PS & OS
[2007] FMCAfam 285
•11 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PS & OS | [2007] FMCAfam 285 |
| FAMILY LAW – Parental responsibility – equal time – principles considered. FAMILY LAW – Property settlement – liabilities exceed assets – no order. FAMILY LAW – Spousal maintenance – whether party able to work and obtain employment and adequately support themselves. |
| Family Law Act 1975, ss.60CC(2), 60CC(3), 60CC(4), 65DA(2), 65L, 65LA, 72(1), 75(2), and 79(4)(d)-(g) |
| Denning v Denning [2007] FMCAfam 171 Goode & Goode [2006] FamCA 1346 Hickey v Hickey (2003) FLC 93-143 McMullen v McMullen [2007] FMCAfam 243 Taguchi & Taguchi (1987) FLC 91-836 |
| Applicant: | PS |
| Respondent: | OS |
| File Number: | MLM 1611 of 2006 |
| Judgment of: | Lucev FM |
| Hearing dates: | 4 and 5 October, 24 and 27 November 2006 |
| Date of Last Submission: | 5 March 2007 |
| Delivered at: | Brisbane (with telephone link to Melbourne) |
| Delivered on: | 11 May 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr A. Crozier-Durham |
| Solicitors for the Applicant: | Calleas Le Brun & Burke |
| Counsel for the Respondent: | Mr C. Ham |
| Solicitors for the Respondent: | Raynal & Associates |
| Counsel for the Independent Children’s Lawyer: | Ms. P.J. Treyvaud and later Ms J.P. Spehr |
| Solicitors for the Independent Children’s Lawyer: | MacGregor Solicitors |
ORDERS
That all previous parenting orders herein be discharged.
The Husband and Wife have equal shared parental responsibility for the Child, save that the Husband shall have sole parental responsibility for all decisions concerning, and the cost of, the Child’s education, and provided that on any matter:
(a)having more than a minor effect on the Child’s education; and
(b)not being a day-to-day matter concerning the Child’s education,
the Husband must consult and discuss the matter with the Wife before any decision is made, save in a genuine emergency, in which case the Husband must inform the Wife of any decision made as soon as possible.
That the Child live with each of the Husband and Wife on a week about basis, with:
(a)changeover to occur between 6.00 and 6.30 pm each Friday;
(b)the first such changeover to occur on 18 May 2007 at the residence of the parent who had been spending time with the Child as at 9.00 am on 18 May 2007;
(c)thereafter, changeover to occur at the residence of the parent who has been spending time with the child in the preceding week;
provided that:
(d)the Husband may spend time with the Child on up to 14 days in each calendar year (being time which would not otherwise be spent with the Child by the Husband), with no more than seven of those days to be consecutive at any one time, for the purpose of allowing the Child to attend Hindu religious festivals and observances, subject to the Wife being given one calendar months notice of each day or block of consecutive days, with changeover to occur at times nominated by the Husband; and
(e)the Wife may spend time with the Child on up to 14 days in each calendar year (being time which would not otherwise be spent with the Child by the Wife), with no more than seven of those days to be consecutive at any one time, subject to the Husband being given one calendar months notice of each day or block of consecutive days, with changeover to occur at times nominated by the Wife;
(f)should Mother’s Day or the Wife’s birthday fall on a day on which time is due to be spent with the Husband, that the Child spend time with the Wife from 6.00 pm on the day preceding Mother’s Day or the Wife’s birthday until 6.00 pm on the relevant day, with changeover to occur at the residence of the parent who has been spending time with the Child on the day immediately preceding changeover; and
(g)should Father’s Day or the Husband’s birthday fall on a day on which time is due to be spent with the Wife, that the Child spend time with the Husband from 6.00 pm on the day preceding Father’s Day or the Husband’s birthday until 6.00 pm on the relevant day, with changeover to occur at the residence of the parent who has been spending time with the Child on the day immediately preceding changeover;
and at such other times and on such other conditions as the Husband and Wife may mutually agree in writing signed by both of them.
That the Child be allowed telephone contact with the parent with whom time is not being spent at any time between 4.00 pm and 6.00 pm on a non-changeover day.
That each of the parties provide the other with their residential address and telephone numbers and details of the identity and contact details of any other person who is significantly involved in the life of the said Child from time to time and inform the other of any changes in such address or telephone numbers.
That, save in an emergency, the Child attend the K R medical clinic (or such other medical clinic as the Husband and Wife mutually agree in writing signed by them) and any specialists to whom the Child may be referred from that clinic.
That each of the parties keep the other informed of any illness or injury occurring to the Child whilst in their care which requires medical attention, such notice to be provided as soon as practicable and not more than 24 hours following the Child’s attendance upon a medical practitioner.
Under s.65L of the Family Law Act, that compliance with these orders be supervised by a Family Consultant appointed by the Director of Counselling at the Melbourne Registry of the Family Court of Australia, and further that the Family Consultant so appointed give any party to these orders any assistance reasonably required by that party in relation to compliance with, and the carrying out of, these orders, for not more than 12 months from the date of these orders.
