R and R - [2001] FMCAfam 161

FEDERAL MAGISTRATES COURT OF AUSTRALIA

R & R

[2001] FMCA fam 161

FAMILY LAW – Contact – Residence – Conduct of parents – Parental responsibility – Parentage – Parenting orders – Supervised contact issues – Costs.

PROPERTY SETTLEMENT – Value of property – Declaration of rights – Contributions – Shares – Just and equitable – Future needs. Family Law Act 1975 s60B, s65E, s68F(2), s75, s79.

B and B: Family Law Reform Act 1995 (1997) FLC 92-755, Pastrikos and Pastrikos (1980) FLC 90-897, Mallet and Mallet (1984) FLC 91-507, Williams and Williams (1985) FLC 91-628, Campbell and Kuskey (1998) FLC 92-795, Horsley and Horsley (1991) FLC 92-205.

Applicant:

P R

Respondent:

J R

File No:

ZP 1241 of 2000

Delivered on:

28 September 2001

Delivered at:

Parramatta

Hearing Dates:

14 November & 11 December 2000
18 May, 13 July, 30 & 31 August 2001.

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Battley Lachlan Macquarie Chambers DX 28500 Parramatta

The Respondent in person

ORDERS

Until 10 January 2002, the child W R, born 11 January 2000, is to have contact with the husband:
(a)From 10.00 am to 4.00 pm each Sunday at the home of Dr S R;
(b)From 2.00 pm to 6.00 pm on Christmas Day; and
(c)At such other times and places as the parties shall agree.
From and after 11 January 2002, the said child is to have contact with the husband as follows:
(a)Each alternate weekend, from 9.00am on the Saturday to 6.00pm on the Sunday;
(b)For a period of not less than two hours on the child’s birthday and on the husband’s birthday;
(c)From 9.00 am to 6.00 pm on Father’s Day when that day falls on a weekend when contact would not otherwise take place;
(d)From 6.00 pm on Christmas Day to 6.00 pm on Boxing Day commencing on 25 December 2002 and each alternate year thereafter;
(e)From 6.00 pm on Christmas Eve to 6.00 pm on Christmas Day commencing on 24 December 2003 and each alternate year thereafter; and
(f)At such other times as the parties shall agree.
Contact shall take place at the residence of Dr S R or such other place as the parties shall agree.
The husband shall provide the wife with a telephone number on which he can be contacted for all purposes involving contact.
Contact shall not be exercised by the husband on Mother’s Day or on the wife’s birthday.
For the purpose of exercising contact, the husband is to collect the child from the wife’s residence at the commencement of each contact period and return the child to the wife at the conclusion of each contact period.
The husband, by himself, his servants or agents is hereby restrained from removing or attempting to remove the said child W R born
11 January 2000 from Australia and it is requested that the Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and officers of all Police Forces and Services of all States and Territories of Australia are required and empowered to give effect to these orders and to take all necessary steps to restrain the husband from removing or attempting the said child from Australia.
The husband and wife are to continue to attend the Keeping Contact Program for consultation about parenting matters until the said child attains the age of two years.
The husband is restrained from applying or attempting to apply for any passport in the name of the said child W R born 11 January 2000.
The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police are requested to place the name of the said child W R born 11 January 2000 on the Airport Watch List and maintain the said child’s name upon the said list.
The husband is to pay to the wife the sum of $2,716.46 within one month from the date of these orders.
The wife shall, within one month from the date of these orders, do all such things and execute all such documents and instruments as shall be necessary to transfer to the husband all of her right title and interest in the following:
(a)Honda Accord motor car registered number XXX 111; and
(b)All shares in Telstra and NRMA registered in the joint names of the parties.
Unless specified elsewhere in these orders and declarations, each party is declared to the exclusion of the other to be the legal and beneficial owner of:
(a)All superannuation policies or plans in his or her name;
(b)All shares in his or her name;
(c)All insurance policies in his or her name;
(d)All furniture, jewellery, personalty or other chattels in his or her possession; and
(e)All money in bank accounts or savings plans, in Australia or India or elsewhere, in his or her name.
The husband and wife are to do all acts and things and give all consents and execute all deeds instruments and documents necessary to give effect to these orders.
In the event that either party refuses or neglects to execute any deed or instrument within 14 days of being required to do so and in any event within one month from the date of these orders, the Registrar or a Deputy Registrar of the Federal Magistrates Court shall be appointed pursuant to section 106A of the Family Law Act 1975 to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.
That there be no order as to costs.
All other applications are dismissed and the matter is removed from the Pending Cases List.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

ZP 1241 of 2000

P R

Applicant

And

J R

Respondent

REASONS FOR JUDGMENT

Application

The wife, who is the Applicant in this matter, seeks various parenting orders and orders for property settlement. The Respondent husband sought an order vacating an earlier consent order made in the Family Court of Australia and an order that the child of the marriage, W R, born 11 January 2000, should live with him. The husband also seeks property orders.
The proceedings commenced with an application by the wife seeking property and contact orders, and the application for residence was not made until the filing of the husband’s amended Response on 30 May 2001. The residence application was dismissed on 4 September 2001, after the conclusion of the proceedings, and certain interim contact orders were made.
There have been numerous applications made by the parties in the course of these protracted proceedings. The orders currently sought by the parties are set out in the following paragraphs.
In her document entitled “Amended Short Minutes of Orders and Declarations Sought by the Applicant Mother”, the wife seeks the following contact orders until the child, who is now aged 20 months, attains the age of three years:
(1)That the father have contact with the child for two hours every Friday and Saturday.
(2)That this contact should either be supervised by the father’s uncle, Dr S R, or be exercised at the Central West Contact Service.
(3)That the uncle should give an undertaking to the Court seven days prior to the contact commencing.
The wife also seeks orders requiring the husband to attend a parenting course, restraining both parents from applying for a passport for the child without the Court’s permission, requiring each parent to deposit a bond in the sum of $20,000.00 before taking the child overseas, requiring the father to disclose addresses and telephone numbers, obliging the father to pay all costs involved with contact except for fares, and restraining each party from denigrating the other.
As well as parenting and specific issues orders, the wife and the husband both seek orders by way of property settlement. The property orders sought by the wife are:
(1)That the husband transfer to her some jointly-owned Telstra shares.
(2)That the husband pay to her the sum of $22,398.00.
(3)That the husband deliver to her a certain Minolta camera.
(4)Declarations that the husband is the owner of a certain Honda Accord motor car and that the parties retain other items of personalty currently in their respective names or in their respective possession.
The property orders sought by the husband, as set out in his Amended Response, are that:
(1)The wife pay to him the sum of $69,293.00.
(2)Similar declarations to those sought by the wife.

