T and T
[2002] FMCAfam 86
•11 April 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| T & T | [2002] FMCAfam 86 |
| CHILDREN – Residence – cultural issues – overseas orders – status quo. PROPERTY SETTLEMENT – Contributions – contributions by third party. |
Family Law Act1975
Taylor v Taylor (1979) 143 CLR1
Allesch and Maunz (2000) FLC 93-033
B v B: Family Law Reform Act (1997) FLC 92-755
AMS v AIF (1999) FLC 92-852
A v A : Relocation approach (2000) FLC 93-306
In the Marriage of Lee Steere (1985) 10 FamLR 431
In the Marriage of Ferraro (1992) 16FamLR 1;
In the Marriage of Clauson (1995) 18FamLR 693;
In the Marriage of Whiteley (1996) 20FamLR 590 at 593-595
Russell v Russell (1999) (FLC 92-877
In the Marriage of Townsend (1994) 18FamLR 505 at 512;
In the Marriage of Biltoff (1995) 19FamLR 82 at 91-2
Bremner v Bremner (1995) FLC 92-560
Gosper and Gosper (1987) FLC 91-818
Kessey and Kessey (1994) FLC 92-495
| Applicant: | A T |
| Respondent: | R T |
| File No: | ZP 3101 of 2001 |
| Delivered on: | 11 April 2002 |
| Delivered at: | Parramatta |
| Hearing Date: | 11 March 2002 |
| Judgment of: | Barnes FM |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Watts McCray Lawyers 15th Floor, 370 Pitt Street SYDNEY NSW 2000 |
| Counsel for the Respondent: | Nil |
| Solicitors for the Respondent: | Nil |
ORDERS
That the husband have the long term and short term responsibility for the care, welfare and development of K T born 5 March 2002 including but not limited to:
(a)the application for a passport for the child or replacement passport for the child to the exclusion of the wife;
(b)the issue of visas to enable the return of the child to Australia;
(c)application for issue of airline tickets or other transport ticket to enable the return of the child to Australia.
That the child reside with the husband.
That the child have such contact with the wife as is agreed between the parties.
That the wife do all acts, sign all documents and pay all moneys to return the child to Australia within 90 days of the date of these orders.
That the wife be restrained from continuing to keep the child out of the Commonwealth of Australia beyond ninety days from the date of these orders.
That the husband shall serve a sealed copy of these orders on the wife within 7 days by forwarding them by international airmail to her address at 8th Street, A.
That the time to appeal will be calculated from the day 28 days after the date upon which the posting of these orders in compliance with Order 6 is effected.
That any person from time to time holding or acting in the capacity of a Police Officer of the Commonwealth of Australia or of a State or Territory of the Commonwealth of Australia or any Australian Consulate Official be authorised and directed, with such assistance as he or she or they require and, if necessary, by force recover the child and deliver the child to the husband including to arrest, without warrant, the wife in the event that the wife again removes or takes possession of the child.
That by way of property adjustment:
(a)the husband shall pay to the wife the sum of $9,105.10;
(b)the wife shall sign all documents and do all acts to assign to the husband the whole of her right title and interest in the property 168A S Road, H (the home) which is the whole of the land comprised in folio identifier ; and
(c)that the husband shall pay this amount to the wife within four months of the date of these orders simultaneously with the delivery by the wife to him of a signed transfer in registrable form transferring to the husband the whole of her right title and interest in the home.
That in the event that the husband fails to make the payment to the wife under Order 9 within four months of the date of these orders he shall then forthwith do all acts and things and sign all documents necessary to sell the home for the best price reasonably attainable and to cause the proceeds of such sale to be distributed as follows:
(a)in payment of the costs of and incidental to the sale;
(b)in payment of the amount required to discharge the National Australia Bank Ltd mortgage secured thereon;
(c)in payment of $9,105.10 to the wife;
(d)in payment of the net balance to the husband.
That interest on the amount due to the wife under Order 9 shall be paid in accordance with the Family Law Rules from the day she delivers to the husband a signed transfer in accordance with Order 9.
That the husband shall be responsible for payment of the principal and interest under the mortgage to the National Australia Bank Ltd and shall indemnify the wife in respect of the mortgage, council rates, water rates and insurance premiums in respect of the home.
That if a party refuses or neglects to execute a document necessary to implement Order 9 or Order 10 within 7 days after the document has been tendered to her or him, the Registrar of the Federal Magistrates Court is appointed to execute on her or his behalf all documents necessary to implement the orders on proof by affidavit of such refusal or neglect and such Registrar is also appointed to do all acts and things necessary to give validity and operation to any such document.
That upon the assignment of the home to the husband, the husband shall forward to the wife, at her expense, her clothing and personal effects and jewellery.
That unless otherwise specified in these orders:
(i)each party is solely entitled to the exclusion of others to all other property and chattels of whatsoever nature and kind in the possession of each party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank records thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements, and the chattels in the real property are deemed to be in the possession of the husband;
(ii)each party is solely liable for and indemnifies the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
That all outsanding applications are otherwise dismissed.
That the matter be removed from the Pending Cases list.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
ZP 3101 of 2001
| A T |
Applicant
And
| R T |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application made by A T (the husband/father) on
11 September 2001 for parenting orders, injunctive relief, lump sum maintenance and for an adjustment of property interests.
The father seeks orders that the child of the marriage, K T, born
5 March 2000, (the child) live with him, that he have long and short term responsibility for her care, welfare and development and that R T (the wife/mother) return the child to Australia and be restrained from continuing to keep her outside Australia. He seeks a transfer to himself of the whole of the mother’s interests in the former matrimonial home. He proposes that he should forward to the mother at her expense her clothing, personal effects and jewellery. He also seeks an order that in the event that the court determines that the mother is entitled to a lump sum interest in the home, she should pay an identical amount by way of lump sum spousal maintenance to meet the cost of K’s return to Australia.
