Girst and Girst
[2012] FamCA 530
•13 July 2012
FAMILY COURT OF AUSTRALIA
| GIRST & GIRST | [2012] FamCA 530 |
| FAMILY LAW – CHILDREN – Equal shared parental responsibility – Where the children live with the mother – Meaningful relationship - Whether the children should spend overnight time with the father – Where the children have expressed concerns about spending time with the father – Entrenched conflict between the parents and extended family - Where the parents have been unable to protect the children from their conflict – Practical difficulties in children spending day time only contact with the father – Best interests. FAMILY LAW – PROPERTY – Settlement in relation to marriage – Marriage of a short duration – Where the most valuable assets were inherited or acquired by the husband – Where the wife made significant homemaker and parenting contributions – Section 75(2) adjustment in favour of the wife. |
| Family Law Act 1975 (Cth) – Part VII; s 60B; s 60CA; s 60CC; s 60CC(2); s 60CC(3); s 61B; s 61C; s 61DA(1); s 61DA(2); s 61DA(4); s 65AA; s 65DAA(1); s 65DAA(2); s 65DAA(3); s 75(2); s 79; s 79(1); s 79(2); s 79(4) |
| Clauson and Clauson (1995) FLC 92-595; 18 Fam LR 693 Ferraro and Ferraro (1993) FLC 92-335 Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 Hickey and Hickey (2003) FLC 93-143; 30 Fam LR 355 Lee Steere and Lee Steere (1985) FLC 91-626 Mazorski & Albright [2007] FamCA 520 |
| APPLICANT: | Ms Girst |
| RESPONDENT: | Mr Girst |
| INDEPENDENT CHILDREN’S LAWYER: | Warren McKeon Dickson Lawyers |
| FILE NUMBER: | PAC | 664 | of | 2009 |
| DATE DELIVERED: | 13 July 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Johnston J |
| HEARING DATE: | 2, 3 & 4 July 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Dura |
| SOLICITOR FOR THE APPLICANT: | Watts McCray Lawyers |
| FOR THE RESPONDENT: | Mr Girst in person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Blackah |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Warren McKeon Dickson Lawyers |
Orders
PARENTING ORDERS
The following parenting orders are made in relation to the children M Girst born on … February 2003 and R Girst born on … March 2005 (“the children”). (For convenience their parents shall be referred to as “the father” and “the mother”).
Previous Orders
All previous parenting orders be discharged.
Parental Responsibility
The parents shall have equal shared parental responsibility for the children.
Live With
The children shall live with their mother.
Spend Time With
The children shall spend time with their father as follows:
5.1.Every Wednesday (commencing on 18 July 2012) from after school until 7:30 pm and the father shall collect the children from their school at the conclusion of the school day and return the children to the mother at W Police Station.
5.2.Each alternate weekend (commencing on 20 July 2012) from after school Friday to 4:00 pm Saturday and the father shall collect the children from their school at the conclusion of the school day and:
5.2.1.The father shall return the children to the mother at the Relationships Australia contact centre at Y / F as the case may be at the conclusion of his first weekend with the children and at this location on each alternate weekend thereafter; and
5.2.2.The father shall return the children to the mother at the Relationships Australia contact centre at B at the conclusion of his second weekend visit with the children and at this location on each alternate weekend thereafter; and
5.2.3.The mother and father shall do all acts and things necessary to complete the intake program at Relationships Australia within 7 days and shall each pay one half of the costs associated with the changeover taking place at a contact centre;
5.2.4.In the event that the contact centre is not available then contact changeover shall take place at W Police Station instead of the Relationships Australia contact centre at Y / F and at B Police Station instead of the Relationships Australia contact centre at B.
5.3.During the Autumn, Winter and Spring school holidays from 10:00 am Saturday immediately following the last day of school until 5:00 pm Sunday for the first two weekends and the mother shall deliver the children to the father at W Police Station at the commencement of each period and the father shall deliver the children to the mother at B Police Station at the conclusion of each period and orders 5.1 and 5.2 shall be suspended for each such holidays;
5.4.During each Christmas / January school holiday period as follows:
5.4.1.From 10:00 am Saturday to 5:00 pm Sunday on the first, second and third weekends of the holiday period;
5.4.2.In the event Christmas Day falls on a Saturday or a Sunday then the father’s time with the children instead of taking place on that weekend shall take place from 10:00 am Monday to 5:00 pm Tuesday immediately following that weekend only so the children can spend time with their parents on Christmas Day in accordance with these orders;
5.4.3.The father shall collect the children from the mother at W Police Station at the commencement of each period and the father shall deliver the children to the mother at B Police Station at the conclusion of each period;
5.4.4.Orders 5.1 and 5.2 shall be suspended during the Christmas school holiday period from Christmas Eve to resumption of school and the children’s time with their father on weekends and Wednesdays shall resume on the first Friday following their return to school in the new year.
5.5.On Christmas Day in each year, commencing 2012 from 9:00 am until 1:00 pm and the mother shall deliver the children to the father at W Police Station at the commencement of each period and the father shall deliver the children to the mother at W Police Station at the conclusion of each period;
5.6.Easter Sunday in each year, commencing 2013, from 1:00 pm until 5:00 pm and the mother shall deliver the children to the father at W Police Station at the commencement of each period and the father shall deliver the children to the mother at W Police Station at the conclusion of each period;
5.7.On each of the children’s birthdays when they fall on a weekday, from 4:00 pm until 6:00 pm and the mother shall deliver the children to the father at W Police Station at the commencement of each period and the father shall deliver the children to the mother at W Police Station at the conclusion of each period; and
5.8.At all other times as agreed between the parties.