That neither Husband nor Wife denigrate the other within the hearing of the Child.
Unless otherwise specified in these orders:
(a)each party is solely entitled to the exclusion of the other to all other property (including choses in action) in the possession of such party as at the date of these orders, including motor vehicles, bank accounts, furniture, personal possessions and like chattels;
(b)each party foregoes any claims they may have to any superannuation benefits belonging to or earned by the other;
(c)insurance policies remain the sole property of the owner named therein;
(d)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; and
(e)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
That the Husband be responsible for and indemnify the Wife in relation to any debt alleged to be due by the Husband and the Wife to any members of the Husband’s family.
That all extant applications herein be otherwise dismissed and the proceedings be removed from the list of cases awaiting hearing.
Certify for Counsel as advocates.
Pursuant to s.65DA(2) of the Family Law Act, 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 1611 of 2006
| PS |
Applicant
And
| OS |
Respondent
REASONS FOR JUDGMENT
Application
This application raises three sets of issues, namely:
a)parenting;
b)property settlement; and
c)spousal maintenance.
Evidence
There was evidence before the Court on behalf of the Applicant Husband, PS (“the Husband”) from:
a)the Husband being:
i)his affidavit affirmed 8 February 2006 (“Husband’s First Affidavit”);
ii)his affidavit affirmed 20 February 2006 (“Husband’s Second Affidavit”);
iii)his affidavit affirmed 10 August 2006 (“Husband’s Third Affidavit”);
iv)his financial statement affirmed 10 August 2006 (“Husband’s Financial Statement”); and
v)his oral testimony on 4 and 5 October 2006 (including various exhibits tendered in the course thereof).
b)
The Husband’s sister, S.M.S. (“Husband’s Sister”), affirmed
20 February 2006;
c)
The Husband’s father, M.D.S. (“Husband’s Father”), affirmed
20 Feburary 2006; and
d)The Husband’s mother, K.M.S. (“Husband’s Mother”), affirmed 20 February 2006.
The Husband’s Sister, resident in Massachusetts in the United States of America, and the Husband’s Father and Husband’s Mother, both resident in Pune, India, were not made available for cross-examination. The Court has therefore ascribed no weight to their evidence, other than where indicated, and to the extent indicated, below.
There was evidence before the Court on behalf of the Respondent Wife, OS (now OI) (“the Wife”), from:
a)the Wife, being:
i)her affidavit sworn 14 February 2006 (“Wife’s First Affidavit”);
ii)her Financial Statement sworn 14 February 2006 (“Wife’s Financial Statement”);
iii)her affidavit sworn 20 February 2006 (“Wife’s Second Affidavit”);
iv)her affidavit sworn 14 August 2006 (“Wife’s Third Affidavit”);
v)her Financial Statement sworn 3 October 2006 (“Wife’s Second Financial Statement”); and
vi)her oral testimony on 5 October and 24 November 2006 (including various exhibits tendered in the course thereof).
Evidence was also led on 27 November 2006 by the Independent Children’s Lawyer (“ICL”) from Jay Manya, a psychologist and Family Consultant to the Court. Ms Manya prepared a report dated 6 July 2006 (“the Family Report”) referred to by all Counsel at various stages of the proceedings.
Basic facts
The Husband is 35 years old. He was born in India in June 1971. The Wife is 28 years old. She was born in Russia in August 1978. The Husband and Wife met in Russia in 1995. At that time the Husband was on service with the Indian Army.
The Husband and Wife married in India in March 1997. In 2003 they came to Australia. They are both permanent residents of Australia.
The Husband and Wife had a child, T.P.S. (“the Child”), born in July 2003.
The Husband and Wife separated on 1 February 2006.
Other relevant facts will be referred to as necessary in the relevant parts of the reasons for judgment.
Previous proceedings and orders
The matter came before this Court on 10, 15 and 22 February 2006. The Court made orders on 22 February 2006. Essentially, those orders were that the Child live with the Wife for nine days each fortnight, and with the Husband for five days each fortnight, the five days to be split between weekends and weekdays. Those orders remain in place.
The matter came before the Court again on 17 August 2006, when it was adjourned to 4 October 2006 for hearing of the application for final orders.
Child issues
The law
The applicable principles are set in the judgment of the Full Court of the Family Court in Goode & Goode [2006] FamCA 1346 (“Goode”).
Suffice to say that this Court adopts and follows the principles set out in Goode.
Parenting orders sought
The Husband seeks parenting orders providing that the Child lives with him, and spends:
a)alternate weekends with the Wife;
b)a week day with the Wife each alternate week;
c)half of the school holidays with the wife, once the Child commences school;
d)Mother’s Day with the Wife, and Father’s Day with the Husband, where that day falls on a weekend day on which the Wife (on Mother’s Day) and the Husband (on Father’s Day) are not due to spend time with the Child; and
e)as may be otherwise agreed.
Alternatively, the Husband seeks an order that the Child live with each of the Husband and Wife on a week about basis with a Friday changeover.
