S and S
[2002] FMCAfam 331
•11 September 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S & S | [2002] FMCAfam 331 |
| FAMILY LAW – Property – short marriage – contributions – husband’s entitlement to work health settlement and crimes compensation – contact. Family Law Act 1975, ss.75(2), 79(4) Marriage of Ferraro 16 Fam LR 1 |
| Applicant: | M L S |
| Respondent: | G S |
| File No: | (P)DNM2508 of 2001 |
| Delivered on: | 30th September 2002 |
| Delivered at: | Darwin |
| Hearing Date: | 11th September 2002 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Ms D Elliott |
| Solicitors for the Applicant: | Diana Elliott |
| Counsel for the Respondent: | Mr B Cassells |
| Solicitors for the Respondent: | Terrill & Associates |
ORDERS
That the parties have the joint responsibility for making decisions about the long term care, welfare and development of the child of the marriage N J S born 27 July 2000.
That the said child live with the wife, who shall have sole responsibility for making decisions about his day to day care, welfare and development.
That the husband have such contact with the child as agreed between the parties, but in default of agreement as follows:
(a)Until the child attains the age of 6 years of age in Darwin on the husband giving 28 days notice of his intention to exercise contact on the following basis:
(i)for the first 6 periods of contact for periods of up to 7 consecutive days as follows:
a)from either 8.00am until 12 noon or from 1.00pm until 5.00pm on the first day and from 8.00am until 5.00pm on the second and third days, and from 8.00am on the fourth day until 5.00pm on the fifth day, and from 8.00am on the sixth day until 5.00pm on the seventh day of each seven day period.
(ii)Thereafter for periods of up to seven consecutive days on no more than four occasions each year.
(b)Upon the child attaining the age of 6 years upon such terms and conditions and in such locations as the parties agree.
(c)At all reasonable times by telephone.
That by way of full and final property settlement the husband pay to the wife the sum of $15,715.00 within 60 days of today’s date.
That unless specified in these orders, and save for the purposes of enforcing the payment of any monies due under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all other property (including choses in action) in the possession of such party as at the date of these orders;
(b)Each party forego all claims he/she may have to any superannuation or work related benefits belonging to or earned by the other;
(c)Assurance policies remain and / or become the sole property of the life assured named therein;
(d)Each party be solely liable for and indemnify the other against all liability howsoever kind in nature and howsoever arising, encumbering any item of property to which that party is entitled pursuant to these orders.
The applications be otherwise dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
(P)DNM 2508 of 2001
| M L S |
Applicant
And
| G S |
Respondent
REASONS FOR JUDGMENT
Applications
These are proceedings for property settlement and appropriate parenting orders for one child of the parties’ marriage, namely N J S (“N”) who was born on the 27th of July, 2000.
The parties to the proceedings are M L S (“the wife”) and G S (“the husband”). The wife is the applicant in the proceedings. She commenced the proceedings on the 30th of October, 2001. The husband filed his response on the 14th of January, 2002.
The husband currently lives in Cairns. N lives with the wife in Darwin. The husband does not seek to change this state of affairs. He does however seek regular defined contact to N when he visits Darwin from time to time. He also wishes to share responsibility for making long term decisions, with the wife, in respect of N’s care. The wife seeks exclusive responsibility for both N’s long term and day to day care, welfare and development. She also seeks that any contact between N and the husband be by agreement with her.
The marriage between the parties was a brief one. It is the husband’s position that his was the greater financial contribution and that, as a result, the parties should retain the property they currently have in their respective possessions, or failing that, there should be a modest re-adjustment made in favour of the wife. The wife, essentially because she will have the responsibility for providing a home for N for very many years, seeks a more generous adjustment in her favour. She seeks the transfer to her of the former matrimonial home, a property that the husband owned prior to his marriage to the wife.
Following the end of the marriage between the parties, the husband received lump sum payments of work health benefits and crimes compensation payments, to which he was entitled as a result of being seriously assaulted in October of 1998. The parties have very different views as to how these sums are to be factored into the orders of the Court in respect of the proceedings between them.
Background
The husband was born on the 4th of February 1955. He is 47 years of age. The wife was born on the 27th of November 1970. She is 31 years of age. N, who is now 2 years and 2 months old is their only child.
The parties dispute many things between them, including when they began to live together. They do agree that they met in Darwin in February of 1998. The wife asserts they began to live together shortly afterwards. The husband agrees that the wife slept over at his home but that they did not become committed to one another and intermingle their funds until July of 1998. I do not believe a great deal turns on this. There can however be no doubt that they married on the 14th of April 1999 in Darwin. They separated in late July of 2001. The marriage between them was a brief one.
The husband is by trade a motor mechanic. However, he has not been involved in that trade for very many years. When he met the wife he was involved in the business of selling used cars. It was whilst working at Newstate Motors in October of 1998 that the husband was assaulted. He was punched to the head by a dissatisfied customer and suffered injury to his right orbit. The injury caused damage to his sight and precipitated a post traumatic stress disorder in him. Following the separation between the parties he moved to Cairns. He is not employed at the present time. He has lived in Cairns since the early part of 2002.
The wife is a public servant. Prior to meeting the husband she worked in the electoral office of two different Northern Territory members of Parliament until she went on maternity leave shortly prior to N’s birth. She returned to work in May of 2001. She currently works for Territory Public Service in the Ombudsman’s Office and earns approximately $35,000.00 per annum.
Evidence
As directed, each of the parties filed an affidavit containing his or her evidence in chief. In addition the husband filed an affidavit from a friend J B. The wife was represented throughout the proceedings by her solicitor, Ms Elliott. The husband was represented by Mr Cassells of counsel. Each party also relied on a statement of their respective financial circumstances filed in the matter. Both parties were cross examined by the legal representative for the other party. However, Mr B was not required to give oral evidence. The hearing before me took place on the 11th of September 2002.
I found the evidence of both of the parties to be unsatisfactory in many ways. As a result I do not accept the evidence of either of them in its entirety. The wife sees the husband as devious and deceitful, particularly about money matters. The husband sees the wife as being grasping and avaricious. The obvious dislike that each of them had for the other was palpable during the hearing. I have no doubt that this short marriage has left each of them extremely bitter and mistrustful of the other.