The father’s time with the children shall be suspended on the following occasions:
6.1.From 10:00 am until 5:00 pm on Mother’s Day in each year;
6.2.From 1:00 pm until 5:00 pm on Christmas Day (where Christmas Day falls on a Sunday);
6.3.From 10:00 am until 1:00 pm on Easter Sunday in each year (such that the father’s time on Easter Sunday will commence at 1:00 pm)
That for the purposes of changeover pursuant these orders:
7.1.The mother and father are each restrained from attending changeover with more than one (1) person on each occasion;
7.2.In the event that either the mother or father are unable to attend changeover, then that party shall provide twenty four (24) hours’ written notice to other party and nominate a person to attend changeover in their absence;
7.3.The mother is restrained from attending the children’s school when the father attends to collect the children in accordance with these orders except as provided in order 17.
That for the purposes of the father’s time with the children pursuant these orders, the father is to personally supervise the children during his time with the children and shall not, without the prior consent of the mother, leave the children unattended or in the care of another person.
That for the first two occasions when the children shall stay with the father overnight, he shall not bring the children into contact with Ms X before 9:00 am on Saturday.
Communication
That the parties are to communicate in relation to parenting issues:
10.1.By a communication book which is to be placed into the children’s bag at the commencement and conclusion of each of the father’s periods with the children and neither parent shall use this book to denigrate each other;
10.2.By SMS text message if contact needs to be made within 48 hours or on an urgent basis.
That the children shall have telephone communication with the father each Monday and Thursday between 6:30 pm and 7:30 pm, with the father to telephone the mother’s landline telephone or mobile phone for the purposes of such communication only and the mother is to facilitate the children’s telephone communication with the father.
Medical
The mother and father shall each ensure that the other is advised promptly of any medical emergency or significant illness suffered by or relating to the children or either of them including sufficient details to enable the other to be consulted with respect to and fully advised regarding such illness or condition, and any treatment recommended or provided, and to visit the children or either of them if hospitalised.
School
That the mother and father shall each do all things, sign all documents and give all consents and authorities necessary to allow and direct any school attended by the children or either of them to:
13.1. Record each parent’s details;
13.2. Discuss with each parent the children’s school attendance and progress;
13.3.Furnish reports and copies of any correspondence, newsletters, photos or other materials produced by the school directly to each parent; and
13.4.Allow the parties to receive notice of, attend and participate in all and any activities at the school or connected with the school.
Restraint
That the father is restrained from consuming alcohol to excess or consuming any illicit drug during, or for 12 hours prior to, any period that the children or either of them are or are to be in his care.
Courtesy
That the mother and father shall each refrain from denigrating the other party to or in the presence and hearing of the children or either of them and shall do everything within their power to ensure no other person does so.
In the event that the father is unable to spend time with the children in accordance with these orders then he is to provide the mother with 48 hours notice of his inability to spend time with the children.
In the event that the father is running late to collect the children then he is to notify the mother by SMS of how late he is running so if necessary the mother can wait with the children at school until the father arrives.
In the event that either of the children receive an invitation to attend a birthday party or other event related to their friends for an event that will take place when the children would be in the father’s care, the father shall determine whether or not they attend.
Specific Issues
The father shall do all things and sign all documents necessary to remove all images and or videos from any internet sites including but not limited to Youtube and Facebook relating to the children, himself and the mother within 72 hours from the date of these orders and shall be restrained from causing any images in relation to the mother and children to be on the internet without the mother’s knowledge and consent.
The mother shall not enrol the children in any extra curricular activity to be conducted during time to be spent between the children and their father without first obtaining his written consent.
The mother shall forthwith approach the Manager, Child Dispute Services for advice about an appropriate anger management program and upon receipt of such advice the mother shall forthwith attend, and complete, such program.
Neither party shall commence further proceedings in relation to the children without first participating in mediation with a qualified dispute resolution practitioner.
That the parties each pay one half of the Independent Children’s Lawyer’s costs of and incidental to these proceedings in the total sum of $10,982 inclusive of GST and for the purposes of this order the mother and father shall each do all acts and things and sign all documents necessary to cause a cheque in favour of the Legal Aid Commission NSW in the sum of $5491 each to be sent to the ICL at Warren McKeon Dickson Lawyers within 14 days from the date of orders unless the Legal Aid Commission grants a waiver.
PROPERTY ORDERS
That within two calendar months from the date of these orders the husband shall pay to the wife the sum of $156,604 by cheque or such other method to be nominated by the wife in writing within fourteen days.
That the wife is declared the sole owner of the motor vehicle number plates … and the husband shall within fourteen days do all things, sign all documents, and pay all costs necessary to ensure delivery of the number plates to the wife’s possession.
The wife shall forthwith do all things and sign all documents necessary to transfer the 2004 Ford … motor vehicle to the husband, such that she shall sign any transfer presented to her by the husband and the husband shall thereafter be responsible for lodging such transfer with the Roads and Traffic Authority and the husband shall indemnify and keep indemnified the wife in relation to all liabilities in relation to this motor vehicle, whenever and however arising.
That the husband and the wife are declared the sole owners respectively of the following:
27.1.All personal property now in his/her respective possession or control;
27.2.All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively; and
27.3.All interests in life insurance policies and superannuation funds standing in his/her sole name respectively;
That the husband and wife each indemnify and keep indemnified the other in relation to all liabilities in that party’s name whenever and however arising.
Implementation
That in the event of non-compliance with order 24 above each party (being the wife, the husband and Mr MG) shall forthwith:
29.1.Do all things and sign all documents necessary (including in the husband’s and Mr MG’s capacity as executor/s and trustee/s of the Estate of Mrs Girst) to transfer the property known as and situate at H Street, suburb B in the State of New South Wales being the land properly identified as Lot … in Deposited Plan … (hereafter “the H Street property”) into the sole name of the husband; and
29.2.Provide written confirmation and/or a copy of the title search showing the property to be owned in the name of the husband to the solicitors for the wife.
