M and M
[2001] FMCAfam 48
•30 May 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
M & M [2001] FMCA fam 48
FAMILY LAW – Property adjustment – workers compensation commutation – contact to children – practical difficulty associated with parent's living distances apart – parties required to contribute to the effort associated with implementing contact
| Applicant: | M |
| Respondent: | M |
| File No: | ZP 499 of 2000 |
| Delivered on: | 30 May 2001 |
| Delivered at: | Parramatta |
| Hearing Date: | 24 May 2001 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Merkel |
| Solicitors for the Applicant: | Henshaws, 95 Moore Street, Liverpool 2170. DX 5026 Liverpool |
| Counsel for the Respondent: | Ms Druitt |
| Solicitors for the Respondent: | Lea Smith, 38C William Street, Raymond Terrace 2324 |
ORDERS
(1)That T born 16 March 1990 and A born 7 February 1994 (“the children”) reside with the Mother.
(2)That the Mother be responsible for the day-to-day care, welfare and development of the children when they are in her care.
(3)That the Father be responsible for the day to day care, welfare and development of the children when they are in his care.
(4)That the Father and Mother be jointly responsible for the long term care, welfare and development of the children.
(5)That the Father have contact to the children defined but not limited to:
5.1Commencing the first weekend in each calendar year that T plays her first competition netball game and/or A plays his first competition soccer game; contact each Saturday from 8.30 AM until 5.00PM.
5.2Commencing the first weekend in each calendar year after T has played her last competition netball game and/or A plays his last competition soccer game each alternate weekend commencing at 5.30PM Friday and concluding at 5.00PM Sunday.
5.3For the first half of the Easter, Winter & Spring school holiday period in each year ending with an odd number commencing at 9.00am on the first day of the school holiday period and concluding at 2.00pm on the middle day of the holiday period.
5.4For the second half of the Easter, Winter & Spring school holiday period in each year ending with an even number commencing at 9.00am on the middle day of the school holiday period and concluding at 2.00pm on the last day of the holiday period.
5.5For one half of each Christmas school holiday period, the first half in 2001/2002 and the second half in 2002/2003 alternating each year thereafter.
5.6On Christmas Day from 9.30AM until 1.30PM in years the children are in the care of the Mother during the first half of the holidays.
5.7I such contact weekend does not occur on the weekend including Fathers Day from 3.00PM on the Saturday before until 5.00PM Sunday.
5.8If contact occurs on a day adjacent to a public holiday, contact shall be extended to include the public holiday. If the public holiday is a Friday the contact shall start at the usual time on the Thursday and if it is a Monday shall conclude at the usual time on the Monday. This order is operative throughout the year and is suspended only if both children are playing a competition game in the primary sport. If one child only is playing a competition game the other child is to attend contact.
5.9At other times as agreed between the parties.
(6)That the Father will ensure that at all times when he exercises day only contact to the children that the children will attend their competition sport games.
(7)SCHOOL HOLIDAY CONTACT:
1.SHALL commence at 9.00AM
2.SHALL conclude at 2.00PM
3.WILL BE calculated from the day after the last day of school until and including the day immediately before school resumes.
4.Pupil-free days are deemed to be school holidays.
(8)Competition/primary sport is defined as follows:
8.1Does not include practice games.
8.2Does not include pre-season games.
8.3For A includes March-October (approximately) soccer games.
8.4For T includes March-October (approximately) netball games.
(9)Weekend and day (not Christmas Day) only contact is suspended during school holidays.
(10)That for the purpose of day only contact the Father will collect and return the children from their home.
(11)That for the purpose of weekend contact the Mother shall deliver the children to the Father at the Caltex Service Station on the Pacific Highway southbound at Tuggerah and the Father shall return the children at the end of contact to the Mother at the same place.
(12)That for the purpose of school holiday contact the Father shall collect the children from the curtilage of the Mother’s residence at the commencement of the contact period. At the conclusion of the contact period the Mother shall collect the children from the curtilage of the Father’s residence.
(13)That for Christmas Day contact, the Mother shall collect or return (whichever is relevant) from the Father's home at the commencement of contact and the Father shall return or collect (whichever is relevant) from the Mother at her mothers residence.
(14)That each of the parties be entitled to obtain directly from any school attended by any of the children of the relationship or from any health or welfare professional or other professional attended by any of the said children, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the children and for this purpose each of the parties shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
(15)That the Applicant Father transfer to the Respondent Mother all his right title and interest in the former matrimonial property within twenty eight (28) days from the date of the making of these orders.
(16)That simultaneously with the transfer by the Applicant Father referred to in Order 10 Respondent Mother give the Applicant Husband a discharge of any liability he may have to the National Australia Bank pursuant to its mortgage secured over the former matrimonial home.
(17)That the wife shall indemnify the husband in relation to any liability arising pursuant to the car loan and in this regard shall make all payments as and when they fall due.
(18)That other than is provided in these orders, each party shall be solely entitled to the exclusion of the other party to all other property and chattels of whatsoever kind in the possession of such party as at the date of these orders and for this purpose, bank accounts are deemed to be in the possession of the person whose name appears in the bank record thereof, insurance policies and superannuation policies (if any) are deemed to be in the possession of the beneficiary thereof.
(19)That if either party refuses or neglects to sign (within 14 days of a written request to do so) any documents necessary to effect the terms of these orders a Deputy Registrar of the Federal Magistrates Court of Australia is hereby appointed pursuant to the provisions of Section 106 of the Family Law Act to execute such documents on behalf of such party.