It was the wife’s case that she paid her wages into the husband’s bank account from July of 1998. Her bank statements for May and June of 1999, disclosed this patently not to be the case. She had no explanation for this discrepancy in her evidence. On balance, I think that the husband is more likely to be aware of the true financial position of the parties during the marriage than the wife is. However, I believe that the husband is also likely to be misleading about his evidence in order to reduce his liability to transfer any property or funds to the wife. The wife is motivated by a large sense of grievance she has against the husband. As a result she is likely to inflate her claims. Accordingly, I take each of their evidence with a large pinch of salt. There were many unanswered questions about the value of assets and the provenance of funds to acquire them. The evidence of each of the parties left me with a vague sense of unease.
However it seems to me that during the marriage the parties each enjoyed a high standard of living. They travelled overseas on a number of occasions. The husband had a number of credit cards and an overdraft. Neither of the parties seems to me to be particularly frugal or conservative in the use of money when it is available and neither of them seem to be punctilious record keepers in regards to expenditure. However in this regard the husband’s records seem to be much more complete than the wife’s, especially when it is likely to be to his advantage to have records. When it is not likely to be helpful to him, the records are missing. Neither of the parties has a particularly satisfactory account of where the money that came in to the marriage went and perhaps more importantly what, if any, debts were brought in to the marriage by the husband, what exact debts were incurred during the marriage and in respect of what particular matters.
It is clear that following the parties’ separation the husband received a comparatively large sum of money. This money related to his settlement in respect of his work health claim and funds received by him from the Northern Territory Government pursuant to a statutory criminal injuries compensation scheme. The total sum was about $85,000.00. The husband has no satisfactory account of how he has spent this money. He does however assert that it has been spent.
During the period since the parties separated the husband has paid amounts of child support to the wife that she regards as being derisory. Since arriving in Cairns the husband has had only brief employment in the used car trade. However he ceased this employment due to anxiety he says he feels as a result of returning to the employment in which he was previously assaulted.
The resentment that the wife feels about these matters has heightened the mistrust between the parties. However, not withstanding this state of affairs, the wife has not sought any departure from the administrative assessment of child support nor commenced departure proceedings before me pursuant to Part 7 of the Child Support (Assessment) Act on the basis that the husband’s current assessment for child support is not based on a proper assessment of his true financial position, or indeed, on any other basis. In many ways this was an unsatisfactory state of affairs.
Most of the evidence of the parties was directed towards the issues related to property settlement. Accordingly I propose to deal with this aspect of the case first.
The law to be applied to property applications
Section 79 of the Family Law Act defines the Court’s powers in determining applications for property settlement. Sub-section 2 of Section 79 provides that:
“The Court shall not make an Order under this Section unless it is satisfied that, in all the circumstances, it is just and equitable to make the Order.”
Section 79(4) sets out the matters the Court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters include:
a)The financial and non-financial contributions made directly or indirectly by or on behalf of each party or by a child to the acquisition, conservation or improvement of any property of the parties;
b)The contribution made by a party to the welfare of the family including any contribution made in the capacity of homemaker or parent;
c)The effect of any proposed order upon the earning capacity of either party;
d)The matters referred to in sub-section 75(2) as far as they are relevant;
e)Any other order made under the Family Law Act affecting a party to the marriage or a child of the marriage; and
f)Any child support payable.
Section 75(2) of the Family Law Act sets out the matters which must be taken into account by the Court when determining applications with respect to maintenance. This is the prospective element of the determination of the application for property settlement. The assessment of contributions during the marriage is the retrospective element.
In the Marriage of Ferraro 16 Fam LR 1 the Full Court said at page 23:
“A now well established line of authority in this Court indicates the approach normally to be taken in the exercise of the discretion in Section 79 proceedings. That approach is firstly to ascertain the property of the parties at the time of the hearing, then to consider “contributions” of the parties within paragraphs (a) – (c) of Section 79(4) and then consider the matters in paragraphs (d) – (g), more especially paragraph (e) which takes up by reference the provisions of Section 75(2) which are generally referred to as the “Section 75 Factors.”
The Court is therefore required to determine the following matters:
a)The assets, liabilities and financial resources of the parties to the marriage;
b)The relevant contributions of each of the parties;
c)The means and needs of each of the parties and the other prospective components to the claims of each of the parties pursuant to section 75(2) and then to identify if any alteration should be made to the entitlements of either of the parties having regard to the section 75(2) factors.
After determining the entitlement of each of the parties in relation to the alteration of property interests, the Court must then consider any application for spousal maintenance if relevant.
Evidence and findings of fact
Findings of fact is made on the probabilities, having regard to the evidence and my observations of the parties and witnesses. In what follows, statements of fact constitute findings of fact.
Property acquired at the outset of the marriage and direct financial contributions
The parties began to live together in the middle of 1998. At the commencement of the marriage, the husband owned a unit situated at
9 / 9 C Street, Fannie Bay. He had purchased this property with his first wife in 1991. He bought her out of the property in 1996 following their separation. The property was worth about $210,000.00 at this time, and was subject to a mortgage of about $172,000.00. On a conservative basis therefore, the husband’s equity in the property was at least $38,000.00 when the wife moved in. The unit was also fully furnished.
The husband had an overdraft debt at the commencement of the relationship. This overdraft was in the joint names of the husband and his first wife, although liability for it was solely the husband’s. The husband deposed that he maintained the overdraft in this form in order to avoid having to provide security for it. The husband provided documentary evidence that indicates that at the commencement of the relationship the overdraft was around $1,200.00. He was also able to provide a bank statement that indicates that he had savings of around $14,000.00 in February of 1998. No evidence was provided in respect of any other debts that the husband had at the commencement of the relationship between him and the wife. In those circumstances, I accept that apart from the overdraft and the mortgage in respect of the C Street unit, he was essentially debt free.
At the commencement of the relationship, the wife owned a Nissan Bluebird motor car worth about $15,000.00. She asserts that she owed $3500.00 in respect of it’s purchase. The husband asserts that in fact she owed some $11.000.00 in respect of its purchase. The husband deposed that he paid $8,000.00 towards clearing the loan. A photocopy of a cheque to the ANZ bank in the sum of $7,000.00 executed by the husband was provided as evidence of this payment. The cheque was undated and no other evidence was provided by the husband to support his contention. The wife acknowledges that the husband did pay some money towards her car loan, however she asserts that it was just under $2,500.00. A personal loan statement for the period between February and May of 1999 was provided by the wife. This indicates that in February of 1999 approximately $3,000.00 was owing in respect of her personal loan. I prefer the evidence of the wife in respect of the issue of the car. However, even on her case, the husband made some contribution to reducing the debt in respect of it.
