S and S
[2001] FMCAfam 186
•31 July 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| S & S | [2001] FMCAfam186 |
| FAMILY LAW – Contact – parenting issues – varying orders – best interests of the children. FAMILY LAW – Property – just and equitable – valuation of property – contributions – Family Law Act 1975, s60B, 65E, 68F(2), s75, s79(1), (2), (4). B & B (1997) FLC 92-755, Pastrikos and Pastrikos (1980) FLC 90-897, Mallet and Mallet (1984) FLC 91-507, Williams and Williams (1985) FLC 91-628, Crawford and Crawford (1979) FLC 90-647, Campbell and Kuskey (1998) FLC 92-795, Horsley and Horsley (1991) FLC 92-205. |
| Applicant: | F J S |
| Respondent: | A W S |
| File No: | ZP 20 of 2001 |
| Delivered on: | 31 July 2001 |
| Delivered at: | Parramatta |
| Hearing Dates: | 17 & 18 April 2001 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Campton |
| Respondent in person: | The husband in person |
ORDERS
Order 2 made by the Local Court of NSW at Campbelltown is discharged.
The Applicant father is to have contact with the children A L S and
J A S (both born on 4 July 1995) as follows:(a)Each alternate weekend from the time school finishes on Thursday afternoon until the commencement of school on the following Monday, except when that Monday is a public holiday, in which case the contact is to conclude at the commencement of school on the Tuesday, commencing on Thursday 24 May 2001;
(b)for the second half of each school holiday period, commencing at 9.00 am on the Saturday morning;
(c)on the children’s birthday and on the father’s birthday, for a period of not less than three hours if the day falls on a school day, and for a period of not less than six hours if the day falls on a day other than a school day;
(d)on the weekend on which Father’s Day falls in each year, from 4.00 pm on the Friday to 6.00 pm on the Sunday, unless such weekend is one when the father would normally exercise contact pursuant to Order 2(a) hereof, in which case Order 2(a) shall apply;
(e)from 10.00 am on Christmas Eve to 4.00 pm on Christmas Day, commencing on 24 December 2001, and each alternate year thereafter;
(f)from 4.00 pm on Christmas Day to 6.00 pm on Boxing Day, commencing on 25 December 2002, and each alternate year thereafter; and
(g)at such other times as the parties shall agree between themselves.
The father shall not exercise contact with the children pursuant to Order 2(a) hereof on the following occasions:
(a)for the weekend during which Mother’s Day falls, commencing at 4.00 pm on the Friday;
(b)during school holiday periods; and
(c)on the mother’s birthday.
The father shall have telephone contact with the said children on every second day that the children are not in his care for a period of not less than ten minutes between the hours of 5.30 pm and 6.30 pm or at such other times as the parties shall agree.
The mother shall have telephone contact with the children on every second day that the children are not in her care for a period of not less than ten minutes between the hours of 5.30 pm and 6.30 pm or at such other times as the parties shall agree.
Where the children are not available or will not be available for telephone contact at the times specified in Orders 4 or 5, then the party in whose care the children are at that time shall provide the other party with an alternate telephone number upon which the children may be called or will arrange for the children to telephone the other party within 24 hours.
For the purposes of exercising contact specified in order 2(a), the father shall collect the children from school at the commencement of contact and shall return them to school at the conclusion of that contact.
For the purpose of exercising contact other than that specified in Order 2(a), the father shall collect the children from the mother’s residence at the commencement of contact and the mother shall collect the children from the father’s residence at the conclusion of contact.
That within one month from the date of these orders the husband:
(a)pay to the wife the sum of $32980.30; and
(b)take all necessary steps, whether by way of re-finance or by obtaining a deed of release from St. George Bank, to ensure that the wife is removed from any liability for the home loan from the St. George Bank secured by mortgage over the former matrimonial situate at and known as 8 C Street, K.
That simultaneously with the payment referred to in Order 9 hereof, the wife transfer to the husband all of her right, title and interest in the former matrimonial home situate at and known as 8 C Street, K, being the whole of the land in Certificate of Title Folio Identifier 7/793911.
