Maddison and Maddison

[2008] FamCA 571

FAMILY COURT OF AUSTRALIA

MADDISON & MADDISON [2008] FamCA 571

FAMILY LAW – CHILDREN – With whom a child lives
FAMILY LAW – PROPERTY SETTLEMENT

APPLICANT: MS MADDISON

RESPONDENT: MR MADDISON

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 274 of 2007

DATE DELIVERED: 20 June 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne  

JUDGMENT OF: Dessau J

HEARING DATE: 20 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr I C Duffy

SOLICITOR FOR THE RESPONDENT: Bayside Lawyers

INDEPENDENT CHILDREN'S LAWYER COUNSEL: Mr N.M. Eidelson

INDEPENDENT CHILDREN'S LAWYER SOLICITOR: Victoria Legal Aid

Orders

1. That all previous Orders be discharged.

Children:

1. That the older son born … March 2001 and the older son born … May 2003 (“the children”) live with the Husband.

2. That the Husband and the Wife have equal shared parental responsibility.

3. That the children spend time with the Wife at times as agreed between the Husband and the Wife and taking into account the wishes of the children.

4. That the Husband be at liberty to enrol the older son in S Primary School from the start of Term 3 2008 and the younger son from the start of Term 1 2009.

5. Pursuant to S65DA(2) and 62B of the Family Law Act 1975  the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders as set out in Annexure A and these particulars are included in these orders.

6. That my reasons for judgment be transcribed and be retained on the Court file.

7. That the Husband’s solicitors shall arrange service on the Mother of a sealed copy of these Orders as soon as practicable.

Property:

1. That the monies being held in a Westpac Bank interest bearing term deposit account being BSB … Account No … at Melbourne in the name of Slater & Gordon Ltd be forthwith released to the solicitors for the Husband.

2. That each party be solely entitled to any superannuation entitlements held in their respective names.

3. That each party otherwise retain all items of property now in their possession including chattels and choses in action.

4. That any encumbrance attached to or affecting any property the subject of these Orders remain the sole responsibility of the party entitled to that property pursuant to these Orders.

5. That my reason of judgement given this day should be transcribed and retained on the Court file.

By the Court:

1. That the Independent Children’s Lawyer be discharged.

2. That the case be removed from the pending cases list.

3. Certify for Counsel.

AND THE COURT NOTES

That these Orders are intended by the parties to finally determine the financial relations between them and to avoid any further proceedings.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 274 of 2007

MS MADDISON

Applicant

And

MR MADDISON

Respondent

REASONS FOR JUDGMENT

1. This case relates to both parenting and property issues.  I am dealing first with the parenting issues, then property.  The children are an elder son who is aged 7 and a younger son who is aged 5. 

2. Unfortunately their mother has not appeared at court today.  I am satisfied that she has had notice of today's proceedings, but she has made it clear to the Independent Children's Lawyer that she would not attend, and she has made it clear to the court in a letter, that she would not attend.  She offers a range of reasons along the lines that she has had enough, she is fed up, she does not have confidence either in the father or the court system, but in any event she has made it clear in a strong and articulate way, that knowing about the proceedings today. I am satisfied in making that decision, she did know about the father’s Amended Response filed on 11 June, and served on the 13 June.

3. I have heard evidence from the father today about the children.  These young boys lived with their mother until Christmas last year.  There has been a lot of heat and contention between the parents.  There is contention as well about how they came to be staying with their father at Christmas time, as to whether that was because he did not return them, or whether the mother had said he could keep them.  In any event, sadly for the boys, since then they have seen very little of their mother. 

4. The older son is apparently showing some signs of unhappiness.  He is particularly unhappy at school.  His father wants to move him to S Primary School where he says he wants to return and will be significantly happier.  It is hard to imagine that the boys are not feeling the effects of their parents’ conflict and not feeling the effect of really a long period for them in their young lives of not having any regular time at all with their mother.

