Kramer & Kramer

[2007] FamCA 1488

FAMILY COURT OF AUSTRALIA

KRAMER & KRAMER [2007] FamCA 1488

FAMILY LAW – CHILDREN – Parenting – Final orders – Undefended

FAMILY LAW - PROPERTY – Final orders – Undefended

Family Law Act 1975 (Cth)

HUSBAND: Mr Kramer

WIFE: Ms Kramer

FILE NUMBER: MLC 7378 of 2007

DATE DELIVERED: 26 November 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 26 November 2007

REPRESENTATION

SOLICITOR FOR THE HUSBAND: In Person

COUNSEL FOR THE WIFE: Mr. Mort

SOLICITOR FOR THE WIFE: McDonald Slater & Lay

Orders

(1)That the parties have equal shared parental responsibility for the children of the marriage J born … June, 2003 and L born … August, 2006.

(2)That J and L live with the wife.

(3)That the husband spend time and communicate with J and L as is agreed between the parties.

(4)That the funds held in trust for the parties by Messrs. Balfe and Webb, Solicitors, being the proceeds of sale of the former matrimonial home at …, D, be released to the wife forthwith for her sole use and benefit, the court noting that the funds in trust are approximately $37,792. 

(5)That save as otherwise specified in these orders and save for the purpose of enforcing any money due under these or any subsequent or prior orders :

(a)each party be solely entitled to the exclusion of the other to all other property including choses in action, motor vehicles and superannuation entitlements in the possession of such party as at the date of these orders;

(b)insurance policies remain the sole property of the owner named thereon;

(c) 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;  and

(d)any joint tenancy of the parties in any real and personal estate is hereby expressly severed.

(6)That the application filed by the wife on 29 June, 2007 be otherwise dismissed. 

(7) That a sealed copy of this order be sent by the court to the husband at …, S.

(8)That these proceedings be removed from the List of matters awaiting finalisation.

(9)That pursuant to s.62B and s.65DA(2), of the Family Law Act1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

(10)That the reasons for judgment this day be transcribed and that copies be made available to the parties.

(11)That pursuant to Rule 19.50 of the Family Law Rules2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7378 of 2007

MR KRAMER  

Husband

And

MS KRAMER

Wife

REASONS FOR JUDGMENT

1.On 29 June this year the wife filed an application in which she sought final parenting orders and final property orders.  The parties married in March 2002 and separated on 24 April 2007.  They have two boys; J is four and L is one.  In her application the wife sought that the parties have equal shared parental responsibility for J and L, that they live with her and spend time with their father, as agreed.  In relation to property the wife sought that the proceeds of sale of the former matrimonial home at D be paid to her and that otherwise each of the parties keep what he or she has. 

2.The matter came to a case assessment conference on 13 August 2007.  At that time the husband appeared in person, and the wife was legally represented.  An appointment was made for them to attend on a family consultant on 17 September to discuss matters relating to their children.  On that day they reached agreement that the children would live with their mother and have regular contact with their father.  The evidence is that, until recently, he saw them once or twice in each week.

3.The financial applications were referred to a conciliation conference on 29 October.  The husband failed to appear on that day.  He had been ordered to file a response and financial statement; he failed to do so.  At that time the application was referred into court for an undefended hearing.  Orders were made requiring the wife to set out the orders she would ultimately seek and for the husband to be advised of the adjourned date.  That occurred.  The husband has been called today.  He has failed to appear.  In those circumstances I am satisfied that the application should be heard on the basis of the evidence adduced by the wife.  A respondent who wishes to oppose the orders sought must file a response.  The husband having failed to do so, the case should proceed.  I am satisfied it is necessary to do justice between the parties, particularly having regard to the modest financial pool, and I am also satisfied that is in the best interests of the children.

Children

4.The children are living with the wife, pursuant to the agreement reached on 17 September.  The husband is assessed to pay child support of some $908 per month.  There are arrears of just under $2,000, amounting to some three months of child support.  The husband has sought no parenting orders.

