G and B
[2002] FMCAfam 291
•11 September 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| G & B | [2002] FMCAfam 291 |
| FAMILY LAW – Contact – best interests of the child – relationship between the parents – issues of physical and emotional abuse – change of child’s name – moving the child’s residence. FAMILY LAW – Property – contributions between the parties during marriage – distribution of net proceeds – alteration of property interests between the parties. Family Law Act 1975, ss.60B, 65E, 68F(2), 72(2), 79(4) In the Marriage of Pastrikos (1979) 6 Fam LR 497 |
| Applicant: | V G |
| Respondent: | L B |
| File No: | PAM 2266 of 2000 |
| Delivered on: | 11 September 2002 |
| Delivered at: | P |
| Hearing Date: | 27 May 2002 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitors for the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr Berry |
| Solicitors for the Respondent: | Andrew G Stewart and Associates, Solicitors |
ORDERS
All previous parenting orders in relation to the child D B born 26 February 2001 are discharged.
The said child is to reside with the Respondent mother who is to have the responsibility for the care, welfare and development of the said child.
The Applicant father is to have contact with the said child:
(a)each alternate Saturday from 10.00 am to 4.00 pm;
(b)on the father’s birthday between the hours of 10.00 am and 4.00 pm if that day falls on a weekend;
(c)on the child’s birthday between the hours of 10.00 am and 4.00 pm if that day falls on a weekend;
(d)on Father’s Day between the hours of 10.00 am and 4.00 pm; and
(e)such other times as the parties shall agree.
The father shall collect the said child from the mother at the McDonald’s Family Restaurant at V Road, N P at the commencement of each contact period and return the said child to the mother at that same place at the conclusion of each contact period.
Each party shall provide the other with a telephone number upon which they can be contacted to pass any information regarding contact or the welfare of the said child.
The name of the said child is to be D G B.
The parties shall do all such things and sign all such documents as shall be necessary to record the name of the father on the particulars of the birth of the said child at the Registry of Births, Deaths and Marriages, within one month from the date of these Orders.
The parties are to sign all documents and execute all instruments necessary to sell the property situate at and known as 4 B Place D in the State of New South Wales being the whole of the land in Folio Identifier 993/774694 by private treaty at a sale price to be agreed upon between the parties.
Upon completion of the sale of the said property the parties shall cause the proceeds of sale to be distributed in the following manner and order of priority:
(a)in adjustment of rates and taxes;
(b)in payment of real estate agent’s commission and legal costs in connection with the sale;
(c)in payment of all moneys due to the Commonwealth Bank of Australia;
(d)in payment of the sum of $50,194.41 to the Applicant; and
(e)in payment of the balance to the wife.
The parties are to do all such things and sign all such documents as shall be necessary to transfer to the wife all jointly owned IAG (NRMA) shares to the wife within one month.
The Applicant is declared to be the sole legal and beneficial owner of the Toyota Hi-Lux motor vehicle now in his possession.
The Respondent is declared to be the sole legal and beneficial owner of the Toyota Starlet motor car registered VZP 610 now in her possession.
Otherwise than is provided in these Orders, pursuant to section 78 of the Family Law Act, each party is declared to be the sole legal and beneficial owner of all real and personal property in the sole name of that party or in that party’s possession or control.
In the event that either party fails or refuses to sign any document or instrument or to do any act to give effect to such document or instrument within 14 days of being called upon to do so then pursuant to section 106A of the Family Law Act the Registrar or a Deputy Registrar of the Federal Magistrates Court is appointed to sign such document or instrument in the name of that party and to do all things necessary to give effect to such document or instrument.
Liberty is granted to either party to apply in the event of any difficulty in the implementation of these orders or in respect of any necessary variations to Orders 3,4 and 5 on 14 days notice specifying the matters to be raised before the Court.
