband did. Whilst the husband helped when he was available he did so in a context of the wife’s full time care of the children.
I am satisfied that as at the date of separation the children’s mother was their prime care giver. From her, more than any other person, the children derived their sense of security and stability. This factor was emphasised by the court counsellor. For all three children the court counsellor emphasised that their mother’s daily presence in their lives since their birth was one of the pivotal factors that the court should take into account in determining the competing residence applications.
I agree. I am comfortably satisfied that the children’s relationship with their mother is pivotal to their stability. This follows from my assessment of the substantially greater time that she was actually responsible for their care and the quality of parenting that she gave the children, prior to and since separation. This is a significant factor that weighs in favour of the wife’s residence application.
Hence, not only do the children continue to derive their essential sense of security from their mother, but to a greater degree than any other person she has provided the foundations upon which the children’s relationships, attachments and emotional wellbeing have been established. Throughout the entirety of the children’s lives the wife has demonstrated a superior capacity to meet their physical, emotional and intellectual needs. I have no doubt that she will continue to do so. I give this factor considerable weight.
The court counsellor’s observations and opinions must be given considerable weight. By and large they corroborate the wife’s evidence that these three children are usually well adjusted children who enjoy loving relationships with both of their parents. I am satisfied that the court counsellor’s opinion about the quality of the children’s relationships and their adjustment is accurate. Having accepted his opinion, which was not the subject of meaningful challenge, I am satisfied that this outcome reflects most favourably on the wife’s capacity as a parent. She has demonstrated, over the children’s lifetime, competent parenting that has ensured that the children's physical, intellectual and emotional needs have been met at a continually high level.
The husband's involvement with the children has been much less, but it too has contributed meaningfully to their adjustment. This means that prior to separation the children experienced positive parenting from both parents and from their point of view lived in an environment where they felt loved by both parents. They did not experience their father’s regular attendance at work as unsettling or implied a lack of interest in them. It was simply part of the rhythm of their lives. To the extent possible the husband enthusiastically involved himself in the children’s lives when he was there and they have grown up confident in his love for them.
Later in these reasons I address the husband’s behaviour towards the wife after separation. In short he has conducted a vendetta against the wife because she left him. I accept her evidence of his abusive language and behaviour towards her, too much of which has taken place in the children’s presence or hearing. In doing so, he either deliberately or with total disregard embroiled the children in his dispute with their mother. It was his responsibility to try and help the children adapt to their parents separation, not bring them into the fray. The separation was emotionally distressing to the husband, no less so for the wife and children. In the months since the separation the husband put the children’s relationship with their mother under great pressure, implicitly inviting them to adopt his harsh opinion of her behaviour. It is testimony to the wife’s strong relationship with each of the children that they still turn to her for love and affection. I have no doubt that the husband’s behaviour strongly contributed to B’s desire to live with her father in July 2003 and the difficulty she had adjusting to Mr B’s presence. With calm parental support the husband could have helped the children adapt to the separation. In refusing to give it, he demonstrated his willingness to put his own needs ahead of the children’s. He also showed that he does not respect the children’s relationship with their mother and that in his care their relationship with her is likely to be undermined. This weighs in favour of the wife’s application for residence and is a matter to which I give considerable weight.
The court counsellor reports that when he joined the wife and children "The girls greeted Mr B when he entered. They accepted him and included him in their activity. Mr B related in a gentle yet active manner”. I was impressed by the calm and considered way Mr B gave his evidence. He appears to be a person of at least average intelligence and is attuned to the children’s emotional needs. I agree with him that his full-time presence in the home immediately after separation was difficult for the children. His decision to leave the home for two weeks so that B could have time without him was generous and appropriate. It demonstrates his capacity to put the children’s and wife’s needs ahead of his own. It also had a positive impact on B and showed her that he values her feelings. I accept the wife’s evidence that in October 2003 B said to Mr B “I want to apologise for my behaviour lately. I’ve been really rude and nasty.” Since then B’s relationship with Mr B has started to develop in a positive fashion demonstrated by her improved behaviour towards him and in the wife’s home generally. I am confident that the children’s relationship with Mr B will continue to develop in a positive fashion. Eventually B, as her younger sisters currently do, will increasingly derive comfort and support from Mr B.
It is possible that Ms P may find that the children, particularly B, has difficulty accepting her role in their father’s life as a full time partner. However it seems more likely that this will not have the same intensity of maladjustment that B had with Mr B. All three tell her they love her and are openly affectionate towards her. They are pleased when she stays over and see her as “helping”. In addition to having the opportunity to adapt at a slower pace to Ms P’s presence in their lives, the wife has not subjected her to the same awful criticisms that the husband did concerning Mr B. While the wife has not spoken in favour of the husband’s relationship with Ms P, she has not belittled her to them or abused her in the presence of the children. By comparison the husband, for example, called Mr B “a fucking piece of shit”. Over time the children’s relationship with Ms P is likely to become increasingly comfortable and companionable.
The children have a superficial relationship with Ms P children. While friends there is nothing that suggests any of the children would easily adapt to living with the husband, Ms P and her children on a full time basis. It is likely that the children would be overwhelmed initially and there is a real potential for great disharmony in the husband’s home if all six children are forced to live together. School and neighbourhood friendships are no measure of children’s capacity to live together on a full time basis. There is no challenge to Ms P’s evidence that she believes her three children will shortly join her in the husband’s home, a factor which weighs against his residence application.
Changing the children’s circumstances
This is an important issue in this matter. Since separation the children have experienced a series of major changes in their circumstances. The court counsellor correctly emphasised that at separation children need stability until long term decisions can be implemented. When the wife moved to the Central Coast with the children, she acted impulsively.
I accept her evidence that B and J settled reasonably quickly into the local state school in the sense that they started to make friends. The husband criticises the wife for this move and asserted that her behaviour was self focussed and demonstrated little consideration for the children. The wife’s move to the Central Coast was motivated by her fear of the husband. His behaviour when she told him that she wished to separate shattered her plans for a reasonably calm transition at separation. It had been the wife’s intention that she and the children would continue to reside in the local area, S or thereabouts so that the children could continue regular contact with their father and receive a similar education to that offered at O. The husband’s frightening behaviour towards her made her decision to flee understandable. The husband’s criticism of his wife’s behaviour in doing so clearly demonstrates how little insight he has to the effect of his actions upon the wife and consequences for the children. His lack of insight in this regard demonstrates that long term his capacity to provide for the children’s emotional and psychological well being is considerably less than the wife’s.
