Tyrone and Tyrone

[2010] FamCA 560

FAMILY COURT OF AUSTRALIA

TYRONE & TYRONE [2010] FamCA 560

FAMILY LAW – CHILDREN – With whom a child spends time
FAMILY LAW – PROPERTY – Settlement in relation to marriage

Family Law Act 1975 (Cth)

Hickey & The Attorney-General for the Commonwealth of Australia (2003) FLC 93-143

APPLICANT: Ms Tyrone

RESPONDENT: Mr Tyrone

FILE NUMBER: MLC 2099 of 2010

DATE DELIVERED: 2 June 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 2 June 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Rubera, Sebastian Rubera & Associates Pty Ltd

THE RESPONDENT: No appearance

Orders

1. That the wife have leave to proceed with her application filed 3 May, 2010 without further notice to the husband and on an undefended basis. 

2. That the child B born … July, 2001 live with the wife and she be responsible for the day to day welfare, care and development of the child. 

3. That the child spend time with and communicate with the husband as follows :

   (a)        on each alternate Sunday from 10:00 am. until 5:30 pm.;

   (b)        on 25 December in each year from 3:00 pm. until 9:30 pm.;

   (c)in relation to Easter vacation period, the child’s birthday, the parents’ birthday, Fathers’ Day and such specific events referred to herein shall be called for the purposes of these orders “Special Events” and the definition of “Special Events” shall only refer to the specific days particularised in this order.  Should such days fall on a day in which the child spends time with the father then the child shall spend time with the father on that date and similarly if the date of the occasion falls on a day in which the child is in the care of the mother, then the child shall spend time with mother on that day, (save and except that time spent with by the husband shall be suspended on each Easter Sunday from 10:00 am. Easter Sunday to 5:30 pm. Easter Sunday and from 10:00 am. Mothers’ Day to 5:30 pm. Mothers’ Day in each year);

   (d)in relation to other special occasions celebrated by the husband and the wife time spent with the child shall be with the parent to whom the “Special Occasion” applies and if time spent with the child on the date of that special occasion falls on the parent to which the special occasion does not apply then time spent with shall be suspended to facilitate the child attending the special occasion with the parent to whom the special occasion applies.  For the purposes of this paragraph the following shall constitute special occasion:

   (i)the child’s maternal grandfather’s 70^th birthday;

   (ii)Any age milestones such as but not limited to 16^th, 18^th, 21^st, 30^th, 60^th, 70^th birthday celebrations;

   (iii)Engagements, Weddings, Christenings and other such special occasions. 

4. That for the purpose of time spent with the husband, the husband shall collect the child from the wife’s premises at the beginning of time spent with and shall return the child to the wife’s premises at the conclusion of time spent with. 

5. That the child shall spend time with the wife at all other times when the child is not spending time with the husband pursuant to these orders. 

6. That the proceeds of sale of the former matrimonial home situate and known as M property, in the State of Victoria (hereinafter referred to as “the real property”) be divided between the husband and wife following deduction of costs, commissions and expenses of the sale, and any monies required to discharge any mortgage or other encumbrances affecting the real property in the proportions of 60% to the wife and 40% to the husband.

7. That the parties retain for their own use and benefit furniture, chattels and like possessions and all other property in the respective parties’ possession as at the date of these orders. 

8. That the husband forego any claim and/or entitlement that he may have with respect to the superannuation benefits belonging to the wife and the wife shall forego any claim and/or entitlement that she may have to superannuation benefits belonging to the husband. 

9. That each party will solely be liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders. 

IT IS DIRECTED

1. That all outstanding proceedings be dismissed and removed from the list of cases awaiting finalisation.

2. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

3. That the reasons for judgment this day be transcribed. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2099 of 2010

MS TYRONE

Applicant

And

MR TYRONE

Respondent

REASONS FOR JUDGMENT

1. On 9 March 2010 Ms Tyrone filed an application in this court seeking both parenting orders and property orders against her husband, Mr Tyrone.  The proceedings have wandered through the system.  There were proceedings before the Senior Registrar on 24 March this year relating to passport issues at which the husband did not attend.  On 27 April before Registrar Mestrovic, the wife was given leave to seek an undefended hearing of both parenting and property matters if the husband did not comply with orders.

2. He has not complied with those orders, and the matter has come before me today in a duty list. 

3. The husband has been called, and there has been no appearance.  I have an affidavit of Mr S, who has deposed to the fact that he served the various documents, including the orders made on 27 April and the proposed orders sought by the wife.

4. I am not aware of any involvement that the husband has otherwise had in the proceedings, and having regard to both the nature of the evidence concerning the parenting matter and the property matter, I see no reason to delay the matter any further. 

