ANG & JIANG
[2015] FamCA 437
•12 June 2015
FAMILY COURT OF AUSTRALIA
| ANG & JIANG | [2015] FamCA 437 |
FAMILY LAW – CHILDREN – With whom a child lives
FAMILY LAW – CHILDREN – Parental responsibility – sole parental responsibility
FAMILY LAW – PROPERTY – Value of property
FAMILY LAW – PROPERTY SETTLEMENT - Contributions
| Domestic Relationships Act 1994 (ACT), ss 15 and 19, |
Aon Risk Services Australia v ANU (2009) 258 ALR 14
Mallet v Mallet (1984) 156 CLR 605
Pigott v Walker [2002] ACTSC40
Rice & Asplund (1979) FLC 90-725
Stanford v Stanford [2012] HCA 52
| APPLICANT: | Mr Ang |
| RESPONDENT: | Ms Jiang |
| FILE NUMBER: | CAC | 802 | of | 2010 |
| DATE DELIVERED: | 12 June 2015 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Faulks DCJ |
| HEARING DATE: | 28 and 29 November 2011, 7 and 8 February 2012, 25 May 2015, 2 June 2015 and 11 June 2015 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Self-represented |
| COUNSEL FOR THE RESPONDENT: | Mr Brzostowski SC and also self-represented |
| SOLICITOR FOR THE RESPONDENT: | Mark Slater Family Law |
Orders that:
The child, B, born … 2003, live primarily with her mother.
The mother have sole parental responsibility for the child.
The mother authorise any medical practitioner or equivalent professional to make available to the father at his request, and at his expense, information about treatment being undertaken by the child or any medical or equivalent procedures in which she is engaged.
The mother authorise any school that the child attends to provide copies of reports, notices and any other relevant information about the child that the school issues or holds provided that such copies are made available at the expense of the father and at his request.
The parent with whom the child is spending time have parenting responsibility for day to day matters involving the child.
B spend time with her father (unless the parents otherwise agree):
(a) one Saturday or Sunday each fortnight from 9:00am to 5:00pm;
(b)one afternoon from after school each week/fortnight until 7:30pm;
(c) on special family days such as her brothers’ birthdays;
(d) at other times as agreed.
Unless otherwise agreed, the mother transport the child to the father’s home at the commencement of the visit and the father return the child to the mother’s home at the conclusion of the visit.
B is at liberty to contact her father at any time that she wishes.
While it is hoped that the child’s parents could jointly make a decision for her about which high school it would be in the child’s best interests to attend, the mother should have the sole and ultimate responsibility for that decision if the parents cannot agree.
Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled Parenting orders - obligations, consequences and who can help, a copy of which is annexed to these orders.
The parties will divide the interest of the father in C Street, Suburb D in the Australian Capital Territory (“the property”) in the proportions of 48 per cent to the wife and 52 per cent to the husband.
To determine the necessary payment the parties will agree about the value of the property. If they are unable or unwilling to agree on the value of the property, or agree on a valuer for the property, they will accept the nomination of a valuer for the property by the President of the Valuers Institute for the ACT.
(a) Once the value of the property is determined, the father shall within 30 days of delivery of the valuation to both the parties thereafter pay to the mother 48 per cent of the value.
(b) If he fails to do so the parties will cause the property to be sold.
(c) There be liberty to apply about the terms of the sale.
(d)Upon completion of the sale the parties will cause the net proceeds after payment of the costs of the sale including real estate agent’s commission and solicitor’s costs to be divided in the proportions of 48 per cent to the mother and 52 per cent to the father.
The father be and is restrained from encumbering the said Suburb D property in any way except to refinance to pay out the mother.
Otherwise each of the parties will retain all of his or her right, title and interest in any property in his or her possession or control including any entitlement either party may have in relation to any of the superannuation entitlements of the other party.
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.
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.
The matter be removed from the Pending Cases Inventory.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ang & Jiang has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAC 802 of 2010
| Mr Ang |
Applicant
And
| Ms Jiang |
Respondent
REASONS FOR JUDGMENT
Foreword
These proceedings involved parenting and property issues. The father, Mr Ang (“the father”) is the applicant in relation to the parenting proceedings. The parenting proceedings concern the parties’ only child, B, who is almost twelve years of age.
The property proceedings are brought pursuant to the Domestic Relationships Act 1994 (ACT) (“the DRA”) by the mother, Ms Jiang (“the mother”). I am able to deal with proceedings brought under the DRA as a result of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT).
The father also brought a contravention application against the mother. That application was dismissed on 28 November 2011.[1]
[1] T pp1-18 28 November 2011
Because of the time which elapsed between the completion of the first days of the trial and the proposed delivery of judgment (for which I sincerely apologise to the parties) I invited the parties to reopen their cases if they wished to do so.
The matter was reopened and a further Family Report ordered. I provided an opportunity for the parties to cross-examine the Family Reporter and invited additional oral evidence from each if they wished to adduce it. The parties then made some further submissions.
No additional evidence about property was sought to be adduced by either party. However, before delivery of judgment I required the father to provide information about the mortgage balance at separation and at present. Some information was supplied but not enough to satisfy me that the equity in the C Street property had remained substantially as it was at the date of the original trial.
I subsequently made a further order requiring the parties to provide a current list of assets and liabilities. The father complied with this in part by providing a schedule which indicated that he valued the C Street property at $550,000 and explained in an explanatory note in the same material that he based this on what he saw as a recent sale of a townhouse in the complex. The mother provided certain information and both father and mother verified their material on oath. Each of the parties then asked the other some questions about their financial circumstances. The mother conceded that she had not included in her statement the value of her superannuation at present (approximately $35,000) or the child support she was receiving from Mr Ang which he acknowledged to be a little over $6,000 a year at present or her Family Tax Benefit of about $90 a week.
I declined to accept the asserted claim outlined by the father beyond the scope of the directions I gave on 5 June 2015 in which he sought to argue that his current wife, Ms E, had an equitable interest in his assets. Mr Ang pointed out that this had been raised in the course of an affidavit by his current wife. This affidavit was filed on 28 October 2011. In it she said the following:
15. As I have two boys with [Mr Ang] from our marriage and I have made significant contributions to the family over the past five years both financially and non-financially, I believe that I am entitled to an equitable interest in at least half of [Mr Ang’s] current assets and financial resources. I make such a claim with the understanding that a significant portion of the increase in the value of our home occurred during the past five years, when [Mr Ang] and I were married and have lived in the [Suburb D] property.
