MC & BP
[2004] FMCAfam 69
•1 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MC & BP | [2004] FMCAfam 69 |
| FAMILY LAW – Property – contributions. CHILDREN – Contact – where mother asserts unacceptable risk of harm of emotional abuse – assessment of risk – no unacceptable risk of harm – child’s entitlement to enjoy a good and meaningful relationship with his father – graduated program of increased contact ordered. |
Family Law Act 1975
B and B: Family Law Reform Act (1997) FLC 92-755
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
Russell v Russell (1999) FLC 92-877
Tomasetti (2002) FLC 93-023
| Applicant: | MC |
| Respondent: | BP |
| File No: | SYM111 of 2003 |
| Delivered on: | 1 March 2004 |
| Delivered at: | Wollongong |
| Hearing date: | 19 February 2004 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Solicitor Advocate for the Applicant: | Mr G Morahan |
| Solicitors for the Applicant: | Greg Morahan & Co. |
| Counsel for the Respondent: | Mr N. MacPherson |
| Solicitors for the Respondent: | R J Russell Solicitors |
ORDERS
That all prior parenting orders are discharged.
That R born 5 September 1998 “the child” shall live with the wife.
That the wife has responsibility for the day to day care, welfare and development of the child when the child is in her care.
That the husband has responsibility for the day to day care, welfare and development of the child when the child is in his care.
That the parties have joint responsibility for the long term care, welfare and development of the child.
That the husband have contact with the child as follows:
(a)Commencing 7 March 2004 from 9 am until 5 pm each Sunday. The wife to deliver the child to the husband at W Surf Life Saving Club at the start of contact and the husband to return the child at her home at 5 pm.
(b)Commencing Saturday 10 April 2004 the husband shall have additional contact each alternate Saturday starting at 12 noon and ending at 5 pm. The wife shall deliver the child to the husband at his home at the start of contact and the husband shall return the child to her home at the end of contact.
(c)Commencing on 15 May 2004 and until the end of January 2005 the husband shall have contact each alternate weekend from 9 am Saturday until 5 pm Sunday. On the commencement of contact pursuant to this order, contact pursuant to orders 6(a) and (b) above is discharged.
(d)Commencing February 2005 contact shall take place each alternate weekend from 6 pm Friday until 5 pm Sunday;
(e)On Father’s Day from 9 am until 5 pm.
(f)During the June/July 2004 school holidays for four days and three nights starting at 10 am on the first day and finishing at 5 pm on the last day. This contact shall coincide with the first weekend that regular alternate weekend contact takes place during the school holidays. The combined period shall not exceed four days and three nights.
(g)In the September/October 2004 school holidays for five days and four nights starting at 10 am on the first and finishing at 5 pm on the last day coinciding with a period of weekend contact. The combined period not to exceed five days and four nights.
(h)Commencing midday Christmas Day 2004 for one week.
(i)In January 2005 for one week at times agreed between the parties. In the absence of agreement from 16 January 2005 until 23 January 2005.
(j)In the event that the husband’s birthday falls during a period when he does not have contact with the child:
(i)On a school day, the husband shall have contact starting from the end of school until the start of school the following day if his birthday falls on Monday-Thursday (inclusive). If it falls on a Friday contact shall start after school and conclude at 9 am the following morning.
(ii)On weekends from 9 am on his birthday until 9 am the following morning.
(k)If the wife’s birthday falls during the period the husband has contact, contact shall be suspended from 9 am that day until 9 am the following morning.
(l)Commencing February 2005 for one half of each gazetted New South Wales school holiday being the first half in years ending in an even number, which shall include years ending in a zero and the second half in years ending in an odd number.
(m)Commencing February 2005 if weekend contact occurs on a date adjacent to a public holiday, contact shall be extended to include the public holiday. If the public holiday is a Friday the contact shall start at the usual time on the Thursday. If it is a Monday it shall conclude at the usual time on the Monday.
(n)On those occasions when the child is in the wife’s care during the first half of the Christmas school holidays, the husband shall have contact from 2 pm Christmas Day until 7 pm Boxing Day.
(o)By telephone at all reasonable times. In this regard the wife shall ensure that the husband has her landline telephone number and the husband shall ensure that the wife has his landline telephone number. Unless otherwise agreed, the husband is not to telephone the child at the wife’s home for contact more than twice weekly. If the child wishes to speak to the husband the wife shall facilitate it.
During contact the husband shall ensure that the child attends his competition sports games.
Each of the parties is entitled to obtain directly from any school that the child attends or any health or welfare professional or other professional attended by the child, copies of any reports, notices or other advice affecting the education, health and welfare of the child.
Commencing Christmas Day 2004 alternate weekend contact is suspended during school holidays.
That if Mother’s Day falls on a contact weekend contact shall end at 5.00pm on the evening before Mother’s Day.
On those occasions when the husband has contact during the first half of the Christmas school holidays, contact shall be suspended from
2 pm Christmas Day until 7 pm Boxing Day.Unless provided for otherwise in these orders, for the purpose of contact the wife or her nominee shall deliver the child to the husband at his home at the commencement of contact and the husband or his nominee shall return the child to the wife at her home at the end of contact.
The husband is restrained from consuming alcohol during contact.
Commencing February 2005 school holiday contact:
(a)SHALL commence at 10.00am.
(b)SHALL conclude at 3.00pm.
(c)WILL BE calculated from the day after the last day of school until and including the day immediately before school resumes.
After a period of school holiday contact, contact shall resume on the first weekend after school has resumed if the husband has exercised contact during the first half of the holidays AND on the second weekend if he has exercised contact during the second half of the holidays.
The wife is restrained from recording or permitting any other person to record the husband’s telephone contact with the child.
