FLORES & FLORES
[2009] FMCAfam 1164
•20 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FLORES & FLORES | [2009] FMCAfam 1164 |
| FAMILY LAW – Parenting orders – importance of child spending significant and substantial time with father balanced with father’s need to undertake behavioural change and parenting courses. FAMILY LAW – Property settlement – section 75(2) adjustment – who is to retain the former matrimonial home. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 65DAA, 75, 79 |
| Kowaliw and Kowaliw (1981) FLC 91-092 C and C [1998] FamCa 143 Pierce and Pierce (1999) FLC 92-844 Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 |
| Applicant: | MS FLORES |
| Respondent: | MR FLORES |
| File Number: | DGC 449 of 2009 |
| Judgment of: | Bender FM |
| Hearing dates: | 8 & 9 October 2009 |
| Date of Last Submission: | 9 October 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 20 November 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Moisidis |
| Solicitors for the Applicant: | Michael Smith & Associates |
| Counsel for the Respondent: | Ms Stoikovska |
| Solicitors for the Respondent: | Keith R. Cameron |
ORDERS
PARENTING ORDERS
All previous parenting orders be discharged.
The parties retain equal shared parental responsibility for their daughter [X] born [in] 1997 (“[X]”).
[X] live with the wife.
[X] spend time and communicate with the husband as follows:
(a)each alternate weekend from after school Friday to before school Monday;
(b)after school Wednesday to before school Thursday in each week after the weekend [X] has not spent time with the husband;
(c)by telephone each Tuesday and Thursday between 6.00 pm and 6.30 pm, with the husband to telephone [X]’s mobile phone and the wife to afford [X] the opportunity to take such calls privately;
(d)
half of all school holidays as agreed between the parties, and failing agreement, the first half of term holidays and from
2 January each year in the long summer vacation;
(e)from 3.00 pm Christmas Day to 3.00 pm Boxing Day in 2009 and in each alternate year thereafter;
(f)from 3.00 pm Christmas Eve to 3.00 pm Christmas Day in 2010 and in each alternate year thereafter;
(g)on Father’s Day from 10.00 am to 5.00 pm if [X] is not otherwise with the husband;
(h)if [X] or the husband’s birthdays fall on a day [X] is not otherwise with the husband, from 4.30 pm to 6.30 pm; and
(i)at such times as agreed between the parties.
In the event [X] is with the husband, his time shall be suspended from 10.00 am Mother’s Day and between 4.30 pm to 6.30 pm on either [X] or the wife’s birthdays.
When [X] is spending time with the husband pursuant to orders 4(a) and (b) herein, the wife shall be restrained from telephoning [X], though nothing in these orders prevent [X] from telephoning the wife upon her reasonable request to do so.
When [X] is spending time with the husband pursuant to order 4(d) herein, the wife shall be at liberty to telephone [X] each Tuesday and Thursday between 6.00 pm and 6.30 pm, though nothing in these orders prevent [X] from telephoning the wife at any other time upon her reasonable request to do so.
The husband shall do all things necessary to forthwith enrol in and complete a Men’s Behaviour Change Program (“the program”) with Whitehorse Community Health Service (telephone number 9890 2220) at his cost. The husband is to provide the intake worker of the program with a copy of the family report of Dr David Harvey dated 8 July 2009 to better inform the program provider as to the reason for the husband’s attendance. Upon completion of the program, the husband shall provide to the wife’s solicitor written proof of his completion of the program.
The wife do all things necessary to engage with a child and developmental psychologist who has experience in the area of disability to seek guidance as to how to better parent [X]. The wife is to provide the psychologist with a copy of the family report of
Dr David Harvey dated 8 July 2009 to better assist the psychologist in understanding the reasons for the wife’s attendance upon him/her.
The husband and the wife shall commence and complete the Parenting After Separation Course (“the course”) provided by the Family Relationship Centre at Chadstone (telephone number 9564 6999) and shall do all things necessary to enrol in and complete the course that commences February 2010. The cost of such course shall be borne by the Regional Co-Coordinator of Child Dispute Services in the Melbourne Registry of the Federal Magistrates Court of Australia. Each party shall forthwith provide to the other party’s solicitor proof of their enrolment in the course.
The husband’s time with [X] pursuant to orders 4(a), (b) and (d) shall not commence until such time as he has complied with order 8 herein and provided proof of his enrolment in the course pursuant to order 10 herein. Pending compliance with order 8 herein and the provision of proof of his enrolment in the course pursuant to order 10 herein, the husband shall continue to spend time with [X] in accordance with the orders of this court made on 9 October 2009 (noting however [X] shall spend time with the husband pursuant to orders 4(e), (f), (g), (h) and (i) herein forthwith).
PROPERTY ORDERS
The wife pay to the husband the sum of $115,580.00 (“the payment”) on or before 18 January 2010 (“the date”);
Contemporaneously with the payment:
(a)the husband do all such acts and things and sign all such documents as may be required to transfer to the wife, at the expense of the wife, all of his right, title and interest in the real property situate at and known as Property C; and
(b)the wife indemnify the husband against all payments and liability pursuant to the mortgage to the Westpac Banking Corporation (“the mortgage”) and do all things necessary to refinance the real property so as to remove the husband from the mortgage as well as indemnify the husband against all apportionable rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind.
In the event that the whole of the payment has not been made by the date, then the real property be forthwith sold altogether out of court (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:
(a)firstly, to pay all costs, commissions and expenses of the sale;
(b)secondly, to discharge the mortgage and any other encumbrance affecting the real property;
(c)thirdly, so much of the payment as is then outstanding together with interest thereon at the rate of ten per centum per annum adjusted monthly from the date to the husband; and
(d)fourthly, the balance to the wife.