The wife also brought into the marriage items of furniture and some personal chattels. These do not appear to be items of any great value.
In April of 1998, the husband sold his interest in the car yard and received $20,000.00. This sum was paid into his bank account. It was this bank account into which the wife paid her salary from July of 1999 onward. Prior to that time, although I accept that she used her income for joint family purposes, she maintained a separate bank account in to which her salary was paid. As a result I believe that she used at least part of her income for her own personal use. I mean no criticism of her for this. It was the way in which the parties elected to manage their funds. However, in my view, it indicates that up until that stage the husband maintained responsibility for paying the mortgage and other outgoings in respect of the C Street unit.
On any view, the initial financial contribution of the husband to the marriage was vastly superior to that of the wife. The husband brought into the marriage property worth, on a conservative estimate, approximately $70,000.00 and the wife, at best, brought property worth around $12,000.00. I accept that apart from the mortgage, the husband was essentially debt free.
The parties bought items of furniture during the marriage of modest value, namely a wall unit worth $2,000.00, an outdoor setting worth $1,500.00 and some minor improvements were done to the unit including the installation of a bar and bar fridge. An engagement ring worth $10,000.00 was purchased. This has been retained by the wife. The husband alleges that other items of jewellery were purchased, but no documentary evidence has been provided in respect of these items. A valuation for insurance purposes was provided in respect of the engagement ring. No other evidence was provided in respect of its value. I accept however, that the wife has retained this ring. The wife does not accept its value as being $10,000.00.
As has already been indicated, from July of 1999 the parties operated a joint bank account and all their funds and income were paid in to it. Prior to his going on to work health payments, the husband was earning approximately $52,000.00 per annum. He also had the benefits of a work car for personal use. Prior to the birth of N, the wife was earning $38,000.00 per annum. From this account the parties funded their joint living expenses. They were both working and apparently securely employed. It seems that they enjoyed a good standard of living. Certainly, there is nothing to indicate that either of them denied themselves any material comfort. They both seem to have been quite social people.
During the marriage, the parties went on a number of overseas trips to Africa, Europe and Thailand. They also travelled within Australia. Two of these trips, to Africa and Europe, were won by the husband in competitions. However, I accept his evidence that the trips were extended and each involved the parties incurring other expenses. Overseas holidays, even those that are the result of windfalls, inevitably involve such expenses. Neither of the parties, as I say, struck me as being particularly frugal in the manner of their lifestyles or likely to deny themselves any experience when on holidays. It is the husband’s case that these extras were financed either by credit card or drawing on his overdraft. As I indicated earlier, it seems to me that of the two parties, it was he who was the more worldly and financially aware of the two during the marriage. The various credit cards and the overdraft were after all in his name and he would have received the statements. It seems to me that he was content to finance this comfortable lifestyle through the use of credit in the hope that the debt could be managed. I do not believe that the wife turned her mind very much to the level of debt. She was happy to be indulged. I accept that the parties incurred substantial “consumer-type” debt during the marriage and there is not much to show for these debts now. Accordingly, during the marriage, the husband’s position changed from one of being essentially debt free to having a reasonably large credit card debt and an overdraft. The wife remained blissfully unaware of this state of affairs.
The wife became aware of the extent of the husband’s personal debts around about the time the parties separated. I suspect that she is deeply suspicious of the provenance of many of the debts and is unwilling to accept that they relate to expenses incurred jointly during the marriage. However, she is not able to point to any evidence to support her suspicions. Accordingly, I accept the husband’s evidence that the parties lived well and to a certain extent beyond their means. These difficulties and the parties’ recurrent recourse to credit became more pronounced after the husband applied for work health benefits.
The first stresses in the marriage began to appear around the time the husband was assaulted on the 8th of October 1998. The assault occurred as a result of no fault on the part of the husband. He was clearly an innocent victim of it, but it is significant that the assault occurred in the context of his work as car salesman. This has had significant consequences for the husband and in particular what form of work he is able to undertake in future. The assault was clearly a serious one and has damaged the husband’s eyesight. Fortunately, it appears that the damage to his eyesight is largely repairable. However, he also sustained a severe nervous reaction to the assault. Initially, the husband did not fully appreciate the psychological import of his injuries. He continued to work until December of 1999, although he did change his place of employment. However, in December of 1999 he consulted his general practitioner and was referred to a psychiatrist. It was at this stage that a medical diagnosis was made that he was suffering a psychological injury as a result of the assault.
However, as is often the case, the relevant insurer had difficulty accepting the claim and the husband was kept under surveillance from time to time. He was also prescribed anti-depressant medication. It cannot have been an easy state of affairs for either him or the wife.
The husband did not receive his first payment from the relevant work health insurer until March of 2000. Thereafter the insurer stopped payment from time to time. It seems payments were stopped for periods of up to two or three months at a time. In times of financial shortfall, the parties had no alternative but to have recourse to credit to finance their living expenses. Although payments of work health were resumed, I have no doubt that their withdrawal did adversely affect the parties’ debt level. In addition, when the wife fell pregnant they had the extra expenses related to the birth of N. Accordingly, from 1999 onwards, the financial situation of the parties worsened. The husband remained out of work until the parties separated. I accept that whatever work health payments he received were paid in to the joint bank account and were used for family purposes. As a result of leaving the work force, the husband lost the benefit of the serviced and fuelled company car.
During the course of the marriage, as a result of general extravagance at its inception, and the difficulties of the husband’s employment afterwards, the parties’ financial situation deteriorated. At the end of the marriage the parties had incurred the following debts in the husband’s name:
1. Husband’s Westpac bank overdraft in the joint names of the husband and Wendy S
$15,699.71
2. Husband’s American Express credit card
$12,717.39
3. Husband’s ANZ credit card
$934.77
4. Husband’s supplementary credit card
$388.73
5. Telstra telephone account
$233.29
6. Power account
$488.62
Total:
$30,462,51
During the time the husband was in receipt of work health payments, regular payments were able to be made in respect of the C Street unit mortgage and between July of 1999 and the time the parties separated, mortgage payments came from the account into which both parties’ salaries were paid, and accordingly the wife was making a direct financial contribution towards reduction of the mortgage.
Accordingly, it is my finding that the parties contributed all their income to joint purposes during the marriage and jointly incurred a significant amount of debt during the same period. At the outset, the husband brought in to the marriage property worth conservatively six times that of the wife. At the outset of the marriage they each had some “consumer debt” apart from the mortgage. The debt in the case of the wife being more significant than that of the husband. The wife has grave suspicions about the extent of the parties’ debt at the end of the marriage. I suspect this suspicion comes about as a result of the debts being in the husband’s sole name and because she has been kept in the dark about them. Now, in the context of the bitter nature of the separation between them, she is unwilling to accept that she has any responsibility for them. However, she cannot point to any definitive evidence that indicates other than that they were jointly incurred debts during the course of the marriage.
Indirect contributions during the marriage
The parties agree that the husband is a fastidious and tidy person around the home. They also agree that they are each adept in the kitchen. During the marriage they lived in a unit without extensive grounds or that required a large amount of upkeep. In the first 18 months or so of the relationship, both parties were engaged in the work force on a full time basis. They were busy people and enjoyed what seems to have been a social lifestyle. In those circumstances, I do not believe that the contribution of one or other of them as a home maker was markedly superior to the other.
The wife asserts that the behaviour of the husband abruptly changed when he came under insurance company surveillance. She asserts that he became reclusive and would not leave the home and that domestic chores were not done by him whilst she was at work.
The husband denies the truth of this. The surveillance records reveal he was reasonably active between April and May, a period in which the parties would have been preparing for the advent of N. I accept that the husband would have been reasonably difficult to live with during the period he was incapacitated for work. However, I do not accept that he became totally detached and incapable of performing any household tasks during that time. He does not strike me as that kind of person. Although he may have been anxious about being in company, I do not believe that he would have abandoned his fastidious habits around the home.
No doubt as a result of financial pressures, the wife returned to work relatively soon after N’s birth. She was on maternity leave for a period of three months. The husband remained at home. Although I accept that the wife played the major role in caring for N at the time of his birth, the wife was content to leave him in the care of his father from time to time for extended periods. This does not speak of a person who has abandoned all interest in either domestic duties or life in general. Caring for a child of N’s age is a demanding task. N was placed in creche at an early stage of his development for two to three days per week. At other times when his mother was at work, N was with his father, with his mother’s blessing. Accordingly, I do not believe that the husband had become essentially paralysed when he was in receipt of work health payments. No doubt he was difficult to live with from time to time. This difficulty may have also coincided with the breakdown of the marriage between the parties. In these circumstances, I am unable to find that one parties’ contributions as home maker or in any other indirect sense have been markedly superior to the other’s during the course of the marriage. They each played their part.
Events since separation
The parties separated on the 26th of July 2001. The wife left the former matrimonial home with N. Since that time the husband has borne all the expenses in relation to the unit property, at C Street, including body corporate fees, rates and of course the mortgage. The amount currently owing in respect of the mortgage is $160,700.00. The parties agree the property is currently worth $250,000.00. The wife took some furniture when she left the unit with N. She asserts that it is valued at $600.00, though no formal valuation has been provided. The parties agree that furniture valued at approximately $4,000.00 remained with the husband. The husband also had a motor scooter worth $1,000.00 and the wife still retained her motor vehicle, now debt free and worth $6,500.00.
Although there is some dispute as to the extent that the matrimonial debts have been discharged following separation, there is no dispute that liability for them remains with the husband and it will be incumbent on him to pay them in their entirety in the event that he has not done so already. As already indicated, these debts amount to some $30,462.51. This is a significant matter.
N has been in the sole care of the wife since separation. She has continued to work full time. As a result of financial necessity, she has been compelled to live with her parents in Nightcliff, where she pays board of $150.00 per week. N is in day care at a cost of $120.00 per week. There can be no doubt that the wife has received a minimal amount of financial support for N from the husband since the parties separated. She says that she has received only $500.00 in financial support from the husband in that time.
As she was entitled to do, the wife sought an administrative assessment of child support. The evidence of the various assessments of child support tendered before me is far from complete. It seems that initially the assessment of child support was $21.67 per month, assessed on the basis that the husband was unemployed, although it seems clear that he was at least partially in receipt of work health benefits at the time. The husband obtained employment in Cairns in April of 2002 until June of 2002, and as a result the assessment was increased to $237.00 per month to reflect that employment. The wife asserts that the assessment is currently $437.00 per month. However, the husband asserts that the assessment has reverted to $21.67 per month due to his return to unemployment. He has a letter in support of his contention from the Townsville office of the agency dated the 30th of August, 2002 which reads in part as follows:
“I am writing to advise you that due to a system problem, your child support assessment and debt are currently inaccurate. Until the system problems are rectified no enforcement action will be undertaken. Please continue to pay $21.67 per month.”
The wife has tendered a certificate pursuant to section 116(2) of the Child Support (Registration and Collection) Act 1988 dated the 9th of September, 2002. This certificate indicates that the husband has a child support debt of $2,273.73. For reasons that will be provided shortly, I am of the view that the assessments of child support that have been made do not reflect the financial reality of the father’s situation. Certainly not since September of 2001. However the wife has apparently not sought any departure from the various assessments pursuant to Part 6 of the Child Support (Assessment) Act , nor before me were any formal applications brought pursuant to Part 7 of the Act, and in particular under section 115 of that Act.
During her closing submissions, counsel for the wife made such an application orally. In large part, I think, as a result of questions that I asked of her. Counsel for the husband opposed the application on the basis of the shortness of notice with which his client had been provided in respect of it and the lack of documentation to support it. Bearing in mind the provisions of Order 31B of the Family Law Rules, the paucity of evidence available to me regarding the actual assessments in effect at the relevant times and also because of the lateness of the application, I felt that I had no option but to reject it. However, the current situation and in particular the application to it of section 79(4)(g) of the Family Law Act, left me with a sense of disquiet, to which I will return.
In the light of the husband’s financial situation from September 2000 onwards, his attitude to the financial support for N does him no credit at all. I can well understand the chagrin the wife feels at seeing the husband enjoying an apparently affluent lifestyle, but being unable or unwilling to financially support his son. This state of affairs has undoubtably heightened suspicion and antipathy between the parties.
The two most significant matter that have occurred since separation are as follows. Firstly, in late August of 2001, the husband compromised his work health action against his former employers. Secondly, on the 19th of November, 2001, the Local Court awarded him the sum of $25,000.00 plus costs in respect of his claim brought pursuant to the Crimes (Victims Assistance) Act of the Northern Territory.
The work health action was compromised on the basis of the husband receiving the sum of $85,000.00 plus his costs in exchange for discontinuing his work health action against his former employers. This sum was calculated on the basis of arrears of work health payments due to him from the 8th of October, 1998 (the date of his injury) until the 31st of August 2001 (the nominal date of the compromise). This was a sum of $21,171.15 gross. The husband subsequently paid $6,445.50 tax on this sum. The balance of the $85,000.00 was calculated on the basis of the husband being totally incapacitated for work for a further period of one year commencing the 31st of August, 2001. His annual salary for this period of incapacity was agreed to be $66,451.84, which sum included a figure attributable to him having the personal use of a motor vehicle provided by his employer. There was also an allowance made for future medical expenses in the sum of $3,589.96 and a part of the sum was required to be paid to the Health Insurance Commission in respect of past medical expenses. All in all, the husband received approximately $62,000.00 in his hand, the majority of which was attributable to future lost wages for the year ending the 31st of August, 2002. The husband entered a deed with the insurer to effect the settlement.
As a result of this settlement, it seems to me to be inappropriate that the Child Support Agency would assess the husband’s liability to pay child support on the basis that he was unemployed. However, as I say, the wife has not sought a departure from past administrative assessments on the basis that the income, earning capacity, property and financial resources of the husband are not properly reflected in those assessments.
Pursuant to the provisions of the Crimes (Victims Assistance) Act 1999, the Northern Territory Government operates a scheme to compensate the victims of crime within the Northern Territory. Pursuant to section 9 of this Act, compensation is payable to victims of crime up to a maximum of $25,000.00 to compensate them in respect of the following matters:
a)expenses actually incurred as a result of the injury suffered by, or the death of, the victim;
b)pecuniary loss to the victim as a result of the total or partial incapacity for work;
c)pecuniary loss to the dependants of the victim as a result of his death;
d)any other pecuniary loss arising in consequence of injury suffered by, or the death of, the victim and any other expenses reasonably so incurred;
e)pain and suffering of the victim;
f)mental distress of the victim;
g)loss of the amenities of life by the victim;
h)loss of expectation of life by the victim;
i)loss of, or damage to, the clothing of the victim being worn at the time of the commission of the offence.
However, pursuant to section 13 of the Act, compensation is not to be paid where a victim of a crime has already received payment in respect of lost wages pursuant to the work health legislation as a result of injuries sustained by reason of that criminal conduct.
On the 19th of November, 2001, the husband was awarded a Crimes (Victims Assistance) Certificate in the sum of $25,000.00 plus costs in respect of the injuries he received in the assault on his person on the 8th of October, 1998. As a result of the provisions of section 13 of the Crimes (Victims Assistance) Act, none of this sum was attributable to direct pecuniary loss. The sum was calculated by the Local Court in respect of pain and suffering, mental distress and loss of amenities of life sustained by the husband as a result of the assault. After payment of all necessary solicitor/client costs, the husband received a total amount of $23,452.82 by way of the award of compensation to him.
The husband left Darwin in October of 2001. The C Street unit was rented for the sum of $340.00 per week. The reason the husband left Darwin was because he was advised by his treating psychiatrist that it would be beneficial for his mental health if he lived in another location. As a result, the husband spent much of the period between October and the beginning of 2002 travelling around Australia. He went to Perth, Adelaide, Melbourne, Brisbane and Cairns before deciding to settle in Cairns.
It is the husband’s evidence that between October of 2001 and the present time he has expended all of the sum of approximately $85,000.00 that he received by way of settlement of his work health claim and crimes compensation application. He has also had the sole benefit of the rental from the C Street unit. He testified that this money had been spent on car rental, hotel accommodation, cigars, clothing, payment of some of the matrimonial debts and his removal expenses from Darwin to Cairns.
The wife is deeply suspicious regarding this orgy of spending, as am I. This is particularly so given that the husband has testified that his current level of credit card debt and his overdraft still total an amount of $35,900.00. Apparently sums that have been incurred in addition to the monies spent by the husband. This seems an extraordinary situation for a person who was apparently, prior to his marriage to the wife, a reasonably prudent financial person. The inescapable conclusion that I have reached is that the husband is determined to ensure that the wife receives no part of either his work health settlement or the crimes compensation payment. The wife is deeply suspicious of the husband’s conduct since he left Darwin in October of 2001. However, she is unable to point to any location where the husband may have concealed any sums of money. Accordingly, I have reached the conclusion that both the work health settlement and the crimes compensation award have been spent by the husband. As a result, they are not sums that can be listed in the parties’ joint assets available for division between them. However, for reasons that will be provided in due course, I am of the view that the husband’s conduct in respect of these sums, is relevant to a consideration of how his contribution to acquiring the current assets of the parties should be assessed, albeit to a limited degree.
The husband has now settled in Cairns and intends to remain living there. He is currently living in rented accommodation. He is not presently in paid employment. He deposes that at the present time his only source of income is the rental from the C Street unit which is $309.00 net per week after payment of expenses. He further deposes that his living expenses vastly exceed his income. It is his position that he is presently living on credit until he obtains employment. I am of the view that the husband has painted as dire a position as possible in respect of his current financial position in order to minimise any payment that he may have to make to the wife. In particular the husband deposed that he now has considerable credit card debts, although it is difficult to ascertain to what these debts relate. The husband obtained work as a used car salesman at Pacific Toyota in late March of 2002. I accept that his employment was terminated in June of 2002 due to his lack of sales. Because of his work health settlement he has not been eligible for payments of social security. As a result of the psychological difficulties he has experienced in the used car business, he is presently hoping to obtain a job in sales with the Yellow Pages in Cairns. However, at the present time, he does not have sufficient computer skills for this employment. He is presently trying to train himself so that he can be so employed. He is confident that he will get employment in due course. However, this employment is likely not to be as remunerative as his employment in the used car industry.
The wife will remain in her current position with the Northern Territory public service. She continues to live with her parents, but wishes to be independent of them. It is for that reason that she wishes the Court to make orders that will result in the transfer of the C Street unit to her, subject to the mortgage. She believes that she has sufficient income to be able to service the mortgage at its current level. She believes that this is the best option to provide her and N with a stable home environment for the future. She wishes for N to be privately educated.
I find that the assets of the parties available for division are as follows:
9 / 9 C Street, Fannie Bay
$250,000.00
Wife’s car
$6,500.00
Furniture in possession of the husband
$4,000.00
Furniture in possession of the wife
$600.00
Husband’s motor scooter
$1,000.00
Total:
$262,100.00
The parties agree that the mortgage on the property is currently $160,700.00. The husband testified that he has paid the majority of the parties’ debts existing at the end of the marriage, although I have some ambivalence about his evidence in this regard. In any event, neither party sought any sum in respect of these debts be taken into account. I am troubled by the issue of the wife’s engagement ring. The husband annexed to his affidavit a document entitled “Jewellery Valuation”. It is provided on the letterhead of S & J Miles, Creative Jewellers of Smith Street, Darwin. The document reads as follows:
“This appraisal is for insurance purposes only, and not to be used for purchase or sale of the items set forth herein”.
The estimated value is given as $10,876.00. The wife does not accept the valuation. It is her position that she was not in a position to cross-examine the writer of the document or question her expertise. The husband’s affidavit was filed the day prior to the hearing on 11 September, 2002. No evidence was given as to the ring’s actual purchase price or whether it was intended as a gift, as one would expect it to be. In those circumstances I do not propose including it in the list of the parties’ assets available for division. Accordingly, the asset pool available to be distributed between the parties stands at an amount of $101,400.00.
The financial resources of the parties are their future entitlements to superannuation. As the law currently stands these items cannot be regarded as property. In each of the parties cases, it is as follows:
The Husband
AMP $20,000.00
The Wife
Colonial Mutual $5,000.00
Section 79(4)(a) to (c)
I now turn to the second of the steps in the exercise under section 79, namely an assessment of the parties’ contributions within the context of section 79(4)(a) to (c). These provisions are as follows:
Section 79(4) In considering what order (if any) should be made under this section in proceedings with respect to any property of the parties to a marriage or either of them, the court shall take into account –
a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;
b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;
c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent.
In my view, the most significant factor is, that in this short marriage of approximately three years, the husband brought into it the overwhelming majority of the assets. The wife moved into an established unit, furnished and owned by the husband. At the outset of the marriage the husband also had savings and funds from the sale of his business which he injected into the marriage. The wife had only her car. During the marriage, the mortgage on the C Street unit has been reduced by about $12,000.00. The husband has consumed his savings. The parties incurred large debts which the husband has paid, or will pay. In my view, these factors lead to the conclusion that the overwhelming contribution has been made by the husband. This is not a case where, as a result of the passage of time or other intervening event, that his large initial contribution can be discounted or given less weight.
The Full Court of the Family Court in the Pierce v Pierce (1999) FLC 92 - 844 at page 85, 873 said as follows:
“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 weight 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. In the present case that use was a substantial contribution to the purchase price of the matrimonial home…”
In my view, a large degree of weight needs to be attached to the husband’s initial contribution. The wife came into an existing domestic situation into which she needed to add very little. Any increase to the value of the assets, in particular the C Street unit has, in my view, been largely peripheral to any conduct or contribution made by her. The mortgage on the property has been reduced by a small degree during the marriage, whereas on the other hand, substantial debt has been incurred by the parties which the husband has borne.
There remains the question of whether the husband’s conduct in respect of his work health and crimes compensation payment, should be factored into the assessment of the contribution of each of the parties to the property of the marriage, on the basis that the husband’s conduct has led to a significant reduction of the quantum of the assets that might otherwise have been available to be divided between the parties. The difficulty is that although the event that precipitated the award of compensation monies occurred during the marriage, the monies were received after its conclusion and have been consumed since. In addition, in my view, in assessing this matter, it is necessary to make some examination of the nature of the payments received by the husband to assess what, if any additional weight should be given in respect of contribution as a result of those payments to him.
In Aleksovski v Aleksovski (1996) FLC 92 – 705 at page 83, 437 it was held as follows:
“In most cases, a damages verdict arising from a personal injury claim, whenever received, is a contribution by the party who suffered the injury. It should not be considered in isolation, for the reason that each and every contribution, which each of the parties makes to the relationship, must be weighed and considered at the same time.”
Firstly, there is the crimes compensation award. This was to compensate the husband for the pain and suffering and loss of the amenities of life he suffered as a result of being brutally and unprovokedly assaulted. The pain suffered by the husband and the deterioration of his eyesight, with all the anxiety that must have caused, are matters personal to the husband himself. There is no evidence that the wife took any special pains to nurse the husband following the assault or took time off her work. In fact, both parties seemed to have tried to go on with life as normal following the assault. The husband continued to work for over 12 months following the assault. I do not accept that it can be said that the wife has contributed to the award in any significant way because the husband was especially difficult to live with. Certainly no aspect of the compensation is attributable to this factor. In those circumstances, I cannot see how the wife contributed in any meaningful way to the acquisition or preservation to the crimes compensation award. The pain and loss was the husband’s alone. Accordingly, it matters not that the compensation money has been spent.
In terms of the work health settlement, the majority of that is income for the period of 12 months following the parties’ separation. Although I am suspicious at the ease and the speed with which it has been consumed, it is still largely income and the husband has had only other limited forms of income since he and the wife separated. Following the parties’ separation, it was still necessary for the husband to maintain himself, albeit the way he has chosen to do so has smacked of fiscal irresponsibility and malice towards the wife. True it is, that a portion of the settlement is attributable to wages due to the husband for a portion of the marriage. However, the husband went into debt to compensate for the loss of wages during this period and has remained liable for that debt.
Accordingly, I am of the view that it cannot be said that the wife has contributed indirectly, in any significant way to either the crimes compensation payment or the vast bulk of the work health payment. As a result, I do not believe that the wife’s percentage assessment of contribution should be increased to any significant degree as a result of the husband’s consuming the monies attributable to these awards following separation.
Taking all these matters in to consideration leads me to the view that, as a result of their respective contributions, the assets of the parties should be apportioned 90% to Mr S and 10% to Ms S.
Section 79(4)(d) to (g)
I now turn to the third step in the process of apportioning the assets available for distribution between the parties.
d) The effect of any proposed order upon the earning capacity of either party to the marriage
The orders that I propose making in this matter will not affect the earning capacity of either party to these proceedings.
e) The matters referred to in sub-section 75(2) so far as they are relevant
a) The age and state of health of each of the parties
The husband is 47 years of age. Fortunately it seems that with further laser surgery his eyesight will be returned to near normality following the injuries he suffered in the assault on him in October of 1998. I was not provided with any expert medical or psychiatric evidence in respect of the current state of his mental health. However, the husband indicated that he felt largely recovered from his traumatic stress disorder, other than that he feels anxious about reinvolving himself in the business of selling either new or used cars. From my observations of him in the witness box, I did not form the view that he was a malingerer. I accept that he will not be able to return to this type of employment in future. This will have significant consequences for his level of future earnings. He is by trade a motor mechanic. However, given the period of time since he has practised this trade and his current age, it is not reasonable to expect him to resume this type of work. Apart from this matter, there appears no reason by virtue of his health that will prevent him resuming full time employment.
The wife is 31 years of age. She is in good health and currently employed on a full time basis in the work force. I have no reason to believe that she will not be able to be so employed for the foreseeable future.
b)The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
The husband is ostensibly a personable and charming man. It certainly seemed to me that he has the gift of the salesman. I have no reason to believe that he will not be able to obtain reasonably paid employment in the future. Similarly the wife is well placed to continue in the workforce.
c)Whether either party has the care or control of a child of the marriage who has not obtained the age of 18 years
The bulk of the responsibility for the day to day care of the child of the marriage, N will in future be borne by the wife. As N is only just over two years of age, that responsibility will endure for many years and will be a significant burden to be borne by the wife. The conduct of the husband to date indicates that he will not willingly contribute to the financial support required for N. Regrettably, the wife seems to have been unaware of mechanisms which are available to her in respect of child support assessments. However, on any view, the future care of a child of N’s age is a significant matter.
d)Commitments of each of the parties that are necessary to enable the parties to support:
(i)himself or herself;
(ii) a child or another person that the party has a duty to maintain;
Neither of the parties has commitments other than those necessary to support himself or herself and their child.
e)The responsibilities of either party to support any other person;
Neither party has a responsibility to support any one other than each other (to the extent such maintenance may be required) and their child.
f)The eligibility of either party for a pension, allowance or benefit under
(i)any law of the Commonwealth, of a State or Territory or of any other country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established or operates within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party;
The parties each have a comparatively modest amount of superannuation. The amount of superannuation the husband has accumulated is approximately five times of that of the wife. However, he is also fifteen years older. The wife will be able to increase her superannuation over the coming years. I do not regard that this factor is particularly significant in this case.
g)Where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;
There can be no doubt that the wife has suffered a significant deterioration in her standard of living since the parties separated. She is now living with her parents and is paying rent. She has significant weekly expenses in respect of day care for N. However, the marriage between the parties was a short one. It seems to me that to a large extent the parties were living somewhat beyond their means during the marriage. This is the only real explanation for the level of debt at its conclusion. In those circumstances I do not believe that this is a significant factor in this case.
h)The extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
j)The extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
k)The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
This is not a case where either party makes application in respect of spousal maintenance. However, the marriage between the parties was, as I say, a brief one and in my view cannot be said to have contributed to any significant diminution in the wife’s ability to earn income.
l)The need to protect a party who wishes to continue that party’s role as a parent;
As a result of financial necessity, the wife returned to the work force within 3 months of N’s birth. Once again, given the length of the marriage and the circumstances, I do not believe that this is a significant consideration.
m) If either party is cohabiting with another person – the financial circumstances relating to the cohabitation;
Neither party is cohabiting with another person nor is it likely in the foreseeable future that this situation will change.
na) Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;
On any view, the child support provided by the husband in respect of N to date has been woefully inadequate. It has not in any way reflected what I have found to be the husband’s true financial position following separation. In fact, the husband might well be accused of having attempted to avoid any financial responsibility for maintaining N. On the other hand, the wife has not sought in any formal or meaningful way to challenge the existing assessment of child support. This state of affairs leaves me somewhat perplexed. However, I have reached the view that it is inappropriate for me to in effect make a departure from the past and current assessments in an informal way pursuant to the provisions of section 79(4) of the Family Law Act.
In the Marriage of Bolton 15 FamLR 615 at 623 Cohen J. said as follows:
“The husband has not paid any monies to maintain the wife or child since the parties separated. Pursuant to the Family Law Act 1975 (Cth) Section 75 (2) (na) I must take into account the fact that the husband has not provided child support. I cannot understand how this can affect the respective entitlements of the parties to share in the total family assets. Whether or not the husband has contributed to child support would not alter that total. The result would be different if a global approach was not being taken, but an approach which involves examination of specific contributions to individual assets was being taken”.
In my view, there is nothing to indicate in the evidence that once he returns to paid employment, the husband will not pay the proper amount of child support as assessed by the Agency in respect of whatever level of salary he receives. For reasons that are not altogether clear to me, the Agency has chosen to assess the husband for the period since August 2001 on the basis that he has been unemployed. When he was employed by the car yard in Cairns, the assessment changed. The husband has taken no steps to disabuse the Agency of his real position in respect of income from his work health settlement. But on the other hand, as far as I know, neither has the wife. In those circumstances, I do not believe that it is appropriate, in the absence of any formal application pursuant to Part 7 of the Child Support (Assessment) Act to make a prospective adjustment in favour of the wife in anticipation that the husband will not pay child support if, and when he returns to the work force and another assessment is levied against the husband on that basis. Similarly, this is not a case where an application has been brought by the wife for an order for the provision of child support otherwise than in the form of a periodic amount. The wife has not made an application pursuant to Division 5 of Part 7 of the Child Support (Assessment) Act.
As far as I can determine, it is open to the wife to seek a departure from the Registrar of the Child Support Agency pursuant to Part 6 (A) of the Child Support (Assessment) Act in respect of past assessments of child support.
o)Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
I have already considered the issue of whether or not the husband’s conduct in respect of both his work health payment and the crimes compensation entitlement should be taken into account in these reasons for judgment.
f) Any other order made under this Act affecting a party to the marriage or a child of the marriage
There are no other orders made under the Family Law Act 1975 which affect a party or the child which needs to be taken into account, save for the parenting orders which will be made in this matter and which will result in the child continuing to live with the wife. A situation that has come about with the consent of each of the parties.
g) Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage
These provisions have been considered in relation to Section 75 (2) (na) above.
Conclusions
Taking all these matters into account, and in particular the fact that the wife will have the care of N, it is my view that it is appropriate that a further adjustment be made in favour of the wife. It is my view, that a just and equitable result requires the wife to receive by way of adjustment in her favour a further twelve and a half per cent of the matrimonial assets.
Twenty two and a half per cent of the asset pool is $22,815.00. The wife has in her possession assets to the value of $7,100.00 in the form of her car and furniture. The result of this is that she should receive the sum of $15,715.00 from the husband.
The husband has indicated that he wishes to sell the unit situated at C Street, Fannie Bay. If this continues to be his intention, it is my view that he should bear the costs relating to the sale of that unit. Accordingly, I propose making an order that the husband pay to the wife the sum of $15,715.00 within sixty days of today’s date, otherwise each party should retain the assets currently in their respective possession. In my view, such a result represents a just and equitable settlement of the property proceedings between the parties.
Bearing in mind all the factors in this case, chiefly the brief duration of the marriage, the overwhelming initial financial contribution of the husband and the fact that the wife has the ongoing responsibility of N, it is my view, that a payment of $15,715.00 to the wife represents a just and equitable result in this matter.
Applications in respect of parenting orders for N
The law to be applied
The applications of both parties concern parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B(1) of the Act sets out the object of this part of the Family Law Act. The object is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principals underlying this object are set out in Section 60B(2) of the Act. These principals include, except where it would be contrary to a child’s best interests, the following:
a)Children have the right to know and be cared for by both of their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
b)Children have a right of contact on a regular basis, with both of their parents and with other people significant to their care, welfare and development;
c)Parents share duties and responsibilities concerning the care, welfare and development of their children;
d)Parents should agree about the future parenting of their children.
In the present case, regrettably the parties are unable to agree about the future parenting arrangements for N.
The application of these objects is subject to the provisions of Section 65E which regards the best interests of the child concerned as being the paramount consideration in the making of a determination concerning the care of children.
In deciding the parenting arrangements that would promote the best interest of a particular child, the Court must consider the various matters set out in section 68F of the Family Law Act. The various sub-sections contained in section 68F(2) 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 in any orders made by the Court, and in this regard I refer to B and B: Family Law Reform Act (1997) FLC 92-755. The matters that are to be taken into account under section 68F(2) are:
a)the wishes expressed by any child concerned;
b)the nature of the relationship between the child with his or her parents;
c)the likely effect of any change in the child’s circumstances;
d)the practical difficulty and expense of a child having contact with a parent, and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
e)the capacity of each parent or any other persons to provide for the needs of the child, including the child’s intellectual and emotional needs;
f)the child’s maturity, sex and background;
g)the need to protect the child from physical or psychological harm;
h)the attitude of the parties to the responsibilities of being a parent;
i)any family violence that may involve the child or a member of the child’s family;
j)whether it will be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child concerned.
There is no dispute between the parties that it is in N’s best interests that he continue to live with his mother. The areas of dispute between the parties relate to how they should share responsibility for N’s long term care, welfare and development and the contact the husband should have to N in future.
As I have already indicated, the parties share a mutual antipathy for one another. I suspect that this is the reason why the wife wishes to exclude the husband from responsibility for N’s long term care, welfare and development.
It is a significant thing to exclude the husband from long term responsibility for decision making regarding N as the wife seeks. It is clear from an analysis of Part 7 of the Family Law Act, and in particular section 60B, that one of the objects of the Act is to promote the continuing role of both parents in the lives of their child, no matter what the parent’s marital or relationship status might be (Cooke & Stehben (1999) FLC 92-839). To exclude the husband from long term responsibility for N does not accord with this object. For that reasons I do not propose to make such an order.
Clearly, N is too young to express any meaningful wish in respect of his ongoing contact with his father.
At the present time, the evidence would appear to be that N’s relationship with the husband is somewhat fractured. After an initial period of extensive involvement with the care of his son, the husband for a number of reasons, has withdrawn from that relationship. Without wishing to sound trite, the relationship between a child and his father is one of the most important of human bonds. A child is entitled to know his father during the course of his life. It would be tragic if, during his immaturity that N was deprived of the opportunity of developing this central relationship in his life and, upon attaining his maturity, came to look back with regret at having lost the opportunity to have a close bond with his father.
In these circumstances, I am somewhat concerned at the attitude to the parenting that both parties have displayed in this matter. The husband has not applied himself in any meaningful way to financially maintaining N, and the wife on the other hand, although outwardly supportive of contact between the husband and N, appears to me to be tacitly dismissive of it. I have grave concerns, given the mistrust between the parties, that an arrangement where by the husband has contact with N on the basis of agreement between the parties, is one fraught with difficulty.
To his great credit, the husband realises that there are considerable practical difficulties standing in the way of him having regular contact with N. The chief of these is that the husband has chosen to live in Cairns. He recognises that it will be necessary for him to come to N in Darwin until N is old enough to travel unaccompanied. His proposals for contact are as yet unclear. This is inevitable given N’s tender years, and the practical difficulties that currently stand in the way of him having regular contact to N. He does however concede that in the period of the next few years, his contact with N must be gradual and supervised. Thereafter, other than in a general sense, the husband has not turned his mind to how he will have contact to N when N is more familiar with him and is able to talk with him on the telephone and travel from his home to Cairns. The husband has no specific proposals for contact in this regard.
Notwithstanding the fact that the husband has had little involvement with N for approximately twelve months, I have no reason to believe that he is not capable of meeting N’s emotional and intellectual needs during any period of contact. There is no evidence that N needs to be protected from any physical or psychological harm. Although his parents are at odds with one another in many different ways, I am satisfied that each of them loves N very much and wants the best outcome in life for him.
One of the major difficulties in this case is that it is as yet impossible, or at best very difficult, to formulate a definite regime for the husband to have contact to N in the future. There are as yet too many imponderables. I have grave doubts that the parties will be able to easily agree as to future arrangements for contact as the wife proposes. Although it would be preferable to be able to outline a definitive regime for contact so as to avoid the necessity of the parties having to return to Court in future to seek other orders, it may be inevitable that as N grows older that the parties will have to seek other orders.
I think that in the circumstances that it is appropriate that I make general, graduated orders for contact between N and the husband in Darwin until the time that it is expected that N will start school. Thereafter, all the difficult issues of N travelling for contact, whether he should be accompanied during that travel and how this should be paid for will start to rear their heads. I may be accused of being a jeremiah in this regard, but it seems to me that neither party has turned their minds to these issues. It may be that in four years time that these will not be difficult issues for the parties to resolve. However, at this point of time, I have no way of knowing. I am fearful of making orders on the basis of the limited evidence that is available to me. It will also be necessary to some extent for the husband to develop his relationship with N in these difficult circumstances. He will need to make the regular commitment to come to Darwin to see N. He will also have to develop the trust of the wife. How readily both N and the wife will cope with extended holiday contact away from Darwin is yet unknown. N is only two, it is a fatuous exercise to outline contact arrangements in other than general terms.
For all these reasons the orders of the Court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Brown FM
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