That upon compliance with the above order the husband shall forthwith but not sooner than fourteen days from the date that the H Street property is transferred into his sole name cause the property to be listed for sale and thereafter sold by private treaty at the earliest possible date at a price and with an agent to be agreed between the wife and the husband, and failing such agreement to be determined by the President of the New South Wales Division of the Australian Property Institute or his/her nominee and that the proceeds of sale shall be distributed as follows:
30.1.In payment of agent’s commission and advertising expenses and legal expenses of the sale;
30.2.In payment of costs incurred in relation to the nomination of a real estate agent (if any), in payment of costs incurred in relation to the nomination of a solicitor (if any) and in payment of costs in relation to determination of value or selling price by the President of the New South Wales Division of the Australian Property Institute or his/her nominee (if any);
30.3.Discharge of any mortgages secured on title;
30.4.In payment to the wife of $156 604 together with interest thereon, calculated in accordance with the Family Law Rules 2004; and
30.5.Payment of the net balance thereafter to the husband.
That pending compliance with the above orders the husband and Mr MG are hereby restrained from selling, transferring, alienating or encumbering in any way (including by way of mortgage or charge) their interest in the H Street property.
That in the event that any party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these orders, then the Registrar of the Court shall be appointed pursuant to section 106A of the Family Law Act 1975 to execute such deed, document or instrument in the name of the said party and to do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
That the parties are granted leave on fourteen days notice to the Court and to the other party to relist the matter for further orders to implement these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym GIRST & GIRST has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: PAC 664 of 2009
| Ms Girst |
Applicant
And
| Mr Girst |
Respondent
REASONS FOR JUDGMENT
M and R are nine years and seven years of age respectively. Their parents are Mr Girst and Ms Girst and, although they have been divorced for many years, for convenience I shall refer to them as “the husband” and “the wife”.
The husband and the wife have been engaged in litigation about parenting arrangements for the children for approximately five years. They have been unable to agree about parenting arrangements for the children or about property settlement. Accordingly, they have asked this Court to determine these matters for them on a final basis.
Applications
The wife sought orders to the following effect:
Parenting
·That the parents have equal shared parental responsibility for the children;
·That the children live with the wife;
·That the husband spend time with the children in effect as follows:
(a) From 10:00 am to 5:00 pm each alternate Sunday;
(b)For up to five single days in each school holiday period each year from 10:00 am until 5:00 pm;
(c)On Christmas Day each year from 9:00 am until 1:00 pm;
(d)On Easter Sunday each year from 1:00 pm until 5:00 pm;
(e)On each of the children’s birthdays if a weekday from 4:00 pm to 6:00 pm;
·That the children’s time with the husband be suspended on the following occasions:
(a) On Mother’s Day each year from 10:00 am until 5:00 pm;
(b)On Christmas Day where it falls on a Sunday from 1:00 pm to 5:00 pm;
(c)On Easter Sunday each year from 10:00 am until 1:00 pm so that the time with father would commence at 1:00 pm that day;
·Specified orders in respect of changeover;
·Telephone communication as specified;
·Various injunctions as specified;
·Orders in relation to school including furnishing material to each parent; and
Property
·That the husband pay to the wife the sum of $205 000;
·That the wife be declared the sole owner of specified personalised motor vehicle number plates;
·That the wife transfer the 2004 Ford motor vehicle to the husband;
·That each party be declared the owner of all other property in their respective possession and/or control; and
·That each of the husband and the wife indemnify the other in relation to all liabilities in their names.
Certain orders in the nature of implementation were also sought against the husband’s brother Mr MG. Such matters would be likely to become relevant because he and the husband are the executors and trustees of the estate of their late mother Mrs Girst who has made a will under which each of them would receive a property. In the case of the husband this is the property in which the parties previously resided at western Sydney suburb B. But during the course of the hearing the husband’s brother Mr MG agreed to be bound by any order made by the Court.
On the other hand, initially the husband sought orders that the children reside primarily with him. But at the commencement of final submissions, he sought parenting orders in similar terms to those sought by the Independent Children’s Lawyer except that he asked the Court to order as much overnight time as possible on weekends and during school holidays indicating that he would prefer a week about parenting arrangement in all school holidays.
In relation to property the husband sought orders to the following effect:
·That the husband retain his interest in the C Street, suburb B home unit and his inherited property at H Street, suburb B;
·That each of the parties be declared the sole owner of all other property in their respective possession and/or control.
The Independent Children’s Lawyer (“ICL”) sought orders to the following effect:
·That all previous parenting orders be discharged;
·That the parents have equal shared responsibility for the children;
·That the children live with their mother;
·That the children spend time with their father as follows:
(a) Every Wednesday from after school until 7:30 pm;
(b)Each alternate weekend from after school Friday to 3:00 pm Saturday;
(c)That the father collect the children from school and return them to whichever of the Relationships Australia Y / F contact centres is available on the first weekend with the father returning the children to the mother at the Relationships Australia B contact centre at conclusion of this time on the second and each alternate weekend thereafter;
(d)That each parent pay one half of the costs associated with changeover at the contact centres;
(e)In the event that the contact centre is not available the children are to be delivered at either W Police Station or B Police Station;
(f)During Autumn, Winter and Spring school holidays from 10:00 am Saturday immediately following the last day of school until 5:00 pm Sunday for the first two weekends and the mother to deliver the children to the father at W Police Station at commencement and the father to deliver the children to the mother at B Police Station at the conclusion of each said period;
(g)On Christmas Day in each year from 9:00 am until 1:00 pm the mother to deliver the children to the father at W Police Station at the commencement and the father to deliver the children to the mother at W Police Station at the conclusion;
(h)On Easter Sunday in each year from 1:00 pm until 5:00 pm delivery and collection at W Police Station;
(i)On each of the children’s birthdays from 4:00 pm until 6:00 pm on the same basis concerning changeover;
·On Mother’s Day as specified;
·Numerous injunctions for the protection of the children;
·Telephone communication as specified;
·Christmas / January school holidays, the children to spend time with their father during three weekends from 10:00 am Saturday to 5:00 pm Sunday;
·Communication by parents to be by way of communication book and SMS messages;
·That the father remove the videos from Youtube and Facebook;
·A restraint on either party commencing further parenting proceedings without first participating in mediation;
·An order that each party pay the sum of $5491 to Legal Aid NSW being the costs of the ICL in these proceedings.