5. I am satisfied on all the material that the father is doing what he can to look after them well.  He lives at a property owned by his grandfather.  No-one else lives there.  He receives government benefits and supports the children accordingly.  There is an Independent Children's Lawyer who has assisted the court today by asking the father various questions in the course of his evidence.  Otherwise the ICL neither supports nor opposes these orders, on the basis that the mother is not here, and all that counsel for the ICL can say is that the orders sought by the father can proceed unopposed.

6. I am satisfied on the evidence before me that although the arrangements for the children are not ideal, because it is ideal for the children to have access to both parents, that they are as much in the best interests of the children as is possible in the difficult circumstances of their mother withdrawing from the proceedings.  It is my hope that she will see her way clear to remembering the fundamental, that she is extremely important to these children, and that she will as soon as possible make contact with the father in an effort to see them. 

7. It is also my expectation that the father will have enough insight and sensitivity to understand that no matter how much his boys love and depend on him, their chances of growing into healthy, well-rounded adults is very greatly reduced if they do not have a relationship with their mother. 

8. I am going to make the orders as sought in relation to the children. I am going to add in the section 65DA(2) and section 62B orders. Mr Duffy needs to explain those to his client.

9. I will also add an order that my reasons for judgment be transcribed and be retained on the court file, and an order that the father's solicitors shall arrange service on the mother of a sealed copy of these orders as soon as practicable. 

10. I have altered paragraph 5 so that it will read that, "The husband be at liberty to enrol the [older son] in [S] Primary School from the start of term 3 2008, and the [younger son] from the start of term 1 2009.

DISCUSSION

1. I gave reasons a few moments ago in relation to children's orders that I was going to make and I now turn to the property matters.  As I noted earlier, the wife in this case has failed to appear and has made it clear that she is not participating further in the proceedings.  That is unfortunate, but it is a decision that she has made and that she articulates in correspondence to the court. 

2. The only asset for distribution is a sum of $32,000 held in trust after the sale of the former matrimonial home, a property that was registered in the wife's name.

3. In a property case I am obliged to take four steps, and I am obliged to take those steps even if one party is not participating.  It means unfortunately that the material on oath before me is only the material of the husband, and I do not have the assistance of sworn material by the wife.

4. As to the first step, assessing the assets and liabilities, doing the best I can with the material that has been made available to me, I find that the parties’ assets are as follows.  There is the one sum of $32,000 in trust.   Each party apparently has motor vehicles.  The husband has two vehicles of nominal value, and the wife appears to have a leased vehicle, probably not leased in her name.

5. Each party has superannuation.  The last read-out on the wife's superannuation shows $7156 as at December 2006.  The husband's superannuation I am told stands at $1463. 

6. Next I must look at each party’s contributions.  There is nothing in the material to suggest other than equal contributions in the course of the relationship, and I say that even though the husband in his affidavit purports to have made a greater contribution by way of paying mortgage payments and improving the property.  He did those things when the parties were living together and had young children.  I take into account that the wife would have been involved in other aspects of contributions to the family.  There is nothing to suggest anything to the contrary.

7. However, before this property was sold, the husband had an appraisal of $400,000 to $430,000.  It was not a sworn valuation.  Still, it is understandable that he is left particularly concerned that the property was sold, without his consent, and realised a significantly lower amount than he would have anticipated, when it was sold by the wife for $363,000.  It appears on the balance of probabilities there may have been a degree of wastage although I cannot make any definitive finding as to what it might have been. 

8. The next aspect that I must consider are the section 75(2) and section 79(4) factors.  The most significant factor in this case is that the husband now has the full-time care of these very young boys.  He has no income other than government benefits.  He receives only $20 per month by way of child support. 

9. Finally I must arrive at a just and equitable result.  In this case, taking into account contributions, and the husband’s responsibility for the children, I shall order that the $32,000 left in the trust account of Slater and Gordon shall be distributed to the husband by way of a full and final property settlement.   

10. I make property orders in accordance with the Minutes of Unopposed Final Property Orders dated today's date. 

11. I direct they remain on the court file and the solicitor for the father will prepare the orders within seven days.  I just add to the orders that my reasons for judgment given this day shall be transcribed and retained on the court file.   

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate: 

Date: