R and R
[2004] FMCAfam 142
•3 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JR & ER | [2004] FMCAfam 142 |
| FAMILY LAW – Property – contributions – valuation of real estate – gambling losses – gifts – redundancy – children – residence – shared equal residence – assessment of risk – best interests paramount consideration – husband must be available during contact. |
Family Law Act 1975
Aleksovski (1996) FLC 92-705
Lee Steere and Lee Steere (1985) FLC 91-626
Ferraro (1993) FLC 92-335
Clauson (1995) FLC 92-595
Russell (1999) FLC 92-877
B and B Family Law Reform Act (1995) (1997) FLC 92-775
Burke (1993) FLC 92-356
Gosper (1987) FLC 91-818
Kessey (1994) FLC 92-495
Kowaliw (1981) FLC 01-092
Townsend (1995) FLC 92-569
Levick (2003) FamCA 40 (unreported).
Pearce (1999) FLC 92-844
Parshen (1996) FLC 92-720
Pellegrino (1997) FLC–92–789
Tomasetti (2002) FLC 93-032
| Applicant: | J R |
| Respondent: | E R |
| File No: | PAM2934 of 2003 |
| Delivered on: | 3 May 2004 |
| Delivered at: | Parramatta |
| Hearing date: | 2 and 3 March 2004 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Counsel for the Applicant: | Mr P. Batey |
| Solicitors for the Applicant: | Barkus Edwards Doolan |
| Solicitor Advocate for the Respondent: | Mr G. Morahan |
| Solicitors for the Respondent: | Greg Morahan & Co. |
ORDERS
Within ten weeks of the date of these orders the wife shall pay to the husband the sum of $97,757 and at the same time shall give him a discharge of the Commonwealth Bank mortgage secured against the property situate at and known as the Brighton Le Sands property.
Simultaneously, upon compliance by the wife with order (1) the husband shall do all acts and things and sign all documents as are necessary to transfer to the wife his right, title and interest in the property situate at and known as the Brighton Le Sands property.
In the event that the wife fails to comply with order (1) each party shall immediately take all necessary steps and execute all necessary documents to cause the property situate at and known as the Brighton Le Sands property to be sold by private treaty at a price to be agreed on between the parties and failing such agreement to be determined by the President of the Australian Property Institute of New South Wales or his nominee and to distribute the proceeds of sale as follows:
(a)In payments of agent’s commission, advertising expenses and legal expenses of the sale;
(b)Discharge of the mortgage in favour of the Commonwealth Bank;
(c)Twenty eight (28) percent to the husband, from which he shall pay the wife an adjusting amount of $61,615; and
(d)Balance to the wife.
In the event the property fails to be sold by private treaty within a period of three months from the date order (3) becomes operative, then each party shall take all necessary steps and execute all necessary documents to cause the property to be sold by auction at the earliest possible date at a reserve price to be agreed upon between the parties and failing such agreement to be determined by the President of the Australian Property Institute of New South Wales or his nominee and that the proceeds of this sale will be distributed in accordance with order (3).
Pending the sale of the property and compliance with order (1) the wife shall continue to pay as they fall due all regular instalments in respect of the mortgage, council rates, water rates and household insurance in respect of the property and shall indemnify and keep the husband indemnified in respect of any such amounts, and if any such amounts remain unpaid as at the date of the sale of the property, the wife shall be solely liable for any such arrears.
In accordance with section 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable to the wife from her accumulation interest in the QANTAS Superannuation Fund, the husband E A R is entitled to a base amount in the sum of $41,375.00 and there is a corresponding reduction in the entitlement the wife J A R would have had but for these orders.
Order (6) above has effect from the operative time, which is the date of these orders.
Having been accorded procedural fairness in the making of these orders, orders (6) and (7) above binds the trustee of the QANTAS Superannuation Fund.
That in default of either or both of the husband and the wife doing all such things and executing all such documents as may be needed to comply with these orders that a Registrar of the Parramatta Registry of the Federal Magistrates Court or such other person appointed by the court is authorised to do all such acts and things and execute all such documents on behalf of either or both of the husband and the wife.
That the parties have joint responsibility for the long term care, welfare and development of (“the children”) D J R born 1995 and D H R born 2000.
That each party shall have responsibility for the day to day care, welfare and development of the said children, whilst the children are in their care.
That the children live with the wife.
That the husband have contact with the said children as follows:
(a)each weekend from after school Friday until 6.00 p.m. Saturday;
(b)each Tuesday from after school until 6.00 p.m.;
(c)by telephone every Monday and Thursday between 6.30 p.m. and 7.00 p.m. ;
(d)for one week during each of the shorter school holidays as agreed between the parties, but failing agreement from the first Saturday of each holiday period;
(e)for two periods each of one week’s duration during the Christmas 2004/2005 school holidays at times agreed between the parties. In the absence of agreement from 2.00 p.m. Christmas Day and 10.00 a.m. the second Saturday in January 2005;
(f)commencing at Easter 2005 for one half of the school holidays as agreed between the parties, but failing agreement the first half of the holiday period in odd numbered years and the second half of the holiday period in even numbered years;
(g)commencing at the 2005/2006 Christmas holidays, from 6.00 p.m. on Christmas Eve to 4.00 p.m. on Christmas Day 2005 and from 4.00 p.m. on Christmas Day to 4.00 p.m. on Boxing Day in alternate years commencing in 2006, alternating annually thereafter;
(h)commencing in 2004 on each of the children’s’ birthdays in alternate years from after school on the birthday to the start of school the next day;
(i)commencing in 2005 on the day following each of the children’s’ birthdays in alternate years from after school to the start of school the next day;
(j)from 6.00 p.m. on the Saturday immediately preceding Fathers Day until 6.00 p.m. Fathers Day; and
(k)at other times as agreed between the parties.
In the event that the husband is not required to work on weekends, order 13(a) is suspended so that the husband will have contact to the children each alternate weekend, from after school Friday until 6.00 p.m. Sunday.
The husband is restrained from consuming alcohol during contact or for 12 hours preceding it.
The husband is restrained from saying anything to the children or in the children’s presence or hearing derogatory of the wife or members of her family.
The husband is restrained from physically disciplining the children in the sense of using corporal punishment.
The husband shall make such arrangements with his employer as are necessary to ensure that during school holiday contact he is substantially available for contact.
If contact occurs on a day adjacent to a public holiday, contact shall be extended to include the public holiday. If the public holiday is a Friday the contact shall start at the usual time on the Thursday and if it is a Monday shall conclude at the usual time on the Monday.
After school holidays, weekend contact shall resume on the first weekend after school has resumed if the husband has had the care of the children during the first half of the holidays AND on the second weekend if he has had the care of the children during the second half of the holidays.
That each of the parties be entitled to obtain directly from any school attended by the children or from any health or welfare professional or other professional attended by the children, copies of any reports, notices or other relevant verbal or written advice affecting the education, health and welfare of the children and for this purpose each of the parties shall immediately notify the other of the names and contact details of any relevant education, health or welfare professional and keep the other party so informed.
Unless these orders provide differently school holiday contact:
(a)SHALL commence at 10.00 a.m.;
(b)SHALL conclude at 4.00 p.m.;
(c)WILL BE calculated from the day after the last day of school until and including the day immediately before school resumes;
In the event that the children are in the husbands care on a weekend that includes mothers day, contact shall end at 6.00 p.m. on the Saturday immediately beforehand.
Midweek and weekend contact is suspended during school holidays.
Unless otherwise provided in these orders the husband shall collect the children from the wife’s residence at the start of contact.
Unless otherwise provided in these orders the wife shall collect the children from the husband’s residence at the end of contact.
That pursuant to section 65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure "A" and these particulars are included in these.
That all exhibits tendered in these proceedings be returned at the expiration of one calender month unless an appeal is lodged.
That the solicitor who issued any subpoenas collects that subpoenaed material and returns it to the owner within seven (7) days.
All outstanding applications are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM2934 of 2003
| J R |
Applicant
And
| E R |
Respondent
REASONS FOR JUDGMENT
The proceedings
These are proceedings for the adjustment of property and parenting orders. The parenting orders concern residence and contact to the parties’ two children D J R born 1995 and D H R born 2000 (“the children”).
The applications
J A R (“the wife”) started the proceedings when she filed an application for final orders on 4 July 2003 in the Family Court of Australia at Sydney. Those proceedings were transferred to the Federal Magistrates Court on the 17 July 2003. Later, on 1 March 2004 the wife filed an amended application. During the hearing her counsel submitted a minute of order[1] that sets out the order sought at trial. The orders sought by the wife are set out below:
[1] Exhibit A
1.That the children of the marriage, D J R and D H R ("the children") reside with the wife.
2.That the parties have the joint responsibility, in consultation with each other, for making decisions which affect the children's long term care, welfare and development.
3.That each party have the sole responsibility for making decisions which affect the children's day to day care, welfare and development during those periods when they are in their respective care.
4.That the children exercise contact with the husband as follows:
4.1 each alternate weekend from 9.00am on Saturday to 6.00pm on Sunday;
4.2 otherwise by arrangement between the parties;
4.3 2 hours on each of the children's birthdays and Father's Day from 11am to 1pm;
4.4 telephone contact every Monday and Thursday between 6.30pm and 7pm.
5.That the contact exercised by the husband pursuant to paragraph 4 be conditional upon:
5.1the husband's care of the children being supervised by either of D G or M J G present at his home during the hours of contact;
5.2the husband not consuming alcohol during periods of contact with the children, for 12 hours before such periods of contact, or otherwise in the presence of the children;
5.3the husband not physically disciplining the children in the sense of using corporal punishment;
5.4the husband not doing or saying anything to the children or in the children's presence or hearing derogatory of the wife or detrimental to the relationship the children have with each party and the relationship the children have with each party's family members and family friends;
5.5school reports to be given to the father and he be notified of parent/teacher interviews and notices of school functions;
5.6that other than for the purposes of collecting or returning the children the husband is restrained from entering the home.
6.That an order for property settlement be made in terms of paragraphs 6.1 – 6.10:
6.1 That as against the husband the wife is the sole owner of the property known as the Brighton Le Sands property (“the home”).
6.2 That in accordance with Section 90MT(1)(a) of the Family Law Act 1975, whenever a splittable payment becomes payable to the wife from her Accumulation Interest in the Qantas Superannuation Fund, the husband be entitled to a base amount in the sum of $50,000 and there be a corresponding reduction in the entitlement the wife would have had but for this part of the Order.
6.3 That within 60 days of the date of the making of this Order, the wife pay to the husband, or as he may direct in writing, the sum of $17,568.
6.4 That simultaneously with the payment from the wife to the husband referred to at paragraph 6.3, the husband hand to the solicitors for the wife a withdrawal of the Caveat in registrable form.
6.5 That the wife indemnify and keep indemnified the husband against any liability of any nature which the husband has at any time arising in any way in respect of the Commonwealth Bank Home Loan in the joint names of the parties and secured against the title of the home and do all acts and things and sign all documents necessary to cause the husband to be released from the home loan.