By a response filed on 17 October 2001 the mother seeks orders that the child live with her and that she be solely responsible for the day to day and long term care, welfare and development of the child. She also seeks orders that the child may travel with her to the Republic of A and reside outside Australia and that the father should have contact on a limited basis in A. until the child turns 13 and then in Australia for 21 days during each year provided that the father should bear all travel and accommodation expenses for himself and the child. She also seeks as a property adjustment payment of a lump sum (amount not specified) and in lieu thereof sale of the former matrimonial home and payment of an unspecified lump sum to her from the proceeds of sale and a declaration that she is solely entitled to all cash and assets in her possession, ownership or control including all jewellery.
On 22 October 2001 Federal Magistrate Ryan granted a decree nisi of the marriage of the parties and also made orders for interim contact. The orders were that the child should have interim contact with the father two days each week commencing 2 March 2002 in Australia and that the wife should do all things necessary to return the child to Sydney no later than 28 February 2002 provided that the husband should provide airline tickets and accommodation for the mother and child. The final hearing was scheduled for 11 and 12 March 2002 at which time the mother and child would be in Australia pursuant to the interim contact orders. The mother was represented by solicitors in these proceedings.
On 11 February 2002 the solicitor for the applicant father wrote to the court advising that the solicitor for the respondent mother had stated that she did not intend to travel to Australia to attend the hearing and that the airline and residential arrangements were to be cancelled. On 22 February 2002 the solicitor for the respondent mother filed a notice that he was no longer representing her and that he had notified his client that the matter was next listed before the court on 11 March 2002. The mother did not attend the hearing on 11 March 2002 and was not represented at the final hearing. The matter was heard as an undefended proceeding. Judgement was reserved.
After the hearing a facsimile letter dated 7 March 2002 was received by the court from the mother in which she stated that she could not afford to continue financing a lawyer, that she had decided not to return to Australia for the court hearing for reasons discussed below and that she wanted to continue to reside in A with the child. She asked that the documents filed by her in the interim proceedings be taken into account but made no further submissions in relation to property adjustment or maintenance. The matter was listed for mention and on 26 March 2002 the solicitor for the applicant father was given an opportunity to make further submissions in response to this letter. He did so, submitting that the letter should not be regarded as evidence and addressing the issues raised by the mother. I take the view that it is appropriate to regard the letter as a submission by the mother.
Non-appearance of the mother
The court has an obligation to ensure that the parties to proceeding have an opportunity to participate in the proceedings. Before a person can be adversely affected by a judicial order he or she must be afforded an adequate opportunity to be heard (Taylor v Taylor (1979) 143
CLR 1). In this case the mother did not appear and was not represented at the final hearing.
When these proceedings were initiated the respondent mother filed a response and an affidavit. She at no time sought a stay on the basis of any argument that an Australian court was an inappropriate forum. To the contrary, in her affidavit of 17 October 2001 she stated that she intended to submit to the jurisdiction of the Australian Court. She was represented at the interim proceedings and the matter proceeded on the basis that she accepted the jurisdiction of the court.
The solicitor for the father swore an affidavit on 25 February 2002 referring to two e-mails he received from the respondent mother, which were annexed to the affidavit. The first of these sent on 20 February 2002 states that the mother had “informed my lawyer on a number of occasions that I do not intend to travel with or without the child”. She asked the solicitor to cancel the tickets. On 25 February 2002 she sought confirmation that the previous e-mail had been received. The solicitor responded, noting that the mother would not attend and advising that he would make this known to the Court.
The applicant father had been ordered to meet the cost of the respondent’s travel to Australia in connection with the orders for interim contact which was to take place around the time of the final hearing. He provided tickets and made accommodation arrangements. I am satisfied that the mother chose not to return to Australia or to participate in the hearing and that it was proper to proceed with the hearing rather than to adjourn it. I am not satisfied that adjourning the hearing would have done anything more than place the court in exactly the same position on the next occasion, that is, faced with the prospect of hearing the father’s application in the absence of the mother. An adjournment would inevitably displace other matters that would otherwise require hearing time. There was no evidence before the court at the time of the hearing of any explanation for the mother’s non-attendance such as would warrant an adjournment (cf Allesch and Maunz (2000) FLC 93-033). The mother made it clear in her e-mails to the solicitor for the father that she did not intend to travel “with or without” the child and that she had informed her lawyer of this on a number of occasions.
The faxed letter from the mother was dated 7 March 2002. It confirmed that she was aware of the hearing but had made a decision “not to travel for the Court hearing”. I do not consider that the reasons put forward (that is, her claim that she would lose her well-paid job, that she would have to travel in the cold on what she claimed without supporting evidence, to be one of the unsafest airlines, that she would be accommodated in a motel and unit without daily expenses and in the absence of a guarantee that she would be able to return to A with the child) warrant an adjournment. In this respect I note that she did not raise any concerns about the airline, the place of proposed accommodation or the absence of daily living expenses with the applicant or his lawyer. Nor is there any evidence to support her claim that the child would be “sad, confused, uncomfortable and traumatised” by a return to Australia with her.
On the basis of the evidence before me, I am satisfied that the respondent mother has had the opportunity to attend and present argument, file material and address the matters before the court.
The evidence
The applicant father relied on the following evidence:
·Application filed 11 September 2001
·
Form 17 financial statement sworn 7 September 2001 and filed
11 September 2001
·Affidavit sworn by him on 10 September 2001 and attachment being copies of letters and e-mails between himself and the respondent from September 2000 to September 2001.
·Affidavit sworn by him on 18 February 2002 filed on 19 February 2002.