That pending the transfer to referred to in Order 10 hereof, the husband continue to pay as they fall due all regular instalments in respect of the said mortgage, Campbelltown City Council rates, water rates and household insurance in respect of the former matrimonial home and the husband pay forthwith any arrears in respect of any of the said instalments.
That from the date of the transfer of the former matrimonial home referred to in Order 10 hereof, the husband indemnify the wife and keep her indemnified in respect of all outgoings associated with the former matrimonial home including mortgage payments, Campbelltown City Council and water rates and insurance.
That in the event the husband fails to comply with Orders 9 and 11 hereof, each party take all necessary steps to execute all necessary documents and instruments to cause the former matrimonial home to be sold by private treaty at the earliest possible date at a price to be agreed on between the parties or failing such agreement to be determined by the President of the Real Estate Institute of New South Wales or the President’s nominee and that the proceeds of sale be disbursed as follows:
(a)payment of agents’ commission and advertising expenses and legal expenses of sale;
(b)discharge of mortgage to the St. George Bank;
(c)the sum of $14,907.00 to the Bankstown City Credit Union;
(d)the sum of $32,980.30 plus interest at the rate specified in the Family Law Rules, calculated from the date of these Orders, to be paid to the wife;
(e)the net balance to the husband.
That within one month from the date of these Orders the husband deliver to the wife the following:
(a)the wife’s personal effects including the bouquet from her friend’s wedding;
(b)half of the glassware stored in the black wall unit in the former matrimonial home; and
(c)the two cots and the portable cot, the twin pram and high chair, the two baby car seats, the baby clothes, the videos of the children as babies, the ultrasound video, the time capsules prepared for each of the children.
That subject to the preceding, the husband and wife be declared to have the sole right, title and interest in:
(a)any chattels, goods, motor vehicles, furnishings and other property which are, at the date hereof, in their respective possession;
(b)any moneys, shares, superannuation, leave entitlements, debentures, which stand in their sole name respectively at the date of these Orders.
That the husband and wife do all acts and things and give all consents and execute all deeds instruments and documents necessary to give effect to these Orders.
That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar or Deputy Registrar of the Federal Magistrates Court be appointed pursuant to Section 106A of the Family Law Act 1975 to execute such deed or instrument in the name of such party and to do all acts and thing s necessary to give validity to the operation of the deed or instrument.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
ZP 20 of 2001
| F J S |
Applicant
And
| A W S |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the wife both to vary certain orders for contact, which were made by consent at the Campbelltown Local Court on 4th April 2000 and for property orders. The wife seeks that the husband should pay to her the sum $60,000.00 by way of property settlement and that in return she should transfer to him all of her right, title and interest in the former matrimonial home at K, subject to his indemnifying her in respect of any liability under the mortgage over the property.
The wife further seeks that the husband deliver to her certain items of furniture, some personal effects, an amount of glassware and some cots, baby car seats and other items pertaining to children.
The proceedings were originally commenced in the Family Court of Australia at Parramatta on 4th December 2000, and they were transferred by consent to the Federal Magistrates Court that same day. The application was heard at this Court on 17th and 18th April 2001.
Background
The husband was born on 9th November 1967, so he is now 33 years old. The wife was born on 19th March 1970, so she is now aged 31 years. The parties commenced cohabitation in early 1988 and were married on 15th February 1992. They purchased a house at 8 C Crescent at K in November 1990 and lived there until they separated on 29th June 1999. The husband remains living in the property.
There are two children of the marriage, twin daughters named A L S and J A S. They were born on 4th July 1995, which makes them 6 years old. There are no other children. The children live with the mother. The husband applied to the Local Court at Campbelltown for parenting orders, and on 3rd April 2000, the parties signed terms of settlement, which led to consent orders being made the following day. Neither party was legally represented.