Pending the payment or completion of the sale:
(a)the wife have the sole right to occupy the real property and during such right of occupation the wife pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as they fall due;
(b)the parties hold their respective interests in the real property upon trust pursuant to these orders; and
(c)neither party encumber the real property without the consent in writing of the other party.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the property being deemed to be in the possession of the wife) save for the wall unit given to the husband by a work colleague, the burgundy lounge suite, the second video player and the picture of St Mary which shall be made available to the husband by no later than 30 November 2009;
(b)insurance policies remain the sole property of the owner named therein;
(c)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(d)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
IT IS NOTED that publication of this judgment under the pseudonym Flores & Flores is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
DGC 449 of 2009
| MS FLORES |
Applicant
And
| MR FLORES |
Respondent
REASONS FOR JUDGMENT
Introduction
The wife is seeking orders in respect to both the arrangements for the parties’ daughter [X] born [in] 1997 (“[X]”) and a division of matrimonial property.
The wife is seeking [X] live with her and spend time with the husband each alternate weekend from after school Friday to 5.00 pm Sunday, from after school Wednesday to before school Thursday in each alternate week, as well as holiday time and time on the special days of Christmas, birthdays and Father’s Day.
In relation to property matters, the wife seeks to retain the former matrimonial home and that there be an adjustment of the parties’ assets on the basis she receives 70 per cent of those assets.
The husband seeks orders that [X] live with the wife and spend time with him each alternate weekend from after school Friday to before school Tuesday and in the alternate week from after school Wednesday to before school Thursday.
The husband was in agreement with the wife’s proposals for the time [X] was to spend with him during holidays and on special days.
In relation to property matters, the husband also seeks to retain the former matrimonial home and otherwise that there be an adjustment of their assets on the basis the wife receives 60 per cent of those assets.
Background
The husband was born in Egypt [in] 1964 and is accordingly 45 years of age. He migrated to Australia in 1991. He runs his own [omitted] business called “[A]”.
The wife was born in Egypt [in] 1972 and is therefore 37 years of age. Whilst trained as an [occupation omitted] in Egypt, her qualifications are not recognised in Australia. She has worked with the husband in the [omitted] business as well as a [omitted] worker. She is currently engaged in home duties and on a Newstart allowance.
The parties married in Egypt [in] 1995 and the wife migrated to Australia later in 1995.
The parties’ daughter [X] was born [in] 1997. [X] is profoundly deaf. She has a cochlear implant and engages in mainstream schooling. She will commence high school next year at [omitted].
The parties purchased the former matrimonial home at Property C in 2000 for $166,000.00. It was the husband’s evidence that the parties borrowed $132,000.00 from Westpac and the balance of the funds to complete the purchase of approximately $38,000.00 came from his pre-marriage savings. The wife disputes the source of these additional funds and says the monies were joint savings.
The parties had reduced the mortgage to $13,500.00 by separation.
At the commencement of the marriage, the husband was employed as a [occupation omitted]. In August 2004, the husband established his own [omitted] business, “[A]”. This business has consistently generated earnings of $100,00.00 to $110,000.00 per annum since its’ establishment.
The wife was engaged in various forms of unskilled labour, including as a [occupations omitted] from 2000 to 2006. She has not been engaged in paid employment since 2006.
After a period of unhappiness, the parties separated on 31 January 2009 at which time there was an altercation between the husband and the wife, witnessed by [X]. Arising from this incident the wife obtained an intervention order and the husband faces assault charges which are listed for a defended hearing in the State Magistrates Court in October 2009.
After separation, the wife remained in the former matrimonial home with [X]. Orders were made on 10 March 2009 that provided for [X] to spend time with the husband each alternate weekend on Saturday between 11.00 am and 6.00 pm and on Sunday between
1.00 pmand 4.00 pm. The husband spent time with [X] pursuant to those orders.
On 7 August 2009, further interim orders were made for [X] to spend time with the husband each alternate weekend from after school Friday to before school Monday.
[X] spent time with her father on the weekend of 14 August 2009. By agreement she returned to her mother on Sunday afternoon.
[X] spent time with her father on the weekend of 28 August 2009. She woke around 11.00 pm Saturday night, became distressed and returned to her mother at midnight on the Saturday. [X] has not spend any further time with her father between 28 August 2009 and the final hearing.
At the final hearing and pending the final determination of the matter, I made orders that [X] spend time with her father each alternate weekend from after school Friday to 5.00 pm Saturday, commencing 16 October 2009 and from after school Wednesday 21 October 2009 to before school Thursday 22 October 2009 and each alternate week thereafter.
CHILDREN’S MATTERS
The wife’s proposal
As set out earlier in this judgment, it is the wife’s proposal that the parties’ daughter [X] live with her and spend time with the husband each alternate weekend from after school Friday to 5.00 pm Sunday and each alternate overnight Wednesday, as well as specified holiday time and time on special days such as Christmas, birthdays and Father’s Day.
It was her evidence that [X] has always had difficulty in sleeping, other than in the matrimonial home, ever since she was a little girl. It was the wife’s evidence that up until last year, [X] had in fact slept in the same bed as her parents, and that since the parties’ separation [X] is again sleeping with her.
In relation to [X] spending time with the husband on an overnight basis subsequent to the orders that were made in August 2009, it was the wife’s evidence that on the first weekend [X] was returned early and had complained to her that she had been bored, and that all her father did was play solitaire on the computer on his own leaving her with nothing to do.