·Affidavit of M.T. sworn 18 February 2002 filed on 19 February 2002.
·Affidavit of R.B. sworn 25 February 2002 and filed on 28 February 2002.
·Affidavit of R.B. sworn 25 February 2002 and filed on 28 February 2002.
·Certificate of Australian citizenship dated 28 August 1995 for R.T.
·A decree nisi order made by Federal Magistrate Ryan on 26 October 2001.
·
Interim contact orders made by Federal Magistrate Ryan on
26 October 2001.
By her letter of 7 March 2002 the respondent mother sought to rely on the response filed by her on 17 October 2001 and the affidavit sworn by her (including financial particulars) on 17 October 2001 and filed on 22 October 2001. Her letter did not reach the court until after the hearing. The solicitor for the applicant did not object to the reliance on this evidence nor did he seek to recall his client. However, I take into account the fact that the father’s evidence was given when the mother’s affidavit was not before the court, that the mother did not make herself available for cross-examination and that the father gave oral evidence such that I had the opportunity to observe him in the witness box. Further the father made himself available for cross-examination. Insofar as there is a dispute between the parties as to the facts I prefer the evidence of the father.
At the hearing the father gave oral evidence. His legal representative provided an outline of case document and made oral submissions at the hearing and on 26 March 2002. The mother made submissions in her letter of 7 March 2002. I have taken into account all the evidence before the court in this matter.
Relevant facts
The husband was born on 9 October 1966 in Australia. The wife was born on 5 October 1970 in A.. They married on 18 March 1993 and separated on 8 September 2000. On 22 October 2001 a decree nisi dissolving their marriage was granted. There is one child of the marriage, K T, born 5 March 2000. The mother and child live in A and have done so since August 2000.
The mother first came to Australia as a tourist in August 1992. She left Australia in September 1992 when she and the father travelled together to A so that he could meet her family. One month later he returned to Australia and made arrangements for her to return to Australia as the holder of a fiancee visa. She returned on 20 February 1993. The couple had a civil wedding in March 1993 and a church wedding in December 1993. At the time of the marriage the father had savings of $29,000 and personal effects. The mother had no assets. Neither party had liabilities. After the marriage the couple received various cash gifts from the father’s family. The money was used to set up a household and to meet the wedding and honeymoon costs and the expenses of bringing out the mother’s family for the wedding.
After the church ceremony the couple lived together in a rented unit at H. In 1996 they jointly purchased the former matrimonial home for $227,500 financed by savings, gifts of about $53,000 from the father’s family and a loan from the National Australia Bank of $182,000. The total cost of the house including stamp duty, legal fees and other expenses was about $235,000. After the purchase, the couple extended the kitchen with the assistance of a loan of $4000 from the father’s father which is yet to be repaid. The father also paid for concreting and paving the yard and for airconditioning and landscaping work to be completed.
From the time of the marriage the father has been employed in his father’s printing business. This enables him to work flexible hours. The mother was employed as a receptionist in Australia. A summary of income provided by the father, which is not disputed by the mother, indicates the respective earnings of the couple from the 1992-1993 financial year to the 2000-2001 financial year. During this time the father earned amounts ranging from $21,080 to $51,096 a year while up to mid-1999 the mother earned amounts from nil to $23,394. From mid-1999 onwards the mother did not work. She participated in an IVF program prior to the birth of the child. The father states (and the mother does not dispute) that during the marriage his parents made gifts to them, provided him with a car through the family business and also provided meals on occasions (the frequency of which the wife disputes) but which I accept occurred at more than once a week. The couple disagree about the amount of cooking and housework that the mother did but I accept that she had the primary responsibility and that the father also assisted. It is not in dispute that after she suffered a threatened miscarriage they employed a housekeeper for some 11 months to clean once a fortnight.
The father took five weeks off after the birth of the child and his mother provided assistance with meals and housework at times. I am satisfied that he was involved in the care of the child after her birth and that the wife did more of the domestic chores than did the husband.
During the marriage the wife was also given jewellery by the husband’s family. The husband estimates that the retail cost of this jewellery was $10,000 to $15,000. No valuations were provided. The wife does not know the value of the jewellery.
Both the husband and wife are in good health. The wife was employed as a receptionist in Australia and is now fluent in A, English and Russian and has a degree in Oriental Studies and Languages. She now works as an executive assistant to the general manager of what she submits is the most popular and prestigious hotel complex in Y, the capital of A. I am satisfied that she would be able to obtain employment in Australia utilising her skills as a clerk and her linguistic skills. During the marriage the husband worked at least between 8.00am to 6.00pm Monday to Friday. He spent some time at work in the evenings.
The mother became homesick and the parties planned a trip to A to enable her to see her family and for the child to be christened. The couple travelled to A. on 8 August 2000. The husband was to return to Australia on 8 September 2000 for work commitments. His understanding was that his wife and child were to return on 31 October 2000. After the family had left Australia the wife advised the husband that she planned to stay longer in A. For the first time she intimated to him that their marriage may be at an end. The wife declined to return to Australia and the husband returned alone. The wife and child have remained in A. The wife has travelled outside A on holidays on at least two occasions leaving the child in the care of her mother.
Since April 2001 the wife has been in full-time employment. She works 40 hours a week and the child is being cared for by her parents during this time. Since separation the husband has provided financial support to the wife and the child. She claims that from September 2000 to April 2001 he provided approximately $US1910 in support. The husband claims that as at September 2001 the wife had had available about $600 per month from his account for the support of K and that in addition she had received about $1000 in cash. He spent $4000 on their trip to A.. No documentary evidence was provided to substantiate the extent of financial support. On the basis of the father’s affidavit, e-mails tendered to the court and his oral evidence I am satisfied that the father has provided financial support and gifts for the child in A since September 2000.
The husband indicated in his affidavit sworn on 10 September 2001 that if he obtained an order he intended to seek legal advice in A and to commence proceedings to seek the return of K to Australia and that he understood that the cost of advice and proceedings would be over $30,000. In her affidavit the mother indicated that it would not be necessary for him to commence proceedings in A as she intended to submit to the jurisdiction of the Australian Court.
In his financial statement the husband indicated that his income was $890 per week gross and that he received a motor vehicle worth $190 per week from his employment. He has expenses of income tax, mortgage repayments of $350 a week, insurance, credit card repayments and maintenance payments which he states are $112 a week for the child. He estimated the value of the house that is jointly owned with the respondent to be $290,000 and indicated that he had less than $1000 in savings and an estimated $2000 in household effects. In addition to a mortgage of over $185,000 he has an overdraft of over $50,000 and a credit card debt of over $5000. The overdraft debt was incurred primarily to meet the cost of the IVF treatment, an air-conditioning unit and the visit to A. He has legal costs of $10,000 to $15,000 for these proceedings. He has an entitlement to National Mutual Simple Superannuation which he valued as a financial resource of $17,446.
The wife indicated that she had furniture and contents in Australia worth $5000, a bank account in A. containing $4445 and a car in Australia, which she claims is worth $8000. She has a half share in the H property and stated that she had a debt of 50 per cent of the mortgage. However I accept that the husband is meeting the mortgage repayments. Her gross earnings in September 2001 were $159.49 per week. Her estimated expenses in relation to herself and the child were said to be less than this amount.
A valuation dated 24 August 2001 by R B of G S V was provided in respect of the matrimonial home at H. The property, which is a detached two storey free-standing residence located in a community title development comprising approximately ten residences, was said to have a market value of $290,000. An updated valuation provided as at 12 February 2002 indicates that the market valuation is now $320,000. The wife did not dispute the valuation.
At present K lives in a small two-bedroom apartment with her mother, her mother’s parents and her mother’s brother. The unit has basic furnishings, irregular water supply and unreliable electricity. The father submitted evidence as to the extent of poverty in A which was not challenged by the mother. The mother has submitted that she is well paid by A standards but also submits that she cannot afford to continue financing a lawyer.
The father proposes that the child return to Australia and live with him. He had arranged air tickets and accommodation for the wife and K for the proposed return to Australia in accordance with the interim orders. If the child is to reside with her father she would be cared for by his mother while he worked in the family business. He has flexible work arrangements and can work less than five days a week and fit in with pre-school and other care arrangements. He proposes that the mother could have liberal and regular contact with the child in Australia. The father submitted a copy of the mother’s Australian citizenship certificate. He also indicated that he would be happy to take into account her wishes in relation to whether the child attended an A school in Australia or the local public school. The father’s mother,
M T, swore an affidavit on 18 February 2002 in which she attested to her involvement and interest in the care of the child prior to her departure for A, to subsequent correspondence with the child’s mother, and maternal grandmother, indicating a continuing interest in the child and to the fact that she had sent clothing and money to the mother for the child.
The father gave evidence as to the anticipated cost of regular visits by him to A should this be necessary, indicating that as he has no friends or relatives in the capital city (other than the child) he would need to stay in a hotel costing approximately $US150 a night as there was no extra room in the mother’s unit. A return airfare to A would be about $3200 (as at last September). There is very limited evidence before the Court as to the cost of accommodation, food and transport in Y but
I accept that given the father’s earnings his visits would be effectively limited to one visit per year or perhaps every second year.
The mother’s proposal is that the child should live with her in A, with the father being able to see the child in A or at a later date in Australia. She suggested that the father had not shown interest in the child in recent times and that she had received few e-mail messages and inquiries, clothes that did not fit and presents that were bought by the father’s mother. She provided no affidavit or other sworn evidence with the letter dated 7 March 2002. In response to her submission the solicitor for the father pointed out that the mother had not sought child support or lump sum maintenance or an amount for travel expenses or living expenses in Australia from the father. In relation to her reasons for not returning it was further submitted by the father’s solicitor that the mother had previously travelled on the airline that she criticised and that there was contrary evidence before the court as to the father sending gifts and money for the child. It was claimed that the mother had made it clear that she did not intend to return to Australia and was depriving the child of any real contact or relationship with her father.
I accept that the mother has made it clear that she does not intend to return to Australia with or without the child.
The law in relation to parenting orders
Residence, contact and specific issues orders are parenting orders arising in proceedings conducted under Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underlie those objects. They are subject to section 65E in that in determining the outcome, the best interest of the child are the paramount consideration (B v B: Family Law Reform Act (1997) FLC 92-755).
In deciding the residence and contact arrangements that will promote the best interests of the particular child, the court must consider the various matters set out in section 68F(2), to the extent that each is relevant to the particular case. The weight which is to be attached to any one consideration will depend on the circumstances of the individual case. The list is not intended to be exhaustive. Both long-term and short-term future prospects are relevant to the overall assessment.
Section 68F(2) factors
Wishes
The child is just two years old. It is not suggested that she has relevant wishes.
The nature of the relationship of the child with each of the child’s parents and with other persons
K was a much-wanted child conceived with the assistance of IVF procedures. Initially both parents cared for the child. The mother was the primary caregiver but the father played some role in her care. He took time off after her birth. The father’s family provided practical, emotional and financial support after her birth. The father and his family continue to provide gifts for the child. They have no personal contact because the child remains in A.
The child is now living in Y, the capital of A with her mother, uncle and maternal grandparents. The mother works full time and the child is cared for during this time by the maternal grandparents. The mother has also left the child in their care while she has holidays, such as those in Moscow and Syria of which the father is aware. The mother spends time with the child on the weekends. She continues to be the primary caregiver for the child subject to the role of her parents. There is no other evidence before the court as to the nature of the relationship between the child and the mother’s family. This is of concern as the full-time work of the mother means that the child is cared for by the mother’s family five days a week. In contrast, the father’s mother has provided affidavit evidence of her love for the child. She retains an interest in K’s welfare and will assist with her care if she returns to Australia to live with her father. I discuss the circumstances surrounding the status quo further later in this judgement.
Likely effect of change
As to the likely effect of change, if the child is to live with her father he would be her primary caregiver supported by his family in a home in Australia. Residence with the father would give K the opportunity to know her father and his family and develop a bond with them. She has been denied this opportunity by her mother’s actions. However if the child returns to Australia she will be separated from her maternal grandparents and uncle. As indicated there is no evidence before the court as to the child’s relationship with her mother’s family except that they care for her while her mother works. If her mother chooses not to return to Australia, the child’s residence with her father would also mean that the child would be separated from her mother. This is a significant factor. The mother’s e-mails to the father indicate that she prefers her life and work in A and there is no suggestion that the move to A was for K’s benefit. However both the mother and the child are Australian citizens and the mother could return to Australia. She speaks English and can work in Australia.
If the child stays in A with her mother, the only change would be the possibility of infrequent contact with her father. She is too young to travel to Australia unaccompanied and the cost and impracticability of frequent travel by the father to A would mean that K’s contact with her father would be very limited. She would have little knowledge of or relationship with him. She would be isolated from his family. In short the return of K to Australia will enable her to have a relationship with both parents.
Practical difficulty
The mother has suggested that the father could visit A on a regular basis. I accept the evidence of the father that frequent and regular contact visits this would be expensive and impractical. Similarly it would be expensive and impractical for the mother to live in A but to visit the child in Australia on a frequent and regular basis. As indicated the mother is an Australian citizen and can live in Australia. There was no evidence before the court that the father could stay in A on any long-term basis. According to the mother, the father’s family is of A background but they left that part of the country that is now in Turkey many years ago. The father is an Australian citizen. If the mother remains in A with the child, this will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
Capacity of each parent
I am satisfied that both parents can provide for the physical needs of the child. The father has the ability to work flexible hours. His mother can assist with childcare. The mother is presently meeting the needs of the child with the assistance of her parents. The father has sent money to assist. On the evidence that he gave to the Court, I accept that the father can meet the emotional and intellectual needs of the child.
The mother has to some extent put her own emotional needs first in choosing to return to and stay in A with the child, although this does not mean that she does not have the capacity to meet K’s emotional and intellectual needs.
The child’s background and other characteristics
K was born in Australia to Australian citizen parents. She was to be brought up as an Australian but with recognition of her A heritage and background. If she remains in A, the lifestyle and characteristics of being an Australian may effectively be lost.
The need to protect the child and any family violence
The father submitted evidence, which was not challenged by the mother, as to the impact of poverty in A, overcrowding, the inadequacy of the mother and child’s accommodation, and in relation to matters such as infant mortality rates and education in A. This is contrasted with the position in Australia. The mother suggests that while her family are not as well-off as the family of the father, she is relatively well paid and can afford living expenses, clothing and food with help from her parents and that there is no shortage of consumer goods, fresh meat and vegetables.
She does not address the wider issues raised by the father or dispute that there would be a higher standard of living for the child in Australia. While I accept the evidence of the father that the child would have a lower standard of living with her mother in A, I do not accept that the mother’s wish to keep the child in A amounts to allowing her to be subjected to abuse or ill-treatment as was submitted.
Attitude to the child and to the responsibilities of parenthood, demonstrated by each of the parents
I am satisfied that the father loves the child and wishes to live with her or at least to be able to share her care with the mother. He does not seek to deprive the mother of contact with the child. He did not abandon the child in A. He hopes for her return and he now seeks it. He also wants the mother to be involved in caring for the child. I am satisfied that the mother placed her own wishes above the interests of the child in choosing to remain in A. In an e-mail of 7 February 2002 she indicated that she could not have as interesting a life and job in Australia as in A. The evidence does not support the submission of the mother that the child’s return to Australia for the purposes of contact as ordered by this court would have made the child “sad, confused, uncomfortable and traumatised in the created situation”. Indeed, had the mother complied with the contact orders, the child would have returned with her mother.
The other factor to note in this case is the manner in which the present ‘status quo’ has come about. The applicant is committed to the child’s welfare. He has been separated from her since September 2000 because the child’s mother refuses to return with her to Australia. The father made efforts to persuade his wife to return and when he realised that she did not intend to do so commenced these proceedings. I am satisfied that he did not delay institution of proceedings.
The parents were both keen to have a child and the father was involved in all aspects of her life as a baby. However the mother unilaterally decided to return to A. She persuaded the father to organise the travel despite his concerns that the child was too young. After departure the mother told the father that she was thinking of not returning to Australia. The mother did not seek residence orders from the court before relocating. Whether or not she used trickery or a ruse to get the child out of Australia with the consent of the father, she was, as she attested, homesick and unhappy in Australia and I am satisfied that she intended to stay longer than originally planned.
The e-mails between the couple show that the father was anxious for the mother and child to return and that she held out some hope to him prior to August 2001. This false hope of the possibility of reconciliation resulted in a delay in the initiation of court proceedings and extended the time in which the child lived with the mother apart from the father. In effect the mother seeks to rely on a status quo brought about by her unilateral actions without regard to the interests of the child or the wishes and responsibilities of the father to participate in caring for the child.
Conclusion in relation to parenting orders
I am satisfied that the mother unilaterally deprived the child of the right to know and have a relationship and regular contact with her father and her father’s family. Despite being given the opportunity to return to Australia at the expense of the father and to have the residence of the child determined in a properly contested hearing, despite having indicated in her affidavit that she intended to submit to the jurisdiction of the court and despite provision of airline tickets and accommodation, the mother made it very clear that she had no intention of returning with or without the child.
This also raises concern that the mother would not comply with court orders if they do not suit her. I note that A is not a signatory to the Hague Convention. This is not a case where the mother proposes to relocate. (cf AMS v AIF (1999) FLC 92-852 and A v A : Relocation Approach (2000) FLC 93-306). Nor is it a case where either parent has previous parenting orders in place. The proposals before the court are two competing residence applications each of which must be evaluated in light of the section 68F(2) factors bearing in mind that the paramount consideration is the best interest of the child.
An option that may have best met the entirety of the child’s interests would be for her parents to live in close proximity to each other and for the child to have easy and regular contact with each of them. However, this is not an option presented to the court and I am unable to make any firm findings in relation to it. The mother has not returned to Australia. She made it clear that she had no intention of returning. I cannot be satisfied on the evidence before me that she would return in the future.
The mother has, by her words and actions made clear her preference to live in A. The proposal is that K lives with her in A. If the child remains in A she will be estranged from the paternal side of her family by distance and language. The mother can return to Australia on a temporary or permanent basis as an Australian citizen. There is no evidence that the father has the same ability to live in A. Notwithstanding the fact that the wife is the principal caregiver for the child, having taken into account all the circumstances and the factors in section 68F(2), I am satisfied that it is in the best interests of the child to live with her father in Australia and have the opportunity to have contact with both parents on a regular and frequent basis.
The child’s father should have responsibility for her care, welfare and development. I do not propose to make orders in relation to contact with the mother other than she should have such contact as is agreed between the parties. There were no specific proposals for contact with the mother before the court. If she returns to Australia she will have an opportunity to seek regular and frequent contact with the child.
Relevant law in relation to the adjustment of property
The determination of an application under section 79 of the Family Law Act 1975 is a three-step process. This is well established by authority (In the Marriage of Lee Steere (1985) 10 FamLR 431; In the Marriage of Ferraro (1992) 16FamLR 1; In the Marriage of Clauson (1995) 18FamLR 693; and In the Marriage of Whiteley (1996) 20FamLR 590 at 593-595). First it is necessary to identify the property, liabilities and financial resources of the parties at the time of the hearing. Secondly, the contributions made by the parties as defined in section 79(4)(a)-(c) must be evaluated. Thirdly, it is necessary to evaluate the matters contained in section 75(2) and section 79(4)(d)-(g) insofar as they are relevant.
Further, section 79(2) provides that the court shall not make an order under the section unless it is satisfied, in all the circumstances, that it is just and equitable to make the orders in question (Russell v Russell (1999) (FLC 92-877).
Financial circumstances
The first step is to determine the extent and value of the property, liabilities and financial resources of the parties at the time of the hearing (In the Marriage of Townsend (1994) 18FamLR 505 at 512; In the Marriage of Biltoff (1995) 19FamLR 82 at 91-2).
The respondent mother provided no evidence at the hearing or in her letter to the court about the extent and value of the property, liabilities and financial resources of the parties (except to claim part ownership of the home and refer to the existence of a vehicle not referred to in the father’s evidence). She had provided limited information in her affidavit sworn on 17 October 2001. The father provided affidavit evidence, oral evidence, a financial statement, a valuation and affidavit by a valuer in relation to the former matrimonial home and a summary of the property in the outline of case document prepared by his legal representative.
It is not in dispute that the couple owns the former matrimonial home at 168A S Road, H. The only evidence of value is the valuations provided on behalf of the father by R.B., a certified practising valuer, as at 21 August 2001 and 12 February 2001 and the affidavit sworn by the valuer on 25 February 2002. This evidence is not disputed and
I accept that the current valuation of the property is $320,000 in accordance with the most recent valuation.
The husband has two small deposits with the National Bank and has in his possession household effects for which he gave an estimated value of $2000. Jewellery was given to the wife by his family. There is no valuation or list of the jewellery. It was purchased for between $10,000 to $15,000. The wife in her affidavit suggested that she had the use of a second-hand Mazda 626 which she listed as one of her assets at an estimated value of $8000. The husband does not include such a vehicle in the assets listed. There is no evidence before the court as to the source or the current ownership of such a vehicle or, more relevantly, as to the current existence or ownership of such a vehicle. The evidence of the wife related to a time prior to her departure for Australia for A. in August 2000. The husband’s evidence is that the family business provides him with the use of a company car. He does not list any other vehicle as an asset. On the evidence before the court I cannot be satisfied that a Mazda 626 is a current asset of the parties.
The wife claimed that she has unspecified furniture and contents in Australia to the value of $5000. It is not clear whether such items are the same household effects that the husband estimates to be valued at $2000. In the absence of further information or any evidence by the wife as to exactly what these items consist of and given the husband’s evidence about the establishment of the household I accept that household contents of the couple should be listed with an estimated value of $2000. The wife also stated that as at 17 October 2001 she had a bank account in A with a balance of $4445. There is no evidence that this amount has been spent and it is included as an asset of the wife.
As to the liabilities of the parties, the major liability is the mortgage owing to the National Australia Bank on the former matrimonial home. I accept the husband’s evidence in this regard and also in relation to his overdraft, visa card limit and the inclusion of legal costs and the loan from his father. None of this evidence was contested by the mother. The husband has also provided details of his financial resources consisting of superannuation. The wife states that she has no superannuation entitlement but in her affidavit she listed a weekly contribution of three per cent to a pension fund in A. In the absence of further details it is not possible for the court to make an assessment of whether such pension fund amounts to property or a financial resource or the extent of her interest in the fund. It is however taken into account under section 75(2)(o) of the Family Law Act as discussed below.