Further, the Husband seeks:
a)orders relating to time spent with the Child during the Hindu festival of Diwali in October/November each year; and
b)other miscellaneous orders that are addressed in the reasons for judgment below.
The Wife seeks parenting orders providing that the Child lives with her, and spends:
a)the first two weekends (3:30 pm Friday to 9:00 am Monday) in each three week cycle with the Husband;
b)overnight on the Thursday of the third week of each three week cycle with the Husband; and
c)half of the school holidays with the Husband, once the Child commences school.
The Wife also seeks other miscellaneous orders that are addressed in the reasons for judgment below.
Reflecting the terms of the Family Reports, the ICL submits that the Child should live with the Husband and Wife on a week about arrangement. The ICL also recommends certain miscellaneous and facilitative orders that are addressed in the reasons for judgment below.
Presumption of equal shared parental responsibility
The presumption applies, and has not been rebutted or sought to be rebutted by either Husband or Wife, save as to the Child’s intellectual (educational) needs, which is dealt with below.
Primary Considerations
In determining what is in the Child’s best interests the primary considerations are those in s.60CC(2) of the Family Law Act, 1975 (Cth) (“Family Law Act”), namely:
a)the benefit to the Child of having meaningful relationships with both of the Child’s parents; and
b)the need to protect the Child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Benefit to the Child of a meaningful relationship with both parents
The emphasis here must be on the benefit to the Child of a meaningful relationship with both parents, not, as so much of the hearing and submissions were concerned with, whether the parents had, or were capable of having a meaningful relationship, or a relationship at all (as to which see below). The benefit to the Child of a meaningful relationship between the parents might enhance the quality of the Child’s relationship with both parents and the benefit derived therefrom, but a lack of meaningful relationship between the parents does not necessarily amount to a lack of benefit to the Child from a relationship with both parents.
Both Husband and Wife and the ICL acknowledge that the each of the parents should have a meaningful relationship with the Child: Husband’s Submissions, para. 5 (which go so far as to say it is common ground); Wife’s Submissions, para. 17; ICL Submissions, para. 1. On the evidence there is no doubt that the Child can have, and will benefit from, a meaningful relationship with both parents. The evidence indicates that:
a)the Child’s self-development will be aided by exposure to the duality of the non-Australian ethnicity, culture, language and religion of her parents: Family Report, para. 38;
b)the Child is “alert”, “lovely” and much attached to both … parents”: Family Report, para. 6. This view, expressed by Ms Manya, is accepted by the Court. More than anything it demonstrates that notwithstanding the difficulties the Husband and Wife have had since separation, the relationship with each of them, as parents, has been of benefit, and is meaningful to, the Child; and
c)The Child reacts and acts differently in the presence of:
i)the Husband – with whom she is positive, smiling and communicative, in circumstances where she seeks the Husband’s “exclusive attention”: Family Report, para. 10;
ii)the Wife – with whom she is moody, clingy, insecure and not confident: Family Report, para. 9;
iii)the Husband was “gentle and affectionate”, and “very aware of the Child’s nature and behaviour”: Family Report, para. 11; and
iv)the Wife was “caring in her interaction”: Family Report, para. 9.
In many ways the above observations reflect the very different approaches to parenting which became evident in the course of the hearing: the Husband more positive, cerebral and controlling, the Wife more mundane, physical and laissez-faire. On the evidence, and notwithstanding the Husband’s and Wife’s trenchant criticisms of the others different parenting approach, neither approach can be said not to be to the benefit of the Child having a meaningful relationship with both parents. Rather the contrary appears to be the case, and that has occurred in circumstances where neither Husband nor Wife has necessarily acted in a proper manner toward the other at all times, or in a manner necessarily consistent with the Child’s best interests at all times.
For all that, the Child nevertheless has, it seems, enjoyed the benefit of a meaningful relationship with both parents. That has occurred in circumstances where both Husband and Wife have spent significant time with the Child.
The real dispute in this case is then over the amount of time the Child is to spend with the Husband and Wife, and whether that amount of time is to be equal or substantial and significant. Before determining that issue it is necessary to consider the second limb of s.60CC(2) of the Family Law Act, and the additional considerations in s.60CC(3) of that Act.
The need to protect the child
The evidence discloses no history of violence or abuse from which the Child needs to be protected: Family Report, para. 39.
The Husband’s submissions concede that there “is no convincing evidence of any family violence”, but suggest that “the Wife has made false representations in this respect”: Husband’s Outline of Submissions, para. 34. The allegedly “false representations” are not identified or particularised by the Husband.
The Husband’s case does however raise the suggestion of physical harm from neglect of the Child whilst in the Wife’s care.
It is unnecessary for the Court to traverse the detail of the evidence of medical incidents raised by the Husband and defended by the Wife, as there is in evidence (exhibit W2) a report from a consultant paediatrician from the Gatehouse Centre (for the Assessment and Treatment of Child Abuse) (“the Paediatrician’s Report”). The Paediatrician’s Report was prepared as a result of a consultation with the Child on 4 May 2006. Information about the medical incidents concerning the Husband was provided to the consultant paediatrician by the Husband, and is detailed in the Paediatrician’s Report.
