Marks and Marks
[2007] FamCA 950
•28 August 2007
FAMILY COURT OF AUSTRALIA
MARKS & MARKS [2007] FamCA 950
FAMILY LW - CHILDREN - Parental responsibility
FAMILY LAW - CHILDREN - With whom a child spends time
FAMILY LAW - PROPERTY SETTLEMENT
Family Law Act 1975 (Cth)
Coghlan (2005) FLC 93-220, (2005) 33 FamLR 414
APPLICANT: Ms Marks
RESPONDENT: Mr Marks
INTERVENOR: Mrs Marks
FILE NUMBER: SYF 2077 of 2005
DATE DELIVERED: 28 August 2007
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Steele J
HEARING DATE: 23, 24, 25 & 26 July 2007 REPRESENTATION
SOLICITOR FOR THE APPLICANT: Mr. M. Twigg
Adrian Twigg & Co.
COUNSEL FOR THE RESPONDENT: Ms. R. Winfield
SOLICITOR FOR THE RESPONDENT: O’Hara and Company
COUNSEL FOR THE 2ND RESPONDENT: Ms. R. Winfield SOLICITOR FOR THE 2ND RESPONDENT: O’Hara and Company Orders
Parenting Orders
(1)That all previous parenting Orders in relation to D Marks born … July 1999 (“[the child]”) be discharged.
(2)That the child live with the mother.
(3)That the mother have sole parental responsibility for decisions concerning the child.
(4)That the second respondent, Mrs Marks, spend time with the child during school term on the first Saturday of each month from 8 am to 5 pm (subject to Order 5) or alternatively on one other Saturday each month as agreed between the parties.
(5)That in the event that the child has swimming or other sporting activities on a Saturday morning when he is to spend time with Mrs Marks, then the time she spends with him shall commence at the commencement of that activity in lieu of 8 am.
(6)That Mrs Marks collect and return the child at the start and conclusion of the time she spends with him save that when the child has swimming or other sporting activities then the mother will take the child and transport him to that activity.
(7)In addition to the time referred to in Order 4 hereof the second respondent, Mrs Marks spend time with the child from 9 am until 6 pm on two consecutive days during each period of school holidays. In the absence of agreement it shall be the first two days of the second week of the school holiday period.
(8)That the father be permitted to see the child and spend time with him in the following circumstances only:-
(a)When Mrs Marks is present; and
(b)When he has first provided to Mrs Marks a clear urinalysis certificate not more that 48 hours old; and
(c)That Mrs Marks provides the clear certificate of urinalysis to the mother at the changeover at the conclusion of the contact period; and
(d)That the father shall not have taken any illicit drugs in the 24 hour period prior to spending time with the child.
This Order shall cease to have effect after Mrs Marks has provided 24 consecutive clear urinalysis test certificates to the mother.
(9)That if the conditions set out in Order 8 hereof have not been complied with then Mrs Marks will forthwith terminate any contact which is occurring and return the child to the mother.
(10)Pursuant to Section 65DA(2) and Section 62B of the Family Law Act, THE COURT DIRECTS the parties to note:-
(a)That the orders made continue in force until varied (though the Court may vary the orders by consent) and impose upon each of the parties:-
(i)an obligation to do all reasonable things to give effect to the orders; and
(ii)an obligation not to do anything (without lawful excuse) which would be in breach of the orders or would encourage others to breach the orders or to interfere with the exercise or performance of the powers, duties or responsibilities which a person may have under the orders.
(b)The contents of the document entitled “Parenting Orders – obligations, consequences and who can help Fact Sheet” which I now publish and hand a copy to each of the parties. This sets out:-
(i)the penalties which may apply, or other things which may occur, if you breach the orders made; and
(ii)details of who can assist parties to adjust to and comply with the orders made.
Property Orders
(11)That the mother pay to the father the sum of $94,328.35 by way of property settlement, within 60 days of the date of these Orders.
(12)That upon the payment referred to in Order 11 hereof the father transfer to the mother all his right title and interest in the former matrimonial home situated at and known as S property, NSW being the whole of the land contained in Certificate of Title …, subject to the existing encumbrance thereon, and that after the said payment by the mother, the mother shall indemnify the father in relation to all outgoings in respect of the said matrimonial home including all payments in respect of the mortgage, rates, taxes, charges, insurance and expenses in relation to repairs and improvements and any other sums due or accruing in respect of the said property.
(13)That in the event the mother fails to pay the sum referred to in Order 11 hereof:-
(a)Interest shall run on the sum due from the due date for payment at the rate of interest provided in the Family Law Rules;
(b)In the event that the mother remains in default for a period of 30 days or more, then each party take all necessary steps and execute all necessary documents to cause the property situated at and known as S property, NSW (“[S]”) to be sold by private treaty at the earliest possible date at a price to be agreed on between the parties and failing such agreement to be determined by the President of the Real Estate Institute of New South Wales or his nominee and that the proceeds of the said sale be disbursed as follows:-
(i)Payment of agent's commission and advertising expenses and legal expenses of the sale;
(ii)Payment of usual adjustments on settlement;
(iii)Discharge of the Mortgage to Commonwealth Bank of Australia;
(iv)Repayment to the mother of any monies advanced by her for advertising costs, legal fees on the sale, or monies spent by her in order to prepare S for sale;
(v)A priority payment to the father of $40,738.18;
(vi)The nett balance to be divided as to 85 per cent to the mother and 15 per cent to the father.
(c)That for the purposes of the sale in Order (13)(b) hereof, the father and the mother agree upon the appointment of a solicitor or conveyancer to act on the sale, within 7 days of the date Order (13)(b) becomes operative, and in the event that the parties are unable to agree, then the parties accept the nomination of the President of the Law Society of New South Wales to act on the sale.
(d)That for the purposes of the sale in Order (13)(b) hereof, the father and the mother agree upon the appointment of a real estate agent to act on the sale, within 7 days of the date Order (13)(b) becomes operative, and in the event that the parties are unable to agree, then the parties accept the nomination of the President of the Real Estate Institute of New South Wales to act as agent on the sale.
(e)That for the purposes of the sale in Order (13)(b) hereof, the father and the mother agree upon an offering and sale price for the property; but, in the event that the parties are unable to agree upon a sale price, the parties jointly instruct Mr X for the purpose of determining an asking price and selling price. In such a case, the parties shall be responsible for Mr X’s fees equally.
(14)The mother records her agreement that the father is entitled to and she shall make available to the father within 7 days the items set out in “Annexure A” to these Orders. All other items of personalty at the S property are declared to be the property of the mother.
(15)That the father shall transfer to the Wife all of his right title and interest in the Haines Hunter 490c boat and trailer within 7 days of the date of this Order.
(16)Liberty to apply
ANNEXURE ''A"
1Franklin Mint …Plate Collection (approximately 15 Plates)
2Glasses – Beer
3Soapstone Port Glasses
4… Crystal Ornament (Franklin Mint)
5Pentograph – "[…]"
6Trunk of Vinyl LP's (in garage) (excluding trunk)
7Assorted fasteners, brackets and bolts
8"[PJ] Licencee" sign
9Redex participation trial badge of PJ
10Wall paintings (located in garage) previously belonging to Respondent's grandfather
11Electrical fittings, cabling and accessories including light fittings (housed in garage)
12Letterbox constructed by Respondent's grandfather
13Stereo speakers (3 sets) (housed in garage)
14Golf clubs and buggy (previously property of Respondent's father)
15Antique desk (housed under garage awning)
16Weight set (housed under garage awning)
17One mountain bike and one BMX bicycle (housed in garden shed)
18Book shelves (constructed by Respondent's grandfather) (housed in garden shed)
19One yellow tray wheelbarrow, stair climbing trolley and pneumatic wheel trolley
20Four-wheel drive tyres and rims (4 sets)
21Photo collage on garage wall
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Steele delivered this day will for all publication and reporting purposes be referred to as Marks & Marks
FAMILY COURT OF AUSTRALIA AT SYDNEY FILE NUMBER: SYF 2077 of 2005
Ms Marks Applicant
And
Mr Marks Respondent
REASONS FOR JUDGMENT
1.These are proceedings for parenting orders and for property settlement.