As I explained to Mr Ang no formal claim has been made on behalf of his current wife and no determination has been made of her asserted equitable interest in his property. He asserts that such equitable interest arises from her contributions and from the fact of her marriage to him. These interests are at best inchoate and may never be pursued. If they were to be pursued it was a matter for Mr Ang’s wife to seek to intervene in the proceedings or to adduce evidence otherwise by way of an acknowledgment of trust or similar document that the interest existed. To introduce such evidence into these proceedings at this late stage would be unfair and unjust. At some point litigation must come to an end. To the extent that it is necessary that I should do so I rely upon the dicta of the High Court in Aon v ANU.[2]
[2] Aon Risk Services Australia v ANU (2009) 258 ALR 14
Mr Ang’s valuation of the C Street property was not agreed to by the mother and accordingly the orders that I make in the course of these proceedings will include the valuation of the property. I advised the parties of this during the course of their appearance before me on 11 June 2015.
Applications of the parties
In relation to the parenting proceedings, the mother sought that the orders made by Federal Magistrate Henderson (as she then was) on 16 February 2006 remain in force. During proceedings on 2 June 2015 the mother indicated she now supported the orders recommended by the Family Reporter in her second report.[3] In relation to the property proceedings, the mother sought that the father pay her $210,000 within 60 days of the date of these orders.[4] The mother relies upon her affidavit filed on 31 October 2011 and her Financial Statement filed on the same date.
[3] 14 May 2015 [35]-[42]
[4] Mother’s Minute of Orders Sought, filed 22 September 2012
The father seeks orders as set out in his Minutes of Orders Sought[5]. The parenting orders sought by the father are:
[5] Father’s affidavit, Enclosure B, filed 28 October 2011
1.The orders that were made on 16 February 2006 by FM Henderson be discharged.
2.The mother and the father have equal shared parental responsibility for the child of the relationship.
3.The child attend [F School] from 2012 onwards. The father is to make all necessary arrangements to effect the transfer of the child from attending [G School] to [F School].
4. The child have contact with her mother as follows:
a.each alternate Friday from 3:00pm to 9:00am the following Monday with the mother to collect and deliver the child from and to School;
b.each alternate Thursday from 3:00pm to 9:00am the following Friday with the mother to collect and deliver the child from and to School.
5.The child reside with her father at all other times.
6.The parents to each have one half of school holiday period in school term of contact with the child, the mother to have the first half being from the last day of school term to 12 noon the second Saturday of the school holidays with the father to have the second period of school holidays.
7.In the third year of the child attending formal education, for the Christmas school holiday period, the child shall spend time with the mother from 9:00am on the second Monday in January to the Friday before school resumes with the father to have contact with his child in the first half.
8.The mother’s contact in order [4] will be suspended during all school holiday periods as set out in orders [6 and 7] herein, and the mother’s contact is to recommence on the first Friday after school resumes until the following Monday morning if the mother has had the first period of school holiday contact and if the mother has had the second period of school holiday contact, her contact is to resume on the second Friday and conclude the following Monday morning.
9.Both parents be permitted to take the child to China to visit her grand parents during the Christmas school holiday period each year, by each giving the other one (1) month prior notice in writing of their intention to travel with the child, providing a copy of the return air ticket within 14 days of their intended departure.
10.Both parents have sole parental responsibility for making decisions concerning the day to day care, welfare and development of the child whilst she is in their respective care.
11.[in the alternative, if the Court does not support the orders 4 and 5 proposed above] the child spend equal time with each parent during school terms. [sic]
The specific school orders are no longer appropriate but no new Minute of Orders was presented by the father.
The property orders sought by the father are:
12.Looking at the facts of the case as a whole, the overall quality of contributions between the parties requires the conclusion that no order for the adjustment of interests in property should be made.
13.The Plaintiff/Applicant in the property proceedings pay costs to the Defendant/Respondent.
Existing Orders
On 16 February 2006[i] Federal Magistrate Henderson (as she then was) made orders. These orders were made after a contested hearing. The current proceedings before the Court about the child sought on the part of the father to displace those orders and on the part of the mother to maintain them. The father correctly directed his attention in his submissions[6] to the fact that he should address the issue in Rice & Asplund[7] because he was seeking to change existing orders.
[6] 8 February 2012
[7] (1979) FLC 90-725
The rule is commonly said to require that a person seeking to change orders should “demonstrate a material change in circumstances” since the order was made. Sometimes this is expressed as a threshold issue requiring determination before evidence in a broader sense about what would be in the best interests of the subject child of the proceedings might be otherwise considered. In many cases however, it is preferable that the evidence as a whole be heard on the basis that the existence of the orders is a factor properly to be taken into account in conjunction with the proposition that it is important for the best interests of the child generally speaking, that litigation should not be recommenced once orders have been made unless there is a good reason for it.
In this matter the father asserted a number of matters which he asserted were “material”. These included his re-marriage and the child’s commencement to attend school. The parents were also in dispute about what school the child might attend. the child has two step-brothers (children of the father and his new partner) who also bear in part upon the Court’s determination.
In my opinion, the circumstances in which the matter came before the Court were sufficient to displace any suggestion that there should be some preliminary summary dismissal of the application to change the original orders. I have taken into account in coming to my decision the fact that there are existing orders in place and that they have been in place for some time.
In this matter each of the parents sought that I make a parenting order (even if in the case of the mother this was until recently a parenting order confirming the continuation of the existing parenting orders).
In such circumstances I am obliged by s 61DA of the Family Law Act 1975 (“the Act)” to apply a presumption that it is in the best interests of the child for her parents to have equal shared parental responsibility for her.