The Consent Orders provided that:
a)the children were to reside with the mother;
b)the father was to have contact each alternate weekend from Thursday afternoon to Monday morning, one overnight period on the off weekend, the second half of each school holiday period, the entire Father’s Day weekend, by telephone every other day, any time when the mother needs the children to be looked after for more than four hours, and other times as agreed;
c)the mother keeping the father informed about school matters; and
d)the mother informing the father about the children’s health and medical issues.
The parties’ proposals and orders sought
The wife seeks to vary the contact orders by reducing the frequency of the husband’s contact with the children to the following:
a)each alternate weekend from Friday afternoon to Sunday afternoon;
b)half of each school holiday;
c)10.00 am on Christmas Eve to 4.00 pm on Christmas Day in 2001 and each alternate year thereafter;
d)4.00 pm on Christmas Day to 4.00 pm on Boxing Day in 2002 and each alternate year thereafter;
e)on the weekend of Father’s Day, from 4.00 pm on Friday to 5.00 pm on the Sunday.
The wife also seeks orders that the husband’s contact be suspended:
a)on the weekend of Mother’s Day;
b)during school holidays except for school holiday contact; and
c)for four hours on the children’s birthday.
Other contact orders sought deal with telephone contact on alternate days when the children are in the care of the other party, and pick-up and delivery of the children in connection with contact. These proposed orders are relatively uncontroversial.
The husband, in his Amended Response filed on 5th April 2001, opposes any change to the parenting orders.
The wife seeks property orders to the following effect:
a)that the husband pay her the sum of $60,000.00 within two months;
b)that he indemnify her in respect of the mortgage over the home;
c)that she transfer her interest in the home to the husband;
d)that the husband pay the ongoing instalments on the mortgage, the insurance on the property and the council and water rates until the property is transferred to him;
e)that the property be sold if the husband does not pay to the wife the amount of $60,000 within two months;
f)that the husband indemnify the wife in respect of liability for a personal loan from the Bankstown City Credit Union;
g)that the husband deliver to the wife certain items of furniture and effects;
h)that the parties retain all other items currently in their possession; and
i)certain machinery orders in case either party fails to sign any necessary documentation.
In his Amended Response, the husband asks for orders that:
a)the house should be sold at a valuation of $200,000.00 and the proceeds applied to repayment of the mortgage, paying out other debts, and paying legal expenses of the sale;
b)that the net proceeds of the sale be divided as to 60% to the husband and 40% to the wife; and
c)the husband retain the motor vehicle in his possession and pay the wife the sum of $2500.00 for her interest in it.
Evidence
The wife relied upon her Financial Statement, her affidavit filed on 10th April 2001, and an affidavit of A W A, a Registered Valuer, filed on 11th April 2001. The husband relied upon his Financial Statement and his affidavit, filed on the day of the hearing.
The wife gave some brief oral evidence in chief, and was cross-examined, briefly, by the husband. Mr A was not required for cross-examination. The husband was cross-examined by Mr Campton of Counsel at some length.
Mr A’s affidavit set out his qualifications and experience as a registered valuer and annexed his valuation of the property at 8 C Street, K. In his valuation, Mr Alford cited example of other sales in the area, and set out his opinion that the current market value of the property as at 28th February 2001 was $190,000.00. There was no other evidence of valuation of the real estate.
In her oral evidence, the wife said that she and the husband had initially separated in the middle of 1989 and resumed cohabitation in 1990. This evidence was in reply to the husband’s contention in his affidavit that they had separated in 1988 and resumed cohabitation in about October 1989, living at C H for a month before moving into the house at K in November of that year. In cross-examination, she said that she worked for Cabling Contract Services at that time and could not remember either her take home pay or her outgoings at that time.
The wife’s evidence was that she worked for a number of employers on a full time basis when the parties began living together. The husband was employed by Otis Elevators. She had no liabilities when they began living together, but the husband had a personal loan from the Metropolitan Credit Union. She did not know the amount of the loan.