2.The parenting proceedings involve a young boy D who is just eight years of age but has had limited contact with his father since separation occurred when he was just eight or nine months old.
3.The father has been a user of and addicted to various drugs and Orders have previously been made by Mr. Mitchell S.M. in the Local Court Family Matters on 22 April 2005, which provided for the father and the paternal grandmother together to have contact with the child and for the father to undergo urinalysis testing 48 hours prior to contact occasions. Further Interim Orders were made by Loughnan JR on 16 May 2006 which also made provision for contact on a regular basis with the paternal grandmother on terms that the father could, if he chose, also be involved provided he first undergo satisfactory urinalysis testing. The Orders also provided for the father to have supervised contact for two hours once per month at the C Contact Service. The mother filed an Application for Review of those Orders but that Application has not been pursued and at the commencement of this case her solicitor consented to her Review Application being dismissed.
4.In the present proceedings, the mother seeks orders that she have sole parental responsibility for the child and that there be no orders for contact with either the father or the paternal grandmother. The detailed orders sought by the mother are set out in her Further Amended Application filed at my direction on 24 July 2007, the second day of trial.
5.The father and the paternal grandmother are both respondents and are represented by the same counsel. When the proceedings commenced before me the paternal grandmother had filed no Response and the father had not filed any Response dealing with the parenting issues. I adjourned the matter so that the relevant Responses could be prepared. I gave leave, in the absence of objection, for a single Response for both Respondents to be filed. The father and the paternal grandmother seek contact (jointly) from 12 noon Saturday until Sunday 6 pm every second week with a proviso that if the father is to have contact he must first provide a certificate of urinalysis testing carried out within 48 hours prior to the contact period. The father seeks an order for equal shared parental responsibility. The detailed orders sought are set out in their joint Amended Response filed 23 July 2007.
6.The property proceedings do not appear to involve any serious issue as to the pool of assets except for some of the father’s debts. There are issues relating to the parties’ initial contributions, contributions by the father’s grandparents during the marriage and some section 75(2) factors.
7.The mother contends for 100 per cent of the property to be transferred to her whilst the father contends for 30 per cent to him including superannuation, although no splitting order is sought.
8.Each of the parties has been represented, the mother by her solicitor and the father and the paternal grandmother by counsel.
Short History
9.Ms Marks (“the mother”) was born in 1968 and is now 39 years of age. She is a public servant employed by the Department of Defence earning $1072 per week. She is in a relationship with Mr. V, aged 52 with whom she resides in the former matrimonial home. The mother says he is presently unemployed and does not contribute towards the costs of the household.
10.Mr Marks (“the father”) was born in 1969 and is 38 years of age. He has not been in any significant employment since about June 2000. He has two other children. The older child, S, born on in 2002 is now five and a half years of age and is the child of a relationship he had with Ms R. S lives with his mother in Sydney having recently relocated from Adelaide. He has a third child, J, who is about one year old. He is the child of Ms G with whom the father resided for a period. He no longer resides with her. He did not disclose the existence of this child until it was discovered in cross examination during the trial. The father suffers from depression and Hepatitis C. He receives a Newstart Allowance from Centrelink but is not in employment.
11.Mrs Marks (“the paternal grandmother”) was born on in 1948 and is now 58 years of age. She lives alone at a western Sydney suburb and is retired.
12.It appears that the parties did not cohabit prior to marriage although they jointly bought a property some six months prior to marriage. The parties were married on … 1991 and separation occurred on 9 April 2000, although the parties were living in separate premises at the same address until the father left the premises in early 2001. A decree nisi was pronounced on 3 December 2004 which became absolute on 4 January 2005.
13.There is only one child of the relationship, D Marks (“[the child]”) born … July 1999 who is now eight years of age. He attends B Public School where he is in grade 3. The father pays child support of $12.00 per month. He has had no contact with the father or paternal grandmother since 5 March 2007.
The Law to be Applied in the Parenting Proceedings
14.The objects of Part VII of the Act are set out in Section 60B, which provides as follows:-
“60B(1) The objects of this Part are to ensure that the best interests of the children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
60B(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
60B(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.”
15.Section 60CA provides that in deciding whether to make a particular parenting order in relation to a child, the Court must have regard to the best interests of the child as the paramount consideration. Section 60CC provides that in determining what is in the child’s best interests, the court must consider the matters set out in Section 60CC (2) and (3). Those subsections set out some fifteen matters which the Court must consider, some as Primary Considerations and others as Additional considerations. So far as relevant, I have considered those matters.
16.Further, Section 61DA provides that in determining which orders are in the child’s best interests the court must (unless there are reasonable grounds to believe a parent has engaged in abuse of the child or another child in the family group or has engaged in family violence) apply a presumption that it is in the child’s best interests for the parents to equally share parental responsibility. The presumption may however be rebutted if the court is satisfied that it would not be appropriate for the parents to have equal shared parental responsibility.
17.Additionally, Section 65DAA provides that if the Court proposes to make an order providing for equally shared parental responsibility (see Section 65DAC), the Court must consider whether it is reasonably practicable for the child to spend equal time with each parent and if so, whether it is in the child’s best interests to do so.
18.If the Court makes an order for equally shared parental responsibility but does not make an order for equal time with each parent, the Court must, in determining what is in the child’s best interests, consider whether it is reasonably practicable and in the child’s best interests for the child to spend “substantial and significant time” with each parent (Section 65DAA(2) and (3)).
19.In considering the issue of what is “reasonably practicable” the Court is required to consider the matters in Section 65DAA(5).
The Law to be Applied in the Property Proceedings
20.The approach to be taken is set out in Section 79 of the Act. Section 79(2) provides that the Court shall not make an order under the section unless it is satisfied that in all the circumstances, it is just and equitable to make the order. I am required in considering what order should be made to take into account the respective contributions of the parties referred to in Section 79(4)(a)(b) and (c). I am required to take into account in addition the effect of any proposed order upon the earning capacity of the parties pursuant to Section 79 (4)(d), the matters referred to in Section 75(2) so far as they are relevant, any other order made under the Act affecting a child and any child support under the Child Support Assessment Act that a party has provided, is to provide or might be liable to provide in the future.
21.The first step in the task, which I have to perform, is to determine the extent and value of the property, the liabilities and the financial resources of the parties at the time of the hearing.
22.I have taken a global approach to the evaluation of the property of the parties and their respective contributions, rather than an asset by asset approach.
23.In this case the parties have, at my direction, produced a list of assets, liabilities and financial resources. The agreed list provided by the parties is as follows:-
| Property Description | Joint F/M | Mother’s Valuation | Father’s Valuation | Agreed or actual valuation | ||||
| ASSETS | ||||||||
| 1. | [S property] | J | 525,000 | |||||
| 2. | IAG Shares | M | 10,366 | |||||
| 3. | Holden Statesman | M | 9,000 | |||||
| 4. | Half Share – Haines Hunter Boat | J | 1,000 | 4,000 | 3,000 | |||
| Total Assets | 547,366 | |||||||
| SUPERANNUATION | ||||||||
| 5. | PSS | M | 249,025 | |||||
| 6. | AMP | F | 6,872 | |||||
| Total Superannuation | 255,897 | |||||||
| LIABILITIES | ||||||||
| 7. | Mortgage [S property] | J | 126,994 | |||||
| 8. | CBA MasterCard | M | 1,500 | |||||
| 9. | HSBC Visa | M | 100 | |||||
| 10. | CC Services | F | 0 | 17,315 | Disputed | |||
| Total Liabilities | 128,594 - 145,909 | |||||||
| NET ASSETS EXCL. SUPER | 401,457 - 418,772 | |||||||
| NET ASSETS INCL. SUPER | 657,354 - 674,669 | |||||||
24.In addition to those listed items there is agreement between the parties relating to an Order to be made dealing with the division of their furniture and that Order will be made with the other Orders made when this judgment is delivered. In addition, there is agreement that the boat, which is item 4, will be transferred to the mother whose parents own the other half share in the boat.
