Monroe and Green and Anor
[2010] FamCA 1006
•11 November 2010
FAMILY COURT OF AUSTRALIA
| MONROE & GREEN AND ANOR | [2010] FamCA 1006 |
| FAMILY LAW – CHILDREN – Separation of siblings FAMILY LAW – PROPERTY |
| APPLICANT: | Mr Monroe |
| FIRST RESPONDENT: | Ms Green |
| SECOND RESPONDENT | Mr Purcell |
| FILE NUMBER: | NCC | 2294 | of | 2009 |
| DATE DELIVERED: | 11 November 2010 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | The Hon. Justice Cleary |
| HEARING DATE: | 30 August 2010 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Craney Family Solicitors |
| COUNSEL FOR THE FIRST RESPONDENT: | Ms Burns |
SOLICITOR FOR THE FIRST RESPONDENT: | Lucas & Associates |
Orders
Parenting
That all previous parenting orders be and are hereby discharged.
That the parties have equal shared parental responsibility for the child, S born … January 2006 (“S”).
That S shall live with the Mother.
That S will spend time with the Father as follows:-
4.1 During term 4 2010:-
(i)from after school Friday until 6.00 pm Sunday commencing from the second Friday of the term;
(ii)each Thursday from 4.00 pm until 6.30 pm;
4.2 During the 2010/2011 Christmas school holidays:-
(i)from 9.00 am 21 December to 5.00 pm 24 December 2010;
(ii)from 3.00 pm 25 December to 3.00 pm 26 December 2010;
(iii)from 9.00 am 31 December 2010 to 5.00 pm 2 January 2011;
(iv)from 1.00 pm 12 January 2011 to 1.00 pm 14 January 2011; and
(v)from 9.00 am 20 January 2011 to 5.00 pm 24 January 2011;
4.3In addition to the time provided above the Father is at liberty to attend the residence of the Mother on 25 December 2010, as agreed, and in the absence of agreement from 9.00 am until 11.00 am that day.
4.4From the commencement of term 1 2011 until the conclusion of term 2 2011 during term time:-
(i)each alternate weekend from after school Friday until before school Monday commencing the second Friday of the school term;
(ii)each Thursday from after school until 6.30 pm commencing from the first Thursday of each term;
(iii)from midday on Easter Sunday to before school on Wednesday 27 April 2011;
4.5 During school holidays at the conclusion of terms 1 and 2 2011:-
(i)from 9.00 am on the 1st Saturday of each holiday period to 5.00 pm on the 5th day thereafter unless otherwise agreed between the parents;
4.6From the commencement of term 3 2011 and thereafter during term time:-
(i)each alternate weekend from after school Thursday until before school the following Monday commencing the second Thursday of each school term; and
(ii)each alternate Thursday from after school until before school the following morning commencing the first Thursday of each school term;
4.7During school term holidays commencing with the holidays at the end of term 1 2012 and thereafter:-
(i)for one half of each period as agreed and failing agreement otherwise for the first half in odd numbered years and in the second half in even numbered years;
4.8 During Christmas school holidays December 2011 to January 2012:-
(i) for two periods of one week to be no closer than one week apart;
(ii) from 3.00 pm 23 December 2011 to 3.00 pm 25 December 2011;
4.9That thereafter for half of each Christmas school holidays and failing agreement otherwise the first half when the holiday period commences in an odd numbered year and the second half when the holiday commences in an even numbered year with S to spend additional time with the parent with whom she spends the second half of the holiday period either:-
(i)from 3.00 pm on 23 December to midday Christmas Day; or
(ii)from midday Christmas Day to 9.00 am on 27 December;
4.10During the weekend including Father’s Day from 6.00 pm on the day before Father’s Day until the return to school on Monday morning.
That in the event that S is spending time with the Father on the weekend including Mother’s Day, time is suspended from 4.00 pm on the day before Mother’s Day for the balance of that period.
That the Mother may add the name Green to S’s name so that she is known as S Green Monroe and to that end each parent shall do all acts and things and sign all documents required by the Registrar of Births Deaths and Marriages to effect that change.
That the Mother authorise the school which S attends to forward directly to the Father all information relating to S’s welfare and progress at school together with notice of events to which parents are invited.
