MB & GB
[2006] FMCAfam 197
•4 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MB & GB | [2006] FMCAfam 197 |
| FAMILY LAW – Children – contact – wishes – family violence – property – whether husband has complied with obligation to give full and frank disclosure – assessment of contributions – where wife claims Kennon style adjustment – husband proposes that the wife has exclusive occupation of the former matrimonial home until the youngest child turns 18 – weighing up competing section 75(2) factors. |
| Family Law Act 1975, ss.60, 62, 65, 68, 79 Child Support (Assessment) Act 1989 |
| Re: K (1994) FLC 92-461 R and R: Children's wishes (2000) FLC 93-3000 H v W (1995) FLC 92-598 In the Marriage of Lee Steere (1985) FLC 91-626 In the Marriage of Ferraro (1993) FLC 92-335 In the Marriage of Clauson (1995) FLC 92-593 Biltoft and Biltoft (1995) FLC 92-614 Russell v Russell (1999) FLC 92-877 Weir v Weir (1993) FLC 92-338 Black v Kellner (1992) FLC 92-287 Junti (1986) FLC 91-759 Mezzacappa (1987) FLC 91-853 Jenkins v Livesey (1985) 1 All ER 106 Luciano (2000) FamCA 401 Omacini and Omacini (2005) FLC 93-218 DJM and JLM (1998) FLC 92-816 Townsend and Townsend (1995) FLC 92-569 Kowaliw and Kowaliw (1981) FLC 91-092 Parshen v Parshen (1996) FLC 92-720 Kennon (1997) FLC 92-757 Tomassetti (2002) FLC 93-032 |
| Applicant: | MB |
| Respondent: | GB |
| File Number: | PAM2756 of 2004 |
| Judgment of: | Ryan FM |
| Hearing dates: | 8, 9, 10 and 11 March 2006 |
| Date of Last Submission: | 28 April 2006 |
| Delivered at: | Parramatta |
| Delivered on: | 4 May 2006 |
REPRESENTATION
| Solicitor Advocate for the Applicant: | Mr V. Massey |
| Solicitors for the Applicant: | Barber and Massey |
| Counsel for the Respondent: | Mr P. Sansom |
| Solicitors for the Respondent: | In person |
| Counsel for the Children’s Representative | Ms T. Messner |
| Solicitors for the Children’s Representative | Legal Aid Commission of NSW |
ORDERS
That “the children” Thomas (not his real name) born in 1989, Michael (not his real name) born in January 1992 and Mary (not her real name) born in December 1992 reside with the wife.
The wife has sole responsibility for the day to day and long term care welfare and development of the children.
That the husband is restrained from contacting the children other than by returning any telephone call he receives from the children, spending time with them at their request or letter.
Other than as provided for in Order 3, the husband is restrained from approaching and/or initiating any contact with the children.
Notwithstanding Order 3 the husband is restrained from approaching the children at their residence, while they are on their way to and from school, at their schools and at church.
In the event the children wish to contact the husband the wife shall enable the children to communicate their request via the children’s representative. Upon receipt of any such request from the children, the children’s representative shall advise the husband in writing at his last known address.
That the husband shall keep the children’s representative appraised of his residential address and contact details.
Until the youngest child turns 18 years of age the wife has the right to occupy the property at Wentworthville to the exclusion of the husband subject to wife paying all council and water rate instalments; household building and contents insurances as they fall due and keep the property tidy, clean and in good repair having regard to its present condition.
Within eight (8) weeks of the child Mary turning 18 years of age, the wife pay to the husband an amount equivalent to 46% of the market value of “the property” at Wentworthville less any amount outstanding on the CBA mortgage presently secured against the property. At the same time the wife shall give the husband a registrable discharge of the CBA mortgage or a release from the mortgagee.
In the event the parties are unable to agree on the value of the property they shall jointly retain, and pay equally, the President of the Australian Property Institute of New South Wales or his nominee to value the property. The resulting valuation will form the basis for calculating the wife’s payment to the husband.
Simultaneously upon compliance by the wife with Order 9 the husband shall do all acts and execute all documents as are necessary to transfer to the wife the whole of his right, title and interest in the property situated at Wentworthville in the State of New South Wales.
In the event the wife fails to comply with Order 9 the parties shall do all such acts and execute all such documents as may be required to effect a sale of “the property” situated at Wentworthville in the State of New South Wales to be sold by private treaty at a price agreed upon between the parties and failing such agreement to be determined by the President of the Australian Property Institute of New South Wales or his nominee.
Upon the completion of the properties sale, the proceeds of the sale shall be applied as follows:
(a)To pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of the matrimonial home.
(b)Forty six percent of the balance remaining (plus any adjustment in relation to outstanding rates) to the husband from which he will immediately pay the wife $4,513.50.
(c)Balance then remaining to the wife.
In the event that the matrimonial home has not been sold by or before a date five (5) months from Mary’s 18th birthday then the husband and the wife shall make all such arrangements and do all such acts and sign all such documents and pay all monies equally necessary to procure a sale by public auction of the property upon the following terms:
(a)The auctioneer shall be a real estate agent;
(b)The reserve price shall, unless agreed upon by the parties, be as proposed by the auctioneer.
(c)That auction will take place within two months of this order becoming operative.
(d)The proceeds of sale of the auction shall be distributed in accordance with Order 13.
Each party has the right to bid at the auction.
From the date of these orders the parties joint tenancy in the property is severed and each party holds their interest in the property as tenants in common: the wife as to 54% and the husband as to 46%. Each of the parties shall sign all documents needed to give effect to this order.
Pending the wife paying out the husband or sale of the property each of the parties is restrained from encumbering the property.
Liberty is reserved to either party to apply with respect to the terms and conditions of and execution of sale.
In the event that either party fails, refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, then pursuant to s.106A, a Registrar or Deputy Registrar of the Federal Magistrates Court of Australia is hereby appointed to execute all deeds, documents and instruments in the name of the defaulting party and to do all such acts and things necessary to give validity and operation to such deeds, documents and instruments.
Pursuant to section 65DA(2) 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 are set out in Annexure A and these particulars are included in these orders.
All exhibits tendered in these proceedings shall be returned at the expiration of one calendar month unless an appeal is lodged.
The solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.
All outstanding applications are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 2756 of 2004
| MB |
Applicant
And
| GB |
Respondent
REASONS FOR JUDGMENT
Introduction
These are proceedings for the adjustment of property pursuant to section 79 of the Family Law Act 1975 and for contact. The contact proceedings concern the parties’ three younger children Thomas (not his real name), Michael (not his real name) and Mary (not her real name). These children, respectively aged 17, 14 and 13 live with the respondent wife, GB, and their elder sisters in the former matrimonial home. Because of their ages the wife says the children should have contact, or not, as they wish. The wife says she and the children are victims of the husband’s domineering and abusive treatment, which conduct involved severe domestic violence metered out to her and the children. It is her stance that the husband is an unsuitable role model for the children and she believes contact is not in their best interests.
MB, “the applicant husband”, denies the wife’s violence allegations and describes himself as a loving and committed husband and father. If the children oppose contact with him, he says this is because their mother and elder sisters have actively undermined his relationships with them. The husband claims he is the victim of “trickery” by his wife and elder daughters, in that they have mounted a campaign based on lies to have him excluded from the home. The husband says the children’s wishes described in the court expert’s report do not reflect statements the children make to him favouring contact. He submits considerable weight should be given to those wishes expressed to him and those to the court expert, disregarded.
Concerning property the husband proposes that the wife and children have exclusive occupation of the former matrimonial home, which is the parties most valuable asset, until Mary turns 18. Upon her eighteenth birthday, the husband seeks that the former matrimonial home is sold and its sale proceeds equally divided[1]. He denies the wife’s assertions he has secreted substantial assets or that her contributions greatly exceed his.
[1] Exhibit B
For numerous reasons, this case fell within the category of cases identified in Re: K (1994) FLC 92-461 as being appropriate for appointment of a children’s representative. Thus, on 2 July 2004 this court ordered that the children are separately represented. Ms Loumis was appointed as the children’s representative. Helpfully, as part of closing submissions, the children’s representative provided a minute of order which summarises her position. Basically, the children’s representative adopts the recommendations made by the court expert. The orders sought by the children’s representative are set out below.
·That the children Thomas born in 1989, Michael born in January 1992 and Mary born in December 1992 reside with the mother GB and that the mother have sole responsibility for the day to day and long term care welfare and development of the said children.