25.There is a dispute in relation to item 10, which is a credit card debt said to have been incurred by the father. The father has given evidence that he owes the money, i.e. $17,315 but there is no evidence when the debt was incurred or that the debt has not been incurred in the nearly six years which have elapsed since separation. I accept that the money is owing but believe it should be ignored for the purposes of distribution and for assessing the contribution based entitlement.
26.Accordingly the relevant assets, liabilities and financial resources of the parties as found are as follows:-
| Property Description | Joint F/M | Mother’s Valuation | Father’s Valuation | Agreed or actual valuation | ||||
| ASSETS | ||||||||
| 1. | [S property] | J | 525,000 | |||||
| 2. | IAG Shares | M | 10,366 | |||||
| 3. | Holden Statesman | M | 9,000 | |||||
| 4. | Half Share – Haines Hunter Boat | J | 1,000 | 4,000 | 3,000 | |||
| Total Assets | 547,366 | |||||||
| SUPERANNUATION | ||||||||
| 5. | PSS | M | 249,025 | |||||
| 6. | AMP | F | 6,872 | |||||
| Total Superannuation | 255,897 | |||||||
| LIABILITIES | ||||||||
| 7. | Mortgage [S property] | J | 126,994 | |||||
| 8. | CBA MasterCard | M | 1,500 | |||||
| 9. | HSBC Visa | M | 100 | |||||
| Total Liabilities | 128,594 | |||||||
| NET ASSETS EXCL. SUPER | 418,772 | |||||||
| NET ASSETS INCL. SUPER | 674,669 | |||||||
The Facts
27.Prior to their marriage in October of 1991, the parties purchased in about February 1991 a property at S for a sum of about $157,500. The mother said that was funded from her personal savings of about $10,000 and savings which she and the father jointly made of $20,000. That sum of $20,000 was matched by an interest free loan of $20,000 from the father’s grandfather, Mr. J. The mother says that the balance of about $117,500 was borrowed from the Commonwealth Bank. I accept the mother’s evidence on these matters, although she personally provided $8,500 rather than $10,000, which is supported by documentary evidence (Exhibit M2). Those contributions, coupled with the fact that each of the parties had a motor car, constituted the initial contributions of the parties.
28.The mother says that between $3,000 and $5,000 was repaid to Mr. J and the balance of the $20,000 was subsequently gifted to them by him. If that was the case, it was of course a generous contribution made on behalf of the father at that time which assisted the parties in being able to purchase their own home. It is not in dispute that what is left of the debt has been forgiven but the mother’s evidence in cross examination is that she and the father paid sums of $500 and $600 to the father’s grandfather on occasions when they saw him and she recorded the payments in a notebook she kept. She said after a time the father’s grandfather told them not to worry about the balance. She thinks they had paid back between $3,000 to $5,000 but she doesn’t have the notebook which she believes the father took. I accept the mother’s evidence that a loan balance of about $15,000 was forgiven. As such it constitutes a contribution on behalf of the father by his grandfather.
29.In addition to the sums referred to above the mother, at the time of marriage, owned an old Holden motor car which had been previously owned by her father. The mother, at the time of marriage, was employed as an administrative services officer and had been a member of the Public Sector Superannuation Scheme for some four and a half years having joined the Fund in April 1987. The father owned a Holden Statesman motor car which he said he purchased about a year before marriage for $7,000 but the mother asserts it was purchased from joint funds.
30.From the time the parties purchased the property at S until about June 2000, the parties rented the S property out to different tenants. During this time the parties were living in premises at the back of the mother’s grandparents’ home paying $70 per week rent and continued living there until well after the child’s birth in July1999.
31.In April 2000, the father moved to reside in a shed at the back of the S property and the mother and the child continued living in the premises at the back of the mother’s grandparents’ place. The house on the S property continued at that time to be occupied by tenants until about mid 2000.
32.It was about the time that the father moved into the shed at the back of the S property in April 2000 that the parties borrowed an extra $100,000 to enable repairs and renovations to be carried out to the S property when the tenants moved out in June 2000. The original mortgage at that time had been reduced to a figure of about $40,000. It was at about that time in April 2000 that the father gave up work.
33.The mother and the child moved into the S house in about November 2000 after the renovations were complete and the father stayed and continued living in the shed at the back of the property.
34.At the time of the marriage, the father was working for W Company and they went into liquidation perhaps around 1993. Another company, G Company took over W Company’s business and the father continued working for them. The mother asserts that the father left G Company in circumstances where allegations of a criminal nature were made against the father which occasioned him to leave. The father denies the truth of those allegations. After leaving G Company, the father went to work for C Company where he worked for some time but the mother says that he again left in circumstances where allegations of a criminal nature were made against him. The father admits he was dismissed and that allegations of that kind were levelled at him but he denied he had been guilty of larceny. He was not charged. After leaving C Company the father was out of work for about a month and then obtained employment at T Company where he continued working until about April or June 2000. He has not worked in any significant employment since that time. The mother says the father told her he gave up work at T Company because he simply didn’t want to go there anymore. The father has conceded that by this time he had adopted a significant drug habit.
35.The mother worked up until a couple of weeks before the child’s birth in July 1999 and after taking the maximum available paid maternity leave, resumed work about two years later. She has continued to work ever since. When the mother returned to work the paternal grandmother, for a period of about nine months, looked after the child for two days per week.
36.As I have indicated, the parties separated under the one roof on 9 April 2000 and ultimately the father left the property at S in about April 2001. From that time, the mother has been responsible for all mortgage payments, upkeep and insurance and all the expenses of raising the child. The father paid no child support until the child was about two years old when the mother obtained an assessment. The father now pays about $12 per month for child support.
37.The mother says that at the time the child was born, the mortgage repayments were about $550 per fortnight and they afterwards reduced to about $460 per fortnight. The father alleges that his family provided support for the mother after separation occurred. The paternal grandmother suggests that she paid child care of $4,656.30 for the child covering the period from July 2001 until May 2002. In addition, she said that she gave the mother $5,400 to pay for a cot, pram and car seat that were put on lay-by. The mother agrees that the paternal grandmother did pay child care in the sum of $4,635.00 and agrees that she did assist in the payment or provision of funds for the payment of a cot, pram and car seat, though she denies it was the sum of $5,400. She initially said she didn’t know what those items cost but thought it may have been about $2,000. She did not agree with the sum of $5,400 referred to in paragraph 187 of the paternal grandmother’s affidavit. Later, at the beginning of the second day of trial she asked to amend her evidence. She said she had found some receipts overnight and was able to say that the amount paid for the cot, pram and car seat was $882. The bundle of receipts became Exhibit F1. I accept the mother’s evidence on those matters.