Background
The husband was born in 1971 and he is therefore 41 years of age. The wife was born in 1975 and she is therefore 37 years of age. The parties commenced a relationship as teenagers in approximately 1989. They commenced cohabiting in early 2003 and married in April 2004. They separated in September 2006. Their divorce became final on 7 June 2010
There are two children of the marriage. They are M, born in February 2003 and currently nine years of age and R, born in March 2005 and currently seven years of age.
Shortly after the birth of M, the parties moved in to the home of the husband’s mother at H Street, suburb B. Following separation in late 2006, the wife moved out of the former matrimonial home with the children.
In January 2007, the wife informed the husband that she would like to move with the children to the New South Wales Central Coast. Her mother, her step-father and some other members of her extended family reside in that area.
In approximately 2008, the husband commenced a relationship with his current partner, Ms X.
On 24 December 2008, the wife moved to L, on the New South Wales Central Coast, with the children.
On 20 January 2009, the wife sent the husband a letter informing him that she had moved and with details of the children’s updated address, contact telephone number and school information.
On 16 February 2009, the husband filed an Initiating Application in this Court.
In May 2009, M started attending upon psychologist, Dr C. She initially saw Dr C approximately once every three weeks during 2009 but less frequently in 2010, concluding in January 2011. R also saw Dr C but only on a few occasions.
On 13 July 2009, final parenting orders were made by consent. In summary, these provided to the effect that the parents had equal shared parental responsibility for the children, that the children live with their mother and spend alternate weekends and half of school holidays with their father.
Between April 2010 and November 2010, the wife did not make the children available to spend time with the husband.
On 9 August 2010, an Interim Apprehended Violence Order (“AVO”) was made by the Local Court, protecting the wife and children from the husband.
On 22 September 2010, the wife filed an Initiating Application and a Notice of Risk of Abuse.
On 23 September 2010, the Interim AVO was made final. The husband was also convicted in relation to intimidation and intent to cause harm. He appealed, and his conviction was quashed. The AVO was set aside.
On 29 September 2010, Registrar Bartlett ordered that this matter be designated Magellan.
On 14 October 2010, interim parenting orders were made by consent, pending the release of the Magellan Report. In summary those orders provided for the parenting orders of 13 July 2009 to be suspended, for the children to live with their mother and to spend supervised time with their father for two hours per fortnight.
In February 2011, the husband was unable to spend time with the children at the F Children’s Contact Centre because of the long waiting lists at the Centre.
On 17 February 2011, Collier J made orders, amongst other things, that the senior family consultant appoint three or four occasions for the husband to spend up to two hours of supervised time with the children in the Parramatta Family Court Registry and that a report be prepared about the observations made on those occasions.
On 8 March 2011, the parties attended upon family consultant, Mr N. Mr N’s Family Report was released on 30 March 2011.
On 24 March 2011, the husband said that he attended the wife’s home and spent time with the children for about five minutes. The husband said that the children were happy to see him.
On 31 March 2011, the husband said that he attended the wife’s home and spent time with the children for about 30 minutes.
On 23 and 24 May 2011 I conducted an interim hearing including some cross-examination. Ultimately I made consent orders. These were to the effect that the children were to live with their mother and to spend time with their father commencing with each Sunday from 10:00 am to 6:00 pm but increasing until by 4 November 2011 they would be spending each alternate weekend from after school Friday until 3:00 pm Sunday. The orders also included various injunctions designed to assist them to better parent the children.
In November 2011 there was an incident involving conflict between the husband and the wife and her mother in the presence of the children in which the wife’s mother used very offensive language towards the husband and probably he was also offensive to her.
On 4 December 2011 the husband took the children to their sports activity during his weekend time with them. There was an appalling incident in which the husband and his partner Ms X, the wife and her mother and step-father were involved. This incident involved physical violence and offensive and insulting behaviour all in the presence of the children. I shall refer to this again below.
On 19 December 2011, the proceedings were again before me primarily to ascertain how the interim arrangements had been working. I recall asking the husband why he was wearing a sling and he informed me briefly that there had been an incident on 4 December involving violence and that he had sustained an injury to his shoulder or arm. I amended the orders to remove overnight time between the children and their father and to require changeovers to be at police stations only.
CREDIT
Wife
The wife had a poor recollection for detail, including particular dates and times. Frequently, in response to many of the questions she said that she did not recall.
She did make some concessions but I found myself unable to accept the reliability of some important parts of her evidence.
Where the wife’s evidence conflicted with that of the husband, generally, although with some exceptions, I preferred the evidence of the husband.
Maternal grandmother
Mrs P is the wife’s mother. She gave her evidence in a forthright manner and was able to make some concessions. Generally, I regarded her as a truthful witness. But I had a strong sense that she was very partisan to her daughter’s case.
The maternal grandmother has an appalling relationship with the husband and this clouded her evidence to some extent.
Husband
The husband generally gave responsive answers to questions although more so in the early part of his cross-examination than the later part. But it should be remembered that he was self-represented and probably felt under some pressure to provide his account of relevant matters which probably led him to say some unresponsive things.