The wife said that the purchase price of the home at K was $124,500.00. They had jointly saved the deposit, stamp duty and legal costs, and the balance of the purchase price came from a loan from the St. George Bank. The house was purchased in joint names.
The wife said that the husband obtained a Visa Card from the bank, which she never used. She said that she did not see any statements and did not know to what use he put the card. She also said that, after they were married, the husband re-financed the MCU personal loan by obtaining a loan from the Bankstown City Credit Union. She said that she did not know the amount of the loan, nor did she ever see any statements.
The wife deposed in her affidavit that the husband worked full time throughout the time they were together, and she worked until about two months before she gave birth to the girls. The children were born on 4th July 1995.
The parties purchased a Holden Commodore motor car in 1996 for about $11,000.00. The wife believes that the purchase price came from a loan from the Bankstown City Credit Union. She said that he later increased his indebtedness to $25718.00, but does not know how he applied the money.
The wife said that she was the children’s primary caregiver from the time of their birth. She attended to the bulk of the housework.
It is the wife’s evidence that when the parties separated, their assets were the house and contents, the car, and bank accounts in each of their names. The bank accounts had only a nominal balance. The liabilities at that time were the mortgage on the house, the Bankstown City Credit Union loan, and the Visa account.
The wife deposed that she initially took clothing and children’s items when they separated, but she later returned and took some bunk beds bedding, a microwave oven, some kitchenware and a video recorder. She says that the balance of the furniture, whitegoods and electrical appliances remain in the possession of the husband.
Currently, the wife rents a house for $190.00 per week, which she shares with her sister and the children. Her sister makes a contribution to the rent and household accounts.
The husband remains living in the former matrimonial home. During that time, he has let the Council rates fall into arrears, to such an extent that the Campbelltown City Council commenced proceedings in the Small Claims Division of the Campbelltown Local Court for recovery of unpaid rates. Proceedings reached the stage that the Council obtained a judgment against the parties and applied for the issue of a Writ of Execution against the property of the parties. The writ was for the sum of $737.85. The wife says that the arrears of rates totalled $1296.40 at the dates of the hearing.
The wife says that the husband continued to meet the mortgage instalments on the house. The balance outstanding at the date of separation, namely $118,317.10, was reduced to $116,776.76 by the 29th March 2001.
The wife says that she has part-time employment from A & G Packaging. She also receives payments from Centrelink, along with payments of Child Support from the husband through the Child Support Agency. The husband is currently required to pay child support in the sum of $115.38 per week.
Turning to the parenting issues, the wife says that she is applying to vary the consent orders made at Campbelltown Local Court because she did not realise at the time the effect that the children commencing school would have upon contact arrangements. The children attend the Dawson Public School in D, which is about 3 minutes’ walk from the house where she lives with the children.
The wife says that the commencement of school for the children has made two aspects of the current contact arrangements inappropriate. The commencement of weekend contact with their father each alternate Thursday afternoon is tiring for the children, she says, because of the travelling time from school to and from the husband’s residence, about 40 minutes. She also says that the weekend contact arrangements are not in the children’s best interest, as they spend all or part of every weekend with their father. This does not allow her the opportunity to have outings on weekends or take the children away for the weekend.
The husband says that the personal loan that he had at the time the parties commenced cohabitation was paid out before the parties purchased the home. He annexed to his affidavit a copy of a statement from the Metropolitan Credit Union showing that he borrowed the sum of $5480.00 on 14th December 1990 to buy a Ford motor car.
The Visa Card account, the husband says, was paid out on 28th August 1998, and a fresh card was later obtained to pay for use of the Internet. The amount owing to the Bankstown City Credit Union came from consolidating loans for the purchase of the Holden car, the purchase of bedding for the children and for a computer. Mr Campton of counsel conceded during the hearing that the amount of $14907.00 owing to the Bankstown City Credit Union was a debt arising from the marriage.
The husband says that he was primarily responsible for cooking and preparation of all meals as well as attending to the garden and sharing all of the other housework apart from ironing.
