AK & AK

[2005] FamCA 735

[2005] FamCA 735

FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA

AT CANBERRA  CA 958 OF 2003

AK

AND:

AK

RESERVED JUDGMENT DELIVERED BY
THE HONOURABLE JUSTICE FAULKS

DATE OF HEARING:                 3-5 August 2005

DATE OF JUDGMENT:               8 August 2005

APPEARANCES: 

Mr AK for himself
Mr Brzostowski for Ms AK

MATTER:AK v AK

CA 958 OF 2003

CORAM:Faulks DCJ

DATE OF HEARING:  3-5 August 2005

DATE OF JUDGMENT:  8 August 2005

CATCHWORDS:   

FAMILY LAW - PROPERTY - Jurisdiction and Enforcement (Divorce Proceedings in Russia) - s 44(3) Family Law Act - Value of property - Conflicting Evidence - s 79 Family Law Act - Contributions - s 75(2) Family Law Act

CHILDREN - Contact - Best interests - Contact overseas

CASES CITED:

Whitford v Whitford (1979) FLC ¶90-612; Neocleau v Neocleau (1993) FLC ¶92-377; Harris v Harris (1997) FLC ¶95-192; Chorn v Hopkins (2004) FLC ¶93-204; Coghlan v Coghlan (2005) FLC ¶93-220; Thrum v Cavanough [2002] FamCA 196); Farmer v Bramley (2000) FLC ¶93-060; Norbis v Norbis (1986) FLC ¶91-712; Pierce v Pierce (1999) FLC ¶92-844

REASONS FOR JUDGMENT
CA 958 OF 2003
AK v. AK

IN CANBERRA

3-5 August 2005

Foreword

1.The wife is the applicant and is 49 years of age. The respondent husband is currently 47.[1] There are two children of the relationship being R (aged 21) and N (aged 8). The parties were born in Russia, but have lived for periods of time in Australia. Both parties hold Australian citizenship.

[1] I may refer throughout this judgment to the parties as the “husband” and the “wife” notwithstanding that the parties are divorced in Russia and the husband has remarried.  This is for convenience only and no offence is intended to either party.

2.The parties married in 1983 but the date of separation is contended. The wife asserts that separation occurred in April 2001, and that she was served with divorce certificates (proceedings allegedly undertaken by the husband without her notice in Russia) in December 2001 or January 2002. The husband asserts that ‘relations finish in September 1999’. The husband has remarried and his current wife has provided an affidavit.

3.The wife asserts that she has poor English language skills, her work prospects depend upon her health, which she asserts is not good, and her only personal income comes from Centrelink in the form of parenting payments and family assistance. The husband is employed on a contract in Kuwait.

Orders sought

4.Orders sought by the wife appear at endnote 1 Endnote 1.  Orders sought by the husband appear at endnote 2 Endnote 2.

background

5.This is a matter which was a difficult and emotional one for both the parties and also for their adult daughter R.  Both parties were from a Russian background and neither was fluent in what might be called legal English – although, both, from my observation, understood rather more English than either was prepared formally to acknowledge.  The husband had requested an interpreter in advance and Mrs G provided an excellent service throughout all of the proceedings.  As the trial began, Mr Brzostowski SC, who represented the wife, indicated his client also would require an interpreter although she was happy for Ms G to interpret for both.  This latter arrangement was not acceptable to the husband and there was a delay while another interpreter was found.  Mr Y, the interpreter was only available from noon to 5:00pm each day and it was agreed that R, the adult child of the parties, might interpret at other times for the wife.  R was the deponent of an affidavit filed in support of the wife’s case.  She was not required for cross-examination but the husband objected to her being involved.  Her affidavit was mainly directed to factual matters about the sending of court documents to the husband and to his notice of proceedings in this court.  While I understood and understand the reasons why the husband did not want any involvement by his daughter, these reasons did not in any opinion properly preclude her involvement.  The husband questioned her objectivity.  I think he was right in doing so, but a similar criticism might have been directed accurately to him or to his wife and as her evidence was not controversial[2] I allowed it in. 

[2] I enquired of the husband if he disputed any of her evidence and he said he did not and did not wish to ask her any questions. 

6.The trial was painful and difficult for father, mother and daughter all of whom were driven to tears by the evidence as it unfolded.  This was distressing even for those otherwise involved. 

