P and P
[2001] FMCAfam 26
•23 March 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| P & P | [2001] FMCA fam 26 |
| FAMILY LAW – Property – Contributions – Personal injuries damages verdict – Comparison of contributions – Obligation to give full and frank disclosure – Contact to children – Regular contact when parties live some distance apart – International travel – Security for return of children. |
| Applicant: | N P P |
| Respondent: | M C P |
| File No: | ZP1991 of 2000 |
| Delivered on: | 22 March 2001 |
| Delivered at: | Parramatta |
| Hearing Dates: | 6 & 7 March 2001 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Snelling |
| Solicitors for the Applicant: | Bell & Partners, Suite 5B, Henry Lawson Centre, 61–79 Henry Street, Penrith 2750, DX 8070 Penrith |
| Counsel for the Respondent: | Mr Friedlander |
| Solicitors for the Respondent: | Aubrey Brown Partners, Suite 1, 30–32 Hely Street, Wyong 2259, DX 7305 Wyong |
ORDERS BY CONSENT
That the children of the marriage namely P I P born 17 June 1988, K J P born 1990 and E E P born on 25 October 1994 “THE CHILDREN” shall reside with the Wife.
NOTED BY CONSENT
That the Husband pay to the Wife one half of P’s dental bill, in the sum of $1950.00 immediately upon receipt of his interest in the monies held by S F.
IT IS OTHERWISE ORDERED
That other than as provided in these orders all existing parenting orders are discharged.
That the Wife shall have responsibility for the children’s day to day care, welfare and development when the children are in her care.
That the Husband shall have responsibility for the children’s day to day care, welfare and development when the children are in his care.
Both the Husband and the Wife shall share responsibility for the children’s long term care, welfare and development.
That the Husband shall have contact with the children as follows:
(a)Each alternate weekend from 6pm Friday until 6pm on Sunday extending to 6pm on a Monday when a contact weekend coincides with a long weekend;
(b)For half of all New South Wales school holiday terms as agreed between the parties and in the absence of agreement the second half of the year 2000 and in each alternate year there after the first half in the year 2001 and in each alternate year thereafter;
(c)For the first half of the Christmas school holiday vacation in the year 2000 and in each alternate year thereafter and for the second half of the Christmas school vacation commencing in January 2002 and in each alternate year thereafter;
(d)For a minimum of 3 hours on each of the children’s birthdays each year during years ending in an even number and on the day following their birthday in years ending in an odd number;
(e)From 9am until 6pm on Father’s day each year;
(f)In the event that Mother’s day coincides with a contact weekend the children shall be returned to the Wife at 6.00pm on the day before Mother’s day;
(g)Such other times as agreed between the parties.
During block holiday contact alternate weekend contact shall be suspended and shall be resume the first weekend following the commencement of each school term.
The Wife shall be responsible to transport the children to the Husband’s residence at the commencement of each period of contact and the Husband shall be responsible to return the children to the children’s residence at the end of each period of contact.
In the event that the Husband is unable to exercise alternate weekend contact in accordance with these orders as a result of RTA work commitments requiring him to travel interstate, then on the Husband giving the Wife 3 weeks notice, contact shall take place the weekend immediately following the weekend that contact would normally have taken place and thereafter alternate weekend contact shall resume the following weekend and then each alternate weekend thereafter.
That the Husband be permitted to take the children on overseas holidays PROVIDED that he give the Wife 3 months written notice of his intention to do so AND GIVE to the Wife copies of travel itineraries and proof of return tickets to Australia.
That the Husband and the Wife do all acts and things and sign all documents necessary to enable the Husband to obtain Irish Passports for the children.
That forthwith upon the making of these orders both the Husband and Wife shall do all acts and things necessary and give all directions necessary to S F to forthwith disburse the net sale proceeds from the sale of the home at 1120 B L Road, K H as follows:
(a)In payment of the Husbands visa card to an amount of $4480.00;
(b)In payment of the Husbands Grace Brothers card to an amount of $1400.00;
(c)In the sum of $97,083.73 to the Wife, and
(d)The balance to the Husband.
Unless otherwise specified in these orders :
(a)Each party be solely entitled to the exclusion of the other, of all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions of payment out of such entitlements;
(b)Each party is solely liable for and indemnifies the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
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 Section 84, 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 all outstanding applications are otherwise dismissed.
That all exhibits are to 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 7 days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
ZP1991 of 2001
| N P P |
Applicant
And
| M C P |
Respondent
REASONS FOR JUDGMENT
Proceedings
The proceedings are for financial and parenting orders. They relate to the adjustment of property, residence, contact and specific issue orders.
The Application
N P P (the husband) filed an Application for Final Orders on 8 May 2000. His Application was filed in the Family Court at Parramatta. On 26 October 2000 the proceedings were transferred to the Federal Magistrate’s Court at Parramatta. At trial, he sought the orders contained in his Application. They are as follows:
(1)That the children of the marriage namely P I P born 17 June 1988, K J P born 1990 and E E P born on 25 October 1994 shall reside with the wife.
(2)That the wife shall have responsibility for the children’s day to day care, welfare and development when the children are in her care.
(3)That the husband shall have responsibility for the children’s day to day care, welfare and development when the children are in his care.
(4)Both the husband and the wife shall share responsibility for the children’s long term care, welfare and development.
(5)That the husband shall have contact with the three children of the marriage P I P, K J P AND E E P as follows:
(a)Each alternate weekend from 5pm Friday until 6pm on Sunday extending to 6pm on a Monday when a contact weekend coincides with a long weekend;
(b)For half of all New South Wales school holiday terms as agreed between the parties and in the absence of agreement the second half of the year 2000 and in each alternate year there after the first half in the year 2001 and in each alternate year thereafter;
(c)For the first half of the Christmas school holiday vacation in the year 2000 and in each alternate year thereafter and for the second half of the Christmas school vacation commencing in January 2002 and in each alternate year thereafter. From 2pm Christmas Eve until 12 noon Christmas day 2001 and each alternate year thereafter;
(d)
The husband shall return the children to the wife at
2pm Christmas eve 2000 and the children shall be return to the husband at 12 noon Christmas day in the year 2000 and in each alternate year thereafter;
(e)For a minimum of 4 hours on each of the children’s birthdays each year;
(f)From 9am until 6pm on Father’s day each year;
(g)In the event that Mother’s day coincide with a contact weekend the children shall be returned to the wife at 9am on Mother’s day;
(h)Such other times as agreed between the parties.
(6)During block holiday contact alternate weekend contact shall be suspended and shall be resume the first weekend following the commencement of each school term.
(7)The wife shall be responsible to transport the children to the husband’s residence at the commencement of each period of contact and the husband shall be responsible to return the children to the children’s residence at the end of each period of contact.
