TANAKA & SAMUEL - [2011] FMCAfam 1044

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TANAKA & SAMUEL

[2011] FMCAfam 1044

FAMILY LAW – Children – parenting orders – where Respondent sought order that any parenting orders should be made on an interim basis pending his release from prison – where no indication of the likely date of release – best interests of the children – need for finality in litigation.

FAMILY LAW – Property – property orders – where Respondent did not attend court – where Respondent remanded in custody awaiting sentence for a criminal offence – where Respondent did not file any Response or affidavit – modest asset pool.

Family Law Act 1975, ss.60CA, 60CC, 79

Applicant:

MS TANAKA

Respondent:

MR SAMUEL

File Number:

SYC 1217 of 2011

Judgment of:

Scarlett FM

Hearing date:

19 September 2011

Date of Last Submission:

19 September 2011

Delivered at:

Sydney

Delivered on:

19 September 2011

REPRESENTATION

Solicitor for the Applicant:

Mr Boyd

Solicitors for the Applicant:

Boyd Lawyers

Respondent:

No Appearance

ORDERS

The Applicant Mother is to have sole parental responsibility for the children, [X] born [in] 1999 and [Y] born [in] 2001.
The children are to live with the Mother.
The children are to spend time with the Father:
(a)every second weekend, commencing 4:00pm on the Friday until 6:00pm on the Sunday, commencing on the second weekend after the Father is released from prison;
(b)as otherwise agreed to by the parties;
(c)the changeover place for the purposes of this order shall be the Mother’s residence.
All previous parenting orders are discharged.
The Respondent is to have liberty to apply to vary the parenting orders within 14 days of his release from custody.
All of the net proceeds of the sale of the former matrimonial home, located at Property G be paid to the Mother.
The Applicant Mother otherwise be entitled to the sole right, title and interest in all other property and financial resources in her possession, custody or control as at the date of these orders.
The application will be removed from the list of cases awaiting finalisation.

IT IS NOTED that publication of this judgment under the pseudonym Tanaka & Samuel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 1217 of 2011

MS TANAKA

Applicant

And

MR SAMUEL

Respondent

REASONS FOR JUDGMENT

The application before the Court consists of an application by the Mother for parenting orders in respect of the parties’ two children who currently live with her and an application of property orders.
The Respondent has not attended Court. He is unable to do so because of the fact that he is currently in custody, having been remanded in custody pending sentencing by the District Court. He has pleaded guilty to some serious offences and has been remanded in custody since at least 25^th March this year. He is not due to be sentenced until, I believe, now, 25^th November. It is anticipated that he will receive a lengthy custodial sentence.
I am satisfied that the Respondent has been served with the appropriate application and affidavits in support. He has not obtained representation. He has written directly to the Court indicating that, try as he might, he could not obtain representation. He has not filed any documents. He has further indicated to the Court that whilst he wants to have a say in his children’s future, he would ask that any parenting orders be made as interim orders but he has no difficulty in respect of the property orders being made as final orders.
I have considered that application. The letter which he faxed to the Court has been shown to the Applicant’s solicitor. The Applicant’s solicitor indicates that his client does not agree to the proposal that the parenting orders only be made on an interim basis. I cannot see any value in such a procedure being adopted. It is not known when the Respondent will be released into the community in order to have any interaction with his children. There is a need for finality in litigation and in my view it is in the best interests of the children for final orders to be made.
I will, however, make an order permitting the Respondent to apply to vary the parenting orders within 14 days of his release from custody, whenever that may be. However, in all essential respects, the parenting orders and the property orders to be made will be final orders.
There are two children of the parties’ relationship. The parties’ daughter [X] was born [in] 1999. She is 11 years of age, indeed, she is closer to 12 years of age. The parties’ second child, their son [Y], was born [in] 2001. He is nine years of age. He will attain the age of 10 years [shortly].
The parties separated in October 2009 after the Mother left the former matrimonial home. At that stage the children remained in the care of their father. The Mother made efforts to see the children and spend time with them but she has complained in her affidavit evidence that the Father obstructed those efforts. Notwithstanding that, in October 2010, the Mother gives evidence that the Father telephoned her and just said “Come and get [X].” The Mother did. She went over to the premises and took her daughter home with her.
The parties’ son [Y] continued to live with the Father until November 2010. At that time, however, he took it upon himself to decide to live with his mother and both children have lived together with their mother and each other since then. It was in March 2011 that the Father pleaded guilty to certain offences and was remanded in custody where he remains to this day.
The Court has made interim parenting orders on 6^th July 2011. It is time that orders were made final. It is in the best interests of the children to know where their future lies and, subject to leeway being given to the Father to make an application to vary parenting orders upon his release from prison, whenever that may be, I am satisfied that final orders should be made.
When the Court is considering making parenting orders, the Court is required by section 60CA of the Family Law Act to regard the best interests of the children as the paramount consideration. The Court ascertains the best interests of the children by considering matter set out in section 60CC of the Act.
Subsection 60CC(2) contains the primary considerations; subsection (3) contains additional considerations. All of them are important. There is particularly a need to protect the children from harm, and there is the need to enhance the relationship of the children with each of their parents, so long as that is in the children’s best interests.
The Court must consider the nature of the relationship that children have with their parents and with significant others and the Court must consider matters of domestic violence. I note that there is evidence that the Mother applied for an Apprehended Violence Order against the Father in respect of certain threats that were made.
It would seem to me that the only alternative or the only real avenue at this stage is to make an order that the children continue to live with the Mother and that they spend time with their father on alternate weekends or at times agreed by the parties, once he is released into the community. At this stage, as I said, we do not know when that will be.
The Mother is also seeking property orders. At this stage, the only asset of which she is aware is the former matrimonial home or rather the net proceeds of sale. That property was placed on the market unilaterally by the Respondent. The title of the property was in his name only. However, I am satisfied that there is evidence that the Mother made contributions for the purchase of the property, both financial and also of the nature of mother and home maker.
I look, of course, at matters that need to be taken into account. It is significant that the Mother has the care of the two children of the relationship and she is looking after the children’s care and upbringing by herself without any financial assistance. This, to my mind, is a powerful factor in her favour. It is also significant that the proceeds of sale of the former matrimonial home are indeed modest. When the sale was underway, the Applicant found out, somewhat to her dismay, that the Respondent had accrued significant debts, far greater than she was led to believe and that the net proceeds of sale, after meeting those obligations, amounted to only $24,756.28.
The Applicant, of course, has legal expenses which she must meet in respect of these proceedings. She was also placed into bankruptcy on 7^th January 2008, in respect of guarantees given by her securing obligations in respect of the Respondent’s business interests. She is required by her trustee in bankruptcy to contribute 30 per cent of the net proceeds towards the bankruptcy.
In my view, noting that the Applicant has no knowledge of any other assets, it is appropriate for the entirety of the asset that is known to be transferred to the Applicant. I am of a view that in these rather unusual circumstances that this is a just and equitable situation and I propose to make that order.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Date: 30 September 2011