·That there be no orders that the father MB have contact to the children Thomas, Michael and Mary.
·That the father be restrained from contacting the said children by telephone or letter.
·That the father be restrained from approaching and/or initiating any contact to the said children and in particular the father be restrained from approaching and/or initiating any contact to the said children at their residence, while they are on their way to and from their schools, at their schools and at their Church.
·That the mother has leave to serve a sealed copy of these orders upon the Principal of each of the children’s schools, upon the priest at the children’s church, upon the person in charge of her local Police Station and upon any professional person involved with the children’s care.
·That the father may notify the Children’s Representative of his residential address and contact details and the Children’s Representative will forward such information to the children as and when received.
In anticipation of this hearing, pursuant to s.62(G)(2) I ordered a family report. A family report was prepared by Jeanette Buckingham and released to the parties on 16 May 2005. On the children’s representative’s application and by consent Dr Potter was subsequently appointed court expert to further investigate the parties and children’s circumstances. Dr Potter is a child psychiatrist who has fulfilled the role of court expert over many years. I accept Dr Potter is well qualified for the task undertaken. Dr Potter’s understanding of the salient facts is reliable and he establishes a sound factual foundation for his opinions. I accept his evidence and give it considerable weight.
Dr Potter’s report[2] makes the following recommendations:
“All the children were clear in their wish to live with GB and their wish to not see MB or in the case of Frances, Michael and Mary, to not see more of MB. Their wishes were consistent with the histories they gave and a healthy reflection of their relationship and experience with GB and MB…It is reasonable for the court to respond to the children’s wishes. It is appropriate that MB acknowledge and abide by these wishes. That is, he should not continue to keep invading their personal and private space. It is reasonable that the children have no face to face contact with MB. It will be best if contact is allowed for, but left to the children to decide on. There is a real concern about MB’s reaction to less or no time with the children. The children, GB and his home with them appears to be his only life. If denied that and given his history of impulsivity, he is a potential threat to himself and to the family. However, to be held to ransom by this potential will be detrimental to the children’s ability to get on with their lives. Having to make decisions about MB which raise the potential of harm, puts the court, GB and all the children in an impossible position”.
[2] Exhibit A
At the end of his cross-examination, Dr Potter’s recommendations and evidence accords with that contained in his report. Concerning the ultimate issue he opined that the children should not be ordered to exercise contact with their father.
Short history
In 1954 the respondent wife was born in Lebanon.
In 1956 the applicant husband was born in Lebanon.
In April 1977 the wife migrated to Australia.
Upon the wife’s arrival in Australia she obtained full time employment which continued until she visited Lebanon in 1982. The wife remained in Lebanon for approximately eight months. About two months before she returned to Australia the parties met and shortly afterwards became engaged.
Approximately five months after the wife returned from Lebanon she started full time work as a domestic at Parramatta Hospital.
In August 1983 the husband migrated to Australia. Upon his arrival the husband resided with relatives where he lived in the few weeks before the parties married.
In September 1983 the parties married. Upon their marriage the parties lived in Woodpark, in a property owned by the wife and her brother.
In 1984 the parties’ daughter Rosie was born. The wife stopped work shortly before Rosie’s birth. A few months before the wife stopped work, the husband obtained full time employment with Besco Batteries.
On 7 August 1984 the wife transferred her half interest in the Merrylands property to her brother’s wife for $12,000[3].
[3] Exhibit D
The wife returned to Parramatta Hospital about four months after Rosie’s birth. When arriving at work on her second day back she fractured her ankle. Because of this injury the wife was unable to work and was absent for a few months before returning to light duties. The wife says she needed to work 92 days in order to receive maternity leave for the period she was at home after Rosie’s birth. With respect I have difficulty accepting this evidence. As a general rule maternity leave is an entitlement that accrues in advance not retrospectively. The wife’s evidence dealing with her return to work was confused and I am far from satisfied she received a lump sum maternity payment following Rosie’s birth. The probability is that she received her maternity leave payment when she stopped work prior to Rosie’s birth. So as to retain her benefit it is probable the wife was required to return to work for a specific period, in her case 92 days, following Rosie’s birth.
On 22 March 1985 the parties purchased the Wentworthville property for $45,500. The parties say they borrowed about $25,000 from the Commonwealth Bank and that the wife contributed $12,000 from the sale proceeds of Merrylands, $3,000 borrowed from her brother and the balance came from joint savings. Although both claim stamp duty was paid in a lump sum, it was paid by five annual instalments of $159.35[4]. The settlement statement issued by the solicitors acting on their behalf indicates the amount secured by the mortgage was $40,966. With respect to the parties, particularly the wife who claimed she had all financial information concerning transactions in which she was involved at her finger tips, their evidence it not as reliable as claimed. It is difficult to resolve this conflicting evidence. It seems most likely the parties borrowed the amount identified in the settlement statement and later used their savings (including the Merrylands sale proceeds) to quickly reduce the loan.
[4] Annexure B wife’s affidavit
In 1986 the parties’ daughter Gracie was born.
On 18 October 1986 the husband was made redundant by Besco Batteries, at which time he received a small redundancy payment. Upon being made redundant he received unemployment benefits and worked casually 1 or 2 days most weeks.
The wife says that on 2 February 1988 she received a lump sum workers compensation payment of $17,303 which she used to establish a CSB term deposit account. Her CSB passbook[5] shows a balance of $17,303.62 as at 2 February 1988, which she says is her lump sum payment. However, the relevant Compensation Court determination which resulted in the lump sum payment was made on 9 November 1988.[6] The terms of the orders and awards are weekly payments of:
i)$155.00 from 6th September 1986 to 31st March 1987.
ii)$159.00 from 1st April 1987 to 30th September 1987.
iii)$163.50 from 1st October 1987 to 31st March 1988.
iv)$165.70 from 1st April 1988 to 30th September 1988.
v)$169.30 from 1st October 1988.
[5] Exhibit K
[6] Exhibit K
After I received the parties written submissions via my Associate, I wrote to the parties lawyers seeking further submissions on a number of issues. I asked them to make submissions on how I could reconcile the wife’s evidence concerning the source of the CSB term deposit and the fact the determination was made months afterwards. By letters dated 28 April 2006 both parties replied. The wife relies on paragraphs 13 and 14 of her affidavit to explain any perceived inconsistency. Her counsel submits, “That would mean that from about September 1984 the Wife should have received income from her Workers Compensation Insurer until the first period referred to in the Order of 6 September 1986. The question posed is certainly not inconsistent with the evidence of the Wife and on balance it is submitted the evidence of the Wife provides an answer to the question posed.” I agree the determination reveals that the wife’s periodic payments stopped on 5 September 1986. I am also satisfied the wife received a lump sum which capitalised those payments awarded from 6 September 1986 to 9 November 1988 shortly after the date of determination. Thus I am not satisfied the funds held in the wife’s CSB account came from a lump sum workers compensation payment. There are two possible alternate explanations. Either the wife saved her periodic payments and/or the husband’s wages and when she had enough saved to do so, established a term deposit. Alternatively, the amount borrowed on the mortgage is as set out in the settlement statement and the wife saved the Barcom Street sale proceeds. Either outcome supports the husband’s submission that his income was used to support the family. To an extent it also detracts from the confidence the wife submits I place in her evidence.
Nowhere does the wife show where monies received pursuant to the 9 November 1988 determination were deposited. The wife was cross examined about car purchases. I consider the likely scenario is that the wife put her 9 November 1988 lump sum into a separate account and that these monies were used for living expenses and to purchase motor vehicles.
In 1989 the parties’ son Thomas was born.
In January 1992 the parties’ son Michael was born.
In June 1992 the wife redeemed her workers compensation claim for which she received an award of $27,338.56[7]. These monies were paid into a term deposit and later used towards the costs of the demolition and construction of their new home. The husband challenges the wife’s evidence that she received two workers compensation lump sums. However, the determination and GIO statement dated 16 June 1992 makes it clear that she did.
[7] Exhibit K
In December 1992 the parties’ daughter Mary was born.
In 1997 the husband’s brother stayed with the parties while he was visiting from Lebanon. He left after the wife told him he should return to his wife and children. Upon his departure the husband moved out of the matrimonial bedroom and thereafter slept in his own room. The husband claims separation from this time. The wife says their relationship failed in 2001, two years after she advised Centrelink the parties were living separately and apart under the one roof. With respect to the wife’s evidence, she was unable to reconcile why she gave Centrelink one date and this court another. The wife’s evidence on this point detracts from her submission that, in the event of conflict between the parties’ evidence, I should generally prefer hers. However, in this case determining the actual date of separation is a rather dry argument as the real issue concerns the parties’ contributions. It is inconsequential whether these were made pre or post separation.