(8)In the event that the husband is unable to exercise alternate weekend contact in accordance with these orders as a result of RTA work commitments requiring him to travel interstate, then on the husband giving the wife 3 weeks notice, contact shall take place the weekend immediately following the weekend that contact would normally have taken place and thereafter alternate weekend contact shall resume the following weekend and then each alternate weekend thereafter.
(9)The wife shall not denigrate or criticise the husband or the husband’s friends to the children or at all.
(10)That the wife shall do all things necessary to encourage and facilitate contact by the children to the husband.
(11)That the husband be permitted to take the children on overseas holiday and the wife do all acts and things and sign all documents necessary to enable the husband to obtain Irish Passports for the children.
(12)The husband shall provide to the wife copies of travel itineraries and proof of return tickets to Australia.
(13)That forthwith upon the making of these orders both the husband and wife shall do all acts and things necessary and give all directions necessary to S F, the Solicitor for the wife, to disburse the net sale proceeds from the sale of the home at 1120 B L Road, K H (the former matrimonial home) as to $135,000.00 to the husband or an amount that is equivalent to 60% of the net matrimonial assets which ever is the greater and the balance to the wife.
(14)The wife shall be declared the sole owner in law and equity of the following:
(a)1996 Toyota Tarago motor vehicle in her possession;
(b)Contents of the former matrimonial home.
(15)The husband shall be declared the sole owner in law and equity of the Holden Barina motor vehicle in his possession and shall forthwith and forever hereafter indemnify the wife with respect to the debt to Holden Finance encumbering the said motor vehicle.
(16)Unless otherwise specified in these orders:
(a)Each party be solely entitled to the exclusion of the other, of all other property and chattels of whatsoever nature and time in the possession of such party as at the date of these orders and for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions of payment out of such entitlements;
(b)Each party is solely liable for and indemnifies the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
(17)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 Section 84, the Registrar or the Deputy Registrar of the Family Court of Australia at Parramatta 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.
M C P (the wife) filed a response to the Application for Property Orders on 20 July 2000. It contained the orders sought by her at trial, subject to the variation identified during her Counsel’s opening and outline of case document. The orders she sought are:
(1)That the children of the marriage reside with the wife.
(2)That the wife shall have responsibility for the children’s day to day care, welfare and development when the children are in her care.
(3)That the husband shall have contact with the children of the marriage as follows:
(a)Every third weekend from 9am Saturday until 5pm Sunday commencing on Saturday 17 March 2001 and thereafter on the third weekend after the cessation of all block holiday contacts on the following conditions:
(i)To ensure that P B does not have any adverse effect on the children as far as contact is concerned;
(ii)To ensure that the children are not left solely in the care of P B during the course of contact;
(iii)To ensure that the premises for overnight contact are reasonable for overnight contact;
(iv)To ensure that the children are not exposed to any inappropriate literature.
(4)The wife is to deliver the children to McDonalds at M H at the commencement of contact and the husband is to return the children to McDonalds at M H at the conclusion of contact.
(5)The husband shall have contact with the children on school holidays as follows:
(a)For one half of the non-Christmas school holidays on the same conditions as paragraph 3 hereof;
(b)On the Christmas school holidays for a period of two weeks commencing 1 January on the same conditions as paragraph 3 hereof.
(6)The husband is to forthwith advise the wife should any emergency arise involving the children during the course of contact.
(7)In the event that the husband wishes to change any holiday or weekend contact to another period or weekend he shall give the wife not less than two week’s notice of such wish and the wife shall, if it is reasonable having regard to any other arrangements that she has made otherwise with the children or for herself, permit the husband to change the said contact period.
(8)In the event that Mother’s Day falls within any weekend contact with the Husband that weekend contact shall be suspended and the husband shall have contact on the weekend immediately following that in which Mother’s Day occurs.
(9)In the event that Father’s Day does not fall on any weekend or block contact period when the husband is exercising contact to the children then he shall have contact for the weekend during which Father’s Day occurs and his immediately following contact shall be suspended.
(10)That the husband be prevented from taking the children on any overseas holiday or to take any steps to enable the children to obtain an Irish passport.
(11)That the wife be entitled to 70% of the net matrimonial assets with the balance to the husband.
(12)Orders empowering the Registrar to sign.
Short history
The Husband was born on 6 January 1952 and is now aged 49 years. The Wife was born on 23 December 1965 and is now aged 35 years.
The Husband migrated to Australia from the United Kingdom in 1976. He has lived here since then.
The parties were married on 2 November 1985. They lived together for a short time prior to marriage.
Separation occurred on 7 May 1998.
There are 3 children of the marriage P I P, K J P AND E E P. Subsequent to separation the children have lived with the wife, initially in the former matrimonial home and after its sale on the Central Coast. They have regular contact to their father.
The marriage still subsists.
The evidence
The Applicant Husband relied on the following evidence:
·His Affidavit sworn 22 February 2001 and filed 23 February 2001 together with his oral testimony;
·His Affidavit sworn 23 June 2000 and filed 26 June 2000;
·Affidavit of P B sworn 27 June 2000 and filed 28 June 2000 together with his oral testimony;
·Affidavit of P B sworn on 22 January 2001 and filed 23 February 2001;
·
His financial statement sworn 22 January 2001 and filed
23 February 2001;
·
Affidavit of K L sworn 5 March 2001 and filed 6 March 2001.
Ms L was not cross-examined and I accept her evidence.
The Respondent Wife relied upon the following evidence:
·Her Affidavit sworn 27 February 2001 and her oral testimony;
·Her financial statement sworn 27 February 2001.
Both parties tendered documents that became exhibits in the proceedings.
Relevant facts
Prior to marriage, in 1981, the Husband was injured in an Army Reserve accident. He suffered serious injuries including a broken pelvis and lower back injury.
In 1982 he and a long standing colleague, Mr P B entered into a partnership to buy B Service Station. The service station had not been operational for 18 months prior to its purchase. Mr B paid $15,000 as the deposit for the purchase of the service station. The Husband did not contribute to its purchase. The balance was initially funded by way of vendor finance. In 1983 the vendor finance arrangement was withdrawn and the Husband and Mr B borrowed the sum of $78,000.00 to complete the purchase.
The transaction comprised the purchase of the business entity and the land upon which the service station stood together with an adjacent parcel of land on which there was a house.
At the commencement of cohabitation, the Husband was working in the service station business with Mr P B. The Husband was able to structure the physical demands of his employment in a way that would not have been possible had he been an employee, something that was necessary after his accident. The Wife was employed as a Secretary.