On the basis of the limited information available to the court I find that the assets, liabilities and financial resources of the parties are as follows:
| ASSETS | AMOUNT |
| Matrimonial Home located at Summerville Road, Hornsby Heights | $320,000.00 |
| National Australia Bank account of husband, Account Number 082-021 527 915 207 | E$ 208.00 |
| National Australia Bank account of husband Account Number 082-021 534 208 690 | E$694.00 |
| Bank Account of Wife in A. | $4,445.00 |
| Household effects | E$2,000.00 |
| Wife’s jewellery | Present Value not known |
| TOTAL | $327,347.00 |
| LIABILITIES | AMOUNT |
| Mortgage National Australia Bank | $185,136.22 |
| National Australia Bank overdraft | E$50,000.00 |
| National Australia Bank Visa card | $5,460.35 |
| Legal costs | $15,000.00 |
| Loan from husband’s father | $4,000.00 |
| TOTAL | $259,596.57 |
| NET PROPERTY | $67,750.43 |
| FINANCIAL RESOURCES | |
| Husband’s superannuation with National Mutual Simple Super | E$17,446.00 |
Section 79(4) – Assessing contributions
As indicated, the husband had savings of $29,000 and some personal effects at the commencement of cohabitation. He had no debts. His family members made monetary gifts to the couple to a total of $48,065 and his parents met expenses totalling about $11,500. Such funds were applied to acquire the household contents and furniture, to meet the costs of the wedding and holiday and the expenses of bringing out the wife’s family for the wedding. The wife had no assets or liabilities at the commencement of cohabitation. The husband’s family gave her gifts of jewellery, to a retail value of $10,000 to $15,000. The husband’s father lent the parties $4000 to meet the costs of kitchen extensions. This amount is still owed. The husband met the costs of the installation of air conditioning and paving and landscaping of the yard from his earnings to the cost of approximately $7000.
The husband worked full-time throughout the marriage in his father’s printing business. From the 1992 financial year to the 2000/2001 financial year he earned a total of $336,895. The wife earned a total of $98,564 in this time. The husband’s parents also made a gift to the couple of $2000 when the child, K, was born.
The couple had the use of a motor vehicle throughout the marriage which was owned by the husband’s father’s company. The costs of registration, servicing and fuel were met by the company.
The parties frequently ate meals at the husband’s parents’ home.
A cleaner attended the home at the expense of the husband once a fortnight from the time of the wife’s pregnancy until she left Australia. The wife was the primary caregiver for the child from the time of its birth. The husband did the shopping and assisted the wife with household duties including washing, maintaining the lawns and the garden. He was actively involved in the child’s care while the couple was in Australia.
The husband provided financial and non-financial help to assist the wife’s family with an application to migrate to Australia. The wife did more of the housework and domestic tasks than the husband did.
In this case the financial contributions made by the husband were considerably more than those made by the wife. The husband made a substantially greater initial contribution of his savings. This is not a situation where there has been a particularly lengthy marriage, such that an initial substantial contribution by one party may be eroded by later contributions of the other party (cf Bremner v Bremner (1995) FLC 92-560).
His family gave substantial monetary gifts. A significant amount was used to purchase contents and furniture for the family home and on the evidence before the court I am satisfied that such gifts constitute a financial contribution on behalf of the husband to the acquisition, conservation or improvement of property. As was said by Fogarty J in Gosper and Gosper (1987) FLC 91-818:
“The critical case is where a relative of one of the parties gifts properties to both of the parties to that marriage. Dependent upon the circumstances of the case it is, in my view, open to court [sic] in such a case to look at the actuality and treat that as a ‘financial contribution made directly … on behalf of’ the spouse relative …
In many cases that gift was made only because of that relationship and in reality as a means of benefiting that relative in that marriage. It was made ‘because she was a daughter of that family’ as was said in W’s case at 75,527.”
Similarly gifts were made in this case because the applicant was a son of his family. There was no evidence in this case that the money provided in such manner by the husband’s family was intended to benefit both spouses or in recognition for some service provided jointly by the parties. There is no evidence that it was not the intention of the parents and relatives of the husband to benefit only him with these monetary gifts (Kessey and Kessey (1994) FLC 92-495), except in relation to the jewellery which might be said to be for the wife’s benefit. This might also be said of the costs of her family attending the wedding but there is no evidence as to the quantification of such cost.
The wife made the primary contribution as homemaker or parent. The husband made some contribution in this regard and also met the expense of domestic assistance. His family also provided assistance. The wife’s failure to return to Australia with the child has limited the non-financial contributions which could be made by the father as a parent.
The husband submitted that his total contributions ought to be assessed at 80 per cent. There was no submission by the wife as to the assessment of contributions. On the evidence before me and in all the circumstances of this case, taking into account the husband’s greater financial contributions, the gifts from his family members, the duration of cohabitation, the short time where the parties cohabited after the birth of the child and all the other circumstances, I consider that the contributions should be assessed as 80 per cent by the husband and 20 per cent by the wife.
