Landon and Landon (No. 3)
[2009] FamCA 1300
•22 December 2009
FAMILY COURT OF AUSTRALIA
| LANDON & LANDON (NO. 3) | [2009] FamCA 1300 |
| FAMILY LAW – CHILDREN – whether the presumption of equal shared parental responsibility rebutted – ground of best interests of the children considered – issue of family violence including child sexual abuse – considerations in relation to the best interests of the children. FAMILY LAW – PROPERTY – ALTERATION OF PROPERTY INTERESTS INCLUDING THIRD PARTIES – whether the second and third respondents hold certain property interests in trust for husband and/or wife – issues of resulting trust; agreement between the parties; constructive trust – unconscionable conduct – whether findings be made in relation to notional property of the husband – relevant findings of contributions and s.75(2) matters – just and equitable orders. FAMILY LAW – CHILD SUPPORT – DEPARTURE – whether application “otherwise proper” |
| Family Law Act 1975, ss 60, 60B, 60CA, 60CC, 61DA, 65AA, 75, 90AE Evidence Act 1995, s 140 |
| Preece and Preece (1981) FLC 91-048 Calverley v Green (1984) 155 CLR 242 Muschinski v Dodds(1987-1998) 164 CLR 137 M v M(1988) FLC 91-979 Townsend and Townsend (1995) FLC 92-569 B and B, Family Law Reform Act 1995 (1997) FLC 92-755 Elsey and Elsey (1997) FLC 92-727 U v U (2002) FLC 93-112 Hickey & Anor and Attorney-General for the Commonwealth (2003) FLC 93-143 Johnson & Page (2007) FLC 93-344 |
| APPLICANT: | Ms Landon |
| FIRST RESPONDENT: | Mr Landon |
| SECOND AND THIRD RESPONDENTS: | Mr Such Ms Such |
| FILE NUMBER: | SYC | 7773 | of | 2007 |
| DATE DELIVERED: | 22 December 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | The Hon. Justice Rose |
| HEARING DATES: | 13 October 2008 28 – 29 May 2009 2 – 3 June 2009 6 July 2009 28 August 2009 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | I Serisier |
| SOLICITORS FOR THE APPLICANT: | Swaab Attorneys, Solicitors |
| COUNSEL FOR THE FIRST RESPONDENT: | J Cohen |
| COUNSEL FOR THE SECOND AND THIRD RESPONDENTS: | A Gruzman |
| SOLICITORS FOR THE SECOND AND THIRD RESPONDENTS: | Di Lizio & Associates, Solicitors |
Orders
Parenting orders
That J born … March 2001 and H born … January 2004 (“the children”) live with the wife.
That the wife have the sole parental responsibility for the following major long-term issues for the children:
(a) the children’s education (both current and future);
(b) the children’s religious and cultural upbringing;
(c) the children’s health;
(d) the children’s name; and
(e)changes to the children’s living arrangements that make it significantly more difficult for them to spend time with the parents.
PROVIDED that prior to the wife making a decision in relation to any of such major long-term issues she consult the husband for the purpose of her taking his views into account upon seven (7) days written notice subject to any emergency.
That the husband spend time with the children as agreed between the parties and failing agreement as follows:
During school term
(a)From the conclusion of school and/or pre-school each alternate Friday afternoon until 5.00 pm on the following Saturday with the husband to collect the children from their respective school and/or pre-school at the commencement of time that they are to spend with him with the husband to return the children to the wife or one of the maternal grandparents at the conclusion of such time at the car park of R Swimming Pool and the first of such periods shall commence on the first Friday in each new school term.
(b)From the conclusion of school and/or preschool each alternate Thursday with the husband to collect the children from their respective school and/or preschool at the commencement of time that they are to spend with him with the husband to return the children to their respective school and/or preschool at the commencement of the period that they are to spend at school and/or preschool, the first occasion to commence on the Thursday of the second week of each school term.
During school holiday periods at the conclusion of each school term
(c)For the periods of time referred to in Order 3(a) and (b) subject to such alternative or substituted periods as the parties may agree upon whether by email, text message or letter.
Other periods
(d)Such alternative or other periods of time that the parties may agree upon.
(e)That during the weekend containing Father's Day, in the event this is not already a weekend that the children are with the husband, from 5.00 pm Saturday to before school Monday, or 9.00 am Monday if it is a non school day.
That for the purpose of these Orders the school term is deemed to commence at 9.00 am on the first day of the school term and school holidays are deemed to commence at 9.00 am on the first day after the public school term ceases and changeovers shall occur at 5.00 pm on the day in the middle of the school holiday period.
That the husband may communicate with the children by telephone and/or webcam on Tuesday and Thursday between 6.00 pm and 7.00 pm and during that period the wife shall ensure that:
(a)her mobile phone is charged and switched on, and
(b)her computer is turned on and the webcam is available to be used.
That in the event Mother’s Day falls during any period that the children are spending time with the husband then that time shall be suspended and the wife shall spend time with the children from 5.00 pm Saturday to before school Monday, or 9.00 am Monday if it is a non school day.
That the wife may communicate with the children by telephone and/or webcam on one occasion each day between 6.00 pm and 7.00 pm and during that period the husband shall ensure that:
(a)his mobile phone is charged and switched on, and
(b)his computer is turned on and the webcam is available to be used.
That the wife shall authorise the principal of all pre-schools and schools attended by the children from time to time to furnish the husband upon his request and at his expense copies of all pre-school and school reports, notices, correspondence and school photographs in relation to the children.
That in the event of any or both of the children suffering a serious injury or illness whilst in the care of one of the parties then that party shall inform the other party as soon as possible of the details of such injury or illness and the name and address of any relevant medical practitioner or hospital concerned with the treatment of the children.
That unless there is an emergency when communication may take place by telephone, communication between the parties about matters concerning the child’s education, general health and requests to vary arrangements occur via email or by text message.
That each party be restrained from denigrating the other party or their family to, or in the presence or hearing of the child, or causing or permitting any other person to do so.
That the Manager Child Dispute Services in the Sydney Registry of the Family Court of Australia or her nominee shall give to the husband and/or wife such assistance as is reasonably requested in relation to compliance with and the carrying out of all or any of the parenting orders made this day.
That the husband personally supervise the two children at all times both or either of them is in a swimming pool until such time that an independent qualified swimming instructor certifies in writing to the husband and wife that each child is a competent swimmer who does not need adult supervision for safety reasons.