38.The father alleges also that his grandmother, Ms. J provided funds to assist the mother which should be treated as contributions made on his behalf. Ms. J has provided an affidavit in which she asserts that she made gifts to the mother and child for living expenses. In her affidavit she asserts (in paragraph 8) that she paid to the mother $800 per fortnight for the mortgage and $10,000 for credit cards debts (paragraph 9). In addition, she asserts that she would go shopping every Wednesday and spend about $150 buying food, groceries and petrol for the mother over a period of about two years. As to these matters, the mother says that Ms. J did give her assistance and said that when they would go shopping, the great grandmother would give her a $50 note for petrol and she would fill the car with petrol and give her the change. She said she did help with groceries from time to time for a period of about nine months after 2001 but said she didn’t accept that it was $10,000 as the great grandmother had asserted. She denied that the great grandmother gave her $800 per fortnight for the mortgage. The mother’s evidence in cross examination was that the father’s grandmother did assist by giving her the sum of $600 on about three occasions to meet the mortgage payments (which were $550 per fortnight) after the time of separation in 2001 but the mother denies the father’s grandmother gave her $10,000 for credit card debt. I accept the mother’s evidence on those issues. The great grandmother says (paragraph 7) that she assisted by buying a lounge, curtains and fans for the house. The mother says that the great grandmother did buy a lounge but not curtains and fans.
39.The mother was asked about recent contact between the child and the father. She agreed that pursuant to the Orders made by Loughnan JR on 16 May 2006 arrangements were in place in the latter part of 2006 for monthly contact for a period of two hours at the C Contact Service to facilitate contact between the child and the father. The mother says there were four such occasions of contact in the period up to Christmas 2006 and she agreed that, early this year, the Contact Service had rung her to see whether she was going to continue or whether they could close the file. The mother said that she did understand that at that time she had an opportunity to continue but she resented the fact she had to pay for the contact to occur at the Contact Service when it was within the father’s power to avoid the payment of a fee by being drug-free. If he was drug-free then the contact service would not charge. As it was, she had to pay $60 per hour for the contact occasions with the result that these occasions of supervised contact had not continued.
40.The monthly contact ordered has not occurred since Christmas 2006 and there has been no contact since March 2007. The mother’s explanation for this lack of contact seemed to centre on the fact that the child attended a swimming carnival on 5 March 2007 when the mother was unable to attend. The mother says that the child let the paternal grandmother and the father know, virtually by accident, that he would be swimming in the carnival and that his mother was not going. They turned up at the carnival together and sat next to the child, which she says the child found embarrassing. This contact, she says, was in breach of the Orders because the father had undergone no drug testing beforehand. It appears that shortly after these events, the child did behave in an unusual way at the After School Care Centre and the head of the After School Care Centre wrote to the mother suggesting that the child had some problems. The mother said that the child was embarrassed to tell the lady at the After School Care Centre the real cause of his concerns but that he had told her his problems were caused by his being upset at the appearance of the father and paternal grandmother at the swimming carnival.
41.The mother said in cross examination that the paternal grandmother is not responsible and that she is concerned for the child’s safety when he is with her. She gave as an example an occasion when the paternal grandmother left the child and his half brother S alone in the cinema theatre at ages four and five years when they really didn’t know each other at all. She denied however, that she did not want the child to have a relationship with the paternal grandmother or the father.
42.The mother said that the child calls his father “[J]” and calls her partner Mr V “Dad” when he is at school but to his face he calls him “[H]”.
43.There is affidavit evidence dealing with a number of possible occasions of contact when, for various reasons, contact did or did not occur. Many of those occasions of contact did not occur because the father did not have drug testing carried out, the results were positive or the results were provided to the mother at a time which was late. From affidavit material provided by the father’s solicitor, the mother’s solicitor has prepared a schedule dealing with the number of occasions when the father could have undergone testing it appears that of 44 possible occasions the father has actually undergone testing on 16 occasions and he failed those tests on six occasions. In addition to those six occasions there were two occasions when the test report spelled out that there were indicators that the sample may have been diluted and may be unsatisfactory. There have been some occasions when the father has provided a clear test certificate but has provided it at a time which was marginally late, on a couple of occasions by as little as 20 minutes or so. On those occasions the mother simply took the view that the father had not complied with the orders and so she would not allow contact to take place. During cross examination, she was unable to give any reasonable explanation for being so rigid and unyielding in refusing contact but denied that she did not regard the father as being important in the child’s life.
44.The mother said that the statement contained in the Family Report at paragraph 18 that she regarded the father as “just a sperm donor” did not fairly represent her views. She said that what she was trying to explain to the counsellor was that in effect, the father took no active part in the child’s life other than having provided the sperm which gave rise to his existence.
45.The mother left me with the impression that she was an intense but good person who was very devoted to the child. I accept her evidence as being truthful on most matters, although it is somewhat difficult to assess her assertion that she understands the value of the child having a worthwhile relationship with the father. I think she probably does not see the child as being likely to benefit to any significant degree in having a real relationship with the father. For my own part, whilst it may be a somewhat harsh assessment, having seen the father give evidence for a lengthy period in the Court, it does seem to me that the benefits the father can provide to the child are likely to be at the lower end of the scale. After observing the father give evidence, I am better able to understand, though perhaps not entirely agree with, the mother’s assessment of the value of his relationship with the child.
46.The father was cross examined at some length. He was asked about the observation made by the counsellor and recorded in the Family Report (paragraph 46) that he appeared to be under the influence of substances on the day he was interviewed for the Family Report. The father responded by saying that three days prior to the interview for the Family Report he had taken a sleeping tablet which a friend had given him and that it had affected him. I find that explanation difficult to accept in that unless it was an unusual “sleeping tablet” which the father described, it is unlikely to be affecting him seriously three days later. That, of course, is a layman’s view expressed with limited understanding of sleeping pills but I have some difficulty in accepting the father’s explanation of his condition at the time of interview. The degree of alertness demonstrated by the father during the giving of evidence varied considerably.
47.The Orders which were in force after May 2006 provided for the father to have contact at the C Contact Service every month and for the paternal grandmother to have contact unsupervised once a month. The Orders provided however, that if the father provided a clear urinalysis certificate for testing 48 hour prior to the occasion of contact with the paternal grandmother, then he could join in that contact. He agreed that he had not attended at a scheduled contact arrangement since December 2006 and that his last drug testing had been carried out in July 2006, although he thought there may have been one since. He was unable to produce any such certificate. He claimed it was his understanding that after December 2006 he was not able to have contact anymore without going back to Court. It is not in dispute that on 5 March 2007 the paternal grandmother having had contact some two days earlier attended with the father (who had not subjected himself to a drug test) at the child’s swimming carnival knowing that the mother would not be there. It appears that occasioned some stress to the child so that the mother would not permit contact to take place after that time, taking the view that the paternal grandmother had breached the Orders.
48.The father conceded that except for the swimming carnival in March 2007 he had not seen the child since December 2006 but had made no attempt to undergo any drug tests which might open the door to contact. He had not attempted to arrange contact in that time.
49.The father denied that he currently takes illicit drugs and says that he has not used illicit drugs since December 2006. He said he could not remember how long it was before that occasion he had previously used drugs. He had only a vague memory of the proceedings in Court in April 2005 and said that he suffers from a bad memory. He said his drug use may have played a part in that loss of memory as well as his past drinking.
50.The father was asked about the criticism of the mother during cross examination in failing to support the building of a relationship between the child the child and the father’s other child S. During further cross examination it became apparent that the father has a third child, J to his former partner Ms G and conceded that he had not told the mother anything about this previously. He said that the child was born before he swore his affidavit on 17 August 2006, relied on in these proceedings, in which affidavit he made no mention of the child. He said however, that he didn’t know for some time that the child was his, and it was only eight or nine months ago that he became aware it was his child.
51.The father agreed that he had been admitted to Concord Hospital following a suicide attempt on 1 September 2005 when he had slashed his wrists. He gave a record to the hospital of a history of use of intravenous amphetamines on two occasions in the previous seven days and it was recorded that in the three months prior to his admission, he was taking intravenous “speed” daily. He said he might have had one test done since July 2006 but thinks it may have returned a positive result as a consequence of medication he had taken.
52.The father said that he had been a heavy drinker since about 1992, drinking of the order of 10 standard drinks a day and perhaps something of the order of 15 to 20.