Thus, at the commencement of cohabitation the Husband had a financial resource comprising his personal injuries claim, and his interest in the B Service Station partnership. It is unlikely that the service station assets exceeded its liabilities and the Husband’s interest hence had minimal value. The Wife owned a Toyota Corolla motor vehicle that was free of debt.
Adjacent to the Service Station was a home that was owned by the partnership. Mr B lived in the home and the parties joined him there shortly before their marriage. The Wife was unhappy living with Mr B and suffered severe migraines that she believes were caused by the stress of living with him. After a severe attack during which she was admitted to the B District Hospital, she refused to return to the service station residence.
After their marriage, the wife’s parents provided the parties with a home rent free. The home was known as the “O P O Residence” and located on the B L Road. Before the marriage the Wife borrowed $5,000.00 from the Commonwealth Bank, which monies were used to renovate the O P O Residence. These premises became the parties’ home and they lived there from 1985 until 1994 continuously.
The Wife continued in paid employment as a secretary, working at S H, until just prior to the birth of the parties’ eldest child, P. She repaid the Commonwealth Bank loan from her wages. The parties agree that her wages, which averaged $320.00 gross a week, during 1985-1988 were important to the family as the service station was producing only a small income for the Husband. During the same period the Husband earned gross weekly income $155 (1985), $109.65 (1986), $170 (1987) and $182.69 (1988). Other than a small amount of unpaid secretarial work for her parents, the Wife has not worked in a secretarial capacity since 1988. Between 1988 and until 1994, she worked as a consultant for N-M earning about $3,000.00 per annum. She received a family allowance payment and low income welfare supplement.
In May 1993, the Husband’s personal injury claim was finalised. He received by way of settlement $225,000.00. After payment of legal expenses, medical expenses, and Medicare rebate he received $201,530.68. Upon receipt of the monies, he paid a further $6,000.00 by way of additional medical costs.
Shortly prior to settlement of the personal injuries claim, the parties purchased in joint names a vacant block of land at 1120 B L Road, K H. The purchase price was $60,000.00. $5,000.00 was borrowed from the Wife’s parents to pay the deposit and legal costs associated with the purchase. The balance of monies was borrowed from the National Australia Bank by way of mortgage. From the National Australia Bank loan the Wife’s parents were repaid the monies advanced.
After they completed the purchase of the land, the parties obtained owner/builder permission and built their home. They both attended the work site, overseeing the work undertaken by contractors. The Husband was working at the service station and the Wife cared for the children. The house took approximately 12 months to complete and I am satisfied that the parties both supplemented the work of the contractors, although the Wife to a greater degree than the Husband. Once he received his compensation money the NAB loan was refinanced. Other than as identified in these reasons, the damages verdict was primarily used to build the home. Neither party gave sufficiently clear evidence to enable the court to make clear findings at to the detail of that expenditure.
Upon receipt of his compensation monies, the Husband paid $35,000.00 to T Petroleum in full satisfaction of monies owing by the partnership. Thereby the company compromised its claim from about $62,000.00. He paid an additional $20,000.00 to Mr B to discharge debts of the business, the details of which were not known to him other than he recalls that it included R and other suppliers.
In 1993, the parties, and their two children travelled to England, Ireland and Wales. $20,000.00 of the compensation monies was applied to the cost of the family holiday.
By the end of the financial year 1992 the service station liabilities exceeded its assets by $31,487.00. Liabilities had exceeded assets for each of the financial years ending 1989, 1990 and 1991. Although some small progress was being made in reduction of the liabilities by 1994 the Husband was depressed and unhappy with the performance of the service station. He was working long hours yet bringing home between $100.00 - $250.00 per week before tax. He decided to sell his interest in the service station to Mr B and, after discussion with the Wife it was agreed that the Husband would realise his interest in the service station.
At about the same time, the business was sold to E & J J for $180,000.00. The sale included the service station business and the block of land upon which the business was located. The J’s took possession of the business in 1994. They paid $20,000.00 by way of deposit. That $20,000.00 was paid to the Husband. Agreement had been reach between the Husband and Mr B that the $20,000.00 represented the Husband’s interest in the business. Although the Husband did not formally withdraw from the partnership until the end of the 1995/96 financial year, he no longer participated as a partner. The Husband was released (as between he and Mr B) from all liabilities attached to the business and thereafter the instalment payments made by J and all other monies relating to the business were received by Mr B. At the time of the sale to J the NAB mortgage had increased to $113,000.00.
The Husband then loaned Mr B a further $20,000.00. Although when giving evidence the Husband said that Mr B might still owe him $20,000.00 I am satisfied that he does. The tenor of the Husband’s evidence on this matter was such that I find that the Husband did lend an additional $20,000 to Mr B and that the loan has not been repaid. As the monies loaned were matrimonial assets I am satisfied that they should be notionally included in the available assets. To find otherwise would be to take an overly cautious approach to the evidence in circumstances where I am satisfied that the Husband has not made full and frank disclosure as required by Order 17 rule3.
The J sale was funded by way of vendor finance. The Husband, Mr B and the J’s managed the transaction without a solicitor. The Husband continued to work at the service station for the J’s. His wage was minimal and he was not paid penalty rates for overtime worked. He resigned from this employment.
Exhibit 6 comprises a copy document signed 19 July 1995 in which Messrs B and J summarise monies paid by Mr J for the purchase of the service station. Mr B gave evidence that monies were received in differing amounts and did not have a regular pattern. This exhibit does not identify an individual payment of $20,000.00 that would discretely coincide with the payments acknowledged by Mr B and the Husband on 2 September 1994. I accept Mr B’s evidence that in all likelihood that $20,000.00 is included in the $32,000.00 amount credited to the J’s on 21 September 1994.
After his resignation the Husband was unemployed for a period of about 6 months. He then obtained employment with S and 6 months later was made redundant. Between 1995 and 1996 he worked with S S at L. He commenced his current employment as an inspector with RTA in 1996.
In July 1996, the parties obtained bank re-finance consolidating their debts into one loan. They borrowed $107,000.00 from the National Australia Bank, which monies were applied as follows:
·$9,133.43 was paid to Nissan Finance;
·$33,381.40 paid out the personal loan;
·$63,831.50 paid out the existing home loan;
·$653.69 repaid credit account loan.
In 1996 Mr and Mrs J sold their interest in the B Service Station to Mr G. Mr G made the final payment due to Mr B by the Js. Title to the service station was transferred to him by the Husband and Mr B on direction from the J’s in 1996.