Both parties are restrained about speaking about the other party in a negative or unpleasant fashion in the hearing of the child or permitting any other person to do so.
That the husband shall forthwith attend upon his treating medical practitioner and obtain advice concerning his decision to stop taking anti-depressant medication. The husband shall then immediately give the wife a written report from his treating medical practitioner that addresses this issue.
Pursuant to s.62F(2) of the Family Law Act 1975 the parties attend confidential counselling to facilitate improved communication between them. The counselling will be that arranged for them by the Director of PDR Services of the Federal Magistrates Court.
Pursuant to section 79 the proceeds of sale of the matrimonial home shall forthwith be distributed as follows:
(a)Seventy eight percent to the wife from which she will immediately pay the husband $4982.00, and
(b)the balance to the husband.
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.
THAT 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.
That all exhibits tendered in these proceedings be returned at the expiration of one calender month unless an appeal is lodged.
That the solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.
That all outstanding applications are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT WOLLONGONG |
SYM111 of 2003
| MC |
Applicant
And
| BP |
Respondent
REASONS FOR JUDGMENT
The proceedings
These are proceedings for the adjustment of property pursuant to s.79 of the Family Law Act 1975 and for parenting orders. The parenting issues concern contact by the husband to the parties’ only child R Brian P born 5 September 1998.
The application
MC (“the wife”) started the proceedings when she filed an application for final orders in the Family Court of Australia on 15 November 2000. Subsequently, she filed further amended applications relying ultimately on her application filed 16 February 2004. The orders she sought are set out below:
1.That the child of the marriage R born 5.9.1998 reside with the mother.
2.That the mother be solely responsible for the day to day care and long term responsibility, welfare and development of the child.
3.That the father have contact with the child as follows:
3.1For the period commencing on the date of these orders and concluding on the date three months after the date of these orders:
each Saturday commencing at the end of the child’s sport on Saturday and concluding at 3 pm on the same day, except on those Saturdays when the child does not play sport then contact shall commence at 9 am and conclude at 3 pm the same day
3.2For the period commencing on the date three months after the making of these orders and concluding on the date six months after the date of these orders:
-each Saturday commencing at the end of the child’s sport on Saturday and concluding at 5 pm the same day, except on those Saturdays when the child does not play sport then contact shall commence at 9 am and conclude at 5 pm the same day.
3.3For the period commencing on the date six months after the making of these orders and concluding on the date nine months after the date of these orders:
-each alternate weekend commencing at the end of the child’s sport on Saturday and concluding at 10 am on Sunday, except on those Sundays when the child attends Little Nippers, contact shall commence at 5 pm on the Friday and conclude at 5 pm on the Saturday.
3.4For the period commencing on the date nine months after the making of these orders and continuing thereafter:
-each alternate weekend commencing at the end of the child’s sport on Saturday and concluding at 5.00 on the Sunday, except on those Sundays when the child attends Little Nippers or other sport, contact shall commence at 4.00 pm on the Friday and conclude at 7.00 pm on the Saturday
3.5Commencing at the end of the first school term in 2005, half of each school holiday period, alternating between the first and second half of said period each year with the first contact to be for the first half of each said holiday period, the father to give the mother three weeks notice of such contact and child care arrangements. On those occasions when the father has contact over the Christmas-New Year period, contact shall be suspended from 2.00 pm Christmas Day until 7.00 pm Boxing Day.
3.6During the 2004-2005 Christmas school holidays weekend contact every Friday commencing at 5.00 pm and concluding at 5.00 pm the Sunday, except that on the Christmas weekend contact shall commence at 2.00 pm Christmas Day and conclude at 5.00 pm on 27 December 2004.
3.7At Christmas commencing at 4.00 pm on Christmas Eve and concluding at 2.00 pm Christmas Day, commencing Christmas Eve 2005 and each alternate Christmas thereafter; and commencing 2.00 pm Christmas Day and concluding at 7.00 pm Boxing Day, commencing Christmas 2006 and each alternate Christmas thereafter.
3.8Regular weekend contact shall be suspended during school and Christmas holidays.
3.9That in the event that Mother’s Day falls during a period the father has contact with the child, on that weekend contact will conclude at 6.00 pm on the Saturday.
3.10That in the event that Father’s Day falls during a period the father does not have contact with the child, on that weekend the father is to have contact with the child commencing 6.00 pm Saturday and concluding at 6.00 pm on that Sunday.
3.11That in the event the father’s birthday falls during a period that the father does not have contact with the child, on school days the father shall have contact commencing from the conclusion of school until 7.00 pm and commencing in 2005, on days the child does not have school, commencing at 9.00 am and concluding at 9.00 am the following morning.
3.12That in the event the mother’s birthday falls during a period the father has contact, then contact shall be suspended from 9.00 that day until 9.00 am the following morning.
3.13That in the event the child’s birthday falls during a period the father does not have contact for a minimum of two hours on school days and for a minimum of six hours on days the child does not have school.
3.14Unlimited telephone contact.
3.15Before the implementation of overnight contact with the child the father make himself available for psychiatric examination with a psychiatrist nominated and paid for by the wife and the husband to make available to the wife any report prepared by the psychiatrist.
4.That the proceeds of the sale of the family home be divided as follows:
-$10,000 to the father
-Balance to the mother.
5. That each party otherwise retain all other real and personal property in their respective ownership, possession and control at the date of these orders, including:
(a)In the case of the mother:
(i)superannuation;
(ii)1995 Nissan Pulsar motor vehicle;
(iii)shares in IAG;
(iv)household furniture, furnishings, effects and personal possessions currently in the mother’s possession.
(v)All bank accounts currently in the name of the mother.
