T and T

[2001] FMCAfam 93

FEDERAL MAGISTRATES COURT OF AUSTRALIA

T & T  [2001] FMCA fam93

DISSOLUTION OF MARRIAGE – Inadequate maintenance for children – whether proper arrangements in all circumstances for welfare of children – Section 55A Family Law Act 1975.

In The Marriage of Opperman (1978) 4 Fam LR 135 at 151

In The Marriage of Gillen (1973) 7 SASR 569

Applicant: T

Respondent: T

File No: ZM 2486 of 2001

Delivered on: 29 June 2001

Delivered at: Melbourne

Hearing Date: 29 June 2001

Judgment of: McInnis FM

REPRESENTATION

Counsel for the Applicant: Mr Venizelakos

Respondent appeared in person

ORDERS

1. The Decree Nisi of dissolution of marriage granted.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE

ZM2486 of 2001

T

Applicant

And

T

Respondent

REASONS FOR JUDGMENT

1. This is an application for divorce by Mr. T, (“the Applicant”).  The application was filed in this court on 29 January 2001.  The application has been opposed by Mrs T, (“the Respondent”), who in a response filed with the court on 21 May 2001 has indicated in general terms that the court should not be satisfied that proper arrangements in all the circumstances have been made for the welfare of the two children of the marriage.

2. The parties were married on 10 January 1995 and there is no dispute that they separated, and remain separate and apart, on 24 November 1999.  There are two children of the marriage, born 17 December 1996, and born 13 January 2000.  It is in relation to those children that the Respondent asserts that there has been inadequate maintenance arrangements made for their welfare, and indeed asserts, and I accept, that as at the date of this hearing there is no application and indeed no orders have been made concerning maintenance.  However, on the affidavit material before me there is obviously a significant dispute as to whether the financial affairs of the party could be interpreted as being such that at least some arrangements have been made for financial support of the children by the Applicant.

3. The Applicant in addition to relying upon his application for divorce, also relies upon the affidavit of his solicitor Nicholas Venizelakos sworn 19 June 2001, together with the Applicant's own affidavit which I accept has been sworn on 12 June 2001.

4. It's submitted on behalf of the Applicant that the court should be satisfied that genuine attempts have been made to enter into consent agreements in relation to maintenance and I note that there is no dispute that at one time consent orders were produced which required the Applicant to pay maintenance of $125 per month for each of the said children with payments originally to commence on 1 January 2001.  There was an alteration to that to read 1 June 2001 and I accept there has thereafter been a dispute between the parties as to the commencing date.

5. It is now said on behalf of the Applicant that he is prepared to consent to orders which involve the commencement of payments on 1 July 2001.  It is also said, and I accept, that the Applicant's solicitor has instructions to in fact make the first of those payments upon the Respondent attending at his office.  I rely strongly on that indication from the Applicant's solicitor given to me in this hearing.

6. I should also add for the sake of completeness that in this matter I have received exhibits A1, a transfer of land document in relation to a block of land which is situated at Sandstone Point Estate.  I am told, and I accept, that the property is subject to a mortgage which is of equal value to the property's value estimated to be $60,000.  That transfer, however, has been the subject of correspondence which I also received as exhibits A2 and A3.  Exhibit A3 is a letter from the Applicant's solicitors to solicitors acting for and on behalf of the Respondent indicating that the Applicant's solicitors had in their possession the original transfer document.  There is a further letter which is exhibit A2 dated 19 October 2000 to the Respondent's solicitors from the Applicant confirming the Applicant's solicitors possession of the duly executed transfer of land document.  For reasons, for which I do not fully understand, no action appears to have been taken by those representing the Respondent in relation to the transfer of land document.  I cannot understand on the material before me why, at the very least as an interim measure, orders were not obtained by consent to ensure that the transfer of that land occur earlier rather than later given that there is very little, if any, equity in that property and expenses are accruing which are in part the responsibility of the wife.

7. I also do not understand, and it has not been adequately explained to me, why in circumstances where it is asserted by the wife that she is in financial difficulty, that no application has been made to this court for spousal or child maintenance.  It is common ground that the Applicant via his mother paid a sum of $3000 for the benefit of the Respondent and children in this matter in or about January 2000 and that that sum of money was applied for the benefit of the wife and the children.

8. I have had regard to the affidavit material and the submissions made by both parties. It is my duty in considering whether or not to grant a decree nisi for the dissolution of marriage to consider pursuant to section 55A of the Family Law Act whether proper arrangements in all the circumstances have been made for the welfare of the children. There is undoubted authority for the proposition that proper arrangements in all the circumstances means that the arrangements that have been made, including financial arrangements, are the best that can be made in the circumstances and I accept the authorities which provide an indication that the court must be satisfied that proper arrangements have been made and the onus of so satisfying a court is upon the Applicant. I refer to the cases of In The Marriage of Opperman (1978) 4 Fam LR 135 at 152 and I also refer to the decision In The Marriage of Gillen (1973) 7 SASR 569.

9. It is significant in the present case that it is relevant for the court to take into account in deciding whether or not to make the appropriate declaration the issue of whether the husband is paying maintenance for the children.  There are, of course, authorities that refer to those situations where the whereabouts of the husband is known and he is able to make financial contributions towards the support of the children but refuses to do so [see In the Marriage of Warne (1976)

   
   

   1 Fam LR 11, 602.]

10. The present case, however, is not a case where there is an indication that the Applicant refuses to provide maintenance.  Instead, it seems to me, that there's been an unfortunate and, one might conclude, a somewhat unnecessary delay in the payment of maintenance and I am satisfied that that delay in the payment of maintenance has arisen as a consequence and fault perhaps on both sides in failing to bring the matter properly before the court to have it determined.

11. It seems to me not at all surprising in the circumstances where separation occurred prior to the birth of the second child, that there appears to be very little social support given to the Respondent, that difficulties have been encountered in trying to resolve these financial arrangements. However, having considered all the material and having regard to the obligations that I have under the legislation to which I have referred and applying the authorities to which I have referred, I conclude that it is appropriate in this case to grant the Applicant for dissolution and to make the appropriate declaration pursuant to section 55A.

12. Accordingly I make the following findings of fact.  I find in this matter that the parties were married on 10 January 1995.  I find that the Respondent is domiciled in Australia.  I find the parties separated on
    24 November 1999 and since that date have lived separately and apart.  Accordingly I find the marriage has irretrievably broken down and I pronounce a decree nisi for the dissolution of the marriage.  I declare that I am satisfied that proper arrangements in all the circumstances have been made for the welfare of the children of the marriage.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date:    20 July 2001