That each party is at liberty to provide a copy of these orders to the school which S attends.
That each party is entitled to attend at the school for any event to which parents are invited.
That the Father is at liberty to communicate with S by telephone at such times as are agreed between the parties and failing agreement on Tuesday and Thursday morning between 7.00 am and 7.30 am each week during school terms with the Applicant to initiate the telephone call and the Respondent to ensure that S is available to receive calls and in privacy.
That each party shall keep the other advised of any change of address and/or contact number.
That each party must notify the other forthwith of any medical emergency concerning S or any medication administered to S.
That neither party shall denigrate the other or permit any other person to do so in the presence or hearing of S.
That neither party may commit S to any extra curricular activity without the prior consent of the other parent.
That until S reaches the age of eight years the Mother may telephone S at any reasonable time when S is in the care of the Father and thereafter on two occasions per week during holiday times.
That the parties shall ensure that S attends one general medical practitioner other than in the event of an emergency and each parent shall be entitled to approach S’s treating medical practitioner or therapist to obtain relevant advice about S’s health and progress.
Property
That the Applicant do all acts and things and sign all documents to transfer his interest in the property at P to the Respondent.
That the Respondent do all acts and things and sign all documents to re-finance the existing mortgage on the P property into her sole name and indemnify the Applicant against all mortgage instalments and other expenses relating to the P property.
That the Applicant pay to the Respondent the sum of $7,650.
That the parties otherwise retain all property presently in his and her possession including but not limited to superannuation interests, bank accounts and motor vehicles.
IT IS NOTED that publication of this judgment under the pseudonym Monroe & Green and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCC 2294 of 2009
| MR MONROE |
Applicant
And
| MS GREEN |
Respondent
| MR PURCELL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
These are competing applications in respect of parenting and property between the Applicant, Mr Monroe (“the Father/the Applicant Father”), and the Respondent, Ms Green (“the Mother/ the Respondent Mother”), (together referred to as “the parties”).
The Second Respondent, Mr Purcell, is the former husband of the Mother. There was one child of their marriage, N, born in August 2002. A parenting plan has been put in place between the Mother and the Second Respondent in respect of N. Further, an order has been made for the Father to spend some limited time with N.
Accordingly, the dispute heard by the court was in relation to parenting arrangements for the parties’ only child, S, born in January 2006.
The Second Respondent took no part in the proceedings.
Background
The parties began a relationship in June 2003 and married in December 2003. One child was born of the relationship, S, now aged four years and nine months. The Mother’s older child, N, was at all times a member of the parties’ household. N was approximately six months old when the parties began a relationship and grew up calling the Father “dad” and related to him accordingly.
The parties separated early in 2009 and physically on 19 April 2009. Both children continued to live with their Mother. The Father left the matrimonial home in P at that time.
Both parties are teachers. They first met in 1996 when teaching at the same school.
In 2003 when the parties began living together their financial circumstances were as follows:-
a)the Respondent Mother owned the property at P (“the P property”) which she retained after a property settlement with her previous husband, the Second Respondent. There was a debt associated with the transfer to her of this property;
b)the Applicant Father owned a property at C which he had purchased in early 2002 for $147,000. The Applicant Father had borrowed $171,000 to buy the property. His additional borrowings picked up $10,000 worth of personal debt on a motor vehicle and $5,000 in credit card together with legal costs, stamp duty and mortgage insurance in respect of the C property.
When the parties began living together the Father moved into the P property. His property at C was leased, initially to his sister at a nominal rent, and from mid 2004, after the Father’s sister moved out of the property, at a commercial rent.
The Mother was working part time and the Father was working full time. The maternal grandmother assisted with the care of N when the Mother first returned to work after his birth. She did so again when the Mother returned to work after S was born. The Mother returned to work initially two days per week and from early 2007 three days per week.
In April 2007 the Father took up a teaching position in E. There had been disagreement and dispute between the parties about the Father’s decision to apply for this position. Initially the Father moved to E alone and the Mother and the children visited. In late 2007 the parties bought a property in E and the Mother and children relocated to E to live in January 2008. On the evidence of both parties and of the maternal grandmother, the move to E was unsuccessful, from the Mother’s point of view, from the start.
