M and M
[2001] FMCAfam 329
•21 December 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M & M | [2001] FMCA fam 329 |
| DISSOLUTION OF MARRIAGE – Inadequate maintenance for children – whether proper arrangements in circumstances for welfare of children – COSTS – Refusal to award costs where consequence may be to undermine benefit of confidential counselling in relation to welfare of the children – Family Law Act 1975 s.55A(1)(b)(i). |
In the Marriage of Opperman (1978) 4 FamLR 135 at 152
In the Marriage of Gillen (1973) 7 SASR 569
| Applicant: | S D M |
| Respondent: | S N M |
| File No: | ZM 8482 of 2001 |
| Delivered on: | 21 December 2001 |
| Delivered at: | Melbourne |
| Hearing Date: | 21 December 2001 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Meehan |
| Solicitors for the Applicant: | Novatsis and Associates |
| Respondent appeared on her own behalf. |
ORDERS
Upon the pronouncement of the decree nisi of dissolution of marriage it is directed that
The parties attend confidential counselling at a time, place and with a counsellor to be nominated by the Coordinator of Primary Dispute Resolution of the Federal Magistrates Court of Australia.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
ZM 8482 of 2001
| S D M |
Applicant
And
| S N M |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by S D M (“the husband”) for dissolution of marriage. The application which has been filed on the 15th day of October 2001 seeks dissolution of a marriage to S N M (“the wife”). The parties were married on the 17th day of October 1987. They separated in or about May or June of 1994. There is no dispute that since that date, the parties have lived separately and apart.
There are three children of the marriage, J L M born 3 August 1988 (“the first child”), M C M born 1 September 1989 (“the second child”), and K J M born 23 May 1992 (“the third child”).
In the application for divorce, in relation to the details of the children, the husband has indicated that all three children live with the mother in a four-bedroom dwelling on one acre and this is adequate for the children's needs. He further asserts in the application that the wife supervises the children when they are not at school or contact is taking place. In relation to the issue of contact, it is said by the husband in his application that he exercises contact fortnightly from 5.30 pm Saturday to 8.00 pm Sunday. He goes on to say that the children's sporting commitments prevent earlier contact on Saturday.
In relation to financial support, the husband states in his application that both the wife and the husband support the children. The husband pays child support as assessed by the Child Support Agency. On the issue of health, the husband states in his application that all of the children are in good health. He then goes on to refer to the education of the children, with the first child attending W Secondary College, the second child attending St M's Catholic School and the third child attending also St M's Catholic School.
The respondent has filed a response on 30 November 2001. In that response, when asked what orders are sought, the respondent seeks that the court dismisses the application for dissolution. In relation to the details of the response, the respondent has indicated, when asked: “Do you disagree with any statement in the application for divorce?” the following in relation to paragraph 24D. The wife states that the husband has recently taken employment with his father and has reduced his income and is only paying child support of approximately $2.20 per day per child. This could not be considered sufficient support for the children.
In relation to paragraph 24E, the wife in her response states:
“In respect of the health of the children, K has been absent from school approximately 30 days since July 2001 and I would not consider that to be an example of good health. M is currently experiencing symptoms of an eating disorder possibly attributed to the fact that she claims she was abused while in the care of her father. As J is currently at secondary school and has a learning disability, it is likely she will require tutoring for a prolonged period of her education, which the father is not prepared to assist with. M is about to enter secondary college for which there will be substantial set-up costs which the father also refuses to assist with.”
In support of the application, the husband further relies upon an affidavit sworn by him on 5 December 2001. In that affidavit, the husband refers to the response of the wife and notes that he has been employed as a rentals manager with his father's real estate firm since May 2000. He has claimed in evidence that he receives an income of $24,000 – $26,000 per year. He goes on to say further in his affidavit that for a period of some 14 years, he had previously been employed by a security firm and that employment involved rotating shift work. In brief terms, it would appear that he has indicated there has been a significant drop in income as a consequence of the change of employment, given that his current employment no longer requires him to work shift work and consequently there has been a reduction in salary.
The qualifications obtained by the husband, according to the evidence before this court, in order to work as a sales representative with his father's real estate firm involved a six-month course, completing approximately 50 hours of training, so that he could at least be referred to as a qualified representative in the real estate industry. I should add that in the husband's affidavit, he refers to the fact that he currently pays child support assessed by the Child Support Agency in the sum of $194.67. It does not seem to be in dispute that that in fact is a significant reduction from what he had previously been paying, either during the course of his earlier employment or for a period thereafter as a consequence of the husband applying benefits he received upon termination of that employment for at least a short period of time.
The husband in evidence also relied upon a letter dated 13 September 2001 from the Child Support Agency and attached to that letter is an assessment of the same date which confirms the monthly amount to be paid is $194.67 per month. I should indicate this: during the course of his evidence, the husband indicated that there are other amounts that he has sought to pay but he in fact currently has no assets and has approximately $1000 by way of savings. In net terms, he receives $519 per week.