That presumption does not apply if there are reasonable grounds to believe that either parent has engaged in abuse of the child or family violence. It was not initially suggested by either parent that there has been abuse of the child although the father maintained that in effect, the child’s psychological welfare had been affected by what the father suggested was the mother’s alienation of her from the father. If it were thought that this might be a basis for the rebutting of the presumption I indicate that I do not accept that the mother has engaged in the alienating conduct claimed by the father. This conclusion was reinforced in the evidence on 2 June 2015. I accept she has encouraged and supported the child’s relationship with her father notwithstanding the father’s derisive (in my opinion) and dismissive attitude towards her (the mother).
The second Family Report revealed that the child had disclosed that her father had attempted to punch her after the first Report. The father denied the allegation. I accept the child’s assertion. The father was anxious to deny that he actually struck the child. That I also accept.
I also note that the father makes some assertions that the mother is a violent person.[8] The matters referred to preceded the previous parenting orders. For that reason alone the allegation is not relevant. (I accept nevertheless that the provisions of s 61DA(2)(b) are not confined by time.) In my opinion in this matter they are not relevant. If it should be necessary nevertheless for a finding to be made in relation to the allegations presented by the father I would determine that the events claimed by the father did not occur as he suggested they did.
[8] [13] and [14] father’s affidavit filed 21 May 2010.
The presumption in any event may be rebutted by evidence that satisfies the Court “that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”.
In this matter the animosity between the parents is palpable. The father’s attitude to the mother as commented upon during the course of addresses and otherwise is overbearingly dismissive and disrespectful. I formed the opinion that it would not matter what the mother did, the father would take no notice or give no credence or credit to any opinion she wanted to put forward. I formed the opinion that the father was almost totally lacking in empathy at least so far as the mother was concerned and moreover given the circumstances of the hearing and the desirability for the father to demonstrate some such empathy his failure to do so even in the court context suggest that he is unlikely to change in the future.
In the recent reopening of these proceedings, sadly, this finding was reinforced by the evidence of the father and by the way he conducted his cross-examination of the Family Reporter and of the mother and his responses to me in Court. I reached the conclusion that if anything his lack of empathy not only for the mother but for the child had become more pronounced. This is not however, to say that he does not love the child. I am sure he does. In such circumstances it is improbable to contemplate that the parents would operate cooperatively to make decisions about matters that relate to the child’s future.
I note that in the orders made by Federal Magistrate Henderson, as she then was, on 16 February 2006 the child’s mother was given sole responsibility for making decisions about the child’s eczema condition but left the parties with sole responsibility for decisions about the day to day care of the child while she is in the care of each of them. The order currently in existence therefore would suggest that s 61C still had application. That is “each of the parents of a child who is not 18 has parental responsibility for the child”. I am satisfied in the circumstances of this matter on the evidence before me that it would not be in the child’s best interests that there should be equal shared parental responsibility in relation to any facet of her life. The mother should have sole parental responsibility as the child should live principally with her for the reasons which I will enunciate hereafter.
That is not to say that the mother should not provide information (and promptly) to the father about matters relating to the child’s health and her progress at school or any significant matters that might occur in the child’s life when she is not with the father. (It is to be presumed of course that the father would reciprocate.)
Moreover, the mother should, and by my order will, authorise any medical practitioner or equivalent professional to make available to the father at his request and at his expense information about treatment being undertaken by the child or any medical or equivalent procedures in which she is engaged. Similarly, the mother will authorise any school that the child attends to provide copies of reports, notices and any other relevant information about the child that the school issues or holds provided that such copies are made available at the expense of the father and at his request.
To remove any doubt as the learned Federal Magistrate (as she then was) suggested when the child is with either parent that parent should have responsibility for day to day matters involving the child.
Overall, s 60CA provides that in deciding whether to make a particular parenting order about the child I must regard her best interests as the paramount consideration.
In determining what would be in her best interests the Act provides guidance in setting out a number of considerations to be taken into account. These in turn are divided into primary and additional considerations.
Section 60CC(2)(b) provides that I am to give greater weight to the primary consideration that there is a “need to protect [B] from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”. In this matter there are no such concerns for the child with her mother. In saying this I am conscious of the fact that the father believes that the mother has in some way influenced the child against him. Having listened carefully to the evidence of the parties and having read their affidavits I am not satisfied that he has in any way demonstrated that this is the case and I find that she has not done so.
I do not doubt the child will be physically properly cared for with her father but his astonishing inability to understand the child’s feelings, his apparent disregard for them and his obvious failure to understand the need for or to be able to communicate those feelings, put the child at some psychological and emotional risk if she were to be with the father as he seeks. This is affirmed by the 14 May 2015 family report and the father’s attitude, evidence and response to me in Court.
The second primary consideration is applicable in this matter and that is “the benefit to the child of having a meaningful relationship with both of the child’s parents”.[9]
[9] Section 60CC(2)(a)
In this matter both parents concede that there is a role for the other parent to play in the child’s life. For his part the father is quite dismissive of the mother, both in her ability to provide intellectual and emotional support for the child and in suggesting that anything the mother might have to offer by way of physical or emotional support be outweighed by the advantages of the child’s living with him and his new wife and with her step-brothers in his house.
My concern in this matter is whether the existing arrangements which provide for the child to spend time with her father should be further restricted because of the attitude the father displays so disdainfully towards the mother. In my opinion, it is unlikely that the father will change his attitude or his approach to the mother and the child’s exposure to his negativity almost certainly would not operate in her best interests particularly as she has been in the primary care of her mother essentially since birth. The Family Consultant suggested:
[B] requires a relationship with her father that is safe and meets her needs. As [the child] progresses to high school and adolescence she will require support and understanding to develop independence, her own identity and her relationships with her peer group. The descriptions of [the child’s] relationship with her father and his behaviour towards [sic] appear counterproductive to supporting [the child] during this period.[10]
[10] See family report dated 14 May 2015 [32]
The mother originally sought orders simply confirming the previous orders which in the circumstances may provide more time to the father than may have been appropriate. As mentioned above she subsequently adopted the recommendations of the Family Reporter.
In this regard I draw attention to the cross-examination of the father.[11] It is beyond common sense and reasonableness that if the mother had been coaching the child she would still be advocating for the maintaining of the existing orders. The father’s suspicion reflects more adversely on him than it does on the mother.