Background

The husband is 37 years old, having been born on 12 April 1964. The wife is currently aged 34 years, having been born on 10 February 1967. There is one child of the marriage, W, who was born on 11 January 2000. W resides with the wife.
The parties were married in India on 13 March 1994. The husband had been living in Australia since 1992. The wife travelled to Australia in February 1995 and resided in Australia since that date. The parties separated shortly after the wife arrived in Australia, and the decree nisi dissolving their marriage, pronounced by the Family Court of Australia at Parramatta on 10 October 1997, became absolute on

11 November 1997.
The parties remained living in Australia and kept in contact with each other. They remarried on 8 September 1998. They separated again on 22 June 2000 and have remained apart ever since. The child has lived with the wife since separation.
Both parties have been in employment, both full time and part time, since shortly after their respective arrivals in Australia. The parties have had one holiday in India, for three months, commencing in February 1998 (whilst they were still divorced). The wife also received an inheritance of approximately $15,000.00 in 1998, from the estate of her father, who died in 1995. On the day the parties separated, 22 June 2000, the wife withdrew the sum of $15,270.00 from their joint account with the NRMA Building Society to provide, as she said, for the support of the child.
The wife shares her residence with the child, her mother and her sister. The husband resides with his uncle and aunt, and their young grand-daughter, aged 4 years.
The wife commenced proceedings in the Family Court on 10 August 2000. There has been an extensive history of litigation between the parties since then, including applications for contravention of parenting orders. The proceedings between the parties have been before this court on some 37 occasions.
It is relevant that the husband sought an order that the parties undergo DNA testing to verify the parentage of the child. The wife consented to this application on 14 November 2000, and DNA testing was subsequently carried out. In a report made by one Brian McDonald of DNALABS on 10 January 2001, the conclusion was reached not only that the husband was not excluded from identification as the child’s biological father, but also there was a probability that paternity was proved estimated to be “greater than 99.9910%”.
There have been several interim contact orders made, the most recent being made on 4 September 2001. Those orders provide that the husband is to have contact with the child:
(1)For two hours each alternate Saturday morning at the Central West Contact Service.
(2)From 10.00 am to 4.00 pm each Sunday at the home of the husband’s uncle and aunt.
(3)At such other times as the parties shall agree.
On 27 June 2000, the wife obtained an Interim Apprehended Violence Order against the husband at the Local Court at Parramatta. The proceedings were later dismissed.