(b)In the case of the father:
(i)superannuation;
(ii)household furniture, furnishings and effects in his possession;
(iii)all bank accounts currently in the name of the father.
6.Each party to be liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
7.The parties shall do all such things and execute all such documents as may be necessary to give effect to these orders.
8.If either party refuses or neglects to sign within twenty-one (21) days of written request to do so any document necessary to give effect to these orders, the Registrar or Deputy Registrar of the Federal Magistrates Court is hereby appointed pursuant to the provisions of section 84 (sic) of the Family Law Act to execute such documents on behalf of each party.
9.In the event that parenting issues arise then either party be at liberty to restore the matter on 7 days notice.
BP (“the husband”) filed a response on 29 January 2003 which he later amended. In relation to the property the husband contends that the assets should be divided 70 percent to the wife and that he should have the balance. At trial he moved on his response filed 26 November 2003 which sets out the parenting orders sought. The orders are set out below:
1.That the wife’s application filed 3 June 2003 be dismissed.
2.
That orders made by the Local Court at Sutherland on
18 December 2002 be and are hereby dismissed.
3.
That the applicant father have contact with the child R born
5 September 1998 as follows:
(a)Each alternate weekend from 5.00 pm Friday through to 9.00 am Monday.
(b)Each Wednesday evening from 4.00 pm through to 8.00 pm.
(c)One half of all available school holidays and failing agreement as to which half then the father shall exercise contact in the first half of such holidays.
(d)Telephone contact four evenings per week between the hours of 6.00 pm and 8.00 pm.
4.That for the purposes of changeover at contact times the mother shall deliver the child to the father’s place of residence at the commencement of contact and the father shall return the child to the mother’s place of residence at the cessation of contact.
5.That the mother is hereby restrained from denigrating or allowing any other person to denigrate the father in the presence of the child.
6.That the mother pay the father’s costs of this application on an indemnity basis.
Short history
The husband was born on 25 July 1964. He is 39 years old.
The wife was born on 28 December 1965. She is 38 years old.
The parties married on 22 March 1997.
Their only child R was born on 5 September 1998.
The parties separated on 10 June 2002. Since separation R has lived with the wife.
On 12 September 2003 a Decree Nisi was ordered, which decree became absolute one month later.
Current orders
On 18 December 2002 at Sutherland Local Court final parenting orders were made to the following effect:
1.That R reside with the mother.
2.That the father have liberal contact.
3.That the father’s contact be supervised by either S or DC.
4.The father have contact between 1 pm and 5 pm Christmas Day.
On 30 October 2003 in the Federal Magistrates Court of Australia at Wollongong interim parenting orders were made as follows:
1.The child R born 5 September 1998 live with the mother.
2.The father to have contact with R as follows:
(a)From 9 am to 1pm each Sunday, mother to deliver the child to a surf club at 9 am, father to deliver to child to mother’s residence at 1 pm;
(b)Christmas Day from 1pm until 7pm with father to pick R from mother’s residence and deliver child back to mother’s residence.
The issues
The significant issues that arise in the proceedings are these:
·Whether the child would be exposed to an unacceptable risk of physical or psychological harm during the longer periods of contact contended for by the husband.
·Whether limiting the child’s contact to the husband as contended by the wife would undermine the child’s relationship with the husband.
·The financial consequences to the wife of her future care of R.
·The significance of the wife’s greater financial contribution to the matrimonial assets.
·Whether a 95:5 per cent distribution of the assets as contended for by the wife is just and equitable.
The evidence
The wife relied upon the following:
·Her affidavits filed 9 May 2002, 8 October 2003 and 16 February 2004 and her oral testimony.
·Her financial statement sworn 9 May 2003.
·Affidavit of CA filed 16 February 2004 and her oral testimony.
·Affidavit of TC filed 16 February 2004 and her oral testimony.
The husband relied upon the following:
·His affidavits sworn 16 December 2002, 26 September 2003 and 6 November 2003 and his oral testimony.
·His financial statement sworn 21 January 2003.
On 13 June 2003 pursuant to s.62G(2) of the Family Law Act 1975
I ordered that a family report be prepared. JM, a registered psychologist with many years’ clinical experience, prepared the report, dated 31 July 2003[1]. Neither party sought to cross-examine Ms JM. Ms JM concluded, “It is recommended that contact is unsupervised unless there is clear evidence the child is at risk. Contact is recommended on a minimum of one full day a week and one half day, until the child commences school: then Saturday and Sunday on alternate weekends, graduating to overnight stays over about two months; one afternoon after school the other week; half school holidays and other times as agreed. Convenient times should be specified for a weekly telephone call, and undertakings and contingency plans set down as necessary”.
[1] Exhibit A
Ms JM’s report is thorough and focuses on the pivotal issues. As well as seeing the parties and R, she spoke to Dr A, the husband’s psychiatrist and Ms D, his counsellor. She explored the husband’s depression in detail with them. The gravamen of her opinion of the husband’s behaviour in June 2002 cutting his wrists was “… although impulsive, was superficial and probably motivated by a need for attention”. This coincides with Ms D’s opinion, that the “self mutilating behaviour tended to be attention seeking rather than suicidal”. Neither party challenged the relevant factual matters identified in Ms JM’s report and I am satisfied that I should give her report considerable weight.
Relevant law
Contact orders are parenting orders. The applicable law is well settled. Proceedings of this type are 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 are the paramount consideration. That 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 contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in Section 68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed. B and B: Family Law Reform Act (1997) FLC 92-755.
The husband’s application for contact – applying the laws to the facts
The husband lives in a rented home in the Campbelltown area. He works part time in a bottle shop and is undecided whether he will resume university studies this year. He has completed all but three subjects in a Bachelor of Science – Biotechnology degree at University. His studies during the second semester of 2003 resulted in two failures.