The tenor of that information is consistent with the evidence given by the Husband to the Court. The consultant paediatrician’s opinion is as follows:
Child is a 2 years 9 months old girl whose father is concerned regarding anxiety and distress Child is showing at times while in his care. He stated that he believes that this is when Child thinks that she might be going back home to her mother’s house. Father also has concerns about injuries that Child allegedly sustains while Child is in the care of her mother.
Today I documented that Child had an undisplaced supracondylar fracture of her right humerus. I have not been able to get a clear opinion as to how this injury occurred from speaking to either parent. Although the fall was unwitnessed the pattern of injury is one that is usually caused by a fall rather than child abuse, although a fall as a result of being pushed cannot be excluded. It is a common site of fractures in young children.
Child had evidence of four bruises over bony prominences. These are consistent with accidental bruising as a result of normal childhood activity.
I am unable to comment further on the photographs shown to me of a swollen toe, and hand injury as well as to comment on the bruises allegedly seen by her father over her eye.
Overall Child is a developmentally appropriate 2 years 9 months old girl who has had some bruises consistent with normal childhood activity and a fractured humerus. Although there may be some concerns regarding supervision of Child I am of the opinion that these injuries are consistent with accidental trauma.
The Court accepts the opinion of the consultant paediatrician. On balance, the injuries are not evidence of neglect for the purposes of s.60CC(2)(b) of the Family Law Act, but rather consistent with the result of normal robust childhood activity.
The differences between the Husband and Wife on this issue again reflect parenting approaches. The Husband is arguably over-zealous and over-protective of the Child. The Wife allows of a more physically robust approach by the Child. Neither approach is wrong, they are just different. Neither approach appears to have harmed the Child, physically or developmentally. The Child might benefit from the different approaches, and in the longer term will probably be able to adopt an approach which she prefers.
Section 60CC(3) – Other considerations
Views expressed by the child
Due to her age, the Court cannot place any weight on any views expressed by the Child.
The nature of the relationship of the child with each of the parents
The Child has been the subject of a shared care arrangement for more than 12 months. Her relationship with both parents continues to be strong, and the Court accepts the evidence of Ms Manya in this respect as indicating that the nature of the Child’s relationship:
a)with the Wife is “physically affectionate … physically close … loving”: Transcript, p. 320; and
b)with the Husband is “affectionate” and “conscious of the Child’s “social, educational and all-round development and welfare” and “awareness of her emotional needs”: Transcript, p. 320. He is a “good parent” striving to become a “better parent”: Transcript, p. 282.
The Child has a very positive relationship with the Husband, and is equally attached to the Wife: Family Report, paras. 10, 11 and 38.
The Court finds that nature of the Child’s relationship with each parent is strong and appropriate.
The nature of the relationship of the child with other persons
On the basis of the evidence it is very difficult to assess the nature of the relationship of the Child with other persons, and, in particular other persons living or associated with the Wife.
The Husband lives alone. Outside of the relationship that he has with the Child, and, perforce, the Wife, there does not appear to presently be any relationship of any significance in his life, apart from his relatives outlined below. The Child may have a relationship with the Husband’s Father, Husband’s Mother (collectively “the Grandparents”) and Husband’s Sister. The Grandparents have visited the Husband and Child and evince an intention to emigrate to Australia: Husband’s Father’s Affidavit, paras. 2-5 and 6-7; Husband’s Mother’s Affidavit, paras. 3-4. They “adore” the Child: Husband’s Father’s Affidavit, para. 3; Husband’s Mother’s Affidavit, para. 3. Whether they remain in India or emigrate to Australia there is nothing to suggest the Child’s relationship with the Grandparents will be other than a normal one.
The Husband’s Sister was living with the Husband (being in Australia on a 12 month travel visa), but has since returned to her home in Massachusetts in the United States of America: Husband’s Sister’s Affidavit, para. 3. There is nothing to suggest that the Child’s relationship with the Husband’s Sister was (or might be in the future if the Husband’s Sister returns to Australia) other than a normal aunt-niece relationship.
The Wife’s relationships with others, with whom the Child might have a relationship, are less certain. There are no relatives of the Wife in Australia, and the relationships the Wife has with housemates, their children, and various friends of both sexes, whilst not entirely settled, are not unusual for a person who is a sole separated parent. The relationships, such as they are, appear not to have affected the Child.
The willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the child and other parent
The Husband gave evidence that he was prepared to encourage an appropriate relationship between Wife and Child. Notwithstanding the negativity of the Husband’s view of the Wife’s parenting skills (and in particular her approach to medical issues), that evidence does not negate his expressed preparedness to encourage the Wife-Child relationship. That negativity has the potential to affect the Wife-Child relationship, but there is no evidence that it has done so, nor that it will necessarily do so in the future. However, the potential for it to do so would be maximised if the Child were to live with the Husband and spend time with the Wife as contemplated by the Husband’s proposed parenting orders, save the alternative. The alternative (Child to spend time week about with Husband and Wife) would lessen that potential, and provide opportunity for the Wife to balance out the negativity.