5. The husband has had ample opportunity to do something about the proceedings and has clearly chosen not to.  In addition, he has not complied with any of the Rules of Court, let alone the orders of Registrar Mestrovic.  On that basis, I give the wife leave to proceed on an undefended basis.

6. The wife's application pursuant to the orders of Registrar Mestrovic was amended when she filed the application on 3 May this year.  I shall deal with that application in two parts.  First, dealing with the parenting orders, she has indicated through her solicitor that she is not proceeding with the first order.  The second order is a residence order.  There is no challenge to the position of the wife, nor on the evidence that I have heard, could there be.  It is appropriate in those circumstances to make that sort of order.

7. The other order sought relates to the time to be spent between the husband and the one child of the relationship who is under 18 years, B, who was born in July 2001.  The child is, therefore, not far away from nine years of age. 

8. The other orders sought relating to the parties agreeing on matters - and I do not propose to make those orders, because they are matters that the parties can sort out between themselves in any event.

9. The evidence in relation to the child is a little sparse, so I had Mr Rubera, for the wife, call her, and she has expanded on her evidence.  It was not an opportunity to pry into the personal life of the parties but rather to enable me to be satisfied that the orders that the wife is seeking are in this child's best interests.  I shall return to that in a moment.

10. By way of background, the parties were married in 1988 and separated on 14 November 2008.  It is a relationship, therefore, of 20 years.  N is the first of the children of the marriage, and he is 20, and K is now 18, going on 19 later this year.  Those children are not the subject of these proceedings.  The only child is B.

11. The evidence from the wife is that the husband has had medical problems in the past;  an aneurysm created him problems associated with his brain, and he had a number of strokes.  Despite all of that, B wants to see her father, and he seems keen to have time with her, albeit that it is limited.  The evidence suggests that there was some separation anxiety issues, and that is not surprising, having regard to the child’s age.  The major problem was between the adults rather than the child, and as time has now gone by and the contact between the parents has been reduced, if not eliminated, it seems that the child is much happier. 

12. The wife told me that she has no concerns about the child’s physical welfare and some reservations about her emotional welfare, although that seems to have ameliorated with the reduction of contact between the parents.  On that basis, it is clear that the husband just wants to spend some time with the child and is not desirous of having a significant role in the daily activities.  He is certainly not seeking equal time with her, nor is he seeking significant and substantial time with her.

13. Section 60CA of the Family Law Act 1975 (Cth) (“the Act”) requires that a court should not make an order unless it is in the best interests of the child. The Act requires that the best interests of the child are the paramount consideration.

14. Section 60B sets out a number of objects of the legislation, and clearly on the evidence I have heard today, it is sad that the husband does not seem to be able to have involvement that many children have with their fathers and which the legislation seems to aspire to.

15. Having regard to the nature of the application and the fact that there is no response seeking alternate orders and the evidence of the wife is unchallenged, it is on that basis that I approach the task of determining what is in the child's best interests. 

16. Section 60CC requires me to consider a number of matters, including the benefit of B having a meaningful relationship with both of her parents.  There is no dispute that she has a meaningful relationship with her mother and seems to enjoy the time with her father.  Whether that is meaningful and whether she gets the benefit from it, the evidence does not make clear.  I am satisfied on the evidence that the child is protected by the orders I am about to make in physical or psychological harm from being subjected to or exposed to abuse, neglect, or family violence.

17. Section 60CC sets out a number of additional considerations, including the views of the child.  In this case, I am satisfied that the child does want to see her father.  At eight years of age, it is not surprising that she idolises and wants to have some form of contact with him. 

18. The nature of the relationship between the child and her father is not clear, but the best evidence I have is that she seems to spend time with him but does not do much.  I cannot make a relationship a good one;  all I can do is endeavour to facilitate it.  It is quite clear on the evidence that the child has a significant relationship with her mother and albeit, understandably, having regard to the fact that her siblings are either adults or close thereto, that there is a good relationship with them as well.

19. The evidence is also clear that the wife is willing to encourage and facilitate the relationship between father and daughter, and there are no other practical difficulties associated with that continuing. 

20. The major problem that gave rise to the need for orders was the inconsistency of the husband’s attendances on the home;  that now seems to have gone away, to some extent, and will no doubt be settled by the orders that I propose.

21. The wife said in evidence that she thinks that the husband can look after the child, albeit in a limited way, and he certainly provides for her whilst she is in his care. 

22. There are no other issues in s 60CC that are troubling, other than the ones to which I now turn.  The first relates to the attitude to the child and the responsibilities of parenthood. Certainly, the wife has shown by the background that she has cared for the child in an appropriate way.  I am not at all clear on what the husband’s view is about the responsibilities of parenthood, because he has not given the court any evidence at all.  Initially, there was some hesitancy on the part of the wife, and certainly nothing in the affidavit material of any substance relating to family violence, but I teased out of the wife the fact that there has been family violence in the family. 