7.The husband (who represented himself – and did so with competence and dignity) harboured deep resentment about the proceedings and the necessity for him to be involved in them.  He had obtained a divorce in Russia, and thought legal matters were thereby finalised.  He maintained he had proceeded to pay off the house at F to provide a home for the wife and his son.  He continued to pay child support for N.  He maintained he had left the negotiating door open for a long time and he felt the institution of these proceedings by the wife was unjustified and unfair.  During the hearing he modified his default position somewhat to seek orders, in effect permitting the wife and his son (and R) to occupy the F home until N turns 18 years of age.  What would happen after that time was not entirely clear. It became clear during the hearing that N has been diagnosed with a form of autism which would likely affect him for the rest of his life.

8.It seemed to depend at least in part on the relationship between the parties at that time and he submitted to me that the nine years approximately, of rent-free accommodation would give the wife an opportunity to learn English, find a job and buy or find other suitable accommodation for herself and presumably for N as he may then still live with her.

preliminary questions about the proceedings and associated issues

9.The husband’s primary position was that these proceedings should never have been instituted and should now be dismissed. This translated into his opposing the granting of leave pursuant to section 44(3) of the Family Law Act 1975 – if that should be necessary.  If the Family Court granted leave, he submitted that the Australian proceedings should be stayed indefinitely – or I suppose more accurately until the Russian proceedings were completed.  As I excluded the opinions of a Russian lawyer about the nature and scope of the Russian proceedings[3], I was left with little information about what had been concluded by the Russian proceedings or indeed what rights if any, the wife had.  The husband in his final written submissions asserted

“6.    According to Russian law she still had an opportunity to appeal concerning our divorce”.

[3] This appeared as an annexure to the husband’s affidavit.  The deponent did not provide his own affidavit.  The circumstances and extent of his briefing were not explained or clear.  He was not available for cross-examination. 

10.The source of that assertion was not identified in the evidence before me.  I do not know whether the husband meant “has” rather than “had”. 

11.The husband asserted in his submissions that the wife knew of the Russian divorce proceedings and he submitted in effect that I should draw the inference that she chose not to participate or possibly consented to them.  The wife maintained[4] she did not know about the divorce, as such until October 2002 when she received documents in the mail (via Korea for some reason).

[4] Her affidavit [13].

12.I am far from satisfied that the wife knew the extent and consequence of the Russian proceedings.  I am however, not satisfied that the wife was entirely ignorant that something was happening.  I can be satisfied and am, from her evidence (and to some extent from inferences available from the husband’s evidence) that the wife did not understand (if indeed it was so) that the Russian proceedings might affect the rights to Australian property.

13.In any event whatever may have been the intention of either party it is common ground that the wife did not participate in the Russian proceedings.  She did not file any documents (so far as the evidence goes), made no submissions and was not represented at the hearing in any way.  In my opinion, it would not be fair or just to deny her an opportunity to be heard and for submissions to be made on her behalf about the Australian property.  She sought and seeks no orders about the Russian property except that it remain with the husband.

14.In summary, I cannot be satisfied that the wife knew about the nature and consequences of the Russian proceedings.  I am satisfied that she took no active part in them.  The ambit of the proceedings has not been put into evidence in this trial.  It is not suggested that anyone was enjoined or restrained from pursuing proceedings in Australia in this court under the Family Law Act.  This court has jurisdiction among other reasons because the parties are Australians.  The orders sought are enforceable in this jurisdiction. 

15.The injunction or stay sought by the husband is refused because the Family Court has the jurisdiction to consider this issue, and because the orders sought can be made and enforced. 

Section 44(3) - leave to proceed:

16.The wife probably out of excessive caution sought leave to proceed under s 44(3) if that was necessary because she did not eventually file her application until July 2003 and it appears that the divorce went through in Russia in January 2002[5]. 

[5] Exhibit H

17.Mr Brzostowski submitted[6] that the restrictions on commencing proceedings about property within twelve months if a divorce decree were not applicable when a divorce of a foreign court was involved.  He cites Kemeny v. Kemeny[7] to support that proposition.  While that judgment at appellate level provides no direct authority for the proposition contended for, that proposition was affirmed by the Trial judge and not queried on appeal.

[6] written submissions/2

[7] (1998) FLC 92-806

18.I agree with the reasoning and conclusion of Her Honour Moore J[8]. Accordingly there is no requirement for leave imposed by section 44(3).

[8] The learned trial judge in Kemeny v. Kemeny

19.If however I am mistaken in that opinion, nevertheless in this matter, there would be proper grounds for granting leave.  Briefly, factors relevant to by considerations about leave are:

a.   Is there an explanation for the delay?

b.   Would the application probably succeed (not necessarily in all respects) if the substantive applications were heard in the merits?

c.   Would the applicant or a child suffer hardship if leave were not granted?

d.   Would the respondent be prejudiced unreasonably?