Section 75(2) factors (also see section 79(4)(d)–(g))
a)The husband is aged 35 years and the wife is aged 31 years and both parties enjoy good health.
b)The husband and wife have the assets as set out above including the husband’s superannuation entitlements which are not presently divisible and which will not be available to him for many years. The husband has a demonstrated capacity to work and earn a good living. The wife has a capacity to work including as an interpreter in Australia or A. She is in full-time employment in A in what she describes as a well-paid job.
c)Pursuant to the orders to be made by the court in relation to residence of K the father will have the care and control of a child of the marriage who has not attained the age of 18 years. His earning capacity will reduce accordingly. I accept that he is likely to incur substantial costs in enforcing the orderers as the wife has indicated that she does not intend to return to Australia, with or without K.
d)Each party has expressed a commitment to support K.
e)They are not liable to support any other persons.
f)As discussed the husband has a superannuation entitlement of over $17,000 on retirement. He is presently 35 years old. The wife has no superannuation entitlement but makes contributions to a pension fund the nature of which is unclear. Neither party is entitled to an Australian pension.
g)The husband’s standard of living remains as it was prior to separation. The wife has unilaterally decided to reside in A with K. The standard of living in that country is said to be lower than in Australia but the mother suggests that she is well paid by local standards.
h)The husband seeks lump sum spousal maintenance to enable K to return to Australia and to have a good standard of living and quality education. There is no suggestion that such maintenance is required to increase his earning capacity or otherwise to obtain an adequate income. This issue is discussed further below.
i)The husband was the primary income earner for the family and hence made the major contribution to the property of the mother.
j)The parties were married for seven years and six months and there is no evidence that the marriage has affected either party’s earning capacity.
k)The wife wishes to care for K in the absence of the husband. The husband wishes to care for K in Australia, preferably with the wife also residing in this country.
l)Neither party cohabits with another person. The mother shares accommodation with her parents and brother and there is no evidence in relation to their financial circumstances.
m)No property order has been made to date.
n)There is no child support assessment in relation to K.
Under section 75(2)(o) it is appropriate to take into account the costs associated with the return of K to Australia. This includes the expense the husband would incur if it is necessary to enforce the orders in A and bringing the child back to Australia. He has estimated such costs as at approximately $30,000. There is no evidence from the wife in relation to these matters. If she returns to Australia with K she will incur relocation expenses. If she chooses to make contact visits she would also incur expenses associated with such visits.
It is also relevant to note that there is no evidence as to the value of the jewellery given to the wife during the marriage but that the husband is prepared to return the jewellery to the wife. Also relevant is the financial support that the husband has provided for K and the mother since separation.
As to the factors in section 79(4)(d), (f) and (g) it is proposed that the child should live with the father. His income earning capacity may be reduced to some limited extent.
As to any other order made under this Act I take into account the orders I am making whereby the child is to reside with the husband. There is no evidence that either party has provided child support although the husband has provided some financial support to the wife and child in A. I note the difficulties of obtaining future child support from the wife should she remain in A. The position may be otherwise if the wife chooses to return to Australia.
Conclusion — section 75(2) factors
Taking into account all of the factors in sections 75(2) and 79(4)(d)–(g) in the circumstances of this matter, in my view no adjustment is called for in favour of either party.
The legislation confers on me a discretion to make orders that
I consider are just and equitable in all the circumstances taking into account all relevant statutory considerations [section 79(2)]. In all the circumstances of this case, having regard to the values of the assets, the matters of contribution I have identified and the other factors I have considered I am of the opinion that it is just and equitable to make an order for the division of property to which a value has been assigned in the proportion of 80 per cent to the husband and 20 per cent to the wife. The net total value property valued is $67,750.43. If the wife is to receive 20 per cent of the value of this property she should receive $13,550.10. She has the benefit of the bank account in A worth $4445 on her evidence. When this amount is deducted from the amount she should receive she has an entitlement of $9105.10.
The husband has suggested that in the event the court determines that the wife should receive a lump sum, he should receive from the wife an identical amount to meet his expenses for contact with the said child or to meet his expenses for contact with the child or to meet his expenses in relation to bringing her to Australia and that this should be paid by way of lump sum spousal maintenance.
Section 72 of the Family Law Act provides that:
A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if and only if, that other party is unable to support herself or himself adequately whether:
(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years,
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c)if any other adequate reason,
having regard to any relevant matter referred to in subsection 75(2).
On the evidence before me as to the assets, income and expenditure of the applicant father and other matters I am not satisfied that the father has established that he is unable to support himself adequately. In reaching this conclusion I have taken into account his submissions in relation to the cost of recovering the child and returning her to Australia but do not accept that such factors meet the threshold under section 72.
The conduct of the mother in keeping the child in A (hence necessitating expenditure of recovery costs by the father) does not establish an inability on the part of the father to support himself adequately. I am not satisfied that the estimated costs of obtaining the return of the child, either alone or in conjunction with other circumstances, go so far as to establish an inability on the part of the father to support himself adequately.
I acknowledge that the father may well have such costs and that he will have the care and control of the child, K [section 72(a)]. However he is in employment in a family business and will be in possession of the majority of the assets of the parties. While receiving a substantial percentage of the property pool in a section 79 settlement does not necessarily disentitle a party to a periodic spousal maintenance order or a lump sum as sought in this case, I am not satisfied that the father meets the threshold in section 72 of being unable to support himself adequately on any of the grounds in that section and having regard to the matters in section 75(2).
Accordingly, the mother should receive the sum of $9105.10 by way of property adjustment. The father seeks a transfer of the former matrimonial home to his name. I consider that this is appropriate, provided he is able to pay the mother the amount of $9105.10. He should have the opportunity to make such a payment within a specified time, rather than being required to sell the family home and divide the proceeds of sale. However if he is not able to make the payment to the mother, then sale of the home and distribution of the proceeds will be required.
I consider that the most desirable mechanism is for the wife to return to Australia with the child and to receive the money simultaneously with handing over a transfer in registrable form transferring the matrimonial home to the father. Failing provision of a transfer by her, should the sale of the home prove necessary, the Registrar of the Court can execute such transfer and any other necessary instruments. Failing payment by him of the amount due to her as ordered, the home should be sold and the mother paid from the proceeds.
I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Barnes FM
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