53.The father conceded that when in about mid 2004 the parties obtained an additional loan of $100,000 to fund renovations to the S property that he did spend some of those moneys on drugs. He said, “[The wife] may have given me money from time to time and I may have lied to [the wife]”. He said that he may have spent $500 to $1,000 on occasions but denied it was anything near $20,000. He said when he was using amphetamines daily he would spend $200 to $300 per week.
54.Importantly, the father was questioned about the effect of the drugs upon him. He said he had used ecstasy, amphetamines, both orally and intravenously, marijuana and methamphetamines, though he professed not to know whether or not methamphetamines were in fact known as “Meth Ice”. He said that it was his view that he could still look after the child if he was on drugs and affected by them. Questioned further about that, he seemed to understand that his answer may have been questionable, but did not withdraw it.
55.That father said that he is now paying child support of about $12 a month for the child. He said he pays a total of $38 a month which is divided amongst his now three children. He said that other than about two sums of $200 which his mother gave him in the early days after separation which he passed on to the wife, he has payed no more than the assessed child support at any time since separation. He said that other than a day or so per week for a period of about six weeks he hasn’t worked since separation occurred. He conceded that in the five years since 2002 his family has contributed nothing towards the child’s support except the assessed child support, which he pays.
56.The father agreed that since shortly after the birth of the child his contribution to the household reduced because he was on drugs and later after he gave up work his financial contribution was nil. He agreed he has not worked since about April 2000 and since then he had made no contribution the mortgage, the rates, insurance or maintenance of the S property.
57.Asked about the loan of $20,000 from his grandfather, the father said that the loan was made and there were repayments of $3000, perhaps $4,000 or $5,000 made by him and the mother but he thought they were made in relation to another sum which the grandfather lent them after they purchased the home in order to enable them to do repairs sufficient to rent the property out.
58.The father agreed that it was not uncommon for him to use his MasterCard and withdraw $200 or $300 per week or even $200 or $300 per day for the purchase of drugs. He said he did, in addition, provide drugs to a friend from time to time. The father said in addition that he used his MasterCard at brothels on at least one occasion and used cash on at least one other occasion. He agreed that there had been cash withdrawals on his MasterCard of $1,000 on 29 May 2000, $1,000 on 30 May 2000, $1,000 on 31 May 2000 and $1,000 on 1 June 2000. He said he could not remember what those moneys were for but agreed they were cash withdrawals. He agreed that in May/June 2000 he spent money totalling $900 for a woman called K at … Hotel. He said she was a platonic friend. Copies of the father’s GM MasterCard were tendered as Exhibit M6. These documents indicated inter alia that in the four days between 29 May 2000 and 1 June 2000 the father actually withdrew cash amounts of about $6,000. He was unable to say what he used the cash for.
59.The father’s evidence in total, but in particular, his evidence about his failure to undergo drug testing or attempt to make any arrangements to have contact with the child lead me to conclude that his attachment to the child is not a very strong one and he is an untruthful witness. His attachment to the child is such that if his mother had not pushed him into it, he may not have had even the low level of contact which has occurred to date. I am by no means convinced that he does not continue to use drugs and he has not attempted to put forward any evidence by any medical practitioner dealing with treatment which he has had or anything to suggest his drug problems are under control. Indeed, the evidence such as it is, would suggest he is having no treatment. The child deserves to know who his father is and he deserves to have a good relationship with his father. I have some difficulty in foreseeing the relationship ever being built to the point where it reaches the level the child deserves.
60.The father agreed that, especially having regard to his past conduct, his mother had been the moving force in endeavouring to have contact with and arrange for orders providing for contact with the child. He agreed that if it had not been for his mother then this case might never have got off the ground.
61.The paternal grandmother, Mrs Marks was cross examined. She was asked about the mortgage payments which she said in her affidavit had been paid by her mother. She had referred to this money in paragraph 183 of her affidavit filed on 17 August 2006 and had recorded in that affidavit that she observed her mother pay over sums of $800 a fortnight for a period of two years up until May 2002. She had, of course, been present in Court when the mother, Ms. Marks, gave evidence that the fortnightly mortgage payments were not $800 but $550. When the paternal grandmother gave her evidence, she said she remembered that it was $600 a fortnight which her mother gave Ms Marks and not $800. She said her mother handed the money over on 10, 11, maybe it could have been 20 times and paid $600 every time. This change in the evidence was significant because there was no reason for the paternal great grandmother to give the mother sums of $800 when the mortgage was in fact just less than $600 per fortnight. The mother, of course, denied that any money was handed over except on three occasions when she received sums of $600 each. She stoutly denied any suggestion that she had regularly received $600 per fortnight from the paternal great grandmother over a period of two years for the mortgage. It was somewhat curious when the paternal grandmother indicated that change in her evidence from her affidavit but it became more curious still when the paternal great grandmother (Mrs. J) gave evidence and also changed her evidence relating to the alleged payments of $800 per fortnight, which were referred to in her affidavit, to a figure of $600 per fortnight. I don’t accept the evidence of the paternal grandmother or her mother, Mrs. J and accept the evidence of the mother, Ms. Marks on those matters.
62.After she commenced giving her evidence, the paternal grandmother said that she conceded that any suggestion that the cot, pram and car seat was worth $5,400 was not correct and indicated also that to the extent that she and her mother were the holders of a joint power of attorney in respect of her father’s affairs, they had no intention of calling in the outstanding loan of $20,000 made by her father which she contended was still owing.
63.The paternal grandmother was asked about the father’s drug problem and said that she does not believe he has a drug problem now. She said she conceded that the father should not be able to spend time with the child if he is under the influence of drugs but if he is not under the influence of drugs he should be able to see the child. She conceded however, that she can’t always tell if he is on drugs but said that he doesn’t drink alcohol at all now.
64.The paternal grandmother agreed that her other son, …, had also had his own problems with drugs and alcohol but she said he is not doing it at present. He doesn’t use marijuana anymore and he doesn’t use alcohol to excess now.
65.The paternal grandmother said that if she was to have the child stay overnight in her house, she would always be present when the child is in her home. She said that the father had been living with her for a period of about a month but he was intending to leave soon. The paternal grandmother was asked whether it was not part of her grand plan for the father to have more time with the child and that was the motivation for her pursuing orders for contact. She said that was part of her ambition but the father would have to have clear drug tests before he would be able to see the child.
66.Referring again to the mortgage contributions that she asserted had been made by her mother, she said she wasn’t present on every occasion when they were made and the last occasion she was present was May 2002 when the child went into childcare full time.
67.The paternal grandmother was asked about paragraph 184 of her affidavit which recorded that her mother had given the mother money to pay her credit card “amounting to about $10,000” which stopped when the mother stopped bringing the child to her for child care in mid 2002. She said there was not one payment of $10,000 but she thought there were two payments of $5,000 which were all paid in cash. Later when her mother, Mrs. J gave evidence, she gave exactly the same evidence that she had made two payments of $5,000, whereas in paragraph 9 of her affidavit sworn some year prior to her giving evidence she had said “from time to time I gave money to the wife saying words to the effect ‘use this to pay your credit card’. From recollection this amounted to about $10,000 and I stopped when the wife stopped taking [the child] to my daughter in mid 2002.” Again, this evidence had changed from that in the affidavit and accorded precisely with what the paternal grandmother had said, namely that two payments of $5,000, all in cash, had been made. The wording of paragraph 9 of Mrs. J’s affidavit is inconsistent with the proposition that two only payments of $5,000 each were made. I do not accept the evidence of the paternal grandmother or her mother, Mrs. J, on those issues.