(20)That any application for costs is made in writing supported by written submissions within 28 days. That the other party provide written submissions in reply within a further 14 days.
(21)That all outstanding applications are otherwise dismissed.
(22)That all exhibits be returned at the expiration of one calendar month unless an appeal is lodged.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA
ZP 499 of 2000
M
Applicant
And
M
Respondent
REASONS FOR JUDGMENT
Proceedings
These proceedings are for the adjustment of property and parenting orders.
The applications
Mr M (“the husband”) filed an application for final orders at Liverpool Local Court on 19 November 1999. He filed an amended application on 22 December 1999 and that application contains the orders sought by him at trial.
In essence, he sought orders that the children live with the wife and have contact to him. He proposed that the parties share joint responsibility for making decisions about the children’s long-term care, welfare and development, that he receive copies of school reports and circulars and that the mother be required to encourage the children’s relationship with him. The contact orders he sought were essentially alternate weekend contact commencing on Friday evening, concluding on Sunday evening and contact during school holidays and on public holidays. When giving evidence he agreed that between March and October each year provided the children are playing competition sport he would exercise daytime contact during the day at Port Stephens. By way of adjustment of property, he proposed that he transfer to the wife the whole of his interest in the former matrimonial home. Other than the wife providing the husband with an indemnity under the mortgage, each party would otherwise retain all items of property in their possession.
JM (“the wife”) filed a response to the amended application for orders on 8 February 2000 in the Family Court at Parramatta. At the completion of the hearing, her counsel provided short minutes of order proposed by the wife. They are:
1.That the children of the marriage namely TJM born 16 March 1990 and APMCM born 7 February 1994 reside with the Respondent Mother.
2.That the Respondent Mother be responsible for the day to day care, welfare and development of the children referred to in Order No. 1 hereof.
3.That the Applicant Father and Respondent Mother be responsible for the long term care, welfare and development of the children referred to in Order No. 1 hereof.
4.That the Applicant Father have contact to the said children defined as follows but not limited to:
4.1Each alternate weekend commencing at 9.00am on the Saturday morning and concluding at 4.00pm on the Sunday, however if such contact falls on a long weekend then contact will conclude at 4.00pm on the Monday of that long weekend.
4.1.2The contact period referred to in Order No. 4.1 hereof to commence on 1 June 2001 and will be exercised in the Port Stephens area, and thereafter the contact will be exercised alternately in the Sydney area and the Port Stephens area.
4.1.3Where the contact period is exercised in the Sydney area pursuant to these orders same is subject to and conditional upon all of the following:
(a)That the said children wish to go to Sydney with the Father.
(b)That the Father and Mother do not use any form of emotional blackmail on either or both of the children.
(c)That there are no weekend activities or commitments of the children.
4.1.4That the weekend contact referred to in Order 4.1 hereof be suspended as and from the last day of the school term upon the commencement of the autumn, winter, spring and summer school vacation periods.
4.1.5That all contact to be personal to the Father.
4.2For one week in each of the Easter, Winter & Spring school holiday period as can be agreed upon between the parties hereto provided the Applicant Father has annual leave to coincide with same.
4.3Failing agreement between the parties hereto the contact referred to in 4.2 hereof shall be:
4.3.1.For the first half of the Easter, Winter & Spring school holiday period in each year ending with an odd number commencing at 9.00am on the first Saturday of the said school holiday period and concluding at 2.00pm on the middle Saturday of such holiday period provided the Father has annual leave to coincide with same.
4.3.2.For the second half of the Easter, Winter & Spring school holiday period in each year ending with an even number commencing at 9.00am on the middle Saturday of the said school holiday period and concluding at 2.00pm on the last Saturday of such holiday period provided the Applicant Father has annual leave to coincide with same.
4.4.For one week during the school summer holiday period commencing at 9.00am on the first Monday in the new year and concluding at 2.00pm on the following Sunday provided the Applicant Father has annual leave to coincide with same.
4.5On Christmas Day commencing at 9.30am and to conclude at 1.30pm.
4.6.If such contact weekend does not occur on the weekend including Fathers Day each Fathers Day commencing at 9.00am and concluding at 4.30pm on that day.
4.7.If contact occurs on the weekend including Mothers Day the contact will cease at 6.00pm on the Saturday of such contact weekend.
4.8At other times as can be agreed upon between the parties hereto.
5.That the contact referred to in Order No. 4 hereof shall be implemented by the Applicant Father collecting the said children from the curtilage of the Respondent Mother’s residence at the commencement of the contact period and at the conclusion of the contact period by delivering the children to the curtilage of the mother’s residence with the exception of Order No. 4.5 hereof wherein such contact shall be implemented by the Applicant Father collecting the said children from the residence of the said childrens maternal grandmother at the commencement of the contact period and by returning the said children to the residence of the Respondent Mother at the conclusion of the contact period.
6.Without admission the Applicant Father be restrained from consuming alcohol or partaking any illicit substances for a period of 24 hours prior to the commencement and during the contact period.
7.The Applicant Father will ensure that when travelling in a motor vehicle of any kind the children are restrained at all times in an approved child restraint.
8.That the Applicant Father will ensure that at all times when he exercises contact to the said children pursuant to these orders that the children will attend their sport activities, their church activities and any extra curricular activities.
AS TO PROPERTY:
10.That the Applicant Father will transfer to the Respondent Mother all his right title and interest in the former matrimonial property within twenty eight (28) days from the date of the making of these orders.