A critical issue is whether the husband is able to ensure the child’s emotional and physical wellbeing during contact. The wife contends that because the husband suffers a depressive illness the court should take a cautious approach to contact. Additionally, the wife expresses concern that prior to separation on a number of occasions when the husband was caring for R, he left R effectively unattended because he had passed out drunk. While he does not dispute that he has drunk alcohol to excess, the husband denies doing so whilst responsible for R.
These issues came to a head on 9 June 2002. The wife had retired for the night and the husband was awake, drinking and cooking his meal. When the wife came into the family room, they argued and the husband rolled his plate of food into a rug and jumped up and down on it. Somehow, he smashed some glass and then cut his arms. The cuts to his arms were made deliberately. The following day the wife asked him to leave the home. After he left the home accompanied by his wife, the wife put some of his possessions into the carport and changed the locks to the home. Later in the day the husband moved into the carport. When he advised the wife, in answer to her inquiry, that he had not sought medical assistance, the wife called the mental health unit at the local hospital. This was a necessary and responsible action on her part. The husband then moved in with his sister in the Campbelltown area. He lived there between June 2002 and November 2002.
Between June and September 2002 the husband had regular and easy contact with R. This contact took place primarily at the wife’s home, variously supervised by her or when she agreed he took the child out for part of the day.
On 2 September 2002 the husband was admitted overnight to hospital. The hospital records[2] report, “38 year old man brought to emergency department with multiple very superficial lacerations to both arms after his sister heard him crying in his room and telling her that life wasn’t worth living. He describes a similar episode 8/52 ago at the time of break up of his second marriage. Says first thought about harming himself twenty years ago. Problems for many many years. Never sought any help. Now thinks it was a silly thing to do. Says no thoughts of further self harm. Wanting help.”
[2] Exhibit B
On admission to hospital he is described, “Dishevelled, blood shot eyes, smelling of alcohol, speech slurred. Remainder of mental state not possible because of intoxication”. The notes report that the husband was keen to see Dr A the following morning. The notes report the husband’s account as follows, “he couldn’t identify any reasons for this behaviour although he reported that his alcohol intake yesterday evening was partly …(illegible). He said that he binge drinks about once per week and feels more like harming himself at these times. At interview he denied suicidal ideation and said that he didn’t feel that he would become suicidal in the near future”. He is described as, “maladaptive, coping response”, “low suicide risk” and “discharged with a recommendation to attend a private psychiatrist”.
The husband then had contact on 5, 15, 22, 25, 26, 28 and
29 September 2002. On 29 September 2002 he told the wife about his admission to hospital on 2 September 2002. The wife says that during the conversation he told her, “They told me that I could be bipolar because the last lot of medication didn’t work”. Upon hearing this, the wife stopped contact and consulted a psychiatrist seeking information concerning the husband’s symptoms. She also spoke to the mental health unit at the local hospital. Because of these events the wife says she feels terrified of the husband and was too frightened to facilitate contact between R and his father.
The husband then made an application for contact in response to the wife’s application for final residence orders filed at Sutherland on
8 October 2002. Reluctantly, the husband agreed to supervised contact. Although, the orders provided for liberal contact, the wife insisted that the contact take place between 10 am and 1 pm each Sunday. Contact resumed on 29 December 2002.
Before contact had resumed the husband attended Dr D, the psychiatrist he had seen at the hospital on a private basis. He saw Dr A four times during the latter part of 2002. In addition, he attended Ms D for six months on a weekly or fortnightly basis which counselling ended in December 2002. Dr D prescribed antidepressant medication, Cyprinil that the husband continued to take until December 2003. There is consensus amongst the professionals attended by the husband that his self-mutilating behaviour was attention seeking and not a genuine attempt to commit suicide.
The wife has no prior experience with people who are depressed or suffer a mental illness. Her approach to the husband’s mental health is to vigilantly examine every interaction with him for signs that suggest he is not coping. At her wife’s behest and with her active participation, all telephone contact with the husband is tape-recorded. Any comments from R that suggest even slightly unusual behaviour by the husband are accepted as proof that the husband is mentally ill.
For example, the husband believes that his first wife poisoned her first husband and fears that she may kill him. His first wife’s husband’s death was accepted by the coroner as a suicide. I agree with the wife that there is a delusional quality about the husband’s firm belief. There are other examples of concerning behaviour. The husband says that the wife or members of her family placed glass in his soap that he cut himself on. This was when they smashed their way into the home. There was broken glass lying about, which is probably how the glass came to affix itself to the soap. During telephone contact on
30 September 2003 the husband told R to “wipe poo” on the telephone. During this entry the wife says she saw a shrine, her photograph with flowers in a vase next to it. The epithet is inappropriate and an exaggeration. As is her complaint that the husband uses religious notions to deal with family concerns. For example “your mother has the devil in her”. When the husband telephoned R late last year the child was sitting on the toilet. His mother gave him a telephone and sat with R in the toilet while R spoke to his father. The maternal grandmother was in another room taping the telephone call. The husband agreed that he told R to wipe himself with the telephone, agreeing that his actions were inappropriate. The husband is aware that the wife tapes his telephone conversations with R and was aware that she would hear him. Not only were his actions silly viz R, they were provocative as he knew the wife would be distressed by them.
At paragraph 3 of her affidavit the wife reports further statements made by R after contact. I accept that R has made these statements, but do not accept that the husband behaved as the child describes. CA is a close friend of the wife’s parents. She deposes, “In October 2003 MC and R were visiting my home at ... R was near the television and I said, ‘I’m going to watch the news’. R became very upset and said words to the effect, ‘Daddy used to watch news after news after news. I had to sit still. If I moved daddy would hurt me”. R’s comments relate to the period prior to separation. The wife agrees that whilst the husband did watch the news, R was neither told to sit still or ever hurt by his father. Thus, R’s statement to Ms CA concerning his father’s treatment of him has no basis in reality.