20.In this regard I rely on and follow the decisions of the Full Court in Whitford v. Whitford[9], Neocleu v. Neocleous[10] and Harris v. Harris[11].  These decisions were referred to me by Mr Brzostwoski in his Summary of Argument.

[9] (1979) FLC 90-612

[10] (1993) FLC 92-377

[11] (1997) FLC 95-192

21.To the extent that there is any remaining requirement for an explanation for the delay, although the actions of the applicant may not have been the appropriate actions of a litigant properly advised and aware, they were in my opinion reasonable for a person in the position of the applicant as a stranger to litigation in a country in which neither the language nor the legal system were part of her cultural heritage.

22.For reasons I set out hereafter there are reasonable prospects for success in a substantive hearing of the wife’s application.

23.The question of hardship seems now properly to be incorporated into considerations about whether the applicant’s claim would probably succeed[12].

[12] See the above-mentioned authorities.

24.Finally the husband, although disadvantaged from one point of view because the wife’s application would not be dismissed before it began, came from Kuwait to court ready to argue and did argue relevant matters in the substantive hearing.  Moreover it does not appear that the husband in any way changed his position to his detriment relying on the assumptions that the wife’s rights to some division of property had been expunged by effluxion of time.

25.In my opinion if leave were necessary, it should be granted. 

26.I took the course of hearing all the evidence - about the stay, the leave and the substantive question.  The husband had travelled at some inconvenience and expense from Kuwait for the hearing and to deal only with the preliminary questions would have been seriously unfair to all parties.  In addition the husband had put in his preliminary submissions a series of fall-back positions which effectively invited the approach I took.  No-one objected to this course of action.

Property pool

27.I turn therefore to the substantive issue before me.  That is not to diminish the importance of N and of his relationship with his father but it does reflect the way in which the parties ran the dispute before me.

28.In the end the only evidence of the property pool is really that set out in the aide memoire provided by Mr Brzostowski.  There were three items of real estate in contention, the flat in M in Russia, the house at S[13] in Russia and the house at F.

[13] The spelling and pronunciation of this varied a little during the course of the proceedings but the parties acknowledged they had a house in that general area and it was also in evidence from the husband that he had sold the house subsequently. 

29.The other items of property were the savings in various accounts of the husband of $18,000; an account for N held by the husband in his name of $6,500; and the parties’ superannuation [14]worth in the husband’s case $16,053 on last count and in the wife’s case $872.15. 

[14] about which neither sought a splitting order

30.By the time of the hearing there were no relevant debts or liabilities of the parties although the husband asserts that he had borrowed money from his friend Mr D, who provided an affidavit.  This was for an initial loan of $20,000 (US) but there was a subsequent amount he asserts of $60,000 in January 2002.  The purpose of the latter loan was “for wedding and other expenses of second family”.  Both those loans were repaid prior to the hearing.  The first $20,000 was repaid before August 2003 and the second $60,000 amount was repaid, the husband asserted, from the sale of the S house. 

31.When the husband departed from Australia, he left a car behind but apparently it was of little value and that was not contested by the husband.  In addition there was furniture in the house but again the wife ascribed little value to this and the husband did not appear to contravert this in cross-examination.  The husband did ask questions about the wife’s having a new satellite television and some hi-fi equipment but the wife’s evidence about this was that they were in fact gifts from R’s boyfriend apparently to R.  This situation was never explored in any appropriate or compelling way and I cannot make a finding that these items are items of furniture that belong in a beneficial way to the wife. 

The Flat in M

32.The husband in his affidavit[15] says that the apartment belonged to the government and was given around 1971 to his mother.  She died in early 2000.  He asserts that according to “Russian heritage property” the flat is to be divided between him and his sister.  He estimates that the value of his half is $25,000 (AUD).  The situation was unquestionably complicated.  Further in his affidavit the husband gave evidence about the fact that the home accommodated the wife and him, and R, and they paid some of the bills for the apartment.  It appears that at some point the wife and at least R (if not N) were registered at this flat as “occupants”.  It was never entirely explained to me what this meant and in particular whether it provided any legal entitlement equivalent to ownership in Australian property law.  It is common ground however that subsequently the registration was cancelled. 