On 26 February 2003 the husband assaulted the wife. Police removed him from the matrimonial home and charged him with assault occasioning actual bodily harm. Although he pleaded not guilty, the husband was subsequently convicted. Since this date the wife and children have lived in the home and the husband has lived nearby in a small rented unit.
On 22 August 2003 the husband stopped work and commenced receiving Sickness Benefits. He suffers from stress and high blood pressure. Since then he has not had paid work.
On 7 December 2003 the husband was assessed to pay $412.67 per month child support. Shortly afterwards the husband’s child support liability was reduced to $9.97 a fortnight.
On 4 March 2005 the parties divorced, which divorce became final one month later.
On 6 December 2005 the wife received $9,250 Victims Compensation in settlement of her claim for compensation for domestic violence and assault by the husband. The parties agree this settlement should not form part of the asset pool.
Current orders
On 3 September 2004, by consent the court made interim parenting orders. Concerning the father’s contact with the children these orders provided for the following contact:
1.The father have contact to the children as follows:
i)Each alternate Sunday from the conclusion of morning mass to 3.00 pm.
ii)By telephone each Monday, Wednesday and Friday evening at 7.30 pm.
2.The father shall collect the children at the commencement of contact from their church at Seven Hills and shall return the children to the front gate of the former matrimonial home at the conclusion of contact.
3.Both parties shall be restrained from approaching the children at their place of schooling other than to the extent the mother needs to take the children to and from school or is requested to attend.
4.Both parties shall be restrained from:
i)Discussing or permitting any third party to discuss the proceedings currently before the Federal Magistrates Court with or in the presence of the children; and
ii)Showing or permitting any third person to show any document filed before the court to the children.
Although the orders make no provision for it, each school morning the father waits near the children’s home and walks them to the bus stop. The father waits with the children until they leave on the bus. On each occasion the father spends between five and ten minutes with the children. For about six weeks this year the father abided the children’s representative’s request that he desist, however recommenced when he decided the children missed his company.
On 6 February 2006 Fairfield Local Court made a two year apprehended violence order[8] for the wife’s protection against the husband. As well as mandatory statutory orders, the husband is restrained from assaulting or harassing the wife, coming within 50 metres of her home or contacting her unless pursuant to a written agreement or a Family Law Act order. It appears this order is identical to one made shortly after the husband left the matrimonial home.
[8] Exhibit H
Relevant law - parenting proceedings
Contact orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to s.65E in that in determining the outcome the best interests of the child is the paramount consideration. This is the overriding principle.
Section 60B is important as it provides the context within which the relevant s.68F(2) factors are to be examined and ultimately weighed. The importance of s 60B factors varies from case to case. Where there are no countervailing factors, the s.60B principles may be decisive. Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development. Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
In deciding the residence and contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in s.68(F)(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed.
Determining the children’s best interests
An important issue in these proceedings concerns the manner in which the court should treat a child's expressed wish concerning matters relevant to its welfare. The Full Court of the Family Court considered this issue in R and R: Children's wishes (2000) FLC 93-3000. Their Honours cited with approval the following statement of principle drawn from the joint judgment of Fogarty and Kay JJ in H v W (1995) FLC 92-598. "The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children." Once a child's wishes are established the next part of the exercise requires analysis of those wishes followed by a balancing exercise measured against other factors relevant to the child's welfare. The process is described by the Full Court thus: "There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of the trial judge weighing up all the evidence relevant to the wishes of the children and applying in a commonsense way as one of the factors in the overall assessment of the children's best interests."
Dr Potter explored the children’s wishes about contact with them at length. When he saw Thomas, who is known as Tommy, the child was 16 years and 5 months of age. Throughout the two interviews, Tommy was sad and was obviously distressed by the court process. He included his father’s behaviour as a source of stress. Dr Potter says Tommy felt threatened by his father over the assessment. Before each interview, the husband, in effect, told Tommy that he, the husband, had arranged the consultations with Dr Potter and that he must tell the Dr Potter that he wants more contact. These discussions included threats against the wife. Tommy described feeling afraid of his father at about age 14 and said, “Still a sense of fear, but not as bad”. Concerning contact with his father, Tommy stated, “He (MB) asked me to write a letter. Keeps asking to extend the time. I don’t mind a couple of hours. I don’t mind having to see him. If I don’t have to see [him] I don’t mind either.” “Safer to see him so he’ll not go off”.
When Michael saw Dr Potter, he was 13 years and 7 months of age. Concerning contact, Michael stated, “It’s fine how it is right now”. Throughout their interviews, Michael related, “In a surly manner with a poverty of expression”. He maintained “a constant unhappy affect”. Dr Potter saw no evidence of developmental abnormality and considers Michael to have ordinary cognitive ability. Michael described his father’s request for more contact, “He pushes us to keep changing. It just gets annoying”. Like Tommy, he includes his father as family.
Mary was 12 years and 10 months of age when she met Dr Potter. Throughout their interviews, she related in a spontaneous manner, but with an unhappy affect. Mary spontaneously described her father’s constant presence, “On the bus stops, ever morning he comes and sits with us on the bus stop. I don’t mind him talking to us. Then he follows us and stands there. There is nothing to talk about every morning. He just stands there and turns and comes back. Waves. I get asked (by friends), ‘Why does your dad walk with you to the bus every morning?” Mary seemed frustrated and embarrassed by her father’s presence and told Dr Potter she finds this behaviour annoying. She said, “I don’t mind three times a week, but every single day?” Concerning contact with her father, Mary wishes it to remain the same, that is three hours on Sunday and less frequently at the bus stop.”
Dr Potter spoke twice with the husband and saw him with the children. Concerning the children’s wishes, the husband said to Dr Potter, “The mother has the problem. All the fights are her problem”. The psychologist [Ms Greenfield] said you’re a sick man. There is nothing wrong with me and the three children. I’m happy with them and they are happy with me.” Dr Potter reports that, “When seen with the children he (MB) engaged the children to confirm what he was saying, but didn’t wait for their response as though he didn’t need to.”
Dr Potter reports, “All the children demonstrated a weary and uncomfortable relationship with GB [sic MB]. The eldest two, Rosie and Gracie, chose not to see him with me. They were invited to do so if they wished. Gracie wondered about coming to support the younger three, but in the end seemed relieved to leave the protecting to GB and myself. MB, when seen with Thomas, Michael and Mary, consistently attempted to get them to tell me what he wanted them to say. He appeared oblivious to their obvious body language of rejection and fear and Thomas’ attempts to engage him. Thomas attempted to get MB to stop enlisting their help and to just tell his own story. Thomas, Michael and Mary behaved in a relieved, smiling manner when they were able to leave after having seen MB with me”.
During cross-examination the husband refused to accept that Thomas, Michael and Mary are embarrassed by his daily presence at their school bus stop. Notwithstanding Dr Potter’s feedback to him concerning the children’s statements, he maintained the children enjoy seeing him and want to spend more time with him. The fact that none of the children expressed positive support for additional contact is dismissed by the husband as the wife’s and elder children’s influence. Other than agreeing he hit Rosie, the husband denied the wife and children’s abuse allegations. To the contrary, he claimed he is the victim of his former wife’s violence and that her injuries are self inflicted. Sadly, the above factors demonstrates the husband’s total lack of insight in relation to the children’s relationship with their mother and how the family unit (excluding him) feels safer and is more settled without him. Presently he appears incapable of accepting that the children have reached an age and stage of maturity which gives them the capacity to reflect on their own circumstances and make sound decisions. Listening to the husband I formed the strong view that there is almost nothing the children, or anyone else, can say which will prompt him to really hear his children. He misuses their politeness and good manners shown to him at the bus stop and during contact and twists this as favouring contact. Unfortunately for him, I am satisfied the children’s wishes are as described by Dr Potter and that any expression supportive of contact is merely the children’s attempt to buy the family peace from their father.