11.That the Respondent Mother will indemnify the Applicant Father in relation to all the outgoings including all arrears of whatsoever nature and kind on the property including all rates and taxes and furthermore the Respondent Mother will further indemnify the Applicant Father in relation to the mortgage debt including arrears over the property due and owing to the National Australia Bank Limited and as from the date of these orders make all payments for all outgoings on the said property.
12.That on the Applicant Father transferring to the Respondent Mother all his right title and interest in the abovementioned former matrimonial home the Respondent Mother will do all acts and sign all documents necessary to transfer the mortgage to the National Australia Bank over the former matrimonial home into her name solely, and is to indemnify the Applicant Father in respect of all his obligations pursuant to that mortgage.
13.That the Applicant Father will pay to the Respondent Mother the sum of eleven thousand six hundred and eighty nine dollars ($11,689.00)within twenty eight (28) days from the date of the making of these orders.
14.As between the parties and upon the making of these orders, that with the exception of the abovenamed property each party shall be solely entitled to the exclusion of the other party to all other property and chattels of whatsoever kind in the possession of such party as at the date of these orders and for this purpose, bank accounts are deemed to be in the possession of the person whose name appears in the bank record thereof, insurance policies and superannuation policies (if any) are deemed to be in the possession of the beneficiary thereof.
15.That if either party refuses or neglects to sign (within 28 days of a written request to do so) any documents necessary to effect the terms of these orders the Registrar of the Newcastle Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 84 of the Family Law Act to execute such documents on behalf of such party.
16.That each party be responsible for their own costs of and incidental to these proceedings.
The parties agree that the husband will transfer his interest in the former matrimonial home to the wife subject to the mortgage. The wife agrees to provide a release from the mortgage. It is also agreed that the wife will retain the car, household furnishings and her savings. They agree that the husband shall retain his motor vehicle and other possessions. A significant issue is whether the husband should make a further payment to the wife in the amount of $8,380.
Short history
The wife was born on 7 November 1961 and is now aged 39 years. The husband was born on 3 May 1963 and is now aged 38 years.
They married on 7 October 1988. There are two children of their marriage, TJM born 16 March 1989 and APMCM born 7 February 1994.
In June 1997, the parties moved to a location near Port Stephens. They separated during December 1997. The marriage still subsists.
On 24 January 2000 the proceedings were transferred to the Family Court at Parramatta. On 11 July 2000 the proceedings were transferred to the Federal Magistrates Court.
The evidence
The husband relied on the following evidence:
·His affidavit sworn 10 May 2001 and filed that day, together with his oral testimony
·His financial statement filed 21 March 2000.
The wife relied upon the following evidence:
·Her affidavit sworn 23 May 2001 and filed 24 May 2001, together with her oral testimony
·
Her financial statement sworn 27 January 2000 and filed
8 February 2000.
Both parties tendered documents that became exhibits in the proceedings.
Relevant facts
The husband is a bricklayer and the wife a housemaid. The two children, the subject of these proceedings, are each parties’ only children. Other than the effects of a back injury, the applicant is in good health as is the respondent.
At the time of their marriage, the parties purchased a home at Raby. The purchase price of the property was $105,000. They raised $90,000 from the National Australia Bank and the respondent’s mother lent her $15,000 towards the deposit and other costs. That money has not been repaid. At the time they purchased the Raby property, the wife was working for the National Australia Bank. She obtained a staff loan, which was provided at nearly half the current (then) variable housing rate.
In 1994, the parties moved to Western Australia. The wife gave up her position at the bank and they sold the house at Raby. They purchased land in Joondalup in Perth. The Joondalup property was purchased with the assistance of a loan from the National Australia Bank.
The parties returned to New South Wales during 1996 and purchased the property at Anna Bay (the former matrimonial home). They paid $87,000 for Anna Bay. They used the proceeds of the sale of the Joondalup property, together with a loan provided from the National Australia Bank to purchase Anna Bay. At the time of purchase, the Anna Bay property comprised one bedroom, a kitchen, lounge room and dining room with a bathroom, laundry and an enclosed sunroom. Between January and December 1997, the parties carried out renovations to the home. They created an extra bedroom and combined the shower and laundry into one space.
After they moved to Anna Bay, the husband continued to take work in Sydney as a bricklayer. He travelled backwards and forwards to Sydney on a regular, but not necessarily consecutive, basis and on occasion he stayed in Sydney with his parents overnight. When he was working as a bricklayer, the wife cared for the children.
Prior to separation, the husband suffered a serious back injury during the course of his employment. As a result of his injury, he was unable to work. The husband claimed he was unable to remember when the injury occurred and neither party gave evidence as to the extent of his unemployment. The quantum of compensation suggests the incident was a serious one and I do not accept the husband's asserted loss of memory.
The parties were able to agree on the identity and value of the assets at the date of separation. I find that the assets and liabilities as at the date of separation are as follows:
Assets $ Former matrimonial home 120,000 Family car NK Household furniture NK Liabilities $ National Australia Bank mortgage 51,000 Car loan 11,000
After separation, the wife retained possession of the house, all of the furniture and the family car. The husband had a financial resource in the nature of a superannuation benefit and a chose-in-action, namely his workers’ compensation claim.
Subsequent to separation, the wife made improvements to the former matrimonial home. She paid $600 for the erection of new boundary fences, $700 for awnings on the exterior windows, $1200 to connect sewerage and to access bore water. The bore water connection fee was $380 and the bore pump cost $600.