The evidence

The wife says that she has always been primarily responsible for the day-to-day care of the child W since his birth. The child has been living with her since separation in June 2000. She complains that the husband has refused to pay child support for the child and has deliberately under-estimated his income and assets.
The wife says that, during the time the parties were together, the husband has either sent money to members of his family in India or taken money with him. She says that when they travelled together to India in February 1998 she withdrew the sum of approximately $13,000.00 from her bank account and gave that sum to her husband. She purchased a ring for $500.00 and invested the sum of $US2,500.00 in a term deposit in a bank in India, but, apart from that, has no idea of how the rest of the money was expended. She also says that the husband withdrew the sum of $8,000.00 in cash immediately prior to his departure for India in October 1999 to attend his sister’s wedding.
The wife has deposed that she worked for the Westpac Bank on a full time basis and as a console operator at a service station on a part time basis. She currently works for A P and also works on weekends at a service station.
In October 1999, according to the wife, she and the husband had discussions with two other individuals about opening a travel agency at B and consequently invested the sum of $25,000.00 in that business. She commenced working there on 1 March 2000 and continued until July of that year. She received no payment for that work, nor has any of the $25,000.00 been recovered.
The wife’s father died in 1995. She received the sum of about $15,000.00 as an inheritance, and brought that money to Australia with her in 1998. She says that she subsequently sent that money back to her mother in India, as she was planning on returning to India to live.
The wife said in her later affidavit that the husband had received items of his clothing and personal belongings on four separate occasions – 24 June, 25 June, 19 September and 22 September 2000. She also said that the husband had taken a folder of legal and other papers with him when he decamped from the parties’ home when the parties separated.
The wife also claims that the husband took the sum of $4,000.00 out of the Macquarie Bank and invested it elsewhere, and that he later took out a sum of $6,196.79. She claims that the husband took a sum of money, which she describes as her “mother’s $11,000.00”[1] out of an NRMA Building Society Account and placed it into a term deposit in his own name. She also claims that he applied another sum of $17,000.00 of jointly owned money to his own use.[2]
[1] Wife’s affidavit sworn 12 July 2001, paragraphs 10 and 11.
[2] Ibid paragraphs 14 and 15.
The wife’s mother, Mrs K K A, gave evidence. Her evidence in chief was contained in two affidavits, affirmed on 3 October and 31 October 2000. She was living in India but is currently staying in Australia with the wife.
Mrs A’s evidence was to the effect that she and her late husband provided a dowry to the husband’s family of Rs. 500,000 (worth about $AU20,000.00) at the time of the parties’ wedding in March 1994. She also said that she provided the wife with the wife’s share of the inheritance from her late husband’s estate in 1998, when the wife visited India.
The wife’s mother also claims that her son-in-law owes her the sum of $11,000.00. She says that she handed some money to a man in Delhi who arranged for another man in Australia to give to the husband cheques to the same value to give to her when she arrived in Australia. Instead, she says, the husband deposited the cheques into an account of his own and refused to pay the money to her.
The wife’s mother also says that her home in India is a unit which is solely owned by the wife’s brother, who is an officer in the Indian Army. She states that neither the husband nor the wife contributed any money toward the purchase of that unit.
In her later affidavit, the wife’s mother described the atmosphere at the former matrimonial home after the husband’s mother came to stay. She was critical of the husband’s lack of involvement with the child, saying that he never played with the child or held him. He would ignore the child when he returned home from work, and chided the wife for spending money on the child.
The wife’s mother was cross-examined by the husband. The cross-examination was conducted with the aid of a Hindi interpreter, and was complicated by the fact that the wife’s mother had firm views as to what evidence should be given to the court.
The wife’s mother confirmed that her daughter had visited her in India on three occasions since the marriage. The first time the wife came was on the occasion of her father’s death in 1995, the second time was in February 1998, when both the husband and wife visited (notwithstanding the fact that they were divorced at the time), and the third time was in February 1999, when the wife came by herself.
Her evidence was that her late husband retired from the Army in 1989. He had a factory business after his retirement. At that time they lived in a place called Panchkulla, which is near Chandigarh.
The wife’s father’s business was called S Enterprises, and the factory made hardboard packing for electrical appliances. The father was killed in a road accident and the factory was sold. The relatives were consulted, and her brother-in-law got together with her brothers. The factory was worth millions, she said, but she only received 15 lakhs of Rupees for her share.
The wife’s brother is an officer in the Indian Army. He came to Australia on 14 August 2000 and left for India on 17 October 2000. He is currently stationed near the border with Pakistan.
The wife’s mother said that she received her share of her late husband’s estate in December 1997. She put this money in the bank. She said that she arranged to give the man G S the sum of $AU 11,000.00 to transfer to Australia, as that amount of money was to be used for the wedding of another of her daughters, who resides in Australia.
The wife’s sister, N K A gave evidence. She gave her address as Bhopal, in India, although she has been residing in Australia with the wife for some time. Her evidence was to the effect that she had never seen the husband perform any parental duties in caring for the child. She said that he had no parenting skills.
The wife tendered an affidavit from her brother, Major S A. This affidavit was dated 3 October 2000. He was not available for cross-examination, as he has returned to India. Major A deposed that the property in Bhopal is solely owned by him. Its purchase price came partly from his own finances, partly from a loan from the Housing Development Finance Corporation, and a small amount from relatives. He states that no financial assistance was sought from either the husband or the wife to purchase the unit at Bhopal.
The wife also tendered an affidavit, dated 16 October 2000, from one H S, who lives in L. He was not available for cross-examination, as he was on an extended trip overseas. His affidavit referred to an extraordinary transaction, whereby one G S, who was being deported to India, wished to transfer some funds in Australia to India. At the same time, the wife’s mother wished to take some money from India to Australia with her when she came. The arrangement was that the wife’s mother would give some money to G S once he arrived back in India, whilst Mr H S would give the equivalent amount of money to the wife’s mother once she arrived in Australia. He deposed that he made out two cheques, one for $6,000.00, the other for $5,000.00, and gave them to the husband, who said that he would give them to the wife.
The wife was granted leave to give oral evidence about the parenting issues. She said that her mother made an application for permanent residence after the husband and wife separated, in about October 2000. Her mother is still on a Visitor’s visa, but she can get a bridging visa until her application is decided. She believed that the waiting period is twenty years. If her mother were to return to India, the mother said that she would just have to look after her son herself. At present, she has the services of her mother to look after the child whilst she is at work. She has found a child care place with the assistance of the Department of Community Services and believes that the child should go to childcare because the company of other children. She did say that 4 hours contact with the husband was not sufficient for the child each week, but she was considering the demands on the husband’s uncle’s time. She believes that the uncle should supervise the contact. She is still concerned that the husband may try to take the child out of the country. She said that she was not suggesting that the husband was not a good father, but that he had not in the past taken any responsibility for the child, nor did he have any bonding with him.