Property settlement orders
That the parties forthwith join in the sale of the property situated at and known as P property in the state of New South Wales, being the whole of the land in certificate of title folio identifier … (“the property”) by public auction to be conducted by such auctioneer as the parties may agree upon in writing or failing agreement as nominated by the President at the time of the Real Estate Institute of New South Wales at the reserve price of $390,000.00 or such other price as the parties may agree upon in writing, provided that should there not be an offer to purchase at such auction equal to or in excess of the reserve price, then the parties shall do all things necessary to sell the property at the best price reasonably obtainable by them.
That the parties instruct a legal practitioner to prepare the contract for sale of the property and otherwise to have the carriage of the sale on their behalf provided that should they fail to reach agreement in writing on or before 15 January 2010 in relation to the legal practitioner so to be retained, then they shall give appropriate instructions to the legal practitioner nominated by the President of the Law Society of New South Wales.
That the parties shall apply the proceeds of sale of the property in payment of the following:
(a) real estate commission and auction expenses;
(b) legal costs of sale;
(c)the amount required to discharge the mortgage over the property and the mortgage granted to the same mortgagee over the property at G of which the second and third respondents are the registered proprietors;
(d)payment of all amounts outstanding by way of liability of the husband and wife for payment of capital gains tax in relation to the sale of the properties at W and C in the state of New South Wales;
(e)an amount equal to 48.59% of the balance of the proceeds of sale to the wife;
(f)the remaining balance of the proceeds of sale to the husband;
Declare that the husband and wife are the beneficial owners of all items of personal property in his/her possession or control respectively.
Child support assessment departure proceedings
That the application of the wife for an order departing from the child support assessment in respect of each of the two children is dismissed.
Procedural orders
That subject to the Orders made this day, all outstanding applications are dismissed.
That all documents produced on subpoena may be returned to the person who produced the same.
That the proceedings be removed from the Active Pending Cases List.
IT IS NOTED that publication of this judgment under the pseudonym Landon & Landon is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC7773 of 2007
| MS LANDON |
Applicant
And
| MR LANDON |
First Respondent
And
| MR SUCH MS SUCH |
Second and Third Respondents
REASONS FOR JUDGMENT
Introduction
In these proceedings each of the applicant (for convenience referred to as “the wife”) and the first respondent (for convenience referred to as “the husband”) seek parenting and property settlement orders. In addition, a child support order was sought by the wife by way of departure from the child support assessment.
The husband by his amended points of claim being Exhibit 11 has sought an order that the second and third respondents (who are the maternal grandparents) transfer to him the whole of their right, title and interest in the property situate at and known as P (“the P property”).
Although Exhibit 11 does not specify the orders sought in those terms, nonetheless it is implicit from Exhibit 11 that such is the order being sought.
The relief sought by the husband pursuant to Exhibit 11 is on the basis of an oral agreement between the maternal grandparents and himself, alternatively estoppel by conduct, or otherwise he relies upon a constructive trust.
Pursuant to her points of defence dated 28 May 2009 the wife has sought a declaration “that the first respondent holds his one-third interest in the [P] property in trust for the wife and the husband as joint tenants”. Otherwise, the wife seeks that the husband’s claim be dismissed with costs. Counsel for the wife did not make any written or oral submission in support of that declaration. Indeed during the course of his oral submissions he stated that the wife sought orders in accordance with the minute of orders filed in Court, being Exhibit 6. Consequently, the application for the declaration so sought by the wife will be dismissed.
By their statement of defence filed 16 January 2009 the maternal grandparents sought an order that the husband’s claim be dismissed with costs. During the course of submissions made by counsel for the maternal grandparents he also submitted that relief should be granted in favour of his clients by way of “equitable accounting”.
The husband and wife cohabited for a period of seven years which commenced on their marriage which took place in May 1999 and continued until they separated on 13 May 2006. They have lived separate and apart from each other since that time.
The wife and J commenced to live with the maternal grandparents in August 2001. That continued until the present time including following the birth of H. However, until 13 May 2006 the husband and wife had not “separated” in the legal sense in that they continued to spend time with each other principally on weekends at the formal matrimonial home, being the P property.
In the absence of evidence or information to the contrary, the marriage continues to subsist as there has not been a divorce order.
The husband and wife have two children namely:
(a)J who is 8 years of age having been born in March 2001.
(b)H who is 5 years of age having been born in January 2004.
The two children have lived with the wife since the husband and wife separated. They have spent periods of time with the husband to which subsequent reference will be made.
The husband was unrepresented until the second day of the hearing namely, 29 May 2009. Thereafter he was represented by counsel who also made submissions on his behalf on 6 July 2009.
I granted leave to the husband to re-open his case. Further evidence was given by him and the wife on 28 August 2009. On that date the husband was again unrepresented.
The wife, and the maternal grandparents were represented by counsel throughout the hearing.
Historical background
The following are further brief relevant historical matters.
In 1990 the maternal grandparents purchased and became the registered proprietors of G (“the G property”). The evidence does not indicate whether they hold their interest as joint tenants or tenants in common. However, nothing turns on that question. The maternal grandparents remain the registered proprietors of the G property.
In 1996 the husband purchased K (“the K property”). The husband was the sole registered proprietor.
In June 1999 the husband and wife jointly purchased W (“the W property”). The husband and wife became the joint registered proprietors and the W property was subsequently leased.
In June 1999 the husband and wife purchased C (“the C Park property”). The husband and wife became the joint registered proprietors of that property.
In or about January 2001 the husband and maternal grandparents purchased the P property. The husband became the registered proprietor as to a one-third interest whilst the maternal grandparents jointly held the remaining two-thirds interest. The registered proprietors held their interests as tenants in common.
In 2003 the K property was sold.
In about September 2005 the W property was sold.
On 8 November 2007 the wife instituted the substantive proceedings by causing her application for final orders to be filed.
Subsequent court events principally dealt with directions and notations in relation to progress on various matters.
On 1 July 2008 Dr P, psychiatrist was appointed as the single child expert and requested to prepare and furnish a report in relation to relevant matters so far as the best interests of the two children were concerned.