The husband denies that the current contact arrangements are disruptive to the children, and says that a short period of midweek contact with the children would be disruptive. He also disputes that the contact on the off weekends deprives the mother of the opportunity to have an unbroken weekend with the children, as his overnight contact has of late been on the Sunday night, allowing him to take the children to school on the Monday morning.
One issue about which the husband gave oral evidence was his problems with his eyes. He has lost the sight of one eye and suffers from attacks of iritis in the other eye. These attacks, which are debilitating, happen about two or three times a year and require him to take time off work. It is his fear that any further deterioration in his one good eye will mean that he will be unable to continue in his employment.
The husband agreed in cross-examination that he would be happy for the court to make orders that the house should be sold “straight away”. He would continue to be responsible for the mortgage payments and the credit union loan, and he would agree not to draw down any more monies on the loan in the meantime.
The husband produced a document entitled “Summary of Argument”, in which he made a number of arguments about the appropriate orders that this Court should make. At paragraph 2.1.1 of that document, he makes the statement which I shall quote in full:
“I will deal with the child matters first, in order to diffuse (sic) any attempt by the wife to increase her property share by decreasing the contact of the children with their father, which, in my submission would be the only reason she is attempting to re-fry fish in relation to settled child matters”.
I would comment that I regard this comment as most regrettable, not only as it is not supported by any evidence whatsoever, but it shows a basic misunderstanding of the principles that the Court applies to property proceedings and contact arrangements. The attribution of some vague financial motive to the wife’s application to vary contact arrangements does not sit well with the husband’s description of the wife in his evidence on 18th April as “the best mother in the world, in my eyes”.
The principles to be applied
In dealing with matters involving children, the Court must be mindful of the object and principles set out in section 60B of the Family Law Act 1975:
“60B(1) The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
60B(2) The principles underlying these objects are that, except when it is or would be contrary to a child’s best interests:
i)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
ii)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
iii)parents share duties and responsibilities concerning the care, welfare and development of their children; and
iv)parents should agree about the future parenting of their children.”
Section 65E of the Family Law Act states that in deciding whether to make a parenting order in relation to a child, “a court must regard the best interests of the child as the paramount consideration”.
Section 68F(2) sets out the matters the court must consider when determining what is in the child’s best interests. They include:
i)any wishes expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s wishes;
ii)the nature of the relationship of the child with each of the child’s parents;
iii)the likely effect of any changes in the child’s circumstances;
iv)the practical difficulty and expense of the child having contact with a parent;
v)the capacity of each parent to provide for the needs of the child;
vi)the child’s maturity, sex and background;
vii)the need to protect the child from physical or psychological harm;
viii)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
ix)any family violence involving the child or a member of the child’s family;
x)any family violence order that applies to the child or a member of the child’s family;
xi)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
xii)any other fact or circumstance that the court thinks is relevant.
These three sections and their interaction were considered by the Full Court of the Family Court of Australia in B and B: Family Law Reform Act 1995, (1997) FLC 92-755, where Nicholson CJ, Fogarty and Lindenmayer JJ held that in proceedings under Part Vll relating to parenting orders, the best interests of the particular child in that case remains the paramount consideration. In that process the Court must consider the matters set out in section 68F to the extent that they are relevant in a particular case, the weight to be attached to any one consideration depending upon the circumstances of the individual case and is a discretionary exercise by the trial judge. Ultimately it is a question of applying in a commonsense way the individual sections so as to achieve the best interests of children in a particular case.
In property matters, the court must look to the provisions of Section 79 of the Act. Section 79(1) says:
“In proceedings with respect to property of the parties to a marriage or either of them, the court may make such order as it considers appropriate altering the interests of the parties in the property, including an order for a settlement of property in substitution for any interest in the property and including an order requiring either or both of the parties to make, for the benefit of either or both of the parties or a child of the marriage, such settlement or transfer of property as the court determines”.