[15] p 5 ¶ 17(b)

33.The wife’s solicitors (the Legal Aid Office) arranged a valuation of the property but that was not admitted into evidence.  The only “evidence” of value is the husband’s admission against interest that his half of the property was worth $25,000 (AUD).  It was included in the inventory of property at that figure by Mr Brzostowski. 

the house

34.The house in S was sold, according to the husband for US$60,000 to a friend who was the tenant of the house.  That was translated by Mr Brzostowski (without much opposition from the husband), on what was the exchange rate on the date of the hearing to represent $77,740.35 (AUD).  The husband asserted in relation to that property, (in answer to a question from me) that he could, if he had the means, repurchase it from the person who bought it for the same price.  In my opinion the status of the disposal of the property is to say the least equivocal.  At the very least what was obtained from the sale of the property should be included in the inventory of property - as appears in Mr Brzostowski’s list.  

35.That raises however the question of whether, if that is to be included, the borrowing from Mr D should also be brought in as a counter-balancing liability.  The evidence about this loan from the husband was somewhat unsatisfactory.  The loan was incurred post-separation and he said it was “for the wedding and for litigation”.  This he expanded upon in some ways by saying he gave $10,000 to his sister and there had been another $10,000 expended on the adoption of his second wife’s children.  He spent $20,000 on his wedding and said that he also applied some of the loan for “living”.  This later claim was to some extent inconsistent with the evidence about the application of his income from time to time.  By and large, I accept Mr Brzostowski’s assertion that the loan, should not be added back because it related to things expended by the husband after separation for his own purposes.  This amount is consistent with the decision of their Honours in Chorn v. Hopkins[16].  In that decision their Honours were dealing principally with legal costs but the principles espoused in my opinion would reflect the result I have set out above.  Accordingly the pool of property is as follows:

[16] (2004) FLC ¶93-204

Pool Of property

Item of property		In his possession		In her possession
Residence	F	$270,000
Flat	M	Half interest	$25,000
Savings/ADF etc	$18,000
Minimum value of house	US	$60,000	$77,740.35
Conversion rate:
AU$1 = 77.18c US	US$1 =	$1.29567 AU
In account for N		$6,500
Superannuation		$16,053		$872.15
Sub-total of assets/resources		$143,293		$0	$270,872
Total Gross assets			$414,165
Liabilities		Nil

Approach to determination

36.It has become convenient in most recent times to refer to four stages of determination in any property dispute. To the extent that this has suggested that there was some further adjustment possibly required, after consideration of contributions and of factors set out under section 75(2), it seems to have been the subject of some reorientation by their Honours in the majority in the recent decision of Coghlan v. Coghlan[17].

[17] 2005 FLC ¶93-220

37.What I understand their Honours to have determined (and with respect, I agree) is that the prescription of section 79(2) is that orders (if they are to be made at all) must do justice and equity between the parties. Under that umbrella the court must consider the matters to be taken into account under section 79(4). These include the contributions made relevantly by each of the parties and what adjustment might thereafter be required by reference to the other relevant financial circumstances of the parties as set out in section 79(4)(e) (which incorporates section 75(2)). By this I am not to be taken to have suggested that sections 79(4)(d), 79(4)(f) and 79(4)(g) are not to be taken into account.

38.However I do not agree that there is a fourth adjusting stage as such. Necessarily a judge in determining what is just and equitable between the parties must adjust and balance the contributions each party has made and their respective financial circumstances as is required by the Act. It is those adjustments which must be carried out under the spot light of the “just and equitable” admonition in section 79(2). That does not suggest in my opinion that there should be a further adjustment according to unstipulated criteria after all the relevant considerations have been taken into account. To proceed otherwise would assume an adjusting jurisdiction variable with the length of a Family Court judge’s foot or perhaps more appropriately his or her concepts of justice and equity.

39.Section 79(1) of the Family Law Act requires the division of the property of the parties

79  Alteration of property interests

(1)  In proceedings with respect to the property of the parties to a marriage or either of them, the court may make such order as it considers appropriate altering the interests of the parties in the property, including an order for a settlement of property in substitution for any interest in the property and including an order requiring either or both of the parties to make, for the benefit of either or both of the parties or a child of the marriage, such settlement or transfer of property as the court determines.

40.The property of the parties is not defined (as it logically might be) as at the date of separation and accordingly has been regarded by the court as the property of the parties as at the date of the hearing (C v T[18]; Farmer v. Bramley[19]).  This robust approach suggests that if there are to be adjustments for contributions made after separation they might be accomplished in the sense used in the High Court of Australia in Norbis v. Norbis[20] on an asset by asset basis.  That is, if an asset is acquired after separation with no contribution from one party, it ought properly to be regarded as outside the “general pool” and treated accordingly. 