The outstanding business mortgage to the National Australia Bank was transferred from the service station block, that had been on sold to J and G, onto the second block upon which the home that Mr Bs had been living in stood. Settlement of the sale of that property was completed on 2 June 2000. The sale price was $135,000.00. The National Australia Bank mortgage was discharged in its entirety and the amount of $120,390.29 was paid to the bank. Approximately $12,000.00 net was derived from the sale and which after payment of further expenses associated with the sale the transaction realised approximately $4,000.00. Out of those monies Mr B paid $1,000.00 to a surveyor and kept the balance. No monies were paid to the Husband.
In January and February 1998 the Husband and P travelled to the United Kingdom. Shortly after their return the parties separated. The Wife and children remained living in the home and the Husband moved in with Mr B.
At the date of separation the parties had the following assets and liabilities:
a)Former matrimonial home situated at 1120 B L Road, K H valued at approximately $320,000.00 subject to the mortgage;
b)1996 Toyota Tarago subject to a personal loan to the National Australia Bank Limited;
c)1998 Holden Barina subject to finance from the Holden Finance Subsidiary Smart Buy;
d)Contents of the former matrimonial home;
e)Items of personalty and tools belonging to the Husband and his model boats;
f)Credit card debts totalling $6613.12.
The Husband was still a joint registered proprietor in the property at 2484 B L Road, B the property attached to the rear of the service station. I am satisfied that he had relinquished his interest in that property to Mr B on 31 June 1996. At the date of separation this property had an approximate value of $135,000.00 and the mortgage stood at approximately $100,000.00. The sale of this property was subsequently effected as I have found in paragraph 34.
After separation the Wife and the children remained in the former matrimonial home. During the first few months the Husband continued to pay the mortgage payments. He took responsibility for the credit card repayments and the Wife made the payments on the Tarago (that was in her possession) until the loan was discharged upon the sale of the home. After she made application for Centrelink benefits the Wife was required to apply for child support. Agreement was reached between the parties that for so long as he paid the mortgage payments, one half of those payments were to be credited to his child support liability. As the parties were in advance in their mortgage repayments, arrangements were made with the bank to drawn down on those advanced payments. The Wife must have some benefit of the draw down against the mortgage repayments as the advance payments were made prior to separation. The Husband’s child support payments have been approximately $260.00 per week since separation. He has not received the benefit yet of the agreed credit to be applied to his child support liability, an amount of about $2500.00.
The sale of the former matrimonial home was completed on 11 May 2000. The home was sold for $320,000.00 and after discharge of the mortgage to the National Australia Bank, payment of outstanding rates, costs of sale and legal fees the sum of $191,426.25 remained. The National Australia Bank were paid $118,440.69 which included the mortgage comprised borrowing’s applied to the former matrimonial home as well as the monies borrowed to purchase the Toyota Tarago.
Upon the sale of the home, the net proceeds of sale were placed in a controlled monies account with S F & Associates, the Wife’s solicitors. The Husband made application for urgent orders and by agreement a partial property settlement was effected. The parties entered consent orders that provided that the Wife would receive the sum of $16,000.00, the Barina motor vehicle loan would be paid out and the Husband would receive the difference between the pay out on the Barina and the sum of $16,000.00. The Barina loan pay out was $13,875.45. Thus the Husband received $2,124.55. An issue in the proceedings is how this partial distribution should be taken into account.
After completion of the sale of the former matrimonial home the Wife and children moved to P C. Here the Wife commenced cohabitation with D A in a home owned by him. Mr A is also employed by the RTA and had transferred to the Central Coast.
After separation the Husband borrowed $10,000.00 from NRMA finance. He paid $5,000.00 on account of medical bills incurred by Mr B and the balance he spent on living expenses.
After separation and until interim orders were made on 20 July 2000, the Husband had contact with the children every Sunday. As soon as he obtained rental accommodation he sought overnight contact to the children. The parties agreed on interim orders in the following terms pending further order:
1)The children live with the Wife.
2)The Husband have contact:
(a)On alternate weekends from 9am Saturday or the beginning of P’s football match on Saturday, which ever is the later until 6pm on Sunday commencing
29 July 2000;
(b)For the first half of school holidays other than Christmas school holidays;
(c)For 2 weeks during the Christmas school holidays commencing 1 January.
(3)Without prejudice and without admission the Husband shall, during contact:
(a)Ensure P B does not have an adverse effect on the children;
(b)Not leave P B to care for the children other than when he is momentarily absent;
(c)Ensure the children have their own beds and sleep in a separate room to Mr B;
(d)Ensure the children are not exposed to inappropriate literature.
(4)The Wife will personally advise the Husband of the venue for P’s football match by no later than 6pm on the preceding Thursday.
(5)Changeover for contact is at McDonalds at C H or P’s football match if the contact starts there.
Subsequent to these orders, the parties agreed that contact changeovers should take place at McDonalds at M H. M H is approximately 90km from L and 80km from P C. The drive from L is approximately 1 ¾ hours and 1 hour from P C.
The Husband borrowed monies from his brother and travelled to Ireland on Boxing Day 2000 for 3 weeks. He then exercised block holiday contact from 22 January until 27 January 2001. Contact has continued in accordance with the interim orders since then.
Relevant law
The approach to the determination of an application under Section 79 is well established by authority (In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC
92-335; In the Marriage of Clauson (1995) FLC 92-595) the process ordinarily 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 section 79(4)(a) to (c). Thirdly, evaluating the matters contained in section 75(2) insofar as they are relevant.In determining what order the court should make under section 79, the court must be satisfied in all the circumstances that it is just and equitable to do so [Section 79(2)]. It is the justice and equity of the actual orders that the court must consider. Russell v Russell (1999) FLC 92-877.
Contact orders and specific issue orders are parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B sets out the objects of Part VII and the principles which underline those objects. They are subject to Section 65E in that in determining the outcome the best interests of the child is the paramount consideration. That is the overriding principle.
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 child’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.
Assets at the date of hearing
The parties reached agreement as the value of some assets.
They were also in agreement as to the quantum of some liabilities.
Included in the orders that implemented in the partial property settlement is a notation “that the sums paid to and behalf of the respective parties be taken into account in the final distribution of property.” Counsel for the Wife submitted that the monies distributed by way of partial property settlement should not be notionally included by adding them back into the identified assets at the date of hearing. He submitted that both parties had used the money to make legitimate payments. The Wife had addressed her and the children’s financial needs. The Husband paid out the loan for the motor vehicle that he was driving and the shortfall was used for his own expenses. I accept his submission that the notation does not require that the monies be notionally added back. However, I am satisfied that the partial distribution together with the Barina liability should be added back to the notional pool of assets and liabilities. Adding back will give a truer representation of the parties matrimonial assets and liabilities. Failing to do so would be unjust to the Husband in the particular circumstances of this case.