After separation, the husband returned to live in Sydney and lived with his parents at Fairfield. On 23 August 1999 he settled his workers’ compensation claim by way of a commutation for the sum of $80,000. This amount was inclusive of treatment expenses of $365.50 and $1,150.95 HIC charge repayable to Medicare. After payment of some other minor expenses, he received the sum of $78,483.55. He received the money on 1 October 1999 and on 1 December 1999 he resumed full-time work as a bricklayer.
The husband has never challenged the wife’s residence of the children. He has travelled to Anna Bay most weekends to see the children. In the period immediately following separation, he collected the children and either took them to his brother’s home at Wauchope or otherwise returned with them to Sydney. Coincidental with the husband establishing a relationship with a friend of the parties, the wife objected to the children travelling to Sydney for the purposes of contact. Since then, contact has been primarily daytime contact exercised in the Port Stephens region on Saturdays. The husband has travelled from Sydney and participated in the children’s sporting activities and otherwise spent time with them during the day. He has, on occasion, brought the children to Sydney and has had some periods of school holiday contact in Sydney and in Wauchope.
The wife brought the children to Sydney for Christmas 1999. On
23 December 1999, in accordance with her instructions, a letter was forwarded to the husband’s solicitor proposing contact on Christmas Day for a couple of hours. The husband went to the wife’s mother’s home on Christmas morning with the children’s presents. I accept his evidence about the events that occurred that morning. He had bought an expensive 18 carat gold necklace for his daughter and a Christmas gift for his son. The wife says she was in the kitchen and, although in the house, she could hear the husband discussing with the children the presents he had bought them. The wife was infuriated and came out to the front verandah where the husband and children were and grabbed the presents. She denies that she threw the presents in the bin. She says that she threatened to throw the presents in the bin or throw them at the husband. Both threatened behaviours in the presence of the children were inappropriate. In any event, I prefer the husband’s version of events and am satisfied that on this occasion the wife threw the children’s presents in the bin and that A ran after the wife trying to retrieve his father’s Christmas gift.
On 30 October 1999, the husband was at the former matrimonial home for the purposes of collecting the children for contact. The front door was open and the husband entered the home with the aim of taking the children. The wife asked him to leave the home and when he didn’t do so, she picked up a frypan in an attempt to reinforce her demand that he departs the home. The wife agrees that she scratched and hit the husband and he agrees that he resisted her and that the parties then engaged in a physical fight. The wife grabbed the children and locked them in their bedroom. The wife then made application for an apprehended domestic violence order. On
7 December 1999 at Raymond Terrace Local Court, an apprehended violence order was made for the protection of the wife against the husband. The order remained operative for 12 months.
In January 1998, the wife and children were in a car accident. The wife’s car, that was the subject of the joint personal loan, was written off. The car was not insured. This debt has been reduced but there is an amount outstanding.
Both children attend Anna Bay Public School. A is in 1st Class and T is in 6th Class. The children are keen sports participants. A has played soccer since 1999 and T started netball in March 1999. A now plays indoor soccer during the summer months, which activity is suspended during school holidays. In early 1999, T started attending Sunday school and attends the Christian Outreach Centre at Salamander Bay.
The husband has lived with Ms O for about four months. Ms O is in full time paid employment. They share equally rental and all household expenses. The respondent has not re-partnered. She works part-time at a local resort. In addition to child support she also receives a part supporting parents benefit.
The assets at the date of hearing
The parties reached some agreement in relation to the assets as at the date of hearing. I find the assets and liabilities of the parties as at the date of hearing are as follows:
Assets $ Anna Bay Property 120,000 1983 Ford Telstar (W) 2,000 1993 4WD (H) 10,000 Furniture (W) 2,000 Proceeds of husband’s workers’ compensation payment (value only agreed) 30,000 TOTAL ASSETS 164,000 Liabilities $ NAB loan 51,000 Car loan 8,380 TOTAL LIABILITIES 59,380 NET ASSETS 104,620 Financial Resources $ Hostplus Hospitality Super (w) 632 Aust. Eligible Roll-over Fund (w) 1,947 BUS (h) 8,983
The issues
·The nature of the children’s relationship with the husband.
·The practical effect and expense associated with contact.
·The children’s wishes in relation to contact.
·The wife's attitude to the children's relationship with the husband.
·Whether the adjustments agreed between the parties, vis à vis the matrimonial home reflect the wife’s entitlements for financial adjustment.
·How the husband’s workers’ compensation commutation is taken into account.
Relevant law
Residence, contact orders and specific issue orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to Section 65E in that in determining the outcome the best interests of the child is the paramount consideration. That is the overriding principle.
Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development.
Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
In deciding the parenting arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in Section 68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. B and B: Family Law Reform Act (1997) FLC 92-755.
The approach to the determination of an application under Section 79 is well established by authority (In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage of Clauson (1995) FLC 92-595) the process ordinarily involves a multiple part procedure. Firstly, identifying the property, liabilities and financial resources of the parties at the time of the hearing. Secondly, evaluating the contributions made by the parties as defined in section 79(4)(a) to (c). Thirdly, evaluating the matters contained in section 75(2) insofar as they are relevant.
In determining what order the court should make under section 79, the court must be satisfied in all the circumstances that it is just and equitable to do so [Section 79(2)]. It is the justice and equity of the actual orders that the court must consider. [Russell v Russell (1999) FLC 92-877.]