Having said this, despite his lack of legal training and experience with court procedure, he very quickly picked up the basics of cross-examination and was able to test the evidence of the wife and her mother in quite a capable manner.
Although I did not accept the husband’s evidence in its entirety, such as his denial that he threatened to cut the throats of the wife and children during a fit of anger, I regarded him as a more impressive witness than the wife.
Generally, where the husband’s evidence conflicted with that of the wife, I preferred his evidence.
PARENTING
The Applicable Law
The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
The objects in this context are to ensure that the best interests of children are met by:
·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
·Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objectives are that (except when it is or would be contrary to a child’s best interests):
·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
·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
·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·Parents should agree about the future parenting of their children; and
·Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) of the Act provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or family violence.
Sub-section 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
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 first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.
The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 and the High Court case of MRR v GR (2010) 42 Fam LR 531.
Parental Responsibility
Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
As indicated above, because I am to make a parenting order, s 61DA(1) of the Act requires that I apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for their parents to have equal shared parental responsibility for them.
The husband and the wife agreed that it would be in their children’s interests for the parents to continue to have equal shared parental responsibility for them. This was supported by the Independent Children’s Lawyer. It was also supported by the Family Consultant, Ms A, although with some reservations. Ms A said that there must be concerns about shared parental responsibility due to the apparent high level of conflict and poor communication between the parents. But she expressed the view that it was not clear that there would be any significant advantage to the children in one or other of their parents having sole parental responsibility for them. Despite my concern about the dreadful relationship between the parents, I accept this.
The Court must first consider making an order for the children to spend equal time with each parent if this will be in their best interests and be reasonably practicable.
Equal time would not be in the best interests of these children, or reasonably practical. For one thing the parents live much too far apart from one another. Neither parent has sought such an order. Accordingly, as indicated above, s 65DAA(2) of the Act requires the Court to consider whether the children spending substantial and significant time with each of their parents would be in the children’s best interests and would be reasonably practicable.
The meaning of “substantial and significant time” is set out in s 65DAA(3) of the Act. In effect this means that a child will be taken to spend substantial and significant time with a parent only if:
·The time the child spends with the parent includes both:
-days that fall on weekends and holidays;
-days that do not fall on weekends or holidays; and
·The time the child spends with the parent allows the parent to be involved in:
-the child’s daily routine; and
-occasions and events that are of particular significance to the child; and
·The time the children spend with the parent allows the children to be involved in occasions and events that are of special significance to the parent.
Section 60CC Considerations
How the Court is to go about determining what is in the child’s best interests is set out in sub-sections 60CC(2) and (3) of the Act.
Primary Considerations
The primary considerations are set out in s 60CC(2) of the Act. These are:
·The benefit to the child of having a meaningful relationship with both of the child’s parents; and
·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Having noted these primary considerations at this point I shall return to discuss these below.
Additional Considerations – s 60CC(3)
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
The child R did not put any reasonably coherent view to Ms A. In any event, Ms A said that he did not appear to be of an age or developmental level whereby the Court could give significant weight to his views.
Ms A said that M said that she wanted to spend time with her father but not overnight time. M said that she did not believe that it was safe to spend overnight time with him and that she would be very upset if she spent overnight time. She said that her reasons for this were because her father “goes out of control throwing things” and “yelling”.
During the interview M told Ms A that the husband had threatened to hurt her family including to cut her mother’s throat, that he had hurt her mother during the altercation at the sports activity, that he was swearing at them during the altercation, that he was faking his arm injury, that he locked himself in the garage, that he had been smoking and drinking, that he did not allow her to call her mother to say goodnight and that he threw the WII remote.
I must say this all sounds rather hypercritical and somewhat of a chronicling of bad behaviours by the husband to meet the sort of expectation in the wife’s household which the child would be used to. In this regard, it was interesting that during Ms A’s observation session of the children with their father, M did a drawing. At the conclusion of the session as they were saying their goodbyes, the husband asked M if she wanted to take her drawing with her and she said that she did not. Ms X said she and the husband would keep it. Yet when M was in the observation session with her mother immediately following that with her father, she told her mother that her father had taken a drawing that she was going to keep adding to. This struck me as being an instance of M seeking her mother’s approval by giving an inaccurate account of the circumstances of the husband keeping the drawing so that it reflected in a negative way on her father. Also the child’s reference to the sports activity incident was a very unbalanced account.
Ms A said that if the Court had the view that the children had been coached to say certain things or that circumstances in their mother’s and grandmother’s households were very negative toward the husband so that the children would simply say things in a negative way about their father or that they said such things because their perception was that they were not permitted to have a relationship with their father, then the Court would place little weight on the children’s views.
It is not my view that the children have been coached to say such negative things. But it is hardly surprising that they would do so in the circumstance where neither their mother nor their grandparents are able to resist saying very negative things about the husband and who by their body language, sometimes even quite deliberately, have been unable to protect the children from their very negative views of him.
I have had opportunity in this hearing not only to read more relevant material than was available to Ms A but also to see and hear each of the parents and the wife’s mother cross-examined. The clear view that I have formed is that the wife and maternal grandparents of the children all have a loathing of the husband and that they barely tolerate him having any relationship with the children. Worse still, there are a considerable number of instances where they have made their negative views about the children’s father quite clear to the children.
In these circumstances, in my opinion the children’s views that they do not want to stay with their father over night must be regarded with great caution. This is despite Ms A having said that M appeared to be of an age and developmental level whereby it could be recommended that the Court give some weight to her views.
Section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
Ms A said that the children appeared to have positive and established relationships with their mother. She said that they sought her out for play and physical affection, appearing relaxed and comfortable with her during the observation. Ms A said that the wife’s interactions with the children appeared appropriate to their apparent developmental levels and sensitive to the children’s needs. She said that the children’s apparent relationships with their mother appeared consistent with the children’s reports during interview.
