H and H
[2002] FMCAfam 376
•27 November 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| H & H | [2002] FMCAfam 376 |
| FAMILY LAW – PROPERTY – Initial contribution – spouse maintenance. CHILDREN – Overnight midweek contact – best interests of child – Family Law Act 1975. |
Family Law Act 1975, ss.60B, 65E, 68F(2), 72, 74, 75, 79
Child Support (Assessment) Act 1989
In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626
In the Marriage of Ferraro (1993) FLC 92-335
In the Marriage of Clauson (1995) FLC 92-595
Bevan & Bevan (1995) FLC 92-600
Russell v Russell (1999)FLC92-877
Pearce v Pearce (1999) FLC92-844
Ferarro (1993) SLC 92-335
Tomasetti (2000) FLC93-023
De Smeth (1992) 16 FLR 314, 320
Bryant (1992) 16 FLR 314, 3
B and B: Family Law Reform Act (1997) FLC 92-755
| Applicant: | N M H |
| Respondent: | S J H |
| File No: | SYM350 of 2002 |
| Delivered on: | 27 November 2002 |
| Delivered at: | Wollongong |
| Hearing Date: | 1 November 2002 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Counsel for the Applicant: | Mr G. Roberts |
| Solicitors for the Applicant: | Maguire & McInerney |
| Counsel for the Respondent: | Mr W. Moss |
| Solicitors for the Respondent: | Verekers |
ORDERS
That the children K R H born 15 May 1996 and J J H born
30 November 1998 reside with the wife.That the Husband and Wife have joint responsibility for making decisions about the long term care, welfare and development of the said children.
That each party is responsible for making decisions as to the day to day care, welfare and development of the said children whilst they are in their care.
That the Husband have contact with the said children as follows:
(a)Each alternate weekend commencing from 3.00pm Friday until 5.00pm Sunday.
(b)From 3.00pm to 7.30pm on each Wednesday and Thursday during school term.
(c)For the first week of each of the shorter school holiday periods, provided that the father is on leave from his employment.
(d)In respect of the Christmas school holiday period, 14 continuous days commencing from 1 January each year providing that the father is on leave from his employment for that period.
(e)In the year 2002 and each even numbered year Christmas day contact commencing from 5.00pm Christmas Eve overnight until 2.00pm Christmas Day.
(f)In the year 2004 and each odd numbered year, Christmas Day contact commencing from 2.00pm Christmas Day until 5.00pm Boxing Day.
(g)Telephone contact on each Tuesday and Thursday at 7.00pm.
That Husband to collect the children for alternate weekend contact from the day care mother, A P at 55 B Street, U and return the children to the mother’s residence; otherwise the children to be collected and returned to and from the mother’s residence.
That alternate weekend contact and midweek overnight contact are suspended during school holiday periods.
That both parents sign all documents necessary in respect of the children’s schooling to furnish to both parents all school reports, newsletters, information sheets and bulletins.
That the parties do all necessary to forthwith distribute the nett proceeds of sale of the former matrimonial home 55 B B, Cordeaux Heights as follows:
(a)$82,643.18 to the wife.
(b)$56,537.75 to the husband.
That the wife be declared the owner of the following property:
(a)Household furnishings currently in her possession;
(b)1994 Mitsubishi Magna motor vehicle registration number Q.
(c)Joint shareholding of the parties in NRMA Corporation.
(d)Savings in financial institution investments in the name of the wife.
(e)Current and potential superannuation benefits and entitlements in the name of the wife.
That the husband be declared the owner of the following property:
(a)Household furnishings currently in his possession;
(b)Mitsubishi colt motor vehicle.
(c)Share portfolio in the name of the husband with the Commonwealth Bank of Australia.
(d)Savings in financial institutions in the name of the husband.
(e)Current and potential superannuation benefits and entitlements in the name of the husband.
In the event that either party fails, refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, then pursuant to s.106A, a Registrar or Deputy Registrar of the Federal Magistrates Court of Australia is hereby appointed to execute all deeds, documents and instruments in the name of the defaulting party and to do all such acts and things necessary to give validity and operation to such deeds, documents and instruments.
That within fourteen days the husband deliver to the wife the following:
·hall stand,
·three wall plates,
·picture of wife and K,
·five pictures of ladies in 1950’s
·picture of a lady picking up sand on a beach,
·picture of a house and garden,
·picture of a girl sitting on a rock, and
·picture of two children holding a bird.
That within fourteen days the wife deliver to the husband the following:
·copies of the children’s photos (copy cost to be paid by the husband),
·fruit bowl,
·glass candle holders,
·blue white and gold crockery set.
That unless otherwise specified in these orders:
(a)Each party be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the banks’ record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof and superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements.
(b)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
Unless earlier discharged, that until February 2005 the husband pay to the wife $150 per week by way of spousal maintenance. The first payment to be made within seven days from the date of these orders. Commencing one week after settlement of the purchase of a home by the husband in his own name or upon him living in rented accommodation that he pays no less than $250 per week rent for, this order is discharged.
THAT pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
That all exhibits tendered in these proceedings be returned at the expiration of one calender month unless an Appeal is lodged.
That the solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.
That all outstanding applications are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT WOLLONGONG |
SYM350 of 2002
| N M H |
Applicant
And
| S J H |
Respondent
REASONS FOR JUDGMENT
The Proceedings
These proceedings are for the adjustment of property, spousal maintenance, and for parenting orders. The parenting issues concern contact by the husband to the parties’ two children. The children are
K R H born 15 May 1996, and J J H born 30 November 1998.
The Application
N M H ("the wife") started the proceedings when she filed an application for final orders in the Family Court on 12 March 2002. Subsequently, on 22 April 2002, she filed an amended application. The orders she sought are set out below.
Parental Responsibility
The Father and Mother have the joint responsibility for making decisions about the long term care, welfare and development of the children of the marriage namely:
(a) K R H born 15th May 1996 and
(b) J J H born 30th November 1998
2. Residence order
The children are to reside with the Mother.
3. Specific Issues
(a) The Mother be responsible for the day to day care, welfare and development of the children.
(b) Father to collect children for alternate weekend contact from the day care mother at A P 55 B Street, U, and return the children to the mothers residence; otherwise children to be collected and returned to and from the mothers residence.
(c) That alternate weekend contact and midweek overnight contact suspended during school holiday periods.
(d) Both parents to sign all documents necessary in respect of the children’s schooling to furnish to both parents, all school reports, news letters, information sheets and bulletins.
4. Contact Orders
The children to have contact with the Father as follows:-
(a) Each alternate weekend commencing from 3.00 pm Friday until 5.00 pm Sunday.
(b) For the first week of each of the shorter school holiday periods, provided that the father is on leave from his employment.