[11] Not least on p 69 T 29 November 2011
B is of an age that her wishes and her views about things would not be determinative of my deliberations. Nevertheless, her views might be appropriately ascertained by some of the things that she has said and done with other people.
B clearly has a secure base with her mother and this is reflected in the evidence of the Family Consultant.[12] I put a proposition to the Family Consultant[13]
Can I just ask this in relation to what [Mr Ang] is saying. Would I be correct, and if I’m not please don’t accept my words, that what you’re saying is that the two most significant people to [the child] are her mother and her father, but she has a more secure and deep relationship with her mother; that the relationship she has with her father is, to some extent flawed because what I understand you to be saying of his lack of understanding of her needs and emotional requirements particularly, and that that deficit would not be made up by the very best of stepmothers in the world, or the very best of three-year-old baby brothers or a stepbrother who came from a new family who is much older; is that - - - ? - - - That’s exactly what I’m saying, your Honour.
[12] See among other places p 197 ff T 29 November 2011
[13] P 201 T 29 November 2011
Ms Conner in her report[14] said about the child at that point
[B] impressed as a secure little girl
[14] 15 October 2005 [6.1]
And again at [6.3]
[B] appeared to be a well-loved child.
It would appear therefore there has been a continuity of contentment for the child with her mother.
Ms Willetts, during her first cross-examination[15] rejected the proposition that the child, in recounting various incidents, had in some way been coached by her mother. I accept the Family Consultant’s assessment of this matter.
[15] Pp 192-193 T 29 November 2011
I also accept her assessment[16]
Did [Mr Ang] in his conversations with you appear to have a good understanding of [B’s] emotional and development needs? - - - No.
[16] T p 199 l 34
These assessments accorded with my own observations.
The course of the extensive cross-examination conducted by the father of Ms Willetts on both occasions merely cemented into place the conclusion that the child’s father was lacking in an understanding to a large degree of some of the child’s needs.
That is not to say for a moment that he did not have her best interests at heart. I have no doubt that he believes implicitly that he is in a better position than the mother to provide the child with what he believes is important for her best interests. Unfortunately, in my opinion he does not have an accurate idea of what her best interests would be in these circumstances and more particularly he does not have the insight or ability to understand that he is lacking in his capacity to supply some of those needs.
In summary, I am satisfied that the child’s statements, the observations of her by the two experts who had interviewed her, her reported comments to her mother and the course of the evidence lead me to conclude that she is content in her current environment and enjoys the love of both of her parents although perhaps not the importunities of her father in relation to some aspects of her life.
There are other persons in the child’s life who have the potential to be important for her and in many cases already have that importance. They include her extended family all of whom provide her with a secure environment. It is important that this environment continue.
I am obliged to take account of the extent to which each of the child’s parents has taken or failed to take an opportunity to participate in decisions about her, to spend time with her and to communicate with her. This is not an issue in this matter. Each of the parents has endeavoured to do so. Sometimes in the case of the father this has been an overbearing attempt to do so but it could not be said that he was not trying to participate in the child’s life.
Each of the parents has tried as best they might to fulfil their obligations to maintain the child. I interpret this as meaning “economically” and neither parent made any particular complaint about the other at the practical level.
The likely effect of the change as proposed by the father in relation to the child had been well canvassed during the course of cross-examinations of Ms Willetts.
I am satisfied from listening to those cross-examinations and the evidence of the parties and forming my own views about the inability of the father to understand the effect that a change of her primary care would have on the child that those factors would undoubtedly suggest that she would be better off remaining primarily in her mother’s care although being able to and continuing to spend time with her father. An illustration of this is contained in the exchange between the father and Ms Willetts.[17]
[17] P 200 T 29 November 2011 l 16 ff
It follows that if the child were to be removed from her mother’s primary care this would have a dramatic and deleterious effect on her on the basis of the evidence set out above.
There were some practical difficulties associated with the child’s attending the F School if she were living with her mother. The father, and it is to his credit that he has done so, investigated what he thought would be in the best interests of the child’s education. He concluded this would be in the F School. I cannot be certain that his wish to have the child live with him and to attend the F School was not at least in part related to what he thought she might be able to do to help him with the two younger children. However, I could not make a definitive finding that that was his motivation and indeed it would not be consistent with his other declared views about the importance for the child to have an appropriate education. Notwithstanding those factors, there was a high degree of impracticability about her attending the F School if she is living with her mother which is what I think she should do.
This is no longer relevant as the father conceded. The child is about to enter high school. While it would be wonderful if her parents could jointly make a decision for her about which school would be best, the mother should have the sole and ultimate responsibility for that decision if the parents cannot agree. This is clearly indicated by the matters set out above.
I have already made comments about the capacity of the child’s parents to look after her. There is no doubting the intellectual capacity of the father (particularly with his new wife) in providing some of the things that the child needs to enable her to grow into a well-balanced adult including her ability to speak (and read) Mandarin. However, for the past and for the foreseeable future, the child’s “secure haven” will remain with her mother who is capable of providing that degree of security and that haven.
Each of the parents has exhibited an attitude to the child which is reflective of the concern and care each of them has for her and indeed the love that each bears for her. In this regard however I draw attention again to the fact that although the mother might have had every opportunity to develop in the child a negative attitude towards a father who was and is consistently disparaging of the mother, she has not chosen to do so.
A significant focus by the father in his second cross-examination of Ms Willetts was the father’s belief that the mother was attempting to alienate the child from him. Ms Willetts rejected that emphatically and on a number of occasions citing, among other things, that there was no evidence in the child’s attitude or responses consistent with such actions by the mother. I accept her assessment and so find.
This demonstrates in my opinion a highly responsible attitude on the part of the child’s mother and contrasts with the self-focused attitude of the father in combination with the father’s derisive approach to the mother.
There are no incidents of family violence which bear upon the matters before the Court apart from the attempted punch referred to above.
It was urged on me during submissions by counsel that it is important in this matter to make decisions which would be least likely to lead to the institution of further proceedings about the child. I agree with the sentiment and the motive for the sentiment. Whether my orders are successful in quelling the areas of dispute between the parties is perhaps another matter.