On ANZAC Day 2003 the husband collected the children for contact. He decided that he would keep them with him. His actions were premeditated. The following day when the children were due to return to their mother, he contacted her and told her that they would not be returning. He then re-enrolled the two elder girls at O Primary School. The children remained with their father until 13 May 2003 when they came for part of the school holidays to the wife. Because she was afraid of what the husband might do to her, the wife returned them to him on 19 May 2003. On 26 May 2003 the children were returned to the wife pursuant to interim orders. The husband contends that his actions were consistent with the elder children’s wishes and had no impact upon T. These wishes were expressed under considerable pressure from their father and in a climate of fear about his reactions. Both B and J told their mother that they were afraid to go on contact because they were afraid he would not return them. If the children genuinely wanted to live with the husband as he contends they are unlikely to have told their mother of his plans in advance. Having extracted their support under pressure the husband then acted on it. Even if he had not put the children under pressure, the husband ought to have realised that the recent separation placed them in an emotionally vulnerable position. He ought not to have forced them to choose between their parent’s. These issues should have been discussed with the wife (and a counsellor) or addressed by a court.
The husband did not agree that separating T from her full time carer when the child was only 3 years old is likely to have been initially confusing and traumatic. None of the children had ever been previously separated from their mother and all children had her daily care from birth. I am satisfied that all three children are likely to have found the husband’s actions confusing and their circumstances viz where and with whom they live chaotic. These factors heighten the urgency of ensuring stable long term arrangements.
The husband contended that stability would be promoted if the children reside with him. He emphasised that his proposals more than the mothers promote stability. Stability, he says, is fundamental for the children’s long term wellbeing. The stability he is concerned about is the children’s place of schooling and their friendships. Initially concerned that the children live in their home, he no longer considers that outcome fundamental to their wellbeing. The husband did not consider separating the children from their prime carer as significant as changing schools and friends.
The consequences of changing the children’s circumstances were explored at length with the court counsellor. It is common ground that the children have had their mother’s substantial, daily care since birth. The counsellor inferred that T was primarily attached to her mother and that the wife is the child’s most significant attachment figure. His opinion was based upon the child’s age, stage of development and that the wife had been at home attending to the nurturing and supervisory role since T’s birth. The court counsellor considered that changing T’s residence arrangement, from two-thirds with her mother to two-thirds with her father during her formative years would be difficult for T and he did not recommend it. The court counsellor agreed that T’s interaction with both of her parents was positive and he observed no level of discrimination in her level of attachment to either parent. He cautioned against over-emphasising the observation period. I agree that the observation aspect of the family report process is important and can give a snapshot of children’s relationships. An experienced counsellor is able to glean whether there is a discordant note, in effect, between the family history and presentation. There was no surprise to court counsellor L that all three children related well to their father. This is consistent with the wife’s account that the children have a good relationship with him. I agree with the court counsellor that the children’s comfortable relationship with their father does not mean that T is as strongly attached to him as she is to her mother. I accept his opinion and reasons for it that T is primarily attached to her mother.
I accept the court counsellor’s evidence that T’s emotional wellbeing requires that she live with the parent who has been primarily responsible for her care and that interrupting that secure attachment before the child is about 6 years old, will almost certainly have adverse long term consequences for her emotional development. T’s opportunity to develop normally, establish settled and strong relationships will be maximised if she lives with her mother and has contact with her father. This is a matter to which I give considerable weight and which weighs in favour of the wife’s application for residence.
The wife’s proposals involve changes to the children’s school. The court counsellor described B’s desire to remain at O as being motivated by an emotional attachment to her friends and school. During a period when she has been troubled by her parents’ separation, he concluded that B was likely to find comfort there. I agree with him. I also accept his opinion that B would adjust to a new school and that it is often difficult for children to accept the reality of their parents’ separation.
I was impressed by the wife’s understanding of B’s concerns about Mr B’s place in her mother’s life and their decision that he would leave their home so that mother and daughter could have time together. I do not accept that the wife’s decision to include Mr B in the children’s lives immediately upon separation was inappropriate. This occurred more quickly than she had planned because of the manner in which the husband behaved towards her at separation. The husband threatened to kill the wife and Mr B and I accept that this is what motivated their desire to be together, in effect keeping one another safe. While it would have been preferable that this not occur the children have longer to adjust to the break up of their parents’ marriage before Mr B moved in, the pace of change was dictated to a considerable extent by the husband’s behaviour. Thus I do not accept the criticism made of the wife’s intuitive understanding of the children’s emotional needs. To the contrary, I was impressed that she is child focussed and just as she has done for the years since their birth, she is motivated and able to address their physical and emotional needs. The wife is well able to help B and J settle into a new school. Changing the children’s school is unlikely to have any adverse long term effects emotionally or educationally. The children are bright who are likely to quickly make new friends and settle into their new schools.
Although he resists this change, the husband has the capacity to support it and it will be his responsibility not to undermine it. While I have some reservations that he may undermine a change in school I am cautiously optimistic that he will reflect on the court counsellor’s advice that the children can adapt without difficulty. It is also significant that the husband’s proposal will require Ms P’s substantial assistance in the children’s care. It is one thing for the children to start the process of adapting to her inclusion in the husband’s life and quite another to accept her full time presence as a significant carer. This arrangement has the advantage that the wife has not attempted to undermine the husband’s relationship with Ms P in the way that he has attempted to undermine her relationship with Mr B. The wife’s relationship with Mr B is of longer duration and to the extent that one can conclude that any relationship is likely to endure, she and Mr B have settled into a routine and relationship that is working well for them and is likely to be long term. Ms P’s and the husband’s relationship is more recent and they have only recently started to live together. Their future is less certain and potentially there is more significant change for the children in their father’s care than their mothers. This is a factor that weighs in favour of the wife’s application.
Family violence
I will deal with subparagraphs s.68F2(g)(I) and (j) together. Family violence had considerable focus in the proceedings.