Section 79(4) — assessing contributions
The paries provided scant evidence about their work histories. I infer that throughout the marriage the husband was employed as a bricklayer. There is no suggestion that he wasted any of the money he earned and I satisfied that he applied the whole of his earnings to the expenses of the family. The wife worked in a bank until the parties moved to Western Australia in about 1994. As with the husband, there is no suggestion that she wasted any of her earnings and I am satisfied that she applied the whole of income to the expenses of the family.
The wife's mother advanced $15,000 when the parties purchased the Raby property. This contribution was an important contribution and was pivotal to the parties’ ability to purchase the property at the time they did. It must be given significant weight. It is apparent that but for the $15,000 advance from the wife’s mother the parties had no money put aside to fund the purchase of the Raby property. The balance of the monies was raised by way of a mortgage. The monies have never been repaid. I am satisfied that because of the passage of time, the lack of any evidence of demand for repayment and lack of evidence of any partial payments that this money is properly treated as a gift and contribution made on behalf of the wife.
After separation, the husband received $80,000 (gross) by way of a workers’ compensation commutation. The evidence presented in relation to the commutation was scant. The parties agree that the injury which gave rise to the claim occurred prior to separation and that the husband had had related periods of unemployment prior to separation. The wife give not give any evidence that indicated she had nursed or otherwise taken on additional responsibilities in the family as a consequence of the husband’s injuries. I infer that she did not. Whether the husband was in employment after separation and prior to settlement of his workers’ compensation claim is not clear. There is evidence that he was unable to work to full capacity. Whether this means he was not working at all I cannot determine. The Court should have received evidence that detailed the quantification of the workers’ compensation settlement. Rather, a summary of the monies received was provided in Exhibit C, which document provides relevant but limited information. Counsel for the husband submitted that the workers’ compensation commutation was not a matrimonial asset. I do not accept this submission. The monies have been received by the husband and are held by him. He has been able to use the monies for his own purposes. While I accept that the wife made almost no contribution to the compensation claim, the lack of contribution does not change the nature of the asset. I accept counsel for the wife’s submission that the wife made a contribution to the asset in the nature of her role as a home-maker and parent during the husband’s period of unemployment. The compensation settlement is greater than the totality of the assets that existed at the date of separation. At no time during the course of their marriage were the parties ever able to acquire savings of any significance. This settlement is the most significant financial event and individual contribution made throughout the course of the marriage. It is a contribution overwhelmingly made by the husband. He has had the sole use of the compensation claim and it has reduced in value by approximately $48,000. It is probable that a portion of the monies have been spent in the generous child support payments made by the husband since separation. The wife makes no claim that the monies spent since receipt of the claim should be notionally added back into the asset pool. In the circumstances of this case, that approach is the correct one. Taking into account the amount expended since receipt by the husband, this financial contribution remains a significant one. The husband's financial contributions to the marriage were materially greater than the wife's.
Both parties contributed to the maintenance and improvement of the Anna Bay property. Prior to separation, they improved the property by completing the renovations identified in paragraph 16 of these reasons. Since separation, the wife has improved the property in the manner outlined in paragraph 21. Overall, I am satisfied that the wife’s non-financial contribution to the parties’ property was greater than was the husband’s.
Until they moved to Western Australia the husband's parent's cared for T while the parties worked. There is no evidence that they were paid for this kind help. The wife, I am satisfied, carried out the majority of the home-maker duties. She has been primarily responsible for the children and her contribution as home-maker and parent was greater than that of the husband. The husband worked long hours, including for a period of time travelling between Anna Bay and Sydney. As a consequence, the responsibility for the care of the children fell primarily to the wife. The Anna Bay property is a modest dwelling that the parties had originally intended to demolish and rebuild. The nature of the dwelling has made the wife’s home-maker role more onerous. Her contribution as a home-maker and parent has been greater than the husband’s post-separation. The wife and two children have lived in the Anna Bay property and she has been responsible for their care. The husband’s contact with the children has been significantly less than he desired, primarily as a consequence of the constraints the wife placed upon it. Her contribution to the family in her role as home-maker and parent has been significantly greater than the husband's both before and subsequent to separation.
Other than for a period of 2 – 3 months, the husband has paid $200 per week (in the period prior to late 1999) and $250 per week since early 2000 by way of child support. This sum has been substantially in excess of his child support obligations and generously acknowledged the children’s needs. These payments have been financially onerous for the husband. He will be required to pay child-support for between 7-9 years for at least one and for the most part both children.
The orders I make will not affect the earning capacity of either party.
I find, therefore, that the parties’ total contributions should be assessed as 55 percent by the husband and 45 percent by the wife.
Section 75(2) factors
The wife is in good health. The husband has suffered a serious back injury in the past which resulted in a workers’ compensation claim settled in the sum of which I have previously made findings. The size of the compensation payment suggests that the injury was a significant one. The husband returned to full-time work as a bricklayer on 1 December 1999, shortly after his workers’ compensation claim was settled. He has worked with the same employers since that time. He does not always work full-time. Whether this is as a consequence of his back injury or as a consequence of economic fluctuation inherent in the building industry is not clear on the evidence. The husband did not produce any evidence in relation to his health from an independent source and his own evidence was scant. I am satisfied on the evidence that the husband has suffered a serious back injury, which injury does not materially affect his current earning capacity. It may affect his long-term capacity to remain in the full-time workforce. I make an adjustment in favour of the husband pursuant to s75(2)(a).
