G and J
[2002] FMCAfam 139
•17 May 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| G & J | [2002] FMCAfam 139 |
| FAMILY LAW – Best interests of child – mother’s addiction to alcohol and drugs – property settlement – contributions – section 75(2) – “soup kitchen approach”. B and B: Family Law Reform Act 1995 (1997) FLC ¶92-755 |
| Applicant: | L J G |
| Respondent: | P G J |
| File No: | HBM2139 of 2000 |
| Delivered on: | 17 May 2002 |
| Delivered at: | Devonport |
| Hearing Dates: | 15 & 16 November 2001 21 & 22 February 2002 |
| Judgment of: | Roberts FM |
REPRESENTATION
| Counsel for the Applicant: | Mr. Murray |
| Solicitors for the Applicant: | McGrath & Co. DX 70205 BURNIE TAS |
| Counsel for the Respondent: | Mr. McGuire |
| Solicitors for the Respondent: | Temple-Smith Barclay DX 70307 DEVONPORT TAS |
ORDERS
That the child G R J born 28th February 1997 (“the child”) reside with the Respondent P G J (“the Husband”).
That the Applicant, L J G (“the Wife”) have contact with the child as follows:
(a)Each alternate weekend during school terms from 5.00 p.m. on Friday until 6.00 p.m. on Sunday such to commence on the second Friday after the start of the school term;
(b)For half of all school holidays on dates to be agreed, but failing agreement as the Court may order;
(c)The Wife’s contact during the long summer school holiday is to include the night of 24th December and the whole of 25th December at least until 4.00 p.m. on that day in each second year commencing in 2003;
(d)On Mother’s Day from 10.00 a.m until 6.00 p.m. if such weekend is not already a contact weekend;
(e)The Wife’s contact is to cease at 10.00 a.m. on Father’s Day if such weekend is a contact weekend;
(f)At such other times and on such terms as the parties may agree from time to time.
That for the purposes of contact hereby ordered the Husband is to deliver the child to the Wife at the start of each contact period and collect her from the Wife at the end of each such period.
That the Husband be permitted to change the child’s school with effect from the start of second term in 2002.
That the Husband be responsible for the child’s day to day care, welfare and development.
That the Husband and the Wife be jointly responsible for the child’s long term care, welfare and development subject to the Husband’s right to determine a change in the child’s schooling in accordance with Order No. 4 hereof.
That within sixty days the Wife do give to the Husband vacant possession of the residential property situate at and known as 26 H Street, W in Tasmania.
That upon providing such vacant possession the Husband do pay to the Wife the sum of $30,000.00.
That the Wife do transfer to the Husband all her right, title and interest (if any) in the following:
(a)The residential property at 26 H Street, W in Tasmania;
(b)The farming property at 328 T Road, T in Tasmania;
(c)All motor vehicles currently in the possession or control of the Husband;
(d)All plant, equipment and tools in the possession of the Husband;
(e)All stock located on the property at 328 T Road, T in Tasmania;
(f)All personalty and chattels in the possession or control of the Husband as at the date of these Orders.
That the Husband transfer to the Wife all his right, title and interest (if any) in all personalty and chattels in the possession of the Wife as at the date of these Orders.
That the Husband be solely responsible for and indemnify the Wife in relation to any mortgage liability with respect to the property at 26 H Street, W in Tasmania.
That these Orders be in full satisfaction of the parties’ rights and obligations pursuant to Part VIII of the Family Law Act 1975.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DEVONPORT |
HBM2139 of 2000
| L J G |
Applicant
And
| P G J |
Respondent
REASONS FOR JUDGMENT
Background
The Applicant is L J G ("the Wife") and the Respondent is P G J ("the Husband"). They are both aged thirty six years.
They commenced a relationship as boyfriend and girlfriend in 1991. At that time, the Wife had three children, D who is just eighteen years, B who is now fifteen years and J who is now thirteen years.
In 1994 the Husband purchased a property at 26 H Street, W in Tasmania ("the former matrimonial home") and the Wife and her children moved into that house as tenants. She paid rent to the Husband.
In December, 1996, the Husband moved into that house and the parties' relationship became one of defacto marriage partners.
In 1996 the Wife became pregnant and the only child of their relationship, G R J ("the child") was born on 28th February, 1997. She is now five years old
The parties were married on 8th November, 1997 and they separated on 16th April, 1999.
On 16th April, 1999 the Wife reported to the Police that the Husband had assaulted her on 10th April, 1999. The consequence of that was that the Husband was charged with assault and removed from the former matrimonial home. After a number of appearances in Court, the Wife did not proceed with her complaint of assault and the Police did not proceed any further with the charge. The result was that for many months the Husband was governed by bail conditions that prevented him from approaching the Wife.