5.The wife’s evidence is that after she took steps to enforce child support, the husband stopped seeing the children. That is most unfortunate.  Children generally benefit by having a meaningful relationship with two parents, provided, of course, that interaction with their parents is in their best interests.  So long as children are safe, contact with both parents is in their best interests and it may be detrimental to their emotional development to be deprived of that contact.  The Family Law Act1975 stresses the importance of a meaningful relationship with both parents; the orders sought by the wife make clear her understanding of the importance of this.  Regrettably, the court cannot force a parent to spend time with his or her children. 

6.I have no hesitation in finding that the children’s best interests will be served by remaining living with their mother.  On the evidence, I am satisfied she will encourage and foster a relationship with their father, if he is prepared to have that relationship.  Orders will allow this to occur.  The evidence does not support a finding that living with each of the parents on an equal basis would be in the children's best interests.  As the presumption of equal shared parental responsibility applies, the court must consider that option.  I have considered it and I am satisfied that it would not be in the children's best interests.  Nor would it be in their best interests to spend more time with their father than that which has been arranged by their mother.

Property

7.When the parties met, neither had assets of substance.  The father had nothing.  He was here from New Zealand, travelling on a British passport.  The wife’s family sponsored him to come to Australia, paying all immigration and residence visa expenses.  Her father obtained work for him and gave the parties a car.  The parties having no financial resources, the wife's parents organised the acquisition of a home in D.  They were registered as co-proprietors of the land.  Her parents paid 50 per cent of the mortgage payments and the rates; the parties were meant to pay the other 50 per cent of the mortgage payments and other expenses. Often, they had to get assistance from the wife's family to make those payments.  The parents paid for renovation of that property, including the share which should have been paid by the husband and wife.  The husband did assist with some manual work. 

8.Since the children's birth, the mother has been engaged in parenting and homemaking.  I am satisfied she has been the primary homemaker and parent.  The husband was employed, earning some $63,000 a year in 2006.  He left that employment earlier this year.  The evidence supports a finding he is probably in casual work, earning some $800 a week. 

9.In terms of assets, the parties have the balance of the proceeds of the D property, the parents having taken their 50 per cent of the nett balance.  The parties’ share is $37,792.  The husband has a new Ford XR6 turbo vehicle which cannot be valued by the wife;  the wife has a Ford vehicle, to which she attributes a value of some $3,000.  The husband has a CBA bank account.  While the wife does not know what is in it, she conceded it is probably a modest sum.  The parties had furniture and chattels, which have been divided. The husband took some; the wife retained the balance for herself and the children. 

10.In terms of superannuation, the wife has two accumulation funds.  One is with CARE and at June 2007 there was $11,635 in it.  The other is with AMP, of $6,460. The evidence is that the husband has three superannuation funds.  One, Cbus, held $12,379 as at 30 June 2006.  He has some money with a fund called CoInvest, but the wife has been unable to quantify that figure.  An Incolink account held a redundancy amount of $8,671 as at 15 January 2007.  I cannot say what that figure would be now.

11.Significant liabilities were left with the wife.  There is a CBA visa debt of some $20,000.  The evidence is that the debt relates to funds spent on renovation expenses, plus expenses of the husband.  The parties owe the wife's parents some $36,950.  A schedule to the wife's affidavit, exhibit RK-8, shows how that is reached.  Some $12,668 of it relates to the parties’ share of renovation costs.  The balance is made up of mortgage repayments made by the parents on the parties' behalf over some years, the cost of various cars provided to the family, and money expended on an eye specialist for the husband.  I do say that some of those items may not be taken into account as matrimonial debts.  I accept the wife's evidence that the husband acknowledged this indebtedness to her parents.  In any event I am satisfied that the legitimate debt to her parents would be over $30,000.

12.The husband came to the marriage with nothing.  He contributed financially, through some work.  The wife's parents put in very considerable sums, on her behalf.  She has been the significant homemaker and parent.  She is left with significant debts and as the balance of the funds in trust will not be sufficient to pay those debts, she will retain that liability.  She has superannuation which is no larger than that of the husband. 

13.In those circumstances I am satisfied that the orders proposed by the wife are just and equitable.  I add that no order made by me this day will affect the order of 29 October, 2007 which provides for the husband to pay the costs of the wife of $320.  Those costs are to be paid by 1 December 2007.  If there were any available funds I would order their payment from the husband’s share, but the ledger is in the red. 

I certify that the preceding 13 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Brown AM.

Associate

26 November 2007