The husband gave evidence by way of affidavit. One affidavit, dated 16 May 2001, covered property matters. Two other affidavits, dated 16 and 30 May 2001, dealt with parenting issues.
The husband deposed that the wife has consistently refused to allow him to receive items of his personal belongings. He also made the surprising allegation that the earlier divorce proceedings between them were in fact a sham, being part of a plan by the wife to allow him to go through a form of marriage with her sister so that the sister could obtain permanent residency in Australia. He said that he refused to marry the sister, although they were divorced.
The husband states that the wife purchased the sum of $US15,000.00 out of joint funds to take to India when they travelled there in February 1998. They left $10,500.00 in the care of the wife’s mother. The husband states that he has not seen any of that money since.
The husband also states that he gave the wife $4,500.00 in cash to take to India with her in June 1995 when her father died. That money, he deposed, was given by the wife to her mother. He also states that he gave the wife another $5,528.00 in December 1995, which she transferred to her mother’s bank account in India.
The husband also states that he purchased two gold bracelets worth $3,190.00 before he and the wife went to India in February 1998. He claims that he was asked to make those bracelets available to the wife’s sister for her wedding, which he did. As the wife’s mother now owed him $13,218.00, he asked when he was to be repaid. The wife told him that her mother would bring the money with her when she came to Australia. This was how the sum of $11,000.00 was given to him by Mr H S.
The husband claims that the wife has constantly sent amounts of money to her family in India. He says that the transactions were as follows:
a)24 April 1996 — $9,500.00 to one P Y;
b)16 October 1996 — $2750.00 to her sister N K;
c)31 January 1997 — $5000.00 to her mother K K; and
d)Between May and October 1998, approximately $25,000.00 to the wife’s mother.
It is the husband’s belief that at least some of the money was used to pay off the property at Bhopal. He also stated that the wife paid $7,242.00 to the University of Western Sydney for tuition fees for the wife’s sister.
The husband also claims that the wife took between $1,500.00 and $2,000.00 from his wallet in October 1999. Disturbingly, the husband also claims that someone withdrew money from his NRMA Building Society account on three occasions by forging his signatures on his personal cheques. The three cheques were for $3,000.00, $500.00 and $1,250.00. He says that the cheque for $3,000.00 was deposited into the wife’s personal account. Copies of the three cheques are annexed to his affidavit. The cheque for $3,000.00 shows the wife’s name as payee.
In his two parenting affidavits, the husband deposes to the fact that he shares a five-bedroom house with his uncle, aunt and niece. He says that as the child is the only son he has to maintain ties with his family and culture in India and that it is important he goes to his ancestral village in India to participate (in) special occasions. His reasons for his proposed changes to the existing arrangements are, simply, “Not enough contact”[3].He also states that “The mother is unable to take responsibility of the child’s welfare”.[4]
[3] Husband’s affidavit, 16 May 2001, paragraph 29(c).
[4] ibid, paragraph 31(c).
In the husband’s affidavit of 30 May 2001, he expands on his criticisms of the wife’s parental failings, saying “The mother has indicated that she would be finding it difficult to survive once her own mother is not available. Now that her mother has left for India, I have grave concerns about W’ own survival”[5] and “The child’s maternal grandmother was responsible for all his care, welfare and development. As the maternal grandmother has left for India there is no one to look after him and spends most of his time in the Day Care Centre”.[6]
[5] Husband’s affidavit, 30 May 2001, paragraph 26.
[6] Ibid, paragraph 28.
The husband was extensively cross-examined. He re-iterated that he had given the wife the sum of $4500.00 when her father had died and she was returning to India.
He stated that he was sure that the wife had kept bank accounts that he was not aware of. He said that when documents were produced on subpoena by the Commonwealth Bank he found details of accounts he did not know existed. He admitted that the figure of $60,000.00 that he is claiming is an approximation. He said that he believed it but could not say that it was accurate.
Disturbingly, the husband admitted that the earlier divorce proceedings were a charade. When asked if he had simply lied to the court he agreed, saying that the wife had done so earlier. Mr Battley of Counsel put to him that the wife said that they were not living together during the twelve months prior to the Application for Divorce being filed, that it was not a charade. He re-iterated that it was. He said that he agreed to divorce the wife so that he could marry her younger sister and thereby obtain permanent resident status for her because the wife persuaded him to, but he later spoke to his relatives and decided that he would not go ahead with the planned marriage to the sister.
The husband asserted that no dowry was paid, contrary to the claims made by the wife and the wife’s mother.
The husband was asked about the value of the Honda motor car at $5000.00. He said that he would accept that the car was worth $5000.00 for the purpose of these proceedings if the court agreed that the values of the other items of property were “OK”. He said that the Telstra shares were worth between $10,000.00 and $12,000.00 but he had no idea of the value of the NRMA shares. He denied that he had anything to do with the business known as F Travel, except as to providing the sum of $25,000.00. He said that he had no objection to the wife being involved in the travel agency. He admitted that he had made out to the Child Support Agency that he had an interest in the business, which was losing money. He told the court that Mr M B, one of the parties in the travel agency business, had said to him at the time “You will probably have to pay for the losses of this company”.
The husband was cross-examined about his earnings, by Mr Battley. He admitted that he had been earning considerably more than he deposed. He would not concede an average of between $800.00 and $1000.00 but he did concede between $600.00 and $700.00.
As far as contact was concerned, the husband said that he did not understand why his contact with his son should be supervised. There was court order in existence forbidding him from taking the child out of the country, so he would not be able to do so in any event. His uncle, Dr R, should not be required to supervise the contact. The Central West Contact Service could only provide two hours a fortnight and it is a very small place, making contact very difficult.

The principles to be applied in parenting matters

In dealing with matters involving children, the Court must be mindful of the object and principles set out in section 60B of the Family Law Act 1975:
“60B(1) The object of this part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
60B(2) The principles underlying these objects are that, except when it is or would be contrary to the child’s best interests:
a)Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)Children have a right of contact, on a regular basis,, with both their parents and with other people significant to their care, welfare and development; and
c)Parents share duties and responsibilities concerning the care, welfare and development of their children; and
d)Parents should agree about the future parenting of their children”.
Section 65E of the Family Law Act states that in deciding whether to make a parenting order in relation to a child, “a court must regard the best interests of the child as the paramount consideration”.
Section 68F(2) sets out the matters the court must consider when determining what is in the child’s best interests. They include:
a)Any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s wishes;
b)The nature of the relationship of the child with each of the child’s parents;
c)The likely effect of any changes in the child’s circumstances;
d)The practical difficulty and expense of the child having contact with a parent;
e)The capacity of each parent to provide for the needs of the child;
f)The child’s maturity, sex and background;
g)The need to protect the child from physical or psychological harm;
h)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
i)Any family violence involving the child or a member of the child’s family;
j)Any family violence order that applies to the child or a member of the child’s family;
k)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
l)Any other fact or circumstance that the court thinks is relevant.
These three sections of the Act and their interaction were considered by the Full Court of the Family Court of Australia in B and B: Family Law Reform Act 1995 (1997) FLC 92-755. In this case, Nicholson CJ, Fogarty and Lindenmayer JJ held that in proceedings under Part VII relating to parenting orders, the best interests of the particular child in that case remains the paramount consideration. In that process the Court must consider the matters set out in section 68F to the extent that they are relevant in a particular case, and the weight to be attached to any one consideration depending upon the circumstances of the individual case. It is a discretionary exercise by the trial judge. Ultimately, it is a question of applying in a commonsense way the individual sections so as to achieve the best interests of children in a particular case.