68.The paternal great mother, Mrs. J, was also cross examined upon her affidavit which had been filed on 1 August 2006. It is common ground that at the time father and mother purchased the S property in February 1991, the paternal great grandmother’s husband, Mr J, provided a loan of $20,000 to the parties to help them fund the purchase of the S property. The mother’s case, which I accept, is that they repaid about $3,000 to $5,000 of that money and after they had done that, Mr. J told them to forget the balance. He had, however, asked them to execute a mortgage in respect of the $20,000 which they had each done. The father in giving his evidence about this matter said that they had paid back $3,000, $4,000, he thought maybe $5,000 but that was off some other moneys that were lent to them by him to enable them to ready the place for letting out. He agreed however, that his grandfather did not require the money to be repaid. The paternal great grandmother, who says she remembers all the events of those times, claims that her husband who now has Alzheimer’s Disease and has provided a power of attorney to her and her daughter, Mr. J said “I’ll give you the $20,000 but if the marriage breaks up I want my money back.” That may, of course, be consistent with the mortgage which he required the parties to execute. Nonetheless, the paternal great grandmother claimed to remember the detail of those conversations now some 16 years ago. Both the father and the mother say however, that the balance was forgiven years ago by the father’s grandfather.
69.A Family Report was provided by Ms. H, family consultant. She was not required for cross examination by the father or the paternal grandmother and was not available to be cross examined by the mother’s solicitor, in circumstances where no advance notice requiring her to be available for cross examination was given. At the time the family consultant prepared the report, the mother was proposing that the child should have two hours per month of supervised contact with the father at a contact centre. By the time the matter came before the Court however, her application had changed so that she opposed any orders being made which would provide for any contact between the father or the paternal grandmother and the child. In the course of giving her evidence however, the mother again changed her position so that she indicated she had no real opposition to the paternal grandmother having contact during the day with the child on a monthly basis but no overnight contact and no contact with the father. Importantly, the family consultant recorded her observation that during interview the father was sweating and appeared drowsy. She recorded that his explanation for not spending time with the child since December 2006 was because he was “fed up” with providing urinalysis results. That material is at odds with the father’s own evidence, although he concedes that he has had no contact since December 2006 and undergone no urinalysis testing since July 2006. She recorded that the father acknowledged having attempted suicide in 2005 by cutting his wrists, something he acknowledged during cross examination. The child expressed the view to the family consultant that he has fun when he spends time with his father and said that he would like to see his father for two hours each month but not at a contact centre because it is “stinky and smelly”. The family consultant recorded information obtained from the principal at B Public School where the child attends indicating that he is an above average student with no behavioural difficulties.
70.The family consultant expressed the view that the child was well aware of the mother’s hostility towards his father but expressed the view that the child should be protected from exposure to the conflict between his parents. She said that there seemed to be sufficient evidence to indicate that the father does have a substance abuse problem and if he was to spend time with the child whilst affected by substances, this could create a physically and emotionally unsafe environment for the child and make him feel anxious. I should record here that as a consequence of all the evidence in the case it is clear beyond argument that the father has a substance abuse problem, although he suggests that he has not taken illicit substances for a period of some six months. The family consultant expressed the view that it would not be beneficial for the child to spend time with his father if he was intoxicated. She recorded that having regard to the concerns about the father and his various problems it is understandable that the mother and her partner Mr. V are having difficulties promoting the father to the child. She said that there were no indications that the child would be at risk while spending overnights with the paternal grandmother. The family consultant ultimately made recommendations that the child live with his mother and spend 24 hours from midday Saturday until midday Sunday once a month with the paternal grandmother. She recommended that the father only spend time with the child in conjunction with time spent with the paternal grandmother and that the child should not be left solely in the care of the father at any time. She recommended that if the father was to be present at any contact which the child has with the paternal grandmother, he should only be permitted to be present in circumstances where clear urinalysis testing has been carried out within 48 hours beforehand. The family consultant recommended that the child spend up to three days with the paternal grandmother during the school holidays.
71.In my view, the presumption spelled out in s.61DA(1) of the Family Law Act has been rebutted in the circumstances of this case. In my view, the father is not committed to the task of making decisions about the child and quite possibly, not fit to do so. If an Order were made for equal shared parental responsibility, then in my view, the father’s input would, in fact, be the input of the paternal grandmother and not the father himself. Whilst it may not necessarily be a bad thing that the paternal grandmother may have some input, it is my view that having regard to the fact that the mother has done very well with the child to this point of time, it would be an unfair burden on her to expect that she would consult nominally with the father but in practice with the paternal grandmother about these matters. It is my view, having seen the father give evidence for some time in the witness box, that the reality of the position is that he does not want the responsibility in any event. In those circumstances, it seems to me that I should make an order that the mother have sole parental responsibility for the child and I propose to so order.
The Section 60CC(2) and (3) Matters
The Primary Considerations
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents.
The child has a good loving relationship with his mother, which is of great importance to him and that is likely to continue. The child’s relationship with the father is somewhat limited and the prospects of it improving seem to be minimal having regard to the father’s repeated substance abuse and perhaps consequential lack of interest. I am not inclined to accept his evidence that there has been no substance abuse in recent times in circumstances where he has produced no evidence of any medical treatment and he has declined to have any urinalysis testing carried out. It seems to me most likely that if it were not for the intervention of the paternal grandmother, the father would have virtually no contact with the child.
(b)The need to protect the child from physical and psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The family consultant has recorded, and I accept, that the child may be subjected to both physical or psychological harm if he was to have contact with the father, especially if it was alone, in circumstances where the father is affected by drugs or alcohol. There was an occasion at the swimming carnival on 5 March 2007 when the paternal grandmother failed to ensure that the father did not have contact with the child in circumstance where no urinalysis testing had been carried out. It is my view that the paternal grandmother has a real desire for the father to have a relationship with the child. That is not to be criticised but I do have concerns that in pursuing that desire she may form biased judgments in favour of the father and be inclined to limit the extent to which the child’s best interests are pursued.
Additional Considerations
(a)Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The child is only eight years of age and is to some extent influenced by concerns expressed, if not to the child then probably in the child’s presence, about the father and his problems. Nonetheless the child has indicated that he does enjoy his time with his father. In all the circumstances, it is difficult however to place great weight upon the child’s expression of wish and as he gets older and the father’s problems become more evident it may be even more difficult for him.
(b)The nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child)
I have already recorded my views about the child’s relationship with his parents. The child’s relationship with the paternal grandmother is important. His views about it as expressed to the family consultant would seem to indicate it is not especially important to him but she is the only connection to his father’s family and she has had a relationship with him of a consistent nature since he was a very small child. There is little doubt that she has a true affection for him but her desire to build a relationship between the child and his father may, as I have indicated, mean that the child’s interests are to some extent sublimated.
(c)The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (having regard to the matters spelt out in s.60CC(4)).
It is clear that the mother has difficulty in promoting the child’s relationship with the father. I believe whilst she understands children should have a relationship with their father, in this case she has difficulty in seeing how it could benefit the child having regard to the father’s difficulties. I have already recorded my views about the father’s failure to be involved with the child to the extent which would have been possible.
(d)The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
None of these matters are relevant in the present context except that if the child is able to spend time with the paternal grandmother, then he may have an opportunity to learn of and to know his two half siblings, S and J, which in the long term may be of some benefit to him.
(e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
There is no real difficulty in the child spending time with the paternal grandmother, but the child has expressed some reservations about his concerns for overnight stays, as has the mother. Daytime stays with the paternal grandmother will enable the child to continue his relationship with the paternal grandmother and possibly through her with the father.
(f)The capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child
to provide for the needs of the child, including emotional and intellectual needs.
The father’ capacity to provide for the needs of the child are very limited indeed. The mother has done a very good job in looking after the child in difficult financial circumstances no doubt and he is doing well at school and seems to be socially well adjusted. The mother deserves credit for that.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
There is nothing relevant.
(h)If the child is an Aboriginal Child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right.
Not relevant.
(i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents (having regard to the matters spelt out in s.60CC(4)).