Family violence is a significant issue in these proceedings. In addition to it’s inclusion as a relevant factor in s.68F(2)(g)(h) and (j), s.68K emphasises that consistently with the child’s best interests being the paramount consideration, a parenting order should be consistent with a family violence order. The parenting order must not expose a person to an unacceptable risk of family violence and can include protective safeguards. A contact order that is inconsistent with a family violence order will prevail over the family violence order. Section 68S. Section 68R contains provisions about making an order for contact that is inconsistent with a family violence order.
The manner in which the court must examine family violence in proceedings for a parenting order is identified in JG and BG (1994) FLC 92-515 and also Patsalou and Patsalou (1995) FLC 92-580. Evidence of family violence is relevant insofar as it assists the court in determining what orders will best promote the interests of the children. The court will have regard to the fact that family violence may be directly or indirectly relevant to children’s welfare in a variety of ways, and may be relevant even where it is not directed at or witnessed by the children. So far as the evidence allows, the court will attempt to understand the nature of any violence that has occurred and its potential effects on children. Exposure by a child to violent family relationships can be harmful to a child’s emotional development. Even if the issue is not addressed in submissions, the court has a responsibility to consider the effect on a child of a violent parental role model.
It is not the role of the court to determine the truth of allegations in the way that a criminal court must do. In M and M (1988) 166 CLR 69 the High Court discouraged such findings saying that there are “strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually place unless it is impelled by the particular circumstances of the case to do so”.[5] These statements are equally apposite to the issue of family violence. Before it can make a positive finding the court needs to be satisfied according to the civil standard of proof. See s.140 Evidence Act 1994 (Cth). If the court determines that it cannot or should not make a positive finding that there has been abuse, the court must determine whether in all the circumstances there is an unacceptable risk. The manner in which the court conducts an assessment of the risk of future harm is set out in A and A (1998) FLC 92-800. The findings made in the assessment of risk address part of the court’s responsibility. Whilst the resolution of the risk issue may be the central issue in the proceedings the court’s role is broader. If the court reaches the conclusion that there is no unacceptable risk, the court must consider the separate issue of the parent’s belief in the occurrence of the events. This is another part of the court’s obligation. If the court is satisfied that objectively there is no unacceptable risk, then the court may then need to consider whether the, “residence parent has a genuinely held belief that such a risk exists and whether it will have a significant impact on the party’s capacity as the resident parent and so impinge on the interests of the children. The court then needs to take steps proportionate to that circumstance” See A and A (ibid).
[5] ibid at 77
Until separation there was no violence in the parties’ relationship. On 29 January 2003 after the children had gone to bed, the wife told the husband that she wanted to separate. His reaction to her was terrifying, for her and the children. I accept the wife’s oral and written testimony as to the events that then unfolded. In summary, enraged the husband grabbed the wife by the hair and dragged her to B’s bedroom. He dragged her from room to room demanding that the wife wake the children and tell them she was having an affair. She was not having an affair. After the husband had dragged the wife into B and then J’s rooms he said to her, “Pack your bags and fuck off, be gone before I get back”. The husband left the home during which time the wife packed her suitcase. B and J stayed with her too frightened to leave her side. The children asked, “Where are you going?” She said, “I don’t know I’ve just got to go”. They said, “We want to go with you”. At this stage B, J and the wife were crying. T was still asleep. The wife and two elder children sat on a recliner chair in the lounge room hugging one another for about one hour.
When the husband returned the wife and two elder girls went into B’s bedroom. At about 1.00 am the husband came into the bedroom where the wife and children were sleeping and said to her, “come outside, I don’t want to make a mess out here”. Because the husband had earlier threatened to kill her, the wife was too frightened to do as he asked. B offered to go and both children left the room. The husband sat next to the wife on the bed and put a knife to her throat. On three occasions he said to her, “you do it, you do it yourself”. At about 2.00 am he left the room. When the girls returned B said to the wife, “I saw he had a knife”.
The following morning the wife arranged for a mutual friend, WR, to come to the home. He took the children and wife to his home. Afraid that the husband would find her, they went to another friend’s home. The wife reported the incident to Penrith Police who obtained an interim apprehended violence order for her protection. When the police attended at the former matrimonial home the husband was charged with common assault and a number of firearm offences. He pleaded guilty to these charges. He was fined $600 in relation to the firearm offences and $400 as well as being placed on a bond for the assault.[6]
[6] Exhibit D
I accept the wife’s evidence that she was frightened by the husband’s behaviour and scared that he would hurt her and her partner. Nonetheless, she focussed on her perception of the children’s welfare and attempted to facilitate regular contact between the children and their father. This was fraught with difficulty. The husband was abusive to her, calling her, “a fucking slut” and, “stupid slut”, language used unconcerned by the children’s presence. This foul language continued until at least December 2003. I accept the wife’s evidence about the substance of telephone conversations she had with the husband trying to arrange contact and his behaviour towards her at contact changeover. Not only has he been abusive in relation to matters concerning the children, but also in relation to the parties’ financial affairs. The husband told the wife on a number of occasions that he intended that she would, “End up with nothing” and, “I don’t’ give a fuck if there is nothing left over at the end of this” and also, “You’re not going to get a thing, you don’t deserve anything”.
The husband has virtually no appreciation of the effect his attack on
29 December 2003 had on the wife. During these proceedings he was intent on proving that prior to separation the wife and Mr B were having a sexual relationship. I accept that they were not. The inference that the husband wished to persuade me of was that if the wife had been having a sexual relationship with Mr B, then the court would understand his subsequent behaviour towards her. Irrespective of whether the husband believed the wife had been having an affair, his behaviour towards her and the children when she told him she wished to separate cannot be justified. His attempt to put a gloss on the incident, which undermines its objectively terrifying nature, indicates that the husband has only a limited capacity to understand the effect that his behaviour has upon others.
I accept the husband’s counsel’s submission that the husband is unlikely to physically assault the wife in the future. Whilst I am satisfied that the physical violence was an isolated occasion, the husband then embarked on a course of conduct that was continually abusive of the wife. He maintained a vendetta aimed at punishing her for leaving him, regardless of its effect upon her or the children. This vendetta underpinned his refusal to pay child support, keeping the children on ANZAC Day, refusing contact on Mother’s Day and Christmas Day 2003, refusing the wife and children a fair share of the contents of the home and financially reckless behaviour with the matrimonial assets. In each of these instances the husband has demonstrated a significant lack of judgment in his responsibility as a parent. He could have helped the children adapt to their parents’ separation. He chose not to do so and rather included the children in his dispute with their mother. There is a real possibility that he will abuse the wife in the future and expose the children to his harsh opinions of her. By comparison the wife has done her best to protect the children from the parental dispute. These factors weigh materially in favour of her application for residence.
I have greater confidence in the wife’s capacity to promote the children’s relationship with their father rather than his capacity to ensure the children’s relationship with their mother. This weighs in favour of the wife’s application for residence.
Other factors
The wife says that to an extent the existing contact arrangements are working well. In the sense that they enable the children to see their father even thought he might be working on weekends. She is concerned that the elder girls homework is not completed and that on their return they must complete days of scheduled work in one night. The husband denies that the children do not complete their homework. While this may be his belief, that is he sees the children do some work, I was not persuaded that he knew the full extent of the homework that was to be completed. For example he was unaware of the school book that parent’s needed to sign concerning completed reading tasks. The wife completes these tasks with the children. If they have been with their father during the school week, on their return the school work that should have been done while with their father is completed. I accept the wife’s evidence that B in particular is often in tears because of the pressure she feels to complete her school work and that both elder girls are distressed by the situation.
The wife demonstrated a more sophisticated capacity to attend to the children’s educational and intellectual needs than the husband, currently and prospectively. This is probably because she was responsible for this prior to separation and the husband was not. There is nothing that distinguishes the style of education the children will receive at either O or W schools. Both schools will ensure their needs for a sound education are met.
I enquired of the husband how he believed T would cope with midweek overnight contact when she is in kindergarten. Also the older girls as school work becomes more demanding. As far as the husband was concerned there are no difficulties now and will be none in the future. He did not agree that at least in kindergarten T would be tired and needed more reliability that the current arrangements offered. His responses seemed motivated by an understandable desire to have as much time with his daughters as possible but little insight into T’s and her sister’s need for reasonable routine and structure. As the children get older their school work will become more demanding and homework more rigorous. The husband’s laissez faire approach will be increasingly insufficient if the children are to achieve their full potential. In the wife’s primary care their scholastic success is much more likely. This weighs in favour of her application for residence.
Parenting orders are never final in the sense that children's and their parent circumstances change and arrangements may need to alter as a consequence of those changes. Ideally, courts should make parenting orders that minimise the prospect for future disputation. Litigation is costly in emotional and financial terms and has the effect of standing in the way of parties to a failed marriage moving on with their life. It can undermine their capacity to parent to the fullest extent of their ability. Thirteen months after their separation, the husband is still extraordinarily hostile to the wife. Further litigation will keep that hostility at the forefront and undermine such capacity as he may have to let the unhappy past go. To the greatest extent possible I am satisfied that the court should make orders that will be least likely to involve these parties and children in future litigation.
I will order that the parties have joint responsibility for the children’s long term care, welfare and development. Potentially they may disagree on matters concerning the children’s health, sports and education. Initially the wife will have the right to enrol the children in W Primary School. Issues concerning the children’s day to day care can be addressed pursuant to the order that gives each parent responsibility for making such decisions on a day to day basis. However, because the children will be living more substantially with the wife, when he comes to make decisions with her concerning the children’s long term care, welfare and development, the husband must take that reality into account. Ultimately, if these parties cannot agree then a court must adjudicate the particular issue. At the same time there is a possibility that the court would discharge the joint long-term responsibility order. In spite of the prospect of further litigation on this issue, I am satisfied that the children should be given the opportunity for their parents to make these decisions jointly.
Conclusion parenting orders
For the reasons given I am satisfied that the children’s long term interests are better addressed in the wife’s full time care than if they live with the husband. The wife impressed me as being attuned to the children’s emotional and psychological needs to a greater extent than the husband. Unlike him she has not tried to undermine the children’s relationship with their other parent or partner. In their father’s care there is a continuing risk that the children will be embroiled in adult concerns rather than protected from them. Throughout their lives the wife has been overwhelmingly responsible for the children’s care, which responsibility she had undertaken diligently and skilfully. I am satisfied that she will continue to do so. The husband has placed the children under great pressure to side with him in his dispute with their mother, both by his behaviour and discussions with them. This has influenced the elder girl’s wishes and created an environment that lessened their capacity to make mature well informed decisions. Overall the wife’s arrangements will provide greater long-term stability than the husband’s will. In her care the changes that will be need to be made will be well managed. I have no doubt that the wife will help the children adapt, for example to a change in school without continuing difficulty.
I am troubled by the current midweek contact arrangements. These are designed around the husband’s work roster and originally intended as an interim arrangement pending final hearing. When these orders were made I did not address long term arrangements. I have highlighted my concerns about the pressure on the children when homework is not completed. I am not satisfied that these arrangements have worked sufficiently well from the children’s point of view that they should continue long term. The nature of the husband’s roster means that he cannot routinely take alternate weekends and hence his days off work are often during the school week. Contact structured around alternate weekend may thus mean that the children and husband may not see each other for more than two weeks. I agree that this is too long. The issue for me however is whether the parties’ proposals that three night’s contact coinciding with the husbands’ days off during the school week is in the children’s best interests. The parties agreement that these arrangements should continue is a powerful factor that must carry significant weight. Clearly the court cannot abrogate its responsibility to make orders that are in the children’s best interests because the parties agree on the outcome. However where parents do agree and their agreement is reasonable, the court ought not to not impose different arrangements unless these are clearly necessary in order to advance the children’s best interests. Where parents agree on an arrangement their agreement maximises the prospects that the arrangements will succeed from the children’s point of view.
However in the year that T is in kindergarten and if the husband gives up shift work a more suitable contact arrangement is to emphasise alternate weekends and supplement this with some form of midweek contact. The aim being to ensure that the children and husband have contact every week balanced with maximising T’s opportunity to make kindergarten successful. Kindergarten is a critical year and if T’s arrangements are too chaotic, her chances of starting school well are seriously undermined. Long term she is far more likely to enjoy a happy and successful school life if she is primarily coming to and from the same place, as far as possible in a regular routine.
I will order that every week the husband has one night overnight contact if he has not had the children on the preceding weekend. This will maintain the children’s relationship with their father without undermining their schooling. If he is available and willing he could also collect the children from school one afternoon a week and take them to an extra curricular activity, returning them to the wife no later than 5.30 pm. On some weekends the husband may be available for part of the weekend, if so he will have the children overnight even if he must work the adjacent day. This approach will require that the husband does more travel, but he was at pains to emphasise that this does not worry him. Having completed kindergarten and being one year older, T will be more able to manage school and the previously existing contact arrangements.
Where possible the husband will collect the children from school at the start of contact. This will give him the opportunity to meet their school friends and have some involvement in their education. It also limits the parties needs to deal with each other and hence the husbands opportunity to abuse the wife. Otherwise the wife will be responsible for delivering the children to the husband’s home at the start of contact and he will be responsible for returning them to her home at the end of contact. The wife proposed a service station, roughly mid way between the parties homes. It was her intention to share the travel and have changeover in a public place so that the probable presence of other people might reduce the risk that the husband would abuse her. There is merit in her approach. However if all three children are involved in contact changeover there is no reason why they cannot alight from the delivering parent’s vehicle and go inside. The changeover taking place without the parent’s needing to come into contact with each other. In my opinion this is a preferable approach and avoids the tension caused if one party is late arriving and the other irritated waiting in a service station.
Both parties wish to share special occasions with the children. These will be shared to the extent possible without creating chaotic arrangements.
Relevant law – property
The approach to the determination of an application under s.79 is well established by authority: See In the Marriage of Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage of Clauson (1995) FLC 92-593. The process 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 s.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 s.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.
In determining what order should be made under s.79, the court must be satisfied in all the circumstances that it is just and equitable to do so: s.79(2). It is the justice and equity of the actual orders that the court must consider: See Russell v Russell (1999) FLC 92-877.
Assets and liabilities at the date of hearing
The parties reached agreement as to the value of most assets.
I find the assets and liabilities, as at the date of hearing, are as identified in the table below:
| Assets as at the date of hearing | $ |
| Western Sydney Property, (Joint)(Agreed) | 330,000 |
| Furniture and furnishings in former matrimonial home (H)(Agreed) | 5,000 |
| Furniture and furnishings (W) | 2,000 |
| 1985 Nissan Navara (H) (Agreed) | 3,000 |
| Holden Commodore (H) (Agreed) | 3,700 |
| Hyundai (W) (Agreed) | 500 |
| Add back unpaid mortgage (H) | 10,533.24 |
| Add back joint debts paid by husband from NAB loan (H) | 9,114 |
| TOTAL NON SUPERANNUATION ASSETS | 363,847 |
| Superannuation | |
| Superannuation Cbus (H) (Agreed) | 3,678 |
| AMP (H)(Agreed) | 3,708 |
| Small Business (H) (Agreed) | 7,904 |
| Plum (H) (Agreed) | 2,640 |
| AXA (W) (Agreed) | 1,032 |
| TOTAL SUPERANNUATION | 18,962 |
| TOTAL ASSETS | 382,809 |
| Liabilities as at the date of hearing | |
| Homeside Lending (Joint) (Agreed) | 173,599 |
| NAB (H) (Agreed) | 20,000 |
| WR (W) | 5,000 |
| TOTAL LIABILITIES | 198,599 |
| NETT ASSETS | 184,210 |
After separation the wife borrowed $5,000 from Mr R that she used to buy furniture and on personal living expenses. She had very little from the home, virtually no savings and only government benefits to live on. The husband’s counsel contended that the loan was too uncertain to be taken into account. The wife’s counsel submitted that the wife would take responsibility for the loan repayment and that the court need not take it into account. This appeared to be on the basis that the husband would take the NAB loan. Thus I must still address the husband’s counsel submission as to whether this liability exists. I am satisfied that the wife borrowed this money from Mr R and that she must repay him when she is able. She had no other funds available that she could have used to acquire furniture and meet the shortfall in her living expenses. I take a different approach to the husband’s loans from his sister. I am not satisfied that either sum was necessary and thus the husband must take responsibility for these.
One of the contentious issues is the husband’s failure to make mortgage and other payments after separation. Linked to this is the treatment of the husband’s loan from NAB. As at February 2003 the balance due on both mortgages totalled $169,818[7]. The amount due to the mortgagees, but unpaid whilst the husband has been in occupation of the home, is $10,553.24. On 4 July 2003 the husband borrowed $20,000 from the National Australia Bank. He contends that the entire loan is a joint matrimonial debt and that the money was used “To meet part of the matrimonial debts with which I had been left on separation and to meet some other debts that had arisen since separation”. The entire $20,000 was disbursed when the loan was provided. The table below identifies the disbursements made from the $20,000[8]. The right hand column summarises the nature of each debt.
[7] Exhibit E
[8] Annexure G to husband’s affidavit sworn 19 February 2004 and
Disbursement
Amount
Nature of debt
Application fee $100 Agreed joint liability Telstra $1,212.05 Telephone bills incurred after separation SA $1,500 Money husband borrowed by husband after separation M.F $1,000 Money borrowed by husband after separation BB $3,638.50 Husband’s paid legal fees Wollondilly Shire Council $334.70 Amount due at separation $165.51[9]. Balance accrued since separation Homeside account $1,014.87 Two mortgages secured on FMH Homeside account $1,014.87 Two mortgages secured on FMH Telstra $185.55 Incurred since separation Sydney Water $110 This is not listed as a liability in the husband earlier financial statement[10] hence incurred after separation Macarthur Tyre and Brake Service $186 New tyres for Commodore in husband’s possession Legal Accounting Services P/L $1,064 Agreed joint liability for business St George $2,450.56 Agreed joint liability for credit card HSBC $5,166.90 Agreed joint liability for credit card Infringement Processing Bureau $197 Husband’s traffic infringement fine SA $800 Monies borrowed after separation [9] Paragraph 4(f) Husband’s affidavit sworn 12 December 2003
[10]Exhibit B
It is the husband’s contention that what might be construed as financially irresponsible behaviour after separation is merely as a consequence of his distress at separation. Thus the financial consequences of his actions ought not to be taken into account against him. Simply that the parties should share the financial burden he has visited on them. As will become apparent I do not accept this contention.