On boxing day 2003, R told Ms CA, “Daddy said my mummy will be dead in two sleeps. I don’t want to go to sleep tonight because mummy will be dead tomorrow”. Although the wife says that R made these comments to her, they were however first made to Ms CA and later repeated. Although the husband has not harassed, intimidated or behaved in an aggressive fashion towards the wife since separation, she and her parents responded as though this was a real threat that the husband intended to kill the wife. The wife reported the incident to the police and the family made sure that the wife garaged her car so he could not have the chance to tamper with her brakes. The wife and her mother rejected the husband’s counsel’s suggestion that their negative opinions of the husband are communicated to R. Neither conceded that taping every call R’s father makes to him, later replaying the phone calls might send a negative message to R about their opinion of his father.
The wife’s mother gave evidence and made it plain that her opinions and evidence concerning the husband are beyond challenge. Only a moment into quite gentle cross-examination the maternal grandmother pounded the witness box and minutes later was grunting answers to the husband’s counsel. R has reported to the husband, “Grandma hates you”. Overall, the maternal grandmother was unusually hostile and I consider it likely that in an unguarded and careless fashion she has communicated her hostile attitude of the husband to the child. It may be that the combination of the wife’s anxiety concerning the husband’s mental state, his at times provocative and inappropriate remarks and the grandmother’s hostility have contributed to R’s reporting events that have little basis in reality.
There is no credible evidence that during supervised contact the child has been harmed, distressed or neglected. I am satisfied that supervised contact worked well from the child’s, husband’s and also the wife’s perspective. If it were otherwise she would not have agreed that un-supervised contact could start.
Since October 2003 the husband has exercised un-supervised contact most Sundays. The wife agrees that R has enjoyed this contact. The husband has arrived and returned R on time. I am satisfied that un-supervised contact has worked well from the child and husband’s point of view. During this contact, including seven hours on Christmas Day 2003, the child’s physical and emotional needs have been appropriately met.
On 29 January 2004 the wife telephoned the husband so that they could discuss contact arrangements. The conversation became heated. The husband agrees that he cried and that he was begging the wife for more contact. The wife intended that the court would infer that this was a sign that the husband continued to be depressed and would be unable to adequately care for R during contact. Given the content of the discussion I am not satisfied that the husband’s distress corroborates the wife’s contention that he is seriously depressed. This contention is inconsistent with her most recent proposal that contact should extend to six hours un-supervised contact. If the wife truly believed that the husband was seriously depressed and a risk to the child I have no doubt that she would resist any extension of contact and the probability is that contact would have been denied or supervised pending the hearing.
I am satisfied that the husband is prone to reactive depression and that after his second marriage failed he was depressed and binge drinking. Medication, counselling and cognitive – behavioural therapy as well as the passage of time have alleviated his symptoms.
The Court Counsellor recommended un-supervised contact unless, “There is clear evidence the child is at risk”. She concluded that, “Although Mr P is coping reasonably well, he would benefit from further psychotherapy to assist him to accept the breakdown of the marriage and improve his communication skills. Such monitoring would contribute greatly to putting Ms C’s mind at rest”. When Ms JM saw the husband he was taking antidepressant medication, which medication it appears he has ceased without advice from a medical practitioner that he should do so. Before significant changes are made to the husband’s contact he must attend his treating doctor and obtain advice as to the desirability of taking or not taking antidepressant medication. He must provide a copy of a report from a doctor to the wife. This report must outline the doctor’s recommendation on this issue. The husband will also be referred for counselling which counselling will include the wife. Its purpose is not to promote their reconciliation, but improve their communication on matters concerning R.
Both parties claim that R makes statements in favour or against the competing contact proposals. Ms JM reports, “With his mother’s persistent encouragement he consented to a brief interview during which he repeatedly said he did not want to, ‘stay overnight with Daddy’, that he wants to, ‘see daddy on Sundays with CC, but not Wednesdays”. He refused to be drawn on other topics, insisting, “I know what I want”. He presented as an intelligent child who spoke fluently and forcefully. The Court Counsellor reported on R’s wishes as follows, “Children are influenced by parents’ attitudes and fears, often giving the impression that their stated wishes are their own. If the child has not recently spent un-supervised time with his father it is likely he would have no conception of what it means to do so despite his comments. In stating conditions under which he is prepared to see his father he is simply articulating his mother’s reservations.”
It is the child’s inclusion of conditions for contact that is most telling. R’s statements matched his wife’s proposal for contact at that time. This indicates that R is indeed aware of his wife’s fears and approach to contact. Probably because his primary attachment is to her, he has adopted her approach as his own. Yet when with his father, absent the wife’s immediate influence, R is happy and asks to have longer contact. R does not have the experience to understand the affect of his parents’ competing proposals or their nuances. I am satisfied that his comments to the Court Counsellor have been influenced by the wife and do not reflect the child’s own deliberations. I am not satisfied that R has any clearly formed wish to which the court should attach any weight.
R has lived all of his life with his wife and I accept the Court Counsellor’s opinion that he is more closely attached to her than he is to his father. The husband has never challenged R’s residence with his wife and I infer from this that he believes that separating R from her would be distressing for the child. Also, that in her care R’s physical, intellectual and emotional needs are well attended to.