On 13 October 2008 I conducted the first day of the Less Adversarial Trial (“LAT”) procedure in relation to the parenting proceedings. An injunction was granted restraining the parties from making any derogatory comments about the other, to or in the presence or hearing of the two children, or from discussing the proceedings or any aspect of them with both or either of the two children. In addition, interim parenting orders were made by consent in the following terms:
That in relation to the parenting proceedings on the respective applications of the applicant and first respondent orders are made by consent and until further order as follows:
(a)The two children of the marriage [J] born […] March 2001 and [H] born […] January 2004 spend time with the first respondent from 4.00pm to 7.00pm each Tuesday and Thursday the first of such time to commence on 14 October 2008.
(b)That upon the commencement of each period of time to be spent by the two children with the first respondent the two children are to be collected from the applicant by the first respondent outside [M] Police Station and the first respondent return the two children to the applicant at the conclusion of such time outside the [N] Police Station.
(c)The Court notes the applicant says that the two children should be collected from their home at the commencement of the time specified above and returned to their home at the conclusion of such time and that on the next occasion the matter is before the Court the applicant will seek to vary the order so that the two children are collected from and returned to their home.
(d)The Court notes the Undertaking of the first respondent made without admission that on the occasions the two children spend time with him that he will not show or expose the two children to pornography.
In addition, directions were made in relation to the property settlement proceedings including the requirement for the husband to file points of claim and for the wife and maternal grandparents to file points of defence.
On 26 November 2008 I varied one of the interim parenting orders made 13 October 2008 by specifying that the new place for change-over of care of the two children as between the husband and wife would be outside the G property. Directions were made.
On 18 December 2008 I made further directions in relation to the filing and service of points of claim and points of defence. I further varied the then current interim parenting orders by appointing the new place for change-over of the care of the two children as between the husband and wife to be “the entrance to [R Swimming Pool]”. In addition, the husband and wife were restrained from applying for passports for the two children. Ancillary orders were made. The application of the husband for interim parenting orders was adjourned for hearing at 10.00am on 9 January 2009. Further interim parenting orders were made in relation to time which may be spent by the two children in the care of the husband over the Christmas and school holiday period.
On 9 January 2009 further interim parenting orders were made. An order for costs was made against the husband. Directions were also made.
On 14 January 2009 Registrar Crawford noted that two Form 4 Child Abuse or Family Violence Notices had been filed. One by the wife alleging child sexual abuse by the husband, and the other notice by the husband alleging that the wife was not feeding the children properly and allowing one of them to “watch violent movies”.
On 28 January 2009 Judicial Registrar Johnston made an interim parenting order and an order for costs against the husband.
On 10 February 2009 Judicial Registrar Johnston made orders requiring the husband and wife to join in the sale of the C property and for the net proceeds of sale to be held by the wife’s solicitors in an interest-bearing controlled monies account on behalf of the husband and wife until further order. Ancillary orders were made.
On 23 February 2009 I made orders consolidating the substantive proceedings for hearing on 28 and 29 May and 2 June 2009. I noted:
“A.That the Husband informed the Court that the current arrangements are working well with respect to the current interim parenting orders.”
On 27 February 2009 I confirmed the dates for hearing upon being informed that Dr P was available to give evidence. Directions were made for the filing and service of affidavits.
In March 2009 the C property was sold.
THE PARENTING PROCEEDINGS
In accordance with conventional practice, I will determine the parenting proceedings prior to the determination of the property settlement and child support departure proceedings.
Whilst that approach is well-known to legal practitioners, I have referred to it for the benefit of the husband who is no longer legally represented.
I state that one principal reason for doing so is that the parenting orders which may ultimately be made represent a relevant matter to be taken into account in the property settlement proceedings.
Relevant legal principles pursuant to the family law act 1975 as amended (“the act”)
Section 60CA of the Act makes it clear that in deciding whether or not to make a parenting order in relation to a child:
“A Court must regard the best interests of the child as the paramount consideration.”
That provision is re-emphasised in s.65AA.
For the purpose of determining what is in the child’s best interests I am required to consider the matters in ss.60CC(2) and 60CC(3). In the course of doing so, I should also consider the matters in s.60B, which set out the Objects of the provisions of Part VII of the Act in relation to the children and the principles that underlie those Objects. In substance, they include the benefit to children of their parents having:
“a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; protection of children from physical or psychological harm as a result of being subjected to, or exposed to, abuse, neglect or family violence; ensuring that children receive adequate and proper parenting to assist in them achieving their full potential and ensuring parents fulfilling their duties and meeting their responsibilities concerning the care, welfare and development of their children.” {emphasis added}
The principles underlying those Objects, in summary, include:
(a)children having the right to know and be cared for by both parents;
(b)children having a right to spend time with and communicate with both parents and other significant persons on a regular basis;
(c)the joint sharing by parents of duties and responsibilities in relation to their children;
(d)the imperative for parties to agree about future parenting of children; and
(e)the children’s right to enjoy their culture including with others who share that culture.
It is important to note that s.60B(2) provides an important exception to the principles underlying the Objects to which I have referred. That exception is “when it is or would be contrary to a child’s best interests” {emphasis added}. To that extent, the recent legislative amendments to the Act in relation to children continue what has sometimes been described as “the over-arching principle”[1], namely that the best interests of a child is the paramount consideration and the finding of fact in that regard that is required for the purpose of making a parenting order.
[1] B and B, Family Law Reform Act 1995 (1997) FLC 92-755.
I am then required to evaluate all relevant issues and the facts in relation to the same in order to reach a conclusion, which is in the best interests of the two children, the subject of these proceedings.[2]
[2] B and B, ibid
Section 61DA(1) provides 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) provides that such presumption does not apply should one or other of the following grounds be established, namely:
“(1)Should there be “reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.”
(2)That the Court may exercise its discretion for the purpose of rebutting the presumption should it be satisfied ‘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’.”
Relevant matters pursuant to s.60CC
Section 60CC(1) states that for the purpose of “determining what is in the child’s best interests” I am required to consider what are described as “primary considerations” as well as “additional considerations”.[3] The exception is found in s.60(5) where an order is sought by consent. For obvious reasons, that is not relevant in these proceedings.
[3] Section 60CC(1)
The primary considerations are:
“(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”[4]
[4] Section 60CC(2)
For the purpose of the primary considerations, it is necessary to make findings of fact without which the conclusions which must be reached cannot be achieved. That will involve findings in relation to one or more of the discrete matters that are described as “additional considerations” in order to be the substratum of facts or factual platform for the purpose of “the primary considerations”. For example, findings in relation to the nature of the relationship that a child has with each parent and the parental capacity of each of the parties to provide for the needs of the child are surely in a given case necessary factual findings for the purpose of reaching a conclusion regarding the benefit to the child of having a meaningful relationship with both parents.