Property
In dealing with property matters I want first to take account of a preliminary submission by the father to the effect that as the mother had commenced proceedings originally in the Australian Capital Territory (ACT) Magistrates Court she had elected to put a ceiling on her claim of the jurisdiction of that Court being at the relevant time $50,000. Subsequently the matter was transferred from the ACT Magistrates Court to the Supreme Court and thence to this Court to be dealt with under the Jurisdiction of Courts (Cross-vesting) Acts of the Commonwealth and the ACT.
At the relevant time the only legislation under which those who are not in a marriage relationship could apply in the ACT was under the Domestic Relationships Act. Subsequently there were amendments to the Act which permitted de facto couples to bring property proceedings under the Act. Those who were previously eligible to bring proceedings under (in the ACT) the Domestic Relationships Act could opt in to be dealt with under the Act but were not obliged to do so.
The major distinction between the way in which the consideration for the division of property was to occur under the Domestic Relationships Act and the Act was that superannuation became part of the consideration under the Act but the Domestic Relationships Act was not amended to bring it into line with the Act.
In this matter the proceedings were under the Domestic Relationships Act although the attention of the parties was drawn to the fact that they might agree to opt into the Act, they did not do so.
I note in passing that the nature of a domestic relationship, as that may be defined under the Domestic Relationships Act, is much wider then a de facto relationship as that is defined under the Act.
There was no argument in this matter about the fact that the relationship between the parties qualified as a domestic relationship, even if the duration was not necessarily agreed. In the end not much turns on the length of the relationship.
The High Court decision of Stanford v Stanford[18] was a decision about the division of property under the Act and so far as I am aware, there is no Full Court or High Court decisions specifically considering the application of the issues dealt with by the High Court in Stanford v Stanford in relation to the Domestic Relationships Act.
[18] [2012] HCA 52
The provisions of s 15 of the Domestic Relationships Act contrast with the provisions of s 79(2) of the Act and do not on the surface appear to impose the same restriction that their Honours in the High Court identified in the Act in Stanford v Stanford.
Section 15(1) reads
On application by a party to a domestic relationship, a court may make an order adjusting the interests in the property of either or both of the parties that seems just and equitable to it having[19] regard to –
(a)the nature and duration of the relationship; and
(b)the financial or non-financial contributions made directly or indirectly by or on behalf of either or both of the parties to the acquisition, conservation or improvement of any of the property or financial resources of either or both of them; and
(c)the contributions (including any in the capacity of homemaker or parent) made by either of the parties to the welfare of the other or any child of the parties; and
(d)the matters referred to in section 19(2), as far as they are relevant; and
(e)such other matters (if any) as the court considers relevant.
[19] Emphasis added
Section 15(2) reads
A court may make an order under subsection (1) whether or not it has declared the title or rights of a party in respect of the property.
This is to be contrasted (as I said previously) with s 79(2) of the Act which provides
The court shall not make an order under this section unless it is satisfied[20] that, in all the circumstances, it is just and equitable to make the order.
[20] Emphasis added
In my opinion their Honours in the High Court in Stanford v Stanford concluded that the provisions of s 79(2) of the Act required a preliminary consideration by a judge being asked to divide property between the parties of whether it would be just and equitable to alter the interests of the parties as they were. This necessarily involves a consideration and determination of what those interests are as a starting point. Logically of course that is the starting point in almost every case under either Act.
The second part of the consideration of the division of property under the Act however under Stanford v Standford requires a consideration of how the property should be divided if the judge has determined affirmatively that there should be an alteration to the interests. Their Honours in the High Court in Stanford v Stanford expressed the view that if each of the parties was seeking such an alteration then the first part of the exercise referred to above would be readily satisfied.
It does not seem that this preliminary step is required by the provisions of s 15 of the Domestic Relationships Act. Nevertheless, drawing on analogy with the judgment of their Honours in the High Court in Stanford v Stanford it would be sensible to only alter the interests of parties in property if it were just and equitable to do so. In other words it is not the case that a Court must necessarily leap to a finalisation of a pool of property and then look at the division of that pool in some way. It may be appropriate in many cases to approach the matter on the basis that each of the items of property might be examined and consideration given to whether the interests of either of the parties in that piece of property might be altered by reason of the factors set out under the Act in s 79(4) or under the Domestic Relationships Act under ss 15 and 19.
Coincidently (although not necessarily drawing from the reasoning above) this was the position taken by learned Senior Counsel for the mother.
A preliminary matter
Mr Ang argued in his submissions and before the Court that, in effect, the applicant was restricted or limited in her claim to a figure of $50,000. This represented the limits of the jurisdiction in the ACT Magistrates Court where she commenced the proceedings. He submitted “… that it is unconscionable for her now to raise her claim to $210,000.” He further submitted that she should be estopped by her own admission and representations in the ACT Magistrates Court that she understood the jurisdictional limit of the ACT Magistrates Court and “unequivocally admitted to the Court she intended to limit her claims to $50,000”.
He went on to argue that it would be unjust and inequitable to now take account of the value of the property to be divided at present values because of the delays that have occurred since the commencement of proceedings.
This argument is not sustainable. To suggest that there would be an unjust windfall in favour of the applicant wife is to deny the fact that there is a windfall in favour of the respondent. There is no doubt that in part the increase in value of the property is attributable to the contributions made by or on behalf of the respondent husband after the separation of the parties. Such contribution should be recognised. However, to the extent that the property increased in value because of market forces, to propose that any such increase must necessarily only fall to the respondent is in my opinion manifestly unjust. That is not to say that the applicant is simply entitled to a percentage of the increase in value of the property based upon contributions made while the parties were together. But it does suggest however, that the current value should be taken into account (in some way) while at the same time giving recognition to contributions made by each of the parties since separation. In this regard it has to be acknowledged that while the respondent has supported the property in Suburb D by making mortgage repayments and repairs and the like he has also had the benefit of occupation of the property and moreover during that period the applicant has also continued substantially to be the primary carer of the child and her contribution as home maker and parent on a continuing basis should not be ignored. As a result of my delay in delivery of this judgment I do not have a current value of the property in Suburb D. Neither party sought to adduce additional evidence about property when the case was reopened.
However, the orders I make will provide a mechanism for determining the current value if the parties are unable or unwilling to reach agreement about such valuation.