The more critical issue is the nature of R’s relationship with his father. During the observation Ms JM reported that R, “… regards his father as integral, looks forward to going out with him on Sundays and becomes distressed if he is late. When R broke his arm recently he demanded his father’s presence and Ms C readily complied. The parents demonstrated a caring, flexible attitude in the company of the child and he moved between them confidently. R clearly understands who his father is. His demand for his father when he broke his arm indicates that R is reassured by his father when he is upset, a factor that suggests the child has a sound relationship with his father.
Unnecessarily limiting contact deprives the child and husband of the opportunity to develop and enjoy their relationship. Unless contact develops at a pace consistent with the child’s age and capacity to separate from his prime carer, there is a risk that although R understands who his father is, he will not appreciate his significance as a parent. By this I mean this will deprive the husband of the opportunity to actively parent by exercising parental authority in a meaningful way. The general approach recommended by the Court Counsellor provides a well-balanced approach to extending contact without placing any of the participants, including the wife, under unreasonable stress. Weekends starting on Friday and continuing until Monday are longer than I feel is desirable at this stage. It is preferable that weekends build at a slower pace and that R has the comfort of coming home from school before he goes to his father and is home Sunday night before school in the morning. This will reassure the wife that child is safe and settled which in turn enhances the prospects that contact will succeed. Before I would order mid-week contact I would need to have evidence that longer periods of contact were working well. Too many changes may be difficult for all parties.
Longer periods of holiday contact should be delayed until regular overnight contact is well entrenched. The first period of school holiday contact will take place during the June/July school holidays over a period of four days and three nights. In the September/October school holidays the school holiday contact will be five days and four nights. By Christmas 2004 R will be ready to have holiday contact for one weeks duration. The husband will have contact for one week from midday Christmas Day and another week during January 2005 at dates and times agreed between the parties. If they are unable to agree the contact will be after R has had two full weeks with the wife upon his return from the first Christmas period. For obvious reasons the wife is restrained from permitting anybody taping R’s telephone calls with his father.
Because the husband has had serious problems with responsible alcohol consumption, he will be restrained from consuming any alcohol during contact. Whilst I am satisfied that his alcohol consumption is reasonably well controlled, it is not so long ago that it was out of control. An absolute embargo may seem harsh, however I am satisfied that the child should not be exposed to any risk that the husband may binge drink during contact. The greatest certainty is achieved from abstinence on his part.
This arrangement, I am satisfied, is in the child’s best interests in the long term.
Relevant law – property
The approach to the determination of an application under s.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 multiple part procedure. Firstly, identifying the property, liabilities and financial resources of the parties at the time of the hearing. Secondly, evaluating the contributions made by the parties as defined in 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.
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 do so: 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. In relation to parenting orders, the court must make an order that will promote the best interests of the particular child.
Assets, liabilities and financial resources as at the date of the hearing
The parties agree on the value of the assets and liabilities. They are set out in the table below.
| Assets as at the date of hearing | $ |
| Proceeds of sale of former matrimonial home (J) Agreed | 140,563.36 |
| St George Bank (W) Agreed | 150.00 |
| NRMA shares (W) Agreed | 1,800.00 |
| Nissan motor vehicle (W) Agreed | 4,500.00 |
| Share of furniture (W) | 2,000.00 |
| Share of furniture (H) | Nominal |
| Husband’s bank account | Nominal |
| TOTAL NON SUPERANNUATION ASSETS | 149,013.36 |
| Superannuation | |
| TESS (H) (Agreed) | 245.00 |
| UniSuper (H) (Agreed) | 240.00 |
| AMP (H) (Agreed) | 1,895.00 |
| SAS (W) (Agreed) | 30,000.00 |
| Total superannuation assets | 32,380.00 |
| TOTAL ASSETS | 181,393.36 |
| Liabilities as at the date of hearing | |
| St George Bank (W) | 5,105.65 |
| AGC (W) | 200.00 |
| Mastercard (W) | 2,000.00 |
| David Jones (W) | 60.00 |
| TOTAL LIABILITIES | 7,366.00 |
| NETT ASSETS (excluding superannuation) | 141,647.36 |
| TOTAL NETT ASSETS | 174,027.36 |
There were no submissions made that suggested that the AGC loan, Mastercard or David Jones card liability should be disregarded. The amount outstanding on the wife’s St George Bank loan is $23,000. This loan includes money borrowed to pay the wife’s legal fees. It is unfair to the husband to take into account this liability and not also notionally add back the wife’s paid legal fees. The wife said that the bank loan consolidated outstanding liabilities. In her financial statement sworn 15 November 2002 her liabilities were the mortgage, David Jones card ($200), Mastercard ($200) and AGC ($2,300). Overall these smaller loans have an almost equivalent value to the balance due at separation. The wife used part of the bank loan to pay an unspecified amount to her grandmother that appears to relate to repayment for outgoings identified in paragraphs 2, 3, 4 and 5 of her affidavit. These total $5,105.65. This is the amount that will be included as a joint liability as part of the St George loan. I infer that the balance of the loan is attributable to paid legal fees. The nett asset pool is therefore increased by $17,894.35.
Evaluation of the contributions
Section 79(4) requires that the court look at the entirety of the contributions, both financial and non-financial, to 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.
The wife made a greater initial contribution than the husband did. Not long before the parties’ married she purchased a Nissan Pulsar motor vehicle for $22,000 using the proceeds of her property settlement with her first husband. She was a member of the SAS Superannuation Scheme and had contributed to superannuation since about 1992. In addition, the wife had a significant quantity of household furniture and goods. The husband did not have any assets or liabilities.