[18] [2002] FamCA 196

[19] (2000)FLC ¶93-060

[20] (1986) FLC ¶91-712

41.What complicates matters of course is that separation does not bring to an end certain categories of contribution.  For example, contributions “as parent”[21] may be required.  In this case N’s autism[22] will require continuing contribution from the wife over many years particularly when, because of the husband’s relocation overseas, his remarriage and his acquiring (by adoption) of a new family, the husband’s contributions for the next relevant period will not be as significant as those of the wife who will take on the lion(ess)’s share of the parental responsibility.   

[21] 79(4)(c) may be required for many years to come. 

[22] Confirmed in the oral evidence of Dr H on 4 August 2005

42.The husband correctly claims that he has contributed post separation[23].  The husband’s evidence about these matters left much to be desired.  It is hard to accept that his income as reported and disclosed would have produced the repayments and the capital reductions as claimed.  Mr Brzostowski poured forensic scorn on the proposition that the husband’s income as disclosed could have produced the payments claimed.  That scorn was (on the evidence) justified.  The husband claimed payments equivalent to his total available income and while all sorts of explanations are possible, none is reasonably feasible.  Even allowing for the difficulties of language, self-representation and culture, the husband’s evidence about his income and payments was unsatisfactory.  I cannot overlook the fact that it was the obligation of the husband to provide information about his income, outgoings, assets and liability and generally to make a full financial disclosure.  For whatever reason, he did not do so. 

[23] p 5 ¶ 16(b)

43.In assessing the contributions of the parties, I cannot overlook or diminish the husband’s post separation contributions even if their significance is not as clear as it should be by reference to his income and commitment. 

44.Such contributions nevertheless must be put in context.  The husband left his wife and family to pursue his career, in what, he no doubt correctly assessed, were the better financial opportunities in Kuwait.  What this did was to leave day to day care of N with the wife.  Although the husband undoubtedly sees his financial contributions as more valuable – and he is entitled to be proud of his dollar contributions to his family – it is only just to accord the difficulties the wife faces on a day to day basis with N (without the husband’s physical assistance) as being at least as important and valuable. 

45.I note with interest but without appreciation the husband’s submissions that his efforts in Australia should be given a higher value.  He brought his wife and family to Australia in pursuit of his career.  To claim credit for his interpreting from Russian to English and vice versa when he chose the foreign country is perverse.  To claim further credit for his driving when his wife could not drive in a foreign country is bold and to appropriate benefit for his wife’s salary as part of his income package when his career moves deprived her of pursuing her career opportunities is unreasonable. 

46.He can rightly claim to have made more financial contributions during the period of the relationship.  But in doing so, to belittle the contributions of the wife as homemaker and parent is unworthy of him. 

47.In one respect the husband might legitimately claim additional contributions to the wife.  He claims in his financial submissions:

“2. Flat in M was not matrimonial property which given by Russian Government to AK’s mother before (in 1971) he got married AK (in 1983)”

48.This may have been a valid claim, I shall never know.  There was some evidence about how Soviet citizens could not own property and only had a right of occupation.  No one in the end put the situation about the M flat in context.  I do not know if it was “property” passed to the husband by his mother.  It was apparently subsequently “transferred” at some point in part to the wife and to R.  It is acknowledged as having some value by the husband.  He says his share is now worth $25,000 (AUD).  All valuations were ultimately rejected by me consequent upon objection.  The husband’s “value” is an admission against interest. 

49.To the extent that it was asserted the husband made a greater contribution by reasons of his “inheritance” of this from his mother, I rely on Pierce v. Pierce[24] to regard such contribution as having been made so long ago (if the husband’s evidence is now to be accepted) and is now worth such a small amount comparatively, to hold that any additional contribution so constituted, as being necessarily unimportant in the final analysis of things. 

[24] (1999) FLC ¶92-844

50.If the flat was worth much more – as indeed the wife asserts, it was incumbent upon the husband to disclose it – to prove it.  He did not do so and notwithstanding his difficulties with language, culture and self-representation, he cannot in my opinion be heard now to complain. 

Child support

51.The husband has contributed and says he will contribute child support.  He also (in his terms) “…lived with daughter R as father and mother” between September 1999 and December 2000 when the mother was away.  These are contributions which should be acknowledged and I do so. 

52.The property in S must on the evidence of both parties be regarded as acquired by them even if on modest terms from the Russian government.  They both worked in developing the property. 

53.To the date of this trial in my opinion the parties have contributed equally.  The higher financial contributions of the husband have been matched by the equally important contributions of the wife as homemaker and parent.  In this regard while acknowledging the husband did contribute as homemaker and parent to some extent, the contributions to the wife far outweighed his. 