Conclusions about the parenting issues

The question of residence has already been decided. The child will remain living with the wife. The question for decision is the husband’s contact with this child. The husband does not understand why his contact should be supervised and why there should not be overnight contact. He believes that he has the ability to accept the responsibility of looking after his son, and he says that he has the support of his uncle and aunt. He denies that he has any intention of removing the child from the jurisdiction or in any way taking him permanently from the care of the mother. He points out that there are court orders in force which would prevent him from acting in this way.
The wife still believes that contact should be supervised, either through the Central West Contact Service or by the husband’s uncle, a medical practitioner. She still fears that the husband will attempt to abscond with the child, notwithstanding the existence of orders forbidding him from doing so. She points to his past behaviour, in which she says he showed very little interest in the child and took little or no responsibility for him. The father, she said, had had no involvement with the child and no bonding with him. She does not claim that he is a bad father, she says, but an inexperienced one. His contact with the child since separation in late June 2000 has been brief and infrequent.
It is significant that this child is just under 22 months old and has spent all of his life in the care of his mother or his paternal grandmother. He has spent little time with the father. There is no application that contact should not take place, only that it be restricted in various ways.
This child has a right to know and be cared for by both of his parents,[7] and he has a right of contact, on a regular basis, with both of his parents, not just his mother, and with other significant people.[8] With regular contact with his father comes the benefit of contact with extended family members, his father’s uncle and aunt and their little grand-daughter. Whilst there was no direct evidence from the uncle or the aunt, the wife had no criticisms to make of them, although she apparently does not know these people. Regular contact with the husband would enable the husband to learn to take some responsibility for the child’s care, welfare and development[9]. This can only really be achieved if the husband and child spend a reasonable amount of time together.
[7] Section 60B(2)(a)
[8] Section 60B(2)(b)
[9] Section 60B(2)(c)
In this case, as in all parenting cases, the best interests of the child must be the paramount consideration.[10] It is commonly accepted that it is in a child’s best interests to have regular contact with both parents, unless there is some specific reason which would suggest that contact should not take place. It is no part of the wife’s case that the husband should not have regular contact with the child; indeed, she said that four hours each week was insufficient for the child’s benefit.[11]
[10] Section 65E
[11] Wife’s evidence, 31 August 2001
The child is too young, at 22 months, to express any wish about contact arrangements.[12] There is no issue that the child has a good relationship with the wife, but the wife says that the husband has no bonding with the child, so the relationship is distant.[13] The best way to resolve that problem would be a graduated increase in the amount of contact between father and son, to enable the father to improve his parenting skills and allow the child to increase in confidence with his father.
[12] Section 68F(2)(a)
[13] Section 68F(2)(b)
A graduated increase in the child’s contact with the father would not seem to hold any negative consequences but would assist the relationship between the father and the child. The change in the child’s circumstances is likely to bring benefits for both father and child.[14]
[14] Section 68F(2)(c)
There does not appear any appreciable practical difficulty in contact between the father and the child[15]. The parents live in the western suburbs of Sydney, with access to public transport. The father has a motor car. There has been contact on weekends since the parties separated, and there is no reason why it should not continue on a regular basis.
[15] Section 68F(2)(d)
The husband makes a general criticism of the wife’s capacity to care for the needs of the child[16] when he points to her reliance on her own mother to assist with the care of the child whilst she is at work. The wife’s mother has applied for permanent residence in Australia so that she may remain to assist the wife. There does not appear to be any reason why the wife’s mother should not be able to remain in Australia indefinitely, although it would be to the benefit of the wife if the husband took more of the responsibility of looking after the child.
[16] Section 68F(2)(e)
The wife has also been critical of the husband’s ability to provide for the child’s needs, because of his inexperience at parenting. It is for this reason that she seeks that the husband’s uncle should supervise contact. There has not been shown any reason why a medical practitioner should be present on each contact occasion. The child does not have any special needs, either physical or intellectual. He appears to be a normal, healthy toddler. With the aid of his uncle and aunt, or of his own mother or sister if they should visit Australia, the husband should be able to learn to care for his own son, experience being said to be the best teacher.
The child’s maturity, sex and background are relevant considerations.[17] He is only 22 months old, walking and starting to talk. He is a little boy who needs the benefit of a male role model, which is clearly the task of his father. He is of Indian background, although he himself was born in Australia and is an Australian citizen. The husband and wife are both of Indian background, although the husband was actually born in Kenya. The husband is now an Australian citizen. It is important, in a multicultural society such as Australia, that a child should have the benefit of learning his parents’ background and culture as well as that of mainstream Australia. The father alludes to this in his affidavit material.
[17] Section 68F(2)(f)
There does not appear to be any greater need than normal to protect this child from physical or psychological harm.[18] There is no suggestion that either parent would harm the child, although bickering between them in the presence of the child would be unsettling for him.
[18] Section 68F(2)(g)
The husband makes no criticism of the wife’s attitude to the child or her attitude to the responsibilities of parenthood.[19] The wife has referred to the husband’s prior lack of involvement with the child when he was a baby and his failure to take responsibility for him. She says that this has led to a lack of bonding between father and child. Against this, it can be seen that the husband has consistently sought greater contact with his son since prior to Christmas 2000.
[19] Section 68F(2)(h)
The wife has been offended by the husband’s demand that a DNA test should be taken to determine the child’s paternity. The wife consented to this test, which provided strong evidence that the husband is indeed the child’s father. He told Mr Battley of counsel in cross-examination that he sought the paternity test “To make sure that W is my child”.[20] When asked whether he considered that suggesting that he was not the father of the child was an offensive accusation to the wife, he replied “What’s offensive about it?”, an answer that reveals a significant lack of sensitivity. As no evidence was ever produced that would cast doubt on the child’s paternity, it is hardly surprising that the wife would have been offended by the demand for a DNA test.
[20] Husband’s oral evidence 30 August 2001
The court must consider the question of any family violence involving the child or a member of the child’s family[21] and the existence and terms of any family violence order.[22] The parties separated in acrimonious circumstances, and the wife accused the husband of striking her. An Interim Apprehended Violence Order was made by the Parramatta Local Court, and proceedings for assault were commenced against the husband. These proceedings did not result in a conviction, and there is now no Apprehended Violence Order in force, on the evidence before the court.
[21] Section 68F(2)(I)
[22] Section 68F(2)(j)
I am of the view that the acrimony of the separation in June 2000 is not a matter that has any immediate relevance to the contact proceedings before the court at this time. The prior Interim Apprehended Violence Order is not a disqualifying factor in this particular case.
Any court dealing with parenting matters should consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.[23] The husband and wife have been involved in constant litigation against each other for more than a year, and there is no guarantee that any parenting order would bring litigation to an end. Nevertheless, a workable contact program, which offers the security the wife seeks and the time with his child that the father seeks offers the best hope of avoiding further litigation. Whilst the wife seeks that contact should be supervised until the child attains the age of three years, I am not satisfied that a need has been shown for this arrangement, which would be unnecessarily irksome to the father, and likely to lead to further litigation.
[23] Section 68F(2)(k)