The Wife’s willingness and ability might also be questioned. She has clearly expressed a view that future communication with the Husband ought be reduced, or is unnecessary: Family Report, para. 20. Further, the Wife has expressed the view that she is “out of” the Husband’s life: Family Report, para. 38. Ms Manya had concerns that if the Wife was to have the Child living with her, the Child would gradually be removed from the Husband’s life: Transcript, p. 286.
There are some indicators that the Wife had already begun a process of exclusion of the Husband: the failure to advise of a change of address, and the Wife’s unwillingness to provide information about living arrangements being examples: Transcript, p. 203.
Balanced against this are the Wife’s express view that she did not wish to stop the Husband from seeing the Child, and her invitation, albeit belated, to the Child’s birthday party: Transcript, pp. 286. The Wife’s proposal that the Child live with her and spend time with the Husband does potentially risk damaging a close and continuing Husband Child relationship.
The Husband and Wife also intermittently used a communications book (exhibit CI – “the Communications Book”). The Communications Book was sometimes used appropriately, and sometimes not. The Wife suggested that the Husband used it “as a device to try and demean the Wife”: Wife’s Submissions, p. 3. A complete reading of the Communications Book does however reveal that where it was used inappropriately, there was fault on the part of both Husband and Wife.
The comments made when the Communications Book was used inappropriately cause concern. They are such that the Court considers the Communications Book to have been a major source of conflict between the Husband and Wife, and that use of a communications book may cause damage and discourage rather than facilitate and encourage the requisite relationship. Overall, and despite the post-separations manoeuvrings of the parties, there is sufficient evidence for the Court to come to the view that each parent can and will facilitate and encourage a close and continuing relationship between the Child and the other parent. However, the evidence indicates that the more disproportionate the time spent with one or other parent, the greater the risk that that relationship will be damaged and discouraged.
In reaching the view expressed above the Court has taken account of s.60CC(4) of the Family Law Act, and in the context of this matter particularly:
a)the Wife’s reluctance to consider the Husband’s proposals concerning the Child’s education;
b)the time spent with the Child by the Husband, especially having regard to his employment and time spent overseas; and
c)the accommodation and financial issues arising by reason of the separation.
Likely effect of changes in child’s circumstances, including separation from parents and others
The Husband’s primary proposal involves considerable change in the Child’s circumstances, and the Wife’s proposal likewise, but less so. The Husband’s alternative proposal also involves changes in the Child’s circumstances, but like the Wife’s proposal less so.
Given the age of the Child, and the fact that the Wife has in the Court’s view had a greater role in the primary care provided to the Child to date, the Husband’s primary proposal is likely to have a greater dislocatory effect on the Child than his alternative proposal, or the Wife’s proposal, as the Husband’s primary proposal will effectively reverse the Child’s existing living arrangements.
It is desirable, if is to be a change, it be a change with a less significant effect than that under the Husband’s primary proposal.
The Child is not likely to be particularly affected in terms of relationships with persons, other that the child’s parents, by a change in terms of the Husband’s alternative proposal or the Wife’s proposal.
The Husband’s alternative proposal is that which, in the Court’s view, involves least change and least likely effect on the Child in terms of separation from parents, with a move from a 9 – 5 day split to a 7 – 7 day split.
Practical difficulty and expense of child spending time with and communicating with parents and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The evidence discloses no discernible practical difficulties or expense associated with the Child spending time with and communicating with the parents. The parents live in reasonable proximity in appropriate accommodation. Transport is available (both public and private). Telephone contact is available in both parents’ accommodation.
Capacity to provide for the needs of the child, including emotional and intellectual needs
The Husband clearly has the capacity to provide for the needs of the Child. He is employed, and has accommodation appropriate to the needs of the Child. The Husband demonstrates a clear understanding of what the Child’s needs are. Under the present shared care arrangements those needs have been met by the Husband during time spent with the Child. In relation to the Child’s emotional needs it is clear that the Husband understands the Child’s emotional needs, and is concerned at all levels with her security and well being, and social development. The Husband’s approach in this regard is very engaged, and perhaps controlling. See Family Report, paras. 31 and 35.
The Wife also has provided for the needs of the Child under the current shared care arrangement. Whilst she is not employed, and whilst her accommodation and social arrangements have a degree of uncertainty about them, there is no evidence that she has not adequately provided for the Child’s needs post separation. As indicated above, the Wife’s parenting approach is different to that of the Husband, but it has not, and on the evidence, probably will not, affect the Wife’s ability, to meet the Child’s needs (save for what is said below concerning intellectual needs), and particularly the Child’s emotional needs.
The Court agrees with the ICL submission that there is “no indication that [Child] has been affected by the parent’s post separation difficulties and that bodes well for [Child]”: ICL Submissions, para. 25.
The one area of concern for the Court about the Wife’s approach to the Child’s needs is in relation to the intellectual needs of the Child.