On the other hand, Ms A said that the children appeared to have a strained relationship with their father. She said that while they interacted with him during observation, they did not seek him out for play or physical affection. Ms A said that the husband demonstrated an ability to engage with the children in a manner appropriate to their apparent developmental levels and that was sensitive to their needs. She also said that the children’s apparent relationships with their father appeared consistent with the children’s reports during interview.
Ms A also said that the children spoke positively about their father while also expressing concerns about spending time with him. This they attributed to his behaviour and informed Ms A that at times they experienced such behaviour as frightening. Ms A said that the apparent incongruence between the children’s views of their father and willingness to spend time with him were consistent with children who had experienced a parent as unpredictable, unsafe or frightening.
I accept that they children appear to have a less secure relationship with their father than their mother. On the evidence, there appear to be two broad reasons for this. The first is that at times the husband has behaved in an impulsive, angry, immature and, sometimes frightening and threatening manner. This has challenged the children’s confidence in him as a parent. Some of these behaviours have also been experienced by the children in the homes of their mother and maternal grandmother. But the second area is the significant ongoing conflict between the children’s parents and an overarching sense that the children are not really permitted to have a relationship with their father.
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
The husband does not have a history of not returning the children to their mother after time spent by him with them. But his negative attitude to the wife and maternal grandparents has not been concealed from the children.
In my view, a much more significant difficulty in relation to this consideration is evident on the part of the wife and the maternal grandparents.
The wife has what appears to me to be a proprietorial approach to parenting the children. I have the impression that she regards herself very much as the children’s primary parent and where some considerations relevant to the children’s parenting have clashed with her own strong desires, she has often been unable to resist following her particular desires.
For example, she moved from Sydney and relocated the children’s residence to the New South Wales Central Coast without informing the husband. She informed him in January 2009 that she and the children had been on holidays on the Central Coast, that she had decided to stay there and that she had found a place to live there.
Another example was that on 4 December 2011, when the husband arrived with the children for their sports activity, the wife could not resist going straight to the husband’s car and removing the children from the car. Again, later that same day, the wife simply removed the children from their father’s care despite the fact that it was the husband’s time with the children under the court orders. And even later, she demanded the children’s clothes from him in a belligerent, violent manner.
The wife appears to have a poor regard for court orders. The husband said that there have been many instances of the wife not facilitating time between the children and him. I have seen some evidence of this.
The husband said that when he tried to give M a kiss on the day of the family report interviews, the wife pulled M away. The husband said that similar behaviour by the wife happens all the time.
Ms A said that at interview, both parents presented a very negative view of the other and what the other parent offered to the children. She said that this raised concerns regarding both parents’ capacity to appropriately encourage and support the children to have a relationship with the other.
Ms A emphasised that if the children were to be exposed to derogatory comments from one parent, to or about, the other, this was likely to be detrimental to the children’s relationships with one or both of their parents . She said that furthermore, if it was determined that either parent had allowed the children to be exposed to third parties making derogatory comments about the other parent, there would be concerns about that parents’ willingness and ability to appropriately protect the children. I have no hesitation in finding that in fact this is precisely what the wife and her mother have been doing.
I note that Ms A reported that when she asked whether the wife believed that it would be a benefit to the children to have a relationship with their father, the wife hesitated then stated that last year she would have agreed but said that presently she did not think there was a benefit. In my view this epitomises the wife’s attitude to the husband and must be significant in explaining the level of criticism by the children about their father.
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 either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living
In more recent times the children have been having day only time with their father. If this was to change to include some limited overnight time this would be expected to have some effect on them. Firstly, they know that their mother and grandparents do not support this and that they have told Ms A that they do not want this. Ms A has also said that for the children’s time with their father to be beneficial, they would need to experience him as a safe and predictable carer. She said that if they were to experience him as unsafe, frightening or unpredictable, even if his behaviour was not directed towards them, such would be likely to have a detrimental impact on their ability to maintain a positive relationship with him. She said that this could also have a detrimental impact on their emotional wellbeing and could lead them to experience mental health problems such as anxiety. She said that it could result in the children resisting or refusing to spend time with their father.
Another effect of course would be that if the children were to spend overnight time with their father they would be only too conscious of the fact that this was quite inconsistent with what their mother and grandparents wanted.
In my view, however, there are a couple of conditions which could be imposed to alleviate any stress on the children. Firstly, in order to provide the best prospect for overnight time to be successful and not be anxiety inducing for the children, it would be essential to minimise opportunity at changeover for the children to experience their parents’ conflict. It would be important for changeover to be at school or at a contact centre as often as could be achieved. In the event that the contact centre was not available, changeover would need to be at a police station. This would minimise opportunity for the children to be exposed to their parents’ conflict. Another ameliorating circumstance would be to order only one overnight occasion for each visit between the children and their father. And some injunctions could be ordered to assist the husband to present as safe to the children.
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.
This is a real consideration for these children. Because of the considerable geographical distance between their parents’ homes, it is inevitable that they will have to spend significant time travelling between their parents’ homes.
If the children were to spend only day times with their father, as their mother wishes, this would make it almost impossible for them to spend any reasonable length of time at his home. The travelling time between the parents’ residences must be in the vicinity of a couple of hours. If the husband was to collect the children from the Central Coast and drive them to his home at suburb B, he would only be able to spend a few hours with them before it was time for them to be collected by their mother or driven by him back to the Central Coast. In my view, this would be likely to have a very serious effect on the children being able to have sufficient opportunity to be able to develop a meaningful relationship with their father.
Section 60CC(3)(f) – the capacity of each of the child’s parents and 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.
The husband said to the family consultant that he did not believe that the wife was a bad parent.