There are no other relevant facts or circumstances.[24] I note that the parties have attending confidential counselling pursuant to section 62F(2) and no resolution has been reached.[25]
[24] Section 68F(2)(l)
[25] See also section 65F(2)
There are existing orders for contact, made until further order. These orders provide for regular contact during the day at the home of the husband’s uncle and aunt. They do not provide for overnight contact.
I note that the child attains the age of two years on 11 January 2002. He is, on the evidence available, a normal healthy toddler who has met all his milestones at the appropriate time. There would seem to be no reason why he would not be able to enter into a regime of overnight contact once he reaches the age of two, especially if he has had regular day-long contact with the husband up till that time. Accordingly, I propose to order that the husband should have alternate weekend contact with the child once he has attained the age of two years. I do not propose to order that this contact should be supervised, but it I consider that it is important to continue the prohibition on taking the child out of the country without consent of the mother or leave of the Court.

The principles to be applied in property applications

In property matters, the court must look to the provisions of section

79 of the Family Law Act. Section 79 says:
“In proceedings with respect to property of the parties to a marriage or either of them, the court may make such order as it considers appropriate altering the interests of the parties in the property, including an order for a settlement of property in substitution for any interest in the property and including an order requiring either or both of the parties to make, for the benefit of either or both of the parties or a child of the marriage, such settlement or transfer of property as the court determines".
In making such orders, the court must be mindful of section

79(2), which states that
“The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”.
Section 79(4) sets out a number of matters to be taken into account by the court in determining what order should be made, including:
a)The financial contribution made directly or indirectly by or on behalf of a party to the marriage;
b)The contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage;
c)The contribution made by a party to the marriage to the welfare of the family;
d)The effect of any proposed order upon the earning capacity of either party to the marriage; and
e)The matters referred to in sub-section 75(2) so far as they are relevant.
The process which a court must undertake was set out by the Full Court of the Family Court of Australia (whose decisions are binding upon the Federal Magistrates Court) in Pastrikos and Pastrikos (1980) FLC 90-897. In that case, the Full Court held that under section

79, the Court has to embark on a dual exercise. The first part of the exercise is to determine the nature and, as far as possible, value of the property of the parties in issue. Usually the whole of the property of the parties will be relevant. Then, the court proceeds to make some assessment of the extent of each party’s contribution to those assets. The second part of the exercise is to consider the financial resources, means and needs of the parties and the other matters set out in sub-section 75(2) so far as is relevant. The result of this exercise reflects a party’s contribution to property, a party’s needs, or a combination of both factors.
The High Court of Australia has considered the question of contributions to a marriage in Mallett v. Mallett (1984) FLC 91-507. The judgment sets out a number of principles:
a)There is no rule, principle or guideline that where assets are built up by the joint efforts of the parties to a marriage over a significant period, equality is a convenient starting point;
b)The contribution made by the wife as a homemaker and parent should be recognised not in a token way but in a substantial way; and
c)The respective values of the contributions made by one party as homemaker and parent and the financial contribution made by the other must depend entirely on the facts of the case.
In Williams v Williams, (1985) FLC 91-628, the High Court held that “The care by the respondent of the children after cohabitation ceased was a factor within section 79(4)(c)”.[26]
[26] at page 80093
The Full Court of the Family Court has held, in Campbell v Kuskey (1998) FLC 92-795, that a trial judge has a clear obligation to identify the parties’ assets and liabilities before considering contributions and section 75(2) factors.
In Horsley and Horsley (1991) FLC 92-205, the Full Court of the Family Court criticised the trial judge for not separating the contributions of the parties pursuant to section 79 from the relevant section 75(2) factors. The Full Court held that it was of crucial importance to know what weight the trial judge gave to the husband’s capital contributions and what significance was given to the great disparity in future earning capacity of the parties, coupled with the weight the judge gave to the wife’s obligations to care for the children.