54.However these things do not end at this hearing.  I accept the evidence of Dr H about the difficulties the wife will face with N.  She will necessarily make a massive additional contribution as parent from this time on.  This must to some extent be offset by the husband’s continuing financial contributions but is not matched by them.  They will continue relevantly until N turns 18 and should be reflected in my determination that the contributions of the parties should be regarded as being 55% by the wife and 45% by the husband.

Section 75(2) factors

55.The husband identified none of these but suggested that the wife, because she would have rent-free accommodation for some years on his proposal, could learn English, get a job and buy a house.  The husband pointed out that at present he has an income of $3,750 (AUD) per month.  He claims payment of $600 (AUD) for N leaving him he says $3,150 (AUD) for his second family (two adults, two children).  This he compares with the wife’s social security income (plus child support) of $2,000 (AUD) per month for one adult and one child.  This he says is “not big difference”.

56.It should also be pointed out that under cross-examination[25] the husband conceded that $94 a week was paid into the Westpac Bank Account for payment out to the mother but another $46 went into the trust account for N to which the mother had no access. 

[25] 4 August 2005

57.Notwithstanding the husband’s submissions, he has earned and will continue (so far as can be foreseen) to earn an income many times that of the wife.  The husband has re-partnered and he apparently derives some support from his present wife.  I cannot make a more definite finding than that on the evidence before me. 

58.Mr Brzostowski urges me to take account of the husband’s failure to assist (even) in the provision of information about the Russian properties or his own affairs.  This, Mr Brzostowski urges is a legitimate factor under section 75(2)(o).  I agree.  I do not brand the husband’s conduct in failing to disclose fully and adequately in his financial circumstances as contumelious.  However his conduct has impeded the proper processes of the law. 

59.I decline to make “robust” orders as if he had more property then he discloses but I am sanguine that the orders I make are just and equitable when I am convinced that the husband has failed to provide all relevant information. 

60.In my opinion the section 75(2) factors can be summarised as providing a further adjustment in favour of the wife so that she receives 66% of the known pool of property.  This in my opinion is a conservative estimate of her entitlement given my concerns about the value of the house in Russia and for that matter the flat. 

What this means

61.This would provide the wife with some $273,348 based on a pool of $414,165.50.  This I round down to $270,872 . She will keep the house in her own right, her superannuation and her house contents (apparently of little value).  The husband will retain his superannuation and his Russian properties or his residential interest in them as the case may be. 

62.It is necessary that I should say something about the husband’s proposed orders.  While appreciating his concern to preserve a house for his ex-wife and his first children, to leave the house in his name (even if he were to be paying all the outgoings) would in my opinion, fail to recognise the very real contribution made by the wife and would operate potentially significantly to the husband’s advantage.  That would not be fair. 

N

63.Neither of the parties really directed much evidence to N and future contact with his father. 

64.In fact both sides presented their final submissions without any reference to this at all.  Dr H had been asked questions about what would be best for N so far as time with his father was concerned.  He emphasised the need for short contact periods and preservation of N’s routine. 

65.There is no doubt that both parents love N.  The father’s pride in his son was demonstrated by a video which he showed in court and the father’s extreme emotional display at the end of the proceedings was I think principally centred on his love for his children and his sense of deprivation. 

66.At the end of submissions I adjourned for a time to enable the husband to discuss with Mr Brzostowski what might be agreed about contact, bearing in mind that the husband’s opportunities for travelling to Australia are relatively limited and the opportunities for N to travel to Kuwait except with his mother, virtually non-existent. 

67.When the parties returned there seemed to be agreement of some sort but I stop short of suggesting that what follows is by consent.

68.It was agreed;

(a)   That there be no restriction on telephone or e-mail contact

(b)   That any presents sent by the husband to his son would be passed on faithfully

(c)    That the mother/wife would authorise any school or child carer or doctor or therapist or any other person who has a caring role in N’s life to provide copies of any reports or assessments for the father at the father’s expense.

69.So far as physical contact, the mother proposed that if the father comes to Canberra and that happens to be in the school term then he can see N from after school until 8:30pm on any day or if there is a weekend involved from 12 noon until 8:30pm. 

70.If the husband should come to Australia during school holiday time then the wife proposes that his contact should begin with three periods from 3:00pm to 8:30pm and that thereafter contact should be from 9:00am until 8:30pm.

71.These proposals were to some extent conditioned by the fact that the husband would not be back in Australia until 2006 and that there would be a major reassessment of N’s condition in 2007. 