At the time that the parties commenced their relationship as defacto marriage partners, the Husband was the owner of the former matrimonial home, subject to a mortgage and a farming property at Takone in Tasmania ("the farm"). He also had three motor vehicles, one motorcycle, cattle on the farm, his tools of trade and a quantity of timber.
At the start of cohabitation, the Wife had only domestic chattels.
A few months before the parties separated, the Husband suffered an industrial accident at his place of work on the West Coast of Tasmania. As a result of that accident he was not able to continue working in his occupation as a diesel fitter.
In September, 2000 his workers compensation action was settled and he received a net amount in the vicinity of $97,500.00 as compensation for his injury.
Applications
On 14th March, 2000 the Wife filed an Application in the Family Court of Australia seeking a residence order in relation to the child and that the father have contact "as mutually agreed". The Husband's Response to that Application was filed on 22nd March, 2000. In that document, the Husband seeks a residence order in relation to the child and that the Wife have "reasonable contact".
On 13th June, 2000 the Wife filed an Application for property settlement. Essentially, she is seeking orders that give her property to the value of fifty per cent of the parties' total property.
The Husband filed his Response to that Application on 7th July, 2000. That Application seeks orders that the Wife transfer to him any interest she may have in the former matrimonial home and the farm, in addition to the motor vehicle in his possession and all chattels, including some timber at the former matrimonial home. It is his position that this would put the Wife back to the situation that she was in before he started living in the former matrimonial home.
The Applications have been consolidated so that the Applications in relation to the child and the Applications in relation to property were heard together.
The Law
Section 60B of the Family Law Act 1975 (“the Act”) states:
60B(1) [Object of Part] The object of this Part 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.
60B(2) [Principles underlying object] 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 of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c) parents 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.
Section 65E 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.”
The Family Law Act gives very clear guidance to the Court in relation to what must be considered when determining what is in a child’s best interests. Subsection 68F(2) reads as follows:
68F(2) The court must consider:
(a) any wishes 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 wishes;
(b) the nature of the relationship of the child with each of the child's parents and with other persons;
(c) 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, with whom he or she has been living;
(d) the practical difficulty and expense of a child having contact 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;
(e) the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs;
(f) the child's maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal peoples or Torres Strait Islanders) and any other characteristics of the child that the court thinks are relevant;
(g) the need to protect the child from physical or psychological harm caused, or that may be caused, by:
(i) being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or
(ii) being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person;
(h) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(i) any family violence involving the child or a member of the child's family;
(j) any family violence order that applies to the child or a member of the child's family;
(k) 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;
(l) any other fact or circumstance that the court thinks is relevant.
In B and B: Family Law Reform Act 1995 (1997) FLC ¶92-755 the Full Court of the Family Court of Australia (consisting of Nicholson CJ, Fogarty and Lindenmayer JJ) considered the interrelationship of sections 60B, 65E and 68F. They said:
“Section 65E is the fundamental section in relevant proceedings under Pt VII. It makes it clear that the best interests of children is the paramount consideration. The interrelationship of s 60B, 65E and 68F was the essential issue in this appeal. It is also central to the correct approach to be adopted in all cases under Pt VII where the best interests of the children is the paramount consideration.
A court which is determining issues under Pt VII starts from that essential premise and it remains the final determinant. In that process the Court is required to have regard to the provisions contained in s 68F(2) and s 60B.
Section 68F(2) makes it clear that the Court must consider the various matters set out in paras (a)-(l). In stating "any other fact or circumstance" para (l) underlines the circumstance that the facts in individual cases may vary almost infinitely, that the inquiry is a positive one tailored to the best interests of particular children and not children in general, and that the Court is required to take into account all factors which it perceives to be of importance in determining that issue.”
The Court’s approach to the determination of an application for the adjustment of property interests has been well established by authority. See Lee Steere and Lee Steere (1985) FLC 91-626, Ferraro (1993) FLC 92-335 and Clauson (1995) FLC 92-595. It is essentially a three step process: firstly, identifying the property, liabilities and financial resources of the parties at the time of the hearing; secondly, evaluating the contributions made by the parties as defined in section 79(4)(a) to (c) and thirdly, evaluating the matters contained in section 75(2) if they are relevant.
In determining what Order the Court should make under section 79, the Court must also be satisfied that it is just and equitable in all the circumstances to do so – see section 79(2) and Russell v Russell (1999) FLC 92-877. In that case the Full Court of the Family Court said, at paragraph 80:
“Furthermore, it must be remembered in this regard that under s 79(2) of the Act, the Court is required to be satisfied that it is the order to be made which is just and equitable, not just the underlying percentage division of the net value of the parties' assets. Indeed we take the opportunity to emphasise that in what his Honour has termed ''the fourth stage'', that is, the consideration of whether the result is just and equitable, it is the justice and equity of the actual orders not of the percentage distribution which must be considered.”