In making such orders, the court must be mindful of section 79(2), which states that “The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”, and section 79(4), which sets out a number of matters to be taken into account by the court what order should be made, including:
a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage;
b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage;
c)the contribution made by a party to the marriage to the welfare of the family;
d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
e)the matters referred to in sub-section 75(2) so far as they are relevant.
The process which a court must undertake was set out by the Full Court of the Family Court in Pastrikos and Pastrikos (1980) FLC 90-897, where Evatt CJ, Pawley and Yuill JJ held that under section 79, the Court has to embark on a dual exercise. The first part of the exercise is to determine the nature and, as far as possible, value of the property of the parties in issue. Usually the whole of the parties’ property will be relevant. Then the court proceeds to make some assessment of the extent of each party’s contribution to those assets. The second part of the exercise is to consider the financial resources, means and needs of the parties and the other matters set out in section 75(2) so far as is relevant. The result of this exercise reflects a party’s contribution to property, a party’s needs, or a combination of both factors.
The High Court of Australia has considered the question of contributions by the parties to a marriage in Mallett v. Mallett (1984) FLC 91-507. The judgment sets out a number of principles:
a)There is no rule, principle or guideline that where assets are built up by the joint efforts of the parties to a marriage over significant period equality is a convenient starting point;
b)the contribution made by the wife as a homemaker and parent should be recognised not in a token way but in a substantial way; the contribution of a homemaker or parent is to free the other party to the marriage, usually the husband or father, to devote his time and energy to the pursuit of financial gain and so to make a real and substantial contribution to the acquisition, conservation or improvement of property where the moneys gained are used for any of those purposes; and
c)the respective values of the contributions made by one party as homemaker and parent and the financial contribution made by the other must depend entirely on the facts of the case.
In Williams v Williams, (1985) FLC 91-628, the High Court of Australia held that “the care by the respondent of the children after cohabitation ceased was a factor within section 79(4)(c)” (at 80093).
The husband referred the Court to the decision of the Full court of the Family Court in Crawford and Crawford (1979) FLC 90-647. In that case, the Full Court held:
“Since the basic examination under section 79(4) is of contribution either financial or as homemaker or parent, the legal title to a particular property may have little significance when the court is considering what alterations of property will be necessary to carry out the intention of section 79;
i)the contribution of a wife as a parent or homemaker is intended by the Act to be recognised not in a token way but in a substantial way;
ii)the longer the duration of the period of cohabitation the less weight need be given to the initial contribution of capital by either spouse at the beginning of the marriage; and
iii)the husband’s savings could be considered fruits of the marriage. It was only just that the wife should be entitled to share in that provision achieved by a jointly shared life style, notwithstanding the breakdown of the family life.”
The Full Court of the Family Court has held, in Campbell v Kuskey (1998) FLC 92-795, that a trial Judge has a clear obligation to identify the parties’ assets and liabilities before considering contributions and section 75(2) factors.
In Horsley and Horsley (1991) FLC 92-205, the Full Court of the Family Court held that:
“i)the trial Judge had made no attempt to separate the contributions of the parties pursuant to section 79 from the relevant section 75(2) factors; and
ii)it was of crucial importance to know what weight the trial judge gave to the husband’s capital contributions and what significance to the great disparity in future earning capacity of the parties, coupled with the weight he gave to the wife’s obligations to care for the children.”
Variation of contact
The husband, in his written submission, complains that the wife has “now come under the influence of a solicitor” and is asking the court to “make orders which restrict the rights of the children under the FL Act to know their father”. All too often, parties quote section 60B selectively, referring to the children’s rights without mentioning the shared duties and responsibilities of the parents [s 60B(2)(c)], or the duty of parents to agree about the future parenting of their children
[s 60B(2)(d)].
Consent orders about contact cannot be regarded as being ‘set in stone’, and they are subject to variation if a party can satisfy the court that there has been a change in circumstances such as to render the current contact orders inappropriate or unsuitable. The overriding principle is the best interests of the children.