The children’s representative supports Dr Potter’s assessment of the children’s wishes and the weight he attached to them. Dr Potter writes, “All the children were clear in their wishes to live with GB and their wish not to see MB or in the case of Thomas, Michael and Mary, to not see more of MB. Their wishes were consistent with the histories they gave and the healthy reflection of their relationship and experiences with GB and MB. All the children, in different ways, demonstrated their sadness at the parental conflict, the court process, the lack of a caring and supportive father and the relative absence of the mother. The young children appeared to be choosing to continue their contact with MB out of loyalty and duty. Each gave the impression that it would be a relief to have no contact with him.” Concerning the ultimate issue, Dr Potter opines, “It is reasonable for the court to respond to the children’s wishes. It is appropriate that MB acknowledge and abide by these wishes. That is, he should not continue to keep invading their personal and private space. It is reasonable that the children have no face to face contact with MB. It will be best if contact is allowed for, but left to the children to decide on”.
I accept Dr Potter’s analysis of the children’s wishes. The combination of their stated wishes, together with their observed discomfort with their father, indicates the children want their father to leave them alone. Whilst their sisters and mother’s view of their father is unsupportive of contact, I am satisfied that the children’s views about contact reflect their own genuine and strongly held wishes. By this I mean the children do not support even a continuation of the existing orders. As previously stated, I believe any statements the children made supporting contact are driven by a desire to find peace for the family, even if this means enduring contact in order to keep their father calm. A central theme in these children’s lives has been the importance of keeping the husband happy in order to have peace in the home. I have no doubt they are acutely aware that, when provoked, their father is capable of violence towards their mother and at least their elder sisters. It is likely they have at least residual concerns that if they oppose him, he may also be violent towards them. There is little room for doubting that the children have searched for some common ground between their desires for no contact and giving in to their father for the entire families sake. I accept Dr Potter’s opinion that the children’s genuine preference is for no contact with their father. Given this families history these wishes are completely understandable and reasonable. Given the children’s ages and age appropriate maturity I am satisfied their wishes must carry great weight.
Dr Potter describes the husband as suffering a significant personality disorder with narcissistic and borderline features. These features include a lack of empathy, exaggerated self importance and superiority, arrogance, patronising and contemptuous behaviour together with an ability to take advantage of others to achieve his ends. Dr Potter’s report was released well in advance of the hearing. Thus, the husband had the opportunity to reflect upon Dr Potter’s recommendations and the rationale for them. The husband is a man of at least average intelligence and if he was capable of reflection and introspection I would have expected some signs of it during his evidence. Yet there were no signs that the husband had reflected on the chasm between his view of his relationship with the children and their views of it. He demonstrated a total lack of insight into the significance of the children not seeking him out for contact or expressing a desire for more contact with him. The husband lives in the same suburb as the children. At their ages, if the children wanted more time with their father they could easily arrange it. The husband’s recollection of family life is completely at odds with the children’s. He accepts no responsibility for any difficulties in the family and unlike the children, blames all of the family’s difficulties on the wife. Although they lived in the same family, it is as if the children recall one family dynamic whereas the husband’s is entirely different. Although the children’s recollections of past events and their wishes concerning contact with the father are undoubtedly influenced by their mother and elder sisters, this influence has not distorted reality. If contact is to be emotionally healthy and enjoyable, the husband needs to accept that the children’s perspective of the family differs to his. In my view he has demonstrated as clearly as one possibly can that the children must embrace his reality. When Rosie and Gracie stood firm against his distorted view of the family, he rejected them. In essence, their refusal to embrace his perspectives made them unworthy of him. Dr Potter described this as classic narcissism. In my view, continuing contact between the younger children and their father requires the children to suppress their own recollections and beliefs and embrace their father’s position. Requiring the children to so distort their own history is emotionally and psychologically abusive. Until the husband aligns his own attitudes more closely to the younger children’s beliefs, contact with him is fraught with difficulty and in my view is not in the children’s best interests.
Dr Potter is obviously concerned about the effect on the family of refusing the husband contact with the three younger children. He opines, “There is a real concern about MB’s reaction to less or no time with the children. The children, GB and his home with them, appears to be his only life. If denied that and given his threat of impulsivity, he is a potential threat to himself and to the family. However, to be held to ransom by this potential will be detrimental to the children’s ability to get on with their lives. Having to make decisions about MB which raise the potential of harm, puts the court, GB and all the children in an impossible position.” It is the children’s representative’s case that the father’s capacity to provide for the children’s emotional needs is severely limited. Counsel correctly summarised the effect of the husband’s cross-examination about the children as demonstrating that although he sees them daily, the husband does not know what class the children are in, what subjects they study, who their friends are, their likes and dislikes etc. The husband was unable to describe any of the children’s achievements. With respect, I accept her submission, “He (the husband) has difficulty in viewing the children as persons in their own right, but sees them merely as an extension of himself.” I accept her submission that if ordered, contact meets the husband’s needs to the exclusion of any needs of the children.
The question then arises whether refusing contact exposes the children and other members of this family to an unacceptable risk of harm. Because of the husband’s prior violence towards the wife, Rosie and Gracie, it is submitted there is a real risk he may react violently to such an outcome. To date, the husband’s family violence has been metered out in the privacy of the home. Since separation he has accepted the elder girls stance against him and although he is aware of their work and study routines, he has not approached them. This is in stark contrast to his pre-separation conduct when, for example Rosie was doing work experience in a Parramatta restaurant, the husband sat outside while she was at work. He did the same to Gracie after she found work in a local pharmacy. When Rosie went to a school camp, the husband followed the school bus to the camp, basically checking that this is where the child went. Dr Potter explains the husband’s distancing himself from the elder girls in terms of his narcissistic personality disorder. Simply put, as the girls have turned against him, they are not worthy of his attention. Although there exists a risk of family violence if contact is refused, I consider the most likely outcome as being the husband rejecting the younger three children in the same fashion he has rejected Rosie and Gracie. The risk of future violence will be moderated by the court making orders restraining the husband from approaching the children other than in specific circumstances. Such an order would be in the nature of an injunction for the children’s personal protection, which if breached attracts a power to arrest without warrant. While subject to apprehended violence orders, the husband has complied with their strictures. Once the full effect of the injunction is explained to him, I consider the husband is likely to be similarly obedient.
I intend to leave the door open so that the children may have contact with their father on their terms. So that he does not harass them and intrude into their lives under the guise of attempting to establish if they wish to see him, contact must be initiated by the children. Because of past violence, notwithstanding anything the children may suggest to the contrary, the husband cannot approach the children at their home, school, bus stop or church. This is because the wife and the elder girls live with the children, see them at school and attend the same church. If contact occurs it will need to occur at a place where contact between the husband and wife or elder girls is unlikely to happen. Arrangements which create the spectre of even impromptu contact with the wife are not in the children’s best interests. This is because it is highly likely there will at least be a verbal altercation, not necessarily initiated by the husband, or some other unpleasantness. As far as possible, all family members need to be protected from such a scenario.
As the children’s representative has kindly agreed to remain involved in this family, any requests by the children for contact shall be communicated through her. This does not entitle the husband to harass the children’s representative for information about the children’s wishes. Silence from the children’s representative is to be treated as the children continuing to oppose contact. If the husband harasses the children’s representative he must expect that this facility will be lost and the door for possible contact with the children closed.
I have no doubt the children’s mother has been their primary carer and that as between the parties, the children have their closest attachments to her. All five children are strongly attached and operate as a firmly committed family unit. While there are deficits in the wife’s capacity to meet the children’s emotional needs, these deficits are moderated by the elder girls influence. Importantly, if extended contact is ordered I believe the wife and elder girls capacity to emotionally support these children is likely to be seriously compromised. Irrespective of whether contact is ordered, the children’s cultural ancestry and identity as Lebanese Australians is assured. As must be clear by now I am satisfied the wife should not be ordered to facilitate contact between the children and husband. This outcome weighs heavily on the court. That is because, as the law provides, children have a right to know and be cared for by both parents. One cannot be blind to the pain refusing contact will cause the husband. However I am strongly satisfied that the only way these children can enjoy the remainder of their childhood, free from the dysfunctional home life they have endured, is by refusing contact unless it is initiated by the children. Because their family life has been so dysfunctional, and to an extent still is, sadly, this outcome gives them the best opportunity for an emotionally healthy and safe childhood. Such an outcome raises the possibility of future proceedings, if the husband refuses to accept my orders and applies for contact in the future. Before he contemplates doing so, he ought to engage in long term therapy in order to bring his reality and perspectives more in line with the children’s. However, even with the prospect of future proceedings, other more compelling matters persuade me the course along the lines proposed by the children’s representative is in the children’s long term best interests. Where I have departed from the children’s representative’s approach it has been so as to keep the possibility alive of future contact at the children’s behest.