Other preliminary matters
The respondent raised a number of other matters which he said bore upon my consideration about the contributions of the parties and it is probably appropriate that I deal with those at this point.[21]
[21] They begin a [16] of the respondent’s submissions dated 8 February 2012
The respondent argues that the de facto relationship was a very short duration.
Second, the fact that the parties kept separate bank accounts does not in my opinion impinge upon a determination that the parties have contributed in different ways to the development of property during the course of the time they were together.
The respondent further asserts that he was responsible for “the sourcing, purchasing, maintaining and managing the C Street property”. While that may be physically true, that really does no more than saying that the acquisition of the property was carried out within the course of the relationship (predominately) and there is nothing to suggest that the contribution made by the respondent in this regard was in any way special or different from his contributions made as an earner of money which in turn went into the pool of the parties during the course of their relationship.
He further submits that his employment status and his superannuation were not affected by his relationship with the applicant. If they had been affected negatively, there is probably little doubt that he would have argued that this was some basis for a discrimination between the contributions of the parties. At best this assertion on his part represents a neutral element rather than one which would encourage me to afford to him any greater contribution as a consequence. This submission is rejected.
He also asserts[22] that the actual cohabitation in the C Street property was short. In my opinion that makes no difference whatsoever.
[22] p 4
He further asserts that since November 2006 his present wife has been living there with their children and that his present wife has made contributions to the property. Without necessarily examining with precision the contributions that have been made there is no reason to doubt that she has made contributions.[23] That leaves the difficulty of determining precisely what contributions have been made by whom and what increase in value has arisen by virtue of market fluctuation since the separation of the parties. While acknowledging the validity of the fact that contributions may have been made by, in this case, a third party the father’s present wife, it does not diminish the principle that is enunciated above.
[23] In his most recent evidence the father asserted without any additional evidence that his wife had contributed a significant sum towards reducing the mortgage on the Suburb D home. This may properly be regarded in the context of the dispute between the current parties as a contribution made by or on behalf of the husband.
Moreover, the last of the submissions in this sequence that the substantial increase in the property value of the C Street occurred after the date of separation is irrelevant in this context to the extent that such increase was brought about by a fluctuation in market values and there is no satisfactory evidence that the increase was not so caused.
Contributions
Mr Brzostowski SC, on behalf of the mother, submitted that the initial contributions made by his client were superior to those of the respondent. This is at odds with the submissions made by Mr Ang.[24] However there is a large degree of commonality between the submissions made except in relation to some of the items claimed by Mr Ang as his property at the time that the relationship began.
[24] p 4 of his submissions
To some extent precision is irrelevant. This is not an accounting exercise where every dollar is counted, assigned and in some way evaluated.
The respondent in his thoughtful submissions[25] in table one sets out what he describes as the initial contributions of each of the parties. There is agreement about some but not all of those contributions particularly on behalf of the respondent.[26]
[25] 8 February 2012
[26] Submission on behalf of the mother, 7 February 2012
For example, in the applicant’s submissions E4.2 there is agreement that the initial contribution of the applicant was $33,365 (compare table one respondent’s submissions).
In paragraph E4.3 the respondent’s HSBC shares and cash are an agreed amount as is the liability of $24,527 to Defence Credit Union personal loan.
Mr Brzostowski in E4.3 analyses the various claims by the respondent for contributions. I accept Mr Brzostowski’s submissions on this point. In particular, his comment
Notwithstanding the father’s claim that he also held $29,000 in some account, there is no evidence to substantiate it, nor is there any evidence of the relationship if any between the alleged $29,000 and the $23,006 repayments of the Def Credit debt.
The applicant would have it that the initial contributions were in proportion 53 per cent to the respondent and 47 per cent to the applicant (at least on provable and demonstrated amounts). For his part, the respondent would have it that the contributions augmented by his additional sums referable to exhibits F4, 5 and 6 meant that he contributed about $62,000 of the total funds of the parties to the applicant’s 38 per cent at the time of the beginning of their relationship.
There is little utility in trying to determine finally the precise extent of the contributions of the parties in 2001. It sufficies, for the purposes of my assessment of their contributions overall, to acknowledge that each contributed substantially (at lease proportionally) to the wealth of the parties at the time of the commencement of their relationship.
I reject the submission by the respondent that his initial contribution should be increased to include non-financial contributions such as the provision of transport and accommodation to Ms Jiang and his assistance to her for finding jobs for her by way of writing job applications and transporting her to and from job interviews. The nature of any relationship is that each of the parties will give some assistance or perform some service for the other. The extent to which such services are performed may be unequal but at least in the early part of a relationship are likely to reflect an informal agreement between the parties that their respective provision of such services or assistance is a matter of agreement and not to be in some way warehoused against some future claim. In any event, alleged contributions as writing job applications are intangible. Should the value of such contribution if it were valid to include it, be measured by the success of the application or the nature of the job applied for or by some other criterion? This submission is rejected.
The assets of the parties acquired during the relationship might be said to be the unit in C Street, Suburb D, the increase in the superannuation entitlements of the respondent (and for that matter of the applicant) and the accumulation of some savings or other cash like equivalence.
Superannuation
The applicant contended that there should be some adjustment in cash in relation to the discrepancy between the increase in value of the respondent’s superannuation by comparison with the applicant’s. In submission E8.1 Mr Brzostowski urged an application of what he described as the West and Green formula which effectively takes a difference in value between superannuation entitlements and then apportioning that between the parties. To a large extent the so called West and Green formula was discredited in family law matters under the Family Law Act before the introduction of legislation to allow the splitting of superannuation. The mechanistic application of a formula related to a supposed increase in value (particularly in relation to funds to which both employers and employees contribute) would appear to be a somewhat clumsy attempt to overcome the inability of the Court in this case under the Domestic Relationships Act or the Family Court previously under the Family Law Act to be able to divide the superannuation of one or both of the parties. To arrive at some figure and then to make an adjustment in cash did not and does not amount to a splitting of the superannuation but does effectively arrive at the same conclusion.
I reject the approach suggested by the applicant.
