BEALES & ZANG - [2020] FCCA 692

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEALES & ZANG

[2020] FCCA 692

Catchwords:
FAMILY LAW – Parenting – Property – Spousal Maintenance and Child Support proceedings – married less than five years – cohabitation approximately 12 months in total – young child – both have reasonable parenting skills – mother with limited English and employment skills – father initially more available – ultimately equally shared care – no significant contribution by Mother save for s.79(4)(c) – a substantial not token contribution.

Legislation:

Family Law Act 1975 (Cth), Pt VII, ss.4AB, 13C, 60B(1), 60B(2), 60CA, 60CC, 60CC(1), 60CC(2), 60CC(2A), 60CC(3), 60DA(2), 61DA, 62B, 65DA(2), 65DAA(1), 65DAA(2), 65DAA(3), 65DAA(4), 65DAA(5), 65DAA(6), 64B, 72, 75(2), 79(2), 79(4)
Child Support (Assessment) Act 1998 (Cth) ss.123, 124

Cases cited:

McCall & Clark (2009) FLC 93-405

Stanford v Stanford (2012) 87 ALJR 74

Jewel v Jewel [2013] FCWA 81

Collu & Rinaldo [2010] FamCAFC 53

Rolf & Rolf (1979) FLC 90-629

Mallet & Mallet (1984) FLC 91-507

Ferrarro & Ferrarro (1993) FLC 92-335

HKL v HCB [2002] FMCAFam 257

Clauson & Clauson (1995) FLC 92-595

Little & Little (1990) FLC 92-147

Applicant:

MR BEALES

Respondent:

MS ZANG

File Number:

MLC 6800 of 2018

Judgment of:

Judge Curtain

Hearing dates:

2, 3 September and 8 November 2019

Date of Last Submission:

9 December 2019

Delivered at:

Melbourne

Delivered on:

27 March 2020

REPRESENTATION

Counsel for the Applicant:

Mr Glezakos

Solicitors for the Applicant:

Kenna Teasdale Lawyers

Counsel for the Respondent:

Dr Ingleby

Solicitors for the Respondent:

Tao Jiang Lawyers

ORDERS

Parenting Orders

All prior parenting orders be discharged save for the Airport Watch List Order made 24 July 2018.
The father and mother have equal shared parental responsibility for the child X (also known as X) born in 2013 (“the child”).
Until the commencement of the child’s Grade 5 schooling, during school terms the child:-
(a)live with the father; and
(b)spend time with the mother:-
(i)each alternate weekend from the conclusion of school Friday (or Thursday if Friday is a non-school day) until the commencement of school Monday (or Tuesday if Monday is a non-school day); and
(ii)each Tuesday from the conclusion of school until 7.00pm.
Upon the immediate commencement of the child’s Grade 5 at school, during school terms, the child live with each of the father and the mother on a week-about basis with changeover to occur at the conclusion of school each Friday (or 3.00pm if not a school day) with a meal or overnight stay with the other parent, as agreed between the parents.
The child spend time with the mother (other than school terms):-
(a)for Mother’s Day if she is not otherwise in the mother’s care from 5.00pm the night before Mother’s Day until the commencement of school on Monday following Mother’s Day;
(b)for one half of all school term holiday periods as agreed between the parties, and in default of agreement on a week-about basis commencing at the conclusion of school on the last day of term;
(c)at Christmas:-
(i)in odd numbered…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCCA 692
Decision Date: 27 March 2020

CaseChat Overview and Summary

In the matter of BEALES & ZANG, Judge Curtain of the Family Court of Australia considered parenting, property, spousal maintenance, and child support issues between the parties. The dispute arose following a marriage of less than five years, with a total cohabitation period of approximately 12 months. The parties have a young child, and while both possess reasonable parenting skills, the mother has limited English and employment skills, and the father was initially more available. Ultimately, the court found that the mother had made a substantial, not token, contribution to the relationship, specifically under section 79(4)(c) of the *Family Law Act 1975*.

The court was required to determine appropriate parenting orders, including the allocation of parental responsibility and the time the child would spend with each parent. Additionally, the court had to make orders regarding the division of property, spousal maintenance, and child support obligations, taking into account the specific circumstances of the parties, including their financial positions and the child's needs. The court also considered the mother's limited English and employment skills in its determination of the parenting and financial arrangements.

Judge Curtain ordered that prior parenting orders be discharged, with the father and mother sharing equal parental responsibility for the child. The parenting arrangements were structured to evolve as the child progressed through school, with specific provisions for school terms and holidays, including alternating weekends and week-about arrangements. The court also made property orders requiring the husband to pay the wife a sum of $395,000, in addition to a prior payment, and ordered the husband to pay weekly spousal maintenance until the property settlement was finalised. Child support orders stipulated that the husband would be responsible for all reasonable educational and medical expenses for the child.

Orders

Orders of the court

Parenting Orders

All prior parenting orders be discharged save for the Airport Watch List Order made 24 July 2018.

The father and mother have equal shared parental responsibility for the child X (also known as X) born in 2013 (“the child”).

Until the commencement of the child’s Grade 5 schooling, during school terms the child:-

(a) live with the father; and

(b) spend time with the mother:-

(i) each alternate weekend from the conclusion of school Friday (or Thursday if Friday is a non-school day) until the commencement of school Monday (or Tuesday if Monday is a non-school day); and

(ii) each Tuesday from the conclusion of school until 7.00pm.