Because it is clear that the outcome of the parties’ applications in relation to the residence of the child will have a significant impact upon the Court’s determination in relation to property, particularly because of the provisions of section 75(2) of the Act, it is clearly necessary to determine the residence applications first.
Evidence and findings
At the start of the hearing of this matter, the parties agreed that the assets and liabilities were as follows:
Former matrimonial home …………………………………$71,000.00
Farm ………………………………………………………$115,000.00
1979 Landcruiser…………………………………………….$1,000.00
Stock/Machinery……………………………………………$17,980.00
Tools and equipment ………………………………………..$4,000.00
Toyota Hilux ……………………………………………….$19,000.00
XF Falcon …………………………………………………….. $500.00
Furniture and contents of former matrimonial home…………$6,000.00
Timber ……………………………………………………….$3,000.00
Husband's investment ………………………………………$97,500.00
Total: $334,980.00
The Husband's borrowings in relation to the former matrimonial home and the Toyota Hilux are $58,000.00, which makes the net total of the property $276,980.00.
The Husband has superannuation with a value of only $14,000.00.
The Wife gave evidence and was cross-examined at considerable length over the first two days of the hearing. Her doctor also gave evidence on the second day.
From that evidence, I have no difficulty in making the following findings:
a)The Wife is addicted to alcohol, nicotine, Diazepam and Temazepam;
b)Because of her addictions to alcohol and the two prescription drugs mentioned, she has been unable at times to properly care for the child. As a consequence, she has kept her older children (B in particular) home from school to look after the child;
c)The Wife's addiction to alcohol was quite severe in the past and I accept the Husband's evidence that he was so concerned about it that he took the Wife to see the General Practitioner that she is now consulting. When I asked that General Practitioner questions, he confirmed that the Husband attended with the Wife on the first two occasions that he saw her;
d)Although the Wife's consumption of alcohol has reduced, it is still regular and consistent. Her evidence was that she has at least three "stubbies" of cider each night and that may be increased to five. I am of the view that it is more likely that she consumes the higher number and more on a regular basis;
e)It was also her doctor's evidence that her consumption of Diazepam and Tempazapam has continued for a period of three years, whereas those drugs are ideally not prescribed for more than a few months. The Wife conceded her addiction to those drugs;
f)When the Wife gave evidence in December, 2000 in relation to an earlier spouse maintenance action that was settled on the second day with Consent Orders, she stated that she spent $100.00 per week on alcohol. In this hearing, she claimed that she only spent $40.00 per week on alcohol. She also conceded that she spent $60.00 per week on cigarettes;
g)The Wife's evidence was often inconsistent and at times it was clear that some of her evidence was deliberately designed to mislead. An example of this is her affidavit evidence about the circumstances in which the Husband was removed from the former matrimonial home. It is particularly significant that the Wife fails to mention in her affidavit that there were six days between the alleged assault and her report of it to the Police. A further example is that she annexed school reports for B and J for 1999 to show how well they were doing at school, when subsequent reports that were available to her showed less impressive results;
h)It is also quite clear to me that the Wife deliberately understated the support that she received from the Husband during the relationship;
i)She claimed not to have received reasonable financial support from the Husband, yet she acknowledged that she was able to draw money from his account at any time with his automatic teller machine card;
j)Her claims that she was unable to reduce her drinking because the Husband sabotaged her attempts by providing alcohol are not supported by the evidence, and I find them not to be true. Indeed, I accept the Husband’s evidence that he was so concerned about her alcohol consumption that he took her to see her current General Practitioner;
k)At times the Wife’s evidence was deliberately designed to blacken the image of the Father. An example was her affidavit evidence that her eldest child “left home as a direct result of P’s emotional and physical abuse of me”. In fact, that eldest child left home after the parties separated.
It is a fundamental finding that the child of this relationship, and the children of the Wife's previous relationships have all suffered because of the Wife's addiction to alcohol and prescription drugs. However, these proceedings relate only to the child of this relationship.
The Wife’s father also swore an affidavit and gave evidence. That evidence did little to assist the Wife in her case.
The Husband relied upon the evidence of himself, his defacto wife and his mother. All three swore affidavits and were cross-examined.
The Husband currently resides at the farm, together with his defacto wife and their son, J, who was born on 30th March 2001. The Husband is a horticulture student at TAFE.
I accept the Husband’s evidence that he paid the Catholic School fees for the Wife’s three children and I have no doubt that he was a good provider. It was his evidence that when he was working on the West Coast of Tasmania he earned good wages up to $100,000.00 per annum. Unfortunately, that came to an end when he had his accident.