Since the husband vacated the home, the wife alone has made all decisions concerning the children’s welfare. So as to continue this scheme for parental responsibility she seeks a sole long term parental responsibility order. These parties have no capacity to discuss and problem solve matter relating to the children. A joint parental responsibility arrangement is likely to mean decisions relating to the children’s welfare will be delayed and hijacked by the parties appalling personal relationships. As both lack insight into how this state of affairs has come about, and neither shows any signs of responding to therapeutic assistance vis their relationship, the children’s interests requires that their mother continue to have sole responsibility for their long term welfare.
Relevant law - property proceedings
The approach to the determination of an application under section 79 is well established by authority: See In the Marriage of Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage of Clauson (1995) FLC 92-593. The process involves a four part procedure. Firstly, identifying the property, liabilities and financial resources of the parties at the time of the hearing. Biltoft and Biltoft (1995) FLC 92-614. Secondly, evaluating the contributions made by the parties as defined in s 79(4)(a) to (c) and the effect of any proposed order upon the earning capacity of either party. I must then evaluate the matters contained in s.75(2) insofar as they are relevant; any other order made under the Act affecting a party or child; and any child support under the Child Support (Assessment) Act 1989 that a party to the marriage is to provide or might be liable to provide in the future for a child to the marriage.
Finally in determining what order should be made under s.79, the court must be satisfied in all the circumstances that it is just and equitable to so order: s.79(2). It is the justice and equity of the actual orders that the court must consider: See Russell v Russell (1999) FLC 92-877.
One of the important issues concerns a parties’ obligation to make full and frank disclosure, which means that they are required to disclose all material facts. In Weir v Weir (1993) FLC 92-338, the Full Court said “This Court has pointed out in a line of cases leading up to the recent decision of the Full Court in Black v Kellner (1992) FLC 92-287, that it is the duty of a party involved in property proceedings in this jurisdiction to make full and frank disclosure of their financial affairs.” See also Junti (1986) FLC 91-759 and Mezzacappa (1987) FLC 91-853. And further on: “Irrespective of any obligation created by the Family Law Act or the Family Rules that we have identified, in our opinion the obligation of full and frank disclosure applies because of the duty of the Court to consider all of the circumstances of the case. See Jenkins v Livesey (1985) 1 All ER 106. This is particularly important in cases where the financial circumstances of the parties may be relevant. It is not sufficient for a party to simply adhere to the obligations specified by the rules of court. If the relevant rules are deficient in identifying an aspect of a party's financial circumstance then this is not a basis for a plea that there was non-disclosure because the rules did not identify an aspect of a party's circumstances that may be relevant.”
In Luciano (2000) FamCA 401, O'Ryan J summarised the principles that emerge from these cases as follows.
·“In proceedings in the Family Court in relation to financial matters, there is an obligation of each party to make a full and frank disclosure of his/her financial circumstances and all matters relevant thereto.
·The obligation arises because of the necessity for the court in such proceedings to consider all aspects of the financial circumstances of each party.
·The obligation is not created by the rules or the practice of the court and the rules simply set out the procedure by which that obligation may be fulfilled.
·If there is a deficiency in the practice adopted for the purpose of making such a disclosure, mere compliance with the requirements of the relevant rules if deficient, is not enough.
·If there is non-disclosure in the relevant sense then the failure to disclose undermines the whole process of adjudication of the proceedings in relation to financial matters.
·A finding of non-disclosure may in appropriate cases, depending on the circumstances, result in the other party being granted without more, the relief sought.”
These principles apply to all family law financial proceedings, irrespective of the court hearing them.
Assets and liabilities as at the date of hearing
The parties agree on the value of most of their assets and liabilities.
I find that the assets, liabilities and financial resources as at the date of hearing are as set out in the table below.
Assets | $ |
| Wentworthville property (Joint) (Agreed) | [9]440,000 |
| 1984 Commodore (H) (Agreed) | 1,000 |
| Furniture & personalty (H) | 200 |
| Tools (H) | 100 |
| Funds notionally added back (H) | 10,125 |
| 1989 Mitsubishi (W) | 600 |
| Furniture & household items (W) (Agreed) | 3,000 |
| Total non superannuation assets | 455,025 |
| Superannuation | Nil |
| TOTAL ASSETS | 455,025 |
| Liabilities | |
| CBA mortgage (Joint) (Agreed) | 24,742 |
| TOTAL LIABILITIES | 24,742 |
| NETT ASSETS | 430,283 |
[9] Exhibit G
There are a number of findings which require explanation. The husband’s personalty and wife’s motor vehicle are valued in accordance with each party’s representations in their financial statements. In effect, these representations are admissions against interest.
The wife asserts that the husband has undisclosed assets, being a property or interest in a property in Lebanon, as well as hidden cash. Concerning a property in Lebanon, the parties agree that while the husband’s brother stayed with them, there were discussions concerning the purchase of a home in Lebanon. The husband says the wife enthusiastically embraced the brother’s suggestion that they purchase or build a holiday home in Lebanon. The wife denies this and alleges that the husband wanted to participate in this venture whilst she opposed it. Attached to the wife’s affidavit[10], is a Commonwealth Bank customer advice detailing an overseas draft dated 18 August 1997. Concerning the draft, the wife says, “On 18 August 1997 I caused from my savings the sum of $9,110 AUD to be transferred into the account of the husband’s brother. Annexed hereto and marked “D” is a copy of the overseas draft”. Although the wife produced numerous bank records, going back well beyond 1997, she did not produce bank records which showed $9,110 withdrawn from her account on 18 August 1997. I accept the husband’s submission that the document speaks for itself. The draft shows the customer is the husband’s brother, who is also identified as the beneficiary.I do not accept the wife’s claim that the overseas draft was drawn on her account or that the funds transferred belonged to the parties. In my view the overseas draft evidences the transmission of the brothers funds between Australia and Lebanon. To the extent that the wife attempted to persuade the court that these funds comprise a capital contribution towards the purchase of property in Lebanon, I reject the claim.
[10] Annexure E
Attached to the wife’s affidavit are plans for a building in Lebanon. In relation to the plans the wife says, “To my observation the applicant received from his brother a plan of the proposed building in Lebanon. It is annexed hereto and marked ‘E’. I do not know what has happened over time to this proposed development, but I have seen the withdrawal of large sums of money under the control of the applicant with the Commonwealth Bank (accounts numbered 2224-10023954 - Pendle Hill branch and 06-2176-10131203 – Guildford branch) and I will/cause subpoena to be issued in an attempt to track down funds so applied”. As far as additional monies ostensibly transferred to the brother as contributions to a property in Lebanon, with respect to her, the wife did not establish the husband sent money to his brother. Nor did she establish that the property depicted in the plans was built. The plans themselves depict a substantial home with the architect retained by the brother. No mention is made in the plans of the husband having any interest in the proposed dwelling. I accept the husband’s submission that the wife has failed to establish that the husband has any interest in any property in Lebanon. In coming to this conclusion, I have not overlooked unsatisfactory aspects of the husband’s financial disclosure, particularly in relation to receipt and disposition of funds during 2003. Even bearing in mind the principles referred to in Weir v Weir (supra) and Black v Kellner (supra) referred to above, the wife has not proved the husband has an interest in property in Lebanon.
The wife asserts that the husband has undisclosed cash assets, a submission predicated upon a series of post-separation withdrawals from his CBA Pendle Hill and Guilford accounts. On 26 November 2003, the husband withdrew approximately $35,000 in two parts from his CBA Pendle Hill account. One was $6,000 and the other $29,000. The husband said he loaned these monies to a relative who was hoping to purchase a home. His relative missed out on the purchase and the monies were repaid. I accept the funds advanced form part of a deposit into the husband’s account on 28 November 2003. I accept that the husband withdrew $35,000 on 26 November 2003 which he loaned to a relative and which was fully repaid two days later.