Both parties relied on financial statements that had been sworn approximately 14 months prior to the hearing. The husband’s confirmed the details contained in his financial statement and I am satisfied that he continues to work as a bricklayer earning approximately $830 per week. His group certificate confirms that he is an employee. $830 is the amount he earns when he works a five-day week. On occasions he works less than five days a week. He does not declare any earnings by way of interest earned from the workers’ compensation monies. It is unlikely that no interest has been earned. Again, the information he provided to the Court was scant in relation to a matter that could have been corroborated with minimal effort or expense. Counsel for the wife questioned the husband about receipts of cash payments by him. He denied that he received cash payments and no evidence was produced by the wife to support the propriety of the question. On balance, I am satisfied that the husband has the capacity of earning approximately $830 per week as a bricklayer in the foreseeable future. The wife is employed at Pepper’s Anchorage Resort as a housemaid. She works Monday to Friday starting each day at 9.00 am and finishing between 2.30 PM. and 3.00 PM. She receives an average weekly earning of $200 per week. Her hours of work are limited because of her care of the children. They enable her to see the children to school in the morning and to be there when they return in the afternoon. Her opportunities for employment are limited by reason of location and care of the children. I am satisfied that it is appropriate to make an adjustment in the wife’s favour pursuant to s75(2)(b).
The children will continue to live with the wife. T is 11 years old and A is 7 years old. I find that subsection 75(2)(c) requires an adjustment in the wife’s favour.
Both parties have a duty to maintain the two children of the marriage. Each has the commitment identified in their financial statements. The husband’s financial commitments have been modified as a consequence of his entering into a significant relationship with Ms O. They share equally the costs of their rental accommodation and ordinary living expenses. The expenses they incur are modest. The wife’s commitments include the costs of caring for the two younger children. It is appropriate to make an adjustment in her favour pursuant to s.75(2)(d).
Other than the children, neither party has a responsibility to support any other person. I make no adjustment under subsection 75(2)(e).
The wife receives Social Security payments in the sum of $150.00 per week by way of a part supporting parents benefit and $135.00 by way of Family Payment. I make no adjustment under subsection 75(2)(f).
The parties live a modest life. The wife lives in premises that were originally intended as a temporary residence, but which have become her permanent home. Neither party spends money on extravagances nor are they wasteful. The husband lives in rented accommodation. The wife has had the benefit of the entire household’s furnishing as at separation. When the husband left, he did not take anything with him. The wife is able to continue to reside at Anna Bay. I make no adjustment pursuant to s75(2)(g).
I find no relevant factors pursuant to s.75(2)(h) and (j).
The parties’ cohabitation was of 9 years’ duration. The wife’s employment skills deteriorated as a consequence of her withdrawal from the full-time workforce in the banking industry to care for the family and the children. The husband has maintained his skills as a bricklayer. The wife now works as a housemaid. I make an adjustment under subsection 75(2)(k) in favour of the wife.
The wife’s evidence, which I accept, is that she does not intend to return to full-time paid employment in the foreseeable future. She wishes to care for the children. The parties agreed during the marriage that she would. I am satisfied that she does have the capacity to return to the paid workforce full-time as a housemaid and that her decision to limit her employment to part-time employment is a reasonable one. I am satisfied that as a consequence of her care of the children, that the wife’s earning capacity will be reduced for at least the next six or seven years. I make an adjustment under subsection 75(2)(l) in favour of the wife.
The husband has re-partnered and the wife has not. Other than sharing household expenses with Ms O the cohabitation has no financial consequences. The period of cohabitation is only a few months and although the relationship may be personally significant it does not yet have financial consequences other than those I have already made findings about. I make no adjustment pursuant to s75(2)(m).
The orders I make will enable the wife to remain in the Anna Bay property. She has agreed to take responsibility for the NAB mortgage and to re-finance it so that the husband is no longer liable pursuant to it. She will have responsibility for the balance of the personal loan raised by the parties to purchase their car. Otherwise, the wife will have the balance of the assets that existed as at the date of separation and those assets she has acquired subsequent to separation. The husband will retain the monies remaining from his workers’ compensation settlement. The wife’s assets are greater than the husband’s. I make no adjustment pursuant to subsection 75(2)(n).
The payment of child support by the husband post-separation was a matter of controversy in the proceedings. The wife’s evidence was that prior to December 1999, she received an occasional payment of $150.00 per week. The husband’s evidence was that until that time, he had paid $200.00 per week, which payments were made regularly, although on occasion a few days late. During the Christmas period, the wife, I accept, asked the husband to contribute to the joint loan referable to the motor vehicle that had remained in the wife’s possession after separation and been written off, uninsured. The husband agreed to pay an additional $50.00 per week as his contribution to the loan repayment. The husband’s evidence on this issue was compelling. By comparison to the wife, he presented as recounting honestly the history of payment post-separation. The wife was demonstrably uncomfortable when dealing with the issue of child support and I prefer the husband’s evidence to hers on this topic. Since separation, the husband has paid child support at a sum greater than assessed as payable by the child support agency. He makes payments of $250.00 per week, although assessed to pay $218.08 per month. He is a devoted father and I accept his evidence that irrespective of the payments required pursuant to the child support assessment, he will continue to pay significantly greater sums of money regularly. This is in addition to readily contributing to special expenses such as special items of clothing and health-related expenses. I make no adjustment pursuant to subsection 75(2)(na).
I make no adjustment pursuant to subsection 75(2)(o). Section 75(2)(p) does not arise.