The existence and value (using that term not necessarily as a monetary value) is a resource properly to be taken into account in accordance with s 19(2) of the Domestic Relationships Act. It may be asserted that to the extent that the superannuation was accumulated at least in part during a period of the relationship that each of the parties may be said to have made a contribution either direct or indirect to its accumulation. A diminution in contributions (leading inevitably to a diminution in value of the superannuation) may have caused the standard of the living of the parties to increase by the expenditure of further money but where superannuation contributions are compulsory (as they would appear to be here) such an interpretation of the actions of the parties is an artificial construct. The relationship between the parties may or may not have facilitated the respondent’s being able to make superannuation payments. The evidence is not conclusive about this matter one way or the other. And I would not be prepared to endorse the submission (submission 20) by the respondent that Ms Jiang
… made no contribution towards my salary or my superannuation.
I do however accept his submission immediately thereafter
… that it is unreasonable for her to claim half of the increase in my superannuation entitlement from 2001 to 2005.
At the time the submissions were made the mother submitted the father’s superannuation was worth about $254,000 and that there was an increase during the period of the relationship of some $69,131.[27]
[27] In the most recent evidence given by the wife she acknowledged that her superannuation was worth about some $34,000.
With respect to his Honour the former Chief Justice of the Supreme Court of the Australian Capital Territory I do not agree with the approach undertaken by him in Pigott v Walker[28].
[28] [2002] ACTSC40
Nevertheless I do take into account first the discrepancy between the superannuation entitlements of the parties which is significant. This constitutes a massive financial resource in the hands of the respondent which cannot properly be disregarded as a factor under s 19(2) of the Domestic Relationships Act. I take account also of the fact that this superannuation increased in value (however that may be calculated) during the period of the relationship. The respondent may be right in asserting that the applicant did not directly contribute to any increase in his superannuation. Equally, no part of the relationship contributed to any diminution of his superannuation entitlements.
In circumstances where the tangible assets of the parties and their respective interests in those assets however they may be determined are relatively modest, the discrepancy in the entitlements of the parties to superannuation must be a factor causing me to consider making a comparatively significant adjustment between the parties in accordance with the Domestic Relationships Act.
There is no disagreement between the parties that the property acquired by the husband post-separation in Brisbane should be for all practical purposes quarantined from division in these proceedings. I agree. While the Domestic Relationships Act does not contain similar wording to that in s 79(2) of the Family Law Act, the provisions of justice and equity would preclude my making any adjustment to this property to which the only contribution the applicant might reasonably be said to have made would be in the care of the parties’ child. While such a contribution on a continuing basis is not to be disregarded overall it would be unjust and inequitable to make any adjustment to the property owned by the respondent in Brisbane. Nevertheless, it does constitute part of his portfolio of interests and part of his total financial and resource package which is significant by comparison with the resources and assets of the applicant.
Other contributions
Mr Brzostowski submitted that the fact that the C Street property which was acquired as an investment property originally and in which the respondent now lives was placed in his name so that there would be tax advantages flowing from the fact that he earned more money than the mother did and hence would be able to take better advantage from a tax point of view of deductions and expenses relating to the investment. I do not accept that this is a relevant argument for these purposes. The evidence did not support that this was a predominate reason for the arrangement. I suspect at least, that the respondent’s nature is such that he would never have contemplated that the property might have been put in joint names. Moreover, any perceived advantage which might be re-categorised as a contribution, as suggested by the applicant is of such a tenuous and intangible nature in the overall context of this matter as to have virtually no weight at all.
Notwithstanding that, I accept the evidence of the applicant that it was she who paid for the stamp duty in relation to this property. I found the respondent’s evidence about this matter that he paid the stamp duty in cash to be disingenuous. He may or may not have received funds from the applicant which he may or may not have removed in cash for this purpose, but it is more likely than not, and I find on the balance of probabilities, that the stamp duty was contributed by the applicant.
There is no doubt that during the course of the relationship most of the contributions made by the applicant were of a non-financial kind at least when considered proportionately with the financial contributions made by the respondent.
The respondent (table 3 of his submissions) claimed that the discrepancy in financial contributions during cohabitation favoured him in the ratio of 86 per cent to 14 per cent.
It is obvious from his submissions that he sees the non-financial contributions of the applicant as being of little if any value. In according particularly the parenting and home making contributions of the applicant so little value the respondent swims against the tide of decisions in the Family Court and the High Court over a long period which have afforded such contributions proper value and provided that they should be recognised in a substantial and not a mere token way.[29]
[29] Mallet v Mallet (1984) 156 CLR 605
In my opinion the contributions taken globally of both parties during the course of their cohabitation should be regarded as equal.
Post separation contributions
Since separation the husband has had the benefit of and paid the outgoings on the property on C Street. At the same time the wife has had to obtain rental accommodation and has paid the rent. Although Mr Brzostowski urges this as being a relevant factor it seems to me that to some extent the benefit and the obligations associated with the occupation of the C Street property about cancel out. It may be that to some extent the applicant has been disadvantaged by the arrangement but she should share at least to some extent in the benefit of the preservation of the property and accordingly any increase in its value occasioned by the fact that the husband was able to maintain the property even if he derived a benefit from living there.
The wife’s contribution as primary parent and homemaker has continued since separation and will continue into the future. This should not be treated as an “mere token” and while there is no doubt that contributions financial and otherwise have been made to the C Street property by the respondent and his present wife and that overall in my assessment such contributions should be afforded more weight than the continuing contributions of the wife it is difficult in comparing two completely disparate forms of contribution to nominate with precision what the discrepancy might be. On balance, I believe that the contributions made by or on behalf of the respondent since separation to the C Street property (and for that matter to his superannuation to the extent that that is relevant) have been greater by the husband than by the wife.
In summary
Accordingly, if I review the analysis set out above, the husband’s initial contributions were at least to some extent greater than the wife’s, the contributions during the course of the relationship were on my analysis about equal and the contributions by the husband or on his behalf post separation were greater than those of the wife.
Acknowledging that a comparison of disparate contributions is an imprecise science, in my judgment, the contributions of the parties to the C Street property should be regarded as 60 per cent by the husband and 40 per cent by the wife – a differential of about 20 per cent.