On 18 December 2003 the husband withdrew $17,000 from account number 06222410023954 using cheque number 181. This cheque was payable the construction company owned and operated by the husband’s brother. On 16 October 2003 the construction company issued a tax invoice to the husband for $17,000[11] ostensibly for supervision, day labour and materials it gave the husband between February and September 2003. The wife impugns this transaction and says it is a thinly disguised attempt by the husband and his brother to hide matrimonial funds. There is no doubt that for many years the husband worked as a renderer for the construction company, occasionally five days a week and at other periods for much less. This is another matter upon which I sought further submissions. Basically I thought it curious that the husband, who worked as a sub contractor, was paying the construction company rather than vice versa. The wife embraced the gravamen of the query and submits this is consistent with the husband’s general lack of candour. The husband’s solicitor reminds the court that the husband’s evidence was that while on some jobs the construction company was the sub contractor and he worked for his brother, there are others where the husband was the sub contractor and his brother worked for him. The document, it is submitted, speaks for itself and is evidence of genuine work expenses the husband incurred. The husband’s brother was willing to be cross-examined on this document, however was not required. The wife’s counsel submitted the circumstances of production of this receipt are questionable. That is, that it was produced at the end of the hearing, without regard to the wife’s Notice to Produce[12] dated 23 February 2006 and is a photocopy and not the original. As to the later I accept the husband has lost many of his financial records, either by leaving them behind at the home, with the demise of his accountant or simply through disorganisation. That the document is a copy rather than the original is explained to my satisfaction. Although the husband is properly criticised for failing to disclose these transactions and produce the invoice and his brother earlier in the proceedings, the evidence is not so improbable that I can reject it. I understand the decision not to cross examine the husband’s brother was predicated upon a pragmatic belief cross examination was unlikely to alter the nature of the husband’s evidence. However without a concession from him or in some other fashion impugning the totality of the evidence, on balance I accept the husband’s explanation for this transaction.
[11] Exhibit L
[12] Exhibit M
On 18 December 2003 the husband drew another cheque payable to the construction company for $10,125 for which there is no matching tax invoice. The husband says this payment mirrors the circumstances of the payment discussed above. However he failed to explain why he was paying the construction company additional funds given that he says he has not worked since August 2003. I accept the wife’s submission that here is evidence of the husband attempting to secrete matrimonial funds so that he alone could use them. The question thus arises whether the court should notionally add back $10,125 as being the husband’s asset. In Omacini and Omacini (2005) FLC 93-218 the Full Court detailed three categories of cases which have emerged where it is appropriate to notionally add back to the pool of assets. They are:
·“Where the parties have expended money on legal fees [DJM and JLM (1998) FLC 92-816];
·Where there has been a premature distribution of matrimonial assets [Townsend and Townsend (1995) FLC 92-569]; and
·Where one of the parties has embarked upon a course of conduct designed to reduce the worth of the matrimonial assets, or where one of the parties acted “recklessly, negligently or wantonly” in a way that the value of the matrimonial assets are reduced [As outlined by Baker J in Kowaliw and Kowaliw (1981) FLC 91-092 at 76,644].”
This transaction falls within the Townsend category of case. Although within a relevant add back category, the court retains discretion whether or not to notionally add back. If I was satisfied the husband applied these monies towards his living expenses, it is likely I would not notionally add the money back. His financial circumstances are parlous and as the wife has had use of the home, it would have been reasonable for him to use this money to re-establish himself. However the husband gives no such explanation and simply denies using the money. On balance I consider it likely these funds remain with the husband’s brother and are available to the husband upon demand. Even although these funds are from post separation income, they are matrimonial property. Accordingly I will notionally add them into the asset pool.
Evaluation of the contributions and other factors
Section 79(4) requires that the court look at the entirety of the contributions, both financial and non-financial, for the welfare of the family as well as to the acquisition, conservation and improvement of those assets. Contributions are not required to be tied to the acquisition, conservation or improvement of a particular asset and are to be taken into account generally as contributions in a total sense.
One of the difficulties in this case is each of the parties is prone to exaggeration. Each spoke in terms of absolutes, for example, “I did everything”, “He/she did nothing”. In Parshen v Parshen (1996) FLC 92-720 the Full Court of the Family Court held, “In our view, in the absence of evidence to the contrary, it should be inferred in proceedings pursuant to the provisions of s.79 that monies how so ever received by a party during the course of the parties’ cohabitation, are used by that party for the benefit of the family unit. Such monies in those circumstances thus constitute a financial contribution by the party who received the money”. Although neither conceded the point, I am satisfied that at least until 1997, each of the parties contributed all monies received, from whatever source, to joint matrimonial purposes. When the husband was in paid employment, he gave the wife his entire pay packet and thereafter she was responsible for the family’s finances. The wife’s command of the English language, both oral and written, is vastly superior to the husband’s. It seems to me she understood finance and had a better understanding of the manner with which the community operates than the husband. Accordingly, they agreed the wife would arrange their financial affairs, albeit generally under the husband’s direction.
At the commencement of cohabitation the wife owned a half interest in the Woodpark property. Her brother purchased her share in Woodpark in August 1984 for $12,000. I am satisfied that the amount paid reflects the extent of the wife’s interest at the commencement of cohabitation.
The husband claims that when he left Lebanon he had $20,000 savings, which he saved during approximately twelve years in which he worked in Lebanon. The husband left school at the age of 14 years and worked as a labourer, bricklayer and concreter until shortly before he left Lebanon for Australia. The husband says from his savings he purchased jewellery, rings and bracelets given to the wife upon their marriage. The wife agrees she received a selection of jewellery, which jewellery she still has and forms part of her assets. The wife claims that she purchased the husband’s air ticket for Australia and denies he gave her $9,000. Simply put, the wife asserts that at the commencement of cohabitation the husband was penniless. Because the husband says he kept his savings at home, converting his US dollars to Australian dollars when he came to Australia, there are no records corroborating his evidence. The husband’s evidence at times was confusing and in my opinion on others deliberately designed to mask the truth. In this instance, the husband relied on his credit to establish the existence of his savings at cohabitation. With respect to him, his evidence was not so compelling that where challenged, I can comfortably accept his assertion. Thus, I am not satisfied that at the commencement of cohabitation the husband had the cash assets he claims. The effect of this is that, at the commencement of cohabitation, the wife made the greater initial contribution.
Not long after he arrived in Australia, the husband obtained work at Besco Batteries. He worked at Besco Batteries full time until the factory closed in September 1986. Upon the factory’s closure, the husband received a lump sum of $1,800 which he paid into the mortgage. For approximately the next two years the husband had little work and was predominantly reliant on Centrelink benefits. Such work as he obtained did not interfere with his Centrelink eligibility. I infer he earned little income. The factory closed at about the same time the wife’s workers compensation payments stopped. Thus, for about two years the family was substantially reliant on welfare payments.
Approximately two years after Besco Batteries closed, the husband commenced work with his uncle’s. He worked as a labourer and concreter, earning no more than about $11,000 per annum. When his work with his uncles finished, the husband set up a subcontracting venture, which traded as B Rendering. As a subcontractor, the husband worked for other companies and individuals as a plasterer and renderer and they for him. Between 1997 and 2002 he earned between $23,000 and $25,000 per annum net. From 1998 the husband gave the wife between $250 and $300 per week housekeeping, basically most of his pay after paying tax. Unbeknownst to him, from 1999 the wife was receiving Centrelink benefits, which she also used for the family.
I have already made findings concerning the wife’s employment.
I accept she applied all income, whether from paid employment, periodic workers compensation payments or Centrelink benefits, to joint matrimonial purposes. In the wife’s evidence, there is little recognition that the husband contributed his earnings to joint matrimonial purposes. Yet she claims her workers compensation payments were saved, both periodic payments and lump sums, and used towards the purchase and rebuilding of the former matrimonial home. It follows that between 1988 and 1992 the family was entirely reliant on the husband’s income, and welfare payments, for its day to day living expenses. Other than those periods early in the marriage when the wife was in paid employment I am satisfied that the husband’s income and/or Centrelink benefits provided for the family’s day to day expenses. Thus, the wife’s claim in paragraph 9(c) that $6,000 was saved from her employment and used towards purchase of the former matrimonial home overstates the situation. This $6,000 is the result of the parties’ joint savings, to which the husband contributed at least half. I do not accept the thrust of the wife’s evidence that during the years the parties lived at Woodpark, she alone was responsible for paying the mortgage. Whether the mortgage and rental repayments are sourced from the wife’s income or the husband’s is inconsequential. In a contribution sense, the point is that the monies were paid from income earned by one party which freed the other to contribute to day to day living expenses and save. The comparative direct and indirect financial contributions are of equivalent value.