During the first half of 2008 the maternal grandmother travelled to E and cared for S while the Respondent worked three days per week. The maternal grandmother travelled from her home in A every week to do so. For the balance of that year she travelled less frequently, but on a regular basis, to care for both the children.
The Mother and both children returned to Newcastle in December 2008 after 12 months leave from her position a Newcastle school had expired. She was required to return to that position by January 2009 or would lose the opportunity to be reinstated. The maternal grandmother again provided care for S while the Mother was working on the three days when S was not at pre-school.
The parties separated in April 2009 and the Mother and children moved back into the P property after the tenants there had moved out.
From the second week in October 2009 until the third week in December 2009 the Father took long service leave. This enabled him to return to Newcastle and to explore the possibilities of returning to employment in Newcastle at the same time restoring his relationship with the children.
On 15 March 2010 orders were made for time to be spent between S and her Father. It was at that time that the order for contact between N and the Father was made by consent.
The pressure arising from the parties’ financial difficulties no doubt contributed to the difficulties the parties had in coming to a final position in relation to parenting Orders for S despite being compliant with the interim orders.
Issues
Parenting
The issue in dispute is the amount of time that S should spend with her Father through the term and in holiday periods. The nature of the Orders sought by each of the parties is for the Father to spend substantial and significant time.
Property
In relation to property, the net asset pool, including the parties’ interests in superannuation, was at the time of hearing $212,700. The parties agreed that the Respondent should retain the P property if she was able to do so. The issues arising were the contributions during the course of the marriage and whether or not there should be an adjustment pursuant to s 75(2).
The Evidence
The Applicant relied on the following documents:-
a)Amended Application filed 19 August 2010;
b)Affidavit of the Applicant filed 2 July 2010;
c)Financial Statement filed 8 September 2009;
d)CAPIA report dated 15 October 2009.
The Respondent relied on the following documents:-
a)Amended Response filed 24 August 2010;
b)Affidavit of the Respondent filed 24 August 2010;
c)Affidavit of the maternal grandmother filed 24 August 2010;
d)Amended Financial Statement filed 24 August 2010; and
e)Children and Parents Issues Assessment dated 15 October 2009.
The Applicant Father
A: Parenting
The Father is 38 years of age. He is a teacher and is currently employed in a local school. He is staying with his own mother in C.
The Father has paid child support in the sum of $500 per month since November 2009.
The parties and children lived in E from January 2008 until December 2008 and the relationship finally broke down in April 2009. Subsequently, in October 2009 the Applicant returned to Newcastle. I accept that the Father returned to Newcastle and took long service leave so he could spend more time with S to build up a relationship with her and to have a say in her upbringing. I accept that the Father was also interested in maintaining a relationship with N.
The Father gave evidence that he was unwilling to contribute to school fees for S at a Christian school although he had consented to her being enrolled there for the sake of the two children being at the same school I accept the Father’s evidence that his preference was for S to attend a local State school. I consider that the Father saw a benefit to S in attending school with her brother.
The Father said there had been arguments at changeovers on at least three occasions. He agreed that S had not had an ideal upbringing given the number of moves that the parties had made.
In relation to the child’s name the Father said that he objected to the name being changed to Monroe-Green because S was known as S Monroe. However, he had no objection to the inclusion of the surname Green in her name. I consider that there is a benefit to S in having her mother’s surname included in her name, particularly as her brother is to be known by the surname Purcell-Green.
The Father wanted to continue to have phone contact with his daughter:-
“A quick call each day won’t cause any harm”
and was content to ring in the morning between 8.00 am and 8.30 am given that evening phone calls had created difficulties in the Mother’s household.
In relation to Christmas day the Father said that he was hoping to include S in the arrangements that his family made which was to get together at the paternal grandfather’s between 8.30 am and 10.00 am and/or for Christmas evening with his extended family.
B. Property
The Applicant Father’s property in C had been sold. The sale was due to settle two days after the conclusion of the hearing in this matter. The balance sheet was prepared on the basis of advice to both parties by solicitors acting in the conveyance of the C property as to the net proceeds from that sale.