Having regard to all of the section 75(2) factors, I find it appropriate that there should be an adjustment in the wife’s favour having regard to section 75(2)(b),(c),(d),(k) and (l) as modified by the findings made in the husband's pursuant to s75(2)(a). The appropriate adjustment to make in the wife's favour is 15 percent.
Section 79(2) — is this adjustment an equitable outcome?
I find following the parties’ 9 years cohabitation, their contributions were 55 percent in favour of the husband and 45 percent by the wife. The wife will have the primary ongoing responsibility for the care of the two children, neither of whom is yet in high school. This responsibility, together with her absence from the paid workforce for many years of the marriage, will impinge upon her ability to participate in the full-time paid workforce for some years to come.
The wife has had the exclusive use of all of the assets acquired as at the date of separation since separation. She will be able to continue to live in the former matrimonial home as a consequence of the orders I make. I have made detailed findings concerning the application of s.75(2) and do not repeat them. Balancing all of the factors, I find that it is appropriate that the parties’ net assets should be divided as to 60 percent to the wife and 40 percent to the husband. The husband will have the benefit of his minimal superannuation. The wife’s superannuation is even smaller. It will be 15 years or more before either of them can access their superannuation. In the balancing exercise, the superannuation has had no meaningful impact. Both parties will have modest standards of living.
That the outcome of the application of s.79(4) and s.75(2) has resulted in a distribution favourable to the wife — 60 percent as to the husband’s 40 percent — would mean that the wife must make a small payment to the husband. A 60/40 distribution would result in the wife receiving $62,772 of the assets and the husband $41,848. However he concedes that the wife retain her the former matrimonial home, her car and the furniture. This means she will take assets with a net value of $64,620 if the orders he asks for are made. His agreement to her keeping those assets provided he is released from the NAB and car loan is an important factor in the s79(2) exercise. That later outcome is, I am satisfied just and equitable within the meaning of s.75(2). Thus in lieu of a 60/40 distribution I will order a 61.75% distribution in favour of the wife and the balance to the husband. The reason for that is that the s79 exercise requires that I give proper weight to the wife’s contribution derived from her employment, the monies provided by her mother, her post-separation contributions, as well as her financial future having regard to her care of the children. I must also ensure that I give proper weight to the very significant contribution made by the husband, qua his workers’ compensation settlement. Important also is the conceded outcome proposed by the husband.
The wife sought an adjustment greater than which I have found appropriate in the circumstances of this case. She will have to maintain the mortgage payments and have responsibility for paying the car loan. She has been able to do so since separation and I am satisfied is able to continue to make the payments without placing her occupation of the former matrimonial home at risk. Requiring the husband to make an additional payment to the wife in the sum sought by her at trial would be unjust to the husband and give a result that is not appropriate in the factual circumstances of this case. Thus the parties will keep the property that they have, subject to any encumbrances.
Section 68F — determining the best interests of the children
Both parents agree that A enjoys contact with the husband whilst T is at best diffident. The husband attributes his current difficulties in his relationship with his daughter to the wife’s attitude to him as a father. She articulated her attitude to the husband in his relationship with the children succinctly when giving evidence. She was given the opportunity on a number of occasions to identify any benefits to the children of contact with their father. She did not identify any advantages. Rather, she said, “… the more he stays away, the better our lives are; yes.” Her tone and demeanour as a witness were hostile to the husband and his relationship with the children. This hostility, I am satisfied, has been readily communicated to the children. For example, the wife's evidence is she does not speak to the children about the husband. In 1999, I am satisfied that she grabbed the children’s Christmas presents provided by the husband and threw them in the garbage bin. This was motivated purely by dislike for the husband and irritation that he had purchased, in her view, extravagant presents for the children. When the husband telephones the children in the evening to discuss their mutual days, he can hear the wife in the background talking over the children and trying to bring the conversations to an end. It is against this climate of hostility by the wife to the husband that the children’s wishes must be evaluated. Indeed, it is remarkable that A has been able to hold on to his relationship with the husband and that it is as strong as I am satisfied it is. His attendance for contact in Sydney satisfies me that he has a keen desire for contact with the husband.
The wife's evidence is that T is pubescent and difficult. That was her oral testimony. By contrast, her affidavit evidence discloses that T attends Sunday School of her own initiative every Sunday, is an active and reliable team player throughout the sports year and contributes well to school life. The wife interprets from T’s dislike of coming to Sydney to see the mother’s mother, that T would dislike coming to Sydney to see the husband. I do not accept that this follows.
The wife has constrained the husband's contact so that since separation he has travelled most contact weekends to Anna Bay and spent Saturday with the children. This has enabled him to participate in the children’s sports activities, but has diminished the quality of contact because he has not had the facility to take the children to his home and include them in ordinary life. The wife's evidence, which I accept, is that T often during contact goes over to the netball ground and plays with her friends rather than stand on the field watching with her father whilst A plays soccer. This is not surprising and is an inevitable consequence; I am satisfied of the unreasonable constraints placed by the wife on the nature of contact that the husband has been able to exercise.