(c) In respect of the Christmas school holiday period, 14 continuous days commencing from 1st January each year providing that the father is on leave from his employment for that period.
(d) In the year 2002 and each even numbered year Christmas Day contact commencing from 5.00 pm Christmas Eve overnight until 2.00 pm Christmas Day.
(e) In the year 2003 and each odd numbered year, Christmas Day contact commencing from 2.00 pm Christmas Day until 5.00 pm Boxing Day.
(f) Telephone contact on each Tuesday and Thursday at 7.00 pm.
PROPERTY
5. That the nett proceeds of sale of the former matrimonial home 55 B B, Cordeaux Heights be divided as follows:
(i) To the wife 70%.
(ii) The balance to the husband.
6. That the wife be declared the owner of the following property:
(i) Household furnishings currently in her possession.
(ii) 1994 Mitsubishi Magna motor vehicle registration number Q.
(iii) Joint shareholding of the parties in NRMA Corporation.
(iv) Savings in financial institution investments in the name of the wife.
(v) Current and potential superannuation benefits and entitlements in the name of the wife.
7. That the husband be declared the owner of the following:
(i) Household furnishings currently in his possession.
(ii) Mitsubishi Colt motor vehicle.
(iii) Share portfolio in the name of the husband with the Commonwealth Bank of Australia.
(iv) Financial institution savings in the name of the husband.
(v) Current and potential superannuation benefits and entitlements in the name of the husband.
8. (a) That in the event of either party neglecting or refusing to execute all or any necessary instruments to give effect to these orders or any of them, a Registrar of the Court at its Sydney Registry is appointed pursuant to Section 106A of the Act to execute all such necessary instruments in the name of the defaulting party.
(b) That a Registrar is authorised to execute any such necessary instrument upon being satisfied by Affidavit that a relevant neglect or refusal, as the case may be, has occurred.
9. That leave be granted to the wife to amend her application upon the husband giving financial disclosure serving a financial statement.
SPOUSE MAINTENANCE
10. That the husband pay to the wife maintenance in the sum of $200.00 per week.
Interim Orders –
CHILDCARE ISSUES
1. Parental Responsibility
The Father and Mother have the joint responsibility for making decisions about the long term care, welfare and development of the children of the marriage namely:
(a) K R H born 15th May 1996 and
(b) J J H born 30th November 1998
2. Residence order
The children are to reside with the Mother.
3. Specific Issues
(a) The Mother be responsible for the day to day care, welfare and development of the children.
(b) Father to collect children for alternate weekend contact from the day care mother at A P 55 B Street, U, and return the children to the mothers residence; otherwise children to be collected and returned to and from the mothers residence.
(c) That alternate weekend contact and midweek overnight contact suspended during school holiday periods.
(d) Both parents to sign all documents necessary in respect of the children’s schooling to furnish to both parents, all school reports, news letters, information sheets and bulletins.
4. Contact Orders
The children to have contact with the Father as follows:-
(a) Each alternate weekend commencing from 3.00 pm Friday until 5.00 pm Sunday.
(b) For the first week of each of the shorter school holiday periods, provided that the father is on leave from his employment.
(c) In respect of the Christmas school holiday period, 14 continuous days commencing from 1st January each year providing that the father is on leave from his employment for that period.
(d) In the year 2002 and each even numbered year Christmas Day contact commencing from 5.00 pm Christmas Eve overnight until 2.00 pm Christmas Day.
(e) In the year 2003 and each odd numbered year, Christmas Day contact commencing from 2.00 pm Christmas Day until 5.00 pm Boxing Day.
(f) Telephone contact on each Tuesday and Thursday at 7.00 pm.
URGENT SPOUSE MAINTENANCE
5. That the wife be permitted to draw upon the parties controlled monies account invested with the IMB in an amount of $200.00 per week pending final hearing.
S J H ("the husband") filed a Response on 24 April 2002. The orders sought by him are as follows:
The Father and Mother have the joint responsibility for making decisions about the long term care, welfare and development of the children of the marriage namely;
K R H born 15 May 1996 and
J J H born 30 November 1998.
The children are to reside with the Mother.
That the parties be responsible for the day to day care, welfare and development of the children whilst in their respective care.
That the Father collect the said children from the Mother’s home at 3.00pm or shortly thereafter at the commencement of contact and return the children to the Mother’s residence at the end of each contact period.
That alternate weekend contact and mid week overnight contact be suspended during school holiday periods.
That the Father furnish to the Mother his work roster within 7 days of receipt by the Father.
Both parents to sign all documents necessary in respect of the children’s schooling to furnish to both parents, all school reports, newsletters, information sheets and bulletins.
That the children have contact with the Father as follows:
Each alternate weekend commencing 3.00pm Friday until 5.00pm Sunday.
For the first week of each of the shorter school holiday periods, provided that the Father is on leave from his employment during such contact periods.
One week night in the week following the weekend that contact has not taken place so long as such weeknight coincides with the Father’s rostered day off from his employment during that week except where the Father is working during the first week he shall exercise such contact in the second week.
In respect of the Christmas school holiday period for 7 days commencing on January each year provided that the Father is on leave from his employment for that period.
In the year 2002 and each even numbered year Christmas day contact commencing 5.00pm Christmas Eve until 2.00pm Christmas Day.
In the year 2003 and each odd numbered year, Christmas Day contact commencing from 2.00pm Christmas Day until 5.00pm boxing day.
Phone contact each Tuesday and Thursday between the hours of 7.00pm and 7.30pm.
That the net proceeds of sale of the former matrimonial home be divided equally between the parties.
That the Wife be declared the owner of the following property:
1994 Mitsubishi Magna motor vehicle registration number Q
Savings in financial institution investments in the name of the Wife.
Current and potential superannuation benefits and entitlements in the name of the Wife.
That the Wife do all such things and sign all such documents so as to transfer to the Husband the joint shareholding of the parties in the NRMA corporation.
7. That unless otherwise specified in these orders:-
Each party be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the party whose name appears on the bank’s records thereof; Insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements, and any other items of personalty and effects in their respective possession of either party;
Each party be solely liable for and indemnify the other party against liability encumbering any item of property to which that party is entitled to pursuant to these orders.
8. That in the event of either party neglecting or refusing to sign all or any necessary instruments to give effect to these orders or any of them, either party is at liberty to apply, pursuant to Section 106(A) of the Family Law Act, to the Court to seek the appointment of an Officer of the Court or other person to execute the deed or instrument in the name of the person to whom the direction was given and to do all acts and things necessary to give validity and operation to the said deed or instrument.
9. That the above Orders are intended to finally determine the financial relationship between the parties pursuant to Section 81 of the Family Law Act, 1975 as amended in so far as it is practicable to do so.