The Applicant Father earns approximately $1,620 per week.
When the parties began living together the Applicant Father raised the sum of $66,000 on the security of his property at C in order to assist the Respondent Mother to pay out the interest of her former husband, Mr Purcell (the Second Respondent), in the property at P.
The evidence of the Applicant Father reflected the difficulties the parties had had, at one stage having two mortgages on the property at E, one loan secured on the property at C, one loan secured on the property at P and one loan in respect of the refinancing of the P property to pay out Mr Purcell. The evidence was that the Respondent Mother’s income was no longer paid into the parties’ streamlined account after August 2008. Thereafter, the Respondent Mother was responsible for meeting the mortgage on the P property and the Applicant Father was responsible for mortgages on the properties in E in C.
The overall impression I formed was that the parties struggled with debt throughout the relationship and that sustaining two households after the return of the Respondent Mother to P created enormous financial stress for both parties.
The Respondent Mother
A. Parenting
The Mother gave evidence which reflected her wish to protect and preserve the relationship of her two children with each other as well as with their respective fathers.
N had grown up treating the Father as his own father but has, more recently, established a relationship with his biological father and periods of time are spent with him on alternate weekends. Clearly the Mother hopes to keep the children together as much as possible and is concerned to proceed slowly with an increase in time between S and her father. She stated that the current order for phone contact had not worked because it was difficult to be home at the stated time. She had no objection to a morning phone call.
In relation to S’s name, the Mother was not opposed to the insertion of her surname in the child’s name rather than adding it as a hyphenated surname. As previously stated, I consider the addition of the Mother’s surname to S’s name will allow her to feel linked to each of her parents and to her brother.
The Mother described an incident after S’s return from a period of time with the Father. She is said to have locked the security door and turned to her Father and said:-
“You can go now daddy.”
The Mother also referred to S crying on the phone to her to come home and sometimes wetting her pants. I accept the Mother’s evidence in that regard.
In cross examination the Mother was asked whether she expected the Father to “give way to [N]” in terms of the amount of time he spent with his daughter. The Respondent answered as follows:-
“I want [the father] to sit down and ask [S] what she wants.”
I consider that such a course of action would be quite unhelpful to S. When interviewed by a Family Consultant at age three, she was expressing the warmth of her love and affection for her father which she undoubtedly still feels. To ask a four year old child what she wants, in the context of the amount of time she should spend with her father, would be unfair and unhelpful to her. When the stress of these proceedings has reduced I believe that the Mother will realise that had S been asked in that way she would have felt guilty about disappointing one parent or the other.
The Mother has been under considerable pressure through the failure of the marriage and the extreme financial difficulties that both parents have experienced. It does seem to me that S has been conscious of her Mother’s unhappiness and has become stressed and perhaps anxious. Again, the Mother was asked whether delaying the onset of increased time with the Father would promote the relationship between the Father and S. The Respondent answered as follows:-
“Yes, that little girl is starting school next year. It’s a huge hurdle.”
This answer is, in my view, a reflection of the Mother’s own state of mind: that S starting at school, with the new arrangements that will follow from that, is yet another change and something else for the Mother to manage. However, it should be a positive, even a joyous occasion, for S to start school. There is nothing in the evidence to suggest otherwise.
There was clear evidence that the Mother is looking for a way to minimise the stress and pressure on the children and herself. Her answer to questions about whether or not contact should be from school to school, that is that S should be collected Thursday from school and returned the following Monday to school, was that she could see how it could be a workable plan. I note, of course, that the Mother does not wish for this progression to be immediate but I accept that she could see some benefit for S in such an arrangement.
The Mother also accepted that the paternal grandmother, the paternal grandfather and the paternal aunt were all suitable people to assist with the collection and delivery of S, certainly suitable in an emergency. However, it was the Mother’s view that the Father should ensure that he was available to do this collecting and delivering. I interpret this evidence as the Mother feeling critical of the Father for having been less involved, in her view, than he should have been in the past and doubting his ongoing commitment. I do not interpret it as an objection to members of the external family assisting. There would be a benefit to S, in my view, if they did so from time to time.