In relation to the second weekend, it was the wife’s evidence that [X] rang her around 11.30 pm on Saturday night complaining that she was scared and that her father didn’t believe her and was refusing to bring her home. She said that [X] said her father was yelling at her. She indicated that [X] was crying and was extremely upset. It was her evidence that she spoke to the husband who refused to bring [X] to the former matrimonial home but agreed to a changeover at McDonald’s restaurant and that is what took place at midnight. It was her evidence that [X] complained that the husband had been yelling at her and blaming her for the police charges that had been laid against him, arising from the January incident. The wife’s evidence was that [X] had told her she didn’t want to spend overnight time with her father.
The wife indicated that subsequent to these weekends she had tried to arrange with the husband for him to spend some daytime time with [X] but he had declined the opportunity to do so.
It was the wife’s evidence that because of the altercation that [X] witnessed between her parents on the date of separation, and other incidents reported to her by [X] where the husband has lost his temper with her, that [X] is fearful of her father and is adamant that she does not want to spend extended overnight time with him. The wife was strongly of the view that [X] could not cope with four overnight stays with her father in a row on a fortnightly basis.
In her interview with Dr David Harvey, who prepared a family report in this matter, the wife also indicated that she would have difficulty in coping with [X] being away for four nights in a row as she would miss her. The wife conceded in cross-examination that this would be an issue for her.
The wife also expressed concerns about the husband’s ability to manage his anger and that [X] had been exposed to this anger. She believed that the husband would benefit from an anger management course as well as a post separation parenting course.
She conceded that she and the husband do not trust each other and are unable to communicate in relation to [X] and the arrangements that need to be put in place for her.
The wife conceded that when [X] is with the husband, she does call her frequently, but stated that she does so in response to calls that she receives from [X].
Whilst it was her evidence that she does support [X] having a relationship with the husband, the wife indicated that when [X] rang her to say that she was scared at her father’s, she did nothing to reassure her that she was safe and that she should stay with her father, but rather indicated to [X] that she could come home.
It was the wife’s evidence that she believed in order for [X] to be comfortable spending time with her father, that any overnight time should start slowly and be built up over a period of time.
The husband’s proposal
The husband is seeking orders that are in accordance with the recommendations of the family report prepared by Dr David Harvey dated 8 July 2009.
It was Dr Harvey’s recommendation that [X] live with her mother and spend time with her father on alternate weekends from after school Friday until the start of school Tuesday and in the alternate week from after school Wednesday until the start of school Thursday.
It was the husband’s evidence that he has a close and loving relationship with [X] and that they enjoy their time together. He denied that he has any anger issues or that [X] is fearful of him.
In relation to the weekends that [X] spent with him prior to the cessation of him spending time with her, it was the husband’s evidence that he collected her from school on Friday 14 August 2009, that he took her home, they played soccer outside, he cooked dinner, they read and played together, that she went to bed and slept through the night without incident.
It was his evidence that on the Saturday they went to Southland, did some shopping, went to a games hall, had McDonald’s, came home, played some soccer, played some solitaire together on the computer, had dinner, read stories and that [X] went to bed quite happily. The husband’s evidence was that she did wake during the night and that he put her in his bed and he slept on a mattress on the floor and after that she slept happily through the rest of the night. On the Sunday, they again interacted happily until mid-afternoon when [X] indicated that she would like to go home. Having discussed that with her, he agreed that she should go home and he contacted the wife and arrangements were made for her to return in the afternoon. It was his evidence that they had a happy and enjoyable weekend together.
On the following weekend that he had time with [X], the Friday night proceeded in exactly the same way as had the previous Friday overnight that they had spent together. It was his evidence that again on Saturday they went to Southland, shopped, went to the games hall, went to McDonald’s, came home, had dinner, played on the computer together, watched some television and that [X] went off to bed at around about 10.00 pm. She indicated that she wanted to read and that at about 10. 30 pm – 10.45 pm, the husband checked on her and she had fallen asleep.
It was his evidence that at about 11.30 pm, [X] came into his room and indicated that she was scared as she was hearing noises.
The husband indicated he asked her how that could be as she didn’t have her hearing aid in, but she responded she was hearing noises and it was scary. The husband gave evidence that he told her to hop back into bed and that he would sit outside in the hall to make sure that she was safe. It was the husband’s evidence that by this time [X] was crying and demanding to be allowed to go home. He indicated that she was holding her phone and that the wife was on the phone and that after some heated discussion it was agreed that [X] would return home. It was his evidence that he took her home at midnight that night.
It was the husband’s evidence that on the Saturday night, he felt restrained from physically comforting [X] because of a pending intervention order application that had been brought by the wife. In the application and summons for that intervention order which was tendered to the court, the wife in her outline of each incident which she alleged happened, stated:
“My daughter has also disclosed to me that in June 2009 the respondent was shouting at her and hit her on the breast.”
It was the husband’s evidence that in light of this allegation, he was loathe to touch [X] in case that too was used by the wife as an allegation that he was inappropriately touching his daughter.
The husband, under cross-examination, indicated that during the day, when they were interacting happily, he had easily hugged and kissed her without that being a concern. He indicated however that he did have a suspicion that [X]’s acting out late on Saturday night was as a direct result of encouragement by the wife to [X] to behave in this way.
The husband agreed that subsequent to [X] returning on the Saturday night, he had not spent any time with her. He said that he had rung [X], but that the wife was listening in to the conversation. He stated that he had left it for [X] to give him a call when she wanted to see him, but that he had not heard from her since that time.