In this regard the Husband’s evidence demonstrated an understanding of the importance of education in the life of a child (having gone so far as to set up an education fund for her), and an ability and eagerness to ensure that the Child’s educational needs were met: Transcript, p. 133-134; Family Report, paras. 31 and 35.
The Husband’s English language skills are superior to those of the Wife, this being of some assistance in understanding and dealing with the Child’s educational needs.
The Wife has not demonstrated a desire to deal with the educational needs of the Child, nor its importance: Transcript, p. 135. That has not yet impacted on the Childs development, but has the potential to do so in the future, and do so to the Child’s longer term detriment (or perhaps limitation of opportunity), such that it is the Court’s view that the Husband is better placed to deal with the Child’s intellectual needs, noting that the Husband is prepared to do so at his cost: Transcript, p. 135.
In relation to the Child’s future educational needs it is preferable that any arrangement for time spent with the parents be less rather than more complex.
The presumption of equal shared responsibility will apply, subject to an exception with respect to the Child’s intellectual (educational) needs.
Maturity, sex, lifestyle and background of child and parents
These matters are dealt with in other parts of the reasons for judgment.
Aboriginal and Torres Strait Islander child
Not applicable.
Attitude to the child and to the responsibilities of parenthood demonstrated by each parent
These matters are essentially dealt with in other parts of the reasons for judgment. It suffices to say that both parents attitude to the Child is an appropriate, loving and caring attitude, within the bounds of the different parenting approaches referred to above.
Likewise for the parents attitude to the responsibilities of parenthood: appropriate (save for the educational needs issue discussed above) but different, and with the Husband having a more serious view and approach.
The s.60CC(4) Family Law Act factors are dealt with above.
Family violence
There is no evidence of family violence.
Order least likely to lead to further proceedings in relation to the child
The Court does not consider that there is presently a particular form of order least likely to lead to further proceedings in relation to the Child.
Time spent
Having considered all of the applicable considerations under s.60CC(2) and (3) of the Family Law Act, the Court considers it to be in the best interests of the Child to spend equal time with both the Husband and the Wife, on a week about basis, subject to arrangements with respect to the Hindu Diwali festival and other Hindu observances referred to hereunder.
Hindu Diwali festival and other observations
The Husband gave evidence concerning the importance of the Diwali festival and other Hindu religious observances: Transcript, pp. 25-26, 101-102. The Wife does not dispute the importance of these, except as to time spent by the Child with the Husband.
Both parents accept that the Child should be exposed to the Hindu religion and its observances as part of her social and educational development.
Having regard to the Husband’s evidence concerning the duration of the festival and various observances, the Court considers that a period of 14 days, but with no more than seven days to be taken consecutively to be taken for the relevant purpose, at any time, provided one calendar months notice is given to the Wife, is appropriate for this purpose. The Wife is to have an offsetting 14 days, on the same conditions.
Other parenting matters
Communication
It is clear that there have been post-separation communication difficulties between Husband and Wife. The ICL Submissions suggest the maintenance of a communication book and the attendance of the parties at mediation: ICL Submissions, penultimate paragraph (not numbered). The orders sought by the Husband seek orders under ss.65L and 65LA of the Family Law Act for supervision, mediation and post-separation parenting: see Husband’s Submissions, proposed orders 15 and 16.
The Court will not order the use of a communications book. The Communications Book previously used seemed to be productive of dispute between the parties. The Court’s view is that if this particular Husband and Wife cannot communicate orally, no better result will be achieved by written communication, especially when English is a second language for both, and particularly the Wife.
The Court considers, given the prior communication difficulties that it is appropriate, and in the Child’s best interest, to make a s.65L(1) order that compliance be supervised by a family consultant render assistance as reasonably requested by any party, concerning compliance with and the carrying out of the orders made, for a period of not more than 12 months from the date of any order made in these proceedings.
The Court considers that orders under s.65L will be sufficient, and will not make orders under s.65LA.
Restraint injunction
The Husband seeks injunctive orders restricting the movement of the Child within Australia, and restraining movement outside Australia. Very little evidence was directed to this issue. At its highest it can be said there is a possibility that the Child might leave Australia. The evidence does not however establish to the requisite degree any real risk of that occurring. No injunctive orders will be made.
Smoking
The Husband seeks an order that the Wife be restrained from smoking cigarettes in the presence of the Child or causing or permitting any other person to do so. There is no medical evidence of harm to this Child from exposure to persons (including the Wife) smoking cigarettes. There is a conflict in the evidence as to whether the Wife does smoke in the presence of the Child.
The proposed order is probably unenforceable. Without the benefit of clear evidence that this Child has suffered harm, and that there have been persons smoking in the Child’s presence, this is not an appropriate case in which to make the order sough. For all of these reasons there will be no non-smoking order.
Illness and injury
Much post-separation conflict has been engendered between the Husband and Wife by reason of:
a)the Husband’s overly zealous approach to minor childhood medical issues; and
b)the failure of the Wife to advise the Husband of medical issues.