The Application is removed from the Pending Cases List.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT P |
PAM 2266 of 2000
| V G |
Applicant
And
| L B |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the husband for orders concerning contact with the child of the parties, certain specific issues concerning the child, and a division of the parties’ property. The orders that he seeks are to this effect:
a)that the child should reside with the wife and the parties have joint responsibility for his long term care, welfare and development;
b)that the wife should not relocate with the child out of the Sydney metropolitan area without the husband’s consent;
c)that the child’s surname be changed from the wife’s surname to the husband’s;
d)that the husband should hold the child’s passport and birth certificate;
e)that the husband’s name should be added to the child’s birth certificate;
f)that the husband should have supervised contact with the child through the Central West Contact Centre until early August, and thereafter have unsupervised contact with the child;
g)that the parties should sell the former matrimonial home and divide the net proceeds between them in the ratio of 55% to the wife and 45% to the husband; and
h)that the wife should return to the husband all gold and jewellery that belongs to the husband’s family.
The wife seeks the following orders:
i)that the child reside with her and she should be responsible for his long term care, welfare and development;
j)that the husband have supervised contact with the child until 24th August 2002, and the proceedings be adjourned for further mention on Monday 26th August 2002;
k)that the parties should sell the former matrimonial home and divide the net proceeds between them in the ratio of 80% to the wife and 20% to the husband; and
l)that the parties should sell their jointly-owned shares in IAG and divide the proceeds equally between them.
The wife does not consent to the orders sought by the husband about changing the child’s name or allowing him to hold the child’s passport and birth certificate. She does not consent to a restriction on her place of residence, either.
Background
The parties were married at P, in India, on 8th February 1995. The husband was born on 6th July 1966, and the wife was born on 26th September 1968. They have one child, a son, called D B, who was born on 26th February 2001. By the time he was born, the parties were already divorced, a decree nisi having been pronounced on 8th January 2001. The decree became absolute on 9th February 2001.
The parties arrived in Australia from India in May 1995 and moved into rented accommodation at P. Both parties were employed in various jobs. They purchased a house at 4 B Place, D, in February 1997 and commenced to reside there.
There were difficulties in the relationship between the parties and the wife left work and returned to India in June 1998. She returned to Australia in January 1999 and recommenced cohabitation with the husband. There was an incident between the parties in September 1999 which led to the husband being arrested. The parties resided in separate accommodation from that date onwards, with the wife remaining in the former matrimonial home for a time.
The husband commenced these proceedings by filing an Application on 19th December 2001. The Application came before the Court on 18th December 2002, when an order was made pursuant to section 62F(2) of the Family Law Act 1975 that the parties should attend a conference with a Court Counsellor to discuss the care, welfare and development of the child D. Counselling took place on 28th February, and some interim orders were made by consent about both contact and property issues.
The parties agreed that there should be supervised contact through the Central West Contact Centre at H Park. They also agreed to list the former matrimonial home at D for sale and that the net proceeds of sale be held on trust for the parties in the estate agent’s trust account.
Contact has commenced through the Central West Contact Centre. The centre has arranged a program of contact which will expire on Saturday 24th August 2002.
A conciliation conference pursuant to section 26 of the Federal Magistrates Act 1999 was held on 1st May 2002. No resolution was reached. The matter was listed for defended hearing on 22nd May 2002, and, after evidence was taken, the hearing was adjourned part heard to Monday 27th May 2002. The evidence was completed on that day.
Issues
There is no issue between the parties that the child should remain with the wife. He is still a baby, aged 18 months, and has resided with the wife all his life. The wife initially expressed misgivings about the father having contact at all, due to her allegations about his history of violence during the marriage, but said in evidence that she was satisfied that the arrangements through the Central West Contact Centre were working well.
The child D bears the wife’s surname of B; the husband believes that he should have his surname of G. The husband complains that the mother did not have his name recorded as the father on the child’s birth certificate.
Contracts were exchanged for the sale of the former matrimonial home shortly before the hearing. The parties are at odds about the distribution of the net proceeds. The husband claims that the proceeds should be divided in the ratio of 55% to the wife and 45% to himself, but the wife submits that 80% of the proceeds should be paid to her and only 20% of the proceeds should be paid to the husband. The husband agreed that the wife should retain the Toyota Starlet motor car presently in her possession.