Although the Husband has incurred post separation liabilities to NRMA and Family First Credit Union, after identifying them as liabilities they should not be taken into account in the ultimate distribution of the matrimonial property. Five thousand dollars was paid by the Husband for medical expenses incurred by Mr B and the balance for expenses that the Wife neither incurred directly nor indirectly.
At separation the Husband removed his personal belongings only from the former matrimonial home. He left behind his tools, model boats and books. Just before the former matrimonial home was sold he removed these piece by piece. The Wife retained the majority of the contents of the former matrimonial home. Whilst her items of personalty was the subject of agreement as to value, there is significant dispute as to the value of the husband’s boats and tools. Regrettably there is no valuation of either. The Husband gave the Wife’s solicitor access to his tools and photographs were taken of them. The Wife was unable to obtain a valuation and although he made enquires as to their possible value the Husband did not provide valuation evidence. Counsel for the Wife questioned the Husband as to his knowledge of the tools possible value. The Husband’s answers were unsatisfactory and he avoided giving any indication of the value of his tools. Whilst I accept that his expertise is not in second hand tools, he has worked as a motor mechanic and in the car repair industry for approximately 20 years. It is likely that he has a better idea of their value than he was willing to indicate. Thus I am satisfied that the tools and personalty, including a small value for the model boats, is likely to be greater than $3,000 but not significantly so.
Of much greater significance is the issue relating to the disposition of the Husband’s interest in the service station. Although requested to produce documents evidencing the sale of the business, the husband provided little in the way of relevant documentation. I accept both the Husbands and Mr Bs evidence that Mr B was responsible for managing the business and the documentation associated with it. The Husband worked as a mechanic and signed such documents as were required of him. The transactions with the J’s were largely informal which informality in all probability reflects the business acumen of the parties involved.
Attached to the Husband’s Affidavit as well as Mr B’s affidavits are documents that Mr B says are the available documents evidencing the sale of the business to the J’s. In response to the criticism made of the non-disclosure by the Husband his Counsel tendered a large volume of material. This highlighted the absence of relevant documentation. Profit and Loss statements and Balance Sheets for the year the Husband paid in his money to the business were not included. Those for adjacent years were. The Husbands taxation returns for the years when he paid money into and withdrew from the partnership were not included whereas those for adjacent years were. No banking records for the business were produced. Original accounting records were not produced. The Husband took a literal approach to “possession and control” which is inconsistent with his obligation to give full and frank disclosure. I am not satisfied that he made any real attempt to obtain documents in his control, but not necessarily his possession, of the type I have described. He ought to have diligently reviewed the partnership records held by Mr B, the business’ former accountants and solicitors that acted on the sale of the real estate. The Husband must bear the consequence of failure to do so. This is particularly so given the closeness of his relationship with Mr B.
I am satisfied that I should regard seriously the failure to produce key documents to which I have referred. Without them the evidence has been left unclear as to the true financial picture of the service station and the monies handed by the Husband, both to it and received on its sale. I agree that the Weir and Weir (1993) FLC 92-338 principles are applicable in the circumstances of this case. I am not satisfied however that I should infer that there is $85,000.00 unaccounted for as Counsel for the Wife submits. His submission ignored that the J sale was a vendor finance transaction and that the purchase price was paid over a two years period. The business debts were substantial and incurring interest during the period of instalment payments made by J. Rather I am satisfied that the effect of the Weir principle should be dealt with in relation to the $20,000.00 that the Husband may still be owing to him by Mr B.
I find the assets, liabilities and financial resources of the parties as at the date of hearing are as identified in the following table :
ASSETS
$
Proceeds of sale of former matrimonial home (agreed value)
165,330.40
Toyota Tarago (w) (agreed)
18,000.00
Holden Barina (h) (agreed)
10,000.00
Husband’s tools and personalty (minimum)
3,000.00
Wife’s furniture and personalty (agreed)
1,500.00
NRMA Shares (agreed)
2,047.00
Add back partial property settlement (net)
32,000.00
Add back monies loaned to Mr B
20,000.00
TOTAL
251,877.40
LIABILITIES
$
Visa Card
4,480.00
Grace Brothers Card
1,400.00
Add back Barina loan
13,875.45
NRMA Personal Loan (h)
10,000.00
Family First Credit Union
1,000.00
TOTAL LIABILITIES
40,755.45
TOTAL NET ASSETS
201,121.95
FINANCIAL RESOURCES
$
First State Super (h)
11,176.30
Hesta Super Fund (h)
2,143.66
Contribution – section 79(4)
As set out in paragraph 17 neither party own assets of significant value at the date of marriage and their initial contributions were of equivalent value. The Husband had an interest in his damages claim that I will deal with separately.
Both parties were in full time employment, until the Wife stopped work shortly prior to P’s birth in 1988. During those years 1985 - 1988 the Wife’s income significantly exceed the Husbands. The Wife returned to paid work selling cosmetics from 1988 until 1994 earning approximately $3,000 per annum. The Husband worked long hours in the business and earned a modest income, ranging between $100 and $250 per week. Additionally, he derived income from his involvement in the Army Reserve, an interest he has maintained. The Husband’s participation in the Army Reserve required him to spend weekends, about one a month, on Cadet activities. Because he was absent from the home, the responsibility for the children on these occasions was exclusively the Wife’s. Until 1996 when the husband gained full time employment external to the business and after the Wife gave up her employment as a secretary, the parties received government subsidies as low income supplements. The parties retained separate bank accounts and the Husband paid his monies into his own account from which he paid monies to the Wife towards housekeeping and other expenses. Although the Wife denies it, I am satisfied that the Husband applied the entirety of his wages to the betterment of the family. I do not accept the Wife’s evidence that the Husband did not bring any money into the home. On this issue I prefer the Husband’s evidence which was to the effect, that although his wages were low he applied all of it to the families expenses.
The parties lived rent-free in accommodation provided by the Wife’s parents for 9 years. This is a financial contribution made to the marriage on the behalf of the Wife. It has significant financial consequences when regard is had to the limited income earned by the parties once the Wife gave up her employment as a secretary. It was critical to the financial viability of the family. I do not accept the Husband’s evidence that the rental value was $40.00 and on balance prefer the Wife’s estimate. Although the accommodation at the O P O Residence was modest, without the wife’s contribution by way of rent free accommodation the parties and children I am satisfied would have endured very difficult living circumstances. Throughout the marriage the Wife’s parents paid the children’s school fees and purchased clothing in an annual sum of about $500.00.