Similarly, the second primary consideration relating to the need to protect a child from physical or psychological harm will require findings on a historical basis of any family violence and consideration of family violence orders, each of which are discrete matters which are part and parcel of what are described as “additional considerations”.[5]
[5] Section 60CC(3)
Consequently, I propose to make findings of fact in relation to matters that are signposted in s.60CC(3) to the extent to which they are relevant in these proceedings. Those findings of fact will then be referred to by me in my conclusions in respect of both “primary considerations” and “additional considerations” for the purpose of the ultimate determination of the best interests of the two children and the parenting orders that will be made.
Views expressed by the two children and relevant factors
The evidence of each of the parties suggests that so far as the husband is concerned, the two children have expressed views directly or indirectly that they spend substantial periods of time with him.
On the other hand, the wife’s evidence is that the two children have resisted spending periods of time with the husband to varying degrees and in particular, a negative attitude has been demonstrated by J.
Exhibit 2 is the report of Dr P, child and family psychiatrist. Exhibit 2 records that J expressed firm views of continuing to live with the wife and with the maternal grandparents. His views also were that he did not want to live with the husband nor see him except perhaps for a short time. Dr P expressed the opinion that J appeared to be cautious and concerned, although otherwise had an open and friendly manner.
So far as H was concerned, Dr P recorded her view of wanting to continue to live with the wife and maternal grandmother. No specific view was noted in relation to the husband.
Whilst Dr P in his summary provided in Exhibit 2 considered that the two children “chose with whom to live, and with whom to have contact, out of the current established living relationship with some reflection of an awareness of wishing to maintain a favourable relationship with the parent with whom they current reside”, he did not provide his opinion as to the specific resistance by J to spending periods of time with the husband.
I accept the relevant parts of Exhibit 2 to which I have referred. To some extent, part of Exhibit 2 is consistent with the evidence of the wife in relation to the views expressed by J regarding spending periods of time with the husband. To that extent, I accept her evidence whilst accepting other evidence that J has spent periods of time with the husband without demonstrating resistance.
Consequently, I find that the two children’s views are to continue to live with the wife and the maternal grandparents and also a view to spend periods of time with the husband although J at times has shown by his actions that he has not wanted to do so. I further find that the evidence taken as a whole demonstrates that J’s views in relation to periods of time that he might spend with the husband are influenced by a combination of factors rather than one single factor. Those factors include the close relationship that he has with the wife and maternal grandparents, the anxiety and stress exhibited at times by the wife, the conflicted parental relationship and the husband’s at times lack of sensitivity to J’s feelings referred to subsequently in my findings with regard to the nature of the relationship of the two children with him and his capacity to provide for J’s emotional needs.
The nature of the relationship of the two children with each of the parties and other persons
There is no issue that the two children have a loving relationship and close attachment with the wife and the maternal grandparents.
Exhibit 2 Dr P concluded that “each child demonstrated the strongest attachment with their maternal grandmother”. The subsequent evidence of the parties and in particular that of the wife and maternal grandmother does not lead me to conclude that such attachment has changed to any appreciable extent.
Dr P in Exhibit 2 did not distinguish between the nature of the relationship that the two children have with each of the parties in that he concluded that “each child demonstrated a familiar relationship with each parent”.
I find that the nature of the relationship that the husband has with the two children is a complex one. Factors which are relevant to understanding that relationship are described in paragraph [59]. Additional matters include my findings in relation to the husband’s capacity to provide for the emotional needs of the two children subsequently set forth and the significant period of time that the husband absented himself from any care of the two children. In that regard, I accept the evidence of the wife. Nonetheless, there are also positive features to the relationship the two children have with the husband which highlights the complexity of the relationship between them.
The willingness and ability of each of the two children’s parents to facilitate and encourage a close and continuing relationship between themselves and the other parent
There is abundant evidence to support the conclusion expressed by Dr P in Exhibit 2 that “neither parent trusts the other”.
While each of the husband and wife seeks orders which permit regular periods of time to be spent by the two children with the other and to that extent is positive so far as this particular issue is concerned, nonetheless it is apparent from their words and actions that neither is committed to “encourage a close and continuing relationship”, being an essential element in this particular issue.
The husband and wife have poor communication in relation to matters affecting the two children. That is due to deep distrust and historical issues between them. The difficulties in that regard have been exacerbated by what on the evidence I find to be the husband’s false allegations of the wife having committed adultery and his disparaging remarks in relation to the wife’s adherence to the Church of the Living God which he himself was a member for a number of years. In addition, the email dated 22 March 2009 which the husband sent to the wife was inexcusably insulting and demeaning. I do not accept his alleged apology and contrition in his affidavit sworn 17 May 2009 due to the considerable period of time that passed between the sending of the email and that affidavit, the affidavit being a document which he knew would be read for the hearing due to commence shortly thereafter and the lack of any other evidence to suggest that such apology and contrition was indeed genuine and sincere not motivated by belatedly seeking to make a good impression upon the Court.
The likely effect of any changes in the two children’s circumstances, including the likely effect of any separation from either parent or other child or person with whom the two children have been living
The principal change in the circumstances of the two children are postulated in the orders sought by the husband. He had sought orders that the two children principally live with him and then subsequently his proposal was that they live with each of the husband and wife on a week about basis.
On either approach, the likely effect of such changes to the current circumstances in which they primarily live with the wife and the maternal grandparents includes a number of matters.
Firstly, the two children will obviously spend much greater periods of time in the care of the husband than has been the situation since August 2001 in the case of J and for all of her life so far as H is concerned. The two children have been primarily cared for by the wife assisted by the maternal grandparents and in particular the maternal grandmother.
Consequently, the two children would face the need to adapt to substantial changes in their lives. Those changes include no longer having the primary care of the wife and the maternal grandmother in particular, change of accommodation, and changes to the periods of time that they would return to the care of the wife and maternal grandparents.
On the evidence of the wife, which I accept, the two children have been significantly resistant at times to spending any period with the husband.
Dr P expressed the opinions in Exhibit 2 that each of the husband and wife are in effect vulnerable in terms of aspects of personality and functioning. The significant difference is that the wife is supported in her parenting by the maternal grandmother. The husband does not have such support. No evidence was given by the paternal grandmother. It is not clear on the evidence the nature and depth of the relationship that she has with the two children, nor the extent and frequency of the parenting assistance that she can provide to the husband in the event of the two children living with him.