Evidence
The husband has filed two affidavits in support of his case. In the first, sworn and filed on 18th February 2002, the husband concedes that the child D has lived with the wife since he was born. He complained of not having had contact with the child since he was born:
“(a) Immediately following D’s birth in Westmead Hospital, (the wife) refused to allow me to see D and would not acknowledge that I was D’s father.”[i]
He complained that he had not been aware of the whereabouts of the wife or the child until recent weeks, and he still did not know their address or telephone number. He said that he wished to establish a relationship with the child and be known to him as his father.
He deposed to have assets at the time of the marriage in the approximate amount of $28,000.00 in savings and gold and silver jewellery worth about $1,500.00. He stated that the wife had some savings and some jewellery worth about $1,800.00 and personal household effects worth approximately $2,000.00. He also stated that he was in full-time employment and had been so during the term of the marriage, except for a period of 6 months when he was studying and a further period of 3 months in late 2000.
In his second affidavit, sworn and filed on 29 April 2002, the husband stated that he and the wife had agreed that he would undergo some study in India to enhance his career, and he said that they had agreed that he would go to India for this purpose on 14th October 2000. It was his belief that the marriage was proceeding normally until he left:
‘Until 14th October (the wife) and I had been sleeping in the same bed, we had been visiting our friends as couple regularly and I had not discussed possibility of separation between us or with any of the friends and relatives.”[ii]
The husband then stated that the wife had commenced divorce proceedings soon after he left, without his knowledge. He further stated that he returned on 14th January 2001 to find that he had been divorced in his absence. The wife originally agreed that he could stay in the former matrimonial home until he found a new job, but on 31st January the wife demanded that he should leave and threatened him with the police if he did not. He reiterated his desire to develop a healthy relationship with his son. He described how the wife agreed to meet him and discus the sale of the house, which, he claimed, supported his argument that the wife had no fear of him.
The husband’s affidavit also touched on the issue of the child’s surname. He stated that the wife had originally changed her name to G and used only her first name as her signature. He said that the social norm in the western part of India was that a child would bear the surname of the father. His friends now question the paternity of his son because the child has his mother’s surname.
On the financial side, the husband deposed to keeping the sum of $6,000.00 in the parties’ joint bank account after he left his employment in October 2000. This amount was to be used for household expenses or sent to him when he was studying in India. He stated that when he returned to Australia in January 2001, there was only $500.00 left in the account.
The wife’s account is very different. In her affidavit, affirmed and filed on 27th April 2002, she describes the husband as being insulting and abusive to her. She refers to assaults on her by the husband, both while they were still living in India[iii] and after they arrived in Australia.[iv] The wife refers in her affidavit to seeking the assistance of the police, who applied on her behalf for an Apprehended Violence Order.
The wife deposed that she found out that she was pregnant in March 1997, but that in April of that year the husband assaulted her and she miscarried on 11 April 1997. The wife stated that she made a complaint to the police at Blacktown.
In her affidavit, the wife deposes to receiving constant pressure from the husband to withdraw the Apprehended Violence Order against him, saying to her:
“If you want a baby then you must make sure there is no AVO against me and also there is no case against me. If you do all these things then I will think about us having a baby.”[v]
The wife stated that she decided to resign from her job and return to India, which she did in June 1998. Whilst in India, she consulted a psychiatrist, who diagnosed her as suffering from a depression. She was prescribed medication. The wife returned to Australia in January 1999 and resumed cohabitation with the husband. She stated that he “still refused” to have a baby, which caused her feelings of misery. The wife went to claim that she suffered further violent abuse from the husband on 9th September 1999, which led to her calling the police. The husband was arrested.
The wife goes on to describe how she had a difficult second pregnancy and had to drive herself to hospital to give birth. She deposed to being upset when the husband attended the hospital to see the baby, as he had previously shown no interest, and she feared that he would take the baby away from her.
