GAUCI & GAUCI

[2010] FamCA 848

FAMILY COURT OF AUSTRALIA

GAUCI & GAUCI [2010] FamCA 848

FAMILY LAW – CHILDREN – interim – with whom a child spends time – interim property settlement

Family Law Act  1975 (Cth)

APPLICANT: Ms Gauci

RESPONDENT: Mr Gauci

FILE NUMBER: SYC 3661 of 2009

DATE DELIVERED: 24 September 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Ainslie-Wallace

HEARING DATE: 14 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: John Shaw

SOLICITOR FOR THE APPLICANT: Ghobrial Legal

COUNSEL FOR THE RESPONDENT: Mr Friedlander

SOLICITOR FOR THE RESPONDENT: Streeter Law

Orders Pending further order:

1. The child J live with her mother and spend time with her father as follows:

   a.Each alternate weekend from after school on Thursday until before school on Monday morning;

   b.Each Wednesday from after school until 8.30pm;

   c.One half of each school holidays;

   d.Such other time including Fathers’ day, the father’s birthday and the child’s birthday as is agreed between the parties in consultation with the child.

2. The parties to agree about the division of the school holiday time in consultation with the child;

3. Husband’s application for interim property settlement is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Gauci and Gauci is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3661 of 2009

MS GAUCI

Applicant

And

MR GAUCI

Respondent

REASONS FOR JUDGMENT

1. Mr Gauci (“the husband”) applies for interim parenting and property orders against Ms Gauci (“the wife”).

Background

1. The parties were married In November 1996 and separated in May 2008.  There are four children of the marriage, one J (the child) is under 18 and it is in relation to her that the husband seeks a parenting order.  J was born in March 1997.  She is presently 13.

2. During the marriage the parties owned and operated in partnership with family members and others, an agricultural supply business.  The partnership owns 108 acres of land on which the product is produced. Over the years, the parties have purchased additional land for production.

3. Since the parties separated the wife has continued to work in the business. She has sole access to the business accounts. 

4. The interim dispute concerns a property at F in NSW.  The acreage of this property comprises a very small percentage of the land available to the business for agricultural growing, some 10 acres.

5. It is pertinent to this application that the wife’s initiating application for final property orders filed in October 2009 seeks an order, inter alia, that she transfer the F property to the husband.  No amended application has been filed seeking a change in the orders sought by her.

Basis for Husband’s application

1. The husband alleges that he has received no income or other benefit from the business and has no access to the accounts of the business, all of which were closed by the wife after separation.  He has no access to a share in the income produced by the business nor can he work in the business and thereby draw a wage.

2. The husband said that since the separation his living standard has been inadequate and he has not had the financial capacity to find proper accommodation.   At the time of filing the application, the husband said that he was living in a shed that lacked basic amenities.  During the course of the hearing, the wife alleged that the husband had moved into a large relocatable home onto the property where he was presently living.   It seems that this was not disputed.  It was said that the husband’s father had loaned him the funds to purchase the relocatable home to provide him with proper accommodation.

3. It is the husband’s proposal that he would use the F property not only for accommodation but could earn an income from selling the product that is grown there.  

4. The F property is tenanted and has been for many years.  In January 2008 the wife gave a formal lease to the tenants, the husband says without his knowledge.  The wife contends that the tenants have had a number of 5 year leases over the years of their occupancy and the most recent lease was given before the parties separated and with the husband’s knowledge. It is not possible to resolve this dispute on the evidence before the court on an interim basis. 

5. The wife asserts that the F property contributes to the business’ supply of a particular type of product that is in heavy demand. In the financial year ended 30^th June 2010, the sale of that type of product accounted for about 18per cent of the business income.   It seems that there are two other plots of similar size on which this particular type of product is grown in rotation with the F property.  The wife contends that to transfer the property to the husband would have a negative impact on the business cash flow.

6. The wife also argues that the F property contains items of plant and equipment used in the business.  She asserts that the husband has in the past removed business equipment and has neither returned it nor accounted for it.  She argued that if the husband were to have a transfer to him of that property, he would not make that plant and equipment available to the business to its detriment. The Husband did not argue to the contrary but pointed to the amount of land held by the business on which the product could be grown. He did not dispute that there were only three plots of similar sizes that are available for production of this particular type of product.       

7. The wife said that her application for final orders seeks an order that the husband receive the F property because at the time she did not believe that she could raise sufficient funds to keep the property as part of the business.  She proposes to amend her application for final orders to retain that property.   In the circumstances, that the final orders as they presently stand seek a transfer of that property to the husband do not persuade me to make the order on an interim basis.

8. It appears that sales would be reduced if the F property was excluded from the business and any reduction in the business would affect the business partners who were neither parties nor, it seems aware of this application.

9. Given that the husband has secured more appropriate accommodation for himself, the asserted detriment to the business and flow on impact on the partners and the wife’s intention to amend her application to retain the property within the business structure, persuades me that it is not appropriate to make the order sought by him on an interim basis.

Parenting orders:

1. The husband seeks an interim order that J live with him.

2. Since separation, the child has been spending time with the husband during the school term and in school holidays. He said that she has expressed the wish to live with him full time and that she is unhappy living with the wife.

3. The wife opposes the order and claims that the husband does not care appropriately for the child while she is in his company. 

4. The wife claims that the husband has undesirable friends and has in the past kept company with me of whom she did not approve.   The wife referred to the parties’ older girls who, when they were young, expressed interest in older men who were associates or friends of the husband.  The wife complains that the husband did not have a sufficiently strong opposition to that and is concerned that because of the husband’s laissez faire attitude to the romantic attachments of the other children, he may not properly supervise the child while in his care.

5. Her objections to the husband’s associates seems to rest principally in comments made to her by other people rather than her own observations and in my view are not persuasive.

6. The parties were interviewed by a Family Consultant who prepared a report for the Court.  The Consultant reported:

   “[J] is a 13 year old girl dealing with typical adolescent issues”. 

7. In part this seems to include dissatisfaction at school and her resenting advice given to her by her older siblings.

8. The Consultant said that the child wanted to spend more time with her father and noted that the mother opposed this course.

9. The Consultant recommended increasing the child’s time with her father to Thursday after school until Monday before school each alternate weekend and that this be tried during school term 4.  

10. The husband was willing to accept this recommendation.  The wife proposed that the child spend each alternate weekend with the husband from Friday afternoon until Sunday morning and each Wednesday from after school until 8.30pm.  She proposed that the husband spend time with the child for half of each school holidays.

11. It was argued for the wife that the husband was not able to keep the child safe while in his care and, by way of example, it was said that he often took her to the local hotel for dinner and in this way was exposing her to an undesirable situation.  Clearly on an interim application there is no opportunity to explore this assertion although on its face it appears benign enough.  There is force in the submission of the husband that if the wife was genuinely concerned as she said, it does not sit well with her concession that the child spend half of the school holidays with the husband.

12. Whatever the position is in relation to the meals at the hotel, on the evidence before me there is insufficient evidence to persuade me that for the child to spend time as proposed by the Consultant would amount to an unacceptable risk to the child.   In my view, the proposed regime by which the child spends time with her father each alternate weekend from Thursday after school until Monday morning is appropriate to her age and expressed wish to spend more time with her father.

I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie Wallace delivered on 24 September 2010.

Associate: 

Date:      September 2010