6.6 That except as any part of this Order provides to the contrary, as against the husband, the wife is solely entitled to and the husband has no interest in:
6.6.1superannuation entitlements in the wife's name;
6.6.2motor vehicles registered in the wife’s name;
6.6.3any interest the wife has in the estate of her mother, the late G G V;
6.6.4all other property and chattels of whatsoever nature and kind in the name, possession or ownership of the wife, including but not limited to balances standing to the credit of the wife in financial institutions as at the date of the making this Order.
6.7 That except as any part of this Order provides to the contrary, as against the wife, the husband is solely entitled to and the wife has no interest in:
6.7.1all superannuation entitlements in the husband’s name;
6.7.2all moneys received by the husband from his worker's compensation claim;
6.7.3all other property and chattels of whatsoever nature and kind in the name, possession or ownership of the husband, including but not limited to balances standing to the credit of the husband in financial institutions as at the date of the making of this Order.
6.8 That the husband indemnify the wife, and keep the wife indemnified in respect of all liabilities in his name, including any loans made to the parties by members of his family.
6.9 That the wife indemnify the husband, and keep the husband indemnified in respect of all liabilities in her name, including any loans made to the parties by members of her family.
6.10 That, except as any part of this order provides to the contrary, the husband and wife both mutually release the other in respect of any actions, claims, suits, demands, and debts as against the other.
7.That the husband pay the wife’s costs of and incidental to these proceedings.
E A R (“the husband”) relied on his amended response filed 20 February 2004. The orders sought by the husband are set out below:
1. That the children of the marriage D J R born 1995 and D H R born 2000 alternate residence with the husband and wife on a weekly basis OR IN THE ALTERNATIVE that the children of the marriage, D J R born 1995 and D H R born 2000 alternate residence with the husband and wife on a fortnightly basis.
2. That the children reside in the family home at the Brighton-le-Sands property. The father and the mother shall reside with the children in the family home during the weeks the children are to reside with that party. The change-over between the mother and the father shall be between 6.00 pm and 7.00 pm each Saturday, OR IN THE ALERNATIVE: each other Saturday.
3. Contact with the non-resident parent of that week or fortnight to be as agreed between the parties, in addition to that set out below.
4. That in the event that Mother's Day falls during a period the father would usually reside with the children the mother shall continue to reside with the children until 6.00 pm on the Sunday.
5. That in the event that Father's Day falls during a period the mother would usually reside with the children the father shall continue to reside with the children until 6.00 pm on the Sunday.
6. That in the event that the birthday of a parent falls during a period when that parent does not reside with the children, the non-resident parent shall have contact as follows: on days the children have school, commencing from the conclusion of school until 7.00 pm; on days the children do not have school, commencing at 9.00 am and concluding at 6.00 pm.
7. On the occasion of the children's birthdays, the non-resident parent shall have contact with the children as follows: on days the children have school, commencing from the conclusion of school until 7.00 pm; on days the children do not have school, commencing at 9.00 am and concluding at 6.00 pm.
8. The non-resident parent shall have unlimited telephone contact.
9. Neither parent is to remove the children from the state of New South Wales without the consent of the other parent.
10. The children are not to be left in the care of either C H or T H or L T or F V.
11. The children shall not reside in the same residence or travel in the same motor vehicle as their maternal grandfather, P V.
12. Neither party is to denigrate the other party in the company of the children.
13. The children shall attend a local Catholic Primary School at Brighton-le-Sands until the completion of year 4, and shall attend a catholic boy’s school in Sydney’s Eastern suburbs from year 5.
14. The child D J R to continue his piano tuition until the age of 13 years.
15. The child D H R to have piano tuition between the ages of 5 years and 13 years.
16. The parties bear equally the costs of the children's musical lessons and sports fees and uniforms
16. Neither party to administer corporal punishment to the children.
17. Either party shall give the other party the first right of refusal should the children need to be cared for.
18. Should the wife attempt to have the children reside with any other person, the children shall from that time reside with the husband.
19. Neither party shall change the names of the children.
13. Within sixty (60) days of the making of these orders, the wife shall transfer to the husband all her right title and interest in the property situated at and known the Brighton-le-Sands property.
14. Simultaneously with the wife delivering to the husband the signed transfer pursuant to order 1, the husband shall do all such things and execute all such documents as may be necessary to cause the existing mortgage over the home to be repaid in full.
15. Simultaneously with the transfer in order 13 the husband shall pay to the wife the sum of $174,235.50.
16. Within 14 days of the date of these orders the wife shall deliver to the husband the following items that remain in her possession:
- the husband's jewellery;
- two wooden masks;
- telephone answering machine;
- cordless phone;
16. That each party otherwise retain all other real and personal property in their respective ownership, possession and control at the date of these orders, including:
(a) In the case of the husband:
(i) superannuation
(ii) household furniture, furnishings and effects in his possession
(iii) all bank accounts currently in the name of the husband.
(b) In the case of the wife:
(i) superannuation
(ii) Mitsubishi Magna registered VIZ 542
(iii) shares in Qantas and IAG.
(iv) antique furniture, household furniture, furnishings, effects and personal possessions currently in the wife's possession.
(v) all bank accounts currently in the name of the wife.
17. Each party will be liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
18. The wife pay the husband's legal costs of these proceedings.
Both parties tendered documents that became exhibits.
The evidence
The applicant wife relied upon the following evidence:
·Her affidavit sworn 21 February 2004, her financial statement sworn 20 February 2004 and her oral testimony;
·Affidavit of C H sworn 20 February 2004 and her oral testimony;
·Affidavit of T H sworn 20 February 2004 and his oral testimony;
·Affidavit of A V sworn 20 February 2004;
·Affidavit of T P sworn 23 January 2004. As agreement was reached in relation to the valuation of superannuation, this witnesses’ evidence did not require adjudication; and
·Affidavit of Greg O’Connor sworn 18 February 2004 and his oral testimony.
The respondent husband relied upon the following evidence:
·His affidavit sworn 20 February 2004, his financial statement sworn 19 February 2004, his affidavit of 16 July 2003 and 22 July 2003 and his oral testimony;
·Affidavits of D G sworn 15 July 2003 and 1 March 2004 and her oral testimony;
·Affidavit of T M sworn 27 February 2004. This witness was not required for cross-examination
·Affidavit of C R sworn on 1 March 2004. This witness was not required for cross-examination
·Affidavit of Alan Steege sworn 19 February 2004 and his oral testimony.
The issues
The principal issues raised in these proceedings are these:
·The effect on the children of reducing the time they spend with their mother and increasing the time they spend with their father.
·The parties’ capacity to cooperatively implement an effective shared residence living arrangement for the children.
·The nature and extent of the husband’s alcohol abuse.
·The parties’ attitudes to the responsibilities of parenting.
·The effect on the wife and children of the husband’s angry outbursts.
·The significance of the wife’s greater initial contribution.
·The valuation of the former matrimonial home.
·The treatment of monies the husband lost to gambling.
·Whether the husband gave full and frank disclosure.
·Whether the husband paid monies received after separation to his brother-in-law in repayment of a long-standing loan.
Short History
The husband was born in 1954 and is thus 49 years old.
The wife was born in 1956 and is thus 47 years old.
The parties’ married on 10 June 1989. They have the two children to whom I have already made reference.
The parties separated on 6 June 2003.
On 24 July 2003 this court made interim parenting and other orders. Excluding procedural orders these orders are set out below:
1. That the applicant wife J A R have exclusive use and occupation of the Brighton-Le-Sands property and that the respondent husband E A R provide vacant possession of “the property” to the wife by 12 noon 27 July 2003.
2.That other than for the purpose of collecting or returning “the children” D J R born 1995 and D H R born 2000 from contact, the husband is restrained from entering the property after
order 1 becomes operative.
3.That the children live with the wife.
4.That the husband have contact with the children as follows:
(a) To D H R from 8.00 am until 6.00 pm Tuesday;
(b) To D J R from after school Tuesday until 6.00 pm Tuesday;
(c) To both children after school/daycare on those afternoons when D J R has sports training until the end of sports training;
(d) In the event that sports training is cancelled that week and/or between seasons in addition to Tuesday contact for one afternoon after school/daycare until 6.00 pm;
(e) Each Saturday from 10.00 am until 6.30 pm;
(f) For five (5) days during the first half of the September school holidays provided that the husband’s care of the children is facilitated by a responsible adult present at his home from 7.00 pm until 7.00 am each night; and
(g) By telephone at all reasonable times.
5.That the husband’s contact is conditional upon:
(a) That he does not consume alcohol within twelve hours of the start of contact or during it;
(b) That he does not physically discipline the children, in the sense of using corporal punishment.
6.The husband shall give the wife no less than 14 days written notice of the identity of the adult/adults who will be present overnight during school holiday contact. If he fails to do so school holiday contact shall be exercised during the day, starting at 8.00am if the wife must attend work or 9.00am if she is available until that time and ending at 6.00pm daily.
7.School holidays start on the Saturday after the last day of school term.
8.Unless the parties otherwise agree for the purpose of contact changeover, the husband shall collect both children from the wife’s home on Tuesday morning, and take D J R straight to school, he shall collect both children from after school/day care and return them to the wife after the end of mid week contact. The wife shall deliver the children to the husband on Saturday mornings and the husband shall drop them back to the wife’s home at the end of contact.
9.Subject to any agreement to the contrary that at the same time the husband vacates the home he may remove from it those items identified in annexure A to the wife’s affidavit sworn 3 July 2003, including but not limited to:
(a) The new PC and attachments;
(b) The hi fi equipment and CD’s;
(c) His personal belongings;
(d) A selection of furniture;
(e) A selection of linen and kitchen goods.
10.That the parties shall attend a post separation parenting program as arranged for them by the Director of PDR services of the Federal Magistrates Service. In the event the program includes services for children whose parents have separated and attendance at a children’s program is recommended by the program coordinator, the parties are to ensure that the children attend such program.
Chronology of events
At the commencement of cohabitation, the wife worked full time with QANTAS Airways. Three years prior to cohabitation she purchased the Randwick property for $87,000. The purchase was funded by a gift of $50,000 from her parents and a mortgage from the Commonwealth Bank in the sum of $37,000. At the same time her parents gave her an additional $10,000, which was used for other expenses associated with the purchase. There is no evidence of the value of the unit at the commencement of cohabitation. The mortgage had increased to $39,145. It is likely that the home unit had increased in value during the period. The wife’s mother died on 17 December 1987 as a result of which the wife acquired a future interest in her mother’s estate. As well, the wife had a Telstar motor vehicle which she believes was worth approximately $12,000, the contents of her home unit (including antique dining and bedroom suites) and superannuation of $11,307. Other than the mortgage at the commencement of cohabitation the wife did not have any liabilities.
When the parties married, the wife’s flatmate left her home unit and the husband moved into it. From that time they each contributed from their salaries to mortgage repayments and household expenses.