The parties’ assets and liabilities

I find that the parties’ assets are as follows:
b)Wife’s CBA account.......................................................... $247.00
c)Wife’s Westpac account................................................ $1,300.00
d)Wife’s savings plan........................................................ $1,795.00
e)Bank of Punjab account................................................. $5,000.00
f)Wife’s other funds in India........................................... $32,250.00
g)Amount withdrawn by wife on 22.6.2000[27]................ $15,270.00
h)Total held by wife...................................................... $55,862.00
i)Husband’s Macquarie Bank Account........................... $4,004.73
j)Husband’s account at CBA B H................................. $17,270.32
k)Husband’s a/c 11111111 at CBA................................ $2,903.71
l)Honda Accord motor car............................................... $5,000.00
m)Telstra shares............................................................... $12,000.00
n)NRMA shares..................................................................... $590.00
o)Total gross assets..................................................... $97,630.76
[27] Wife’s affidavit filed 10 August 2000, paragraph 10
I am not satisfied that the amount of the dowry said to have been paid by the wife’s family to the husband’s family should be regarded as an asset in the hands of the husband. It is a financial resource. Similarly, I am not satisfied that the sum of $2,000.00 that appears in the wife’s financial statements and described as “payment to solicitor” can be regarded as a current liability. The evidence does not show that there are any more items of personal effects held by one party which should go to the other, and I make no allowance for the husband’s claim for return of items of clothing or the wife’s claim for a Minolta camera.
I am satisfied that the total net assets in contention between the parties stand at $97630.76.

Contributions

The parties were married on 13 March 1994. Apart from the dowry, there is no evidence of any initial capital contribution by either party. The parties have both worked consistently throughout the marriage, except for a period of time before and after the birth of the child W. The wife has returned to work. The Husband’s income has been higher than the wife’s, and it still is.
Whilst it is clear that the husband has made a greater financial contribution, it is clear that the wife has made a contribution as homemaker and mother which should be taken into account.[28] The wife has also had the care of the child since the parties separated in June 2000, and I consider that this should be taken into account as a contribution to the welfare of the family pursuant to section 79(4)(c).[29]
[28] See Mallett v. Mallett (1984) FLC 91-507
[29] See Williams v. Williams (1985) FLC 91-628 (at 80093)
Taking these matters into account, over a marriage of only about

6 years, I consider that the parties’ contributions should be assessed as equal.

Section 75(2) factors

The age and state of health of the parties is a relevant consideration.[30] The husband is aged 37 years and the wife is 34 years of age. They both appear to be in good health, and there is no evidence to suggest otherwise.
[30] Section 75(2)(a)
Turning to the parties’ income, property and financial resources,[31] they are both in employment. The husband is in full-time employment with A P, whilst the wife is employed on a part-time basis. The husband also works on a part-time basis as a console operator, which he estimates brings him an average of about $157.00 per week.[32] Whilst the husband’s financial statement shows an average weekly income of $563.00, the husband has admitted in cross-examination that his weekly income would be between $600.00 and $700.00.[33] The husband’s taxable income for the year ended 30 June 1999 for the year ended 30 June 1999 was $51,046.00[34] By comparison, the wife’s Further Amended Financial Statement, filed in Court on 30 August 2001, shows her average weekly earnings at $666.00. This includes $359.00 from A P, $191.00 from her weekend employment, a parenting payment of $10.00 and Family Allowance of $106.00. These amounts were unchallenged by the husband.
[31] Section 75(2)(b)
[32] Husband’s financial statement filed 3 October 2000
[33] See paragraph 54 above
[34] Statement dated 23 May 01 from Australian Taxation Office
The property held by the wife in cash, which I found to total $55,862.00, exceeds the property held by the husband, which amounts to $24,178.76. This calculation does not include the motor car or the shares. On the other hand, the financial resources available to the husband exceed those available to the wife. Apart from the dowry, estimated to be worth $20,000.00, the husband has an interest in the A P Superannuation Scheme. According to a letter from that scheme dated 14 March 2001 (tendered by the wife’s counsel), the husband’s voluntary withdrawal benefit in that scheme stood at $33,999.57 as at 12 March 2001. By comparison, the spouse account for the wife had a voluntary withdrawal benefit on that same date of $1,681.04.
The wife’s own superannuation benefit appears to be either $12,023.00 or $16,473.00, depending upon which column of the statement provided is applicable. To this, of course, should be added the $1681.04 referred to in paragraph 96 above. No matter which figure for the wife’s superannuation is taken into account ($13,704.04 or $18,154.04), the wife’s interest in any superannuation scheme is significantly less than the husband’s.
Setting the income, property and financial resources of the parties off against each other, I am not satisfied that there should be any adjustment either way under the provisions of section 75(2)(b) of the Family Law Act.
The wife has the care and control of the child of the marriage who has not attained the age of 18 years.[35] The child W has resided with the mother since the parties separated. This Court made an order confirming that the child would continue to reside with the mother as recently as 4 September 2001. This child is yet to attain the age of two years, so the mother is going to have to care for him for another sixteen years. He will not attend school until the year he turns five, so there will be a limitation on the mother’s ability to go to work to earn income for the next three years. There should be an adjustment in the wife’s favour pursuant to this sub-section.
[35] Section 75(2)(c)
The Court will also take into account the commitments of the parties that are necessary to support themselves or another child or another person that either party has a duty to maintain.[36] Neither party has any unusual commitment, nor is there any other child.
[36] Section 75(2)(d)
An adjustment can be made after taking into account the responsibilities of either party to support any other person[37]. The husband has no such person. The wife’s mother lives with her and assists her to care for the child. She is aged 65 and not in paid employment, although she does have assets in India, which she has inherited from her late husband. The wife’s mother is a member of the wife’s household and needs sustenance, which apparently is paid for out of the wife’s income. There should be a small adjustment in favour of the wife pursuant to sub-section 75(2)(e) of the Family Law Act.
[37] Section 75(2)(e)
Sub-section 75(2)(f) and sub-section 75(3) of the Act should be read together in this case. The wife has disclosed that she is receiving a payment by way of Family Allowance, but as this allowance is income tested the Court must disregard it.[38] Neither party receives any other pension or benefit.
[38] Section 75(3)
The Court must also look at the standard of living that “in all the circumstances is reasonable”.[39] The parties’ standard of living may have reduced as a result of their separation, but there is no evidence about this issue, so I make no adjustment.
[39] Section 75(2)(g)
The matters contained in sub-sections 75(2)(h) and (j) are not relevant to the matter currently before the Court.
The marriage was of comparatively short duration.[40] The parties were married on 13 March 1994 and the wife says that they separated in 1995. The husband says that they were not separated at all. A Decree Nisi dissolving their marriage became absolute on 11 November 1997. They reconciled (if they ever separated) in 1998 and re-married on 8 September 1998. They separated finally on 22 June 2000. The wife’s earning capacity has been affected by the fact that she has a young child to care for, but not for any other reason. No adjustment should be made pursuant to sub-section 75(2)(k).
[40] Section 75(2)(k)
The matter contained in sub-section 75(2)(l), the need to protect a party’s role as a parent, is not relevant in this case.
Each party is cohabiting with other family members.[41] The husband shares accommodation with his uncle and aunt. He has not provided any details of the financial arrangements with them for his rent or board. The wife, as has been previously mentioned, lives with her mother and with the child W. These matters have been dealt with in paragraphs 99 and 101 above. No further adjustment is necessary.
[41] Section 75(2)(m)
No adjustment is relevant in respect of any matter contained in sub-section 75(2)(n).
The husband has been assessed to pay child support under the Child Support (Assessment) Act 1989.[42] The wife has tendered a copy of the assessment dated 25 September 2000, showing that the husband has been assessed to pay a monthly rate of $517.75. This assessment arose as a result of cross applications made by the parties under the provisions of Part 6A of the Child Support (Assessment) Act.[43] As a result, there should be a small adjustment in favour of the husband.
[42] Section 75(2)(na)
[43] Exhibit 2, Notice of Decision dated 19 September 2000
There are no other facts or circumstances which the justice of the case requires to be taken into account[44], nor is there any evidence of any financial agreement that is binding on the parties.[45]
[44] Section 75(2)(o)
[45] Section 75(2)(p)
Taking into account the adjustments needed to be made in favour of the wife, as set out in paragraphs 99 and 101, and the adjustment to be made in favour of the husband, as set out in paragraph 109, I find that, overall, there should be an adjustment in favour of the wife. The appropriate adjustment should be 10%.