The principal matter in dispute between the parties in respect of their competing property claims was the manner in which the Husband’s personal injury settlement should be evaluated. It was the most significant injection of capital in the marriage and pivotal to the subsequent capital gain that the parties achieved from the sale of the former matrimonial home. Counsel for the Wife conceded that the contribution was a significant one but submitted that when balanced with the Wife’s contribution to the family, her income and the period of rent free accommodation, the value of the Husband’s contribution was substantially eroded. Whilst the contributions made by the Wife are significant and must be given material weight in the particular circumstances of this matter, they do not equate to the contribution made to this family by the direct financial contribution of the settlement monies. The monies were received 5 years prior to separation and for injuries received by the Husband prior to the marriage. In spite of their efforts, the parties had been unable to acquire any assets of significance prior to the damages settlement.
Thus, the Husband’s direct financial contributions significantly exceed the Wife’s when evaluated comparatively.
Both parties contributed to the maintenance and improvement of the former matrimonial home. The Wife, I am satisfied carried out the majority of the home-maker duties throughout the marriage. She helped clear the land on which the home was built, cleaned the site continually after tradesman had completed their work day, inspected the work done by contractors and tradesman and helped erecting frames for the house. This building work took 12 months. Whilst I am satisfied the Husband also contributed to the maintenance and improvement of the property, his contribution was significantly less than the Wife’s. He was fully occupied at the service station and was unable to give time to the maintenance and improvement of the property than the Wife could. After the family moved into the former matrimonial home, the wife was primarily responsible for maintaining and improving the lawns and gardens and was virtually solely responsible for maintaining the interior of the home. In the months prior to the sale of the home the Wife prepared the property and grounds thus maximising its selling potential. The value of the home increased beyond the value of the monies expended on its acquisition and improvement. On sale in 2000, the property realised $320,000. Whilst the maintenance and improvements made to the property enhanced its capital gain the significant factor was the capital sum derived from the Husband’s damages settlement.
Overall, I am satisfied that the Wife’s non-financial contributions throughout the course of the marriage were substantially greater than the Husbands.
Her contribution as home-maker and parent to the welfare of the family was particularly significant taking into account the Husband’s absences for Army Reserve activities and also in his business. The Husband worked long hours, often late into the night. Although he would return for the evening meal he was often called out for NRMA work leaving the home for 3-4 hours at night at a time. Thus the Wife alone had responsibility for the care of the children during the day, on Army Reserve weekends and frequently at night.
After separation, the Wife had the use of the former matrimonial home while the Husband initially boarded with Mr B. He subsequently has lived in rented accommodation. This has been a significant contribution by the Husband to the welfare of the family. The Wife’s post separation contribution as home-maker and parent has also been substantial. The children have lived with her and while exercising contact to the Husband, she has been primarily responsible for meeting their needs. The Husband has paid child support since separation.
The orders I propose will not affect the earning capacity of either party.
I find, therefore, that the parties’ total contribution should be assessed as being 57% as by the Husband and 43% by the Wife.
Section 75(2) factors
(a) The Husband was 49 years at the date of hearing. Although in full time employment, he continues to suffer from the effects of his 1981 injury. K L. an Osteopath, has been treating the Husband at Windsor Osteopathic and Healthcare Clinic since 1 August 1998. He has been receiving treatment there since 29 April 1998. She reports that the Husband’s symptoms are “lower back pain, pelvic and hip pain, neck pain and headaches”. The hip injuries have resulted in “long term repercussions in the musculoskeletal system”. His long term injuries include “a pelvic imbalance involving the sacrum, sacroiliac joints and their connective tissues [which] have become a chronic problem. The pelvic imbalance can create a functional leg length discrepancy and an unlevel sacral base which aggravates a scoliosis in the patient’s spine.” Pain management involves realignment and over the counter anti inflammatory or analgesic medication. Her prognosis for the Husband is fair but is predicated upon his maintaining monthly treatment and a commitment to his therapy. She concludes that by maintaining his commitment to therapy the Husband will be able to continue as a RTA Inspector. She concludes “I estimate that N should be able to continue working fulltime for a further
10 years.” She was unable to predict beyond that timeframe, indicating that further assessment would be necessary in the future. I am satisfied that the Husband is committed to his therapy and that he will, as he has been, maintain reasonable compliance with the recommendations made by his Osteopath. Thus he has a working future of at least a further 10 years, which will take him to 59 years. This is a minimum and he may be able to work beyond that in either a full time or part time capacity. The Wife is presently aged 35 years and is in good health. I make an adjustment in favour of the Husband pursuant to this sub-section.b)The Husband is in full time employment with the Road and Transport Authority. His evidence is to the effect that he is securely employed. He receives a gross income of $954 per week. I am satisfied that he also receives an expense allowance. While that is not his evidence his most recent group certificate discloses an expense allowance that of $82.38 cents per week for the 1999 financial year. He did not produce the 1999/2000 in the documents included in the tender. This money was referred to in his first financial statement but not the second. When cross-examined he was unable to explain the difference in employee benefits identified in the two documents. The difference I am satisfied is the non-disclosure of his employee allowance. He also receives $36 per week from Army Reserve activities. The Wife is not employed in the paid workforce. She has not worked in her profession as a secretary since 1988 and I am satisfied will require retraining before she could return to the workforce. She does not intend to return to the paid workforce and her income will be derived from child support. The Husband has a small superannuation entitlement. Whilst I am satisfied that the Wife will be able to return to the paid workforce should she desire after a period of retraining, it is appropriate to make an adjustment in her favour pursuant to this sub-section.
c)The children will continue to live with the wife. They will have contact with the husband. I find that this sub-section requires an adjustment in the Wife’s favour.
d)Both parties have a duty to maintain the three children of the marriage. Each has the commitments identified in their financial statements. These commitments are modest and will only enable each to have a modest standard of living. The Wife’s commitments include the cost of caring for the three children. It is appropriate to make an adjustment in the Wife’s favour pursuant to this sub-section.
e)Other than the children, neither party has a responsibility to support any other person. I make no adjustment under this sub-section.
f)I make no adjustment under this sub-section.
g)The parties have enjoyed a modest standard of living. By reason of her cohabitation with Mr A the Wife’s standard of living is superior to the Husbands. The distinction is not significant. I make no adjustment under this sub-section.
h)The Wife will require retraining before she returns to the paid workforce. Although she has the capacity to retrain she does not intend to do so. I find no relevant factors under this sub-section which require adjustment.
i)I find no relevant factors under this sub-section which require adjustment.
j)The parties’ cohabitation was of 13 years duration. The Wife’s employment skills have deteriorated as a consequence of her withdrawal from the full time workforce to care for the children. Throughout the marriage the Husband maintained his skills as a motor mechanic and was able to obtain employment as a RTA Inspector. I make an adjustment under this sub-section in favour of the Wife.