ANNEXURE B
1. The Father and Mother have the joint responsibility for making decisions about the long term care, welfare and development of the children of the marriage namely;
K R H born 15 May 1996 and
J J H born 30 November 1998.
The children are to reside with the Mother.
(i) That the parties be responsible for the day to day care, welfare and development of the children whilst in their respective care.
(ii) That the Father collect the said children from the Mother’s home at 3.00pm or shortly thereafter at the commencement of contact and return the children to the Mother’s residence at the end of each contact period.
(iii) That alternate weekend contact and mid week overnight contact be suspended during school holiday periods.
(iv) That the Father furnish to the Mother his work roster within
7 days of receipt by the Father.
(v) Both parents to sign all documents necessary in respect of the children’s schooling to furnish to both parents, all school reports, newsletters, information sheets and bulletins.
That the children have contact with the Father as follows:
(i) Each alternate weekend commencing 3.00pm Friday until 5.00pm Sunday.
(ii) For the first week of each of the shorter school holiday periods, provided that the Father is on leave from his employment during such contact periods.
(iii) One week night in the week following the weekend that contact has not taken place so long as such weeknight coincides with the Father’s rostered day off from his employment during that week except where the Father is working during the first week he shall exercise such contact in the second week.
(iv) In respect of the Christmas school holiday period for 7 days commencing on January each year provided that the Father is on leave from his employment for that period.
(v) In the year 2002 and each even numbered year Christmas day contact commencing 5.00pm Christmas Eve until 2.00pm Christmas Day.
(vi) In the year 2003 and each odd numbered year, Christmas Day contact commencing from 2.00pm Christmas Day until 5.00pm boxing day.
Phone contact each Tuesday and Thursday between the hours of 7.00pm and 7.30pm.
5. That the Application herein otherwise be dismissed.
Thus, it is apparent that there is significant agreement between the parties in relation to the children. The timely points upon which they differ include mid-week overnight contact, and whether the husband must take holidays when the children are to exercise contact for extended periods.
Short history
The husband was born on 8 May 1961. He is 41 years old.
The wife was born on 24 August 1966. The wife is 36 years old.
The parties commenced cohabitation at the end of June 1995. They married on 30 September 1995.
There are two children of their marriage. K R H born
15 May 1996, and J J H born 30 November 1998.
Final separation occurred on 28 August 2001. They have not divorced.
Current orders
On 23 May 2002, in the Family Court at Sydney, interim parenting orders were made as follows:
1.Parental Responsibility
The Father and Mother have the joint responsibility for making decisions about the long term care, welfare and development of the children of the marriage namely
(a)K R H born 15th May 1996, and
(b)J J H born 30th November 1998.
2.Residence Order
The children are to reside with the Mother.
3.Specific Issues
(a)That each of the parties respectively be responsible for the day to day care, welfare and development of the children when the children are with that party.
(b)Father to collect children for alternate weekend contact from the day care mother at U and return the children to the mother’s residence; otherwise children to be collected and returned to and from the mother’s residence.
(c)That alternate weekend contact and midweek contact suspended during school holiday periods.
(d)Both parents to sign all documents necessary in respect of the children’s schooling to furnish to both parents, all school reports, news letters, information sheets and bulletins.
4.That unless the parties otherwise agree and until further order of the court orders be made in terms of paragraph 4 of Annexure C to the Application of the mother filed 22 April 2002 as set out hereunder:
“4. Contact orders
The children to have contact with the Father as follows:
(a)Each alternate weekend commencing from 3.00pm Friday until 5.00pm Sunday.
(b)For the first week of each of the shorter school holiday periods, provided that the father is on leave from his employment.
(c)In respect of the Christmas school holiday period, 14 continuous days commencing from 1 January each year providing that the father is on leave from his employment for that period.
(d)In the year 2002 and each even numbered year Christmas Day contact commencing from 5.00pm Christmas Eve overnight until 2.00pm Christmas Day.
(e)In the year 2003 and each odd numbered year, Christmas Day contact commencing from 2.00pm Christmas Day until 5.00pm Boxing Day.
(f)Telephone contact on each Tuesday and Thursday at 7.00pm.
5.That in relation to school holiday contact until further order of the court the father give the mother at least 28 days notice of the period for which he proposes to exercise contact.
6.That the application of the wife for urgent spouse maintenance be dismissed.
7.That there be no order for costs.
The issues
The significant issues that arose in the proceeding are these:
·The quantum of and the weight that should be attached to the husband's greater initial contribution.
·The wife's capacity for future employment.
·The wife's need for spouse maintenance.
·The husband's capacity to pay spouse maintenance.
·The effect on the children of ordering or not ordering mid-week overnight contact.
·Whether overnight contact in the context of the husband's alternating four week roster is disruptive and confusing for the children.
The evidence
The wife relied on the following:
·Her affidavit sworn 15 October 2002 and filed 16 October 2002 and her oral testimony.
·Her financial statement sworn and filed the same day.
The husband relied on the following:
·His affidavit sworn and filed 16 October 2002, and his oral testimony.
·His financial statement sworn 17 April 2002 and filed 24 April 2002.
Both parties tendered documents that became exhibits.
Chronology of relevant events
The parties commenced cohabitation when the wife moved into the husband's home. At that time she was working full-time as a dental nurse. She had savings of about $15,000 and owned a Mitsubishi Magna motor vehicle.
The husband was employed as a fitter and turner at Port Kembla. He owned a Holden valued at approximately $1,000 and also a motor bike that he believed was worth approximately $2,000. Prior to the start of their relationship, he purchased land at Dalmeny. It was purchased in 1990 for $20,000[1]. Within two years of its purchase he had paid out the mortgage from the Commonwealth Bank. He then developed the property by building a home on it. The cost of building the home was drawn from a mortgage raised from IMB. This property was tenanted and because the husband supplemented the rental income by $50 a week to meet the property's outgoing, I infer that he also negatively geared it for taxation purposes.
[1] Exhibit J
In August 1994 the husband purchased a property at Bellambi. Because he was more intimately involved in the transaction than the wife was, I accept the husband's evidence that its purchase price was $135,000. He borrowed $117,000 from the Illawarra Mutual Building Society Ltd. The balance of approximately $18,000, together with stamp duty, legal fees and mortgagee expenses, were drawn from his savings. He sold his Ford Falcon stationwagon and put the proceeds towards the costs of buying the home.
On 6 February 1995, he received a retrenchment package. The total amount due was $35,233.64[2]. He received $27,304.04 nett[3]. Upon the mine’s closure, he started full-time work as a fitter and turner with MM. He still works there.