Nonetheless, the husband has not been able to encourage T to be able to come with him to Sydney for contact on those occasions when A has come. I am satisfied that there has been no positive reinforcement by the wife of the desirability of T spending time with the husband in Sydney. She has, since separation, implacably opposed it. The orders I make will place upon the wife a positive obligation to facilitate contact in Sydney. This, I am satisfied, will be the first time in recent years that the wife will have spoken and acted positively in favour of contact. The wife is without challenge T’s prime care-giver. Changing the nature of the message that the wife gives to the child will, in all likelihood, have a powerful impact upon the child. T will benefit from her mother’s positive guidance and this should materially influence the current negative attitude to spending time with the husband. I was impressed by the husband’s sensitivity to the children and their wishes when giving evidence. He understands that the environment they live in is one which is hostile to their relationship with him. Thus he has not challenged T’s opposition to contact in Sydney in a way that could have been distressing to the child. I am satisfied that he has the capacity to sensitively discuss T’s wishes with her and if it be the case, that on occasion T does not wish to come to Sydney for contact, that he will also sensitively and appropriately respond to her disinclination.
Counsel for the wife pressed on the Court that any order for contact should be subject to the children’s wishes. In the particular circumstances of this case I do not consider an order in that form appropriate. There is too great a risk, in my view, that an order as formulated by counsel for the wife would result in an almost inevitable outcome that no contact would take place between T and the husband in Sydney.
The practical difficulty and expense associated with contact is an important issue in these proceedings. The parties live about 3 hours apart, the wife near Port Stephens and the husband in western Sydney. The wife proposes that the husband do the travel necessary to effect contact and he asks that the wife share it with him. The husband pays about $80 for the costs of diesel fuel for a return journey to Port Stephens. This is a considerable sum given his financial circumstances. If required to do half the travel the wife believes she would incur petrol costs in the approximate sum of $40 each return journey. This is a considerable sum given her financial circumstances. Two issues are of greater significance. Firstly, the effort associated with a return entire journey and the effect it would have on the quality of contact. A complete return journey twice a weekend involves about 10-12 hours driving subject to traffic conditions. At the end of a working week the husband is tired and he considers the return journey a considerable strain. He already shortens contact time because of the strain of travel, inter alia, and pulls over to have a short sleep on the return journey. A half-way change over would share the strain of the travel and maximise the husband's capacity to be reasonably fresh during contact. This will enhance the quality of the contact because he can more actively enjoy the children's company.
It is important that the children receive positive support from the wife vis contact. Effort by her implementing contact will send a strong message to them that contact is in their interests. It may soften the effect of her apparent opposition to the contact. This may help T's relationship with the husband and will have a positive effect on both children. I have carefully considered the effect on the wife of extra travel and the costs of travel. Whilst it will increase the burden of parenting, the advantages to the children make it necessary. The effort is not year round as a consequence of the husband's agreement that contact during March-September will be exercised at Port Stephens on the weekend. It is not thus unduly onerous. I accept that a reasonable changeover point is the Caltex super centre service station near Tuggerah on the Pacific Highway. It is a large multi-functional service station. During school holidays the travel need not be structured around a midway point. Rather because the contact period is longer the parents can share equally the travel but be responsible for an entire journey. There is less strain on the driver when a second trip is not required 2 days later.
The wife challenges to some degree the husband's capacity to meet the children's needs during contact. Thus she sought orders to restrain the consumption of alcohol and use of illicit drugs. Again although the husband was asked questions about marijuana use no evidence was produced by the wife to support the question. Shortly after separation the husband was convicted of a mid range PCA offence. He lost his license for about 1 year. He enjoys a social drink but denies that he drinks to excess. I accept his denials and accept that the orders sought are unnecessary. The wife requires that the husband take annual leave during holiday contact and that the holiday contact be limited to times when he is on vacation. He says he can and will take leave because that is the primary purpose of the contact. However if he needs to go to work for part of the contact he will make arrangements for the childrens care, probably asking his parent's help. This is entirely appropriate. It will give the children the chance to enjoy their extended family and enjoy their father's milieu. It is to their advantage to know the people who also enjoy their father and to put him in a perspective that may stand in stark contrast to the picture their mother has of him. He has the capacity to sensitively gradually involve his partner in contact. The children have already met her, although not in the way he would have preferred. The meeting with T was unplanned and neither was prepared for it. It was not a difficult meeting and will not stand in the way of the children developing an appropriate relationship with Ms O.
I was impressed by the husband's commitment to the children and am satisfied that he has the capacity to meet their physical, intellectual and emotional needs during contact. He was criticised for taking A to work, a building site, during contact. It was submitted that this was in effect inherently risky. The complaint included that the child had concrete dust on his shoes. The husband said the child had wanted to come to see him at work and that A had primarily remained in the car. This was a once only occasion. That it was the subject of continuing criticism once the complete circumstances were now reflects poorly on the wife's attitude to the husband's relationship with the children. I accept that the husband will not take the children to work other than on a rare occasion and that he will ensure that they are not placed in any physical danger. There is no proper basis for making the order.
The parties have previously been physically violent to each other and the wife had the benefit of an ADVO. It is expired. There have been no violent incidents between the parties since October 1999. The husband acknowledged the inappropriateness of his behaviour and had consented to the ADVO. I am satisfied that there is no likelihood of further violence between the parties.
The orders I make must promote the best interests of the children. I am satisfied that they will do so. The children need the opportunity to enjoy the husband's company and participate in his life. The orders I make will enable this to occur. They will be able to maintain their main sports interests. They have many interests, primarily soccer for A and netball and church for T. The summer activities complement but are not the prime sports activities. These interests must be balanced with the need to promote the relationship with the husband. The balance proposed by the husband is an appropriate one, enabling them to keep their connections in their own community and maximise their relationship with their father.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date: 30 May 2001
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