B. Property
The Respondent Mother gave evidence that during the course of the relationship that the parties had an agreement where mortgages were paid from the income of the Applicant Father and everything else from her income. Her evidence was a reflection of the very different approach the parties have to managing money. The Respondent Mother said that she paid cash and did not use credit cards. I take it that she did not really approve of the use of credit cards. She had clearly become extremely worried about the level of the parties’ borrowings and that to a great extent the marriage broke down over their differences in this regard, not simply because of the difficulty of the decision over living in E.
The Respondent Mother was asked about the fact that the Applicant Father had been solely responsible for the mortgage on the E property from August 2008. I accept her evidence which she gave as follows:-
“I tried to meet up to 50% but then I couldn’t continue to do so. When the bank stepped in I felt there had been clarification.”
There was cross examination about child support and the evidence of the Respondent Mother was that had the Applicant Father been paying child support at that time, she would have been able to contribute to the E mortgage. This evidence is reflective of how much financial pressure the parties were under.
I find that the income of the Applicant Father was mostly used with meeting the E property mortgage and that the income of the Respondent Mother was mostly used with meeting the P property debts and in supporting the children.
The Law - Parenting
Section 60CC factors
s 60CC(2)(a) The benefit to the children of having a meaningful relationship with both of their parents
S has a meaningful relationship with both of her parents. The Mother has been reluctant to increase periods of time that S spends with the Father but I accept that she sees a benefit for S in spending more time. The real issue is how quickly the periods increase.
s 60CC(3)(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
Both S and her brother expressed to Ms R, the Family Consultant, that they missed the Father. Ms R was able to make an observation of the close physical affection between S and her Father. The Mother’s evidence was that S felt confused when they returned to Newcastle as to why the Father had to remain in E.
s.60CC(3)(b) The nature of the relationship of the child with:
each of the parents; and
other persons (including any grandparent or other relative of the child)
S will live with the Mother. The Mother, perhaps understandably, has been somewhat overprotective of S and may not, at this time, accept that S and the Father (and also N if that’s how future events develop) will form a family group just as she and the two children are a family group. The proposal by the Mother that S always spend Christmas morning with her is an indication that the Mother, at this stage in any event, does not accept that proposition. She may come to do so.
s 60CC(3)(c) The willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent
The Mother has had long periods of time when she has been solely responsible for the children. She clearly felt disappointed in the Father for disrupting the family by the decision to move to E. At this stage she has been unable to forgive him for the impact she has perceived on the children. She wishes to go slowly with the progression of S’s time with the Father but I do not consider that she wishes to restrict the relationship.
The Father for his part has understood the significance of keeping the children together and accepts that S does best while spending more of her time with the Mother and her brother. This is to the Father’s credit.
s 60CC(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
a) either of the parents; or
b)any other child, or other person (including any grandparent or other relative of the child), with whom they have been living
S is living in the family home where she lived prior to the period of time in E. She lives there with her Mother and her brother. The Father lives reasonably close by. Once a pattern is established S will be able to cope with being separated from the Mother and her brother for increasing periods of time.
s 60CC(3)(e) the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis
The parents live close by. They are both teachers and are in a position to facilitate contact, home to home, or through the school. There will be no practical difficulty in S travelling between the households.
s 60CC(3)(f) The capacity of the children’s parents and any other person (including any grandparent or other relative of the children); to provide for the needs of the children, including emotional and intellectual needs
Both parties have the capacity to meet the needs of S, including her emotional, intellectual and educational needs.
s 60CC(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of their parents, and any other characteristics of the children that the court thinks are relevant
S is four years old. She is due to start school in 2011. She has a close and loving relationship with her brother, N, and probably doesn’t understand at this time that N is not the Father’s biological child. She may have difficulty understanding why N does not come with her to spend time with the Father. I am confident both parents will deal with this issue sensitively.
s 60CC(3)(i) The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents
The attitude of both parents has been focused on S but affected by their inability to reach agreement on their financial affairs and, in the case of the Father, frustrated by how to manage the fact that he will not spend the same amount of time with N and S. The Father is impatient to increase time so as to continue to improve his relationship. The Mother is fearful that increased time will destabilise S. They are both concerned and loving parents.
s 60CC(3)(l) Whether it would be preferable to make the order that would be lease likely to lead to the institution of future proceedings in relation to the children
In the event that both parents work on their ability to communicate and to assist the child, there should be no need for the institution of further proceedings.
s 60CC(3)(m) Any other fact or circumstance that the court thinks is relevant
The orders provide a progression for S, especially once she begins school, to routinely spending substantial and significant time with her Father. I do not identify any issue which is an impediment to time increasing as ordered.