If I turn to the adjusting factors that may arise from s 19(2) of the Domestic Relationships Act, I note the following:
a)The significant discrepancy in superannuation referred to above;
b)The difference in the earning capacity of each of the parties;
c)The additional financial and physical obligations occasioned by the wife having the primary care of the child of the parties.[30]
[30] I note that this is not a specific legally referred to item under s 19(2) but in my opinion is properly a matter to be taken into account in any event.
Again, recognising that these factors are not readily comparable it seems to me that they bring about a situation where an adjustment between the parties should be made in favour of the wife and I have in mind that this should be in the order of 8 per cent or a differential of 16 per cent. This would mean that the C Street property should be divided in the proportions of 48 per cent to the wife and 52 per cent to the husband. The parties should otherwise retain their respective interests in property they currently have and each should retain his or her superannuation.
In this matter I offered to the parties an opportunity to reopen evidence and to put before me further evidence about the value of assets and or resources at the present time and to update their respective financial resource situations.
I shall make orders which require the parties either to agree on the value of the property or agree on a valuer for the property or accept the nomination of a valuer for the property of the President of the Valuers Institute for the ACT. Once that value is determined, the father will have 30 days to pay to the mother 48 per cent of the net value. If he fails to do so the property will be sold. The father is not to encumber the property in any way before this exercise is compiled except to refinance to pay out the mother.
I certify that the preceding one hundred and twenty four (124) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 12 June 2015.
Associate:
Date: 12 June 2015
[i] Orders made by FM Henderson
THE COURT ORDERS THAT:
1.I DISCHARGE ORDERS MADE 14 June 2005 including the Airport Watch List orders in relation to the child [B] born … 2003.
2.[The child] have contact with her father as follows:-
a.Each alternate Wednesday from 1.00pm to 9.00am the following Thursday morning with the father to collect and deliver the child to and from her pre-school. Firct [sic] such period to commence 24 February 2006.
3.Otherwise [the child] reside with the mother at all other times.
4.The father’s contact in order 2 (a) and (b) herein is conditional upon him complying with the mother’s directions in relation to treatment of [the childs] [sic] severe eczma [sic] condition.
5.The mother have sole responsibility for making decisions concerning the long term care, welfare and development in relation to [the child’s] eczma [sic] condition subject to her compliance of the following:-
a.The mother to notify the father of all specialists, medical and or other appointments in relation to [the child’s] eczma [sic] within 24 hours of making such appointments and the father be at liberty to attend those appointments.
6.Both parties have sole responsibility for making decisions concerning the day to day care, welfare and development of [the child] whilst she is in their respective care, subject to the father’s compliance with with [sic] the mother’s directions in relation to the treatment of [the child’s] eczma [sic].
7.Both parties to attend Relationships Australia as nominated by the children’s representative and do all acts and things necessary to ensure they enrol in a course appropriate to improving their communication as [the child’s] parents and are to attend all such courses as may be advised by Relationships Australia.
8.The mother to buy a communication book to record all treatments, medical or any other, in relation to the child with such book to travel with the child on all occasions and the father to buy the second communication book and the parties to alternate each year thereafter.
9.Both parties are to take the child to see [Dr H] in relation to her eczma [sic] and are to attend upon a specialist, skin specialist or otherwise ad advised by [Dr H] or a general practitioner at that practice.
10.In the event that [Dr H] in [sic] unable to further treat the child for her eczma, [sic] then the parties are to take the child to [I Medical Centre] and are to attend upon any specialist as advised by a general practitioner from that practice.
11.The mother be permitted to have one holiday period per year with [the child] for four (4) weeks each year by giving the father 3 months [sic] notice in writing of the time and date of that holiday period.
12.The mother may take the child to China during her holiday period and is permitted so to do provided she has first given the father a notice of her intention to take [the child] to China, a copy of the itinerary for her and the child upon going to China, including a return air ticket within 28 days of her intended departure. This order to cease upon the child attending formal education
13.The mother to have further periods of holiday contact with the child until she attends formal education for one week in each of April, July and October by giving the father 28 days [sic] notice of the week of such holiday.
14.Upon the mother giving the father notice in relation to her four week holiday and one week holiday periods, the father’s contact with the child in order 2 (a) and (b) are suspended.
15.The father’s contact to resume the first week that the mother returns from holidays with the child commencing 1pm on Friday to the following Monday at 9.00am in accordance with order 2(b) herein.
16.Upon the father completing the Relationships Australia course as directed and recommended by that organisation and not before 1 January 2007, the father to have three (3) periods of holiday contact with the child in February, May and September consisting of no more than five(5) nights and five (5) days from 9.00 on the first day to 4.00pm on the last day and by giving the mother 28 days [sic] notice in writing of the times and dates of contact.
17.Upon the child attending formal education, the parents to each have one half of each school holiday period in school term of contact with the child, the father to have the first half being from the last day of school term to 12 noon the second Saturday of the school holidays with the mother to have the second period of school holidays.
18.In the first year of the child attending formal education, for the christmas [sic] school holiday period, the child to have contact with her father from 9.00am on the second Monday in January to the Friday before school resumes with the mother to have contact to her child in the first half.
19.The father’s contact in orders 2(a) and (b) will be suspended during all school holiday periods as set out in orders 17 and 18 herein and the father’s contact is to recommence on the first Friday after school resume until the following Monday morning if the father has had the first period of school holiday contact and if the father has had the second period of school holiday contact, his contact is to resume on the first Wednesday and conclude the following Thursday morning.
20.The father be permitted to take the child to China to visit her paternal family when his [sic] school holidays in order 18 herein commences, by giving the mother three (3) months [sic] notice in writing of his intention to travel with the child, providing a travel itinerary, copy of the return air ticket within 28 days of his intended departure and is permitted to do so each alternate year thereafter.
21.The mother be permitted to take the child to China when she has the child for the second half of the school holidays in January on the same terms and conditions as with the father.
22.The parties may agree on further contact including overseas travel with their daughter as agreed between them in writing.
23.The father is to return the child’s blue book to the mother within seven (7) days of todays [sic] date.
24.The mother to hold the child’s passport and is to release the passport to the father for his first period of holiday contact with the child to China if the father has complied with all the condition [sic] of order 20 herein.
25.Pursuant to S65DA(2), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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