It is the wife’s evidence that after she was discharged from hospital the husband came to the house and, after an acrimonious discussion with her, “snatched” the baby from her arms. She goes on to say:
“The baby’s head snapped as he was not held securely and I was frantic with fear as he held the baby like a doll. I took the baby from him and explained that the baby was only 10 days old and needed more support. He refused to listen to anything I had to say.”[vi]
The wife contended in her affidavit that when she met the husband at the Blacktown Sports Club on 15th March 2001, the husband said to her that if the baby did not look like him then it was not his and he did not want to see the baby. The wife states that the husband did not have contact with the child from that time on, but that this was his doing.
The wife claims that during the marriage she worked and used her income to pay for motor cars, furniture and electrical goods, and that she was the one who paid the monthly payments on the mortgage and paid the greater part of various car loans.
The wife complains of health problems, namely diabetes and hypertension.
The wife’s mother, S B, affirmed an affidavit on 27th April 2002. This affidavit was filed the same day. She described an incident of violence when they were still living in India, where the husband slapped the wife on the face, causing her to fall to the floor. She also described an incident in Australia in June 1999, where the husband threw a plate of hot food into the wife’s lap.
In cross-examination by Mr Berry of Counsel, for the wife, the husband agreed that it would be unnecessary that he hold the child’s original birth certificate and that it would be inappropriate that he should hold the wife’s passport. He agreed that it had been a stormy marriage, with lots of arguments. He said that the wife called the police whenever they had an argument. He denied that in September 1999 he was arrested because he would not leave the house after the police were called, and denied that he punched the wife. He admitted that he was found guilty of an assault on her and said he was placed on a good behaviour bond without a conviction being recorded. He denied sexually assaulting the wife. He admitted that an Apprehended Violence Order had been made. He also admitted that he was very opposed to the wife smoking. The husband admitted that the wife had worked during the marriage but denied the extent of her financial contributions.
A copy of the Bond pursuant to Section 10(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) was tendered in evidence. The document shows that the husband was placed on the bond on 17th August 2000, after having been found guilty of assault. The bond lasted for 12 months. A copy of an Interim Apprehended Violence Order, dated 15th September 1999, was also tendered in evidence. The order was said to remain in force until 22nd September 1999.
The wife gave oral evidence. She said in chief that she did not wish the husband to know her home address. She was cross-examined at length by the husband. She made it clear that she was very unhappy during the marriage, but she said that she was no longer depressed. The husband cross-examined her about her smoking. She said that her priority during the marriage was to have a baby. She denied using the child to punish the husband for his failings during the marriage, and said that the wellbeing of the child was always her priority. She made it clear that she did not want the child to be deprived of a father, but that she still had fears about the husband, whom she described as having “no known parenting skills”.
As far as the child’s name is concerned, the wife said that she objected to changing the child’s surname to that of the husband. She said “The child is in my care. I have not changed my name…No one even recognises the name G.”[vii] The wife was adamant that the child had a surname and that there was no need for a change, saying “If he has father’s name, he won’t have his mother’s name.”[viii]
The wife’s mother was cross-examined on her affidavit on 27th May 2002. She affirmed the truth of her affidavit. When asked by the husband in cross-examination “would you like to see your grandson have a good relationship with his father?” she paused for a long time before answering “Yes”.[ix]
Principles to be applied in contact proceedings
A court exercising jurisdiction under the Family Law Act 1975 must bear certain matters in mind when dealing with residence and contact applications. Section 60B of the Act states that the object of Part VII of the Act is “to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”
Section 65E makes it clear that the Court must regard the best interests of the child as the paramount consideration. Section 65F(2) requires the Court to order that the parties attend counselling before making a parenting order, which happened in this case. The parties discussed the issues with a Court Counsellor on 28th February 2002, after an order was made by this Court, but a resolution was not reached.
Section 68F(2) provides for a number of matters for the Court to consider in order to ascertain what is in a child’s best interests. Not all of them will be relevant in every case, of course, but the Court must give consideration to them.
Section 68F(2)(a) — any wishes expressed by the child –
The child was born on 26th February 2001, so he is only 18 months old. He is not of sufficient age or maturity for the Court to ascertain his wishes.
Section 68F(2)(b) — the nature of the relationship with each of the child’s parents –
The child has lived with his mother all of his short life, being a child of tender years. The father has only in the last few months commenced a period of supervised contact, which appears to be going well.