It is clear that the wife has been able to attend well to the physical needs of the children. In my view, however, she has fallen down significantly in being able to provide for their psychological and emotional needs, particularly their need to have a relationship with their father.
The wife has been unable to contain the conflict between the parents. In my view, she has at least as much, if not more, responsibility for the conflict between the parents as the husband. Somewhat more disturbingly, it would have been good for these children to have been able to look to their grandparents to shield them from some of their parents’ conflict. This has not been the case and it is a tragedy for these children that the grandparents, even with all their life experience, have not been able to provide such a buffer against the immature, self-indulgent, behaviour of the parents. Worse still, the grandparents have joined in the wife’s belligerent, violent behaviour towards the husband.
It would be of great benefit to these children in a psychological and emotional sense, if the wife and her parents could endeavour to act in a way that demonstrated to the children, that at least they would not stand in the way of the children having a relationship with their father.
On the other hand, some of the criticisms of the wife are also relevant in the case of the husband. It would be better for the children if he was to take care always to give them the impression that they have his permission to have their relationship with their mother and to promote her to the children as a person deserving some dignity.
Ms X informed Ms A that the husband “needs to hold his tongue” and “grow up a bit”.
Ms Asaid that R had identified his father to her as the angriest person in the family and M also referred to his anger. R told Ms A that both his parents smacked him.
The children have reported some deficits in the husband’s parenting capacity such as not always being safe and predictable and even being frightening and threatening. Ms A said that the husband presented as having limited insight into such concerns. I must say, during cross-examination the husband conceded that some of his behaviour was not in the children’s interest. I note also that Ms A reported that the husband believed that the conflict between him and the wife had had a “big impact” on the children.
In my view, both of the parents appeared to have a limited capacity to prioritise the children’s needs above their own.
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.
This is not relevant.
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;
This is 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.
As indicated above, each of the children’s parents have been seriously lacking in this regard. Each of them has a somewhat immature and somewhat self-indulgent attitude to the responsibilities of parenthood.
The low point in this regard was represented by the disastrous events of 4 December 2011. The children would have expected their parents and grandparents to behave in a mature, adult-like way to support them in their sports activity particularly because it involved participation by the children’s peers. Instead, the children had to suffer the spectacle of the antithesis of responsible parenting. They have had to take things into their own hands in this regard and have dealt with the embarrassment caused to them by the persons on whom they should have been entitled to rely as parents and grandparents and have dealt with such embarrassing behaviour by simply declining to attend the sports activity.
The publishing by the husband of the videos and photos he and Ms X took on Youtube and Facebook demonstrated a serious lack of judgment and responsibility by him. This has caused distress and some embarrassment to the children.
Section 60CC(3)(j) – any family violence involving the child or a member of the child's family;
This is a case where there has been family violence. I shall deal with it in the discussion about the primary considerations pursuant to s 60CC(2) below.
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;
As indicated above, on 23 September 2010, the wife had an interim apprehended violence order made by the Local Court in her favour against the husband. This was subsequently made final. The husband appealed to the District Court of New South Wales on 1 December 2010 and the apprehended violence order was set aside.
An apprehended violence order has been made without admissions, to continue for two years to protect the husband and Ms X against the wife’s step-father, Mr P.
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
The parents have been involved in litigation about parenting matters now over many years. There have been numerous sets of orders in place to assist the family but still they find themselves before this Court.
In these circumstances, I could have little confidence that whatever orders this Court might make would be least likely to lead to the institution of further proceedings in relation to the children.
Section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant
I shall refer to the incident on 4 December 2011 below.
Incident on 4 December 2011
Because of the prominence given by the parents to this matter, its likely damaging effect on the children and the fact that the husband is very frustrated that the police have not pursued this matter in a criminal court, it is important to make some observations and findings about this.
This disastrous incident on 4 December 2011 had its genesis in developments during the preceding couple of days.
R had been invited to a birthday party for one of his friends at W on the Central Coast. The party was arranged for the Sunday afternoon, 4 December 2011. The children had a commitment at their sports activity on the Central Coast that morning. And under the then current orders, the children were to spend the weekend with their father, his obligation under the orders being to deliver them to their mother for changeover at 3:00 pm at suburb B.
The husband said that Dr C had suggested that it was important for him to take the children to their sports activity. I accept this.
The wife sent the husband a text message on 2 December 2011 informing him of the details of the birthday party including that it would be from 12:00 pm to 3:00 pm and asking him to confirm that he would take R to the party because she needed to inform the boy’s mother.
The husband did not reply. He said that the reason he did not reply was because at first R was not interested in attending the party. But later R changed his mind.
In addition to the information about the party, in both messages the wife informed the husband that the children had to be at the sports activity “before 9am” for photos.
On 4 December 2011 the husband drove the children from B to the Sporting Club to attend their sports commitment. He received a text message from the wife at 8:57 am informing him that R was about to miss having his photo taken and asking him whether he was bringing the children or not.
The husband’s account of the ensuing events was as follows. He said that he arrived at the car park at the Sporting Club with Ms X and the children at 8:59 am. Before he was able to get out of his car, the back door was opened by the wife and she took the children from the car yelling at him “You’re late, you don’t give a stuff that [R] is going to miss his photo.”.
It was submitted on behalf of the wife that the Court should assess the wife’s contributions overall as having been 20 percent. In my view this is too high and such an assessment would be unfair to the husband. Accordingly, I assess the wife’s contributions overall as having been 15 percent.
s 75(2) matters
The husband is 40 years of age. There are some questions concerning his state of health. He had an operation in February 2012 for reconstruction of the AC joint of his right shoulder. He said that this followed injury of the shoulder during the dreadful events of the 4 December 2011 at the children’s sports activity.