In an endeavour to avoid these conflict areas the Court will, in the best interests of the Child, order that, save in an emergency, a single medical practice will be nominated to provide medical services to, and specialist referral for, the Child.
Name and address exchange
The usual orders will be made.
Property settlement issues
The law
There is a four-stage process in the Court’s determination of the property settlement issues:
a)determine the asset pool: this involves identifying and valuing property , liabilities and financial resources at the date of hearing;
b)identification and assessment of contributions – both financial and non-financial (and including home making and parenting) – by the parties to the acquiring, conserving and improving the value of the asset pool, and express this as a percentage of the net value of the asset pool;
c)make any necessary adjustment to the net value of the asset pool having regard to the factors in s.79(4)(d)-(g) of the Family Law Act, and the matters referred to in s.75(2) of the Family Law Act; and
d)consider whether the assessment at steps (a) to (c) produce a result that is just and equitable in all the circumstances of the case.
See Hickey v Hickey (2003) FLC 93-143 at [39]; McMullen v McMullen [2007] FMCAfam 243 at paras. 3-7 per Wilson FM; Denning v Denning [2007] FMCAfam 171 at paras. 26-35 per Brown FM.
Assets and liabilities at date of trial
There is no agreement about the assets and liabilities.
The Husband says his current assets are:
a)a superannuation entitlement of $24,000.00;
b)chattels valued at $5,000.00; and
c)a bank account balance of $2,283.00.
Disregarding superannuation there are said to be the Husband’s assets of $7,283.00; or $31,283.00 if superannuation is included. See Husband’s Financial Statement, pp. 4-5.
The Husband says his liabilities are:
a)a debt to the Husband’s sister and brother-in-law of $21,333.00;
b)a credit card debt of $15,000.00;
c)legal costs of approximately $30,000.00; and
d)furniture removal and storage expenses following separation, contribution to expenses for mothers hip-joint replacement and associated therapy and treatment, personal loan taken by Wife from mother, forfeited rental bond monies, and fees for Family Report of $17,910.00.
The Husband says his liabilities are $84,243.00: see Husband’s Financial Statement Part K.
On the Husband’s version there are no available assets.
The Wife’s Second Financial Statement indicates that she has assets of $250.00 and liabilities of $2,000.00: Wife’s Second Financial Statement Parts I and K. That evidence is not disputed. The Wife has no available assets.
The Husband’s assets are disputed. The Wife argues that the Husband has had the benefit of the investment of $50,000.00 sent to the Husband’s Sister in August 2004 to be invested in a property being purchased in the United States. In response to a request by the Husband’s Sister for “about $40,000.00 (whether $US or $AUS is not clear) to go towards the purchase of a “2 family house” $AUS 50,000.00 ($US 35,470.00) was sent (by the Wife) to the Husband’s Sister on 10 August 2004, and was seemingly invested by the Husband’s Sister earning $750.00 a month ($US 532.05): Wife’s Third Affidavit, Annexure OSE, email from Husband to Husband’s Sister, Tuesday 10 August 2004 14.53.25 + 0530 and attached email chain.
An email from the Husband’s Sister to the Wife indicating that the “Milford Deal” involving “2 units” had resulted in the purchase of that property “before it went to auction” was sent. When it was sent is an issue. The Wife has produced a copy apparently sent on “Friday 13 August 2004 17.32.52 + 4.00”: Wife’s Third Affidavit, Annexure OSE, email from Husband’s Sister cc’d to Wife (“13 August 17.32 email”). The Wife has also produced a copy of an email from the Husband’s Sister cc’d to the Wife and sent at 17.42:56, which says the “Milford house is bought for 260K”: Wife’s Third Affidavit, Annexure OSE, email from the Husband’s Sister to Wife.
Exhibit W4 includes a copy of an email sent “Wednesday August 11, 2004 7.45am” from Husband’s Sister to the Husband which relevantly reads as follows:
Hey PS,
Big disappointment! Can you believe the deal with 2 family in Milford fell through at the closing table. The sellers had a lien of 45K when we pulled title. And we couldn’t go forward with it. Will let you know more in details on the phone. (“11 August 7.45am email” – a copy of this email is also part of exhibit H3)
Comparing the 11 August 7.45am email with the 13 August 17.32 email it will be observed that the former email has the property purchase collapsing before the latter email says it has occurred. The position is made more curious by the fact that the 11 August 7.45am email has below it in the chain the exact text of the 13 August 17.32 email, but said to be sent “Tuesday, August 10, 2004 5.23am” (“10 August 5.23am email”).
The “top” email in the chain on exhibit W4 is an email from the Husband to the Husband’s Sister, and the Husband’s Brother-in law, sent “Thursday, 12 August 2004 09:33:32 – 0800” the relevant text of which is as follows (errors in email are unamended):
Dear N and S…
Actually I do need your help regarding the financial issues that I am facing.
I understand that we did borrow money for our wedding, our other wedding in Yesk, the money you sent so generously to OS’s parents, money sent for our honeymoon trip to the USA, OS’s education in India etc.