The husband agreed that [X] had had trouble sleeping, other than in the matrimonial bed, until last year when he and [X]’s school teacher had developed a strategy which had broken this habit. It would appear that he spoke to [X]’s teacher and to use his words they “embarrassed her into staying in her own bed to sleep at night”. The strategy developed with the teacher was that the teacher had a picture of a baby in a bed, and each morning [X] would have to tell her teacher whether she had slept in her bed or not. It was the husband’s evidence that within days of the introduction of this strategy, [X] had slept in her bed every night up until separation.
The husband conceded that he and the wife are unable to communicate with each other in relation to the arrangements for [X].
It was apparent from the husband’s evidence that he does not trust the wife. He indicated that he held strong suspicions that the wife was actively interfering with his relationship with [X], as evidenced by the continuous telephone calls that take place when [X] is in his care and her insistence on monitoring [X]’s phone calls with him by having those calls on speaker phone.
Dr David Harvey
Dr David Harvey prepared a family report in this matter dated
8 July 2009.
In relation to his observations of [X], Dr Harvey noted her to be a slim, pleasant-faced, easy to meet young person whose hearing problem does not stop her from doing as much as she likes in terms of sports and other activities.
In relation to her family situation, Dr Harvey noted that [X] is in a difficult position. In paragraph 16 of his report, he notes:
“She loves her mother and she loves her father but there were some indications that she may have been biased against her family on her father’s side of the family.”
In relation to the event on 31 January 2009 that precipitated the separation of the parties, Dr Harvey notes in paragraph 17 of his report as follows:
“The events of 31 January 2009 certainly had some effects on [X], but not to the point where she has been traumatised or developed a hatred of her father. She still loves him and does not hold the behaviours of that night against him even if it has given her cause for concern, but she knows the anger expressed that night by both parents was never directed at her but was between them alone.”
In relation to the wife, Dr Harvey reported that she told him that she objects to the idea of [X] spending any more time with the husband on the basis that she (the wife) has no family in Melbourne and she would be very lonely if [X] was away from her for an extended period.
In paragraph 20 of his report, Dr Harvey identified two problems with this attitude of the wife. He said:
“First it does not reflect a strong child-first focus on the part of the mother and ignores [X]’s rights to develop for herself her personal relationships with her father. Secondly it places [X] in a very unfortunate position in that instead of being treated as a daughter she has become more of a surrogate partner for her mother. Such a development is unfortunate for [X] as it is inevitably placing her in a position where she is not ever going to be able to develop her own sense of identity and her mother’s needs will be the determining factor when the time comes for [X] to move on and become an independent adult.”
Dr Harvey was also somewhat concerned with the wife’s indications that she would not be returning to work as she needed to be at home caring for [X] on a full-time basis. Dr Harvey indicated this would not help [X] learn the responsibilities of self-care, which is every young person’s right, especially when the major disadvantages of her hearing loss had been overcome by her bionic ear.
Dr Harvey also had observations to make in relation to the allegations that the husband could get angry and lose some control of his reactions. On the day of the interview, it was apparently raining very heavily and the husband arrived earlier than his appointed time. Because of the heavy rain, the husband asked Dr Harvey’s receptionist if he could wait at Dr Harvey’s rooms. Because of the layout of Dr Harvey’s rooms, this was an arrangement that could not be accommodated and it would appear that the husband became quite angry and conveyed his feelings in “a very direct, though admittedly only verbal, manner”.
In paragraph 21 of his report, Dr Harvey noted that this incident:
“suggests to the writer that Mr Flores may at times have fairly low levels of tolerance to frustrations and may behave in ways that could frighten a person who was not used to his ways. There was some evidence in the interviews to suggest that [X] has been the subject of what might be termed ‘short-fused’ reactions by her father to something she has done.”
Dr Harvey however then goes on in paragraph 22 to say:
“Notwithstanding the above there are no indications in the history of this family that suggests problems between [X] and her father despite the writer believing that she has been influenced by the attitudes and beliefs of her mother.”
Dr Harvey also gave oral evidence. He was specifically cross-examined as to the success of [X]’s time with her father in circumstances where the wife was unhappy with the extent of time that she was spending with her father. It was Dr Harvey’s evidence that the problem rests not with or for [X], but for the wife.
Dr Harvey was of the view that the problem lay with the relationship between the mother and daughter. In particular he noted that in circumstances where there is a child who has a disability, as does [X] with her deafness, the mother/daughter relationship can get out of kilter in that there is a dependency between the carer and the child which does not allow the child to grow into an independent adult.
It was Dr Harvey’s evidence that one of the responsibilities of parenthood is to engender independence in children, and he was most concerned that, on the information provided to him, this was not happening as between [X] and her mother. By way of example, he noted that [X] at this time doesn’t even need to do so much as make her own bed.
Dr Harvey suggested that the wife may benefit from engaging with a child and developmental psychologist who has had experience in the area of disability so she could talk to that specialist about how she could best parent [X].
Dr Harvey was also questioned as to whether he believed it would be in [X]’s best interests for there to be a graduated build-up of the time that she spends with her father, particularly in light of the less than successful commencement to her spending overnight time with him in August 2009. Dr Harvey expressed the view that whilst the concept of progression can be appropriate, it can also build up a sense of power in the child, in that the child is the one in control. He was of the view that particularly in relation to [X] and her alignment with her mother, that this would not be the best way forward and he was of the view that, if handled properly, he couldn’t see why the proposal of extended time with the husband should not start straight away.
Dr Harvey also indicated that he thought it was very important that there be constraints placed on the level of telephone exchanges between [X] and the wife when she was spending time with the husband.