The husband says that he was unable to work for six weeks after separation. He does not say that he took unpaid leave. It seems likely that he had some leave accrued, whether it is sick or recreation leave. Although he did not go to work for six weeks the evidence does not persuade me that he was on unpaid leave. Thereafter he says he was not capable of working overtime and was only receiving his base pay of approximately $600 each week. He does identify how long he was earning only $600 each week. Presently his gross weekly pay is $1,125. I infer that while he worked shorter hours he did not do so for long. If he was only earning $600 per week it is unlikely that with his fixed liabilities the NAB would have lent him an additional $20,000.
After separation the husband made mortgage payments until May 2003. Thereafter, between June 2003 and the date of the hearing he made two payments, both of which were drawn from the NAB personal loan. He said that pending the sale of the home he has no intention of making mortgage payments. This is not withstanding that on
2 October 2003 Homeside Lending served a s.57(2)(B) Real Property Act 1900 notice in relation to accounts no. 10591238-0. A similar notice was served on 27 November 2003 in relation to account number XX. Further notices were served not long before the hearing. Since June 2003 the wife has advocated the sale of the home, contending that the parties could not afford to buy each other out and that it’s sale was inevitable. The husband repeatedly refused. When she sought the sale of the home after notices were received from the mortgagee he resited her application and said he would refinance and agreed to pay the loans. He did neither. The husband attempted to shift responsibility for his failure to pay out the loans or pay the mortgage to the court and his lawyers, because he did not receive the orders until just before Christmas and his lawyers were closed afterwards. Whilst this may be true I do not accept that the husband was unable to make and finalise arrangements in order to comply with the December 2003 orders. When he failed to comply the orders provided for the home’s sale forthwith. Although pressed by the wife’s solicitors to comply with the orders he refused to do so. Together this reinforces my satisfaction that his failure to pay joint debts has been calculated to cause the wife as much financial hardship as possible.
The husband says he could not afford to pay the mortgage, rates and child support. Between 14 July 2003 and 14 December 2003 the husband withdrew $3,794 from Liquor outlets. This averages $190 each week. Initially the husband suggested that this was where he did his shopping. However he was forced to concede that his bank statements showed withdrawals from other ATM cash outlets that he used for shopping and general banking. Two of the three outlets are primarily liquor shops and the other predominantly liquor and entertainment. While he may have drawn small cash sums from these three places I am satisfied that the overwhelming majority of the withdrawals related to alcohol and personal entertainment. Spending such a significant sum of money on these types of goods while simultaneously failing to pay the mortgage, rates and child support supports the wife’s contention that the husband intended to destroy her financially. If necessary, he was prepared to waste the assets that they had built up during the marriage. His financial vendetta ought not to be visited upon the wife any more than he has already achieved.
At paragraph 91 of his affidavit the husband attempted to give an account his income and expenditure to explain why he had been unable to pay these expenses. He does not disclose that he had been spending $190 each week on alcohol and entertainment. It also fails to disclose that the husband did not pay child support until action was taken by the Child Support Agency in November 2003, taking child support directly from the husband’s salary. True it is that the parties lived beyond their means in the sense that they used about $22,000 of the refinanced mortgage on personal expenses. This does not mean, as the husband contended that the court would see his behaviour as a continuation of an earlier established pattern. The key difference is that the loans were serviced from the husband’s salary. I am satisfied that the husband has failed to give an adequate account for the disposition of his income since separation. It is highly probable that he has spent his income predominantly in his own interests and ignored his financial obligations. The mortgage outgoings and other debts not paid while he has been in occupation of the home will be notionally added back as the wife contends. In effect this is no more than the price of his occupation of the home.
Of the $20,000 the husband borrowed from NAB $9,114 was used to pay joint matrimonial debts. The balance concerns expenses incurred by the husband after separation unrelated to the marriage. This will be his personal responsibility.
The husband also has outstanding costs orders that he has failed to pay the wife. These are unquantified but must be paid from his share of the property. There will be additional mortgage payments due that will be unpaid. These and any other expenses associated with the home, for example rates and insurances, must be paid out of the husband’s share of the proceeds of sale. In effect the continuing costs of his occupation of the home.
Evaluation of contributions
Section 79(4) requires that the court look at the entirety of the contributions, both financial and non-financial, to the welfare of the family as well as the acquisition, conservation and improvement of those assets. Contributions are not required to be tied to the acquisition, conservation or improvement of a particular asset and are to be taken into account generally as contributions in a total sense.
During approximately fourteen years cohabitation, both parties have made contributions that fall within s.79(4)(a)-(c).
At the commencement of cohabitation both parties were in full time employment. The wife worked as a driver. She owned a Datsun 200B motor vehicle, which was traded in during the first year of cohabitation for about $700. The husband owned a Holden Monaro motor vehicle, a one tonne utility, two trail bikes, tools and savings that he estimates at $5,000. He did not have any liabilities. Within twelve months of commencing cohabitation the husband obtained a loan and purchased a lawn mowing business for $15,000. In 1989 he received $10,000 from his father, which money was used to repay the loan. Having acquired the business the husband ran it for about five years. In 1990 the husband’s father died and he received an on-site caravan and its contents by way of inheritance. These were sold in about 1991 for $10,000. Because he was more intimately involved in the purchase and inheritance I prefer the husband’s evidence concerning these transactions.
In about 1993 the husband sold the lawn mowing business, for which he received approximately $20,000. It appears that the sale of the lawn mowing business coincided with his resignation from a Plant Hire business where he had worked continuously since cohabitation. The husband then commenced work as a plant mechanic, subcontracting at various places and also as a plant mechanic subcontractor.
The wife continued full time work until late 1992, shortly prior to B’s birth. In 1998 she resumed work as a delivery driver, working two days per week working between 8 am and 4 pm. At all other times the wife has been a full time home maker and parent.