Section 79(2)

The Court has found that the contributions of the parties to the matrimonial property should be assessed as equal, as set out in paragraph 93 above. The Court has also found that this amount should be adjusted according to the factors set out in section 75(2), which has been found to be 10% in favour of the wife, as set out in paragraph 111 above. However, orders to this effect should not be made unless the Court is satisfied that, in all the circumstances, it is just and equitable to make such orders.[46]
[46] Section 79(2)
The adjusted division between the parties would divide the matrimonial property between them in the ratio of 60% to the wife and 40% to the husband. The value of the property has been found to be $97630.76 (paragraph 90 above). This would leave the wife entitled to the sum of $58578.46. The husband would be entitled to the sum of $39052.30.
Such a division would leave the wife’s bank accounts and savings plan untouched and would require the husband to pay her a “top up” amount of $2,716.46. The husband would be able to afford to pay her that amount out of the funds he has in the bank without any delay.
The husband would receive the Honda Accord motor car, which the wife was prepared to transfer to him in any event. He would also receive the Telstra shares and the NRMA shares. I propose to make no order in respect of any jewellery or clothing, as I am satisfied that the husband has received the items of clothing which he claims. I do not propose to make any order in respect of the Minolta camera, as I am not satisfied that the evidence is sufficient to allow a decision to be made either way.
Taking all these matters into consideration, I consider that the orders I propose to make are, in all the circumstances, just and equitable.

Costs

The wife was represented by a solicitor, Ms Jacqueline Vincent, when the matter commenced in August 2000. The solicitor filed a notice that she had ceased to represent the wife, as required by Order 37 Rule 1, on 12 October 2000. The matter was still in its preliminary stages. The wife was later represented by Mr Peter Jurd, solicitor, on an amicus curiae basis. This appearance was confined to mentioning the matter on her behalf to seek an adjournment because she was sick and unable to attend court on 13 July, 2001, a hearing day. Later, Mr Richard Battley of counsel accepted a brief on a pro bono basis to appear for the wife. Mr Battley quite properly pointed out that it would not be open to the wife to seek an order for costs in respect of his professional services, as they were rendered without charge.
The husband has not been legally represented at any stage in the proceedings before the Federal Magistrates Court.
Section 117(1) of the Family Law Act provides that, subject to certain other matters contained in sub-section (2) and sections 117AA and 118, each party to proceedings under that Act should bear his or her own costs. As the husband has not been legally represented throughout the proceedings, he has no claim to an order for costs.
For the vast bulk of these lengthy proceedings, the wife has either been unrepresented or represented free of charge. Section 117AA does not apply, nor have I found any proceedings frivolous or vexatious.[47] The wife has been successful in her property application, although she will receive less than she sought. The husband’s residence application, whilst unsuccessful, was heard at a time when the wife was being represented on a pro bono basis and not liable to pay legal costs. The husband has been largely successful in his contact application.
[47] Section 118
I am of the opinion that there are no circumstances that justify any order as to costs in favour of either party.[48]
[48] Section 117(2)

I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: