VISSER & VISSER

[2010] FamCA 1002

FAMILY COURT OF AUSTRALIA

VISSER & VISSER [2010] FamCA 1002

FAMILY LAW – CHIILDREN – sole parenting – mother’s inability to care for child – alcohol addition – costs

Family Law Act 1975 (Cth)

APPLICANT: Mr Visser

RESPONDENT: Ms Visser

FILE NUMBER: SYC 2527 of 2010

DATE DELIVERED:  29 October 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace J

HEARING DATE: 13 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT: Mr Todd

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

1. The husband, Mr Visser have sole parental responsibility for D Visser and the child live with the husband.

2. That within 42 days of the date of these orders each party shall do all things necessary to simultaneously cause the following:

   2.1Transfer of the property situated at and known as K (“the home”) to the sole name of the husband, such that the wife shall sign all documents presented to her by the husband and the wife shall do all other things necessary for such transfer.

   AND the husband shall indemnify and keep indemnified the wife in respect of all liabilities in relation to the property whenever and however arising.

   2.2The wife is to transfer to the husband his motor vehicle in his possession being the VW Golf, registration number …, and the husband shall indemnify and keep indemnified the wife in respect of all liabilities in relation to the VW Golf registration number … whenever and however arising.

   2.3The husband is to transfer to the wife all is right, title and interest in the Subaru Outback motor vehicle, registration number ….

   2.4The husband shall retain free from any interest of the wife any interest he had in the company known as B Pty Ltd.

   2.5The wife shall retain the balance of the amount held in the St George Bank account numbers …27 and …30 at the time of making of these Orders.

   2.6The husband shall retain all monies held in the Commonwealth Bank accounts …95 at the time of the making of these Orders.

   2.7The husband shall retain any shares he has in NIB.

   2.8The wife shall retain any shares she has in Telstra.

3. That within 42 days of the date of the Wife vacating the home as referred to in order 5, the Husband shall pay to the Wife, or as the Wife directs, the amount of $50,000.

4. Pending transfer of the property provided for in Order 2.1 the Husband shall be responsible for all mortgage payments, statutory rates and charges, insurance, outgoings and expenses in relation to the property incurred prior to the date of transfer and shall make all such payments as and when they fall due and hereby indemnifies the other party in respect of all other liabilities incurred prior to the date of transfer.

5. That simultaneously with Order 2.1 the wife shall vacate the former matrimonial property.

6. In the alternative to Order 5, and/or on indication by the Wife of her preference, and if the wife fails to comply with Order 5, the Wife shall have sole occupation of the home and the parties shall do the following:

   6.1Do all acts and things and sign all documents necessary to enter into a Residential Tenancy Agreement with the Husband, the said Residential Tenancy Agreement to have the following effect:

   6.1.1That the rent payable by the Wife shall be in the amount of $4,500 per calendar month;

   6.1.2That the Wife shall pay to the Husband or as the Husband directs the rent payable for the first 12 months in advance, payment to be effected within 42 days of these Orders;

   6.1.3That the Husband shall be responsible for maintaining the property in a presentable condition including but not limited to maintaining the pool, garden and the whole of the property and the Wife is to be responsible for the expenses in relation to this maintenance by way of compliance with Order 6.1.2 herein and shall indemnify and keep indemnified the Husband in respect of all such expenses incurred in such maintenance whenever and however arising;

   6.1.4In the event that the Wife fails or refuses to pay any rent pursuant to 6.1.2, then the amount of rent that remains unpaid at the time of the vacation of the property shall be deducted from the amount payable by the Husband to the Wife pursuant to Order 3.

   6.2The Wife’s sole occupation of the home will exclude access to the granny flat and the rumpus room;

   6.3The wife shall keep the property in good order and repair;

   6.4The Wife shall permit the husband and/or any person nominated by the Husband to enter onto the property and otherwise gain access to the land and buildings in order to attend to maintenance of the property.

7. That pursuant to 90MT(1)(c) of the Family Law Act 1975 whenever the Trustee of the Macquarie Superannuation Plan makes a splittable payment out of the husband’s interest in the Fund, the Trustee shall:

   7.1Pay to the wife, or her legal personal representative, 100 per cent of each splittable payment;

   and

   7.2Make a corresponding reduction in the entitlement the husband would have had in the Fund but for this Orders.