There does not appear any dispute by the husband that the wife’s workers compensation commutation, although received whilst the parties cohabited, is a contribution made by her. In Aleksovski (1996) FLC 92-705 the Full Court held, “…in most cases, a damages verdict arising from a person injury claim, whenever received, is a contribution by the party who suffered the injury.” Although in Aleksovski the Full Court was concerned with common law damages settlement, similar considerations apply to a workers compensation commutation. It follows the wife alone contributed the workers compensation monies. The significance of these payments is that these also produced lump sum payments which the parties were able to use building their home, purchasing cars and on other minor capital expenditure. However the lump sums also reflect the demise of the wife’s earning capacity and result in the husband’s income becoming critically important to the family. Thus while these lump sum payments are significant, the parties jointly decided to live extremely frugally in order to maximise the financial benefit of the payments. As to the later, both parties lived almost in penury in order to preserve the lump sums for capital acquisitions.
I put the wife’s greater initial contribution into a slightly different category. Quite simply there is no matched contribution and I believe that without her initial contribution it would have taken the parties considerably longer to acquire their own home. The wife’s greater initial contribution enabled the parties to make their money work for them from the outset. As events unfolded, without her initial contribution, ownership of real estate may well have been an unattainable dream.
Since separation, the wife has paid all rates levied against the former matrimonial home. As she has had sole use and occupation and these expenses are relatively modest, these payments are no more than a reasonable price of her occupation.
I have already made findings concerning the purchase of the former matrimonial home on 22 March 1985. The parties moved into the former matrimonial home at settlement, which was their home until separation. The parties lived frugally and within a few years paid out the Commonwealth Bank loan. In about 1995 the parties borrowed $35,000 from the Commonwealth Bank and set about constructing a new home at Wentworthville. For about twelve months the parties rented a property at Wentworthville. During this period the former matrimonial home was demolished and a new home constructed. The husband obtained an owner builder’s licence and was overwhelmingly responsible for building the new home. The husband did all of the bricklaying, cementing and rendering. He had family help with the concreting. The husband painted the home and had assistance from his cousin with tiling. The parties paid tradespeople for all the carpentry, plumbing, roof tiling and fitting out the kitchen. The tenor of the wife’s evidence was that her contribution to the home’s construction was equal to the husband’s. While I accept that she assisted him with reading plans and some labouring, the wife’s primary role continued to be as a homemaker and parent. At this stage the parties had five children, two of whom were under five and not in day care. The wife says she alone cared for the children. I accept she assisted the husband when doing so did not conflict with her childcare and home making activities. With respect to her, the wife greatly exaggerated her role building the home.
After about twelve months living in rental accommodation, the parties moved into the garage built at the former matrimonial home where they lived for about four months. They then moved into their newly completed home. Comparatively, the husband’s non financial contribution to the construction of the former matrimonial home greatly exceeds the wife’s. Since then both parties have worked on the home, with the wife overwhelmingly responsible for its interior and the husband for its exterior, minor repairs and the like. In this regard the wife’s load greatly exceeded the husband’s. Excluding non financial contributions to the home’s construction, the wife’s non financial contributions exceed the husband’s.
The wife’s contribution as a home maker and a parent are significant. From cohabitation until the husband left the home in 2003 the wife was overwhelmingly responsible for running the home and caring for the children. I accept her evidence that, although the husband was present in the home to a much greater extent after he stopped work at Besco Batteries than previously, the husband was not nearly as actively involved in the home and children’s care as the wife. The wife claims that the husband was, “a monster” and she his “slave”. I accept the wife’s evidence that the husband did not eat with the children and was concerned that contact with them exposed him to “germs”. Thus, it is unlikely that the husband prepared meals, washed dishes or clothes. His limited English language skills deprived him of the opportunity to assist the children educationally. For whatever reason, the wife refused to concede the husband contributed in the home and to the children’s care at all. She says she alone cared for the home and children. Whilst it is possible the husband did nothing in the home or with the children, I consider it unlikely. When he was not working the husband also took the children to school and involved himself in the children’s activities. The children’s strong alignment with their mother corroborates to an extent her evidence that she was far more involved in their care and running the home.
The wife claims a Kennon (1997) FLC 92-757 adjustment as a consequence of the husband’s treatment of her and the children. I have no difficulty accepting the wife’s evidence that she and the elder girls were both assaulted by the husband. On one occasion he hit Rosie and on another he hit Gracie. Medical notes produced under subpoena from Dr Hala Gobran[13] show that on 13 April 2001 “Gracie Baysarri presented to me ... after she was hit on her face and neck by her father, her face was swollen, she could not move her neck and I supplied her with a support at that time.” Gracie was fourteen at the time. On 26 February 2003 the husband assaulted the wife in the manner alleged in her affidavit. Dr Gobran observed “bruising and lacerations on (1) anterior chest wall (2) left shoulder (3) right neck and right and left jaw (4) big laceration to the right side of tongue”. I reject the husband’s claim that the injuries described by the wife, Dr Gobran and evidenced in photographs[14] are self inflicted. In this hearing for the first time the husband claimed he merely restrained the wife after she pulled a knife from the kitchen drawer and threatened him. Although previously the husband gave evidence in defended hearings on assault charges and in relation to ADVO applications, this was the first occasion upon which he claimed the wife had a knife. Describing the husband’s evidence on this issue as unsatisfactory treats him kindly. At one point he claimed that in the apprehended violence proceedings Gracie corroborated his evidence that the wife harmed herself. When this issue was pursued and he realised the court may receive a transcript of those proceedings, the husband resiled. The wife’s counsel’s thorough and searching cross examination revealed that in relation to this incident the husband’s evidence was self serving and dishonest. Merely because I disbelieve the husband on this point does not mean that I must accept the wife’s evidence as to other incidents. It does not necessarily follow that I must accept the gravamen of the wife’s evidence that, from the day the parties’ married she was the victim of daily abuse from the husband, treatment subsequently directed towards the children. The husband considered the wife’s primary responsibility in their marriage as taking care of the children, including keeping them out of his way as the mood took him. When he was irritated with her or the children, the family in effect tiptoed around him so as not to anger him.
[13] Exhibit J
[14] Exhibit E
In my view the most credible evidence on the issue of family violence is found in Dr Gobran’s file. In a report dated 6 March 2003, Dr Gobran writes “I have been looking after GB since 1997. She did present on frequent occasions with different bruises and marks on her body due to her husband physical violence. She also mentioned quite a few times the language and swearing that he always calls her. Her daughter Rosie at a certain stage was suffering psychologically from the constant swearing and physical abuse e.g. pulling hair and pulling her jaw…..I am witnessing that this family members have been suffering from the abuse of MB since I know them.” Dr Potter’s observations of the wife’s emotional frailty corroborate to an extent the burden caring for the home and children prior to separation placed on her. I consider the evidence is sufficiently strong to show the husband’s violence, physical and verbal, had a discernable impact on the wife’s contributions. Taken as a whole there is sufficient evidence to conclude the wife’s homemaker and parenting contributions were made in such arduous circumstances that the circumstances of this case fall within the narrow band of cases discussed in Kennon.
Since separation the wife has been exclusively responsible for the children, and her post separation homemaker and parenting contributions exceed the husbands.
The orders I propose will not affect the earning capacity of either party.
I have already made findings of the payment of child support.
I find therefore that the parties’ total contributions and other factors should be assessed as being 62 per cent by the wife and 38 per cent by the husband.
Section 75(2)
Subsection (a). The husband was born in 1956 and is 49 years of age. In around 1976 he underwent surgery for head injuries sustained when a grenade exploded near him. It is asserted these injuries have had no long term effects in relation to the husband’s health. At the time of hearing the husband was in receipt of Centrelink benefits owing to stress, and had been since August 2003. He takes daily medication as a result of his stress. Having been born in 1954, the wife is 55 years of age. In around 1984, after having taken 4 months maternity leave following the birth of Rosie, the wife fractured her ankle at work. As a result of this, she received weekly compensation payments until she commuted her periodic entitlement. Following the husband’s assault on the wife on 26 February 2003, Dr Gobran referred her for X-rays. In a report dated 11 March 2003 Dr Harrie Wood, a radiologist at Wentworthville Radiology, reported “There appear to be several end plate compression fractures in the mid to upper thoracic region with a greater than 20% loss of vertebral height. There are some small marginal osteophytes in the lower thoracic region. No other abnormality [in the thoracic spine] is seen.” The wife continues to suffer considerable back pain, and to take medication for this, although this may also be the result of osteoporosis. In any event, the wife is now on an invalid pension. She is also a diabetic, and takes medication and readings of her blood sugar levels daily. I accept the wife’s health is even more fragile than the husband’s. It appears neither party incurs costs for medical treatment. I make no adjustment pursuant to the subsection.