Section 68F(2)(c) — The likely effect of any changes in the child’s circumstances –
The husband proposes that supervised contact should cease and that he should be allowed to have unsupervised contact. The wife, whilst conceding that contact through the Central West Contact Centre has gone better than she expected, is reluctant for unsupervised contact to commence. It would appear that the husband should be able to exercise some limited contact without supervision, as he has been exercising regular contact and the little boy should be used to him by now.
Section 68F(2)(d) — The practical difficulty and expense of a child having contact with a parent –
Whilst the wife does not wish to disclose her home address, both she and the husband reside in the Sydney Metropolitan Area, so there do not appear to be any difficulties in this regard.
Section 68F(2)(e) — The capacity of each parent to provide for the needs of the child –
The wife appears able to meet the child’s various needs. The husband is an intelligent man, although his relationship with the wife is still marked by hostility. He will need to concentrate on his son’s requirements during contact.
Section 68F(2)(f) — The child’s maturity, sex and background –
The child is a little boy aged only 18 months. His background, like that of his parents, is Indian. Each parent should be able to nurture his cultural heritage as he grows up.
Section 68F(2)(g) – The need to protect the child from physical or psychological harm –
There is a history of violence during the marriage, and the husband and wife are still hostile to each other. The wife’s case includes evidence of the father handling the child roughly.
Section 68F(2)(h) — The attitude to the child, and to the responsibilities of parenthood –
The wife always wanted to have a child, and her evidence is critical of the husband for his apparent disinterest in becoming a father. She claims he has no parenting skills. Against this, the husband says he is keen to play the role of a father for his son.
Section 68F(2)(I) — family violence and section 68F(2)(j) — Family Violence Orders –
There has been a history of domestic violence which has led to Apprehended Violence Proceedings. The husband was found guilty of an assault on the wife and placed on a good behaviour bond. Contact orders will need to take into account that the husband and wife should have little or no contact, and the husband needs to be aware that the Court takes a critical view of family violence. Any violence involving the child or in his presence or hearing would lead to suspension of contact.
There are no other relevant factors.
Conclusions about contact
I am satisfied that it is in the interests of this child for him to have a regular relationship with his father. The wife’s reservations about the husband, arising from the marriage, have some foundation, but there does not appear to be the evidence to justify a continuation of supervised contact. For the wife’s protection, contact changeover should take place in public, as I doubt that the wife would feel comfortable going to the husband’s residence. She certainly does not want him to know where she lives. If contact arrangements do not work, the parties should have the ability to bring the matter back to Court.
Changing a child’s name
In Chapman and Palmer (1978) FLC 90-510, the Full Court of the Family Court, whose decisions are binding on the Federal Magistrates Court, said that:
“The general principle appears to be that the Court will not intervene to prevent a parent from changing the surname of a child in the custody or care and control …of that parent (or to direct that a name be restored where a change has occurred) unless the Court is satisfied that the change was made without the consent of the other parent and that it does not promote the welfare of the child.”
The Court set out the factors to which courts should have regard in determining whether there should be a change in the child’s surname to include:
“(a ) the welfare of the child is the paramount consideration;
b) the short and long term effects of any change in the child’s surname;
c) any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control;
d ) any confusion of identity which may arise for the child if his or her name is changed or not changed;
e) effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage;
f) the effect of frequent or random changes of name”[x].
In Beach and Stemmler (1979) FLC 90-692 Connor J mentioned certain additional matters which may be relevant, including the contact that the husband has had and is likely to have in the future with the child and the degree of identification which the child now has with his or her father.
In this case, the child was born after the parents separated. The mother uses her original surname, and the child has the same surname as his mother. He is only very young, aged 18 months, and if his name were to be changed now it would not have any immediate effect on him. Up until recently, the husband has had only very limited contact with him. He has resided with his mother since birth, and is likely to continue to reside with her.
It would appear logical that this child should retain the surname he has had since birth. If his name were to be changed, he would have a different surname from his mother. This would appear to be more likely to cause embarrassment than the child bearing the surname of his mother.