[2] Exhibit H
[3] Exhibit I
Before the parties started to live together, the husband gave notice to the tenant renting Bellambi and the property was readied for their occupation of it. New carpets were laid, walls repaired as well as the installation of a gas heater. The husband paid approximately $7,500 for the cost of the improvements. The parties did some of the work themselves, including painting the interior and repapering the walls in two bedrooms.
At the commencement of cohabitation, the husband had $21,596.74[4] in his IMB account, approximately $10,000 in his Commonwealth Bank account and $3,592 in his City Coast Credit Union account. The wife's counsel challenged the husband's assertion as to the savings he held in his Commonwealth Bank account. The husband was unable to produce records that corroborated his evidence. The wife did not challenge his evidence that in March 1996, he paid $10,000 from his savings for an extension to the Bellambi property. Those monies were not drawn from either his IMB or City Coast Credit Union account. I accept his evidence that they came from savings held in his Commonwealth Bank account.
[4] Exhibit I
On 26 September 1995, the husband made a capital reduction to the IMB mortgage of $10,000. This came from savings primarily acquired prior to the commencement of cohabitation but supplemented by income earned by him after the parties started to live together.
On 20 September 1995, the husband paid $5,562.17[5] by way of capital reduction to the mortgage. These monies came from either his tax refund or a superannuation fund. The statement of his termination payment from his employers makes it more likely that the payment came from a taxation refund. This refund returned to the husband monies paid by him to the ATO prior to the commencement of cohabitation.
[5] Exhibit G
After the March 1996 extensions were completed, the wife paid approximately $10,000 for the installation of a new kitchen. She also paid for the installation of ceiling fans and roofing insulation. In addition, she paid about $800 for the construction of built-in wardrobes in two bedrooms. These monies were drawn from savings she acquired prior to cohabitation.
Just before K was born, the wife stopped work. She returned to paid employment in February 1997 when K was about nine months old.
In 1997 the husband sold Dalmeny for $85,000. After discharge of the mortgage and payment of costs associated with its sale, he received $29,871. Both parties and the wife's parents prepared Dalmeny for sale. The tenants had left the property in poor repair and both the interior and exterior required significant cleaning. Bellambi was sold in October 1997. Its selling price was $156,000, and after discharge of the mortgage and payment of selling costs, the husband received approximately $67,000.
In late 1997 the parties bought a home at Cordeaux Heights for which they paid $225,000. To fund its purchase they borrowed $140,000 from the Colonial State Bank. The balance of the purchase price, stamp duty and legal fees, were drawn from the sale proceeds of Dalmeny and Bellambi. Later, the Colonial State Bank mortgage was transferred to the Commonwealth Bank.
Shortly prior to J's birth, the wife stopped paid employment. J was about two years old when she resumed paid employment. She worked each alternate weekend. This coincided with weekends that the husband did not work. Thus he could care for the children. About 6–8 months later, she obtained part-time work at U Nursing Home, which coincided with two mornings a week when the husband was available to care for the children.
In January 2001 the wife gave up paid employment so that she could spend time with her father. He was terminally ill. Approximately one week after the parties finally separated, the wife started part-time week as a dental assistant; working 8 am to 6 pm Wednesday and Friday, weekly.
Upon separation, both parties vacated the home. The husband paid the mortgage at $260 a week for four weeks after their separation. He reduced the mortgage payments to $230 per week thereafter, paying these until the home was sold on 13 March 2002. It sold for $283,000. $136,180 was paid to the Commonwealth Bank in complete discharge of its mortgage. After payment of legal fees and agent's commission, the net proceeds amounted to $131,383. Those monies have remained in a controlled money account pending completion of these proceedings.
After separation, the husband paid joint matrimonial debts incurred prior to separation in the sum of $1,936.41. On 8 October 2001, the wife withdrew $1,500 from their joint bank account, redepositing $500 two days later. These monies, together with an additional $284, withdrawn from the same account, were used on living expense for the wife and children.
During July 2002 the husband aggravated an earlier arm injury. He alleges that this has limited his capacity to work regular shift work. Thus he applied to change his child support assessment. It was reduced from $283 per week to $226 per week.
Bizarrely, the wife alleged that on 5 July 2002 the husband received a redundancy payment of $6,321 from MM[6]. The wife was well aware that the husband continued full-time employment with the same employers. Indeed her application for spouse maintenance is predicated upon it. At her request, he obtained a statement from his paymaster of the payment he would receive on resignation. The payment advice, dated 5 July 2002[7] was provided to the wife's solicitor. Clearly the document corroborates the husband's evidence. The wife's assertion that “The husband has had the sole use of those monies” is a deliberately misleading statement. The husband has neither resigned nor been made redundant by his employer. He has not received the payment alleged by the wife.
[6] paragraph 21(b), wife's Affidavit
[7] Exhibit M
Neither party has repartnered.
Property and spousal maintenance applicable law
The approach to the determination of an application under section 79 is well established by authority (In the Marriage of Lee Steere and Lee Steere[8]; In the Marriage of Ferraro[9]; In the Marriage of Clauson[10] the process ordinarily involves a multiple part procedure. 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 s.79(4)(a) to (c) and the effect of any proposed order upon the earning capacity of either party. I must then evaluate the matters contained in s.75(2) insofar as they are relevant, any other order made under the Act affecting a party or child and any child support under the Child Support (Assessment) Act 1989 that a party to the marriage is to provide, or might be liable to provide in the future, for a child to the marriage.
[8] (1985) FLC 91-626
[9] (1993) FLC 92-335
[10] (1995) FLC 92-595
In determining what order the court should make under s.79, the court must be satisfied in all the circumstances that it is just and equitable to do so [s.79(2)]. It is the justice and equity of the actual orders that the court must consider. Russell v Russell[11].
[11] (1999) FLC 92-877
The wife makes an application for spousal maintenance. In Bevan and Bevan[12] the Full Court of the Family Court identified the process for assessing a claim for spousal maintenance. It said[13]:
[12] (1995) FLC 92-600
[13] at 81,981-82,982
This requires:
“1.a threshold finding under s72;
2.consideration of s74 and s75(2);
3.no fettering principle that pre-separation standard of living must automatically be awarded where the respondent's means permit; and
4.discretion exercised in accordance with the provisions of s74, with reasonableness in the circumstances as the guiding principle.”
A claim for spousal maintenance that is heard at the same time as an application for property adjustment adds an extra step to the process. The sequence of determining the applications is important and the property application must be determined before the spousal maintenance claim is considered. This is to ensure that the terms of any order made in the property claim are considered in the spousal maintenance application. Clauson supra.
Assets and liabilities as at the date of hearing
The parties were able to agree on the value of most of the assets and liabilities[14]. I find that the parties' assets, liabilities and financial resources, as at the hearing, are as set out in the following table.