At the commencement of cohabitation the husband was employed by the Department of Social Security as a sickness benefit review – field assessor. He had the insurance proceeds for the loss of his car amounting to about $12,000, superannuation of about $10,000 and a selection of furniture and personal belongings worth about $4,000. In his affidavit[2] the husband deposes “I had no debts or liabilities.” During cross-examination, when answering questions concerning the disposition of compensation monies received on 23 June 2003 the husband claimed that at the commencement of cohabitation he had a debt to this brother in law. He said that a few years earlier, his brother in law advanced him approximately $30,000, which the husband used to travel around the world. The brother in law did not give evidence and no documents were provided to prove the advance or the husband’s receipt of $30,000. His brother in laws wife gave evidence that she understood that her husband had loaned monies to the husband years ago whilst he was travelling and that monies recently paid by the husband to her husband concerned this advance. As will become apparent I am not satisfied that at the commencement of cohabitation the husband had an outstanding debt to his brother in law.
[2] Paragraph 37
In mid 1992 the parties renovated the kitchen and bathroom in the unit. On 3 April 1992 the Commonwealth Bank loaned the wife $10,000 which was put towards the cost of the renovations. The total cost of the renovations was approximately $23,400. The balance needed of approximately $13,400 came from their joint savings.
In 1994, the Randwick unit was sold for $214,000. The wife managed the sale. At settlement the wife paid out the CBA mortgage in the sum of $32,851.22. On the same day as the wife sold the Randwick unit, the parties purchased the Brighton Le Sands property in her sole name. Its purchase price was $310,000. The wife borrowed $60,000 in the wife’s sole name from the Commonwealth Bank[3]. At the same time she borrowed $120,000 from her mother’s estate, which advance is secured by a mortgage upon the property. Interest is payable on the loan at 7 per cent per annum subject to adjustment as notified by the mortgagee to the mortgagor. The term of the mortgage expires upon either “The earliest of the death of P V, the death of J A R should she die without issue, or demand by the mortgagee”.
[3] Annexure H wife’s affidavit
On 30 October 1994 the wife’s aunt and uncle gave the wife $25,000, which she used for joint matrimonial purposes, partly associated with the purchase of the home. This was the first of a series of gifts they made during the marriage.
During 1994 and 1995 the parties renovated the bathroom and completed other minor improvements for which they paid $12,921.50. As with the earlier renovations to the unit, these renovations were completed by tradesmen. It appears that the monies used in the renovations came from the parties’ savings.
The wife commenced paid maternity leave on 6 February 1995, the day D J R was born. When her maternity leave ran out on 6 August 1995, she took long service leave until 6 February 1996.
On 1 December 1995 the wife split the Commonwealth Bank home loan into a variable rate portion and a fixed rate. The amount secured by the variable rate portion was $28,397.45 and the fixed rate portion was $30,000.
On 29 February 1996 the husband was retrenched from his position at which time he redeemed his superannuation and long service leave. His superannuation, long service leave and redundancy package of approximately $65,000 was paid to him in early 1996. Of this $23,054.30 was paid into his Westpac savings account on 5 March 1996[4] and $41,907.67 into the same account on 4 April 1996. The husband paid $15,000 onto the CSB mortgage and used about $15,300 to purchase a Mazda 626 sedan. This appears to be withdrawn on 15 April 1996 in a composite withdrawal of $30,500. The balance was used towards the costs of renovating the kitchen, paying out a QCU loan, David Jones and visa credit cards and for a family holiday and gambling. As is often the case it is difficult to determine precisely how much was spent gambling. In his written evidence and evidence in chief the husband failed to disclose that any of this money was spent gambling. During cross examination, having been shown his Westpac banking records covering this period, he agreed that he had been gambling. The wife denied his claim that large withdrawals related to money paid to her for the renovations. However she also said that he had only received $23,054.30 total pay out. During the hearing she conceded the larger amount and expenditure on matrimonial purposes greater than $23,000. She also agreed that the husband paid for the family holiday. Thus her contention that about $34,000 is unaccounted for and hence spent gambling is an overstatement of potential gambling losses. The point of this is that to an extent both parties recall and testimony concerning this period and the disposition of the $65,000 is somewhat unreliable. Close examination of exhibit J reveals that in the period 5 March 1996 until 14 May 1996 the husband withdrew $5360 in transactions having these same features:
a)Multiple withdrawals on the same day;
b)Withdrawals at Brighton Le Sands RSL Club or Canterbury Hurlstone Park RSL Club.
[4] Exhibit J
There are numerous other small transactions that may have been spent gambling or on matrimonial expenses. Although the court would usually infer that all income received was spent of matrimonial purposes (See Parshen (1996) FLC 92-720) because the husband was clearly on a gambling binge at this time, I decline to draw the inference in relation to the balance in the Westpac account. It is likely that in addition to the $5360 some, not all, of the smaller withdrawals were wasted gambling. So too part of the $8,377.28 remaining on 14 May 1996, which is when the records cease.
After he was made redundant, the husband worked between March 1996 and August 1996 as a packer in a supermarket. In July 1996 he obtained work as a coach driver/porter at a Sydney hotel. Thereafter he has held numerous full time positions at or with entities associated with Sydney International Airport. In addition, from October 1991 until approximately 2001 he did regular part time evening work as an usher.
In about March 1999 the parties renegotiated the variable rate portion of the home loan. At that time the balance outstanding was about $18,600. On the re-finance, the parties increased the loan to approximately $70,000. I accept the wife’s evidence that the additional funds were used to repay two credit union loans of $21,302.97 (car loan) and $3,984.87 (line of credit), $6,000 to the Commonwealth Bank discharging an access loan and four credit cards in the husband’s name. In total, the husband’s credit card debts amounted to approximately $13,000. He contends that this amount is exaggerated and that his credit cards debts were no more that about $3,800. However there are a series of exhibits that corroborate the wife’s evidence concerning the husband’s indebtedness at about this time and his inability to pay even the minimum monthly payments. Exhibit K reveals that the husband had a DSS credit card in his sole name with a credit limit of $2,000 and State Bank credit card with a $3,000 credit limit. In late 1997 he applied to increase the DSS credit limit to $5,000 which application was declined because the cards were at their limit and payments were not being made. The husband conceded that he had a St George visa card with a credit limit of $2,000 as well and could not recall what, if anything was outstanding. He appeared unsure whether a St George personal loan was paid out in 1994. The husband has always enjoyed gambling and agreed that in at least 1996, 1999 and then in the later part of the marriage he had been binge gambling. Taken together all of these factors persuade me that the wife’s recollection of the husband’s indebtedness at this time is more accurate than his and that the amount needed to pay out his credit cards and loans is as she contends. About $4,500 was spent on guttering and fencing at the home.
In order to minimise the risk that the husband would waste more money gambling the parties cut up his credit cards and agreed that his wages less $100 per fortnight , would be paid into the wife’s account. This started in about March 1999 and continued until shortly after separation. In addition to the fortnightly $100 the husband also retained all income he earned from the Sydney Entertainment Centre. It is the wife’s contention that between March 1999 and 2002 at least 2 or 3 times each month the husband asked her for money and that on each occasion she gave him about $200. The husband agrees that he occasionally asked for extra money but disagrees that this was anywhere nearly as extensive as the wife claims. He says that on about 2 or 3 occasions only she gave him $200. In this instance the wife substantially overstated the amount paid to the husband, while to a smaller extent he probably understated the money she gave him. Having taken tight control of the parties finances I do not accept that the wife would have routinely returned money to the husband that they could ill afford to waste.
On 5 July 1999 the wife’s father gave her $10,000. At the same time he made equivalent gifts to each of her siblings. The wife used the money for general household and family expenses.
Between February and August 2000 the wife’s father forgave the interest due on the private mortgage secured over the home. The payments due but forgiven during that period amounted to $1,386.
Shortly prior to D H R’s birth on 3 March 2000 the wife stopped work. On 24 January 2000 she commenced annual leave which continued until she started paid maternity leave on 28 February 2000. Using a combination of maternity leave, long service leave, annual leave and other entitlements she was able to take paid leave until 6 January 2001.
From 2000 the husband collected D J R from school every day, except once.
When the parties met the husband used alcohol, at times binge drinking. His consumption of alcohol and binge drinking was a source of disagreement throughout their marriage. In about August 2001 the husband suffered a workplace injury. He suffered a second workplace injury in September 2001. Following his injuries, the husband was placed on sick leave before returning to work at substantially reduced hours. By late December 2001 he was working twenty hours per week undertaking restricted duties. After these injuries, it appears that the husband’s consumption of alcohol increased significantly.
In September 2002 the husband admitted himself to hospital at Burwood to undergo in-patient alcohol rehabilitation and help with managing his anger. After his discharge the husband did not use alcohol for many months. Sadly, by Easter 2003 he was again drinking to excess and that day consumed about half a bottle of scotch. The parties then attended counselling and spoke with their family doctor, Dr M C about their situation.
On 29 May 2003 the husband re-admitted himself to hospital for assistance with anger management and alcohol abuse. Whilst the husband was in hospital the wife wrote to him telling him that their marriage was over. At the same time she changed the locks on the home so that he could not return to it. The husband refused to accept that the marriage was over or that the wife should have exclusive use of the home. He took day leave on 14 June 2003 and returned to the home. Although the wife asked him to leave their home he refused her request. The wife called the police who declined to intervene, whereupon the wife and children left the home and remained away overnight. The husband then returned to hospital and finally discharged himself on 18 June 2003. Upon his discharge he moved in with his sister and her family.
On 21 June 2003 the parties and children attended D J R’s soccer game. Afterwards the husband returned to the home and once again declined the wife’s request that he leave. She and the children stayed at a friend’s home overnight. The following day the wife returned to the home after the husband had left it. The same situation occurred on 28 June 2003 and once again the wife telephoned the police who declined to intervene. Later in the evening the parties agreed to try and resume their marriage. They resumed cohabitation at the family home and lived together until 30 June 2003.
On 30 June 2003 the wife consulted her lawyers and informed the husband in writing that she wanted him to leave the home. Whilst she was away from the home the husband returned and changed the locks to the front door. The wife understood that she could not gain entry to the home. Over the next few days there was effectively a stand off, in the sense that the wife kept D J R and D H R away from school and preschool and brought forward a planned holiday to Queensland. The parties had planned that the children would holiday with her aunt and uncle during the July 2003 school holidays. The wife sent the children about five days earlier than planned.
On 10 July 2003 the husband demanded that the wife return the children to Sydney. True to his word the husband contacted the police at Tewantin and alleged that the children were at risk of physical harm from C H . Police officers attended the aunt and uncle’s home that afternoon, but declined to take further action.
On 13 July 2003 the wife joined the children at her aunt and uncle’s home before returning with them to Sydney on 16 July 2003.
Following the making of the interim orders, the wife and children returned to the family home. The husband vacated the home and has lived with his sister ever since.