Upon the immediate commencement of the child’s Grade 5 at school, during school terms, the child live with each of the father and the mother on a week-about basis with changeover to occur at the conclusion of school each Friday (or 3.00pm if not a school day) with a meal or overnight stay with the other parent, as agreed between the parents.

The child spend time with the mother (other than school terms):-

(a) for Mother’s Day if she is not otherwise in the mother’s care from 5.00pm the night before Mother’s Day until the commencement of school on Monday following Mother’s Day;

(b) for one half of all school term holiday periods as agreed between the parties, and in default of agreement on a week-about basis commencing at the conclusion of school on the last day of term;

(i) in odd numbered years, from 3.00pm Christmas Eve to 3.00pm Christmas Day; and

(ii) in even numbered years, from 3.00pm Christmas Day to 3.00pm Boxing Day;

(d) subject to paragraph 5(c) above, for one half of the long summer vacation as agreed, and failing agreement:-

(i) the first half in 2020/2021; and

(ii) the second half in 2021/2022;

alternating yearly thereafter; and

(e) otherwise as agreed between the parties from time to time.

Additionally, the child spend time with the father:-

(a) for Father’s Day if she is not otherwise in the father’s care from 5.00pm the night before Father’s Day until the commencement of school on Monday following Father’s Day;

(b) for one half of all school term holiday periods as agreed between the parties, and in default of agreement, on a week-about basis commencing the second week of each school holiday period;

(i) in even numbered years, from 3.00pm Christmas Eve to 3.00pm Christmas Day; and

(ii) in odd numbered years, from 3.00pm Christmas Day to 3.00pm Boxing Day;

(d) subject to 6(c) above, for one half of the long summer holidays as agreed, and failing agreement:-

(i) the second half in 2020/2021; and

(ii) the first half in 2021/2022;

alternating yearly thereafter; and

(e) otherwise as agreed between the parties from time to time.

All changeovers shall take place at the child’s school where practicable, and otherwise at McDonald’s A Street, Suburb B, or such other jointly agreed changeover point.

For the purpose of these orders, each parent provide to the other such of the child’s sporting wear, accessories, musical and sporting equipment and any other items that may be in their respective possession that the child may reasonably require.

The parties exchange information concerning the child by way of text messages, or such other mutually agreed form of communication, save in the case of any emergency.

10.

The child continue to attend at C School or such other primary school jointly agreed to, and both parents ensure that the child attends every day of school save where she is medically unfit to attend as evidenced by a medical certificate.

11.

The parents be at liberty to provide a copy of these orders to any school which the child may from time to time attend.

12.

The parents both be permitted to attend all school activities including school concerts, school plays, excursions, parent-teacher interviews and the like, normally attended by parents.

13.

Save in an emergency, or unless otherwise agreed by the parties, the child shall attend at the D Medical Centre, Suburb B, or such other agreed medical practice for her medical care and both parents have authority to speak with the nominated General Practitioner in relation to the child’s health.

14.

The parents shall immediately inform the other of any serious illness or injury sustained by the child whilst in their care and further provide any particulars of any treatment received by the child together with the name and address of the treatment provider and/or location at which the child is a patient.

15.

The parents shall each make available to the other any medication prescribed for the child to enable the other party to administer such medication to the child and the other party shall thereafter administer the medication as prescribed or required and the medications shall pass between the parties so as to ensure that it is in the possession of the party with whom the child is living or spending time.

16.

Each parent shall provide to the other no less than seven days prior written notice of any change in residential address, telephone number, email address or other contact details.

17.

Each parent is hereby restrained from enrolling or committing the child to any activity during the other parent’s period of care without first obtaining the other parent’s consent in writing to such activity.

18.

Each parent be and is hereby restrained from:-

(a) discussing with the child or with any other person in the child’s hearing or presence, any detail of these proceedings;

(b) denigrating each other to the child or speaking with the child, or to any other person in the child’s presence or hearing, in derogatory terms about the other parent or members of the other parent’s household;

(c) removing the child from the Commonwealth of Australia without the written consent of the other parent or a Court order;

(d) assaulting, intimidating, molesting, harassing, threatening or in any way interfering with each other or the child; and

(e) using physical force to discipline the child.

19.

The Airport Watch List order of 24 July 2018 remain in full force and effect.

20.

Pursuant to section 13C of the Family Law Act 1975, the parties attend a post separation parenting course as soon as is reasonably practicable and upon completion of same provide a certificate of completion to the other party.

21.

A copy of this judgment and the evidence given to this Court be forwarded to a relevant officer of the Department of Home Affairs with a request they investigate the suitability of Mr E as a Migration Agent.

Property Orders and Spousal Maintenance

22.

Within 60 days of the making of these orders, the husband pay to the wife the sum of $395,000, being in addition to the $5,000 paid to the wife pursuant to Consent Order 1 made on 1 October, 2018.

23.

Pending the payment referred to in Order 22, the husband shall pay to the wife the sum of $70 spousal maintenance, commencing a week from today and weekly thereafter until Order 22 is satisfied.

24.

Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:-

(a) each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders;

(b) each party forgo any claims they may have to any superannuation or like benefits belonging to or earned by the other;

(d) each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and

(e) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

Child Support

25.

That pursuant to the Child Support (Assessment) Act 1998 and section 124 in particular that the husband shall pay or cause to be paid all reasonable educational and medical expenses for X, the child of the marriage.

26.

Otherwise all applications be dismissed.

AND THE COURT NOTES THAT:

A. Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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