In his report, Dr Harvey recommended that the husband would benefit from an anger management course. Dr Harvey had also recommended that both parties undertake a post separation parenting course. I noted with concern that neither of these suggestions had been taken on board by the parties, even though they had had the benefit of the family report for some time. Of more concern was the husband’s evidence that he did not accept that he required that intervention.
I specifically asked Dr Harvey as to whether any implementation of extended overnight time between [X] and her father should be dependent upon him enrolling and completing those courses.
It was Dr Harvey’s evidence that he would recommend that completion of the courses, and in particular the anger management course, should take place prior to the commencement of the husband having extended time with [X].
In relation to the parenting course, he was of the opinion that those courses work best when they are undertaken whilst the parents are spending time with their children.
Best interests of the child
Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2.The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60ca of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
In this matter, both parties are proposing that they have equal shared parental responsibility for their daughter [X]. Whilst there have been allegations of domestic violence, which continue to be played out in the state court system, such incidents seem to be confined to a very discrete circumstance. It is also the reality that neither of these parties have any capacity at this time to communicate effectively between themselves in relation to their parenting roles. However, I am satisfied that it is in [X]’s best interests that both her mother and father participate in the decision-making pertaining to the important and major decisions affecting her life and have therefore determined that it is appropriate that I make an order for equal shared parental responsibility.
Where the parents have equal joint parental responsibility for a child, s.65daa of the Act requires the court to consider the child spending equal time, or a substantial and significant time, with each parent. It provides as follows:
1.If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Sections 65daa (2) and (3) of the Act provide as follows:
2.If:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
3.For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Section 65daa (5) of the Act provides as follows:
5.In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Neither party is seeking orders that [X] spend equal time with both her parents.
The husband is seeking that [X] spend significant and substantial time with him, as defined in the legislation.
The wife’s proposal is that [X] spend alternate weekends with her father, from Friday to Sunday, and overnight mid-week time in the alternate week. This is not substantial or significant time as defined in the legislation and it is the wife’s argument that that is not appropriate because of the ongoing difficulties [X] has in spending significant time away from her.
When determining what arrangements should be put in place for children, whether it be significant and substantial time or some other arrangement, the best interests of the child are paramount.
When determining what is in a child’s best interests, the court must consider the matters set out in section 60cc(2) and (3) of the Act. Each of the matters contained in the subsections, where relevant, must be considered and assessed in the context of each of the parties’ behaviours and proposals and a decision made as to which party’s proposal, or such other arrangement as the court may determine, is in the child’s best interests.
Section 60cc(2) of the Act sets out the primary considerations which the court must take into account when determining best interests. They are as follows:
Section 60cc 2(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
Section 60cc 2(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The only concern that the husband raises in relation to the care provided to [X] by the wife is that she does not encourage or support [X]’s relationship with him.
The husband agrees that [X] and the wife are very close and they have a loving and caring relationship with each other.
The wife, whilst conceding that the husband loves [X] dearly and that she in turn loves him, does raise concerns that because of the husband’s anger management issues, he will potentially expose [X] to inappropriate behaviours when angered or when crossed by [X].
Section 60cc (3) of the Act sets out the additional considerations to be taken into account and I will consider each of those in turn where relevant.
Section 60cc 3(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
It is not Dr Harvey’s practice to record the views or opinions of those children he interviews, as he has a belief that it is not in their best interests to have such views placed before their parents in a report format.
However, having said that, Dr Harvey conceded that [X] mirrored her mother’s position in relation to what the arrangements should be, and was indicating that she did not wish to spend overnight time with her father.
As [X] is twelve years of age and about to start high school,
Dr Harvey was of the opinion, as set out earlier in this judgment, that [X] had aligned herself with her mother’s position and that any supposed views expressed by [X], were not necessarily independently held.
In the circumstances, Dr Harvey was of the opinion that it was not appropriate for the court to place a great deal of weight on [X]’s views in these circumstances.
Section 60cc 3(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child)
Both parents agree that [X] loves and is loved by both her parents.
Throughout [X] life, the wife has been her primary carer and there is no doubt that they have a particularly close and loving relationship.
It was the wife’s evidence that she has no other family in Australia and this was one of the reasons that the wife gave as to why she would have difficulty in [X] spending considerable time away from her.
Some evidence was led as to there being difficulties in the relationship between [X] and the husband’s extended family, which seem to be more related to the fractious adult relationships than necessarily truly reflecting that relationship as between [X] and the husband’s family. This was not explored however in the context of the children’s issues in any length.
Neither party has re-partnered.
Section 60cc 3(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
In considering this factor, the court must also take into account sub-s.60CC(4) and (4A) which provide as follows:
4.Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
4A.If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Whilst the wife gave evidence that she was supportive of [X] having a meaningful relationship with the husband, it is apparent that the reality is somewhat different.
The wife was unable to elucidate any examples of any positive contributions that she believed the husband could bring to [X]’s life, other than the fact that he was her father and it was good for children to have a relationship with both their parents.
It was also apparent that the wife did not really want [X] spending overnight time with the husband and was, either consciously or
sub-consciously, supporting [X]’s concerns and fears in this regard. The frequent, almost hourly, telephone communication between the wife and [X] when she was spending time with the husband could only undermine any confidence that [X] could have in being safe in her father’s care.
It was also of concern that when [X] became scared at the husband’s house, the wife’s response was to encourage her to return to her rather than reassure [X] that she had nothing to worry about at her father’s home.
This is not to say that the wife doesn’t have genuine concerns in relation to some of the issues of the husband’s behaviour, but it is apparent that her need for [X] to be with her outweighs any benefit that she sees in [X] spending significant and substantial time with the husband.