The parties agree that they should have equal shared parental responsibility for S but neither of them seeks equal time. That is understandable given the position of N in the Mother’s household and the need for S to have the benefit of the relationship with her brother. That is not to say that that relationship is more significant to S than the relationship with her Father, it is simply a matter that must be taken into account in considering appropriate orders.
Analysis
Parenting
In her report dated 15 October 2009 the family consultant, Ms R, found that both children, but relevantly to this Judgment, S, had a secure attachment with the Applicant. She says:
“The children both expressed how much they love him and miss him and were very affectionate towards [the father] and that affection was warmly reciprocated.”
There had been agreement between the parties that time with S needed to increase incrementally with a view to building up overnight arrangements.
On the second last page of her report Ms R said this:-
“In order for the communication to improve and the conflict to decrease [the mother] needs to stop disparaging the Applicant on a personal and professional level and she needs to be able to separate financial matters from matters relating to the children. [The mother] and [the father] must begin to increase communication and considerably reduce their current level of conflict in order to support the welling being and best interests of the children.”
In the concluding paragraph of her report Ms R said this:-
“It is apparent that they (both parents) are both experiencing significant guilt and remorse for their violent actions in front of the children. Both parties should be referred to a psychologist via their general practitioner.”
This high level of conflict and criticism was evident in the evidence of both parties.
Unfortunately they had been unable to resolve their property dispute as had been anticipated on 12 July 2010. At that time the legal representatives for the parties had indicated an agreement between the parties on property settlement subject to two discreet issues:-
a)approval by the trustee of the superannuation split; and
b)the existence of a significant break fee arising from the re-financing of the P property by the Respondent Mother.
In fact, at the commencement of this hearing, the property proceedings were entirely unresolved. I formed the view that the ongoing dispute made it difficult for both parties to focus on the interests of their daughter and on the Respondent’s child, N. However, once the Respondent Mother has either refinanced the P property or if not, reaccommodated herself and the children and the Applicant Father has established independent accommodation, then arrangements for S will be less fraught and S will start to benefit from the time spent with both parents in a less emotional and angry family context.
S will need the support of both her parents to adjust to the new arrangements. The two things that the parents can do in this regard are:-
a)to acknowledge the importance of the other parent and his/her love for S; and
b)to improve their communication so that neither S nor M are used as a conduit for information or routinely questioned about the other parent.
Property
The relationship between the parties was for about six years. The Respondent Mother brought into the marriage her property at P subject to her obligation to pay out the interest of her former husband. The parties had the benefit of living in that property as the family home. This is a significant contribution by the Mother. The Applicant Father used his property at C to secure a loan to pay out Mr Purcell’s interest in the P property. This was a significant contribution by the Applicant Father.
Both parties worked to the extent that they were able. The Respondent Mother was out of the workforce for a period and returned to part time work after the birth of S in January 2006. The maternal grandmother provided extensive assistance to the parties in caring for S and also for N.
There was a contribution by the Applicant Father in terms of his care of N, who was at all times a member of the family and a child of the household. The Applicant Father provided both financial and emotional support and assistance to N. I do not doubt that the Applicant Father treated N s his son.
The parties reached an agreement, however reluctantly on the part of the Respondent Mother, to move to E and they lived apart for approximately eight months in 2007 until they were reunited in E in January 2008. The parties were then apart again from the end of 2008 until 2009 when the Applicant Father took long service leave and returned to Newcastle. The consequence of this is that during those periods of time when the parties lived apart, by arrangement and then after separation, the Respondent Mother was entirely responsible for the care of S and of course N. I consider that the contributions favour the Respondent Mother in the order of ten per cent, that is at the date of hearing the contributions should be considered to be 55 per cent / 45 per cent favouring the Respondent Mother.