k)The Wife’s evidence, which I accept, is that she does not intend to return to paid employment. She wishes to care for the children and I find that her care of the children will affect her earning until the youngest child is in high school. As all the children are at school she does have the capacity to retrain and return to the paid workforce at least on a part time basis at that time. I make an adjustment under this sub-section in favour of the Wife.
l)The Wife is living with her new partner Mr A. They live in a home owned by him. Mr A meets the costs of accommodation and utilities. The Wife contributes to the household expenses by meeting the children’s costs and by providing the family groceries. They have no intention to marry although I am satisfied that this is a long term relationship and that after completion of these proceedings it is probable that they will become more financially interconnected. The Husband has a girlfriend and has been dating her for about 12 months. He lives with Mr B in rented accommodation. He pays the rent on the property at $120 per week and Mr B provides the groceries. The Husband regards Mr B as his “father figure”. Whilst the Husband has continued to contribute to Mr B’s expenses he is not legally required to do so. The relationship has no relevant financial consequences although it is personally important to him. I make an adjustment pursuant to this sub-section in favour of the Husband.
m)The orders I make will give the Husband the opportunity to re-enter the property market. He will need to raise a mortgage to do so. Neither party will have assets to enable them to derive significant income and both will remain for the foreseeable future in modest financial circumstances. I make no adjustment pursuant to this sub-section.
n)The Husband will pay a significant percentage of his salary to the Wife by way of child support. This liability will continue for at least the next 10 years. I make no adjustment pursuant to the sub-section.
na)No additional factors arise.
o)This does not arise.
Having regard to all of the Section 75(2) factors I find it appropriate that there should be an adjustment in the Wife’s favour having regard to sub-sections 75(b)(c)(d)(k) and (l). The appropriate adjustment to make in the Wife’s favour is 15%. During submissions Counsel agreed that the appropriate adjustment in the Wife’s favour pursuant to Section 75(2) is 15%. During submissions in reply Counsel for the Wife withdrew the concession and indicated his concession was predicated upon a finding of equal contribution by the parties. I have not made that finding but am satisfied that the 15% concession originally made is appropriate.
Section 79 (2) – is this a just and equitable outcome?
I find following the parties 13 years cohabitation that their contribution throughout the cohabitation were 57% in favour of the Husband and 43% by the Wife. The Wife will have the primary ongoing responsibility for the care of the children, two of whom are not in high school. This responsibility, together with her absence from the paid workforce will impinge upon her ability to participate in the full time paid workforce for some years to come. The Husband has secure and well paid employment. I have made detailed findings concerning the application of s75 (2) and do not repeat them. Balancing all these factors, I find that it is appropriate that the parties’ net assets should be divided as to 58% to the Wife and 42% to the Husband.
It will be the Husband’s responsibility to recover the $20,000 loaned by him to Mr B. The terms of that transaction was not given in evidence by the Husband and I am satisfied that he has not yet made a demand for the money. Because of their special relationship, this is a matter that the Husband must deal with entirely.
The Husband will have the benefit of his financial resources, namely his superannuation. Its value is minimal but will develop as a consequence of his well paid employment with the RTA. The Husband has the capacity to earn income at a comparable level to that which he currently earns for the next ten years. This gives him a financially secure future. The Wife will have the capacity to return to the paid workforce provided she obtains further training and the children are older. She lives in a relationship that I am satisfied is long lasting and will have the benefit of accommodation and some financial support from her partner.
That the outcome of the application of Section 79(4) and Section 75(2) has resulted in a distribution favourable to the Wife 58% as to the Husband’s 42% I am satisfied is just an equitable within the meaning of Section 79(2). The reason for that is that the Section 79 exercise requires that I give proper weight to the Husband’s damages verdict, to the Wife’s contribution as a salaried earner and the provision of rent free accommodation for 9 years as well as her financial future having regard to her care of children. The Orders I make will distribute the proceeds of the sale of the former matrimonial home subject to the partial property settlement in June 2000 and the Husband taking responsibility for recovering monies loaned to Mr B. Each party will retain the motor vehicle, property and financial resources to which they have entitlement. The NRMA and Family First Credit Union liabilities will be the Husband’s sole responsibility. The credit card liabilities are essentially those that existed as at separation. I am satisfied that they should be paid out as the joint responsibility of the parties.
Thus the Wife will receive $134,630.73 of the net assets. She currently has assets valued at $37,547.00 and so will take $97,083.73 of the monies held on trust for the parties. The Husband will receive $111,366.21 of the net assets. He currently has assets valued at $49,000.00 including the $20,000 due by Mr B. He will take $62,366.21 for his interest in the trust money.
Determining the best interests of the children
The most significant issue that arises in relation to the welfare of the children is the frequency and circumstances under which contact is to be exercised by the Husband. He proposes an essentially alternate weekend arrangement and sharing of school holidays. The Wife opposes this and seeks an order for contact each third week. The pivotal issue that distinguishes the two proposals is the practical difficulty associated with contact.
Subsequent to separation both parties have moved away from the upper mountains region. The Husband’s employment is at Bathurst and he has moved to L. In L he has found an area where housing is affordable and a place from which he can travel to and from work without great inconvenience. The Wife has relocated to the Central Coast, a significant distance from the upper mountains. The parties agree that their homes are now approximately 170 kilometres apart.
The current arrangements provide for contact each alternate weekend. The Wife alleges that P and his younger sisters have all complained about the distance involved in travel, most frequently about being tired. She is concerned that contact interferes with P’s competition soccer and that fortnightly contact will stand in the way of the children being able to enjoy social activities with their own peer group. She considers that the elder two children in particular have reached an age where the importance of the peer relationship and participation in weekend social activities is increasingly significant to the children. Now that P is in high school he has an increased amount of homework and has not done his homework when on contact with the Husband.
For his part the Husband considers that alternate weekend contact is necessary to enable him to maintain and develop his relationship with his children. He recognises that P and E have their own developing interests. When they have asked to not attend contact because they have had an activity, such as a birthday party to attend the Husband has forgone contact. This has happened with P and E on a number of occasions since the interim contact orders were entered in July 2000. He considers that it is an important part of his relationship with his children that he be entitled to discuss with them their activities and to decide with them whether they will attend contact on a particular weekend. I agree.
The parties agreed that contact changeover should take place at McDonald’s at M H. A factual issue arose between them about the strain of travel on the Wife and children between the Central Coast and M H. The Wife’s evidence is that on a Friday evenings she must travel during heavy peak hour traffic to and from M H. Her proposal of Saturday morning contact changeover is less onerous as the traffic is lighter. The Husband agrees that the traffic is heavy on Friday night but gave evidence of an alternate route that could be taken by the Wife thus avoiding the worse part of peak hour traffic. Whilst she agreed that there is an alternate route available, the effect of the alternate route is to add some distance to the trip. Hence the Friday night trip remains in the Wife’s eyes an onerous one.