Although he made no mention of it in his affidavit, on 23 June 2003 the husband received $36,000 compensation for one of his 2001 injuries. He deposited this money into his QANTAS staff credit union account[5]. By 14 July 2003 he had withdrawn all but $300 from his account. On 8 October 2003 he received a further amount of $2,518.65 compensation money. By 20 October 2003 he had spent all but $3.49[6]. None of this money was paid to the wife. The wife contends that the husband has gambled and lost the overwhelming majority of the compensation monies. The husband claims that on 8 July 2003 he paid his brother in law M G $23,000 being partial repayment of a $30,000 debt he says he has owed since 1984. On 8 July 2003, in addition to the transactions referred to later, the husband withdrew $26,000 from his account. From this he said he gave his brother in law $23,000 as well as $2,000 withdrawn at St George Novotel on 1 July 2003, $1,000 withdrawn 3 July 2003, $1,000 withdrawn 4 July 2003, $3,000 withdrawn at South Sydney Juniors and between $700 -$1,000 in a hotel in Padstow. He contends that he has also paid his solicitors $10,000. Thus from a total of $38,000 the husband claims to have paid out $44,000.
[5] Exhibit D
[6] Exhibit D
Eventually the husband conceded that he also withdrew money for gambling. Examination of his Qantas staff credit union account reveals a similar pattern of numerous withdrawals on the same day from places where there are poker machines, for example Novotel Brighton Le Sands, Rockdale RSL and Club Menai. On 30 June 2003 he made 4 cash withdrawals totalling $1000, on 1 July 2003 he withdrew $1000, on 2 July 2003 he withdrew $1000, the next day another $1000, another $1000 on 4 July 2003, 4 withdrawals totalling $700 on 7 July 2003, 3 totalling $2700 on 8 July 2003, $1000 on 14 July 2003, 2 totalling $260 on 15 July 2003 at which time his account had a closing balance of $40.17. All of these withdrawals were made at places that have poker machines. I am satisfied that all of this money was lost gambling, a total of $8400.
It is also highly likely that the husband has lost most, if not all of the remaining compensation money. Whilst the pattern of loss is clear I am unable to precisely determine the full extent of the losses. The husband contended that this money was his to use as he determined. This is true to an extent but ignores the fact that the wife has used all of her income post separation to support the children and home with little help from the husband. He had a substantial fund available that could have been used to contribute to the children’s expenses, thus the waste is a factor that I will take into account.
Since separation the husband made mortgage payments totalling $1,965.75. He has paid child support as assessed by the Child Support Agency, in the sum of $29 per week. The wife has met all other expenses for the home and children.
Relevant law
The approach to the determination of an application under section 79 is well established by authority (In the Marriage of Lee Steere and LeeSteere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage of Clauson (1995) FLC 92-595 the process ordinarily involves a multiple part procedure. Firstly, identifying the property, liabilities and financial resources of the parties at the time of the hearing. Secondly, evaluating the contributions made by the parties as defined in s.79(4)(a) to (c) and the effect of any proposed order upon the earning capacity of either party. I must then evaluate the matters contained in s.75(2) insofar as they are relevant, any other order made under the Act affecting a party or child and any child support under the Child Support (Assessment) Act 1989 that a party to the marriage is to provide, or might be liable to provide in the future, for a child to the marriage.
In determining what order the court should make under s.79, the court must be satisfied in all the circumstances that it is just and equitable to do so [s.79(2)]. It is the justice and equity of the actual orders that the court must consider. Russell v Russell (1999) FLC 92-877.
In deciding the residence and contact arrangements that will promote the best interests of a particular child, the court must consider the various matters set out in s.68F(2). Its sub-sections comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed: B and B: Family Law Reform Act (1995) (1997) FLC 92-775. Section 60B(2)(b) has particular relevance in these proceedings. It provides, in effect, that children have a right of contact, on a regular basis, with both their parents and other people significant to their care, welfare and development.
Subparagraph (b) refers to the right of contact on a regular basis. Fundamentally, it emphasises the desirability of contact. Regular contact carries with it a clear understanding that contact should be as frequent as is appropriate and by the various means which are considered to be in the children’s best interests.
Although not binding authority the Australian pre-Family Law Reform Act cases give useful guidance to those factual matters that a court adjudicating a 50 - 50 shared parenting application pursuant to the current legislation should consider. There is also a core consistency found between the English and Canadian authorities. These countries share a similar jurisprudence in the adjudication of private family law disputes with Australia. This commonality is apparent in a number of respects. All jurisdictions implement a paramountcy principle. Although its statutory formulation may differ slightly, the essential premise is the same. That is the best interest of the particular child is the paramount or primary consideration. There are no presumptions that override the court's obligation to promote the child's best interests. Individual justice is fundamental and hence the exercise of judicial discretion critical. Nowhere is it more apparent that Australian courts exercising jurisdiction under the Family Law Act can look to Canada and England for guidance in the interpretation and application of Australian law than in B and B: Family Law Reform Act (1997) FLC 92-755. In that matter the Full Court of the Family Court of Australia addressed the impact of the Family Law Reform Act 1995 upon the principles to be applied in parenting cases under Part VII of the Family Law Act 1975. In doing so they reviewed the English and Canadian authorities.
Although there are consistencies in the applicable family laws between these countries there are differences that cannot be overlooked. The English law gives the person who has a residence order the authority to manage the child’s daily life. In Australia that arises pursuant to a specific issues order. An order for residence will do no more than determine with whom a child will live. The English law also places greater emphasis on minimising judicial intervention in parenting cases. As John Dewar has explained: “there is an explicit direction to the courts [in the Children Act 1989 (UK) s.1(5)] that they should only make an order if it can be shown that to do so would be better for the child than making no order at all (the “presumption of no order”).”[7] One major respect in which the Canadian law differs from the Australian and English law is that the language of custody, guardianship and access have not been replaced with that of parental responsibility, residence and contact as they have in both the Children’s Law Act 1989 (UK) the Family Law Reform Act 1995 (Cth) (though the concepts associated with these terms in Australian law are, as suggested above, not identical to the English concepts).[8] In Canada, decision-making authority is part and parcel of any order for custody. As noted above, in Australia, an order for residence (physical custody) will do no more than determine with whom a child will live. Furthermore, the Canadian legislation requires its courts to maximise the time a child spends with both its parents.[9] It is not surprising that the Canadian case law is replete with judicial analysis of factual indicia that work in favour or against equal shared residence orders (joint physical custody). The maximisation provision is, of course, not absolute. It will be restricted to the extent that it conflicts with the best interests of the child.[10]
[7] John Dewar, “The Family Law Reform Act 1995 (Cth) and the Children Act 1989 (UK) Compared‑Twins or Distant Cousins?” (1986) Australian Journal of Family Law 18 at 20.
[8] See Brenda Cossman and Roxanne Mykitiuk, “Reforming Child Custody and Access Law in Canada: A Discussion Paper” Revue Canadienne de Droit Familial Vol. 15 at 13-78.
[9] Divorce Act s16(10). It is interesting to note that in B and B (Family Law Reform Act 1995) (1997) FLC 92-755, the Full Court stated (at para. 7.58) that the Canadian maximisation of contact provision has “obvious similarities to the terms of ss. 60B(2)(b) and 68F(2)(d)” of the Family Law Act 1975 (Cth). The Full Court also stated (at para. 9.60 ‑ my emphasis): “In cases where there are no countervailing factors the s.60B principles may be decisive, not only because they are contained in s.60B but because they accord with what is in the best interests of the particular children. Where there are no countervailing factors, the Court may normally be expected to conclude that it is in the best interests of the children to have as much contact with each parent as is practicable. However, to attempt to impose that approach in cases where the best interests of the children may not indicate that conclusion as appropriate is contrary to the legislation and contrary to the long established views of this and other courts which deal daily with the welfare or best interests of children.”
[10] See, for example, Young v. Young [1993] 4 S.C.R. 3 and Madame Justice Lachlin’s judgment in the Supreme Court of Canada case of Gordon v. Goertz (1996) 134 DLR (4th) as cited by the Full Court of the Family Court of Australia in B and B (Family Law Reform Act 1995) (1997) FLC 92-755 at para. 7.67.
Drawing then from the case law the factors that the court should particularly examine in cases where a party seeks orders that share a child's time equally between its parents (or others) include the following:
·The parties’ capacity to communicate on matters relevant to the child's welfare.
·The physical proximity of the two households.
·Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
·The prior history of caring for the child. Have the parties demonstrated that they can implement a 50-50 living arrangement without undermining the child's adjustment?
·Whether the parties agree or disagree on matters relevant to the child's day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
·Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
·Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra curricular activities.
·Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
·Whether or not the parties respect the other party as a parent.
·The child's wishes and the factors that influence those wishes.
·Where siblings live.
·The child’s age.
This list is not exhaustive. It does no more than set out some usual elements that a court will consider to the extent that each may be relevant. It does not usurp the pivotal role of s.65E. Each factor fits comfortably within s.68F(2). Based on other courts experience these factors have be useful in deciding the suitability of a particular set of circumstances for a shared parenting arrangement.
Assets and liabilities as at the date of hearing
The parties reached agreement as to the value of some assets and the quantum of some liabilities.
I find the assets, liabilities and financial resources of the parties as at the date of hearing are as identified in the following table:
| Assets as at the date of hearing | $ |
| The Brighton-Le-Sands property | 775,000 |
| Husbands interest in the Moorebank property (Agreed) | 46,000 |
| Wife’s motor vehicle (Agreed) | 11,000 |
| 5,211 QANTAS shares (W) (Agreed) | 5,211 |
| IAG shares (W) (Agreed) | 6,098 |
| Holden Gemini (H) (Agreed) | 700 |
| Contents former matrimonial home (Agreed) | 10,000 |
| Paid legal fees (H) | 10,000 |
| Add back balance husband’s compensation funds | 28,000 |
| TOTAL NON SUPERANNUATION ASSETS | 892,009 |
| Superannuation | |
| Husband’s superannuation (Agreed) | 23,000 |
| QANTAS Superannuation Plan (W) (Agreed) | 206,912 |
| TOTAL SUPERANNUATION ASSETS | 229,912 |
| TOTAL ASSETS | 1,121,921 |
| Liabilities as at date of hearing | |
| Commonwealth Bank mortgage on FMH (J) (Agreed) | 85,818 |
| Mortgage to Wife’s mother’s estate (W) (Agreed) | 120,000 |
| Qantas car loan (W) | 25,227 |
| Qantas personal loan (W) | 4,069 |
| David Jones card (W) | 1,264 |
| Commonwealth Bank Mastercard (W) | 4,000 |
| TOTAL LIABILITIES | 240,378 |
| NET ASSETS | 881,543 |
Both parties’ entire superannuation is preserved until each reaches their applicable preservation age and satisfies the conditions of release (usually permanent retirement from the work force). The values agreed are gross values and do not take into account taxation of the superannuation benefits. Taxes are payable when a superannuation benefit becomes payable. At this time it is not possible to quantify the amount of tax that will be levied. The amount depends on many factors, including maximum benefit limits, pre 1 July 1983 service, age at receiving the benefit, marginal tax rate after retirement to identify but a few. Because of these uncertainties I have no evidence about what any tax liability might be. Thus I do not include any notional tax liability for either party.