In 1995 the parties purchased their home at Western Sydney. The husband’s Holden Monaro was sold for $12,000, which provided the deposit for the home. The balance of the purchase monies was borrowed from ANZ Bank. The original home loan has been re-financed twice. On the first occasion, additional monies were borrowed to purchase a newer car and in late 2001, early 2002 the parties re-financed with Homeside Lending. On the second re-finance, they borrowed an additional $40,000, making the total sum due pursuant to the mortgage of $180,000. The additional $40,000 was disbursed in an $18,000 payment to the Taxation Office and the balance on day to day living expenses. Planned improvements to the home and the purchase of a motorcycle for the husband did not eventuate. Shortly before separation the wife withdrew $4,000 from the parties’ joint account, which monies paid a contractor who poured a cement slab in readiness for construction of a shed at the home.
I accept the wife’s evidence that she did not use this money on personal expenses.
I am satisfied that both parties applied all income earned throughout the marriage to joint matrimonial purposes. As at the date of separation the husband made a substantially greater financial contribution than the wife did. Not only did he make a greater initial contribution than she did, but thereafter received gifts and had a reliable income all of which was used towards the betterment of the family.
The parties jointly decided that the wife would stop full time work and take care of the children at home. The husband’s employment, which for about five years included full time employment as well as running his lawn mowing business, meant that the day to day care of the family and management of the home was overwhelmingly the wife’s responsibility. The husband emphasised that until separation he had not paid a bill or been involved in the management of the home for twelve years. The wife’s diligent attention to the children and the home meant that the husband could pursue his career confidant that the wife competently attended their children’s daily needs and the home. He trusted the wife to largely meet their joint parental responsibility for the care of the children and accepted her judgment in relation to the daily matters necessary to run the children’s lives and the home. Their roles were complimentary and both parties gave all for the family. The husband in maintaining employment, working to improve the property and maintaining the grounds. The wife in meeting the needs of three young children and managing the home. The husband made a contribution to the welfare of the family to the extent that he was able to. Quite apart from providing financially for the family he spent time with the children when he was at home playing with them outdoors and in shared family activities. Since separation he has become more significantly involved in the children’s care by virtue of his exclusive care of them during periods of contact. Similarly since separation the wife has had primary responsibility for the children’s care, a factor that requires a small adjustment in her favour. Overall the wife’s contribution to the welfare of the family substantially exceeds the husbands. Her contribution must be recognised in a real and substantial way. See Ferraro (supra).
Evaluating their contributions it is clear that the husband made a greater initial contribution. The husband’s counsel contended that his initial contribution was a most significant sum in the financial history of this marriage and should be given considerable weight. He submitted that without the husband’s car the parties would not have been able to acquire their home when they did. Whilst it was significant, the initial contribution was nonetheless modest and does not support the contention that the husband should be assessed as having made a total contribution at 60 per cent. The husband earned consistent income and applied it to the betterment of the family. These considerations in conjunction with his contributions as a home-maker and parent to the welfare of the family and the conservation and improvements to the matrimonial assets are considerable. They must be balanced against the wife’s lesser financial and non-financial contributions towards the assets, but significantly greater contributions to the welfare of the family.
The orders I propose will not affect the earning capacity of either party.
The husband is assessed to pay child support of $203.19 per week. His financial support of the children, based on the Child Support (Assessment) Act 1999 is at an appropriate level.
I find, therefore, the parties’ total contributions should be assessed as being 52% by the husband and 48% by the wife.
Section 75(2)
The wife is 39 years old and in good health. The husband is 36 years old and also in good health. I make no adjustment pursuant to subsection (a).
The wife cares for the children full time and does not earn income from paid employment. She receives social security payments, family assistance of $220 per week and child support of $206 per week. She has the expenses identified in her financial statement, which must be moderated to some extent as the rental payment also provides for Mr B’s accommodation. The wife has modest savings, few personal effects and a 1992 Hyundai Excel. The husband earns $1,125 per week without overtime. I infer that should he wish it, he could resume regular overtime and that his weekly income would accordingly increase. In his financial statement the husband claims weekly expenses of $1,510, which include $322 to the National Australia Bank on one loan and $108 to the National Australia Bank on a second loan. He does not pay these loans. Upon the sale of the home the husband will probably rent, which rent will be in the vicinity of $250-270 per week. The wife has not had full time employment since B’s birth. She left school at year 10 and has completed a basic computer course and tracing course, but has no practical experience in either.
I am satisfied that the husband’s actual income and also his earning capacity exceeds the wife. I make an adjustment in her favour pursuant to subsection (b).
Subsection (c) – I will order that the children live with the wife and have contact with the husband. Because of their ages it is unlikely that the wife will resume full time work for a considerable number of years. Once T starts and settles into school, she may have the opportunity to take part time employment. Her opportunity for employment is materially affected as a consequence of her care of the children. In Clauson (supra) the Full Court said “In addition, it should not be forgotten that the payment of child support in no way compensates the custodial parent for the loss of career opportunity, lack of employment opportunity and the restriction upon an independent lifestyle which the obligation to care for the children usually entails.” These principles are applicable to the circumstances of this case. I am satisfied that as a consequence of her substantially full time care of the children that there should be an adjustment in the wife’s favour pursuant to subsection (c).
Other than the children, neither party has a responsibility to support any other person. Both parties have a duty to maintain the children. Upon the sale of the home both parties will incur comparable rental expenses. The wife’s income is derived from child support and family allowance. By living frugally and with Mr B’s support she has managed to support herself and the children. Her standard of living is modest and without Mr B’s support, or previously a supporting parents benefit, she could not meet her living expenses. I had difficulty with the husband’s claimed expenditure because of the suggestion in his financial statement that he pays the NAB loans and rates, when clearly he does not. Nor was I comfortable with the assertion of other expenses at $450 per week. The amount claimed seemed excessive.
I make an adjustment in favour of the wife pursuant to subsection (d).
Subsection (f) – As I have already found the wife receives a family allowance. I have already taken this factor into account during the assessment of s.75(2)(b). Because of her care of the children the wife will continue to be eligible for a family allowance and I make an adjustment in the husband’s favour pursuant to the subsection.