At the same time, the husband wishes to be a part of his son’s life and fill the role of a father. It might be argued that he could start paying child support. It appears to be accepted that the husband has paid no child support over the child’s life. The mother appears not to have made any application, and she would have some difficulty in having her claim accepted, as the father’s name does not appear on the child’s birth certificate. The father wishes to have his name recorded on the birth certificate, and it would seem to be appropriate that this should take place.
It is hard to see any good reason why the husband should retain the child’s original birth certificate, and he conceded that fact in cross-examination. The husband conceded, too, that it would be inappropriate for him to hold the wife’s passport, or the child’s passport.
If the father’s name is to be added to the child’s particulars of birth, it would appear to be desirable that the father’s name be added to the name of the child. Whilst the wife took the view that if the child bore his father’s surname, he would not have his mother’s surname, this does not necessarily have to be the case. There are many children in Australia who bear the surnames of both of their parents. This child was born in Australia and lives in Australia. It would appear to me to be in the child’s interests if this child had the names of both of his parents. I propose to order that the husband’s name should be added to the child’s name so that the child’s full name would be D G B. His surname would remain unchanged for all practical purposes, but the addition of his father’s name would be a link to his father.
Moving the child’s residence
The husband seeks an order that wife should be restrained from moving the child’s residence from the Sydney Metropolitan Area without his prior written consent. He has not, in my view, shown why such a restriction should be necessary. There is no evidence that the wife is planning to move away. Why, in any event, should her freedom of movement be unnecessarily restricted? Why should she not be able to live in the Blue Mountains if she wishes to, or buy a home in Newcastle? What reason would there be to prevent her moving to Canberra if she thought it appropriate? I am not satisfied that there is any reason for the Court to make an order that should oblige the wife to remain living in Sydney.
Alteration of property interests
Both the husband and wife seek orders for alteration of their property interests. Section 79 of the Family Law Act provides as follows:
“(1) [Court may alter parties’ property interests] In proceedings with respect to the property of the parties of a marriage or either of them, the court may make such order as it considers appropriate altering the interests of the parties in the property, including an order for a settlement of property in substitution for any interest in the property and including an order requiring either or both of the parties to make, for the benefit of either or both of the parties or a child of the marriage, such settlement or transfer of the property as the court determines.”
There is a three-stage process that should be followed when the Court makes property orders pursuant to section 79. The Court should:
a)assess the extent of the property of the parties and determine its value;
b)consider what contributions have been made by the parties, including direct and indirect contributions of a financial character and non-financial character, and contributions to the welfare of the family, including contributions as home-maker and parent (Section 79(4)(a), (b) and (c)); and
c)consider the circumstances which relate to the present and future needs of the parties and to their means, resources, and earning capacity, both actual and potential (commonly referred to as section 75(2) factors).
There is a long line of decisions of the Full Court of the Family Court of Australia which prescribe this line of approach, including In the Marriage of Pastrikos (1979) 6 Fam LR 497; (1980) FLC 90-897; In the Marriage of Lee Steere (1985) 10 Fam LR 431; FLC 91-626; In the Marriage of Ferraro (1992) 16 Fam LR 1; (1993) FLC 92-335; In the Marriage of Waters and Jurek (1995) 20 Fam LR 190; FLC 92-635; Re McLay (1996) 20 Fam LR 239; FLC 92-667.