Otherwise in the affidavit, when referring to the issue of the health of the children, the husband states that it was approximately two months ago that it was brought to his attention that the third child was suffering from asthma for which he is under medication. He was aware, according to the affidavit, the child missed some school but not aware that she had missed the number of days deposed to by the wife. He states in his affidavit that he was not aware that the second child suffered an eating disorder. He denies, both in his affidavit and the evidence in this court, that he has in any way been abusive towards the second child. Otherwise, it seems to be common ground that there is a learning disability of the first child which may require further expense in the forthcoming years. The applicant confirms in his affidavit to which I have referred that there is no prospect of reconciliation. He also refers to there being a degree of acrimony between the parties since the date of separation.
The wife, in addition to her response, has relied upon an affidavit sworn the 19th day of December 2001. In that affidavit, the wife, in referring to the husband's affidavit to which I have already referred, disputes that there has been contact of a regular type, refers to contact being “still extremely spasmodic and only at the convenience of the husband”.
The example given in that affidavit and in evidence before me today, however, relates essentially to one period of contact which had not been properly exercised over the weekend of 15/16 December 2001. I should also note that during the course of the evidence, the wife had referred to previous Family Court proceedings. This was in the context of questions concerning the extent and nature of the alleged abuse of the second child alleged to have occurred by the husband. The earlier Family Court proceedings now appear to be those proceedings which are the subject of orders which I have received as an exhibit. Those orders made on 15th April 1996 were orders which were the subject of minutes of consent, and I note in those orders that both parties were legally represented. On that day, numerous orders were made in relation to a number of issues which were then the subject of dispute between the parties.
For the purpose of the present application, the significant issue in my mind is the issue of access to the children, and Order 2, the minutes of consent orders to which I have referred, make detailed arrangements for the access by the husband to the children over a period of time, including what appears to be each alternate weekend access and other access which is normally granted in matters of this kind. I do not need to recite each and every one of those orders. However, since 15 April 1996, it is common ground that there has not been any application by either party to vary those consent orders which were made by the court on 15 April 1996.
In relation to the issue of child support, however, the wife has told this court that approximately two weeks ago she has made application to seek variation of the assessed sum of child support which was the subject of the assessment to which I have referred dated 13 September 2001. In her affidavit and in her evidence before this court, the wife expressed concern about the health, education and contact of the children. She gave some further evidence about the alleged abuse of the second child. However, I should indicate that the allegations of abuse are, in my view, allegations which are, on the material before me, vague and without any appropriate foundation. There is no corroborative evidence, there is no evidence of a medical nature, and it is significant, in my view, that there has been no application of any kind to the court in recent times or indeed to the relevant authorities for the matter to be further investigated or indeed for orders to be varied. That is not to say that the wife does not have some sincerely held or genuine belief about the issue, but as the matter stands before me, I do not believe there is evidence which would lead this court to make a finding that there has in fact in truth been abuse of any kind by the husband against the second child.
It is also somewhat ironic that if indeed there had been abuse of a kind that was significant, that in the circumstances, the complaint that the contact has been sporadic would not simply be a complaint that it has been sporadic but rather that that contact would be withdrawn for fear of ongoing abuse, if indeed the abuse was of significance and that was of deep and genuine concern. Now, I accept that for the purpose of this application, a concern has been expressed and that it is held sincerely by the wife. As I have indicated, however, on the material before me, I am not prepared to make a finding that that abuse has occurred.
I thought in the circumstances that one matter of concern during the course of this hearing was the fact that the wife has attached to her affidavit, to which I have referred, exhibits which are marked as annexures A and B, purporting to be handwritten notes from the children. The first of those notes is from the second child which refers to the father and suggests that the child wants dad to "stop hurting me". The second annexure, annexure B, addressed to the judge, is said by the wife to have been written by the youngest child, that is the third child, who I note is just nine years old. That letter makes allegations that “Our dad hurts my other sister…” but then goes on to say “…but let us still see him please. We all love him anyway”.
I am concerned about the fact that those letters are before the court, the way that they have been brought before the court and that on the evidence of the wife that the first of those letters was written some six months ago and the second was written following family discussions about the issue of the alleged abuse by the husband in relation to the second child in the last couple of weeks. It was primarily out of that concern that I suggested to both parties that it would be wise in the present case for both to seek confidential counselling, and I note that both parties have consented to a direction being made by that court for that purpose.
In relation to the issue of whether an application for dissolution should be made absolute by this court, I have been referred by counsel to the well-known authorities which relate to the exercise of the court's both duty and discretion pursuant to s 55A of the Family Law Act. There is no doubt that the proper arrangements in all the circumstances for the children in the exercise of my powers under the relevant provision of the act means that the arrangements that have been made, including financial arrangements, are the best that can be made in the circumstances. I accept the authorities which provide an indication that the court must be satisfied that proper arrangements have been made and the onus of so satisfying the court is upon the applicant. I refer to the cases of In the Marriage of Opperman (1978) 4 FamLR 135 at 152. I also refer to the decision In the Marriage of Gillen (1973) 7 SASR 569.