Section 75(2) factors
(a) the age and state of health of each of the parties
The Applicant Father is 38 years of age. The Respondent Mother is 39 years of age. Both parties are in good health.
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
The property and resources of each party is limited. Both parties have the capacity and opportunity to continue in gainful employment as school teachers. The Respondent Mother will be returning to full time work.
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
The Respondent Mother has the care of the two children for more of the time.
(d) commitments of each of the parties that are necessary to enable the party to support: (i) himself or herself; and (ii) a child or another person that the party has a duty to maintain
Both parties are committed to financially supporting S.
e) the responsibilities of either party to support any other person;
Neither party has such a responsibility.
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under (i) any law of the Commonwealth, of a State or Territory or of another country or (ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia and the rate of any such pension, allowance or benefit being paid to either party;
Neither party has a present entitlement to a pension. Each contributes to superannuation.
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable
It will be some time before either party achieves a comfortable standard of living.
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income
Not applicable.
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant
Not applicable.
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party
Not applicable.
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration
Not applicable.
(l) the need to protect a party who wishes to continue that party's role as a parent
Each parent has a wish to and will continue in his/her role as parent.
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation
Neither party is cohabitating with another person.
(n) the terms of any order made or proposed to be made under section 79 in relation to: (i) the property of the parties; or (ii) vested bankruptcy property in relation to a bankrupt party
Not applicable
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage
The Applicant has paid assessed Child Support for approximately twelve months.
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to: (i) a party to the marriage; or (ii) a person who is a party to a de facto relationship with a party to the marriage; or (iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or (iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii)
Not applicable.
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
There is significant benefit to the children in remaining in the home at P.
(p) the terms of any financial agreement that is binding on the parties to the marriage
Not applicable.
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage
Not applicable.
Both parties are teachers. The Respondent Mother will be returning to full time work. Both parties have contributed to superannuation and will continue to do so in the future. Both parties are in good health. The Respondent Mother also has the care of N. Neither party has entered into a permanent relationship. The Respondent Mother will continue to live in her P property but will have a substantial mortgage.
The Applicant Father, having repaid his legal fees and re-accommodated himself, will have very little by way of assets but no debt. Accordingly, in view of the Respondent Mother’s greater obligations in relation to the care of the children, particularly S, I make an adjustment in her favour of five per cent which will have practical implications as set out below.
The net asset pool of the parties is set out in Exhibit “HW 1” as follows:-
Wife Value
Husband Value
Joint Value
ASSETS
Proceeds from C sale (NET)
58,000
P property
350,000
Wife’s superannuation (March ’10)
52,000
Husband’s superannuation (March ’10)
74,000
Camry vehicle
9,000
Commodore vehicle
1,000
SUB TOTAL
544,000
LIABILITIES
Mortgage P property
291,000
Telstra
2,600
GE Money
8,700
Citibank
29,000
SUB TOTAL
331,300
ASSETS LESS LIABILITIES
212,700
The Applicant Father will receive 40 per cent of net assets and the Respondent Mother 60 per cent of next assets.
The total net asset pool is $212,700.
The Applicant Father will retain the following assets:-
Net proceeds of the sale of the C property $58,000
Superannuation $74,000
Commodore motor vehicle $1,000 $133,000
The Applicant Father will be responsible for joint debts as follows:-
Telstra $2,600
GE Money $8,700
Citibank $29,000
$40,300
The Applicant Father will therefore retain net assets with a value
of $92,700
less payment to the Respondent Mother $7,620
$85,080 (40%)
The Respondent Mother will retain the following assets:-
P property$350,000
Superannuation $52,000
Camry vehicle $9,000
$411,000
The Respondent Mother will be responsible for the
mortgage on P property of $291,000
Accordingly, the Respondent Mother will retain assets
with a net value of $120,000
together with an additional payment from the
Applicant Husband of $7,620
$127,620 (60%)
I certify that the preceding ninety seven (97) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 11 November 2010.
Associate:
Date: 11 November 2010
Key Legal Topics
Areas of Law
-
Family Law
-
Property Law
Legal Concepts
-
Remedies
-
Consent
0
0
0