8. That Order 7 have effect from the operative time;

9. That the operative time for these Orders is a date 4 business days after the service of the Sealed Orders on the Trustee; and

10. That the trustee shall do all acts and things and sign all documents as may be necessary so that, in accordance with the obligations set out under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the Trustee can calculate the entitlement of, and make payment to, the wife in accordance with Order 7.

11. That the Husband shall be permitted to remove from the former matrimonial home the list of items annexed to these orders prior to the sale of the property and the wife shall retain the balance of the contents.

12. That in the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these orders, then the Registrar of the Court shall be appointed pursuant to Section 106A of the Family Law Act 1975 to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:   SYC 2527 of 2010

MR VISSER

Applicant

And

MS VISSER

Respondent

REASONS FOR JUDGMENT

Introduction

1. Mr Visser (“the husband”) applies for orders for sole parental responsibility in relation to D (“the child”) born in September 1997 and for property orders. In exercising sole parental responsibility, the father says he will consult with Ms Visser (“the mother”) in respect to the child’s care including education, religion and health issues.  The husband also seeks an order that the wife pay his costs of and incidental to these proceedings on a party/party basis in the amount of $4,449.56.

2. The application was undefended.

3. I am satisfied that on 26^th August 2010 the wife, Ms Visser, was personally served with the husband’s amended application, affidavit, financial affidavit and a letter from his solicitor on 26^th August 2010 and further served on the 7^th October in which she was notified that the case was to be heard as an undefended matter.  When the matter was called on for hearing, there was no appearance by or on behalf of the wife.

Background

1. The husband was born in 1965 and the wife in 1952.  They began living together in January 1990, married in March 1990 and separated in November 2009.

2. There is one child of the parties, D (the child) who was placed in the care of the parties as a foster child in 1999.  In 2005 she was adopted by the parties. Another child, R was also placed in the care of the parties from 2004 until 2009 when he left their care.  A third child, H began living with the parties in May 2006 and in December 2009 was placed in the sole care of the husband by the Department of Community Services.

3. After the parties separated, the husband, D and H moved out of the marital home and are presently living together.

4. The husband commenced proceedings for orders for property adjustment and in relation to the care of D.  While the documents have been served on the wife, she has not appeared nor responded to the case presented by the husband.

5. When the parties met, the husband was working in the United Kingdom.  The wife was working in marketing for an Australian company.

6. The wife worked after marriage until 1996.  The husband said that from 1990 until 1996 her average gross annual income was in the order of $34,000.  The husband has worked in a number of occupations.  In 2001 he established a company, B Pty Ltd.  He estimates that his average income from that business and his occupations generally was $120,000 per year.  The husband is presently employed by as a consultant and receives a base salary of $140,000.  He is entitled to an achievement bonus of $110,000 per year but has not yet reached the necessary targets to be paid the bonus.

7. It is clear from the husband’s affidavits that the wife is alcohol dependent and has been for some time.  He said that in 1995 she was admitted to a private hospital for rehabilitation and while she abstained from alcohol for a short time after treatment, she then relapsed.  According to the husband’s affidavit, the wife’s drinking was of such a magnitude that she became unable to care for the children, her behaviour was erratic and he took over more and more of the responsibilities for the children because she was not able to do so.  Since the separation, the wife has lived in the former marital home.  She has undertaken no maintenance or cleaning of the property inside or out and it has fallen into disrepair.  Her health is failing. 

8. After separation the husband and the two children moved in with the husband’s new partner with whom he has since had another child.  

Parenting orders

1. While it seems that the husband has made significant efforts to encourage and maintain D’s relationship with the wife, the wife has consistently refused to see her or have anything further to do with her.  The wife has taken no real part in the children’s lives since separation and, on the husband’s evidence, played a diminishing role in the years up to separation.

2. In considering whether to make the orders sought – that the husband have sole parental responsibility for the child, D, and whether any order should be made that D spend time with the wife, I am guided by a determination of the best interests of the child. 