Assessing the matrimonial assets and liabilities
In this matter, I find that the matrimonial assets are these:
(a) Home at 4 B Place, D $272,500.00
(b) Husband’s Suncorp Metway bank account $11,000.00
(c) Husband’s Canara Bank account $20.00
(d) Wife’s CBA bank account $40.00
(e) Wife’s other CBA account $5.00
(f) 204 jointly owned NRMA shares $642.60
(g) NRMA shares in Wife’s name $630.00
(h) Wife’s Toyota Starlet motor car $11,000.00
(i) Husband’s Toyota Hi-Lux motor vehicle $3,000.00
(j) Husband’s legal costs paid to Watts McCray $3,500.00
TOTAL GROSS ASSETS $302,337.60
I find that the liabilities are:
(a) Amount owing on mortgage $106,205.00
(b) Wife’s car loan from St.George $7500.00
(c) Husband’s personal loan from father $1,000.00
(d) Husband’s HECS debt $3,100.00
(e) Wife’s personal loan from parents $10,000.00
(f) Wife’s CBA Staff loan $3,000.00
TOTAL LIABILITIES $130,805.00
By subtracting the liabilities from the gross assets, I arrive at a net value of $171,532.60 for the pool of assets available for distribution. I would comment that this figure differs from the figure submitted by Counsel for the wife, who arrived at a net value of $168,532.44, but I am satisfied that my calculations are mathematically correct. I would comment that the sum of $3,500.00 paid by the husband to his former solicitors has been notionally brought back into the asset pool.
The contributions made by the parties
The second stage in the process is to assess the value, in percentage terms, of the contributions made by the parties. According to the husband, he brought assets into the marriage of savings of about $28,000.00 and gold and silver jewellery worth about $1,500.00. He said that the wife had some savings and some jewellery worth about $1,800.00. He also claimed that she had personal household effects worth about $2,000.00[xi]. The wife says that she had assets totalling $3,400.00, and she put the husband’s assets at $49,000.00[xii]. Either way, the evidence certainly shows that the husband made a higher initial contribution when the parties were married in February 1995.
Both parties worked at various times during the marriage, and each one took some time off work. The husband took 6 months out of the work force to study for a higher qualification. The contributions made by the parties in during this phase of the marriage seem to be approximately equal.
One matter that should be considered is the evidence of violence by the husband to the wife throughout the marriage. This issue was considered by the Full Court in the recent decision of In the Marriage of Kennon (1997) 22 Fam LR 1; FLC 92-757. In that case, the majority, Nicholson CJ and Fogarty J, described domestic violence as “the most obvious example of a wider and more general category of conduct which may be relevant within s.79.” Their Honours went on to say:
“Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s.79.”
The Full Court warned about the fact that such principles should only apply to exceptional cases. Their Honours said:
“It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party.”
I am satisfied that this is one of that “relatively narrow band of cases”. The wife has given evidence of a pattern of violence from early in the marriage, both in India and in Australia. There is evidence of the police being called on various occasions, an interim Apprehended Violence Order and, most importantly, a finding by a Local Court that the husband had assaulted the wife, leading to the imposition of a Good Behaviour Bond. It is the wife’s evidence that the husband’s violence led to her becoming depressed and returning to India for a number of months, where she sought psychiatric treatment.
Whilst the higher initial contribution by the husband in 1995 would normally see the husband’s contribution being assessed as greater in percentage terms than that of the wife during the term of a marriage that lasted less than 6 years, I am satisfied that the violence by the husband to the wife during the marriage should lead to an adjustment in her favour. I am satisfied that the wife’s contribution was made more arduous by the actions of the husband. Accordingly, I assess the contributions by the husband and wife as being equal.
Assessment of section 75(2) factors
Section 79(4)(e) requires the Court to take into account the matters referred to in s.75(2) so far as they are relevant. Failure to do so will constitute a miscarriage of discretion (In the Marriage of Horsley (1991) 14 Fam LR 550; FLC 92-205). Considering the relevant s.75(2) factors and making whatever adjustment that those factors require is the third stage of the process.
I have considered the matters contained in s.75(2) and I have set out those factors which I consider to be relevant.
Section 75(2)(a) — The age and state of health of the parties –
The husband was born on 6th July 1966. He is 36 years of age and in apparent good health. The wife was born on 26th September 1968, so she will reach her 34th birthday in September. Whilst the wife said that she had been suffering from depression during the marriage, there is no evidence that she suffers from depression now, and I consider her to be in good health. There is no adjustment called for in respect of the matters in s.75(2)(a).