On 28 February 1997 the parties completed the purchase of their home in the Campbelltown areas. The property was purchased in the wife’s sole name. The husband’s mother made a gift of $10,000 and the wife’s parents contributed at least $5,000, possibly a little more. The purchase price was $117,000 and the total cost of the purchase when legal fees, stamp duty and the like are taken into account was $120,994. This means that the parties contributed between about $5,000-6,500 from their joint savings towards the acquisition of the home. The husbands’ evidence in relation to the acquisition of the home was more precise than the wife’s was and I prefer his evidence as to its acquisition. At that time the wife was in full time employment and the husband in part time work. I infer the wife made a greater contribution towards the savings used in the purchase.
In the month prior to their marriage the parties cleaned and painted the home, preparing it for occupation. They made an equal effort in this regard.
Upon their marriage the parties commenced cohabitation. At that time the wife was employed as a secondary school teacher at earning $38,000 per annum. During the marriage her sole income came from her employment as a teacher. She earned approximately $238,000 during cohabitation. During the marriage the wife contributed all of the monies earned by her to joint matrimonial purposes.
At the commencement of cohabitation the husband was a full time university student. He took employment during university vacation and at other times undertook regular part time work either at a bottle shop or as a builder’s labourer. The husband’s tax returns reveal that for the 1997/98 tax year through to the tax year ending 2001/2002 the husband earned $67,924. In addition the wife agrees that he earned about $5,000 in the 1996/97 tax year. I am satisfied that the husband contributed all of the income earned by him to joint matrimonial purposes.
During the marriage both sets of parents contributed small cash gifts and other support for the parties. These contributions are of approximately equal value.
In 2001 the parties increased the mortgage by $60,000 which monies were used to renovate and extend the home. The renovations involved a 9 x 6 metre extension to the rear of the home, new kitchen, combination lounge/dining room, extra bedroom and relocation of the laundry. After completion of the extensions the $60,000 had been exhausted. A further $10,000 was borrowed to purchase a dishwasher, carpets, blinds and the like.
The cash gifts by both parties’ parents is a contribution made on their respective parts to the acquisition of the home. It seems quite plain from the facts that unless the parties had received these gifts the probability is that they would have been unable to acquire a home for quite some time. The gifts meant that their money worked for them, as they no longer needed to pay rent and had the opportunity to own an asset that increased in value. The husband’s counsel submitted that the principles in Pierce v Pierce 1999 FLC 92-844 are apposite. By this he contends that because the husband’s mother gave a greater sum than the wife’s parents did, there should be a significant recognition of this contribution on his behalf. The difference in the amounts given by both parents is only a few thousand dollars. I do not agree that this difference warrants particular recognition beyond a finding that reflects the face value of the gift.
After separation the wife paid all of the outgoings on the house without any contribution by the husband. She even paid utilities whilst he lived in the home. In addition to the approximately $5,105.65 earlier referred to, the wife paid $988 per month on the mortgage. This is a significant contribution on her part. She has also maintained her superannuation, with mandatory minimum payments made by her employer since separation.
Overall, the wife made a significantly greater financial contribution than the husband did.
Improvements to the home were significant. The renovations were primarily undertaken by contractors. I accept the husband’s evidence that during the approximately six months that the renovations were being completed, the husband worked four days a week and single handedly completed the work identified at paragraph 66 of his affidavit. At paragraph 67 of his affidavit he identifies the work he did helping tradesmen. The wife’s father renovated the bathroom. This was a contribution made on her behalf. Otherwise, the wife maintained the interior of the property prior to separation and the husband was responsible for outdoor work. After separation and while the husband was in occupation, the house fell into disrepair in the sense that the property was not maintained, either inside or outside. Prior to its sale the wife and her parents cleaned the property, which in the circumstances was a substantial venture. Overall the husband’s contributions to the conservation and improvement of the home exceeded the wife’s.
The wife’s role as a home maker and to the welfare of the family was significant. She was primarily responsible for R’s care and when not at work primarily attended to him. Having taken maternity leave, she then returned to work part time before resuming full time work in the 2000/2001 tax year. Whilst she agreed that the husband occasionally did some of the housekeeping I accept her evidence that he overstated the work he did in the home. It is apparent that once the wife left the home and the husband was living by himself, he was disinterested in maintaining the home. His attention to housework was obviously less than the wife’s was. I am not satisfied that he made an equivalent contribution to that she made as a home maker or parent. Overall, including the period post-separation, the wife has made a greater contribution as a home maker and to the welfare of the family than the husband has. In Ferraro (supra) it is made clear that such contributions must be given real weight.
Overall, I am satisfied that the wife has made a significantly greater contribution than the husband. She made a greater initial contribution and thereafter her financial contribution was pivotal to the parties’ capacity to maintain the mortgage. Whilst the husband’s contribution to the conservation and improvement of the property exceeds the wife, overall her non-financial contributions exceed the husbands. I evaluate her contribution at 60 per cent and the husband’s at 40 per cent.
The orders I make will not affect the earning capacity of either party.
The wife sought advice from the Child Support Agency as to the child support that the husband was liable to pay. She was informed that if assessed he would pay $21.67 per month. As he has another child this money would be divided between the two children, approximately $2.50 per week. She did not proceed and there is no current assessment. Since October 2003 the husband has voluntarily paid $1,560 child support. This is the total amount he has paid since June 2002.
At 60 per cent of the assets, the wife is entitled to $104,416.00 and the husband $69,611.
Section 75(2)
The wife is 38 years old and in good health.
The husband is 39 years old and in good physical health. Although he has been depressed, there is no evidence that he has a mental illness or that his depression has any longevity. I make no adjustment pursuant to subsection (a).