Exhibit 2 sets out serious qualifications that Dr P expresses in relation to the care that the husband may offer to the two children in terms of periods of time with him. Whilst he contemplates that there be “ordinary and unsupervised contact” he does emphasise the obvious, namely, the need for the husband to establish his relationship with the two children “given his historical lack of involvement with them”.
The two children are still very young. I am not satisfied on the balance of probabilities that the likely effect of significant changes in their circumstances will be able to be adjusted to by them in a positive way free from anxiety, stress or other emotional trauma.
The practical difficulty and expense of the two children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the two children’s right to maintain personal relations and direct contact with both parents on a regular basis
The only matter that arises of relevance is the conflicted parental relationship which has had the result that communication between the husband and wife has been poor, with consequential problems regarding implementing practical arrangements with flexibility and sensitivity without the need to seek interim parenting orders.
The capacity of the parties and any other person to provide for the needs of the two children including emotional and intellectual needs
The wife and maternal grandparents
The wife and the two children live with the maternal grandparents.
The evidence is that they live in the home of the maternal grandparents which has the appropriate features and facilities. There is no evidence which suggests that the home is anything other than appropriate for the two children and I find accordingly.
The wife and the maternal grandparents, and in particular the maternal grandmother, attend to the full range of domestic work in the home. They also ensure that the two children are able to be taken to and from school and cared for after school. These matters are not in controversy. I accept the evidence of the wife and maternal grandparents.
There is nothing that emerges from Exhibit 2 or Dr P’s oral evidence which raises concerns in relation to the capacity of the wife and maternal grandparents to provide for the physical needs of the two children. I accept Dr P’s evidence.
I find that the wife and maternal grandparents have the capacity to provide for the physical needs of the two children.
The husband alleges that the wife and maternal grandparents lack the capacity to provide for the emotional needs of the two children in that the wife, with the implicit support of the maternal grandparents, has been obstructive in arrangements otherwise made for the two children to spend periods of time with the husband. The husband says that they have raised false allegations against him of inappropriate behaviour with the two children and that the maternal grandfather has been intimidating towards the two children. In addition, the husband contends that the membership and following of their Christian religion with the Church of the Living God is contrary to the two children’s emotional needs.
Further, the husband claims that whilst the parties were cohabiting the wife permitted the two children to watch “inappropriate movies”, principally which had some sexually provocative scenes and otherwise violence.
There was little, if any, cross-examination of the wife, or the maternal grandparents in relation to the husband’s claims summarised above. There is an absence of any other evidence including that in Exhibit 2 from which I can infer that there is additional material to be considered in relation to those matters other than the issue raised by the husband of the wife allegedly not arranging with the two children for change-over on 19 July 2009. I have subsequently made findings in that regard.
Accordingly, I am not satisfied that the claims of the husband have been substantiated.
Exhibit 2 raises matters of concern in relation to the capacity of the wife to provide for the emotional needs of the two children, as well as the capacity of the husband to which subsequent reference will be made.
Dr P expressed the opinion in Exhibit 2 that the wife “demonstrates emotional difficulty”. Dr P considered that “there is a fragility in the functioning of [the wife]”. Dr P also considered that the wife demonstrated to him “a fragile personality with borderline functioning”.
However, Dr P concluded that on the proviso that the wife “continues to be supported by the maternal grandmother there is not the suggestion that her care of the children is especially detrimental”.
Those opinions in Exhibit 2 were not departed from in the course of oral evidence given by Dr P.
It is obvious that Dr P considered the maternal grandmother is a positive force for the good so far as the wife’s parenting of the two children is concerned, which implicitly reflects well upon the maternal grandmother’s relationship with the two children.
So far as Dr P was concerned, there is no adverse feature relevant to this subject in relation to each of the maternal grandparents, other than having “a self-absorbed perspective” which appears to relate to the conflictual relationship between the wife and husband, as is apparent from other material contained in Exhibit 2.
Accordingly, I find the wife and maternal grandparents have the capacity to provide for the emotional needs of the two children.
No issue was raised in relation to the capacity of the wife and maternal grandparents to provide for the intellectual needs of the two children. I find that they do have that capacity.
The husband
No issue was raised in relation to the husband’s capacity to provide for the physical needs of the two children except in relation to the allegations of family violence represented by child sexual abuse of H, the issue of whether the husband represents an unacceptable risk of such abuse occurring and the level of child support provided by him.
The issues of child sexual abuse and “unacceptable risk” are the subject of subsequent findings in this judgment.
The unchallenged evidence of the wife is that the husband paid child support totalling $20,262.64 for the period 1 September 2006 to 24 February 2009. That represents $675.40 per month for the two children. The calculation of the annual amounts received demonstrates considerable variance in that for the period 1 January 2009 to 7 May 2009 the amount received was $355.29 for the two children. Whilst the husband has been unemployed for that period, it nonetheless indicates a significantly limited capacity on his part to provide for the financial support of the two children and as a consequence their physical needs. Indeed, Exhibit 15 being the child support assessment dated 13 May 2009 provides for the husband’s liability for child support for the two children to be $121.28 per week. However, that is based on the husband’s 2008 taxable income, reflecting his then employment. Realistically, his income is now far less as he is on unemployment benefits. Consequently, the husband’s current capacity to provide child support is minimal.
In addition, an issue is raised in the wife’s case of the husband endangering the safety of the two children by not supervising them whilst in a swimming pool.
The wife alleges that on 16 February 2008 the parties and the two children met at a public swimming pool and went inside. Subsequently, whilst the husband was holding H in the pool, the wife went to the ladies change room to change into her swimming costume. Whilst the wife was there, the husband entered and asked the wife where H was as he was unable to find her. The wife responded that he had been holding the child. The parties commenced arguing. The wife ran outside to look for H and found her in the shallow area of the swimming pool but apparently walking towards the deeper end. H at the time could not swim. The husband then entered the swimming pool and picked H up.
The wife’s further evidence is that the following day a friend asked where she had been the previous day as she was concerned about the safety of H in the swimming pool as H was moving towards the friend’s son and appeared to be “going under the water”. The wife then took H out of the swimming pool. The husband was supposed to be supervising H at the time.