To this point of time in the child’s life, the mother has accepted all the burdens and responsibilities of making decisions about the child. The father has had only a limited part to play in the child’s life because of his own unwillingness or refusal to take part in urinalysis testing which would enable him to have contact with the child. The mother has to this point in time made all the decisions in relation to the child’s well being and he seems to be doing well except in terms of his relationship with his father. The mother has accepted and the father has ignored the financial responsibility for raising the child.
(j)Any family violence involving the child or a member of the child’s family.
There were problems of violence at times just prior to and following separation.
(k)Any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person.
An Apprehended Violence Order for the protection of the mother was made in 2003 and the following year the father was convicted of a breach of the Apprehended Violence Order and placed on a six month bond. There is however no current Order in place.
(l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
This is not relevant.
(m)Any other fact or circumstance that the court thinks is relevant.
There are none.
The Resolution of the Parenting Issues
72.In the result and for reasons which I have earlier expressed, it is my view that the child should live with the mother who should have sole parental responsibility for the child.
73.The child has expressed concern about spending overnight periods with the paternal grandmother and the mother is uneasy about that also. The mother’s concerns derive in part from her concern that overnight periods may create difficulties with the father if he was to be present at the premises and the mother, in reality and with some justification, does not accept that the paternal grandmother may strictly adhere to arrangements for the father to have urinalysis testing before coming into contact with the child. It seems to me that a full day of contact between the child and the paternal grandmother each month from 8 am to 5 pm would serve the purpose of keeping the child in contact with his father’s family and possibly, if he is prepared to undergo urinalysis testing and refrains from using drugs, the father himself. I propose to make Orders which would provide for the paternal grandmother to supply the certificate of urinalysis testing to the mother at changeover at the end of the contact period if the father has in fact had time with the child during that day. This, I hope, will overcome the difficulties which have occurred in the past about rigid adherence to time factors in providing the certificate of urinalysis which must be not more that 48 hours old.
74.I do not propose to make Orders for overnight contact or for a three day block of contact during school holidays as the family consultant has recommended. I would, however, make an Order which provides for the child to spend two days in succession with the paternal grandmother during holiday periods provided he returns to the mother’s premises on the evening in between.
75.I do not propose to make any Orders which would enable the mother, in effect, to require the father to undergo drug testing as required by the mother from time to time. It would be cumbersome and expensive. The Orders proposed should provide that in the event that the father does not provide a certificate of urinalysis testing at the time he spends time with the child then the paternal grandmother will immediately return the child to the mother.
The Resolution of the Property Issues
The Section 79(4) Contributions
76.Consistent with the direction in Coghlan I propose to consider contributions to the non superannuation pool and the superannuation pool separately. The most significant factors, though not recorded in any particular order are as follows:-
·The parties’ initial contributions were roughly equal, although the mother had superannuation entitlements of about $22,000 at that time. Both parties were employed and although there is no admissible evidence of it, it may be that the father’s motor vehicle was worth a little more than the mother’s.
·The parties purchased the S property in February 1991 and their contribution to that purchase was equal save for the $20,000 interest free loan made by the father’s grandfather at that time.
·I have found that the father and mother between them repaid some $5,000 to the father’s grandfather who subsequently forgave the balance outstanding of about $15,000.
·Each of the parties worked hard during the marriage up until about July 1999 when the child was born and the mother took paid maternity leave.
·The father’s mother assisted for a period of about nine months in caring for the child on two days per week when the mother returned to work.
·From the time the child was born until separation occurred nearly one year later, the father commenced using drugs and, as he had done for a number of years, drank heavily. The father’s physical contributions to the household diminished during that time and the mother’s contributions were made under difficult circumstances.
·In the period of time since separation in April 2000, the father has made no contribution to the household in a financial sense and there has been minimal contribution to the cost of the child.
·The father’s mother made contributions of some $4,600 towards child care and $882 towards the costs of a cot, pram and car seat.
·The father’s grandmother assisted the mother in the period after separation with three mortgage payments totalling about $1,800, items for food, petrol from time to time and a lounge suite which all together may amount to about $3000 to $4,000.
·In the period between the time of the marriage and July 1999 when the child was born, the father did do work around the house by way of renovations and repairs, however he drank heavily and the mother’s contributions during those times were made under very difficult circumstances.
·In the period since separation, the mother has paid all the mortgage payments and upkeep on the house and spent a significant sum of money on repairs to the house.
·The father has wasted money on drugs and probably gambling. The evidence establishes $6,000 of unexplained expenditure in late May and early June 2000. I am satisfied that was spent by him probably on drugs. It is not possible to put a figure on how much he wasted.
·The mother has, since separation, occupied the house free of rent with the child but as I have said, has maintained the property during that time and paid all the mortgage payments, upkeep and insurance. If she had not serviced the mortgage and maintained the property then the father would not have benefited from any increase in value which may have occurred between separation in 2001 and the present. I am conscious, however, that there is no evidence of any increase in value in that time.
77.Having regard to those matters I would assess the parties’ contribution based entitlements to the non superannuation assets in the proportions of 65/35 in favour of the wife.
78.Superannuation – The total superannuation pool is $255,897 of which $249,000 belongs to the wife. No splitting order is sought. The evidence (Exhibit M4) indicates that at about the time of cohabitation the wife’s entitlement had a value of about $22,000 and just after separation on 30 June 2000 had a value of about $105,000. The husband can be said to have made some contribution to that increment of just over $80,000 in that he was part of the household earning funds and forewent the availability to the household of those moneys which the mother paid by way of superannuation. Of course the balance at the time of separation would have increased in any event without further contributions from the mother so that father may be seen to have made some contribution to that increase but to the extent that the mother’s contributions have increased the balance to a sum of nearly $250,000 then the father has made no further contribution to that.
79.Having regard to those matters I would assess the parties’ respective contributions to the superannuation pool at 80/20 in favour of the mother.
80.The non superannuation pool represents 62 per cent of the total pool and the superannuation pool represents 38 per cent of the total pool.
81.Having regard to those percentages and the contributions I have found to have been made to each of the pools, then the overall contribution based entitlement of the parties I find to be 70/30 in favour of the mother, though if mathematical precision is required, it calculates at 70.7 per cent.
The Section 75(2) Matters
82.The most significant matters, though again not in any particular order, are as follows:-
·The mother is 39 and the father is 38. The mother is in good health. The father has had and may continue to have a drug problem but there is no admissible evidence that he is not in good health otherwise.
·The mother has full time employment as a public servant with the Department of Defence earning in excess of $1,000 per week. On the father’s behalf it is asserted that he is unable to obtain employment because of his problems with drugs however there is no medical evidence before me which indicates that he is in fact unable to work. I accept that in practical terms, having not worked for about seven years that he might well find it difficult to obtain employment and it may even be that he continues to be affected by the use of drugs however the husband has not put any evidence forward on any of those issues.
·Perhaps the most significant factor is that the mother will, for at least the next 10 years and possibly longer, have the obligation both financial and otherwise of caring for the child who is now eight years of age. The father pays about $12 per month in child support but he has two other children who have a claim to his largesse if he is able to obtain employment and he has shown no sign that he is sensitive to the mother’s need for funds to raise the child. I think it unlikely that the mother will receive anything significant from the father by way of child support.
·As I have recorded, the father does have an obligation to contribute to the support of his two other children. As I understand it, his commitment to the other two children is a total of about $25 per month.
·There is no evidence which specifies the date at which the mother’s superannuation can be accessed but I assume that at the very least it would be at the time of retirement and possibly with a requirement of her having first reached age 55 years. It is apparent that the wife is going to have to work for many years before the superannuation entitlement, such as it is, can be accessed.
83.Having regard to these various matters, it is my view that there should be an adjustment in favour of the wife for s.75(2) factors of 15 per cent making a total adjustment of the property of the parties as to 85 per cent to the mother and 15 per cent to the father.