It was also apparent from the husband’s evidence that he does not trust the wife, and that he believes that she is actively undermining his relationship with his daughter. What was of concern to me was that he implied that [X] was complicit in this behaviours. His evidence in relation to the circumstances of her leaving late on the Saturday night on the second occasion she was spending overnight time with him were such that it became apparent he was not confident that [X] was genuinely scared. I have no doubt that on that evening [X] was scared and realised that her father did not believe her, and that this contributed to his inability to comfort and reassure her on that night.
Further to the lack of insight as to how the husband’s attitudes impact on his relationship with [X], as displayed by him in showing [X] he did not believe she was scared, the court notes with concern that after the husband returned [X] to her mother at midnight on Saturday evening, the husband has spent no further time with [X]. The husband was cross-examined as to what efforts he had made to reconnect with his daughter, and it would appear that, other than one phone call, he had made no other effort to speak to or contact her. It was his evidence that he left it that she could call him if she wanted to see him. It’s not for [X] to be the person being pro-active about encouraging this relationship. The husband is the father, he is the adult and he is the one that needs to make sure that [X] is fully cognisant of his desire to continue to be involved in her life.
Section 60cc 3(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Both parties are seeking to retain the former matrimonial home.
Since separation, the husband has obtained rental accommodation which enables him to easily spend time with [X].
Both parents are in agreement as to where [X] will attend school for her secondary education and both seem committed to ensuring that they are in a position to ensure her attendance at that school.
I am therefore satisfied that the parties will put in place arrangements for [X] that will not negatively impact on her ability to spend time with either of them.
Section 60cc 3(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
It was the husband’s evidence that, as he is running his own business, he is able to put in place flexible arrangements so that he will be available to look after [X] when she is in his care. I accept his evidence in this regard.
Section 60cc 3(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
Both parents have the capacity to provide well for [X]’s physical, intellectual and emotional needs.
However, as noted earlier in this judgment, Dr Harvey raised concerns about the wife’s capacity to give [X] the necessary independence to allow her to develop into a fully developed and independent adult. He has suggested that the wife would be assisted by attending upon an appropriately qualified psychologist to assist her in this regard.
I have also commented earlier in this judgment on the husband’s failure to acknowledge his “short fuse” as well as some concerns in relation to allowing his distrust of the wife to impinge on his care of his daughter.
It seems to me that both parents will benefit from the interventions that have been recommended by Dr Harvey.
Section 60cc 3(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
As noted earlier, [X] is profoundly deaf. This disability however does not seem to have impeded [X] from leading a full and active life where she is involved in mainstream schooling, sporting activities and other social outlets usual to twelve year old girls.
The wife has alleged [X]’s deafness requires her to be a “stay at home” mother. This is not borne out by the evidence in that both parties were engaged in full-time employment between 2000 and 2006 when [X] was younger and arguably needing more care.
Section 60cc 3(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
Not relevant.
Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
This judgment has already touched on, at some length, the concerns of the court in relation to the attitudes of both of the parents towards each other and the impact that is having on their ability to encourage [X]’s relationship with both of them.
Having said that however, [X] does seem to have a relationship with both her parents but I am most concerned that the relationship with her father is at jeopardy of being put at risk if both her parents don’t take on board the recommendations of the report writer for the interventions to assist them to better parent their daughter.
Section 60cc 3(j) any family violence involving the child or a member of the child’s family
As noted earlier in this judgment, there are outstanding issues in relation to allegations of family violence against the husband which are being pursued through the state courts.
The circumstances of those allegations are well known to this court and I am satisfied that they do not impact on the orders that should be made in relation to [X] and the time she spends with her father.
Section 60cc 3(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
There is an interim family violence order in place. As indicated earlier, this matter is being further pursued before the state courts.
Section 60cc 3(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It is difficult to assess whether any particular orders are less likely to lead to the institution of further proceedings between the parties.
It can only be hoped that with the finalisation of these proceedings, and with the parties accepting responsibility to obtain the necessary interventions to assist them to better parent [X], they will develop strategies to enable them to communicate more effectively with each other so that they are making decisions that are in [X]’s best interests.
Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant
It is pleasing that the parties have been able to reach agreement in relation to the arrangements to be put in place for [X]’s care during special occasions such as Christmas, birthdays and Father’s Day as well as holidays.
It can only be hoped that their ability to cooperate in this regard will continue to improve over time.
Conclusion
By all reports, [X] is a delightful young lady, who commences high school next year. Whilst profoundly deaf she has, with the assistance of a bionic ear, been able to engage fully in life.
Unfortunately, her parents have a fractious, distrusting relationship, which does not allow them to communicate effectively or cooperatively parent their only child.
Since separation, [X] has only spent a couple of overnight occasions with her father and neither of those occasions have been particularly successful.
[X] is now twelve years of age and about to start high school. Whilst the wife raises concerns about [X]’s capacity to cope with long periods away from her, the reality is I think that it is the wife who has difficulty in coping with [X] being away. Unless the appropriate arrangements are put in place now for [X]’s relationship with her father to develop, strengthen and consolidate, there has to be real concerns that that relationship will be negatively impacted upon in the very near future.
Dr Harvey was very strongly of the view that [X] should commence spending significant and substantial time with her father as soon as possible, but made it clear that it was subject to the husband properly addressing the issues that have been identified that impact upon his parental capacity, being anger management and developing some greater insight into his parenting of his daughter so that he separates his negative feelings for the wife from his responsibilities to properly parent [X].