The husband’s primary affidavit was sworn and filed on 18 May 2009. Whilst the husband refers to the evidence of the wife in relation to a number of allegations made against him as set out in her affidavit sworn 7 May 2009 and filed 11 May 2009 and inferentially served prior to the husband’s affidavit, the husband does not provide any evidence in his affidavit in relation to the swimming pool incident. The wife was not cross-examined in relation to this matter either by the husband or his counsel.
In Exhibit 2, Dr P apparently had insufficient information in relation to the swimming pool incident earlier referred, as that incident together with a separate matter arising out the parties and the two children being at McDonalds apparently left Dr P “not clear as to what are the concerns”. Dr P’s bemusement is understandable given that the details of the swimming pool incident are contained in the wife’s affidavit which was sworn and filed many months subsequent to Dr P’s interviews with the husband and wife.
I accept the evidence of the wife in relation to the swimming pool incident. The wife’s evidence was plausible, detailed and not challenged. I make findings accordingly.
The wife raises a number of concerns in relation to the husband’s alleged lack of appropriate capacity to provide for the emotional needs of the two children.
The wife contends that after she commenced living with the maternal grandparents in their home, after the birth of J and implicitly at times prior to the birth of H, the husband stated to the wife on many occasions that he did not want her to bring J with her when she visited him on weekends as “it is a waste of my time”. The husband allegedly informed the wife that he would tell her when “I have the desire to see [J]”.
The wife further claims that shortly prior to the birth of H and whilst she was living with J and the maternal grandparents, the wife telephoned the husband around midnight and asked him to take her to the hospital as her waters had broken. The husband allegedly responded that she should make arrangements for an ambulance to take her to the hospital. The wife then went alone in an ambulance to the hospital and the husband subsequently met her there. How much later was not specified.
The wife further contends that there was a period of about five months when she neither saw nor heard from the husband after she had commenced living with the maternal grandparents. The husband did not contact either the wife or the two children during that five month period.
The wife further claims that during the period from the commencement of her living with the maternal grandparents until April 2006, the husband never made any real attempts to spend periods of time with the two children and only attended to birthday celebrations for them. The regular periods of time that the husband has spent with the two children commenced following the interim orders made on 13 October 2008.
The wife alleges that during cohabitation the husband had different types of pornographic material in the home including magazines left in a spare room.
In addition, the wife claims that the husband asked her to pose for him partly naked, which she did. The wife denies that such photographs, which remained in the possession of the husband, were taken by another man.
The husband in his primary affidavit denied having any interest in child pornography. He alleges that the husband and wife watched “adult DVDs” together and that the wife, at one point, purchased a book on the Kama Sutra which was later discarded. The husband’s affidavit did not deal with other specific allegations made by the wife in relation to pornographic material in which the husband had an interest.
Dr P outlines the allegations and counter-allegations made by the wife and husband in relation to pornographic material in the home. Dr P did not express any conclusions in that regard, which is not surprising given that he was not in a position to carry out a forensic investigation.
Whilst the husband’s affidavit did not respond to the allegations made by the wife, nonetheless he would undoubtedly have been cross-examined about this matter due to the potential for such material to be still in the husband’s home and not in accordance with the interests of two small children to view it. However, neither the husband nor the wife was cross-examined in relation to the allegations made by each against the other. I am not satisfied on the balance of probabilities that the allegations have been established.
With regard to the husband’s mental state, Dr P provided opinions of concern in Exhibit 2. Dr P stated in relation to the husband that “he expressed no thought or understanding about any contribution he may have made to his difficulties within his relationship with [the wife] and demonstrated a drivenness to establish her disturbed functioning”. Dr P concluded in relation to the husband that:
“[The husband] also gives his history from a self-absorbed perspective. Within his history and presentation he demonstrates an incapacity to be able to see life from the other person’s perspective.”
Dr P also concluded that the husband was a person “with a fragile personality functioning with compulsive and obssessional traits”. Dr P opined that the husband, as with the wife, implicitly has a qualified capacity to provide for the emotional needs of the two children due to the husband’s “emotional difficulty” which he had earlier described in more detail, to which I have made previous reference.
By his Application in a Case filed 23 July 2009, the husband sought leave to file a contravention application; interim parenting orders; and costs. The effect of the application was to re-open the husband’s case.
In support of the husband’s application, he relied upon two affidavits sworn by him on 20 July 2009 and 21 August 2009 filed 23 July 2009 and 21 August 2009 respectively.
In those affidavits the husband alleges that the wife contravened the interim parenting orders made 18 December 2008 in that she did not arrive with the two children at the R Swimming Pool “car park/foyer entrance at [R]”. The husband claims that he waited for 25 minutes and as there was no appearance he then left. The husband further states that on 18 July 2009 he had sent a reminder email to the wife in relation to the following days expected change-over and care of the two children. The husband stated that subsequent to the non-appearance by the wife with the two children on 19 July 2009, he attended the police station and reported the matter.
Each of the two affidavits of the husband also contain allegations of past contraventions in December 2007 and at various times in 2008 and in 2009 prior to the continuation of the substantive hearing which occurred on 28 and 29 May, 2 and 3 June and 6 July 2009 and concluded on the last of those days with submissions after the evidence had been completed. Consequently, I have not taken into account any of the material set forth in those affidavits prior to the evidence given on 28 May 2009 as the husband had ample opportunity to adduce evidence of those matters had he wished to do so. Indeed, for most of the days of that hearing the husband was represented by counsel. No application had been made to adduce further evidence in relation to the parenting proceedings.
On 28 August 2009, I granted leave to the husband to re-open his case. I read the relevant parts of the husband’s affidavits to which I have referred. Oral evidence was given by both the husband and wife, followed by submissions. Judgment was then reserved. I informed the parties that delivery of judgment would be delayed due to my leave throughout most of September and other subsequent pressing court commitments.
The wife swore an affidavit on 17 August 2009 filed 18 August 2009 in relation to events on 18 July 2009 as well as 19 July 2009 being the dates on which change-over of care of the two children from the wife to the husband at R Swimming Pool was due to take place.
The affidavit evidence of the wife was that J in particular was very resistant to the commitment of change-over of care due to take place.
The wife’s affidavit evidence was that on 19 July 2009 there was further resistance from the two children to spend time with the husband. She nonetheless drove them to the R Swimming Pool and arrived there at 8.50am. The wife stated that she parked her car with the two children in the swimming pool car park. J continued to be upset. H also allegedly implored the wife not to force them to go with the husband. The wife stated that she saw the husband park his motor vehicle on the road near the car park. The wife and husband then had a discussion during which the husband told the wife that “you have to make them come” and that she replied “I will not force them – I cannot do that [name]”. The husband then allegedly answered:
“You are contravening the court order. Fine. [Name] play games if that’s what you want. I will see you in court.”
The wife returned to her motor vehicle and drove home with the two children.
The wife further alleges that about 11.00am on 19 July 2009 the husband telephoned her and asked to speak to the two children. That conversation then took place. The wife had the telephone on loud speaker and the following conversation is alleged to have occurred:
“[The husband] said to [J]: ‘[J] you know this part of the school holidays you are to spend time with me? Why don’t you want to come with me?’
[J] said:‘I don’t want to come with you I want to stay with my mum.’
[The husband] said to [J]: ‘Do you want me to call the police for them to come and take you and bring you to me?’
[J] said: ‘No.’
[J] began crying and could not speak anymore.
[The husband] then said: ‘Give the phone to [H].’
[The husband] said to [H]: ‘What are you doing now [H]?’
[H] said: ‘I am playing.’
[The husband] said to [H]: ‘Do you want to come to daddy?’
[H] said: ‘No I want to stay with my mum.’
[The husband] said: ‘Ok’ and hung up the phone.’”
The wife contends that she was informed by the maternal grandparents that on 20 July 2009 two Australian Federal Police officers attended their home and spoke to the two children. Implicitly, a concern had been raised with them by the husband that there was something wrong with them. The AFP officers apparently indicated to the maternal grandparents they would call the husband and inform him that the two children were fine.
The wife alleges that subsequently on 20 July 2009 the two children asked the wife if she knew the police had come to the home that day. I accept the wife’s evidence previously described as she impressed me as a sincere, truthful witness in contrast to the husband. I find accordingly.
The wife further stated that the husband did not see the two children between 19 July 2009 to 29 July 2009 but then saw them on 30 July 2009 being during the first week of the new school term.
The affidavit of the wife annexes copies of emails passing between the husband and wife subsequent to 19 July 2009. Most of those emails are constructive in terms of the needs of the two children.
I find that the husband has a limited capacity to provide for the emotional needs of the two children due to his failure to provide them with the reassurance and confidence of being closely supervised by him at all times whilst they are in or around the swimming pool, as well as his inappropriate threat to J, a small child, of possibly calling the police as referred to in paragraph [123]. In addition, I also take into account and give weight to the expert evidence of Dr P, regarding the husband’s self-absorbed perspective. I also accept the unchallenged evidence of the wife regarding the husband inappropriately teaching or influencing both or either of the children to use foul language, regardless of the context and that as a result, it represents his lack of insight and sensitivity to the needs of the two small children.
The parental attitude of the husband and wife
Each of the husband and wife have an appropriate parental attitude to the two children, subject to the findings I have made in relation to their respective capacities to provide for the needs of the two children.
Family violence and any family violence orders
The wife contends that upon collecting the two children from the husband on 22 December 2008 the following conversation “or words to their effect” occurred between them:
“My son [J] said to me: ‘Mumma, I saw [H] in bed with Daddy and Daddy was naked.’
I said to [H]: ‘Is that true [H]?’
[H] said to me: ‘Yes, I slept with Daddy in his bed on the weekend and he was naked. I don’t like it when Daddy kissed me on the lips.’”
In the husband’s subsequent affidavit sworn 17 May 2009, whilst he responded to a number of the wife’s allegations there does not appear to be any response to the evidence of the wife referred to in the last paragraph. Rather, the husband makes allegations of the wife having kissed J’s penis and H’s vagina during nappy change.
The husband cross-examined the wife. The husband was unrepresented. The husband at various times in the proceedings including at previous mentions and hearings for applications for interim orders appeared as an above-average intelligent and educated man. The husband cross-examined the wife in relation to various matters. The husband did not cross-examine the wife in relation to the evidence referred to in paragraph [130].
The husband was subsequently represented by counsel.
On the application of counsel for the husband I permitted the wife to be recalled for further cross-examination. The wife did not depart from her affidavit evidence referred to in paragraph 114. The wife stated that because of the husband allegedly being naked in bed with h she did not feel comfortable with the child being in the husband’s care. However, she accepted that “the law required her to hand over the kids” to the husband. The wife stated that the prospect scared her.
The husband was cross-examined by counsel for the wife. He denied all of the allegations referred to in paragraph 114. He further stated that H does not sleep in bed with him. He did say that the two children play together and sometimes fall asleep on the same bed. It was implicit in his evidence that he was not referring to the bed occupied by him.
Exhibit 2 which reflects interviews with the parties prior to the wife’s evidence of the conversation with the two children on 22 December 2008 to which earlier reference has been made contains Dr P’s conclusions that “there was nothing in this assessment which would suggest that residency not be continued” referring to the two children living with the wife and the maternal grandparents.
He also concluded that “there was nothing in this assessment that would suggest that [the husband] is not capable of, and should not have, ordinary, contact parent involvement and contact, with both children without the need of supervision”.
Dr P further expressed the opinion that his assessment “did not support any of the allegations of potential physical harm”. Dr P appears to have expressed that assessment in Exhibit 2 in relation to each of the wife and husband.
Dr P’s oral evidence did not advance the issue of possible child sexual abuse any further.
With regard to substantial factual issues in relation to whether or not the husband sexually abused the child, or if not, whether there is an unacceptable risk of such abuse being perpetrated by the husband, the High Court has held in M v M that in reference to tests for defining risk:
“The courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child of parental access. To achieve a proper balance, the test is best expressed that a court would not grant custody or access to a parent if that custody or access will expose the child to an unacceptable risk of sexual abuse.”[6]
[6] (1988) FLC 91-979 at 77,081
The allegation made by the wife of child sexual abuse is a very serious one from the point of view of the child, as well as the husband and wife and of course members of their extended families and the independent children’s lawyer. The civil standard of proof applies, namely the court being required to be satisfied on the balance of probabilities that the facts alleged have been established. However, given the gravity of the allegations, I am required to be cautious in being satisfied that the civil standard of proof has been established in view of s.140(2)(a)-(c) of the Evidence Act 1996 (Cth).[7]
[7] Johnson & Page (2007) FLC 93-344 at 81,891
I am not satisfied on the balance of probabilities that the allegations of child sexual abuse or unacceptable risk of that occurring so far as the husband is concerned have been established in accordance with the balance of probabilities bearing in mind the caution that I must exercise for the purpose of being so satisfied consistent with s.140 of the Evidence Act.[8] My reasons are that the evidence of the wife, which I do not doubt is sincere and genuine, motivated only by her concern for the safety of H, may be a matter of interpretation. The cross-examination of each of the parties did not demonstrate any departure from the affidavit evidence. Exhibit 6, being the minute of orders sought by the wife did not seek any order that the time that the husband may spend with the two children should be supervised.