The Effect of the Property Orders
The mother will receive:-
[S property] (Item 1)
$525,000.00
IAG Shares (Item 2)
$10,366.00
Half share in boat (Item 4)
$3,000.00
Holden Statesman (Item 3)
$9,000.00
PSS Superannuation (Item 5)
$249,025.00
$796,391.00
Less
Mortgage [S property] (Item 7)
$126,994.00
CBA MasterCard (Item 8)
$1,500.00
HSBC Visa (Item 9)
$100.00
$128,594.00
Cash payment to father
$94,328.35
$222,922.35
Total
$573,468.65
The father will receive:-
AMP Superannuation (Item 6)
$6,872.00
Cash payment from mother
$94,328.35
Total
$101,200.35
84.The mother will be required to pay out the mortgage on the S property and will not be able to access her superannuation entitlements for some years.
85.Although not included in the list of assets and liabilities I am conscious of the fact that the father is required to pay a credit card debt of some $17,000.
86.I am satisfied that the effect of the orders so made will be just and equitable.
I certify that the preceding eighty six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Steele
Associate:
Date: 28 August 2007
The Orders
Parenting Orders
(1)That all previous parenting Orders in relation to D Marks born … July 1999 (“the child”) be discharged.
(2)That the child live with the mother.
(3)That the mother have sole parental responsibility for decisions concerning the child.
(4)That the second respondent, Mrs Marks, spend time with the child during school term on the first Saturday of each month from 8 am to 5 pm (subject to Order 5) or alternatively on one other Saturday each month as agreed between the parties.
(5)That in the event that the child has swimming or other sporting activities on a Saturday morning when he is to spend time with Mrs Marks, then the time she spends with him shall commence at the commencement of that activity in lieu of 8 am.
(6)That Mrs Marks collect and return the child at the start and conclusion of the time she spends with him save that when the child has swimming or other sporting activities then the mother will take the child and transport him to that activity.
(7)In addition to the time referred to in Order 4 hereof the second respondent, Mrs Marks spend time with the child from 9 am until 6 pm on two consecutive days during each period of school holidays. In the absence of agreement it shall be the first two days of the second week of the school holiday period.
(8)That the father be permitted to see the child and spend time with him in the following circumstances only:-
(a)When Mrs Marks is present; and
(b)When he has first provided to Mrs Marks a clear urinalysis certificate not more that 48 hours old; and
(c)That Mrs Marks provides the clear certificate of urinalysis to the mother at the changeover at the conclusion of the contact period; and
(d)That the father shall not have taken any illicit drugs in the 24 hour period prior to spending time with the child.
This Order shall cease to have effect after Mrs Marks has provided 24 consecutive clear urinalysis test certificates to the mother.
(9)That if the conditions set out in Order 8 hereof have not been complied with then Mrs Marks will forthwith terminate any contact which is occurring and return the child to the mother.
(10)Pursuant to Section 65DA(2) and Section 62B of the Family Law Act, THE COURT DIRECTS the parties to note:-
(c)That the orders made continue in force until varied (though the Court may vary the orders by consent) and impose upon each of the parties:-
(iii)an obligation to do all reasonable things to give effect to the orders; and
(iv)an obligation not to do anything (without lawful excuse) which would be in breach of the orders or would encourage others to breach the orders or to interfere with the exercise or performance of the powers, duties or responsibilities which a person may have under the orders.
(d)The contents of the document entitled “Parenting Orders – obligations, consequences and who can help Fact Sheet” which I now publish and hand a copy to each of the parties. This sets out:-
(j)the penalties which may apply, or other things which may occur, if you breach the orders made; and
(ii)details of who can assist parties to adjust to and comply with the orders made.
Property Orders
(11)That the mother pay to the father the sum of $94,328.35 by way of property settlement, within 60 days of the date of these Orders.
(12)That upon the payment referred to in Order 11 hereof the father transfer to the mother all his right title and interest in the former matrimonial home situated at and known as S property, NSW being the whole of the land contained in Certificate of Title …, subject to the existing encumbrance thereon, and that after the said payment by the mother, the mother shall indemnify the father in relation to all outgoings in respect of the said matrimonial home including all payments in respect of the mortgage, rates, taxes, charges, insurance and expenses in relation to repairs and improvements and any other sums due or accruing in respect of the said property.
(13)That in the event the mother fails to pay the sum referred to in Order 11 hereof:-
(a)Interest shall run on the sum due from the due date for payment at the rate of interest provided in the Family Law Rules;
(b)In the event that the mother remains in default for a period of 30 days or more, then each party take all necessary steps and execute all necessary documents to cause the property situated at and known as S property, NSW (“[S]”) to be sold by private treaty at the earliest possible date at a price to be agreed on between the parties and failing such agreement to be determined by the President of the Real Estate Institute of New South Wales or his nominee and that the proceeds of the said sale be disbursed as follows:-
(i)Payment of agent's commission and advertising expenses and legal expenses of the sale;
(ii)Payment of usual adjustments on settlement;
(iii)Discharge of the Mortgage to Commonwealth Bank of Australia;
(iv)Repayment to the mother of any monies advanced by her for advertising costs, legal fees on the sale, or monies spent by her in order to prepare S property for sale;
(v)A priority payment to the father of $40,738.18;
(vi)The nett balance to be divided as to 85 per cent to the mother and 15 per cent to the father.
(c)That for the purposes of the sale in Order (13)(b) hereof, the father and the mother agree upon the appointment of a solicitor or conveyancer to act on the sale, within 7 days of the date Order (13)(b) becomes operative, and in the event that the parties are unable to agree, then the parties accept the nomination of the President of the Law Society of New South Wales to act on the sale.
(d)That for the purposes of the sale in Order (13)(b) hereof, the father and the mother agree upon the appointment of a real estate agent to act on the sale, within 7 days of the date Order (13)(b) becomes operative, and in the event that the parties are unable to agree, then the parties accept the nomination of the President of the Real Estate Institute of New South Wales to act as agent on the sale.
(e)That for the purposes of the sale in Order (13)(b) hereof, the father and the mother agree upon an offering and sale price for the property; but, in the event that the parties are unable to agree upon a sale price, the parties jointly instruct Mr X for the purpose of determining an asking price and selling price. In such a case, the parties shall be responsible for Mr X’s fees equally.
(14)The mother records her agreement that the father is entitled to and she shall make available to the father within 7 days the items set out in “Annexure A” to these Orders. All other items of personalty at the S property are declared to be the property of the mother.
(15)That the father shall transfer to the Wife all of his right title and interest in the Haines Hunter 490c boat and trailer within 7 days of the date of this Order.
(16)Liberty to apply.
ANNEXURE ''A"
22Franklin Mint Plate Collection (approximately 15 Plates)
23Glasses – Beer
24Soapstone Port Glasses
25Crystal Ornament (Franklin Mint)
26Pentograph – "[…]"
27Trunk of Vinyl LP's (in garage) (excluding trunk)
28Assorted fasteners, brackets and bolts
29"[PJ] Licencee" sign
30Redex participation trial badge of PJ
31Wall paintings (located in garage) previously belonging to Respondent's grandfather
32Electrical fittings, cabling and accessories including light fittings (housed in garage)
33Letterbox constructed by Respondent's grandfather
34Stereo speakers (3 sets) (housed in garage)
35Golf clubs and buggy (previously property of Respondent's father)
36Antique desk (housed under garage awning)
37Weight set (housed under garage awning)
38One mountain bike and one BMX bicycle (housed in garden shed)
39Book shelves (constructed by Respondent's grandfather) (housed in garden shed)
40One yellow tray wheelbarrow, stair climbing trolley and pneumatic wheel trolley
41Four-wheel drive tyres and rims (4 sets)
42Photo collage on garage wall
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Breach
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Remedies
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