Both parties earn an income identified in their financial statement. The wife earns $1,170 per week, receives $75 weekly family allowance and on average $10 per week child support. This gives her a total income of approximately $1,255 per week. Presently, the husband works part time and earns $250 per week. In 2003 he contemplated returning to full time work and it appears that when working full time as a labourer he can earn about $1,000 per week. Presently, he works part time whilst deciding whether to resume study. With only three subjects to complete he can expect to work in a laboratory as a scientist. The management component to his degree provides the opportunity for career advancement. In the short term the husband will earn considerably less than the wife does. Should he give up study altogether he will probably earn about two-thirds of the income that she does. I infer that the purpose of the husband’s tertiary education is for both job satisfaction and the opportunity to earn considerably greater income. There is no evidence of the income he would earn as a scientist, but it seems probable that it would at least equate to the income earned by the wife. Taking a short-term view there are factors that suggest there should be an adjustment in the husband’s favour. However, in the long term the husband is likely to earn an income at least equivalent to that earned by the wife, which mitigates against an adjustment. I have already made findings concerning the parties’ property and their financial resources. I make no adjustment pursuant to subsection (b).
In Clausen (supra) the Full Court said,
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 opportunity and the restriction upon an independent lifestyle which the obligation to care for children usually entails.
Although the wife is in full time paid employment, these principles are applicable to the circumstances of this case. I am satisfied that as a consequence of the wife’s substantially exclusive care of the child there should be an adjustment in her favour pursuant to subsection (c).
The wife has the commitments identified in her financial statement.
I infer that the husband pays rent and that the balance of his income is spent on living expenses, car insurance and child support. The wife’s commitments include a significant portion for R. I am satisfied that I should make an adjustment in the wife’s favour pursuant to subsection (d).
Neither party contends for an adjustment under subsection (e)-(m).
I have already made findings in relation to the outcome of the contributions. The wife will have assets of about $104,416 and the husband will have assets of about $69,611. I have already taken superannuation into account. In the circumstances there is no reason why there should be any further adjustment pursuant to subsection (n).
I have already made findings concerning the child support paid by the husband since separation. When the entire period is taken into account his child support commitment has been manifestly inadequate. The husband’s counsel contented that the husband has demonstrated a commitment to pay child support and that the court would be satisfied that in the years that lie ahead he would carry a fair share of R’s expenses. Apparently he does not do so for his other child and I had a sense of disquiet that the husband’s motivation may falter once these proceedings are finalised. I am not satisfied that the husband will reliably pay appropriate child support and am strongly satisfied that the wife will carry the overwhelming financial responsibility of R’s support. I take this into account in the wife’s favour pursuant to subsection (na).
Prior to separation the wife’s mother cared for R whilst the wife was at work. Occasionally the husband did so, however, his time was taken up with study, renovations and part time work. Without the maternal grandmother’s assistance the parties would either have incurred substantial childcare costs or the wife may not have been able to return to work. The maternal grandmother’s contribution is made on the wife’s behalf and is a factor taken into account in the wife’s favour pursuant to subsection (o). After separation the wife removed a large quantity of household goods and furniture from the home. Some of these items included antiques given to her by her grandmother. Although I do not have valuation evidence of her furniture I do not accept that its total value is only $2,000. I have included this amount as an admission against interest but am satisfied that she has furniture and household goods worth more than the conceded value. I take this into account in the husband’s favour pursuant to subsection (o).
Subsection (p) does not apply.
Having regard to all of the s.75(2) factors I find there should be an adjustment in the wife’s favour of 18 per cent. This outcome reflects the cumulative outcomes of the findings I have made pursuant to s.75(2). See Tomasetti (2002) FLC 93-023. Any lesser adjustment, given the size of the asset pool, would be notional. The effect of this is that the wife will have 78 per cent of the assets and the husband will have 22 per cent.
Section 79(2)
Finally, I must consider s.79(2) and whether this is a just and equitable outcome. Because the court must consider the actual orders not just the percentage distribution under s.79(2) justice and equity in cases such as this requires that the court stands back and looks carefully at the outcome of the s.79(4) and s.75(2) process.
I have found that following the parties’ cohabitation during which the wife made a greater financial contribution than the husband did as well as a greater contribution as the home maker and parent that the contributions were 60 per cent in her favour and 40 per cent by the husband. The wife will have the primary ongoing responsibility for the care of the parties’ son, who is only 5 and a half years old. This responsibility is financially onerous even if the husband makes a meaningful child support contribution. He did not start to pay child support until twelve months after the parties separated and, although it has been paid voluntarily, the amounts paid are modest. I am not confident that the husband will reliably make a continuing financial contribution for child support and the overwhelming financial responsibility for R’s needs will be provided by the wife. In the long term both parties will earn at least comparable income. I take into account the detailed findings concerning the application of s.75(2) and do not repeat them. Balancing all these factors, I find that it is appropriate that the parties’ nett assets should be divided as to 78 per cent to the wife and 22 per cent to the husband.
That the outcome of the application of s.79(4) and 75(2) has resulted in a distribution favourable to the wife 78 per cent as to the husband’s
22 per cent I am satisfied is just and equitable within the meaning of s.79(2).
Thus, the wife will receive $135,741 of the nett assets. Excluding the proceeds of sale of the home the nett assets total $33,464. Seventy eight percent of $33,464 is $26,102. The wife currently has nett assets valued at $31,084 and so must pay the husband an adjustment of $4,982 from her share of the proceeds of the home. The current value of the proceeds of sale is $140,563.36 and so the wife will receive about $109,639 from which she will pay the husband $4,982. The husband will receive $30,924 from the proceeds of sale of the home as well as the payment from the wife. By way of crosschecking, the husband has total assets of $2380. Twenty two per cent of $174,027 is $38,286. Deducting from this the assets he has, there is a balance of $35,906.
For these reasons I make the orders identified at the start of this judgment.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date: 1 March 2004
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