Section 75(2)(b) — The income, property and financial resources of each of the parties –
The husband is employed as a project engineer with the Airport Corporation, and his Financial Statement shows his salary to be $1,220.00 per week before tax. By comparison, the wife’s Financial Statement filed on 3rd May 2002 shows her weekly wage at $732.00 before tax. She also receives Family Allowance of $167.00 per week, but as this is an income tested allowance it should not be taken into account (s.75(3)). The husband’s financial resources consist of a superannuation policy with his employer, having a present value of $1,293.23. The wife’s financial resources are superannuation policies with the Colonial Master Fund ($78.82) and CBA Officers’ Superannuation Fund ($11565.00). Neither party would be able to access these funds until they attain the age of 55 years. Each party has a motor vehicle. The wife has a Toyota Starlet valued at $11,000.00, and the husband has a Toyota Hi-Lux with a value of $3,000.00. I do not consider that any adjustment is called for.
Section 75(2)(c) — The Care and Control of a child of the marriage –
The child of the marriage, D, born 26th February 2001, resides with the wife. She has supported him since he was born. There is no other child of the marriage. I am satisfied that an adjustment should be made in favour of the wife.
Neither party has any commitment or responsibility to support any other person or any other child.
Section 75(2)(na) — Child Support –
The husband pays no child support, and has not done so since the child was born. He may do so in the future, once his name is on the child’s birth certificate, but I consider that some adjustment should be made in favour of the wife.
There do not appear to be any other relevant s.75(2) factors. As a result, I am satisfied that there should be an overall adjustment in favour of the wife, which I assess at 15%.
Taking the adjustment pursuant to s.75(2) into account, I am satisfied that the property should be divided between the parties as to 65% to the wife and 35% to the husband.
The husband will receive 35% of the net property of the parties, or $60,036.41. The wife will, therefore, receive 65% of the net property, or $111,496.19.
The entitlement of the husband will comprise the following:
(a) Suncorp Metway account $11,000.00
(b) Canara Bank (India) $20.00
(c) Toyota Hi-Lux $3,000.00
(d)Share of proceeds of sale of real estate $50,164.41
Total $64,136.41
Less Liabilities:
(a) Personal loan from father $1,000.00
(b) HECS debt $3,100.00
Total $4,100.00
Balance $60,036.41
The entitlement of the wife will comprise the following:
(a) CBA Bank accounts (total) $45.00
(b) Jointly owned NRMA shares $642.60
(c ) NRMA shares in wife’s name $630.00
(d) Toyota Starlet motor car $11,000.00
(e)Share of proceeds of real estate $119,678.59
Total $131,996.19
Less Liabilities:
(a) Wife’s car loan from St. George $7,5000.00
(b) Wife’s personal loan from parents $10,000.00
(c ) Wife’s CBA Staff loan $3,000.00
Total $20,500.00
Balance $111,496.19
I am informed that contracts have been exchanged in respect of the sale of the former matrimonial home, and the amount outstanding under the mortgage will be paid out of the proceeds of sale.
I am satisfied that it is just and equitable to make the orders that will dispose of the assets in this way. I note the husband’s assertion that he will commence paying child support. Each party will receive a lump sum of money as well as a motor vehicle. Neither party would have been able to maintain the former matrimonial home, and the wife has found other accommodation in any event. She does not wish the husband to know where she lives.
For the above reasons, I make the orders set out in the attached schedule.
I certify that the preceding eighty five (85) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 9 September 2002
[i] Husband’s affidavit sworn 18.2.2002, paragraph 6(a)
[ii] Husband’s affidavit sworn 29.4.2002, paragraph 5
[iii] Wife’s affidavit affirmed 27.4.2002, paragraph 9
[iv] ibid, paragraphs 16, 27, 28 and 38.
[v] Ibid, paragraph 40
[vi] ibid, paragraph 57
[vii] wife’s cross-examination, 22 May 2002.
[viii] Wife’s cross-examination, 27 May 2002.
[ix] Suhasini B, cross-examination, 27 May 2002.
[x] At 77675
[xi] Husband’s affidavit sworn 18 February 2002, paragraphs 8 and 9.
[xii] Wife’s affidavit affirmed 27.4.2002, paragraphs 61 and 63.
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