The wife claims credit card debts of $5,264. This is made up of $1264 to David Jones and $4000 to Commonwealth Bank Mastercard. During closing addresses the husband’s solicitor challenged their inclusion as a matrimonial liability. However he did not ask the wife any questions about the liability and if he wished to challenge it, needed to do so. In circumstances where she has had the care of the children post separation, inadequate child support from the husband and had at least the David Jones card prior to separation I am satisfied the amounts claimed should be treated as a joint matrimonial liability. Similarly no questions were asked of the wife concerning her Qantas personal loan (for her car) and second personal loan. The car is included as an asset, thus the liability attached to it must be also. In the absence of any challenge to the wife about these loans I am satisfied that they should be included as joint matrimonial liabilities.
I have already found that I do not accept that the husband owed his brother in law $30,000. Thus the payments he has made to his brother in law have been made for some other purpose, apparently unrelated to the marriage. Both parties had a clear obligation to make full and frank disclosure, which means that they are required to disclose all material facts. Black and Kellner (1992) FLC 92-287. I am satisfied that the husband failed to do so, in relation to the money wasted gambling and the receipt and disposition of the compensation money. Applying Black and Kellner to the compensation money, I am satisfied that the entire sum should be treated as a matrimonial asset, albeit a financial contribution made entirely by the husband. Applying Farnell (1996) FLC 92-681 his paid legal fees are added back in, leaving $28,000 which is notionally added back. As I am satisfied that the husband gambled away a significant proportion of the balance and has failed to adequately account for whatever remains, applying Black and Kellner 1992 FLC 92-287 I am satisfied that these funds should be notionally added back. See Townsend (1995) FLC 92-569. Other losses incurred by the husband gambling will be addressed under s.75(2)(o).
Her family has paid the wife’s legal fees. Because matrimonial funds have not been drawn upon in order to do so her paid legal fees are not added back into the asset pool. See Farnell (1996) FLC 92-681.
The wife says that the parties owe the husband’s mother $9000, being the total amount she loaned the wife during the marriage. She says that over the years the husband’s mother assisted with small sums, usually $50-$100 which she used to pay bills. I accept the husband’s evidence that he knew nothing about these transactions. Although the wife describes the advances as loans, there is no evidence that the husband’s mother expected these advances to be repaid. The small size of the advances and the fact that she makes no demand for repayment in her affidavit satisfies me that these advances were gifts and that there is no debt repayable to the husband’s mother. Thus although during submissions the husband’s solicitor agreed that the $9000 would be treated as a joint matrimonial debt, the evidence is insufficient to persuade me that it should be so treated. If I were to treat the $9000 as owing to the husband’s mother, I would order its repayment forthwith, an approach neither party proposes.
The parties do not agree about the value of the former matrimonial home. The description of the property was uncontentious. It has an area of approximately 380 square metres and is zoned residential 2(c) under Rockdale Local Environmental Plan 2000. The land comprises a small regular shaped level allotment that is 12.19 metres by 30.48 metres. Residential 2(c) zoning permits residential flat building. The home is centrally located in a mixed residential/commercial area of Brighton Le Sands, approximately 200 metres from Brighton shopping centre and Botany Bay. The dwelling is an older style single story brick and tile home with a gross floor area of approximately 100 square metres. The home was built approximately 75 years ago and is a typical single story bungalow. Alan Steege describes the improvements thus, “The accommodation incorporates side entry, hallway, three reasonable size bedrooms, front enclosed verandah, reasonable modern tiled bathroom with built in bath, shower over, vanity unit and low down suite, compact size living room, dining alcove, reasonably modern kitchen including double bowl stainless steel sink, gas stove, reasonable quality built in cupboards, adjoining small laundry including stainless steel tub, gas hot water unit, rear acrylic sheet covered porch and attached external toilet including WC. Detached in the rear yard is a single timber framed garage plus small timer cabana. The property incorporates basic fencing, paths and surrounds.”
Both valuers adopted the same general approach in order to determine the property’s current market value. Each examined the property and comparable sales. In relation to specific properties both made allowances for differences in each property and their sale date. Alan Steege also considered the properties development potential. Combined with two adjacent properties, he considered that the subject property has the potential for sale as a development site. As a development site he said the property is worth $900,000. Putting development potential to one side, his opinion is that the property is worth $775,000. During final addresses, the husband’s solicitor indicated that his client abandoned his assertion that the site was worth $900,000. Accordingly, he agreed that the court need not adjudicate the property’s development potential. Hence, the court will focus on the value of the property in the residential real estate market. The point of difference between the valuer’s concerns the properties each relied upon in determining comparable sales, also the allowances for differences in each property and their sale date and local market conditions. Essentially the issue between them is degree of comparability.
On behalf of the husband, Alan Steege provided a report and gave oral evidence. Mr Steege was admitted as an associate member of the Australian Institute of Valuers and Land Economists in 1969 and in 1974 completed a Diploma in Town and Country Planning at the University of Sydney. He is a Fellow of the Australian Property Institute. He has worked for many years as a real estate valuer and his primary field of operation is the St George – Sutherland Shires. Putting to one side potential for amalgamation and redevelopment, a brief record of the more central features of the sales analysed by Mr Steege is set out below. The sales are rearranged in order of price and include comments made on them at the hearing.
·80 Francis Street, Brighton Le Sands sold for $800,000 on 10 November 2003. Francis Street was described as Mr Steege, “Comparable reasonably busy local street”. The home comprised a three bedroom single story brick and tile dwelling on a 449 square metre allotment. At the rear the property is adjacent to parkland. Mr Steege considered this property barely comparable to the subject property, but emphasised that an adjustment needed to be made, inter alia, because it was further away from Botany Bay. Mr O’Connor considered the improvements far superior to the subject property and emphasised that it was in a quieter street, a larger site and the privacy benefits associated with parkland.
·31 Brighton Parade, Brighton Le Sands sold for $800,000 on 15 November 2003. Brighton Street is a quieter street than the street of the Brighton-le-Sands property. Mr Steege described the 1920’s three bedroom brick and tile home as a slightly better house, while Mr O’Connor considered the property far superior. The land area is 393 square metres, thus, a slightly larger site than the subject property. The features that Mr O’Connor said that make this a far superior property are its location in a quieter street and the extension at the rear of the home.
·38 Bruce Street, Brighton Le Sands sold for $775,500 on 27 September 2003. It is a well presented 1920’s brick and tile home on a 375 square metre allotment. Although the house is somewhat superior, overall Mr Steege considered this sale closest in comparability to the subject. Mr O’Connor considered this property vastly superior to the subject property. He said that the prime aspect of the sale was the quality of the house and that Bruce Street is a quiet street, whereas the street on which the Brighton-le-Sands property is, he said, is a link street between busier streets and has considerably greater traffic. Unlike the subject property Bruce Street is not surrounded by home units and does not have a school bus stop outside.
Mr Greg O’Connor provided a report and gave oral evidence as to the value of the property on behalf of the wife. He was admitted as an associate to the Australian Institute of Valuers on 12 September 1979. He holds an unlimited certificate of registration granted by the Office of Real Estate Registration Board of New South Wales. Mr O’Connor has worked as a valuer full time since 1974. As at 17 February 2004 he put the value of the property at $660,000. Set out below are some of the more central features of the sales identified by Mr O’Connor and the comments of both valuers in relation to them.
·A property on the same street as the ‘Brighton-le-Sands property’ sold for $630,000 on 21 September 2003. This is a single story 1920’s brick and terracotta tile two-bedroom semi detached cottage with a single carport at the front. The property has a 7.66 metre frontage and a total land area of 313 square metres. This property is directly opposite the subject property. Because of the smaller land size and the property being a semi detached rather than detached property Mr O’Connor considered that overall the property was inferior. Mr Steege considered the sale outside the range of reasonable comparability and considered that a semi-detached dwelling is not comparable to one that is free standing.
·Another property on the same street as the ‘Brighton-le-Sands property’ sold for $710,000 on 3 June 2003. It comprises an early 1960’s single story red texture brick and cement tiled three-bedroom home with a single carport under the main roof. The property has a 12.19 metre frontage to Bruce Street and comprises 371.6 square metres. Although the land size is virtually identical to the subject property, because it is located on a corner Mr O’Connor considered the land superior. He described the improvements as superior to the subject property and overall ranked the property superior to the subject.
·19 Brighton Parade, Brighton Le Sands sold for $626,000 on 22 February 2003. The improvements comprised a 1920’s brick and terracotta tile three-bedroom home with an old brick single garage at the rear. The home was in average condition and the improvements overall were described by Mr O’Connor as inferior. At 390.2 square metres the land area is only slightly larger than the subject. However because the block had a more regular shape, in the sense that it had greater depth he ranked the land superior. Mr O’Connor said Brighton Parade is a quieter street than Moate Avenue, which enhanced the value of the property. He agreed with Mr Steege that the residential real estate market in Brighton Le Sands had continued to appreciate after February 2003. Mr Steege considered the sale too remote to be considered in terms of comparability.
·51 Crawford Road, Brighton Le Sands sold for $653,000 on 2 October 2003. The land area is 305 square metres with a 9.14 metre frontage. Improvements comprise a 1920’s single story brick and tile two bedrooms dwelling with a single garage. Mr O’Connor considered the location reasonably comparable, land inferior, improvements superior and ranked the property overall slightly inferior.
·90 Crawford Road, Brighton Le Sands sold for $625,000 on 23 September 2003. It comprised a 1920’s single story brick and terracotta tile two bedroom dwelling that had been recently renovated. The land area was considerably larger at 445.9 square metres although only had a 9.14 metre frontage. Mr O’Connor considered the location reasonably comparable, land superior, improvements inferior and ranked the property overall inferior.
None of the properties considered by either valuer had a block of flats next door. They agree that this factor reduces the value of the property on a residential 2(a) sale. Mr Steege said that although he had not mentioned this factor he had taken it into account. The proximity of the home to the adjacent flats makes the home unique compared to the sales considered by both valuers. In these circumstances the best method for determining the properties value is to order its sale. However neither party asked the court to take this course, the husband wanting the home for the children and the wife says she wishes to continue to live there.
As between the two valuers I preferred Mr Stegge’s evidence. This is because he demonstrated a sophisticated knowledge of the local market and the area. I accept his evidence, formed after years of local observation, that Mr O’Connor overstated the volume of traffic on the street of the ‘Brighton-le-Sands property’ and thus Mr O’Connor’s use of this factor to reduce the value of the property compared to sales in Bruce Street was erroneous. I also consider that Mr O’Connor failed to adequately account for the difference in land size and the fact that the first house on the same street as the Brighton Le Sands property is a semi detached cottage. I agree with Mr Stegge that $30,000 difference between the selling price of this house on 21 September 2003 and the subject property in March 2004, given these differences is a significant under value of the subject property. The wife’s counsel agreed that real estate valuer’s routinely concede that there is a 5% margin on value. Yet I asked Mr O’Connor whether he agreed there is a band width for value of the subject property which proposition he refuted. Mr O’Connor did not consider the subject properties potential for rezoning until after Mr Stegge raised this issue. Given the properties location I consider this is a significant oversight on his part.