[14] Exhibit A
| Assets as at the date of hearing | $ |
| Sale proceeds –Cordeaux Heights (agreed) | 139,180.94 |
| ISB savings (W) agreed | 3,000.00 |
| CBA savings (H) agreed | 1,376.00 |
| WC credit union (H) | 665.00 |
| 897 NRMA shares (W) agreed | 2,215.00 |
| 1251 NRMA shares (H) agreed | 3,089.97 |
| 278 CBA shares (H) agreed | 8,259.38 |
| 1994 Mitsubishi Magna (w) | 5,500.00 |
| 1985 Mitsubishi Colt (H) agreed | 500.00 |
| TOTAL ASSETS | 163,786.29 |
| Liabilities as at the date of hearing | $ |
| Visa card (H) | 1,126.00 |
| TOTAL LIABILITIES | 1,126.00 |
| NETT ASSETS | 162,660.29 |
| Financial Resources | |
| Macquarie Superannuation Fund (H) agree | 20,288.00 |
| Mercer Retirement Superannuation Fund (H) agreed | 26,000.00 |
| AMP Superannuation (W) | 681.00 |
| Australian Retirement Fund (W) | 274.00 |
| Macquarie Investment Superannuation (W) | 4,252.00 |
During submissions it became clear that the husband's counsel challenged the value attributed by the wife to her Mitsubishi Magna. Only she gave evidence as to its value. She believes it is worth $5,500. As her counsel submitted, her evidence is an admission against interest. It is the best and only evidence that the court has. I find its value as alleged by the wife. If the husband wanted to make an effective challenge to the wife's assertion he needed to adduce evidence upon which the court could make findings. He did not do so.
The husband has a Commonwealth Bank Visa card debt. At separation he withdrew $2,353.83 to pay the balance of his Visa card[15]. I am satisfied that the balance outstanding on his Visa card has accrued subsequent to separation. It is a debt that he will have sole responsibility to pay.
[15] paragraph 22 husband's Affidavit
Section 79(4) contributions
An important issue in this matter is the assessment of the weight that should be attached to the parties initial contributions. In Pearce v Pearce[16] the Full Court of the Family Court held:
In our opinion it is not so much a matter of erosion of contribution, but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.
[16] 1999 FLC 92-844
I have already made findings about the assets held by each party at the commencement of cohabitation. The husband had net assets worth about $75,188.74. He had the motor bike and savings identified at paragraph 20. There is insufficient evidence to make precise findings concerning Dalmeny's value when the parties started to live together. As it had been purchased five years prior to the commencement of cohabitation, its value may have increased. It was worth no less than $20,000. Because Bellambi had been purchased shortly before the parties started to live together it is unlikely that it had increased in value. Thus the nett equity was $18,000.00. There is insufficient evidence to make precise findings concerning the value of the wife's car. Subsequently it was traded in for $3,000. Thus, I am satisfied that the wife's car was worth at least $3,000. Accordingly, she had assets of at least $18,000. She did not have any liabilities. The husband's initial contribution substantially exceeds the wife's.
The husband's ownership of Dalmeny and Bellambi was pivotal to the parties' financial success and their capacity to enjoy a reasonable standard of living. His ownership of Dalmeny enabled him to increase the family earned income through rental that substantially serviced its mortgage. Because he owned Bellambi, the parties had a home that they could live in without paying rent. The monies paid into the mortgage worked for them, rather than a landlord. The wife's submission undervalued the real significance of the nature and value of the husband's initial contribution. More than anything else, it was his ownership of these properties and the lump sum payments he made from his savings and paid into the home either as capital reductions to the mortgage or on improvements to Bellambi that provided the cornerstone for the parties' subsequent acquisition of Cordeaux Heights.
Both parties contributed all of their assets held at the commencement of the cohabitation and income earned during cohabitation to the betterment of the family. The husband was in full-time employment throughout their marriage. In the last two years of their marriage, he earned $68,850 (year ending 30 June 2000), and $67,050.41 (financial year ending 30 June 2001). Had she remained in full-time employment, the wife believes that her income would have increased to about $497 per week. Thus I am satisfied that even when she was in full-time employment during the early period of the marriage, she did not earn an income comparable to that received by the husband.
When evaluated comparatively, the husband made a greater initial contribution and a greater overall financial contribution to the acquisition, conservation and improvement of the assets of the parties.
The wife made an indirect financial contribution to the increased value in Dalmeny. That is because during their cohabitation, the husband supported the shortfall between income and outgoings on Dalmeny from his salary. The shortfall was insignificant, approximately $4,000 from the commencement of cohabitation until its sale. Her contribution to Dalmeny compared to that made by the husband is very small.
The wife contributed a significant portion of her initial contribution towards improvements on Bellambi. Whilst her counsel emphasised this contribution by her, he refuted an equivalent submission made by the husband's counsel as to the cost of the extension to Bellambi in March 1996, being a contribution by the husband. That is because he submitted that the extension took place after the parties commenced cohabitation. Just as the monies used for the extension for the improvements to the kitchen and wardrobes could be traced to funds acquired prior to the commencement of cohabitation by the wife, so too I am satisfied that the March 1996 extensions to Bellambi identified by the husband in paragraph 12 of his affidavit, can be traced to funds earned by him prior to the commencement of cohabitation.
Both parties contributed to the maintenance and improvement of Dalmeny, Bellambi and Cordeaux Heights. Because the tenants had left Dalmeny damaged and unkempt, the parties undertook major cleaning preparing it before it was placed on the market for sale. Their efforts were matched by the help given to them by the wife's parents. Their efforts are a contribution made on the wife's behalf. The parties’ individual efforts were comparable.
Similarly, both parties prepared Bellambi for their occupation prior to their marriage. Again, the parties worked side by side selecting and purchasing materials, painting the interior of the home and other minor repairs. As with Cordeaux Heights, tradesmen were primarily used for the more substantial improvements. The wife had greater involvement with managing the tradesperson than the husband did. Both contributed equally to the establishment of gardens at Bellambi. Overall, the parties made an equivalent non-financial contribution to the maintenance and improvement of their home after they commenced cohabitation.
The wife's contribution was the welfare of the family is particularly significant. K was born with a turned in foot, which required plaster casts for about two months. K needed to be carried while she was in plaster. As the husband worked a long 12-hour shift the wife's responsibility for the children increased commensurately. When the husband was working nightshift, the wife had to manage the children so that they were quiet and did not disturb his sleep taken during the day. Once the wife returned to part-time work, she took the children to and from day care. Because the husband worked hard, inevitably responsibility for maintaining the interior of the home and caring for the children fell overwhelmingly on the wife. The husband's shiftwork gave him the opportunity to become involved with the children not only on weekends, but also during the week. He is a devoted father who enthusiastically involved himself in the care of the children. When he was at home, he shared the care of the children, changing nappies, bathing them, playing with them, and generally supplementing the wife's care of them. When the wife started working at Blakehurst Nursing Home, she worked alternate weekends, which coincided with the husband's rostered days off. Whilst she was at work, the husband cared for the children. Since separation, the wife has had substantially greater responsibility for the care of the children than the husband has. Comparatively, the wife's contribution to the welfare of the family during the marriage and since separation substantially exceeds the contribution made by the husband. Her contribution must be given significant weight. See Ferraro[17].
[17] 1993 SLC 92-335
The orders I propose will not affect the earning capacity of either party.
After separation, the wife applied for an administrative assessment of child support. The husband pays child support in accordance with the assessment. While addressing s.75(2)(na) I make findings concerning child support and do not repeat them. The husband will pay child support in accordance with the child support formula for approximately thirteen years. He is unlikely to ever pay more than the amount assessed.
I find therefore that the parties’ total contribution should be assessed as being 63 per cent by the husband and 37 per cent by the wife.
Section 75(2)
Subsection (a)
The husband is 41 years old. He has a recurring injury to his elbow. Initially he was injured in 2000 and again in July 2002. Between the first and second injury, the husband was able to maintain his hours of work without adjustment. He received unspecified treatment during this period. Since the second injury, he is limiting his work and in recent times is not taking up overtime opportunities. No medical evidence was provided that indicated this was necessary. Although he has a recurring injury to his elbow, I am satisfied that he is in good health. The wife is 36 years old and is also in good health. I make no adjustment pursuant to the sub-section.
Subsection (b)
The husband works full-time with MM as a fitter and turner. He earns, he alleges, $910.41 per week, which comprises a base wage of $850.38, dirt allowance of $12.90 and trade allowance of $47.13. His payroll master said, “Mr H has also been paid overtime in the six weeks of this financial year, as overtime is dependent on departmental needs and employee circumstances. Mr H would have a better indication of the amount of overtime he is likely to work.”[18] Without overtime, the husband's yearly income is about $47,341.23. His employers produced details of his gross earnings for the 12 months prior to the hearing. These reveal a different picture to that currently asserted. During this period there is a clear dichotomy between the overtime worked and the husband's gross earnings when compared to the last five weeks. In the absence of medical evidence that corroborates the husband's assertion that he has reduced his hours of employment so that he refuses overtime because of his arm injury, I am not satisfied that this is the reason. He has carried the injury for over two years during which period he has routinely worked overtime earning at least an average $20,000 per annum more in those years than he currently asserts he can earn. Based on his reduced income, the husband has applied to change his child support assessment. Although he has injury insurance there is no evidence that he has claimed against it for loss of income arising from the injury. I accept the wife's counsel's submission that the husband has made a deliberate decision to reduce his income for the purposes of these proceedings and the forensic advantage that he believes this may deliver him. I am satisfied that the husband is able to earn an average weekly income of approximately $1,250 or $65,000 a year. This figure is derived by averaging the income earned between 12 May 2002 and 28 August 2002. It is less than but reasonably comparable to the income earned by him over recent years.
[18] Exhibit F
Other than income derived from his employment, he has no other source of income. I have already made findings about the value of his property and financial resources. I do not repeat them. I am satisfied that the husband has the physical and mental capacity to work full-time earning at least $65,000 per annum for many years to come.
The wife is an experienced dental nurse and receptionist. She earns $15 per hour during standard hours and $30 per hour overtime. She works three or sometimes four days a fortnight and routinely works two hours overtime a week. She produced a payslip for the period ended 16 October 2002[19] that revealed a total income of $242.51 and net pay of $220. In her Affidavit and financial statement the wife gave evidence that she earned $280 gross weekly. Because Exhibit D does not include any overtime, I am satisfied that the wife's Affidavit evidence that she earns $280 gross a week is accurate. Because of her part-time work since the children’s birth, the wife has been able to maintain reasonable familiarity and proficiency in her chosen profession. She has not had the opportunity to progress, as I am satisfied she would have succeeded in doing, to the position of surgery manager. Had she maintained full-time employment uninterrupted by the care of the children, she would not have earned income comparable to that earned by the husband. Whether as a dental assistant or eventually a surgery manager, the wife is never likely to earn an income comparable to that earned by the husband; certainly not in the short-term, and it is highly unlikely for the long-term. I make an adjustment pursuant to the sub-section in favour of the wife.
Subsection (c)
[19] Exhibit D
K is six years old and J is four years old. There is no dispute that they will continue to live with the wife. But for the care of the children,
I am satisfied that the wife could return immediately to full-time employment. Her decision to care for the children and work part-time is a reasonable one. Whilst she has the care of the children before both are attending school, the physical demand involved in caring for the two of them means that it is reasonable that she delay returning to work to a more substantial extent than her current two days per week. However, in about 15 months when J starts school, she will have the opportunity to increase her part-time employment. Her opportunity for full-time employment is materially affected as a consequence of her care of the children. Managing as a single parent whilst the children are in their early school years, as well as even part-time work, is onerous. This is so even although the husband willingly cares for the children when the wife works overtime and she has family support that she can rely upon. I find that the sub-section requires an adjustment in the wife's favour.
Subsection (d)
Both parties have a duty to maintain the children. The husband's financial statement was sworn in April 2002. He did not complete paragraph 54. There was scant evidence that particularised his weekly expenses. I have already made findings that he has a greater capacity to earn income than he claims. On an income of $1,282 he was assessed to pay tax at $354 per week. He contributes $60 per week to a superannuation fund, pays $100 per week board, furniture storage at $45 a week, injury insurance at $18 per week, $224 child support and regular Visa card payments of at $25 per week. After payment of union fees he has approximately $797.10 per week. He asserts other fixed expenditure of $226 per week. Although asked in his financial statement to specify this fixed expenditure, he does not do so. During cross-examination he said this comprised the amount paid by him for food, petrol, car registration and car maintenance. The amount claimed appears excessive given that he pays board at $100 per week.
The wife's income is derived from child support, family allowance, a means tested pension and her part-time employment. She receives $268.94 per fortnight family allowance and $291.01 per fortnight pension. She pays $250 per week rent and $10 loan repayment to AGC. By living frugally she manages to support herself and the children from her weekly income. Her standard of living is modest and without her Supporting Parent's Pension, she could not meet her living expenses. I make an adjustment in favour of the wife pursuant to the sub-section.
Subsection (d)
Other than the children, neither party has a responsibility for any other person. I make no adjustments under this sub-section.
Subsection (f)
The wife receives a Social Security Benefit as I have identified in paragraph 59. She has limited superannuation entitlements. I have already made findings about the husband's superannuation entitlements. He will not be eligible to receive his benefits for at least 14 years. His Macquarie fund arose through entitlements earned prior to cohabitation. I have taken this factor into account during the assessment of contributions. I make an adjustment in the wife's favour pursuant to the sub-section.
Subsection (g)
Upon separation, both parties left the former matrimonial home. The husband has returned to live with his parents while the wife and children live in a rented home unit. Both have suffered a drop in the standard of living enjoyed during the marriage. The husband does not have the privacy of his own home. The wife lives in a rented unit that she could not afford unless her income was supplemented by her pension. I make no adjustment pursuant to the sub-section.
Subsection (h) – (k)
I make no adjustment under the subsections.
Subsection (l)
The children will live primarily with the wife. Combined with her absence from the paid workforce on a full-time basis since K's birth, I am satisfied to the extent possible she wishes to continue her role as a parent. Her care of the children makes it reasonable that she limits her hours of employment to approximately coincide with their actual school hours once J starts school. Once or twice a week she may be able to work, as she does now as well as longer hours during the time the children will be cared for by the husband. To the extent not already addressed under s.75(2)(b) and (c) I make an adjustment under this sub-section in favour of the wife.
Subsection (m)
The husband boards with his parents. He pays a reasonable amount to them to do so. Otherwise there are no relevant financial circumstances arising as a consequence of the cohabitation. The wife and children live alone. I make no adjustment pursuant to the sub-section.
Subsection (n)
Both parties will receive a lump sum payment from the proceeds of the Bellambi sale. Potentially they will both have the opportunity to re-enter the property market albeit in a modest way. Both must borrow money to do so. The husband has a greater capacity to earn income and hence to raise a larger sum of money that he can reasonably expect to repay. The wife will have a greater capital sum but her borrowing capacity is limited by her lesser capacity to repay a loan. I make no adjustment under the subsection.
Subsection (na)
The husband has unreasonably taken steps to reduce his actual income. On his application, the administrative assessment of child support was reduced by about $60 per week. His counsel submitted that because he was paying significant child support, this would offset to a significant degree the adjustment that would otherwise be made in the wife's favour pursuant to s.75(2)(c). In Clauson's case, the Full Court said[20]:
“… in addition, it should not be forgotten that the payment of child support in no way compensates the custodial parent for the loss of career opportunity, lack of employment mobility and the restriction upon an independent lifestyle which the obligation to care for children usually entails …”
[20] at p 81,911
I do not accept that the submission made by the husband's counsel reflects the current law. I have some unease about the husband's commitment to pay child support at the level that should be paid. The wife may be able to object to the current assessment and achieve an uplift back to about $280 per week payable by the husband. Although he has taken steps to reduce his level of child support, the husband has not taken steps that substantially avoid a meaningful contribution to the children's support. I make no adjustment pursuant to the sub-section.
Subsection (o) and (p)
I make no adjustments under the sub-sections.
Having regard to all of the s.75(2) factors, I find it appropriate that there should be an adjustment in the wife's favour having regard to
sub-sections 75(2)(b), (c), (d), (f) and (l). The appropriate adjustment to make in the wife's favour is 20 per cent. This outcome reflects the cumulative outcome of the findings I have made pursuant to s.75(2). See Tomasetti[21]. Any lesser adjustment, given the modest asset pool, would be notional.
[21] (2000) FLC 93-023
Section79(2) — Is this a just and equitable outcome?
That the outcome of s.79(4) and s.75(2) has resulted in a distribution favourable to the wife 57 per cent, as compared to the husband 43 per cent, I am satisfied that it is just and equitable within the meaning of s.79(2). The reason for that is the s.79 exercise requires that I give proper weight to the wife's financial contributions and her contributions to the welfare of the family particularly in her primary parenting role. As well as her financial future having regard to her care of the children compared to the husband's capacity for full-time, well paid employment. His initial financial contribution was substantial and has real weight attached to it. Both parties worked to maintain and improve the homes that they lived in. The husband's initial contribution was greater than the wife’s was and his overall financial contributions exceeded hers. By comparison to her, he has skills and the opportunity to secure a reasonable financial future through full-time well paid employment. The husband will receive less than his initial contribution an outcome I have considered carefully. However when all the contributions and relevant s.75(2) factors are taken into account and weighted appropriately this outcome is just and equitable within the meaning of s.79(2).
The parties agree that they should each have the assets they currently have. During the proceedings both parties tendered a list of items of personal things that they wished to have back. Other than a photograph album that the wife says she does not have, both parties will be ordered to deliver up the items sought by the other. Other than personal attachment, there is no suggestion that the items have any real value.
The net assets to be distributed are $163,786.29. The wife will retain her shares, car, savings and her possessions. Thus she has assets worth $10,715.00. She does not have any liabilities. She is entitled to net assets worth $93,358.18. The husband has assets the net value of which is $13,890.35. He is entitled to $70,428.10. Thus, the proceeds of the sale of the former matrimonial home will be distributed $82,643.18 to the wife and $56,537.75 to the husband.
Spousal maintenance
The wife brings an application under s.74 and s.72 for the payment of spouse maintenance. The husband opposes her Application. He challenges both her need for it as well as his capacity to pay it. I have already made findings about the ramifications for the wife's capacity for employment as a consequence of her care of the children and do not repeat them. The wife has a gross income of $506.00 per week, made up of her part time work and child support. I must disregard her Centrelink payments. Her fixed weekly expenses are $32.00 tax, half of her actual rent at $125.00 and $10.00 to AGC. She has other average weekly expenses of $292.00. Her expenses are modest and reasonable. I accept that the child support is entirely expended meeting the children’s needs. These are average weekly expenses of $213.00 and $125.00 accommodation. She will receive $93,358.18 by way of property settlement. This is a modest sum and would be unreasonable to expect her to exhaust this sum meeting the shortfall of her necessary living expenses in circumstances where the husband may be able to contribute to her support from available income. If invested the funds will produce a modest return of approximately $29.00 per week gross. This assumes a 2% return. Thus she has established a need for spouse maintenance of $150.00 per week. Thus the wife I am satisfied that she has satisfied the threshold s.72 requirements.