[8] Ibid.
I have also taken into account, in a general way, the husband’s expenditure of funds on the services of prostitutes being funds which otherwise have been available for distribution between the husband and wife and which may well have contributed to the increase in the debit balance of the mortgagee loan account to which earlier reference has been made.
Conclusion
I have made findings that the net property of the husband and wife, excluding superannuation entitlements, is $447,351.29. I have previously assessed the contributions of the husband and wife to that net property on a global basis as being 60% in favour of the husband and 40% in favour of the wife. There was no submission made that I should assess contributions in respect of the net property or any part of it on an asset by asset basis.
I have also determined that there should be an adjustment in favour of the wife of 10% of the net property to which I have referred due to the weight given to relevant matters pursuant to the provisions of s.75(2) which results in the husband and wife sharing equally their net property, excluding superannuation entitlements.
I find that each of the husband and wife had made contributions to their respective superannuation entitlements. The value of their interest both at marriage and at the hearing are relatively modest. Due to the net property of $447,351.29 also representing relatively low property to be divided between them, I have concluded that it is just and equitable for them each to retain their superannuation entitlements without the amounts involved being calculated so as to provide an adjustment in favour of either of them. Indeed, no such submission was made.
I am satisfied that property settlement orders that reflect an equal division of net property of $447,351.29 is indeed just and equitable, particularly having regard to the practical implications of such division being a matter that falls for consideration as emphasised by the Full Court.[19]
[19] Preece and Preece (1981) FLC 91-048 at 76,404; Elsey and Elsey (1997) FLC 92-727 at 83,799.
As is apparent from the table that follows of net property that each of the parties will receive and/or retain, they will each of have funds at their disposal. The notional property assigned to the husband, consistent with previous findings, will also be included as described.
The lump sum that the wife and the husband are each entitled to receive as part of the calculation of an equal division amounting to $223,675.50 will of course have to be derived from the net proceeds of sale of the P property. In order to ensure that neither the husband nor the wife suffer an injustice due to changes in the market so far as the value of that property is concerned, I will provide in the orders for that lump sum to be reflected as a percentage of the net proceeds of sale. The percentage so far as the wife is concerned, will be 48.59% ($116,616.00 ÷ $240,000.00). The percentage to be accorded to the husband will be 51.40% ($123,383.00 ÷ $240,000.00).
Each of the parties has an outstanding liability for Capital Gains Tax. The orders will require those amounts to be paid from the sale proceeds of the P property.
I will also make an order for the sale to be conducted on behalf of the husband and wife by a solicitor agreed upon between them or failing agreement within a specified time, the nominee of the President of the Law Society of New South Wales.
In order to avoid any suggestion of anything other than obtaining market price of the P property in a transparent fashion, the order will be for sale by public auction.
Given that I have made a determination that the interest held by the maternal grandparents in the P property is held in trust for the husband and wife and in view of their ongoing personal liability pursuant to the mortgage, not only granted over the P property but also their G property, it is in their interest that they have a formal participation in the sale of the P property and can ensure that it progresses notwithstanding any disagreement between the husband and wife. However, consistent with my conclusion that they hold their interest in trust for the husband and wife, the net proceeds of sale will be apportioned solely between the husband and wife.
Consideration of the provisions of s.90AE do not arise in view of the conclusions reached in relation to the maternal grandparents holding their interest in the P property in trust for the husband and wife.
The table to which I have earlier referred is as follows:
(a)The wife to receive/retain the following:
Assets Controlled monies account $110,682.67 Westpac savings 279.26 Westpac maxi direct 19.53 Westpac bonus saver 613.64 1997 Toyota Corolla 3,000.00 Lump sum 116,616.21 231,423.50 Liabilities Credit cards $1,300.00 Capital Gains Tax 6,448.00 7,748.00 Balance $223,675.50
(b) The husband to receive/retain the following:
Assets Furniture and contents $1,000.00 Australian Defence Credit Union 319.00 NA account 60.00 Monies paid to sister 33,000.00 Monies paid to sister (post-separation) 10,700.00 Monies withdrawn from STG account 24,000.00 Termination payment 9,661.00 Proceeds of sale – Tarago motor vehicle 25,000.00 Honda motor vehicle 3,000.00 Lump sum 123,383.00 230,123.00 Liabilities Capital Gains Tax $6,448.00 6,448.00 Balance $223,675.00
Child support departure proceedings
This application may be determined on a pragmatic basis for the following reasons.
Accepting prima facie that one or more of the grounds for departure has been made out, as counsel for the wife correctly pointed out in his written submissions, I must be satisfied that a departure from the child support assessment is “otherwise proper”. I am not satisfied that such statutory requirement has been made out.
The facts are that the husband is unemployed and has been unemployed for a considerable period of time. The husband’s overall financial circumstances are modest. There is an absence of evidence of the likelihood of him being re-employed in the near future, let alone the position in which the husband may obtain re-employment or the range of income that he may earn. He does not have the current capacity to pay the amount sought.
Whilst I accept that a liable parent cannot simply embark upon a course of action to reduce his financial circumstances so as to avoid his primary duty to maintain the two children, there is no evidence before me that the husband did embark upon such action which would lead to the appropriate findings of fact.
Consequently, it would be futile to make an order for departure as sought which could not be enforced. Such an approach would be the antithesis of “otherwise proper”.
Therefore, the application for a departure from the child support assessment will be dismissed.
I certify that the preceding three hundred and twenty nine (329) paragraphs are a true copy of the reasons for judgment of the Hon. Justice Rose
Associate:
Date: 22 December 2009
Key Legal Topics
Areas of Law
-
Family Law
-
Equity & Trusts
Legal Concepts
-
Constructive Trust
-
Res Judicata
-
Remedies
-
Costs
-
Fiduciary Duty
-
Procedural Fairness
0
1
2