There were also aspects of Mr Stegge’s evidence that caused me concern. Within moments of starting cross examination Mr Stegge was openly hostile to the wife’s counsel. Counsel unsettled Mr Stegge by pointing out a number of significant typographical errors, implying that his work was fairly amateurish. Mr Stegge bristled with indignation and from that point his tone and demeanour towards counsel was regrettable. Although irritated Mr Stegge did make appropriate concessions, for example the selling price of 140a and 142 Ramsgate Road, Sans Souci and the unit prices in its later development. Putting demeanour to one side, Mr Stegge impressed me as being more knowledgeable of the local area, which knowledge enabled him to make a more sophisticated analyses of the comparable sales. I was impressed by his thoroughness in researching possible rezoning a factor which influences my decision that overall his work and opinion is more reliable than Mr O’Connors in this instance.
For these reasons I am satisfied that the property is worth $775,000 as at the date of hearing.
Section 79(4) evaluation of contributions and other factors
Section 79(4) requires that the court look at the entirety of the contributions, both financial and non-financial to the welfare of the family as well as to the acquisition, conservation and improvement of those assets. Contributions are not required to be tied to the acquisition, conservation or improvement of a particular asset and are to be taken into account generally as contributions in a total sense.
The wife claims contributions based upon payments made by her family. In the Marriage of Rainbird (1977) FLC 90-256 at 76,376 the Full Court of the Family Court makes it clear that the “contributor” of a gift is determined by the original intention of the donor. It is apparent from Gosper (1987) FLC 91-818 that the donor’s intention is not necessarily the determining factor. The essence of Fogarty J’s judgment is that depending on the circumstances the court is able to treat a gift as a financial contribution of the spouse’s relative. However, it is also clear that this can be displaced by evidence that the donor intended to benefit both parties to the marriage. In Kessey (1994) FLC 92-495 the Full Court added to Gosper by saying that as a general approach a parental gift is to be treated as a financial contribution made on behalf of the child of the donor parent. Unless there was evidence showing that it was not the parent’s intention to benefit only his or her child. In that case the court took into account the relationship between a spouse and the spouse’s parent and concluded that the gift from the parent should be regarded as the contribution of that spouse. Where the intention of the donor as a gift is not clear the court can look to any special relationship between the donor and one of the spouses and regard the gift as having been contributed by that party: See Kessey at pp81,149, 81,150.
The issue of gifts and advances is further discussed in Pellegrino (1997) FLC 92–789. In that case Chisholm J sagely acknowledged that parents do not usually have an intention as to whom they intend to benefit when they make gifts to their married children. In this case he held that the parents intended to benefit their daughter by the gift, notwithstanding the fact that the husband derived direct and indirect benefit from it. Essentially if the motivating circumstances leading to the gift was the parent/child relationship, the gift may be regarded as the contribution of the son or daughter: and not also of his or her spouse: Pellegrino (1997) FLC 92–789 at pp84, 726 – 84,728. These principles apply to all intra familial advances. Thus although the advance may have been made by other relatives, in this case the wife’s aunt and uncle as well as her father, the court will consider the transaction with the above principles in mind.
Applying the above principles I am satisfied that the $9,000 given by the husband’s mother over the years is a financial contribution made on his behalf.
T H & C H have given the family generous financial support over many years. C H was able to locate her cheque stubs and deposits for most of these payments. The first bundle[11] was replaced by a second forwarded under cover of her letter dated 27 February 2004[12]. After she sent the first bundle C H continued to look through boxes of her papers and located 2 deposit stubs not included in the first bundle. I am satisfied that the T H & C H gave the wife the following sums:
[11] Exhibit B
[12] Exhibit C
·$25,000 on 31 October 1994,
·$2000 on 24 March 1995,
·$2500 on 7 July 1996,
·$3000 on 17 January 2000,
·$300 on 7 April 2000,
·$4000 on 11 July 2000,
·$3000 on 15 January 2002,
·$3000 on 15 May 2003,
·$500 on 16 June 2003,
·$1500 on 30 June 2003,
·$2000 on 9 July 2003,
·$2295 on 27 October 2003 for D H R’s child care,
·$4000 on 30 October 2003 for after school care and other expenses, and
·$1000 on 9 February 2004.
All of this money was used for matrimonial purposes. The money received after separation has been used on meeting the children’s expenses, probably also some of their living expenses. Although the husband denied knowledge of all sums provided he was aware that sizeable gifts were made from time to time. Indeed this contributed to his opinion that the aunt and uncle were trying to buy at least one of the children. I have no doubt that the T H & C H made these generous gifts because of their affection for their niece, a practice that has continued since separation. All moneys were paid into her account and the transactions completed between the wife and her relatives. Although the husband benefited directly from their generosity, I am persuaded that all moneys identified above, $54,095, are gifts to the wife and thus a financial contribution made on her behalf.
An important issue in this matter is the assessment of the weight that should be attached to the wife’s initial contribution. In Pearce (1999) FLC 92-844 the Full Court of the Family Court held “In our opinion it is not so much a matter of erosion of contribution, but a question of what weight is to be attached, in all the circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contributions of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution.”
The wife made a significantly greater initial contribution than the husband, the central feature of which is her ownership the Randwick unit. I am satisfied that the unit had increased in value subsequent to its purchase for $87,000 three years earlier and the wife had a sizeable equity in it. Her ownership of the home unit was pivotal to the parties’ capacity to make their money work for them from the earliest days in their marriage. They were able to avoid losing money paying rent and had a capital asset that they were able to improve and which increased in value far in excess of the monies spent improving it. It was the seed capital that enabled them to achieve approximately $170,000 profit from its sale in 1994. But for the wife’s ownership of the Randwick unit, it is unlikely that the parties would have acquired sufficient savings to enable the acquisition of the former matrimonial home in 1994. The probability is that they would have waited longer before entering the property market and when doing so would have borrowed substantially more than was needed to acquire their home.
The wife’s interest in her mother’s estate crystallised in the sense that the estate later loaned her $120,000 against her interest. This is reflected in the mortgage secured against the home, which is taken into account as a liability. Apparently her interest in her mother’s estate has not vested. The relevance of her interest in her late mother’s estate is that the beneficiaries allowed her to borrow $120,000 against her beneficial interest. I infer that the parties borrowed against the wife’s interest because the mortgage rate of 7 per cent was advantageous to them compared to then market rates. As well, when the wife took maternity leave in 2000, her father forgave the mortgage instalments throughout the period. Overall the wife’s interest in her mother’s estate is a modest financial contribution made on the wife’s behalf. At the commencement of cohabitation the parties’ superannuation was reasonably comparable and the wife’s car was equivalent to the husband’s insurance proceeds. Some of the wife’s furniture forms part of the current assets. It is the wife’s ownership of the Randwick unit which is the particular factor that must be given considerable weight.
The effect of the orders will mean that the husband will have his interest in Moorebank, his car, paid legal expenses and compensation money, which total $84,700. Of the non-superannuation assets he is entitled to $182,456 which is 28 per cent of $651,631. Hence the wife must pay him $97,757. By way of cross check the wife is entitled to non-superannuation assets worth $469,175. She has nett assets of $566,931 which means she must pay the husband $97,757. At settlement she must give the husband a release from the mortgagor or a discharge of any mortgage in which the husband is a joint borrower or guarantor. It would be inconsistent with s.81 and the clean break principle to leave the parties unnecessarily financially connected.
The superannuation orders will have effect from the date of judgment. The parties’ total superannuation interests are $229,912. At 28 per cent the husband is entitled to have superannuation worth $64,375. He has superannuation worth $23,000 and thus there will be a split of the wife’s superannuation of $41,375. The wife’s QANTAS superannuation will be reduced by an equivalent amount resulting in her superannuation interest falling to $165,536.
In the event that the wife fails to pay the monies ordered and/or provide the necessary releases then the home will be sold. Although it has an agreed value, the nett proceeds cannot be known. The total assets, excluding superannuation and the home are $117,009 and the total liabilities excluding mortgages is $34,560. On this basis, excluding the home and superannuation the wife’s liabilities exceed her assets by $2,251. Therefore, on the sale of the home when the wife receives her 72 per cent nett share, there will have to be an adjustment in her favour paid from the husband’s 28 per cent. The husband is entitled to 28% of $82,449 which is $23,716. The adjusting figure is the amount needed to ensure that the wife receives 72 per cent of the nett assets, which is $61,615.
Pending settlement, the wife must maintain the property and pay rates, taxes and mortgage instalments as and when they fall due. If she defaults the default must be paid out of her proceeds.
The residence and other applications concerning the children
The husband’s circumstances and proposals
The husband lives with his sister in southern Sydney. He is employed as a security officer in a position that since December 2003 requires that he works six days a week. His usual roster is 8 am – 4 pm Monday, Wednesday, Thursday, Friday and Sunday and 6 pm – 11 pm Saturday. If he succeeds in his residence application, his sisters and his mother will help by minding the children when he is at work. Since the interim parenting orders were made, the husband has had contact to the children each Saturday from about 10 am until 6.30 pm, each Tuesday and from after school Thursday until 6 pm. A central feature of the husband’s residence application is that the children should reside in the former matrimonial home with the parents living there on an alternating weekly or fortnightly basis. On the weeks that he does not live in the home, the husband planned to stay with friends or continue living with his sister, D G . He did not address where the wife may live or how the parties could financially support this arrangement. In the event, the husband has failed in his property application in the sense that the wife will have ownership of the property. Asked to address the court by reference to the legislation and decided cases on the principles that the court would apply in ordering the wife to move out of her home on a weekly or fortnightly cycle for the coming fourteen years, it came as no surprise that the husband’s solicitor was unable to do so. Although he did not explicitly say so, I infer that if he could not succeed on his primary application, then the husband still wished to have the children week about.
The wife’s circumstances and proposals
The wife is employed by QANTAS in an office position. Shortly prior to the commencement of the hearing she reduced her hours of employment, from full time to three days per week. Until 11 February 2004 she worked 9.00 am until 5.30 pm Monday to Friday. Other than for a period of maternity leave, although in full time employment, QANTAS have allowed the wife reasonable flexibility so that when she has needed to take time in order to care for the children, for example if they were ill, she has been able to do so. The wife intends to resume full time employment, probably by the end of this year. She plans that the children will attend the same school and that in the afternoons they will be in after school care or cared for by a child minder until she collects them between 5.30 pm and 6.00 pm.