Subsection (g) – At separation the wife left the former matrimonial home. She has lived in rented accommodation and suffered a drop in the standard of living endured during the marriage. The husband has remained in the home and enjoyed at least the same standard of living that the parties maintained during cohabitation. Shortly the husband will lose the privacy of his own home. I make no adjustment pursuant to the subsection.
Subsection (h) – (k) – I make no adjustments pursuant to these subsections.
Subsection (l) – The children will live primarily with the wife. Her absence from the paid workforce on a full time basis since B’s birth corroborates her evidence that to the extent possible she wishes to continue her role as a full time parent. Both parties previously agreed that the children would have the benefit of their mother’s substantially full time care. Eventually she may return to the paid workforce and it is reasonable that she will limit her hours of employment to coincide with school hours. To the extent not already addressed under section 75(2)(b) and (c) I make an adjustment under subsection (l) in favour of the wife.
Both parties have re-partnered. Mr B earns $560 per week net that he contributes to the wife’s household. Ms P does not work in the paid workforce and is financially supported by the husband.
I make an adjustment pursuant to subsection (m) in favour of the husband.
Both parties will receive a lump sum payment from the proceeds of the sale of the home. The wife will have a greater capital sum, but her borrowing capacity is limited by her capacity to repay any loan. I have already made findings concerning the adjustment after the contributions phase and do not repeat them. There is no reason in the circumstances of this case that there should be any further adjustment pursuant to subsection (n).
I have some unease about the husband’s commitment to pay child support at the level that should be paid. He refused to pay any child support upon separation and the current assessment of $203.19 is paid because the Child Support Agency deducts it at source. For so long as the husband remains in salaried employment he will contribute child support. As currently assessed, this results in a meaningful, but not overly generous contribution towards the children’s costs. I make no adjustment pursuant to subsection (na).
The husbands financially wasteful behaviour since separation must be taken into account. The consequences are more extensive that the notional addbacks I have made. This is because the parties will have to pay default penalties and interest on their loans and legal expenses associated with the default notices. These costs are presently unable to be quantified. This requires an adjustment in the wife’s favour pursuant to s.75(2)(o).
I make no adjustment pursuant to s.72(2)(p).
Having regard to all of the section 75(2) factors I find it appropriate that there should be an adjustment to the wife’s favour having regard to the findings made in her favour and balanced by those made in favour of the husband. The appropriate adjustment to make in the wife’s favour is 22 per cent. This outcome reflects the cumulative outcome of the findings I have made pursuant to section 75(2). See Tomasetti (2000) FLC 93-023. Any lesser adjustment, given the modest asset pool would be notional.
Section 79(2) is this a just and equitable outcome?
The outcome of s.79(4) and s.75(2) has resulted in a distribution favourable to the wife 70 per cent as compared to the husband 30 per cent, I am satisfied is just and equitable within the meaning of s.79(2). The reason for that is the s.79 exercise requires that I give proper weight to the wife’s financial future, having regard to her care of the children compared to the husband’s capacity for full time, paid employment. His initial financial contribution was greater than hers was and in effect was the seed capital that enabled the parties to acquire their home. Both parties worked to maintain and improve their home and secure their families future. It cannot be overlooked that the husband has been financial reckless with unfortunate consequences for both parties.
The nett assets to be distributed are $184,210 including superannuation. Neither party asks that any superannuation interest be split. However both counsel treat the superannuation as property and ask that it be taken into account at face value. Thus although I am not asked to split the superannuation interests it is apparent that both counsel agree that I should make adjustments from other property in relation to it.
Although the home has an agreed value, the net proceeds of its sale cannot be known. The total assets, excluding superannuation and the home are $33,847.00 and the total liabilities excluding the mortgage are $25,000, giving a net amount of $8,847. The husband will take responsibility for the NAB loan and the wife must repay Mr R. The approach taken by her counsel does not mean that these debts are ignored, they must be addressed in the overall property distribution. On this basis excluding the home and superannuation the husband’s has assets of $31,347 and liabilities of $20,000. The wife has assets of $2,500 and $5,000 liabilities. The wife should have $6,193 and so the husband must pay an adjustment of $8,693 from his share. The husband has superannuation worth $17,930 and the wife has $1,032 superannuation. Seventy percent of the parties total superannuation is $12,551, therefore from the husband’s property there must be an adjustment in the wife’s favour of $11,519. Neither counsel submitted that this would have a discount because it is superannuation and not immediately available. It would have been preferable for the court to order this adjustment by way of a splitting order, in effect treating equivalent property in the same fashion. However neither party contended that this was appropriate and I infer both preferred the above approach.
Therefore on the sale of the home when the husband receives his 30% of the net proceeds there will have to be an adjustment in the wife’s favour paid from his 30%. The adjusting figure is $11519 and $8693, totalling $20,212. Pending settlement the husband must maintain the property and pay rates, taxes and mortgage instalments as and when they fall due. If there are outstanding rates and insurances these must be paid out of his share. If he defaults the default must be paid out of his share of the proceeds. Because the purchaser and mortgagee’s are likely to require full repayment before the parties distribute the net proceeds the adjustment will be made from the husband’s share. The effect must be that the husband is fully responsible for the outstanding expenses identified above. Similarly he must pay from his share any outstanding costs orders, thus finalising as far as possible the parties financial relationship.
There are minor outstanding issues concerning personalty and the commodore car in the husband’s possession. I accept the wife’s evidence that she has previously given the husband a signed transfer of registration papers. Because he has failed to register the car in his name, he will need to give her such papers as a necessary to effect the transfer of registration, which she must sign and immediately return. The husband contends that the wife has taken his jewellery and many other household goods from the home. Including for example his father’s watch. The valuer located the watch in the husband’s home and the wife’s denial that she had removed it was obviously true.
I accept that the husband has the goods sought by the wife. His behaviour has been so ungenerous since separation that it would have out of character for him to give her possessions that he knew she desired. Now he must do so. This will still leave him with the vast majority of household furniture and goods.
This I am satisfied is a just and equitable outcome.
For these reasons I make the orders identified at the start of this judgment.
I certify that the preceding one hundred and thirty-five (135) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date: 17 March 2004
annexure Q wife’s affidavit sworn 6 February 2004
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