In those circumstances, orders will be made that will have [X] spend significant and substantial time with her father as soon as those matters have been attended to, being a period of four out of 14 nights per fortnight, as well as time on holidays and special occasions.
I note that this 4/10 arrangement is one night less than that recommended by Dr Harvey and as sought by the husband. I have formed the view that such a time will enable [X] to have a meaningful relationship with her father but at the same time, recognises her primary attachment to her mother and the concerns set out previously in this judgment as to the husband’s parenting capacities.
PROPERTY MATTERS
The issues between the parties in relation to matrimonial property I have identified as follows:
a)What comprises the matrimonial property pool, and in particular:
i)Should the $6,000.00 sent by the wife to her family during the marriage against the husband’s wishes be added back to the property pool?
ii)Should the chattels in the former matrimonial home, with an estimated value of $4,000.00, be included in the matrimonial pool?
iii)Should the value of the jointly owned motor vehicle, written off by the wife after separation, of some $2,000.00 value, be added back to the matrimonial pool?
b)Did the husband bring $38,000.00 of pre-cohabitation savings to the marriage, was it used to assist in the purchase of the former matrimonial home and if so, should there be a loading in his favour arising from that contribution?
c)What should be the adjustment as between the parties in the wife’s favour arising from the section 75(2) factors?
d)Who should retain the former matrimonial home (as both parties wish to do so)?
e)Who should retain the two crystal light fittings purchased in Egypt last year and the picture of St Mary?
The legislation
Section 79 of the Family Law Act1975 (“the Act”) defines the Court’s powers in determining applications for property settlement. Sub-section 79(2) of the Act provides that:
The Court shall not make an Order under this Section unless it is satisfied that, in all the circumstances, it is just and equitable to make the Order.
Section 79(4) of the Act sets out the matters the Court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters are:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The four-step approach
In Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 at [39], the Full Court of the Family Court described the preferred four-step approach in property matters as follows:
The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), ("the other factors") including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case ….
Assets and liabilities
The parties were in agreement in relation to the value of their assets. The only issues between them are those that I have identified in paragraph 129 of this judgment. I will address each of those issues.
During the course of the marriage, the wife advanced a small amount of money, being $6,000.00, over a period of time to her family to assist them. The husband was not in agreement with these monies being given to the wife’s family and this was known to the wife.
In the give and take of most marriages, one or other of the parties will spend money in a manner that is not agreed to by the other. This does not mean such expenditure will be automatically “added back” to the matrimonial asset pool.
In Kowaliw and Kowaliw (1981) FLC 91-092, Baker J held in relation to arguments of “wastage” of matrimonial assets, such expenditure should be shared equally unless the conduct was designed to reduce or minimise the value of matrimonial assets or a party acted recklessly, negligently or wantonly.
In C and C [1998] FamCa 143, the Full Court held:
“the concept of adding monies reasonably disposed of back into the pool ought be the exception rather than the rule”.
The decision by the wife to assist her family financially with the relatively small amount of $6,000.00, even against the husband’s wishes, is monies in my view that have been “reasonably disposed of”. Accordingly, the $6,000.00 utilised by the wife in this way will not be added back to the pool.
In relation to the chattels in the former matrimonial home, they are of relatively small value. The former matrimonial home is [X]’s primary residence and as such it is appropriate that a greater proportion of those chattels remain in that home. I do not intend to include them in the matrimonial pool.
The motor vehicle that was written off following separation was not insured. Unfortunately this means that this asset has been lost to the parties. In those circumstances, I do not intend to include it’s nominal value prior to it being written off in the pool.
In those circumstances, I find the matrimonial pool consists of the following:
Property C, with a value of $375,000.00, less mortgage to Westpac Banking Corporation of $13,355.00, leaving net equity of $361,600.00 $361,600.00 Monies at separation held by the husband $25,400.00 Monies at separation held by the wife $2,200.00 Insurance monies received by husband in relation to a motor vehicle $5,300.00 Husband’s superannuation $24,000.00 Wife’s superannuation $7,200.00 Total $425,700.00
Contributions
It was the husband’s evidence that at the commencement of cohabitation, he had $38,000.00 in savings.
In cross-examination, the husband indicated that he used some $8,000.00 of those savings to pay for the parties’ wedding and that upon the commencement of cohabitation, he also purchased whitegoods and furniture so that the parties could furnish their rented accommodation.
The parties purchased the former matrimonial home in 2000 for $166,000.00. They borrowed $132,800.00 from Westpac Banking Corporation and the balance of funds came from the parties’ savings at that time. I accept that the source of part of those savings came from the savings of the husband’s accumulated prior to the commencement of cohabitation. It is impossible however to be exact as to what proportion of the savings were the husband’s pre cohabitation savings and the parties’ post-cohabitation savings.
The wife did not concede the extent of the husband’s savings at the commencement of cohabitation and argued that those funds represented the parties’ savings accumulated after their marriage. However, under cross-examination, the wife did concede that during this period she was not working, the husband was in a low paying job and at the time they were paying rental and other living expenses. Thus their “saving capacity” was quite limited at this time.
It was argued on behalf of the husband that this initial contribution by him should be given weight by the court. Whilst it was conceded by Counsel on the husband’s behalf that applying the principles as set out in the matter of Pierce and Pierce (1999) FLC 92-844, the contributions by the parties after the commencement of cohabitation must be seen over time to outweigh the initial contribution, it was submitted that “regard must be had to the use made by the parties of that contribution”.
It was submitted on behalf of the husband that as the husband’s
pre-cohabitation savings were put into the only real asset of the parties available for division, then the husband should be given credit for this and that he should be given a loading of some five per cent for that initial contribution.