The Husband denies completely the Wife’s evidence of an alleged assault that resulted in him being removed by the Police from the former matrimonial home. I find that I generally prefer the evidence of the Husband where there is a conflict on the evidence.
An interim order was made by the consent of the parties in the Family Court of Australia on 6th April 2000 as a consequence of that Order, the child lives with the Husband from 6.00 p.m. each Sunday until 11.00 a.m. on the following Wednesday. Naturally, the child’s schooling interferes with the time at which he is due to return the child and it is his evidence that he returns her to the Wife at 8.00 a.m. on Wednesday morning. I accept his evidence that he returns her dressed and ready for school, together with a packed lunch for the day.
I also accept that when the child is in her father’s home she is well settled and happy and she has her own bedroom. I also accept that she enjoys her life on the farm.
While it is clear that the child has a good relationship with the half siblings that live in her mother’s household, it is equally clear that she has a good relationship with the half sibling in her father’s household. I accept the evidence of the Husband’s defacto wife that the child idolises J and is proud to be his big sister.
It is quite clear to me that there is a warm and loving relationship between the child and the Husband’s defacto wife.
I do not believe that on the evidence I can determine any particular wish on the part of the child. Indeed, the wishes of a five year old are not likely to influence the Court very much in its deliberations.
It is quite clear that the child has a warm and loving relationship with both parents and with the other people that live in each household.
Because the parties are effectively sharing the care of the child it is clear that any change in that arrangement must involve reasonable contact with the non-resident parent.
In relation to contact, there are no practical difficulties that affect the child’s right to maintain personal relationships with the contact parent and the other residence of that parent’s household.
I have referred above to the Wife’s addictions and how that has diminished her performance as a parent. It is because of those addictions that I believe that the father, with the assistance of his defacto wife, has a much greater capacity to provide for the needs of the child, including her emotional and intellectual needs.
It is also my view that it is not in the child’s best interests for her to be exposed too consistently to the Wife’s addiction. Residing in her father’s household would also reduce that exposure. Because of these factors, it is clear that the child should reside with her father and have regular contact with her mother. I will make orders that provide for that.
It is clear to me that in relation to the parties’ property applications, the Wife contributed very little at the start of the relationship, whereas the Husband contributed his interest in the former matrimonial home, the farm and his motor vehicles, cattle, etc.
Throughout their relationship, he was the breadwinner and his accident has resulted in the investment of $97,500.00 that is currently in his name.
The Wife did make a contribution as a homemaker and parent. However, that contribution was significantly reduced by her addictions, particularly to alcohol.
If I were to decide this matter on contributions alone, I would award very little to the Wife. However, I am required to consider the factors contained in subsection (2) of section 75 of the Act.
Both parties are aged thirty six years and each suffers a disability which reduces their capacity for employment. The Husband’s disability arises from his accident and the Wife’s disability, which is much more significant, arises from her addictions. It is therefore clear to me that the Wife is less employable. Even though she may like to be employed, I do not believe that her chances are very good.
On the other hand, the Husband is training as a horticulturist and he is likely to be able to make an income from the farm.
As a result of the orders that I will make today, the Husband will have the primary commitment to support the child. He also has his defacto wife and another child to support.
The Wife still has two children of previous relationships that she must support and it is likely that her only income will be Centrelink benefits and some child support.
The parties’ relationship was not a long one. However, it seems clear to me that sections 79 and 75 of the Act do not entitle the Court to adopt “a soup kitchen approach”. (See Hirst and Rosen (1982) FLC 91-230 and Farmer and Bramley (2000) FLC 93-060).
Nevertheless, the Husband’s Application to put the Wife back financially to the position she was in when the parties met, is not to do justice. It must be remembered that in determining what order should be made under section 79, the Court must also be satisfied that it is just and equitable in all the circumstances to do so.
It seems to me that in this particular case, the Court should not adopt an approach that relies upon percentages of the value of property. It is clear that it would be quite inappropriate to divide the assets on a 50/50 basis as sought by the Wife. Further, it is my view that the Court would be adopting “a soup kitchen” approach if she was to be awarded the former matrimonial home.
It would also not be appropriate to award that property to her subject to the mortgage. She clearly does not have the capacity to repay the mortgage and I have absolutely no doubt that the mortgagee would be opposed to any such action. It is clear therefore that I must make an order that requires her to give the Husband vacant possession of the former matrimonial home within a reasonable period. However, it is my view that it is just and equitable for the Husband to pay the Wife the sum of $30,000.00 upon her vacation of the former matrimonial home.
I will make orders that give effect to the matters set out in this Judgment.
I certify that the preceding fifty-six(56) paragraphs are a true copy of the reasons for judgment of Roberts FM
Associate:
Date: 17th May 2002
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