Subsection (b). I have already made findings about the parties’ assets, financial resources and liabilities. In the husband’s financial statement, his income is identified as being $250 per week, derived from sickness benefits. He pays $9.97 per fortnight child support for the three children, and aside from a share in the former matrimonial home, he has very little else by way of financial resources. Whilst living in Lebanon the husband worked primarily as a labourer, bricklayer and concreter. Since coming to Australia in 1983 he undertook a number of occupations, including conducting his own business as a renderer. As a result of stress he has not worked at all since 2003. It is the husband’s contention that he still suffers from stress, and although he may be physically able to work, I consider it is most unlikely that with his limited English skills, relative social isolation, age compared to his ability to undertake hard physical labour, that the husband will again maintain paid employment. The wife receives weekly government benefits to the value of $514.40. Aside from a small amount of child support, she receives no other income. By way of property, the wife has her share in the former matrimonial home, and is currently paying all of the repayments and rates in relation to it. The home is furnished, and the wife and the children have the use and enjoyment of this. Aside from these modest resources she has no other financial assets of note. Essentially the wife has not been engaged in paid employment since the birth of the parties first child. Given her ill health and back condition, and also the fact she has been out of the workforce for twenty years, it is improbable that the wife will ever return to paid employment. I make no adjustment pursuant to the subsection.
Subsection (c). Three of the parties’ children are presently under the age of 18, and in the wife’s care. Whilst Thomas is now 17 years old, the two younger children Michael and Mary are 14 and 13 respectively, and have still a number of years in which they will be relying upon the wife for their care. In Clauson the Full Court of the Family Court held, “In addition it should not be forgotten that the payment of child support in no way compensates the custodial parent for the loss of career opportunity, lack of employment mobility and the restriction on an independent lifestyle which the obligation to care for children usually entails”. There is no doubt that primary responsibility for these children does, and will continue to, sit squarely and solely upon the wife. While their care does not affect her capacity to work, for the reasons outlined in Clauson, I am satisfied there should be an adjustment in the wife’s favour pursuant to the subsection.
Subsection (d). The husband’s financial statement details total expenditure of $235 per week, the majority of which is made up by his payment of rent, and other weekly living expenses. On these figures, the husband is barely meeting his weekly obligations, being left with around $10 per week to meet other day to day living expenses. The wife’s position is equally parlous. Her total weekly expenditure is estimated to be around $400, leaving her around $110 a week to meet the day to day living expenses of herself and her children. At present she is unable to meet all of the costs of the children’s school fees and incidentals, and is behind in the payment of fees for all three children. The wife has arranged for a reduction in these fees, and is currently required to work in the canteen at Marys’ school as part of this arrangement. In the circumstances I make no adjustment pursuant to the subsection.
Subsection (e). Other than the children, neither party has an obligation to support any other person. I make no adjustment pursuant to the subsection.
Subsection (f). Both parties are in receipt of social security benefits. Neither have the benefit of superannuation savings. I make no adjustment pursuant to the subsection.
Subsection (g). Both parties are clearly living from pay to pay, and there is no evidence that either have ever enjoyed more than a modest lifestyle. In these circumstances their respective standards of living does not suggest either is entitled to an adjustment pursuant to the subsection. I make no adjustment pursuant to the subsection.
Subsections (h) – (m). The subsections do not arise.
Subsection (n). Section 75(2)(n) achieves a cross-referencing between s.75(2) and s.79(4). As a result of my earlier contributions phase findings the wife established an entitlement to receive 62% of the nett assets. The wife does not have the capacity to pay the husband his share and thus, unless the court adopts the husband’s approach of giving the wife exclusive occupation on the home until Mary turns 18 it must be sold. As the least worse scenario the wife accepts this possibility. The question then arises whether any adjustment in the husband’s favour is appropriate? Because the husband lives in parlous circumstances, is unlikely to return to paid work and without his share of the matrimonial assets has no capacity to improve his circumstances, an adjustment is appropriate. I am conscious that the wife will pay the mortgage whilst in occupation, however the mortgage repayments are considerably less than she would pay either for rent or for a home of comparable value if the husband’s interest was excluded. Giving the wife occupation of the home for the next five years is financially advantageous to her and disadvantageous to the husband. I make an adjustment in the husband’s favour pursuant to the subsection. This is a matter which attracts considerable weight.
Subsection (na). As previously discussed, the child support currently paid by the husband for all three children is minimal. Given the husbands financial circumstances, it is unlikely that this will be increased. I make no adjustment pursuant to the subsection.
Subsections (o) – (p). These issues do not arise.
Having regard to all of the s.75(2) factors I find that it is appropriate that there should be an adjustment in the husband’s favour of eight per cent. This outcome reflects the cumulative outcome of the findings I have made pursuant to s.75(2). See Tomassetti (2002) FLC 93-032.
Section 79(2) is this outcome just and equitable?
Because the court must consider the actual orders not just the percentage distribution under s.79(2) justice and equity in cases like this requires the court stands back and looks carefully at the outcome of the s.79(4) and s.75(2) process. It is at this stage that the court considers the actual structure of the orders.
I will not repeat the findings made thus far. There are key findings that lead to my comfortable satisfaction that an outcome favourable to the wife of 54 per cent compared to the husband’s entitlement of 46 per cent is just and equitable. These include the wife’s initial contribution and its significance to the parties capacity to purchase their home. Although the wife’s paid employment came to an abrupt end early in the marriage, she received periodic and then lump sum workers compensation payments, all of which she contributed to joint matrimonial purposes. Her work in the home and caring for the children was made in arduous circumstances and greatly exceeds the husbands homemaker and parent contribution. Because of the husband’s conduct, the wife’s homemaker and parent contributions attract a Kennon style adjustment. Prior to leaving the home the husband contributed all his earnings to joint matrimonial purposes. While the wife claimed term deposits and contributions from savings derived solely from her efforts, her claim did not survive scrutiny. Thus she has failed in her argument that the home was acquired and subsequently improved solely from her income and loan repayments. The husband’s non financial contributions to the home during its construction are significant and greatly exceed the wife’s. Although the wife has the care of the parties three younger children, their care does not limit her capacity for paid employment. This is because the wife is unlikely to ever have paid work again. She will care for the children without adequate child support and thus financial and actual responsibility for them falls to her. Although it is difficult to contemplate, the husband’s circumstances are even poorer. Until he receives his property entitlement he will live, at best, in a one bedroom flat which he affords by basically living on eggs and potatoes. His offer to delay taking his share of the matrimonial home is generous and financially advantageous to the wife. During the period of the wife’s occupation it is likely the matrimonial home will increase in value. This increase is assumed by the general upwards trend in Sydney property values. This is a windfall in which both parties will share.
Structure of the property orders
Because the wife will have exclusive occupation of the matrimonial home, she must pay its outgoings. This means she must pay all rates and taxes as when they fall due, household building and contents insurances, maintain the property in good repair (having regard to its present condition) and pay the mortgage. In this regard the wife must make periodic mortgage payment of principal and interest. Interest only payments will cause an inequitable and unjust outcome vis the husband.
So that the parties interest in the home is clearly delineated, with these orders I sever the joint tenancy in the matrimonial home. Until final settlement the parties will hold the property as tenants in common in shares which reflect their ultimate percentage entitlement. In order to preserve the asset until final settlement, each of the parties will be restrained from further encumbering the home.
It is feasible that by the time Mary turns 18, some of the children may be in a position to assist their mother to acquire the husband’s interest in the matrimonial home. Thus the wife will have an opportunity to purchase the husband’s interest. Although the matrimonial home has an agreed value, its future value cannot be known. Unless the parties agree on its value, they shall jointly retain the President of the Australian Real Estate Institute or its equivalent to value, personally or by a nominee, the home. Using this valuation the parties shall apply the formula set out in the orders for the wife’s payment to the husband. In the event the wife is unable to pay the husband then the home will be sold. After payment of the mortgage and selling costs the nett proceeds will be apportioned in accordance with my orders.
Excluding the matrimonial home, the parties’ nett assets total $15,025. Of these the husband has assets worth $11,425. Forty six percent of this lesser asset pool is $6,911.50. Therefore from the husband’s share of the home (whether on payment from the wife or sale) there must be an adjustment in the wife’s favour of $4,513.50.
For these reasons I make the orders identified at the start of this judgment.
I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate: S. Mashman
Date: 4 May 2006
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