It was argued on behalf of the wife that whilst she disputed the amount claimed by the husband as an initial contribution, even if such savings existed, the wife’s contributions post-marriage were such that any initial contribution of the husband was matched by her. In this regard, she pointed to the fact that she was the primary carer of the parties’ daughter [X] and that she had fulfilled this role for some six years whilst also engaged in full-time employment herself. She pointed to the husband’s evidence that he was working anywhere up to sixty hours per week prior to their separation and that in those circumstances, the full homemaker responsibilities fell to her.
It was therefore the wife’s submission that the respective contributions of the parties should be deemed to be equal.
I am of the view that the initial contribution by the husband has, with the passage of time, been eroded by the contributions both parties have made after the commencement of cohabitation, and in those circumstances find that there should be no loading in either party’s favour in relation to contributions.
Section 75(2) factors
The wife is aged 37 years and is in good health. She is currently unemployed but it was her evidence that she is actively seeking employment as she is required to do so by Centrelink. Whilst a trained [omitted] in Egypt, her qualifications are not recognised in Australia and her only employment since arrival in this country has been in unskilled work as a [omitted]. It was not her evidence that she intended to re-train, and in those circumstances I accept that she has an earning capacity as an unskilled worker only.
The husband is aged 45 years and it was his evidence that subsequent to separation, he has been experiencing ongoing depression, for which he is receiving treatment and that this has impacted upon his ability to work full-time.
The husband runs his own [omitted] business and I am satisfied that that business has consistently generated an income of approximately $100,000.00 to $110,000.00 per annum for some years. It was the husband’s evidence that he is currently employing two sub-contractors who perform half of the required [omitted] work and that the business pays them approximately $30,000.00 per annum for that work. The husband receives $35,000.00 per annum for the work that is completed by him. It was his evidence that previously he had worked some sixty odd hours per week, from which he had received the total of the net income generated by the business of $60,000.00 to $65,000.00 per annum.
In relation to the business expenses, these seem to be consistent since the business was started, although the tax return that was prepared for the financial year ending 30 June 2009 discloses that the husband is able to legitimately claim the rental on his accommodation as a business expense as it is the office base for the business.
It was conceded on behalf of the husband that whilst there are some limitations on his current earning capacity, those limitations are not long term.
In all the circumstances, whilst the husband’s business is not large, it has proven to be a steady and constant earner for him and his family since its’ inception some five years ago.
Both parties are clearly hard-working which is evidenced by the fact that in a period of shortly over seven years they were able to pay off in excess of $100,000.00 on the mortgage over the former matrimonial home.
In all the circumstances, I am satisfied that the husband does have a greater earning capacity than that of the wife and will continue to do so into the future.
The wife has the primary care of the parties’ twelve year old daughter and will continue to do so under the orders made by me today.
In all these circumstances, I am satisfied that there should be an adjustment in the wife’s favour in relation to section 75(2) factors and that adjustment should be in the amount of ten per cent.
Retention of the former matrimonial home
Both parties are seeking to be given the opportunity to retain the former matrimonial home.
It was the wife’s evidence that she has made all necessary enquiries of the bank and has been advised that she can borrow up to $130,000.00 in order to effect a resolution of this matter.
She was cross-examined at some length as to how she would be able to fund such a mortgage in circumstances where her own financial statement sworn on 4 August 2009 and filed in this matter on
5 August 2009 discloses that she currently has living expenses well in excess of her income level. It was her evidence she would manage her affairs to enable her to meet the increased mortgage. Further, it was her evidence that such payments would be less than any rental she would be required to pay in the event she did not retain the former matrimonial home.
As indicated earlier, both parties have proven to be hard-working and vigilant in the conduct of their finances. I accept that the wife will be able to fund any such mortgage in the amount required to service such a loan.
In these circumstances, and in the circumstances that this has been [X]’s home for all her life and that it is appropriate that her primary carer be given the opportunity to retain that property for herself and her daughter, the orders I shall make will provide for the wife to retain the matrimonial home and pay an amount to the husband in accordance with the adjustment reflected in these orders.
Chattels
At the conclusion of the evidence and the submissions, I was advised that the parties had reached agreement in relation to division of chattels between them, save and except for two items.
In principal, it was agreed that the wife would retain all chattels in the former matrimonial home, save and except that the husband was to retain a wall unit and table given to him by a work colleague, the burgundy lounge suite and the second video player.
However, the parties were unable to agree as to who should retain two crystal light fittings that were purchased by the wife in Egypt last year and a picture of St Mary that was given to the husband by a relative which forms a shrine in the former matrimonial home to which both of the parties have prayed and to which the wife continues to pray to this day.
In relation to the light fittings, it was suggested by the husband that he and the wife keep one each, whereas the wife said that they are a pair which were purchased with a view to them being placed in the lounge and dining rooms of the former matrimonial home.
I am satisfied that the light fittings should be retained by the wife and placed in the former matrimonial home as it is apparent that it was always the parties’ intention that they should be retained as a pair.
In relation to the picture of St Mary, it is apparent that this has spiritual and cultural importance to both the parties. In the circumstances that it was a gift initially from the husband’s family, I determine that he should retain that picture.
Just and equitable
The orders proposed by me will enable the wife to retain the former matrimonial home and to pay an amount to the husband that I believe is such that he will be able to re-establish himself and provide an alternative home for himself and his daughter.
I am satisfied in all those circumstances that the outcome is just and equitable.
I certify that the preceding one-hundred and seventy-three (173) paragraphs are a true copy of the reasons for judgment of Bender FM
Associate: Sarah Hession
Date: 20 November 2009
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