The wife is conflicted about how best to promote the children’s relationship with their father. On the one hand she wishes to ensure that the children have regular and substantial contact with their father, but is anxious about his consumption of alcohol, angry outbursts and denigration of her and her family. Balancing these matters the wife says that the father should have overnight contact but only if contact is supervised. In this regard, the wife believes the husband’s sister and brother in law, D G and M G would be supportive of the children and suggests them as supervisors.
The wife opposes the restrictions on contact between members of her family and the children saying these are plainly unreasonable. I agree with her counsel that the very nature of the relief proposed by the husband demonstrates how impractical it would be for these two parents to negotiate shared parenting.
Determining the children’s best interests
Neither party claims that the children have any relevant wishes that should influence their residence applications. Both agree that the children love both parents and although they may not have expressed it in this fashion, both boys want a continuing relationship with each party. The later factor weighs heavily in favour of good contact at least to both parents.
In total, the wife took approximately two years maternity leave, one year after each child was born. Thus, D J R had his mother’s full time care for two years. During periods of maternity leave the mother was primarily responsible for the children’s care. Once she returned to work thereafter, the parties shared parenting responsibility, organising their working lives so that their working hours were complimentary and minimised the time the children needed to be cared for by others. Because she started work later than the husband did, the wife was predominantly responsible for the children in the morning, which included delivering them to school and preschool. When the wife returned to full time work in 2001, D H R went into daycare each Monday, Wednesday, Thursday and Friday. The husband arranged to have Tuesday off work so that he could care for D H R, a practice established in 2001 that has continued. Because his working day finished earlier than the wife’s, the husband collected the children from school and preschool at about 4.00 pm. Usually they returned home where the husband prepared the evening meal and took care of the children until the wife returned home between 5.30 and 6.00 pm.
For about 18 months – 2 years prior to separation the wife was uncomfortable leaving D H R in the husband’s care on Tuesdays. Her concerns centred upon the husband’s alcohol abuse and anger. The wife claimed that she asked his mother and sisters to drop in during the day in order to oversee the husband’s care of the child. While I accept that the wife was concerned, I do not accept that she made these arrangements with the husband’s mother and sisters. Neither T M nor J A R were challenged on their denials.
Thus until separation, the children were used to both parents’ active involvement in their daily lives as carers. Both children had the opportunity to become strongly attached to their parents and it is probable that they did so. D H R was only 3 years of age when the parties separated. Combined with the wife’s primary care during the year that she took maternity leave and also the two periods whilst the husband was in hospital, it is probable that he is more strongly and securely attached to his mother than his father. This attachment will have become more significant post-separation because the child has been predominantly cared for by the wife. Although the husband made complaints about the wife’s attachment to the children, claiming that she wanted to give them away to TH & CH, I am satisfied that the wife is committed to the children’s welfare, loves them dearly and has worked hard to provide a balanced home life. Taken together, these factors satisfy me that as at the date of hearing D H R is likely to be primarily attached to his mother, which attachment is healthy and enduring.
Whilst D H R’s attachment to his father is strong, his experience of him as a parent includes witnessing the husband abusing the wife, unprovoked and unpredictable shouting at his older brother, and too often seeing his father intoxicated. Although the husband described himself as, “a happy drunk” the quantity of alcohol he consumed when binge drinking impaired his judgment, recall and also his parenting capacity. Thus, whilst I do not doubt that D H R loves his father it is unlikely that he would perceive him as reliable or even tempered.
As the older child, D J R has been more exposed to his father’s drinking and unprovoked outbursts, than D H R has. Because of his age, D J R probably has a more sophisticated appreciation of his father’s behaviour and its impact upon the family. In her affidavit the wife gives a detailed account of numerous incidents between D J R and the husband in which the husband lost his temper with the child. For example, whilst D J R was practising the piano the husband hit the child leaving a bruise on his back which took several days to fade. In May 2003 the wife physically pushed the husband away as he approached D J R brandishing a broom. D J R was crying while D H R was clinging to the back of her legs. During the latter part of the marriage, the husband often threatened to punch or hurt D J R, remarks not only upsetting to the child, but also the wife. A large number of the incidents recounted in the wife’s affidavit considered in isolation, whilst regrettable, are unlikely to have had a continuing effect on the children. It is their frequency over a prolonged period that is significant and changes their impact. Even if this behaviour commenced as late as 2001, from the children’s perspective it has endured for a long time and it is unlikely that they would perceive their father as being as secure and stable as their mother. This impinges upon the husband’s capacity to meet the children’s emotional and psychological needs. Because she is emotionally more stable than the husband has been, it is likely that the wife has met the children’s emotional and psychological needs in a more satisfactory fashion in recent years than the husband has been able to. When distressed, I accept the husband’s evidence that the wife is also capable of emotional outbursts, some of which have been directed at the children. For example when visiting his sister, the wife completely lost her temper with D H R when he repeatedly tried to come into the toilet while she was using it. She shouted at the child using intemperate language. Although they saw each other regularly the husband’s sister said that she had only seen the wife lose her temper with the children twice. The difference is the frequency of the outbursts and that the wife’s are far less likely to involve the children than the husband. Thus although I am satisfied that D H R is as strongly attached to his mother as he is too his father, the nature of his attachments is different. As a more stable person, D H R’s attachment to her is likely to be quite secure whereas because of his father’s erratic behaviour it may have an anxious quality about it.
To a considerable extent, the wife’s distress has been responsive to the husband’s erratic behaviour. With the husband out of the home, the wife is in a superior position in terms of providing for the children’s welfare long term. By comparison, in her care there is no risk that the children will be exposed to alcohol abuse and far less risk of unpredictable and angry outbursts. This is a factor to which I attach considerable weight and which weighs in favour of the wife’s application for residence.
I am strongly satisfied that the wife is motivated by a strong sense of responsibility towards the children. Although under great financial pressure, she has ensured that D J R has continued at a local Catholic primary school, until late October 2003 took piano lessons, plays tennis and basketball. D J R has a weight problem, which the wife is attempting to manage by careful attention to diet and promoting outdoor activities. I have no doubt that supporting D J R and D H R with no meaningful financial assistance from the husband, has meant that the wife has lived on a restricted budget and to a considerable extent has put the children’s interest ahead of her own. The husband makes no such compromise. He has withheld adequate financial support from the children, probably because of his anger at the wife’s decision to end their marriage. In doing this he demonstrates a poor attitude to the responsibilities of parenting and demonstrates that in spite of his love for the children, he is willing and does involve them in his dispute with their mother.
This is one of those rare cases where there is a clear distinction between the parties’ capacity to provide for the children’s physical needs. In the wife’s care, the children are more likely to have continuity of education, carers, extra curricular activities and stable accommodation. This is because the wife, if necessary, is prepared to live frugally so that the children’s physical wellbeing is ensured. Although the husband expresses a similar commitment, his failure to pay child support means that it is far less certain that he has the rigour necessary to provide the stable financial substratum necessary for stable accommodation, education and the like. Although his sister D G corroborates his evidence that presently he is not gambling, insufficient time has passed since he gambled his compensation monies to persuade me that the risk that he would once again gamble is minimal. The husband’s bank records reveal that he gambles until he has nothing left. I am satisfied that there is a high risk, that as a gambler, if the children were living with the husband they will have all the uncertainty that comes with financial instability.
Previously, he has been enthusiastically involved with the children’s sport, D J R’s swimming in particular, tennis and soccer. Once D J R started school, the husband arranged his shifts so that he was available to collect D J R from school and D H R from preschool in the afternoons. Having done so he took D J R to training, with D H R in tow. At present he takes D J R to tennis after school on Thursdays.
One of the primary parenting issues concerns the husband’s alcohol abuse and impulse control. He says, “Following the work accidents I was prescribed pain killers, antidepressants and anti-inflammatory medications by my doctors. I began binge drinking alcohol”. He claims he has not consumed alcohol since 23 May 2003 and that he no longer has a problem with alcohol abuse. The wife contends that the husband has serious difficulties with alcohol abuse and anger management, so serious she says his contact should be supervised. The husband’s medical records[15] and the hospital[16] are in evidence. On 18 September 2002 he described his drinking pattern as being three 750 mil bottles of whisky a week. Later, on 28 May 2003 the notes report the husband describing being “explosive with children”. He said that he was drinking more and more. At this same consultation, Dr M C (the families General Practitioner) recommended that he be admitted to hospital for management. The clinical notes reveal that Dr M C approached the hospital to admit the husband for anger management and alcohol abuse. On admission the husband’s intake notes reveal that he told the doctor he had been, “on/off heavy drinking since age – 25”. Also that his binges last 3 – 4 days and have no particular triggers. The husband told the doctors that once he starts on spirits, especially scotch, he will just keep going. Binges will be 4 – 5 glasses, for example of scotch at night. He reported that he does not drink in the morning unless he has a day off. On admission he told the doctor that his average daily intake was half a bottle of spirits. Throughout his notes there is repeat reference to the husband feeling depressed and angry, one of his goals being, “long term therapy”. This is a very different picture to that presented by the husband in his affidavits and oral testimony. The history the husband gave to his doctors is largely consistent with the wife’s evidence concerning his anger towards her and the children and his alcohol use. The husband’s sister corroborated his evidence that since he has been living in her home she has not seen him use alcohol to excess. I accept her evidence. Both parties agree that the husband has had periods of sobriety that have lasted for at least six months only to relapse. The husband would need to demonstrate a much longer period of sobriety before the court could be satisfied that there was not a significant risk that he would relapse into alcohol abuse. At present, he attends Alcoholics Anonymous most weeks, which demonstrates a degree of insight into his need to remain sober and motivation to do so. Whilst this moderates the risk, the risk that he will relapse remains high. This is an important factor that weighs against his application for residence. The husband explained that presently he believes that his gambling is well controlled. He has made inquiries of the assistance available through Gambler’s Anonymous, but has accepted his psychologists advice that in a sense he should not ask too much of himself all at once. Simply put, that he needs to focus on maintaining sobriety and managing his anger as a priority. By seeking therapeutic assistance with gambling, he may put himself under such pressure that his gains with anger and alcohol may falter.
[15] Exhibit I
[16] Exhibit H
Although the husband professed his love for his wife, he says things to the children which reveal that he is angry with her and to a significant extent lacks the ability to protect the children from the parental dispute. He agreed that he has told D H R that the wife wanted to give him away (to TH & CH) and that the wife wanted to kill him (D H R). This is reference to a possible abortion. When the appropriateness of these discussions was raised, the husband was unapologetic and explained that he needed to tell the children these things. Why he felt this was necessary or in the children’s interests remained a mystery. The husband contended that the wife’s mood deteriorated after she had failed surgery in December 2002. She was provocative that is argumentative with him, which he said resulted in his angry and abusive outbursts. The husband agreed, that on 7 August 2003 he shouted at the wife that she was a “whore”, “slut”, “fucking liar” and “bitch”, all of which took place in the children’s presence. I accept the wife’s full description given at paragraphs 120-118 concerning the incident. In spite of continuing therapy, the husband continues to use unpleasant language to the wife, for example, “you’re a fucking bitch” on 11 November 2003 in the children’s presence and routinely runs members of the wife’s family down to the children. After contact the children are often negative about TH & CH, yet enjoy their company when the opportunity arises. A V was not challenged about her evidence that following contact D J R did not want to see TH & CH, only to change his position after she reminded him of the fun he usually has with them. She is probably correct in her opinion that the child was mimicking the husband’s earlier statements. Behaving this way places the children into conflict with their parents and extended family. The husband fails in his responsibility as a parent when he does so.