The father has submitted some written points in support of his contention that the contact orders should remain unchanged. He contends that the children are well settled with the current arrangements and that the children are always well presented and catered for during contact periods and are never late for school. He also adds some more contentious points:
“Father fails to understand and refuses to accept, the ‘standard fortnightly access’ experienced who are deprived of their children … Children’s mother claims to have no weekend with the children. Mother was well aware of this before consenting to orders, however, father’s contact on the alternate weekend has been exercised late Sunday afternoon allowing the mother to have a full weekend with the children”.
Again, the husband has produced a table headed “Breakdown of hours per fortnight”, showing that out of a total of 336 hours per week, 60 hours are spent by the children at school, 175 are spent with the mother and 101 are spent with the father. The conclusion he reaches is that “Any further reduction not in the best interests of the children”.
It is not in the best interests of the children for them to be regarded as commodities, whose hours per week with each parent must be totalled up, and whose time spent with their mother is regarded as a father being “deprived” of his children. I have previously referred to the husband’s insinuation that the wife was seeking to vary the contact orders for some perceived financial gain.
That said, I am not satisfied that the wife’s application to vary the orders has been made out in its entirety. Her belief that the children are showing signs of tiredness in this, their first year of school, may well be correct, but this can be easily attributed to the change in their lives by attending school on a full-time basis. A 40-minute drive to their father’s residence seems hardly onerous, and it would appear that they are used to this arrangement. I am of the belief that the “long weekend” each alternate weekend is an established arrangement that can continue, at least for the time being, as it does not appear to be contrary to the girls’ best interests. The fact that the arrangement means that the father has to share some of the burden of getting the children ready for school, taking them to and from school and becoming involved in their school activities is seen as a positive aspect.
I am not persuaded, however, that the “off weekend” arrangement should continue. The husband’s argument that the mother still has a full weekend with the children because he does not collect them until the Sunday afternoon is quite obviously unsustainable. The weekend continues until midnight on Sunday, although it would be absurd for the father to think of collecting the children at that time. It is hard to see the value to the children in going their father’s residence on a Sunday afternoon so that they can be driven back again the following morning to start school for the week. This arrangement suggess that it is more intended by the father to keep up the total of his contact hours per week rather than being a positive move for the children. I see no benefit in it and it should cease.
The consent orders did not cover such events as Mother’s Day, although Father’s Day brings with it contact for the whole weekend, or the children’s birthday or other significant occasions. Accordingly, I am satisfied that a more equitable arrangement should commence, being more in line with what is appropriate for young children. It should be borne in mind that these children are of too young an age for their wishes to be canvassed directly, and it would be oppressive to them for such a step to be taken.
The parties’ assets and liabilities
The assets of the parties are:
a)the property at 8 C Street, K, in which the husband resides;
b)the Holden Commodore, in the husband’s possession;
c)furniture, personal effects, computer and jewellery in the wife’s possession; and
d)personal effects, furniture in the husband’s possession.
The values are uncontroversial, except for the former matrimonial home, which the husband claims to be worth $200,000.00 (“there is common ground as to home valuation at $200,000.00”). The only evidence of value comes from the affidavit of Mr Alford, the registered valuer, who places the value at $190,000.00. I am satisfied that the proper value is $190,000.00. The gross value of the assets amounts to $199,750.00, made up as follows:
(a)the property at C Street, K........................................ $190,000.00
(b)the Holden Commodore................................................ $5,000.00
(c)the items held by the wife................................................ $1750.00
(d)the items held by the husband........................................ $3000.00
Total:..................................................................................... $199,750.00
The liabilities are:
(a)The mortgage over C Street..................................... $116,777.00
(b)Bankstown City Credit Union...................................... $14,907.00
(c)AGC loan for computer................................................... $1600.00
(d)Visa Card........................................................................... $520.00
(e)MasterCard...................................................................... $1050.00
(f)Harvey Norman................................................................ $1150.00
Total:..................................................................................... $136,004.00
The parties’ net equity, by subtracting $136,004.00 from $199,750.00, comes to $63,146.00.
The parties’ contributions
The husband argues that the contributions by the husband as breadwinner and the contributions by the wife as homemaker should be seen as being of equal value. He argues further, however, that the contribution by him should be seen as greater, in that he says he contributed the deposit on the home and he paid the mortgage payments from the date of separation until the date of hearing. He claims that his contribution should therefore be seen as 60% of the total.
There is evidence that the wife was working in paid employment from before cohabitation up to a couple of months before the children were born. I am not satisfied that the husband has established that the entire deposit on the home was a direct contribution by him. In any event, the length of the cohabitation, over ten years, makes the initial capital contribution by the husband of less weight than in a marriage of shorter duration (Crawford and Crawford).
The argument about the mortgage payments after separation carries little weight, in that the husband had the benefit of living in the house, where he still lives today, whilst the wife was obliged to obtain rented accommodation for herself and the children. The husband also allowed the joint rates liability to get so far into arrears that the Campbelltown City Council commenced legal action.
The husband’s claim that he was paying the mortgage whilst the wife was not acting as homemaker after separation cannot be sustained, as the wife was caring for the children during that time, which is a factor to be taken into account pursuant to section 79(4)(c)
(Williams v Williams). The husband has not rebutted the wife’s claim that he did not commence to pay any child support until January 2000, six months after the parties separated.
Despite the husband’s contentions, I find that the contributions by the parties are to be regarded as equal.
Section 75(2) factors
It is only at this stage does the court look at section 75(2) factors. The husband claims that they cancel each other out. I find the following matters to be relevant under this heading.
The age and state of health of the parties is of relevance [section 75(2)(a)]. The husband is aged 33 and the wife is aged 31. Whilst the wife is in good health, the husband’s loss of vision in one eye and his recurring attacks of iritis cast some doubt on his future health. He has some likelihood of losing more of his vision. This problem also affects his physical capacity for gainful employment in the future [section 75(2)(b)]. Against this, the husband’s present income of $1142.00 per week before tax far exceeds that of the wife, whose income is derived from Centrelink, child support and some part time work. These matters warrant an adjustment of 5% in the husband’s favour.
The wife has the care and control of the two children of the marriage, who are both aged 6 years. They can be expected to finish high school, which will mean that the wife’s responsibility for them will continue for another 11 or 12 years. This is a factor under section 75(2)(c) and (d). the husband has an obligation to pay child support. The current assessment requires the husband to pay child support at an annual rate of $6000.00. I make an adjustment of 5% in favour of the wife for these reasons.
The husband has a greater future access to superannuation than the wife does, in that his superannuation is worth at least $37,000.00 compared to that of the wife in the sum of $1944.00. This is a matter to which section 75(2)(f) applies, and I make an adjustment in the wife’s favour in the amount of 5%.
The standard of living of the parties has suffered and I make no adjustment pursuant to section 75(2)(g). The wife shares accommodation with her sister, who pays her share of rent and bills, and the husband has a liability to pay child support pursuant to a current assessment at the rate of $6000.00 per annum. I am satisfied that no adjustment need be made in respect of these issues.
Taking these adjustments into account, I find that the net assets should be divided at the rate of 55% to the wife and 45% to the husband.
Finally, the court must consider whether the making of such an order would be just and equitable in the circumstances, as provided by section 79(2). The parties’ net equity has been found to be $63,146.00. A division in the ratio 55% to 45% would give the wife the sum of $34,730.30 and the husband $28,415.70. Unless the husband is able to raise sufficient finance, there will be a need to sell the former matrimonial home. The arrears of rates should be deducted from the husband’s share of the proceeds.
The wife already has in her possession property worth $1750.00. This would require the husband to pay to her the sum of $32,980.30. No value has been placed on the items of personal property sought by the wife. I am satisfied that the wife’s personal effects, half of the glassware, the baby clothes and other items should be transferred to the wife. The husband is using the dining table and chairs, and he should retain them. I am satisfied that the Orders which I propose to make are just and equitable.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Scarlett FM
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