I accept that the Friday night trip from the Central Coast to M H is longer than would required if contact commenced on Saturday morning. However, the advantages of the commencement of contact on Friday evening outweigh the disadvantages of the longer trip. The children will be tired when they arrive at L on Friday evening. However, they need not arrive later than about 7.30pm if they depart M H at 6.00pm. Thus they can have a long night sleep and then enjoy a full day uninterrupted contact with the Husband before they leave to return to the Wife on Sunday. I accept the Husband’s evidence that this will maximise the pleasure of contact and will give him the opportunity to spend time with his children on the weekend when they are less distracted by the impact of travel.
Similarly, I accept the Husband’s evidence that alternate weekend contact is necessary to maximum his relationship with the children. He has sensitively responded to P and E’s requests to not attend contact when they have had something special that they wanted to do. I am satisfied that he will continue to respond sensitively. He will be able to participate in the children’s homework and encourage them to do it. Participating in their homework will give depth to his relationship with the children because he will be sharing with them part of their education. Again, the husband addressed sensitively P’s desire to attend soccer and I am satisfied that he will accommodate P’s participation in soccer when his matches start late. However, delaying the commencement of contact for the girls because of P’s soccer game is not in the girl’s interest. Late Saturday commencement of contact will mean that the majority of a contact weekend would be consumed by the effort of travel and sleep. This is not in the children’s interest.
The Wife seeks final orders in the terms of the interim orders relating to Mr B’s involvement during contact. She says this has improved the quality of contact and that earlier difficulties have resolved. Her primary concern arises from her belief that Mr B is a heavy scotch drinker. During the course of the marriage she had an unhappy experience with Mr B when he came to the home and abused her. The Husband conceded this incident. He also conceded that Mr B is a scotch drinker but denied that he is affected by alcohol during contact. Mr B also denied this. The children do not complain about Mr B and I accept the Husband’s evidence that should any problems arise in this regard he would remove the children from the situation. His contact is most important to him and I am satisfied that he would not do anything to jeopardise his children’s enjoyment of it. Whilst there may have been value in addressing the Wife’s concerns at the introduction of overnight contact, there is no longer any need to maintain the orders. Mr B has participated in contact without incident. Maintaining the order has the potential for disagreement such as that which occurred during the hearing when concern was raised that P had been left alone with Mr B watching a daytime movie while the Husband took the girl’s swimming. This was an insignificant event that was turned into a matter of moment. In hindsight I would hope that the Wife could put this incident into perspective. That is it was insignificant and irrelevant to the welfare of the children.
The Wife’s proposal for lesser contact and her opposition to the Husband retaining Irish passports for the children gives me some concern about her commitment to the Husband’s relationship with the children. The Husband impressed me, by his insight into his children’s needs and his commitment to them. He is able to meet their physical, emotional and intellectual needs. That is the case whether the children are with him at his home or travelling on holidays, locally or internationally.
Whilst the Wife agrees that the Husband can obtain Irish passports for the children she objects to the passports being held by him and opposes orders being made that authorise overseas travel for the children. She expressed concern that the Husband would remain overseas with one or all of the children and fail to care for the children adequately. Her fears that the Husband will remain overseas with one or all of the children are expressed without proper foundation. True it is that the Husband’s family live in Ireland and the United Kingdom. However, his brother has migrated to Australia and lives in Melbourne. I accept the Husband’s emphatic evidence that he regards Australia as his home and he intends to live here permanently.
When giving evidence, the Wife expressed concern that after their 1998 holiday to the United Kingdom P returned home with comics that it was agreed were utterly inappropriate for children. He also had a floppy disc that had on it details of how to make a bomb. Although the Husband initially gave evidence that the floppy disc could have come from his place of employment he ultimately conceded that it had been obtained from this holiday. Whilst in Wales, the Husband became ill and for two days P was cared for by the local Police Sergeant’s family, spending extended time with this families children. Whilst he concedes that he did not himself take care of P, his evidence is that P was properly cared for and I accept this evidence. I prefer the Wife’s evidence than the Husband’s in relation to the manner in which P came to have the comics and floppy disc. The Husband was demonstratively less comfortable when answering questions on this issue than others. By comparison the Wife was clear. With hindsight, although maintaining the denial, I am satisfied that the Husband recognises that he should have more diligently ensured that the comics and floppy disc did not come into P’s possession. However, it would seem that P has been unaffected by the material and I am satisfied that the Husband is unlikely to allow P to have items of this nature whether in Australia or overseas. It is not in my view reasonable to deprive the children of the opportunity to spend time with their father and his family when the benefits of that travel are considered. The Husband agreed with alacrity to give long notice of any potential overseas travel with the children. He has travelled with the children in the past and on one occasion with P alone. I am satisfied that there is only a minimal theoretical risk that the Husband will not return to Australia with the children.
When giving evidence, the Husband agreed that he would provide security in the nature of a charge over his interest in any property that he might purchase with the proceeds of these proceedings. That will be a matter between he and the Wife. I am not satisfied that security is necessary provided the husband travels as he said in evidence he would to Ireland. This is because Ireland and Australia are both signatories to the Hague Convention on Civil Aspects of International Child Abduction. Any retention by the Husband of the children in Ireland would prima facie be a wrongful retention within the meaning of the convention. The Wife would be able to activate the convention without cost to her. The rationale for security appeared to be that this would make the Wife feel more secure about the return of the children to Australia. While this may be so, the Wife impressed me as an intelligent person who can bring rational thought to an issue such as this. It is likely that once these proceedings are completed her anxiety will subside. Even so on the particular facts of this matter I do not consider that the Wife has made out her case for security.
Conclusions concerning the children
The Orders I will make in relation to the children I am satisfied meet their best interests. The children will have regular contact to their father. As a consequence of the financial orders I will make he will have the opportunity to purchase modest housing for himself where he will exercise contact. The children will have the opportunity to share their father’s daily life and enjoy home based activity with him. He is a child focused and competent parent. He well understands the developing independence his children strive for and will accommodate their developing social lives.
He and the children should have the opportunity to travel and enjoy time with his family. Thus they will have access to different cultures and an enhanced understanding of their own heritage. Facilitating this travel does not place the Mother’s care of the children at risk in the particular circumstances of this case. If she is unhappy with the Husband’s arrangements for international travel she will have adequate time within which to seek orders restraining the particular holiday from taking place. Although this creates the spectre of future litigation I am satisfied that the Husband’s proposals for travel are likely to be those about which he gave evidence. On balance however the benefits of travel are outweighed by the risk of any future proceedings.
I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Ryan FM
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