…
OS and I want to pay you back. Please ley us know whether i can pay back in instalments. I was hoping that if this deal came through we could have sold it later and I could have paid off the 75K debt that I owe you till date.
It is your generosity that you are not even asking for it back, but we understand that we owe you that and we stand by that.
Thanks for your understanding. We will try our very best to clear that up as soon as we are able. (“12 August 9.33 email” – exhibit H6 is also a copy of this email)
lol,
PS and OS
This is an important email. In the 11 August 7.45am email the Husband’s Sister had indicated she would let the Husband know more details of the collapse of the property deal on the phone. It is significant then that 12 August 9.33am email begins with the words “Actually I do need your help”. There is no email in evidence to which such an opening line is responsive. The words are consistent with an email response to a phone conversation. That view is re-inforced by the words “I understand that we did borrow money”, for again those words are consistent with an email response to a phone conversation (there again being no email in evidence to which they might be responsive).
The 12 August 9.33am email is also significant in that it sets out the particulars of the purposes for which money was borrowed by the Husband from the Husband’s Sister, and the total amount ($75,000.00).
The evidence of the Husband in relation to these events was unshaken in its fundamentals, notwithstanding a sustained cross-examination. Essentially, that evidence was:
a)that he periodically borrowed money from the Husband’s Sister (and his Brother-in-law) for various purposes;
b)the total amount borrowed was approximately $75,000.00;
c)there was a plan to purchase property in the United States, and in furtherance of that plan he had forwarded (by the Wife) $50,000.00 to the Husband’s Sister;
d)a property purchase, seemingly settled, collapsed;
e)following discussions with the Husband’s Sister, the Husband decided that the $50,000.00 could be paid off the debt owing to the Husband’s Sister and the Husband’s Brother-in-law; and
f)a debt of more than $21,000.00 remains owing to the Husband’s Sister and Husband’s Brother-in-law.
See Transcript, pp. 45-46 and 48-51.
The Wife simply did not know if money was borrowed or not by her Husband, or for what purpose; Transcript, pp. 245-246. The Wife said could not remember if she had been told that the property deal had collapsed, but thought it probable: Transcript, p. 247. The Wife conceded that she did not know what had happened to the $50,000.00 forwarded to the Husband’s Sister by her: Transcript, pp. 245 and 247.
The Husband’s oral evidence and the documents tell a consistent story (save for the unexplained date discrepancy in the 13 August 17.32 email) of money borrowed by the Husband for various purposes in the amount of $75,000.00; of money advanced by the Wife to the Husband’s Sister for a property purchase in the United States, which purchase collapsed; and the offsetting of the monies advanced against the debt following discussions between the Husband and the Husband’s Sister. The money advanced was set-off against a debt related to the joint expenses of the Husband and Wife or for which they were considered responsible (eg. – the advance of monies to the Wife’s parents).
On the available evidence the Court:
a)finds that the property in the United States was not purchased; and
b)finds that the Husband agreed that the monies advanced to the Husband’s Sister for the purchase of the property in the United States ($50,000.00) could be set off against the debt owed to the Husband’s Sister by the Husband and Wife.
Therefore, there is no United States property and no money invested in the United States forming part of the available asset pool.
There was evidence that there was $41,000.00 in an account in joint names at the time of separation. That money has since been spent by the Husband, it would appear, in payment of legal fees and credit card debits: Transcript, pp. 51-58. The credit card debts included debts incurred by the Wife pre-separation. In any event, the money was not available at the date of trial, and even if it is added back, or the liabilities of the Husband reduced, there is still no surplus of assets over liabilities.
With respect to superannuation there was simply no evidence, apart from the quantum accrued in the relevant fund, such as to allow the Court to make any orders concerning superannuation.
There is no evidence of deliberate asset dissipation by the Husband post-separation. The Wife referred to an email from the Husband’s Father suggesting a stratagem to dissipate assets, but in the absence of evidence that the Husband acted to do so, the thoughts of the Husband’s Father can not be converted into acts by the Husband.
The Court therefore finds that there is no surplus of assets over liabilities, and therefore no order in relation to property settlement will be made.
Spousal maintenance
Section 72 of the Family Law Act provides for one party to support another, to the extent that that party is able to do so, if, and only if, that party is unable to self support adequately by reason of, relevantly for the purposes of this case:
a)having the care and control of a child of the marriage not yet 18 years of age: s.72(1)(a), Family Law Act; and
b)any other adequate reason: s.72(1)(c), Family Law Act,
having regard to any relevant matter referred to in s.75(2) of the Family Law Act.
The Wife’s evidence was that she was confident of obtaining employment, having complete a Real Estate Agents Course, having building/design related qualifications and the ability to work in child care: Transcript, p. 235-240, if she chooses to do so. In those circumstances, the Wife is capable of supporting herself and is therefore not entitled to spousal maintenance: Taguchi & Taguchi (1987) FLC 91-836. There will therefore be no order as to spousal maintenance.
I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate:
Date:
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