23. Family violence is defined in the Act as follows:

    "family violence" means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.

    Sometimes it is said that you can mend broken bones, but you cannot mend a broken mind that arises out of family violence.  It seems in this case that the husband has now got the message since January of this year that he is not a welcome person in the wife's life.  To that extent, whilst there may have been a background of family violence, I am satisfied that the husband’s conduct in the past has left a lot to be desired.  That may be due to his medical condition, but it does not excuse the fact that a child was watching what was going on in the parents' lives. 

24. In this case, it is preferable to make an order that is least likely to lead to further proceedings between the parties.  The husband has had an opportunity to come along today to say what he thinks is in the best interests of the child, and he has failed to do so.  I am entitled to take into account his financial support for the child, but the wife made it clear that she was not terribly troubled about all of that.  She annexed to her affidavit an assessment of child support, but that in reality is not what is currently the situation.  The husband apparently has been on sickness benefits and has a low income anyway, so to that extent, the burden will either fall on the wife or the taxpayers of Australia.

25. I am satisfied that it would be in the best interests of the child to have some time with her father and for me to make a parenting order so that she spends time.  Section 65DAA requires the court to follow a pathway in the event that it makes a parenting order.  Once a parenting order is to be made, then the presumption of equal shared parental responsibility arises.  That presumption is rebutted in a number of circumstances, the first of which is that the court is satisfied that the family violence has occurred.  The second is that it is not in the best interests of a child for there to be an order for equal shared parental responsibility. 

26. The parties do not communicate at all, and decision-making in relation to the child’s life has fallen entirely on the shoulders of the wife. In those circumstances, it is appropriate, having regard to the finding I have made about family violence in the past, that the presumption be rebutted.  I find in the circumstances that it is appropriate to make the orders to which I earlier referred. 

27. I turn, then, to the property proceedings.  The Full Court in Hickey & The Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 set out what is in fact a synopsis of Part VIII of the Act. It is a four-step process. The first step is to define the pool, the second step is to assess and give weight to the contributions of the parties, the third step is to make any necessary adjustments for the factors set out in s 75(2) of the Act, and the fourth step is to step back from all of that and be satisfied that the outcome is just and equitable to both parties. In making that fourth step assessment, one must consider that it is not the percentage division which must be just and equitable, but the underlying value of the percentages. In this case, the evidence again was somewhat sparse, but I am satisfied about a number of matters.

28. First, that the pool of assets is only the net proceeds of the sale of the home at M.  The parties themselves took in to their own hands to divide those proceeds.  I am told that the net sale proceeds were about $200,000 or a little less, and that was divided 60 per cent to the wife and 40 per cent to the husband.  As I indicated in discussion, on the basis of the evidence before me, I probably would not have made an order in those terms. 

29. In terms of contribution, this has been a difficult marriage, having regard to the fact that the husband has had a medical condition during which time the wife has cared for him.  In addition to those problems, the husband had been the major financial provider and the wife the primary carer of the children in the home, bearing in mind that there were three children during the relationship.  I am satisfied on that material that I could say that the contributions were equal, and probably, if anything, they favoured the wife.  Contributions do not stop when the relationship comes to an end.  I am satisfied that subsequent to the separation, which has now been a number of years, the wife has had the burden predominantly of caring for the children, and particularly B.

30. Be that as it may, I am urged not to disturb what the parties have done.  I could find in this case that the contributions were probably other than equal. 

31. Section 75(2) of the Act requires me to take into account a number of matters. Those include the earning capacities and abilities of the parties, their various incomes as they are now, the size of the pool of assets, the contributions towards child support, as well as the responsibilities that each party has for the care of children.

32. I have taken into account all of those matters, and I would, if the circumstances were different, probably find that the adjustment should be made in favour of the wife in excess of 10 per cent.  I would do that in a case such as this where the pool is very small, the child support is very modest, if paid at all, and the wife is on a very modest income supported by the taxpayers through Family Tax Benefit A. 

33. I am urged in this case, however, not to disturb the agreed settlement for two reasons. One, because I suspect there has been a problem between the parties that might be best described as letting sleeping dogs lie, and the other is that the parties themselves have already set out what they want to do and actually executed the outcome themselves. I am not prepared to say that a court should simply rubberstamp what the parties have done. The parties cannot expect the court then to apply what the law requires of the court in s 79 and s 75(2).

34. However, having regard to what has occurred in this case, it is probable that a 10 per cent division in favour of the wife, meaning a 20 per cent differential between what the husband gets and the wife gets, is possibly within the range, albeit at the lower end of that range.  As the wife is agitating only for that sum, I am prepared to say that, modest as it is, it is just and equitable in the circumstances, and I will make orders in those terms.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  7 July 2010