The more significant issues are the husband's capacity to pay spousal maintenance and whether it is reasonable that he do so. I have already made findings about his income and his expenses. In both De Smeth[22] and Bryant[23] the Full Court has approved a broadbrush approach in child maintenance and child support cases. This approach can alleviate the difficulties faced by a Court making precise findings about the reasonableness of expenses, for example, asserted by an applicant or respondent in maintenance proceedings. There must, however, be proper evidence upon which the Court can make necessary findings. Because in his financial statement the husband did not complete the relevant portion attributable to his average weekly expenses, his counsel submitted that the Court would infer his “other fixed expenditure” is a reasonable sum. I accept that he has car and travel costs. Because he has regular contact to the children I am satisfied that he incurs expenses in relation to it. He must clothe himself. By reference to the figures identified by the wife, she incurs costs of about $150 for these items. I infer that the husband has equivalent expenses. Thus he has in excess of income over reasonable and necessary expenses of $267.55. This figure is derived from the findings made in paragraph 59 adding $150.00 as other expenses. It is also predicated on an earing capacity of $1,250.00.[24] The husband did not give any evidence about his intended use of the monies he will receive at the end of these proceedings. Until the breakdown of the marriage he had lived independently of his parents for many years. I infer that he is likely to wish to do so again. He will have sufficient money that will enable him to buy a modest home, albeit with a mortgage. Alternatively, he may invest the sum and obtain rented premises. Until he does so, his capacity to pay spousal maintenance is at least maintained. However, once the husband has purchased a home or obtained his own rented premises, his capacity to pay spousal maintenance is reduced. He would reasonably rent premises equivalent to those rented by the wife.
[22] (1992) 16 FLR 314, 320
[23] (1992) 16 FLR 314, 320
[24] paragraph 55
The issue then is whether it is reasonable that he do so. As a consequence of the s.79 orders, the wife will have the opportunity, as well, to obtain a home. She also will need to raise a mortgage to do so. The amount that she will receive by way of property adjustment is not sufficient that it would be reasonable for her to use capital to meet her daily living expenses. Ultimately, I am satisfied that the asset and income positions of the parties is such that once the husband is living independently or J has started school, whichever first occurs, the order for spouse maintenance should be discharged. Should either parties' circumstances change in a way that justifies a variation or discharge of the order, they can apply to do so. Any other outcome requires speculation of future events.
Contact relevant law
Residence, contact and specific issues orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to s.65E in that in determining the outcome the best interests of the child is the paramount consideration. That is the overriding principle.
Section 60B is important as it provides the context within which the relevant s.68F(2) factors are to be examined and ultimately weighed. The importance of s.60B factors varies from case to case. Where there are no countervailing factors, the s.60B principles may be decisive.
Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development.
In deciding the contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in s.68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. B and B: Family Law Reform Act (1997) FLC 92-755.
Section 68F(2) — Determining the children's best interests
K and J are fortunate children. That is because both parents are committed to giving their children the best childhood possible. Each readily acknowledges that the children need a relationship with both of them. This is because both recognise that the children love each of them and are dearly loved in return.
The parties agree that the children will live with the wife. This continues the arrangements that were established prior to separation and since then in the sense that the children are cared for by the parent who previously has been their prime care giver. Because the wife was the children’s prime care giver I am satisfied that theirs is a solid and secure relationship, the importance of which is fundamental to the children’s security and wellbeing.
The children’s relationship with their father is loving and strong. Subject only to the demands of his full time employment, the husband complemented the wife’s primary care of the children. When he was at home he was intimately involved in their care. When the wife worked weekends the husband had exclusive care of the children. As a consequence of his commitment to the children and active involvement both before and since separation, the children’s relationship with their father is also fundamental to their wellbeing. Theirs is a valuable relationship and the children’s best interests will be achieved only if they have regular contact to him. This is an important factor in my deliberations.
The parties agree that the children and their father should have alternate weekend, holiday and mid-week contact. Agreement in relation to mid-week contact is limited to the husband’s care of the children from after school until 7.00pm two evenings per week. Their disagreement focuses upon whether additional overnight contact, one evening each week, is desirable and necessary.
Thus, the husband’s proposal involves changing the children’s circumstances. The children will have less time with their mother, more time with their father and move more frequently between their parents’ homes. These children’s lives are busy. K is in Year 1 at U Primary School. She is doing well and it appears she is achieving all of her developmental milestones in accordance with her chronological age. J is 2. He attends family day care between 9.00am and 3.00pm each Wednesday, Thursday and Friday. K is cared for by J’s daycare mother before and after school, I infer, on the days that the wife works. The only variant is on the afternoons that the wife works overtime. On Wednesday and Friday the husband collects the children from school and daycare returning them to their mother at 7.30pm.
In early March this year the parties agreed to trial mid-week overnight contact. As usual, the husband collected the children on Wednesday afternoon. They then remained with him overnight and he returned them to school and their daycare mother the following morning. J was upset when the husband delivered him to day care. During the day the wife received a telephone call from the deputy principal. Because the wife believed that the children did not cope with this contact she has not agreed to additional mid-week overnight contact.
The husband’s shift work involves long shifts. If he works a night shift or overtime he is able to spend very little time with the children during mid-week contact. His usual day shift starts at 7.00am. I accept the wife’s evidence that the husband would need to get the children up at 6.00am so that he could return them to her before he left for work. This is one of the unsatisfactory aspects of the husband’s proposal. Another and more significant difficulty is that his work commitments mean that he is unable to exercise mid-week overnight contact on a fixed evening continually. Each four weeks his roster changes and the days upon which he is able to exercise this contact also change.
I accept the wife’s concern that this will result in a fundamentally disruptive arrangement for contact. It is highly likely that it will be confusing and unsettling to the children. It also means that each month the arrangements the wife needs to make change. As a parent with the substantial care of two young children in addition to working part time, the demands upon her are considerable. Changing the children’s arrangements as the husband proposes will make her capacity to organise her and the children’s arrangements unreasonably onerous.
Although both parties complain that dealing with the other concerning the children has been difficult, nonetheless they have managed to arrange regular and frequent contact by the children to the husband. They have agreed that the husband have regular telephone contact with the children. On occasion the parties have argued about the duration of the telephone calls and also about whether the husband could have additional contact or care for the children on short notice from the wife. These disagreements had significant prominence in the affidavit material. They did not achieve the same prominence during cross-examination. Objectively, the parties have achieved a sensible and regular contact arrangement that ensures the children see their father every few days. They both need to ensure that they maintain this positive focus and do not allow minor disagreements to undermine their capacity to cooperatively parent their children during the many years that lie ahead.
I am not satisfied that the orders proposed for additional mid-week overnight contact are orders that are in the best interests of these children. The proposed additional contact is highly likely to be destabilising and make the wife’s arrangements involved in caring for the children complicated and too onerous. When the children are considerably older and to a significant degree able to manage the logistical arrangements that need to be attended to when children move between two homes, such as school clothing, school commitments, extra curricular activities, they may be able to cope with overnight contact during the week even if it occurs on different nights. At this time of their lives they do not have the level of maturity nor life skills to cope with the changes proposed by the husband. The orders will ensure that the children have regular and frequent contact to their father, consistent with their ages and excellent relationship that they enjoy with him. The structure of contact will ensure that their relationship is nurtured without destabilising them.
I am satisfied that the orders I make are in the best interests of the children.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date: 26 November 2002
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