The husband has poor impulse control, which is exacerbated when he comes into contact with the wife. Not as a consequence of her behaviour towards him, but his attitudes towards her. The wife is now anxious about the husband’s contact with the children, which anxiety at times clouds her judgment. For example she panicked when she realised the children were alone with their father at a basketball game. She rushed up to the husband’s mother screaming ‘save my children”. The children were inside the stadium happily playing with their father. The wife impressed me as an obviously intelligent person, who if her anxiety about contact is becoming debilitating should seek professional assistance. Professional assistance is likely to moderate her anxiety and reduces the need for unnecessary restrictions upon contact.
The court must consider the children’s long-term interests. To date, both prior to and post-separation, the wife has demonstrated that she can balance career and responsible parenting. The wife has a reliable work history and is obviously a valued employee. By arrangement with her employer she will be able to adapt her work commitments so that when the children are ill or need her for some other reason she is able to take time and be with them. On occasions she may not be able to do so, in which case she will need to have the child at work or call on friends to help out. Although the husband complained about it, the wife has been able to rely on her sister in law A V’s help, TH & CH, her father, a paid nanny and before and after school carers. In late October 2003 the wife took D J R to work for the day because he was sick and she could not arrange day care. The wife says that the children were well cared for on each occasion. I accept her evidence and am satisfied that if she is unable to take time form work to care for the children she will make appropriate alternative arrangements. The husband says that the wife should ask his help before anybody else. Ideally this is the preferred approach. However the husband is too likely to complain about the wife’s home and her care of the children to make such an arrangement feasible. If the child/children needed to e cared for at home, I doubt the husband’s ability to be in the home without intruding into the wife’s privacy. If he found information that he did not fully agree with, it is likely he would raise this with the children and argue with the wife.
The wife understands the children’s needs for stability, psychologically and emotionally. Her demonstrated commitment prior to and post separation persuades me that she is better able to provide for the children’s long term wellbeing than the husband is. Although it will cause him great sadness, I am not persuaded that the husband is as attuned to the children’s needs for a stable, reliable and emotionally secure home life as the wife is. This is a matter to which I give considerable weight and which weighs in favour of the wife’s application for residence.
For these reasons I am satisfied that the children should live with the wife and have contact with the husband. Presently the parties are unable to communicate effectively a factor that substantially reduces the prospect that shard residence would succeed. Shared residence in this case is likely to exacerbate tensions between the parties, which tensions will swirl around the children. Far from protecting the children from the many disputes that he is likely to have with the wife, the husband is likely to bring the children into the centre of the disputes. This would be highly distressing and in the long term emotionally damaging for both children.
Because of the husband’s work commitments structuring contact is complex. It is further complicated by the husband’s lack of judgment in exposing the children to his harsh views of the wife and her family. For example, on 11 December 2003 whilst driving the wife and children, the wife says, “While E A R was shouting both children were crying in the back seat. E A R then turned to D J R and said, “Do you remember being sat at a separate table at TH & CH’s place at Christmas time?” To my observation D J R appeared frightened and said in a quiet voice, “Yes, dad”. E A R then said to D H R, “C H hurt you”. The husband gave evidence that he believes TH & CH are racist, describing a family meal where the children were sat away from the adults. I accept the wife’s evidence that the husband expresses similar sentiments to the children. I accept the wife’s evidence that TH & CH are not racist. There was nothing about the manner in which TH & CH gave their evidence which raised any concern that they harbour racist sentiments.
It comes as no surprise that the wife says that following contact the children are more likely to refuse to follow her instructions, to make negative statements about members of her family and also to her. However, it is also clear that the children look forward to seeing their father and that theirs is a relationship that needs to be nurtured. Because the husband works weekends, his available time to have contact is quite limited. The purpose of contact is to enhance the children’s relationship with the husband and his unavailability during contact defeats this purpose. The husband is available from after school Friday until Saturday evening. Then not again until Sunday evening. On many Saturdays D J R has sport in which the husband is keenly interested. Contact will centre on the husband’s availability at weekends. Although the wife strongly opposed it, unsupervised overnight contact will commence so that the husband has the opportunity to be meaningfully involved in the children’s care. D G was an impressive witness. As overnight contact will usually take place in her home the risk that the husband will drink to excess or criticise the wife and her family is reduced. D G is unlikely to tolerate such behaviour and would intervene on the children’s behalf. Even if she is not present throughout contact, which I accept she will not be, her influence on contact is likely to be strong. This is because of her good relationship with both parties and the children. The risks to the children are not so high that contact should be supervised. Supervision severely constrains the quality of contact and should only be imposed where there is an unacceptable risk of harm. To a very considerable extent the husband has his future relationship with his children in his own hands. If he continues to criticise the wife and her family and involve the children in his dispute with his wife, he must expect that slowly the children will be alienated from him. That is because their experience of the wife differs so substantially from his criticisms about her. If his behaviour continues so that the children are routinely distressed by contact and unsettled at home because of it, then the husband must anticipate that the wife may make a further application seeking to limit his contact with the children. I take that into account. Not withstanding the risk that there may be further litigation I am satisfied that unsupervised overnight contact should commence. However, the frequency of weekly contact should reduce. Reducing the frequency of contact should have the effect of moderating their unsettled behaviour after contact. That is because the husband will have less opportunity to unsettle them. Balancing the children’s need to enjoy sufficient time with their father to have a meaningful relationship with him, whilst at the same time trying to limit the risk that he will undermine their relationship with their mother and her family is difficult. The outcome is finely balanced, but the children’s relationship with their father needs more than one night each week in his company. They have managed after school Thursday’s quite well. So that gaps between contact are not too long, I will order after school contact each Tuesday rather than continue Thursday afternoon contact.
In the event that the husband need not work on weekends, the orders provide that he shall have regular alternate weekend contact. This gives both parents and children a sensible structure for contact, most importantly giving the boys two consecutive nights with their father.
Holiday contact is a similarly complex issue. The longer the period of time the children are with the husband the more profound his denigrating behaviour may be. School holidays are potentially the happiest time for children and working parents. Because during school term contact is limited to only one night, it is desirable that the children and husband have the opportunity for longer periods together. Unless this is ordered the children will be deprived of the chance to experience their father being actively responsible for them and to immerse themselves in his life. Inadequate time together is highly likely to impinge on the quality of the relationship the children have with the husband. This must be balanced with the risks that I have identified to the children’s relationship with their mother and her family and exposure to emotionally abusive behaviour. Because there are obvious benefits to the children’s relationship with their father and their sense of identity with him from longer periods of contact, I will order it. Initially this contact will be for one week in each school holiday period, two periods of one week during the next Christmas school holidays and thereafter half of each holidays. So that contact achieves its primary purpose the husband will need to make arrangements with his employers so that he is substantially present throughout contact. He need not be available every moment of it, but substantially present. I have no doubt that he will make appropriate alternate care arrangements if he is unavailable. The children have had holidays away from their mother previously, for example, in mid-2003 when they went to TH & CH’s home and are able to understand simple explanations about the nature and duration of holiday contact. Before half of the Christmas school holidays, as a block period takes place, the husband will have had the children for block periods of one week and by 2005/2006 both children should be able to manage the longer period of Christmas holiday contact. Thus I would not expect separation from their mother during the longer periods to be unsettling.
Telephone contact is reduced somewhat, but combined with face to face contact the husband and children will speak five days each week. Although he would like to talk to the children every day, at times they are reluctant to talk, which usually provokes an argument between the parties. Relentless disagreement is debilitating, and the wife needs to be freed from it. Thus telephone contact will be ordered at the frequency and times suggested by the wife.
Where possible contact changeover will take place at school. This will give the husband the opportunity to see the children’s friends and teachers and vice versa. Otherwise the husband will collect the children from the wife’s home at the start of contact and she from his at the end of contact. These children do not need their parents entering each other’s house during contact, but will benefit seeing their parents at least speak civilly to each other at the front door or verandah. D J R will need his parent’s help with his bag for some time yet, hence his parents need to be more involved in changeover than the wife’s orders provide. Clearly these benefits outweigh my assessment of the risks involved.
There will be a series of injunctions which address the risks identified above. Provided the husband complies with them, the risks to the children during contact are modified further. He showed scant regard for earlier non denigration orders. Hopefully these reasons will assist him to understand that court orders must be treated seriously and that non compliance may put his contact with the children in jeopardy.
The injunctions and specific issue orders sought by the husband, viz the wife’s family, piano tutoring and school are refused. D J R no longer wishes to study piano. A decision supported by his piano teacher and the wife. Reinstating piano tuition is financially burdensome for the wife. There is no evidence that D J R enjoyed piano or was good at it. Although it is obviously desirable that the children are not exposed to their grandfather’s smoking, the children have a good relationship with their grandfather and an injunction that precludes them from continuing their relationship with him is inconsistent with their overall welfare. If the grandfather is smoking the children are old enough to take themselves away. The wife will need to reinforce with the grandfather her own opinion that he should not smoke in the children’s presence. I do not accept the husband’s evidence that TH & CH or the wife’s sister physically abuse the children. They may have disciplined them more severely than the husband prefers, but the incidents to which he makes reference do not persuade me that the children would be exposed to an unacceptable risk of physical harm or emotional abuse in their care. TH & CH have provided the wife and children with real practical and financial support over many years. The wife is close to her aunt and uncle and the probability is that the children are as well. Similarly with the wife’s sister. This is one of the wife’s important relationships and the children are probably close to their aunt. There are great benefits in terms of identity derived from extended family. The benefits to the children from these relationships are far outweighed by any detriment. As far as the children’s education is concerned, I do not consider that I have sufficient evidence to adjudicate what school the children should attend when they are older. Other than expressing his wish, the husband adduced no evidence that compelled the outcome he proposed. In this instance and for the reasons I have already given the applications for injunctions and specific issue orders are refused.
The orders provide that the parties will have joint responsibility for the children’s long term welfare. This means that they would need to discuss any proposed relocation, for example, as well as where the children will receive their education. When working through these issues the husband needs to be mindful that the children live with their mother and that the overwhelming financial costs are born by her. Rather than make unnecessary orders, or orders with inadequate evidenced the parties shall address these long term issues as the need arises.
I am satisfied that the parenting orders and injunctions are in the best interests of the children.
For these reasons I make the orders identified at the start of this judgment.
I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate: S. Mashman
Date: 3 May 2004
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