72.The father seemed to be seeking that at the end of a two week period an overnight contact period would happen - subject to everyone feeling comfortable about that.  This seems to be a fairly sensible arrangement if the parties can reach agreement - but of course it is too imprecise to incorporate formally in any order. 

73.I propose to make orders that would facilitate contact along the lines suggested above but to provide an opportunity for the parties to apply on short notice if it should become necessary for some definition at that time based on the circumstances.  However, I hope that these proceedings will operate in some way as an emotional release for the parties and I urge them to work cooperatively for the benefit of N in the future. 

Child support

74.Mr Brzostowski abandoned any attempt to vary the existing arrangements about child support.

orders

75.Accordingly the orders are as follows:

1.The husband will do such things as may be necessary to transfer to the wife all his right, title and interest in the property F.  As and from the date of such transfer the wife will indemnify and keep the husband indemnified in respect of all outgoings for the said property.

2.Otherwise each of the husband and the wife is entitled to the exclusion of the other to the property and financial resources in his or her possession or control including any interest each may have in their superannuation entitlement being respectively CRX in the case of the wife and CRY in the case of the husband.  The abovementioned orders extend to confirming that the husband has sole interest in any properties in which he has any form of interest in Russia. 

3.If either party should fail to comply with any requirement pursuant to order 1 then a Registrar of the Family Court of Australia in Canberra is appointed pursuant to section 106A of the Family Law Act 1975 to sign all documents and to do such things as may be necessary to give the liberty and operation to that order. 

4.That N, born in December 1996, live with his mother. 

5.That N have contact with his father as follows:

(a)By telephone and e-mail and letters at any time.

(b)By the sending of presents which will be past on faithfully by the mother to N.

(c)If the father should visit Australia during school term then from after school until 8:30pm on each night.

(d)If the father should visit Australia and seek to have contact with N on a weekend during school term then contact will be on the weekend from 12noon until 8:30pm.

(e)If the father should visit Australia and seek to have contact with N during school holidays then there will be three periods of contact to begin the holiday with N from 3:00pm until 8:30pm followed by contact thereafter from 9:00am until 8:30pm each day. 

6.The mother will authorise any school the child attends, any child carer the child has, or any doctor or therapist or other professional with a role in N’s life to provide copies of any reports or assessments to the father at the father’s expense. 

7.The parties will confer about questions of contact and in particular after a major reassessment of N’s condition in 2007, will consider what additional contact might reasonably occur between N and his father to ensure the preservation of that relationship. 

8.All applications are thereafter finalised.

9.All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.

10.Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it.  Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

Endnote 1

The Wife (Minute of Orders Sought filed 19 May 2005)
Property

1.That pursuant to s 44(3) of the FLA, leave be granted for Orders to be made more than twelve months after the granting of a final divorce.

2.That within 30 days of the date of these Orders (the settlement date) the husband and wife do all things and sign all documents necessary to transfer at the expense of the husband, the property known as F from the husband’s sole name to the wife’s sole name.

3.That on or before the settlement date the husband at his own expense shall do all things and sign all documents necessary to discharge the mortgage registered against the title of the F property, and provide to the wife such evidence of discharge as is sufficient to enable her to register her title in accordance with Order 2.

4.That as and from the settlement date, the wife indemnifies the husband and keeps him indemnified against all rates, taxes and outgoings of or with respect to the property of whatsoever nature and kind.

5.That unless otherwise specified in these Orders, the wife be entitled to the exclusion of the husband to all other property and financial resources of the wife currently in her name or in her possession, including but not limited to:

a.The furniture and furnishings currently situated at the F property;

b.any monies held in her name or for her benefit in any bank or financial institution account;

c.Her interest in the superannuation fund, member number CRX

6.That unless otherwise specified in these Orders the husband be entitled to the exclusion of the wife to all other property and financial resources of the husband currently in his name or in his possession, including but not limited to:

a.His interest in the superannuation fund, member number CRY;

b.His interest in such other superannuation fund as held by the husband;

c.any monies held in his name or for his benefit in any bank or financial institution account;

d.the property situated at M in Russia;

e.the property situated at S in Russia, or the proceeds of sale of such property;

f.The furniture and furnishings currently situated in the Russian properties; and

g.His personalty.

7.That unless otherwise specified in these Orders, each party be solely liable for any payments due and owing in accordance with any debt in that parties name or encumbering any item of property to which that party is entitled according to these Orders.