3. Despite the husband’s efforts and the efforts of D herself, the wife has refused to have contact with her.  As matters presently stand, I could not find that there is any present prospect of D enjoying a meaningful relationship with the wife and, in the circumstances of the wife’s failing health and alcohol addiction, it appears unlikely to happen in the future.

4. In the course of the husband’s attempts to foster this relationship, the wife has been abusive of the husband and D.  The husband’s affidavit detail episodes before separation where because of being intoxicated the wife has acted neglectfully of the children and unmindful of their needs. 

5. The child’s interests dictate that she be protected from exposure to the psychological harm that must flow from the wife’s conduct as described by the husband.  It is relevant that the Department of Community Services have indicated that the children should not be in the presence of the mother without supervision because of her alcoholism and her aggressive behaviour.

6. The child H has Autism Spectrum Disorder and requires a significant degree of attention to his routine and various medical attendances.  Since the separation he has apparently considerably improved because of the stability of his living circumstances and because his medical and other needs are being promptly met by the husband.

7. H, given his age and developmental stage is perhaps too young to be affected as much as D by the wife’s conduct.  The husband has referred to several episodes in which D has been rebuffed by the wife and which have caused D distress.

8. It appears that H has made significant improvement in his functioning since the separation.  Both children appear to enjoy a warm and loving relationship with the husband.

9. In all of the circumstances, I am satisfied that it is D’s best interest that an order is made that the husband have sole parental responsibility for her.  I will not make any order that the wife spend time with the children given the circumstances of the case. However I note that the husband proposes that D spend an hour each weekend with the wife, the time to be arranged between the parties and supervised by the husband.  So far as H is concerned, the husband will comply with the directions of the Department of Community Services about spending time with the wife.   If these arrangements can be made and adhered to without occasioning distress to D, they are to be encouraged, I do not however believe that there should be an order which compels the husband to try to facilitate contact between D and the wife when the wife has made it clear in distressing ways, that she wishes nothing further to do with D.

Assets

1. According to the affidavit and documents filed on behalf of the husband, at the date that the parties commenced to live together, the husband had savings of $10,000.  The wife owned a property at G in NSW that the husband estimated to be valued at $120,000 and she had a car worth about $2,000.

2. After they started to live together, the parties bought a property in C for $160,000 in June 1991, funded by the proceeds of sale of the wife’s G property ($120,000) and a mortgage that was met through the earnings of the parties.  Over the years, they bought and sold various properties and in 2000 bought the former marital home in K for $760,000.  The purchase of the property was funded through the sale of the parties’ previous home, the husband’s income and funds from the husband’s share trading.

3. In 2001 the wife inherited $101,000 from her mother’s estate.  The husband said that the money was spent on renovations to the K property, holidays, the purchase of a new car and daily expenses.

4. Since separation the husband has paid all outgoings on the home, mortgage repayments, rates and other fixed expenses.  He is paying rent for the property in which he, the children, his partner, her child and their new baby are living.

5. The K property is valued at $1,000,000.  It is subject to a mortgage debt of $220,000. 

6. The husband is a member of the Macquarie Super Manager Fund and has a present entitlement in the order of $226,897.

7. The parties have various amounts standing to their credit in bank accounts.

8. The list of assets, resources and liabilities of the parties prepared by the husband is annexed to the judgment.

Contributions

1. Throughout the relationship the husband contributed his income from various sources.  He made significant contribution to the welfare of the family through his care of the children in circumstances where the wife’s alcohol dependency rendered her unable to do so.  The wife contributed her income and inheritance and, until the point where her condition prevented it, cared for the children. 

2. The husband deposed that he believes that the wife does not have the present capacity to care for herself.

3. The wife’s alcohol addiction worsened in the time up until separation and was having a deleterious effect on the children.  The husband estimated that for many years, the wife spent about $300 per week on cigarettes and alcohol.

4. Since separation she has had little contact with the children although D has made a number of attempts to see her.  The husband tried for some time to encourage the wife to see the children.  The wife does not now wish to see the children or the husband.  The husband is the sole carer of both children and it is reasonable to accept that he will remain in that role in the future.   It is unlikely that the wife will be in a position to make any contribution to the children whether financially or otherwise in the future.