In my view, it is clear that there is a significant duty placed upon the court in circumstances of this kind to satisfy itself that proper arrangements have been made for the children. In the present case, I am satisfied and find that the children are properly housed and supervised. They are supervised by the wife and after considering all the evidence, save and except for one matter to which I shall refer presently, it seems to me that the wife is concerned about the health, welfare and education of the children and I am further satisfied that apart from the more recent event in five weeks, that there has been adequate and appropriate contact at least since the orders were made in the Family Court of Australia on 15 April 1996. I am further satisfied on the material before me that there is at least sufficient maintenance which would allow this court to make a positive finding on that issue, though I leave for another occasion, if it be the case, a further assessment of that level of child support which will be undertaken in the usual manner.
I should stress that in my view, on an application for dissolution, it is not the court's role to effectively conduct an alternative hearing or dispute in relation to the issues of contact, residency and/or child support. It is sufficient that the arrangements that have been made are the arrangements which are, in all the circumstances, the best that could be achieved on the material before me. It seems to me in all the circumstances that I can, on the material, including the affidavit material and the evidence of both parties, be so satisfied, subject to one concern. That concern is that in the course of the evidence of the wife and indeed the evidence of the husband, it seemed evident to me that there is a distinct lack of and a total inadequacy concerning communications one would normally expect between a father and mother in relation to the welfare of three young children. I am particularly concerned that in the absence of any proceedings being taken to vary orders that were made by the Family Court in April of 1996 that the parties to this application ought to make full use of the available confidential counselling which will assist in improving the arrangements concerning the children. I propose making a direction to that effect by consent. However, for the present purposes, I do not believe that inadequacy is sufficient for me to decline making the appropriate declaration under s 55A(1)(b)(i) of the Family Law Act.
In those circumstances, it is my view that it is appropriate to make the following findings of fact: I find that the parties were married on the 17th day of October 1987. I find that the applicant is domiciled in Australia, that the parties separated in May or June 1994 and since that date, have lived separately and apart. Accordingly, I do find that the marriage has irretrievably broken down. I pronounce a Decree Nisi for the dissolution of the marriage and I declare that I am satisfied that proper arrangements have been made in all the circumstances in relation to the three children of the marriage referred to in the application.
Apart from pronouncing a Decree Nisi for the dissolution, I make the following direction:
(1)The parties attend confidential counselling at a time, place and with a counsellor to be nominated by the Coordinator of Primary Dispute Resolution of the Federal Magistrates Court of Australia.
Costs
In this application, counsel representing the husband has sought an order that the wife pay costs. The costs, it is suggested, amount to the sum of $1028. The power of the court to order costs is governed by section 117 of the Family Law Act. In that section, it is clear that the court may, in circumstances where it thinks fit, award costs. The wording of the actual section provides that in subsection (1), there is a presumption that each party should bear his or her own costs, but subsection (2) provides that if, in proceedings under the act, the court is of the opinion there are circumstances that justify it in so doing, the court may, subject to subsection (2)(a) and the applicable Rules of the Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise as the court considers just.
The section also provides in subsection (2)(a) those matters which are regarded as being relevant considerations. They include – and I am paraphrasing – the financial circumstances of each of the parties and whether the parties have received legal aid, and the conduct of the parties to the proceedings, and that includes the conduct of the parties in relation to items such as pleadings and matters of that kind. It further requires me to look at whether the proceedings were necessitated by any failure to comply with previous orders and other matters which to some extent are not relevant to the present application, save and except it is submitted and I accept that the respondent has been wholly unsuccessful in this hearing.
In my view, it is relevant to take into account for the present purposes the financial circumstances of both parties and although it may be an unsatisfactory way of obtaining information, I have at least for the purpose of the cost application ascertained – and it does not seem seriously in dispute – that the wife receives a net income of approximately $500 which is a result of a combination of employment and benefits. She has indicated to the court she has no savings. On the other hand, it is said that I should take into account, in considering the exercise of my discretion, the manner in which the response and issues have been pursued in this case and in particular, to what extent that response and the raising of what might be described as ancillary issues have been used to thwart this application.
Part of the process of reasoning which I have just delivered included significant reservations about the need for these parties to in fact improve their understanding, arrangements and communications concerning the welfare of the children. It is for that reason I directed the parties to attend confidential counselling. It seems to me that on the one hand, the raising of serious allegations, incorporating into affidavit material documents which I regard as being, at least on the face of it, inappropriate in all the circumstances, and the failure to seek orders or make complaints to the appropriate authorities may, on the superficial analysis of the material, justify an order for costs.
In my view, however, having regard to the financial circumstances of the wife and having regard to the direction I have made, together with what I believe to be in the interests of the children, that the parties attend in a bona fide way with a genuine endeavour to reach some sensible, practical arrangement concerning both communications and the extent and nature of contact, I think it would be counterproductive to that course if I were to make orders that one party pay the other costs.
Given the limited financial circumstances of both parties, I strongly suspect that in any event, the ones that will suffer out of this contest will be the children, regardless of what order I may make. It may not be entirely proper for me as a matter of law to take that into account and I do not do so in a formal sense, but from a practical point of view, it seems to me to be an irresistible conclusion.
I am satisfied, however, that there is a discretion that I have in this case and for the reasons I have stated, I do not propose ordering costs.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 21 December 2001
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