He has worked as a tradesman for fifteen years until his injury. He has been off work for some months. He is unsure whether he will be able to continue work as a tradesman. Even if he is able to do so, he is unsure whether he would be able to work at his previous capacity because of his shoulder injury. This is all untried, the husband not having yet resumed work.
A difficulty about this is that the husband has not put medical evidence in proper form before the Court about this matter.
He has made enquiries of the business which used to provide him with work, about whether they might be able to offer him less physically demanding work. So far he has not been offered employment in any such position. So the husband is going to endeavour to undertake his trade again and hope that he will be able to manage.
Since the husband sustained his injury he has been in receipt of income loss insurance payments of approximately $750 per week. What his income was during the 2011-2012 financial year is not clear to me. But during the financial year ending 30 June 2011 his taxable income was $34 130. It was $45 285 the previous year and $28 094 in the financial year ending 30 June 2007. His income was considerably higher during 2008 and 2009, it being $61 045 and $71 754 for those years respectively. He said that during that period he had sufficient work to enable him to employ a couple of workers to assist him.
What I make of all this is that the husband would appear to have capacity to earn income at approximately the average for the community. But there are some uncertainties following his injury and operation which are far from clear at this point.
I have referred to the property of the husband and to the considerable disparity between the husband and wife based on contributions.
As indicated above the husband has been assessed to pay child support, the current liability being $148.11 per week, as I have said.
On the other hand the wife is 37 years of age and she is in good health.
The wife does not work in the paid work force. She has remained at home and concentrated her attention and energy to caring for the children as their primary parent. Recently she undertook some training in an area of study related to health care. She has been looking for work in the general area of health care but said that it is difficult to find such work which would be confined to school hours.
Neither of the parties is cohabiting with another person. As indicated above, the husband has been in a relationship with Ms X for some time.
In my view, the most significant of the s 75(2) matters in this case are the facts that the wife has the primary responsibility for the children and a difference between the parties in terms of their capacity to earn income. On all present indications the wife will most likely continue to have the primary responsibility for the children through their school years. This is a significant difference between the parties. It is clear that the wife has struggled to find the money to provide for the children since separation.
So far as the wife’s capacity to earn income is concerned, even given the uncertainties about the husband’s capacity in this regard he would be in a more favourable position than the wife. This is because her primary responsibility for the children must limit the time which she would have available during which she could undertake paid work.
A further difference between the positions of the parties lies in the fact that on a contributions basis the husband is a long way ahead of the wife in relation to the property. In all these circumstances, in my view, in order for the Court to fulfil the requirements of s 79(2) to make a just and equitable order, it will be necessary for some set off of property to be made in favour of the wife.
It was submitted on behalf of the wife that the appropriate adjustment in this regard would be 15 percent. I note that a 15 percent adjustment based on the net assets having a value of $539 897 would be the amount of $80 985.
The Full Court of this Court said in Clauson (above) that it is important for judges, when considering whether a s 75(2) set off of assets is appropriate, not to slavishly apply a percentage adjustment without giving consideration to what the effects of this would be in money terms. While 15 percent is probably at the higher end for such adjustments, the position in this case is that the assets are quite modest and the needs of the wife and children are significant. In all the circumstances I accept the submission on behalf of the wife that the appropriate adjustment is 15 percent of the net assets.
Conclusion and fourth step
This was a cohabitation and marriage of short duration, namely approximately three and a half years. As indicated above, the most valuable of the assets were either inherited by the husband, or acquired largely as a consequence of significant cash contributions by his mother.
In these circumstances, although the wife has made some financial contributions and significant homemaker and parenting contributions, the latter over more than nine years, the fair result must involve a considerable difference in terms of the assets to be enjoyed by each of the husband and the wife.
As indicated above, the wife is to have 30 percent of the available assets. This would be assets with a value of $161 969.
The only asset which the wife has is her very modest interest in Cue Super with a value of $5365. The husband wishes to retain his property. Accordingly, for the wife to be able to have assets with a value of $161 969, the wife will require a payment of $156 604 ($161 969 - $5365 = $156 604).
On the other hand the husband is to have 70 percent of the available assets. This would be assets with a value of $377 928. The husband is the owner of all of the assets identified in the table of assets and liabilities referred to in these Reasons at paragraph 241 except for the wife’s Cue Super. These assets have a net value of $534 532.
He will be required to make a payment to the wife in the sum of $156 604. So he would then be left with assets with a value of $377 928 ($534 532 - $156 604 = $377 928).
How the husband finds the amount of $156 604 to pay to the wife will be a matter for him. He could borrow money on a mortgage secured on the property at H Street. Or he could sell his C Street home unit and borrow a smaller amount secured over his H Street home. Perhaps he might sell some of his other items of property.
I am satisfied that by some rearrangement of his financial affairs, the husband will be able to pay the wife and still retain his home.
On the other hand, the wife will receive a payment from the husband of $156 604. She said that from whatever property settlement she receives, she will have to repay her mother for paying her legal costs. As indicated above, the wife’s legal costs are expected to amount to a total of approximately $130 000. On this basis the wife would be left with the modest sum of approximately $26 604. Clearly, the wife and children will have to be accommodated in a rental property unless they were able to live with relatives.
The wife would otherwise receive child support payments from the husband and Government benefits. In due course she will probably return to the paid workforce.
Mr MG
As indicated above, the husband’s brother is a party in the proceedings. He has been made a party because the wife has sought implementation orders against him as one of the executors of the estate of his deceased mother, the other executor being the husband.
The property at H Street, suburb B has not yet been transferred to the husband. It remains as an asset in the estate. In the event that the husband fails to pay the wife in accordance with the orders I propose, it would become necessary for that property to be transferred to the husband and sold to enable the wife to be paid by the husband to fulfil the substantive orders.
I certify that the preceding two hundred and ninety (290) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 13 July 2012.
Associate:
Date: 13 July 2012
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