Discussion

1. It is clear that while the wife made an initial contributed a significant sum through the sale of the G property owned by her at the date of cohabitation, the husband made significant financial contributions throughout the marriage through his income which increased over time and the gains made through share trading.  This contribution was to both the assets of the marriage but also to the expenses of the parties and the children.  The husband has continued to make financial contributions since separation by maintaining payments on the marital home, maintaining and supporting the children financially without assistance from the wife.  I am satisfied that he further made significant contributions to the welfare of the family by shouldering the burden of care of the children because of the wife’s incapacity. 

2. I accept the submission made on behalf of the husband that his financial contributions made during the marriage outweighed those of the wife. 

3. The husband will continue to provide for the children into the future without contribution from the wife.

4. The wife is in poor health.  It is unlikely that she will be in a position to support herself from employment.

5. In all of the circumstance, I find, consistently with the husband’s submission that when all of the contributions are taken into account, there should be a division of the property as between the parties 60% to the husband and 40 % to the wife. The husband further submits that there should be no further adjustment to take into account the matters set out in section 75(2) of the Family Law Act in favour of the wife because, while she is in poor health and has no income earning capacity, the burden of the care of the children in the future will fall on the husband without assistance.  I accept this submission.  In doing so I take into account that the needs of the children, especially H will be significant because of his Autism Spectrum Disorder and the high needs associated with it.  I am satisfied that the orders sought by the husband are just and equitable in all of the circumstances.

6. Consistent with the accepted division of property as to 60% to the husband, the orders he seeks have the effect of dividing the property in the following way:

   a)The wife to the transfer the K property to the husband and he will indemnify the wife in relation to the mortgage and other liabilities on it.

   b)The husband will cause the trustee of his superannuation fund to pay to the wife 100% of each splittable payment (and make a corresponding reduction in the husband’s entitlement).

   c)The husband will pay to the wife $50,000.

   d)The wife retain the money in bank accounts in her name and her shares in Telstra.

   e)The husband will retain bank accounts in his name, shares in NIB and his interest in his business.  The wife will transfer her interest in the husband’s business to him.

   f)Each party will retain the car presently in his or her possession.

7. It is anticipated that given the wife’s age and state of health, she would be able to seek payment to her of the superannuation funds without penalty and use them to support herself together with the money standing to her credit in bank accounts.

8. The husband’s proposed orders provide for the wife to vacate the K property within 42 days of the orders being made.   However, in his affidavit he has deposed to conversations in which the wife has said that she wants to be left alone in the K property.  Clearly it is untenable for that to occur. However, the husband indicated that should it be considered appropriate, he would consent to an order which allowed the wife to continue to live in the K property for another 12 months with associated orders that he be permitted to do work on the property to bring it to a condition suitable for sale.  If this were to occur, the husband would require the wife to pay him a sum of money, as rent, but calculated by reference to the monthly outgoings on the property; $4,500. 

1. It is obvious that the wife has no apparent capacity to pay the monthly rent, and, while it is not entirely clear from the written submissions made on behalf of the husband, the rental payments could be deducted from the $50,000 proposed to be paid to the wife by the husband on transfer of the K property to him.  The submissions further contemplate the husband extending the wife’s occupancy of that property beyond the 12 month period and the means of deducting any unpaid rent from that capital sum.

2. While it seems clear that the wife will not or cannot contemplate a move from the K home, nor can she afford to pay the outgoings on the property in the form of rent for any length of time.  Within 12 months, much of the $50,000 payment would have been expended in this way. 

3. In all of the circumstances, I propose to make orders that transfer the property to the husband but defer the sale of the property for 12 months or shorter time at the wife’s election on condition that she pay the outgoings of $4,500 in the form of rent. 

4. The husband sought an order that the wife pay his costs of the application of $4,449.56.  Given the nature of the wife’s illness and the husband’s evidence about her physical and mental condition, it seems clear that her failure to respond to the husband’s application or make any effort to engage in the process arises from her alcohol addiction.  In those circumstances, I am of the view that it is not appropriate to depart from the usual rule that each party to the proceedings pay his or her own costs.

I certify that the preceding forty four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie Wallace delivered on 29 October 2010.

Associate: 

Date:         29 October 2010