8.That in the event that either party refuses or neglects to comply with the provisions of paragraph 2 and 3 in these Orders:

a.that party is in default and is ordered to pay any and all foreseeable damages to the party not in default to the party not in default caused by his or her default, including but not limited to the costs associated with enforcement of these Orders; and

b.the Registrar or Deputy Registrar of the Family Court of Australia at Canberra is hereby appointed pursuant to s 106A of the FLA to execute all deeds or documents in the name of the party in party in default and do all acts and things necessary to give validity and operation to these Orders.

9.That each party have liberty to apply at short notice in relation to the implementation or execution of these Orders

10.That pursuant to s 117 of the Child Support (Assessment) Act 1989 there be a departure from the administrative assessment of child support payable by AK for the child N born December 1996, such that the husband pay to the wife an amount equivalent to $700 AUD each month by way of Child Support for the period from the date of these Orders until 19 December 2014.

11.That the monthly amount of child support payable by AK to AK in accordance with Order 10 will increase from 30 June each year, in accordance with variations in the consumer price index for Canberra.

Children

1.That the child, N, born December 1996 reside with the mother.

2.That the father have contact with the child as follows:

a.Upon the father giving the mother 14 days notice in writing, the father shall have contact with the child between 10am and 3pm each Saturday for a total of up to 4 weeks in a row, providing that the father does not make this nomination more than 3 times in a year, and provided that this contact occurs in the presence of the mother, the sister, or another agreed person.

b.By telephone at any reasonable time.

c.Unlimited contact by email and correspondence.

3.That the mother will provide the father with a land line number upon which N shall be telephoned and shall provide the father with a new number if the land line number changes.

4.The mother shall notify the father of all doctors that N is seeing. The mother shall further authorise the father to speak to N’s current school, and doctors, and shall further authorise him to receive any school reports and medical reports.

5.That if the mother changes the address at which N is living, she will immediately advise the father of his new address.

6.

Endnote 2

The Husband (Minute of Orders Sought filed 6 July 2005)

1.That the wife’s Amended Application filed 25 January 2005 for leave to institute proceedings about property be dismissed.

2.That in the event that the Family Court grants leave to the wife to institute proceedings with respect to the property of the parties to the marriage, then such proceedings be stayed permanently (Russian Law Jurisdiction according granted divorce in December 2001 by Russian court).

3.That in the event that the Court grants leave to the wife to institute  proceedings relating to the property of the parties to the marriage and refuses the husband’s application to permanently stay such proceedings, then, and only then:

a.Pursuant to Section 78 of the Family Law Act, the husband be declared to be solely partly entitled as against the wife to the real property situated at and known as F in the Australian Capital Territory; and

b.That except as otherwise provided in these orders, each party shall be solely entitled to the exclusion of the other to all other property located in Russia and chattels of whatsoever nature or kind in his or her possession or control as at the date of these orders and for this purpose Bank accounts are deemed to be in the possession of the party whose name appears on the Bank’s records thereof, insurance policies are deemed to be in the possession of the beneficiary thereof, shares are deemed to be in the possession of the registered proprietor thereof, superannuation entitlements, pension entitlements, long service leave and salary bonus entitlements (if any) are deemed to be in the possession of the person who is named as the worker or beneficiary whose age or working future provides the conditions for payment out of such entitlements.

4.That the wife’s application in relation to child support be dismissed.

5.That the husband have contact with the child N born December 1996 at all such times as the parties may reasonably agree but in any event not less than:

a.Telephone contact once per week at a time and date to be agreed in writing between the parties, or failing agreement at 8.00pm each Wednesday Australian standard eastern time, the respondent husband to make the telephone call and the applicant wife to ensure that N is available to receive the call;

b.If the husband is living overseas and intends to travel to Australia then, upon the respondent husband giving the applicant wife not less than 14 days notice in writing of his intention to travel to Australia (or such other period of notice as is practicable), contact for the duration of the respondent husband’s visit to Australia;

c.Upon the respondent husband giving notice in writing to have the wife, for two term holidays and for each alternate long Christmas school break, such contact (not less then 30 days annually) to take place in Australia if the husband is residing there or to take place in Kuwait if the husband is residing there or in Russia if the husband is residing there, the respondent husband to pay the cost of the airfares associated with such contact;

d.Unlimited contact by email and correspondence.

6.That the wife will provide the husband with a land-line number which N may be telephoned and shall provide the husband with the new number if the land-line number changes.

7.The applicant wife shall send copies of any school reports, medical reports and other important documents concerning N to the respondent husband within 7 days of receiving the document.

8.That if the wife changes the address at which N is living she will immediately advise the husband in writing of his new address.

9.